Bombay High Court
Aravind Mahadev Wadar vs The State Of Maharashtra And Anr on 18 September, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:37606
Digitally signed
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR 12-APEAL-287-2024 Judg. - 2.odt
MAHENDRA
WARGAONKAR Date:
2024.09.23
16:21:18
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 287 OF 2024
WITH
INTERIM APPLICATION NO.4665 OF 2023
Aravind Mahadev Wadar ... Appellant
Versus
The State of Maharashtra & Anr. .... Respondents
.......
Mr. Kunal V. Patil a/w Rahul P. Kasbekar, Advocate for the
Appellant.
Mr. Swapnil V. Walve, APP for the State/Respondent.
Ms. Pranali Kakade, Appointed Advocate for Respondent No.2.
CORAM : SARANG V. KOTWAL, J.
DATE : 18th SEPTEMBER 2024
ORAL JUDGMENT :
1. The Appellant has challenged the judgment and order dated
10th August 2021 passed by the Special Court (POCSO), Kolhapur
in Special Case No.102 of 2018. The Appellant was convicted for
commission of offence punishable under Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (for short
"POCSO Act") and under Sections 376, 354, 354D, 506 and 323 of
the Indian Penal Code (for short "IPC"). He was sentenced as
Pallavi Wargaonkar, PS
12-APEAL-287-2024 Judg. - 2.odt
follows:-
(i) For offence punishable under Section 6 of the
POCSO Act, he was sentenced to suffer R.I. for 10
years and to pay fine of Rs.20,000/- and in default,
to suffer R.I. for two years.
(ii) For commission of offence punishable under Section
354-D of IPC, he was sentenced to suffer R.I. for 3
years and to pay a fine of Rs.5,000/- and in default,
to suffer R.I. for three months.
(iii) For commission of offence punishable under Section
506 of IPC, he was sentenced to suffer R.I. for 3
years and to pay a fine of Rs.5,000/- and in default,
to suffer RI for six months.
(iv) For commission of offence punishable under Section
323 of IPC, he was sentenced to suffer R.I. for one
year and to pay a fine of Rs.1,000/- and in default,
to suffer R.I. for 3 months.
The Appellant was also convicted under Section 376 and
354 of IPC, however, no separate sentence was imposed.
12-APEAL-287-2024 Judg. - 2.odt
All the substantive sentences were directed to run
concurrently. The Appellant was given set off under
Section 428 of Code of Criminal Procedure. The fine
amount, if deposited, was directed to be paid to the
victim towards compensation. The case was referred to
the Secretary, D.L.S.A., Kolhapur for compensation to the
victim as per Section 357 of Cr.P.C. and Rule 7 of the
POCSO Rules 2012.
2. Apart from the Appellant, his father also faced the trial as
Accused No.2. He was charged and acquitted for commission of
offence punishable under Sections 452 and 506 of IPC.
3. Heard learned counsel for the Appellant, learned APP for
State and learned counsel for the Respondent No.2.
4. The prosecution case is that the date of birth of the victim
was 28th December 2001. Between the period of 27 th February
2018 to 20th August 2018, the Appellant harassed the victim. On
three occasions, he took her to a Lodge and established physical
relations against her wish. Because of this, the victim was under
pressure. Her mother was concerned because of her changed
12-APEAL-287-2024 Judg. - 2.odt
behaviour in the house. She made inquiries with the victim and
came to know about the incident. After that the FIR was lodged on
20th August 2018. It is also the prosecution case that the
Appellant's father had suggested that the victim and the Appellant
should get married. However, that proposal was not acceptable to
the victim's family. In spite of that, the Appellant harassed the
victim resulting in this prosecution. The certificate regarding date
of birth is produced on record and there is no challenge to her date
of birth.
5. The Appellant was arrested on 21st August 2018.
Investigation was carried out. The victim showed the Lodge where
the offence was committed. The Register from the lodge was
seized. The victim's clothes were seized. The victim was sent for
medical examination and after conclusion of the investigation the
charge-sheet was filed. The Appellant faced the prosecution as
mentioned earlier.
6. During the trial, the prosecution examined 9 witnesses
including the victim, her mother, the Medical Officer, pancha
witnesses, the Manager of the Lodge and the Investigating Officer.
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The defence of the Appellant was of total denial. After considering
the evidence, the learned Judge convicted and sentenced the
Appellant as mentioned above.
