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Amardip S/O Baburao Meshram And … vs State Of Mah. Through Police … on 11 June, 2018

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

CRIMINAL APPEAL NO.6 of 2018

1. Amardip s/o Baburao Meshram,
Aged about 19 years, Occupation Labour.

2. Kartik s/o Shyamrao Hajare,
Aged about 25 years, Occupation Labour.

Both r/o Surewada,
Tahsil and District Bhandara. ….. Appellant.

:: VERSUS ::

State of Maharashtra, through
Police Station Officer, Police
Station, Kardha, District Bhandara. ….. Respondent.

None appears for the appellant.
Shri Amit Chutke, Addl.P.P. for the respondent/State.

CORAM : MRS. SWAPNA JOSHI, J.
DATE : JUNE 11, 2018.

ORAL JUDGMENT

1. By this appeal, the appellants (for the sake of brevity

referred to as “the accused”) challenge judgment and order of conviction

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dated 30.11.2017 passed by learned Special Judge (under POCSO Act),

Bhandara in Special Criminal (POCSO) Case No.42 of 2015 whereby

learned Judge of the Court below convicted the accused for the offences

punishable under Section 12 of the Protection of Children from Sexual

Offences Act, 2012 (for the short, “the said Act”) read with Section 34 of

the Indian Penal Code and under Section 506 read with Section 34 of the

Indian Penal Code. For the offence punishable under Section 12 of the

said Act read with Section 34 of the Indian Penal Code, the accused were

sentenced to suffer rigorous imprisonment for 2 years and to pay a fine

of Rs.5000/- by each of them and, in default of payment of the fine

amount, to suffer simple imprisonment for 1 month. For the offence

punishable under Section 506 read with Section 34 of the Indian Penal

Code, the accused were sentenced to suffer rigorous imprisonment for 6

months and to pay a fine of Rs.500/ by each of them and, in default of

payment of the fine amount, to suffer simple imprisonment for 15 days.

Learned Judge of the Court below directed that all the sentences of the

accused shall run concurrently.

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

On 10.11.2015, prosecutrix, who was studying in 10 th Std.,

lodged a report with Kardha Police Station alleging that accused

No.1/Amardip and accused No.2/Kartik followed her continuously on her

way to school on 3-4 occasions. Accused No.1/Amardip used to say that

he loves her and accused No.2/Kartik used to insist her to talk to accused

No.1/Amardip. It is further case of the prosecution that accused

No.2/Kartik put a mobile handset in the hands of the prosecutrix.

However, she threw the mobile handset given by accused No.2/Kartik

twice. However, on third occasion she accepted the mobile handset given

by the accused due to threats given by the accused persons. Thereafter,

accused No.1/Amardip made her to make a phone call and asked her to

meet him. Accused No.1/Amardip used to make phone calls to meet him.

Thereafter, on 6.11.2015 at about 7:00 p.m., when the accused made a

phone call on the said handset to the prosecutrix, the said call was

attended by her father. At that time, on being enquired the prosecutrix,

her father came to know about the incident. The father of the

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prosecutrix (PW1) accompanied her to the police station and accordingly

the prosecutrix lodged the complaint against accused No.1/Amardip and

accused No.2/Kartik with Kardha Police Station.

3. Police Station Officer Sanjay Khandare (PW5) recorded the

complaint as per her version. On the basis of the said complaint, an

offence came to be registered. Shri Khandare (PW5) investigated the

matter. He visited the place of the incident and recorded spot

panchanama (Exhibit 22). He seized two mobile handsets viz. one used

by the accused and other given by the accused to the complainant. He

recorded seizure panchanama (Exhibit 28) of mobile handset of Nokia

company so also seizure panchanama (Exhibit 29) of mobile handset of

black colour of Max Company which was seized from accused

No.1/Amardip. He collected birth certificate of the prosecutrix issued by

headmaster of Prakash High School. On completion of the investigation,

he submitted chargesheet in the Sessions Court. Learned Judge of the

Court below framed charge against the accused, recorded evidence of the

prosecution witnesses, and after hearing both the sides convicted the

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accused as aforesaid.

4. Heard learned Additional Public Prosecutor Shri Amit

Chutke for the respondent/State. With his able assistance, I have gone

through the record and proceedings of the case. Learned counsel for the

accused failed to remain present. Learned Additional Public Prosecutor

Shri Chutke for the respondent/State supported judgment and order of

conviction and submitted that learned Judge of the Court below has

rightly convicted the accused.

