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2021 Supreme(Bom) 161
IN THE HIGH COURT OF BOMBAY AT NAGPUR
PUSHPA V. GANEDIWALA, J.
Prakash – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 462 of 2020
Decided On : 13-01-2021
Advocate Appeared:
For the Appellant : S.N. Bawangade.
For the Respondent: H.D. Dubey.
The need for substantive evidence and a sterling quality testimony in cases of serious offences under the POCSO Act.
Headnote:
POCSO - Appeal against conviction - Sections 363, 366(A), 376(2)(n)(i) of IPC and Section 4 and 6 of POCSO Act - [363, 366(A), 376(2)(n)(i), 4, 6] - The court discussed the evidence related to the incident of sexual intercourse, the age of the prosecutrix, and the quality of the prosecutrix's testimony. It highlighted the importance of substantive evidence and the need for a sterling quality testimony in cases of serious offences under POCSO Act. The court also referred to previous judgments to support its decision.
Fact of the Case:
The case involved an appeal against the conviction of the appellant/accused for offences under Sections 363, 366(A), 376(2)(n)(i) of IPC and Section 4 and 6 of POCSO Act. The prosecutrix, a minor, went missing and was found with the appellant/accused. The prosecution alleged sexual intercourse and kidnapping.
Finding of the Court:
The court found that the prosecution failed to prove the case beyond reasonable doubt. It emphasized the lack of substantive evidence and the substandard quality of the prosecutrix's testimony. The court raised doubts about the age of the prosecutrix and acquitted the appellant/accused of all charges.
Issues: The key issues included the incident of sexual intercourse, the age of the prosecutrix, and the quality of the prosecutrix's testimony.
Ratio Decidendi: The court emphasized the need for substantive evidence and a sterling quality testimony in cases involving serious offences under the POCSO Act. It referred to previous judgments to support its decision.
Final Decision: The criminal appeal was allowed, the judgment and order of conviction were quashed and set aside, and the appellant/accused was acquitted of all charges. The appellant/accused was ordered to be released from jail, and any fine paid was to be refunded.
JUDGMENT :
PUSHPA V. GANEDIWALA, J.
1. This is an appeal against judgment and order passed by the Sessions Court, Nagpur in Special Child Cri. Case No. 37/2018 dated 29/09/2020 against conviction of the appellant/ accused in Crime No. 328/2017 for the offence punishable under Sections 363, 366(A), 376(2)(n)(i) of the Indian Penal Code and Section 4 and 6 of the Protection of Children from Sexual Offences Act, (POCSO), 2012, registered at police station Narkhed, Distroct Nagpur.
2. For the offence punishable under Section 363 of the Indian Penal Code, the appellant/ accused is sentenced to undergo S.I. for one year and fine of Rs. 500/- in default sentence for one month.
3. For the offence punishable under Section 376 of the Indian Penal Code, the appellant/ accused is sentenced to undergo R.I. for seven years and to pay fine of Rs. 1000/- in default sentence for one month.
4. For the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act (POCSO), 2012, the appellant/accused is sentenced to undergo R.I. for seven years and fine of Rs. 500/- in default S.I. for one month.
5. For the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act (POCSO), 2012, the appellant/accused is sentenced to undergo R.I. for ten years and fine of Rs. 1000/- in default R.I. for one month.
All the sentences are directed to run concurrently.
6. The prosecution case, in brief, is as under:
The informant - Smt. Chhaya Sonone is the mother of the prosecutrix. On 21/10/2017, she lodged a report at police station, Sawargaon stating therein about missing of her daughter (prosecutrix - name kept undisclosed) and she had a doubt that the appellant/accused must have kidnapped her from her legal custody. Initially, F.I.R. (Exh.17) came to be registered under Section 363 of the Indian Penal Code, 1860 (for short IPC) against the appellant/accused. On the basis of tower location, the prosecutrix and the appellant/accused were brought from Rajasthan by the police. The statement of the prosecutrix was recorded and on that basis, Section 376 of the IPC and other provisions of POCSO Act came to be added against the appellant/accused. Both the accused and the prosecutrix were sent for medical examinations. The statements of witnesses were recorded. The birth certificate of the prosecutrix (Exh.13) showing her date of birth as 08/04/2001 was obtained. After investigation, charge-sheet came to be filed before the Court of Magistrate, who in its turn, committed the case to the Court of Sessions. The Court of Sessions framed charge (Exh.5) against the appellant/accused for the offence punishable under Sections 363, 366A, 376(2)(i)(j)(n) of the IPC, and Sections 4 and 6 of the POCSO Act. The charge was read over and explained to the appellant/accused, to which he pleaded not guilty and claimed to be tried. The plea of the accused was recorded.
7. To substantiate the charge against the appellant/accused, prosecution examined in all four witnesses and also brought on record necessary documents. The trial Court recorded statement of the appellant/accused under Section 313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.). After hearing both the parties, the trial Court found that the prosecution could establish its case beyond reasonable doubt and passed the judgment of conviction and sentenced the appellant/accused as above. This judgment is impugned in the instant appeal.
8. I have heard Shri Bawangade, learned counsel for the appellant/accused, and Shri Dubey, learned Additional Public Prosecutor for the respondent-State. I have also perused the record with the assistance of learned both the counsel appearing on behalf of both the sides.
9. At the outset, it is a case of love affair between the appellant/accused and the prosecutrix, who, at the relevant time, were of age 23 years and 16½ years respectively.
10. The prosecutrix was examined as PW-1 (Exh.12). In her testimony, she testified that the appellant
