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RECEIVED ON : 22/11/2016
REGISTERED ON : 22/11/2016
DECIDED ON : 15/09/2022
DURATION Y M D
EXHIBIT
IN THE COURT OF ADDITIONAL SESSIONS JUDGE & SPECIAL
JUDGE (POCSO), THANE
AT : THANE
(PRESIDED OVER BY MRS.V.V.VIRKAR)
SPECIAL CASE (POCSO) No.298/2016
The State of Maharashtra ..Complainant.
V/s.
Sarang Dilip Thakur,
Age 37 years, R/at Building No.4,
Flat No.1205, Sindhachal Phase8,
Pokharan Road No.2, Near Hanuman
mandir, Vasant Vihar, Thane(W). ..Accused.
Offences punishable under section 354 of the
Indian Penal Code and section 8 of the
Protection of Children from Sexual Offences
Act, 2012.
Mrs.Rekha Hiwrale, Special PP for State.
Mr.Jitendra Thakur / Ms.Snehalata Kolte / Ms.
Sushma Mishra Advocate for accused.
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O R A L J U D G M E N T
(Dictated and Delivered in open Court on 15/09/2022)
2. Since the prosecutrix in the matter is stated to be minor
girl, aged about 17 years on the date of the incident and stated to be
child within the definition of the POCSO Act, with a view to protect the
identity of the minor girl and in consonance with the provisions of
section 228A of the Indian Penal Code, the material particulars
regarding full name, address, etc. of the girl are not mentioned and the
victim girl is referred to as prosecutrix hereinafter in the judgment.
3. In short, facts giving rise to the prosecution case are that,
the prosecutrix had been staying with her parents and siblings and her
father was working as mason and she herself and her mother used to go
to different house to work as maid servant. It is also further case of the
prosecution that since about a month prior to lodging th complaint, the
prosecutrix was working as a maid servant in the house of accused
Sarang Thakur. She used to go to the house of accused for doing the
work between 7.30 a.m. to 11.30 a.m. and also in the evening from
6.00 p.m. to 8.00 p.m. It was also further case of the prosecution that
after about 15 days of her job started when she was cooking in the
kitchen, accused had been there and caught hold of her hand, however,
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she escaped, got released her hand and came out. His parents were
there outside but she was scared and did not reveal the incident. It was
also further case of the prosecution that thereafter, the accused
repeatedly used to catch hold of hand of the prosecutrix and pull her
Odhani and she used to escape and accused used to threaten her that if
she tells about it to anybody, he will make any type of allegation against
her. In spite of that, she told about the incident to her mother and her
mother asked her to leave the job and, therefore, on 11/12/2014 the
prosecutrix took her salary and left the job. It was also further case that
thereafter on 21/12/2014 in the night at about 8.00 p.m. when the
prosecutrix had been to Dharmaveer gate for having Vadapav accused
had been there and threatened her that if she do not come for the job,
he would make any allegations against her and therefore, on
22/12/2014 she went to the police station and lodged complaint.
5. Accused appeared before the Court. Charge as per Exhibit
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5 for the offences punishable under section 354 of the I.P.C. and
sections 8 of the POCSO Act was framed against the accused. The
contents of the charge were read over and explained to the accused in
vernacular. He pleaded not guilty. The defence of the accused as it
revealed from crossexamination of the witnesses and the statement of
the accused under section 313 of Cr. P.C. was of total denial and was
that the prosecutrix had committed theft of two mangalsutra and one
Zumka and she was questioned regarding that and a complaint was
lodged by the brother of the accused and as counter blast, the complaint
with false allegations came to be lodged. He claimed to be tried.
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9. As against this it was argued on behalf of the accused that
the age of the prosecutrix is not proved. It was also argued that there is
delay in lodging F.I.R. and the delay is not explained by the prosecutrix.
