Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 68 OF 20 18
APPELLANT : Sujoy @ Sanjay Laltu Chakravarty,
Aged about 25 years, Occu. Labour,
R/o Gipiganj, Tah. Mednipur (West),
Dist. Mednipur, West Bengal.
VERSUS
RESPONDENTS : State of Maharashtra,
through Police Station Officer,
Tirora Police Station, Dist. Gondia
Mr. Mir Nagman Ali, Advocate for the appellant
Mr. V. A. Thakre, A. P. P. for the respondent/State
CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 26 , 2018.
JUDGMENT
Heard Shri Mir Nagman Ali, the learned counsel for the
appellant and Shri V.A. Thakre, the learned Additional Public
Prosecutor for the respondentState.
2. By the present appeal, the appellant is challenging the
judgment and order of conviction passed by the learned Special
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Judge, Gondia, dated 09.6.2016 in Special POCSO Case No.
11/2014, by which, the appellant was convicted for the offence
punishable under Section 363 of the Indian Penal Code and was
directed to suffer rigorous imprisonment of five years and to pay fine
of Rs.1,000/ and in default of payment of fine, to suffer simple
imprisonment for one month. He is also convicted for the offence
punishable under Section 366 of the Indian Penal Code and on that
count, he was directed to suffer rigorous imprisonment for 7 years
and to pay fine of Rs.2,000/, in default to suffer simple
imprisonment for two months. He was also convicted for the offence
punishable under Section 376(2)(i) of the Indian Penal Code and
under Section 5(a)(i) and (I) read with Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
“ the POCSO Act ” for the sake of brevity) and on these counts, he
was directed to suffer rigorous imprisonment for 10 years,
respectively and to pay fine of Rs.3,000/ on each count and in
default to suffer simple imprisonment for three months.
3. The facts giving rise to the present appeal, in nut shell,
are as under :
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Raghunath Kisan Shelke (PW6) on 20.12.2013 was
attached to Police Station, Tiroda as Head Constable. On the said
day, Lokram Bhelave (PW4) came to police station and lodged a
report that the appellant had kidnapped his daughter. Raghunath
(PW6) reduced the report of Lokram into writing (Exh.25). Since,
the report was disclosing commission of a cognizable offence, he
registered crime against the appellant vide Crime No. 191/2013 for
the offences punishable under Sections 363, 366(A) of the Indian
Penal Code. The printed first information report is at Exh.26.
4. As per the report of Lokram (PW4), the father of the
victim, he resides at Wadegaon and he is a labour. He is having one
daughter and one son. He gave their ages as 15 years and 12 years,
respectively. It is also stated in the first information report that the
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victim girl is taking education in 9 standard at Zilla Parishad High
School at Wadegaon. It is also stated that the appellant used to work
in a jewelery shop of Deepak Gajapure (PW8) and he used to reside
in his house and he was in talking terms with the victim girl. It is
also stated in the first information report that on 19.12.2013, he
went for his work at Bidi company and when returned at 6.00
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O'clock in the evening, that time his wife Sindhubai (PW2) informed
him that the victim girl, who left the house at 10.00 O'clock in the
morning on the pretext of going to school, has failed to return home.
It is stated in the first information report that since the victim girl
used to go to the house of Digambar Gajapure (PW8), he went there
for enquiry. That time it was found by him that even the appellant
was also not present and therefore, on suspicion he lodged the report
that the appellant must have kidnapped his daughter, the victim.
5. After registration of the crime, the case diary was made
over to Ajit Kumbhar (PW10), who at the relevant time was working
as Assistant Police Inspector. He visited the place of incident and
prepared spot panchanama (Exh.28) in presence of panch Kailash
Dhapade (PW5). During investigation, it was revealed to him that
the appellant was resident of West Bengal and therefore, a team of
police personnel was formed and was sent to search the appellant
and the victim girl. The said team was consisting of Raghunath
Shelke (PW6), one Fanindra Mugare and lady constable Rakhade.
6. After being sent to West Bengal, PW6 Raghunath Shelke
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along with the members of the team went to Daspur police station at
West Bengal and along with the four persons from Daspur police
station they went to the house of the appellant, however, he was not
present there. Thereafter, they all went to the the house of aunt of
the appellant, who was residing in village Najirganj and in the
evening, the appellant came out of the house along with victim for
evening walk. That time, they were apprehended. Such information
was given by PW.6 Shelke, Police Head Constable to Najirganj police
station by communication (Exh.34). Thereafter, the appellant was
produced before the Calcutta Court and obtained police custody
remand. It was revealed to the Head Constable that there occurred
sexual intercourse between the appellant and the victim girl in the
house of the aunt and therefore, PW6 Shelke prepared spot
panchanama of the house of aunt of the appellant (Exh.35) and
thereafter, he brought the appellant and the victim girl at Tiroda.
7. After the victim girl was brought at Tiroda, her
statement was recorded by API Smt. Sarita Bhand, to whom as per
the prosecution, it was disclosed that the appellant had committed
sexual intercourse with the victim girl and therefore, the relevant
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offence under Section 376 of the Indian Penal Code and Section 5
read with section 6 of the POCSO Act was added to the crime.
Thereafter, the victim girl was sent for her medical examination at
SubRural Hospital, Tiroda. Her medical certificate (Exh.22) was
obtained from Dr. Rekha Ramteke (PW3). PW10 API Kumbhar also
seized the clothes of victim as well as the appellant in presence of
panch witness PW5 Kailash Dhapade vide seizure memos (Exhs.17
and 19), respectively. For age purpose, IO Shri Kumbhar, by giving
requisition (Exh.52), obtained the certificate (Exh.42). After
completion of the other usual investigation, the final report was
presented in the Court of law.
8. The learned Special Judge, Gondia framed the Charge
against the appellant for the offences punishable under Sections 363,
366, 366(A) , 376(2)(i) of the Indian Penal Code and under Section
5(a)(i) and (I) punishable under Section 6 of the POCSO Act. The
appellant abjured his guilt and claimed for his trial. In order to bring
home the guilt of the appellant/accused, the prosecution has
examined in all 10 witnesses. After the evidence of prosecution was
over, the appellant was examined by the learned Judge of the Special
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Court under Section 313 of the Code of Criminal Procedure.
According to the defence, he is being falsely implicated in the crime.
9. The medical report (Exh.22) is duly proved by Dr.Ku.
Rekha Ramteke (PW3). The said certificate shows that sexual
intercourse had taken place with the victim girl.
10. The victim girl is examined as P.W.1. Her evidence
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shows that in the year 2013, she was studying in 9 standard at Zilla
Parishad High School, Wadegaon and during the period of of Diwali
vacation, she used to work at one cloth shop owned by Digambar
Gajapure, who is examined by the prosecution as its witness no.8.
Similarly, it is her evidence that the appellant used to work at a
jewelery shop of the said prosecution witness and both the shops
were near to each other. It is further evidence of the victim girl that
due to this reason, there was a friendship between her and the
appellant. After Diwali vacation, she left the job to attend the school
regularly, however, the appellant gave a cell phone to her for contact,
which was returned by her.
Her evidence would disclose that on 18.12.2013, the
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appellant called her near temple behind the school and pleaded that
both of them will run away. Accordingly on the next day, as per the
version of the victim, they ran away from their home. Firstly they
went at Tiroda by bus and thereafter they came to Gondia and from
there, they reached to Raipur by train and by another train they
reached to Machanda from Raipur. From there, she made a phone
call to her father that she is fine and nobody should worry about her.
It is also stated in her evidence by the victim that she would disclose
her address later on. Her evidence would disclose that from
Machanda, the appellant and the victim girl went to Medigram in the
house of sister of the appellant's mother by name Chhabi Mandal. As
per the version of the victim, there sexual relations were developed
in between them and though they stayed there for three days, only
once the appellant had sexual intercourse with her. It is further
stated in her evidence that when in the evening she and appellant
stepped outside the house for stroll, that time they were picked up by
the police and brought to Tiroda.
11. From the aforesaid version as appearing in the
prosecution case from the witness box through the mouth of the
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victim, it is crystal clear that the element of force at the hands of the
appellant is totally absent. All the acts done by the victim are
voluntary in nature. Her evidence in examinationinchief shows that
even there was no promise at all to her of any sort. Further, the
sexual intercourse was also not repeated one, but it occurred only
once.
12. Section 363 of the Indian Penal Code reads as under :
363. Punishment for kidnapping.—Whoever kidnaps
any person from [India] or from lawful
guardianship, shall be punished with imprisonment
of either description for a term which may extend to
seven years, and shall also be liable to fine.
13. Kidnapping is defined in Section 359 of the Indian Penal
Code, which reads that : Kidnapping is of two kinds (1) kidnapping
from India and (2) kidnapping from lawful guardianship. In the
present case, we are concerned with kidnapping from lawful
guardianship.
14. Section 361 of the Indian Penal Code reads as under :
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361. Kidnapping from lawful guardianship.—
Whoever takes or entices any minor under [sixteen]
years of age if a male, or under [eighteen] years of
age if a female, or any person of unsound mind, out
of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of
such guardian, is said to kidnap such minor or
person from lawful guardianship.
15. After the amendment to Section 375 of the Indian Penal
Code, a man is said to have committed rape if he –
(a) penetrates his penis, to any extent, into the
vagina, mouth urethra or anus of a woman or makes
her to do so with him or any other person ; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of a woman or makes her to do so with him or
any other person ; or
(c) manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra, anus
or any part of body of such woman or makes her to do
so with him or any other person ; or
(d) applies his mouth to the vagina, anus, urethra or
a woman or makes her to do so with him or any other
person, under the circumstances falling under any of
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the following seven descriptions :
(i) against her will ;
(ii) without her consent ;
(iii) with her consent, when her consent has been
obtained by putting her or any person in whom
she is interested in fear of death or of hurt ;
(iv) with her consent, when the man knows that
he is not her husband, and that her consent is
given because she believes that he is another
man to whom she is or believes herself to be law
fully married ;
(v) with her consent, when, at the time of giving
such consent, by reason of unsoundness of mind
or intoxication or the administration by him
personally or through another of any stupefying
or unwholesome substance, she is unable to
understand the nature and consequences of that
to which she gives consent ;
(vi) with or without her consent, when she is
under eighteen years of age ; and
(vii) when she is unable to communicate
consent.
The 'Child' is defined under Clause (d) of subsection 1
of Section 2 of the POCSO Act and as per the said definition, “Child”
means any person below the age of eighteen years .
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16. In order to bring home the guilt of the appellant for the
offences punishable under Sections 363, 366, 366(A), 376(2)(i) of
the Indian Penal Code and 5(a)(i) and (I) punishable under Section
6 of the POCSO Act, the burden was cast on the shoulder of the
prosecution to prove that in any case, the age of the victim was
below 16 years, at the time of commission of offence.
17. If a girl more than age of 16 years on her own leaves her
house then in such event, the person with whom she had eloped
cannot be held guilty for the offence punishable under Section 363 of
the Indian Penal Code. There can not be the defence of the accused
that sexual relations with victim was there with her consent, if it is
proved that at that time age of victim was below 18 years. In that
event, the person who is facing the charge for offence punishable
under Section 376 of the IPC and under relevant provisions of
POCSO Act, cannot avoid legal punishment.
18. In view of the aforesaid, primarily, the burden firmly
rests on the shoulder of the prosecution to prove the age of the
victim girl, if the prosecution wants to succeed to bring home the
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guilt of the person so charged by adducing admissible, cogent and
reliable evidence.
19. In one of the Division Bench decisions of this Court in
the case of Ravi Anandrao Gurupude .vs. State of Maharashtra ,
reported in 2017 All M.R. (Cri.) 1509 , to which I am party, the
Division Bench in paragraphs 7 and 9 observed as under :
7. It would be useful to refer few provisions of
the Act for apt consideration of the submission made
by the learned counsel for appellant.
The Parliament has enacted the Act, 2012 in
order to protect children from the offence of sexual
assault, sexual harassment and pornography and
provide for establishment of Special Courts for trial
of such offences and for matters connected therewith
or incidental thereto. The act extends to the whole of
India except the State of Jammu and Kashmir.
Clause (d) of Section 2 of the Act reads as
under:
"(d) "child" means any person below the age of
eighteen years."
