Bombay High Court

Ajaj Ahmad Jitullah Iraki vs State Of Mah. Thr. The Office In-Charge, ... on 7 April, 2025

2025:BHC-NAG:3739




              Judgment

                                                             384 apeal334.23

                                           1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.334 OF 2023

              Ajaj Ahmad Jitullah Iraki,
              age - 21 years, occupation - private,
              r/o at - house No.2277/38,
              Garib Nawaz Nagar, near
              Shitala Mata Mandir, Nagpur.        ..... Appellant.

                                   :: V E R S U S ::

              1. State of Maharashtra,
              through the officer-in-charge,
              Police Station Lakadganj, tahsil-
              Nagpur, district - Nagpur.

              2. Victim XYZ,
              Crime No.68/2022,
              P.S.Lakadganj, Nagpur.              ..... Respondents.

              Mrs.Meena Hiwase, Counsel for the Appellant.
              Mrs.Swati Kolhe, Additional Public Prosecutor for the
              Respondent No.1/State.
              Ms.F.N.Haidari, Counsel Appointed for Respondent No.2/
              Victim.

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 04/03/2025
              PRONOUNCED ON : 07/04/2025

              JUDGMENT

.....2/-

Judgment

384 apeal334.23

1. By this appeal, the appellant (the accused) has

challenged judgment and order dated 28.3.2023 passed

by learned Extra Joint District Judge and Additional

Sessions Judge, Nagpur (learned Judge of the trial court)

in Special (POCSO) Case No.155/2022.

2. By the said judgment impugned, the accused is

convicted for offence under Section 376(3) of the IPC and

and sentenced to undergo rigorous imprisonment for 20

years and to pay fine Rs.5000/-, in default, to undergo

rigorous imprisonment for two months.

3. Brief facts of the prosecution can be summarized as

follows:

The victim girl aged about 14 years is adopted

daughter of the informant as she was taken in adoption in

the year 2015 and her date of birth is 20.12.2008. At the

relevant time, the victim girl was studying in 9 th Std. in

.....3/-

Judgment

384 apeal334.23

Vidya Niketan Shala, Nagpur. On 3.2.2022, at about

11:30 am, the informant had gone to Itwari Post Office

and Bank and her husband left the house to attend the

office. The victim girl was only present at the home. At

about 3:00 pm, when the informant returned back to

home, she found that the victim girl was not at home and,

therefore she searched for her, but she could not trace her.

Therefore, she lodged a missing report at Lakadganj

Police Station against unknown persons. Initially, the

offence was registered under Section 363 of the IPC. The

victim girl was traced from her mobile location and it was

revealed that she proceeded to Mumbai. Finally, she

found at Mumbai by Mumbai Police along with the

accused. The victim girl and the accused are brought to

Nagpur. On recording her statement and on her medical

examination, involvement of the accused was found in

sexual assault. Accordingly, the offence was registered

.....4/-

Judgment

384 apeal334.23

under Sections 376(3) and 376(2)( i) of the IPC and 4 of

The Protection of Children from Sexual Offences Act,

2012 (the POCSO Act). After completion of the

investigation, the chargesheet was submitted against the

accused.

4. Learned Judge below framed charge vide Exh.2

which was modified vide Exh.51. In support of the

prosecution case, the prosecution has examined in all 7

witnesses namely :

     PW                Names of Witnesses                 Exh.
     Nos.                                                 Nos.


      3      Nilkanth Pandharinath Larokar, pancha         15
             on spot panchanama and memorandum
             statement of the accused






                                                           .....5/-
 Judgment

                                                384 apeal334.23

5. Besides the oral evidence, the prosecution placed

reliance on report Exh.5, FIR Exh.6, letter written by the

the victim girl Exh.9, statement of the informant under

Section 164 Exh.11, memorandum statement of the

accused Exh.16, spot panchanama Exh.17, medical

certificate Exh.13, letter to the Medical Officer Exh.20,

spot panchanama Exh.24, birth extract Exh.28, birth

certificate Exh.29, general diary entry Exh.35, letter to

the Medical Officer Exh.36, property seizure Exh.41,

arrest panchanama Exh.43, property seizure memo

Exh.44, letter to CA Exh.45, and sexual assault report

Exh.47.

6. On the basis of the said oral as well as

documentary evidence, the prosecution claimed that it

has established the case against the accused.

.....6/-

Judgment

384 apeal334.23

7. The defence of the accused is of total denial and of

false implication. All the incriminating evidence was put

to the accused in order to obtain explanation regarding

the evidence appearing against him.

8. After hearing both the sides and perusing of the

evidence and appreciating the same, learned Judge of the

trial court held the accused guilty as the aforesaid.

9. Heard learned counsel Mrs.Meena Hiwase for the

accused, learned Additional Public Prosecutor Mrs.Swati

Kolhe for the State, and learned counsel Ms.F.N.Haidari

appointed for the victim. They have taken me through

the entire record and proceedings of the case.

10. Learned counsel for the accused submitted that the

accused is prosecuted of the offence under Section 4 of

the POCSO Act. However, the age of the victim girl is not

proved. There is no cogent and reliable evidence as to the

.....7/-

Judgment

384 apeal334.23

age of the victim girl. The evidence of PW5 Dr.Atikukar

Khan shows that as per the order of the District Judge,

Nagpur, the entry of birth was taken. As the exact

information as to her age was not with the investigating

agency, it was obligatory on the part of the investigating

officer to refer her for ossification test which is not carried

out. Thus, the evidence adduced by the prosecution is

not sufficient to prove the age of the victim girl. She

further submitted that as per the evidence of the victim

girl, it was she who left her parents house by calling the

accused and went along with him. Therefore, ingredients

of Section 363 of the IPC are also not established. As to

the physical relationship, only one incident is narrated by

her and her evidence is vague as to the sexual assault by

the accused on her. She is unable to tell the details about

the said incident. The medical report only shows that

hymen was torn at 8 O'clock position and old tear. The

.....8/-

Judgment

384 apeal334.23

victim girl further admitted during the cross examination

that she was having love affair with the accused and as

she was fed up with the quarrels between her parents, she

left the house. Thus, the evidence shows that due to the

love affair between her and the accused, she called the

accused and joined his company. Thus, the prosecution

failed to prove the charges against the accused, however

learned Judge of the trial court has not considered the

same and convicted the accused. In support of her

contentions, she placed reliance on the decision in the

case of Ashik Ramjaii Ansari vs. State of Maharashtra and

anr, reported in 2023 SCC OnLine Bom 1390.

11. Per contra, learned Additional Public Prosecutor for

the State submitted that at the relevant time the victim

girl was only 14 years of age and, therefore, her consent

is not relevant. It was the accused who has taken her and

prior to the incident of taking the victim girl, he had also

.....9/-

Judgment

384 apeal334.23

developed physical relationship with the victim girl. The

evidence of the victim girl corroborated by the medical

evidence establishes the guilt of the accused and,

therefore, no interference is called for.

12. Learned counsel for the victim girl endorsed the

same contentions and submitted that the appeal is devoid

of merits and liable to be dismissed.

13. The allegations against the accused is that he

kidnapped the victim girl from lawful guardianship of her

parents and also subjected her for sexual assault. As far

as the offence of kidnapping is concerned, the prosecution

has to establish that at the relevant time the victim girl

was below 18 years of age and she was taken by the

accused from lawful guardianship of her parents.

.....10/-

Judgment

384 apeal334.23

14. Section 359 of the IPC deals with the offence of

"kidnapping" which is of two types: kidnapping from

India and kidnapping from lawful guardianship.

15. In view of Section 361 of the IPC, whoever takes or

entices any minor under sixteen years of age if a male, or

under eighteen years of age if a female, or any person of

unsound mind, out of the keeping of the lawful guardian

of such minor or person of unsound mind, without the

consent of such guardian, is said to kidnap such minor or

person from lawful guardianship.

16. Thus, the prosecution has to prove that the victim

girl was below 18 years of age at the relevant time.

17. To prove the age, the prosecution mainly placed

reliance on the evidence of PW1 the mother of the victim

girl who disclosed that the birth of the victim girl is

.....11/-

Judgment

384 apeal334.23

20.12.2008. The victim girl has also narrated her birth

date as 20.12.2008.

18. PW5 Dr.Atikukar Khan, was serving as Medical

Officer in Nagpur Municipal Corporation and having

charge as Deputy Registrar Births and Deaths Registration

Department. As per his evidence, as per the direction of

the District Judge, Nagpur, in Criminal Application

No.471/2015, the birth date of the victim girl was

registered. Accordingly, the entry was taken on the basis

of the order passed by the District Court. He has

produced on record the birth registration extract Exh.28

and birth certificate Exh.29. During cross examination,

also he admitted that the entry was taken as per the

direction of the District Court, but exactly when the birth

was occurred, he is unable to state.

.....12/-

Judgment

384 apeal334.23

19. As far as the mother of the victim girl is concerned,

she is not cross examined on the birth date of the victim

girl. The victim girl is also not cross examined as to her

birth date. Admittedly, the radiological examination of

the victim girl was not carried out.

20. As per Rule 9 of the Maharashtra Births and Deaths

Registration Rules 1976, this certificate is issued by the

Sub Registrar acting under the provisions of the

Registration of Births and Deaths Act, 1969.

