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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.584 OF 2017
Purushottam s/o. Govinda Shende,
Aged about 47 years,
Occupation : Labourer,
R/o. Nari MHADA Colony,
Building No.40, House No.631, Nagpur.
(Presently Central Prison at Nagpur) : APPELLANT
…VERSUS…
The State of Maharashtra,
Through P.S.O. Police Station
Gittikhadan, District Nagpur. : NON-APPLICANT
———————————
Shri C.R. Thakur, Advocate for the Appellant.
Shri A.V. Palshikar, Addl. Public Prosecutor for the Non-applicant.
———————————
CORAM : S.B. SHUKRE, J.
th
DATE : 5
FEBRUARY, 2018.
ORAL JUDGMENT :
1. This is an appeal challenges the legality and correctness of
the judgment and order dated 31st July, 2017 whereby the appellant has
been convicted of the offences punishable under Section 6 read with
Section 5(1) of the Protection of Children from Sexual Offences Act,
2012 (in short, “PoCSO Act”) and Section 376 (1) of the Indian Penal
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Code. However, the punishment has been handed out under Section 6 of
the PoCSO Act, as this Section prescribes punishment greater than the
one prescribed under Section 376 of the Indian Penal Code.
2. The appellant has been sentenced to suffer rigorous
imprisonment for ten years and also to pay fine of Rs.10,000/-, in default
to undergo rigorous imprisonment for six months for the aforstated
offence. The compensation of Rs.7,000/- from out of the fine amount
has also been granted to the prosecutrix.
3. Briefly stated facts of the case are as under :
The prosecutrix aged about 17 years and 8 months in
January 2016 used to reside along with her mother at a construction site
situated at Zingabai Takli, M.B. Town, Nagpur. Her mother was a
labourer on the same construction site and the accused also did painting
work at the same site. The accused used to frequently visit the
prosecutrix at her house. At that time, her elder sister also resided with
the prosecutrix. Her father, who had separated himself from the family,
resided at Koradi and expired about one and half years prior to the last
incident which took place on 3.1.2016.
The appellant started visiting the house of the prosecutrix
some time in the year 2014. The marriage of the sister of the prosecutrix
was fixed in the year 2014 and 2 nd July, 2014 was the scheduled date of
the marriage. The appellant lent substantial assistance to the family in
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smoothly organizing and solemnizing marriage of the elder sister of the
prosecutrix. The elder sister, after her marriage, left the house and went
to reside with her husband at Bhopal. Thereafter, the family was
reduced to just two members, the prosecutrix and her mother. The visit
of the appellant even after the marriage of the elder sister of the
prosecutrix to the house of the prosecutrix continued. Gradually, those
visits turned into some sort of intimacy between the prosecutrix and the
appellant. In August, 2015, when the prosecutrix was all alone at her
house, the appellant for the first time entered into sexual relations with
the prosecutrix, this intercourse has been called as forcible by the
prosecutrix. The prosecutrix had informed her mother of the same, but
her mother warned her to not to speak against the appellant for the fear
of the loss of reputation. About seven days thereafter, the prosecutrix
and her mother left that place of residence and then rented a house at
Gorewada, Nagpur.
Even at the Gorewada house, the appellant continued to visit.
It is alleged that almost every day evening at about 6.00 p.m., the
appellant used to come to the house of the prosecutrix and her mother
and leave the house by about 10.00 p.m. It is also alleged that about 5 to
6 days in a week, the appellant used to engage himself in sexual
intercourse with the prosecutrix, without her consent. He used to
threaten mother of the prosecutrix and the prosecutrix also if any
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resistance was put up to him. Some times, it is further alleged, the
appellant used to beat up the prosecutrix as well as her mother. It is also
alleged that there were occasions when the alleged forcible sexual
intercourse used to be committed by the appellant in the presence of the
mother of the prosecutrix.
Fed up with the behaviour of the appellant, the prosecutrix
and her mother decided to take help of the friend of the prosecutrix.
They requested her to make a video recording of the forcible sexual
intercourse that the appellant would have with the prosecutrix. As usual,
in the evening of 3.1.2016, the appellant came to the house of the
prosecutrix and her mother. He was stated to be intoxicated at that time.
It is alleged that at about 8.30 p.m., the appellant committed forcible
sexual intercourse with the prosecutrix. The prosecutrix and her mother
resisted, but they were beaten up by the appellant. However, a video clip
of this episode was successfully prepared by the friend of the prosecutrix.
On 5.1.2016, the video clip was shown to the prosecutrix by
her friend and after being satisfied with the same, the prosecutrix got an
assurance that there was some evidence in her hand against the
appellant. Thereafter, the prosecutrix informed the Police and her oral
report was reduced into writing by following the procedure of law. On
its basis F.I.R. was registered by the Police against the appellant for the
offences punishable under Section 376 of the Indian Penal Code and
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Section 6 read with Section 5(1) of the PoCSO Act. The appellant was
found out and placed under arrest. Necessary panchanamas were
prepared. Statements of witnesses were recorded. After completion of
the investigation, the chage-sheet was filed against the appellant.
The appellant was tried for the offences punishable under
Section 376(2)(j) and Section 376(2)(n) of I.P.C. and Section 6 read
with Section 5(1) of the PoCSO Act. On merits of the case, learned
Sessions Judge found that the prosecution proved beyond reasonable
doubt the offences under Section 376(1) of the Indian Penal Code and 6
read with Section 5(1) of the PoCSO Act and convicted him for the same.
He was handed out the sentence as stated earlier by the impugned
judgment and order. Not being satisfied with the same, the appellant is
before this Court in the present appeal.
