High Court
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Criminal Appeal No.397/2020:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.397 OF 2020Pawan s/o Pramod KulkarniAge 29 years, Occu. Nil,R/o N-11, B Sector, 5/4Subhash Chandra Bose Nagar,Hudco, Aurangabad… APPELLANTVERSUS1.The State of Maharashtra (Copy to be served on P.P.,High Court of Bombay,Bench at Aurangabad) 2.XYZXYZ X Y Z … RESPONDENTS.......Mr. Abhishek Kulkarni, Advocate for appellant Mrs. U.S. Bhosle, A.P.P. for respondent No.1. Mrs. Sharda Chate, Advocate for respondent No.2. ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 20th March, 2024Date of pronouncing judgment : 22nd March, 2024JUDGMENT (PER R.G. AVACHAT, J.) The appellant was prosecuted for the offencespunishable under Sections 363, 376, 376(2)(n), 506 of theIndian Penal Code and Section 6 of the Protection ofChildren from Sexual Offences Act, 2012 (POCSO Act for Criminal Appeal No.397/2020:: 2 ::short) and, therefore, consequently sentenced to suffervarious terms of imprisonment as detailed below :-SectionSentence ofImprisonmentFineSection 5 (l), punishable under Section 6 of POCSO Act------Section 363 of IPCR.I. for 5 yearsRs.2500/-, in default to undergo S.I. for 6 monthsSection 376(2)(n) of IPCImprisonment forlifeRs.15,000/-, in default to undergo S.I. for 1 year.Section 506 of IPCR.I. for 2 yearsRs.2500/-, in default to undergo S.I. for 6 months.The substantive sentences have been directed to run concurrently.2.The First Information Report (F.I.R. Exh.24) waslodged by the victim herself. It is her case that, in August2017, she was 13 years of age. The appellant was residingin her neighbourhood. About 10 days before 12/8/2017, theappellant shifted his residence to a nearby vicinity. It was12/8/2017, parents of the victim had gone to their native –village Deulgaon Raja, District Buldhana. The victim’shouse was upstairs (First Floor). While the ground floorpremises was occupied by her uncle and his family. It wasabout 10.30 p.m. of 12/8/2017, the victim’s brother was Criminal Appeal No.397/2020:: 3 ::away from house for practicing “Dahi-Handi”. Uncle and hiswife were taking dinner at their residence. The appellant allof a sudden came close to the victim and asked to come tohim. When the victim enquired what kind of work he hadwith her, he told that the same would be related to her at hisresidence. The appellant took the victim to his house.Bolted the door from inside. He removed clothes on theperson of the victim and himself as well. The appellantcommitted sexual intercourse with the victim and thenasked her to leave his residence. The appellant even gavethe victim threats to her life if she went public with theincidence. She, therefore, did not relate the same to heruncle and his wife. 3.It is further the case of the victim that, on thefollowing day her parents came. She related them what theappellant did with her. The parents accompanied her to thePolice Station. The victim there lodged the F.I.R. (Exh.24).A crime vide C.R. No.522/2017 for offences punishableunder Sections 376(A), 506 of the Indian Penal Code andSection 4 of the POCSO Act was registered against theappellant. The victim, on the following day againapproached the Police Station and gave a supplementary Criminal Appeal No.397/2020:: 4 ::statement, alleging the appellant to have had sexualintercourse with her 3-4 times before 12/8/2017. Section 6of the POCSO Act and Section 376(2)(n) of the IndianPenal Code, therefore, came to be additionally invoked. 4.The victim was subjected to medical screening.Scene of offence panchanama was drawn. The appellantwas arrested. He too was medically screened. Clothes onthe person of both, the victim and the appellant wereseized. During her medical screening, samples of certainthings like blood, semen etc. were obtained. All the seizedarticles were sent to Forensic Science Laboratory forchemical analysis and report. Statements of personsacquainted with the facts and circumstances of the casewere recorded. Upon completion of the investigation, theappellant was proceeded against by filing a Charge Sheetbefore the Special Court constituted for trial of ofencesunder the POCSO Act (Trial Court).5.The Trial Court framed the Charge Exh.10. Theappellant pleaded not guilty. It was his defence that, hewould occasionally serve with one Tathe. The uncle of thevictim was addicted to alcohol. Once there was a quarrel
Legal Reasoning
