Bombay High Court
Rahul Gautam Lahase vs State Of Mah. Thr. Pso Ps Anjangaon Surji ... on 28 August, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:10144
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 84 OF 2022
APPELLANT : Rahul Gautam Lahase,
Aged about 26 years, Occu. Labour,
R/o Bhokari, Post Karhale,
Raver, Dist. Jalgaon.
VERSUS
RESPONDENTS : 1] State of Maharashtra,
through Police Station Officer,
Police Station, Anjangaon-Surji,
Dist. Amravati.
2] XYZ (Victim),
through Complainant/informant,
in Crime No. 441/2017 registered with
Police Station, Anjangaon Surji,
Amravati, Dist. Amravati.
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Mr. Mir Nagman Ali, Advocate with Ms. Gulfashan Ansari, Advocate
for the appellant.
Mr. H. D. Futane, A. P. P. for respondent no.1/State.
Mrs. Smita P. Deshpande, Advocate appointed for respondent no.2
---------------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATED : AUGUST 28, 2024.
ORAL JUDGMENT
1. In this appeal, challenge is to the judgment and order dated
22.11.2021, passed by learned Additional Sessions Judge, Court No.2,
Achalpur, whereby the learned Judge held the accused guilty for the
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offences punishable under Section 376 of the Indian Penal Code ;
under Section 8 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as "the POCSO Act" for short) ; and
under Section 67 of the Information Technology Act, 2000 (hereinafter
referred to as "the IT Act" for short). The appellant has been sentenced
to suffer rigorous imprisonment for 10 (ten) years and to pay fine of
Rs.10,000/- (Rupees ten thousand only) and in default to suffer further
RI for 3 (three) months for the offence punishable under Section 376 of
the IPC. The appellant has been further sentenced to suffer rigorous
imprisonment for 2 (two) years and to pay fine of Rs.2,000/- (Rupees
two thousand only) and in default to suffer further RI for 1 (one)
month, on each count, for the offence punishable under Section 8 of
the POCSO Act and under section 67 of the IT Act. No separate
sentence has been awarded for the offence punishable under Section 4
of the POCSO Act.
2. BACKGROUND FACTS
The victim (PW10), who is the informant, had lodged a
report with Police Station, Anjangaon Surji, Dist. Amravati on
19.10.2017. On the report lodged by the informant/victim, the wheels
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of the investigation were put into motion. The prosecution case, which
can be discerned from the report and the charge-sheet, is that the
incident of penetrative sexual assault took place in the month of March-
2017. The appellant/accused is resident of Raver, Dist. Jalgaon. The
informant/victim, on the date of the incident, was studying in 12 th
standard (Science) at Jaisingh Junior College, Pathrot. The accused had
sent a friend request to the victim on Facebook. She accepted the friend
request sent by the accused. They got acquainted with each other
through Facebook. The accused sent his mobile No. 9033288552 to
her. The victim, on being insisted by the accused, shared her mobile
No. 8698268569 and 9975175667 with the accused. They would talk
with each other on phone. On the request of the accused, she disclosed
him that she was studying at Jaisingh Junior College at Pathrot. One
day, the accused came to her college at Pathrot to meet her. He made a
phone call to her and asked her to come out of the college to meet him.
She came out of the college. She recognized the accused as she had seen
his photo on Facebook. She was frightened and on that day she did not
talk with the accused and left for her house at Kapustalni.
3. It is stated that thereafter on 22.03.2017, the accused
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contacted the victim on phone and informed her that he has come to
Anjangaon Surji at Vrundavan Hotel. He called the informant to the
said hotel to meet him. The victim went to Vrundavan Hotel and met
him. The accused took her into a room of the hotel. The accused took
out a new T-shirt from his bag and asked the victim to wear the same.
It is stated that while the victim was wearing T-shirt, the accused took
her photographs without her knowledge. The accused, thereafter,
threatened her that he would make those photographs viral, if she did
not allow him to have physical relation with her. The victim fearing
defamation kept quiet. It is stated that the accused committed
penetrative sexual intercourse with her against her consent. Thereafter,
she returned to her house at Kapustalni. She made an inquiry about the
accused from her friends. She came to know that the accused did not
possess good character. She, therefore, discontinued her contact with
the accused on Facebook.
