Bombay High Court
Shubham Rajesh Kanojia vs Stte Of Mah, Thr P.So. P.S. Jaripatka, ... on 7 August, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal385.19.J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.385 OF 2019
Shubham Rajesh Kanojia,
Aged about 25 years,
Occ:____,
R/o 668, MHADA Quarter No.56,
Nari Road, Nagpur. (In Jail). ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through Police Station Officer,
Police Station Jaripatka, Nagpur. ....... RESPONDENT
-------------------------------------------------------------------------------------------
Shri A. Shelat, Advocate for Appellant.
Shri C.A. Lokhande, APP for Respondent/State.
-------------------------------------------------------------------------------------------
CORAM: ROHIT B. DEO, J.
DATE: 7th AUGUST, 2019.
ORAL JUDGMENT:
This appeal is directed against the judgment dated 04.05.2019 rendered by the learned Additional Sessions Judge, Nagpur in Special Child Case 201 of 2016, whereby the appellant is convicted for offence punishable under Section 376(2)(i)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and is sentenced to suffer rigorous imprisonment for eleven years and to payment of fine of Rs.7000/-.
::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::
2 apeal385.19.J.odt
2] The prosecution case:-
[i] The victim is adopted from Shradhanand Anath
Ashram, Abhyankar Nagar, Nagpur on 04.10.2005. [ii] PW-1 Smt. Sneha Raut is the adoptive mother of the victim. Her husband expired in the year 2006.
[iii] PW-1 lodged a report dated 22.04.2016 at the Jaripatka Police Station, Nagpur, alleging that the accused established sexual relationship with the victim by promising marriage, the victim conceived and without her consent the accused caused the fetus to abort.
[iv] The report alleges that the victim is aged 14 years and was studying at Guru Harikisan Public School, Bezanbag, Nagpur in the 8th Standard. The victim discontinued studies from 25.10.2010.
[v] PW-1 is serving at ESIC Dispensary, Butibori, as Medical Officer. It is alleged in the report that while PW-1, was attending her duties, she received a call from the victim conveying ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 ::: 3 apeal385.19.J.odt that she was suffering from severe stomach ache. [vi] PW-1 returned home and found that the victim was weeping. PW-1 made inquiries and was told by the victim that one year ago, the accused established sexual contact with her. The allegation is that before establishing sexual contact the accused used to express his love for the victim and ask the victim to marry him.
[vii] It is alleged in the report that the victim disclosed to PW-1, that she was threatened that should the sexual relationship be disclosed, the accused would kill the mother of the victim (PW-1). Further, allegation in the report is that the victim due to fear did not disclose sexual relationship to anybody and that the accused continued to visit her house and to establish sexual contact, in the absence of PW-1.
[viii] The report states that victim missed her menses in February, 2016 and narrated this fact to the accused on 19.04.2016. The accused gave certain tablets to the victim who consumed the tablets and thereafter suffered the stomach ache. ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::
4 apeal385.19.J.odt [ix] On the basis of the report dated 22.04.2016, offences punishable under Sections 376, 376 (1)(n), 313 of the Indian Penal Code and Section 3(a), 4, 5(l)(j)(2) and 6 of the Protection of Children from Sexual Offences Act and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were registered at the Jaripatka Police Station, Nagpur. [x] The investigation was carried out on the usual lines. The accused was arrested. The statements of the witnesses were recorded. The biological samples were collected and sent for DNA examination. The birth certificate of the victim issued by the Nagpur Municipal Corporation, Nagpur, which recorded the date of birth 20.03.2002 was obtained.
[xi] Upon completion of the investigation, the final report was submitted in the Special Court.
[xii] The learned Sessions Judge, framed charge Exh.6 under Section 376(i)(n) of the Indian Penal Code and under Section 3(a), 4, 5 (l)(j)(2) and 6 of the POCSO Act and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused abjured guilt and claimed to be ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 ::: 5 apeal385.19.J.odt tried in accordance with law. The defence of the accused is of total denial.
