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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
V.L. Achliya, J.
Muskan w/o Shaikh Rashid @ Rafiq - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal Nos. 845, 848 & 941 of 2015
Decided On : 10-01-2017
The offence of rape also requires a mens rea on the part of accused to commit such offence. In the case in hand, no such criminal intent can be inferred on the part of accused to commit offence of rape as defined under Section 375 and made punishable under Section 376 of Indian Penal Code. Undisputedly, the accused No. 1 visited the place as a customer to have sex with the sex worker in the brothel run by accused `S`. There was no reason for accused No. 1 to conduct enquiry about the age of the prosecutrix. The evidence on record clearly shows that the prosecutrix was fully grown up girl. Even as per the case of the prosecution, the prosecutrix was at the verge of attaining the age of majority.
In such a situation, it was not expected on the part of accused No. 1 to have made enquiry with the prosecutrix about her age before having sex with her. So also, there was no reason for accused No. 1 to ascertain the age of the prosecutrix. In absence of any criminal intent on the part of accused No. 1, the act in question on his part can not be termed as an offence punishable under the law and particularly the offence under Section 376 of the Indian Penal Code. Certainly, the accused could have been prosecuted for the offence punishable under the provisions of the Immoral Traffic (Prevention) Act, 1956. In fact, initially, the FIR was registered for commission of offence under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act. While charge-sheeting accused, the charge under Section 376 of Indian Penal Code and POCSO Act been added. Besides the charge under Section 376 of the Indian Penal Code, the accused were charged under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act. However, they have been acquitted by the trial Court for offences under Immoral Traffic (Prevention) Act. The prosecution has not challenged the acquittal of accused under the said provisions of law. In this backdrop, Court has no hesitation to hold that the reasons and the findings recorded by the trial Court are not sustainable in law.
Protection of Children from Sexual Offences Act, 2012 - Sections 3 and 4-Indian Penal Code, 1860, Section 376-Evidence Act, 1872, Sections 62 and 65-Conviction for rape on minor.-In absence of any evidence to show that at time of alleged commission of offence, prosecutrix was minor in age, conviction of accused cannot be sustained.
The prosecution has not examined the parents of the prosecutrix to establish that the date of birth of prosecutrix as 19.8.1997 or 29.8.1997 and at the time of incident she was minor. In this context, the observations made by the Additional Sessions Judge are unacceptable. It is observed by the Additional Sessions Judge that as the father of the victim has deserted her mother and mother of the prosecutrix being helpless woman and so because of the registration of case under the Immoral Traffic (Prevention) Act, 1956 she might have suffered humiliation and, therefore, she was not expected to appear and give evidence before the Court. It is further observed that giving evidence and facing cross-examination in the Court is more humiliating than prostitution within four walls. Such reasonings are wholly unsustainable in law. It is pertinent to note that the prosecution has neither cited nor made any attempt to cite and examine the mother of the prosecutrix. In absence of mother of the prosecutrix cited as witness, there was no reason for the Judge to make such observations based upon his own imagination. In fact, it was a lapse on the part of the Investigating Officer to properly conduct the investigation and to collect the requisite evidence.
V.L. Achliya, J.
Being aggrieved by the Judgment and Order dated 28/10/2015 passed in Sessions Case No. 328/2014 by the learned Additional Sessions Judge, Aurangabad, the appellants have preferred these Appeals.
2. By the impugned Judgment, the appellant Ganesh @ Gorakh Tatyarao Jadhav [accused No. 1] has been convicted for the offence punishable u/s 376 of the Indian Penal Code and section 4 read with section 3 of the Protection of Children from Sexual Offences Act, 2012 [for short, 'POCSO Act'] and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/- [Rupees Two Thousand]. The appellant Nos. 2 and 3 viz. Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] and Naziya Begum w/o Shaikh Afazal [accused No.3] were held guilty of offence punishable u/s 109 of the Indian Penal Code and section 17 of the POCSO Act and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs. 2,000/- [Rupees Two Thousand] each. They were acquitted of the offences punishable u/ss 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956.
3. Brief facts leading to filing the Appeals as unfolded during the trial are summarized as under.
[i] On 17/08/2014, Ramchandra Shamrao Pawar [P.W.3], P.S.I. attached to police station CIDCO, Aurangabad lodged complaint to the effect that at about 15.30 hrs. while he was present in police station, as day officer, he received phone call whereby he was informed that in the house adjoining to "Rathi Sansar building" located in Sikandar Colony, Misarwadi, two women and one man are behaving in indecent manner and they have been caught and detained by the people from that locality. On receipt of the information, P.S.I. Pawar [P.W.3] instructed the police personnel on mobile duty as well as bit-marshal to visit the said place. After some time, the police personnel brought two women and one man to police station. On enquiry, those women disclosed their names as Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] and Diksha d/o Vijay @ Dilip Jamdade [P.W.1] [hereinafter referred as "prosecutrix"]. The man brought to police station, disclosed his name as Ganesh Tatyarao Jadhav [accused No. 1]. On enquiry with the prosecutrix, she disclosed that Muskan w/o Shaikh Rashid @ Rafiq [accused No. 2] and one woman by name Shammo [accused No. 3] had taken Rs. 700/- from Ganesh Tatyarao Jadhav [accused No. 1] and send prosecutrix to have sexual intercourse with him. Out of Rs. 700/- taken from accused No. 1, amount of Rs. 300/- was paid to her. She further disclosed that Shammo [accused No. 3] ran away from the spot. On the basis of enquiry made with the prosecutrix, P.S.I. Pawar lodged complaint. On the basis of complaint lodged by P.S.I. Pawar [P.W.3], the offences u/ss 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 came to be registered against the accused persons. After registration of offence, Prakash Pawar, Police Inspector [P.W.8] conducted investigation. He arrested accused Ganesh Tatyarao Jadhav and Muskan w/o Shaikh Rashid @ Rafiq. Ganesh Tatyarao Jadhav [accused No. 1] and the prosecutrix were referred for medical examination. During the course of investigation, the statement of prosecutrix came to be recorded on 18/08/2014. The Investigating Officer has obtained copy of school leaving certificate received from the Head Master of Saint Tukaram Primary School, Ambedkarnagar, Aurangabad showing date of birth of the prosecutrix. The muddemal was sent to the Chemical Analyzer for examination. Further investigation was then conducted by Mr. Rajkumar Dongare, Police Inspector [P.W.10]. During the course of investigation, he has recorded statements of Syed Nizamuddin [P.W.7] and few other persons and arrested accused No. 3.
[ii] On conclusion of the investigation, charge sheet was prepared and filed in the Sessions Court at Aurangabad. In the due course, the case was assigned to the file of District Judge-3 and Additional Sessions Judge, Aurangabad, who framed Charge against
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