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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.1 OF 2018
Tausif Habib Sheikh,
Aged about 23 years,
Occupation Pan Shopkeeper,
R/o Jawahar Ward,
Tahsil Desaiganj, District Gadchiroli. ….. Appellant.
:: VERSUS ::
State of Maharashtra, through
P.S.O. Desaiganj, Tahsil
Desaiganj, District Gadchiroli. ….. Respondent.
Shri S.A. Brahme, Counsel with Shri S.K. Tambde, Advocate for the appellant.
Shri I.J. Damle, Addl.P.P. for the State.
CORAM : MRS. SWAPNA JOSHI, J.
DATE : JUNE 4, 2018.
ORAL JUDGMENT
1. This appeal has been directed against judgment and order
of conviction passed on 30.11.2017 by learned Additional Sessions Judge,
Gadchiroli in Special POCSO Case No.22/2017 whereby learned Judge of
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the Court below convicted the appellant (hereinafter referred to as “the
accused”) for offences punishable under Section 375 read with Section
376 of the Indian Penal Code and under Section 4 of the Protection of
Children from Sexual Offences Act, 2012 and under Sections 506-II of the
Indian Penal Code. Insofar as offence punishable under Section 4 of the
Protection of Children from Sexual Offences Act, 2012 is concerned, the
accused was sentenced to suffer rigorous imprisonment for 7 years and to
pay a fine of Rs.3000/- and, in default of payment of the fine amount, he
was directed to suffer further rigorous imprisonment for 6 months.
Insofar as offence punishable under Section 506-II of the Indian Penal
Code is concerned, the accused was sentenced to suffer rigorous
imprisonment for 3 years and to pay a fine of Rs.2000/- and, in default of
payment of the fine amount, he was directed to suffer further rigorous
imprisonment for 4 months.
2. The prosecution case, in a nut shell, is as under:
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The prosecutrix is studied up to 10th Standard and she had
left school. Pan-shop of the accused was in front of house of the
prosecutrix, therefore, the prosecutrix was knowing the accused. On
1.1.2015, the accused gave a phone call to the prosecutrix on mobile
phone of her mother and called her to meet him behind Hutatma Garden
at Wadsa. Accordingly, the prosecutrix went there. Thereafter, they both
went to Bramhapuri and then went to Saigata Temple which is one
kilometer away from Bramhapuri. They chit-chatted there. In February
2015, the accused again called the prosecutrix at Hutatma Garden.
Accordingly, she went there. Thereafter, they proceeded to Kurud. They
went in a field. They chit-chatted there. The accused asked the
prosecutrix whether she would marry him. On this, the prosecutrix
showed her willingness to marry him. Thereafter, they had physical
relations. It is the case of the prosecution that the prosecutrix conceived.
However, the accused gave some pills to consume which she consumed
resulting into miscarriage. In July 2015, again the prosecutrix and the
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accused met at Hutatma Garden and they had physical relations in one
field. After a few days, the accused informed the prosecutrix that he did
not want to marry her. He also threatened her with dire consequences.
The prosecutrix then proceeded to the police station and lodged her report
(Exhibit 16). On the basis of the said complaint, offence was registered.
A formal investigation was carried out by the investigating agency. After
completion of the investigation, the case was committed to the Court of
Sessions. Learned Judge of the Court below framed a charge and on
analysis of the evidence led before him convicted the accused as aforesaid.
3. I have heard learned counsel Shri S.A. Brahme for the
appellant and learned Additional Public Prosecutor Shri I.J. Damle for
the respondent/State.
4. Learned counsel Shri S.A. Brahme for the appellant
vehemently argued that learned Judge of the Court below has not
considered the evidence of the prosecution witnesses in its right
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perspective and has erroneously convicted the accused. He pointed out
that even the age of the prosecutrix has not been proved by the
prosecution by leading convincing evidence. He further submitted that
the prosecutrix married with some other boy and after marriage, she has
deposed before the Court and the evidence on record shows that the
prosecutrix has half heartedly supported the case of the prosecution.
5. Per contra, learned Additional Public Prosecutor Shri I.J.
Damle for the respondent/State supported the judgment passed by
learned Judge of the Court below and submitted that learned Judge of the
Court below has rightly considered the evidence on record and convicted
the accused.
6. With the assistance of learned counsel for the rival parties,
I have gone through the record proceedings of the case.
7. In order to verify the arguments advanced by both the sides,
it would be beneficial to go through the evidence led by the prosecution.
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The prosecution has examined in all 3 witnesses. PW1 is the prosecutrix,
PW2 is the mother of the prosecutrix, and PW3 is the investigating
officer.
8. At the outset, it may be mentioned here that the
prosecution has utterly failed to prove the age of the prosecutrix.