7. The victim was examined as the Prosecution Witness No.2.
She has deposed that in the year 2018 she was residing with her
parents, grandmother and younger sister. Her date of birth is 28 th
December 2001. She was studying in the 11 th Standard in College.
She knew the Appellant. He was residing next to their house. The
Appellant's father had put forth a proposal of marriage between
the Appellant and P.W.2, but her family had refused that proposal.
There was quarrel between the two families. The Appellant used to
follow her when she went to college. He used to ask her to marry
him. She also refused his proposal. The Appellant's father
repeatedly visited their house with the same proposal. She has
further deposed that when she used to go to college nothing
further happened between her and the Appellant. She denied that
the Appellant used to beat her when she refused to sit on his bike.
She also denied that the Appellant showed her knife kept in the
dickey of his motorcycle and that the Appellant had beaten her
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with a stick. She further deposed that nothing happened between
her and the Appellant in the month of March 2018. Thus, she did
not support the prosecution case at all.
In the cross-examination, she stated that she was
staying aloof in her house as she was restless because of the sexual
harassment and beating caused by the Appellant. However, in the
next answer she accepted that it was not true that in the month of
March 2018 the Appellant had taken her to a Lodge and had
committed forcible sexual intercourse against her will. Two of her
friends knew that the Appellant was following P.W.2 and was
harassing her. After 19th August 2018, when she returned from her
maternal uncle's house, she narrated the incident of sexual
harassment caused to her by the Appellant to her mother. She also
narrated about the beating and also the rape committed by him.
Thereafter, her mother lodged her FIR on 20 th August 2018. Thus,
she has given completely contradictory versions in her
examination-in-chief and in the cross-examination. Significantly,
she had denied the visit to the Lodge. She had not given any
further details in her cross-examination regarding the allegations
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of rape. She further deposed that her statement was recorded by
Police as per her say. She also deposed that on 3 rd September 2018
her statement was recorded by the learned Magistrate under
Section 164 of Cr.P.C. That statement was shown to her and was
identified by her. During the course of investigation, she was sent
for medical examination on 21st August 2018. She identified the
clothes shown to her. She could not identify the knife and the stick
produced in the Court. She identified the accused.
8. The victim P.W.2 was also cross-examined by the defence.
Her cross-examination shows that there used to be traffic on the
road when she used to go to her college. There used to be traffic
Police at the signal. The Appellant was residing in their lane and
therefore, they used to visit each other occasionally. Her family had
attended the Appellant's sister's wedding. She had not complained
to her teachers that the Appellant was following her. On one
occasion, they had quarreled when she refused the Appellant's
proposal. That quarrel took place on a road near 10 minutes walk
from Rajarampuri Police Station. She had not told anybody that
the Appellant was following her. She did not tell anybody about
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the incident of beating caused by the Appellant, which had taken
place inside a Temple. The Appellant had beaten her with wooden
stick and with hands.
9. Her statement recorded under Section 164 of Cr.P.C.
mentions an incident in March 2018 when the Appellant had taken
her to a Lodge and established forcible physical relationship.
However, the victim - PW 2 had not stated so in her examination-
in-chief and in her cross-examination. She had denied the
suggestion given by the Special Public Prosecutor in that behalf.
Then it was necessary for the learned Spl.P.P. to invite her attention
to this particular portion from the statement recorded under
Section 164 of Cr.P.C. But her attention was not drawn to this very
important contradictory portion from her statement in the light of
the examination-in-chief, where she had denied the incident in the
Lodge.
10. P.W.1 is the mother of the victim. She had lodged the FIR.
She has deposed that since six months prior to lodging the FIR, the
victim was looking disturbed and was not paying attention to her
studies. P.W.1, therefore, sent her to the victim's maternal uncle's
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place. When the victim returned on 19 th August 2018, she told
P.W.1 about the harassment and the beating caused by the
Appellant. She also narrated the incident when she was taken to a
Lodge where the Appellant had established forcible physical
relationship with her. She also narrated the incident when the
Appellant had beaten her in a Temple. Thereafter, the FIR was
lodged on 20th August 2018. It is produced on record at Exh.19.
Her evidence thus is more of a hearsay nature except for the fact
that the victim was disturbed and that P.W.1 and her family
decided to lodge the FIR.
