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2015 DIGILAW 856 (BOM)

Umesh Rajabhau Khandekar v. State of Maharashtra

2015-03-26

M.T.JOSHI

body2015
JUDGMENT : M.T. Joshi, J. 1. Heard both sides. Aggrieved by the conviction and sentence recorded against the appellant/accused for the offences punishable under Section 363, 366 and 376 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, present appeal is preferred. 2. The appellant was sentenced to suffer rigorous imprisonments for various periods for the above offences. The major sentence is seven years rigorous imprisonment for the offence punishable under Section 376 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act"). All the sentences were directed to run concurrently. Various orders regarding imposition of fine and in default of payment of fine, further imprisonment, were recorded, as found in the impugned judgment. 3. The prosecution case, in short, is as under:-- "The victim of the offence, who has filed the F.I.R. (hereinafter referred to as "complainant") was born on 12th November, 1998. It is alleged that on 15th August, 2013, present appellant asked her to accompany him to Pune, therefore, she proceeded with him from Gurgaon to Pune. Both of them, firstly, reached to Murud and from Murud at 7:00 p.m., they went to Pune. The appellant used to reside at Pune since seven years prior to the alleged incident. The deposition of the mother of the complainant i.e. PW 2 - Mangal would show that the complainant and sister of the appellant were friends. Therefore, the complainant always used to visit the appellant's house at Gurgaon and therefore, the complainant and the appellant were acquainted to each other." 4. According to the complainant in the night of 16th August, 2013, present appellant committed sexual intercourse with the complainant against her will. In the meantime, a missing report was filed by the mother of the complainant with the police station at Shiradhon and therefore, ultimately, the complainant returned to the village and the complaint came to be filed at Exhibit 10 on 18th August, 2013. 5. The investigation was carried out. The Investigating officer collected school leaving certificate from PW 4 - Avinash, Headmaster of the Zilla Parishad School regarding the complainant (Exhibit 18), which would show that the date of birth of the complainant was 12th November, 1998. The complainant was sent for medical examination. PW 3 - Dr. 5. The investigation was carried out. The Investigating officer collected school leaving certificate from PW 4 - Avinash, Headmaster of the Zilla Parishad School regarding the complainant (Exhibit 18), which would show that the date of birth of the complainant was 12th November, 1998. The complainant was sent for medical examination. PW 3 - Dr. Rajashree Shingde examined the complainant on 18th August, 2013. She found that though there were no external injuries to the genitals and no semen or blood stains were found, old tear of hymen was there and therefore, the Medical Officer opined that the complainant had sexual intercourse. Since no clothes were involved or no other incriminating material could have been collected i.e. pubic hair etc. due to lapse of time, the C.A. report as regards all these articles at Exhibit 16, would show that nothing incriminating was detected by the Chemical Analyst. 6. In this scenario, before learned Sessions Judge, in all, nine witnesses were examined including the complainant, her mother, Medical Officer, panch witness and the Investigating Officer. Learned Sessions Judge found that the offence is proved beyond the reasonable doubt against the present appellant and therefore, conviction and sentence, as detailed supra, came to be recorded against the appellant. 7. Mr. Salunke, learned counsel for the appellant, submits that in the F.I.R. itself, the complainant has admitted that on her own, she had accompanied the appellant to Pune from her village, and at Pune, they resided together. Even marriage at Jejuri was performed between them. However, as the uncle of the complainant opposed the marriage, a false F.I.R. came to be filed against the appellant. 8. Mr. Salunke further submits that there is no proof that the complainant was below eighteen years of age at the time of the incident. As, all the evidence recorded would show that the complainant had accompanied the appellant on her own will, it would go to show that learned Sessions Judge has committed a mistake in convicting the appellant for rape. 9. As, all the evidence recorded would show that the complainant had accompanied the appellant on her own will, it would go to show that learned Sessions Judge has committed a mistake in convicting the appellant for rape. 9. On the other hand, learned A.P.P. submits that PW 3 - Avinash, Headmaster of the concerned school, has, on the basis of the entry in the school register, has clearly proved that the date of birth of the complainant is 12th November, 1998 and therefore, there is no escape from the fact that the complainant was 14 years and 9 months old at the time of the incident. In the circumstances, she submits that in view of the provisions of Sections 3 and 4 of the POCSO Act, there is no escape from the conviction of the appellant. 10. On the basis of the above material, following point arises for my determination:-- "Whether the prosecution has proved that on 15th August, 2013, present appellant has taken away the complainant from lawful guardianship of her parents and committed rape against her wish, being a child ?" 