4. It is further the case of the prosecution that the accused
uploaded the obscene photographs of the victim on his Facebook
account and tagged the same to her sister, Kanchan's Facebook account.
The accused sent friend requests to the relatives of the victim. The
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accused also sent obscene photographs of the victim on the mobile
phones of her relatives and inquired with them whether they knew the
victim. The harassment of the accused increased manifold and
therefore, she informed her parents about it. They, therefore, decided to
lodge the report. The report was lodged with Anjangaon Surji Police
Station on 17.10.2017. It was stated in the report that on account of fear
of defamation, she did not lodge report with the police. Similarly, her
parents had arranged her marriage with Ashish Chabukswar. The
accused contacted Ashish and sent the photographs of the victim to him
and apprised him that the victim was not possessing good character.
On the basis of the report (Exh.58), a crime bearing No. 441/2017 was
registered against the accused for the above offences.
5. The initial investigation was carried out by PW12 API
Jamil Shaikh. He drew the spot panchanama. He seized the clothes of
the victim as well as the accused. PW13 API Girsawale recorded the
statement of the victim. The further investigation was carried out by
PW14 PI Sudhir Patil. He collected the documents with regard to the
birth date of the victim. He forwarded the samples to the Regional
Forensic Science Laboratory (RFSL), Nagpur. He recorded the
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statements of the witnesses. After completion of the investigation, he
filed charge-sheet against the accused.
6. Learned Additional Sessions Judge framed the charge
(Exh.2) against the accused. The accused pleaded not guilty. The
defence of the accused is of false implication. The prosecution
examined 14 witnesses to bring home the guilt against the accused.
Learned Judge, on consideration of the evidence, held the accused
guilty and sentenced him as above. The accused is before this Court
against the said judgment and order.
7. I have heard Mr. Mir Nagman Ali, learned advocate for the
appellant, Mr. H. D. Futane, learned Additional Public Prosecutor for
respondent no.1/State and Mrs. Smita P. Deshpande, learned advocate
appointed for respondent no.2/victim. Perused the record and
proceedings.
8. Mr. Ali, learned advocate for the appellant submitted that
there was inordinate delay in lodging the report. The reasons for delay
in lodging the report have not been stated in the report. The delay has
not been properly explained. The facts stated in the report are nothing
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but an exaggeration of the incident. The incident and report have been
embellished. The alleged incident, as per the prosecution, occurred in
the month of March-2017, whereas the report was lodged in October-
2017. Learned advocate submitted that admittedly, as per the case of
the prosecution, the alleged penetrative sexual assault took place in the
month of March-2017. It is not the case of the prosecution that after
March-2017, the accused either committed penetrative sexual assault or
tried to follow the victim in her college for committing sexual act with
her. Learned advocate submitted that the evidence of the victim-girl,
even if considered as it is, would create a doubt about the incident of
penetrative sexual assault at the hands of the accused, as alleged by her.
The delay in lodging report is suggestive of the fact that an imaginary
story was concocted to save the marriage of the victim with Ashish
(PW2). Learned advocate submitted that the medical evidence, even if
considered as it is, would not be sufficient to prove that the accused had
committed penetrative sexual assault on the victim. The report of the
Chemical Analyser with regard to the analysis of the samples in no
manner connects the accused with the commission of the alleged crime.
Learned advocate submitted that the basic ingredients of the offence
under Section 67 of the IT Act have not been made out on the basis of
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the evidence on record. Learned advocate took me through the record
and pointed out that the Investigating Officer, in terms of the
requisition letter at Exh.94, had forwarded the photographs of the
victim and the mobile phones used in the crime to the RFSL, Nagpur.
