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Guruprasad S/O. Daulat Bhalavi vs The State Of Maharashtra Thr. … on 4 July, 2019

1 apeal88.19

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.

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Nahar 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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13 apeal88.19

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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14 apeal88.19

(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

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was 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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