Nilesh Raju Zende vs The State Of Maharashtra & Anr.

Instant appeal is directed against the judgment and order dated 08.05.2023 passed by learned Extra Joint District and Additional Sessions Judge, Ahmednagar in Special Case No. 114 of 2022 convicting appellant for offence under Section 376(2)(i)(j)(n) and (3) of IPC.

The brief snapshot of prosecution case is that, victim, who was 14 years and 9 months old, had appeared for 10^th standard examination. On 04.04.2022, victim went missing, of which father PW2 lodged report. Victim returned after one month and on inquiry by father, she told that, accused made telephone call and called her out of the house at Nityaseva Chowk and from there, he took her to Warje, Pune and during stay he had forcible sexual relations with her. On such report, crime was registered, duly investigated and accused came to be chargesheeted, who faced trial vide above Special Case No 114/2022 in which learned trial court was pleased to accept the case of prosecution and convict the appellant. Said judgment is now the subject matter of instant appeal.

Learned counsel for the appellant would submit that, prosecution has not proved age of the victim beyond reasonable doubt. According to him, victim has herself deposed that she left the house on her own accord. She willingly joined appellant to several places and stayed with him without raising alarm. That, their stay was in crowded place, but there was no reporting to anyone including parents. Learned counsel pointed out that, though there is birth certificate on record, name and date of birth is in different ink and handwriting. That, moreover, prosecution failed to prove that birth certificate was issued at the instance of the hospital where she was born. Learned counsel pointed out that, even medical expert has admitted that the girl has attended puberty and on such count also, age of the victim comes under shadow of doubt. All such aspects are not considered and appreciated by trial court. According to him, there is failure to consider and apply law. And for such reasons, he prays to allow the appeal by setting aside the impugned judgment.

Per contra, learned APP as well as learned counsel for victim both supported the judgment and according to them, there is correct appreciation of evidence as well as law. There being no perversity or illegality, they pray to dismiss the appeal for want of merits.

Re-appreciated the evidence on record. Prosecution seems to have adduced evidence of as many as eight witnesses, whose status is as follows. PW1 victim, PW2 father, PW3 Headmaster, PW4 official from Panchayat Samiti who placed on record of birth report of victim at Exhibit 41, PW5 medical officer, PW6 pancha to spot and PW7 and PW 8 are the Investigating Officers.

In view of objection, it is to be seen whether prosecution has proved that victim was a minor on the date of incident. On studying the oral evidence, victim PW1 seems to have given her date of birth as 12.07.2007. PW2 father also gave her date of birth as 12.07.2007. Headmaster PW3 at Exhibit 31 deposed that, in view of the birth certificate issued by Grampachayat entry was taken into the school record and date of birth is 12.07.2007. Birth certificate is at Exhibit 36 and it is produced by PW3. Therefore, going by the date of birth as 12.07.2007, and occurrence to be of 05.04.2022, victim is around 14 years and some months old only. Therefore, prosecution has proved that victim was minor on the date of incident.

Now, it is to be seen whether predicate offence of rape is proved or not. For this, as usual, it is the evidence of victim which is crucial, followed by that of medical officer, and therefore such evidence is put to scrutiny.

Victim in her testimony at Exhibit 21 in para 2 deposed that on 04.04.2022 accused called her up and asked her to accompany him and accordingly, on the night of 05.04.2022 around 12.30 a.m., she came out of the house and met him where he was waiting for her. They traveled in a tempo towards Nagar Bus stand and from there went to Pune and took a room and stayed there. They also garlanded each other. She claims that, she told him that she was not of marriageable age, but accused did not listen. That, they resided in the room at Lohgad Colony, Pune till 26.04.2022 and went to Warje where they stayed for some days. She deposed that accused was knowing that she was minor. Even then, he committed sexual intercourse with her and on night of 01.05.2022 her father came with police and brought her.

Initial cross is on the count of her acquaintance with one Bunty, then about her primary education and about her menstrual cycle. She denied that, during stay at Pune accused used to leave the room. She admitted her stay at Shevgaon and Warje. Rest is all denial.

Thus, here, victim's above discussed evidence shows that she had appraised accused that she was not of marriageable age, but he did not listen. She also categorically stated that, in spite of knowing that she was minor, accused committed sexual intercourse with her. Her such deposition shows that she was not consenting or willing party.

PW5, a medical witness, on examining the victim, opined that overall findings were consistent with sexual intercourse. CA report confirmed his such findings. Nothing adverse is brought in the cross of this doctor so as to disbelieve his above testimony.

Consequently, here, on the point of offence also, there is creditworthy and trustworthy account of victim which is finding support from medical witness. Resultantly, charges are apparently shown to be proved.

Perused the judgment under challenge. Learned trial court seems to have appreciated the entire evidence and delivered a reasoned judgment. Summation of the case is dealt in para 15 of the judgment. There being no illegality or perversity in the impugned judgment, no interference is called for. Hence, the following order :