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2019 DIGILAW 2440 (BOM)

Amol v. State Of Maharashtra

2019-11-05

V.M.DESHPANDE

body2019
JUDGMENT : V.M. Deshpande, J. The appellant, who is in jail, is challenging the judgment and order of conviction passed by the learned Judge of Special Court, Chandrapur dated 25.4.2019 in Special (POCSO) Case No.02/2018. By the impugned judgment, the appellant stands convicted for the offence punishable under Section 376(2)(i)(n) of the Indian Penal code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act" for short) and he is directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs.5,000/- and in default to suffer six months' simple imprisonment. 2. Heard Mr. Mahesh Rai, the learned counsel for the appellant and Mr. J. Y. Ghurde, the learned Additional Public Prosecutor for the respondent/State. Also perused the record and proceedings. 3. Pw9 Nilesh Sardar, Police Sub-Inspector, who was attached to Police Station, Korpana on 24.9.2016, registered the offence on the basis of oral report (Exh.15) lodged by the victim (PW1) herself vide Crime No. 231/2016. The printed first information report is at Exh.16. As per the oral report, the victim at the relevant time was taking education in 10th standard and the appellant was residing along with his grand-mother after death of his mother. The house of the appellant is just adjacent to the house of the victim. As per the report, since last 2-3 years, the victim used to visit the house of the appellant for watching television and at that time the appellant used to touch her body. Though, it was objected, he continued to touch to her body. It is stated that prior to one year of lodging the report when the victim had been to the house of the appellant in the afternoon for watching television, nobody was present there and that time the appellant established sexual relations with the victim. It is also stated in the first information report that continuance of sexual intercourse remained for about one year. Since, the victim was not having his menstrual period, she was taken to Dr. Hiradevi. After examining the victim, said Doctor declared that she is pregnant and carrying pregnancy of six months. On that when mother of the victim asked as to who is responsible for the same, as per the report the victim disclosed that the appellant is the person who was having sexual relation with her. Hiradevi. After examining the victim, said Doctor declared that she is pregnant and carrying pregnancy of six months. On that when mother of the victim asked as to who is responsible for the same, as per the report the victim disclosed that the appellant is the person who was having sexual relation with her. The report further states that thereafter, the victim started residing with the appellant in his house and for three good months she resided with him, however on 31.8.2016, the appellant went to Wani in search of work and thereafter he did not return and therefore, the report was lodged. 4. Part investigation of the crime was done by PW9 PSI Nilesh Sardar and part investigation was done by PW8 PI Panjabrao Parghane of Police Station, Korpana. The appellant was arrested under arrest memo (Exh.45) on 05.11.2017 and since then he is in jail. The victim was examined by Dr. Dipti Shrirame (PW4) on 26.9.2016. That time she found that the victim was carrying pregnancy of nine months. On 02.10.2016, the victim delivered a male child. 5. The Investigating Officer took necessary steps for obtaining blood samples of the victim, her newly born baby as well as of the appellant for DNA test. Exh.64 is the report of Forensic Science Laboratory which shows that control DNA profile was obtained from blood samples of the victim and her baby. Exh.65 is the requisition to the Medical Officer of Government Hospital at Chandrapur for obtaining blood sample of the victim, whereas Exh.66 is the requisition to the Medical Officer for obtaining blood sample for DNA test of her baby. Exh.57 is the DNA report. It shows that the DNA extracted of the appellant, victim and baby in DNAn855/16 was typed at 15 STR LOCI and gender specific Amelogenin locus using PCR Amplification technique. The DNA report shows that the appellant and the victim are concluded to be the biological parents of newly born child. 6. In view of the the aforesaid report (Exh.57), it is clearly established that the appellant had sexual relations with the victim and from such relations, the victim delivered the male child. 7. The submission of the learned counsel for the appellant is that the prosecution has not proved that the victim was below the age of extending consent. 6. In view of the the aforesaid report (Exh.57), it is clearly established that the appellant had sexual relations with the victim and from such relations, the victim delivered the male child. 7. The submission of the learned counsel for the appellant is that the prosecution has not proved that the victim was below the age of extending consent. His submission is that the evidence of the victim would show that she was a consenting party for the sexual intercourse. 