Bombay High Court
Vasant Shankar Waghmare vs The State Of Maharashtra And Anr on 12 April, 2022
Author: C.V. Bhadang
Bench: C.V. Bhadang
901-apeal-393-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 393 OF 2020
Vasant Shankar Waghmare
Age 32 years, Occ. Nil,
R/at. Galsurekathi, Adivasiwadi,
Tal.: Shriwardhan, District. Raigad ..Appellant
Vs.
1. The State of Maharashtra
Through Shriwardhan Police Station
2. Ms. X through her father
Mr. Rajanikant Rajaram Kolekar
R/at. Nigadi Kathi, Shriwardhan
District Raigad. ..Respondents
----
Digitally
Mr. Irfan A. Shaikh, Advocate for the Appellant (Appointed).
MAMTA
signed by
MAMTA
AMAR
Mr. S. H. Yadav, APP for the Respondent / State.
AMAR
KALE
KALE
Date:
2022.04.13
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18:23:26
+0530
CORAM : C.V. BHADANG, J.
RESERVED ON : 18 NOVEMBER 2021
PRONOUNCED ON : 12 APRIL 2022
Judgment :
. By this Appeal, the Appellant is challenging the judgment and
order dated 14 November 2018 passed by the learned Special Court
at Mangaon, District Raigad in Special Case (POCSO) No.14/2017.
By the impugned judgment, the Appellant - Accused has been
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convicted for the offence punishable under Section 376, 363, 366A
and 506 of the Indian Penal Code and Section 4 and 6 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act). The sentence of ten years of Rigorous Imprisonment and fine
has been awarded under Section 366A of IPC and Section 6 of the
POCSO Act. Separate sentence has been awarded under other
Sections.
2. The prosecution case may be briefly stated thus
The victim (P.W.2) is a girl who at the relevant time was
studying in 10th standard in Galsure Vidya Mandir. She is the
daughter of Complainant Rajanikant Polekar (P.W.1). On 16 May
2017, at about 9.30 p.m. the Complainant and his family members
took meals and went to sleep. At about 5.45 a.m. the Complainant's
wife informed him that the victim is missing and therefore her
search was taken with the relatives and her friends. As the victim
could not be traced, a missing complaint came to be lodged, on the
basis of which Crime No.41/2017 was registered. After the victim
returned to her house, her statement came to be recorded in
presence of members of Mahila Dakshata Committee and lady
Police Naik. She was referred for medical examination to Civil
Hospital at Alibag. According to the victim, the Appellant used to
visit her house in the absence of her parents and had forcible sexual
intercourse with her on two to three occasions on account of which
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she became pregnant. The Appellant accordingly came to be
arrested and after completion of investigation, a chargesheet was
filed.
3. The learned Special Judge framed charge against the Appellant
for the offence punishable under Section 376, 363, 366A and 506
of IPC and Section 3(a), 4, 5 and 6 of the POCSO Act. The
Appellant pleaded not guilty to the charge and claimed to be tried.
The defence of the Appellant is one of total denial and false
implication.
4. At the trial, the prosecution examined in all four witnesses and
produced the record of investigation. The Appellant did not lead
any evidence in defence.
5. The learned Special Judge by the impugned judgment has
found the Appellant guilty. Hence this Appeal.
6. I have heard Mr. Irfan Shaikh, the learned counsel for the
Appellant and Mr. Yadav, learned APP for the Respondent / State.
With the assistance of the learned counsel for the parties, I have
gone through the record.
