Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 733 (BOM)

Gorakshya Arjun Mahakal v. State of Maharashtra

2019-03-13

SADHANA S.JADHAV

body2019
JUDGMENT : Sadhana S. Jadhav, J. Heard the Counsel. 2. The appellant herein is convicted for the offence punishable under Section 376 of Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO" Act) vide judgment and order dated 4th March 2015 by the Special Judge (POCSO), Kalyan and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/-, in default to suffer rigorous imprisonment for one year and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default to suffer rigorous imprisonment for one year respectively. Hence, this appeal. 3. It is the case of the prosecution that on 21st December 2013, the prosecutrix Ms. "X" lodged a report at Ambernath Police Station alleging therein that her father is working in Ambernath Municipal Council in Water Department. When she failed in her 12th standard examination, she joined Kirti Computer Class at Ambernath to complete the course of M.S.C.I.T., Tally and D.T.P. She used to attend the class at 1.00 pm. and the said computer class was at a distance of 1 km. from her house. The present appellant was residing in the same locality and the prosecutrix and the appellant were friends since more than one year. On some occasions, the appellant used to drop her to Kirti class on his motorcycle. According to the prosecutrix on 21st December 2013, she left the house at about 1.00 pm. to attend her class by foot. When she had reached Bhendipada, she met her friend i.e. the appellant and asked her to accompany him on his motorcycle. She obliged him. Then they had visited Teenzadi area. He proposed her. Then they had been to Titwala for having lunch at Akshay Hotel. At about 2.00 to 2.30 pm., they had checked-in the room of hotel and according to the prosecutrix, she was ravished by the appellant/accused against her wish. Thereafter he had dropped her in front of Jaihind Bank. Then they had visited Teenzadi area. He proposed her. Then they had been to Titwala for having lunch at Akshay Hotel. At about 2.00 to 2.30 pm., they had checked-in the room of hotel and according to the prosecutrix, she was ravished by the appellant/accused against her wish. Thereafter he had dropped her in front of Jaihind Bank. According to the prosecutrix, she returned to her house and disclosed the incident to her mother and thereafter her parents had taken her to Ambernath Police Station and report was lodged against the appellant/accused for the offences punishable under Section 376 of Indian Penal Code, 3(1)(11) of the Scheduled Casters and Scheduled Tribes (Prevention of Atrocities) Act and 3 and 4 of Protection of Children from Sexual Offences Act. 4. It is pertinent to note that in this case, the hotel owner was shown as an accused and was charged with the offence punishable under Section 376 read with 34 of Indian Penal Code. 5. The appellant/accused herein was working in the Postal Department as Postman and posted at Kalwa Post Office, District Thane. Upon completion of investigation, the charge-sheet was filed on 7th February 2014, the case was committed to the Sessions Court and registered as Sessions Case No. 20 of 2014. 6. The prosecution has examined ten witnesses to bring home the guilt of the accused. The case rests upon the evidence of prosecutrix i.e. P.W.-1 and her mother, Sou. Malan Yellapa Ghaste, PW-2.. It is pertinent to note that most of the witnesses are hostile except PW 7, 8, 9 and 10. 7. In this case, it is necessary to ascertain as to whether the statement of the prosecutrix is truthful and inspires confidence of the Court. The date of birth of the prosecutrix is 23rd October 1997 and the date of incident is 21st December 2013. It is further noteworthy that the prosecutrix had attained an age of understanding. She has stated in the F.I.R. that she was a good friend of the appellant/accused and that he used to drop her to her class on several occasions. However, the said contention is not reflected in her deposition and is elicited by way of a suggestion. The prosecutrix has stated before the Court that the timing of her class was 1.00 pm. to 6.00 pm. However, the said contention is not reflected in her deposition and is elicited by way of a suggestion. The prosecutrix has stated before the Court that the timing of her class was 1.00 pm. to 6.00 pm. At the request of the appellant/accused, she had accompanied him and they were sitting and chitchatting in Teenzadi area. He had proposed to her. She has also stated that she was lured under the garb of marriage and was taken to Akshay Lodge. There is an improvement in the deposition before the court to the extent that she had refused to marry him, whereas in the F.I.R., there is no reference to her reaction. 8. In the cross-examination, she has admitted that her father is serving in Ambernath Municipal Council in Water Supply Department. She had admitted that she could not tell the full form of MSCIT, Tally and D.T.P. She had attended the class regularly from 1st December 2013 to 29th December 2013. She has feigned ignorance as far as the profession of the appellant/accused is concerned. It is a matter of record that Kirti Class is hardly at a distance of 1 km. from her house. She has admitted that she was taken on motorcycle by the appellant/accused from Chinchpada area, Nalambi Road. She has also admitted that she had not attended Kirti Class on 21st December 2013. She had reached home at about 6.00 pm.. The appellant/accused was working as Postman since 2007. 