High Court
Legal Reasoning
Cri Appeal No.469 of 2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO.469 OF 2021 Dhiraj s/o. Pashya Pawar, Age : 29 years, Occ. Driver,r/o. Dudhale, Tq. and Dist.Nandurbar..AppellantVs.1.The State of Maharashtra,Through City Police Station,Nandurbar, Tq. and Dist. Nandurbar2.XYZ (Victim)..Respondent----Mr.Yogesh B. Bolkar, Advocate for appellantMr.S.J.Salgare, APP for respondent no.1Ms.Suvarna Zaware, Advocate for respondent no.2 (appointed)---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. RESERVED ON: JANUARY 20, 2025 PRONOUNCED ON :APRIL 01, 2025JUDGMENT (Per R.G.Avachat, J.) :- The challenge in this appeal is to the judgment ofconviction and order of consequential sentence dated 01.09.2021,passed by learned Sessions Judge, Nandurbar (Trial Court), in SpecialCase No.25 of 2019. It was a case, wherein the appellant was tried forthe offences punishable under Sections 363 and 366 of Indian PenalCode and Section 6 of the Protection of Children from Sexual OffenceAct, 2012 (“POCSO Act”, for short). The trial court acquitted the 2Cri Appeal No.469 of 2021appellant of the offences punishable under Sections 363 and 366 ofIndian Penal Code. It has, however, convicted him for the offencepunishable under Section 6 of the POCSO Act and therefore,sentenced to suffer imprisonment for life and fine of Rs.5,000/-, withdefault stipulation. The appellant has, therefore, preferred thisappeal. The State did not prefer appeal against acquittal.2.The facts, in brief, giving rise to the present appeal areas follows:-PW1 – “K” (name withheld) was in the age group of 15-16years at the relevant time. She was resident of one of the villages inTaluka and Dist. Nandurbar. The appellant too was resident of thevery village. The appellant is married and blessed with two children.According to PW1 – “K” (victim), the appellant was after her. Heproposed her many a time through her friend. She was reluctant.She wanted to study. The appellant, however, threatened that herparents would be done away with, if she did not join him to makelove. She had no option but to relent. Once, the appellantintercepted when she had been to answer the nature’s call. He tookher in a field and committed sexual intercourse. Such thingshappened thereafter a few times. 3Cri Appeal No.469 of 20213.On 08.05.2019, the appellant called her on phone andasked her to join him at Sakri. Her parents had been away to villageAdachi for marriage. Due to the threats extended by the appellant,the victim went to Sakri. The appellant then took her to Nashik onmotorbike. He secured a room on rent. He made her stay with himfor about twenty days. During that period, he had sexual intercoursewith her many a time. The victim was said to have conceived byhim. 4.One Navashibai informed her father that the victim leftthe house for answering nature’s call, but did not return. He(father) came back to the village and took search for the victim. Asthe victim was not found, he lodged the FIR (Ex.35) with NandurbarCity Police Station, alleging an unknown person to have kidnappedhis minor daughter. A crime, vide C.R. No.151 of 2015 was,therefore, registered for the offence punishable under Section 363 ofIndian Penal Code. It was investigated. During the investigation, theappellant and the victim were located at Nashik. They were broughtback to the village. The victim was subjected to medical screening.She was found to have been pregnant of two months. The appellantwas arrested. He too was medically screened. It appears that thevictim underwent Medical Termination of Pregnancy (M.T.P.). 4Cri Appeal No.469 of 2021Thereafter, blood samples of both appellant and victim wereobtained besides the fetus. Moreover, the clothes on the person ofboth of them were seized. The crime-scene panchnama (Exh.41)was drawn. Blood samples were submitted for DNA analysis. Thestatements of the persons acquainted with the facts andcircumstances of the case were recorded and upon completion of theinvestigation, the appellant was proceeded against by filing chargesheet.5.The trial court framed Charge (Exh.3). The appellantpleaded not guilty. His defence was of false implication. Theprosecution examined eight witnesses and adduced in evidencecertain documents. On appreciation of the evidence in the case, thetrial court passed the impugned judgment and order.6.Heard learned counsel for the parties. Learned counselfor the appellant would submit that there was no evidence toindicate the victim to have been below 18 years of age at therelevant time. The school admission form along with the birthcertificate was admitted in evidence. The witness who produced thesame was serving with Village Panchayat only for five years nextbefore her evidence was recorded. The parents of the victim did not
