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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.489 OF 2019
Akash Siddarth Kate,
Aged about 25 years,
Occ: Labour, R/o Indira Nagar,
Akola, Tah. Dist. Akola
(In Jail Since 03.08.2016) ……. APPELLANT
…V E R S U S…
State of Maharashtra through
the Police Station Officer,
Police Station Akot File, Akola,
Tah. Dist. Akola ……. RESPONDENT
——————————————————————————————-
Mrs. Swati K. Paunikar, (Appointed) Advocate for
Appellant.
Shri N.B. Jawade, APP for Respondent/State.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: 22nd JULY, 2019.
ORAL JUDGMENT:
This appeal is directed against the judgment dated
13.12.2018 rendered by the Additional Sessions Judge, Akola
whereby the appellant is convicted for offence punishable under
Section 376(2)(n) of the Indian Penal Code and Section 6 of the
Protection of Children from Sexual Offences Act, 2012 (POCSO
Act) and is sentenced to suffer rigorous imprisonment of ten years
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2 apeal489.19.J.odt
and to payment of fine of Rs.10,000/- and in default to suffer
further simple imprisonment for six months.
2] Prosecution case:-
2.1] PW 1 is an orphan and is residing with her
grand-mother and is working as labour.
2.2] Earlier, PW 1 used to stay with her maternal aunt
Pushpa Shinde at Indira Nagar. Accused used to reside in the
neighbourhood.
2.3] PW 1 and the accused became acquainted.
The accused used to talk sweetly and used to profess love for
PW 1. The accused told PW 1 that he would marry her and the
couple fell in love.
2.4] The accused used to call PW 1 at his house at least
once in a month and used to establish sexual contact after
indulging in sweet talk.
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3 apeal489.19.J.odt
2.5] PW 1 missed her menstrual cycle and along with her
cousin Arti Shinde. She went to the Lady Harding’s Hospital. PW 1
learnt that she was pregnant.
2.6] While PW 1 was admitted in the hospital,
on 03.08.2016 her statement was recorded by the police.
This statement was treated as first information report (Exh.20)
and offence punishable under Section 376(2)(i)(n) of IPC and
Section 4 and 6 of the POCSO Act was registered.
2.7] Investigation ensued. The school leaving certificate of
PW 1 was collected, the accused was arrested and sent to
Government Hospital for medical examination. DNA kit was called
for from the Forensic Science Laboratory, Nagpur. The blood
samples of PW 1 and the accused were collected and sent for
Forensic Science Laboratory, Nagpur. PW 1 was produced before
the Child Welfare Committee and her statement was recorded.
2.8] Statements of witnesses were recorded and after
completion of the investigation the charge-sheet was filed in the
Special Court.
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4 apeal489.19.J.odt2.9] After filing the charge-sheet, PW 1 delivered a child.
The blood sample of the child was collected for DNA profiling and
sent to Forensic Science Laboratory, Nagpur. The DNA report was
obtained from Forensic Science Laboratory, Nagpur which
confirmed PW 1 and the accused as the biological parents of the
child.
2.10] The learned Sessions Judge framed charge (Exh.13)
under Section 376(2)(i)(n) of the Indian Penal Code and Section 3
and Section4 of the Protection of Children from Sexual Offences Act,
2012. The accused abjured guilt. The defence of the accused is
that PW 1 was not a minor and that the sexual relationship was
consensual. The accused stated that he was ready and willing to
marry PW 1.
2.11] The learned Sessions Judge was pleased to convict the
accused as afore-stated. The learned Sessions Judge held that
PW 1 was a minor and therefore, her consent was immaterial.
3] I have heard the learned counsel Mrs. Swati Paunikar
for the accused and the learned APP Shri N.B. Jawade for the
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5 apeal489.19.J.odtrespondent/State.
4] It is no longer in dispute that PW 1 and the accused
had physical relationship from which a child is born. In all
fairness, the learned counsel for the accused Mrs. Swati Paunikar
has not even argued to the contrary. Mrs. Swati Paunikar submits
that the prosecution failed to prove the age of PW 1.
The relationship was consensual and therefore, no offence is
committed, is the submission. Per contra, the learned APP
Shri N.B. Jawade submits that the age of PW 1 is duly proved and
that it is established that she was a minor. The other submission
which is canvassed by Shri N.B. Jawade is that the consent was
obtained by false promise of marriage and is no consent in the
eyes of law.