9. Pw-2, Malan Yellapa Ghaste is the mother of the prosecutrix. Her mother has further improved the story and has deposed before the Court that the prosecutrix had disclosed to her that she was threatened by the appellant that in the eventuality she discloses the incident to her family members, he would cut her and kidnap her younger sister like her. She has admitted that the appellant belongs to Maratha community. She has also admitted that the distance between her house and computer class is 1 km. and that sometimes she used to accompany the victim to leave her at her computer class. She has categorically denied that her daughter was having any friendship with the appellant/accused. The mother has further stated that she had not given cell phone to the victim. 10. It is pertinent to note that the records of Akshay Lodge would indicate that the name of the prosecutrix was stated as Ms. She has categorically denied that her daughter was having any friendship with the appellant/accused. The mother has further stated that she had not given cell phone to the victim. 10. It is pertinent to note that the records of Akshay Lodge would indicate that the name of the prosecutrix was stated as Ms. "X" Chavan.. While registering the F.I.R., the prosecutrix has given her cellphone number "8149985452". It is further pertinent to note that in the course of investigation, the statement of the prosecutrix was not recorded under Section 164 of Cr.P.C. 11. The accused was arrested on 26th December 2013 and continues to be in custody since then. In the course of investigation, call records of cellphone of the appellant/accused was obtained from the service provider and call records would indicate that at the relevant time the appellant-accused was at Ambernath and he was not at Titwala as alleged by the prosecutrix. In fact the prosecutrix was in the company of the appellant from 1.00 pm. to 6.00 pm. i.e. till the time she was dropped home by the appellant/accused. The medical records would show that the statement of the prosecutrix was recorded by PW-9 and the history as alleged by the prosecutrix was that there was alleged sexual assault by known person. 12. Upon perusal of records and proceedings, it is seen that Kirti Class had maintained the attendance register, which would show that the prosecutrix had not attended the class on 21st December 2013 i.e. after registration of F.I.R. The hotel records would show that they were in the lodge from 1.55 pm. to 5.20 pm. 13. Upon perusal of records and the statements of the witnesses, it is more than clear that the appellant and the prosecutrix were in love and the said relationship was not approved by the family, which led to registration of the F.I.R. in the present case. There are deliberate omissions and contradictions in the depositions of PW-1 and 2, which is clearly indicate that there is suppression of genesis of the incident. The evidence of the prosecutrix does not inspire confidence. Several witnesses have turned hostile. The witness may lie, but the circumstances will not lie. 14. There are deliberate omissions and contradictions in the depositions of PW-1 and 2, which is clearly indicate that there is suppression of genesis of the incident. The evidence of the prosecutrix does not inspire confidence. Several witnesses have turned hostile. The witness may lie, but the circumstances will not lie. 14. In the first information report, the prosecutrix has categorically stated that on 20th December 2013, when the appellant had come to drop her at her class, he expressed his plan to go out of Ambernath on the next day i.e. on 21st December 2013. It therefore cannot be believed that she had missed the class and had met the appellant/accused in the course of the day. According to PW-2, the prosecutrix had returned home at about 6.00 pm. 15. The papers of investigation would indicate that the appellant was in love with the prosecutrix and the relationship was opposed by the parents of the prosecutrix and that has led to initiation of criminal prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany the appellant. They had spent sometime in Teenzadi area. The prosecutrix was carrying a cellphone with her. The appellant seemed to be so frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement under Section 313 of Code of Criminal Procedure, he has only stated that he does not wish to speak about the incident. The papers of investigation would further indicate that the appellant felt betrayed by the prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of an young boy. 16. Learned APP has assisted the Court and has stated that the distance between the tower location of Ambernath and Titwala would be about 52 kms. Perusal of the papers of investigation would clearly indicate that the story put up by the prosecution in all probabilities would not be true. It is, in these circumstances that the appeal deserves to be allowed. Hence, the following order: ORDER (I) The appeal is allowed and disposed of. Perusal of the papers of investigation would clearly indicate that the story put up by the prosecution in all probabilities would not be true. It is, in these circumstances that the appeal deserves to be allowed. Hence, the following order: ORDER (I) The appeal is allowed and disposed of. (II) The conviction of the appellant-Gorakshya Arjun Mahakal for the offence punishable under Section 376 of Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 awarded vide judgment and order dated 4th March 2015 by the Special Judge (POCSO), Kalyan is hereby quashed and set aside. (III) The appellant-Gorakshya Arjun Mahakal is acquitted of all the charges levelled against him. (IV) The appellant-Gorakshya Arjun Mahakal be released forthwith, if not required in any other offences. (V) Fine amount, if paid, be refunded to the appellant accused.