Legal Reasoning
5Cri Appeal No.469 of 2021give information for recording date of birth of the victim. Theinformation was stated to be given by her grandmother. Hersignature was not there on the registration form. The oral evidenceof the victim about her date of birth is hearsay. The father’sevidence in this regard would be of little consequence since he wasilliterate and rustic person. He must have been tutored. Learnedcounsel took us through the evidence of the victim and her previousstatement, to submit that her evidence is altogether unreliable. It isa serious offence. The appellant has been sentenced to suffer lifeimprisonment. For sustaining such conviction, the evidence shouldbe cogent and reliable one. Except the testimony of the victim, noother evidence is there to reinforce the prosecution case. The DNAreport is not on record. The medical examination of the victim doesnot support the prosecution. Learned counsel, ultimately, urged forallowing the appeal.7.Learned APP and learned counsel representing the victimwould, on the other hand, submit that the school admission formaccompanied by the birth certificate proved the age of the victim.The victim’s father also gave her date of birth. The father is the bestwitness in proof of date of birth of his child. The victim was awayfrom village for over 20 days. She was found in the company of the 6Cri Appeal No.469 of 2021appellant in Nashik. Both of them were brought back. They weresubjected to medical examination. The victim was pregnant. Theappellant was married. Section 29 of POCSO Act was relied on. Theyalso relied on the Apex Court’s judgment In Re : Right to Privacyof Adolescents with Criminal Appeal No.1451 of 2024 andSuo Motu Writ Petition (C) No.3 of 2023 decided on20.08.2024 (2024 SCC OnLine SC 2055). Learned counsel tookus through the entire evidence on record and then reiterated thereasons given by the trial court in support of the impugned order.According to them, no interference with the impugned order iswarranted. They, therefore, urged for dismissal of the appeal.8. Considered the submissions advanced. Perused thejudgment impugned herein. Let us advert to the evidence on recordand appreciate the same.9. The FIR was lodged by the father of the victim, PW2 –Dangal. He testified that the victim was born on 17.10.2003.According to him, she was 15 years of age, taking education in 8thstandard at the relevant time. He received a phone-call of oneNavashibai, informing him that the victim left the house under thepretext of attending nature’s call and did not return. He, therefore, 7Cri Appeal No.469 of 2021took search for her. After twenty days from 08.05.2019, the policebrought her. There-before, he had lodged the FIR (Exh.35). Theappreciation of the evidence of PW2-Dangal indicates that the victimwas below 18 years of age on the day, i.e. on 08.05.2019, when sheleft the home.10.The fate of the case would be dependent on thetestimony of the victim and the medical evidence. The trial courthas already acquitted the appellant of the offence of kidnapping thevictim. Neither the State nor the victim has preferred an appealagainst acquittal. Same has, thus, attained finality. 11.Let us, now, turn to the evidence of victim “K” (PW1).The trial court put her certain questions and from the answersthereto, found her to be competent witness. Naturally so, since thevictim was 16 years of age when she gave evidence before the court.She too stated her date of birth as 17.10.2003. Same is, however,hit by hearsay. She testified that the appellant would reside in thevery village. He was married. Whenever she was on her way toschool, the appellant used to intercept her and extend threats to killher father and brother. She further testified that about 8-9 daysthereafter, her friends – Gayatri, Mogara and Sanjana had been to 8Cri