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Tausif Habib Sheikh vs State Of Mah. Through P.S.O. … on 4 June, 2018

Judgment

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

CRIMINAL APPEAL NO.1 OF 2018

Tausif Habib Sheikh,
Aged about 23 years,
Occupation Pan Shopkeeper,
R/o Jawahar Ward,
Tahsil Desaiganj, District Gadchiroli. ….. Appellant.

:: VERSUS ::

State of Maharashtra, through
P.S.O. Desaiganj, Tahsil
Desaiganj, District Gadchiroli. ….. Respondent.

Shri S.A. Brahme, Counsel with Shri S.K. Tambde, Advocate for the appellant.
Shri I.J. Damle, Addl.P.P. for the State.

CORAM : MRS. SWAPNA JOSHI, J.
DATE : JUNE 4, 2018.

ORAL JUDGMENT

1. This appeal has been directed against judgment and order

of conviction passed on 30.11.2017 by learned Additional Sessions Judge,

Gadchiroli in Special POCSO Case No.22/2017 whereby learned Judge of

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the Court below convicted the appellant (hereinafter referred to as “the

accused”) for offences punishable under Section 375 read with Section

376 of the Indian Penal Code and under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 and under Sections 506-II of the

Indian Penal Code. Insofar as offence punishable under Section 4 of the

Protection of Children from Sexual Offences Act, 2012 is concerned, the

accused was sentenced to suffer rigorous imprisonment for 7 years and to

pay a fine of Rs.3000/- and, in default of payment of the fine amount, he

was directed to suffer further rigorous imprisonment for 6 months.

Insofar as offence punishable under Section 506-II of the Indian Penal

Code is concerned, the accused was sentenced to suffer rigorous

imprisonment for 3 years and to pay a fine of Rs.2000/- and, in default of

payment of the fine amount, he was directed to suffer further rigorous

imprisonment for 4 months.

2. The prosecution case, in a nut shell, is as under:

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The prosecutrix is studied up to 10th Standard and she had

left school. Pan-shop of the accused was in front of house of the

prosecutrix, therefore, the prosecutrix was knowing the accused. On

1.1.2015, the accused gave a phone call to the prosecutrix on mobile

phone of her mother and called her to meet him behind Hutatma Garden

at Wadsa. Accordingly, the prosecutrix went there. Thereafter, they both

went to Bramhapuri and then went to Saigata Temple which is one

kilometer away from Bramhapuri. They chit-chatted there. In February

2015, the accused again called the prosecutrix at Hutatma Garden.

Accordingly, she went there. Thereafter, they proceeded to Kurud. They

went in a field. They chit-chatted there. The accused asked the

prosecutrix whether she would marry him. On this, the prosecutrix

showed her willingness to marry him. Thereafter, they had physical

relations. It is the case of the prosecution that the prosecutrix conceived.

However, the accused gave some pills to consume which she consumed

resulting into miscarriage. In July 2015, again the prosecutrix and the

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accused met at Hutatma Garden and they had physical relations in one

field. After a few days, the accused informed the prosecutrix that he did

not want to marry her. He also threatened her with dire consequences.

The prosecutrix then proceeded to the police station and lodged her report

(Exhibit 16). On the basis of the said complaint, offence was registered.

A formal investigation was carried out by the investigating agency. After

completion of the investigation, the case was committed to the Court of

Sessions. Learned Judge of the Court below framed a charge and on

analysis of the evidence led before him convicted the accused as aforesaid.

3. I have heard learned counsel Shri S.A. Brahme for the

appellant and learned Additional Public Prosecutor Shri I.J. Damle for

the respondent/State.

4. Learned counsel Shri S.A. Brahme for the appellant

vehemently argued that learned Judge of the Court below has not

considered the evidence of the prosecution witnesses in its right

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perspective and has erroneously convicted the accused. He pointed out

that even the age of the prosecutrix has not been proved by the

prosecution by leading convincing evidence. He further submitted that

the prosecutrix married with some other boy and after marriage, she has

deposed before the Court and the evidence on record shows that the

prosecutrix has half heartedly supported the case of the prosecution.

5. Per contra, learned Additional Public Prosecutor Shri I.J.

Damle for the respondent/State supported the judgment passed by

learned Judge of the Court below and submitted that learned Judge of the

Court below has rightly considered the evidence on record and convicted

the accused.

6. With the assistance of learned counsel for the rival parties,

I have gone through the record proceedings of the case.

7. In order to verify the arguments advanced by both the sides,

it would be beneficial to go through the evidence led by the prosecution.

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The prosecution has examined in all 3 witnesses. PW1 is the prosecutrix,

PW2 is the mother of the prosecutrix, and PW3 is the investigating

officer.

8. At the outset, it may be mentioned here that the

prosecution has utterly failed to prove the age of the prosecutrix.

