Ms. Pratibha H. Suryawanshi, Advocate for the v. M. Jaware, APP for
Legal Reasoning
CR APPEAL 363 of 2018-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 363 OF 2018.Dinesh s/o Laxman GhateAge 24 years, Occu. Labour,R/o Galli No. 6, Rahulnagar,Aurangabad, Tq. and Dist. Aurangabad… Appellant(ori. accused no.1)Versus.The State of Maharashtra,Through Police Inspector, Police Station Satara,Dist. Aurangabad.…Respondent…..Ms. Pratibha H. Suryawanshi, Advocate for the Appellant (Appointed)Mr. V. M. Jaware, APP for Respondent-State..… CORAM :ABHAY S. WAGHWASE, J.DATE : 28-01-2025 JUDGMENT : 1.Appellant convict in Special (POCSO) Case No.150 of 2016hereby takes exception to judgment and order dated 16-04-2018passed by learned Additional Sessions Judge-14, Aurangabad,recording the guilt of the applicant for offence under Section 354(D)(1)(i) read with 34 of the Indian Penal Code (IPC).FACTS OF THE CASE IN BRIEF2.Appellant was chargesheeted by Satara Police Station,Dist.Aurangabad for commission of offence under Section 354(D)read with Section 34 of the IPC and Section 12 of the POCSO Act
Legal Reasoning
CR APPEAL 363 of 2018-2- alleging that on 21-05-2016, report was received that informant’sdaughter, a minor, had been to a shop for bringing grocery. Presentapplicant and another Accused Kishor, who were present there, theyboth stated to the victim girl that “rq vkt [kqi lqanj fnlrs- vkeps rq÷;kojizse vkgs rq vkt vkeP;k lkscr xkMhoj fiDpjyk py”. Resultantly girl ranhome and informed her mother, who further approached Police andlodged report on the strength of which Crime bearing no.154 of 2016was registered and ultimately investigated and both accused werechargesheeted. After explaining the charge, on its denial, learned AdditionalSessions Judge-14, Aurangabad conducted trial and on the strength oforal evidence of five witnesses and documentary evidence, videjudgment and order dated 16-04-2018 accepted the prosecution caseand convicted both accused for offence under Sections 354-D(1)(i)read with 34 of the IPC and sentenced them to suffer simpleimprisonment for six months and to pay fine. Aggrieved by the above conviction, instant appeal has beenpreferred by accused no.1 Dinesh on various grounds spelt out in theappeal memo.SUBMISSIONSOn behalf of appellant : 3.Learned counsel for the appellant pointed out that there is CR APPEAL 363 of 2018-3- apparently false implication. That, FIR is by mother on hearsayinformation. That, there are general, omnibus allegations against twoaccused. She further pointed out that there is no evidence at the firstcount to show that victim was a “minor” so as to attract aboveprovisions and its necessary ingredients are patently missing. Learnedcounsel pointed out that there cannot be teasing or taunting in chorusmanner. That, such aspect has not been considered by the learnedtrial Judge. Therefore, according to learned counsel, there was nolegally acceptable evidence both on the point of age of victim ortrustworthy evidence on the point of alleged occurrence. That,learned trial court failed to consider the settled law and erred inarriving to the conclusion. Lastly, she submitted that applicant hasalready suffered the sentence, however, they are concerned about thefalse implication and blot of conviction. On behalf of APP : 4.Learned APP supported the appreciation of the evidence, thefindings and conclusion arrived at by the learned trial Court andprayed to dismiss the appeal for want of merits. EVIDENCE IN TRIAL COURT5.In support of its case, prosecution has examined in all fivewitnesses. Their role, status and the sum and substance of their CR APPEAL 363 of 2018-4- evidence can be summarized as under:PW1is the mother of victim and she had lodged the report. Atexh.28, she deposed as under. “.I am having five daughters and a son. My husband is doinglabour work. Victim is my daughter. Incident took place on21.05.2016. On said date in between 02.00 to 02.30 p.m.victim had gone to the Shop namely Pariwar Kirana Shop. Atthat time, both the accused were present there. When Victimwas proceeding towards house, both the accused told to herthat ‘you are looking good, lets come with us for watchingmovie’. So by frightening she came at home. Inspite of it, theyboth had followed her till the house. At that time, victim was14 years old. At that time, she was taking education in theMunicipal School. At that time, she was in a 10th standard.Prior to one year of the incident in question, both the accusedwere giving harassment to the victim. At that also they used tofollow her, they used to tell her you are looking very good,come with us for outing. At that time, I told to the relative ofboth the accused to give understanding to them. But, at thattime no complaint lodge against them. But, no change happenin the behaviour of the accused. 2.On the said date I came at home at about 07.30 p.m. from mywork. At that time, victim was crying at home. She hadinformed to me about the incident. So, I had gone with victimto police station. At there, I had lodged report. Now the saidreport shown to me. It bears my signature. Its contents are CR APPEAL 363 of 2018-5- true. It is at Exh. 29. I know both the accused because they areresiding in my lane. Witness volunteers that they are residingin another lane. They are residing in my area. Today accusedNo. 