Cri. Appeal No.135.17.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.135 OF 2017
Aashik s/o Bharat Gajbhiye,
Aged 24 years,
Occupation-Labourer,
R/o. Nandgaon (Jonny),
Tahsil-Bramhapuri,
District-Chandrapur
(Presently in Jail). .. APPELLANT
.. VERSUS ..
The State of Maharashtra,
Through Police Station Officer,
Police Station, Gadchandur,
District-Gadchandur (Chandrapur) .. RESPONDENT
..........
Shri S.V. Sirpurkar, Advocate for Appellant,
Shri N.H. Joshi, APP for Respondent-State.
..........
CORAM : KUM. INDIRA JAIN, J.
DATED : OCTOBER 03, 2017.
ORAL JUDGMENT This appeal takes an exception to the judgment and order dated 28.2.2017 passed by the Special Court, ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 2 Chandrapur in Special (POCSO) Case No.76/2015. By the said judgment and order, appellant-accused no.1 has been convicted of the offence punishable under Section 376 (2)(a)
(i) of the Indian Penal Code and Section 3 punishable under section 4 of the Protection of Children from Sexual Offences Act 2012 (for short 'POCSO Act') and sentenced as under :
Sr. Conviction Punishment
No. under
section
1. 376 (2)(a)(i), Rigorous imprisonment for ten IPC. years and fine of Rs.1,000/- in-
default simple imprisonment for three months.
2. 3 r/w 4, Rigorous imprisonment for seven POCSO Act. years and fine of Rs.500/- in default simple imprisonment for one month.
The trial court directed both the sentences to run concurrently.
2] For the sake of convenience, appellant shall be referred in his original status as accused as he was referred before the special court.
3] The facts giving rise to the appeal may be stated in nutshell as under :
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(i) In all three accused were chargesheeted for the offences punishable under Sections 363, 366-A, 376 (2)(i) r/w 109 of the Indian Penal Code and Section 3 punishable under section 4 of the POCSO Act. Accused no.1 alone came to be convicted for the offences as stated herein-above. Accused nos.2 and 3 were acquitted by the trial court.
(ii) According to the prosecution, victim was a student of 9th standard in a National High School at Durgapur. She was residing in a rented room. The victim's mother was resident of Khavthala. Incident occurred on 1.5.2015 and continued later. At around 1.00 pm, victim left for Chandrapur from her native place Khavthala. To ascertain, whether daughter has reached safely, mother of victim called her at 6.00 pm. Victim informed her mother that she was at the house of accused no.1/appellant at Chandrapur. Mother of victim asked accused no.1 to drop victim at her house. Accused expressed his inability to do so. Thereafter, accused took the victim to an unknown place.
(iii) The mother of victim lodged report with Gadchandur Police Station. Crime No.34/2015 came to be registered against accused for the offences punishable ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 4 under sections 363, 366-A and 376 (2) (i) of the Indian Penal Code. Investigation was handed over to PSI Yashwant Kichak (PW-8). Investigating Officer visited the place of occurrence and recorded spot panchanama. It was followed by statements of victim and other witnesses. Accused was arrested. Arrest panchanama was accordingly drawn. Investigating Officer then referred the victim and accused for medical examination. The clothes of duo were seized and seizure panchanamas were recorded. One motorcycle used in the commission of crime by the accused was also seized. Further investigation was handed over to API Uike (PW-9). API Uike recorded statements of remaining witnesses and after completing investigation submitted charge-sheet to the court of J.M.F.C, Gadchandur, who in turn, committed the case for trial to the Special Court. 4] Charge of the alleged offences came to be explained to accused vide Exh.4. Accused pleaded not guilty and claimed to be tried. The defence of accused was of total denial and false implication.
5] Prosecution examined in all nine witnesses to substantiate the guilt of accused. Considering the evidence ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 5 adduced by the prosecution, Special Court found that offences under sections 363 and 366-A of Indian Penal Code have not been proved and held the accused guilty of offence punishable under section 376(2)(a)(i) r/w 109 of the Indian Penal Code and Section 3 punishable under section 4 of the POCSO Act. Being aggrieved by judgment and order of conviction as stated above, accused no.1 preferred this appeal.