It is submitted that the report of analysis of those samples has not been
placed on record by the prosecution. Learned advocate submitted that
till date, the prosecution is silent about the report of the RFSL or the
analysis of those samples by the RFSL, Nagpur. Learned advocate
submitted that without having the report of RFSL on record to prove
that any obscene material was published or transmitted in electronic
form, the learned Judge convicted and sentenced the appellant under
Section 67 of the IT Act. Learned advocate took me through the record
and pointed out that even the alleged obscene photographs have not
been exhibited. Learned advocate submitted that the learned Judge has
convicted and sentenced the accused only by relying upon the oral
evidence of the victim (PW10), her father (PW1) and her fiance Ashish
(PW2) with regard to the publication and transmission of the
photographs, without the proof of the photographs. In the submission
of the learned advocate, in the absence of CA report to record a concrete
opinion on this issue, the learned Judge was not right in holding the
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accused guilty under Section 67 of the IT Act on the basis of oral
evidence. Learned advocate submitted that the victim has provided her
wrong birth date at the time of her evidence. The documentary
evidence adduced by the prosecution to prove her birth date is not
reliable. In the submission of the learned advocate, the prosecution has
miserably failed to prove that the victim, on the date of the incident,
was below 18 years of age.
9. Learned Additional Public Prosecutor submitted that the
delay in lodging report (Exh.58) has been satisfactorily explained. It is
the submission of the learned APP that in such a crime, the victim as
well as her family members are bound to be reluctant in bringing such
an incident in the public domain, considering the stigmatic
consequence attached to the same. Learned APP submitted that the
evidence of the victim girl on the point of penetrative sexual assault is
trustworthy and credible. There is no reason to discard and disbelieve
her evidence. The first hand account of the incident narrated by the
victim is sufficient to accept her testimony. It is submitted that the
victim girl otherwise had no reason to falsely implicate the accused in
such a serious crime and cause irreparable damage to her future.
Learned APP submitted that the evidence of the father (PW1) and the
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evidence of her fiance (PW2), is sufficient to corroborate her evidence
on material aspects. The evidence of independent witnesses namely, her
father and her fiance, is sufficient to prove the publication and
transmission of obscene photographs of the victim on Facebook and
WhatsApp. In the submission of learned APP, the evidence of the
victim (PW10), her father (PW1) and her fiance (PW2) is sufficient to
prove the offence punishable under Section 67 of the IT Act. Learned
APP pointed out that the Manager (PW6) of Vrundavan Hotel, where a
room was booked by the accused, which is the place of the incident, has
deposed about the relevant facts. The evidence of PW6 is sufficient to
prove the presence of the accused and the victim in the hotel on the
given day. Learned APP submitted that the certified copy of birth
certificate of the victim at Exh.82, obtained by the Investigating Officer
during the course of investigation, is a public document. It is pointed
out that an entry of her birth date from the School and College register
has been proved by examining PW8 and PW9. Learned APP submitted
that the learned Judge has minutely scrutinized the evidence and has
recorded the cogent and concrete reasons in support of his findings. In
short, it is submitted that the well reasoned judgment and order passed
by learned Additional Sessions Judge does not warrant interference.
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10. The proof of the age of the victim is a very crucial issue in a
case filed under the POCSO Act. The prosecution has to prove the
birth date of the victim beyond reasonable doubt and establish that the
victim, on the date of the crime, was 18 years of age. The victim has
testified before the Court that on the date of the incident, she was
studying in 12th standard. She was attending the college. The victim
has stated her birth date in her evidence. Perusal of the evidence of the
victim (PW10) and her father (PW1) would show that the birth
certificate at Exh.82 was not shown to them. The victim and her father
in their evidence have stated the birth date. It is seen on perusal of the
evidence of victim (PW10) that she has stated her date of birth as
24.02.2001. As per the record, the birth date of the victim is
26.02.2001. It is seen that in place of digit '6', she has stated the digit
'4'. The father (PW1) has stated correct birth date of the victim as
26.02.2001. Exhibit-82 is the certified copy of the birth certificate of
the victim, issued by the Secretary of Gram Panchayat, Parsapur,
Panchayat Samiti, Achalpur. This certificate is a public document. It is
not the case of the accused that this entry of the date of birth of the
victim with Gram Panchayat was made for the purpose of supporting
the case of the prosecution. Perusal of Exh.82 would show that the date
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of registration of birth date is 13.03.2001. The registration number
from the record of the Gram Panchayat is '11'. The alleged offence
occurred in the year 2017. This public record has presumptive value. It
is relevant in terms of Section 35 of the Indian Evidence Act, 1872.