1 is present in the court.” PW2is the Victim. She deposed at Exh. 40 as under :“1.In the year 2016 I was studying in a Municipal High School atRahulnagar, Aurangabad. In the year 2016 I was in 10thstandard. In the said year I had given my 10th examination.Prior to one and half year of the year 2016 both accused werechasing me. They told to me that today you are looking good,we love you, can you seat on our vehicle. They often used tochase me till my house and up to School. I had narrated aboutit to my parents My parents had given understanding to bothaccused even then they were chasing me. 2.Incident took place 21.05.2016 at about 02.30 p.m. At thattime, I had gone to fetch sugar from shop. At that time, bothaccused met me adjacent to the shop. When I was proceedingto house from shop, they both had told to me that today youare looking good, do you come with us for roaming ?.Thereafter, I had gone to the house and lock the door of thehouse from inside. Thereafter, at about 07.00 p.m. my mothercame to home and I had narrated to her about the saidincident. Thereafter, my mother had lodged report at policestation Satara. Police had recorded my statement as per mynarration. My statement has been recorded in a court also.Now the said statement is shown to me. (The said statement CR APPEAL 363 of 2018-6- was in a sealed envelope. For showing witness the saidenvelope opened in court in the presence of witness, learnedAPP, learned counsel for both accused and accused no.2.) Itbears my signature. Its contents are true. It is at Exh.41. I knowboth accused. Today accused no.2 is present in the court. Mydate of birth is 17.01.2000.” PW3Sandeep Harischandra Magre is a pancha to the spotpanchanama. His evidence at Exh. 42 is as under :“On 22.05.2016 at about 09.00 a.m., I was present in PariwarKirana Store. At that time, Ganesh Shejwal was present atthere as a another panch. At that time, one lady and policecame there. At there said lady told to us that at the said shopincident of outraging modesty had taken place. Thereafter,police had prepared panchanama about it at there. Thereafter,police had read-over panchanama to us. Now the saidpanchanama shown to me. It bears my signature. Its contentsare true. It is at Exh.43.”PW4Bharat Haribhau Tingote is Head Master in M.C.A. HighSchool, Banewadi, Aurangabad. At exh.48, he deposed asunder :“In the year 2016 I was Head Master of Municipal CorporationSecondary School, Banewadi, Aurangabad, police had givenletter to me for providing admission and leaving extract ofvictim. Now the said letter shown to me. The same bears mysignature as received. It is at Exh. 49. Accordingly, I had givenadmission and leaving extract of victim to police. Now thesame is shown to me. It is the same. It bears my signature. It is CR APPEAL 363 of 2018-7- at Exh. 50. On 14.06.2006, am admission has been given tovictim in our school. At that time, an admission has been givento her in the first standard. The date of birth of victim is18.01.2001.PW5PSI Vikramsing Arjunsing Chavan is the Investigating Officer inthe present crime. He has investigated the matter and afterfinding sufficient evidence, he filed charge-sheet against theaccused. ANALYSIS6.Here at the outset, in view of objection about age of victim notto be proved, evidence adduced by prosecution in that direction is putto scrutiny. On re-appreciation, it is emerging that FIR is by PW1 mother ofvictim and she has merely given age of her daughter as 14 years. Dateof birth has not been stated by her nor mother has placed birthcertificate to substantiate age of victim. Prosecution seems to have adduced evidence of PW4 Tingote,Head Master in support of its claim regarding victim to be a “minor”.His evidence is at exh.48 and he has placed on record exh.50, whichis a school leaving extract. In cross-examination he has admitted that at the time ofadmission, parents had merely furnished affidavit of date of birth andeven certificate issued by Corporator. Thus, birth certificate is not on CR APPEAL 363 of 2018-8- record. Mere certificate by a Corporator on his typed letter head hasno probative or evidentiary value. When there are allegations ofcommission of offence under the POCSO Act, there is heavy burdenon prosecution to substantiate its claim by way of legally acceptabledocumentary evidence about age. The Hon’ble Apex Court in the case of Jarnail Singh v. State ofHaryana, (2013) 7 SCC 263 has held that age of the prosecutrixshould be determined on the following grounds :“a) (i) the matriculation or equivalent certificates, if available; and inthe absence whereof;(ii) the date of birth certificate from the school (other than a playschool) first attended; and in the absence whereof;(iii) the birth certificate given by a corporation or a municipalauthority or a panchayat;(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 constitutedMedical Board, which will declare the age of juvenile or child. In caseexact 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 bythem, may, if considered necessary, given benefit to the child orjuvenile by considering his/her age on lower side within the margin ofone year.” Very recently, in the case of P. Yuvaprakash v. State Rep. ByInspector of Police, AIR 2023 Supreme Court 3525 the Hon’ble ApexCourt has spelt out categories of documents which are necessary todetermine the age. In this case, as regards to computation of age, CR APPEAL 363 of 2018-9- Section 34 of the POCSO Act is discussed and following nature ofevidence is considered relevant for determination of age; “13. It is evident from conjoint reading of the above provisions thatwherever the dispute with respect to the age of a person arises in thecontext of her or him being a victim under the POCSO Act, the courtshave to take recourse to the steps indicated in Section 94 of the JJ Act.The three documents in order of which the Juvenile Justice Actrequires consideration is that the concerned court has to determine theage by considering the following documents:“(i) the date of birth certificate from the school, or the matriculation orequivalent certificate from the concerned examination Board, ifavailable; and in the absence thereof;(ii) the birth certificate given by a corporation or a municipal authorityor a panchayat;(iii) and only in the absence of (i) and (ii) above, age shall bedetermined by an ossification test or any other latest medical agedetermination test conducted on the orders of the Committee or theBoard”.In the case in hand, Exhibits 50 and 51 placed on record byprosecution are not amongst any of such categories. Therefore, assubmitted by learned counsel for the appellant, here prosecution hasnot proved the age of victim by adducing cogent and reliableevidence.7.Again on the point of accusations of commission of offenceunder Sections 356-D of the IPC, primarily evidence of victim is ofsignificance followed by that of her mother, who has received CR APPEAL 363 of 2018-10- information from her daughter. Evidence of PW2 victim is at exh.40. Scrutiny of the sameshows that she testified that in 2016 she was in 10th Standard and oneand half year prior to it, she claims that both accused chased her. Shetestified that they said to her that “she had good looks and they lovedher and also offered seat on their vehicle” and so she went home andnarrated to her mother. She deposed that said incident took place at21-05-2016 at 2.30 p.m. She reported her mother, who approachedPolice. In cross-examination she has admitted that her statement wasrecorded by Police the day after lodgment of report by mother.Apparently thus, her statement is not recorded on the same day whenher mother reported Police. Two accused persons are booked forabove offence and are chargesheeted. However, as submitted, whoamongst them actually uttered is not clearly segregated and specified.Allegations are that both made utterance in chorus at one and thesame time. Allegations prima facie seems to be commenting on looks.8.Learned trial Court has recorded guilt for offence under Section354-D(1)(i) of the IPC by invoking Section 34. Essential requirementfor above offence is as under : CR APPEAL 363 of 2018-11- “354-D. Stalking.--(1) Any man who--(i) follows a woman and contacts, or attempts to contactsuch woman to foster personal interaction repeatedlydespite a clear indication of disinterest by such woman.9.Here, in light of above essential ingredients, if evidence of PW2victim at exh.40 is revisited, she has deposed that both accused werechasing her one and half year back from her house to school. She hasnot stated that they approached her for personal interaction and shefurther gave indication that she was disinterested and inspite of it,they continued in their pursuit. She has merely quoted incident ofafternoon of 21-05-2016. Thus, requirements of essential ingredientsi.e. repeated or continuous attempts to contact are not finding placein her evidence. Even PW1 mother of victim merely quotesoccurrence of 21-05-2016 and at her instance crime is registered onreceiving information from her daughter. Therefore, with suchmaterial, in the considered opinion of this Court, the alleged incidentwould merely amount to taunting or commenting on look. There isnothing to suggest repeated attempts to foster or develop interaction.Therefore, as essential requirements are not met, offence cannot besaid to be made out. 10.Perused the judgment under challenge. In the consideredopinion of this court, the above requirements of law are not taken CR APPEAL 363 of 2018-12- into account and moreover, aspect of utterance in chorus by both theappellants at one and the same time, has not been pondered upon bythe learned trial Judge. Therefore, findings being erroneous,appellant succeeds. Accordingly, I proceed to pass following order:ORDERI)Criminal Appeal No.363 of 2018 is allowed.II)The conviction awarded to appellant in Special (POCSO)Case No.150 of 2016 by the learned Additional Sessions Judge-14, Aurangabad on 16-04-2018 for the offence punishable underSections 354-D(1)(i) read with Section 34 of the Indian PenalCode, stands quashed and set aside. III)The appellant stand acquitted of the offence punishableunder Section 354-D(1)(i) read with Section 34 of the IndianPenal Code.IV)The bail bonds of appellant stand cancelled. V)The fine amount deposited, if any, be refunded toappellant after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. VII) Fees of learned counsel appointed to represent appellant isto be paid through the High Court Legal Services Sub-Committee, Aurangabad as per Rules. [ABHAY S. WAGHWASE, J.]SPT