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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.88 OF 2019
Guruprasad s/o Daulat Bhalavi,
Aged about 26 years, Occu.- Labour,
R/o Sawandanti, Tahsil – Ramtek,
District – Nagpur. …. APPELLANT
VERSUS
The State of Maharashtra,
through P.S.O. Deolapar,
Tahsil and District Nagpur. …. RESPONDENT
__
Shri Ashwin Wasnik, Counsel for the appellant,
Shri Amit Chutake, Addl.P.P. for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 4th JULY, 2019.
ORAL JUDGMENT :
This appeal is directed against the judgment dated
21-8-2018 rendered by the learned Additional Sessions Judge, Nagpur
in Special POCSO Case 224/2016, whereby the appellant-who shall be
referred to as the ‘accused’-is convicted as follows :
Offence Punishment
Section 344 of the IPC Rigorous Imprisonment for one
year and payment of fine of
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Rs.1,000/-, in default to undergo
simple imprisonment for one
month.
Section 354-A of the IPC Rigorous Imprisonment for two
years and payment of fine of
Rs.1,000/-, in default to undergo
simple imprisonment for one
month.
Section 323 of the IPC Rigorous imprisonment for six
months.
Section 506 of the IPC Rigorous imprisonment for one
year.
Section 376(2)(f)(n) of the IPC Rigorous imprisonment for ten
and Sections 4,Section5(j)(ii)(l)(n), Section6 of years and to payment of fine of
the POCSO Act. Rs.5,000/-, in default to undergo
simple imprisonment for two
months.
2. The prosecution case :-
The victim (PW 1) who was aged 16 years lodged report
dated 14-5-2016 (Exhibit 16) at Deolapar Police Station, the gist of
which is as follows :
i) The accused is the maternal uncle of the victim. In the
month of June 2015, the victim went to the house of the accused to
attend the naming ceremony of the child of the younger brother of the
accused. The victim was sexually molested by the accused who used to
touch her private parts. The victim used to protest and the accused
used to pacify her saying that he loved her.
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ii) It is alleged that in the second week of June 2015, when
she was sleeping alone, the accused approached her, slept besides her
and starting touching her in an appropriate manner. The victim awoke
and noticing the accused, attempting to shout. She was threatened by
the accused. The accused then subjected her to sexually intercourse.
Due to fear, the victim did not disclose the incident to anyone.
iii) Thereafter the accused established sexual contact with the
victim on multiple occasions when the other family members were not
in the house. The victim suffered the sexual assaults fearing that she
would be killed by the accused if she disclosed the sexual misconduct
of the accused to the other family members or if she fled from the
house.
iv) The victim states in the report that she was not permitted
to move out of the house alone and was made to accompany the
accused whenever he left the house. The accused used to come home
drunk and terrorise the family members who were living in mortal
fear.
v) The health of the victim deteriorated. The accused took
the victim to the Government Hospital at Manegaon. The medical
examination revealed that the victim was pregnant.
vi) In March 2016, the accused sent the victim alongwith her
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grandmother to Paoni market. While her grandmother was purchasing
vegetables, the victim took the opportunity of fleeing. The victim went
to Mansar and then took a bus to Saoner and took shelter in the house
of her maternal aunt (mother’s sister) and the next day went to her
house at Patansawangi. The health of the victim deteriorated day by
day. Fearing social stigma the victim did not disclose that she was
pregnant. However, when the victim was admitted in the Saoner
Hospital, her mother came to know that the victim was pregnant. She
enquired and the victim narrated the sexual misconduct of the accused
to her. The victim accompanied by her parents and maternal aunt
went to the police station to lodge the report.
3. The prosecution examined ten witnesses. PW 1 is the
victim, PW 2-Devki Salame is the mother of the victim, PW 3-Gita
Dhurve is the sister of the mother of the victim, PW 4-Dr. Sanjay
Meshram and PW 5-Dr. Sangita Jain are the Medical Officers, PW 6-Dr.
Pramod Kodape is the Resident Doctor, PW 7-Pratima Telgote is the
lady Constable who accompanied the victim to the Mayo Hospital for
her medical examination, PW 8-Bhaurao Dhurve is the Headmaster
who proved the school record, PW 9-Ashok Sonawane is the panch
witness and PW 10-Namdev Pujari is the Investigating Officer.
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4. The defence of the accused is of total denial. In the cross-
examination of the prosecution witnesses, it is suggested that the
victim is habituated to lodging complaints under the provisions of the
Protection of Children from Sexual Offences Act (“POCSO Act” for
short). The accused did not enter the witness box nor was any witness
examined in defence.
