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BOMBAY HIGH COURT
R.G. Avachat and Neeraj P. Dhote, JJ.
Shashikant @ Dada S/o Bhaurao Garad – Appellant
versus
State of Maharashtra and Anr. – Respondents
Criminal Appeal No.1177 of 2019
Decided on 17.1.2024
(A) Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Protection of Children from Sexual Offences Act, 2012 – Section 34 – Determination of age – Wherever dispute with respect to age of a person arises in context of her or him being a victim under POCSO Act, courts have to take recourse to steps indicated in Section 94 of JJ Act – Date of birth certificate from school or matriculation or equivalent certificate by concerned examination board has to be firstly preferred in absence of which birth certificate issued by Corporation or Municipal Authority or Panchayat – It is only thereafter in absence of these such documents age is to be determined through Ossification Test” or any other latest medical age determination test conducted on orders of Committee or Board or Court. (Paras 13 and 14)
(B) Protection of Children from Sexual Offences Act, 2012 – Sections 3 and 4 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 3(1) (r) (s) (w) and 3(2) (v) – Indian Penal Code, 1860 – Sections 376 (2)(i) and 506 – Criminal Procedure Code, 1973 – Section 374(2) – Rape and criminal intimidation of minor girl – Conviction and sentence – In present case, only a transfer certificate and not date of birth certificate or matriculation or equivalent certificate was considered to ascertain date of birth of victim – Burden to prove age of Victim girl was on prosecution by bringing in evidence documents as required under law – Evidence in respect of Victim’s age is not concrete – Evidence of Victim’s brother is also of no assistance to prosecution to prove charge – Medical evidence rules out sexual assault on victim – There is no credible evidence to prove charge against Appellant – Testimony of victim girl is not at all trustworthy – Appellant/accused acquitted from all charges levelled against him. (Paras 9, 10, 17, 19 and 24)
Result: Criminal Appeal allowed.
JUDGMENT
Neeraj P. Dhote, J.—This is an Appeal under Section 374(2) of the Code of Criminal Procedure [for short ‘CrPC’] against the conviction of the Appellant for the offences punishable under Sections 376 (2)(i), 506 of the Indian Penal Code, 1860 [for short “IPC”], under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 [for short “POCSO Act”] and under Sections 3(1) (r) (s) (w) and 3(2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 [hereinafter referred to as “the SC ST Act”], recorded by the learned Additional Sessions Judge, Kopargaon vide Judgment and Order dated 16.10.2019 passed in Spl. Case No. 26 of 2018 arising out of the Crime No. 33/2018 registered with Kopargaon City Police Station on the report lodged by Victim’s father - Balu Popat Gangurde (PW5).
2. Prosecution’s case as revealed from the Police report is as under:—
2.1. The informant is the father of the Victim girl and belongs to Scheduled Tribe category. He resides with his family comprising wife, two daughters including Victim girl and son, at Gaware Vasti, Kopargaon. On 18.02.2018, the informant had gone to Mukhed, Taluka Yeola, Dist. Nashik for attending the wedding of one of his relatives. His wife and elder daughter had gone for labour work. The Victim girl and her younger brother were at home. When the informant returned to his home in the evening at about 04:00 p.m., the Victim informed him that when she had gone in the Sorghum (Jowar) crop standing in the field of one Mr. Kolhe at about 03:00 p.m., an unknown person wearing blue colour shirt and jeans pant came to her, forcibly caught hold of her hands, gagged her mouth, threatened her and committed rape on her.
2.2. The father of Victim informed about the said incident to the persons from his area, namely, Ganesh Gaware, Suresh Wagh, Pinu More and other 10-15 persons. The informant and the said persons went to the field of Mr. Kolhe to trace out the accused. They caught hold of the Appellant in the field. The matter was reported to the police and the Crime as referred to above, came to be registered.
2.3. During the course of investigation, the Investigating Officer recorded the statement of Victim girl and got her medically examined, got the Appellant medically examined, seized their clothes, conducted spot panchanama, collected the blood samples, sent the muddemal for chemical analysis, recorded the statement of witnesses and on completion of investigation, submitted the charge-sheet against the Appellant. The learned trial Court framed the Charge against the Appellant at Exh.15 to which the Appellant pleaded not guilty and claimed to be tried. To establish the Charge, the prosecution examined in all fourteen (14) witnesses and brought on record relevant documents. After the prosecution closed its evidence, the learned trial Court recorded the Statement of Appellant under Section 313 (1) (b) of the Cr.P.C. and thereafter passed the impugned Judgment and Order.
3. Heard learned advocate for the Appellant and the learned APP for the State.
4. It is submitted by the learned advocate for the Appellant that the prosecution failed to prove that the Victim girl was minor and, therefore, the conviction under the POCSO Act falls down. He submitted that, it is clear from the evidence available on record that the Appellant and the Victim were knowing each other since long and there was consensual relationship between them, therefore, the offences under the IPC and the SC ST Act are not made out. It is also submitted that the learned trial Court has erroneously appreciated the evidence available on record and the Appeal be allowed. In support of his submissions, he cited the following judgments and submitted that the Appeal be allowed.
(i) Aman Kumar and Another Versus State of Haryana, (2004) SCC (Cri) 1266
(ii) Sanjeev Kumar Gupta Versus State of Uttar Pradesh and Another, (2019) 4 SCC (Cri) 379
(iii) Rajak Mohammad Versus State
Determination of age – Wherever dispute with respect to age of a person arises in context of her or him being a victim under POCSO Act, courts have to take recourse to steps indicated in Section 94 o....
Prosecution failed to sufficiently prove the victim's age or the alleged offences, resulting in the acquittal of the accused due to insufficient evidence.
The prosecution must prove foundational facts of age and sexual assault beyond reasonable doubt, even with statutory presumptions under the POCSO Act.
The conviction in sexual offences requires credible and reliable evidence, especially regarding the victim's age, and reliance solely on secondary evidence without primary proof is insufficient.
Prosecution must establish victim's age and consent beyond reasonable doubt; reliance on unverified documents and lack of corroboration leads to acquittal in sexual assault cases.
The prosecution must prove foundational facts, including the victim's age, beyond reasonable doubt, even under statutory presumptions of the POCSO Act.
The court held that discrepancies in the victim's testimony and lack of corroborating evidence created reasonable doubt, leading to the appellant's acquittal.
The court held that the uncorroborated testimony of a minor victim in a sexual assault case can sustain a conviction, provided it is credible.
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