Aashik S/O. Bharat Gajbhiye (In … vs The State Of Maharashtra Thr. … on 3 October, 2017

Cri. Appeal No.135.17.odt 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.135 OF 2017

Aashik s/o Bharat Gajbhiye,
Aged 24 years,
Occupation-Labourer,
R/o. Nandgaon (Jonny),
Tahsil-Bramhapuri,
District-Chandrapur
(Presently in Jail). .. APPELLANT

.. VERSUS ..

The State of Maharashtra,
Through Police Station Officer,
Police Station, Gadchandur,
District-Gadchandur (Chandrapur) .. RESPONDENT

……….
Shri S.V. Sirpurkar, Advocate for Appellant,
Shri N.H. Joshi, APP for Respondent-State.
……….

CORAM : KUM. INDIRA JAIN, J.

DATED : OCTOBER 03, 2017.

ORAL JUDGMENT

This appeal takes an exception to the judgment

and order dated 28.2.2017 passed by the Special Court,

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Cri. Appeal No.135.17.odt 2
Chandrapur in Special (POCSO) Case No.76/2015. By the

said judgment and order, appellant-accused no.1 has been

convicted of the offence punishable under Section 376 (2)(a)

(i) of the Indian Penal Code and Section 3 punishable under

section 4 of the Protection of Children from Sexual Offences

Act 2012 (for short ‘POCSO Act’) and sentenced as under :

Sr. Conviction Punishment
No. under
section

1. 376 (2)(a)(i), Rigorous imprisonment for ten
IPC. years and fine of Rs.1,000/- in-

default simple imprisonment for
three months.

2. 3 r/w 4, Rigorous imprisonment for seven
POCSO Act. years and fine of Rs.500/- in
default simple imprisonment for
one month.

The trial court directed both the sentences to run

concurrently.

2] For the sake of convenience, appellant shall be

referred in his original status as accused as he was referred

before the special court.

3] The facts giving rise to the appeal may be stated

in nutshell as under :

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Cri. Appeal No.135.17.odt 3

(i) In all three accused were chargesheeted

for the offences punishable under Sections 363, 366-A, 376

(2)(i) r/w 109 of the Indian Penal Code and Section 3

punishable under section 4 of the POCSO Act. Accused no.1

alone came to be convicted for the offences as stated

herein-above. Accused nos.2 and 3 were acquitted by the

trial court.

(ii) According to the prosecution, victim was

a student of 9th standard in a National High School at

Durgapur. She was residing in a rented room. The victim’s

mother was resident of Khavthala. Incident occurred on

1.5.2015 and continued later. At around 1.00 pm, victim

left for Chandrapur from her native place Khavthala. To

ascertain, whether daughter has reached safely, mother of

victim called her at 6.00 pm. Victim informed her mother

that she was at the house of accused no.1/appellant at

Chandrapur. Mother of victim asked accused no.1 to drop

victim at her house. Accused expressed his inability to do

so. Thereafter, accused took the victim to an unknown

place.

(iii) The mother of victim lodged report with

Gadchandur Police Station. Crime No.34/2015 came to be

registered against accused for the offences punishable

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Cri. Appeal No.135.17.odt 4
under sections 363, 366-A and 376 (2) (i) of the Indian Penal

Code. Investigation was handed over to PSI Yashwant

Kichak (PW-8). Investigating Officer visited the place of

occurrence and recorded spot panchanama. It was followed

by statements of victim and other witnesses. Accused was

arrested. Arrest panchanama was accordingly drawn.

Investigating Officer then referred the victim and accused

for medical examination. The clothes of duo were seized

and seizure panchanamas were recorded. One motorcycle

used in the commission of crime by the accused was also

seized. Further investigation was handed over to API Uike

(PW-9). API Uike recorded statements of remaining

witnesses and after completing investigation submitted

charge-sheet to the court of J.M.F.C, Gadchandur, who in

turn, committed the case for trial to the Special Court.

4] Charge of the alleged offences came to be

explained to accused vide Exh.4. Accused pleaded not

guilty and claimed to be tried. The defence of accused was

of total denial and false implication.

5] Prosecution examined in all nine witnesses to

substantiate the guilt of accused. Considering the evidence

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Cri. Appeal No.135.17.odt 5
adduced by the prosecution, Special Court found that

offences under sections 363 and 366-A of Indian Penal Code

have not been proved and held the accused guilty of

offence punishable under section 376(2)(a)(i) r/w 109 of the

Indian Penal Code and Section 3 punishable under section 4

of the POCSO Act. Being aggrieved by judgment and order

of conviction as stated above, accused no.1 preferred this

appeal.

