Purushottam S/O. Govinda Shende … vs The State Of Maharashtra Thr. … on 5 February, 2018

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

CRIMINAL APPEAL No.584 OF 2017

Purushottam s/o. Govinda Shende,
Aged about 47 years,
Occupation : Labourer,
R/o. Nari MHADA Colony,
Building No.40, House No.631, Nagpur.
(Presently Central Prison at Nagpur) : APPELLANT

…VERSUS…

The State of Maharashtra,
Through P.S.O. Police Station
Gittikhadan, District Nagpur. : NON-APPLICANT

———————————
Shri C.R. Thakur, Advocate for the Appellant.
Shri A.V. Palshikar, Addl. Public Prosecutor for the Non-applicant.
———————————

CORAM : S.B. SHUKRE, J.

th
DATE : 5
FEBRUARY, 2018.

ORAL JUDGMENT :

1. This is an appeal challenges the legality and correctness of

the judgment and order dated 31st July, 2017 whereby the appellant has

been convicted of the offences punishable under Section 6 read with

Section 5(1) of the Protection of Children from Sexual Offences Act,

2012 (in short, “PoCSO Act”) and Section 376 (1) of the Indian Penal

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Code. However, the punishment has been handed out under Section 6 of

the PoCSO Act, as this Section prescribes punishment greater than the

one prescribed under Section 376 of the Indian Penal Code.

2. The appellant has been sentenced to suffer rigorous

imprisonment for ten years and also to pay fine of Rs.10,000/-, in default

to undergo rigorous imprisonment for six months for the aforstated

offence. The compensation of Rs.7,000/- from out of the fine amount

has also been granted to the prosecutrix.

3. Briefly stated facts of the case are as under :

The prosecutrix aged about 17 years and 8 months in

January 2016 used to reside along with her mother at a construction site

situated at Zingabai Takli, M.B. Town, Nagpur. Her mother was a

labourer on the same construction site and the accused also did painting

work at the same site. The accused used to frequently visit the

prosecutrix at her house. At that time, her elder sister also resided with

the prosecutrix. Her father, who had separated himself from the family,

resided at Koradi and expired about one and half years prior to the last

incident which took place on 3.1.2016.

The appellant started visiting the house of the prosecutrix

some time in the year 2014. The marriage of the sister of the prosecutrix

was fixed in the year 2014 and 2 nd July, 2014 was the scheduled date of

the marriage. The appellant lent substantial assistance to the family in

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smoothly organizing and solemnizing marriage of the elder sister of the

prosecutrix. The elder sister, after her marriage, left the house and went

to reside with her husband at Bhopal. Thereafter, the family was

reduced to just two members, the prosecutrix and her mother. The visit

of the appellant even after the marriage of the elder sister of the

prosecutrix to the house of the prosecutrix continued. Gradually, those

visits turned into some sort of intimacy between the prosecutrix and the

appellant. In August, 2015, when the prosecutrix was all alone at her

house, the appellant for the first time entered into sexual relations with

the prosecutrix, this intercourse has been called as forcible by the

prosecutrix. The prosecutrix had informed her mother of the same, but

her mother warned her to not to speak against the appellant for the fear

of the loss of reputation. About seven days thereafter, the prosecutrix

and her mother left that place of residence and then rented a house at

Gorewada, Nagpur.

Even at the Gorewada house, the appellant continued to visit.

It is alleged that almost every day evening at about 6.00 p.m., the

appellant used to come to the house of the prosecutrix and her mother

and leave the house by about 10.00 p.m. It is also alleged that about 5 to

6 days in a week, the appellant used to engage himself in sexual

intercourse with the prosecutrix, without her consent. He used to

threaten mother of the prosecutrix and the prosecutrix also if any

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resistance was put up to him. Some times, it is further alleged, the

appellant used to beat up the prosecutrix as well as her mother. It is also

alleged that there were occasions when the alleged forcible sexual

intercourse used to be committed by the appellant in the presence of the

mother of the prosecutrix.

