Mithun @ Dabya Raju More vs The State Of Maharashtra And Anr
2022 Latest Caselaw 8748 Bom

                                               1 of 14              26-apeal-426-22 (Judgment)


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 426 OF 2022

                     Mithun @ Dabya Raju More                           ..Appellant
                          Versus
                     The State of Maharashtra & Anr.                    ..Respondents

                                                  WITH
                                   INTERIM APPLICATION NO. 1334 OF 2022
                                                    IN
                                     CRIMINAL APPEAL NO. 426 OF 2022

                                                  __________

                     Ms. Tripty Kapadia (Appointed Advocate) for Appellant.
                     Smt. J. S. Lohokare, APP for State/Respondent No.1.
                     Mr. Nitesh J. Mohite, for Respondent No.2.
                                                 __________

                                             CORAM : SARANG V. KOTWAL, J.
                                             DATE : 5th SEPTEMBER 2022

                     JUDGMENT :

1. The Appellant has challenged the Judgment and order

dated 22/12/2021 passed by learned Additional Sessions Judge,

Pune, in Special Case (POCSO) No.165 of 2017. By the impugned

Judgment and order the Appellant was convicted and sentenced as

follows:

Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.09.08 11:31:55 +0530 Gokhale 2 of 14 26-apeal-426-22 (Judgment)

i) The Appellant was convicted for commission of

offence punishable U/s.363 of IPC. He was

sentenced to suffer R.I. for 5 years and to pay a

fine of Rs.2000/- and in default of payment of

fine to suffer R.I. for 3 months.

ii) He was convicted for commission of offence

punishable U/s.376(2)(i) of IPC and he was

sentenced to suffer R.I. for 10 years and to pay a

fine of Rs.5000/- and in default of payment of

fine to suffer R.I. for 6 months.

iii)Though, he was also convicted for commission of

offence punishable U/s.4 r/w. Section 3 of the

Protection of Children from Sexual Offences Act

(for short 'POCSO'), no separate sentence was

imposed on him.

iv) The Appellant, however, was acquitted from the

Charges of commission of offences punishable

U/s.366-A and 506 of IPC, as well as, U/s.7 r/w. 8 3 of 14 26-apeal-426-22 (Judgment)

of POCSO.

All the substantive sentences were directed to run

concurrently. He was granted set off U/s.428 of

Cr.p.c.

2. The prosecution case is that, the victim was about 14

years old in December 2016. Her date of birth was 24/01/2002.

She was knowing the Appellant. The Appellant took her forcibly on

his motorcycle on 05/12/2016. She was taken to various places

viz. Undri, Jejuri etc. He established physical relations with her

during that period. On 11/12/2016, she was left at Kharadi. She

called her father telephonically. Her parents took her home and

then all of them went to the police station. Her supplementary

statement was recorded. When the victim had gone missing, her

mother had lodged C.R.No.570 of 2016 at Wanwadi police station

U/s.363 of IPC against an unknown person. After the victim's

statement was recorded, Section 376 of I.P.C. and Section 3 r/w.

Section 4 of POCSO were added. The investigation was carried

out. The Appellant was arrested on 22/01/2017. His motorcycle 4 of 14 26-apeal-426-22 (Judgment)

was seized on 29/01/2017. The spot panchanama of various

places where the victim was taken was conducted. The clothes of

the victim and the Appellant were seized and sent for Chemical

Analysis. At the conclusion of the investigation, charge-sheet was

filed and the case was committed before the Special Court.

3. During trial, the prosecution examined the victim, her

mother, pancha for spot panchanama, Medical Officer and the

Investigating Officer. After recording prosecution evidence,

statement of the Appellant was recorded U/s.313 of the Cr.p.c. His

case was of total denial. Learned Judge, believed the evidence of

the victim, as well as, other evidence produced by the prosecution

and convicted the Appellant, as mentioned earlier.

4. Heard Ms. Tripty Kapadia, learned Appointed Advocate

for the Appellant, Smt. J. S. Lohokare, learned APP for the

State/Respondent No.1 and Mr. Nitesh Mohite, learned counsel for

the Respondent No.2.

5. The prosecution case based heavily on the deposition of

the victim who is examined as PW-2. She has deposed that, in the 5 of 14 26-apeal-426-22 (Judgment)

year 2016 she was residing with her family at Hadapsar. She was

studying in 9th standard. She knew the Appellant; he was residing

near their house. One neighbour had introduced the Appellant to

the victim. Thereafter both of them used to talk regularly on

phone. Her father came to know about it. He took away the mobile

phone from her. After a few days the victim met the Appellant at

his relative's place at Handewadi. When her mother came to know

about it, the victim was sent to the house of her Aunt at Ram

Tekdi. Thereafter, she did not meet the Appellant for about 2

months.

6. On 04/12/2016, the Appellant came in the area of Ram

Tekdi. They met there and the Appellant suggested that they

should elope. The victim refused. On 05/12/2016, she had gone to

flour mill. The appellant followed her. It is her case that the

Appellant took her forcibly on his motorcycle to Undri. On the next

day he took her to a farm house at Jejuri. There he had forcible

sexual intercourse with her. On the next day, he took her to his

relative's house at Handewadi. They stayed together for 2-3 days.

Then he took her to village Rashin, but nobody allowed them to 6 of 14 26-apeal-426-22 (Judgment)

stay there. Therefore, the Appellant took a room on rent in another

village. They started residing there. At that time the Appellant had

sexual intercourse with her. On 12/12/2016, the Appellant and the

victim went to the Appellant's Aunt's house at Nagar, but his Aunt

told him to drop the victim to her house. The Appellant then

brought the victim to Kharadi at 7.30p.m. on 12/12/2016 and left

her there. She then called her father from a mobile phone of a

stranger. She narrated the incident to her parents. They went to

the police chowky. Her statement was recorded by the police. She

was referred to Sassoon Hospital, Pune for medical examination.

Her clothes were seized.

In the cross-examination, she deposed that her parents

had made their displeasure known to the Appellant about his

constant talking on phone with the victim. She admitted that,

when the Appellant took her forcibly on his motorcycle, she did

not raise any shouts. She clarified that, when her statement was

recorded by the police on 12/12/2016, she was frightened. She

deposed that the appellant did not commit sexual intercourse on

05/12/2016 and on 10/12/2016 also he did not commit any act 7 of 14 26-apeal-426-22 (Judgment)

with her. She had not told anybody that the Appellant had forcibly

taken her away, however, she voluntarily deposed that the

Appellant had threatened her with dire consequences and,

therefore, she could not tell that fact to anybody. Her further

statement was recorded on 01/04/2017. In that statement, she

had mentioned that, on 06/12/2016 and 12/12/2016 the

Appellant had committed forcible sexual intercourse with her;

though, in her statement dated 12/12/2016 she had stated that,

on 05/12/2016 and on 10/12/2016 the Appellant had not

established any physical relations with her. She denied the

suggestion that, getting fed up with the quarrels in her family she

had left the house of her Aunt and that the Appellant had not

taken her away. She denied the suggestion that, at the instance of

her parents, she was giving false evidence.

7. PW-1 was mother of the victim. She has deposed that, in

2016 the victim was in 9th standard, but she was not attending the

school regularly. Therefore, PW-1 had sent the victim to PW-1's

sister-in-law's house at Ram Tekdi. On 05/12/2016, her sister in

law informed her telephonically that the victim was not found.

8 of 14 26-apeal-426-22 (Judgment)

They took search of the victim and then lodged a report at

Wanwadi police station about her missing. The report was

registered U/s.363 of IPC vide C.R.No.570 of 2016 against an

unknown person. The report and the F.I.R. proforma are produced

on record at Exhibit 18 and 19. On 12/12/2016, the victim made a

phone call to PW-1's husband. They went to Kharadi and brought

the victim back to their house. The victim was frightened. When

she became comfortable, they made inquiries with her. She

narrated the incident. She told her story to her parents, then she

was taken to the police station. The police recorded her statement.

She was sent for medical examination. The PW-1 produced birth

certificate of the victim which is produced on record at Exhibit 20.

The birth certificate mentions the date of birth of the victim as

24/01/2022. Thus, at the time of incident i.e. from 05/12/2016 to

12/12/2016 the victim was about 14 years and 10 months old.

In the cross-examination of PW-2 she admitted that her

husband did not like the victim talking with the Appellant and

because of that there was quarrel between the Appellant and PW-

2's husband. She denied the suggestion that, there was monetary 9 of 14 26-apeal-426-22 (Judgment)

dispute between the Appellant and her husband. She admitted that

the victim had not told anybody at Undri, Saswad and Jejuri that

she was taken away by the Appellant. Nobody had informed them

that the victim was taken on the motorcycle. PW-2 has deposed

that, after 12/12/2016 the victim was not called to the police

station. But her statement was recorded U/s.164 of Cr.p.c.

8. PW-3 Rajashree Dahale was a pancha for spot

panchanama. She has deposed that, on 01/04/2017 spot

panchanama was carried out at the instance of victim at Undri and

Jejuri. There is nothing much useful for the prosecution, in her

evidence.

9. PW-4 Varsharani Ghate, P.S.I. had conducted the

investigation. She has deposed about registration of the F.I.R.,

arrest of accused, seizure of motorcycle, collection of birth

certificate, seizure of clothes, blood samples etc., sending them to

Chemical Analyser and receiving C.A. reports. She admitted that,

she had not recorded the statements of the persons who were

residing in the area where the victim was taken by the Appellant.

