Bombay High Court
Kanha S/O Hunkar Kove (In Jail) vs State Of Maharashtra, Through Pso ... on 5 June, 2017
Bench: Z.A. Haq
1 apeal596.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.596/2014
Kanha S/o Hankar Kowe,
age 21 Yrs., Occu. Lobourer,
R/o Bhandewadi, Pardi,
Gond Mohalla, Tah. and Distt.
Nagpur. ..Appellant.
..Vs..
State of Maharashtra,
through PSO., P.S. Kalmana
(Nagpur City). ..Respondent.
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Shri A.C. Jaltare, Advocate for the appellant.
Shri N.R. Patil, A.P.P. for the respondent / State.
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CORAM : Z.A.HAQ, J.
DATE : 5.6.2017.
ORAL JUDGMENT
1. Heard Shri A.C. Jaltare, Advocate for the appellant and Shri N.R.
Patil, A.P.P. for the respondent / State.
2. The appellant / accused has challenged the judgment passed by the
Sessions Court convicting him for the offence punishable under Section 376 of
the Indian Penal Code and Section 6 of the Protection of Children from Sexual
Offecnes Act, 2012 (for short "Act of 2012").
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3. The case of the prosecution is:
Nikita Arvichand Sadmake (deceased) had jumped in a well on 23 rd
January, 2013 at about 3 p.m., the information of which given to the police
station Kalmana and A.D. No.8/2013 was registered. The Investigating Agency
conducted investigation. Anita Sadmake (mother of deceased) had also lodged
complaint against the accused alleging that the accused had affair with
deceased and because of the refusal of the accused to respond to the phone
calls of the deceased she went under depression and committed suicide. On
the above complaint, crime was registered against the accused for the offence
punishable under Section 306 of the Indian Penal Code, investigation was
conducted and after completing the formalities, the charge-sheet came to filed
against the accused before the Judicial Magistrate First Class for the offence
punishable under Section 376 and 306 of the Indian Penal Code and for the
offence punishable under Sections 5 and 6 of the Act of 2012. As the above
offences are to be tried by the Special Court the case was committed to the
Sessions Court. The Sessions Court framed charges, explained the charges to
the accused and as the accused did not accept the guilt, conducted the trial.
After conclusion of the trial, the Sessions Court concluded that the prosecution
has proved the factum of death of Nikita, however, the prosecution has failed
to prove that the accused abetted the commission of suicide by Nikita. The
Sessions Court concluded that the prosecution has proved that the accused
committed aggravated penetrative sexual assault upon Nikita who was aged
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about 15 years at the relevant time and because of which she became pregnant.
With the above findings the Sessions Court convicted the appellant / accused as
per the impugned judgment.
4. In this appeal I am required to examine the legality of the finding
recorded by the Sessions Court on the point of involvement of the appellant /
accused in the offence punishable under Section 6 of the Act of 2012 and
punishable under Section 376 of the Indian Penal Code.
According to the prosecution, the documentary evidence on the
record i.e. the extract of admission register of the school where deceased
studied shows the date of birth of deceased as 15th July, 1999. However, the
evidence on the record shows that the entry of date of birth of deceased was
not recorded by the school authorities on the basis of birth certificate. The
report of ossification test (Exh. No.67) given by Dr. S.V. Parate and Dr. P.J.
Tayade, Assistant Professor, Department of Forensic Medicine, Indira Gandhi
Medical College, Nagpur shows that as per dental examination and radiological
examination report X-Ray No.219 (MLC) the age of deceased was
approximately 15 - 16 years. The learned Additional Sessions Judge has not
recorded specific findings about the date of birth and age of deceased.
5. Shri A.C. Jaltare, learned Advocate for the appellant has pointed out
that the conviction of the appellant for the offence punishable under Section
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376 of the Indian Penal Code and Section 6 of the Act of 2012 is based on the
report of DNA test. The opinion recorded in the report of DNA test (Exh.
No.61) is to the effect that the deceased and the appellant / accused are the
biological parents of the foetus (male child) of deceased.
6. The learned Advocate has submitted that the conviction under
Section 376 of the Indian Penal Code is mainly under the misconception that
the deceased was a minor, below age of 16 years. It is submitted that prior to
the amendment effected from 3 rd February, 2013 the age of minority was fixed
below 16 years and considering the report of ossification test (Exh. No.67) it
cannot be said that the age of deceased was below 16 years. It is submitted
that the prosecution has not been able to establish the age of the deceased or
the age of the foetus found in the uterus of the deceased. It is further
submitted that the learned Additional Sessions Judge has not adverted to the
above aspects and in the absence of any findings regarding the age of the
deceased and the age of the foetus, the conviction of the appellant for the
offence punishable under Section 376 of the Indian Penal Code is
unsustainable.
7. Shri Jaltare, learned Advocate has argued that the conviction of the
appellant for the offence punishable under Section 6 of the Act of 2012 is also
not sustainable as the Act of 2012 has come into force on 14 th November, 2012
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and unless the age of foetus is proved, the date of incident which even
according to the prosecution is in proximity with 14 th November, 2012 cannot
be established and consequently, the appellant could not have been convicted
for the offence punishable under Section 6 of the Act of 2012. I found
substantive force in the arguments made by the learned Advocate for the
appellant. The learned A.P.P. has not been able to point out anything from the
record on the basis of which the age of deceased and the age of the foetus in
question can be ascertained. Considering the fact that alleged incidents are in
close proximity with the date of enforcement of the Act of 2012, in my view,
the conviction of the appellant for the offence punishable under Section 6 of
the Act of 2012 is unsustainable.
8. As the learned Additional Sessions Judge has not adverted to the
above relevant aspects, in my view, the conviction of the appellant is
unsustainable.
9. Hence, the following order:
(i) The impugned judgment is set aside.
(ii) The conviction of the appellant / accused for the offence punishable
under Section 376 of the Indian Penal Code and Section 6 of the Protection of
Children from Sexual Offences Act, 2012 is set aside.
(iii) The appellant / accused is acquitted of the offence punishable
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under Section 376 of the Indian Penal Code and Section 6 of the Protection of
Children from Sexual Offences Act, 2012.
(iv) The bail bonds of the accused stand cancelled.
(v) The muddemal property be dealt with as per the judgment passed
by the learned Additional Sessions Judge, after the appeal period is over.
(vi) The appeal is partly allowed in the above terms.
JUDGE
Tambaskar.
