Aasif S/o Babbu Qureshi @Aasif S/o Babbu Kureshi vs The State Of Maharashtra & Anr.

JUDGMENT : (PER : NIVEDITA P. MEHTA , J.)

By the present appeal, the appellant has challenged the judgment and order dated 31.08.2020 passed by the learned Additional Sessions Judge and Special Judge, Gadchiroli in Special POCSO Case No.11 of 2019, whereby he has been convicted for the offences punishable under Sections 376(2)(n) and 417 of the Indian Penal Code, Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and sentenced accordingly.

The prosecution case, in brief, is that the appellant and the victim were residents of the same village and came in contact with each other in the year 2014 when the victim visited the District Cooperative Bank at Amirza for opening a savings bank account. At the relevant time, the victim was about 17 years of age. According to the prosecution, the appellant developed a relationship with the victim on the assurance that he would marry her despite their belonging to different communities and, over a period of time, repeatedly established physical relations with her. It is further alleged that when the victim ultimately insisted upon marriage, the appellant refused to marry her, whereupon the First Information Report came to be lodged on 03.11.2018. Upon completion of investigation, charge-sheet came to be filed and the appellant was put to trial before the learned Special Judge. During the course of trial, the prosecution examined eight witnesses in support of its case, while the appellant examined one defence witness.

The learned Trial Court, upon appreciation of the evidence adduced by the parties, accepted the case of the prosecution and held that the victim was a minor at the inception of the relationship and that the appellant had repeatedly subjected her to sexual intercourse on the false promise of marriage. The learned Trial Court further recorded a finding that the appellant ultimately refused to marry the victim on account of her belonging to the "Gond" Scheduled Tribe and, accordingly, held the charges under Sections 376(2)(n) and 417 of the Indian Penal Code, Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to have been proved beyond reasonable doubt, while acquitting the appellant of the charge under Section 506-II of the Indian Penal Code.

During the pendency of the present appeal, an altogether different turn of events unfolded. On 20.10.2020, separate affidavits came to be filed by the mother of the appellant as well as the victim, wherein it was stated that the appellant and the victim were willing to solemnize their marriage. Taking note of the said statements, this Court interacted with the parties and, with a view to ascertain the genuineness of their decision, granted provisional bail by order dated 28.10.2020 to the appellant to enable the parties to solemnize the marriage. Pursuant thereto, the marriage between with Muslim rites. Thereafter, a joint affidavit came to be filed before this Court confirming the solemnization of marriage, their cohabitation as husband and wife and the registration of the marriage. By order dated 14.12.2020, this Court confirmed the order of provisional bail, while granting liberty to the victim to seek cancellation of bail in the event the appellant failed to abide by the undertaking furnished before this Court.

In addition to the grounds urged in the memorandum of appeal assailing the findings recorded by the learned Trial Court, learned counsel for the appellant invited the attention of this Court to the subsequent developments which have taken place during the pendency of the appeal. It was submitted that the appellant and the victim have been residing together as husband and wife ever since their marriage was solemnized on 08.11.2020 and that the victim has, of her own volition, filed an affidavit before this Court stating that she does not wish to prosecute the appellant any further. It was, therefore, urged that while adjudicating the present appeal, this Court may take into consideration the subsequent events, including the marriage between the parties, their continued matrimonial relationship and the consistent stand adopted by the victim.

Per contra, the learned Additional Public Prosecutor submitted that the appellant stands convicted for serious offences under the Indian Penal Code, the Protection of Children from Sexual Offences Act, 2012 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and that the subsequent marriage between the parties, by itself, cannot furnish a legal ground to interfere with the judgment of conviction.

In view of the aforesaid subsequent developments, the principal question that arises for consideration is whether the prosecution has established beyond reasonable doubt that the appellant induced the victim into the relationship by a promise of marriage which was false from its inception and whether such supervening circumstances can be taken into account while deciding an appeal against conviction and, if so, to what extent they are relevant in moulding the relief to be granted in the peculiar facts of the present case.

It is trite that the offences punishable under Section 376 of the Indian Penal Code and the provisions of the Protection of Children from Sexual Offences Act, 2012 are grave offences and are non-compoundable in nature. A subsequent settlement between the parties or even a marriage solemnized after the institution of criminal proceedings does not, by itself, obliterate the offence or automatically render the conviction unsustainable. Equally well settled is the principle that an Appellate Court is entitled to take note of subsequent events having a material bearing on the relief to be granted. The significance to be attached to such supervening circumstances, however, necessarily depends upon the peculiar facts and circumstances of each case.

