The State Of Maharashtra v. Lahudas Pandharinath Bhangare

1/13 8 als 7 of 2024.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.7 OF 2024 The State of Maharashtra .... Applicant

Versus

Lahudas Pandharinath Bhangare .... Respondent .....

Ms.S. S. Kaushik, APP for Applicant - State.

Mr.Ajay Bhise, Advocate for Respondent.

.....

CORAM : BHARATI DANGRE & MANJUSHA DESHPANDE, JJ.

DATED : 30th AUGUST 2024.

ORDER (PER : Manjusha Deshpande, J.) The Applicant is challenging the judgment and order dated 21.07.2023, passed by the learned District Judge-1 and Additional Sessions Judge, Nashik, in Sessions Case No.86 of 2022, thereby acquitting the accused, present Respondent from the charges of offence registered against him under Section 5(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 363 and 376 of the Indian Penal Code (IPC).

Digitally signed by RAJESHRI PRAKASH AHER Date:

2024.09.21 18:28:55 +0530 RAJESHRI PRAKASH AHER

2/13 8 als 7 of 2024.doc Being aggrieved by the said judgment and order, the Applicant-State of Maharashtra has fled the present criminal Application under Section 378(3) of the Criminal Procedure Code (Cr.P.C.) readwith Rule 19 of Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960, seeking leave to fle Appeal.

The case of the prosecution in brief is that a 13 years old victim girl in the night of 23.10.2021, between 01:00 to 02:00 a.m. left her house to attend the nature's call and did not return. On 24.10.2021 the complainant i.e. victim's father, his brother and wife tried to trace the victim by making inquires, but they could not get any clue. The complainant thereafter lodged a missing report. On 27.10.2021, complainant received a call from the police station informing him that, his daughter has been found. When the complainant went to the police station, the victim informed him that, accused Lahudas Bhangare has enticed her and took her to Deolali Camp, and thereafter to Kasatvihir, Taluka Peth and later to Zariborda, Taluka Peth, and committed forcible sexual intercourse with her. It is the allegation of the complainant that instead of registering First Information Report (FIR) against the accused,

3/13 8 als 7 of 2024.doc merely custody of the victim was handed over to him. Thereafter, again on 17.11.2021, at about 10:30 a.m. when the victim was on her way to attend the school, the accused Lahudas kidnapped her and took her to his house and committed forcible sexual intercourse with her. The complainant approached the police station to lodge FIR, but again his complaint was not registered. The complainant's brother went to the house of accused alongwith two police personnel and brought the victim to the police station. Even thereafter, the police have refused to register the FIR. The complainant therefore having left with no other alternative, fled written complaint on 22.11.2021 to the Commissioner of Police, which was also not addressed to by the concerned authority.

The father of the victim fled application under Section 156(3) of the Cr.P.C. before the learned Judicial Magistrate First Class, Peth, Nashik, who by order dated 14.02.2022 directed Peth Police Station to register FIR. Accordingly, Crime No.36 of 2022 came to be registered, and FIR was lodged under Section 363 and 376 of the IPC alongwith Sections 4, 8 and 12 of POCSO Act.

4/13 8 als 7 of 2024.doc The case was committed to the District Judge-I and Additional Sessions Judge, Nashik. After recording the oral and documentary evidence, the learned Judge vide judgment and order dated 21.07.2023, acquitted the Respondent accused of the charges under Sections 363 and 376 of IPC and under Sections 4, 8 and 12 of the POCSO Act.

The said judgment of acquittal has been challenged by the State, in the present Application seeking leave to fle Appeal on the following grounds :

(i) The age of the victim was merely 13 years at the time of offence, and though the provisions of POCSO Act are attracted in the present case, yet the learned Judge, has recorded the fnding of acquittal against the accused. (ii) The learned Judge is not justifed in observing that the victim willingly accompanied the accused, even though the prosecution has proved that she was a minor girl, hence, her consent was void. Thus, the observations are erroneous.

(iii) The learned Judge has failed to appreciate that the victim has admitted the incident in her statement under Section 164 of Cr.P.C., she has stated that, accused has

5/13 8 als 7 of 2024.doc taken her to his village near Peth, thereafter to Deolali Camp, and thereafter to Kasatvihir, Taluka Peth and later to Zariborda, Taluka Peth, and committed forcible intercourse with her. This being admitted position, yet the learned Judge has recorded fnding of acquittal in favour of the accused.