Appeal No.469 of 2021her residence. They told her that one boy had affection for her. She,in turn, informed them that she did not wish to fall in love and shewanted to pursue her education. She further testified that about 4-5days thereafter, the appellant sent her friend Gayatri to herresidence. She accompanied Gayatri to her house. The appellantwas present there. He expressed his desire to marry her. She flatlyrefused. He asked her to join him so that they may elope. Shefurther testified that 4-5 days thereafter, she had been to attend thenature’s call. It was little past 4.00 p.m. The appellant had hiddenhimself in that area. He suddenly emerged. He took her towards aNala and committed rape of her. He also gave threats to kill herfather and brother. Six-seven days thereafter, one Sonu, Pappu,Nilesh and Dinesh met her on way to school. The victim furthertestified that on 08.05.2019, her parents had been to villageAadachi. Nilesh came to her house and informed to have been sentby the appellant to take her. He also told her that if she did not joinhim, he would kill her family. Due to those threats, she joined him.The appellant then took her to various places on motorbike. He,ultimately, took her to Nashik and took a room on rent. He kept herwith him for 19-20 days. During all those days, he committed sexualintercourse with her. The police, thereafter, arrived and broughtthem to the village. She was medically screened. She was found to 9Cri Appeal No.469 of 2021be pregnant of two months. She referred her statement recordedunder Section 164 of the Code of Criminal Procedure. 12.PW1 – “K” (victim) was subjected to searching cross-examination. She denied to have been 18 plus. She also denied thata false case was lodged by her father since the appellant and herfather had dispute inter se over money of Ayurvedic medicines. Shealso denied to have written love-letter to the appellant. She wasconfronted with her police statement. Same is silent to record thatNilesh had come to her residence to take her. The portion marked”A” was brought to her notice. She denied to have stated the same.Said statement is to the effect that since her parents had been toAadachi wadi for marriage, she alone went to Sakri bus stand by 3.00pm. She admitted to have not stated to the police in her statement,that 8-9 months prior to the incident, her friends - Gayatri, Mograand Sanjana had been to her residence; they stated her that oneboy (appellant) was in love with her. She turned down the proposalas she wanted to pursue her education. Her police statement is alsosilent to record therein that after 4-5 days, when she had been toanswer the nature’s call, the appellant suddenly emerged. Then, shewas confronted with her statement recorded, under Section 164 ofthe Code of Criminal Procedure (Exh. 33), wherein, she stated to 10Cri Appeal No.469 of 2021have told the Magistrate that she was willing to reside (cohabit) withthe appellant and she did not want to state anything more. Saidstatement is silent to record that the appellant had threatened to killher father and brother. It has specifically been stated in herstatement under 164 of Cr.P.C. that:-मी धीरजला फोनवर सांगि(cid:16)तले की , आपण पळून जाऊ . परंतु त्याने त्यास नकार गि(cid:30)ला . पण मी माझ्या जीवाचे बरे वाईट करून घेईन असे त्यास सांगि(cid:16)तल्याने त्याने गिनलेश नावाच्यामुलास मला घेण्यासाठी (cid:16)ाडीवर पाठवले. गिनलेशने मलापिंपपळनेर येथे सोडले. तितथे मला घेण्यासाठी धीरज आलाहोता. धीरज मला नाशिशक येथे घेऊन (cid:16)ेला. नाशिशकला एकआठवडा आम्ही सोबत रागिहलो. नंतर पोलीस व माझ्यावतिडलांनी माझा शोध लावला. The appellant sent Nilesh to get her. Nilesh took her to Pimpalner.There, she joined the appellant. She did not raise any hue and crywhen she was along with the appellant on motorbike. She deniedthat the appellant did not have sexual intercourse with her.13.PW3 – Kiran was owner of the premises in Nashik. Hetestified that he let out the room to the appellant at a monthly rentof Rs.2,800/-. He was, however, categorical to state that he hadnever seen the victim or any woman in the said room. He is witnessto the crime scene panchnama (Exh.41). 