Mahadev Rambhau Khodave vs The State Of Maharashtra And Anr
2021 Latest Caselaw 12300 Bom

                                                              25 apeal 1497-19 (J).doc


                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION

                                  APPEAL NO.1497 of 2019

             Mahadev Rambhau Khodave                      ..Appellant

                        v/s.

             The State of Maharashtra & Anr.              ..Respondent/s

             Mr. Ghansham Jadhav for the Appellant .
             Mr. S.V. Gavand, APP for the Respondent-State.

                                CORAM : ANUJA PRABHUDESSAI, J.

DATED : 1st SEPTEMBER, 2021.

ORAL JUDGMENT.

1. This is an Appeal under Section 374 of Cr.P.C. directed

against the judgment dated 21.09.2019 in POCSO Special Case

No.489 of 2016. By the impugned judgment the learned Special

Judge, POCSO Court, Pune has held the Appellant guilty of the

Offences under Section 363, 366, 376(2)(i) of Indian Penal Code

(IPC) and Section 4 of the Protection of Children from Sexual

Offences Act (POCSO), 2012 and sentenced him as under:

(i) rigorous imprisonment for three years with fine

of Rs.1000/- i.d. simple imprisonment for three

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months for offence under Section 363 IPC.

(ii) rigorous imprisonment for three years and fine of

Rs.1000/- I.d. simple imprisonment for three months

for offence under Section 366 of IPC.

(iii) rigorous imprisonment for 10 years and fine of

Rs.5000/- I.d. simple imprisonment for four months

for offence punishable under Section 376(2)(i) of IPC.

. No separate punishment has bene awarded for

offence under Section 4 of POCSO Act, 2012. The

substantive sentence has been ordered to run

concurrently.

2. The case of the prosecution in brief is that in the year 2015

the prosecutrix (PW4) was residing with her parents at Lohagaon,

Pune. She was studying in 9th standard in BJS College. On

08.04.2015 at about 3.00.pm. while the victim was in the house

of her paternal aunt, the appellant came and told that her mother

had sent him to pick her up. She accompanied the Appellant on

his motorcycle. It is alleged that instead of taking her home, the

Appellant forcibly took the prosecutrix to Dadar, Mumbai and

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thereafter to Pandharpur. The Appellant hired a room at

Pandharpur. The prosecutrix has alleged that the Appellant had

forcible sexual intercourse with her at Pandharpur. Later, after

about 2-3 days they returned to Pune via Jejuri. The Appellant

dropped her near Indrayani Hotel, at Wagholi, Pune. She called

her brother at the spot and went to the police station along with

her brother and father. Her father lodged the FIR against the

Appellant for kidnapping and committing rape/ committing sexual

assault on the prosecutrix. Pursuant to the said FIR Crime No.

114 of 2015 came to be registered against the Appellant. PW6

Poonam Patil, PSI attached to Lonikand Police Station recorded the

statement of the victim. Further investigation was carried out by

PW5 Shivshan Lalasaheb Khose. Upon completion of

investigation, chargesheet came to be filed against the Appellant.

3. Charge was framed and explained to which the Appellant

pleaded not guilty and claimed to be tried. Prosecution in

support of its case examined 8 witnesses. The statement of the

Appellant was recorded under Section 313 of Cr.P.C. The defence

of the Appellant was of total denial. The learned Judge after

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considering oral as well as documentary evidence, convicted and

sentenced the Appellant as stated above. Being aggrieved, the

Appellant has preferred the present Appeal.

4. Mr. Jadhav, learned Counsel for the Appellant submits that

the prosecution has failed to prove that the proecutrixwas a child

within the meaning of Section 2(d) of POCSO Act, 2012. He

submits that the School Leaving Certificate at Exhibit 30 was

issued subsequent to the date of the incident. He submits that

the prosecution has not examined the person who had disclosed

the date of birth of the prosecutrix and has not placed on record

any material to prove that the date of birth of the prosecutrix was

04.02.2001. He therefore contends that the school leaving

certificate has no evidentiary value. He has relied upon the

judgment of the Apex Court in Alanelu & Anr. vs. State (2011) 2

SCC 385 and the judgment of the Bombay High Court in Santosh

@ Abasaheb Thorat vs. State of Maharashtra 2018 ALL MR (Cri.)

3625.