According to PW1 prosecutrix, her date of birth is 28.5.1998. However, in
support of her contention, she did not produce her original birth
certificate on record. On the date of her deposition i.e. 4.9.2017, she
mentioned her age as 20 years which means that at the time of incident
i.e. in July 2015 she must be 18 years old. The prosecutrix produced
bonafide certificate (Exhibit 18) issued by the Principal of Adarsh High
School and Junior College at Desaiganj, District Gadchiroli which reveals
the date of birth of the prosecutrix as 28.5.1998. However, the said
certificate has not been supported by the evidence of the concerned
principal. The date of birth of the prosecutrix has not been either
mentioned by her or her mother. In view thereof, it is not clear as to on
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what basis the bonafide certificate has been issued by the principal of the
high school. PW2 the mother of the prosecutrix, has not stated anything
about the age of the prosecutrix.
In view thereof, it can safely be presumed that on the day of
the incident the prosecutrix was aged about 18 years old.
9. On the point of the incident, the prosecutrix stated that she
was knowing the accused as he used to run pan-shop in front of her
house. According to her, in the year 2014 she and the accused became
friends. The accused made a phone call to her and called her to meet him
behind Hutatma Garden. Accordingly, she went there. Thereafter, she
proceeded to Armori on his motor bike. They went to village Saigata.
They were there for about two hours. According to her, the accused asked
the prosecutrix whether she would marry him. The prosecutrix expressed
her willingness for the same. Thereafter, the prosecutrix and the accused
were in contact on mobile phone. They again met at Hutatma Garden as
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the accused called the prosecutrix to meet him. They went to village
Kurud. The accused then took the prosecutrix to a field and asked her to
get converted into Islam. The prosecutrix expressed her readiness for the
same. At that place, they had a physical relationship with each other.
After the said incident, the prosecutrix and the accused oftenly used to
meet with each other and they continued the physical relationship. The
prosecutrix carried pregnancy. However, the accused offered her some
pills due to which the pregnancy was terminated. About four months
prior to lodging of the complaint, the accused informed the prosecutrix
that he would not marry her. He also threatened her with dire
consequences. Therefore, the prosecutrix proceeded to the police station
and lodged the complaint (Exhibit 16) against the accused.
10. During cross-examination, the prosecutrix stated that, in
the year 2015, during Durgadevi immersion, her mother came to know
about her friendly relationship with the accused, therefore, her family
members reprimanded her and asked not to keep any contacts with the
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accused. The said version of the prosecutrix indicates that in the year
2015 her family members came to know about her friendly relationship
with the accused.
11. The prosecutrix, in her cross-examination, further stated
that about 3 months prior to lodging of the complaint she stayed with the
accused and during the said period she tried to understand the way of
living in Muslim Families. The prosecutrix fairly admitted that after her
parents lodged the report, she and the accused were called to the police
station and till that time, she did not lodge any complaint against the
accused. It is worth to note that the prosecutrix admitted that she has
lodged the complaint against the accused as per the say of her parents.
The said version of the prosecutrix clearly indicates that as per the
instructions of her parents, she has lodged the complaint against the
accused and the said version destroys the case of the prosecutrix.
12. On careful scrutiny of the testimony of the prosecutrix, it is
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crystal clear that the prosecutrix was having physical relationships with
the accused willingly. It is not at all her case that the accused forcibly
committed sexual intercourse with her. It is also not her case that as the
accused threatened to kill her, she consented for the said physical
relationship. The testimony of the prosecutrix shows that there was a
love affair between the prosecutrix and the accused and as the mother of
the prosecutrix came to know about the said love affair in 2015, the
family members of the prosecutrix restrained her from meeting the
accused. The prosecutrix on her own stayed with the accused for about
three months and as her parents had lodged the complaint against the
accused, the prosecutrix and the accused were called to the police station
and, thereafter, the prosecutrix was asked to lodge complaint (Exhibit 16)
against the accused. Thus, the testimony of the prosecutrix in no manner
shows that the accused had compelled her to keep physical relationships
with him. It is already discussed above that at the time of incident the
prosecutrix was not below 18 years of her age.
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13. In view thereof, the provisions of Section 376 of the Indian
Penal Code as well as Section 4 of the Protection of Children from Sexual
Offences Act, 2012 are not attracted.
14. Thus, the prosecution has miserably failed to prove the case
against the accused. Learned Judge of the Court below has not
considered the evidence led by the prosecution in its right perspective. In
view thereof, the appeal needs to be allowed and accordingly it is allowed,
as per order below:
ORDER
(i) The criminal appeal stands allowed.
(ii) Judgment and order of conviction passed on 30.11.2017 by learned
Additional Sessions Judge, Gadchiroli in Special POCSO Case No.22/2017
is hereby quashed and set aside.
(iii) The accused is acquitted of the offences punishable under Sections
376 and 506-II of the Indian Penal Code and under Section 4 of the
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Protection of Children from Sexual Offences Act, 2012.
(iv) The accused is in jail. He be released forthwith, if not required in any
other case.
(v) Fine amount, if any, be refunded.
JUDGE
!! BRW !!
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