Saturday, 29 December 2018

Whether prosecution can disown its own witness without declaring her hostile?

 PW 16 is an employee of the Municial Council, Chandrapur
and her evidence considering her duty is very important. Admittedly, she
is Incharge of birth and death register. Therefore, her evidence regarding
taking of the birth entry and its being maintained at her office would
have great significance in this case. She had brought abstract of birth
and death register's relevant page. This page is at Exh.145.
At Sr.No.13
at Exh.145,
there is an entry regarding birth of one female on 1.10.1994
with accused No.7 and 8 having been shown as father and mother.

Name of the child is not mentioned therein and the relevant column has
been left blank. No reason has been given by this witness for leaving
blank the column of name of the new born, though we do not find
anything amiss in it as it would be too naive to expect that any parents
would assign a name to an infant immediately on birth and without
completing customary rituals, which have a customary day fixed to
follow. Nevertheless, she has deposed about making of corrections later
on at the behest of accused Nos.7 and 8. There is no dispute about the
fact that these corrections were sought and granted by the Municipal
Council, Chandrapur after registration of crime against the accused
persons in the present case. By these corrections the name of the child
i.e. victim came to be entered in the birth register and also in the birth
certificate issued by the Municipal Council, Chandrapur. Along with the
name of the victim the nick name “Mondi” of accused No.8, has also
been inserted in this document. This was done, according to evidence of
PW 16 Vasanti, by following the due procedure of law in the sense that
proper verification on the basis of such documents as PAN Card, Aadhar
Card, Ration Card, and affidavit was carried out and the claim made by
the parents of the child was found to be correct. Now, the question
would arise as to whether or not any reliance could be placed upon
evidence of this witness and the document that has been proved by the
prosecution through her evidence.

13. The question has been answered by the learned Sessions
Judge in a negative manner. She has rejected the evidence of PW 16 on
the ground that all these corrections were made after the offences in the
present case came to be registered. We find that the ground taken by the
learned Special Judge for discrediting PW 16, Vasanti, is not borne out
from the record and also agitates against the own case of the
prosecution.
14. If we take a careful look at the evidence of PW 16 Vasanti,
we would find that this witness was examined as a prosecution witness
and we do not know as to what made the prosecution examine this
witness as it's own witness, at least this is what appears from the
recorded deposition. After having examined its own witness and after
having not declared the witness with the permission of the Court as
hostile to the prosecution, it is not permissible under the law for the
prosecution to disown its own witness. It is also not permissible in law
for the Court to say that the witness of the prosecution having gone
against the prosecution cannot be believed when the Court has not found
any element of hostility in such a witness. The prosecution has also not
brought on record through the evidence of this witness that the correct
date of birth was either 15.5.1999 or 15.3.1999 and the date of birth
shown in Municipal Council record as 1.10.1994 to be incorrect. No
suggestion in this regard appears to have been given to PW 16 by the

learned A.P.P. Rather, she has been examined as a prosecution witness in
such a manner as to create an impression that the prosecution desired
more strongly to prove the date of birth of the victim to be 1.10.1994
than anything else. There is absolutely nothing in the entire evidence of
PW 16 to find that this witness has spoken some falsehood on oath
before the Court.
15. If such is the impression which one gets logically on reading
the evidence of PW 16 Vasanti, we doubt, if such a witness could be
declared as untrustworthy just because she has stated a different date of
birth of the victim which was not in accordance with the expectations of
the Court. However, this is how the evidence of PW 16 has been
appreciated by the learned Special Judge and we find, with due respect
to the learned judge, that the inference drawn by her cannot arise
logically on assessment of the evidence of PW 16 Vasanti. We are also of
the opinion that there is nothing in her evidence to doubt what she has
stated about the date of birth of the victim and taking of entry (Exh.145)
in the birth register showing the date of birth of the victim to be
1.10.1994. Accordingly, we find her evidence and Exh.145
as reliable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL No.740 OF 2018

 Vimalbai Manohar Doballiwar  Vs The State of Maharashtra,



CORAM
: S.B. SHUKRE AND
S.M. MODAK, JJ.
DATE : 19 th DECEMBER, 2018.
ORAL JUDGMENT : (Per : S.B. Shukre, J.)

