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Shamrao Lala Kasdekar vs State Of Maharashtra Thr. Police … on 19 March, 2018

1 apeal382.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.382 OF 2017

Shamrao Lala Kasdekar,
Aged about 33 years,
R/o Laytani (M.P.) at present
R/o Village Talwel, Tq. Chandur
Bazar, District Amravati. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Officer,
Police Station, Chandur Bazar,
Tq. Chandur Bazar, Distt. Amravati. …. RESPONDENT

__

Shri N.A. Badar, Counsel for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 19
MARCH, 2018.

th

ORAL JUDGMENT :

The appellant is assailing the judgment and order dated

28-2-2017 rendered by the learned Additional Sessions Judge,

Achalpur, by and under which the appellant-accused is convicted for

offence punishable under Section 376(2)(i)(n) of the Indian Penal

Code (“IPC” for short) and Section 4 of the Protection of Children from

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Sexual Offences Act (“POCSO” Act for short) and is sentenced to suffer

rigorous imprisonment for ten years and to payment of fine of

Rs.2,000/-.

2. Heard Shri N.A. Badar, learned Counsel for the accused

and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent.

3. The genesis of the prosecution lies in oral report dated

28-9-1995 (Exhibit 10) lodged at Police Station Chandur Bazar by the

prosecutrix (P.W.1) alleging that the accused promised to marry her

and subjected her to forcible sexual intercourse six months prior to the

lodging of the report. The gist of the report is that the prosecutrix, who

is a resident of village Bhaisaghat in Madhya Pradesh, is related to the

accused. Ten months prior to the lodging of the report, the accused

brought her to village Talwel, District Amravati to work as an

agricultural labour. She used to stay with the family of the accused.

Six months prior to the lodging of the report, when the family members

of the accused went for work, the accused promised to marry her and

subjected her to sexual intercourse. The accused established sexual

relationship on five to six occasions thereafter and threatened the

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3 apeal382.17

prosecutrix not to disclose the incident. The prosecutrix went to her

native village for Rakshabandhan. She disclosed to her parents that

she is pregnant and the person responsible is the accused. On the basis

of the said oral report (Exhibit 10) and printed first information report

(Exhibit 11) offence punishable under Section 376(1)(i)(n) of the IPC

and Section 4 of the POCSO Act was registered against the accused.

Investigation ensued, upon completion of which charge-sheet under

Section 376(1)(i)(n) of the IPC and Section 4 of the POCSO Act was

submitted in the Court of Judicial Magistrate First Class, Chandur

Bazar, who committed the proceedings to the Sessions Court. The

learned Sessions Judge framed charge (Exhibit 5) under Section

Section 376(1)(i)(n) of the IPC read with Section 4 of the POCSO Act.

The accused abjured guilt and claimed to be tried. The defence of the

accused is of total denial, and in the alternate, of consensual sexual

relationship.

4. It is not in serious dispute that the accused established

sexual relationship with the prosecutrix. The suggestions given to

P.W.1 in cross-examination would reveal that the defence of the

accused is that the sexual relationship was consensual. It is further not

disputed that the accused is the father of the child born to the

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4 apeal382.17

prosecutrix. The D.N.A. report (Exhibit 32-A) concludes that the

prosecutrix and the accused are biological parents of the child. The

D.N.A. report is admitted by the defence.

5. The submission of Shri N.A. Badar, learned Counsel is two

fold. The first submission is that the sexual relationship was

consensual and the second submission is that since the prosecution

failed to prove that the prosecutrix was aged less than eighteen years,

the judgment and order impugned is unsustainable. Per contra, Shri

N.B. Jawade, learned Additional Public Prosecutor supports the

judgment and order impugned.

6. The submission of Shri N.A. Badar, learned Counsel that

the sexual relationship was consensual, is well merited. The first

sexual contact was established six months prior to the lodging of the

report. According to P.W.1, she was subjected to sexual intercourse on

five to six occasions thereafter. P.W.1, concededly, disclosed the sexual

relationship between her and the accused only after she conceived.

The evidence of P.W.1 is that she demanded medical expenses from the

accused. The accused did not oblige and when her parents asked the

accused as to why he did not bear the medical expenditure, the accused

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5 apeal382.17

threatened them. The version of the prosecutrix is that the accused

was ready to pay only Rs.6,000/- and asked her parents to take the

prosecutrix with them and therefore, she lodged the report against the

accused. In the cross-examination, it is suggested to her that she and

the accused fell in love, which suggestion is denied. However, P.W.1

admits that the wife of the accused was aware of the sexual

relationship between P.W.1 and the accused. She denies the

suggestion that the accused established sexual contact with her in

presence of his wife. She admits that she accompanied the accused to

village Talwel during the Tur (split pigeon peas) harvesting season and

lived with the accused at Talwel for five to six months. She admits that

she visited her parental home twice and that she did not disclose to her

parents the sexual relationship during her first visit and that she

disclosed the sexual relationship to her parents only after she came to

know that she was pregnant. She admits that the accused did not pay

Rs.6,000/- to her parents towards medical expenses and she lodged the

report since the accused did not make the said payment nor did he

provide medical aid for termination of the pregnancy.

7. In the teeth of the evidence of P.W.1, the conclusion is

irresistible that the sexual relationship was consensual. The pivotal

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6 apeal382.17

issue is whether the prosecution proved beyond reasonable doubt that

the prosecutrix was less than eighteen years of age when the accused

established sexual contact with her.

8. P.W.1 states in the deposition that her date of birth is

08-12-2000. The defence has disputed the date of birth by giving

suggestions to P.W.1 that the said statement is false. The date of birth

is not disclosed in the oral report Exhibit 10. P.W.2, who is the father

of the prosecutrix, makes no reference to the date of birth of the

prosecutrix. P.W.4 Anilkumar, an Assistant Teacher at Bhaisaghat

School has deposed that the date of birth of the prosecutrix, as is

reflected in the admission register, is 08-12-2000. P.W.4 proves the

certificate Exhibit 44 issued on the basis of the entry in the admission

register. It is elicited in the cross-examination that the minimum age

for admission is five years and if the date of birth of the prosecutrix is

considered as 08-12-2000, she would be four and half years old when

she was admitted in the school. P.W.4 admits that the school

admission register does not mention the document/s on the basis of

which the date of birth is recorded. He further admits that when the

prosecutrix was admitted in the school, he was not in service. Exhibit

44 does not take the case of the prosecution any further. The primary

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7 apeal382.17

documents on the basis of which the entry is taken are not even

disclosed muchless proved. The second submission of Shri N.A. Badar

is that the prosecution failed to prove that the prosecutrix was less than

eighteen years of age when the accused established sexual contact also

deserves acceptance.

9. In the light of the discussion supra, it must be held that the

prosecution has failed to prove the offence beyond reasonable doubt.

The judgment and order impugned deserves to be set aside and is set

aside.

10. The accused is acquitted of offence punishable under

Section 376(1)(i)(n) of the IPC and Section 4 of the POCSO Act.

11. The accused be released from custody forthwith, if not

required in any other case.

12. The appeal is allowed and is disposed of.

JUDGE
adgokar

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