Bombay High Court
Chetan Kailas Vaidya vs State Of Mah. Thr. Pso Ps Ghatanji ... on 3 October, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:11541
224. Cr.apeal.196.2022 .jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 196 OF 2022
Chetan Kailas Vaidya,
Aged about 25 yrs,
R/o. Shivar, Bhandari, Tahsil
Arni, District Yavatmal .... APPELLANT
// V E R S U S //
1. State of Maharashtra,
Through Police Station Officer,
Police Station Ghatanji
Tahsil Arni, District Yavatmal.
2. XYZ,
The Victim in Crime No. 06 of 2019
Registered at Police Station Ghatanji,
Tahsil Arni, District Yavatmal ... RESPONDENTS
----------------------------------------------------------------------------------------------
Ms Sapana Jadhav, Advocate for the appellant
Mr Harshal Futane, APP for the respondent No.1/State
Ms Priyanka Arbat (Awthale), Advocate (appointed) for respondent No.2
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 03/10/2024
ORAL JUDGMENT :
1 Heard.
2 ADMIT. Taken up for final disposal by the consent
of learned Advocates for the parties.
224. Cr.apeal.196.2022 .jud..odt
3 In this appeal, challenge is to the judgment and
order, dated 25.02.2022, passed by the learned Additional
Sessions Judge, [Special Court (POCSO Act)] Yavatmal (for
short 'the learned Judge'), whereby the learned Judge, convicted
the appellant/ accused for the offence punishable under Section
376(2)(n) of the Indian Penal Code (for short 'the IPC') and
Sections 4 and 6 of the Protection of Children From Sexual
Offences Act, 2012 (for short 'the POCSO Act') and sentenced
him to suffer rigorous imprisonment for ten (10) years and to
pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) and in
default to suffer simple imprisonment for six months for the
offence punishable under Section 376(2)(n) of the IPC. No
separate sentence has been awarded for the offence punishable
under Sections 4 and 6 of the POCSO Act.
4 Background facts:
The report against the appellant was lodged by the
informant (PW-2) on 02.01.2019 with Gatanji Police Station,
224. Cr.apeal.196.2022 .jud..odt
District Yavatmal. The case of the prosecution, which can be
gathered from the report is that the appellant is a maternal
cousin of the victim. They are residents of the same village.
The appellant would come to the house of the victim. It is
stated that in the month of June 2018, the appellant went to the
house of the victim and expressed his love for her. The
appellant proposed to the victim to marry with him. The
victim consented to marry with the appellant. The appellant
promised to marry with her and on the false promise of
marriage, committed a sexual intercourse with her. The
appellant would call the victim to his house on the pretext of
doing household work. The appellant on three occasions
committed sexual intercourse with the victim on the promise of
marriage. Lastly, on 16.10.2018, at about 8 p.m., the appellant
committed sexual intercourse with the victim and at that time
the appellant told her to meet him on 19.10.2018 at his
agricultural land. Due to some work, the victim could not go to
224. Cr.apeal.196.2022 .jud..odt
the land of the appellant. Therefore, the appellant quarrelled
with her. The appellant threatened to kill the victim and
members of her family. The appellant since then discontinued
his relations with the victim. It is stated that on account of
sexual intercourse committed by the appellant with the victim,
she became pregnant. The victim requested the appellant to
marry with her after attaining the age of 18 years. The
appellant refused to marry with her. The victim, on being
confronted with such a situation, alongwith her father, went to
Ghatanji Police Station on 02.01.2019 and lodged the report
against the appellant.
5 On the basis of this report, the crime bearing No. 6
of 2019 was registered against the appellant. PW- 8 Ganpat
Pappulwar carried out the investigation. He referred the victim
for medical examination. The appellant was arrested. The
blood samples of the victim and the appellant had been
collected. Similarly, the pregnancy test was conducted. The
224. Cr.apeal.196.2022 .jud..odt
pregnancy test revealed that the victim was carrying 23 weeks
pregnancy. The investigating officer drew the spot panchanama.
He seized the clothes of the victim and the clothes of the
appellant. The victim delivered a female child. The blood
sample of the female child was collected. The samples had
been sent to RFSL, Nagpur for analysis. On completion of the
investigation, the chargesheet was filed against the appellant.