1. These appeals are being disposed of by common judgment as
they arise out of the same judgment and order dated 30th May, 2018
rendered by the learned Special Judge, Chandrapur in Special POCSO
Case No.62/2015.
2. For the sake of convenience, the parties to the appeal i.e.
appellants and respondent shall now be referred to as the accused in the
same order as they are arraigned in the criminal trial held against them
and the respondent respectively.
3. Facts of the case stated in brief are as under :
The accused No.1 Rameshwarlal Hemram Jat (Choudhary) is
the person with whom marriage of victim, alleged to be child at the time
of her marriage, has been performed with the aid and instigation of the
remaining accused, i.e. accused No.2 to 8.

It has been alleged that at the time of marriage, which was
solemnized on 8.4.2015, the victim was aged about 15 years and
studying in 9th standard in an Ashram Shala, situated Kawathala, Tq.
Korpana, District Chandrapur, while her parents i.e. accused Nos.7 and 8,
resided at Chandrapur. They earned their livelihood by dint of their
labour work. The accused No.7 finding it difficult to make both ends
meet, thought that her burden would be lessoned if her daughter, victim
of crime, was married off as she had already, in their opinion, come of
age. With this aim in mind, she used to broach the subject of marriage
with the victim but the victim used to stoically refuse the proposal saying
that she was more interested in her studies. It appears that accused
No.8, father of victim, was initially on the side of the victim, but later on,
perhaps on the influence of his wife, had changed his mind and also
accepted the proposal of his wife.
As the days passed by, an opportunity for fulfilling the wish
of the parents presented itself to accused Nos.7 and 8. Accused No.2, a
neighbour of accused Nos.7 and 8 informed the parents of the victim that
one eligible boy having good financial background was available and
with the consent of the boy and the girl their marriage could be
performed. In order to take this proposal forward some negotiations
were held and ultimately, the marriage of the victim was solemnized
with the accused No.1 who was then aged about 29 years. According to

the victim, this was against her consent, but she had no other alternative
than to bow before the wishes of her parents. However, her dislike
towards the accused No.1 and her displeasure with the remaining
accused continued. Soon after the marriage, accused No.1 consummated
the relationship and started living with the victim as her own husband.
There was hardly anything which the victim could do to resist the
accused No.1 and his advances towards her. The physical relationship
between the two thus went on unrestricted. However, within her mind,
the victim had always wanted to play rebel. Meanwhile, the accused
No.1 had also taken the victim to his native place in Rajasthan and there
also, both of them lived as husband and wife. While in Rajasthan, the
victim stole an opportunity of running away from the house of accused
No.1 on the pretext of celebrating her birthday at her parental house.
The victim returned to Chandrapur and without losing time
registered F.I.R. against her parents, accused No.1 and all those including
her neighbours, who were involved in solemnizing her marriage with
accused No.1 without her consent. Offences punishable under Section
376 Indian Penal Code (in short, “I.P.C.”), Section 4 read with Section 3
of the Protection of Children from sexual Offences Act, 2012 and Section
9 and 10 of the Prohibition of Child Marriage Act, 2006 were registered
against all these persons and investigation was carried out. These
accused persons were ultimately chargesheeted
by Police in the Special

Court constituted under the provisions of the Protection of Children from
Sexual Offences Act, 2012 (in short, “PoCSO Act, 2012”). They were
prosecuted for offences punishable under Section 376(2)(n) I.P.C.,
Section 4 read with Section 3 of the PoCSO Act, 2012, Sections 9 & 10 of
the Prohibition of Child Marriage Act, 2006 and Section 3(1)(xii) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 (in short, “Atrocities Act, 1989”). On merits of the case, learned
Sessions Judge found that offences punishable under Section 376(2)(n)
I.P.C., Section 4 read with Section 3 of PoCSO Act, 2012, Section 9 of
the Prohibition of Child Marriage Act, 2006 and Section 3(1)(xii) of the
Atrocities Act, 1989 were proved as against accused No.1. Learned
Sessions Judge further found that an offence under Section 376(2)(n)
I.P.C. and also an offence punishable under Section 10 of the Prohibition
of Child Marriage Act, 2006 were proved against the accused Nos.2 to 8.
Having recorded such findings of guilt as against accused
No.1 and the remaining accused persons, by the judgment and order
dated 30th May, 2018, the learned Special Judge of PoCSO Court
convicted all the accused persons and awarded them different sentences
ranging from rigorous imprisonment for life for remainder of natural life
of accused No.1 to 14 years, 5 years, 2 years together with separate
sentences of fine and default sentences. Being aggrieved by the same
these accused persons are before this Court in this bunch of appeals.