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7. The learned counsel for the Appellant has mainly challenged
the prosecution case, as to the age of the victim, in order to submit
that the prosecution has not established that the victim was a 'child'
within the meaning of the said Act. It is submitted that P.W.1 has
not mentioned the date of birth of P.W.2 in the complaint (Exh.13)
except mentioning that she was 15 years and 11 months of age. In
the submission of the learned counsel, it is necessary for the
Complainant to mention the date of birth of the victim, in the
complaint, in the absence of which, the evidence as to the date of
birth, subsequently led cannot be accepted. For this purpose,
reliance is placed on the judgment of this Court in Ravi Anandrao
Gurpude Vs. State of Maharashtra 1. It is submitted that the learned
Special Judge was in error, while observing in para 23 of the
judgment that various documents as referred in the said para are
admitted by the Appellant. It is submitted that except the spot
panchanama (Exh.24) seizure panchanama of the clothes of the
victim (Exh.25) and the spot panchanama (Exh.26), the other
documents are not admitted. It is submitted that the prosecution is
required to establish the age of the victim in accordance with the
Juvenile Justice (Care and Protection of Children) Act 2015 and the
Rules framed thereunder. The learned counsel in this regard has
placed reliance on the decision of the Supreme Court in Jarnail
Singh Vs. State of Haryana2. It is submitted that as per Rule 12 of
1In 2011 ALL MR (Cri.) 1509
22013 AIR (SC) 3467
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the 2007 Rules, framed under the Juvenile Justice (Care and
Protection of Children) Act, 2000 (Act of 2000), the prosecution is
obliged to first obtain the school certificate which is not done in this
case, although P.W.2 had admittedly appeared for the standard 10 th
examination. It is submitted that the evidence of P.W.3 Shailesh
Patil who is a Gram Sevak working at Nigadi is not sufficient to
prove the birth certificate (Exh.12). The learned counsel also
submitted that P.W.3 has admitted that there is a overwriting in the
said certificate and the said correction is not shown to be carried out
in accordance with the Registration of Births and Deaths Act, 1969
(Act of 1969) and the Rules framed thereunder. He therefore
submitted that no reliance can be placed on the evidence of P.W.3
and no presumption can arise in the absence of the said date of birth
being recorded in accordance with the provisions of the said Act and
unless it is shown that the certificate is issued in accordance with the
said Rules. It is submitted that the Rules require a copy of the birth
certificate being issued to the person at the instance of whom, the
birth is registered. It is pointed out that P.W.1 has not produced any
such certificate obtained at the time when the birth was registered.
Reliance is placed on the decision of the Supreme Court in Tomaso
Bruno and Anr. Vs. State of Uttar Pradesh 1 and Om Prakash Berlia
and Anr. Vs. Unit Trust of India & Ors.2. It is thus submitted that
P.W.2 is not shown to be a 'child' and therefore the conviction under
12015 Cri.l.j. 1690
21983 AIR (Bombay) 1
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the said Act cannot be sustained. In so far as the offence under
Section 376 of IPC is concerned, it is submitted that the evidence of
P.W.2 would show that she was a consenting party and therefore no
offence under Section 376 would be made out.
8. Learned APP has placed reliance on the Rules framed by the
State Government under the Act of 1969 and a notification by
which the Gram Sevak has been authorised as a Registrar within the
jurisdiction of Gram Panchayat under the Said Act. He submitted
that evidence of P.W.3 is sufficient to establish the birth certificate
(Exh.12) which shows the date of birth of P.W.2 as 17 June 2001. He
submitted that age of P.W.2 on the date of incident was 15 years and
11 months and she was a child. It is submitted that the decisions on
which reliance is placed on behalf of the Appellant turned on their
own facts. In the submission of learned APP, none of these
judgments lay down that it is peremptory to mention the date of
birth in the complaint. It is submitted that any such requirement
would run counter to the object of the said Act, as there may be
cases where birth may not be registered and/or the birth certificate
may not be available. It is submitted that the evidence of P.W.2 who
had attained the age of understanding, alongwith the evidence of
P.W.1 is sufficient to establish that the Appellant had sexually
exploited P.W.2 on account of which she became pregnant and
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delivered a child. He therefore submitted that the prosecution has
established the charge beyond reasonable doubt.
9. I have considered the rival circumstances and the submissions
made.