According to PW1 prosecutrix, her date of birth is 28.5.1998. However, in

support of her contention, she did not produce her original birth

certificate on record. On the date of her deposition i.e. 4.9.2017, she

mentioned her age as 20 years which means that at the time of incident

i.e. in July 2015 she must be 18 years old. The prosecutrix produced

bonafide certificate (Exhibit 18) issued by the Principal of Adarsh High

School and Junior College at Desaiganj, District Gadchiroli which reveals

the date of birth of the prosecutrix as 28.5.1998. However, the said

certificate has not been supported by the evidence of the concerned

principal. The date of birth of the prosecutrix has not been either

mentioned by her or her mother. In view thereof, it is not clear as to on

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what basis the bonafide certificate has been issued by the principal of the

high school. PW2 the mother of the prosecutrix, has not stated anything

about the age of the prosecutrix.

In view thereof, it can safely be presumed that on the day of

the incident the prosecutrix was aged about 18 years old.

9. On the point of the incident, the prosecutrix stated that she

was knowing the accused as he used to run pan-shop in front of her

house. According to her, in the year 2014 she and the accused became

friends. The accused made a phone call to her and called her to meet him

behind Hutatma Garden. Accordingly, she went there. Thereafter, she

proceeded to Armori on his motor bike. They went to village Saigata.

They were there for about two hours. According to her, the accused asked

the prosecutrix whether she would marry him. The prosecutrix expressed

her willingness for the same. Thereafter, the prosecutrix and the accused

were in contact on mobile phone. They again met at Hutatma Garden as

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the accused called the prosecutrix to meet him. They went to village

Kurud. The accused then took the prosecutrix to a field and asked her to

get converted into Islam. The prosecutrix expressed her readiness for the

same. At that place, they had a physical relationship with each other.

After the said incident, the prosecutrix and the accused oftenly used to

meet with each other and they continued the physical relationship. The

prosecutrix carried pregnancy. However, the accused offered her some

pills due to which the pregnancy was terminated. About four months

prior to lodging of the complaint, the accused informed the prosecutrix

that he would not marry her. He also threatened her with dire

consequences. Therefore, the prosecutrix proceeded to the police station

and lodged the complaint (Exhibit 16) against the accused.

10. During cross-examination, the prosecutrix stated that, in

the year 2015, during Durgadevi immersion, her mother came to know

about her friendly relationship with the accused, therefore, her family

members reprimanded her and asked not to keep any contacts with the

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accused. The said version of the prosecutrix indicates that in the year

2015 her family members came to know about her friendly relationship

with the accused.

11. The prosecutrix, in her cross-examination, further stated

that about 3 months prior to lodging of the complaint she stayed with the

accused and during the said period she tried to understand the way of

living in Muslim Families. The prosecutrix fairly admitted that after her

parents lodged the report, she and the accused were called to the police

station and till that time, she did not lodge any complaint against the

accused. It is worth to note that the prosecutrix admitted that she has

lodged the complaint against the accused as per the say of her parents.

The said version of the prosecutrix clearly indicates that as per the

instructions of her parents, she has lodged the complaint against the

accused and the said version destroys the case of the prosecutrix.

12. On careful scrutiny of the testimony of the prosecutrix, it is

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crystal clear that the prosecutrix was having physical relationships with

the accused willingly. It is not at all her case that the accused forcibly

committed sexual intercourse with her. It is also not her case that as the

accused threatened to kill her, she consented for the said physical

relationship. The testimony of the prosecutrix shows that there was a

love affair between the prosecutrix and the accused and as the mother of

the prosecutrix came to know about the said love affair in 2015, the

family members of the prosecutrix restrained her from meeting the

accused. The prosecutrix on her own stayed with the accused for about

three months and as her parents had lodged the complaint against the

accused, the prosecutrix and the accused were called to the police station

and, thereafter, the prosecutrix was asked to lodge complaint (Exhibit 16)

against the accused. Thus, the testimony of the prosecutrix in no manner

shows that the accused had compelled her to keep physical relationships

with him. It is already discussed above that at the time of incident the

prosecutrix was not below 18 years of her age.

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13. In view thereof, the provisions of Section 376 of the Indian

Penal Code as well as Section 4 of the Protection of Children from Sexual

Offences Act, 2012 are not attracted.

14. Thus, the prosecution has miserably failed to prove the case

against the accused. Learned Judge of the Court below has not

considered the evidence led by the prosecution in its right perspective. In

view thereof, the appeal needs to be allowed and accordingly it is allowed,

as per order below:

ORDER

(i) The criminal appeal stands allowed.

(ii) Judgment and order of conviction passed on 30.11.2017 by learned

Additional Sessions Judge, Gadchiroli in Special POCSO Case No.22/2017

is hereby quashed and set aside.

(iii) The accused is acquitted of the offences punishable under Sections

376 and 506-II of the Indian Penal Code and under Section 4 of the

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Protection of Children from Sexual Offences Act, 2012.

(iv) The accused is in jail. He be released forthwith, if not required in any

other case.

(v) Fine amount, if any, be refunded.

JUDGE

!! BRW !!

…../-

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