The accused has not been able to demolish this evidence.
11. The prosecution has examined PW8 and PW9. PW8 is a
Teacher at Jaisingh Vidyalaya, Pathrot. He was summoned to produce
the admission register of the school and junior college to prove the birth
date of the victim recorded in the admission register. The certified copy
of the relevant entry of the admissions register is at Exh.38. The entry
is at page No. 61 of the Register. The original register was produced
before the Court. As per the register, the birth date of the victim is
26.02.2001. PW8 has further stated that earlier the victim had
attended Nirmala High School, Kapustalni. PW9 is the Assistant
Headmaster of Nirmala High School, Kapustalni. He was summoned
to produce the admission register of the school. He has stated that the
victim was admitted in the school on 25.05.2010. He has stated that as
per the admissions register, the date of birth of the victim is 26.02.2001.
The relevant entry in the register is on page no. 25 at Entry No. 11407.
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The original entry from the register is marked as Exh.41. The certified
copy of the extract of the entry is at Exh.43. Perusal of the evidence of
PW9 would show that the victim was admitted in 5 th standard of
Nirmala High School. The entry of birth date in the school register was
made on the basis of her transfer certificate of 4th standard. In my view,
perusal of the evidence of PW8 and PW9 coupled with the certified
copy of the birth certificate at Exh.82, leaves no manner of doubt in my
mind that the victim was born on 26.02.2001. As per the case of the
prosecution, the incident occurred in the month of March, 2017. On
the basis of the proved birth date of the victim, it is crystal clear that the
victim on the date of the incident was 16 years of age. In my view,
therefore, on this count, the submissions advanced by the learned
advocate for the appellant/accused cannot be accepted. In the teeth of
the cogent and concrete evidence, the submissions are accordingly
rejected.
12. The next important aspect that needs to be considered is
whether the evidence adduced by the prosecution is sufficient to prove
the charge against the accused. I have minutely scrutinized the
evidence adduced by the prosecution. On minute scrutiny and
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appreciation of the evidence adduced by the prosecution, I am satisfied
that the evidence is not sufficient to prove the charge against the
accused on any count. I will now first deal with the evidence of the
informant/victim. The victim is PW10. Perusal of the evidence of the
victim would show that the accused on 27.02.2017, for the first time,
came to her college to meet her. She has stated that the accused made a
phone call to her and therefore, she came out of the college. It has
come on record in her evidence that she had seen his photo on
Facebook and therefore, she identified him from distance. She has
stated that on that day, she did not meet him and went home without
meeting him. She has stated that the accused was annoyed and told her
that he would come to her college again and then she should meet him.
The report of the incident was lodged on 19.10.2017. As far as the
incident of penetrative sexual assault is concerned, the victim has stated
that after a few days of this first incident, she received a phone call from
the accused. She has stated that the accused told her to come to
Vrundavan Hotel, Anjangaon Surji to meet him. It is to be noted that
prior to this, the victim had no acquaintance with the accused. They
were meeting for the first time. She has stated that she went to
Vrundavan Hotel to meet the accused. They met in the hotel. The
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accused told the victim that he had booked a room in the said hotel. He
further told her that he had come to tell something urgent to her. She
accompanied the accused to the room of the hotel. After entering the
hotel room, the accused locked the door from inside. The accused took
out a dress from the bag and gave it to her. As per his request, she put
on the dress. She has further stated that initially she was reluctant to
wear the dress; however, due to insistence by the accused, she wore the
dress. She has further stated that the accused then insisted for physical
relationship with him, but she refused. She has further stated that due
to the sweet talk of the accused, she allowed for physical relationship.
She has stated that when she was changing the dress, the accused had
taken her obscene photos in his mobile phone. She has further stated
that the accused threatened to circulate the obscene photos to her
friends and relatives, if she did not consent for physical relationship
with him. She has stated that under this threat, he had physical
relationship with her. She has stated that the accused frequently
touched her at objectionable places. She has stated that after this, they
came out of the room and the accused told her to immediately go,
otherwise, somebody would see her. Thereafter, she went to her house
at Kapustalni. Perusal of the evidence of the victim (PW10) would
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show that the alleged incident of sexual assault occurred after a few days
of the incident dated 27.02.2017. Perusal of the evidence of the victim
and other witnesses in totality would show that this incident had
occurred in the month of March, 2017.
