Ganesh vs State Of Maharashtra

Section 363 of the IPC,"Rigorous Imprisonment for three years and payment of fine of Rs.3,000/, in default to undergo simple imprisonment

for three month.

Section 366 of the IPC,"Rigorous Imprisonment for seven years and payment of fine of Rs.5,000/, in default to undergo simple imprisonment

for six month.

Section 376 of the IPC,"Rigorous imprisonment for ten years and payment of fine of Rs.5,000/, in default to undergo simple imprisonment

for one years.

will and that she was in a relationship with the accused. The victim does speak of sexual intercourse, however, she does not state that she was forced",

to submit to the accused. It is also not stated by the victim that the accused refused to marry her.,

The medical certificate Exh. 78, which according to the learned Sessions Judge proves the sexual intercourse, is admitted by the defence. No",

external injury over the private part or on the person of the victim is noticed. It is stated in Exh. 78 that no definite opinion can be given as regards,

forcible intercourse or whether the victim is habituated to sexual intercourse or otherwise. Tear to the hymen is old, is the opinion. I am afraid, while",

the medical evidence may suggest that the victim is used to sexual intercourse, no inference can be drawn that during the relevant period, the victim",

and the accused had sexual intercourse. Concededly, there is no other forensic evidence to show that the accused subjected the victim to sexual",

intercourse in the days they were together. Exh. 78 , which is also admitted by the defefence, records the responses of the medical officer to the",

queries of the Investigating Officer. The opinion is that the victim may be habituated to sexual intercourse.,

The seminal issue is whether the prosecution has proved beyond reasonable doubt, that the victim was a minor. The birth certificate issued under",

the Birth and Death Registration Act, 1969, is not produced. The report of the ossification test (Exh. 96) which is admitted by the defence, opines the",

age of the victim to be 16 years (plusÂminus 1 year). It is judicially recognized that the ossification test is not conclusive for age determination and the,

margin of error is two years on either side. Reference may be made to the decision of the Hon'ble Apex Court in Ram Suresh Singh vs. Prabhat Singh,

and anr, reported in 2009(6) SCC 681 and Jyoti Prakash Rai vs. State of Bihar, reported in (2008) 15 SCC 223.",

The observations in the judgment that the age of the victim as stated by the victim is not denied, is contrary to record. The only other evidence is the",

testimony of PW 3 Yogita Jirapure. She states that she provided the birth certificate of the victim to the police. The birth certificate to which PW 3 is,

referring to appears to be her communication dated 3.1.2012 in which the date of birth of the victim is mentioned as 6.1.1997. The communication,

dated 3.1.2012 (Exh.38). addressed by PW 3 â€" Yogita purports to certify that the date of birth of the victim is 6.1.1997. Exh. 41 is the extract of the,

admission register on the basis of which the certificate Exh. 38 is issued. PW 3 admits that the entry in the admission register is recorded by the clerk,

and not by her. PW 3 further admits that there is no mention in the extract of the admission register Exh. 41 of the source of information or the,

document on the basis of which the entry of the date of birth is recorded.,

It is too well settled, to warrant a reference to the catena of decisions on the point that the evidentiary value of the school record would depend on",

the proof of primary evidence or source of information on the basis of which the entry is recorded. In my considered opinion, since the prosecution",

failed to establish the primary evidence on the basis of which the entry is taken in the admission register, the school record is of no evidentiary value",

as regards the age determination of the victim.,

The benefit of reasonable doubt must go in favour of the accused. I am satisfied, that the prosecution has not conclusively established that the",

victim was a minor and therefore not in position to consent to the sexual relationship.,

I am satisfied, that the accused is entitled to the benefit of the doubt and that the judgment impugned is unsustainable in law.",

The judgment dated 4.5.2018, rendered by the Additional Sessions Judge, Amravati in Session Trial 102 of 2012 is set aside.",

The appellant â€" accused is acquitted of offences punishable under sections 363, 366 and 376 of the Indian Penal Code.",

Fine paid, if any, be refunded to the accused.",

The accused shall be released from custody forthwith unless his detention is required in connection with any other crime.,

Fees of the appointed counsel Shri R.D. Hazare, be paid as per rules.",