High Court
Legal Reasoning
CriAppeal-853-2019-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 853 OF 2019Prakash @ Pappu s/o Vishwanath ZinzurdeAge 27 years, Occu- Labour,R/o Sindkhedraja, Taluka Sindkhedraja,District Buldhana.… Appellant[Orig. Accused]Versus1.The State of MaharashtraFor Shivaji Nagar Police Station, Beed.2.XYZ… Respondents…..Mr. Sudhakar T. Mahajan, Advocate for the Appellant.Mr. N. D. Batule, APP for Respondent No.1-State.Mr. M. B. Sandanshiv, Advocate for Respondent No.2...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 05.02.2024Pronounced on: 12.02.2024JUDGMENT : 1.Appellant-convict takes exception to the judgment and order ofconviction passed by learned Special Judge, Beed dated 17.07.2019passed in Special (POCSO) Case No. 17 of 2018 for commission ofoffences punishable under Sections 363, 366-A, 376(2)(f)(n) of theIndian Penal Code [IPC] and Sections 4 and 6 of the Protection ofChildren from Sexual Offences Act, 2012 [POCSO Act]. CriAppeal-853-2019-2- CASE OF PROSECUTION IN TRIAL COURT2.PW2 victim studying in 10th standard was alone at home on09.05.2016 while her mother PW1, a worker in the hospital, went toattend duties. Cousin of mother, i.e. accused, visited her house andfinding victim alone, he told that he desires to marry her andsuggested that they should run away and perform marriage. Helatched the door. At that time another uncle, namely, Sham came andthereafter he scolded accused. However, after said uncle Sham left,accused again told the girl that they should run away andaccordingly, he took her to Jalna road, Beed and then brought her toAurangabad, spent night at the room of one Prakash and thereafter hetook the girl to Manmad by train and from there to Yeola in a bus,their they halted at his aunt and then he took her to Ahmednagar.Finding girl missing, mother suspected accused, who was regularlyvisiting her house, to be responsible and she lodged FIR Exhibit 26. 3.Police found victim after 11 months and thereafter she madedisclosure that accused promised to marry her, took her from thehouse to various places and had sexual intercourse with her,impregnated her and even forced to get pregnancy aborted andaccordingly, her statement was also recorded.
Legal Reasoning
CriAppeal-853-2019-3- 4.After completion of investigation, PW5 IO chargesheetedaccused for above offences and he was made to face trial beforelearned Special Judge, who after appreciating oral and documentaryevidence of prosecution, held accused guilty as above.Above judgment and order of conviction is now questionedbefore this court by filing instant appeal.SUBMISSIONS5.Learned counsel for the appellant would submit that at firstcount, there is no convincing, cogent, reliable evidence about victimto be minor. That, moreover victim had attained age of discretion.She had willingly accompanied accused with whom she had loveaffair. Prosecution’s own evidence reflects the same. It is pointed outthat victim has spent over 11 months in the company of accused. Atno point of time, since she accompanied accused, she ever raisedalarm or resisted. Though they had been to various places, she did notinform anyone about being kidnapped or forcibly brought under thepretext of marriage. He pointed out that she spoke about conceivingfrom accused. At no point of time she had resisted and therefore,whatever happened was consensual. CriAppeal-853-2019-4- 6.It is further pointed out that in this case, Section 366-A of IPCwas applied, however, according to him, taking into consideration thenecessary ingredients for the said offence, case of prosecution was notthat victim was forcibly taken with intention that she would be madeto have sexual intercourse with another person. Therefore, accordingto him said charge is misplaced. 7.Relying on Ashik Ramjan Ansari v. State of Maharashtra andanother [2023 (3) Bom. C.R. (Cri.) 322], he further submitted that asgirl had attained age of understanding and she willingly accompaniedaccused due to their long standing affair, accused ought not to havebeen held guilty and thus, he finds fault in the case of prosecution aswell as appreciation and findings of learned trial Judge and so heprays to allow the appeal by setting aside the impugned judgment.8.Per contra, learned APP pointed out that victim was studying in10th standard. Her mother as well as victim herself have given date ofbirth. Copy of birth certificate has been laid hands by theInvestigating Officer and it is part of record, which clearly shows thatvictim was minor. Accused was in fact maternal uncle of victim.Taking disadvantage of her loneliness, he promised her of marriage CriAppeal-853-2019-5- even when she was minor, and had taken her to various places. Beinga minor, mere non resistance of victim would not absolve accused,rather he had impregnated her twice/thrice and it is narrated byvictim herself. That, he further forced her to get abortion done. Thus,there is clear evidence suggesting sexual intercourse. That, girl beingminor, provisions of POCSO Act are