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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