2019 Supreme(Bom) 526

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.M. Gavhane, J.
Jishan - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 713 of 2016, Criminal Application No. 6642 of 2016
Decided On : 12-04-2019

Headnote:

Indian Penal Code,1860 - Sections 109,302,498-A,376, 363, 366-A,376-D, 506, 34 - Criminal Procedure Code,1973 - Sections 164,222,313,428 - Protection of Children from Sexual Offences Act, 2012 - Sections 5(g),8,7,16,17 - Atrocities Act - Sections 3(1)(xii) ,3(2) (v) - Challenge - Appeal Against Conviction - Murder Case - Complainant (PW-2) and his daughter victim girl (PW-1) are residents of village Dist - Complainant lodged complaint/report in Police Station that his minor daughter/victim girl aged years had left home for attending her school - In recess period she had returned home as usual for lunch – Thereafter victim girl demanded to him and he gave said amount to her and at that time she was having file in her hand and on saying that she is going to school she left house - Thereafter she did not return to home up to – Therefore complainant, his son and wife searched victim girl in village but she was not found - Thereupon he contacted on phone to teachers and they had informed that she had not come to the school since afternoon - Thereafter at about 09.30 pm one (PW-3) phoned complainant and informed that victim girl is at and that she has been frightened – Thereupon complainant along with his brothers and two others went to and on seeing them victim girl started weeping and she was very much frightened - Victim girl she told complainant that while she was proceeding towards school from house in afternoon near dilapidated house of Sanjay on road one white colour Omni car came from her behind - Door of said car was suddenly opened - Accused No.1 alighted from car and accused No.1 snatched her file which was in her hand and torn same and after sitting in car accused No.1 closed door of the car. Accused No.1 pressed her mouth - Accused No.2 showed knife and pointed knife to neck of victim girl and said her not to cry else she would be killed - Therefore she kept mum - Omni car proceeded by road - After half an hour Omni car was stopped on tower road - Thereafter on laying down victim girl on seat in car accused No.1 initially committed rape on her - Thereafter accused No.2 committed rape on her - Thereafter one who was driving car to whom the victim girl was knowing has also committed rape on her - Then victim girl was left on road near brick-kiln - Accused No.2 had given one mobile number to her and told her that she should tell that it was mobile of her father and then accused went away- On recording complaint as above of complainant crime under Section 363, 366-A, 376-D and 506 read with Section 34 of IPC under Section 4 of POCSO Act and under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe Prevention of Atrocities Act (hereinafter referred to as the Atrocities Act) was registered against accused and investigation was commenced - Whether any of accused is guilty under Sec.366-A of Indian Penal Code - Whether prosecution has proved offences against accused Nos. 1 to 3 for which they have been convicted beyond reasonable doubt - Whether he will do first or he should do first. - Whether acquittal of the accused of aforesaid offence is proper or otherwise - Held, Trial Court has not properly considered evidence adduced by prosecution - Even trial court has not specifically assigned reasons how and on what basis prosecution has proved offence under section 366-A read with Section 34 IPC against accused Nos.1 to 3 - Trial Court had framed point No.1, whether prosecution has proved that at about 02.00 pm at village, Dist. accused Nos.1 to 3 in furtherance of their common intention had kidnapped minor victim and compelled her to have sexual intercourse with another person?.Trial Court answered said point No.1 as "Proved" - There is no discussion at all by trial Court as to how prosecution has proved that victim girl who was kidnapped was compelled to have sexual intercourse with another person - Trial Court ought to have framed separate points in respect of offence of kidnapping from lawful guardianship punishable under Section 363 and in respect of offence of procuration of minor girl under Section 366-A of IPC but instead trial Court had framed only point No.1 as above and answered it as "proved" without assigning any reason at least in respect of offence under Section 366-A of IPC - Thus Court hold that finding of the trial Court holding the appellants/accused Nos.1 to 3 guilty for offence punishable under Section 366-A read with Section 34 of IPC and sentencing them for said offence is not legal proper and sustainable - Court hold that prosecution has failed to prove offence under Section 366-A read with Section 34 of IPC against accused Nos.1,2 and 3 and therefore finding of trial Court that said offence is proved against accused Nos.1 to 3 is not sustainable and same is liable to be set aside and these accused are entitled to be acquitted of said offences - However as offence under Section 366 read with Section 34 of the IPC is proved against accused Nos.1 to 3, offence under Section 354 read with Section 34 of the IPC is proved against accused Nos.1 and 2 and under Section 354 read with Section 109 of the IPC is proved against accused No.3, they are to be convicted and sentenced for said offences - Appeal allowed