10. The material issue is about the age of the victim and whether
the prosecution has established that she was a 'child' on the date of
the incident, within the meaning of POCSO Act. Section 2(d) of
the POCSO Act defines a 'child', to be a person, below the age of 18
years. According to the prosecution, the date of birth of P.W.2 is 17
June 2001 and she was 15 years and 11 months of age, as on the date
of the incident. The specific birth date is not mentioned in the FIR
Exh.13. The prosecution has produced a birth certificate (Exh.12)
issued by P.W.3 Shailesh Patil who is working as a Gram Sevak at
Nigadi. He has stated that the said certificate is issued on the basis
of the original birth and death register maintained by their office.
Although P.W.3 had produced the original birth certificate at the
time of examination, a copy of the relevant extract of the register has
not been retained on record. In the cross examination, he has
admitted that there is certain overwriting in respect of the date of
birth, in so far as the month is concerned. The learned counsel for
the Appellant has strenuously urged that any such correction has not
been shown to be carried out in accordance with the Act of 1969.
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11. Be that as it may, the learned counsel for the Appellant has
placed strong reliance on the decision of the Supreme Court in
Jarnail Singh (supra) in order to submit that even under the POCSO
Act where the child is a 'victim', the issue of determination of age is
governed by the provisions of the Juvenile Justice (Care and
Protection of Children) Act and the rules framed thereunder.
Specific reliance is placed on Rule 12(3) of 2007 Rules framed
under the Act of 2000.
12. In order to appreciate the contentions raised, it would be
necessary to reproduce Rule 12(3) of the Rules of 2007 framed
under the Act of 2000 which is relevant for the purpose, which reads
thus-
12. Procedure to be followed in determination of
age-
(1) ---------
(2) ---------
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the Court or the Board or, as the case
may be, the Committee by seeking evidence by
obtaining-
(a)(i) the matriculation or equivalent certificates, if
available, and in the absence whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;
(iii) the birth certificate given by a corporation or
a municipal authority or a panchayat;
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(b) and only in the absence of either (i),(ii) or (iii) of
clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the
margin of one year,
and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the
juvenile in conflict with law.
(4) ------
(5) ------
(6) ------
13. In Jarnail Singh, Supreme Court was dealing with a challenge
to the conviction of the Appellant under Section 376 of IPC. One
of the issues was whether the act was consensual. Considering the
fact that it was a case of gang rape, the Supreme Court found that it
cannot be consensual in nature. In so far as the manner in which
the age of the victim is to be determined, the Supreme Court has
referred to Rule 12 of the 2007 Rules framed under the Act of
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2000. In para 20 of the judgment, the Supreme Court has held
thus-
Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we
are of the view that the aforesaid statutory provision
should be the basis for determining age, even for a
child who is a victim of crime. For, in our view, there
is hardly any difference in so far as the issue of
minority is concerned, between a child in conflict with
law, and a child who is a victim of crime. Therefore, in
our considered opinion, it would be just and
appropriate to apply Rule 12 of the 2007 Rules, to
determine the age of the prosecutrix VW-PW6. The
manner of determining age conclusively, has been
expressed in sub-rule (3) of Rule 12 extracted above.
Under the aforesaid provision, the age of a child is
ascertained, by adopting the first available basis, out of
a number of options postulated in Rule 12(3). If, in
the scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available, would conclusively
determine the age of a minor. In the scheme of Rule
12(3), matriculation (or equivalent) certificate of the
concerned child, is the highest rated option. In case,
the said certificate is available, no other evidence can
be relied upon. Only in the absence of the said
certificate, Rule 12(3), envisages consideration of the
date of birth entered, in the school first attended by
the child. In case such an entry of date of birth is
available, the date of birth depicted therein is liable to
be treated as final and conclusive, and no other
material is to be relied upon. Only in the absence of
such entry, Rule 12(3) postulates reliance on a birth
certificate issued by a corporation or a municipal
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authority or a panchayat. Yet again, if such a
certificate is available, then no other material
whatsoever is to be taken into consideration, for
determining the age of the child concerned, as the said
certificate would conclusively determine the age of the
child. It is only in the absence of any of the aforesaid,
that Rule 12(3) postulates the determination of age of
the concerned child, on the basis of medical opinion.