10 of 14 26-apeal-426-22 (Judgment)

The C.A. reports are produced on record at Exhibit 31 to 34,

however, none of the C.A. reports is incriminating. They do not

take the prosecution case any further.

10. PW-5 Dr. Arun Ambadkar had examined the victim on

13/12/2016. The history was given by the victim that, on

11/12/2016 the Appellant had committed sexual intercourse with

her. The medical examination showed that, there was no injury on

the body, however, there was tear to the hymen. As per the opinion

of the medical team, from the history and clinical examination

there was vaginal penetration with no fresh injury and no other

physical injuries. The medical papers were produced on record at

Exhibit 39.

This, in short, was the evidence led by the prosecution.

11. The statement of the Appellant was recorded U/s.313 of

Cr.p.c. However, except denying the allegations, he had not taken

any defence. After considering this evidence and after hearing the

parties, learned Judge convicted and sentenced the Appellant, as

mentioned earlier.

11 of 14 26-apeal-426-22 (Judgment)

12. Learned counsel for the Appellant submitted that, it was

a consensual relationship, as admitted by the victim herself. Her

parents did not like their relationship and therefore, the appellant

was falsely implicated. There was contradiction between the two

statements given by the victim as is mentioned in her cross-

examination. She submitted that, considering the consensual

relationship, if the offence is said to be proved, leniency be shown

in sentencing the Appellant.

13. Learned counsel for the Respondent No.2, as well as,

learned APP submitted that, the prosecution has sufficiently

proved its case. There is no reason to disbelieve the victim. Her

evidence is corroborated by the medical evidence. Though, C.A.

reports do not indicate anything, her medical examination

supports the prosecution case. They submitted that, since the

minimum sentence is imposed, there is no scope for reducing it.

14. I have considered these submissions. The victim i.e. PW-

2 has given her deposition clearly. Her evidence appears to be

honest. It does appear that the victim had accompanied the 12 of 14 26-apeal-426-22 (Judgment)

Appellant to various places and she had not raised any shouts, but

that will not help the defence case because the prosecution has

proved that the victim was a minor; she was below 18 years of age.

At the time of incident, she was 14 years and 10 months old. The

birth certificate is produced on record at Exhibit 20. It was

extracted from the Pune Municipal Corporation. The birth was

registered on 25/01/2022. Thus, it is a contemporaneous public

record and there is no reason to doubt it.

15. The prosecution has established that, date of birth of the

victim was 24/01/2002. The incident had occurred between

5/12/2016 to 12/12/2016. Therefore, even if it is assumed that

there was consent, the act would fall squarely within the meaning

of Section 375 of IPC, and in particular, within a category ' Sixthly'.

The act of Appellant falls within the meaning of Section 376(2)(i)

of IPC. Though, sub clause (i) of Section 376(2) of I.P.C. is

repealed today, at the time of offence it was in existence and it was

punishable with Rigorous imprisonment which could not be less

than 10 years, but which could extend to imprisonment for life. In

this case, the victim was below 16 years of age. Therefore, offence 13 of 14 26-apeal-426-22 (Judgment)

punishable U/s.376(2)(i) of IPC, as it existed then, is clearly

established.

16. So far as, quality of evidence is concerned, the evidence

of PW-2 is supported by her medical examination. The opinion of

the medical team is reproduced herein above which supports her

case. Apart from that, PW-1's evidence also shows that the victim

had gone missing from 05/12/2016 to 12/12/2016. During that

period, according to PW-2, she was with the Appellant. She was

taken to various places and she was subjected to sexual

intercourse. Though, no other independent witness is examined,

the evidence of PW-2 is sufficient to prove the incident alleged by

the prosecution. There is hardly any contradiction between her

statements. In any case, she had explained that, when the

statement was recorded on 12/12/2016, she was in a frightened

state of mind because of threats given by the Appellant. The

conduct of the Appellant also shows that, after all this he had

simply left the victim at Kharadi. Therefore, his intentions were

also not honest. In any case, the consent of the victim in this case

is immaterial. Even otherwise, PW-2's specific case is that, she had 14 of 14 26-apeal-426-22 (Judgment)

refused to elope with the Appellant and yet he forced her to go

with him on his motorcycle. He had also threatened her not to

disclose to anybody that she was taken away forcibly, therefore,

she could not tell this fact to anybody. The victim had given honest

answers to all the questions and, therefore, there is no reason to

doubt her evidence. Thus, prosecution has established its case

beyond reasonable doubt. The minimum possible sentence was

imposed on the Appellant. There is no scope to reduce the

sentence further. Therefore, the impugned Judgment and order of

the trial Court need not be interfered with.

17. The Appeal, therefore, is dismissed.

18. With disposal of the Appeal, nothing survives in Interim

Application No.1334 of 2022, it is accordingly disposed of.

(SARANG V. KOTWAL, J.)