It was pointed out that in the complaint itself it is mentioned that
accused had threatened her not to tell about it to anybody and still she
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disclosed the incident to her mother and, therefore, she alleged to left
the job and after leaving the job there was no reason for her not to go to
lodge complaint. It was argued that if it was so that such instances had
taken placed repeatedly, the prosecutrix would not have waited and
would have definitely taken appropriate action. It was pointed out that
it is there on record that a theft was committed in the house of accused
and the prosecutrix was suspected in that regard and for that purpose
the meeting was held and when no solution could be arrived at, the
brother of the accused went to lodge the complaint and at the same
time as a counterblast complaint with such allegation against the
accused was lodged by the proscutrix and only because of such a serious
allegation, the complaint of the complainant came to be recorded first
though both the accused, his brother and the prosecutrix had been to
the police station at the same time. It was pointed that the testimony of
the prosecutrix was shattered and shaken and she suppressed the
material fact that meeting was held and that makes her testimony
unreliable and untruthful. It was argued that in such circumstances, the
whole testimony of the prosecutrix is not believable unless it is
corroborated. It was argued that from the crossexamination of the
prosecutrix, it is clear that many members are there in the family and
that the kitchen was visible from the hall where the grandfather of the
accused used to be always sitting and it is improbable that such instance
would take place and that would not be noticed by anybody in the
house. It was argued that entire theory put forth by the prosecutrix is
concocted with a view to escape from the responsibility of any action
against her in regard to the theft and the allegations the against the
accused are not proved beyond reasonable doubt. It was also argued
that presumption under section 29 of POCSO Act is rebuttable and
accused has brought on record sufficient material to rebut the said
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presumption. It was, therefore, argued that offences charged against the
accused are not proved and accused is, therefore, entitled to acquittal.
10. Heavy reliance was placed by both by Special P.P for the
prosecution as well as learned advocate for the accused on various
rulings. I will deal and discuss the rulings at an appropriate stage.
11. On the basis of above facts, the points which arose for my
determination and my reasons and findings on the same are as under :
POINTS FINDINGS
1. Whether the prosecution proves that at the time of In the
incident, the prosecutrix was a minor and child as affirmative.
per definition of the child under the POCSO Act ?
5. What order ? As per final
order.
R E A S O N S
AS TO POINT NO.1:
12. As is clear, since the accused is charged for the offences
under the POCSO Act, the aspect as to what was the age of the
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13. For establishing the fact that the prosecutrix was below 18
years of age, the prosecution relied upon the birth certificate of the
prosecutrix issued by Birth and Death Register, Municipal Corporation,
Thane as per Exhibit16 is and it is a public document and has to be
taken into consideration and no need of any further evidence in that
regard is there. The prosecutrix stated in her evidence that at the time
of incident she was 17 years old and Exhibit16 is her birth certificate
which was submitted by her to police. Her such version do not appear
to have been challenged or disputed on behalf of the accused. Even as is
clear the date of birth of the prosecutrix as per the said certificate is
15/4/1998 while date of registration of the birth is 30/4/1998 and,
therefore, there appear no scope for any doubt about the correctness of
birth date as recorded in the Birth and Death register. Nothing contrary
to the public record is brought on record in that regard and, therefore,
it has to be concluded that the date of birth of the prosecutrix is
15/4/1998 and it is correctly recorded.
14. Then, if calculated on the basis of said date of birth, the age
of the prosecutrix in or around the period of incident in November,
2014 to December, 2014 comes to about 16 years 7 months, which is
below 18 years and, therefore, it has to be held as established that the
prosecutrix was minor below 18 years of age and a child as defined
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AS TO POINT NOS. 2 & 3 :
15. Both the points are interconnected and are to be decided
on the basis of the same evidence, I, therefore, take up both point Nos.2
& 3 for determination and discussion together.
