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Bombay High Court/2019/March/GORAKSHYA ARJUN MAHAKAL VERSUS THE STATE OF

MAHARASHTRA - LNIND 2019 BOM 186

LNIND 2019 BOM 186

GORAKSHYA ARJUN MAHAKAL

VERSUS
THE STATE OF MAHARASHTRA

Equivalent : 2019 SCC OnLine Bom 520

HIGH COURT OF JUDICATURE AT BOMBAY

HON'BLE JUSTICE SMT. SADHANA S. JADHAV
CRIMINAL APPEAL NO.632 OF 2015
13 March 2019

LEGISLATION CITED/REFERRED TO:

Section 376 of Indian Penal Code [Para 2], Section 4 of the Protection of Children from Sexual Offences
Act, 2012 [Para 2], Section 376 of Indian Penal Code [Para 3], Protection of Children from Sexual
Offences Act [Para 3], Section 376 read with 34 of Indian Penal Code[Para 4], Section 164 of Cr.P.C.
[Para 10], Section 313 of Code of Criminal Procedure [Para 15], Section 376 of Indian Penal Code ,
Section 4 of the Protection of Children from Sexual Offences Act, 2012

Mr Arun Rajput, Mr S S Pednekar

JUDGMENT

1 Heard the Counsel.

2 The appellant herein is convicted for the offence punishable under Section 376 of Indian Penal
Code and under , Section 4 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO" Act)
vide judgment and order dated 4 th March 2015 by the Special Judge (POCSO), Kalyan and sentenced to
suffer rigorous imprisonment for seven years and to pay a fine of Rs.3,000/-, in default to suffer rigorous
imprisonment for one year and sentenced to suffer rigorous imprisonment for seven years and to pay a fine
of Rs.2,000/-, in default to suffer rigorous imprisonment for one year respectively. Hence, this appeal.
3 It is the case of the prosecution that on 21 st December 2013, the prosecutrix Ms. "X" lodged a report
at Ambernath Police Station alleging therein that her father is working in Ambernath Municipal Council in
Water Department. When she failed in her 12 th standard examination, she joined Kirti Computer Class at
Ambernath to complete the course of M.S.C.I.T., Tally and D.T.P. She used to attend the class at 1.00 pm.
and the said computer class was at a distance of 1 km. from her house. The present appellant was residing
in the same locality and the prosecutrix and the appellant were friends since more than one year. On some
occasions, the appellant used to drop her to Kirti class on his motorcycle. According to the prosecutrix on 21 st
December 2013, she left the house at about 1.00 pm. to attend her class by foot. When she had reached
Bhendipada, she met her friend i.e. the appellant and asked her to accompany him on his motorcycle. She
obliged him. Then they had visited Teenzadi area. He proposed her. Then they had been to Titwala for having
lunch at Akshay Hotel. At about 2.00 to 2.30 pm., they had checked-in the room of hotel and according to the
prosecutrix, she was ravished by the appellant/accused against her wish. Thereafter he had dropped her in
front of Jaihind Bank. According to the prosecutrix, she returned to her house and disclosed the incident to
her mother and thereafter her parents had taken her to Ambernath Police Station and report was lodged
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against the appellant/accused for the offences punishable under Section 376 of Indian Penal Code , 3(1)
(11) of the Scheduled Casters and Scheduled Tribes (Prevention of Atrocities) Act and 3 and 4 of ,
Protection of Children from Sexual Offences Act.
4 It is pertinent to note that in this case, the hotel owner was shown as an accused and was charged
with the offence punishable under Section 376 read with 34 of Indian Penal Code.
5 The appellant/accused herein was working in the Postal Department as Postman and posted at Kalwa
Post Office, District Thane. Upon completion of investigation, the charge-sheet was filed on 7 th February
2014, the case was committed to the Sessions Court and registered as Sessions Case No. 20 of 2014.
6 The prosecution has examined ten witnesses to bring home the guilt of the accused. The case rests
upon the evidence of prosecutrix i.e. P.W.-1 and her mother, Sou. Malan Yellapa Ghaste, PW-2.. It is
pertinent to note that most of the witnesses are hostile except PW 7, 8, 9 and 10.
7 In this case, it is necessary to ascertain as to whether the statement of the prosecutrix is truthful and
inspires confidence of the Court. The date of birth of the prosecutrix is 23rd October 1997 and the date of
incident is 21st December 2013. It is further noteworthy that the prosecutrix had attained an age of
understanding. She has stated in the F.I.R. that she was a good friend of the appellant/ accused and that he
used to drop her to her class on several occasions. However, the said contention is not reflected in her
deposition and is elicited by way of a suggestion. The prosecutrix has stated before the Court that the timing
of her class was 1.00 pm. to 6.00 pm. At the request of the appellant/accused, she had accompanied him
and they were sitting and chitchatting in Teenzadi area. He had proposed to her. She has also stated that she
was lured under the garb of marriage and was taken to Akshay Lodge. There is an improvement in the
deposition before the court to the extent that she had refused to marry him, whereas in the F.I.R., there is no
reference to her reaction.
8 In the cross-examination, she has admitted that her father is serving in Ambernath Municipal Council
in Water Supply Department. She had admitted that she could not tell the full form of MSCIT, Tally and D.T.P.
She had attended the class regularly from 1 st December 2013 to 29th December 2013. She has feigned
ignorance as far as the profession of the appellant/accused is concerned. It is a matter of record that Kirti
Class is hardly at a distance of 1 km. from her house. She has admitted that she was taken on motorcycle by
the appellant/accused from Chinchpada area, Nalambi Road. She has also admitted that she had not
attended Kirti Class on 21st December 2013. She had reached home at about 6.00 pm.. The
appellant/accused was working as Postman since 2007.
9 PW-2, Malan Yellapa Ghaste is the mother of the prosecutrix. Her mother has further improved the
story and has deposed before the Court that the prosecutrix had disclosed to her that she was threatened by
the appellant that in the eventuality she discloses the incident to her family members, he would cut her and
kidnap her younger sister like her. She has admitted that the appellant belongs to Maratha community. She
has also admitted that the distance between her house and computer class is 1 km. and that sometimes she
used to accompany the victim to leave her at her computer class. She has categorically denied that her
daughter was having any friendship with the appellant/accused. The mother has further stated that she had
not given cellphone to the victim.
10 It is pertinent to note that the records of Akshay Lodge would indicate that the name of the
prosecutrix was stated as Ms. "X" Chavan.. While registering the F.I.R., the prosecutrix has given her
cellphone number "8149985452". It is further pertinent to note that in the course of investigation, the
statement of the prosecutrix was not recorded under Section 164 of Cr.P.C.
11 The accused was arrested on 26 th December 2013 and continues to be in custody since then. In the
course of investigation, call records of cellphone of the appellant/accused was obtained from the service
provider and call records would indicate that at the relevant time the appellant-accused was at Ambernath
and he was not at Titwala as alleged by the prosecutrix. In fact the prosecutrix was in the company of the
appellant from 1.00 pm. to 6.00 pm. i.e. till the time she was dropped home by the appellant/accused. The
medical records would show that the statement of the prosecutrix was recorded by PW-9 and the history as
alleged by the prosecutrix was that there was alleged sexual assault by known person.
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12 Upon perusal of records and proceedings, it is seen that Kirti Class had maintained the attendance
register, which would show that the prosecutrix had not attended the class on 21 st December 2013 i.e. after
registration of F.I.R. The hotel records would show that they were in the lodge from 1.55 pm. to 5.20 pm.
13 Upon perusal of records and the statements of the witnesses, it is more than clear that the appellant
and the prosecutrix were in love and the said relationship was not approved by the family, which led to
registration of the F.I.R. in the present case.
There are deliberate omissions and contradictions in the depositions of PW-1 and 2, which is clearly
indicate that there is suppression of genesis of the incident. The evidence of the prosecutrix does not inspire
confidence. Several witnesses have turned hostile. The witness may lie, but the circumstances will not lie.
14 In the first information report, the prosecutrix has categorically stated that on 20 th December 2013,
when the appellant had come to drop her at her class, he expressed his plan to go out of Ambernath on the
next day i.e. on 21st December 2013. It therefore cannot be believed that she had missed the class and had
met the appellant/accused in the course of the day. According to PW-2, the prosecutrix had returned home at
about 6.00 pm.
15 The papers of investigation would indicate that the appellant was in love with the prosecutrix and the
relationship was opposed by the parents of the prosecutrix and that has led to initiation of criminal
prosecution. The fact that the prosecutrix had voluntarily missed the classes and decided to accompany him
would be sufficient to indicate that she was not forced to accompany the appellant. They had spent sometime
in Teenzadi area. The prosecutrix was carrying a cellphone with her. The appellant seemed to be so
frustrated with the criminal prosecution that he made no efforts even to defend himself. In his statement
under Section 313 of Code of Criminal Procedure , he has only stated that he does not wish to speak about
the incident. The papers of investigation would further indicate that the appellant felt betrayed by the
prosecutrix. That it was a love affair between two youngsters, which had landed in criminal prosecution of an
young boy.
16 Learned APP has assisted the Court and has stated that the distance between the tower location of
Ambernath and Titwala would be about 52 kms. Perusal of the papers of investigation would clearly indicate
that the story put up by the prosecution in all probabilities would not be true. It is, in these circumstances that
the appeal deserves to be allowed. Hence, the following order:
ORDER

1I).  The appeal is allowed and disposed of.

1II).  The conviction of the appellant-Gorakshya Arjun Mahakal for the offence
punishable under Section 376 of Indian Penal Code and under , Section 4 of the Protection
of Children from Sexual Offences Act, 2012 awarded vide judgment and order dated 4th
March 2015 by the Special Judge (POCSO), Kalyan is hereby quashed and set aside.
1III).  The appellant-Gorakshya Arjun Mahakal is acquitted of all the charges levelled
against him.
1IV).  The appellant-Gorakshya Arjun Mahakal be released forthwith, if not required in
any other offences.
1V).  Fine amount, if paid, be refunded to the appellant-
accused.