6 The learned Judge framed the charge against the
appellant. The appellant pleaded not guilty. His defence is of a
false implication in this crime. The prosecution, in order to
bring home the guilt of the appellant, examined nine witnesses.
The learned Judge, on analysis of the evidence adduced by the
prosecution, convicted and sentenced the appellant as above.
The appellant has come before this Court in appeal against this
judgment and order.
7 I have heard the learned Advocate Ms Sapana
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Jadhav, for the appellant, the learned APP Mr Harshal Futane
for the State and the learned Advocate Ms Priyanka Arbat
(Awathale), appointed to represent respondent No.2. Perused
the record and proceedings.
8 Perusal of the evidence of the victim would show
that the appellant committed intercourse with her on the false
promise to perform a marriage with her. In other words, the
victim was a consenting party to the said sexual intercourse.
The learned Judge, on the basis of the available evidence, has
observed that the prosecution has proved that on the date of
the incident, the victim was below 18 years of age and thus, the
defence of consensual act would not enure to the benefit of the
appellant.
9 Learned Advocate for the appellant submitted that
the evidence adduced by the prosecution to prove the age of the
victim is not cogent, concrete and reliable. The primary
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evidence, namely the entry from the Anganwadi register where
the victim first admitted, has not been produced and proved.
No reason has been placed on record for non production of
such vital evidence. The birth certificate of the victim is not
produced on record. The learned Advocate further pointed out
that the entry from the original admission register brought by
PW-9 was also not exhibited.
10 Learned APP submitted that perusal of cross-
examination of the victim conducted on behalf of the appellant
would show that the accused/appellant has not challenged
either the birth date of the victim or the evidence adduced by
the prosecution to prove the birth date of the victim. Learned
APP submitted that this evidence adduced by the prosecution is
sufficient to prove that on the date of the incident, the victim
was below 18 years of age. It is submitted that therefore the
defence of consensual sexual act would not be of any assistance.
to take the defence of the appellant forward.
224. Cr.apeal.196.2022 .jud..odt
11 Learned Advocate appointed to represent victim
has adopted the arguments advanced by the learned APP.
12 The victim, as per the case of the prosecution, was
17 years 6 months and 9 days old on the date of the
commission of the crime. It is to be noted that the prosecution
was duty bound to adduce the evidence and prove the birth
date of the victim. It is the case of the prosecution that the
birth date of the victim is 23.07.2001. Admittedly, the birth
certificate of the victim was not produced on record. The
document produced on record is the certified extract of the
admission register from Zilla Parishad School at Bhandari. In
this context, it would be necessary to consider the evidence of
the victim. The parents of the victim have not been examined.
The victim is PW-2. Her evidence would show that after this
incident she got married and settled in her life. She has stated
that her birth date is 23.07.2001. Except for this solitary
statement that her birth date is 23.07.2001, she has not stated
224. Cr.apeal.196.2022 .jud..odt
anything about her birth date. She has nowhere stated that she
was admitted in the school and in the school her birth date was
recorded as 23.07.2001. She is silent in her evidence about her
admission in the school. Her Adhar Card was produced on
record and in the Adhar Card her birth date is mentioned as
23.06.2001. Admittedly, the birth certificate of the victim has
not been obtained either from the Gram Panchayat or from any
other authority. It is also not the case of the prosecution that
the birth of the victim was not recorded in the Gram Panchayat
record. The investigating officer has not stated that he had
made any inquiry with the Gram Panchayat of the village about
the registration of the birth and birth date of the victim. The
investigating officer, without conducting any investigation to
that effect, wrote a letter to the headmaster of Zilla Parishad
Primary School, Bhandari, and obtained the extract of the
admission register where her birth date was recorded.
224. Cr.apeal.196.2022 .jud..odt
13 In the above context, it is necessary to consider the
evidence of PW-9 Shivdas Ade, an assistant teacher from Zilla
Parishad Primary School, Bhandari. This witness was
summoned with the original Dakhal Kharij Register of the
school. He had brought the register for the period from 2002 to
04.08.2012. It is seen on perusal of the record that the
admission entry of the victim from the said register was not
separately registered. The register was also not taken on record.
Neither the learned Judge nor the learned prosecutor insisted
for production of the register. The entry which was exhibited is
the certified extract of the register obtained by the investigating
officer at that time. The question is whether this certified
extract would be sufficient to prove the birth date of the victim.
