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BOMBAY HIGH COURT
ANUJA PRABHUDESSAI, J
Shailesh Ramesh Jaiswal – Appellant
Versus
The State of Maharashtra and Anr. – Respondent
Criminal Appeal No. 1142 of 2019
For the Appellants/Petitioners: Mr. Dinesh Tiwari, Mr. Mikhail Dey, Ms Rajni Mishra, Mr. Aush Karnawat
For the Respondents: Mr. S.V. Gavand, APP, Ms Deepa Amati
The court emphasized the need for reliable evidence to support allegations under sexual offences laws, especially concerning age verification in POCSO cases.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 374 - Protection of Children from Sexual Offences Act, 2012 - Sections 2(d), 6, 12 - Appeal against conviction of appellant for sexual offences - Court quashed conviction citing failure of prosecution to prove victim's age under POCSO Act, hence reducing the charge to IPC offences of 376(2) and 506 instead. (Paras 1, 6, 13)
(B) Testimony of Victim - Reliability of victim's account was undermined by contradictions regarding her consent and conduct post-incident. (Paras 10, 12)
(C)
Findings of Court:
The acquittal was based on insufficient evidence to establish non-consensual relationship under POCSO Act and contradictions in victim’s testimony led to reasonable doubt about the charges. (Paras 8, 13)
(D)
Result: Appellant acquitted and released. (Paras 13, 14)
| Table of Content |
|---|
| 1. overview of appeal against a conviction under ipc and pocso. (Para 1 , 2) |
| 2. details of the complaint and initial police actions. (Para 3 , 4 , 5) |
| 3. judicial findings on the evidence and issues of consent. (Para 6 , 12) |
| 4. final judgment leading to acquittal based on lack of evidence. (Para 8 , 13 , 14) |
ORAL JUDGMENT:-
1.This is an appeal under Section 374 of the Code of Criminal Procedure , 1973 challenging the judgment and order dated 22/07/2019 in POCSO Special Case No.482 of 2014, Greater Bombay.
2. By the impugned judgment, the learned Special Judge, Greater Bombay has held the Appellant (hereinafter referred to as ‘the accused’) guilty of offences punishable under Sections 376(2) and 506 of the IPC and sentenced him to undergo rigorous imprisonment for 10 years with fine of Rs.25,000/- i/d to undergo rigorous imprisonment for three months for offence punishable under Section 376(2) of the IPC and rigorous imprisonment for one year with fine of Rs.5,000/- i/d rigorous imprisonment for one month for offence punishable under Section 506 of the IPC.
3. Brief facts necessary to decide this appeal are as under:-
PW1- WPC Ms Yogita Rahane, attached to Jogeshwari Police station lodged a report at the same police station alleging that on 09/09/2014 while she was on duty, wife of the accused had come to the police station alongwith the victim, stated to be her cousin and had reported that the accused had sexual relationship with the victim and had threatened her not to disclose the incident to anyone. Since the wife of the accused and the victim were not ready to lodge the report, PW1 lodged the report on behalf of the State.
4. Pursuant to the said report, PW8- API Santosh Khandekar registered the crime for offences punishable under Sections 376(2) and 506 of the IPC and under Sections 6 and 12 of the Protection of Children from Sexual Offences Act , 2012 (POCSO Act), conducted spot panchanama at Exhibit-27 and arrested the accused under arrest panchanama at Exhibit-34 and referred the accused and the victim for medical examination. PW9-PSI Hasina recorded the statement of the victim. Further investigation was conducted by PW11-PI Suryakant. He seized the clothes of the accused. He also seized CPU of HCL Company, monitor of HCR and LCR Company, keyboard, mobile, etc. under seizure panchanama at Exhibits-29 and 32. He recorded statements of the witnesses and upon completion of the investigation submitted the charge sheet.
5. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution in support of its case examined 12 witnesses. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure . Defence of the accused was of total denial and of false implication. In defence, the accused examined DW1-Sadhna, his wife-Geeta (DW2) and Ram Manohar (DW3).
6. Learned Judge upon appreciation of evidence on record has held that the prosecution has failed to establish that the victim was below 18 years of age and consequently failed to prove that the victim was a ‘child’ within the meaning of Section 2 (d) of the POCSO Act. The learned Judge therefore acquitted the accused of offences punishable under Sections 6 and 12 of the POCSO Act. Relying upon the evidence of PW4 the learned Judge held that the Accused herein had repeated sexual intercourse with the victim without her consent and against her wish and that he had threatened her not to disclose the incident to anyone. The learned Judge therefore held the accused guilty of offences punishable under Sections 376(2) and 506 of the IPC and sentenced him as stated above. Being aggrieved by the judgment, the Appellant has filed this appeal under Section 374 of the Cr.P.C.
7. Heard Mr. Dinesh Tiwari, learned counsel for the accused, Mr. S.V. Gavand, learned APP for Respondent No.1 and Ms Deepa Amati for Respondent No.2. I have perused the records and considered the submissions advanced by learned counsel for the respective partie
