LexSTATE OF MAHARASHTRA versus GAJANAN @ HEMANT JANARDHAN WANKHEDE
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 10 S.C.R. 541
~
STATE OF MAHARASHTRA
A
II.
GAJANAN @ HEMANT JANARDHAN WANKHEDE
(Criminal Appeal No. 492 of 2001)
-¥
JULY 9, 2008
8,
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
Penal Code, 1860 - ss. 363, 366 and 376 - Conviction
and sentence under- Set aside by High Court in appeal, on
ground that there was consent of the victim girl and she was c
more than 16 years of age - Held: Conclusion of High Court
about the date of birth of the victim was presumptuous - There
was no analysis of the evidence on record and abrupt conclu-
.,.
sions, mostly based on surmises, were arrived at by the High
~
Court - Accused directed to serve the remainder sentence.
D
The Trial Court convicted Respondent under ss. 363,
366 and 376 of the IPC and sentenced him to undergo RI
for 5, 4 and 3 years respectively for the three offences.
The victim girl was educated upto 7th standard in a Mu-
nicipal school. In the school leaving certificate, her date E
of birth was indicated as 4-6-1976 and the incident of her
kidnapping by Respondent allegedly took place on 21-4-
1991.
...
The High Court, however, acquitted Respondent
i.
F
holding that there was consent of thp victim girl and she
was more than 16 years of age. The High Court held that
since the medical evidence showed 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.
G
~
In appe_al to this Court, it was submitted by the State
that.the conclusion of the High Court about the date of
birth of the victim was presumptuous.
541
H
..
542
SUPREME COURT REPORTS
[2008] 10 S.C.R.
}:-
A
Allowing the appeal, the Court
HELD:1.1. The High Court held that the correct date
of birth is not recorded and only the school leaving cer-
tificate indicated that the date of birth of the victim was
4.6.1976. The evidence of the witnesses indicated that the
'f
B 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 rea-
~
r-
son has been indicated by the High Court to discard the
c
documentary evidence produced i.e. school leaving cer-
tificate 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 entry in the
school register was not in the handwriting of the Head~
master and he could not have deposed about the date of
,,
D birth. There was no basis for the High Court to conclude
t
that the entry cannot be taken to be above suspicion.
[Para 5] [546-G,H; 547-A,B & C]
1.2. On the basis of the evidence of the Headl)"laster
E and the original school leaving certificate and the school
register which were produced, the High Court came to
abrupt conclusion that normalty ·for various reasons the
guardians understate the age of their children at the time
of admission in the school. There was no material or ba-
sis for coming to this conclusion. The High Court in the
·~
).
F 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. No question was put
to the victim in cross examination about the date of birth.
G The High Court also noted that no document was pro-
duced at the time of admission and a horoscope was pur-
)('
portedly produced. There is no requirement that at the
time of admission documents are to be produced as r.e-
gards the age of the student. Practically, there was no
H analysis of the evidence on record and abrupt conclu-
-
STATE OF MAHARASHTRA v. GAJANAN@HEMANT
543
JANARDHAN WANKHEDE [DR. ARIJIT PASAYAT, J.]
sions, mostly based on surmises, were arrived at. The A
inevitable conclusion is that the judgment of the High
Court is unsustainable and deserves to be set aside. The
Respondent shall surrender to c4stody to serve the re-
mainder of the sentences. [Para 5) [547-C,D,E,F & G]
)(
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
B
No. 492 of 2001
From the final Judgment and Order dated 30.3.2000 of
the High Court of Judicature at Bombay, Nagpur Bench, Nagpur
in Crl. Appeal No. 355 of 1994
c
Ravindra Keshavrao Adsure for the Appellant.
Manish Patale and V.N. Raghupathy for the Respondents.
The Judgment of the Court was delivereExcerpt shown. Read the full judgment & AI analysis in Lexace.