5. The learned Sessions Judge held that the prosecution
proved that the victim was a child as on the date of the incident. The
evidence of the victim is found reliable and confidence inspiring. The
disclosure made by the victim to her mother is considered as relevant
material of corroborative value. The learned Sessions Judge took note
of the presumption under Section 29 of the POCSO Act and held that
the defence is not established and the presumption is not rebutted.
The learned Sessions Judge noted that the DNA report below Exhibit
17 which opines that the victim and the accused are the biological
parents of the child victim, is not challenged.
6. I have heard Shri Ashwin Wasnik, learned Counsel for the
appellant and Shri Amit Chutake, learned Additional Public Prosecutor
for the respondent-State. With their able assistance, I have minutely
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scrutinized the record and the reasons recorded by the learned Sessions
Judge.
7. The seminal issue is whether the prosecution has
established that as on the date of the incident the victim was a child
within the meaning of Section 2(d) of the POCSO Act. A strenuous
attempt is made by the learned Counsel Shri Ashwin Wasnik that the
prosecution failed to establish that the victim was aged less than 18
years. The challenge to the age of the victim is the thrust of the
submissions presumably in view of the overwhelming and clinching
evidence on record that the accused and the victim were in sexual
relationship from which the victim gave birth to a male child and the
victim and the accused are the biological parents of the child, if the
DNA report is accepted. The learned Sessions Judge has observed that
there is no challenge to the DNA report. In this appeal, no submission
is advanced assailing the DNA report nor is any material brought to my
notice which would affect the admissibility or probative value of the
DNA report.
8. The DNA report apart, the evidence of the victim PW 1 is
consistent with the report, and is implicitly reliable. No omission
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partaking the character of contradiction or any other infirmity is
brought out in the cross-examination. General suggestions are given
that the accused did not subject the victim to forcible sexual
intercourse and that the victim was in a relationship with one Sunil
Uike. The suggestions are denied. It is brought on record in the cross-
examination that the accused narrated the name and address of the
victim to the doctor and stated the age of the victim as 20 years. The
victim is confronted with the medical card of the Saoner Hospital. The
response of the victim is that the doctor refused to treat her unless the
name of the father of the child is disclosed. This is in the context of the
name disclosed which suggests that the victim is the wife of the
accused and is aged 20 years. The disclosure of age as 20 years is of no
significance and was obviously at the instance of the accused. I am
satisfied, that the evidence of the victim is confidence inspiring.
9. No corroboration is necessary if the evidence of the victim
of sexual assault is found trustworthy. If the evidence is not implicitly
reliable, assurance, short of corroboration can be sought from other
evidence.
10. Sufficient assurance of the credibility and veracity of the
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version of the victim is available from the evidence on record. The
evidence of PW 2-Devki Salame, who is the mother of the victim and
who speaks of the disclosure made by the victim, is consistent with the
version of the victim. Similar is the evidence of PW 3-Gita Dhurve who
is the sister of PW 2. PW 5-Dr. Sangita Jain examined the victim on
11-5-2016 and diagnosed the pregnancy. PW 5 states that the victim
was carrying fetus of five and half months. PW 5 has deposed that
though the victim was insisting on aborting the fetus, she refused to
oblige since abortion at the advanced stage of pregnancy would have
endangered the victim’s life. PW 6-Dr. Promod Kodape is the Resident
Medical Officer at the Forensic Department who medically examined
the victim and proved the report Exhibit 42 and the sonography report
Exhibit 43. PW 6-Dr. Pramod Kodape has deposed that he collected the
samples for the purpose of DNA profiling and handed over the samples
to WPC Pratima in sealed condition. The evidence that PW 6-Dr.
Pramod Kodape collected the samples for DNA profiling, sealed the
samples and handed them over to PWC Pratima is not challenged in the
cross-examination. PW 7-Pratima Telgote states that she deposited the
samples in the police station. A bare suggestion is given that she did
not deposit the sample in the police station, which suggestion is
denied. PW 10-Namdev Pujari is the Investigating Officer, who has
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stated that the samples collected by WPC Kalpana which she deposited
in the police station in sealed condition were seized in presence of
panchas vide seizure panchanama Exhibit 62 and after the birth of the
child, the DNA sample of the new born child was collected and then the
DNA sample of the accused, the victim and the child were sent to
Chemical Analyzer. Nothing is brought out in the cross-examination to
discredit the testimony of the Investigating Officer. There is no serious
challenge to the testimony that the samples were collected, sealed and
forwarded for chemical analysis in sealed condition. A bare suggestion
is given that the Investigating Officer did not collect or seal the samples
of the victim, the accused and the new born child, is denied.
11. Considering the evidence on record, it is irrefutable that
the prosecution has established beyond reasonable doubt that the
accused subjected the victim to sexual intercourse and that the victim
conceived and delivered a male child. The accused and the victim are
the biological parents of the male child. In the context of the evidence
on record, all that remains to be seen is whether there is any merit in
the submission of the learned Counsel for the accused that the
prosecution has not proved that the victim was a child as on the date of
the incident.