In the ordinary circumstances, this Court would not have
hesitated to place reliance on this document to prove the birth
date of the victim however, the circumstances of this case are
totally different. The evidence of PW-9 itself would be
224. Cr.apeal.196.2022 .jud..odt
sufficient to reject this part of the evidence. As stated above,
the parents of the victim have not been examined. The birth
certificate of the victim from Gram Panchayat has not been
produced. It is not the case of the prosecution that this birth
date in the school register was recorded for the first time either
by the parents of the victim or on the basis of birth certificate.
14 PW-9 has stated that the entry in the school register
was taken on the basis of the Anganwadi register, where the
victim was earlier admitted. He has stated that on the basis of
the Anganwadi entry, the entry in the Dakhal Kharij Register
was made. It is further evident on perusal of the record that
PW-9 had produced on record the self attested copy of the
Anganwadi register. He has further stated that the name of the
victim in the said register was recorded as Sangita alias Sushma.
He has stated that her birth date was also recorded in the said
register. It is to be noted that this self attested copy of the
224. Cr.apeal.196.2022 .jud..odt
Anganwadi register was not given exhibit number. The
prosecution did not take further steps to examine the witness
from the Anganwadi and to prove the original entry from the
Anganwadi register. In this case there is no evidence to show
that the date of birth recorded in the Anaganwadi register was
as per the information provided by the parents of the victim.
The prosecution was required to adduce evidence of the parents
of the victim or any other evidence which would form basis for
recording the birth date in Anaganwadi register. The learned
Advocate relying upon the decision of the Division Bench of
this Court, of which I was one of the member, in the case of
Amol @ Ratan .v/s. State of Maharashtra 1 submitted that the
evidence adduced by the prosecution is not sufficient to prove
the birth date of the victim. Relying upon this judgment, the
learned Advocate submitted that the main entry from the
Anganwadi register ought to have been proved to lead a
foundation to this entry in the school register. In this case, it is
1 2022 GoJuris (Bom) 1270
224. Cr.apeal.196.2022 .jud..odt
observed that the failure to produce such an important
document leaves a permanent lacunae in the case of the
prosecution and as such, the evidence produced cannot be
accepted.
15 In this case, the prosecution was required to prove
the original entry from the Anganwadi register. The victim, as
per the evidence of PW-9, was admitted in Anganwadi and on
the basis of the Anganwadi register, the date of birth of the
victim was recorded in the school register. The evidence of PW-
9 is silent as to the person who had provided this information of
the birth date of the victim while admitting her in the
Anganwadi. There is also no clarification whether the
Anganwadi is part of said school or it is a separate institution.
If the Anganwadi is part of the same school, then this witness
would have produced the original Anganwadi register as well. It
is to be noted that the evidence of PW-9 has caused dent to the
case of the prosecution. It is to be noted that if the victim had
224. Cr.apeal.196.2022 .jud..odt
been admitted in the Zilla Parishad Primary School, Bhandari,
for the first time by her parents, then this entry would have
assumed importance. This entry then would have become
primary evidence. The production of the original register and
proof of the relevant entry from the original Dakhal Kharij
Register would have been sufficient to prove her birth date. In
this case, the important evidence has not been produced. The
parents have not been examined to depose about the birth date
of the victim as well as the admission of the victim either in the
Anganwadi or in the Zilla Parishad Primary School. The victim
otherwise had no reason to know the registration of her birth
date with any authority or in any school. The victim would not
have provided the information to the school while getting
admission in the school. In view of this, I am satisfied that the
learned Judge on this point has not properly appreciated the
evidence. The prosecution has miserably failed to prove by
leading cogent and concrete evidence that the victim on the
224. Cr.apeal.196.2022 .jud..odt
date of the crime was 17 years 6 months and 9 days old. The
birth date of the victim on the Adhar Card is different. In my
view, therefore, it leaves scope to doubt the credibility of the
evidence. The investigating officer did not take care to collect
the proper evidence. In view of this, the prosecution has failed
to prove that on the date of the incident, the victim was below
18 years of age.