automatically attracted.Therefore, learned trial Judge, finding all necessary ingredientsavailable on record, rightly convicted accused and sentenced him asper law. Hence, he prays that there being no merit in the appeal, it bedismissed.9.On behalf of victim too, above arguments are advanced.Canvassing in favour of the impugned judgment, it is submitted thatvictim was minor. She was lured on promise of marriage. She was notof marriageable age being minor. In spite of knowing about it, heruncle-accused took her away without consent of mother andtherefore, offence of kidnapping is brought home. He further submitsthat victim was forced to have sexual intercourse. Therefore evenother charges for which accused was chargesheeted, are cogentlyestablished. Victim adduced evidence, naming accused for the saidacts. That, there is ample evidence about age of victim. Her motherhas also deposed to that extent. He submits that medical evidence CriAppeal-853-2019-6- supports prosecution version and as such, no fault can be found in theimpugned judgment and so he too prays to dismiss the appeal.EVIDENCE BEFORE THE TRIAL COURT10.After considering submissions of both sides and on re-appreciating the evidence, it is emerging that here, six witnesses areexamined by prosecution to establish its case. Their status and sumand substance of their evidence is summarized as under:11.PW1 mother gave date of birth of her daughter as 23.03.2001and she to be studying in 9th / 10th standard. She deposed thataccused is her cousin brother and he is already married, having a sonand a daughter. That, 15 days prior to the incident, accused had beento her house and again visited on 09.05.2016 while she was attendingduty. Around 2.30 p.m. she learnt from her mother-in-law that victimwas not in the house. In spite of search when victim was not found,mother approached police station and lodged FIR Exhibit 26 againstaccused. This witness further deposed that her daughter was notfound for 11 months but when police traced and brought herdaughter, she disclosed that she was taken to various places byaccused, mangalsutra was also tied to her neck showing marriage andthat she was impregnated by him twice/thrice and even given pills for CriAppeal-853-2019-7- abortion. This witness deposed that her such statement was alsorecorded before learned Magistrate.12.PW2 victim at Exhibit 28 stated that she was in 10th standard.The incident occurred on 09.05.2016. Her mother went to hospital forjob and while she was alone in the house, around 1.30 p.m. hermaternal uncle accused came and told her that he wants to marry herand suggested that they should run away and get married. That timeanother uncle came and even he scolded accused. But when saiduncle went away, accused again told her to accompany him and thatthey would get married and took her to various places. She gavedetails of all placed taken to by him. She also stated that he took herto Mahadev Temple, tied mangalsutra and thereafter they startedresiding as husband and wife on a construction site and worked thereduring which he had sexual intercourse with her and that she wasimpregnated by him twice/thrice and even given pills to abort.Thereafter he started consuming liquor and assaulting her. Shefurther deposed that while at Amravati, police from Beed came andtook her and accused to Beed. She was subjected to medicalexamination and her statement was recorded before learned JMFC.She further stated that accused used to prevent her from going out ofthe house or contacting her parents. CriAppeal-853-2019-8- 13.PW3 Dr. Shivanikar is the medical officer who examined victimon 12.04.2017 and gave examination report Exhibit 35. He deposedabout referring victim for radiological and dental examination.According to him, radiological and dental examination suggested herage to be between 17 to 19 years and 16 to 18 years respectively. Onclinical examination, it was his opinion that victim had sustainedsexual intercourse.14.PW4 Police Head constable Sanap was in the police team whobrought accused and victim from Amravati. He also caused spotpanchanama Exhibit 53.15.PW5 API Baravkar is the Investigating Officer. He carried outinvestigation and narrated all steps taken by him during investigationtill filing of charge sheet.16.PW6 API Pathan is another police officer who had carried outpart investigation and had searched victim. He is examined at Exhibit68/C. CriAppeal-853-2019-9- ANALYSIS17.At the threshold, fundamental objection raised regarding age isrequired to be dealt and decided. Learned counsel for appellantwould submit that prosecution failed to establish that victim wasminor so as to attract charges of kidnapping, forceful rape and underthe provisions of the POCSO Act. Her mother, while in witness box,has apparently given date of birth of victim as 23.03.2001. She haseven given the class in which the victim had studied up to. PW2victim, though has not given specific date of birth, learned SessionsJudge seems to have, by passing express order below Exhibit 82 on15.04.2019, taken efforts to collect birth certificate of victim and it isnow part of record which shows that the Health Department ofGovernment of Maharashtra, Nashik Municipal Corporation hasissued birth certificate of victim which shows her date of birth as23.03.2001. 18.Alleged occurrence is of 09.05.2016. Obviously, taking suchdate of birth and date of occurrence into consideration, victim wasaround 15 years of age at the time of occurrence and hence, below16/18 years. Though medical expert has given radiological and dentalage, in the light of conclusive evidence in the form of birth certificate CriAppeal-853-2019-10- issued by the Municipal Corporation, the same would prevail and assuch, there is no hesitation to hold that victim is established to be aminor.19.Now it is to be seen whether other offences, for which accusedis chargesheeted, are made out or not, for which evidence of victim,her mother as well as the evidence of medical expert needs to bevisited. 20.Evidence of victim is at Exhibit 28. On its close scrutiny, itssubstance is that the incident occurred on 09.05.2016 while she wasin 10th standard and was alone in the house. Accused offered to marryher and suggested to accompany him and took her to various placesand even stayed at Ahmendagar. There, he tied mangalsutra to herneck in Mahadev Temple and thereafter, while residing at aconstruction site, he had sexual intercourse with her. According toher, she became pregnant two to three times and accused gave herpills for abortion. After staying for three to four months atAhmednagar, they further went to Pandharpur and spent two to threemonths there and then went to Amravati where Beed police came andapprehended them. CriAppeal-853-2019-11- In her cross-examination, which was extensive, there wassuggestion regarding she to be in the company of her father andadjoining people when accused went to her on 09.05.2016, which sheflatly denied. She answered that while at Ahmednagar, she was notgoing out of the house as accused was locking her in the house. Shealso answered that she shouted many times. All suggestions areturned down by the victim. Court questions are also posed which are,as to whether accused was cousin brother of her mother, whether hewas married and whether she gave information to police and allanswers are given by her in affirmative. It is pertinent to note thatthere is no effective cross on accused taking her from her house whileshe was alone till she was taken in custody by police.21.PW1 mother, the sum and substance of whose evidence is alsodiscussed above, is found to be categorically speaking about accusedto be her cousin brother and that 15 days prior to the incident, he hadcome to her house on the day of incident i.e. on 09.05.2016 also hehad visited her. That, on finding victim missing, she had suspectedhim for taking her daughter and had lodged complaint Exhibit 28.She has specifically named accused in the FIR lodged by her on10.05.2016. CriAppeal-853-2019-12- 22.PW3 Dr. Shivanikar, though claims that he did not noticeexternal injuries, he has come across old tears to hymen. Doctor hascategorically opined that sexual intercourse has occurred and ongoing through the CA report and on the basis of clinical examination,doctor has specifically issued final opinion that victim had sustainedsexual intercourse. Nothing adverse is brought in the cross of doctor. 23.Therefore, here, on carefully analyzing the evidence, on thestrength of birth certificate, which shows date of birth of victim to be23.03.2001 and date of taking away victim as 09.05.2016, she wasapparently 15 years of age. Therefore, she is shown to be minor onthe date of occurrence. She was taken away from her house withoutconsent of mother. Therefore there is offence of kidnapping. Sexualintercourse is proved through PW3 doctor. Therefore, even offencesunder the POCSO Act are successfully brought on record byprosecution.24.Learned counsel for the appellant has sought reliance on theruling of Ashik Ramjan Ansari (supra), however, on going through thefacts in the said case and considering the facts in the case in hand,said judgment being on distinct facts, cannot be taken aid of. CriAppeal-853-2019-13- 25.During appeal, specific objection has been raised by learnedcounsel for the appellant that charge under Section 366-A of IPC ismisplaced and even learned trial court erred in recording guilt andconviction for offence under Section 366-A of IPC. This court, onappreciating the available evidence, finds force in the abovesubmission. It needs to be noted that Section 366-A of IPC provides asunder:“366-A. Procuration of minor girl. - Whoever, by anymeans whatsoever, induces any minor girl under the ageof eighteen years to go from any place or to do any actwith intent that such girl may be, or knowing that it islikely that she well be, forced or seduced to illicitintercourse with another person shall be punishable withimprisonment which mahy extend to ten years, and shallalso be liable to fine.”26.Law regarding applicability of Section 366-A IPC has been dealtin the following cases and relevant observations are as under:In Ramesh v. The State of Maharashtra AIR 1962 SC 1908, theHon’ble Supreme Court has in para 7 observed thus:“7.…… There are three principal ingredients of theoffence.(a) That a minor girl below the age of 18 years is inducedby the accused, CriAppeal-853-2019-14- (b) that she is induced to go from any place or to do anyact, and (c) that she is so induced with intent that she may be orknowing that it is likely that she will be forced or seducedto illicit intercourse with another person.”In Mohammed Nisar Riyaz Khan and Etc. v. State ofMaharashtra 2007 CriLJ 562 (Bom)/2006 (6) AIR BOM R 610, thiscourt at its principal seat has observed in para 12 as under:“12. Accused No. 1 has been found guilty of the offenceunder Section 366A of I.P. Code. Insofar as that finding isconcerned, it is rightly submitted that the section wouldcome into play, if it was to be established by theprosecution that the minor girl was taken away with intentor knowledge that she was likely to be forced or seduced toillicit intercourse with "another person". In the presentcase, the charge against the appellant/accused No. 1 wasthat he himself committed forcible sexual intercourse onthe minor girl Kum. Anjum. In such a case Section 366Awill have no application. That section could have beeninvoked at best against the accused No. 2, that is not theoffence for which accused No. 2 has been found guilty bythe lower Court. The State has not challenged that part ofthe decision of the trial Court. Suffice it to observe thataccused No. 1 cannot be proceeded for offence underSection 366A of I.P. Code.” CriAppeal-853-2019-15- In Sat Parkash v. State of Haryana and another ABC 2016 (I)180 SC, following observations are made in para 5 and 6 by theHon’ble Apex Court:“5. The charge with reference to Section 366A of the IndianPenal Code needs a closer examination. Section 366A of theIndian Penal Code is extracted hereunder: “366A Procuration of minor girl – Whoever, by anymeans whatsoever, induces any minor girl under the age ofeighteen years to go from any place or to do any act withintent that such girl may be, or knowing that it is likely thatshe will be, forced or seduced to illicit intercourse withanother person shall be punishable with imprisonmentwhich may extend to ten years, and shall also be liable tofine.” 6. A perusal of the aforesaid section reveals, that theinducing of the minor to constitute an offence underSection 366A, should have been with reference to an intentto force or seduce her “... to illicit intercourse with anotherperson...”. ……...”In Iqbal v. State of Kerala (2007) 2 SCC 724, the Hon’ble ApexCourt has in para 9 and 10 observed thus: CriAppeal-853-2019-16- “ 9. The residual question is of applicability of Section 366AIPC. In order to attract Section 366A IPC, essentialingredients are (1) that the accused induced a girl; (2) thatthe person induced was a girl under the age of eighteenyears; (3) that the accused has induced her with intent thatshe may be or knowing that it is likely that she will beforced or seduced to illicit intercourse; (4) such intercoursemust be with a person other than the accused; (5) that theinducement caused the girl to go from any place or to doany act.10. In the instant case, the admitted case of the prosecutionis that girl had left in the company of the accused of herown will and that she was not forced to sexual intercoursewith any person other than the accused. The admitted caseis that she had sexual intercourse with the accused forwhich, considering her age, conviction under Section 376IPC has been maintained. Since the essential ingredient thatthe intercourse must be with a person other than theaccused has not been established, Section 366A has noapplication.”27.Taking into account the above discussed material, here, accusedis the only person involved in the crime. There is no “another person”as is contemplated in Section 366-A IPC and therefore, in theconsidered opinion of this Court, both, charge for said offence under CriAppeal-853-2019-17- Section 366-A IPC as well as guilt recorded by learned trial Judgewith regard to such offence, cannot be allowed to be sustained.Judgment and order of conviction to that extent needs to be set asideby partly allowing the appeal. Hence, I proceed to pass the followingorder:ORDERI.The appeal is hereby partly allowed.II.The conviction awarded to the appellant Prakash @ Pappus/o Vishwanath Zinzurde by the learned Special Judge,Beed in Special (POCSO) Case No. 17 of 2018 on17.07.2019, to the extent of offence under Section 366-A ofIPC i.e. vide clause (2) of the operative part of the order, ishereby quashed and set aside.III.Appellant stands acquitted to the extent of the offencepunishable under Section 366-A of IPC.IV.Rest of the judgment and order of conviction, i.e. videclauses (1) and (3) to (10) of the operative part of theorder, is hereby maintained. [ABHAY S. WAGHWASE, J.]vre