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Dadarao Gotiramji Khandare (In … vs State Of Maharashtra Thr. The … on 7 June, 2018

1 Apeal572-17.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR

Criminal Appeal No.572 of 2017

Dadarao Gotiramji Khandare,
Aged about 50 years,
Occ: Labourer,
R/o Karnphul Bungalow,
Tapowan, Amravati .. APPELLANT

.. Versus ..

The State of Maharashtra,
through the Police Station Officer,
Police Station, Gadge Nagar,
Amravati. .. RESPONDENT

Mr. D.A. Sonwane, Advocate for Appellant.
Ms. Shamsi Haider, APP for Respondent

….

CORAM : MANISH PITALE, J.

DATED : JUNE 07, 2018

ORAL JUDGMENT

1. By this appeal, the appellant has challenged

judgment and order dated 29.08.2016 passed by the Court of

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Session, Amravati (trial Court) in Sessions Trial No. 40 of 2015,

whereby the trial Court has convicted the appellant under

Sections 4 and 8 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act) and sentenced him to suffer

rigorous imprisonment for 7 years and 3 years respectively and

to pay fine of Rs.500/- on each count.

2. As per the prosecution, the prosecutrix in the present

case was aged about 17 years in the year 2014 and she was

studying in Mahanama Malviye Vidyalaya, Tapowan, Amravati.

Since she did not have her mother and her father was a

mentally retarded person, she was residing in the hostel of

Tapowan. In October,2014, although school was closed for

Diwali vacation, the prosecutrix continued to stay in the hostel

because her uncle had informed her not to come home during

vacation. On 20.10.2014 at about 1.30 p.m. when the

prosecutrix was going towards the library, the appellant-

accused met her near the temple and asked her to come to his

room, which she refused. As per the prosecution, when the

prosecutrix was returning from the library at about 2.30 p.m.,

the appellant was present in front of room allotted to him and

upon the prosecutrix reaching near, he called her, caught her

and took her inside the room and shut the door. The appellant

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removed the clothes of the prosecutrix and committed forcible

sexual intercourse with her, after which she returned to her

hostel room.

3. The prosecutrix did not disclose this incident to

anyone out of fear and it was only when a social worker came

to the school that she narrated the incident, leading to filing of

report with the Police Station and registration of first

information report (FIR) on 20.12.2014 against the appellant in

Police Station Gadge Nagar, Amravati for offences under

Section 376 (2) (d) and (i) of the Indian Penal Code and

Sections 4,6,8,10 and 12 of POCSO Act. Upon registration of

the FIR, investigation was carried out by the Assistant

Commissioner of Police and the appellant was charged for

having committed the aforesaid offences.

4. The prosecution examined three witnesses to prove

its case. There was documentary evidence placed on record in

the form of medical record, date of birth certificate of the

prosecutrix and other material. PW1 was the prosecutrix

herself, while PW2 was one Rupali Nimbarte, the social worker

who had visited the school, leading to the registration of FIR in

the present case and PW3 was the investigating officer, being

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Assistant Commissioner of Police, Amravati.

5. On the basis of the evidence and material on record,

by the impugned judgment and order dated 29.08.2016, the

trial Court convicted and sentenced the appellant in the

aforesaid manner. The trial Court found that since the age of

the prosecutrix was more than 16 years at the time of the

incident, offence under Section 376 (2) (d) and (i) of the IPC

was not made out but since the prosecutrix was less than 18

years of age and a child as defined under Section 2(d) of the

POCSO Act, he was guilty under Sections 4 and 8 of the said

Act. Aggrieved by the said judgment and order, the appellant

has filed the present appeal. Since the appellant is in jail,

counsel was appointed by this Court to appear on his behalf.

6. Mr. D.A. Sonwane, learned counsel appointed to

appear on behalf of the appellant, submitted that there was

inordinate delay in registration of FIR in the present case, which

was fatal to the prosecution case and that this aspect was not

considered by the trial Court while passing the impugned

judgment and order. It was contended that the evidence and

material on record was not sufficient to prove the guilt of the

appellant, particularly when proof of age of the prosecutrix in

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the form of the date of birth certificate was not supported by

examination of any witness in support thereof. It was

contended that even the oral evidence of the prosecutrix was

not trustworthy and that therefore, the impugned judgment

and order passed by the trial Court was required to be set

aside.

7. On the other hand, Ms. Shamsi Haider, learned

Additional Public Prosecutor appearing on behalf of the State,

submitted that the delay in registration of FIR had been

sufficiently explained in the present case by the prosecutrix

herself and also by PW2- Social Worker, who had deposed that

young girls from such schools were found to be sexually

exploited and that when inquiries were made in the school of

the prosecutrix that she had come out with the details of the

incident. On this basis, it was contended that the delay was

properly explained by the prosecution. It was further

contended that the appellant had admitted all the documents

pertaining to the medical record and that, therefore, there

could be no dispute raised about the same. Insofar as proof of

date of birth of the prosecutrix was concerned, it was

submitted that the prosecutrix was not cross-examined on this

aspect at all and that the date of birth certificate being a public

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document, it was sufficient proof of the age of the prosecutrix,

particularly when she had herself asserted her date of birth in

her examination-in-chief as being 27.04.1997. On this basis, it

was submitted that the appeal deserved to be dismissed.

