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2018 Supreme(Bom) 2112
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
S.B. Shukre, S.M. Modak, JJ.
Vimalbai Manohar Doballiwar – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal Nos. 359, 361, 386, 391, 740 of 2018
Decided On : 19-12-2018
Advocate Appeared:
A.A. Dhawas, N.B. Jawade, Mahesh Rai.
Headnote:
Indian Penal Code,1860 – Section 376 and 376(2)(n) - Protection of Children from Sexual Offences Act, 2012 – Section 3 - Prohibition of Child Marriage Act, 2006 – Section 9,10 & 4 r/w 3 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(1)(xii) - Atrocities Act, 1989 - Section 3(1)(xii) - Child marriage - Accused (Choudhary) is the person with whom marriage of victim, alleged to be child at time of her marriage, has been performed with aid and instigation of the remaining accused - It has been alleged that at time of marriage, which was solemnized victim was aged about 15 years and studying in 9th standard in an Ashram Shala, while her parents i.e. accused resided in other place - Accused finding it difficult to make both ends meet, thought that her burden would be lessened if her daughter, victim of crime, was married off as she had already, in their opinion, come of age - With this aim in mind, she used to broach subject of marriage with victim but victim used to stoically refuse proposal saying that she was more interested in her studies - It appears that accused father of victim, was initially on the side of victim, but later on, on the influence of his wife, had changed his mind and also accepted proposal of his wife - In order to take this proposal forward some negotiations were held and ultimately, marriage of the victim was solemnized with accused who was then aged about 29 years - There was hardly anything which victim could do to resist accused and his advances towards her - Physical relationship between two went on unrestricted - However, within her mind, victim had always wanted to play rebel - Meanwhile, accused No. 1 had also taken victim to his native place and there also, both of them lived as husband and wife - Victim stole an opportunity of running away from house of accused on the pretext of celebrating her birthday at her parental house - Victim returned and without losing time registered F.I.R. against her parents, accused and all those including her neighbours, who were involved in solemnizing her marriage with accused without her consent - Whether or not any reliance could be placed upon evidence of this witness and document that has been proved by prosecution through her evidence – Held, even otherwise, learned counsel has opined that according to him, ossification test result shows the victim to be not less than 15 years of age and not more than 16 years of age with margin of error on both sides to be of 2 to 3 years - If such evidence is taken as reliable, inference regarding age of the victim would not be any substantially different from what court have concluded - This way, evidence of PW-6 court would say, supports the case of defence that at the time of incident, victim was not a child but a girl who had attained majority having crossed 18 years of age - With these conclusions court find that whole basis of prosecution case has met dust and that would obviate need for us to consider other evidence - Then what would follow would be admitted fact which shows that the victim, a major girl, was given away in marriage by her parents, to accused with whom the girl cohabited as his wife - PW-2, victim of crime, has given several admissions which indicate that while she was cohabiting with accused, she really did not object to all that the accused did to her and that she also did not raise any protest when various post marriage rituals were performed at different places including those in Rajasthan during which several villagers were invited and had participated - It is seen from impugned judgment that all the aspects as pointed out above have not been considered in any manner by the learned Special Judge and result is of erroneous conclusion regarding establishing guilt of all accused persons for the offences with which they have been charged in the present case - Appeals are allowed.
JUDGMENT :
S.B. Shukre, J.
1. These appeals are being disposed of by common judgment as they arise out of the same judgment and order dated 30th May, 2018 rendered by the learned Special Judge, Chandrapur in Special POCSO Case No. 62/2015.
2. For the sake of convenience, the parties to the appeal i.e. appellants and respondent shall now be referred to as the accused in the same order as they are arraigned in the criminal trial held against them and the respondent respectively.
3. Facts of the case stated in brief are as under:
The accused No. 1 Rameshwarlal Hemram Jat (Choudhary) is the person with whom marriage of victim, alleged to be child at the time of her marriage, has been performed with the aid and instigation of the remaining accused, i.e. accused No. 2 to 8.
It has been alleged that at the time of marriage, which was solemnized on 8.4.2015, the victim was aged about 15 years and studying in 9th standard in an Ashram Shala, situated Kawathala, Tq. Korpana, District Chandrapur, while her parents i.e. accused Nos. 7 and 8, resided at Chandrapur. They earned their livelihood by dint of their labour work. The accused No. 7 finding it difficult to make both ends meet, thought that her burden would be lessoned if her daughter, victim of crime, was married off as she had already, in their opinion, come of age. With this aim in mind, she used to broach the subject of marriage with the victim but the victim used to stoically refuse the proposal saying that she was more interested in her studies. It appears that accused No. 8, father of victim, was initially on the side of the victim, but later on, perhaps on the influence of his wife, had changed his mind and also accepted the proposal of his wife.
As the days passed by, an opportunity for fulfilling the wish of the parents presented itself to accused Nos. 7 and 8. Accused No. 2, a neighbour of accused Nos. 7 and 8 informed the parents of the victim that one eligible boy having good financial background was available and with the consent of the boy and the girl their marriage could be performed. In order to take this proposal forward some negotiations were held and ultimately, the marriage of the victim was solemnized with the accused No. 1 who was then aged about 29 years. According to the victim, this was against her consent, but she had no other alternative than to bow before the wishes of her parents. However, her dislike towards the accused No. 1 and her displeasure with the remaining accused continued. Soon after the marriage, accused No. 1 consummated the relationship and started living with the victim as her own husband. There was hardly anything which the victim could do to resist the accused No. 1 and his advances towards her. The physical relationship between the two thus went on unrestricted. However, within her mind, the victim had always wanted to play rebel. Meanwhile, the accused No. 1 had also taken the victim to his native place in Rajasthan and there also, both of them lived as husband and wife. While in Rajasthan, the victim stole an opportunity of running away from the house of accused No. 1 on the pretext of celebrating her birthday at her parental house.
The victim returned to Chandrapur and without losing time registered F.I.R. against her parents, accused No. 1 and all those including her neighbours, who were involved in solemnizing her marriage with accused No. 1 without her consent. Offences punishable under Section 376 Indian Penal Code (in short, I.P.C.), Section 4 read with Section 3 of the Protection of Children from sexual Offences Act, 2012 and Section 9 and 10 of the Prohibition of Child Marriage Act, 2006 were registered against all these persons and investigation was carried out. These accused persons were ultimately charge-sheeted by Police in the Special Court constituted under the provisions of the Protection of Children from Sexual Offences Act, 2012 (in short, POCSO Act, 2012). They were prosecuted for offences punishable under Section 376(2)(n
