Bombay High Court
Pintu S/O. Kalidas Jambhule (In Jail) vs State Of Maharashtra Thr. P.S.O. P.S. ... on 13 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal225of17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL 225 OF 2017
Pintu s/o. Kalidas Jambhule,
Aged about 23 years, Occ. Labour,
R/o. Chak Bamhani, Tahsil Sindewahi,
District Chandrapur, .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer
Police Station Sindewahi,
District Chandrapur ....RESPONDENT
______________________________________________________________
Shri Mahesh Rai, counsel for the appellant.
Shri. S.S. Doifode, Addl. Public Prosecutor for respondent.
_____________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 13 th
MARCH, 2018
ORAL JUDGMENT :
Challenge is to the judgment and order dated 12.7.2016 rendered by the Additional Sessions Judge and Special Judge, Chandrapur in Special (POCSO) Case 28 of 2015 by and under which the appllant - accused is convicted for offence punishable under section 363 of Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs. 1,000/-, and for offence under section 366 of IPC and sentenced to suffer rigorous imprisonment for five years and to payment of fine of ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 2 apeal225of17 Rs. 1,000/0 and further for offence under section 376(i)(j)(n) of IPC and sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and for offence under section 5 read with section 6 of the Protection of Children From Sexual Offences Act, 2012 ("POCSO" for short) and sentenced to suffer rigorous imprisonment and to payment of fine of Rs.1,000/-.
The accused is however acquitted for offence punishable under section 417 of the IPC.
2 Heard Shri Mahesh Rai, the learned counsel for the accused and Shri S.S. Doifode, the learned Additional Public Prosecutor for the respondent / State.
3 Prosecution case:
PW 1 Kashinath Mohure lodged report dated 28.12.2014 at Police Station Sindewahi (Exh. 11) alleging that his daughter aged 16 years is kidnapped by the accused. The gist of the said report is that the victim left her residence at 10.00 a.m. on 22.12.2014 informing that she is going to her school. She did not return home. PW 1 and others searched for her. PW 1 then learnt that the victim is with the accused. On the basis of the said oral report and printed First ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 3 apeal225of17 Information Report Exh 12, offence punishable under section 363, 366 of IPC and under section 6 of the POCSO Act was registered against the accused. Investigation ensued during the course of which it transpired that the victim was induced to leave the custody of her parents on false promise of marriage and was subjected to sexual intercourse. The completion of the investigation led to submission of charge sheet for offence punishable under section 363, 366, 376(i)(j)(n), 417 of IPC and under section 6 of the POCSO Act in the Court of Judicial Magistrate First Class, Sindewahi, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge Exh. 4.
The accused abjured guilt and claimed to be tried. The defence is of total denial and false implication.
4 Shri Mahesh Rai, the learned counsel for the accused submits that the prosecution has not explained the undue delay in lodging the First Information Report. Concededly, the victim was in the custody of PW 1 on 24.12.2014 and the report was lodged on 28.12.2014, is the submission. Shri Rai would then submit that the victim PW 2 admits in the cross-examination that she returned home on 23.12.2014 and after the police formalities, she was in parental custody from 24.12.2014, which would render suspect the prosecution ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 4 apeal225of17 case that PW 2 was kidnapped. Shri Rai would submit that even if it is assumed, arguendo, that the accused established sexual relationship with the victim, the relationship was clearly consensual. The prosecution failed to prove that the victim was less than 18 years, is the submission. Per contra, the learned Additional Public Prosecutor Shri S.S. Doifode would support the judgment and order impugned. 5 PW 2 is the victim who states that her date of birth is 16.3.1999 and the incident occurred on 22.12.2014. she was going to school, was accosted by the accused and offered motorcycle ride to the school. The victim accompanied the accused, however, the accused took the victim to Dhorwasa at his relative's residence, is the deposition. She then states that the said relative then took the victim to the residence of the accused at Chak Bamhani. The accused established sexual contact with her and the victim resided with the accused for four days. The accused was assuring marriage, is the deposition. She states that after four days, she went to her house and narrated the incident to her parents.
It is elicited in the cross-examination of the victim that she narrated to the doctor when she was medically examined that she and ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 5 apeal225of17 the accused were in relationship since one year and that she and the accused performed marriage in temple at Chimur. It is elicited that she returned home the next day and after completion of the police formalities, she was taken to her parental house on 24.12.2014 and the report was lodged four days after she returned home. She admits that the love relationship was not acceptable to her parents. She admits that she and the accused belonged to different caste. She admits that her family members told her that since the marriage did not take place in their presence, they do not recognize the marriage. 6 The evidence of PW 2 is not confidence inspiring at all. The incident concededly took place on 22.12.2014. PW 2 admits to have returned home the next day on 23.12.2014 and after completion of the police formalities, to have gone home with her parents on 24.12.2014. However, in the examination in chief, her version is that she stayed at the residence of relative of accused on 22.12.2014 and 23.12.2014. The said relative left her at the house of the accused. She has deposed in the examination in chief that she stayed with the accused for four days during which period she was subjected to sexual intercourse twice. This evidence in the examination in chief is falsified by the admissions extracted in the cross-examination, to which a ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 6 apeal225of17 reference is made supra. The evidence would suggest that the accused and the victim were in love and that victim accompanied the accused, if at all, willingly.
