Bombay High Court
Akash Siddarth Kate vs State Of Mah., Thr. Pso Ps Akot File Dist ... on 22 July, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal489.19.J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.489 OF 2019
Akash Siddarth Kate,
Aged about 25 years,
Occ: Labour, R/o Indira Nagar,
Akola, Tah. & Dist. Akola
(In Jail Since 03.08.2016) ....... APPELLANT
...V E R S U S...
State of Maharashtra through
the Police Station Officer,
Police Station Akot File, Akola,
Tah. & Dist. Akola ....... RESPONDENT
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Mrs. Swati K. Paunikar, (Appointed) Advocate for
Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: 22nd JULY, 2019.
ORAL JUDGMENT:
This appeal is directed against the judgment dated 13.12.2018 rendered by the Additional Sessions Judge, Akola whereby the appellant is convicted for offence punishable under Section 376(2)(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 of ten years ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 2 apeal489.19.J.odt and to payment of fine of Rs.10,000/- and in default to suffer further simple imprisonment for six months.
2] Prosecution case:- 2.1] PW 1 is an orphan and is residing with her grand-mother and is working as labour. 2.2] Earlier, PW 1 used to stay with her maternal aunt
Pushpa Shinde at Indira Nagar. Accused used to reside in the neighbourhood.
2.3] PW 1 and the accused became acquainted. The accused used to talk sweetly and used to profess love for PW 1. The accused told PW 1 that he would marry her and the couple fell in love.
2.4] The accused used to call PW 1 at his house at least once in a month and used to establish sexual contact after indulging in sweet talk.
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3 apeal489.19.J.odt 2.5] PW 1 missed her menstrual cycle and along with her cousin Arti Shinde. She went to the Lady Harding's Hospital. PW 1 learnt that she was pregnant.
2.6] While PW 1 was admitted in the hospital, on 03.08.2016 her statement was recorded by the police. This statement was treated as first information report (Exh.20) and offence punishable under Section 376(2)(i)(n) of IPC and Section 4 and 6 of the POCSO Act was registered. 2.7] Investigation ensued. The school leaving certificate of PW 1 was collected, the accused was arrested and sent to Government Hospital for medical examination. DNA kit was called for from the Forensic Science Laboratory, Nagpur. The blood samples of PW 1 and the accused were collected and sent for Forensic Science Laboratory, Nagpur. PW 1 was produced before the Child Welfare Committee and her statement was recorded. 2.8] Statements of witnesses were recorded and after completion of the investigation the charge-sheet was filed in the Special Court.
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4 apeal489.19.J.odt 2.9] After filing the charge-sheet, PW 1 delivered a child. The blood sample of the child was collected for DNA profiling and sent to Forensic Science Laboratory, Nagpur. The DNA report was obtained from Forensic Science Laboratory, Nagpur which confirmed PW 1 and the accused as the biological parents of the child.
2.10] The learned Sessions Judge framed charge (Exh.13) under Section 376(2)(i)(n) of the Indian Penal Code and Section 3 and 4 of the Protection of Children from Sexual Offences Act, 2012. The accused abjured guilt. The defence of the accused is that PW 1 was not a minor and that the sexual relationship was consensual. The accused stated that he was ready and willing to marry PW 1.
2.11] The learned Sessions Judge was pleased to convict the accused as afore-stated. The learned Sessions Judge held that PW 1 was a minor and therefore, her consent was immaterial. 3] I have heard the learned counsel Mrs. Swati Paunikar for the accused and the learned APP Shri N.B. Jawade for the ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 5 apeal489.19.J.odt respondent/State.
4] It is no longer in dispute that PW 1 and the accused had physical relationship from which a child is born. In all fairness, the learned counsel for the accused Mrs. Swati Paunikar has not even argued to the contrary. Mrs. Swati Paunikar submits that the prosecution failed to prove the age of PW 1. The relationship was consensual and therefore, no offence is committed, is the submission. Per contra, the learned APP Shri N.B. Jawade submits that the age of PW 1 is duly proved and that it is established that she was a minor. The other submission which is canvassed by Shri N.B. Jawade is that the consent was obtained by false promise of marriage and is no consent in the eyes of law.
5] The controversy is narrow. In view of the fair submission of the learned counsel for the accused that the sexual relationship is not in dispute, only two questions need answers. The first question is whether the prosecution has proved that PW 1 was a minor when the accused established sexual contact and the second question is even if it is held that PW 1 was not a minor, ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 6 apeal489.19.J.odt whether her consent is vitiated in law.
6] PW 1 has deposed that her date of birth is 16.01.2001. She admits that when she was admitted in the Lady Harding's Hospital she disclosed her age as 20 years. PW 2 Arti Shinde who accompanied PW 1 to the hospital has also deposed that the age of PW 1 was disclosed as 20 years when she was admitted in the hospital. The explanation offered by PW 2 is that PW 1 was scared and therefore, incorrect age was disclosed. 7] The star witness of the prosecution on age determination is PW 3 Walmik Mahadeorao Bhagat who was the then Head Master of Zilla Parishad Agarkar Vidyalaya, Akola. PW 3 deposed that PW 1 secured admission in the school on 12.07.2013 in the 5th Std. and at that time she had furnished the school leaving certificate of the Municipal Council School previously attended. PW 3 Walmik Bhagat states that as per the school leaving certificate of the previous school PW 1 was born on 16.01.2001.