The issue regarding the effect of a subsequent marriage between the accused and the victim has engaged the attention of the Hon'ble Supreme Court on more than one occasion. While considering cases involving offences under Section 376 of the Indian Penal Code and allied offences, the Hon’ble Supreme Court has consistently observed that such offences cannot ordinarily be brought to an end merely on account of a compromise or settlement between the parties. At the same time, in certain exceptional cases, where the subsequent developments have established a genuine and enduring matrimonial relationship between the parties, the Hon’ble Supreme Court has taken note of such circumstances while moulding the relief so as to do complete justice in the peculiar facts of the case. The decision in Criminal Appeal No. 41 of 2021 (Shriram Urav Vs. State of Chhattisgarh dated 30.01.2025) is illustrative of this approach, where the Court, while recognising the gravity of the offences involved, also accorded due weight to the subsequent events which had fundamentally altered the factual matrix before it. The relevant paragraph nos. 11,12,13,14 of the said judgment are reproduced as under :

It is, however, equally necessary to bear in mind that the aforesaid decisions were rendered by the Hon'ble Supreme Court in exercise of its powers under Article 142 of the Constitution. The High Courts do not possess an analogous constitutional power. The relevance of the aforesaid decisions, therefore, lies not in the source of power exercised therein, but in the principles governing the consideration of genuine supervening circumstances while adjudicating criminal proceedings.

Before proceeding to examine the evidence on record, it would be apposite to notice that the larger question concerning the treatment of consensual adolescent relationships under the Protection of Children from Sexual Offences Act, 2012 is presently engaging the attention of the Hon'ble Supreme Court in Right to Privacy of Adolescents, Suo Motu Writ Petition (C) No.3 of 2023. In the said proceedings, the Hon'ble Supreme Court has, inter alia, taken note of the concerns expressed by the learned amicus curiae regarding the criminalisation of consensual adolescent relationships under the existing statutory framework and has sought the response of the Union of India on various policy considerations touching upon the implementation of the enactment. The Union of India, on the other hand, has maintained that the existing age of consent and the legislative framework under the Protection of Children from Sexual Offences Act, 2012 are essential to safeguard children from sexual exploitation and abuse and to further the constitutional obligation of the State to protect the bodily integrity and welfare of children. Thus, while the larger policy debate concerning consensual adolescent relationships continues to receive the attention of the Hon'ble Supreme Court, no final pronouncement has yet been rendered on the said issue.

In that backdrop, this Court does not consider it appropriate to enter into the broader policy questions relating to the scope or operation of the Protection of Children from Sexual Offences Act, 2012. The present appeal is not concerned with the constitutional validity of the enactment or the desirability of any legislative reform. The appeal is required to be decided on the basis of the evidence adduced during trial, the settled principles governing appreciation of evidence and the legal requirements necessary to sustain the conviction recorded against the appellant.

At this stage, it is necessary to draw a distinction between a case founded upon a private compromise and one where supervening circumstances have arisen during the pendency of judicial proceedings. A compromise is essentially an agreement between the parties to settle their disputes and bring an end to the litigation. Supervening circumstances, on the other hand, are subsequent events which arise during the course of the proceedings and have a material bearing on the adjudication of the controversy or the nature of the relief to be granted. The significance of such events lies not in the agreement of the parties but in their impact on the existing factual matrix. It is for this reason that Courts, while exercising appellate jurisdiction, are not precluded from taking note of genuine and undisputed supervening circumstances, provided they are relevant and have a direct bearing on the issues requiring determination.

The present case, however, stands on a footing distinct from cases where the parties merely arrive at a private settlement after the conclusion of the trial. The subsequent developments in the present matter are not confined to the solemnization of marriage alone. The willingness expressed by the appellant and the victim to enter into matrimony was placed before this Court during the pendency of the appeal. Upon being satisfied about the genuineness of the said decision, this Court granted provisional bail to the appellant to facilitate the marriage. The marriage was thereafter solemnized, followed by the filing of a joint affidavit confirming their matrimonial relationship. Subsequently, this Court confirmed the order of provisional bail while reserving liberty to the victim to seek cancellation thereof in the event of any breach on the part of the appellant. The subsequent developments have, therefore, unfolded under the supervision of this Court during the pendency of the appeal and are not merely the result of a private arrangement between the parties.

Having held that the subsequent developments are capable of being taken into consideration in an appropriate case, it now becomes necessary to examine whether the findings recorded by the learned Trial Court are sustainable on the evidence available on record. The gravamen of the prosecution case is that the appellant induced the victim into a physical relationship by holding out a promise of marriage which, according to the prosecution, was false from its very inception. The burden, therefore, squarely lies upon the prosecution to establish beyond reasonable doubt not merely that a promise of marriage was made, but that at the very time when such promise was held out, the appellant never intended to fulfill the same and that the promise was a mere device to obtain the consent of the victim.