5. Learned Counsel for the Appellant further submits that the

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evidence of PW3, brother of the prosecutrix indicates that he was

27 years of age as on the date of the incident and that he has

admitted in his cross examination that the prosecutrix was five

years younger to him. He therefore contends that the evidence of

PW3 reveals that the prosecutrix was about 22 years of age on the

date of the incident. Learned Counsel for the Appellant further

submits that the photographs at Exhibit 30 falsify the charge of

abduction and rape. He further submits that the prosecutrix had

accompanied the Appellant from Pune to Dadar, Mumbai on a

motorcycle and thereafter to Pandharpur by bus, and that she had

stayed with him at Pandharpur for 2-3 days. She had neither

raised alarm nor made attempt to escape, and this according to

him belies the contention of the prosecutrix that the Appellant had

enticed her to accompany him and that he had forcible sexual

intercourse with her against her wish and without her consent.

Learned Counsel for the Appellant submits that the prosecution

has failed to establish the guilt of the Appellant beyond

reasonable doubt and as such the learned Judge was not justified

in holding the Appellant guilty and convicting and sentencing him

as stated above.

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6. Per contra, learned APP states that the evidence of the

prosecutrix and her brother (PW3) vis-a-vis the school leaving

certificate (Exh. 30) and the evidence of PW7 Ankush Balkrishna

More, a junior clerk of the said school clearly indicates that she

was a student of 9th standard and that as on the date of the

incident she was 14 years of age. Learned APP further submits

that the evidence of PW1 also proves that the Appellant had taken

the prosecutrix on a false pretext that she was called by her

mother. Ld.APP has urged that the evidence of the prosecutrix

proves that the Appellant had forcible sexual intercourse with her.

It is contended that the prosecutrix was a minor and the consent,

if any, is immaterial. Moreover, the Appellant had not taken such

defence before the trial Court.

7. I have perused the records and considered the submissions

advanced by the learned Counsel for the Appellant and the learned

APP for the State, and Ms. Dhuru, learned Counsel for the

prosecutrix.

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8. The Appellant herein has been held guilty of offence under

Section 363, 366, 376(2)(i) of Indian Penal Code (IPC) and

Section 4 of the Protection of Children from Sexual Offences Act

(POCSO), 2012 . It may be mentioned here that the POCSO Act

has been enacted to protect children from offences of sexual

assault, sexual harassment etc, and contains stringent penal

provisions as to safe guard the interest and the well being of the

children. Hence to attract the provision of this Act, the onus was

on the prosecution to prove that the prosecutrix was a child within

the meaning of Section 2(d) of the POCSO Act. The prosecution

in order to prove that the prosecutrix was 14 years of age, has

relied upon the School Leaving Certificate (Exhibit 30) issued by

Sant Tukaram Vidyalaya, Lohgaon.

9. In Alamelu & Anr. (supra) the Hon'ble Supreme Court has

observed that the date of birth mentioned in the Transfer

Certificate would have no evidentiary value. In the absence of the

material on the basis of which the age was recorded or unless the

person who made an entry or who gave the date of birth is

examined. In the instant case, the school leaving certificate

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records the date of birth as 04.02.2001. The Certificate (Exh.30)

also reveals that the prosecutrix had taken admission in the said

school on 15.06.2016 i.e. after the date of the alleged incidence.

The Certificate was procured on 27.07.2016 i.e. more than a year

after the incident. The evidence of PW7 Ankush More, the Junior

Clerk of Sant Tukaram Vidyalaya , indicates that as per the School

records the prosecutrix had earlier attended the Zilla Parishad

Prathamik School, Digrajwadi. He has further admitted that

whenever a student is admitted in the first standard, birth

certificate is taken from her parents. He has further admitted that

Sant Tukaram Vidyalaya had not taken birth Certificate when the

prosecutrix was admitted in Sant Tukaram Vidyalaya School at

Lohogaon.

10. The evidence of PW7 thus reveals that the birth date of the

prosecutrix was not recorded in the School Leaving Certificate

(Exh.30) on the basis of the Birth Certificate. The witness has

not explained as to on what basis the birth date of the prosecutrix

was recorded as 04.02.2001. The prosecution has not examined

the Headmaster of the school or the person who had issued the

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School Leaving Certificate at Exhibit 30 or the person who had

recorded the date of birth in the said Certificate. The prosecution

has also not examined the person who had disclosed the date of

birth of the prosecutrix to the School Authorities. In the absence

of such evidence, the School Leaving Certificate (Exh.30) has no

evidentiary value.