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12. The victim has deposed that her date of birth is 22-5-1999.
It is not even suggested to the victim in the cross-examination that the
date of birth of the victim is not 22-5-1999. The evidence of the victim
on the date of birth has gone unchallenged. The victim has also stated
in the report that she is aged 16 years. The mother of the victim PW 2
states that the victim was 13-14 years old as on the date of the
incident. In the cross-examination, she admits that she cannot state
the date of birth of the victim. The suggestion that the age of the
victim is more than 18 years is, however, denied. PW 8-Bhaurao
Dhurve is the Headmaster of the Government Primary School, in which
school the victim was admitted in the 1st Standard. PW 8 has deposed
that he is incharge of the admissions and other activities of the school
and maintains the relevant record. The school register (Exhibit 49) in
which the date of birth of the victim is recorded as 22-5-1999 is
proved. PW 8 has also proved the entry in the school register taken
while issuing the transfer certificate which was issued on 03-12-2013.
The date recorded in the School Leaving Certificate/Transfer Certificate
and the original register of the school is the same, is the deposition. It
is elicited in the cross-examination that PW 8 is not aware whether
birth certificate was produced by the victim while securing admission
in the school. The witness admits that the school cannot admit
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student without birth certificate.
13. Shri Amit Chutake, learned Additional Public Prosecutor
relies on the decision of the Hon’ble Apex Court in SectionSarwan Singh vs.
State of Punjab, 2004 ALL MR (Cri) 156 (SC) to buttress the
submission that if the evidence has gone unchallenged in the cross-
examination, the evidence ought to be accepted. The reliance on the
said decision is in the context of the accused not cross-examining the
victim on the date of birth deposed. Shri Amit Chutake would then
rely on the Division Bench judgment of this Court in Kundan s/o
Nanaji Pendor vs. The State of Maharashtra, 2017 All MR (Cri)
1137 and particularly paragraph 11 thereof which reads thus :
“11. Since the appellant has been charged with having
committed offence under Sections 3(a), Section5 (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. Reference in this regard can be
made to the observations of the Hon’ble Supreme Court in
paragraphs 13 and 14 of its decision in State of U.P. Vs.::: Uploaded on – 06/07/2019 06/07/2019 23:01:43 :::
12 apeal88.19Nahar Singh (dead) others [(1998) 3 SCC 561] : [1998
All MR (Cri) 1308] which are quoted below:-
“13. It may be noted here that that part of the
statement of PW-1 was not cross-examined by the accused. In
the absence of cross-examination on the explanation of delay,
the evidence PW-1 remained unchallenged and ought to have
been believed by the High Court. Section 138 of the Evidence
Act confers a valuable right of cross-examining the witness
tendered in evidence by the opposite party. The scope of that
provision is enlarged by Section 146 of the Evidence Act by
allowing a witness to be questioned:
(1) to test his veracity,
(2) to discover who he is and what is his position in
life, or
(3) to shake his credit, by injuring his character,
although the answer to such questions might tend directly or
indirectly to incriminate him or might expose or tend directly or
indirectly to expose him to a penalty or forfeiture.”
14. The oft-quoted observation of Lord Herschell, L.C. in
Browne vs. Dunn clearly elucidates the principle underlying
those provisions. It reads thus:
“I cannot help saying, that it seems to me to be absolutely
essential to the proper conduct of a cause, where it is intended
to suggest that a witness is not speaking the truth on a
particular point, to direct his attention to the fact by some
questions put in cross-examination showing that that
imputation is intended to be made, and not to take his evidence
and pass it by as a matter altogether unchallenged, and then,
when it is impossible for him to explain, as perhaps he might
have been able to do if such questions had been put to him, the
circumstances which, it is suggested, indicate that story he tells
ought not to be believed, to argue that he is a witness unworthy
of credit. My Lords, I have always understood that if you intend
to impeach a witness, you are bound, whilst he is in the box, to
give an opportunity of making any explanation which is open to
him; and, as it seems to me, that is not only a rule of
professional practice in the conduct of a case, but it is essential
to fair play and fair dealing with witnesses.”
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Similarly, in Sarwan Singh Vs. State of Punjab [ (2003) 1
SCC 240], the Hon’ble Supreme Court reiterated this position
by observing in Paragraph 9 of its judgment as under:-
“9. ……………………………………………………………………It
is a rule of essential justice that whenever the opponent has
declined to avail himself of the opportunity to put his case in
cross-examination it must follow that the evidence tendered on
that issue ought to be accepted. …..”
Hence, following aforesaid position of law, there would be no
difficulty in accepting the unchallenged version of the
prosecutrix that her date of birth was 5th January, 1997.