13. The next part of the deposition of the victim is very
important. She has stated that from the spot, she went to her village.
She has stated that the accused uploaded her photographs, which he
had taken in his mobile phone when she was changing the dress, on
Facebook. She has stated that he tagged some of her friends and
relatives to the said photographs. She has stated that her friends told
her about uploading her photos. She has stated that thereafter she
found that the accused was not a good person and therefore, she broke
her relationship with the accused. She has stated that the accused
would frequently make phone calls to her; however, she did not reply to
the calls. She has stated that therefore, the accused sent the
photographs to her maternal cousin Kanchan Chandekar on WhatsApp.
She has stated that her marriage was settled with her fiance Ashish, who
has been examined as PW2. She has stated that the accused obtained
the phone number of Ashish and sent the photographs to Ashish on
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WhatsApp. She has stated that the accused contacted Ashish and told
him that he had physical relation with the victim. She has stated that
due to insult and defamation, she did not file the report immediately,
but it was filed on 17.10.2017. The victim (PW10) has been thoroughly
cross-examined. She has stated vital facts in her cross-examination.
14. It is seen on perusal of the evidence of the victim (PW10)
that immediately after the incident in March-2017, the accused
uploaded her photographs on Facebook as well as on WhatsApp
accounts of her friends and relatives. It is to be noted that the victim is
silent about the date of the incident in the room of the hotel. Similarly,
she has not stated the month of the said incident. The victim was not
acquainted with the accused prior to meeting in the hotel. It was their
first meeting. She has stated that on the request of the accused, she
accompanied the accused to the room of the hotel. In my opinion, this
conduct of the victim is not consistent with the conduct of a person of
ordinary prudence placed in a similar situation. The victim has stated
that the accused had booked a room for them. A girl meeting a young
boy for the first time would not go to a hotel room. Such a conduct on
the part of a boy would obviously send the alarming signals to the girl.
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This incident narrated by the victim has to be tested on the touchstone
of the probabilities. By keeping the probabilities in mind, the
credibility and truthfulness of the version of the victim (PW10) is to be
appreciated. In my view, the evidence of the victim about the
occurrence of the incident is totally unbelievable. It is not the case of
the victim that they had sexual intercourse on more than one occasion.
It is to be noted that a girl meeting an unknown person for the first time
would not accompany him to a secluded place. Even if, on some
promise, the girl accompanies an unknown person to a room and if she
is put in any trouble, then she is bound to raise hue and cry. It is not
the case of the victim that the room of the hotel was far away from the
crowded area of hotel. In my view, the occurrence of the incident in the
hotel room, therefore, appears to be unbelievable. The subsequent
conduct of the victim is not consistent. She has stated that when the
trouble meted out to her by the accused became unbearable, she
informed about the same to her parents. In my view, the evidence of
the father (PW1) shows that when the photographs were uploaded by
the accused on Facebook of his relatives, he came to know that the
accused was causing trouble to his daughter. Perusal of the evidence of
the victim would show that it is silent about the date and month of
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circulation of the photographs by the accused.
15. The scientific evidence of circulation, publication and
transmission of the photographs is not available. It is pertinent to note
at this stage that the mobiles of the accused and the victim and other
electronic evidence were collected. It was forwarded to RFSL, Nagpur
for analysis. Exh.94 is the requisition forwarded by the Investigating
Officer to the Director of RFSL, Nagpur for analysis of the above stated
articles. The prosecution has not placed on record the report of analysis
of these samples/articles. Similarly, the prosecution is conspicuously
silent about receipt of the report of analysis of the samples even till date.
It is, therefore, evident that there is no evidence to prove the date and
month of circulation of the photographs. Similarly, for want of
scientific evidence, it is not possible to come to a conclusion that such
photos were in fact transmitted, circulated or published. Some
photographs have been placed on record. Those photographs have not
been proved. The oral evidence of the victim (PW10), her father
(PW1) and her fiance Ashish (PW2) is not sufficient to prove either the
photographs or their publication or transmission. In my opinion, the
scientific evidence, namely, the CA report of analysis of samples would
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have been the best evidence to prove this aspect. It is, therefore,
apparent that there is no evidence to corroborate the version of the
victim, her father and Ashish on this point.