Section 5 deals with the aggravated penetrative
sexual assault. Clause (j) of Section 5 reads as
under:
"(j) whoever commits penetrative sexual assault
on a child, which
(i) .....
(ii) in the case of female child, makes
the child pregnant as a consequence of sexual
assault;"
Clause (1) of Section 5 reads as under:
"(1) whoever commits penetrative sexual assault
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on the child more than once or repeatedly."
Section 6 provides for punishment for aggravated
and penetrative sexual assault as enumerated in
Section 5 of the Act.
From the aforesaid provisions, it is crystal clear
that the prosecution is under bounden duty to prove
that the victim is a child. Unless the prosecution
successfully establishes that the victim is a child
within the meaning of clause (d) of Section 2 of the
Act, a person cannot be convicted for the offence
punishable under Section 6 of the Act.
9. The provisions of the Act are stringent in nature.
Even there is a statutory presumption under Section
29 of the Act. Since the enactment is stringent in
nature, the degree of proof is more strict. The
prosecution is under bounden duty to prove the age
of the prosecutrix to show that at the time of the
incident, the prosecutrix was "Child" within the
meaning of provisions of the Act. The burden is on
the prosecution to prove that the age of the
prosecutrix, on the date of the occurrence, was less
than 18 years. As observed above, at the first
opportunity, the date of birth of the prosecutrix is
not available in the prosecution case. The
Investigating Officer has given a requisition to
Sarpanch of Gram Panchayat, Panjarepar by which
the Sarpancha was requested by the Investigating
Officer to furnish the birth certificate of the
prosecutrix. The said requisition is at Exh.56. It is
dated 25.09.2013 and it appears that it was sent
under Outward No.100/2013.
The prosecution has placed on record, the birth
certificate issued by the Birth and Death Record
Officer, Gram Panchayat, Panjarepar. The said
certificate is at Exh.57. According to the
Investigating Officer, the said is obtained by him
from Gram Panchayat.
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The document Exh.57, the birth certificate is
issued on 16.09.2013. It shows that it is in respect
of one female, "Bali". The date of birth is
23.08.1995.
20. In another reported judgment of this Court in the case of
Deepak S/o Jitendra Sawant .vs. State of Maharashtra , reported
in 2017 All MR (Cri) 2058 , the Division Bench has followed the
Ravi Gurpude's case, cited supra.
21. Thus, insofar as the POCSO Act is concerned, this Court
has ruled that the enactment is stringent in nature and the therefore,
a stricter proof is required.
22. Let us examine whether in the present case, the
prosecution has discharged its burden in respect of the age of the
victim girl and whether the prosecution has brought on record
sufficient admissible evidence to prove that on the date of the
incident, the victim girl was below the age of consent.
23. The criminal law was set into motion by Lokram (PW4).
This prosecution witness is the father of the victim girl. His report
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Exh.25 does not disclose what is the date of birth of the victim girl.
His report only recites that the age of his daughter is 15 years. The
first information report is not a substantive piece of evidence. It can
be used either for corroboration or contradiction of the maker.
Lokram (PW4) is totally silent from the witness box about the age of
his daughter. He did not state from the witness box that the age of
his daughter was 15 years at the time of incident, as stated in the
first information report. Further, even from the witness box, this
prosecution witness did not disclose the date of birth of his daughter,
the victim girl.
24. The prosecution has examined Smt. Sindhubai Bhelave
(PW2), the mother of the victim girl. Her evidence is also silent
about the age of the victim. Even this prosecution witness, is silent
in her evidence about the date of birth of the victim.
25. The last oral evidence in respect of the age is of the
victim. Though, she has stated her age as 17 years prior to
administering the oath, even this prime witness has not given her
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date of birth. The victim girl was taking education that too in 9
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standard, and therefore, it is unbelievable that she was not knowing
her date of birth.
26. In absence of any oral evidence on the date of birth or
age of the victim, let us see whether the prosecution has proved the
age of the victim by any documentary evidence.
27. The prosecution has filed three documents on record.
Those are at Exh.41, 42 and 43. By heavily relying on these three
documents, the learned Additional Public Prosecutor for the State
Shri Thakre would submit that the prosecution has proved the date
of birth of the victim girl as 21.5.1999 and on the date of the offence
i.e. 19.12.2013, according to him, the girl was below the age of 16
years and therefore, even though she herself left her place and had
sexual relations with the appellant voluntarily, such consent is no
consent in the eye of law and therefore, the appellant cannot avoid
legal punishment.
28. Now, let us test the submission of the learned Additional
Public Prosecutor for the State. Exhibits 41, 42 and 43 are proved by
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PW7 Prabhu Kantode. This prosecution witness, at the time of
deposing from the witness box, was serving as Junior Assistant in
Zilla Parishad High School and Junior College, Wadegaon. He was
authorized by the Head Master of the School to appear and produce
the register in the case. He produced the authority letter given to
him by the Head Master of the School to depose before the Court
(Exh.40). As per his evidence, the name of the victim girl is
appearing at Entry No.6534 in the Admission Register of the school
and her date of birth is shown as 21.5.1999. He deposed that she
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was admitted in the school in 5 standard on 26.6.2009. The extract
of the Admission Register is at Exh.41. Similarly, in the Admission
Register of the Junior College, the name of the victim is appearing at
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Serial No.2700 and she had taken admission in 11 standard on
01.7.2015 and the said extract is at Exh.42. He also proved the
Bonafide Certificate placed on record given by the Head Master Shri
Rahangadale and since this witness has identified the signature of
Shri Rahangadale, the said Bonafide Certificate was also admitted in
evidence and it is at Exh.43. These three documents show that the
date of birth of the victim is 21.5.1999.
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29. Exh.41 is the extract of admission register of the high
school. As per the evidence of PW7 Prabhu Kantode and perusal of
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Exh.41 shows that, the victim girl was admitted in 5 standard on
26.6.2009. Exh.41 would reveal that there are total 15 vertical
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columns. The 7 column of such vertical columns is in respect of
“last school attended” and against entry No.6534, which pertains to
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the victim girl, the 7 column shows that she was, prior to taking
admission in Zilla Parishad High School, admitted in Zilla Parishad
Primary School, Wadegaon.
30. Similarly, in Exh.42, which is the extract of admission
register of Junior College, in respect of entry No. 2700 which
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pertains to the victim girl, the 6 column shows that prior to taking
admission in junior college, the victim girl was admitted in Zilla
Parishad High School, Wadegaon.
31. Exh.43 is the Bonafide Certificate and the Headmaster of
Zilla Parishad High School, Wadegaon has given declaration that as
per the school record, the date of birth of the victim girl was
21.5.1999.
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32. Thus, on the basis of these two extracts (Exhs.41 & 42)
and on the basis of Bonafide Certificate (Exh.43), the prosecution
wish to contend before this Court that the date of birth of the victim
girl is duly proved by the prosecution. Section 35 of the Indian
Evidence Act, 1872 is as under :
35. Relevancy of entry in public [record or an
electronic record] made in performance of
duty.— An entry in any public or other official
book, register or [record or an electronic record],
stating a fact in issue or relevant fact, and made by
a public servant in the discharge of his official duty,
or by any other person in performance of a duty
specially enjoined by the law of the country in
which such book, register, or [record or an
electronic record] is kept, is itself a relevant fact.
33. What would be the evidentiary value of the admission
register or the transfer certificate is no more in res integra . In Birad
Mal Singhvi .vs. Anand Purohit, reported in AIR 1988 SC 1796 , in
this authoritative pronouncement the Hon'ble Apex Court held that
to render a document admissible under Section 35 of the Evidence
Act, three conditions must be satisfied. Firstly, the entry that is relied
on must be done in public or other official book, register or record,
secondly, it must be an entry stating the fact in issue or relevant fact
and thirdly, it must be made by a public servant in discharge of his
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official duty or any other person in performance of a duty specially
enjoined by the law. An entry relating to the date of birth made in
the school register is relevant and admissible under Section 35 of the
Act, but the entry regarding age of a person in a school register is
not of much evidentiary value to prove the age of the person in
absence of material on which the age was recorded.