Criminal Appeal No.397/2020:: 5 ::between Tathe and the victim’s uncle. He intervened. Thevictim’s uncle thereupon gave him threats of settling scorewith him by implicating in a serious crime. In short,according to the appellant, the crime has been registered atthe behest of the victim’s uncle.6.To bring home the charge, the prosecutionexamined 8 witnesses and produced in evidence certaindocuments. The appellant examined himself as a defencewitness. The Trial Court, on appreciation of the evidence inthe case, convicted the appellant and consequentlysentenced as detailed above.7.Heard. Learned counsel for the appellant wouldsubmit that, there was close acquaintance between theappellant and the family of the victim. They were on visitingterms. The uncle of the victim did not like the same. Evenon the Raksha Bandhan day, the victim tied him a “Rakhi”.He would further submit that, except the testimony ofinterest witness (victim), there is nothing to make out theoffence/s. The medical examination report of the victim andthe C.A. reports do not support the prosecution case. Thevictim did not give details as to alleged previous sexual Criminal Appeal No.397/2020:: 6 ::assaults. Even the case of the prosecution is accepted as itis, it relates to the incident dated 12/8/2017. The victim onher own joined the appellant. There was, therefore, noquestion of kidnapping the victim. The learned counselultimately urged for allowing the appeal.8.The learned A.P.P. and learned counsel forrespondent No.2 took us through the evidence on record.They would submit that, the victim was just 13 years of age.Her birth certificate has been tendered in evidence by hermother. The mother gave the date of birth of the victim. Onthe given day, the parents of the victim were not home. Theappellant lured her and took her to his residence andsexually exploited. Similar incidents took place in the past.The medical examination report of the victim do not rule outsexual assault. Our attention was also adverted to the C.A.reports. Both the learned counsel ultimately urged fordismissal of the appeal.9.Considered the submissions advanced. Perusedthe evidence on record and the judgment impugned herein.Let us advert to the evidence on record and appreciate thesame. Criminal Appeal No.397/2020:: 7 ::10. The victim “X” testified that, in August 2017, shewas studying in 7th Standard. The appellant was residing inher neighbourhood. He was unmarried. The appellantwould occasionally visit her residence. Ten days before12/8/2017, the appellant shifted his residence to nearbyresidential colony. Thereafter on the day of RakshaBandhan, he had been to her residence and asked her totie a Rakhi. She tied him Rakhi.11.It is further in her evidence that, it was 5.00 p.m.on 12/8/2017, her parents had gone to their native –Deulgaon Raja, District Buldhana. She was alone at home.Her brother was away for practicing Dahi-Handi. Her uncleAnand would reside on ground floor premises with his wife.On dinner, she came down and was resting in the Varandahof their house. It was 10.30 p.m. Neighbouring Aunty waswith her. The appellant suddenly came. He asked her tocome to him. When the victim enquired what kind of workhe had with her, he told that the same would be related toher at his residence. The appellant took the victim to hishouse. Bolted the door from inside. He removed clotheson the person of the victim and himself as well. The Criminal Appeal No.397/2020:: 8 ::appellant committed sexual intercourse with the victim andthen asked her to leave his residence. The appellant evengave threats to her life if she went public with the incidence.Clothes on the person of the victim at the relevant timewere seized by the police. Those were shown to her beforethe Court. She identified them.12.It is further in the evidence of the the victim that,she returned to her residence. Her uncle and Auntyenquired with her as to where was she. She did not relatethem anything because of fear of the appellant. Her unclesuspected something amiss. He talked her parents onphone. Her parents came back from their native. She thennarrated them what the appellant did with her. Shethereafter accompanied her parents to the Police Stationand lodged the F.I.R. (Exh.24).13.The victim’s substantive evidence is consistentwith the averments in the F.I.R. As such, her evidencebefore the Court is reinforced (corroborated) by the F.I.R.14.It is further in her evidence that, she was referredfor medical screening. She gave the Medical Officer there Criminal Appeal No.397/2020:: 9 ::history of sexual assault. She was medically screened.Samples of certain things were obtained. Police seizedclothes on her person at the relevant time underpanchanama Exh.26. She then pointed out the scene ofoffence. The police drew the scene of offence