6] Heard Shri S.V. Sirpurkar, learned counsel for

appellant and Shri N.H. Joshi, learned APP for respondent-

State. Perused reasonings recorded by the trial court.

7] On meticulous evaluation of evidence of

prosecutrix, her mother, Principal of school and both the

investigating officers, this court, for the below reasons, finds

that prosecution has not proved the guilt of accused beyond

reasonable doubt. Needless to state that in a case of sexual

assault where victim is minor her evidence plays a

significant role and prosecution at the same time has to

prove the age of victim beyond doubt. In the case on hand,

according to prosecution, date of birth of prosecutrix is

28.2.2000. Incident first occurred on 1.5.2015. It means

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Cri. Appeal No.135.17.odt 6
prosecutrix was around fifteen years two months old at the

relevant time. To prove age of victim, reliance is placed on

evidence of prosecutrix (PW-2), her mother (PW-1), Principal

of the school Sudhakar Wathore (PW-7) and both the

investigating officers. It can be seen from the evidence of

prosecutrix and her mother that they could not state the

date of birth of prosecutrix. Both the investigating officers

PW-8 PSI Kichak and PW-9 API Uike, though denied

suggestions in cross-examination that prosecutrix was

above 18 years of age could not state the date of birth of

prosecutrix. PW-8 PSI Kichak stated that he collected birth

certificate of victim during investigation. To prove the said

birth certificate, prosecution examined PW-7 Sudhakar

Wathore. He was Principal of Shri Sudhakarrao Rathod Post

Basic Adivasi Ashram School since 2007. PW-7 Sudhakar

Wathore stated that victim was studying in their school for

the year 2015-16 and left the school on 16.6.2016. It

appears from the evidence of this witness that victim took

admission in the school on 30.7.2015. It shows that one

academic year only she was student of school in which PW-7

was the Principal. According to witness PW-7 Sudhakar

Wathore at the time of giving admission to the victim in the

school, they obtained transfer certificate and mark-sheet of

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Cri. Appeal No.135.17.odt 7
victim of earlier school. The copy of admission register and

birth certificate of victim (Exhs.63 and 64) came to be

proved by this witness. As per the certificate Exh.64, date

of birth of victim appears to be 28.2.2000.

8] The moot question in the present case is entry in

transfer certificate (Exh.64) regarding date of birth would be

relevant under Section 35 of the Evidence Act. In the cross-

examination, PW-7 Sudhakar Wathore admitted that date of

birth of victim mentioned in their school record is on the

basis of earlier transfer certificate and he had not brought

transfer certificate submitted by victim at the time of

getting admission. He could not tell where was the victim

born and what is her exact date of birth in earlier record and

in Gram Panchayat or Municipal record.

9] In this connection, learned APP referred to

certificate dated 29.4.2004 issued by Chandrapur Municipal

Council and submitted that this birth certificate indicates the

same date of birth which is mentioned in certificate

(Exh.64). So far as birth certificate issued by Chandrapur

Municipal Council is concerned, prosecution did not examine

any witness to prove the entries therein. The certificate is

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Cri. Appeal No.135.17.odt 8
not proved and not exhibited. In the absence of proof, the

birth certificate issued by Municipal Council needs to be kept

out of consideration as it is not legally admissible in

evidence.

10] Section 35 of Evidence Act relates to relevancy of

entry in public record or in electronic record made in

performance of duty. The entry in birth register, as recorded

by public authority, is admissible u/s 35 of Evidence Act.

In this case, as entry in birth register has not been proved

by examining competent witness, the said certificate does

not come to the rescue of prosecution. So far as entries in

school register (Exh.63) and transfer certificate (Exh.64) are

concerned, in the absence of primary evidence i.e. earlier

transfer certificate and entries in official record of the school

in which victim was admitted initially would not be sufficient

to prove age of the victim.

11] If the prosecution fails to cross the hurdle

regarding the age, nothing remains in the case against the

accused, particularly in the light of evidence of prosecutrix

and her mother, which would indicate that it is a clear case

of consent between victim and the accused. As such, for

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Cri. Appeal No.135.17.odt 9
want of legal and cogent proof regarding age of prosecutrix,

this court finds that the reliance on the suggestion given in

cross-examination of the prosecutrix cannot be a base to

convict the accused. The judgment and order of conviction

is thus unsustainable in law. Hence, the following order :

ORDER

(i) Criminal Appeal No.135/2017 is allowed.

(ii) The impugned judgment and order dated

28.2.2017 passed by the Special Court, Chandrapur in

Special (POCSO) Case No.76/2015 is quashed and set aside.

(iii) Appellant-accused no.1 Aashik s/o Bharat Gajbhiye

is in jail. He shall be released forthwith, if not required in

any other case.

(Kum. Indira Jain, J.)

Gulande, PA

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