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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
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9 Apeal572-17.odt3 (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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