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Shubham Rajesh Kanojia vs Stte Of Mah, Thr P.So. P.S. … on 7 August, 2019

1 apeal385.19.J.odt

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

CRIMINAL APPEAL NO.385 OF 2019

Shubham Rajesh Kanojia,
Aged about 25 years,
Occ:_,
R/o 668, MHADA Quarter No.56,
Nari Road, Nagpur. (In Jail). ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through Police Station Officer,
Police Station Jaripatka, Nagpur. ……. RESPONDENT
——————————————————————————————-
Shri A. Shelat, Advocate for Appellant.
Shri C.A. Lokhande, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: 7th AUGUST, 2019.

ORAL JUDGMENT:

This appeal is directed against the judgment dated

04.05.2019 rendered by the learned Additional Sessions Judge,

Nagpur in Special Child Case 201 of 2016, whereby the appellant

is convicted for offence punishable under Section 376(2)(i)(n) of

the Indian Penal Code and Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (POCSO Act) and is sentenced to

suffer rigorous imprisonment for eleven years and to payment of

fine of Rs.7000/-.

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2] The prosecution case:-

[i] The victim is adopted from Shradhanand Anath

Ashram, Abhyankar Nagar, Nagpur on 04.10.2005.

[ii] PW-1 Smt. Sneha Raut is the adoptive mother of the

victim. Her husband expired in the year 2006.

[iii] PW-1 lodged a report dated 22.04.2016 at the

Jaripatka Police Station, Nagpur, alleging that the accused

established sexual relationship with the victim by promising

marriage, the victim conceived and without her consent the

accused caused the fetus to abort.

[iv] The report alleges that the victim is aged 14 years and

was studying at Guru Harikisan Public School, Bezanbag, Nagpur

in the 8th Standard. The victim discontinued studies from

25.10.2010.

[v] PW-1 is serving at ESIC Dispensary, Butibori, as

Medical Officer. It is alleged in the report that while PW-1, was

attending her duties, she received a call from the victim conveying

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that she was suffering from severe stomach ache.

[vi] PW-1 returned home and found that the victim was

weeping. PW-1 made inquiries and was told by the victim that one

year ago, the accused established sexual contact with her.

The allegation is that before establishing sexual contact the

accused used to express his love for the victim and ask the victim

to marry him.

[vii] It is alleged in the report that the victim disclosed to

PW-1, that she was threatened that should the sexual relationship

be disclosed, the accused would kill the mother of the victim

(PW-1). Further, allegation in the report is that the victim due to

fear did not disclose sexual relationship to anybody and that the

accused continued to visit her house and to establish sexual

contact, in the absence of PW-1.

[viii] The report states that victim missed her menses in

February, 2016 and narrated this fact to the accused

on 19.04.2016. The accused gave certain tablets to the victim who

consumed the tablets and thereafter suffered the stomach ache.

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4 apeal385.19.J.odt

[ix] On the basis of the report dated 22.04.2016, offences

punishable under Sections 376, 376 (1)(n), 313 of the Indian

Penal Code and Section 3(a), 4, 5(l)(j)(2) and 6 of the Protection

of Children from Sexual Offences Act and 3(1)(xi) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 were registered at the Jaripatka Police Station, Nagpur.

[x] The investigation was carried out on the usual lines.

The accused was arrested. The statements of the witnesses were

recorded. The biological samples were collected and sent for DNA

examination. The birth certificate of the victim issued by the

Nagpur Municipal Corporation, Nagpur, which recorded the date

of birth 20.03.2002 was obtained.

[xi] Upon completion of the investigation, the final report

was submitted in the Special Court.

[xii] The learned Sessions Judge, framed charge Exh.6

under Section 376(i)(n) of the Indian Penal Code and under

Section 3(a), 4, 5 (l)(j)(2) and 6 of the POCSO Act and 3(1)(xi) of

the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The accused abjured guilt and claimed to be

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tried in accordance with law. The defence of the accused is of total

denial.

[xiii] The prosecution examined as many as 11 witnesses.

PW-1 is the informant Smt. Sneha who is the mother of the victim,

PW-2 is the victim, PW-3 Harish Bawankar is the medical shop

owner, PW-4 Shubham is a panch witness, PW-5 who did not

support the prosecution is examined to throw light on the

relationship between the accused and the victim, PW-6

Dr. Dharmendra Sulbhewar examined the accused and the victim,

PW-7 Ramesh Taiwade is one of the Investigating Officer, PW-8

Arun Bakal is also an Investigating Officer, PW-10 Prafulla Shirke

recorded the complaint of PW-1 and took certain steps in the

investigation and PW-11 Rohini Bhoyar supervised the medical

examination which was conducted by the Junior Resident Doctor

PW-6.

[xiv] The accused examined Atiqur Rehman Zulfiquar Khan

(DW-1) the Medical Officer and Sub-Registrar at the Nagpur

Municipal Corporation, Vitthal Devgirkar (DW-2) who is residing

in the locality in which the residence of PW-1 is situated and

Smt. Lalita Gawande who is a social worker associated with

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Shri Shradhanand Anath Ashram, Nagpur.

[xv] The learned Sessions Judge convicted the accused as

aforestated.

[xvi] The learned Sessions Judge recorded a finding that

the sexual relationship was consensual. However, the learned

Sessions Judge held that the victim was minor and therefore, the

accused is guilty of offence punishable under Section 376(2)(i)(n)

of IPC and Section 4 and 6 of the POCSO Act. The learned

Sessions Judge acquitted the accused of offence punishable under

Section 313 of IPC and Section 3(1)(xi) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

[3] I have given anxious consideration to the evidence on

record, and having done so, I am in complete agreement with the

finding recorded by the learned Sessions Judge that the sexual

relationship was consensual. The version of the victim is that the

accused was residing in front of her house, used to visit her house

in the absence of her mother and used to establish sexual contact.

The victim does state that the accused threatened her that either

the victim or her mother will be killed if the accused is not allowed

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to have physical relationship. This assertion is unbelievable.

The victim admits that she used to disclose to her neighbour the

visit of any person to her house should such person visit in the

absence of her mother. The victim admits that she did not disclose

to her neighbour or mother that the accused visited her. It is not

the version of the victim that the physical relationship was

established only once. The version is that the accused established

physical contact on multiple occasions and the first disclosure by

the victim is only on suffering from the stomach ache. Notably, the

version of the victim is that when she missed her menses she

informed the accused and not to her mother. The finding of the

learned Sessions Judge that the sexual relationship was consensual

is unexceptionable.

[4] The fate of the appeal hinges on the finding on age

determination. The learned Sessions Judge has found that the

prosecution proved that the victim was a minor when she was

subjected to sexual intercourse. It would be necessary to minutely

scrutinize the evidence on record in order to ascertain whether the

prosecution has proved the age of the victim beyond reasonable

doubt, for on the inference to be drawn on the basis of such

scrutiny depends the liberty of the accused.

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[5] Exhibit 29 is the birth certificate of the victim which is

issued by the Nagpur Municipal Corporation on 10.11.2009.

[6] The certificate note that the date of birth 20.03.2002

is recorded and the birth certificate issued in view of the order of

the Court. The deed of adoption Exhibit 30 is executed

on 30.09.2006 between Smt. Sneha Raut (PW-1) and Smt. Lalita

Gawande (DW-3) pursuant to the order of the 4 th Additional

District Judge, Nagpur in Miscellaneous Adoption Application 206

of 2006. The order dated 28.04.2006 in Miscellaneous Civil

Application 206 of 2006 records thus:

4. From the inquiry conducted by me, I finding
that "ARATI" was born on 20.03.2002 and,
therefore, in her own welfare and interest, it would
be necessary to direct Municipal Authorities to
register her said date of birth in the records. I also
find no impediment in allowing the applicants to
change name of "ARATI" as 'ARJOO'.

The operative part of the order inter alia grants permission

to adopt and directs that the date of birth of the child shall be

recorded as 20.03.2002.

[7] DW-1 has deposed that the registration of date of

birth of the victim was on the basis of adoption deed and the order

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9 apeal385.19.J.odt

of District Court and that no other material was made available by

Mr. Ashok Raut. In the cross-examination on behalf of the

prosecution, DW-1 states that if there is delay of more than one

year in registering the birth, then entry of date of birth is taken on

the basis of order passed by Judicial Magistrate First Class. DW-2

Vitthal Devgirkar has deposed that when Shri and Smt. Raut came

to reside in the locality in the year 1996, the victim was adopted

one or two years thereafter (1997-1998) and the victim was 7 to 8

years old. DW-3 Smt. Lalita Gawande who is associated with

Shri Shradhanand Anath Ashram, Nagpur and who is a party to

the adoption deed has deposed that the institution is not aware of

the date of birth of the victim. DW-3 has deposed that the

institution is not aware who were the parents of the victim. DW-3

states that the age of the abandoned child is noted as per opinion

given by Doctor and direction of CWC. She admits not having

brought the report of the Doctor and then volunteers that Doctor

does not give such report regarding date of birth to the institution.

[8] It is irrefutable that there is no material on record

which leads to any inference with any degree of certainty that the

victim was a minor. The date of birth recorded in the birth

certificate is in view of the direction issued by the District Court.

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                                       10                     apeal385.19.J.odt

[9] The learned District Judge was exercising power

under Section 9(4) of Hindu Adoptions and Maintenance Act,

1956. Permission to adopt the victim was necessary since her

parentage was not known and she was an abandoned child.

The only relevant consideration for exercise of such power is the

welfare of the child. The Court is entitled to give due

consideration to the wishes of the child having regard to the age

and understanding of the child and that to ascertain that there is

no monetary incentive or inducement. The age of the child is

referred to in sub-section (5) of Section 9 only in the context of

considering the wish of the child. The legislative intent is that if

the wish of the child can be ascertained considering the age and

understanding, that such wish would be a relevant consideration

to determine whether the adoption is in the welfare of the child.

[10] The learned District Judge has observed that from the

inquiry conducted the date of birth of the victim is found to be

20.03.2002. The nature of the inquiry is not clear from the order.

Concededly, the victim was an abandoned child and her parentage

is unknown. The institution is not aware of the date of birth.

Axiomatically, the adoptive mother would be equally unaware of

the date of birth of the child. Be it noted, that the observation of

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the learned District Judge while deciding an application under

Section 9(4) of the Hindu Adoptions and Maintenance Act, 1956 is

not a relevant fact either under Section 41 or 42 or 43 of the

Indian Evidence Act, 1872. At this stage, the provisions of Section

13 of the Registration of Births and Deaths Act, 1969 may be

noted. Section 13 reads thus:

13. Delayed registration of births and deaths.--
(1) Any birth or death of which information is given
to the Registrar after the expiry of the period
specified therefor, but within thirty days of its
occurrence, shall be registered on payment of such
late fee as may be prescribed.

(2) Any birth or death of which delayed
information is given to the Registrar after thirty
days but within one year of its occurrence shall be
registered only with the written permission of the
prescribed authority and on payment of the
prescribed fee and the production of an affidavit
made before a notary public or any other officer
authorised in this behalf by the State Government.

(3) Any birth or death which has not been
registered within one year of its occurrence, shall be
registered only on an order made by a Magistrate of
the first class or a Presidency Magistrate after
verifying the correctness of the birth or death and on
payment of the prescribed fee.

(4) The provisions of this section shall be
without prejudice to any action that may be taken
against a person for failure on his part to register
any birth or death within the time specified therefor
and any such birth or death may be registered
during the pendency of any such action.

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12 apeal385.19.J.odt

In view of sub-section 3 of Section 13, any birth or death

which has not been registered within one year of its occurrence,

shall be registered only on an order by Magistrate of the First Class

or Presidency Magistrate after verifying the correctness of birth or

death. Concededly, the direction issued by the learned District

Judge is not pursuant to power under Section 13(3) which is

vested in the Magistrate and the exercise of which power is

dependent on the verification by the Magistrate of the correctness

of the birth or death. In my considered view, the observation of

the learned District Judge of having found that the child is born

on 20.03.2002 is of no evidentiary value and needless to record

the birth certificate issued solely on the basis of the direction

issued by the learned District Judge while deciding an application

under Section 9(4) of the Hindu Adoptions and Maintenance Act,

1956 does not take the case of prosecution any further in proving

that the victim was a minor.

[11] I have no hesitation in recording that the prosecution

failed to prove that the victim was a minor and therefore, in view

of the finding recorded by the learned Sessions Judge, with which

finding I entirely agree, that the sexual relationship was

consensual, the judgment of conviction is unsustainable.

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[12] The judgment of conviction dated 04.05.2019

rendered by the learned Additional Sessions Judge, Nagpur in

Special Child Case 201 of 2016 is set aside.

[13] The accused is acquitted of offences punishable under

Section 376(2)(i)(n) of the IPC and Section 4 and 6 of the POCSO

Act.

[14] The fine paid by the accused, if any, shall be

refunded.

[15] The accused shall be released from custody forthwith

unless his custody is required in connection with any other crime.

  [16]             The appeal is allowed.

JUDGE

NSN

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