High Court
Legal Reasoning
{1} crapl 168.20.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 168 OF 2020Balaji S/o. Malhari DevkateAge 43 years, Occ. Nil,R/o. Phulenagar, Himayatnagar,Tq. Himayatnagar, Dist. Nanded... APPELLANTVERSUSThe State of Maharashtra.. RESPONDENT…Mr. Santosh C. Bhosale, Advocate for appellant,Mr. N.S. Takale, APP for respondent. CORAM : SANDIPKUMAR C. MORE AND MEHROZ K. PATHAN, JJ. RESERVED ON: 9 SEPTEMBER, 2025. PRONOUNCED ON : 16 OCTOBER, 2025. JUDGMENT [ PER MEHROZ K. PATHAN, J]1.The appellant has filed the present appeal, thereby prayingfor quashing and setting aside the judgment and order passed by theAdditional Sessions Judge, dated 14.1.2020 passed by the AdditionalSessions Judge, Bhokar in Special Case (POCSO) No. 10 of 2019 therebyconvicting the appellant for the offence punishable under Section 376(2)(i) of IPC and Section 6 of the Protection of Children from SexualOffences Act, 2012 ( hereinafter referred to as “POCSO” Act for the sakeof brevity)2.The case of the prosecution is that, complainant (mother ofthe victim) has lodged a report stating that on 16.3.2019 at about 5.45p.m. her daughter victim “Y” and two other friends had gone for playingout of the house. After some time, she came to know that accused, whois the neighbouring resident, namely, Balaji Deokate, had committed rape {2} crapl 168.20.odton victim “X” in the ditch situated near the village. The police had alsoregistered complaint for committing rape on victim girl “X”. They calledthe complainant to record the statement of her daughter i.e. presentvictim “Y” and accordingly, she was brought in the police station forrecording her statement. The victim “Y” narrated in her statement thatthe accused, who is referred to as “Balumama” had asked the victim “Y”to bring victim “X” to him in the ditch and if she failed to do so, he willkill her. The victim “Y” then took another victim “X” to theappellant/accused. The appellant accused removed the clothes of thevictim “X” and thereafter committed rape on her. The appellant accusedhad thereafter committed rape on the present victim “Y”.3.The present victim “Y” was thereafter taken to the JudicialMagistrate Hadgaon for recording her statement under Section 164 ofCr.P.C. wherein, she narrated the same story about the appellant havingcommitted rape on victim “X” and present victim “Y”. She furthernarrated in her statement under Section 164 that the accused/appellantgave a currency note of Rs. 10/-, saying that victim “X” and victim “Y”shall distribute Rs. 5/- each. The present victim “Y” then had shown thewell and ditch which is situated in the field of one Shaikh Mukhid,where, accused Balumama had committed rape. She further stated thatthough the said Balumama had committed rape on victim “X” and her.She did not report the incident having fear about getting defamed andthus, there was delay of 3 months in lodging the report. The PoliceStation Officer, Himayat Nagar registered crime No. 26 of 2019 for theoffence punishable under Sections 376(2)(i) and Sections 4 and 6 of thePOCSO Act. The investigating Officer, SDOP, Bhokar, directed the PoliceSub Inspector Poonam Suryawanshi to record the statement of victim “Y”.The present Crime bearing No. 97 of 2019 was registered against theaccused for committing rape on present victim “Y” after 3 months of thedate of incident on the report filed by mother of victim. The Investigating {3} crapl 168.20.odtOfficer had collected the Birth Certificate of the victim from theMunicipal Council, Himayat Nagar and also sent the victim “Y” formedical examination at the Civil Hospital, Nanded and collected themedical papers of the victim from Govt. Hospital, Nanded. TheInvestigating Officer obtained the school birth extract of the victim fromHead Master of the Zilla Parishad Primary School, Phule Nagar, HimayatNagar and after drawing the sketch map of the spot of incident, hasprepared the spot panchanama. The accused was arrested and hismedical report was also obtained. After completing investigation, chargesheet was filed as sufficient evidence was collected to bring home theguilt of the accused.4.The prosecution has examined in all 8 witnesses in supportof