It is elicited in the cross-examination that in the year 2013 PW 3 was not the Head Master of the school. It is further elicited ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 7 apeal489.19.J.odt that at the time of admission of PW 1, PW 3 was not present. It is admitted that entry in the school admission register is not taken by PW 3.
8] The evidence adduced by the prosecution on age determination is of insignificant probative value, even if it is assumed that the evidence is admissible. The school record which is proved (Exh.26 and 27) is not of the school in which PW 1 was first admitted. PW 3 admits that he did not take the entry in the school record nor was he present when the entry of the date of birth of PW 1 was taken in the school record. No evidence is adduced to throw light on the source of the information on the basis of which the entry is recorded. PW 3 states that the entry is recorded on the basis of the school leaving certificate issued by the school previously attended by PW 1. However, no evidence is adduced to prove the record of the earlier school much less the source of information on the basis of which the entry was recorded in the previously attended school.
9] In Brij Mohan Singh v. Priya Brat Narain Sinha reported in AIR 1965 SC 282 the Apex Court articulates that in ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 8 apeal489.19.J.odt actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage while seeking public service for which a minimum age for eligibility is often prescribed. In Sushil Kumar v. Rakesh Kumar reported in AIR 2004 SC 230 the Apex Court observes:
To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded.
It is well settled, and reference to the catena of decisions is not really necessary, that the evidentiary value of the school record to prove the age depends on proof of the primary material or source of information on the basis of which the age is recorded.
10] The submission of the learned counsel Mrs. Swati ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 :::
9 apeal489.19.J.odt Paunikar that the prosecution has failed to prove that PW 1 was a minor when she and the accused had physical relationship, merits acceptance.
11] The submission of the learned APP Shri N.B. Jawade that there was no free consent to sexual relationship may now be analyzed.
12] PW 1 states in her statement Exh.20 that she developed acquaintance with the accused and they fell in love. PW 1 does state that she fell in love with the accused since he talked sweetly, professed his love for PW 1 and told her that he would marry her. Pertinently, PW 1 states that her grand-mother was not in favour of the marriage and then asserts that she is also not interested in marrying the accused. PW 1 concludes the statement by alleging that the accused had physical relationship with her against her will and on the pretext of marriage.
If the statement Exh.20 which is treated as first information report is holistically read, it does not appear that the accused refused to marry PW 1 at any point in time. Au contraire, PW 1 states that her grand-mother was not in favour of the alliance and ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 10 apeal489.19.J.odt that she also did not wish to marry the accused. 13] The deposition of PW 1 is broadly on the lines of the FIR. PW 1 admits that she became acquainted with the accused and both fell in love. PW 1 then deposes that the accused used to indulge in sweet talk, tell PW 1 that he would marry her and used to have sexual relationship. Again, PW 1 states at the conclusion of the examination-in-chief that the accused had physical relationship on the pretext of marriage and that she is not interested in marrying the accused. In the cross-examination, it is elicited that PW 1 and the accused were in love. PW 1 denies the suggestion that she refused to marry the accused since her grand-mother was not in favour of the alliance. In response to a specific suggestion, PW 1 states that even if the accused is ready to marry her she would not marry the accused.
14] The edifice of the submission of the learned APP Shri N.B. Jawade is constructed on the premise that the consent given by PW 1 was under a misconception of fact. It is clear from plain reading of Section 90 of the IPC that consent given under misconception of fact is no consent in the eyes of law. ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 :::
11 apeal489.19.J.odt Conjoint reading of Section 90 and Section 375 of the IPC which defines rape would show that the consent envisaged denotes willingness to participate in the specific sexual act. Consent must necessarily be informed by reason and choice based on the knowledge of the significance and moral quality of the act. Shri N.B. Jawade would be right in the submission which he is canvassing if the evidence shows that the accused falsely promised marriage only to induce PW 1 to have physical relationship and that but for such false promise PW 1 would not have, in every probability, consented to sexual relationship. 15] In Deepak Gulati v. State of Haryana reported in (2013) 7 SCC 675 the Apex Court observes thus:
21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 12 apeal489.19.J.odt marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.
16] In the teeth of the evidence on record, it is difficult to hold that the accused falsely promised marriage and that the ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 ::: 13 apeal489.19.J.odt consent was given on misconception of fact. The defence of the accused that he was ready to marry PW 1 who refused since her grand-mother was not in favour of the alliance is more than probablize on the touchstone of preponderance of probabilities. 17] I am satisfied that the prosecution has not proved the offence punishable under Section 376(2)(n) of the IPC and Section 6 of the POCSO Act beyond reasonable doubt. 18] The judgment of conviction dated 13.12.2018 passed by the learned Additional Sessions Judge, Akola in Sessions Trial 169 of 2016 is set aside.
19] The appellant is acquitted of offences punishable under Sections 376(2)(n) of the IPC and Section 6 of the POCSO Act.
20] Fine if any paid by the appellant be refunded to him. 21] The appellant be released from custody forthwith unless his custody is required in connection with any other crime. ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 :::
14 apeal489.19.J.odt 22] Fees of the appointed counsel be paid as per the rules.
JUDGE NSN ::: Uploaded on - 24/07/2019 ::: Downloaded on - 24/07/2019 23:05:23 :::