16 In the backdrop of this finding, it is necessary to
appreciate the evidence of the victim. The victim in her
evidence has stated that the appellant is her relative. i.e.
maternal cousin brother. He had promised to marry her before
establishing sexual relations with her. He had expressed her
love for the victim. She has stated that on the promise of a
marriage, the appellant committed sexual intercourse with her
on three occasions. She has stated that it was agreed between
them that they would perform the marriage after she attained
the age of 18 years. She has stated that she did not go to meet
224. Cr.apeal.196.2022 .jud..odt
the appellant as requested by him and therefore, the appellant
was annoyed and quarrelled with her and from that day
onwards, he discontinued his relations with her. She has stated
that she became pregnant and when the appellant refused to
marry with her, she alongwith her father went to the police
station and lodged the report.
17 It is undisputed that the victim gave birth to a
female child. The victim has stated that the appellant
committed forcible sexual intercourse with her. In her
examination-in-chief, she stated that when the appellant
proposed her for marriage, she gave consent. It is her case that
the consent was obtained under the false promise of marriage.
It has come on record that the accused/appellant committed
intercourse with her on multiple occasions. She has stated that
on 16.10.2018, the appellant had committed intercourse with
her and thereafter, the dispute arose between them. The report
224. Cr.apeal.196.2022 .jud..odt
was lodged on 02.01.2019. It is evident that there is inordinate
delay in lodging the report. The prosecution in this case has
failed to prove that the victim was below 18 years of age. In my
view, therefore, the contention of the victim that the appellant
committed sexual intercourse with her on the false promise of
marriage needs careful perusal and appreciation. It is evident
that the victim was a consenting party. The conduct of the
victim in not disclosing this act committed by the appellant to
her parents as well as to the parents of the appellant, who
admittedly are her close relatives, is vital circumstance in favour
of the appellant. The age of the victim girl was the most
important fact while invoking the provisions of the POCSO
Act. In this case, since the prosecution has failed to prove that
the victim was below 18 years of age, the provision of the
POCSO Act would not apply.
18 Perusal of her cross examination in entirety would
show that the appellant alone was not responsible for this state
224. Cr.apeal.196.2022 .jud..odt
of affairs. She had consented for the same. She has categorically
admitted that she did not make a complaint to the police with
regard to the forcible intercourse committed with her by the
appellant in June 2018, prior to 02.01.2019. In my view, even
if it is assumed for the sake of argument that the appellant is the
biological father of the child, in the backdrop of the proved
consensual act, it is not possible to hold him guilty of an offence
of rape.
19 As far as other evidence is concerned, in my view, in
the backdrop of the above-stated findings, it would not be
necessary to refer to the same in detail. The medical officer
PW-5 Dr. Amrita Tupkar who had examined the victim has
stated that the victim narrated the history of the assault. On
examination, she found that the victim was carrying a
pregnancy of 23 weeks. The sample of the victim, the sample
of the appellant and the blood sample of the child of the victim
had been collected and sent for analysis to RFSL, Amravati.
224. Cr.apeal.196.2022 .jud..odt
20 The prosecution has relied upon the CA reports and
DNA reports to seek corroboration to the case of the
prosecution. In my view, there is a serious flaw in the case of
the prosecution on this count as well. Even if the findings on
the point of age of victim and penetrative sexual assault by the
appellant on the victim has been in favour of the prosecution,
the CA reports and DNA reports could not have been
considered as a corroborative piece of evidence by the
prosecution. The prosecution has not examined the CA as well
as the DNA analyst. I have carefully perused the record and
proceedings. It is evident that no order was passed by the
learned Judge under Section 293 of the Code of Criminal
Procedure (for short ' the Cr.P.C.) while admitting the CA
reports and DNA reports in evidence. There are numerous
doubtful circumstances on record, which in my view would
reflect upon the authenticity of the DNA reports. The samples
had been collected on 3rd & 5th January 2019. The carrier has
224. Cr.apeal.196.2022 .jud..odt
not been examined. The panchanama of seizure of the samples
is a part of the record at Exh. 48 and Exh. 49.
