Bombay High Court
Dhiraj Pashya Pawar vs The State Of Maharashtra And Another on 1 April, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:10188-DB
Cri Appeal No.469 of 2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.469 OF 2021
Dhiraj s/o. Pashya Pawar,
Age : 29 years, Occ. Driver,
r/o. Dudhale, Tq. and Dist.Nandurbar ..Appellant
Vs.
1. The State of Maharashtra,
Through City Police Station,
Nandurbar, Tq. and Dist. Nandurbar
2. XYZ (Victim) ..Respondent
----
Mr.Yogesh B. Bolkar, Advocate for appellant
Mr.S.J.Salgare, APP for respondent no.1
Ms.Suvarna Zaware, Advocate for respondent no.2 (appointed)
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : JANUARY 20, 2025
PRONOUNCED ON : APRIL 01, 2025
JUDGMENT (Per R.G.Avachat, J.) :
-
The challenge in this appeal is to the judgment of
conviction and order of consequential sentence dated 01.09.2021,
passed by learned Sessions Judge, Nandurbar (Trial Court), in Special
Case No.25 of 2019. It was a case, wherein the appellant was tried for
the offences punishable under Sections 363 and 366 of Indian Penal
Code and Section 6 of the Protection of Children from Sexual Offence
Act, 2012 ("POCSO Act", for short). The trial court acquitted the
appellant of the offences punishable under Sections 363 and 366 of
Indian Penal Code. It has, however, convicted him for the offence
punishable under Section 6 of the POCSO Act and therefore,
sentenced to suffer imprisonment for life and fine of Rs.5,000/-, with
default stipulation. The appellant has, therefore, preferred this
appeal. The State did not prefer appeal against acquittal.
2. The facts, in brief, giving rise to the present appeal are
as follows:-
PW1 - "K" (name withheld) was in the age group of 15-16
years at the relevant time. She was resident of one of the villages in
Taluka and Dist. Nandurbar. The appellant too was resident of the
very village. The appellant is married and blessed with two children.
According to PW1 - "K" (victim), the appellant was after her. He
proposed her many a time through her friend. She was reluctant.
She wanted to study. The appellant, however, threatened that her
parents would be done away with, if she did not join him to make
love. She had no option but to relent. Once, the appellant
intercepted when she had been to answer the nature's call. He took
her in a field and committed sexual intercourse. Such things
happened thereafter a few times.
3. On 08.05.2019, the appellant called her on phone and
asked her to join him at Sakri. Her parents had been away to village
Adachi for marriage. Due to the threats extended by the appellant,
the victim went to Sakri. The appellant then took her to Nashik on
motorbike. He secured a room on rent. He made her stay with him
for about twenty days. During that period, he had sexual intercourse
with her many a time. The victim was said to have conceived by
him.
4. One Navashibai informed her father that the victim left
the house for answering nature's call, but did not return. He
(father) came back to the village and took search for the victim. As
the victim was not found, he lodged the FIR (Ex.35) with Nandurbar
City Police Station, alleging an unknown person to have kidnapped
his minor daughter. A crime, vide C.R. No.151 of 2015 was,
therefore, registered for the offence punishable under Section 363 of
Indian Penal Code. It was investigated. During the investigation, the
appellant and the victim were located at Nashik. They were brought
back to the village. The victim was subjected to medical screening.
She was found to have been pregnant of two months. The appellant
was arrested. He too was medically screened. It appears that the
victim underwent Medical Termination of Pregnancy (M.T.P.).
Thereafter, blood samples of both appellant and victim were
obtained besides the fetus. Moreover, the clothes on the person of
both of them were seized. The crime-scene panchnama (Exh.41)
was drawn. Blood samples were submitted for DNA analysis. The
statements of the persons acquainted with the facts and
circumstances of the case were recorded and upon completion of the
investigation, the appellant was proceeded against by filing charge
sheet.
5. The trial court framed Charge (Exh.3). The appellant
pleaded not guilty. His defence was of false implication. The
prosecution examined eight witnesses and adduced in evidence
certain documents. On appreciation of the evidence in the case, the
trial court passed the impugned judgment and order.
6. Heard learned counsel for the parties. Learned counsel
for the appellant would submit that there was no evidence to
indicate the victim to have been below 18 years of age at the
relevant time. The school admission form along with the birth
certificate was admitted in evidence. The witness who produced the
same was serving with Village Panchayat only for five years next
before her evidence was recorded. The parents of the victim did not
give information for recording date of birth of the victim. The
information was stated to be given by her grandmother. Her
signature was not there on the registration form. The oral evidence
of the victim about her date of birth is hearsay. The father's
evidence in this regard would be of little consequence since he was
illiterate and rustic person. He must have been tutored. Learned
counsel took us through the evidence of the victim and her previous
statement, to submit that her evidence is altogether unreliable. It is
a serious offence. The appellant has been sentenced to suffer life
imprisonment. For sustaining such conviction, the evidence should
be cogent and reliable one. Except the testimony of the victim, no
other evidence is there to reinforce the prosecution case. The DNA
report is not on record. The medical examination of the victim does
not support the prosecution. Learned counsel, ultimately, urged for
allowing the appeal.