11Cri Appeal No.469 of 202114.PW6 – Dr. Vivekanand was on duty at Nandurbar CivilHospital. He examined the victim on 26.05.2019. According to him,the victim narrated the history. He medically screened her and foundher to be pregnant. He issued the medical certificates (Exh.62 and63 respectively). What has been stated in the history of the victim tothe Medical Officer (PW6) was not stated by the victim in herexamination-in-chief. The medical examination report indicates thatthere was no injury mark on her person or even on her private part.For DNA analysis, blood samples of both appellant and victim wereobtained and sent to F.S.L. The report in that regard indicates thatthe sample could not be amplified. As such, the DNA profiling couldnot be obtained. It is not known, whether the victim has undergonemedical termination of pregnancy, lateron. The C.A. report (Exh.90)indicates that the blood group of the appellant was “A”. One semenstain was found on knicker (Article 3); while four small stains werefound on Article 4. Those were of group “A”. Those are said to bethe clothes of woman, seized in the presence of the panch witness,PW5 – Shakuntala, on 27.05.2019.15.PW8 – Kamlakar was Investigating Officer. He reiteratedabout seizure of the clothes, etc. and sent the same for analysis. Anemployee from the office of village panchayat was also examined in 12Cri Appeal No.469 of 2021proof of age of the victim. Since the victim’s father gave the date ofbirth of the victim and he being best witness in that regard, we relyon his evidence that the victim was below 18 years of age at therelevant time. 16.The offence is serious one. The appellant has beensentenced for life imprisonment. It needs no mention that serious isthe offence, stricter shall be the proof. Appreciation of the evidenceof the victim indicates that her evidence inspires no confidence. Shemade so many improvements in her evidence before the court. Shealleged the appellant to have had extended threats to kill her fatherand brother and therefore, she joined him; whereas, her statement(under Section 164 of Cr.P.C.) indicates that it was the victim herself,who joined the appellant. The victim even threatened the appellantthat if she was not taken with him, she would commit suicide. Assuch, whatever things appear to have had happened, were at thebehest and insistence of the victim. The appellant was evenreluctant to take her with him. The victim also testified that she hadstayed at Nashik. The landlord (PW 4), in whose room she claimed tohave stayed with the appellant at Nashik, stated to have never seenany lady or even the victim to have been staying with the appellant.When the Investigating Officer testified that he arrested the
Decision
13Cri Appeal No.469 of 2021appellant and took the victim into custody and brought them back;arrest panchnama was drawn at the police station. There is noevidence at all to indicate the victim was really pregnant, that too,by the appellant.17.The panchnama relating to the seizure of clothes isconspicuously silent to state therein that those clothes werepacked/wrapped and sealed, meaning thereby, those clothes were asit is, until the day on which those were sent to the F.S.L. for analysis.Finding of few semen stains thereon of the blood group of theappellant is short for us to jump to the conclusion that those werethat of the appellant and were there as a result of the sexualintercourse between him and the victim.All in all, the evidence ofthe victim being not of sterling quality, we find the sentence of lifeimprisonment, based on such evidence, is unsustainable in law. Theappellant is in jail since may, 2019, i.e. two months short of sixyears. 18. For all the aforesaid reasons, we are inclined to allow theappeal. In the result, the appeal succeeds. Hence, the followingorder:- 14Cri Appeal No.469 of 2021(i)The appeal is allowed.(ii)The impugned order of conviction and sentence dated01.09.2021, passed by learned Sessions Judge, Nandurbar (TrialCourt), in Special Case No.25 of 2019, for the offence punishableunder Section 6 of the Protection of Children from Sexual OffencesAct, 2012, is set aside. The appellant is acquitted thereof.(iii) The appellant be released forthwith, if not required in anyother offences.(iv)Fine amount paid by the appellant, if any, be refunded tohim.(v)Fee of learned counsel appointed to representrespondent no.2 is quantified at Rs.10,000/- (Rupees Ten Thousand).[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP