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2019 Supreme(Bom) 735
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Swapna Joshi, J.
Ajaykumar - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 783 of 2018
Decided On : 28-03-2019
Mardikar, Adv., A.M. Kukday, Adv., M.J. Khan, Adv.
Headnote:
Evidence Act, 1872 – Section 35 – Protection of Children from Sexual Offences Act – Section 4 – Indian Penal Code, 1860 – Sections 363, 366, 376 – Order of Conviction – Appeal has been directed against the Judgment and Order dated 6th September 2017 decided by Special Court, Chandrapur in Special (POCSO) Case, whereby the learned Special Judge has convicted the Appellant/Accused under Section 376(1) of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for a period of one month. – Appellant/Accused was further convicted for the offence punishable under Section 4 of Protection of Children from Sexual Offences Act and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for a period of one month. – Appellant/Accused was acquitted for the offence punishable under Sections 363 and 366 of Indian Penal Code. – Held, It is not clear as to who informed about the date of birth of the victim, which was in the record of the hospital to the concerned authority, who took the entry at Exhibit 56. – In column no.24, the Registrar, who maintained the Birth and Death Register, who was supposed to sign column no.24, did not put his signature on the said column. – Thus, the column nos.23 and 24 in the said register (Exhibit-56) are kept blank, for the reasons best known to the concerned authority. – The fact remains that the link of the evidence is missing which would have connected the authority from Santosh Hospital, Kurudwadi to the authority of Municipal Council, Kurudwadi, District Solapur. – It is worthy to note that neither the mother of the victim nor her father stated before the court as to in which hospital exactly the victim was born. – None of them have thrown any light on the said aspect. – Significantly, the mother of the victim have failed to state as to exactly in which village or town she gave birth to the victim. – Entry in birth certificate (Exhibit-55) so also the entry at Exhibit-56 are not found to be reliable and trustworthy documents. – Birth certificate was issued by the Municipal Council, Kurudwadi, however, since the column nos. 23 and 24 of the extract of birth and death register (Exhibit-56) are kept blank meaning thereby that it is not clear as to who had reported about the date of birth of the victim to the Municipal Council, and therefore, the name is missing in the said document. – Similarly the evidence of parents of the victim do not throw any light on the aspect of giving birth to the victim in Santosh Hospital, Taluka Kurudwadi, District Solapur. – Judgment and Order passed by the learned Special Court, Chandrapur needs to be quashed and set aside. – Trial judge should have appreciated the evidence led by the prosecution in its right perspective. – Since the age of the victim is not proved to be below 18 years, it is held that prosecution has failed to prove its case. – Criminal Appeal Allowed
Swapna Joshi, J.
This Appeal has been directed against the Judgment and Order dated 6th September 2017 decided by the learned Special Court, Chandrapur in Special (POCSO) Case No. 100 of 2015, whereby the learned Special Judge has convicted the Appellant/Accused under Section 376(1) of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for a period of one month. The Appellant/Accused was further convicted for the offence punishable under Section 4 of Protection of Children from Sexual Offences Act and sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for a period of one month. The Appellant/Accused was acquitted for the offence punishable under Sections 363 and 366 of Indian Penal Code.
2. The Prosecution case in a nutshell is as under :
The complainant - Murgesh Manik Pille (PW-3) was working as a mechanic at Gosikhurd Project at Nagbhid, District Chandrapur. He was residing with his wife and two daughters at Nagbhid. His elder daughter was aged about 17 years old and younger daughter was 16 years old.
On the date of incident i.e. 9th July 2015 all the family members went to bed. In the morning Murgesh (PW-3) came to know that his younger daughter was not present in the house. On taking search, she was not found in the vicinity. Murgesh (PW-3) then lodged the missing complaint (Exhibit-27) in respect of his younger daughter at Nagbhid Police Station against the unknown person, suspecting that someone must have taken her away with him.
On 19th August 2015 Murgesh (PW-3) received a phone call of one Ticket Checker from Gaya in Bihar State that his daughter was found with one Ajaykumar and they both were at Railway Police Station at Gaya. Murgesh (PW-3) then proceeded to Gaya and brought back his daughter with him. Police recorded the statement of the victim so also apprehended the Accused. At the relevant time, lady PSI Pratibha Pralhad Raut (PW-6) was attached to Bramhapuri Police Station. She recorded the statement of the victim. In the meantime, the offence was registered on the basis of the complaint of Murgesh (PW-3) vide Crime No. 83 of 2015. Police conducted the spot panchanama vide Exhibit-16. The statement of relevant witnesses were recorded by PSI Manoj Kashinath Meshram (PW-7). The accused was arrested at Nagbhid Police Station. The victim was referred for medical examination. On conducting the formal investigation, the charge-sheet came to be filed in the court of learned Judicial Magistrate First Class, Nagbhid and the case was committed to the Court of Special Court, Chandrapur. The learned Special Judge framed the charge and after recording the evidence and hearing both the sides, convicted the Accused as aforesaid.
3. I have heard Mr. Mardikar, the learned Senior Counsel a/w Mr. A. M. Kukde for Appellant and Mr. Khan, the learned APP for Respondent-State. With their able assistance I have gone through the case papers.
4. Mr. Mardikar, the learned Senior Counsel vociferously argued that even assuming that the victim accompanied the Accused and thereafter they were apprehended at the Railway Station at Gaya in Bihar State, however, the fact remains that the victim had willingly gone with the Accused. She was no doubt of a tender age as that of Accused and they both willingly had developed a physical relationship, as they both got married with each other.
5. Mr. Mardikar, the learned Senior Counsel contended that in the instant case, the age of the victim is not proved by the prosecution beyond reasonable doubt. In view thereof, it cannot be said that the Accused has committed an offence punishable under Section 376 of Indian Penal Code.
6. As against this, Mr. Khan, the learned APP vehemently contended that the prosecution has proved the age of the victim beyond reasonable doubt, and therefore, it can be safely said that the Accuse