16. As it clear, as per the prosecution case during the period
from 10/11/2014 to 21/12/2014, the accused used criminal force and
committed sexual assault on the prosecutrix by catching hold of her
hand and pulling her Odhani while she was doing work in the kitchen
of the house of accused.
17. Before discussing the evidence in regard to the incident or
allegations against accused, it would be desirable and proper to
mention some facts which are clear that, the prosecutrix was working
as a maid servant for doing household work and cooking in the house of
accused since about one month of the incident and she used to go for
her work in the morning at 7.30 a.m. to 11.30 a.m. and in the evening
from 6.00 a.m. to 8.00 p.m. everyday. It is also clear and not in dispute
that after taking salary of one month, the prosecutrix had left the job. It
is also clear that the complaint against the accused was lodged on
22/12/2014 and the fact is also clear that on the same day the
complaint with the allegation that the prosecutrix had committed theft
in the house of the accused was lodged by the brother of the accused
and as per the prosecution case, the accused committed the act of
molestation and sexual harassment with the prosecutrix and because of
the threats, she did not lodge the complaint while as per the defence
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put forth by the accused, the prosecutrix committee the theft in the
house of accused and only with a view to avoid action, the prosecutrix
lodged complaint with false allegations, etc.
18. Keeping in mind above, the evidence brought on record is
required to be scrutinized so as to ascertain as to whether the
allegations against the accused are proved beyond all reasonable doubt.
So far as the actual happening of the incident, the testimony of the
prosecutrix herself appear to be material and important and there is no
eye witness to the incident. A careful perusal of the evidence of the
prosecutrix reveal that she deposed in the line of her complaint
verbatim. She stated that when she was working in the kitchen and
doing the work of making chappatis, the accused used to come there,
pull her Odhani and caught hold of her hand and she used to come out
of the kitchen and she also stated that she was scared and, therefore,
did not tell aout it to anybody and that used to happen oftenly for about
15 days and he used to say that if she tells about it to anybody, he
would make any type of allegations against her. She also appear to have
stated that she told about the said incident to her mother and her
mother asked her to leave the job and, therefore, after taking salary of
one month, she left the job.
19. It is thus clear that as per the version of the prosecutrix, the
alleged incident of accused catching hold of her hand and pulling her
Odhani took place for about 15 days oftenly and thereafter, when she
told about it to her mother and then her mother asked her to leave the
job and she left the job. She further stated that her statement was
recorded before the Magistrate and as is clear, her version is fully
corroborated by her statement before the Magistrate.
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20. No doubt, as has been `argued on behalf of the prosecution
that the sole testimony of the prosecutrix is sufficient to conclude that
regarding the guilt of the accused and there is no necessity for any
corroboration. Even in the ruling cited on behalf of the prosecution in
the case of Rajendra Bhima Asudeo V/s. The State of Maharashtra
reported in 2019 All MR (Cri) 520 though it is observed that the sole
testimonyof the prosecutrix is sufficient to convict the accused. But then
a careful perusal of the said ruling reveal that it is also observed therein
that the testimony of the prosecutrix which is consistent, cogent and
reliable can be the basis for conviction of the accused and no necessity
of corroboration is there. Therefore, in the present case, it is required to
be seen as to whether the testimony of the prosecutrix is reliable,
consistent and inspire confidence in the mind.
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on advice of her mother only, she left the job on 11/12/2014. But still
she do not appear to have taken any action in regard to the alleged
incident. Therefore, the reason put forth by her that because of such
threats, she did not lodge complaint, etc. is not sustainable and there is
substance in the submission on behalf of the accused that the delay in
lodging the F.I.R. was not explained by the prosecution.
