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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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