7. Learned APP and learned counsel representing the victim
would, on the other hand, submit that the school admission form
accompanied by the birth certificate proved the age of the victim.
The victim's father also gave her date of birth. The father is the best
witness in proof of date of birth of his child. The victim was away
from village for over 20 days. She was found in the company of the
appellant in Nashik. Both of them were brought back. They were
subjected to medical examination. The victim was pregnant. The
appellant was married. Section 29 of POCSO Act was relied on. They
also relied on the Apex Court's judgment In Re : Right to Privacy
of Adolescents with Criminal Appeal No.1451 of 2024 and
Suo Motu Writ Petition (C) No.3 of 2023 decided on
20.08.2024 (2024 SCC OnLine SC 2055). Learned counsel took
us through the entire evidence on record and then reiterated the
reasons given by the trial court in support of the impugned order.
According to them, no interference with the impugned order is
warranted. They, therefore, urged for dismissal of the appeal.
8. Considered the submissions advanced. Perused the
judgment impugned herein. Let us advert to the evidence on record
and appreciate the same.
9. The FIR was lodged by the father of the victim, PW2 -
Dangal. He testified that the victim was born on 17.10.2003.
According to him, she was 15 years of age, taking education in 8 th
standard at the relevant time. He received a phone-call of one
Navashibai, informing him that the victim left the house under the
pretext of attending nature's call and did not return. He, therefore,
took search for her. After twenty days from 08.05.2019, the police
brought her. There-before, he had lodged the FIR (Exh.35). The
appreciation of the evidence of PW2-Dangal indicates that the victim
was below 18 years of age on the day, i.e. on 08.05.2019, when she
left the home.
10. The fate of the case would be dependent on the
testimony of the victim and the medical evidence. The trial court
has already acquitted the appellant of the offence of kidnapping the
victim. Neither the State nor the victim has preferred an appeal
against acquittal. Same has, thus, attained finality.
11. Let us, now, turn to the evidence of victim "K" (PW1).
The trial court put her certain questions and from the answers
thereto, found her to be competent witness. Naturally so, since the
victim was 16 years of age when she gave evidence before the court.
She too stated her date of birth as 17.10.2003. Same is, however,
hit by hearsay. She testified that the appellant would reside in the
very village. He was married. Whenever she was on her way to
school, the appellant used to intercept her and extend threats to kill
her father and brother. She further testified that about 8-9 days
thereafter, her friends - Gayatri, Mogara and Sanjana had been to
her residence. They told her that one boy had affection for her. She,
in turn, informed them that she did not wish to fall in love and she
wanted to pursue her education. She further testified that about 4-5
days thereafter, the appellant sent her friend Gayatri to her
residence. She accompanied Gayatri to her house. The appellant
was present there. He expressed his desire to marry her. She flatly
refused. He asked her to join him so that they may elope. She
further testified that 4-5 days thereafter, she had been to attend the
nature's call. It was little past 4.00 p.m. The appellant had hidden
himself in that area. He suddenly emerged. He took her towards a
Nala and committed rape of her. He also gave threats to kill her
father and brother. Six-seven days thereafter, one Sonu, Pappu,
Nilesh and Dinesh met her on way to school. The victim further
testified that on 08.05.2019, her parents had been to village
Aadachi. Nilesh came to her house and informed to have been sent
by the appellant to take her. He also told her that if she did not join
him, he would kill her family. Due to those threats, she joined him.
The appellant then took her to various places on motorbike. He,
ultimately, took her to Nashik and took a room on rent. He kept her
with him for 19-20 days. During all those days, he committed sexual
intercourse with her. The police, thereafter, arrived and brought
them to the village. She was medically screened. She was found to
be pregnant of two months. She referred her statement recorded
under Section 164 of the Code of Criminal Procedure.
12. PW1 - "K" (victim) was subjected to searching cross-
examination. She denied to have been 18 plus. She also denied that
a false case was lodged by her father since the appellant and her
father had dispute inter se over money of Ayurvedic medicines. She
also denied to have written love-letter to the appellant. She was
confronted with her police statement. Same is silent to record that
Nilesh had come to her residence to take her. The portion marked
"A" was brought to her notice. She denied to have stated the same.
Said statement is to the effect that since her parents had been to
Aadachi wadi for marriage, she alone went to Sakri bus stand by 3.00
pm. She admitted to have not stated to the police in her statement,
that 8-9 months prior to the incident, her friends - Gayatri, Mogra
and Sanjana had been to her residence; they stated her that one
boy (appellant) was in love with her. She turned down the proposal
as she wanted to pursue her education. Her police statement is also
silent to record therein that after 4-5 days, when she had been to
answer the nature's call, the appellant suddenly emerged. Then, she
was confronted with her statement recorded, under Section 164 of
the Code of Criminal Procedure (Exh. 33), wherein, she stated to
have told the Magistrate that she was willing to reside (cohabit) with
the appellant and she did not want to state anything more. Said
statement is silent to record that the appellant had threatened to kill
her father and brother. It has specifically been stated in her
statement under 164 of Cr.P.C. that:-
मी धीरजला फोनवर सांगितले की, आपण पळू न जाऊ. परंतु
त्याने त्यास नकार दिला. पण मी माझ्या जीवाचे बरे वाईट
करून घेईन असे त्यास सांगितल्याने त्याने निलेश नावाच्या
मुलास मला घेण्यासाठी गाडीवर पाठवले. निलेशने मला
पिंपळनेर येथे सोडले. तिथे मला घेण्यासाठी धीरज आला
होता. धीरज मला नाशिक येथे घेऊन गेला. नाशिकला एक
आठवडा आम्ही सोबत राहिलो. नंतर पोलीस व माझ्या
वडिलांनी माझा शोध लावला.
The appellant sent Nilesh to get her. Nilesh took her to Pimpalner.
There, she joined the appellant. She did not raise any hue and cry
when she was along with the appellant on motorbike. She denied
that the appellant did not have sexual intercourse with her.
13. PW3 - Kiran was owner of the premises in Nashik. He
testified that he let out the room to the appellant at a monthly rent
of Rs.2,800/-. He was, however, categorical to state that he had
never seen the victim or any woman in the said room. He is witness
to the crime scene panchnama (Exh.41).
14. PW6 - Dr. Vivekanand was on duty at Nandurbar Civil
Hospital. He examined the victim on 26.05.2019. According to him,
the victim narrated the history. He medically screened her and found
her to be pregnant. He issued the medical certificates (Exh.62 and
63 respectively). What has been stated in the history of the victim to
the Medical Officer (PW6) was not stated by the victim in her
examination-in-chief. The medical examination report indicates that
there was no injury mark on her person or even on her private part.
For DNA analysis, blood samples of both appellant and victim were
obtained and sent to F.S.L. The report in that regard indicates that
the sample could not be amplified. As such, the DNA profiling could
not be obtained. It is not known, whether the victim has undergone
medical termination of pregnancy, lateron. The C.A. report (Exh.90)
indicates that the blood group of the appellant was "A". One semen
stain was found on knicker (Article 3); while four small stains were
found on Article 4. Those were of group "A". Those are said to be
the clothes of woman, seized in the presence of the panch witness,
PW5 - Shakuntala, on 27.05.2019.
15. PW8 - Kamlakar was Investigating Officer. He reiterated
about seizure of the clothes, etc. and sent the same for analysis. An
employee from the office of village panchayat was also examined in
proof of age of the victim. Since the victim's father gave the date of
birth of the victim and he being best witness in that regard, we rely
on his evidence that the victim was below 18 years of age at the
relevant time.
16. The offence is serious one. The appellant has been
sentenced for life imprisonment. It needs no mention that serious is
the offence, stricter shall be the proof. Appreciation of the evidence
of the victim indicates that her evidence inspires no confidence. She
made so many improvements in her evidence before the court. She
alleged the appellant to have had extended threats to kill her father
and brother and therefore, she joined him; whereas, her statement
(under Section 164 of Cr.P.C.) indicates that it was the victim herself,
who joined the appellant. The victim even threatened the appellant
that if she was not taken with him, she would commit suicide. As
such, whatever things appear to have had happened, were at the
behest and insistence of the victim. The appellant was even
reluctant to take her with him. The victim also testified that she had
stayed at Nashik. The landlord (PW 4), in whose room she claimed to
have stayed with the appellant at Nashik, stated to have never seen
any lady or even the victim to have been staying with the appellant.
When the Investigating Officer testified that he arrested the
appellant and took the victim into custody and brought them back;
arrest panchnama was drawn at the police station. There is no
evidence at all to indicate the victim was really pregnant, that too,
by the appellant.
17. The panchnama relating to the seizure of clothes is
conspicuously silent to state therein that those clothes were
packed/wrapped and sealed, meaning thereby, those clothes were as
it is, until the day on which those were sent to the F.S.L. for analysis.
Finding of few semen stains thereon of the blood group of the
appellant is short for us to jump to the conclusion that those were
that of the appellant and were there as a result of the sexual
intercourse between him and the victim. All in all, the evidence of
the victim being not of sterling quality, we find the sentence of life
imprisonment, based on such evidence, is unsustainable in law. The
appellant is in jail since may, 2019, i.e. two months short of six
years.
18. For all the aforesaid reasons, we are inclined to allow the
appeal. In the result, the appeal succeeds. Hence, the following
order:-
(i) The appeal is allowed.
(ii) The impugned order of conviction and sentence dated
01.09.2021, passed by learned Sessions Judge, Nandurbar (Trial
Court), in Special Case No.25 of 2019, for the offence punishable
under Section 6 of the Protection of Children from Sexual Offences
Act, 2012, is set aside. The appellant is acquitted thereof.
(iii) The appellant be released forthwith, if not required in any
other offences.
(iv) Fine amount paid by the appellant, if any, be refunded to
him.
(v) Fee of learned counsel appointed to represent
respondent no.2 is quantified at Rs.10,000/- (Rupees Ten Thousand).
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