21. Rule 12(3) of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 reads thus:

"Rule 12(3) : In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a) i. the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

.....13/-

Judgment

384 apeal334.23

ii. the birth certificate given by a corporation or a municipal authority or a panchayat;

iii. the matriculation or equivalent certificates, if available;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.

22. In the light of the above legal position, the birth

entry taken by PW5 Dr.Atikukar Khan is merely on the

basis of direction issued by the District Judge. The exact

age of the victim girl was not brought on record by the

prosecution. In the above circumstances, it was

obligatory on the part of the investigating agency to carry

out her radiological examination as the victim girl was

below 14 years of age and was studying in 9th Std..

Therefore, matriculation certificate was not available.

.....14/-

Judgment

384 apeal334.23

Her birth certificate or the entry in school wherein she

was firstly admitted is also on the basis of direction given

by the court.

23. Thus, when actually birth of the victim girl

occurred was not evident from the record. Thus, the age

of the victim girl is not proved by the prosecution.

24. Now, let us examine the evidence of the victim girl

as to whether she was taken by the accused from the

lawful guardianship of her parents.

25. Perusal of the evidence of the victim girl reveals

that on 3.2.2022 she left the house and before leaving the

house, she wrote a letter to her mother which is at Exh.9.

In absence of her mother, she called the accused and the

accused came by auto-rickshaw and, therefore, she left

with the accused and proceeded towards Mumbai. Her

cross examination shows that there used to be frequent

.....15/-

Judgment

384 apeal334.23

quarrels between the parents and, therefore, she was fed

up and she went along with the accused on her own. The

accused came along with her to assist her. She specifically

admitted during cross examination that the accused has

not subjected for sexual assault when she proceeded with

him at Mumbai. Thus, the evidence of the the victim girl

shows that it was she who called the accused and joined

his company by leaving the house on her own. The letter

written by her also shows that as she was fed up with the

frequent quarrel between her parents, she is leaving the

house.

26. To prove the offence under Section 363 of the IPC,

"taking" or "enticing" away a minor out of the keeping of

a lawful guardian is an essential ingredient of the offence

of "kidnapping".

.....16/-

Judgment

384 apeal334.23

27. The definition of Section 361 of the IPC shows that

"taking" or "enticing" away a minor out of the keeping of

lawful guardian is of the offence of "kidnapping". What

amounts to "taking" is dealt with by the Hon'ble Apex

Court in the case of S.Varadrajan vs. State of Madras,

reported in AIR 1965 SC 941 wherein it is held that when

the victim girl (who though a minor had attained the age

of discretion and is on the verge of attaining majority and

is minor college student) herself telephoned to the

accused to meet her in his car at a certain place, went up

to that place and finding him waiting in the car got into

that car of her own accord and the accused takes her to

various places and ultimately to the Sub Registrar's Office

where they got an agreement to marry registered and

there is no suggestion that this was done by force or

blandishment or on the part of the accused but it is clear

from the evidence that insistence of marriage came from

.....17/-

Judgment

384 apeal334.23

her side. The accused by complying with her wishes can

by no stretch of imagination be said to have taken her out

of the keeping of her lawful guardian. The fact of her

accompanying the accused is quite consistent with her

own desire. there is a distinction between "taking" and

allowing a minor to accompany a person. The two

expressions are not synonymous though we would like to

guard ourselves from laying down that in no conceivable

circumstance can the two be regarded as meaning the

same thing for the purposes of Section 361 of the Indian

Penal Code. Where the minor alleged to have been taken

by the accused person left her father's protection knowing

and having capacity to know the full import of what she

was doing voluntarily joins the accused person, the

accused cannot take her away from keeping of her lawful

guardianship. Something more has to be shown in a case

of this kind and that is some kind of inducement held out

.....18/-

Judgment

384 apeal334.23

by the accused person or an active participation by him in

the formation of the intention of the minor to leave the

house of the guardian.

28. In the light of the aforesaid legal position, if the

evidence of the victim girl is appreciated, it shows that

she has called the accused by making a telephone call and

at her own she left the lawful guardian of her parents and

joined the company of the accused. Thus, ingredient

"taking" is not established by the prosecution.

29. The accused is further charged for the offence

punishable under Section 376(2)(i) of the IPC. As per the

allegations, in absence of the parents, the accused used to

come to her house and by taking her at Koradi, subjected

her for sexual assault. The evidence of the victim girl, as

far as sexual assault is concerned, is not helpful to the

prosecution to establish the charge. The only evidence

.....19/-

Judgment

384 apeal334.23

available is of the victim girl who narrated the incident

and deposed that once the accused has taken her at

Koradi and subjected her for sexual assault, but the

evidence is vague in nature as she has not narrated

exactly when the alleged incident has taken place. She

has not disclosed the said incident to anybody till

recording of her statement. Her Chief Examination itself

shows that the accused has shared his mobile number to

her, she used to communicate with him and she fell in

love with him. Her cross examination also shows that she

herself has left the house and went along with the

accused at Mumbai, but the accused had not developed

any physical relationship with her when she was taken at

Mumbai.