Fed up with the behaviour of the appellant, the prosecutrix

and her mother decided to take help of the friend of the prosecutrix.

They requested her to make a video recording of the forcible sexual

intercourse that the appellant would have with the prosecutrix. As usual,

in the evening of 3.1.2016, the appellant came to the house of the

prosecutrix and her mother. He was stated to be intoxicated at that time.

It is alleged that at about 8.30 p.m., the appellant committed forcible

sexual intercourse with the prosecutrix. The prosecutrix and her mother

resisted, but they were beaten up by the appellant. However, a video clip

of this episode was successfully prepared by the friend of the prosecutrix.

On 5.1.2016, the video clip was shown to the prosecutrix by

her friend and after being satisfied with the same, the prosecutrix got an

assurance that there was some evidence in her hand against the

appellant. Thereafter, the prosecutrix informed the Police and her oral

report was reduced into writing by following the procedure of law. On

its basis F.I.R. was registered by the Police against the appellant for the

offences punishable under Section 376 of the Indian Penal Code and

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Section 6 read with Section 5(1) of the PoCSO Act. The appellant was

found out and placed under arrest. Necessary panchanamas were

prepared. Statements of witnesses were recorded. After completion of

the investigation, the chage-sheet was filed against the appellant.

The appellant was tried for the offences punishable under

Section 376(2)(j) and Section 376(2)(n) of I.P.C. and Section 6 read

with Section 5(1) of the PoCSO Act. On merits of the case, learned

Sessions Judge found that the prosecution proved beyond reasonable

doubt the offences under Section 376(1) of the Indian Penal Code and 6

read with Section 5(1) of the PoCSO Act and convicted him for the same.

He was handed out the sentence as stated earlier by the impugned

judgment and order. Not being satisfied with the same, the appellant is

before this Court in the present appeal.

4. I have heard Shri C.R. Thakur, learned counsel for the

appellant and Shri A.V. Palshikar, learned Additional Public Prosecutor

for the non-applicant-State. I have carefully gone through the record of

the case including the impugned judgment and order.

5. Now, the following points arise for my determination :

(i) Whether the prosecution has proved beyond
reasonable doubt that at the time of
commission of offence, the prosecutrix was
minor ?

(ii) Whether the prosecution has proved that the
appellant committed rape upon the prosecutrix
between August 2015 and January 2016 ?

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(iii) What order ?

6. In this case, the mother of the prosecutrix as well as

prosecutrix both have turned hostile. They have not stated anything

about the use of force against the prosecutrix before he had sexual

intercourse on different occasions with the prosecutrix. While the

prosecutrix has admitted that she had had physical relations with the

appellant after July 2014 and that they were on account of the fact that

the appellant had promised to marry her and in fact did marry her in one

temple in the year 2014. She was declared hostile by the learned

Prosecutor and permission was granted to the learned Prosecutor to

cross-examine her. But, even in the cross-examination, she did not

change the stand that she took in her examination-in-chief. In the

cross-examination taken on behalf of the appellant, she again admitted

that she performed marriage with the appellant in August 2015. She also

admitted that the appellant established physical relations with her only

after marrying her. She also gave an admission that at the time when the

F.I.R. was lodged, it was lodged on 5.1.2016 (Exh.-7), she was aged

about 20 years. While, her admission about her own age is not

admissible in evidence, it being hearsay, the admission given by her

mother, PW 2, in the cross-examination by the learned counsel for the

appellant is relevant as well as significant. According to this admission,

age of the prosecutrix has been shown 3 years lesser than her actual age.

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On such backdrop of the prosecution evidence that we would have to

consider the evidence of PW 5, Asha Bhongade, the In-charge

Headmaster of the Pension Nagar Madhyamik School, Yogendra Nagar,

Nagpur where the prosecutrix was admitted in 9 th standard on 2nd July

2012.