7 PW 1 Kashinath Moharle is the father of the victim who lodged report on 28.12.2014. His testimony is inconsistent with the admissions elicited in the cross examination of PW 2. According to PW 1 he searched for PW 2 for four days but in vain. His version is that he learnt from Police Patil - Dharne that PW 2 is with the accused. PW 1 states that he went to Sindewahi Police Station and found the victim there. This version is inconsistent with the admission of the victim that she returned on 23.12.2014 and was united with her parents on 24.12.2014. Exh. 15 is a letter addressed by the parents of the victim to Police Inspector, Shindewahi Police Station dated 24.12.2014 to the effect that the victim was found with one Balaji Madhukar Meshram and that she had willingly left the village. The said letter Exh. 15 assures the Police Station Officer that the victim is hale and hearty and the parents of the victim do not have any grievance against anyone and no action be initiated against any person. The contents of Exh. 15 are admitted to be correct by PW 1 Kashinath. The said communication Exh. 15 is sufficient to demolish the prosecution version that the victim ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 7 apeal225of17 was kidnapped by the accused on 22.12.2014, that she resided with the accused for four days and during the said period she was subjected to sexual intercourse. Be it noted, that despite the categorical assertion in the letter dated 24.12.2014, four days thereafter a report came to be lodged alleging kidnapping. The defence of the accused that PW 1 did not approve of his proximity to the victim and it was only because he saw the accused and the victim talking after she returned home, that a false report was lodged on 28.12.2014 is more than probabilized on the touchstone of probabilities.
8 The medical evidence is that the hymen of the victim was found circumferentially ruptured. The rupture of the hymen per se is not necessarily indicative of sexual intercourse. However, even if the case of the prosecution is taken at face value, the sexual relationship is obviously consensual. It is in this context that the submission of the learned counsel Shri Rai that prosecution has not proved that the victim was less than 18 years needs consideration. 9 Shri Rai invites my attention to a Division Bench judgment of this Court Deepak s/o. Jitendra Sawant Vs. State of Maharashtra 2017 ALL MR (Cri) 2058 and in particular to the following ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 8 apeal225of17 observations:
"8. The First Information Report in the present case was lodged on 2.4.2013. There is no whisper in the First Information Report about the date of birth of prosecutrix, though she states her age as 14 years. She gave her date of birth during her evidence recorded on 1.9.2014 as 16.3.1999. The offences alleged to have been committed as per FIR (Exh.29) and printed FIR (Exh.30) were between March-2011 and 26.3.2013. Till the evidence of prosecutrix was recorded before the trial court, she never disclosed her date of birth. Investigating Officer did not bother to collect the birth certificate, school certificate or any other cogent material to indicate that date of birth of prosecutrix was 16.3.1999."
"9. Needless to state that provisions of PCSO Act are stringent in nature. The degree of proof is heavy and prosecution was under
legal obligation to establish age of prosecutrix clearly showing that at the time of incident, prosecutrix was "child" within the meaning of the provisions of PCSO Act. There is nothing on record to prima facie indicate that investigating officer made genuine efforts to get the proof of age of prosecutrix - Trial Court placed reliance on the solitary statement of prosecutrix in evidence for the first time to hold the prosecutrix as a "child" within the meaning of the Act. We are afraid that in the absence of conclusive proof of age of prosecutrix, which was easily available to the prosecution, reliance can be placed on a singular statement of prosecutrix, who claims her date of birth as 16.3.1999, for the first time in the course of evidence recorded in the court. If statement of prosecutrix regarding her date of birth goes away nothing remains on record to show the age of prosecutrix and in such a situation, accused could not have been convicted for the offences punishable under the PCSO Act, 2012."
P.W. 10 is the Head Master of Zilla Parishad Higher Primary School, Bhadurni who has deposed that the date of birth of the victim is recorded as 16.3.1999 in the admission register as is evident from entry 2015 (Exh. 52). PW 2 admits that the entries are taken on the ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 ::: 9 apeal225of17 basis of the previous leaving certificate. The document on the basis of which the entry is taken is not produced. Exh. 52 reveal that the victim was admitted in the School in the 5 th standard. The birth certificate, which is best possible evidence, is not produced. The prosecution has failed to prove beyond reasonable doubt, that the victim was less than 18 years of age when the alleged incident occurred.
In the light of the discussion supra, I have no hesitation in holding that the prosecution has failed to prove offences under section 363, 366, 376(i)(j)(n) of IPC and offence under section 5 read with section 6 of POCSO Act.
10 The judgment and order dated 12.7.2016 is set aside, the accused is acquitted of offences punishable under section 363, 366, 376(i)(j)(n) of IPC and offence under section 5 read with section 6 of POCSO Act.
11 Bail Bond stands discharged.
12 Fine paid by the accused, if any, be refunded to accused. 13 Appeal is allowed and disposed of accordingly.
JUDGE RSB ::: Uploaded on - 17/03/2018 ::: Downloaded on - 18/03/2018 01:16:24 :::