5. The prosecution has examined in all 5 witnesses. Relevant

witnesses are, complainant prosecutrix Kumari Vedanti (PW1); pancha

witness Dhyaneshwar Hajare (PW2) on the point of seizure of the

handsets from accused No.1/Amardip who did not support the case of the

prosecution; pancha witness Mangala Rathorte (PW3) on the point of

panchanama of the place of the incident; complainant’s father Maroti

Hargude (PW4), and Investigating Officer Shri Sanjay Khandare (PW5).

6. The testimony of PW1 complainant, who is the prosecutrix,

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shows that she was a student of 10th Std. of Prakash High School. She

used to go to the school by bicycle or bus. She used to attend tuition

class along with her friend Payal Sarve (not examined). PW1-

complainant deposed that accused No.1/Amardip and accused

No.2/Kartik both are resident of her village, therefore, she knows them.

When she was proceeding to the school, accused No.2/Kartik followed her

near village Karachkheda. He said that one boy loves her. On this, PW1

asked accused No.2/Kartik as to to tell him that she was not knowing

that boy and who was that person. On this, accused No.2/Kartik replied

that that boy is Amardip Meshram. Thereafter, accused No.2/Kartik

asked PW1 to talk to Amardip on his mobile phone. Accordingly, PW1

talked to Amardip on his mobile phone. Amardip said that he loves her

and why she was not talking to him. On this, PW1 said that she does

not want to talk to him. Thereafter, she threw the said mobile phone

belonging to accused No.2/Kartik. After about 3 days, while PW1 was

proceeding to the tuition class by Kardha to Gorila road by bicycle,

accused No.1/Amardip and accused No.2/Kartik followed her on

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motorcycle. Accused No.1/Amardip asked her as to why she was not

talking to him and he loves her. Thereafter, accused No.1/Amardip

dragged her bicycle. On this, PW1 told him that she would tell the said

fact to her parents. PW1 then proceeded to her tuition class. After

returning home, she narrated the said incident to her mother. Her

mother advised her to proceed to the tuition class without talking to

anybody including the accused. After about 8 days, at about 6:30 p.m.,

when she was returning back after completing Karate Class in the

middle of Bhilewada to Karachkheda accused No.1/Amardip and accused

No.2/Kartik followed her on motorcycle. Accused No.1/Amardip asked

her as to why she was not talking to him and said that he loves her.

PW1 said that she would not talk to him. As PW1 was not stopping her

bicycle, accused No.1/Amardip dragged her bicycle. Thereafter, PW1

returned her house. After about 15 days, at about 11:30 a.m., when she

was proceeding to the school by bicycle, accused No.1/Amardip and

accused No.2/Kartik followed her on motorcycle near poultry farm of

village Berodi. They both told her to stop her bicycle. Accused

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No.2/Kartik told her to take the mobile of accused No.1/Amardip.

However, she threw away the said mobile. Accused No.2/Kartik then

put the mobile handset in the basket of her bicycle. At that time,

accused No.2/Kartik said her that he will see her if she will not talk on

the mobile. The said mobile was of Nokia company. PW1 deposed that

accused No.1/Amardip used to call her on the said mobile phone.

Accused No.1/Amardip used to say that he was loving her and why she

was not responding his phone calls. On 6.11.2015, at about 7:00 p.m.,

when PW1 was working in her house, she got a phone call made by

accused No.1/Amardip which was attended by her father. However,

nobody talked from other end of that phone. Her father asked her as to

from where did she get the mobile handset. She told her father that

accused No.1/Amardip and accused No.2/Kartik handed over the same.

Thereafter, her father asked her as to why she did not tell him the same.

At that time, PW1 narrated the entire episode happened to her.

Thereafter, PW1 lodged the report (Exhibit 15) against the accused

persons.