[xiii] The prosecution examined as many as 11 witnesses. PW-1 is the informant Smt. Sneha who is the mother of the victim, PW-2 is the victim, PW-3 Harish Bawankar is the medical shop owner, PW-4 Shubham is a panch witness, PW-5 who did not support the prosecution is examined to throw light on the relationship between the accused and the victim, PW-6 Dr. Dharmendra Sulbhewar examined the accused and the victim, PW-7 Ramesh Taiwade is one of the Investigating Officer, PW-8 Arun Bakal is also an Investigating Officer, PW-10 Prafulla Shirke recorded the complaint of PW-1 and took certain steps in the investigation and PW-11 Rohini Bhoyar supervised the medical examination which was conducted by the Junior Resident Doctor PW-6.
[xiv] The accused examined Atiqur Rehman Zulfiquar Khan (DW-1) the Medical Officer and Sub-Registrar at the Nagpur Municipal Corporation, Vitthal Devgirkar (DW-2) who is residing in the locality in which the residence of PW-1 is situated and Smt. Lalita Gawande who is a social worker associated with ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 ::: 6 apeal385.19.J.odt Shri Shradhanand Anath Ashram, Nagpur.
[xv] The learned Sessions Judge convicted the accused as aforestated.
[xvi] The learned Sessions Judge recorded a finding that the sexual relationship was consensual. However, the learned Sessions Judge held that the victim was minor and therefore, the accused is guilty of offence punishable under Section 376(2)(i)(n) of IPC and Section 4 and 6 of the POCSO Act. The learned Sessions Judge acquitted the accused of offence punishable under Section 313 of IPC and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. [3] I have given anxious consideration to the evidence on record, and having done so, I am in complete agreement with the finding recorded by the learned Sessions Judge that the sexual relationship was consensual. The version of the victim is that the accused was residing in front of her house, used to visit her house in the absence of her mother and used to establish sexual contact. The victim does state that the accused threatened her that either the victim or her mother will be killed if the accused is not allowed ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 ::: 7 apeal385.19.J.odt to have physical relationship. This assertion is unbelievable. The victim admits that she used to disclose to her neighbour the visit of any person to her house should such person visit in the absence of her mother. The victim admits that she did not disclose to her neighbour or mother that the accused visited her. It is not the version of the victim that the physical relationship was established only once. The version is that the accused established physical contact on multiple occasions and the first disclosure by the victim is only on suffering from the stomach ache. Notably, the version of the victim is that when she missed her menses she informed the accused and not to her mother. The finding of the learned Sessions Judge that the sexual relationship was consensual is unexceptionable.
[4] The fate of the appeal hinges on the finding on age determination. The learned Sessions Judge has found that the prosecution proved that the victim was a minor when she was subjected to sexual intercourse. It would be necessary to minutely scrutinize the evidence on record in order to ascertain whether the prosecution has proved the age of the victim beyond reasonable doubt, for on the inference to be drawn on the basis of such scrutiny depends the liberty of the accused.
::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::
8 apeal385.19.J.odt [5] Exhibit 29 is the birth certificate of the victim which is issued by the Nagpur Municipal Corporation on 10.11.2009. [6] The certificate note that the date of birth 20.03.2002 is recorded and the birth certificate issued in view of the order of the Court. The deed of adoption Exhibit 30 is executed on 30.09.2006 between Smt. Sneha Raut (PW-1) and Smt. Lalita Gawande (DW-3) pursuant to the order of the 4 th Additional District Judge, Nagpur in Miscellaneous Adoption Application 206 of 2006. The order dated 28.04.2006 in Miscellaneous Civil Application 206 of 2006 records thus:
4. From the inquiry conducted by me, I finding that "ARATI" was born on 20.03.2002 and, therefore, in her own welfare and interest, it would be necessary to direct Municipal Authorities to register her said date of birth in the records. I also find no impediment in allowing the applicants to change name of "ARATI" as 'ARJOO'.
The operative part of the order inter alia grants permission to adopt and directs that the date of birth of the child shall be recorded as 20.03.2002.
