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BOMBAY HIGH COURT
M.S. Karnik, J.
Mahesh Baburao Dhavale – Appellant
versus
State of Maharashtra – Respondent
Appeal No.815 of 2023 with Interim Application No.1858 of 2023
Decided on 11.8.2023
Protection of Children from Sexual Offences Act, 2012 – Sections 22 and 33 – Criminal Procedure Code, 1973 – Sections 195 and 340 – False complaint – Offence committed is against minor victim, a school going child – It is not as if accused has come forward alleging that they have been falsely implicated – It is victim and her family who are wronged for they are seeking justice – To assume that accused must have settled the matter without any basis or materials on record is unjustified – Merely because victim and her father turned hostile is not sufficient to conclude that appellant has intentionally given false evidence – Victim and her family suffered trauma – Victim’s mother did stand up against accused – Present is not a case of making false complaint or providing false information – This is a case where prosecution failed to prove offence against accused – Complaint quashed. (Paras 23, 24 and 26)
Result: Appeal allowed.
JUDGMENT (ORAL)
The challenge in this appeal is to clause (vi) of the operative portion of the judgment and order dated 22/04/2022 passed by learned Extra Joint Additional Sessions Judge, Pune in Special Case (POCSO) No. 155 of 2017 and consequently, to quash and set aside the Regular Criminal Case No. 2323 of 2022 pending before learned Additional Chief Judicial Magistrate, Shivajinagar, Pune.
2. The appellant is the father of the minor victim girl. The accused faced trial in the special case before the POCSO Court for the offences punishable under Sections 354A, 324 w/34, 323 r/w 34, 427 r/w 34 of the Indian Penal Code, 1860 (“IPC”, for short) and under Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”, for short). The FIR came to be lodged by the complainant with Bharti Vidyapith Police Station, Pune. It is alleged that on 09/01/2017 at about 8.00 a.m., her daughter i.e. the victim had been to school. When she came back home, the victim was in a frightened condition. The victim informed that the accused had committed acts against her which is an offence punishable under the aforesaid sections. On being questioned by the complainant, the accused assaulted the complainant and the appellant herein.
3. The charge was framed against two accused for the offence punishable under Sections 354A, 324 r/w 34, 323 r/w 34, 427 r/w 34 and under Sections 8 & 12 of POCSO Act. The prosecution examined 6 witnesses. The appellant was examined as P.W.4. The trial Court framed the following issues and rendered the findings as under:—
| Sr. No. | Points | Findings |
| 1. | Does prosecution prove that on 09.01.2017 between 16:00 hours to 17:55 hours in washroom situated in the basement of Mahadic Hostel, Dhanakwadi, Pune and on 16th December at Ganesh Kalakrida Manch, Swarget accused No.1 Vijay followed a victim minor girl, pressed her breast and committed sexual harassment to her ? | Negative |
| 2. | Does prosecution further prove that on the aforesaid date, time and place accused Nos.1 and 2 in furtherance of their common intention voluntarily caused hurt to victim and her parents ? | Negative |
| 3. | Does prosecution further prove that on the aforesaid date, time and places accused Nos. 1 and 2 in furtherance of their common intention committed mischief by causing wrongful loss or damage to the articles of the institute of complainant ? | Negative |
| 4. | Does prosecution further prove that on the aforesaid date, time and place accused No.1 with sexual intent pressed breast of a victim minor girl is said to commit sexual assault ? | Negative |
| 5. | Does prosecution further prove that on the aforesaid date, time and place accused No.1 committed sexual harassment upon a victim minor girl ? | Negative |
| 6. | What order? | As per final order |
4. The trial Court for the reasons mentioned in the judgment and order, acquitted the accused; however, in the operative portion of the order at clause (vi) it is observed thus:—
“(vi) PW-4 Mahesh Baburao Dhavale resident of 27/5 Nande Building, Ganesh Nagar, Near Ram Mandir, Ambegaon Pathar, Pune-46 has given false evidence in the Court, and compelling victim to depose falsely in the Court, hence, the Office Superintendent of the District and Sessions Court, Pune is hereby directed to lodge complaint against him for offence punishable under Section 193 of the Indian Penal Code within two months from the date of this order and judgment.”
5. It is pertinent to mention that the appellant had preferred a Criminal Writ Petition No. 2211 of 2022 in this Court challenging clause (vi) of the operative order referred hereinabove. In the meantime, clause (vi) was acted upon and complaint came to be filed before the Judicial Magistrate First Class for prosecuting the appellant. The present appeal was therefore filed under Section
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