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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sadhana S. Jadhav, J.
Gorakshya Arjun Mahakal - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 632 of 2015
Decided On : 13-03-2019
Indian Penal Code - Section 376 - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Rigorous imprisonment – Appeal against conviction – First Information Report - Whether statement of is truthful and inspires confidence of Court - It is case of prosecution that alleging therein that her father is working in Municipal Council in Water Department - When she failed in her standard examination she joined Karta Computer Class at to complete computer class was at a distance - From her house - Present appellant was residing in same locality and appellant were friends since more than one year - On some occasions appellant used to drop her to on his motorcycle - According to left house at - To attend her class by foot - When she had reached her friend and asked her to accompany him on his motorcycle - She obliged him - Then they had - He proposed her - Then they had been they had checked-in room of hotel and according to she was ravished by appellant accused against her wish - Thereafter he had dropped her in front of - According to she returned to her house and disclosed incident to her mother and thereafter her parents had taken her to and report was lodged against appellant accused for offences punishable under Section 376 of Indian Penal Code, 3(1)(11) of Scheduled Casters and Scheduled Tribes Prevention of Atrocities Act and 3 and 4 of Protection of Children from Sexual Offences Act – Held, Accused was arrested on and continues to be in custody since then - In course of investigation call records of appellant accused was obtained from service provider and call records would indicate that at relevant time appellant-accused was at and he was not at as alleged by. In fact was in company of appellant time she was dropped home by appellant/accused - Medical records would show that statement of was recorded by history as alleged by was that there was alleged sexual assault by known person - Upon perusal of records and proceedings it is seen that Class had maintained attendance register which would show that had not attended class after registration of First Information Report hotel records would show that they were in lodge - Upon perusal of records and statements of witnesses it is more than clear that appellant and were in love and said relationship was not approved by family which led to registration of First .Information .Report in present case - There are deliberate omissions and contradictions in depositions of which is clearly indicate that there is suppression of genesis of incident - Evidence of does not inspire confidence - It therefore cannot be believed that she had missed class and had met appellant accused in course of day - According to had returned home - Papers of investigation would indicate that appellant was in love with and relationship was opposed by parents of and that has led to initiation of criminal prosecution - Fact that had voluntarily missed classes and decided to accompany him would be sufficient to indicate that she was not forced to accompany appellant - They had spent some time in area - was carrying a cell phone with her - Appellant seemed to be so frustrated with 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 incident - Papers of investigation would further indicate that appellant felt betrayed by - That it was a love affair between two youngsters which had landed in criminal prosecution of an young boy - Appeal is allowed
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. 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. 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
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