REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APEPAL NO. 492 OF 2001

State of Maharashtra ……Appellant

Versus

Gajanan @ Hemant Janardhan Wankhede ……Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.Challenge in this appeal is to the judgment of a learned

Single Judge of the Bombay High Court, Nagpur Bench

directing acquittal of the respondent by setting aside the

conviction as recorded by the learned 2

nd

Additional Sessions

Judge, Amravati. The respondent was convicted for offence

punishable under Sections 363, 366 and 376 of the Indian

Penal Code, 1860 (in short the ‘IPC’) and was sentenced to

undergo RI for 5 years, 4 years and 3 years respectively for the

three offences alongwith fine and default stipulation.

2.Background facts in a nutshell are as follows:

Prosecutrix, who is the daughter of complainant

Ambaprasad Mishra, was residing with the family in Mangilal

plots, Amravati. The accused-respondent was also the resident

of the same locality. The prosecutrix was educated upto 7

th

standard and she had taken her education in Municipal

School No.5 at Amravati. Her date of birth recorded in official

documents was 4.6.1976 and the incident of kidnapping her

by the accused took place on 21.4.1991. As such she was

aged 14 years, 10 months and 17 days at the time of the

incident. On 21.4.1991, the accused sent a message to

prosecutrix through one Sachin and called her to come with a

bag at a place near her school. Accordingly, the prosecutrix

went at that place. Then the accused, prosecutrix and Sachin

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went by an autorickshaw to Chinchfail area of Amravati where

the grandmother of the accused was residing. They reached

there at about 1.00 p.m. The accused took his suitcase. Then

the accused and prosecutrix who were accompanied by

Sachin, arrived by an autorickshaw at Badnera Railway

station. Sachin went back to Amravati from Badnera Railway

Station and the accused and prosecutrix arrived at Nagpur by

train. They reached Nagpur at about 5.00 p.m. Therefrom they

went to Jhansi. They reached Jhansi early in the morning, i.e.

at about 4.00 to 5.00 a.m. At Jhansi, they went to the house

of the sister of the accused namely Lata. They stayed in one

separate room in the house of accused’s sister for about 8 to

10 days. During this period, they used to sleep in that room

and the accused practically on every night performed sexual

intercourse with prosecutrix. Then from Jhansi, the accused

and prosecutrix arrived at Bichona and stayed there in the

house of one Rajput for about 3-4 days and the accused

performed sexual intercourse with the prosecutrix twice. Then

from Bichona, both of them came to Mundai. They resided at

Mundai in the house of one Narmadaprasad for about one and

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half months. From Mundai, the accused and prosecutrix

arrived at Chinchkhed via Nagpur and Amravati and stayed in

the house of the sister of the accused for about 4-5 days.

Again from Chinchkhed, they went to Nagpur and stayed in

the house of one friend of the accused for about 20 days. The

accused was working as a labourer during this period. The

accused and the prosecutrix then again came back to

Chinchkhed, stayed there for one day and then went to

Katsoor. They stayed at Katsoor at the house of maternal aunt

of the accused for about 4-5 days. Then they came to

Paratwada and therefrom went to village Talegaon where they

stayed with the aunt of the accused. Then from Talegaon, they

went to Delhi. But since the address of the person within

whom they were going to stay at that place was not available,

they returned back to Talegaon. During all these days, the

accused performed sexual intercourse with the prosecutrix.

While at Talegaon, the father of the prosecutrix and Rajapeth

(Amravati) Police arrived there. The statement of the

prosecutrix was recorded and she was taken back.

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Meanwhile, immediately on the next day of the

occurrence, i.e. 22.4.1991, the father of the prosecutrix on

coming to know the fact about kidnapping his daughter by the

accused, had lodged the report in Police Station Rajapeth,

Amravati, on the strength of which the offence under Sections

363 and 366 IPC was registered as Crime No.184 of 1991.

Then on 28.8.1991, the prosecutrix and the accused were

traced at Talegaon and accused was arrested. Prosecutrix was

referred to Women’s Hospital, Amravati, for her medical

examination. The Medical Officer concerned examined her and

found that her hymen was ruptured, she was habituated to

sexual intercourse and she was carrying pregnancy of 4 to 6

weeks. On arrest of the accused, he was also referred for

medical examination and the Medical Officer concerned

opined that he was capable of committing sexual intercourse.

