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2021 DIGILAW 68 (BOM)

Prakash v. State of Maharashtra

2021-01-13

PUSHPA V.GANEDIWALA

body2021
JUDGMENT : PUSHPA V. GANEDIWALA, J. 1. This is an appeal against judgment and order passed by the Sessions Court, Nagpur in Special Child Cri. Case No. 37/2018 dated 29/09/2020 against conviction of the appellant/ accused in Crime No. 328/2017 for the offence punishable under Sections 363, 366(A), 376(2)(n)(i) of the Indian Penal Code and Section 4 and 6 of the Protection of Children from Sexual Offences Act, (POCSO), 2012, registered at police station Narkhed, Distroct Nagpur. 2. For the offence punishable under Section 363 of the Indian Penal Code, the appellant/ accused is sentenced to undergo S.I. for one year and fine of Rs. 500/- in default sentence for one month. 3. For the offence punishable under Section 376 of the Indian Penal Code, the appellant/ accused is sentenced to undergo R.I. for seven years and to pay fine of Rs. 1000/- in default sentence for one month. 4. For the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act (POCSO), 2012, the appellant/accused is sentenced to undergo R.I. for seven years and fine of Rs. 500/- in default S.I. for one month. 5. For the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act (POCSO), 2012, the appellant/accused is sentenced to undergo R.I. for ten years and fine of Rs. 1000/- in default R.I. for one month. All the sentences are directed to run concurrently. 6. The prosecution case, in brief, is as under: The informant - Smt. Chhaya Sonone is the mother of the prosecutrix. On 21/10/2017, she lodged a report at police station, Sawargaon stating therein about missing of her daughter (prosecutrix - name kept undisclosed) and she had a doubt that the appellant/accused must have kidnapped her from her legal custody. Initially, F.I.R. (Exh.17) came to be registered under Section 363 of the Indian Penal Code, 1860 (for short IPC) against the appellant/accused. On the basis of tower location, the prosecutrix and the appellant/accused were brought from Rajasthan by the police. The statement of the prosecutrix was recorded and on that basis, Section 376 of the IPC and other provisions of POCSO Act came to be added against the appellant/accused. Both the accused and the prosecutrix were sent for medical examinations. The statements of witnesses were recorded. The birth certificate of the prosecutrix (Exh.13) showing her date of birth as 08/04/2001 was obtained. Both the accused and the prosecutrix were sent for medical examinations. The statements of witnesses were recorded. The birth certificate of the prosecutrix (Exh.13) showing her date of birth as 08/04/2001 was obtained. After investigation, charge-sheet came to be filed before the Court of Magistrate, who in its turn, committed the case to the Court of Sessions. The Court of Sessions framed charge (Exh.5) against the appellant/accused for the offence punishable under Sections 363, 366A, 376(2)(i)(j)(n) of the IPC, and Sections 4 and 6 of the POCSO Act. The charge was read over and explained to the appellant/accused, to which he pleaded not guilty and claimed to be tried. The plea of the accused was recorded. 7. To substantiate the charge against the appellant/accused, prosecution examined in all four witnesses and also brought on record necessary documents. The trial Court recorded statement of the appellant/accused under Section 313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.). After hearing both the parties, the trial Court found that the prosecution could establish its case beyond reasonable doubt and passed the judgment of conviction and sentenced the appellant/accused as above. This judgment is impugned in the instant appeal. 8. I have heard Shri Bawangade, learned counsel for the appellant/accused, and Shri Dubey, learned Additional Public Prosecutor for the respondent-State. I have also perused the record with the assistance of learned both the counsel appearing on behalf of both the sides. 9. At the outset, it is a case of love affair between the appellant/accused and the prosecutrix, who, at the relevant time, were of age 23 years and 16½ years respectively. 10. The prosecutrix was examined as PW-1 (Exh.12). In her testimony, she testified that the appellant/accused was working as a truck driver and she used to talk with him on phone. In October 2017, there developed love affair between them, and thereafter, the appellant/accused has proposed her for marriage. She further deposed that on 16/10/2017, at around 5.00 O’clock in the morning, she along with her friend - Sangita with an intention to run away from the house, made a call to the appellant/accused on his mobile, and he suggested her to come at Jaipur station, and he will come to receive her. 11. On the next day, she at her own at 9.00 a.m. reached at Sawargaon bus stand. 