16. The evidence of the victim (PW10), in my view, is
unbelievable on account of certain facts noted by me hereinabove. If
the photographs of the victim had been published or transmitted
immediately after the incident of March-2017 on Facebook and
WhatsApp accounts of her relatives and friends, then the victim was
supposed to report this incident to the police immediately. It is not the
specific evidence of the victim that on a particular date or in a particular
month she informed about this incident to her parents. In order to find
out an answer to this important aspect, it would be necessary to
consider the evidence of her father. Her father was testified as PW1.
PW1 has stated that on the date of the incident, he had received a
phone call from his wife, who told him to see the photographs of their
daughter on mobile. He has stated that the wife told him that these
were obscene photographs of their daughter. He has stated that he went
home. He has further stated that he saw the photographs on the mobile
phone of his niece Kanchan and fiance of the victim, Ashish. He has
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stated that on the same day, he had inquired with his daughter. He has
stated that his daughter narrated to him the incident occurred at her
college. He has stated in his further evidence about the incident
narrated to him by his daughter occurred in the hotel room. Perusal of
his evidence would show that on the date of the incident itself, he came
to know about the same. The incident, as can be seen from the record,
occurred somewhere in March-2017. The father was confronted with 2-
3 nude photographs of his daughter. He has further stated that Ashish
(PW2) had proposed his daughter for marriage after completion of her
education. He has stated that the accused gave a threat to Ashish and
disclosed his physical relation with the victim. He has stated that the
accused had shown those photographs to Ashish (PW2). Perusal of the
evidence of the father (PW1) would show that he is silent as to why he
did not immediately lodge the report with the police. He has no where
stated in his examination-in-chief that a few days prior to lodging the
report, this incident was narrated to him by the victim. He has stated
that the nude photographs of the victim had been forwarded to Ashish
(PW2), the fiance of his daughter. In my view, this conduct of the
father of the victim creates a doubt. If PW1 was informed about the
penetrative sexual assault on the victim by the accused, then his natural
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reaction would have been totally different. He would have immediately
taken the victim to the police station. It is to be noted that the father
and the relatives of the victim had seen the photographs, which were
published or transmitted on Facebook as well as on WhatsApp. It is,
therefore, apparent that they had otherwise nothing to hide. Even they
could not hide anything because everything was put in the public
domain. This fact would show that the father (PW1) came to know
about the friendship of the victim with the accused on Facebook. It has
come on record in the evidence that since the accused had published
her photographs after settlement of her marriage with Ashish, the report
was lodged.
17. In this context, it would be necessary to see the evidence of
PW2 Ashish Chabukswar. He has stated that the incident took place in
the year 2017. He has stated that at the relevant time the victim was
studying at Jaisingh Junior College, Pathrot. He has stated that he knew
accused Rahul Lahase. He has stated that the accused was the friend of
the victim through Facebook. He has stated that his marriage with the
victim was settled and it was to be performed after two years. The date
and month of the settlement of the marriage has not been stated by
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him. He has stated that the accused transmitted the photographs of the
victim on his Facebook account as well as on his WhatsApp account.
He has stated that those were obscene photographs of the victim. He
has further stated that the accused told him that the victim is of bad
character and as such, advised not to perform marriage with her. He has
further stated that the accused told him that he had physical relations
with the victim. He has also stated that the accused transmitted similar
photographs of the victim to his friends. Perusal of his examination-in-
chief would show that he is silent about the date and month of
settlement of his marriage. He is silent about the publication and
transmission of the photographs on his Facebook and WhatsApp
accounts. He is also silent about any inquiry having been made by him
with the victim to verify the correctness of the information conveyed to
him by the accused. In his cross-examination, he has stated that he
knew that the accused was the friend of his fiance (victim). He has
stated that despite that, he agreed to marry with the victim. He has
further stated that the parents of the victim were not in a hurry to settle
her marriage. He has stated that he did not know since how long the
victim and the accused were friends through Facebook.