23. It is material to mention that in her crossexamination, it is
brought on record that on the day when the complaint was lodged in
the morning, she herself, her mother and Kavita moushi, who gave her
the job in the house of accused had been to the house of Satrick uncle
and there was a meeting. In the light of that, if the defence put forth by
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the accused that the prosecutrix had committed theft of ornaments from
the house of accused and, therefore, the said meeting was held in the
presence of all, including Kavita Moushi who got the job to the
prosecutrix in the house of accused to resolve the said issue of theft is
taken into consideration, it is material to mention that the prosecutrix
in her crossexamination denied the suggestion that the said meeting
was held to resolve the said issue. But the fact cannot be overlooked or
ignored that she accepted that on the same day the brother of the
accused had lodged complaint with Vartaknagar police station alleging
that the prosecutrix had stolen ornaments from their house when she
was working.
24. It was tried to be argued on behalf of the prosecution that
the meeting was held to resolve the issue regarding the allegations
against the accused and thereafter the complaint came to be lodged,
etc. is concerned, that has not been the case put forth by the prosecutrix
in her crossexamination, when the question regarding the said meeting
was asked to her. It is also material to mention that if at all it was so
that said meeting was held in regard to the allegations against the
accused, that would have been definitely mentioned by the prosecutrix
in her complaint. But no such mention is there about such meeting was
held at the house of social worker in presence of all, including person
who gave the job as maid to the prosecutrix in the house of accused.
Even in her examinationinchief, she did not tell about it. Had it been a
real fact that the said meeting was held for the purpose of resolving the
issue regarding the allegations against the accused, that was the most
crucial and important fact in that regard and having not mentioned so,
there appear some substance in the submission on behalf of the accused
that the meeting held was in regard to the theft alleged to have been
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committed in the house of the accused and for that purpose only even
Savita moushi who gave the job to the prosecutrix in the house of
accused was also called, etc. appear to have some substance and worth
considering. Even there appear some substance in the submission on
behalf of the accused that possibility of the prosecutrix mentioning
about the alleged incident of 21/12/2014 in the night that when she
had been to have vadapav at Dharamveer gate, the accused came and
threatened her, etc. as narrated by the prosecutrix assumes much
importance. Then, in the light of that fact that no independent witness
is there and the prosecutrix did not mention about the meeting which
was held in the morning. That creates strong suspicion abut the very
happening of the said incident at that time.
25. Even it is clear and accepted position that the complaint in
the present case was lodged on 22/12/2014 and on the same day, the
bother of the accused lodged complaint against the prosecutrix
regarding theft of ornaments in the house by the prosecutrix. The
accused produced on record the copy of the F.I.R. in the said crime. It is
argued on behalf of the prosecution in that regard that the complaint
lodged by the prosecutrix is first in time and, therefore, it cannot be
said that as a counterblast the prosecutrix lodged the complaint, etc.
In that regard, if the F.I.R. in both the cases are perused, it is clear that
the F.I.R. in the present case is registered on 22/12/2014 around 22.05
hours as per C.R. No.574/2014 while F.I.R. against the prosecutrix is
registered on 22/12/2014 at 22.10 hours after five minutes of
registration of F.I.R. in 574/2014. That makes it clear that both the
prosecutrix as well as the complainant in the other offence i.e. the
brother of the accused had been to police station on the same day and
the chronologically the F.I.R. of the complainant in this case was
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registered first in time while the complaint of the brother of the accused
was recorded subsequent to that within five minutes difference and,
therefore, the submission on behalf of the prosecution that first
complaint was lodged by the prosecutrix and, therefore, it cannot be
said that it was as counterblast, etc. is not sustainable. On the contrary,
there appear some substance in the submission on behalf of the accused
that because the complainant in the present case was regarding a minor
girl and since the allegation was under POCSO Act, etc., though both
the parties had been to police station on the same day and around the
same time, the F.I.R. of the complainant was registered first in time and
F.I.R. against the complainant/prosecutrix was registered subsequently.
In any case, when the complaint in both the cases were registered on
the same day or around same time, the aspect as to which complaint
was made first is not of much relevance and it is required to be seen
from other material as to whether the defence put forth by the accused
is possible and sustainable.