In the cross-examination, she stated that the Appellant
was residing in the area for about 3 to 4 years. They were from the
same community. She admitted that she did not have personal
knowledge about the incident but she was told about it by the
victim. She had also deposed that the victim had told her that
when the Appellant had beaten her on the road, an elderly man
had intervened and questioned the Appellant. However, that
particular fact is not reflected in the FIR.
11. P.W.3 - Kailas Kore was a pancha in whose presence P.W.2
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showed the room in a Lodge. In his presence, the Lodge Manager
had produced the register before the Police. The spot panchanama
is produced on record at Exh.30. The register was seized by the
Police.
12. P.W. 4 - Sagar Salvi and P.W.5 - Raghunath Lad were the two
panchas in whose presence the register produced by the Lodge
Manager was seized but both of them turned hostile and did not
support the prosecution.
13. P.W.6 - Aakash Pathrut was a pancha in whose presence the
bike was produced at the instance of Appellant's brother. The stick
and the knife were produced from the dickey of the bike. That
panchanama is produced on record at Exh.35.
14. P.W. 8 - Vijay Patil was the Lodge Manager. He deposed that
in the year 2018, the Police had visited his Lodge with a girl who
had shown three rooms to the Police. He has further deposed that
the Police seized the register maintained in the lodge. There were
three entries dated 15th January 2018, 16th February 2018 and 19th
March 2018 wherein the names of the Appellant and the victim
were shown together. However, he further deposed that those
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entries were not in his handwriting. He was not present in the
lodge when those entries were taken and when both of them had
come to the Lodge.
In the cross-examination, he deposed that the proof of
identification was discarded after one month as per their usual
practice. He admitted that he saw the victim for the first time
when she had come to the lodge with the Police. The entries from
the register are produced on record at Exh.39.
15. P.W. 9 - Dr. Smt. Saubhagya Bhajantri had medically
examined the P.W.2. She deposed that P.W.2's hymen was not
intact. P.W.9 collected the swab and other samples. The medical
report is produced at Exh.47. She further deposed that the hymen
was not intact and that was possible due to several reasons
including the reason of sexual intercourse.
16. P.W.7 - PI Chavan had investigated the offence. She had
registered C.R. No.292 of 2018 at Rajarampuri Police Station. She
arrested the Appellant on 21st August 2018. She conducted the
spot panchanama and seized the register. She sent the victim for
medical examination. She caused recording of the statement of
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victim under Section 164 of Cr.P.C. She seized the two wheeler, the
stick and the knife.
In the cross-examination, some omissions from the FIR
were brought to her notice to which she deposed that it could be
because of the typographical errors.
17. This in short, is the evidence led by the prosecution.
18. The learned counsel for the Appellant submitted that the
victim who is the most important witness in this case has not
supported the prosecution case. She has given contradictory
answers. Therefore, her evidence is not of sterling nature. In her
examination-in-chief and in the initial part of her cross-
examination, P.W.2 had categorically denied that the Appellant had
committed any forcible sexual intercourse with her. She had
denied that the Appellant had taken her to a Lodge and had
committed forcible sexual intercourse. He submitted that
therefore, the offence under Section 376 of IPC as well as the one
defined under Section 3 and made punishable under Section 6 of
the POCSO Act are not proved. Apart from the main allegations of
rape, even the prosecution case of beating the victim, is not
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proved. P.W.2 had denied the incident regarding beating in her
examination-in-chief itself. Only in the cross-examination, she
made a reference to the beating caused by the Appellant and also
to the harassment caused by him. The learned counsel submitted
that the victim's attention was not drawn to the contradictory
statement made by her in her police statement or in the statement
recorded by the learned Magistrate. Both these statements cannot
be taken into consideration against the Appellant.
19. He submitted that, offence of beating or using force was not
proved. There was a reference to an elderly person who had
intervened when the Appellant was beating the victim. However,
he was not examined nor his details were given. The victim had
not complained about beating or harassment for a period of six
months. Only after lodging of the FIR, all these allegations had
surfaced. The medical evidence does not show any signs of
beating. In fact, the medical evidence is quite vague and it does
not even show that there was any sign of physical relation as can
be seen from the cross-examination of the Medical Officer. He
submitted that due to all these infirmities, the prosecution has
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failed to prove its case beyond reasonable doubt. He further
submitted that the evidence of seizure of the register will also not
help the prosecution as those entries are not proved by the
prosecution.
