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Sanjay Digambar Sukhdeve (In … vs The State Of Maharashtra Thr. … on 22 March, 2018

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

CRIMINAL APPEAL 356 OF 2017

Sanjay Digambar Sukhdeve,
Aged about 30 years, Occ. Labour,
R/o. Desaiganj, Tahsil Desaiganj …APPELLANT

VERSUS

The State of Maharashtra,
Through Police Station Officer
Desaiganj, Tahsil Desaiganj …RESPONDENT

——————————————————————————————-
Shri C.R. Thakur, counsel for the appellant.
Shri. N. H. Joshi, Addl. Public Prosecutor for respondent.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: 22 th
March, 2018.

ORAL JUDGMENT

Challenge is to the judgment and order dated 7.6.2017

rendered by the Additional Sessions Judge, Gadchiroli in POCSO

Case 8 of 2016, by and under which, the accused is convicted for

offence punishable under section 376(2)(n) of the Indian Penal Code

(“IPC”) and sentenced to suffer rigorous imprisonment for ten years

and to payment of fine of Rs. 5,000/-, and is convicted for offence

punishable under section 387 of IPC and sentenced to suffer rigorous

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imprisonment for three years and to payment of fine of Rs. 1,000/-

and is further convicted for offence punishable under section 11(v)

read with section 12 of the Prevention of Children from Sexual

Offences Act (“POCSO” Act) and sentenced to suffer rigorous

imprisonment for one year and to payment of fine of Rs. 1,000/-.

The appellant is acquitted of offence punishable under section 384

and 506 part II of the IPC and section 66-E 67-A of the Information

Technology Act.

2 Prosecution case:

The accused and the uncle of the victim were friends and

partners in video game business. The accused used to visit the

residence of the victim, One Bharat, a common friend introduced the

accused and the victim to eachother and gave the number of

cellphone of the victim to the accused. The victim was then aged 16

years.

The accused called the victim to a construction site near her

house. He demanded sexual favour from the victim who refused to

oblige. The accused attempted to force himself upon the victim who

rescued herself and returned home. After some days, on the pretext

of offering an apology, the accused called the victim in front of the

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house of one Pinku. The accused took her to the upper floor of that

house. The victim was taken to a vacant block rented by one Vimal

Hichami. The accused committed forcible sexual intercourse with

the victim. The accused further told the victim that he had prepared

a video clip of the sexual act and should the victim disclose the

incident, the video clip would be circulated. The threats scared the

victim who did not share the traumatic incident with anyone.

After some days, the accused again threatened her, called her

to the place of Vimal and had sexual intercourse with her. The

victim was subjected to sexual intercourse on 5 to 6 occasions. The

victim was also called to the place of one Sanjay a friend of the

accused and subjected to sexual intercourse there 3 to 4 times. The

victim was forced to succumb since the accused threatened her that

he would disclose the sexual relationship to her mother and further

threatened her that she will be killed if the accused is not paid

Rs. 20,000/-. The accused used to send the victim threatening and

abusive messages from his cellphone number 8308808850 to the cell

phone of the victim bearing number 8975525342.

The trauma became unbearable to the victim who disclosed

her sufferings to her uncle and lodged report at Desaiganj Police

Station on 1.12.2015 on the basis of which offence punishable under

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sections 376, 506 part II of the IPC, sections 4, 8 and 12 of the

POCSO Act and sections 67 of the Information Technology Act was

registered. The accused was arrested, his cellphone and memory

card containing video clips and other data were seized. The seized

mobile phone and memory cards were sent to Forensic Laboratory,

Nagpur, the data was retrieved. It transpired during investigation

that the victim was physically ravished and exploited by the accused

who also tried to extort money from the victim. Upon completion of

the investigation, charge sheet was submitted in the Court of Judicial

Magistrate First Class, Desaiganj, who committed the case to the

Sessions Court. The learned Sessions Judge framed charge (Exh.10)

for the offence under section 375 Clause sixthly, 376(2)(n), 506(2),

384, 387 and under section 3 punishable under section 4, 11(v)

punishable under section 12 of POCSO act and 66-E and 67-A of

Information Technology Act. The accused abjured guilt and

claimed to be tried. The defence of the accused as is reflected in the

statement recorded under section 313 of the Code of Criminal

procedure is total denial. However, the trend and tenor of the cross-

examination of PW 1 would suggest that the defence is that the

victim and the accused were in love which was not liked by the

parents of the victim who forced the victim to lodge a false report.

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3 Shri C.R. Thakur, the learned counsel for the appellant

submits, at the very outset that the prosecution failed to prove that

the victim was less than 18 years of age. This submission is made in

the context of the defence that even if it is assumed arguendo that

the prosecution proved that the victim was subjected to sexual

intercourse, the relationship was consensual. The victim (PW 1) has

stated that her date of birth is 30.7.1999. The incident occurred in

early 2015. The evidence of the victim that her date of birth is

30.7.1999 has gone unchallenged. Exh. 38 is the bonafide certificate

issued by the Adarsha English Junior College in which the date of

birth of the child victim is recorded as 30.7.1999. The defence has

suggested to the victim that she conveyed to Bharat that after

attaining majority, she would marry the accused. This suggestion is

denied. However, the suggestion would suggest that it is the case of

the defence that the victim was minor and therefore, she declared

that she would marry the accused after attaining the majority.