The ossification test of the girl was also carried out and the

opinion of the concerned Medical Officer was that the girl was

aged about 14 to 16 years. The radiological examination of the

accused was also performed wherein it was found that he was

aged about 20 years. The necessary investigation was

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conducted and on completion of the same the accused stood

charge sheeted for the offences punishable under Sections

363, 366 and 376 IPC.

The case was committed to the Court of Session. Since

the respondent pleaded innocence and false implication, the

trial was held.

The defence of the accused as it is revealed from his

examination under Section 313 of the Code of Criminal

Procedure, 1973 (in short the ‘Code’) is of total denial. He

denied to have taken prosecutrix Sharmila and to have

committed sexual intercourse with her. It is the contention of

the accused that prosecutrix had love affairs with him and her

parents came to know about the same. They were about to

perform her marriage forcibly with somebody else. They did

not like the accused as he belonged to inferior caste, whereas

they were belonging to superior caste. So, they involved the

accused falsely. Alternatively, it was pleaded that whatever

was done had consent of the prosecutrix.

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The trial Court found that the prosecutrix was aged

about 16 years and, therefore, the consent of the prosecutrix

was of no consequence. The High Court held that there was

consent and additionally, the girl was more than 16 years of

age. With reference to the evidence of a doctor (PW-9) it was

held that since the medical evidence shows that the age of the

girl was above 14 years and below 16 years with an error

margin of one year, the school leaving certificate and the

school register were of no consequence. Accordingly, it

directed acquittal as noted above.

3.Learned counsel for the appellant-State submitted that

the conclusions of the High Court are totally erroneous. The

High Court came to presumptuous conclusion about the date

of birth of the victim.

4.Learned counsel for the respondent on the other hand

submitted that the medical evidence clearly rules out the

authenticity of the documentary evidence and in any event the

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order of acquittal as has been passed and the view of the

learned Single Judge cannot be termed as perverse.

5.Undisputedly, the school records revealed the date of

birth of the victim to be 4.6.1976. This was the position as

indicated in the school leaving certificate (Exh.25) and the

school register. The High Court noted that in the school

register the date of birth was indicated to be 4.6.1976. It also

noticed that the father of the victim stated that the girl was 14

years old. The High Court held that the correct date of birth is

not recorded and only the school leaving certificate indicated

that the date of birth of the victim was 4.6.1976. The evidence

of the witnesses indicated that the entry was made on the

basis of the horoscope. The High Court held that since the

horoscope was not produced the prosecution has failed to

establish its case. No reason has been indicated by the High

Court to discard the documentary evidence produced i.e.

school leaving certificate and the school register. The

Headmaster of the school also deposed and produced the

records before the trial Court. The High Court held that the

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entry in the school register was not in the handwriting of the

Headmaster and he could not have deposed about the date of

birth. There was no basis for the High Court to conclude that

the entry cannot be taken to be above suspicion. On the basis

of the evidence of the Headmaster and the original school

leaving certificate and the school register which were produced

the High Court came to abrupt conclusion that normally for

various reasons the guardians to understate the age of their

children at the time of admission in the school. There was no

material or basis for coming to this conclusion. The High

Court in the absence of any evidence to the contrary should

not have come to hold that the date of birth of the prosecutrix

was not established and the school leaving certificate and the

school register are not conclusive. Interestingly, no question

was put to the victim in cross examination about the date of

birth. The High Court also noted that no document was

produced at the time of admission and a horoscope was

purportedly produced. There is no requirement that at the

time of admission documents are to be produced as regards

the age of the student. Practically, there was no analysis of

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the evidence on record and abrupt conclusions, mostly based

on surmises, were arrived at. The inevitable conclusion is that

the judgment of the High Court is unsustainable, deserves to

be set aside which we direct. The respondent shall surrender

to custody to serve the remainder of the sentences.

6.The appeal is allowed.

……………………………..J.

(Dr. ARIJIT PASAYAT)

……………………………..J.

(P. SATHASIVAM)

New Delhi,

July 9, 2008

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