4. I have heard Shri C.R. Thakur, learned counsel for the
appellant and Shri A.V. Palshikar, learned Additional Public Prosecutor
for the non-applicant-State. I have carefully gone through the record of
the case including the impugned judgment and order.
5. Now, the following points arise for my determination :
(i) Whether the prosecution has proved beyond
reasonable doubt that at the time of
commission of offence, the prosecutrix was
minor ?
(ii) Whether the prosecution has proved that the
appellant committed rape upon the prosecutrix
between August 2015 and January 2016 ?
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(iii) What order ?
6. In this case, the mother of the prosecutrix as well as
prosecutrix both have turned hostile. They have not stated anything
about the use of force against the prosecutrix before he had sexual
intercourse on different occasions with the prosecutrix. While the
prosecutrix has admitted that she had had physical relations with the
appellant after July 2014 and that they were on account of the fact that
the appellant had promised to marry her and in fact did marry her in one
temple in the year 2014. She was declared hostile by the learned
Prosecutor and permission was granted to the learned Prosecutor to
cross-examine her. But, even in the cross-examination, she did not
change the stand that she took in her examination-in-chief. In the
cross-examination taken on behalf of the appellant, she again admitted
that she performed marriage with the appellant in August 2015. She also
admitted that the appellant established physical relations with her only
after marrying her. She also gave an admission that at the time when the
F.I.R. was lodged, it was lodged on 5.1.2016 (Exh.-7), she was aged
about 20 years. While, her admission about her own age is not
admissible in evidence, it being hearsay, the admission given by her
mother, PW 2, in the cross-examination by the learned counsel for the
appellant is relevant as well as significant. According to this admission,
age of the prosecutrix has been shown 3 years lesser than her actual age.
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On such backdrop of the prosecution evidence that we would have to
consider the evidence of PW 5, Asha Bhongade, the In-charge
Headmaster of the Pension Nagar Madhyamik School, Yogendra Nagar,
Nagpur where the prosecutrix was admitted in 9 th standard on 2nd July
2012.
7. On going through the evidence of PW 5 Asha, one can see
that although the certificate of date of birth of the prosecutrix and the
extract of the original admission register have been proved in evidence
by the prosecution as Exhs.-35 and 36 respectively, such proof of
evidence does not meet the well established standard of proof. The
certificate of date of birth (Exh.-35) has been issued on the basis of entry
taken in the original admission register. The extract of admission register
is at Exh.-36. It is not known as to whether or not this extract of register
has been verified to be a true and correct copy of the entries made in the
original admission register as it does not appear from the evidence of PW
5 that this exercise was carried out by the learned Sessions Judge while
admitting in evidence the extract of relevant page of the register vide
Exh.36 and also the certificate of date of birth vide Exh.-35. This witness
has also not stated that the extract of register vide Exh.-36 is a true copy
of the original. Therefore, the documents at Exhs.-35 and 36, though
exhibited as proved documents would not offer any reliable evidence of
the exact date of birth of the prosecutrix. Coupled with this fact, there is
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also an admission given by PW 2, the mother of the prosecutrix, that her
age was shown in the school register as three years lesser than her actual
age. In these circumstances, it was necessary for the prosecution to be
careful in proving the relevant documents. But, that has not been done
and, therefore, the documents vide Exhs.-35 and 36 would be of no help
for ascertaining the age of the prosecutrix.
8. There is, however, no other reliable evidence brought on
record by the prosecution to prove the age of the prosecutrix. On the
other hand, there is established on record conduct of the prosecutrix. It
shows that the prosecutrix knew when she established sexual relations
with the appellant, that the appellant was already married. But,
according to her, the appellant had promised to perform marriage with
her after divorcing his first wife and later on also married her in August
2015 in one temple. These facts are corroborated by the testimony of PW
2, mother of the prosecutrix, who has also added that the appellant had
obtained customary divorce from his first wife. So, the only conclusion
that is possible in this case is that the prosecutrix and her mother both
knew that it was necessary for the appellant to first divorce first wife
before he performed marriage with the prosecutrix. It also shows that
the prosecutrix was mature enough to know as to when should she marry
the appellants. She also had maturity to understand the consequences of
her acts in the entire series of events and knowing them well that she
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engaged herself in physical relations with the appellant. She admits that
her physical relations with the appellant started only after her marriage
with him. So, all these facts would cumulatively show that prosecutrix
had attained sufficient maturity of understanding in order to take
conscious decisions affecting her life which would reasonably indicate
that the appellant, at the relevant time, was aged about 18 years or more
and had attained majority. Consequently, I find that the prosecution
failed to establish beyond reasonable doubt the minority of the
prosecutrix at the relevant time and the first point is answered as in the
negative.
9. About remaining points, I find that the prosecution has failed
to establish beyond reasonable doubt that the appellant engaged himself
in forcible sexual intercourse with the prosecutrix during the period from
August 2015 to January 2016. This is evident from the evidence of the
prosecutrix PW 1 as well as her mother PW 2 about which I have already
made detailed discussion while determining the first point. Therefore, I
find that even the second point cannot be answered in favour of the
prosecution.
10. The findings so recorded would make it necessary for this
Court to interfere with the impugned judgment and order. The material
aspects of the case, as discussed earlier, have not been considered by the
learned Sessions Judge and the result is that of conclusions not logically
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arising from the facts established on record. The point Nos.2 and 3 are
answered accordingly.
11. The appeal is allowed.
12. The impugned judgment and orders are hereby quashed and
set aside.
13. The appellant is acquitted of the offences punishable under
Section 6(5)(1) of the Protection of Children from Sexual Offences Act,
2012 and Section 376(1) of the Indian Penal Code.
14. The accused is in jail and, therefore, he be released forthwith.
15. Seized muddemal property, being worthless, be destroyed
after six months.
JUDGE
okMksns
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