panchanamaIt is further in her evidence that, on the following day, sheagain went to the Police Station and gave a supplementarystatement, alleging the appellant to have had sexualintercourse with her 3-4 times in the past. 15.The victim was subjected to a searching cross-examination. She admitted that her residence was locatedin a densely populated area. She admitted that she wastreating the appellant as her brother. She would ride cycle,play Kabaddi and Kho-Kho in the year 2017. She evenadmitted to have acquaintance with the parents of theappellant. Her evidence further indicates that the appellantwas residing in her neighbourhood. A few days before theincidence, the appellant shifted his residence. She hadassisted the appellant in transporting his household articlesto a new place of his residence. She went on to admit tohave had not lodged any report with police or got medicallyexamined before 14/8/2017. It is further in her evidence Criminal Appeal No.397/2020:: 10 ::that, her uncle Anand was annoyed with her and theappellant as well on account of both of them were on talkingterms. She, however, denied to have lodged the F.I.R. atthe instance of her uncle. Her evidence further indicatesthat, her statement was recorded under Section 164 of theCr.P.C. Her uncle had accompanied her for recording suchstatement.16.Then we have the evidence of P.W.2 “Y”, motherof the victim. Most of her evidence is hear-say. Shereiterated in her evidence what had been stated to her bythe victim as regards the appellant’s behaviour with her atthe relevant time (incident). P.W.2 tendered in evidence acertified copy of the birth certificate of the victim. She gavethe victim’s birth date as 31/7/2004. It is further in herevidence that, her brother-in-law informed her on cell phonethat something had happened with her daughter. She alongwith her husband, therefore, returned. After the victimrelated her as to what the appellant did with her, sheaccompanied the victim and lodged the F.I.R.17.During her cross-examination, P.W.2 admitted tohave had not stated in her police statement the date of birth Criminal Appeal No.397/2020:: 11 ::of the victim. The mother’s evidence is not of muchimportance. The fact, however, remains that, she testifiedconsistent with what has been deposed to by her daughter(victim) in her examination-in-chief. A delay of little overone and half day in registration of the F.I.R. has beenexplained. The delay seems to have occurred since theparents were first informed by the uncle. They came fromtheir native back to Aurangabad. They took the victim intoconfidence. The victim related them the ordeal and thenthe F.I.R. was lodged. We have no reason to suspect theF.I.R. to have been lodged with deliberation and obliquemotive.18.P.W.3 Dr. Shagufta medically screened thevictim. It is in her evidence that, she clinically examined thevictim. Collected her blood sample. Samples of vaginalswab, vulval swab and the vaginal smear for analysis andopinion. It is further in her evidence that, on her clinicalexamination, she found her hymen was ruptured at 6.00o’clock position. In her opinion, there were signs suggestiverecent forceful penetration of vaginal sexual intercourse.She accordingly issued her certificate (Exh.43). In hercross-examination, she admitted that no injury was found Criminal Appeal No.397/2020:: 12 ::on victim’s labia majora and labia minora. She denied thevictim to have been habitual to sexual intercourse. It isfurther in her evidence that, no semen was found on vaginalor genital part of the victim. According to the doctor, theclinical examination was done two days after the allegedincident and during the said period, the victim had takenbath.19.P.W.4 Dr. Megha examined the appellant to findhim potent. Her report is at Exh.58. She claims to havecollected the appellant’s blood sample and semen sampleas well, besides nail and public hair.20.P.W.5 Swati was the neighbour of the victim. It isin her evidence that, she was sitting on the platform. It was10.30 p.m. The appellant called the victim and took heraway with him. She told the victim’s aunt that the appellanthad come and the victim went along with him. In her cross-examination, she testified that the victim joined theappellant since he called him.21.P.W.8 Sagar is the investigating officer whoconducted investigation into the crime. Criminal Appeal No.397/2020:: 13 ::22.Appreciation of the aforesaid evidence wouldindicate that the victim at the relevant time was a student of7th Standard. By no stretch of imagination she could bestated to be of 18 years or more. The mother (P.W.2), whocould be the best