Similarly, in Sushil Kumar .vs. Rakesh Kumar , reported
in AIR 2004 SC 230 , the Hon'ble Apex Court in paragraphs 33 and
34 has stated as under and are reproduced hereinunder :
33. Under Section 35 of the Indian Evidence Act,
a register maintained in terms of a statute or by
a statutory authority in regular course of
business would be a relevant fact. Had such a
vital evidence been produced, it would have
clinched the issue. The respondent did not
choose to do so.
34. In the aforementioned backdrop the
evidences brought on record are required to be
considered. The Admission Register or a Transfer
Certificate issued by a Primary School do not
satisfy the requirements of Section 35 of the
Indian Evidence Act. There is no reliable
evidence on record to show that the date of birth
was recorded in the school register on the basis
of the statement of any reasonable person.
34. It is clear that Exh.43 is given on the basis of the entry
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made in Exh.41. Similarly, entry in respect of age on Exh.42 is on
the basis of entry made in Exh.41. Now, Exh.41, as observed in
preceding paragraph, is having 15 vertical columns and column no.7
shows that the date of birth of the victim girl was initially recorded in
Zilla Parishad Primary School, Wadegaon. In my view, this particular
document would have been a primary document and an attempt
ought to have been made by the prosecution to produce this
particular document on record. Not only that, it was further
obligatory on the part of the prosecution to prove that on whose
statement, the date of birth of the victim was recorded as 21.5.1999
even in Zilla Parishad Primary School. The parents of the victim are
blissfully silent in their evidence that while taking admission of their
ward namely the victim they disclosed to the school authorities that
date of birth of the victim as 21.5.1999, in absence of this material
piece of evidence on record insofar as date of birth of the victim as
21.5.1999, in my view is mere a guess work.
35. Further, in that behalf, it would be useful to have a
glance to the crossexamination of PW10 Ajit Kumbhar, the
Investigating Officer and it is reproduced herein under :
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“It is true that entry of date of birth is made at Gram
Panchayat or Municipal Council. I did not make any
attempt to collect birth certificate of victim girl from
G.P. It is not true that during the period of incident,
the age of victim girl was more than 18 years and
therefore, I did not obtain her birth certificate from
G.P.”
From the aforesaid, it is clear that the Investigating
Officer has failed to discharge his duty properly and in half hearted
manner he conducted investigation in such a serious offence. The
Investigating Officer cannot take the side of the complainant or the
accused. It is expected that he will investigate the matter impartially.
In the present case, when it was revealed to the Investigating Officer
that the victim girl on her own had left the home and had sexual
bout with the appellant, it was obligatory on his part to investigate
the matter throughly and impartially in order to establish the date of
birth of the victim girl. It was not expected from the Investigating
Officer to complete the investigation mechanically. In my view, had
the Investigating Officer collected the birth certificate from the Gram
Panchayat, the justice would have been done to both, the victim as
well as the accused. Further, it is not the evidence of the
Investigating Officer that though he had attempted to procure the
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24 APPEAL68.18.odt
birth certificate from Gram Panchayat record, it was not made
available to him, therefore, an adverse inference is required to be
drawn against the prosecution in that behalf.
36. The cumulative effect of reappreciation of the
prosecution case leads me to record a finding that from the evidence
of the victim girl, it is clear that she eloped with the appellant on her
own and had sexual intercourse on her own and thus, she was a
consenting party. The prosecution has utterly failed to prove that the
age of the victim girl was below the age of 16 years, insofar as
offence punishable under Section 363 of the IPC and below the age
of 18 years insofar as the offences punishable under Section 376(2)
(i) of IPC and under Section 5(a)(i) and (I) read with Section 6 of
the POCSO Act are concerned. Resultantly, I pass the following order
:
ORDER
(i) The criminal appeal is allowed.
(ii) The judgment and order of conviction passed by the
learned Special Judge, Gondia, dated 09.6.2016 in
Special POCSO Case No. 11/2014, is hereby quashed
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25 APPEAL68.18.odt
and set aside.
(iii) The appellant is acquitted of the offences punishable
under Sections 363, 366, 366(A), 376(2)(i) of the
Indian Penal Code and under Section 5(a)(i) and (I)
punishable under Section 6 of the POCSO Act.
(iv) The appellant, who is in jail, be set at liberty forthwith,
if not required in any other case.
(v) The criminal appeal is allowed and disposed of.
JUDGE
Diwale
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