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28. Keeping in mind about such version of the prosecutrix in
regard to the alleged incident as mentioned above, if scrutinized, it is
clear that as per her version the accused had committed sexual
harassment by catching hold of her hand and pulling her Odhani while
she was working in the kitchen. In that regard, if her crossexamination
in regard to the actual situation and scenario in the house when the
alleged incident had taken place is concerned, it appear that in her
crossexamination, she denied for want of knowledge that the house of
accused consisting of bedroom, kitchen and hall. She also accepted that
her work in the house was to make chappatis and cleaning utensils and
the rest of the cooking was done by the females in the house. In such
circumstances, when the house was only of one bedroom, kitchen and
hall and total 10 persons used to live there and a cancer patient used to
be always sitting or lying there in the bed which was adjacent to to the
kitchen and when other women in house were doing the work of
cooking, there appear some substance in the submission on behalf of
the accused that in all probability and possibility in the morning hours
or in the evening hours when the prosecutrix was working some senior
member must be there in the house and whatever was happening in the
kitchen was definitely visible to the persons in the house and the
probability and possibility of such person not knowing about the
incident is not there and even that possibility of accused committing
such an act during that period appear to be doubtful and suspicious.
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30. In view of all the above discussion, the testimony of the
prosecutrix appear to have been shattered and shaken in her cross
examination. She do not appear to have come up with true facts. She
concealed very material and important fact of the meeting held in the
morning when the complaint was lodged. She also appear to have
avoided to tell about the complaint lodged by the brother of the accused
alleging theft against her and in all such circumstances, she cannot be
stated to be a reliable and creditable witness and, therefore, her sole
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testimony cannot be said to be sufficient to conclude that the act as
stated by her has taken place. There is no corroborative evidence for her
version in that regard. The testimony of her mother would not be of any
use. In her testimony, her mother stated that on one day, she does not
recollect the date, her daughter told her that accused caught hold her
hand, pulled her odhani and he was touching her butts, she escaped
and he even threatened her not to tell anybody else put some blame on
her and being scared she did not tell to anybody and then her daughter
left the job. She further stated that when again her daughter went to
have Vadapav, accused came there and threatened her if she do not
come to work tomorrow he would put some blame on her and she came
home and told her about it and then they went to police station and
lodged complaint. She has exaggerated the fact that has not even been
stated by the prosecutrix. It is very much material to mention that in
her crossexamination she even denied the fact that brother of the
accused filed complaint against her alleging theft for want of knowledge
initially, but subsequently, she corrected herself and sated that he
lodged a complaint after their complaint. She also further accepted that
at the same time when they lodged complaint, the brother of the
accused lodged complaint. The tendency and attitude of the witness is
of not telling the true facts. It is very much material to mention that the
prosecutrix accepted that a meeting was held in the houe of Satrick
uncle on the day when the complaint was lodged and the said meeting
was attended by her parents. However, the mother of the prosecutrix in
he crossexamination denied a specific suggestion that such meeting
was held in the house of Satrick uncle, which further makes it clear that
she was not telling the true facts and, therefore, her version on the one
hand is not corroborating the testimony in regard to the happening of
the incident and hearsay in that regard and on the other hand is not
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even reliable and truthful.
POINT NO.4 :
33. Since the accused is acquitted of all the charges levelled
against him and as per the provisions of section 437A of the Code of
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34. In the result, I pass the following order :
O R D E R
1 Accused Sarang Dilip Thakur is acquitted under section 235(1) of
Cr. P.C. of Offences punishable under section 354 of the Indian
Penal Code and section 8 of the Protection of Children from
Sexual Offences Act, 2012.
2. The accused is on bail. His bail bond stands cancelled.
Judgment dictated and pronounced in open Court.
The proceeding is closed.
Thane (V.V. Virkar)
Additional Sessions Judge and
Date: 15/09/2022 Special Judge (POCSO), Thane.
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