[7] DW-1 has deposed that the registration of date of birth of the victim was on the basis of adoption deed and the order ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 ::: 9 apeal385.19.J.odt of District Court and that no other material was made available by Mr. Ashok Raut. In the cross-examination on behalf of the prosecution, DW-1 states that if there is delay of more than one year in registering the birth, then entry of date of birth is taken on the basis of order passed by Judicial Magistrate First Class. DW-2 Vitthal Devgirkar has deposed that when Shri and Smt. Raut came to reside in the locality in the year 1996, the victim was adopted one or two years thereafter (1997-1998) and the victim was 7 to 8 years old. DW-3 Smt. Lalita Gawande who is associated with Shri Shradhanand Anath Ashram, Nagpur and who is a party to the adoption deed has deposed that the institution is not aware of the date of birth of the victim. DW-3 has deposed that the institution is not aware who were the parents of the victim. DW-3 states that the age of the abandoned child is noted as per opinion given by Doctor and direction of CWC. She admits not having brought the report of the Doctor and then volunteers that Doctor does not give such report regarding date of birth to the institution. [8] It is irrefutable that there is no material on record which leads to any inference with any degree of certainty that the victim was a minor. The date of birth recorded in the birth certificate is in view of the direction issued by the District Court. ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::
10 apeal385.19.J.odt [9] The learned District Judge was exercising power under Section 9(4) of Hindu Adoptions and Maintenance Act, 1956. Permission to adopt the victim was necessary since her parentage was not known and she was an abandoned child. The only relevant consideration for exercise of such power is the welfare of the child. The Court is entitled to give due consideration to the wishes of the child having regard to the age and understanding of the child and that to ascertain that there is no monetary incentive or inducement. The age of the child is referred to in sub-section (5) of Section 9 only in the context of considering the wish of the child. The legislative intent is that if the wish of the child can be ascertained considering the age and understanding, that such wish would be a relevant consideration to determine whether the adoption is in the welfare of the child. [10] The learned District Judge has observed that from the inquiry conducted the date of birth of the victim is found to be 20.03.2002. The nature of the inquiry is not clear from the order. Concededly, the victim was an abandoned child and her parentage is unknown. The institution is not aware of the date of birth. Axiomatically, the adoptive mother would be equally unaware of the date of birth of the child. Be it noted, that the observation of ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 ::: 11 apeal385.19.J.odt the learned District Judge while deciding an application under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 is not a relevant fact either under Section 41 or 42 or 43 of the Indian Evidence Act, 1872. At this stage, the provisions of Section 13 of the Registration of Births and Deaths Act, 1969 may be noted. Section 13 reads thus:
13. Delayed registration of births and deaths.--
(1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed.
(2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government.
(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.
(4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action.::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::
12 apeal385.19.J.odt In view of sub-section 3 of Section 13, any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order by Magistrate of the First Class or Presidency Magistrate after verifying the correctness of birth or death. Concededly, the direction issued by the learned District Judge is not pursuant to power under Section 13(3) which is vested in the Magistrate and the exercise of which power is dependent on the verification by the Magistrate of the correctness of the birth or death. In my considered view, the observation of the learned District Judge of having found that the child is born on 20.03.2002 is of no evidentiary value and needless to record the birth certificate issued solely on the basis of the direction issued by the learned District Judge while deciding an application under Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 does not take the case of prosecution any further in proving that the victim was a minor.
[11] I have no hesitation in recording that the prosecution failed to prove that the victim was a minor and therefore, in view of the finding recorded by the learned Sessions Judge, with which finding I entirely agree, that the sexual relationship was consensual, the judgment of conviction is unsustainable. ::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::
13 apeal385.19.J.odt [12] The judgment of conviction dated 04.05.2019 rendered by the learned Additional Sessions Judge, Nagpur in Special Child Case 201 of 2016 is set aside.
[13] The accused is acquitted of offences punishable under Section 376(2)(i)(n) of the IPC and Section 4 and 6 of the POCSO Act.
[14] The fine paid by the accused, if any, shall be refunded.
[15] The accused shall be released from custody forthwith unless his custody is required in connection with any other crime.
[16] The appeal is allowed.
JUDGE
NSN
::: Uploaded on - 09/08/2019 ::: Downloaded on - 09/08/2019 21:10:13 :::