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Bombay High Court
Pushpa V. Ganediwala, J.
Jageshwar Wasudeo Kawle —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No.20 of 2020
Decided on 14.1.2021
Protection of Children from Sexual Offences Act, 2012—Sections 5 and 6—Indian Penal Code, 1860—Section 376(2)(n)—Rape of minor girl—Conviction and sentence—Neighbour witnesses who are neighbours of sister of appellant/accused, have turned hostile and did not support prosecution case—There is no conclusive evidence before this Court to conclude that conceived from appellant/accused—Prosecution also did not find it necessary to conduct DNA examination—Record is silent with regard to DNA test and what happened to her pregnancy—Except statement of prosecutrix with regard to sexual intercourse at house of sister of appellant/accused, there is absolutely nothing supporting prosecution case of rape—Only on the basis of allegation with regard to commitment of sexual intercourse on many occasions, it would be highly irrational to convict appellant/accused with 10 years imprisonment—Testimony of prosecutrix is sufficient for conviction of appellant/accused, however, same ought to inspire confidence of this Court—It ought to be of sterling quality—Prosecution could not establish, beyond reasonable doubt, offence of rape against appellant/accused—Judgment and order passed by Additional Sessions Judge quashed and set aside and appellant acquitted. (Paras 5, 10, 11 and 12)
Result: Criminal Appeal allowed.
JUDGMENT (ORAL)
Pushpa V. Ganediwala, J.—Heard.
2. This appeal is directed against the judgment and order dated 12/11/2019 passed by the Additional Sessions Judge, Hinganghat in Special (Ch.) Case No. 17/2017, by which the appellant/accused is convicted for the offence punishable under Sections 376(2)(n) of the Indian Penal Code, 1860 (for short “IPC”), and Section 5 punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”), and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.5,000/- (rupees five thousand), in default, to suffer rigorous imprisonment for 3 months.
3. The case of the prosecution, in nutshell, is as under :
i. At the relevant time, the age of the prosecutrix was 17 years and 9 months. The birth certificate (Exh.62) shows her date of birth as 01/08/1997. For the purpose of studies, she was residing in one rented room at Hinganghat. The appellant/accused was also residing in the same premises on rent. As he assisted her during her illness, friendship was developed between the duo. After completing her studies, she returned to her parents house at Umari, Tah. Samudrapur, District - Wardha. After couple of days, she again returned to Hinganghat for the purpose of attaining tuition classes of 12th standard. The appellant/accused came to receive her at Bus Stand, Hinganghat. Both went to his parents house at Village Gosikhurd, District - Chandrapur, and stayed there for couple of days. From there, he brought her at the house of his sister Rekha (accused No.2-acquitted) at Village Sinhala, District - Chandrapur, where they stayed for about two months. It is alleged that during that period, the appellant/accused committed sexual intercourse with her on many occasions.
ii. Initially, on 08/05/2015, the father of the prosecutrix lodged a missing report with Girad Police Station which caused registration of crime under Section 363 of the IPC. When the prosecutrix and the appellant/accused were brought at Hinganghat, they were sent for medical examination. Initially, as the prosecutrix was not ready for her medical examination, she was produced before the Magistrate, who in turn has directed to produce her before the Child Welfare Committee, Wardha, where she was persuaded for medical examination. During her medical examination, her Urine pregnancy test (UPT) was found positive. Accordingly, Section 376 of the IPC came to be added against the appellant/ accused.
iii. On completion of investigation, chargesheet came to be filed before the Court of Magistrate, who in turn, committed the case to the Special POCSO Court, Hinganghat.
iv. The Special Court, Hinganghat framed charge against the appellant/accused for the offence punishable under Sections 363 and 376(2)(n) of the IPC, and Section 4 of the POCSO Act. The sister of the accused Rekha also arraigned as an accused No.2, being an abettor. The charge was read over and explained to both the accused, to which they pleaded not guilty and claimed to be tried. Their plea was recorded.
v. To establish the guilt against the appellant/accused, the prosecution examined in all 14 witnesses, and also brought on record some relevant documents. The trial Court recorded statements of the accused persons under Section 313 of the Code of Criminal Procedure, 1973.
vi. After hearing both the sides, the trial Court convicted the appellant/accused for the offence punishable under Section 376(2)(n) of the IPC and Section 5 punishable under Section 6 of the POCSO Act, and acquitted him of the offence punishable under Section 363 of the IPC. That the trial Court acquitted accused No.2 Rekha (sister of the appellant/accused) from all the offences. This judgment is impugned in the instant appeal.
4. I have heard Shri Patwardhan, learned counsel for the appellant/accused, and Shri Dubey, learned A.P.P. for the respondent. I also perused the record and proceedings with the assistance of learned both t
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