8. A perusal of the evidence and material on record in

the present case shows that the prosecutrix was a student of a

school in Amravati, where she was residing in the hostel

because she did not have her mother and her father was a

mentally retarded person. The prosecutrix has stated in detail

about the manner in which the appellant took her inside his

room on 20.10.2014 in the afternoon and committed the act of

forcible sexual intercourse. In her evidence before the Court,

the prosecutrix has not only given the details of the incident

but she has stated that she was frightened and mentally

disturbed by the said incident. She has further stated that

since she did not have mother and her father was mentally

retarded, she was in a helpless condition and residing in the

hostel. She has stated in detail the reason as to why she could

not approach the authorities to raise a grievance about the said

incident immediately after the incident took place. The

prosecutrix has also stated clearly that her date of birth was

27.04.1997, which demonstrated that at the time of the

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incident she was certainly less than 18 years of age. In her

cross-examination no question has been put to her in respect

of her date of birth. Even as regards the reasons given by her

for the delay of two months in registration of the FIR, there is

no cross-examination.

9. A perusal of the evidence of PW2- Social Worker,

shows that even prior to the said incident, there had been a

case of rape of another girl student and that there had been

cases in the said area of girl students being sexually exploited,

due to which Social Worker like PW2 had arranged for Focus

Group Discussion. It was stated by the said witness that during

one such discussion, the prosecutrix disclosed the said

incident. It is on this basis that the FIR was ultimately

registered in the present case.

10. The evidence of PW3- investigating officer- Assistant

Commissioner of Police, shows that during investigation he

collected the date of birth certificate of the prosecutrix which

showed that her date of birth was indeed 27.04.1997 and this

was placed on record as Exh.41. The trial Court judgment

shows that the appellant admitted Exhs. 9 to 39, which

included the entire medical examination record of the

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prosecutrix.

11. In order to sustain the conviction of the appellant

under the provisions of the POCSO Act, the crucial issue

pertains to the proof of age of the prosecutrix and her claim

that her date of birth was 27.04.1997. In this regard, it has

been vehemently contended by the learned counsel appearing

on behalf of the appellant that the date of birth at Exh.41 could

not have been relied upon by the trial Court in the absence of

any witness being examined in support thereof. A perusal of

the date of birth certificate at Exh.41 shows that it has been

issued by the Municipal Council, Akot, district Akola with a

proper seal and that it is indeed a public document. Apart from

this, a perusal of the evidence of the prosecutrix (PW1) shows

that she has specifically asserted in her examination-in-chief

that her date of birth was 27.04.1997.

12. In this context the learned APP appearing on behalf of

the respondent-State is correct in relying upon the judgment of

the Division Bench of this Court in the case of Kundan son of

Nanaji Pendor .vs. State of Maharashtra – 2017 ALL MR

(Cri) 1137, wherein it has been held as follows:-

“11. Since the appellant has been charged
with having committed offence under Sections

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3 (a), 5 (j) (ii) and 5 (l) of the Act of 2002, as
per Charge at Exh.4, it would be necessary to
first record a finding as to the age of “S”. As
per provisions of Section 2 (1) (d) of the said
Act, a child means a person below the age of
eighteen years. As noted above, the
prosecutrix had stated on oath that her date of
birth was 5th January, 1997. There is no cross-
examination, whatsoever, to this specific
assertion made by the prosecutrix in her
Examination-in-Chief. Her said statement has
gone totally unchallenged. It is a settled
position of law that if a witness is not cross-
examined on a particular portion of her
deposition in her Examination-in-Chief, said
statement is required to be accepted as the
same is not challenged by the defence.”

13. In the present case, the statement of the prosecutrix

about her date of birth being 27.04.1997 has not been

challenged in cross-examination at all on behalf of the

appellant. Apart from this, Exh.41- date of birth certificate is a

public document placed on record as proof of age of the

prosecutrix. Therefore, reliance sought to be placed by the

learned counsel appearing on behalf of the appellant on

judgment of the Hon’ble Supreme Court in the case of Alamelu

and another .vs. State – AIR 2011 Supreme Court 715 is

misplaced because in the said case the Hon’ble Supreme Court

was concerned with a transfer certificate issued by Head

Master of the School as proof of the date of birth of the

prosecutrix and the lack of supporting evidence to prove date

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of birth. The assertion of the prosecutrix in the present case

about her date of birth in her evidence coupled with the public

document in the form of Exh.41 i.e. date of birth certificate

issued by the Municipal Council, Akot, is sufficient proof of the

fact that the prosecutrix was born on 27.04.1997,

demonstrating that on the date of the incident i.e. 20.10.2014

she was indeed less than 18 years of age.

14. Once this conclusion is reached, it becomes clear that

the prosecutrix was covered under the definition of “child” as

defined under Section 2 (d) of the POCSO Act, as a result of

which no fault can be found with the trial Court proceeding on

this basis and convicting the appellant under the provisions of

the said Act.

15. Insofar as evidence in respect of the incident is

concerned, the prosecutrix has deposed before the Court in

detail regarding the same and her evidence has not been

shaken in the cross-examination. Her version is trustworthy

and truthful. When her evidence is considered along with the

evidence of the other witnesses and the medical evidence on

record, it becomes clear that the findings rendered by the trial

Court regarding forcible sexual intercourse by the appellant on

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the prosecutrix are justified. The trial Court has convicted the

appellant under Section 4 of the POCSO Act for penetrative

sexual assault and under Section 8 for sexual assault. When

the definitions of “penetrative sexual assault” and “sexual

assault” as defined in Sections 3 and 7 respectively are

perused and the evidence in the present case is appreciated in

the proper perspective, it becomes clear that there is no error

committed by the trial Court while passing the impugned

judgment and order, convicting and sentencing the appellant in

the aforesaid manner.

16. In the light of the above, there is no merit in the

present appeal and accordingly it is dismissed. The judgment

and order passed by the trial Court is confirmed.

17. Since the counsel appearing on behalf of the

appellant was appointed counsel, his fee is assessed at

Rs.5,000/- (Rs. Five Thousand).

(Manish Pitale, J. )

halwai/p.s.

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