7. On going through the evidence of PW 5 Asha, one can see

that although the certificate of date of birth of the prosecutrix and the

extract of the original admission register have been proved in evidence

by the prosecution as Exhs.-35 and 36 respectively, such proof of

evidence does not meet the well established standard of proof. The

certificate of date of birth (Exh.-35) has been issued on the basis of entry

taken in the original admission register. The extract of admission register

is at Exh.-36. It is not known as to whether or not this extract of register

has been verified to be a true and correct copy of the entries made in the

original admission register as it does not appear from the evidence of PW

5 that this exercise was carried out by the learned Sessions Judge while

admitting in evidence the extract of relevant page of the register vide

Exh.36 and also the certificate of date of birth vide Exh.-35. This witness

has also not stated that the extract of register vide Exh.-36 is a true copy

of the original. Therefore, the documents at Exhs.-35 and 36, though

exhibited as proved documents would not offer any reliable evidence of

the exact date of birth of the prosecutrix. Coupled with this fact, there is

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also an admission given by PW 2, the mother of the prosecutrix, that her

age was shown in the school register as three years lesser than her actual

age. In these circumstances, it was necessary for the prosecution to be

careful in proving the relevant documents. But, that has not been done

and, therefore, the documents vide Exhs.-35 and 36 would be of no help

for ascertaining the age of the prosecutrix.

8. There is, however, no other reliable evidence brought on

record by the prosecution to prove the age of the prosecutrix. On the

other hand, there is established on record conduct of the prosecutrix. It

shows that the prosecutrix knew when she established sexual relations

with the appellant, that the appellant was already married. But,

according to her, the appellant had promised to perform marriage with

her after divorcing his first wife and later on also married her in August

2015 in one temple. These facts are corroborated by the testimony of PW

2, mother of the prosecutrix, who has also added that the appellant had

obtained customary divorce from his first wife. So, the only conclusion

that is possible in this case is that the prosecutrix and her mother both

knew that it was necessary for the appellant to first divorce first wife

before he performed marriage with the prosecutrix. It also shows that

the prosecutrix was mature enough to know as to when should she marry

the appellants. She also had maturity to understand the consequences of

her acts in the entire series of events and knowing them well that she

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engaged herself in physical relations with the appellant. She admits that

her physical relations with the appellant started only after her marriage

with him. So, all these facts would cumulatively show that prosecutrix

had attained sufficient maturity of understanding in order to take

conscious decisions affecting her life which would reasonably indicate

that the appellant, at the relevant time, was aged about 18 years or more

and had attained majority. Consequently, I find that the prosecution

failed to establish beyond reasonable doubt the minority of the

prosecutrix at the relevant time and the first point is answered as in the

negative.

9. About remaining points, I find that the prosecution has failed

to establish beyond reasonable doubt that the appellant engaged himself

in forcible sexual intercourse with the prosecutrix during the period from

August 2015 to January 2016. This is evident from the evidence of the

prosecutrix PW 1 as well as her mother PW 2 about which I have already

made detailed discussion while determining the first point. Therefore, I

find that even the second point cannot be answered in favour of the

prosecution.

10. The findings so recorded would make it necessary for this

Court to interfere with the impugned judgment and order. The material

aspects of the case, as discussed earlier, have not been considered by the

learned Sessions Judge and the result is that of conclusions not logically

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arising from the facts established on record. The point Nos.2 and 3 are

answered accordingly.

11. The appeal is allowed.

12. The impugned judgment and orders are hereby quashed and

set aside.

13. The appellant is acquitted of the offences punishable under

Section 6(5)(1) of the Protection of Children from Sexual Offences Act,

2012 and Section 376(1) of the Indian Penal Code.

14. The accused is in jail and, therefore, he be released forthwith.

15. Seized muddemal property, being worthless, be destroyed

after six months.

JUDGE
okMksns

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