30. To corroborate the version, the prosecution has

placed reliance on the evidence of PW4 Medical Officer

Dr.Trupti Wankhede. As per the evidence, the victim girl

.....20/-

Judgment

384 apeal334.23

was referred to her for medical examination on

23.2.2022. She examined the victim girl. The victim girl

narrated history that she is having love affair with the

accused and she had gone with him at Mumbai. She

denied any history of any sexual relationship. On genital

examination, she observed old healed hymen tear at 8:00

O'clock position and opined that possibility of sexual

intercourse cannot be ruled out. During her cross

examination, she admitted that hymen can be torn by any

reason apart from sexual intercourse. She has given

provisional opinion as to the sexual relationship.

31. PW3 Nilkanth Larokar, acted as pancha on spot

panchanama and memorandum statement of the accused,

has shown the spot of incident. Admittedly, the said spot

panchanama was drawn after a long period of the alleged

incident as exact date of incident is neither stated by the

.....21/-

Judgment

384 apeal334.23

victim girl nor disclosed by the accused and no

incriminating evidence is found at the spot panchanama.

32. The evidence of PW6 Rita Meshram shows that she

had been to Mumbai to bring the victim girl at Nagpur as

she was deputed by investigating officer.

33. The evidence of PW7 Disha Patil is also formal in

nature.

34. Although it is true that in the case of "rape"

conviction can be made on the sole testimony of the

prosecution, as her evidence is in the nature of an injured

witness, which is given a very high value, but when a

person is to be convicted on the testimony of sole witness,

the utmost care is to be taken and the testimony of such

witness must inspire the confidence. It is true that in a

"rape" case the accused could be convicted on the sole

testimony of the victim, if it is capable of inspiring of

.....22/-

Judgment

384 apeal334.23

confidence in the mind of the court. If the version given

by the victim is unsupported by any medical evidence or

the whole surrounding circumstances are highly

improbable and belie the case set up by the prosecutrix,

court shall not act on the solitary evidence of the victim.

The courts shall be extremely careful in accepting the sole

testimony of the prosecutrix when the entire case is

improbable and unlikely to happen.

35. Here, in the present case, the evidence of the

victim girl narrates a single incident of sexual assault

which is also vaguely stated by her. The evidence of the

victim girl is not corroborated by independent material as

far as the sexual assault is concerned.

36. Learned Additional Public Prosecutor for the State

vehemently submitted that statutory presumption under

Section 29 of the POCSO Act is absolute. The date of

.....23/-

Judgment

384 apeal334.23

birth of the victim girl is duly proved and is indeed not

challenged by the accused and the victim girl and,

therefore, she is child within the meaning of Section 2(d)

of the POCSO Act. Whereas, learned counsel for the

accused submitted that contention of learned Additional

Public Prosecutor for the State that statutory presumption

under Section 29 of the POCSO Act which is absolute

deserves to be rejected as the age of the victim girl is not

established and to attract the presumption foundational

facts are to be established. The statutory presumption

under Section 29 of the POCSO Act must be understood

and tested on the anvil of the golden thread which runs

through the web of the criminal jurisprudence system in

this country that an accused is presumed to be innocent

till the guilt is conclusively established beyond reasonable

doubt.

.....24/-

Judgment

384 apeal334.23

37. In the present case, the evidence brought on record

is insufficient to prove the offence of "kidnapping" as well

as to prove the offence of "sexual assault". Mere

suspicion is not sufficient as it is not substitute of proof.

There is difference between "might have committed" and

"must have committed" as it has to be bridged by the

prosecution by unimpeachable and inspiring evidence

which is absent in the present case.

38. On appreciation of the evidence, benefit of doubt

goes to the accused as the prosecution failed to establish

the charges. In this view of the matter, I proceed to pass

following order:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 28.3.2023 passed by

learned Extra Joint District Judge and Additional Sessions

.....25/-

Judgment

384 apeal334.23

Judge, Nagpur in Special (POCSO) Case No.155/2022 is

hereby quashed and set aside.

(3) The accused is acquitted of offences for which he is

charged and convicted.

(4) The accused shall be released from the jail forthwith,

unless his custody is required in any other case.

(5) Fees of learned counsel Ms.F.N.Haidari appointed for

respondent No.2/victim be quantified and the same be

paid to her as per rules.

Appeal stands disposed of.