8. In view of the submission made by the appellant, which is opposed by the learned Additional Public Prosecutor, the questions that this Court is required to answer are - (1) whether the prosecuting agency has prove its case beyond reasonable doubt that the victim was born on 29.4.2001 ; and (2) whether the prosecution has proved the said date of birth conclusively with the help of birth certificate (Exh.34). 9. Though, the victim was taking education in 10th standard at Jawaharlal Nehru Vidyalaya, Awarpur as it is disclosed in the first information report, no document from the school authority is placed on record to throw light as to what is the date of birth of the victim. 10. In the oral report (Exh.15), the victim has not disclosed her date of birth. She disclosed her date of birth as 29.04.2001 during her evidence. The victim has also admitted that she was not aware of her date of birth and therefore, she did not disclose the date of birth to the Medical Officer. Smt. Savita, mother of the victim is examined as PW3. The mother is also conspicuously silent in her entire evidence about the date of birth of her daughter i.e. the victim, though she disclosed the date of birth of her son. 11. In my view, much importance cannot be given to the date of birth which the victim has disclosed as 29.4.2001 during her evidence because in her cross-examination she has stated as under : "I lodged the report on the suggestion of my mother. Police asked me to state such date of birth so that I come under 16 years." 12. In view of the aforesaid nature of evidence as appearing in the version of the victim, it would be hazardous to rely upon the statement of the victim about the date of birth. Police asked me to state such date of birth so that I come under 16 years." 12. In view of the aforesaid nature of evidence as appearing in the version of the victim, it would be hazardous to rely upon the statement of the victim about the date of birth. Further, when the victim was taken to the hospital for her medical examination, she did not disclose her date of birth. Therefore, in Exh.38, column of date of birth is blank. Dr. Dipti Shrirame (PW4) did state in her evidence that the victim was not aware about her date of birth and therefore, it is missing. Exh.23 is the requisition given by the Investigating Officer to the Medical Officer in which to determine the age, it was requested that ossification test be conducted. Answer to the queries show that it was advised that ossification test could be conducted after delivery. However, even after the delivery, no steps were taken by the prosecuting agency for conducting ossification test of the victim for determination of her age. 13. Insofar as documentary evidence is concerned, the prosecution is relying on Exh.34. This document is proved by PW6 Akash Kalamkar, a Gram Sewak. He is not the author of this document. Perusal of Exh.34 would show that the name of newly born child is corrected. Even that aspect is admitted by PW6. Though it was expected from the prosecuting agency to offer explanation as to under what circumstances there took correction in the name, no such explanation is offered during the evidence of this prosecution witness. Further, though Exh.34 is having column of signature of a person who gave intimation about the birth, the said column is also found to be blank. In view of this, I am of the opinion that it will be hazardous to rely on this document as the last word in respect of date of birth of the victim. 14. In view of the aforesaid, I am of the view that the prosecution has not proved that the victim was born on 29.04.2001 as claimed by her. 15. Evidence of the victim would show that she was in love with the appellant. Not only that, she stayed in his house as his wife and the Tanta Mukti Mandal in the village also approved their status as husband and wife. 15. Evidence of the victim would show that she was in love with the appellant. Not only that, she stayed in his house as his wife and the Tanta Mukti Mandal in the village also approved their status as husband and wife. It is the version of the victim that the appellant has also accepted her as his wife before the Tanta Mukti Mandal. 16. Evidence of the victim would show that she was a consenting party and with her consent only the sexual relations between the appellant and the victim took place resulting into delivery of male child. Since, the prosecution has not proved its case beyond reasonable doubt about the date of birth of the victim to show that the victim was below the age of extending consent, in my view, the appellant is entitled to be acquitted by quashing the judgment and order of conviction. Consequently, I pass the following order : ORDER 1. The criminal appeal is allowed. 2. The judgment and order of conviction passed by the learned Judge of Special Court, Chandrapur dated 25.4.2019 in Special (POCSO) Case No.02/2018, is hereby quashed and set aside. 3. Appellant - Amol s/o Raju Nindekar is acquitted of the offence punishable under Section 376(2)(i)(n) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012. 4. The appellant, who is in jail, be released from jail forthwith, if not required in any other crime. 5. With this, the appeal is allowed and disposed of.