5] The controversy is narrow. In view of the fair
submission of the learned counsel for the accused that the sexual
relationship is not in dispute, only two questions need answers.
The first question is whether the prosecution has proved that PW 1
was a minor when the accused established sexual contact and the
second question is even if it is held that PW 1 was not a minor,
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6 apeal489.19.J.odtwhether her consent is vitiated in law.
6] PW 1 has deposed that her date of birth is
16.01.2001. She admits that when she was admitted in the Lady
Harding's Hospital she disclosed her age as 20 years. PW 2 Arti
Shinde who accompanied PW 1 to the hospital has also deposed
that the age of PW 1 was disclosed as 20 years when she was
admitted in the hospital. The explanation offered by PW 2 is that
PW 1 was scared and therefore, incorrect age was disclosed.
7] The star witness of the prosecution on age
determination is PW 3 Walmik Mahadeorao Bhagat who was the
then Head Master of Zilla Parishad Agarkar Vidyalaya, Akola.
PW 3 deposed that PW 1 secured admission in the school
on 12.07.2013 in the 5th Std. and at that time she had furnished
the school leaving certificate of the Municipal Council School
previously attended. PW 3 Walmik Bhagat states that as per the
school leaving certificate of the previous school PW 1 was born
on 16.01.2001.
It is elicited in the cross-examination that in the year 2013
PW 3 was not the Head Master of the school. It is further elicited
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7 apeal489.19.J.odtthat at the time of admission of PW 1, PW 3 was not present. It is
admitted that entry in the school admission register is not taken by
PW 3.
8] The evidence adduced by the prosecution on age
determination is of insignificant probative value, even if it is
assumed that the evidence is admissible. The school record which
is proved (Exh.26 and 27) is not of the school in which PW 1 was
first admitted. PW 3 admits that he did not take the entry in the
school record nor was he present when the entry of the date of
birth of PW 1 was taken in the school record. No evidence is
adduced to throw light on the source of the information on the
basis of which the entry is recorded. PW 3 states that the entry is
recorded on the basis of the school leaving certificate issued by the
school previously attended by PW 1. However, no evidence is
adduced to prove the record of the earlier school much less the
source of information on the basis of which the entry was recorded
in the previously attended school.
9] SectionIn Brij Mohan Singh v. Priya Brat Narain Sinha
reported in AIR 1965 SC 282 the Apex Court articulates that in
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8 apeal489.19.J.odtactual life it often happens that persons give false age of the boy at
the time of his admission to a school so that later in life he would
have an advantage while seeking public service for which a
minimum age for eligibility is often prescribed. SectionIn Sushil Kumar v.
Rakesh Kumar reported in AIR 2004 SC 230 the Apex Court
observes:
To render a document admissible under
Section 35, three conditions must be satisfied, firstly,
entry that is relied on must be one in a public or
other official book, register or record, secondly, it
must be an entry stating a fact in issue or relevant
fact, and thirdly, it must be made by a public
servant in discharge of his official duty, or any other
person in performance of a duty specially enjoined
by law. An entry relating to date of birth made in
the school register is relevant and admissible under
Section 35 of the Act, but the entry regarding to the
age of a person in a school register is of not much
evidentiary value to prove the age of the person in
the absence of material on which the age was
recorded.It is well settled, and reference to the catena of decisions is
not really necessary, that the evidentiary value of the school
record to prove the age depends on proof of the primary material
or source of information on the basis of which the age is recorded.
10] The submission of the learned counsel Mrs. Swati
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9 apeal489.19.J.odtPaunikar that the prosecution has failed to prove that PW 1 was a
minor when she and the accused had physical relationship, merits
acceptance.
11] The submission of the learned APP Shri N.B. Jawade
that there was no free consent to sexual relationship may now be
analyzed.
12] PW 1 states in her statement Exh.20 that she
developed acquaintance with the accused and they fell in love.
PW 1 does state that she fell in love with the accused since he
talked sweetly, professed his love for PW 1 and told her that he
would marry her. Pertinently, PW 1 states that her grand-mother
was not in favour of the marriage and then asserts that she is also
not interested in marrying the accused. PW 1 concludes the
statement by alleging that the accused had physical relationship
with her against her will and on the pretext of marriage.