It would be apposite to refer to the following observations of

the Division Bench of this Court in Kundan s/o. Nanaji Pendor ..vs..

The State of Maharashtra, 2017 ALL MR (Cri) 1137.

11. Since the appellant has been charged with having
committed offence under Sections 3 (a), 5 (j) (ii) and 5 (l) of

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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 apeal313.14 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. Nahar Singh
(dead) others [(1998) 3 SCC 561] 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 a 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

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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 apeal313.14 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.”

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

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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 apeal313.14 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.

In the light of the evidence on record, the submission of Shri

C.R. Thakur that the prosecution has not proved that the victim was

aged less than 18 years is noted only for rejection.

4 The evidence of PW 1 is broadly consistent with the

contents of the First Information Report. She has given a graphic

narration of the manner in which the accused exploited her sexually.

She has deposed that the accused subjected her to sexual intercourse

in the house of one Vimal Hichami, threatened to make public the

video clip of the sexual act, called her to the said block rented by

Vimal and again by issuing threats to upload the video clip on

Internet subjected the victim to sexual intercourse, on several

occasions. PW 1 has deposed that the accused used to send her

messages on cellphone and used to call her to the residence of friend

Sanjay and there used to subject her to sexual intercourse. She has

deposed that the accused not only issued threat of making the video

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clip public, he also demanded from her Rs. 20,000/-.

The victim is subjected to intensive cross-examination.

However, she has emerged as a reliable and creditworthy witness.

Notwithstanding that in the 313 statement of defence of total denial

is taken, the suggestion given to the victim would indicate that

according to the defence the sexual relationship, if any, was

consensual.

5 The evidence of PW 6 Dr. Pravin Kilnake reveals that the

hymen of the victim was torn. Since the conscious of this court is

satisfied that the evidence of the victim is reliable and confidence

inspiring, this Court is not obligated to seek corroboration.

Arguendo, even if corroboration is to be sought, the medical evidence

is a strong corroborative circumstance. The mobile phones of the

victim and the accused and other articles containing electronic data

were sent in six sealed covers to the State Regional Forensic

Laboratory, Nagpur. The data was retrieved by the Scientific Officer

of the said laboratory who issued examination report Exh. 19. The

data, which was then copied into a DVD reveals that the accused sent

crass, sordid and abusively threatening messages to the victim.

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Illustratively, the following messages are sent by the accused to the

victim:

1] Message sent by accused on 23.11.2015 at 03.37.09 a.m.
KAL DAWAKHANE JAKR HIV TEST KARATA HU. AUR MUZE
BIMARI NIKLI TO MADARCHOD TUZE NANGI KR KE PURE
COLONI ME GHUMAUNGA. KYO KE MAINE TERE ALAWA KISIKE
SATH SEX NHI KIYA.

2] Message sent by accused on 23.11.2015 at 03.39.12 a.m.
PTA NHI SALI RANDI KITNE GANJATTI AUR BEWDO KE SATH SEX
KI HOGI TO,

3] Message sent by accused on 1.12.2015 at 12.23.15 p.m.
AAJ TU MUZE MIL. MERE SATH SOYI NAHI TO TUZE JAN SE MAR
DUNGA.

4] Message sent by accused on 1.12.2015 at 12.44.02 p.m.
TU ROOM PAR NAHI AAYI AUR MERE SATH NAHI SOYI
TO MAI TERI MAA KO BATA DUNGA AUR TUZE BADNAM KAR
DUNGA. MUZE 20,000 RUPAYE BHI AAJ LAKAR DE.

6 The finding recorded by the learned Sessions Judge that

the accused exploited the victim, subjected her to sexual intercourse

by issuing threat that the video clip of the sexual act will be made

public and that the accused demanded Rs. 20,000/-, is

unexceptionable. Pursuant to memorandum statement recorded

under section 27 of the Indian Evidence Act, memory card and

mobile phones were recovered and seized from the house of the

accused. PW 3 Diwakar, the panch to Exh. 42 initially did not

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support the prosecution, however, in the cross-examination on behalf

of the prosecution he proved the recovery and seizure of memory

card vide Exh. 42, mobile phone manufactured by Carbon having sim

card of Idea, 8 GB memory card of Sandisk, Samsung mobile phone,

4 GB mobile card of micro chip. PW 3 identified the seized property.

PW 3 denied that a mobile phone of Micromax make was also seized

from the mother of the accused, and the seizure is proved by PW 5 –

the Investigating Officer – Satish Sonekar. The original devices

containing the data are produced during the evidence and duly

identified by the victim, PW 3 and PW 5. Other than vulgar and

abusive messages sent by the accused to the victim, the data contains

audio recordings suggesting that the accused threatened and

emotionally tortured the victim and demanded money claiming to be

in possession of video clips which would be made public if the

demand is not satisfied.

7 This Court has already observed that the evidence of the

victim is of sterling quality and this Court is not obligated to search

for corroboration. In the present case although the conviction can

rest on the sole testimony of the victim, there is medical and

electronic evidence on record which conclusively proves offence

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punishable under section (2)(n), 387 of IPC and under section 11(v)

read with section 12 of POCSO Act.

8 The appeal is sans merit and is rejected.

JUDGE

RSB

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