Prakash S/O Bhairuram Dhari vs State Of Mah. Thr. Pso Ps Narkhed ...
2021 Latest Caselaw 678 Bom

  902Cri.appeal462.2020.odt                                                  1


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

                       CRIMINAL APPEAL NO. 462 OF 2020

  Prakash s/o Bhairuram Dhari,
  Aged about 23 years.
  Occ. Labor,
  R/o. Chitai, Tah. Parbatsar,
  Dist. Nagor (Rajasthan)
                                                                 ...APPELLANT

                                       // VERSUS //

  State of Maharashtra through
  P.S.O., Police Station Narkhed,
  District Nagpur
                                               ...RESPONDENT
  ___________________________________________________________

  Shri S.N. Bawangade, Advocate for the appellant.
  Shri H.D. Dubey, A.P.P. for respondent - State.
  ___________________________________________________________

                               CORAM   :   PUSHPA V. GANEDIWALA, J.
                                           JANUARY 13, 2021.


  JUDGMENT :

This is an appeal against judgment and order passed by

the Sessions Court, Nagpur in Special Child Cri. Case No. 37/2018

dated 29/09/2020 against conviction of the appellant/accused in

Crime No. 328/2017 for the offence punishable under Sections 363,

366(A), 376(2)(n)(i) of the Indian Penal Code and Section 4 and 6

of the Protection of Children from Sexual Offences Act, (POCSO),

2012, registered at police station Narkhed, Dist. Nagpur.

2. For the offence punishable under Section 363 of the

Indian Penal Code, the appellant/accused is sentenced to undergo

S.I. for one year and fine of Rs. 500/-, in default sentence for one

month.

3. For the offence punishable under Section 376 of the

Indian Penal Code, the appellant/accused is sentenced to undergo

R.I. for seven years and to pay fine of Rs. 1000/-, in default

sentence for one month.

4. For the offence punishable under Section 4 of the

Protection of Children from Sexual Offences Act (POCSO), 2012,

the appellant/accused is sentenced to undergo R.I. for seven years

and fine of Rs. 500/-, in default S.I. for one month.

5. For the offence punishable under Section 6 of the

Protection of Children from Sexual Offences Act (POCSO), 2012,

the appellant/accused is sentenced to undergo R.I. for ten years and

fine of Rs. 1000/-, in default R.I. for one month.

All the sentences are directed to run concurrently.

6. The prosecution case, in brief, is as under :

The informant - Smt. Chhaya Sonone is the mother of

the prosecutrix. On 21/10/2017, she lodged a report at police

station, Sawargaon stating therein about missing of her daughter

(prosecutrix - name kept undisclosed), and she had a doubt that the

appellant/accused must have kidnapped her from her legal custody.

Initially, F.I.R. (Exh. 17) came to be registered under Section 363 of

the Indian Penal Code, 1860 (for short IPC) against the

appellant/accused. On the basis of tower location, the prosecutrix

and the appellant/accused were brought from Rajasthan by the

police. The statement of the prosecutrix was recorded and on that

basis, Section 376 of the IPC and other provisions of POCSO Act

came to be added against the appellant/accused. Both the accused

and the prosecutrix were sent for medical examinations. The

statements of witnesses were recorded. The birth certificate of the

prosecutrix (Exh. 13) showing her date of birth as 08/04/2001 was

obtained. After investigation, charge-sheet came to be filed before

the Court of Magistrate, who in its turn, committed the case to the

Court of Sessions. The Court of Sessions framed charge (Exh. 5)

against the appellant/accused for the offence punishable under

Sections 363, 366A, 376(2)(i)(j)(n) of the IPC, and Sections 4 and 6

of the POCSO Act. The charge was read over and explained to the

appellant/accused, to which he pleaded not guilty and claimed to be

tried. The plea of the accused was recorded.

7. To substantiate the charge against the

appellant/accused, prosecution examined in all four witnesses and

also brought on record necessary documents. The trial Court

recorded statement of the appellant / accused under Section 313 of

the Code of Criminal Procedure, 1973 (for short "Cr.P.C."). After

hearing both the parties, the trial Court found that the prosecution

could establish its case beyond reasonable doubt and passed the

judgment of conviction and sentenced the appellant / accused as

above. This judgment is impugned in the instant appeal.

