Jageshwar Wasudeo Kawle vs State Of Mah., Thr. P.S.O. Ps ...
2021 Latest Caselaw 879 Bom

  917apeal 20.2020.odt                              1



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

                       CRIMINAL APPEAL NO. 20 OF 2020

  Jageshwar Wasudeo Kawle,
  aged about 27 years, Occ. Driver,
  R/o Gosikhurd, Tahsil and District Chandrapur.
                                                              ...APPELLANT

                    Versus

  State of Maharashtra,
  through Police Station Officer,
  Police Station Girad, Tah. Samudrapur,
  District Wardha.
                                                          ...RESPONDENT

  Shri R.M. Patwardhan, Advocate for the appellant.
  Shri H.D. Dubey, A.P.P. for the respondent.
                    .....

                               CORAM : PUSHPA V. GANEDIWALA, J.

DATED : JANUARY 14, 2021.

ORAL JUDGMENT :

Heard.

2. This appeal is directed against the judgment and

order dated 12/11/2019 passed by the Additional Sessions

Judge, Hinganghat in Special (Ch.) Case No. 17/2017, by

which the appellant/accused is convicted for the offence

punishable under Sections 376(2)(n) of the Indian Penal Code,

1860 (for short "IPC"), and Section 5 punishable under Section

6 of the Protection of Children from Sexual Offences Act, 2012

(for short "POCSO Act"), and sentenced to suffer rigorous

imprisonment for 10 years and to pay fine of Rs.5,000/-

(rupees five thousand), in default, to suffer rigorous

imprisonment for 3 months.

3. The case of the prosecution, in nutshell, is as

under :

i. At the relevant time, the age of the prosecutrix was

17 years and 9 months. The birth certificate (Exh.62) shows

her date of birth as 01/08/1997. For the purpose of studies,

she was residing in one rented room at Hinganghat. The

appellant/accused was also residing in the same premises on

rent. As he assisted her during her illness, friendship was

developed between the duo. After completing her studies, she

returned to her parents house at Umari, Tah. Samudrapur,

District - Wardha. After couple of days, she again returned to

Hinganghat for the purpose of attaining tuition classes of 12 th

standard. The appellant/accused came to receive her at Bus

Stand, Hinganghat. Both went to his parents house at Village

Gosikhurd, District - Chandrapur, and stayed there for couple

of days. From there, he brought her at the house of his sister

Rekha (accused No.2-acquitted) at Village Sinhala, District -

Chandrapur, where they stayed for about two months. It is

alleged that during that period, the appellant/accused

committed sexual intercourse with her on many occasions.

ii. Initially, on 08/05/2015, the father of the

prosecutrix lodged a missing report with Girad Police Station

which caused registration of crime under Section 363 of the

IPC. When the prosecutrix and the appellant/accused were

brought at Hinganghat, they were sent for medical

examination. Initially, as the prosecutrix was not ready for her

medical examination, she was produced before the Magistrate,

who in turn has directed to produce her before the Child

Welfare Committee, Wardha, where she was persuaded for

medical examination. During her medical examination, her

Urine pregnancy test (UPT) was found positive. Accordingly,

Section 376 of the IPC came to be added against the appellant/

accused.

iii. On completion of investigation, chargesheet came

to be filed before the Court of Magistrate, who in turn,

committed the case to the Special POCSO Court, Hinganghat.

iv. The Special Court, Hinganghat framed charge

against the appellant/accused for the offence punishable under

Sections 363 and 376(2)(n) of the IPC, and Section 4 of the

POCSO Act. The sister of the accused Rekha also arraigned as

an accused No.2, being an abettor. The charge was read over

and explained to both the accused, to which they pleaded not

guilty and claimed to be tried. Their plea was recorded.

v. To establish the guilt against the appellant/accused,

the prosecution examined in all 14 witnesses, and also brought

on record some relevant documents. The trial Court recorded

statements of the accused persons under Section 313 of the

Code of Criminal Procedure, 1973.

vi. After hearing both the sides, the trial Court

convicted the appellant/accused for the offence punishable

under Section 376(2)(n) of the IPC and Section 5 punishable

under Section 6 of the POCSO Act, and acquitted him of the

offence punishable under Section 363 of the IPC. That the trial

Court acquitted accused No.2 Rekha (sister of the

appellant/accused) from all the offences. This judgment is

impugned in the instant appeal.