their case and has relied upon the various documents, in support oftheir case. The learned trial court, after going through the entireevidence led by the prosecution and the documents relied upon, waspleased to convict the appellant/accused for the offence punishableunder Section 376(2)(i) of IPC thereby directed the appellant to undergolife imprisonment, which shall mean the remainder of persons naturallife. The appellant was also convicted for the offence punishable underSection 6 of the POCSO Act for aggravated sexual assault and wasdirected to undergo life imprisonment and both the substantivesentences were directed to run concurrently.5.We have considered the submissions advanced by Mr.Bhosale, learned advocate for the appellant; Mr. N.S. Tekale APP forState.6.Perusal of the testimony of PW-4 (mother of victim) wouldshow that she had lodged report on 23.6.2019 for the incident which had {4} crapl 168.20.odttaken place on 16.3.2019. It is pertinent to point out that on 16.3.2019,there was already one offence registered vide Crime No. 26 of 2019 forthe offence of rape against the victim girl “X”. The victim of the presentcase minor girl “Y” recorded her statement under Section 164 of Cr.P.C. inPOCSO Special Case No. 8 of 2019, thereby also stating about rapecommitted on her. It is further stated in her statement that she wantedto lodge report against accused, however, was disturbed as the matterwas related to the character of daughter. She further stated that, bymaking consultation with the relatives/informant had lodged the reporton 23.6.2019 i.e. after 3 months of the incident.7.Thus, it could be seen that though there is a considerabledelay in lodging the report against the applicant/accused by the motherof the victim girl “Y”, the said delay has been overlooked by the Court onthe ground that that the Investigating Officer ought to have himselfregistered the FIR in stead of complainant, as the Police had every rightto register the second crime, as soon as the statement was given by thevictim in Crime No. 26 of 2019. The delay in lodging report is, therefore,ignored by the Court on the ground that defect in the investigationcannot go to the benefit of the accused. 8.This observation, in our view is erroneous inasmuch as, thestringent law of POCSO warrants stringent scrutiny of evidence whichhas to be cogent enough to inspire confidence from the testimony of thevictim and the conduct of the complainant to rest upon a conviction asthe punishment under the POCSO Act is severe. The delay in lodging theFIR is therefore fatal to the prosecution.9.Another witness relied upon by the prosecution was PW-5Bashir Khan, who has simply deposed that on 16.3.2019, when he wasreturning back, he saw the appellant/accused together with other girls {5} crapl 168.20.odtand asked the little girls to go to their houses as it was evening time.Accused Balaji informed him that he was going to answer nature’s call,however, the girls are following him. Apart from above fact, there isnothing referred in the testimony of PW-5 Bashirkhan, which wouldcorroborate the allegations of rape as made by the complainant andvictim minor girl “Y”. Thus, the testimony of PW-5 may not be helpful tothe prosecution case.10.Another important witness examined by the prosecution isPW-3 Sheela Gangadhar Komwad, who happens to be the Head Mistressof the school who had produced the Admission Register of the minorvictim girl “Y” to prove her date of birth. It is pertinent to point out herethat the testimony of PW-3 would show that she had brought the extractof School Admission Register (Exh.15) of the victim which shows herdate of birth to be 1.9.2011. The minor victim girl in her testimony didnot state about her date of birth, nor has the PW-4 complainant ( motherof victim) stated in her deposition about the date of birth of the victim. Itis pertinent to note that the prosecution has relied upon the documentExh.38, which is the Birth Certificate issued by the Gram Panchayat,which shows the date of birth, which is in variance with the date of birthshown in the Admission Register. The date of birth as reflected in BirthCertificate (Exh.38) is 2.9.2011, whereas, the