If the statement Exh.20 which is treated as first information
report is holistically read, it does not appear that the accused
refused to marry PW 1 at any point in time. Au contraire, PW 1
states that her grand-mother was not in favour of the alliance and
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10 apeal489.19.J.odtthat she also did not wish to marry the accused.
13] The deposition of PW 1 is broadly on the lines of the
FIR. PW 1 admits that she became acquainted with the accused
and both fell in love. PW 1 then deposes that the accused used to
indulge in sweet talk, tell PW 1 that he would marry her and used
to have sexual relationship. Again, PW 1 states at the conclusion of
the examination-in-chief that the accused had physical relationship
on the pretext of marriage and that she is not interested in
marrying the accused. In the cross-examination, it is elicited that
PW 1 and the accused were in love. PW 1 denies the suggestion
that she refused to marry the accused since her grand-mother was
not in favour of the alliance. In response to a specific suggestion,
PW 1 states that even if the accused is ready to marry her she
would not marry the accused.
14] The edifice of the submission of the learned APP
Shri N.B. Jawade is constructed on the premise that the consent
given by PW 1 was under a misconception of fact. It is clear from
plain reading of Section 90 of the IPC that consent given under
misconception of fact is no consent in the eyes of law.
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11 apeal489.19.J.odt
Conjoint reading of Section 90 and Section 375 of the IPC which
defines rape would show that the consent envisaged denotes
willingness to participate in the specific sexual act. Consent must
necessarily be informed by reason and choice based on the
knowledge of the significance and moral quality of the act.
Shri N.B. Jawade would be right in the submission which he is
canvassing if the evidence shows that the accused falsely promised
marriage only to induce PW 1 to have physical relationship and
that but for such false promise PW 1 would not have, in every
probability, consented to sexual relationship.
15] SectionIn Deepak Gulati v. State of Haryana reported in
(2013) 7 SCC 675 the Apex Court observes thus:
21. Consent may be express or implied, coerced
or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear
distinction between rape and consensual sex and in
a case like this, the court must very carefully
examine whether the accused had actually wanted to
marry the victim, or had mala fide motives, and had
made a false promise to this effect only to satisfy his
lust, as the latter falls within the ambit of cheating
or deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether
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12 apeal489.19.J.odtmarriage by the accused; and whether the consent
involved was given after wholly understanding the
nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and
passion for the accused, and not solely on account of
misrepresentation made to her by the accused, or
where an accused on account of circumstances which
he could not have foreseen, or which were beyond
his control, was unable to marry her, despite having
every intention to do so. Such cases must be treated
differently. An accused can be convicted for rape
only if the court reaches a conclusion that the
intention of the accused was mala fide, and that he
had clandestine motives.24. Hence, it is evident that there must be
adequate evidence to show that at the relevant time
i.e. at initial stage itself, the accused had no
intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The "failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not very
clear from the evidence available, does not always
amount to misconception of fact. In order to come
within the meaning of the term "misconception of
fact", the fact must have an immediate relevance".
Section 90 IPC cannot be called into aid in such a
situation, to pardon the act of a girl in entirety, and
fasten criminal liability on the other, unless the
court is assured of the fact that from the very
beginning, the accused had never really intended to
marry her.16] In the teeth of the evidence on record, it is difficult to
hold that the accused falsely promised marriage and that the
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13 apeal489.19.J.odtconsent was given on misconception of fact. The defence of the
accused that he was ready to marry PW 1 who refused since her
grand-mother was not in favour of the alliance is more than
probablize on the touchstone of preponderance of probabilities.
17] I am satisfied that the prosecution has not proved the
offence punishable under Section 376(2)(n) of the IPC and
Section 6 of the POCSO Act beyond reasonable doubt.
18] The judgment of conviction dated 13.12.2018 passed
by the learned Additional Sessions Judge, Akola in Sessions Trial
169 of 2016 is set aside.
19] The appellant is acquitted of offences punishable
under Sections 376(2)(n) of the IPC and Section 6 of the POCSO
Act.
20] Fine if any paid by the appellant be refunded to him.
21] The appellant be released from custody forthwith
unless his custody is required in connection with any other crime.
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14 apeal489.19.J.odt22] Fees of the appointed counsel be paid as per the rules.
JUDGE
NSN
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