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 2nd 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 7th

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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