sr.18.appa.1400.2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.1400 OF 2018
IN
CRIMINAL APPEAL NO.1012 OF 2018

Navinkumar Chhotelal Tiwari and anr. … Applicants
V/s.
Union Territory of India and ors. … Respondents

Mr.H.H.Ponda a/w. Mr.Gaurav Chaubey, Ms.Priya Ponda for the
applicants.
Mr.H.J. Dedhia for respondent no.1.
Mr. P.H. Gaikwad-Patil for the respondent/State.

CORAM : A.M.BADAR J.

DATED : 26th SEPTEMBER 2018.

P.C. :

1. This is an application for suspension of sentence and for

releasing the applicants/accused on bail during pendency of the

appeal filed by them. The applicants are convicted of the offence

punishable under Section 376 of the Indian Penal Code as well as

under Section 4 of the Protection of Children from Sexual Offences

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Act, 2012 (for short. “POCSO Act”). They both are sentenced to

suffer rigorous imprisonment for seven years apart from directing

to pay fine of Rs.15,000/- by each of them.

2. Heard the learned Counsel appearing for the

applicants/accused. He argued that the learned Trial Court has

disbelieved the prosecutrix virtually on each and every aspects of

the case except for the offence punishable under Section 376 of

the Indian Penal Code. It is further argued that cross-examination

of the prosecutrix/PW1 shows that the persons who had

committed rape on her were present at the time of recording her

FIR still the prosecutrix has not named them in the FIR. It is

further argued that the chargesheet shows that the accused

persons were arrested subsequent to the filing of the FIR. The

prosecutrix has given complete go-by to her version in the FIR.

Similarly, it is also argued that age of the prosecutrix is not proved

by the prosecution.

3. The learned Additional Public Prosecutor opposed the

application by contending that the prosecutrix was brought to

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India from Bangladesh and she was not knowing hindi. By hiring

services of the translator her FIR came to be recorded and because

of her brief stay in the hotel i.e. only for two days she was not

aware who was owner of the hotel. The prosecutrix was cross-

examined and minor discrepancies which are there in her evidence

are needs to be overlooked. It is further argued that from cross-

examination of the prosecutrix, her date of birth is brought on

record by the defence.

4. I have considered submissions so advance and perused the

impugned judgment and order of conviction and resultant

sentence, so also the copies of deposition of prosecution witnesses.

According to the case of the prosecution, the victim girl/PW1 was

brought to India from Bangladesh and she was forced into

prostitution. The accused persons detained her in the hotel for the

purpose of forcing her for prostitution and caused grievous hurt to

her. The entire case of the prosecution is based on the version of

the victim girl who is examined as PW1. The learned Trial Court

disbelieved her so far as offence under Sections 325, 343, 363,

366-B, 370, 372, 373 are concerned. However, it is held that the

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applicants/accused no.1 and 2 had committed rape on her and at

that relevant time she was a child.

5. The learned Trial Court relied on evidence of PW9 Dr.Sudhir

Nair to hold that the prosecution has established the fact that the

victim child/PW1 was below 18 years of age at the time of

commission of the alleged offence. Evidence of PW9 Dr.Sudhir

Nair shows that he had not conducted any test on the victim girl in

order to determine her age. Some other doctors had conducted

the test and PW9 Dr.Sudhir Nair just issued the medical certificate

regarding age of the victim. Doctors who had conducted the test

including the ossification test to determine the age of the victim

girl are not examined by the prosecution.

6. True it is that in cross-examination the victim girl has stated

that her date of birth is 20th January, 2002 but it is well settled

that oral evidence is hardly sufficient for determining the age of

the person concerned. Similarly, even evidence of PW9 Dr.Sudhir

Nair goes to show that as per report prepared by him, age of the

the victim girl was stated as 16 years to 18 years, 14 years to 16

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years and less than 18 years. In the matter of Jaya Mala vs Home

Secretary, Government Of Government of State of Jammu

Kashmir, reported in 1982(2) SCC 538 the Supreme Court has

held that there is always margin of two years on either side while

determining the age of a person by the ossification test.

7. So far as, evidence regarding the offence under Section 376

of the Indian Penal Code, so also under Section 4 of the POCSO

Act is concerned, the case of the prosecution as reflecting from the

FIR lodged by the victim girl/PW1 on 18th April, 2016 at 10.30 am

is to the effect that she was taken from Ahmednagar to Daman

and was entrusted to one person who brought her to hotel

Ratnakar. The prosecution case as reflected in the FIR is further to

the effect that the said person forced the victim girl/PW1 to

indulge in sexual relations with three customers of the hotel. As

against this, while in the witness box the victim/PW1 has deposed

that the applicant/accused no.1 Navinkumar is the owner of hotel

Ratnakar ahd he was detaining her to do the work of prostitution

and he had performed forceful sexual intercourse with her. The

victim girl/PW1 however deposed that the applicant/accused no.2

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also committed rape on her at about 7.00 pm. This version of the

prosecutrix before the Court is giving complete go-by to her

version reflected in the FIR. Cross-examination of the victim

girl/PW1 reflects that her FIR came to be recorded in presence of

accused persons however still the FIR is not mentioning the names

of the accused persons. The FIR came to be lodged at 10.30 am

on 18th April, 2016 but the chargesheet reflects that

applicants/accused persons were arrested at 11.05 pm on 18 th

April, 2016. This factual position indicates that the

applicants/accused were not present at the police station when the

FIR came to be recorded meaning thereby that the perpetrator of

the subject crime may be somebody else than the

applicants/accused persons.

8. Considering this nature of evidence available against the

applicants/accused and the fact that they are acquitted of all other

offence alleged against them by dis-believing the victim/PW1, I am

of the considered opinion that the applicants/accused deserve to

be released on bail during pendency of the appeal filed by them as

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the appeal filed by them may not be heard in near future. In this

view of the matter, the following order;

:: ORDER ::

(i) The applicants/accused be released on bail on their

executing P.R. Bond in the sum of Rs.15,000/- each and

on furnishing surety in the like amount by each of them.

(ii) As a condition of this order, the applicants/accused

should not indulge in commission of similar offence in

future.

(iii) The applicants/accused to report the concerned police

station once in six months i.e. on 1st Monday of the first

month.

Digitally
signed by
Vina Vina Arvind
Khadpe
Arvind Date:
Khadpe 2018.09.27
16:05:21 (A.M.BADAR J.)
+0530

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