(iv) The learned judge has also failed to appreciate that the medical examination of the victim was conducted fve months after the said incident. The report of the medical examination contained medical history disclosing that, there are no injuries on her body. Considering that the victim was examined fve months after the incident, any injury is bound to disappear during the intervening period.

Hence, considering the evidence brought on record, the prosecution had duly proved that, the victim being a minor, was enticed and taken away by the accused, and thereafter committed alleged offences under POCSO Act.

The learned APP Ms.Kaushik has raised the above grounds during her submission and has prayed to grant leave to fle Appeal against the said judgment of acquittal.

6/13 8 als 7 of 2024.doc Respondent no.1 is represented by Advocate Mr.Ajay Bhise, who has opposed the admission of the present Application strenuously, praying to dismiss the Application. We have heard the respective counsel. The State has fled notes of evidence alongwith the present application seeking leave to fle appeal. We have also perused the relevant evidence produced by the prosecution during the trial. The statement of victim has been recorded at Exhibit-26. The victim has claimed in her examination-in-chief that, on 23.10.2021, the accused has come to her house when other family members were in deep sleep. He put a handkerchief containing stupefying substance on her mouth and took her to his village. Thereafter committed forcible sexual intercourse with her. However, in her cross-examination, she has admitted that Lahudas i.e. the accused never came to her house. She has stated that all the family members were sleeping in the hall of their house by latching the door from inside and all the lights were put off while sleeping.

She has admitted in her cross-examination that, she does not know as to why the statement of gagging her mouth,

7/13 8 als 7 of 2024.doc with handkerchief does not appear in her statement recorded under Section 161 of Cr.P.C. The learned Judge has observed that, statement about handkerchief and stupefying substance also does not appear in her statement recorded under Section 164 of Cr.P.C. She has also admitted that, she stayed with accused for fve days but did not resist and also did not raise any hue and cry. She travelled with him on a moter-cycle to various places, and met many people on their way. Though she made grievance to the people she met on their way, but nobody paid any heed to her. She further narrated that, she alongwith the accused came to Peth Police Station at 6:00 p.m. from Zariborda, where her parents were summoned by the police. The entire dispute was resolved in the police station amicably. When she was confronted with her photographs snapped with the accused, which were taken at Zariborda, she has admitted the photographs belonged to her.

P.W.4 is the Doctor, who has examined the victim has stated that there was no injury on the perineal region. Hymen was torn with old healed tear at 3 O'clock, 6 O'clock and 9 O'clock position. She did not fnd any injury to indicate that there was forcible sexual intercourse in case of the victim.

8/13 8 als 7 of 2024.doc P.W.5 is the other Doctor, who has examined the victim on 17.03.2022, after obtaining the consent from her mother. According to the history given by the victim, it was recorded that, she had left home on 23.10.2021 and returned on 27.10.2021. Between the said period she had sexual intercourse with an unknown person twice, and there was no sexual intercourse on 17.11.2021.

The Investigating Offcer, P.W.7 has been examined by the prosecution, according to him, he has conducted investigation in C.R.No.36 of 2020. He has seized the clothes of victim and accused, and conducted spot panchanama, recorded statements of witnesses as per their say, and arrested the accused. Apart from seizing the clothes of the accused, his mobile phone was also seized.

In his cross-examination, it is admitted by the Investigating Offcer, that, while fling the chargesheet, he did not fle school leaving certifcate and the birth certifcate of the victim. When the victim and accused had come to the police station, the victim did not lodge any complaint. In fact, in her statement the victim has stated that she had gone alongwith the accused out of town for some work. She has not made any

9/13 8 als 7 of 2024.doc complaint that, the accused had enticed her and sexually assaulted her. Thereafter the custody of the victim was handed over to her parents. The parents of the victim had never fled any complaint with him. He also admits that in her statement, the victim has not stated that accused had gagged her mouth with handkerchief. On the basis of the above evidence, the learned Judge has given fnding on the points framed by her. The learned Spacial Judge has observed that there is a contradiction in the statement of the victim regarding her disappearance during the night of 23.10.2021. As per the statement of the victim, the door of their house was latched from inside and accused came and put handkerchief with stupefying substance on her mouth and kidnapped her. She has not mentioned about it either in her statement under Section 161 or Section 164 of the Cr.P.C.

