Prashant Maruti Gurav vs The State Of Maharashtra And Anr
2022 Latest Caselaw 10490 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO.880 OF 2022

Prashant Maruti Gurav                    .... Appellant
            Versus
The State of Maharashtra & Anr.          .... Respondent
                             ....
                            WITH
            INTERIM APPLICATION NO.2623 OF 2022
                              IN
               CRIMINAL APPEAL NO.880 OF 2022

                               ......
Mr. Amit Mane, Advocate (appointed) for the Appellant.
Smt. M.R. Tidke, APP, for the Respondent No.1-State.
Mr. Sushan Mhatre, Advocate (appointed) for Respondent No.2.
                                .....

                          CORAM : SARANG V. KOTWAL, J.

                          DATE     : 11th OCTOBER, 2022
ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 29.11.2021 passed by the Extra Joint District Judge &

Additional Sessions Judge, Ratnagiri in Special Case No.21/2021.

There were five accused in all. The appellant was the accused

No.1. At the conclusion of the trial, learned Judge vide judgment

and order dated 29.11.2021 passed in the said case, convicted the

appellant for commission of offences punishable under Section

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376 of the Indian Penal Code and sentenced him to suffer RI for

ten years and to pay fine of Rs.5,000/- and in default to suffer SI

for six months. He was also convicted for the offence punishable

under Section 3 read with Section 4 of the Protection of Children

from Sexual Offences Act, 2012 (POCSO Act) and was sentenced

to suffer RI for ten years and to pay fine of Rs.5,000/- and in

default to suffer SI for six months. He was also convicted for the

offence punishable under Section 7 read with 8 of the POCSO Act

and was sentenced to suffer RI for three years and to pay fine of

Rs.500/- and in default to suffer SI for three months. All those

sentences were directed to run concurrently. The appellant was

granted set off under Section 428 of Cr.P.C. All the accused,

including the appellant, were acquitted from the charges of

commission of offence punishable under Sections 9 and 11 of the

Prohibition of Child Marriage Act, 2006.

2. Heard Shri Amit Mane, learned appointed Advocate

for the appellant, Smt. M.R. Tidke, learned APP for the respondent

No.1-State and Shri Sushan Mhatre, appointed Advocate for the

respondent No.2.

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3. The prosecution case is that the victim in this case was

born on 28.12.2004. She delivered a baby girl on 30.4.2021.

Thus, on the date of delivery she was a minor. Thus, there was

physical intercourse amounting to the alleged offence which

resulted in birth of a child. When the child was delivered, she was

admitted to a hospital. She was a minor and, therefore, the police

were informed. The investigation was carried out and according

to the prosecution, the appellant was the father of her child. The

accused Nos.2 to 5 were respective parents of the victim and the

appellant. Both the families got together and marriage between

the appellant and the victim was performed.

4. The investigation was carried out. The appellant was

arrested on 28.6.2021. The victim and the appellant were sent for

medical examination. Samples were sent for DNA analysis

however, the DNA report is not on record. At the conclusion of the

investigation, the charge-sheet was filed and the case was tried

before the Special Court.

5. During trial, the prosecution examined four witnesses.

PW-1 was the victim, PW-2 was her uncle, PW-3 was the

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investigating officer and PW-4 was the police officer who had

recorded the FIR.

6. The prosecution case depended on the evidence of the

victim herself, who was examined as PW-1. However, she has not

supported the prosecution case at all. She has deposed that she

did not know her date of birth. She knew the appellant. However,

she deposed that she could not state what had happened in

October, 2020. She denied that the appellant had come and told

her that he would marry her. She also denied that though he knew

that she was a minor he had established physical relations with

her making her pregnant. PW-1 then was declared hostile and

was cross-examined by learned APP. She denied all the

suggestions put to her that she was residing with the appellant

and that he was her husband. She was read over portion marked

'A' from her statement. But she denied that statement. That

particular portion was ultimately got proved by the prosecution

through the evidence of PW-4 PSI Mukta Bhosale, who had

recorded that statement.

In the cross-examination conducted on behalf of the

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appellant, she specifically stated that she had not complained

against the appellant.

The portion mark 'A' from the FIR was proved by PW-4

and it was given Exhibit No.67. In that portion, she had described

that she had developed friendly relationship with the appellant.

He had promised marriage with her and then because of the

physical relations she became pregnant and delivered her child.

In April, 2021 both the families got them married in the house of

a priest.

7. PW-2 was the victim's uncle. He has deposed that he

did not know her date of birth. He denied that he was acquainted

with the appellant. He deposed that he did not know anything.

He was declared hostile. The portion from his police statement

was proved through PW-3 API Aabaso Patil and was exhibited at

Exhibit-59 because PW-3 had recorded his statement. In that

particular portion, PW-2 had stated that the victim had developed

love relationship with the appellant. Both the families were

waiting for the victim to cross the age of 18 years. In the

meantime, she became pregnant because of the appellant. Then

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both the families got them married on 1.4.2021. In the last

paragraph of that particular portion, the statement mentions that

the victim and the appellant were happily married. The appellant

himself and his parents were looking after her very well and the

victim had no trouble at all.

8. The prosecution produced the medical certificates on

record. Those medical certificates were admitted. Even the birth

certificate of the victim was produced on record at Exhibit-51. It

was also admitted on behalf of the defence. That birth certificate

showed the date of birth of the victim as 28.12.2004.