witness to give evidence about the date ofbirth of her child gave the victim’s date of birth as31/7/2004. We do not propose to rely on the birth certificatetendered before the Trial Court first time during the mother’sevidence. The evidence of the victim as regards her age ishear-say. The fact, however, remains that, the victim wasjust 13 years of age since her mother gave her date of birth.The evidence further indicates that, there was closeacquaintance between the victim and the appellant. Even itwas a case of emotional relationship. Both used to visiteach other’s residence. There is evidence of independentwitness P.W.5 Swati, who testified the victim to have joinedthe company of the appellant on his call.23.Section 363 of the Indian Penal Code reads :-363. Punishment for kidnapping:- Whoeverkidnaps any person from India or from lawfulguardianship, shall be punished with Criminal Appeal No.397/2020:: 14 ::imprisonment of either description for a termwhich may extend to seven years, and shallalso be liable to fine. 24.In case of Varadarajan Vs. State of Madras[ AIR 195 SC 942 ], it has been observed that :-“There is a distinction between “taking” andallowing a minor to accompany a person. Thetwo expressions are not synonymous though itcannot be laid down that in no conceivablecircumstances can the two be regarded asmeaning the same thing for the purposes ofS.361. Where the minor leaves her father’sprotection knowing and having capacity to knowthe full import of what she is doing, voluntarilyjoins the accused person, the accused cannot besaid to have taken her away from the keeping ofher lawful guardian. Something more has to beshown in a case of this kind and that is somekind of inducement held out by the accusedperson or an active participation by him in theformation of the intention of the minor to leavethe house of the guardian.”25.The evidence on record undoubtedly indicatesthat, in view of the emotional relationship between the twoand the parents of the victim were not home at the relevanttime, the victim joined the appellant and went to hisresidence. True, the appellant did sexual intercourse withher at his residence, the victim being below 18 years of ageat the relevant time, her consent for sexual intercourse was
Decision
Criminal Appeal No.397/2020:: 15 ::immaterial. It was the incident dated 12/8/2017. So far asregards past incidents of sexual intercourse alleged by thevictim are concerned, we are not inclined to believe hertestimony, she did not give day, date and time thereof. herF.I.R. is also silent in that regard. Only after givingsupplementary statement, she made reference thereto. Inour view, therefore, it is a single incident of sexual assaultcommitted by the appellant on the victim. The same beingan offence under Section 3 read with 4 of the POCSO Act,and under Section 376 of the Indian Penal Code, theminimum sentence prescribed for the said offence is that of7 years imprisonment, which may extend to imprisonmentfor life and also be liable to fine. 26.So far as regards conviction for the offenceunder Section 506 of the Indian Penal Code is concerned,we are not relying on the evidence of the victim. It isreiterated that, she was emotionally involved with theappellant.27.For all the aforesaid reasons, interference withthe impugned order of conviction and consequentialsentence is, therefore, warranted. In the result, the appealpartly succeeds. Hence the order : Criminal Appeal No.397/2020:: 16 ::O R D E R(i)The Criminal Appeal is partly allowed.(ii)The order of conviction and sentence dated 7/2/2020,passed by learned Additional Sessions Judge-10,Aurangabad in Special Case Child Prot. No.164/2017,convicting the appellant for the offences under Section 5(l)punishable under Section 6 of the Protection of Childrenfrom Sexual Offences Act and under Sections 363, 376(2)(n) and 506 of the Indian Penal Code is hereby set aside.The appellant is acquitted thereof.(iii)Instead, the appellant is hereby convicted for theoffence punishable under Section 4 of the Protection ofChildren from Sexual Offences Act and therefore,sentenced to suffer rigorous imprisonment for seven andhalf (7 ½) years and to pay fine of Rs.2000/- (Rupees twothousand), in default to suffer simple imprisonment for sixmonths.(iv)No separate sentence is awarded for offencepunishable under Section 376 of the Indian Penal Code.(v)The appellant is entitled for set off as per Section 428 Criminal Appeal No.397/2020:: 17 ::of the Cr.P.C. for the period for which he was in jail.(vi)The Criminal Appeal stands disposed of.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)fmp/-