11. It is also pertinent to note that PW3 as well as PW4 have not

deposed that the date of birth of the prosecutrix is 4.2.2001. On

the contrary, the evidence of PW3, brother of the prosecutrix

indicates that he was 27 years of age as on the date of the

incident. He has deposed that the prosecutrix is five years

younger to him. His statement therefore indicates that the victim

was about 22 years of age on the date of the incident. The

evidence of PW1, uncle of the prosecutrix also indicates that the

victim got married about two to three months after the incident,

which fact also belies the contention that the proecutrix was 14

years of age as on the date of the incident. Hence, in my

considered view, the prosecution has failed to establish beyond

reasonable doubt that the prosecutrix was a 'child' within the

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meaning of Section 2(d) of the POCSO Act. Hence conviction of

the Appellant under Section 363 IPC and under Section 4 of

POCSO Act cannot be sustained.

12. The next question is whether the prosecution has established

that the Appellant had compelled the prosecutrix by deceitful

means to accompany him and whether he had sexual intercourse

without her consent.

13. PW1 Madhukar Kayande, paternal uncle of the prosecutrix

has deposed that on 8.4.2015 the prosecutrix had come to his

house. He states that some time later the Appellant came on a

motorcycle and took the prosecutrix along with him under the

pretext that she was called by her mother. He has admitted in his

cross examination that he was not present in the house at the time

of the incident. It is thus evident that the statement made by him

in his examination-in chief is not based on his personal knowledge

and has no evidentiary value.

14. PW4 also claims that the Appellant had come to the house

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of her paternal aunt at about 3.00 p.m. and had persuaded her to

accompany him on his motorcycle under the pretext that she was

called by her mother. She claims that instead of taking her home,

the Appellant took her to Dadar, Mumbai. She claims that they

reached Dadar the next morning. They went to Dadar Beach and

later they went to Pandharpur by bus. They hired a room near

Janabai temple and stayed in the said room. She claims that

whiile they were staying at Pandharpur the Appellant had forcible

sexual intercourse with her during her menstrual cycle.

15. The evidence of the prosecutrix (PW4) clearly indicates that

she had traveled with the Appellant on his motorcycle from Pune

to Dadar, Mumbai. She has gone to Dadar Beach along with the

Appellant and thereafter traveled with him by bus from Mumbai to

Pandharpur. She has stayed with him in a rented room for a

couple of days. During the entire stay with the Appellant, the

prosecutrix had not raised an alarm and she did not inform

anyone that she was being forced or compelled to accompany him.

On the contrary, her evidence indicates that even after the alleged

incident of rape she had voluntarily accompanied the Appellant to

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Jejuri. The conduct of the prosecutrix clearly indicates that she

had accompanied the Appellant on her own free will and stayed

with him. This is further fortified by the photographs at Exhbit 26

to 29. The prosecutrix has admitted that these photographs were

taken at Dadar and Pandharur. These photographs not only falsify

the contention that the prosecutrix was under pressure and or

frightened but demonstrates that the prosecutrix was very much

comfortable and happy in the company of the Appellant.

16. It is also to be noted that though the first information

report was lodged on 10.04.2015, the prosecutrix was sent for

medical examination only on 27.04.2015. There is no explanation

for the delay in medical examination. Be that as it may, PW8 Dr.

Shailendra Pawar has deposed that the prosecutrix had given the

history of sexual intercourse by the Appellant under the promise of

marrying her. He has deposed that there were no external bodily

surface injuries, the hymen had old healed tears, there was no

perihymenal inflammation. He has further stated in the cross

examination that the prosecutrix had not given the history of the

Appellant having sexual intercourse with her during her

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menstruation period, on the contrary she had stated that her last

menstruation period was on 12.02.2015. The history given to the

doctor by the prosecutrix is not in consonnance with her evidence

before the Court. The medical evidence does not corroborate the

case of forcible sexual intercourse.

17. The evidence on record therefore suggests that the physical

relationship between the Appellant and the prosecutrix was

consensual. The prosecution has thus failed to establish the

charge of kidnapping/abduction and rape. Consequently, the

conviction and sentence for offence under Section 366, 376(2)(1)

cannot be sustained.

18. Under the circumstances, the Appeal is allowed. The order

of conviction and sentence for the offences punishable under

Section 363, 366, 376(2)(i) of Indian Penal Code (IPC) and

Section 4 of the Protection of Children from Sexual Offences Act

(POCSO), 2012 is quashed and set aside. The Appellant is

acquitted of the offenes under Section 363, 366, 376(2)(i) of

Indian Penal Code (IPC) and Section 4 of the Protection of

Children from Sexual Offences Act (POCSO), 2012. Fine amount,

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if deposited, be refunded to the Appellant. The Appellant be set

at liberty forthwith, if not required in any other case.

Digitally signed by PRASANNA P PRASANNA P SALGAONKAR (ANUJA PRABHUDESSAI, J.) SALGAONKAR Date:

2021.09.08 15:30:43 +0530

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