6] Heard Shri S.V. Sirpurkar, learned counsel for appellant and Shri N.H. Joshi, learned APP for respondent- State. Perused reasonings recorded by the trial court. 7] On meticulous evaluation of evidence of prosecutrix, her mother, Principal of school and both the investigating officers, this court, for the below reasons, finds that prosecution has not proved the guilt of accused beyond reasonable doubt. Needless to state that in a case of sexual assault where victim is minor her evidence plays a significant role and prosecution at the same time has to prove the age of victim beyond doubt. In the case on hand, according to prosecution, date of birth of prosecutrix is 28.2.2000. Incident first occurred on 1.5.2015. It means ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 6 prosecutrix was around fifteen years two months old at the relevant time. To prove age of victim, reliance is placed on evidence of prosecutrix (PW-2), her mother (PW-1), Principal of the school Sudhakar Wathore (PW-7) and both the investigating officers. It can be seen from the evidence of prosecutrix and her mother that they could not state the date of birth of prosecutrix. Both the investigating officers PW-8 PSI Kichak and PW-9 API Uike, though denied suggestions in cross-examination that prosecutrix was above 18 years of age could not state the date of birth of prosecutrix. PW-8 PSI Kichak stated that he collected birth certificate of victim during investigation. To prove the said birth certificate, prosecution examined PW-7 Sudhakar Wathore. He was Principal of Shri Sudhakarrao Rathod Post Basic Adivasi Ashram School since 2007. PW-7 Sudhakar Wathore stated that victim was studying in their school for the year 2015-16 and left the school on 16.6.2016. It appears from the evidence of this witness that victim took admission in the school on 30.7.2015. It shows that one academic year only she was student of school in which PW-7 was the Principal. According to witness PW-7 Sudhakar Wathore at the time of giving admission to the victim in the school, they obtained transfer certificate and mark-sheet of ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 7 victim of earlier school. The copy of admission register and birth certificate of victim (Exhs.63 and 64) came to be proved by this witness. As per the certificate Exh.64, date of birth of victim appears to be 28.2.2000. 8] The moot question in the present case is entry in transfer certificate (Exh.64) regarding date of birth would be relevant under Section 35 of the Evidence Act. In the cross- examination, PW-7 Sudhakar Wathore admitted that date of birth of victim mentioned in their school record is on the basis of earlier transfer certificate and he had not brought transfer certificate submitted by victim at the time of getting admission. He could not tell where was the victim born and what is her exact date of birth in earlier record and in Gram Panchayat or Municipal record.
9] In this connection, learned APP referred to certificate dated 29.4.2004 issued by Chandrapur Municipal Council and submitted that this birth certificate indicates the same date of birth which is mentioned in certificate (Exh.64). So far as birth certificate issued by Chandrapur Municipal Council is concerned, prosecution did not examine any witness to prove the entries therein. The certificate is ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 8 not proved and not exhibited. In the absence of proof, the birth certificate issued by Municipal Council needs to be kept out of consideration as it is not legally admissible in evidence.
10] Section 35 of Evidence Act relates to relevancy of entry in public record or in electronic record made in performance of duty. The entry in birth register, as recorded by public authority, is admissible u/s 35 of Evidence Act. In this case, as entry in birth register has not been proved by examining competent witness, the said certificate does not come to the rescue of prosecution. So far as entries in school register (Exh.63) and transfer certificate (Exh.64) are concerned, in the absence of primary evidence i.e. earlier transfer certificate and entries in official record of the school in which victim was admitted initially would not be sufficient to prove age of the victim.
11] If the prosecution fails to cross the hurdle regarding the age, nothing remains in the case against the accused, particularly in the light of evidence of prosecutrix and her mother, which would indicate that it is a clear case of consent between victim and the accused. As such, for ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 ::: Cri. Appeal No.135.17.odt 9 want of legal and cogent proof regarding age of prosecutrix, this court finds that the reliance on the suggestion given in cross-examination of the prosecutrix cannot be a base to convict the accused. The judgment and order of conviction is thus unsustainable in law. Hence, the following order :
ORDER
(i) Criminal Appeal No.135/2017 is allowed.
(ii) The impugned judgment and order dated 28.2.2017 passed by the Special Court, Chandrapur in Special (POCSO) Case No.76/2015 is quashed and set aside.
(iii) Appellant-accused no.1 Aashik s/o Bharat Gajbhiye is in jail. He shall be released forthwith, if not required in any other case.
(Kum. Indira Jain, J.) Gulande, PA ::: Uploaded on - 06/10/2017 ::: Downloaded on - 07/10/2017 01:38:52 :::