4. We have heard Shri Mahesh Rai, learned counsel for accused
Nos.1, 3 and 6, Shri A.A. Dhawas, learned counsel for accused No.2,4,5,7
& 8 and Shri N.B. Jawade, learned Additional Public Prosecutor for the
respondent/State. We have carefully gone through the record of the case
including the impugned judgment and order.
5. In this case, the prosecution has examined as many as 16
witnesses and also adduced in evidence some documents in order to
prove the age of the prosecutrix as below 18 years.
6. The PoCSO Act, 2012 is a special Statute enacted in the year
2012 with a view to protect the children from offences of sexual assault,
sexual harassment and so on and so forth and also provide a separate
mechanism for trial of the offences against these children. It defines a
child to be a person below the age of 18 years. In the present case, the
accused No.1 has also been charged with offences punishable under
Sections 4 and 12 read with Section 3 of the PoCSO Act, 2012 and,
therefore, definition of the child as given in the PoCSO Act, 2012 would
be relevant. At the same time, the remaining accused have also been
charged not under the PoCSO Act, 2012, but for an offence punishable
under Section 376(2)(n) I.P.C. Additionally, accused No.1 has been
charged for offences punishable under Sections 9 and 10 of the
Prohibition of Child Marriage Act, 2006 and remaining accused are
charged for an offence punishable under Sections 10 of the Prohibition

of Child Marriage Act, 2006 in which the same definition of the child as
has been given in the PoCSO Act, 2012 has been prescribed.
7. It is the contention of the learned counsel for the accused
persons that in the present case the age of the victim has not been proved
in any manner by the prosecution and according to them, the victim was
well above the age of 18 years at the time of marriage and there being no
dispute about solemnization of the marriage with accused No.1, the
whole edifice of the case has crumbled and, therefore, all the accused
persons are entitled to be declared innocent in the present case. This is
however, strongly disagreed to by the learned A.P.P., who submits that
even though there are at least two dates of birth which have appeared on
record from the evidence of the victim (PW 2), it becomes quite clear
that at the time of the incident she was about 15 years, 11 months and
23 days old and therefore, no interference with the impugned judgment
and order is warranted.
8. Considering the fact that the main issue involved in this
petition is that of the age of the prosecutrix/victim and also the settled
law that no conviction under PoCSO Act, 2012 can be sustained unless
the prosecution discharges it's burden to prove that victim was a “child”
on the date of incident as held in the case of Ravi Anandrao Gurpude
vs. State of Maharashtra, reported in 2017 All MR (Cri) 1509) it would
be useful for us to first consider the evidence of the prosecution on this

aspect of the matter.
9. The victim (PW 2) has stated her date of birth to be
15.3.1999 and the date of incident to be 8.4.2015. As regards the date of
incident, there is no dispute but, about the date of birth there is indeed a
dispute. The date of birth so stated by the victim has been seriously
disputed by the accused persons. This could be seen from a specific
suggestion given to her during the course of the crossexamination.
According to this suggestion, the accused persons suggested that date of
birth of the victim was 1.10.1994. Of course, the suggestion has been
denied by the prosecution. But, the fact remains that the date of birth as
stated by the victim has not been accepted as it is by the accused persons.
Therefore, it has become necessary for the prosecution to discharge its
burden regarding proving of date of birth and resultantly the age of the
victim at the time of the incident beyond reasonable doubt.
10. It is seen from the evidence available on record that the
burden has been sought to be discharged by the prosecution through the
documents adduced in evidence and testimonies of PW 9 Sudhakar, the
Headmaster of Ashram Shala, Kawathala, PW 16 Vasanti Bahadure, the
employee of the Chandrapur Municipal Council and Incharge of birth and
death register and PW 6 Dr. Ritesh Rane, Medical Officer, General
Hospital, Chandrapur who had examined the Xray
report taken out as a
part of ossification test of the victim.

11. PW 9 has deposed that the date of birth of the prosecutrix
was not 15.3.1999, but was 15.5.1999. He has stated that an entry in
this regard has been taken by him in the school register, but he admits
that the basis of this entry was not the birth certificate of the victim, but
a certificate issued by a Ward Member of Muncipal Council, Chandrapur.
With this admission, the birth entry taken by PW 9 in the school register
has been rendered baseless and, therefore, as not admissible in evidence.
For the same reason, the school leaving certificate (Exh.89)
which
records the date of birth of the victim as 15.5.1999 can also not be relied
upon. The evidence of this witness on the aspect of age of the victim at
the time of the incident deserves to be rejected as not worthy of credit
though, it appears to us that it has been accepted as reliable, without
considering the vital admission given by this witness and quite
erroneously by the learned Special Judge.
12. PW 16 is an employee of the Municial Council, Chandrapur
and her evidence considering her duty is very important. Admittedly, she
is Incharge of birth and death register. Therefore, her evidence regarding
taking of the birth entry and its being maintained at her office would
have great significance in this case. She had brought abstract of birth
and death register's relevant page. This page is at Exh.145.
At Sr.No.13
at Exh.145,
there is an entry regarding birth of one female on 1.10.1994
with accused No.7 and 8 having been shown as father and mother.

Name of the child is not mentioned therein and the relevant column has
been left blank. No reason has been given by this witness for leaving
blank the column of name of the new born, though we do not find
anything amiss in it as it would be too naive to expect that any parents
would assign a name to an infant immediately on birth and without
completing customary rituals, which have a customary day fixed to
follow. Nevertheless, she has deposed about making of corrections later
on at the behest of accused Nos.7 and 8. There is no dispute about the
fact that these corrections were sought and granted by the Municipal
Council, Chandrapur after registration of crime against the accused
persons in the present case. By these corrections the name of the child
i.e. victim came to be entered in the birth register and also in the birth
certificate issued by the Municipal Council, Chandrapur. Along with the
name of the victim the nick name “Mondi” of accused No.8, has also
been inserted in this document. This was done, according to evidence of
PW 16 Vasanti, by following the due procedure of law in the sense that
proper verification on the basis of such documents as PAN Card, Aadhar
Card, Ration Card, and affidavit was carried out and the claim made by
the parents of the child was found to be correct. Now, the question
would arise as to whether or not any reliance could be placed upon
evidence of this witness and the document that has been proved by the
prosecution through her evidence.

13. The question has been answered by the learned Sessions
Judge in a negative manner. She has rejected the evidence of PW 16 on
the ground that all these corrections were made after the offences in the
present case came to be registered. We find that the ground taken by the
learned Special Judge for discrediting PW 16, Vasanti, is not borne out
from the record and also agitates against the own case of the
prosecution.
14. If we take a careful look at the evidence of PW 16 Vasanti,
we would find that this witness was examined as a prosecution witness
and we do not know as to what made the prosecution examine this
witness as it's own witness, at least this is what appears from the
recorded deposition. After having examined its own witness and after
having not declared the witness with the permission of the Court as
hostile to the prosecution, it is not permissible under the law for the
prosecution to disown its own witness. It is also not permissible in law
for the Court to say that the witness of the prosecution having gone
against the prosecution cannot be believed when the Court has not found
any element of hostility in such a witness. The prosecution has also not
brought on record through the evidence of this witness that the correct
date of birth was either 15.5.1999 or 15.3.1999 and the date of birth
shown in Municipal Council record as 1.10.1994 to be incorrect. No
suggestion in this regard appears to have been given to PW 16 by the

learned A.P.P. Rather, she has been examined as a prosecution witness in
such a manner as to create an impression that the prosecution desired
more strongly to prove the date of birth of the victim to be 1.10.1994
than anything else. There is absolutely nothing in the entire evidence of
PW 16 to find that this witness has spoken some falsehood on oath
before the Court.
15. If such is the impression which one gets logically on reading
the evidence of PW 16 Vasanti, we doubt, if such a witness could be
declared as untrustworthy just because she has stated a different date of
birth of the victim which was not in accordance with the expectations of
the Court. However, this is how the evidence of PW 16 has been
appreciated by the learned Special Judge and we find, with due respect
to the learned judge, that the inference drawn by her cannot arise
logically on assessment of the evidence of PW 16 Vasanti. We are also of
the opinion that there is nothing in her evidence to doubt what she has
stated about the date of birth of the victim and taking of entry (Exh.145)
in the birth register showing the date of birth of the victim to be
1.10.1994. Accordingly, we find her evidence and Exh.145
as reliable.
16. Now, the position is that the date of birth of the victim has
been proved to be of 1.10.1994 and so we see no difficulty to find that on
the date of incident, that is 8.4.2015, the victim had completed her 20
years of age and thus was not a child as defined under the provisions of

the PoCSO Act, 2012 as well as the Prohibition of Child Marriage Act.
The evidence of PW 16 having been found to be reliable and directly
proving the date of birth of the victim, we see no reason to consider the
result of the ossification test as opined by PW 6 Ritesh Rane. The
ossification test would come into picture only when the documentary and
other evidence brought on record by the prosecution does not
convincingly or beyond reasonable doubt establish the age of the victim,
wherever it is relevant. In this regard, we rely upon the law settled by
Hon'ble Apex Court in the cases of i) Mahadeo s/o. Kerba Maske vs.
State of Maharashtra, reported in (2013)14 SCC 637 and ii) State of
Madhya Pradesh vs. Anoop Singh, reported in (2015)7 SCC 773 That
being not the case here, we do not think it necessary to consider the
evidence of PW 6 Dr. Ritesh.
17. Even otherwise, Dr. Ritesh has opined that according to him,
the ossification test result shows the victim to be not less than 15 years of
age and not more than 16 years of age with margin of error on both sides
to be of 2 to 3 years. If such evidence is taken as reliable, the inference
regarding age of the victim would not be any substantially different from
what we have concluded in the previous paragraph. This way, the
evidence of PW 6 Dr. Ritesh, we would say, supports the case of the
defence that at the time of incident, the victim was not a child but a girl
who had attained majority having crossed 18 years of age.

18. With these conclusions we find that whole basis of the
prosecution case has met the dust and that would obviate the need for us
to consider other evidence. Then what would follow would be the
admitted fact which shows that the victim, a major girl, was given away
in marriage by her parents, to accused No.1 with whom the girl
cohabited as his wife. PW 2, the victim of crime, has given several
admissions which indicate that while she was cohabiting with accused
No.1, she really did not object to all that the accused No.1 did to her and
that she also did not raise any protest when various post marriage rituals
were performed at different places including those in Rajasthan during
which several villagers were invited and had participated. Such conduct
of the prosecutrx would only bolster up our conclusion that the victim
was a girl of majority at the time of the incident and this would give rise
to another inference that the marriage could not have been performed
without active or passive consent of the victim. It is a different matter
that the victim changed her mind later on perhaps due to the admitted
fact that since before her marriage, she was already engaged in a love
affair with another boy. So, the offences relating to rape and child
marriage with which the accused are charged herein stand not proved.
19. Accused No.1 has also been convicted for an offence
punishable under Section 3(1)(xii) of the Atrocities Act, 1989. However,
we do not see even an ioto of evidence to prove guilt of the accused for

this offence. There is no caste validity certificate adduced in evidence by
the prosecution. There is not even a whisper on the part of any of the
prosecution witnesses that the accused being in dominating position over
the victim, used that position to sexually exploit the victim on the ground
of family members particular caste. We find that even this offence has
not been proved by the prosecution.
20. It is seen from the impugned judgment that all the aspects as
pointed out above have not been considered in any manner by the
learned Special Judge and, therefore, the result is of erroneous
conclusion regarding establishing guilt of all the accused persons for the
offences with which they have been charged in the present case.
Accordingly we find that the prosecution has failed to establish beyond
reasonable doubt all the offences with which the accused persons have
been charged in the present case and it follows that all the accused
persons deserve to be acquitted of the same by interfering with the
impugned judgment and order.
21. The appeals are allowed.
22. The impugned judgment and orders are quashed and set
aside.
23. The accused No.1 is acquitted of 376(2)(n) of the Indian
Penal Code and also under Section 3 and 4 of Protection of Children
from sexual Offences Act, 2012, Section 9 of the Prohibition of Child

Marriage Act, 2006 and Section 3(1)(xii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and remaining
accused Nos.2 to 8 are acquitted of offences under Section 376(2)(n) of
the Indian Penal Code and Section 10 of the Prohibition of Child
Marriage Act, 2006.
24. If the fine amounts have been paid, they be refunded to the
accused persons.
25. The accused Nos Nos.1,4,7 and 8 are in jail. They be
released forthwith, if not required in any other crime.
26. The bail bonds of the remaining accused persons stand
discharged.
27. The Muddemal property being useless be destroyed in
accordance with law.
JUDGE JUDGE

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