20. Learned counsel for the Respondent No.2 as well as the
learned APP submitted that though P.W.2 - Victim had not
supported the prosecution case, but in the cross-examination
conducted by the learned Spl. P.P., she had given answers
supporting the prosecution case including the allegations of
commission of rape. They submitted that the victim was trying to
help the Appellant and was trying to live peacefully without being
disturbed by this incident and therefore, she had turned hostile.
Hence, the Appellant could not be given the benefit of doubt. They
submitted that the medical evidence to a certain extent supports
the prosecution case. Both of them relied upon the entries in the
register showing that the Appellant and the victim had visited that
lodge on three occasions.
21. I have considered the submissions. As far as the mother of
the victim is concerned, her knowledge is based on the information
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provided by P.W.2 - Victim. Therefore, her evidence is largely
hearsay. As far as the main allegations of sexual harassment and
other serious allegations are concerned, P.W.1's evidence only goes
to show that the FIR was lodged on 20 th August 2018 after P.W.2
had narrated the incidents to her. Therefore, the most important
witness in this case is the victim herself. In this case, the victim has
not supported the prosecution case and has stated that nothing
had happened between her and the Appellant. She had also denied
that the Appellant had beaten her when she refused to sit on his
bike and that the Appellant had shown her knife and that he had
beaten her with a stick. There was no reference to the commission
of forcible sexual intercourse mentioned in her examination-in-
chief. In the first part of her cross-examination conducted by the
Spl. P.P. she had denied that in the month of March 2018 the
Appellant had taken her to a Lodge and had committed forcible
sexual intercourse. This entire deposition shows that the victim -
P.W.2 has not supported the prosecution case. After this part of the
deposition, she further deposed that she had told her mother about
the sexual harassment and the rape committed by the Appellant as
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well as the beating committed by him. However, her first part of
deposition is not consistent with the narration to her mother as
rightly submitted by the learned counsel for the Appellant. The
learned Spl. P.P. did not draw the attention of P.W.2 to the
contradictory statements made by her in her police statement and
in her statement recorded under Section 164 of Cr.P.C. wherein she
had referred to the forcible sexual intercourse and the sexual
harassment. No explanation is offered by the prosecution or by
P.W.2 at all.
22. In this view of the matter, a serious doubt is created about
the victim's version. Since she is the only witness who could have
deposed about this fact and since she has not supported the
prosecution case and was declared hostile, the benefit of doubt in
this case must go to the Appellant.
23. There is one more incriminating circumstance regarding the
seizure of the register mentioning the three entries wherein the
names of the Appellant and the victim were mentioned. However,
P.W.8 - the Lodge Manager who had produced this register has
stated that those entries were not made in his handwriting. He was
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not present when those entries were made or when those two
persons had visited the Lodge. He had admitted that he had seen
the Victim for the first time when she had come to their Lodge
with the Police. Therefore, there is no evidence to show that it was
only the Appellant and the Victim who had visited that Lodge on
those three occasions. Nobody else from that Lodge is examined.
The identity proof given by those persons were destroyed.
Therefore, that particular evidence is also weak. The prosecution
has not proved beyond reasonable doubt that the Appellant and
the victim had visited that Lodge on those occasions.
24. As rightly submitted by the learned counsel for the Appellant
the medical evidence is quite vague and it does not fully
corroborate the prosecution case of forcible sexual intercourse or
of beating caused by the Appellant. As per the prosecution case,
the instances of beating was on the road and in the Temple but
there is no other corroborative evidence either in the form of
independent witnesses or any signs of beating. Admittedly, the
victim has not narrated about the instances to anybody including
her teachers. Therefore, again the only evidence in this respect is
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that of P.W.2, whose evidence as mentioned earlier, is not free from
doubt.
25. Considering all these circumstances together, it can be seen
that the prosecution has failed to prove its case beyond reasonable
doubt and therefore, the benefit of doubt must go to the present
Appellant. Hence the following order:-
ORDER
(i) Judgment and order dated 10th August 2021 passed by
the Special Court (POCSO), Kolhapur in Special Case No.102
of 2018 convicting and sentencing the Appellant is set aside.
(ii) The Appellant is acquitted from all the charges.
(iii) The Appellant is in custody. He shall be released
forthwith, if not required in any other case.
(iv) The Appellant shall execute P.R. Bond in the sum of
Rs.30,000/- before being released to ensure his
presence in case Appeal against acquittal is filed.
(v) The companion applications are disposed of.
(SARANG V. KOTWAL, J.)