21 PW-3 Vijay Chavhan, who is a panch witness, has
stated that the samples had been seized under panchanamas
Exh. 48 and 49 on 07.05.2019. Perusal of Exh. 48 and 49 and
more particularly column No. 4 would show that the samples
had been seized on 07.05.2019. If it was a typographical error,
then the prosecutor could have corrected it while recording the
evidence. The witness has stated that he was called to the police
station on 07.05.2019 and in his presence the biological
samples had been seized. Even if it is assumed that the samples
had been seized on 07.01.2019, further connecting evidence is
missing. Exh. 90 is the requisition letter to Deputy Director,
RFSL, Amravati, by the investigating officer. Perusal of this
requisition letter would show that the samples had been sent to
the RFSL, Amravati on 07.02.2019. The carrier has not been
examined. The samples had been collected on 05 th and 6th
224. Cr.apeal.196.2022 .jud..odt
January 2019. The investigating officer is silent about the
custody of the sample from the seizure till 7.02.2019, when the
same were carried to RFSL, Amravati. The CA reports, which
are part of the record at Exh. 19 to 21, show that the samples
had been received in RFSL Amaravati on 11.02.2019. This
evidence would show that samples had been collected by the
carrier on 07.02.2019. The samples were in custody of the
carrier till 11.02.2019, when the same were handed over to
RFSL, Amravati.
22 It is further pertinent to note that the prosecution
has not examined the medical officer, who had collected the
blood sample of the female child born to the victim. It is to be
noted that the sample was collected for DNA analysis. The
identification form filled in by the medical officer while
collecting the sample is at Exh. 44. It has been exhibited on the
basis of the evidence of the victim. The prosecution was
required to examine the medical officer, who had collected the
224. Cr.apeal.196.2022 .jud..odt
blood samples of the female child. There is one more major
flaw in the case of the prosecution and in the backdrop of this
major flaw the CA reports, DNA reports and other connected
materials cannot be made the basis of conviction of the
appellant. It is seen on perusal of the statement of the
appellant/accused recorded under section 313 of the Cr.P.C.
that all these CA reports and DNA reports had not been put to
the appellant. It is to be noted that the opinion of the DNA
analyst that the appellant and the victim girl are the biological
parents of the child was required to be specifically put to the
appellant. It was not done. In order to appreciate this aspect it
would be necessary to see question No. 93 framed by the
learned Judge in the statement recorded under Section 313 of
the Cr.P.C. Question No. 93 and the answer are produced
below:
"Q. No. 93 : It has further come in his evidence that
the CA reports and DNA report are produced on record
224. Cr.apeal.196.2022 .jud..odt
at Exh. 19 to 21 and 30 and 31 respectively. What you
have to say about it ?
Ans : I do not know."
It is evident that this vital incriminating material
has not been put to the appellant. The appellant did not have
an opportunity to explain this vital evidence. In my view, this is
a material drawback in the case of the prosecution. Even
otherwise, this evidence in the form of a DNA report could not
be used against the appellant. The opportunity was not given
to the appellant to explain such a vital incriminating evidence.
The Hon'ble Supreme Court in the case of Sharad Birdhichand
Sarda vs State of Maharashtra2 has held that the circumstances
which were not put to the appellant in his examination under
Section 313 of the Criminal Procedure Code have to be
completely excluded from consideration.
23 In the facts and circumstances, I conclude that the
prosecution has miserably failed to prove the charge against the
2 AIR 1984 SC 1622
224. Cr.apeal.196.2022 .jud..odt
appellant under the POCSO Act. As far as the charge under
Section 376 of the IPC is concerned, the evidence on record is
sufficient to prove that it was a consensual act. In view of this,
the learned judge was not right in holding the appellant guilty.
The appeal, therefore, deserves to be allowed.
24 The criminal appeal is allowed.
25 The judgment and order of conviction and sentence
of the appellant/accused dated 25.02.2022 passed by the
learned Additional Session Judge, [Special Judge (POCSO Act],
Yavatmal in Special (Child) Case No. 22 of 2019 is quashed
and set aside.
26 The appellant/accused- Chetan Kailas Vaidya is
acquitted of the offences punishable under Section 376(2)(n) of
the Indian Penal Code and Sections 4 and 6 of the Protection of
Children From Sexual Offences Act, 2012.
224. Cr.apeal.196.2022 .jud..odt
27 The appellant, who is in jail, shall be released
forthwith, if not required in any other case.
28 Ms Priyanka Arbat (Awathale), learned Advocate
appointed to represent respondent No.2 in this appeal, is
entitled to receive the fee. The High Court Legal Services Sub
Committee, Nagpur is directed to pay the fee of the learned
appointed Advocate, as per the rules.
29 The criminal appeal stands disposed of accordingly.
Pending applications, if any, also stand disposed of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 15/10/2024 19:16:43