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7. Significantly, during the course of cross-examination, PW1-

complainant stated that report (Exhibit 15) was reduced into writing by

Shri Thakare from her village and that time about 4-5 persons were

sitting there including her father and maternal uncle. However, PW1

denied that the report was reduced into writing as per the say of those

persons. The testimony of PW1 however makes it clear that report

(Exhibit 15) was written by one Thakare at the instance of her father

and maternal uncle. PW1 admitted that there was a vehicular traffic on

the road she was going to tuition classes. She was knowing some of

villages, villagers and shopkeepers adjacent to the road of the said

villages. However, she did not make any hue and cry. She did not

disclose the incident either to a lady teacher or the students who were 30

numbers attending the tuition class. It is worth noting that even friend

Payal of PW1-complainant, who used to accompany PW1-complainant to

the tuition class, was not examined by the prosecution. Her testimony

shows that only after her father noticing the handset, at his instance she

lodged the complaint against the accused persons. PW1 admitted that

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when her father saw the handset in her hand, she informed him that the

said handset belongs to Pooja madam. The said version of PW1

indicates that she tried to hide the said handset which was handed over

to her by accused No.1/Amardip. PW1 further stated that since last year

she was knowing the accused. She denied that she used to talk to

Amardip as he hails from her village. She further denied that there was

a quarrel between her and the father of accused No.1/Amardip. PW1

denied that her father went to the house of accused for quarrel. PW1

volunteered that her father went to convince them. The testimony of

PW1 shows that at the instance of her father, she lodged the complaint

against the accused persons. She did not make any hue and cry when

accused No.2/Kartik put the handset in the basket of her bicycle.

Similarly, she did not complain to her father when accused

No.1/Amardip used to call her on the said mobile handset and only

because her father insisted, she lodged the complaint against the

accused persons. The testimony of PW1 does not inspire confidence and

she is not found to be a reliable witness.

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8. The testimony of complainant’s father Maroti Hargude

(PW4), reveals that his wife informed him that the accused used to say

her daughter that he loves her and why she does not talk to him.

Therefore, he went to the house of accused No.1/Amardip to convince

him. After about one month, hearing the sound of the mobile phone from

a bedroom, he attended the phone call, however nobody responded to the

said call. On being enquired by the father, PW1-complainant informed

him that the said mobile handset is of her friend and, therefore, he

scolded her. On making enquiry by the mother of PW1-complainant,

PW1-complainant told her mother that about 15 days back the said

mobile handset was forcibly given to her by accused No.1/Amardip and

accused No.1/Amardip asked her to give mis call. PW4 then

accompanied his daughter to the police station and her complaint came

to be lodged. PW4 admitted in his cross-examination that he scolded her

daughter when he found on his interrogation that she was talking to the

accused. He however denied that since he was not liking his daughter

and accused talking with each other, he compelled her daughter to lodge

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a false complaint against the accused.

9. It is not in dispute that at the time of incident the

prosecutrix was below 18 years of her age.

10. Perusal of testimony of PW1-complainant and PW4 the

father of the complainant reveals that the same does not inspire

confidence on the aspect of harassing sexually to the prosecutrix by

contacting either directly or through electronic, digital or any other

means. The investigating agency has failed to prove that the said

handset was belonging to accused No.1/Amardip. The prosecution

neither proved the ownership of the said handset nor tendered its Call-

Detail-Records (CDR) in order to show conversation made between the

prosecutrix and accused No.1/Amardip. It is not clear as to why the

prosecutrix has not complained to her parents about the accused persons

following her and accused No.1/Amardip handing over the said mobile

handset to her and the conversation made on the mobile phone by the

accused persons. Also, surprisingly friend Payal of PW1-complainant,

who accompanied PW1-complainant to the tuition class, was not

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examined by the prosecution in order to strengthen the case. Apart from

this, neither a school teacher nor the headmaster of the school is

examined by the prosecution to substantiate the case of the prosecution.

Moreover, the mother of PW1-complainant has also not been examined

by the prosecution. As such, the entire case of the prosecution falls

under a shadow of doubt. Learned Judge of the Court below has not

considered the evidence led before it in its right perspective.

11. In view of the facts and circumstances of the case, the

prosecution has failed to prove the offence against the accused. Hence,

this Court passes the following order:

ORDER

(i) The criminal appeal stands allowed.

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

Special Judge (under POCSO Act), Bhandara in Special Criminal

(POCSO) Case No.42 of 2015 is hereby quashed and set aside.

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(iii) The accused are acquitted of the offences punishable under Section

12 of the Protection of Children from Sexual Offences Act, 2012 read

with Section 34 of the Indian Penal Code and under Section 506 read

with Section 34 of the Indian Penal Code.

(iv) The bail bonds of the accused stand cancelled.

JUDGE

!! BRW !!

…../-

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