9. The medical papers show that the name of the

appellant was mentioned as the offender and she herself was

described with the appellant's name as her middle name and the

appellant's surname as her surname. Thus, the prosecution tried

to show that she was married with the appellant. The history

mentions that the victim had got married with the same person.

The medical papers show that she was pregnant and had

subsequently delivered the child.

10.         PW-3    API    Aabaso     Patil   had   conducted        the


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investigation. He had carried out spot panchnama. He had

referred the victim and the appellant for medical examination. He

had sent the samples for DNA testing. However, no DNA report is

produced on record.

11. PW-4 PSI Mukta Bhosale had recorded the FIR

statement of the victim. The portion mark 'A' from the FIR was

given Exhibit-67.

12. The defence of the appellant was of total denial.

13. Learned Judge considered the evidence and convicted

and sentenced the appellant, as mentioned earlier. There was no

discussion regarding the effect of PW-1 and PW-2 not supporting

the prosecution during their depositions. Learned Judge relied on

the portion from their FIR and police statement which were

brought on record by learned APP in the cross-examination.

14. Learned counsel for the appellant submitted that there

is no evidence to connect the appellant with the child. There is no

DNA report on record connecting him to the child. The victim

herself i.e. PW-1 has not supported the prosecution case and she

has not deposed that the appellant was responsible for her

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pregnancy, or that he had committed the offence for which he was

charged.

15. He submitted that all the accused, including the

present appellant, were acquitted from the charges of commission

of offence punishable under the Prohibition of Child Marriage Act.

Therefore, the prosecution has failed to prove one of the major

charges against all the accused. There is no evidence against the

appellant showing that he had committed any sexual assault on

the victim.

16. He submitted that though the medical papers are on

record, they are silent on the point as to who had given this

medical history to the doctor. He submitted that the medical

papers at the most can be used as a corroborative piece of

evidence but the depositions itself, which was a substantive piece

of evidence, did not support the prosecution case. Thus, the

medical papers could not be used against the appellant. He

submitted that, though the birth certificate of the victim is on

record, that does not connect the appellant with the offence.

17. Learned APP submitted that the birth certificate is

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admitted by the defence and, therefore, it is proved beyond doubt

that the victim was around 16 years of age at the time of offence

and even at the time of delivery of her child she was a minor. She

submitted that the medical papers which are admitted on record

show that the appellant had married the victim and he was

mentioned as the offender. According to her these are two

important circumstances against the appellant. She also submitted

that the portions from the police statements of PWs-1 & 2 are

brought on record and there is no reason to disbelieve the police

officers who had recorded their statements. Learned counsel for

the respondent No.2 submitted that her interest should be

protected and adverse observations may not be made against her

for not supporting the prosecution case.

18. I have considered these submissions. In this case, there

is no DNA report on record. Therefore, there is no medical

evidence connecting the appellant with the child who was

delivered by the victim. As far as the victim's own version is

concerned, she was examined as PW-1 and she has categorically

stated that the appellant has not committed the offence which is

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alleged against him. She has in fact stated that it was not true

that the appellant had established physical relations with her and

that because of that she became pregnant. This is her substantive

evidence. She has not supported the prosecution case. Though, in

the cross-examination the portion from her FIR is brought on

record, her substantive evidence cannot be ignored. This has to

be seen in the light of the fact that the accused was acquitted from

the charges of commission of offences under the Prohibition of

Child Marriage Act. Therefore, to that effect even that portion

from her FIR is disbelieved by the learned Judge and, therefore, it

was not proper to rely on some part of that portion to convict the

appellant.

19. The evidence of the victim in this case is the most

important piece of evidence and the victim not supporting the

prosecution is certainly an important factor. Therefore, it cannot

be said that the prosecution has proved its case beyond reasonable

doubt.

20. Same is the case with the evidence of PW-2. He was

uncle of the victim and he has not deposed against the appellant

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at all. Though some portion from his statement is brought on

record at Exhibit-59, the last paragraph of that portion mentions

that the appellant and the victim were living happily and the

victim was looked after by the appellant and his parents.

Therefore, in the police statement also only to some extent he has

supported the prosecution case and it would not be proper to rely

on rest of his police statement to convict the appellant in the facts

of this particular case. In any case his evidence is not as

important as the evidence of PW-1.

21. As far as the medical papers are concerned, as rightly

submitted by learned counsel for the appellant, there is nothing to

show as to who had given this particular history to the doctor.

The Medical Officer is not examined and, therefore, this

information has remained vague. The source of information has

remained vague. In any case it would corroborate the main

evidence only if the main evidence was against the appellant. But

in this case even the substantive evidence in the form of evidence

of PW-1 is against the prosecution. It would not be possible to

base the conviction on some notings made in the medical papers.

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Though the birth certificate of the victim was produced on record

that by itself will not connect the appellant with this particular

crime. Learned Judge has not discussed all these aspects and,

therefore, conviction and sentence recorded against the appellant

cannot be sustained.

22. Hence, the following order :

:: O R D E R ::

                                 i.       The appeal is allowed.


                                 ii.      The judgment and order dated 29.11.2021 passed by the

Extra Joint District Judge & Additional Sessions Judge,

Ratnagiri in Special Case No.21/2021, is set aside.

iii. The appellant is acquitted from all the charges. He be

released forthwith, if not required, in any other case.

iv. Criminal Appeal is disposed of accordingly. With disposal of

the appeal, nothing survives in the Interim Application

No.2623/2022 and it is also disposed of.

(SARANG V. KOTWAL, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE Deshmane (PS) DESHMANE Date:

2022.10.12 18:37:36 +0530

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