Though it is true, as urged by the learned counsel for the
appellant, that the initial burden to prove the age of the
prosecutrix lies on the prosecution, it is also true that if the
relevant version of the prosecutrix as regards her date of birth
has gone unchallenged, it means that the defence has accepted
said statement made on oath by the witness. Hence, there is no
reason to discard the unchallenged version of “S” that her date
of birth was 5th January, 1997.”
14. Shri Amit Chutake would further rely on the decision of
the Hon’ble Apex Court in SectionState of Madhya Pradesh vs. Anoop Singh,
(2015) SCC 773 and in particular paragraphs 14, 15 and 16 thereof
which read thus :
“14. This Court in SectionMahadeo v. State of Maharashtra, has held
that Rule 12(3) of the Juvenile Justice (Care and Protection of
Children) Rules, 2007, is applicable in determining the age of
the victim of rape. Rule 12(3) reads as under:
“12(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining –
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(a)(i) the matriculation or equivalent certificates, if available;
and in the absence whereof;
(ii) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal
authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a)
above, the medical opinion will be sought from a duly
constituted Medical Board, which will declare the age of the
juvenile or child. In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them, may, if
considered necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin of one
year.
and, while passing orders in such case shall, after taking into
consideration such evidence as may be available, or the medical
opinion, as the case may be, record a finding in respect of his age
and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the
conclusive proof of the age as regards such child or the juvenile
in conflict with law.”
15. This Court further held in paragraph 12 of Mahadeo as
under:
“12. …under Rule 12(3)(b), it is specifically provided
that only in absence of alternative methods described under
Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for.
In the light of such a statutory rule prevailing for ascertainment
of the age of the juvenile in our considered opinion, the same
yardstick can be rightly followed by the courts for the purpose of
the ascertaining the age of a victim as well.
(Emphasis supplied)
This Court therefore relied on the certificates issued by the school
in determining the age of the prosecutrix. In para 13, this Court
observed (Mahadeo vase, SCC p.641)
13. In light of our above reasoning, in the case on
hand, there were certificates issued by the school in which the
proseuctrix did her Vth standard and in the school leaving
certificate issued by the school under Exhibit 54, the date of
birth has been clearly noted as 20.5.1990 and this document::: Uploaded on – 06/07/2019 06/07/2019 23:01:43 :::
15 apeal88.19was also proved by PW 11. Apart from that the transfer
certificate as well as the admission form maintained by the
Primary School, Latur, where the prosecutrix had her initial
education, also confirmed the date of birth as 20.5.1990. The
reliance placed upon the said evidence by the Courts below to
arrive at the age of the prosecutrix to hold that the prosecutrix
was below 18 years of age at the time of occurrence was perfectly
justified and we do not find any grounds to interfere with the
same.”
16. In the present case, we have before us two documents
which support the case of the prosecutrix that she was below 16
years of age at the time the incident took place. These documents
can be used for ascertaining the age of the prosecutrix as per
Rule 12(3)(b). The difference of two days in the dates, in our
considered view, is immaterial and just on this minor
discrepancy, the evidence in the form of Exts. P-5 and P-6 cannot
be discarded. Therefore, the trial Court was correct in relying on
the documents.”
15. Shri Ashwin Wasnik, learned Counsel for the accused
would rely on the Division Bench decision of this Court in SectionRavi
Anandrao Gurpude vs. State of Maharashtra, 2017 All MR (Cr)
1509. The Division Bench articulated that the prosecution is under the
bounden duty to prove that the victim is a child within the meaning of
Section 2(d) of the POCSO Act. The Division Bench holds that since
the provisions of the POCSO Act are stringent and Section 29 thereof
provides for statutory presumption, the degree of proof is stricter. I am
respectfully bound by the enunciation of law by the Division Bench.
However, the said decision is of no assistance to the accused in the
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facts of the present case. It does not appear from the facts noted by the
Division Bench that the evidence of the prosecutrix on the date of birth
remained unchallenged. SectionIn Ravi Anandrao Gurpude vs. State of
Maharashtra, the birth certificate recorded name of the child as “Bali”.
The Division Bench notes that there is no evidence to connect the name
Bali with the victim. The decision in Ravi Anandrao Gurpude Vs. State
of Maharashtra, turns on the facts of that case. As I have observed
supra, the evidence of the prosecutrix having gone unchallenged, in
view of the enunciation of law in Kundan s/o Nanaji Pendor vs. The
State of Maharashtra, it must be held that the date of birth as disclosed
by the victim is not in dispute.
16. In the light of the discussion supra, I am satisfied that the
judgment of conviction needs no interference and the appeal merits
dismissal.
17. The appeal is dismissed.
JUDGE
adgokar
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