The State Of Mah., Thr. Pso Ps, ... vs Avinash Champat Kowe
2021 Latest Caselaw 570 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR.

                CRIMINAL APPLICATION (APPA) NO. 2 OF 2020
                                   IN
                      CRIMINAL APPEAL NO. /2019

       The State of Maharashtra, Through P.S.O. P.S. Pandharkawada
                                                Vs.
                                 Avinash Champat Kowe
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 Office Notes, Office Memoranda of                           Court's or Judge's Order
 Coram, appearances, Court's Orders
 or directions and Registrar's order
                          Shri T.A.Mirza, Additional Public Prosecutor for the Applicant.


                                   CORAM :-         Z. A. HAQ AND
                                                    AMIT B. BORKAR, JJ.

                                   DATED :-         11.01.2021


                   1.                 Heard.

2. The State of Maharashtra has filed the

present Criminal Application seeking leave to file appeal

against the judgment dated 17.09.2019 passed by the

Special Judge, Kelapur, District Yavatmal in Special

(POCSO) Case No.18/2016, thereby acquitting the

accused.

3. The respondent was charged with the

offences punishable under Sections 363, 366-A and 376

(2)(n) of the Indian Penal Code read with Sections 4 & 6

of the Protection of Children from Sexual Offences Act,

2012 (for short "POCSO Act"). As per the case of the

prosecution, the incident took place on 09.02.2016. It is

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alleged that the Victim girl was below 18 years on the

date of incident. The prosecution, in support of its case,

submitted that the Victim was minor on the date of

incident and placed on record Birth Certificate issued by

the Secretary of Birth and Death Register of Gram

Panchayat, Arvi. The said Birth Certificate mentions the

name of the mother and the father as Sau. Varsha Kowe

and Gopal Kowe. The sex of the child was female and

her date of birth, as per the said certificate is 16.01.2000.

The learned Trial Court, in the impugned judgment, held

that the parents of the Victim viz., Bhushan Kowe -

Informant (PW 1) and Sau. Varsha Bhupal Kowe (PW 5)

nowhere stated about the birth of girl at village Arvi.

Therefore, in such circumstances, and in absence of the

material evidence on record, the Birth Certificate

produced by the prosecution had no evidentiary value to

prove that the Victim was minor on the date of incident.

Apart from the said fact, the Birth Certificate produced

on record did not bear the name of child. From the

evidence, it appears that the mother of the Victim girl

had another elder daughter. Under the said

circumstances, the learned Trial Judge held that it would

be unsafe to rely on the birth certificate on the

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assumption that the said Birth Certificate was in respect

of the Victim girl. Undisputely, no ossification test of the

Victim girl was conducted by the Investigating Agency

and, therefore, the learned Trial Judge recorded the

finding that the prosecution failed to prove that the

Victim girl was minor below aged about 18 years on the

date of incident.

4. The learned Trial Judge in paragraph No.19

considered the medical evidence and recorded finding

that in view of the admission of Dr. Avinash Waghmode

that there were no signs of violence on the person of the

Victim, recorded finding that there is doubt whether

really the accused committed aggravated penetrative

sexual assault on the Victim girl.

5. The learned Trial Court has considered the

testimonies of all the witnesses and after giving elaborate

reasons has disbelieved their testimonies.

6. After carefully considering the reasoning

given by the Trial Court, we are of the view that the

prosecution has failed to prove age of the Victim girl, as

on the date of incident as alleged. There is no concrete

evidence to show any inducement to commit illegal acts,

as alleged in the prosecution case. There is no cogent

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evidence with the prosecution to show repetitive and

penetrative sexual assault with the victim girl. On the

contrary, record reveals love relationship between the

Victim girl and the accused. It also appears that the

Victim and the accused eloped and stayed together as

husband and wife.

7. Therefore, in our opinion the judgment of

acquittal rendered by the learned Trial Court is a

possible view. There is no merit in the present application

to grant leave to file appeal.

Criminal Application is, therefore, dismissed.

                                     JUDGE                          JUDGE

 Ambulkar