14. It can thus be seen that the Supreme Court has held that there
is hardly any difference in so far as the issue of minority is concerned
between a 'child in conflict with law' and a 'child' who is a victim of
crime. Rule 12 has now been incorporated in the form of Section 94
of the Act of 2015. It envisages that the age has to be determined
firstly on the basis of the matriculation or equivalent certificate, if
available and in absence thereof on the basis of the date of birth
certificate from the school (other than the play school), first attended
by the victim. It is only in the absence of matriculation or
equivalent certificate or the date of birth certificate from the school
first attended, that the medical opinion in respect of the age
determination becomes relevant and can be taken into
consideration. The Supreme Court has held that the highest rated
option is the matriculation or equivalent certificate, if available.
15. Coming to the present case, the prosecution has produced the
birth certificate (Exh.12) on the basis of evidence of P.W.3.
However, the prosecution has not produced the extract of relevant
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birth register maintained by the Village Panchayat, on the basis of
which the certificate (Exh.12) is issued. Although, no much
significance can be attached to the contention on behalf of the
Appellant about there being overwriting in the birth certificate, for
the reason that the said overwriting is in respect of the month and
would not make any difference, in as so far as year of birth is
concerned, the fact remains that although the victim had studied
upto 10th standard, the matriculation or equivalent certificate which
the Supreme Court has held to be 'highest rated option' has not been
obtained by the Investigating Officer. Not even the second option
namely the birth certificate from the school first attended has been
produced on record. As indicated earlier, even going by the
certificate (Exh.12), the prosecution has not produced the extract of
the birth register from the Village Panchayat.
16. The Division Bench of this Court in case of Ravi Anandrao
Gurpude (supra) has held that the provisions of the Act are stringent
in nature and therefore, a stricter degree of proof, would be required
and has to be insisted upon. Thus, the prosecution is required to
establish by acceptable evidence that the victim was a child within
the meaning of the said Act at the time of the incident.
17. Thus, in my considered view, the prosecution has failed to
establish beyond reasonable doubt, that the victim was a 'child' on
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the date of incident and therefore, the conviction under the
provisions of the POCSO Act cannot be sustained.
18. Coming to the offence under IPC, the possibility of P.W.2
being a consenting party cannot be ruled out. P.W.2 states that the
Appellant used to come to her house. They were knowing each
other since last seven years and the Appellant used to have sexual
intercourse with her in the absence of her parents and this happened
about 2 to 3 times on account of which P.W.2 became pregnant and
delivered a child. In the cross examination, she has admitted that
she had developed love relations with the Appellant. The
prosecution evidence indicates that on the date of incident when
P.W.2 had gone missing and the day prior thereto the family
members had taken meal and gone to sleep and in the wee hours at
about 5 to 5.45 a.m. the following morning, she was found missing.
It is highly improbable that the Appellant would forcibly or
otherwise entice away the victim, in the dead of night, when she was
sleeping with her parents and other family members. Consequently,
the allegations about holding out any threat to the victim also
cannot be accepted. Once it is held that the prosecution has not
established that she was a child, this part of evidence which indicates
a consensual relationship, assumes importance. In such
circumstances, in my considered view, the Appellant is entitled to
benefit of doubt. Hence, the following order.
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ORDER
(i) The Appeal is allowed.
(ii) The impugned judgment and order is hereby set aside.
(iii) The Appellant is acquitted of the offences as charged.
(iv) The Appellant be set at liberty forthwith, if not required in any other case.
C.V. BHADANG, J.
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