24 APEAL84.22 (J).odt
18. In my view, the evidence of these three witnesses, if read
together, would show that it is not sufficient to clear the blurred case of
the prosecution. It is rather seen that their evidence, instead of
clarifying certain things, has further blurred the case of the prosecution.
The conduct of the parents is unnatural. No date, time or month of the
incident has been categorically stated. Similarly, no date and month of
circulation of the photographs has been categorically stated. The
scientific evidence is not on record. No explanation has been placed on
record for non-production of such vital evidence. It is to be noted that
in such a matter, the Court has to carefully scrutinize the evidence. The
evidence on record should not leave any doubt in the mind of the Court
as to the occurrence of the incident and the overall case of the
prosecution against the accused. In this case, the evidence of the victim
(PW10), her father (PW1) and her fiance Ashish (PW2) is not
sufficient to clear the clouds of suspicion cast over their truthfulness
and veracity.
19. In this context, it would be necessary to see the evidence of
an independent witness PW6. He claims to be the Manager of Hotel
Vrundavan at Anjangaon Surji. It is the case of the prosecution that in a
25 APEAL84.22 (J).odt
room of Hotel Vrundavan, the accused committed sexual assault on the
victim. The evidence of this witnesses, at its face value, does not
deserve consideration. He has stated that for 15 years, he has been
serving as a Manager in the said hotel. He has stated that two years
back the accused had visited Vrundavan Hotel for lunch. He has stated
that one girl had come with him. He has stated that both of them were
sitting in the corner of the garden. He has stated that the accused had
given order for lunch. They were waiting for service of the order. He
has stated that the accused had brought some clothes as a gift. In my
view, this is a total exaggeration. The victim (PW10) in her evidence
has stated that the accused had opened the bag carrying clothes inside
the room. PW6 has further stated that the accused inquired with him
about the availability of a room for changing the clothes and thereafter
he had given one room to them. He has stated that they went inside the
room and after some time came out of the room. In my view, certain
facts admitted by PW6 in his cross-examination have demolished his
version. In his evidence, he has not narrated the description of the girl.
The victim was not seen by him either at the stage of investigation or at
the time of his evidence. Similarly, the photographs of the girl were not
shown to him. His evidence that he had given one room to the accused
26 APEAL84.22 (J).odt
without paying any money, is highly unbelievable. He has stated in his
cross-examination that before allotting room, the record in respect of
the name, address and identity of the person is obtained. He has stated
that it is a hotel with a beer bar. There are many employees in the hotel.
There are attendants to the rooms. He has categorically stated that the
record in respect of the bill of each guest is maintained in the hotel. He
has stated that he had not given to the police the bills in respect of that
particular date. His further cross-examination would show that there
are material improvements in his evidence. He has further stated that as
long as the girl and boy were in the hotel, the girl did not make any
complaint. He has stated that their appearance was normal. It is to be
noted that the hotel people are totally professional. They know how to
run their hotel. Without payment of charges for booking the room, the
Manager would not allow a stranger young boy and girl to enter the
room in this situation. In my view, therefore, this evidence is totally
unbelievable. It is seen on perusal of the record that the Investigating
Officer has tried to fill up the lacunae in the case of the prosecution
with the assistance of such evidence. The evidence of this witness
cannot be believed.
27 APEAL84.22 (J).odt
20. The prosecution has relied upon the evidence of the
Medical Officer as a corroborative piece of evidence. The Medical
Officer is PW7 Dr. Prashant Kalbande. He has stated that on
21.10.2017, he had examined the victim girl. He has stated that on her
local examination, he found a small tear over the forchette area. It was
an old healed tear. He has not stated the age of the same. His report is
silent about any injury to hymen. He has admitted in his cross-
examination that the forchette is the external part of vagina and it is
visible. He has admitted that the tear noticed by him to forchette is
possible due to itching or due to unhygienic condition. He has
categorically stated that except this, there was no other injury to her
private part. He has nowhere stated that the hymen of the victim was
torn. He has further stated that there were no other injuries on her
body. In the facts and circumstances, in my view, on the basis of such
evidence of the Medical Officer (PW7), it is not possible to conclude
that the victim was subjected to sexual intercourse. PW7 has opined
that the possibility of sexual intercourse cannot be ruled out. He did not
give any candid opinion.
21. The evidence of the victim (PW10) ambiguous on material
28 APEAL84.22 (J).odt
aspects. The victim, according to the case of the prosecution, was
subjected to sexual intercourse. She was required to clarify all these
facts with broad details. In this case, even broad details are lacking. The
accused is a resident of Raver village. It is in Jalgaon district. The
victim is a resident of Anjangaon Surji. It is in Amravati district. The
victim and the accused became friends on Facebook. The evidence of
the father (PW1) is also conspicuously silent about all the necessary
details. In my view, on the basis of this evidence, there is a scope to
suspect the implication of the accused in the crime. Merely because of
the publication of the photographs, it is not possible to accept the
version of the victim as to penetrative sexual assault.
22. It is to be noted that there is inordinate delay in lodging
the report. The delay has to be properly explained. In the report, the
victim has stated that fearing defamation, the report was not lodged. If
the incident, as stated, had occurred in March-2017, then in that event
the victim and her parents were expected to report the same to the
police. It has come on record that the parents came to know in the
month of March-2017 itself about the publication of obscene
photographs of the victim on Facebook and WhatsApp accounts of the
29 APEAL84.22 (J).odt
friends and relatives. It is, therefore, apparent that the victim and her
family was sufficiently defamed. As per the victim, the photographs
were transmitted to Facebook and WhatsApp accounts of her fiance
(PW2). The victim and her father are silent as to why, despite
publication of the photographs in March-2017, the report was lodged in
October, 2017. It is evident that the victim, after noticing the attitude
of the accused, discontinued her relationship with him. It is, therefore,
possible that the accused might have decided to trouble them and
therefore, on repetitive publication of the photographs of the victim in
social media, the parents would have lodged the report.
23. It is further pertinent to note that the learned Additional
Sessions Judge has convicted and sentenced the accused under Section
67 of the IT Act. As stated above, the prosecution has not adduced
cogent and concrete evidence in the form of CA report to prove either
transmission or publication of such photographs. The learned Judge
appears to have believed the oral testimony of the victim, her father and
her fiance to convict the accused under Section 67 of the IT Act. In my
view, the learned Judge was not right in relying on the oral evidence of
the witnesses. The photographs, which are produced on record, have
30 APEAL84.22 (J).odt
not been proved. The photographs have not been exhibited. The
learned Judge has not taken this material aspect into consideration.
24. In the facts and circumstances, I conclude that the evidence
adduced by the prosecution is not convincing, cogent and reliable. The
credibility and trustworthiness of the evidence has been shaken. The
evidence is not sufficient to prove the case beyond reasonable doubt.
Therefore, the accused, in my view, is entitled to the benefit of doubt.
The submissions advanced by the learned advocate for the appellant
deserve acceptance.
25. Accordingly, the Criminal Appeal is allowed.
(i) The judgment and order of conviction and sentence passed
against the appellant by learned Additional Sessions Judge, Court No.2,
Achalpur, dated 22.11.2021 in Special Case No. 11/2018 is quashed and
set aside.
(ii) Appellant - Rahul Gautam Lahase is acquitted of the
offences punishable under Section 376 of the Indian Penal Code, under
Sections 4 and 8 of the Protection of Children from Sexual Offences
Act, 2012 and under Section 67 of the Information Technology Act,
31 APEAL84.22 (J).odt
2000.
(iii) Appellant - Rahul Gautam Lahase is in jail. He be released
forthwith if not required in any other crime/case.
(iv) Mrs. Smita P. Deshpande, learned advocate, who
represented respondent no.2/victim in this appeal, is entitled to receive
her fees. The High Court Legal Services Sub Committee, Nagpur shall
pay the fees to the learned appointed advocate as per the Rules.
(v) The appeal stands disposed of in the aforesaid terms.
( G. A. SANAP, J. )
Diwale
Signed by: DIWALE
Designation: PS To Honourable Judge
Date: 09/09/2024 19:41:51