The evidence of PW-1, who is the victim, assumes pivotal significance. A careful reading of her testimony reveals that she herself deposed that the appellant expressed his intention to marry her when they first came into contact in the year 2014 and that the relationship thereafter continued over a considerable period. Her evidence further discloses that even after disputes arose between them, she did not immediately resort to criminal prosecution. On the contrary, she initially approached the Women Cell, thereafter the Tanta Mukta Samiti and subsequently the police authorities, consistently requesting that the appellant should honour his promise of marriage. According to her own deposition, at each of these stages, efforts were made to persuade the appellant to solemnize the marriage and time was sought by him for that purpose. It was only after those efforts failed that the First Information Report ultimately came to be lodged.

The aforesaid evidence, in the opinion of this Court, assumes considerable significance. It reveals that the grievance of the victim was not that the appellant had, from the very inception, deceitfully induced her into the relationship by a promise which he never intended to fulfil. Rather, her evidence indicates that when disputes arose between them, she consistently endeavoured to secure the fulfilment of the appellant's promise of marriage by approaching the Women Cell, the Tanta Mukta Samiti and thereafter the police authorities. At each of these stages, the appellant sought time to solemnize the marriage, and the victim accepted such assurances. These circumstances, emerging from the prosecution evidence itself, render it difficult to conclude, beyond reasonable doubt, that the appellant had no intention whatsoever of marrying the victim at the inception of the relationship. A subsequent failure or delay in fulfilling the promise, by itself, cannot invariably lead to the inference that the promise was false from the very beginning.

The subsequent developments which have taken place during the pendency of the present appeal assume relevance in the aforesaid context. Though the subsequent marriage between the appellant and the victim cannot retrospectively efface criminal liability or furnish an independent ground for acquittal if the offence otherwise stands proved, it nevertheless constitutes a relevant circumstance while appreciating whether the prosecution has succeeded in establishing that the promise of marriage was false from its very inception. The subsequent solemnization of marriage between the parties, their continued cohabitation as husband and wife lend assurance to the inference that the relationship was not founded upon a fraudulent representation or a deceptive promise conceived at the very threshold.

The affidavit filed by the victim before this Court further fortifies the aforesaid conclusion. It discloses that the victim has voluntarily solemnized marriage with the appellant and that they are residing together as husband and wife. While these subsequent developments cannot, by themselves, extinguish criminal liability in a case where the offence otherwise stands proved, they constitute relevant circumstances while appreciating the true nature of the relationship between the parties, particularly where the prosecution case itself is founded upon the allegation that the appellant never intended to fulfil his promise of marriage.

The subsequent conduct of the parties is, therefore, not the foundation of the acquittal but a circumstance which fortifies the conclusion already reached upon an independent appreciation of the evidence on record. In criminal jurisprudence, the burden always rests upon the prosecution to establish the guilt of the accused beyond reasonable doubt. In the present case, the evidence does not establish beyond reasonable doubt that the consent of the victim was vitiated by a misconception of fact within the meaning of Section 90 of the Indian Penal Code or that the appellant induced her into the relationship by a promise of marriage which he never intended to fulfil. The prosecution having failed to prove this essential ingredient, the appellant is entitled to the benefit of doubt.

Coming to the impugned order, we find that the marriage certificate was placed on record before the High Court. In fact, no objection by the victim is also recorded. The law cannot be oblivious to the settled realities that have emerged during the pendency of these proceedings. The appellant and the victim have chosen to lead their lives together as husband and wife and the said relationship has remained stable over the years, interference with the settled matrimonial life of the parties would serve no useful purpose. The subsequent marriage and the consistent stand adopted by the victim are not treated by this Court as constituting a compromise of the offence or as an independent ground for acquittal.

In the aforesaid backdrop, this Court is of the considered opinion that the material on record reveals that what initially commenced as a relationship between the appellant and the victim has, during the pendency of the appeal, culminated into a lawful matrimonial relationship. The marriage has endured for a considerable period and the parties have chosen to lead their lives together as husband and wife. The victim has repeatedly affirmed before this Court that the relationship is voluntary and that she desires its continuance. The judicial process cannot remain unmindful of these subsequent realities, particularly when they have emerged under the supervision of this Court and have remained undisturbed over the years. Therefore, for the reasons recorded hereinabove, the judgment and order of conviction and sentence passed by the learned Trial Court cannot be sustained and deserve to be quashed and set aside. Hence, we proceed to pass the following order: