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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
B.P. DHARMADHIKARI, PRAKASH D. NAIK, JJ.
State of Maharashtra - Appellant
Versus
Atul Rama Lote - Respondent
Confirmation Case No. 5 of 2016
Decided On : 25-04-2019
Code of Criminal Procedure, 1973 – Sections 482, 386, 313 – POCSO Act – Sections 3, 4, 5, 6 – Penal Code, 1860 – Sections 363, 376 (2)(f), 302 and 201 – Kidnapping – Rape – Murder – Court of District Judge-08 and Special Judge (POCSO), Thane in Special Case, vide judgment delivered convicted accused under sections 363, 376 (2)(f), 302 and 201 of IPC and under section 3 (a) punishable under section 4 and 5 (i) and Section 5(m) punishable under section 6 of the POCSO Act i.e. Protection of Children from Sexual Offences Act, 2012 sentencing him to death for offence punishable under section 302 of IPC – He has been sentenced to suffer RI for life and fine of Rs.3,000/- Fine is to be withdrawn by the complainant – He has not been separately punished for offences punishable under sections 363 and 201 of IPC. – Held, Judgment of conviction & therefore the death sentence imposed on accused can not be sustained. But then the accused also can not be set free at this stage. – Facts at hand or even the charge initially framed, prima-facie, point out relevance of POSCO Act & recourse to its Sections 29 or S.30 may be inevitable. – If the burden of proof is reversed by a LAW, the fact of additional advantage to the State can not be ruled out. – Object behind this scheme in POSCO can not be allowed to be defeated by the appellate court. – Court can not also overlook the fact that deceased minor victim & her relatives who are aggrieved persons can not be extended a secondary treatment and the balance can not tilt in favour of the accused. – Dr. Yug Chaudhary has attempted to press into service few judgments to buttress his prayer for acquittal. – Court have carefully looked into the respective judgments & court find that S. 386 (b) Cr.P.C. empowers the appellate court to pass suitable orders. – It can either acquit or discharge the accused or remand the matter for re-trial to the competent Court. – These powers definitely show that the appellate Court while adopting a particular course of action, must assign the reasons therefor. – "Discharge" or "acquittal" ordered by the appellate Court of a person pronounced guilty by the trial court can not be without the valid reasons. – Similarly, if he is to be retried, the reasons must appear on record to support the re-trial. – Neither trial court nor the appellate court can drop the prosecution because it is turning out to be a persecution. – Every cognizable offence must be investigated into & then undergo the judicial scrutiny. – Trial for such scrutiny must be conducted as per law. – Power to drop or quash the criminal proceedings of present nature is not available to the trial court. – High Court, while hearing the appeal against conviction or then a confirmation case, may in a just case invoke its extra ordinary powers under S. 482 Cr.P.C. – But then considering the facts at hand, court do not find this to be a case of undue harassment of accused. – In any case, the interest of justice demands that the State must get due opportunity to establish as per law the guilt of person found to be an accused by it. – For wrong framing of charges or consequential procedural errors, the legitimate expectations of victim family or the spirit of POSCO can not be defeated. – For dropping of action of such a nature, a fault in finding of guilt already reached by the trial court is necessary & we are not in position to do so. – Court have not even touched any finding on facts in the judgment of the trial court. – Court have found that a proper procedure after alteration of charges has not been followed, this error needs to be corrected & for that purpose, remand is the only solution. – Decision whether to proceed further with same trial or to order de-novo trial are the issues which must be addressed to by the trial court only. – Judgment & order convicting accused is quashed & set aside – Case Disposed of.
B.P. DHARMADHIKARI, J.
1. The Court of District Judge-08 and Special Judge (POCSO), Thane in Special Case No.107/2014, vide judgment delivered on 28/9/2016 convicted accused under sections 363, 376 (2)(f), 302 and 201 of IPC and under section 3 (a) punishable under section 4 and 5 (i) and Section 5(m) punishable under section 6 of the POCSO Act i.e. Protection of Children from Sexual Offences Act, 2012 sentencing him to death for offence punishable under section 302 of IPC. He has been sentenced to suffer RI for life and fine of Rs.3,000/- Fine is to be withdrawn by the complainant. He has not been separately punished for offences punishable under sections 363 and 201 of IPC.
2. The case of prosecution is accused Atul was residing in vicinity of residence of deceased victim and her parents. Father of deceased was in business of preparing Bhujing (roasted chicken) on his handcart. Accused used to visit that handcart to eat Bhujing. Parents of deceased resided at Soyal Dayle chawl in Kudus Wada, while accused resided at Chinchghar pada. On 24/2/2014, as usual father of deceased was arranging his hand cart at 5.30 p.m. for doing business. At that time, accused came there. Accused inquired from said father viz., Siraj Ali Taj Ali Shah as to why bhujjing was not prepared. Siraj Ali informed accused that he forgot to bring coal. Atul volunteered to fetch coal from house of Siraj Ali. Accordingly, after some time Atul brought the coal, gave it to Siraj Ali and left on bicycle. At about 8.30 p.m. when Siraj Ali went to his house, his wife Kamrunisa informed him that his daughter (victim) aged about 7 years was not traceable since 6.00 p.m. Siraj Ali started making inquiries, Imran, son of his neighbour, then aged about 6 years told him that accused Atul had come at 6.00 p.m. and victim left with him on his bicycle. Atul told her that he would purchase 'khau' for her. Siraj Ali inquired with others and they informed him that 'Shendiwala' Atul Lote took victim on his bicycle. He searched for his daughter but could not locate them. He therefore felt that Atul might have kidnapped his daughter with some wrong intention for immoral purpose. He therefore lodged missing complaint Exhibit 15 on the basis of which FIR Exhibit 16 was registered.
3. On 25/2/2014 between 7.00 a.m. to 8.00 a.m. police called him to Poultry Farm House of Sanjay Bhoir at Chinchpada. The accused was present there and there showed dead body of victim which was behind said poultry farm. According to prosecution accused kidnapped minor victim, raped her and thereafter murdered her.
4. Police had registered offence under sections 363, 366(A), 376 and 302 of IPC and under sections 6 and 8 of POCSO Act on 25/2/2014. After completing investigation, charge-sheet was filed and then in due course, under section 209 Cr.P.C. the matter was committed to Trial Court.
5. The then Presiding Officer of Trial Court framed charge (Exhibit 6) for offence punishable under sections 363, 366 (A), 376 and 302 of IPC and under section 6 and 8 of POCSO Act. The succeeding officer who delivered judgment altered the charges to section 363, 376(2)(f), 302 and 201 of IPC and section 3(a), 4, 5(i) and 5(m) and section 6 of the Protection of Children from Sexual Offences Act, 2012. Thereafter the impugned judgment came to be delivered.
6. We have heard learned Advocate Chaudhry for accused and Additional Public Prosecutor Mrs. Pai for the State. At the threshold learned Advocate Mrs.Pai requested for permitting the State Government to begin while learned advocate Chaudhry for accused submitted that he should be allowed to open. By a reasoned order on 18/3/2019 we have permitted learned Advocate Chaudhry to begin.
7. Learned Advocate Chaudhry has submitted that he would initially address the Court on apparent procedural errors in the trial which has resulted in serious prejudice to accused which has necessitated denovo trial. He submitted that thereafter he would address the Court on merits of ma
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