11. On the next day, she at her own at 9.00 a.m. reached at Sawargaon bus stand. From there she went to Pandhurna and took a train to Jaipur at 1.00 p.m. In between, she was in contact with the appellant/accused. On the next day i.e. on 17/10/2017, she reached Jaipur railway station and the appellant/accused had come to receive her. 12. She further testified that the appellant/accused took her at his elder sister’s house at Kawlar and maintained physical relations with her. On the next day, he took her at maternal aunt’s house. They stayed there for two days and he maintained physical relations with her on the pretext of marriage. She further testified that on 22/10/2017, the appellant/accused took her at his grandmother’s (maternal) house at Kalwa, and he maintained physical relations. They stayed there up to 06/11/2017, and on the same day, Narkhed police came and brought them at Makrana police station, and from there they were brought at Narkhed police station. 13. Smt. Chhaya Sonone PW-2, the informant, mother of the prosecutrix, her testimony is only with regard to missing of the prosecutrix. 14. Dr. Monika Akare PW-3, is the Medical officer, who examined the prosecutrix and gave opinion that there was no recent sexual intercourse, however, considering her medical examination, it appears that she is habitual to sexual intercourse. Shri Ramesh Tajne PW-4 is the Investigating officer. 15. The appellant/accused in his statement, which was recorded under Section 313 of Cr.P.C. denied any incident of sexual intercourse with the prosecutrix. He said that the prosecutrix at her own came to Jaipur. That she wanted to marry him and, therefore, she came to Jaipur. There was no objection for the marriage to the family of the appellant/accused, however, the brother of the prosecutrix was against this marriage. 16. Shri Bawangade, learned counsel appearing on behalf of the appellant/accused, submits that the prosecution could not prove, beyond reasonable doubt, that at the relevant time, the prosecutrix was minor. There was no objection for the marriage to the family of the appellant/accused, however, the brother of the prosecutrix was against this marriage. 16. Shri Bawangade, learned counsel appearing on behalf of the appellant/accused, submits that the prosecution could not prove, beyond reasonable doubt, that at the relevant time, the prosecutrix was minor. It is submitted that though the birth certificate (Exh.13) was produced on record, and it came to be exhibited, being a public document, however, mere production of this document, without any supporting material, the age of the prosecutrix cannot be said to be have been proved beyond reasonable doubt so as to convict the appellant/accused for sentence of ten years, when it is a case of love affair between the parties. Learned counsel also pointed out some discrepancies in order to show that how the birth certificate cannot be believed. Learned counsel also placed reliance on the following judgment in support of his arguments: (i) Pramod Dattatraya Jadhav vs. State of Maharashtra, 2019 All MR (Cri) 1742 (ii) Ravi Anandrao Gurpude vs. State of Maharashtra, 2017 All MR (Cri) 1509 17. As against this, learned Additional Public Prosecutor, strongly supports the judgment and order of conviction of the learned trial Court. Learned APP submits that the birth certificate, being the public document issued from the custody of Public Officer as per law, is admissible in evidence. The accused enticed a minor girl for elopement on the pretext of marriage and established physical relations with her. Learned APP urges for dismissal of the appeal. 18. I have considered the submissions made on behalf of both the sides. 19. At the outset, the case of love affair between the appellant/accused and the prosecutrix is not disputed at all. The only question which needs consideration is with regard to the incident of sexual intercourse between the parties and the age of the prosecutrix if sexual intercourse is proved. On the point of sexual intercourse, apart from the testimony of the prosecutrix, there is no other substantive material. 20. In the testimony of the prosecutrix, she has stated that the appellant/accused maintained physical relationship with the prosecutrix at various places i.e. at the house of elder sister of the appellant/accused, at the house of his maternal aunt and at the house of his grand mother. 20. In the testimony of the prosecutrix, she has stated that the appellant/accused maintained physical relationship with the prosecutrix at various places i.e. at the house of elder sister of the appellant/accused, at the house of his maternal aunt and at the house of his grand mother. The minimum sentence prescribed in Section 4 of the POCSO Act is 10 years imprisonment and that maximum is for life imprisonment. 21. Considering the seriousness of the punishment, in the opinion of this Court, the sole testimony of the prosecutrix should be of sterling quality and with all details with regard to the incident. She states that he maintained physical relations with her wherever he took her while she was with him in Rajasthan. She does not narrate the details of the incident as to how could they got privacy, the presence of other members of the house, how did the other members of the house permitted them, in which room they slept, how many rooms were there in the house so that they could get privacy, at what time they slept, at what time and under what circumstances he committed rape etc. 22. Apart from this, none of the witnesses have been examined by the prosecution, in whose houses the appellant/accused allegedly kept the prosecutrix during the period they spent at Jaipur. Their testimony would have been the best evidence before the court. The age of the appellant/accused, at the relevant time was 22 years. A boy of young age, nourishing his desire to marry with the prosecutrix. The police came and brought them at Narkhed police station and since then he is in custody. 23. No doubt, as per provisions of the IPC and the POCSO Act, a sexual intercourse with a girl below 18 years is a serious offence and the consent of the girl is immaterial. However, for sending the accused behind bar for minimum sentence of ten years or 20 years (in case girl in below 16 years), there ought to have been clinching and inspiring evidence before the Court with regard to rape and with regard to the age of the girl, as these both are only the decisive factors for conviction. 24. With regard to age of the prosecutrix, as per birth certificate (Exh.13), her date of birth is shown as 08/04/2001. 24. With regard to age of the prosecutrix, as per birth certificate (Exh.13), her date of birth is shown as 08/04/2001. The date of registration is shown as 05/02/2003, however, who gave the information about the date of birth of the girl is not mentioned. Nobody is examined from the office of the local body, who issued the certificate. The birth certificate was obtained during the course of investigation by the police from the office of Gram Panchayat, Sawargaon. The connecting link with regard to her date of birth as 08/04/2001 is absent. It is also not brought on record as to what was the occasion that after two years delay, the birth of the prosecutrix was reported to the local body. 25. In the case of Pramod Dattatraya Jadhav vs. State of Maharashtra, 2019 All MR (Cri) 1742, this Court took a view that mere filing of birth certificate of a person is not of any assistance to the prosecution unless and until link evidence is adduced to demonstrate that such person’s certificate relates to the female whose age is sought to be proved by the prosecution. 26. The Division Bench of this Court in the case of Ravi Anandrao Gurpude vs. State of Maharashtra, 2017 All MR (Cri) 1509, also raised doubt on the value of the birth certificate produced on record. 27. The appellant/accused in his defence while denying any incident of sexual intercourse with the prosecutrix has stated that the prosecutrix had told her age as 18 years. Therefore, on the isolated ocular testimony of the prosecutrix which is of substandard quality, it is highly illogical and irrational to sentence the appellant/accused - a young boy, aged around 22 years, with 10 years R.I. 28. For the reasons aforestated, this Court is of the firm view that the prosecution has measurably failed to prove its case beyond reasonable doubt against the appellant/accused. Hence, the following order: (i) The criminal appeal is allowed. (ii) The judgment and order of conviction passed by Sessions Court, Nagpur in Special Child Cri. Case No. 37/2018 dated 29/09/2020 is quashed and set aside. (iii) The appellant/accused stands acquitted of all the charges levelled against him. (iv) The appellant/accused who is in jail since 09/11/2017 shall be released forthwith, if he is not required in any other case. (v) The muddemal shall be disposed of if any, being worthless. Case No. 37/2018 dated 29/09/2020 is quashed and set aside. (iii) The appellant/accused stands acquitted of all the charges levelled against him. (iv) The appellant/accused who is in jail since 09/11/2017 shall be released forthwith, if he is not required in any other case. (v) The muddemal shall be disposed of if any, being worthless. Fine if paid be refunded to the appellant/accused. 29. I appreciate the efforts made by Shri Bawangade, learned counsel for the appellant and Shri Dubey, learned A.P.P. for the State, in assisting the Court in this matter. 30. The criminal appeal is disposed of accordingly.