The victim was confronted with the photographs in which she is seen happy in the arms of accused. The victim has stayed with the accused for fve days, clicked photographs with him, and did not run away inspite of ample opportunities. Therefore, the inference that she was kidnapped by the accused

10/13 8 als 7 of 2024.doc cannot be drawn on the basis of the evidence which was produced. The only inference that can be drawn is that she has willingly accompanied the accused. Though the victim is claiming that, she has been forcibly taken away from her house and she was sexually assaulted. The allegations do not fnd any support from her conduct, since she has accompanied the accused without making any hue and cry or did not try to run away. While she travelled with accused from place to place, she has not raised any alarm or tried to rescue herself from the accused. When she was handed over to her father, she has again gone to the house of the accused after few days on 17.11.2021 from where she was required to be brought to the police station. The medical report does not disclose any injury on her body.

The delay in lodging the FIR has also, not been adequately explained. All material evidence on record indicates that the victim and the accused were in consensual relationship and ultimately relying on the decision of this Court in Criminal Appeal No.1184 of 2019, in Ashik Ramjan Ansari Vs. State of Maharashtra, applying the ratio of the above judgment, the order of acquittal has been passed.

11/13 8 als 7 of 2024.doc Having perused the notes of evidence and hearing respective counsel and perusing the judgment as well as the record, we do not fnd that the learned Judge has committed any error in passing the order of acquittal in favour of the accused. The testimony of the victim recorded, does not support the case of the prosecution. From her testimony as well as her conduct the only conclusion which can be drawn is that, she on her own volition had left her house, accompanied the accused who himself was a teenager at that time. After staying with him for fve days at different places, she has returned back. The evidence in the form of photographs clicked by the accused with the victim which were produced, did not indicate use of any force against the victim. In fact, the learned Judge has observed that, she seem to be happy in those photographs accompanying the accused. Hence, the offence of kidnapping by the accused is not at all proved by the prosecution.

The testimony of the Doctors P.W.4 and P.W.5 as well as the medical examination report of the victim do not disclose any injury due to alleged forceful sexual assault. There is no evidence to prove that any kind of force was used against the victim in order to support the allegation that the accused forced himself on her. In fact, absence of any injury only supports the

12/13 8 als 7 of 2024.doc case of consensual sex. Though the learned APP has strenuously argued that the victim being a minor, 'consent' of a minor is not a valid 'consent' permissible under the law. Therefore, the consensual sex in fact has to be construed as sexual offence against the minor in view of the provisions of the POCSO Act. However in the present case the victim and the accused both were teenagers, the case was appreciated by the learned Special Judge from a different angle. The prosecution has not proved that the victim who was a minor was taken away from the custody of her parents without consent of her lawful guardian and committed offence under Section 363 of IPC. In fact, from the evidence produced, the obvious conclusion that can be drawn is that, the victim herself has left the house and travelled with the accused from place to place.

The prosecution has also failed to prove by leading cogent evidence, the exact date, time and place of committing forcible sexual intercourse by the accused on victim. The omnibus allegations are not suffcient to record fnding of conviction against the accused. In the present case, there is no investigation done by the prosecution, about the exact date, time and place of offence of sexual assault.

13/13 8 als 7 of 2024.doc There are various inconsistencies and infrmities in the testimony of the victim, the corroborative medical evidence also does not support the prosecution case about forcible sexual assault on the victim.

Hence, in absence of cogent and substantive evidence against the accused, the fnding of acquittal recorded by the learned Sessions Judge, Nashik, does not deserve interference. The learned Sessions Judge, has only after appreciating the evidence led by the prosecution recorded fnding of acquittal.

It is trite law that, the High Courts should be slow in interfering with fnding of acquittal recorded against an accused, unless the view taken by the learned trial Judge is perverse or impermissible. We do not fnd any perversity in the fnding of acquittal recorded by the learned Sessions Judge, Nashik, hence, we do not intend to interfere with the order of acquittal passed in favour of the accused.

As a result of the permission seeking leave to fle Appeal is refused and the Application is rejected. (MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.)