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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.G.Avachat, J.
Pandhari – Appellant
Versus
Kachru Pawar – Respondent
Criminal Appeal No. 48 of 2021
Decided On : 04-07-2022
POCSO - Conviction under Sec. 376(2)(i) IPC and Sec. 4 POCSO Act - Sec. 376(2)(i) IPC, Sec. 4 POCSO Act - The court acquitted the appellant of the offence punishable under Sec. 376(2)(i) of the Indian Penal Code based on lack of corroborative evidence and unreliable testimony of the prosecutrix. The court found that the school record and birth certificate of the prosecutrix were not duly proved, leading to doubt about her age at the time of the offence. The court emphasized the need for concrete proof of the authenticity of the documents and extended the benefit of doubt to the appellant, ultimately acquitting him of the charges.
Fact of the Case:
The appellant was convicted for the offence punishable under Sec. 376(2)(i) of the Indian Penal Code and under Sec. 4 of the Protection of Children from Sexual Offences (POCSO) Act. The case arose from the appellant's alleged kidnapping and sexual exploitation of the prosecutrix, who was claimed to be below 16 years of age at the time of the incident. The appellant was acquitted of the offence punishable under Sec. 366 of the Indian Penal Code.
Finding of the Court:
The court found that the sole testimony of the prosecutrix did not inspire confidence, and medical evidence did not support the prosecution's case. The school record and birth certificate of the prosecutrix were not duly proved, leading to doubt about her age at the time of the offence. The court extended the benefit of doubt to the appellant and acquitted him of the charges.
Issues: The key issues revolved around the reliability of the prosecutrix's testimony, the proof of the prosecutrix's age, and the sufficiency of corroborative evidence to support the charges against the appellant.
Ratio Decidendi: The court emphasized the need for concrete proof of the authenticity of the documents, such as the school record and birth certificate of the prosecutrix, to establish her age at the time of the offence. The lack of corroborative evidence and unreliable testimony of the prosecutrix led the court to extend the benefit of doubt to the appellant and acquit him of the charges.
Final Decision: The court set aside the judgment and order convicting and sentencing the appellant for the offence punishable under Sec. 376(2)(i) of the Indian Penal Code, and acquitted the appellant of the said offence. The appellant was ordered to be released immediately, and the amount of fine, if paid, was to be returned to the appellant.
JUDGMENT
1. This appeal is directed against the order of conviction and resultant sentence passed by the Sessions Judge, Parbhani in Special Case (POCSO) No.40 of 2016. Vide impugned judgment and order dtd. 3/4/2018, the appellant was convicted for the offence punishable under Sec. 376(2)(i) of the Indian Penal Code and under Sec. 4 of the Protection of Children from Sexual Offences (POCSO) Act and therefore, sentenced to suffer rigorous imprisonment for ten years and fine of Rs.5,000.00. In default of payment of fine, the appellant is directed to suffer rigorous imprisonment for one year. No separate sentence was awarded for the offence punishable under Sec. 4 of the POCSO Act in view of Sec. 42 thereof. The appellant was acquitted of the offence punishable under Sec. 366 of the Indian Penal Code. The State has not preferred appeal against acquittal.
2. Facts giving rise to the present appeal are as under: The appellant and PW1-A, hail from one and the same village. The appellant had a bore-well. The bore-well had lot of water. In the days of water scarcity, he had supplied water through water connections to some of the villagers. The family of PW2 was one of such families. PW1-A was in 9th standard during relevant days. The appellant would occasionally visit her house. Acquaintance developed between the two. The appellant had given her a cellphone to have regular talk inter-se.
3. It is the case of the prosecution that on 27/6/2016, PW2 Bhagwan, father of PW1-A, returned home from Mumbai. All of his family members including himself went to sleep. Little past 11.30 p.m., he woke up to his ease himself. He found PW1-A not at her place. He found her not home as well. He, therefore, made inquiry in the village to find the appellant too has not been his home. He, therefore, realised the appellant to have kidnapped his daughter (PW1-A). He, therefore, lodged First Information Report (FIR) Exh.20.
4. Initially, Crime for the offence punishable under Sec. 366 of the Indian Penal Code was registered vide C.R. No.116 of 2016. During the investigation, it was found that the appellant and PW1-A were at Pandharpur. Both of them came back in response to request made by their relations. On their arrival, the appellant was arrested. PW1-A gave her statement alleging the appellant to have had kidnapped her. She also stated to have been sexually exploited. According to her, she was 15 years of age. Her school record was obtained in proof of her date of birth. She was medically screened as well. Cloths on the person of both the appellant and PW1-A at the relevant time were taken charge of. The articles were sent to Central Forensic Science Laboratory (CFSL). The statements of persons acquainted with the facts and circumstances of the case, were recorded. On completion of the investigation, the appellant was proceeded against by filing charge-sheet.
5. The learned Sessions Judge charged the appellant with offences punishable under Ss. 366, 376(2)(i) of Indian Penal Code and Sec. 4 of the POCSO Act. The appellant pleaded not guilty. His defense is of false implication.
6. To establish the charge, prosecution examined nine witnesses and placed on record certain documents. On appreciation of the evidence in the case, the learned Sessions Judge held the appellant guilty of offence punishable under Sec. 376 of Indian Penal Code and Sec. 4 of the POCSO Act and therefore sentenced him as stated above.
7. Heard. Learned Advocate for the appellant would submit that the offence is serious one. The appellant at the relevant time was around 21 years of age. There was no reliable evidence in proof of age of the prosecutrix (PW1-A). Even if her evidence is accepted as it is, the same is not convincing to convict the appellant for offence of rape. According to the learned Advocate, what she has stated is that there were physical relationship between the two. According to him, she did not state in so many words that the appellant had sexual intercourse with her
The main legal point established in the judgment is the requirement for concrete proof of the authenticity of documents, such as school records and birth certificates, to establish the age of the pro....
Point of Law : Prosecution has failed to prove beyond doubt that the victim was below 18 years of age as on the date of the incident. Under these circumstances, the accused cannot be held guilty of o....
It stands well settled that circumstances not put to an accused under Section 313 Cr.PC. cannot be used against him and must be excluded from consideration - In a criminal trial, importance of questi....
Proof of minor status is essential under POCSO; without clear age determination, conviction cannot stand. The benefit of doubt must accrue to the accused when age is unproven.
The prosecution must provide conclusive evidence of a victim's age in POCSO cases; reliance on school records alone is insufficient without corroborative proof.
The court emphasized that the burden to prove the victim's age lies with the prosecution, which failed to establish it through credible evidence, leading to the acquittal of the appellant.
The court established that the burden of proving a victim's age lies with the prosecution, and the absence of reliable evidence necessitates giving the benefit of doubt to the accused.
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