8. I have heard Shri Bawangade, learned counsel for the

appellant/accused, and Shri Dubey, learned Additional Public

Prosecutor for the respondent - State. I have also perused the

record with the assistance of learned both the counsel appearing on

behalf of both the sides.

9. At the outset, it is a case of love affair between the

appellant / accused and the prosecutrix, who, at the relevant time,

were of age 23 years and 16½ years respectively.

10. The prosecutrix was examined as PW-1 (Exh. 12). In

her testimony, she testified that the appellant/accused was working

as a truck driver and she used to talk with him on phone. In

October 2017, there developed love affair between them, and

thereafter, the appellant/accused has proposed her for marriage.

She further deposed that on 16/10/2017, at around 5.00 O'clock in

the morning, she along with her friend - Sangita with an intention

to run away from the house, made a call to the appellant/accused

on his mobile, and he suggested her to come at Jaipur station, and

he will come to receive her.

11. On the next day, she at her own at 9.00 a.m. reached at

Sawargaon bus stand. From there she went to Pandhurna and took

a train to Jaipur at 1.00 p.m. In between, she was in contact with

the appellant/accused. On the next day i.e. on 17/10/2017, she

reached Jaipur railway station and the appellant/accused had come

to receive her.

12. She further testified that the appellant / accused took

her at his elder sister's house at Kawlar and maintained physical

relations with her. On the next day, he took her at maternal aunt's

house. They stayed there for two days and he maintained physical

relations with her on the pretext of marriage. She further testified

that on 22/10/2017, the appellant/accused took her at his grand-

mother's (maternal) house at Kalwa, and he maintained physical

relations. They stayed there up to 06/11/2017, and on the same

day, Narkhed police came and brought them at Makrana police

station, and from there they were brought at Narkhed police station.

13. Smt. Chhaya Sonone - PW-2, the informant, mother of

the prosecutrix, her testimony is only with regard to missing of the

prosecutrix.

14. Dr. Monika Akare - PW-3, is the Medical officer, who

examined the prosecutrix and gave opinion that there was no recent

sexual intercourse, however, considering her medical examination,

it appears that she is habitual to sexual intercourse. Shri Ramesh

Tajne - PW-4 is the Investigating officer.

15. The appellant/accused in his statement, which was

recorded under Section 313 of Cr.P.C. denied any incident of sexual

intercourse with the prosecutrix. He said that the prosecutrix at her

own came to Jaipur. That she wanted to marry him and, therefore,

she came to Jaipur. There was no objection for the marriage to the

family of the appellant/accused, however, the brother of the

prosecutrix was against this marriage.

16. Shri Bawangade, learned counsel appearing on behalf

of the appellant/accused, submits that the prosecution could not

prove, beyond reasonable doubt, that at the relevant time, the

prosecutrix was minor. It is submitted that though the birth

certificate (Exh. 13) was produced on record, and it came to be

exhibited, being a public document, however, mere production of

this document, without any supporting material, the age of the

prosecutrix cannot be said to be have been proved beyond

reasonable doubt so as to convict the appellant/accused for

sentence of ten years, when it is a case of love affair between the

parties. Learned counsel also pointed out some discrepancies in

order to show that how the birth certificate cannot be believed.

Learned counsel also placed reliance on the following judgment in

support of his arguments :

(i) Pramod Dattatraya Jadhav Vs. The State of Maharashtra reported in 2019 ALL MR (Cri) 1742,

(ii) Ravi Anandrao Gurpude Vs. State of Maharashtra reported in 2017 ALL MR (Cri) 1509

17. As against this, learned Additional Public Prosecutor,

strongly supports the judgment and order of conviction of the

learned trial Court. Learned APP submits that the birth certificate,

being the public document issued from the custody of Public Officer

as per law, is admissible in evidence. The accused enticed a minor

girl for elopement on the pretext of marriage and established

physical relations with her. Learned APP urges for dismissal of the

appeal.

18. I have considered the submissions made on behalf of

both the sides.

19. At the outset, the case of love affair between the

appellant/accused and the prosecutrix is not disputed at all. The

only question which needs consideration is with regard to the

incident of sexual intercourse between the parties and the age of the

prosecutrix if sexual intercourse is proved. On the point of sexual

intercourse, apart from the testimony of the prosecutrix, there is no

other substantive material.

