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IN THE HIGH COURT OF BOMBAY
Vibha Kankanwadi, Y.G. Khobragade, JJ.
X Y Z - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 547 of 2020
Decided On : 27-04-2023
APPEAL - ACQUITTAL UNDER POCSO ACT - Sections 363, 366-A, 376(2)(i) of IPC; Section 6 of POCSO Act - The court discussed the provisions of the Indian Penal Code and the POCSO Act, emphasizing the necessity for the prosecution to prove the age of the victim and the nature of consent. The court highlighted that the absence of a birth certificate and reliance on school records did not meet the evidentiary standards required to establish the victim's age. The interpretations of Sections 363, 366-A, and 376(2) of IPC, along with Section 6 of the POCSO Act, were pivotal in the court's decision to acquit the accused, as the prosecution failed to prove the victim was a minor at the time of the alleged offences.
Fact of the Case:
The prosecutrix's mother reported that her minor daughter was enticed away by the accused under the promise of marriage. The victim later revealed she was in a consensual relationship with the accused, leading to charges under various sections of the IPC and the POCSO Act. The trial court acquitted the accused, leading to the present appeal.
Finding of the Court:
The court found that the prosecution failed to establish the victim's age beyond reasonable doubt, as no birth certificate was produced, and the evidence presented did not inspire confidence. The victim's own testimony indicated she was not abducted but had willingly accompanied the accused.
Issues: Whether the prosecution proved the victim's age and whether the accused induced the victim to leave her guardian's protection.
Ratio Decidendi: The court emphasized that the burden of proof lies with the prosecution to establish the victim's age and the nature of consent. The absence of primary evidence, such as a birth certificate, and reliance on school records were insufficient to prove the victim was a minor. The court also noted that the victim's own actions indicated consent and understanding of her situation.
Final Decision: The appeal was dismissed, affirming the trial court's acquittal of the accused due to insufficient evidence regarding the victim's age and lack of proof of coercion or deceit.
JUDGMENT/ORDER
Y.G.KHOBRAGADE, J. - By the present appeal under Sec. 372 of the Code of Criminal Procedure, the prosecutrix is challenging the judgment and order dtd. 7/11/2019, passed by the learned Special Court under the POCSO Act and Additional Sessions Judge, Aurangabad in Special Case Child Prot. No.62/2015, thereby acquitting respondent Nos.2 and 3 original accused Nos.1 and 2 for the offences punishable under Ss. 363, 366-A, 376(2)(i) read with Sec. 34 of the Indian Penal Code and Sec. 6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
2. As per the provisions of Sec. 228-A of the Indian Penal Code, identity of victim in rape (sexual offences) is concealed in all manner including names of her relatives and the School/College where the victim studied.
3. In nutshell, the prosecution story is that on 14/11/2014, the victim's mother lodged report with the concerned Police Station alleging that on 11/11/2014 at about 3.00 p.m., she with her minor victim daughter had gone to the house of her foster sister. At that time, her victim daughter had stayed outside of her sister's house and she was taking tea inside the house of her sister. However, at that time her victim daughter went away without informing her. She and her sister with their relatives had taken search of victim, but the victim was not traceable. After 2 - 3 days, she (informant) came to know that the accused enticed away her daughter victim on promise of marriage, hence, she lodged report, on which basis Crime No.I-218/2014 registered against the accused for the offence under Ss. 363, 366(A) of the Indian Penal Code. The investigation was carried out by PW-7 PSI Venkatesh Ranvirkar. During the course of investigation, it has revealed that the accused No.2 helped the accused No.1 while taking away the victim minor. On 16/11/2014, the Investigating Officer searched the accused and victim on the basis of mobile tower location. On inquiry, the victim disclosed that, since last two years she is in love affairs with accused. On 12/11/2014 the stepmother of accused consented for marriage between her and accused and permitted both of them to stay in one room, where they developed physical relations. Accordingly, offence under Sec. 376(2) of the Indian Penal Code and Sec. 5(1) and 6 of the POCSO Act added in Crime No.I-218/2014. The PW-7 PSI drawn spot panchanama, seizure panchanama and arrested both the accused. The Investigating Officer collected the evidence pertaining to age of victim. The statement of victim came to be recorded under Sec. 164 of the Code of Criminal Procedure through the Judicial Magistrate, First Class. The call detail report (CDR) of cell phone of accused collected and on completion of investigation, charge-sheet came to be filed against the accused.
4. The learned trial Court framed charge at Exh.17. Both the accused pleaded not guilty and claimed for trial.
5. The prosecution examined in all total eight (8) witnesses to bring the home of the accused for the said offences as under: PW-1 Dhanraj Gangavne, panch witness, cloth seuzure panchanama of victim (PW-2), PW-2, PW-3 - Shakubai - mother of victim, PW-4 Mangal Dhas Head Mistress of Zilla Parishad Primary School of victim, PW-5 Kailas Magare, panch witness to the spot panchanama, PW-6 Ganesh, PW-7 Venkatesh Ranvirkar, PSI, Investigating Officer, PW-8 Dr. Balvin Kaur Ghar, Medical Officer who had medically examined the victim. Beside oral evidence, the prosecution relied on documentary evidence i.e. Exh.39 seizure panchanama of victim's clothes, Exh.50 FIR, Exh.54 Vistim's school leaving certificate, Exh.65 spot panchanama, Exh.67 clothes seizure panchanama of accused, Exh.89 and 93 arrest panchanama, Exh.90 & 91 letters under which said articles were returned, report Exh.92 statement of victim under Sec. 164 of Cr.P.C. Exh.94, 95 and 96 C.A. reports.
6. After conclusion of trial, the statements of both the respondent Nos. 2 and 3 accused recorded under Sec. 313 of the Code of Cr
The prosecution must provide credible evidence to establish the age of the victim in cases under the POCSO Act, and mere reliance on school records without corroborating evidence is inadequate to pro....
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The central legal point established in the judgment is the requirement for conclusive evidence to establish the commission of offenses, especially in cases involving serious allegations such as rape,....
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....
The central legal point established in the judgment is the stringent burden of proof required in cases involving offences against minors, emphasizing the necessity of credible evidence to establish g....
The appellate court upheld the victim's minority and the accused's guilt for kidnapping and sexual assault, emphasizing the presumption of innocence and the need for compelling reasons to overturn ac....
The central legal point established in the judgment is that in cases involving minors, the credibility of the victim's testimony holds significant weight, and corroboration may not always be necessar....
The main legal point established in the judgment is the importance of proving the age of the victim to establish the commission of offences under the POCSO Act. The judgment emphasizes the admissibil....
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