4. I have heard Shri Patwardhan, learned counsel for

the appellant/accused, and Shri Dubey, learned A.P.P. for the

respondent. I also perused the record and proceedings with the

assistance of learned both the counsel.

5. At the outset, the testimony of the prosecutrix

(PW3) is only material on the point of rape. The prosecution

also examined father of the prosecutrix, neighbours, panch,

police and medical officers. The neighbour witnesses, who are

neighbours of sister of the appellant/accused, have turned

hostile and did not support the prosecution case.

6. With regard to pregnancy, the prosecutrix did not

say anything about the same. There is absolutely nothing on

record as to what happened to her pregnancy. With regard to

age of the prosecutrix, as per birth certificate (Exh.62) and the

testimony of her father, her date of birth is stated to be

01/08/1997. So, at the relevant time, she was just three

months short of attaining the age of majority.

7. Now, the question to be considered by this Court is

whether the testimony of the prosecutrix inspire confidence of

this Court to fix the criminal liability on the appellant/accused

so as to sentence him with minimum ten years imprisonment

for ?

8. A perusal of the testimony of the prosecutrix would

reflect that she has vividly described about her love

relationship with the appellant/accused. With regard to

incident, the relevant part of her testimony is reproduced

below :

"2. XXXX Thereafter accused no.1 took me to the house of his sister Rekha Manthanwar at village Sinhala. We stayed there for two months. During that period accused committed sexual intercourse with me by inducing me on so many occasions."

9. Learned defence counsel brought to the notice of

this Court the material omission, in her cross-examination,

relevant portion of which is reproduced below :

"7.XXXX At the time of recording of my statement I stated to the police that accused committed sexual intercourse with me by inducing me on so many occasions. I cannot assign any reason as to why it is not mentioned in my statements dated 26.06.2015."

This omission is so much material in nature that it

has strength to decide the fate of the case. She has not stated

before the police the incidents of sexual relations between

them at his sister's place. The offence of rape came to be added

on the basis of positive pregnancy test.

10. Evidently, initially, she was not ready for her

medical examination. On lots of persuasion, her medical

examination was done. However, there is no conclusive

evidence before this Court to conclude that she conceived from

the appellant/accused. The prosecution also did not find it

necessary to conduct DNA examination. The record is silent

with regard to DNA test and what happened to her pregnancy.

Except the above statement of the prosecutrix, with regard to

sexual intercourse at the house of the sister of the

appellant/accused, there is absolutely nothing supporting the

prosecution case of rape. Only on the basis of allegation with

regard to commitment of sexual intercourse on many

occasions, it would be highly irrational to convict the

appellant/accused with 10 years imprisonment.

11. In addition to this, she does not depose with regard

to dates, times, who were present in the house at the relevant

time, how the other members of the house permitted the

unmarried boy and girl to sleep together, how many rooms

were there in the house, how could the prosecutrix and the

appellant/accused got privacy, under what circumstances the

prosecutrix was forced to establish physical relationship with

the appellant/accused etc. No doubt, the testimony of the

prosecutrix is sufficient for conviction of the appellant/accused,

however, the same ought to inspire confidence of this Court. It

ought to be of sterling quality.

12. Given the aforesaid facts and circumstances of the

case, this Court is of the opinion that the prosecution could not

establish, beyond reasonable doubt, the offence of rape against

the appellant/accused. Hence, this Court is inclined to allow

the appeal and proceed to pass the following order :

ORDER.

  i.                The Criminal Appeal is allowed.

  ii.               The judgment and order dated 12/11/2019 passed

by the Additional Sessions Judge, Hinganghat in Special (Ch.)

Case No. 17/2017, is quashed and set aside. The appellant

stands acquitted of the offence punishable under Sections

376(2)(n) of the IPC, and Section 5 punishable under Section 6

of the POCSO Act. He be released forthwith, if not required in

any other case.

JUDGE Sumit