11. My finding to the above point is in the negative and the appeal is, therefore, allowed and the appellant is acquitted of the offences for the reasons to follow:-- REASONS 12. The appellant was 20 years of age at the time of the incident. The F.I.R. at Exhibit 10 was filed by the complainant, the victim of the offence. According to the F.I.R., the complainant was acquainted with the appellant and as she was a fast-friend of sister of the appellant, she was always on visiting terms to the house of the appellant. The appellant used to work at Pune in a company and therefore, he used to reside there and the complainant was having knowledge about the same. The appellant always used to say that he loves her and therefore, she should marry with him. In the circumstances, on 15th August, 2013, he asked her to accompany him to Pune. Thereafter, in the evening, both to them went by a bus to Murud and thereafter, by another bus they went to Pune and started residing in the room of the appellant. In the circumstances, on 15th August, 2013, he asked her to accompany him to Pune. Thereafter, in the evening, both to them went by a bus to Murud and thereafter, by another bus they went to Pune and started residing in the room of the appellant. In the night of 16th August, 2013, he committed rape on two occasions and thereafter, both of them came to know that the missing complaint came to be filed by the relatives of the complainant. Therefore, both of them were called on their mobile phones and were asked to return and therefore, both of them returned and appeared in the police station. 13. The deposition of the complainant is somewhat on the same lines, except accepting recitals in the F.I.R. that she herself and the appellant went to Murud by a bus. 14. Since the appellant suggested the complainant that she, on her own, went with him and married with him at Jejuri by exchanging garlands, and since the statement of the complainant, coupled with the medical evidence, would show that hymen had old tear, the only issue would be regarding the age of the prosecutrix. 15. The allegation made by the complainant that on 16th August, 2013, present appellant committed rape on her, is not free from doubt. The material on record would show that she, on her own, accompanied the appellant to Pune and started residing with him in a room there at. 16. As regards the age of the complainant, she deposed that she was born on 12th November, 1998. The statement of the Medical officer PW 3 - Dr. Rajashree would show that no examination regarding the age of the prosecutrix was carried. The deposition of PW 4 - Avinash, Headmaster of the school, would show that on the basis of the entry in the register of the school, he passed the certificate at Exhibit 18, to the effect that the date of birth of the complainant was 12th November, 1998. 17. During cross-examination, the Headmaster deposed that the entry in the register of the school, in normal course, is taken on the basis of the admission form filled-in by the parents of the student. The date of birth is noted in the admission form on the basis of the oral information given by the father of the girl. 17. During cross-examination, the Headmaster deposed that the entry in the register of the school, in normal course, is taken on the basis of the admission form filled-in by the parents of the student. The date of birth is noted in the admission form on the basis of the oral information given by the father of the girl. As against this evidence, the mother of the complainant namely, PW 2 -Mangal, deposed in the cross-examination, that at the time of admission of the complainant in the school, her birth certificate was supplied to the school. It means that entry of birth of the complainant exists. She further deposed that the complainant was born at Lohata i.e. maternal village of mother. According to her, her marriage was performed with the father of the complainant about 25 to 26 years ago. After two years of the marriage, she gave birth to son Vikas and two years thereafter, the complainant was born. It would, thus, mean that about 20 to 21 years prior to entering into the witness box in 2014, the complainant was born. As there was no medical evidence regarding the age of the complainant, it can be gathered, on the basis of the cross-examination of mother of the complainant, that a reasonable doubt has arisen regarding the age of the complainant. Since it has not been proved beyond the reasonable doubt that the complainant was below 18 years of age at the time of the incident, in the background of the case, as is found in the statement of the complainant, that she, on her own, went with the appellant, a reasonable doubt regarding offence of commission of rape has arisen. Learned Special Judge, on the basis of the entry in the school register, came to the conclusion that the complainant was below 18 years of age at the time of the alleged incident and therefore, the conviction came to be recorded. For the above reasons, however, a reasonable doubt has arisen as regards the age of the complainant. Hence, the following order:-- "a) The Criminal Appeal is allowed. For the above reasons, however, a reasonable doubt has arisen as regards the age of the complainant. Hence, the following order:-- "a) The Criminal Appeal is allowed. b) The judgment and order dated 24th July, 2014 in Special (Child Sex) Case No. 01 of 2014 passed by learned Special Judge, Osmanabad, for the offences punishable under Section 363, 366 and 376 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, is hereby quashed and set aside. c) The appellant is acquitted of the offences punishable under Section 363, 366 and 376 of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012. d) He be released forthwith, if not required in any other case. e) Fine amount, if deposited by the appellant, be refunded to him."