20. In the testimony of the prosecutrix, she has stated that

the appellant/accused maintained physical relationship with the

prosecutrix at various places i.e. at the house of elder sister of the

appellant/accused, at the house of his maternal aunt and at the

house of his grand mother. The minimum sentence prescribed in

Section 4 of the POCSO Act is 10 years imprisonment and that

maximum is for life imprisonment.

21. Considering the seriousness of the punishment, in the

opinion of this Court, the sole testimony of the prosecutrix should

be of sterling quality and with all details with regard to the incident.

She states that he maintained physical relations with her wherever

he took her while she was with him in Rajasthan. She does not

narrate the details of the incident as to how could they got privacy,

the presence of other members of the house, how did the other

members of the house permitted them, in which room they slept,

how many rooms were there in the house so that they could get

privacy, at what time they slept, at what time and under what

circumstances he committed rape etc.

22. Apart from this, none of the witnesses have been

examined by the prosecution, in whose houses the

appellant/accused allegedly kept the prosecutrix during the period

they spent at Jaipur. Their testimony would have been the best

evidence before the court. The age of the appellant/accused, at the

relevant time was 22 years. A boy of young age, nourishing his

desire to marry with the prosecutrix. The police came and brought

them at Narkhed police station, and since then he is in custody.

23. No doubt, as per provisions of the IPC and the POCSO

Act, a sexual intercourse with a girl below 18 years is a serious

offence and the consent of the girl is immaterial. However, for

sending the accused behind bar for minimum sentence of ten years

or 20 years (in case girl in below 16 years), there ought to have

been clinching and inspiring evidence before the Court with regard

to rape and with regard to the age of the girl, as these both are only

the decisive factors for conviction.

24. With regard to age of the prosecutrix, as per birth

certificate (Exh. 13), her date of birth is shown as 08/04/2001. The

date of registration is shown as 05/02/2003, however, who gave the

information about the date of birth of the girl is not mentioned.

Nobody is examined from the office of the local body, who issued

the certificate. The birth certificate was obtained during the course

of investigation by the police from the office of Gram Panchayat,

Sawargaon. The connecting link with regard to her date of birth as

08/04/2001 is absent. It is also not brought on record as to what

was the occasion that after two years delay, the birth of the

prosecutrix was reported to the local body.

25. In the case of Pramod Dattatraya Jadhav Vs. The State

of Maharashtra reported in 2019 ALL MR (Cri) 1742, this Court

took a view that mere filing of birth certificate of a person is not of

any assistance to the prosecution unless and until link evidence is

adduced to demonstrate that such person's certificate relates to the

female whose age is sought to be proved by the prosecution.

26. The Division Bench of this Court in the case of Ravi

Anandrao Gurpude Vs. State of Maharashtra reported in 2017 ALL

MR (Cri) 1509, also raised doubt on the value of the birth certificate

produced on record.

27. The appellant/accused in his defence while denying

any incident of sexual intercourse with the prosecutrix has stated

that the prosecutrix had told her age as 18 years. Therefore, on the

isolated ocular testimony of the prosecutrix which is of substandard

quality, it is highly illogical and irrational to sentence the appellant/

accused - a young boy, aged around 22 years, with 10 years R.I.

28. For the reasons aforestated, this Court is of the firm

view that the prosecution has measurably failed to prove its case

beyond reasonable doubt against the appellant/accused. Hence, the

following order :

                         (i)        The criminal appeal is allowed.

                         (ii)       The judgment and order of conviction passed by

Sessions Court, Nagpur in Special Child Cri. Case No.

37/2018 dated 29/09/2020 is quashed and set aside.

(iii) The appellant/accused stands acquitted of all the

charges levelled against him.

(iv) The appellant/accused who is in jail since

09/11/2017 shall be released forthwith, if he is not

required in any other case.

                         (v)        The muddemal shall be disposed of if any, being

                         worthless.         Fine   if   paid   be    refunded        to    the

                         appellant/accused.

29. I appreciate the efforts made by Shri Bawangade,

learned counsel for the appellant and Shri Dubey, learned A.P.P. for

the State, in assisting the Court in this matter.

30. The criminal appeal is disposed of accordingly.

JUDGE D.S.Baldwa