date of birth in theAdmission Register (Exh.15) is 1.9.2011.11. The Division Bench of the Bombay High Court in the case ofRavi Anandrao Gurpude vs. State of Maharashtra 2017 All MR (Cri.)1509, was pleased to hold that Section 6 of the POCSO Act, provides forpunishment for aggravated penetrative sexual assault as enumerated inSection 5 of the Act. From the aforesaid provisions, it is crystal clear thatthe prosecution is under bounden duty to prove that the victim is a child.Unless the prosecution successfully establishes that the victim is a child {6} crapl 168.20.odtwithin the meaning of clause (d) of Section 2 of the Act, a person cannotbe convicted for the offence punishable under Section 6 of the Act. TheDivision Bench in the aforesaid case, was pleased to observe in para. 8 asunder :-“The provisions of the Act are stringent in nature. Eventhere is a statutory presumption under Section 29 of the Act.Since the enactment is stringent in nature, the degree ofproof is more strict. The prosecution is under bounden dutyto prove the age of the prosecutrix to show that at the timeof the incident, the prosecutrix was “Child” within themeaning of the provisions of the Act. The burden is on theprosecution to prove that the age of prosecutrix on the dateof occurrence, was less than 18 years.”12.Thus, after considering Exhibit 38 and Exhibit 15, we findthat there is a material discrepancy in the date of birth of the child andwhich the Trial Court has failed to consider. In view of the judgmentcited above, the strict proof is required to rest upon the conviction underthe POCSO Act and as such, the age of the child cannot be said to havebeen established in view of the discrepancy in the date of birth. Thedepositions of PW-1 victim as well as deposition of PW-4 her mother, donot reflect the exact date of birth being mentioned by them in theirtestimony. It would therefore be unsafe to rest conviction on such shakypiece of evidence pertaining to the very important aspect i.e. date of birthof the child.13. Another important witness relied upon by the prosecution isPW-6 Dr. Sunil Madhewad, who had examined the victim girl “Y” on24.3.2019 between 11.45 a.m. and 12.45 p.m., as there was already onecrime registered as regards sexual assault against victim girl “X” beingCrime No., 26 of 2019, wherein, she is also alleged to have been raped bythe present appellant/accused. The Medical Examination Report Exh.27prepared by PW-6 shows that there was no evidence of any surface injury.The hymen was intact. No evidence of any tear or any perennial tear was
Decision
{7} crapl 168.20.odtnoticed. It is further observed in one of the columns by the said witnessthat there were no injuries suggestive of application of force/restraint.These relevant entries in Exh.27 coupled with the testimony of witnessherself, who has admitted about such entries being taken by him, wouldsuggest that the medical evidence also do not corroborate the allegationsof rape made against the present appellant by the victim girl or thecomplainant (mother of victim).14.Thus, looking it from any angle, we are of the consideredopinion that the evidence led by the prosecution in the present case doesnot inspire confidence so as to prove the case of aggravated sexualassault against the present appellant. The prosecution evidence fallsshort of the evidence necessary to bring home the guilt of the presentappellant in present crime. In our view, therefore, the conviction of theappellant for the offence punishable under section 376(2)(i) and Section6 of the POCSO Act, cannot be sustained. Hence, we pass the followingorder :-O R D E R [I]The appeal stands allowed;[ii]The impugned judgment and order of conviction ofthe appellant dated 14.1.2020 passed by the Additional Sessions Judge,Bhokar, for the offence under Section 376(2)(i) of IPC and underSections 4 and 6 of the POCSO Act, in Special case (POCSO) No. 10 of2019, is hereby quashed and set aside;[iii]The appellant is acquitted of the offence punishableunder Section 376(2)(i) of IPC and Sections 4 and 6 of the POCSO Act.[iv]The appeal is allowed in above terms and same is disposed of.[MEHROZ K. PATHAN][SANDIPKUMAR C. MORE] JUDGEJUDGE.grt/-