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Shri. Kiran S/O. Prabhunath Verma vs The State Of Maharashtra Thr. … on 11 July, 2018

1 jg.apeal 179.17.odt

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

CRIMINAL APPEAL NO. 179 OF 2017

Shri Kiran S/o Prabhunath Verma
Aged about 25 years, Occ – Labour,
R/o Shanti Nagar, Bengali Camp,
Chandrapur. … Appellant

VERSUS

The State of Maharashtra Through
Police Station Officer, Ramnagar,
Chandrapur, Tah And District Chandrapur. … Respondent
————————————————————————————————-
Shri Y. B. Mandpe, Advocate for the appellant
Shri A. D. Sonak, Additional Public Prosecutor for the respondent
———————————————————————————————————————–

CORAM : P. N. DESHMUKH AND
M. G. GIRATKAR, JJ.

Date of reserving the judgment : 21/06/2018.

Date of pronouncing the judgment : 11/07/2018.

Judgment (Per : M.G. Giratkar, J)

Appellant assailed the judgment in Spl. POCSO Case No.

85/2015 passed by learned Special Judge and Additional Sessions

Judge, Chandrapur dated 1-4-2017 by which he is convicted as under :-

(1) Appellant/accused is convicted for the offence punishable under

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Section 354A[1][i] of the Indian Penal Code and sentenced to undergo

rigorous imprisonment of three years and a fine of Rs. 2000/-. In

default of payment of fine to undergo simple imprisonment of one

month.

(2) Appellant/accused is convicted for the offence punishable under

Sections 376[2][f] [i] of the Indian Penal Code, read with Section 5

and 6 of the Prevention of Children from Sexual Offence Act, 2012 and

sentenced to undergo life imprisonment and a fine of Rs. 10,000/-. In

default of payment of fine to undergo simple imprisonment of five

months.

(3) Appellant/accused is convicted for the offence punishable under

Section 506II of the Indian Penal Code and sentenced to undergo

rigorous imprisonment of three years and a fine of Rs. 2000/-. In

default of payment of fine to undergo simple imprisonment of one

month.

2. The case of the prosecution against appellant (hereinafter

referred to as ‘accused’) in short is as under.

(i) Victim aged about 14 years was residing with her father, brother

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and sister. Her mother expired before three years of the incident. She

was learning in 9th Standard. Since 2015, she was not going to school.

She used to do household work. Her father used to do labour work.

(ii) Accused is her uncle aged about 25 years. He was married one

month before the incident. Accused had illicit relations with one Sujata.

There was quarrel between accused and his wife, therefore, she went to

her parent’s house. Two months before the incident, accused purchased

Scooty. Victim requested him to teach her driving. Accused taken her

on his Scooty. While victim was driving Scooty, accused pressed her

breasts.

(iii) On 14-7-2015 at about 5.30 p.m. accused called victim to his

house. He gave Rs. 20/- to her and directed her to bring Thums-Up

bottle. She purchased Thums-Up bottle and taken to the house of

accused. She handed over bottle to the accused and went to her house.

She was called by Sujata. She went to the house of accused. Accused

given her Thums-Up. She consumed Thums-Up and went to her house.

She started cooking. After cooking, they were about to sleep. Accused

called her at about 9.30 p.m. and taken her near railway bridge.

Accused pressed her breasts. Accused removed her clothes and did

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sexual intercourse with her. Accused threatened her if she disclosed

incident to anybody, he will kill her. Accused taken her to her house in

the night about 3.00 a.m.

(iv) On 15-7-2015 at about 5.30 p.m., accused called her. She did not

go. Accused tried to drag her. She rescued herself and ran away. She

narrated incident to her grandmother. Her grandmother taken her to

one social worker Sunita. She disclosed incident before Sunita and

grandmother. Thereafter she was taken to child helpline. On

16-7-2015, she was taken to the police station. Her report was reduced

into writing by PSI Wakpanjar.

(v) Crime was registered (Exhibit 18). API Kale investigated crime.

Victim was sent for medical examination. Medical Officer examined her

on 16-7-2015. Accused was arrested. Spot panchanama was prepared

in presence of panchas. Cloths of accused and victim were seized.

Seized property were sent to Chemical Analyser. After complete

investigation, charge-sheet was filed before the Judicial Magistrate First

Class, who in turn committed the same to the Court of Sessions for trial.

(vi) Charge was framed at Exhibit 10. Same was readover and

explained to the accused. Accused pleaded not guilty and claimed to be

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tried. Prosecution has examined 7 witnesses. Statement of accused

under Section 313 of the Code of Criminal Procedure was recorded.

He has denied material incriminating evidence against him. At the

conclusion of trial, accused came to be convicted as stated above.

3. Heard learned counsel Shri Mandpe for the accused/

appellant. He has pointed out cross-examination of the victim and

submitted that incident took place on railway track under the bridge.

Medical Officer not found any injury on the person of the victim.

Medical Officer not given any definite opinion about the sexual

intercourse. Learned counsel has submitted that there was dispute in

between father of victim and accused on account of partition of

ancestral property. Therefore, he is falsely implicated in the crime.

4. Learned counsel Shri Mandpe has submitted that age of

victim is not proved by the prosecution. Exhibit 55, birth certificate is

not proved by examining the concerned officer. Learned counsel has

submitted that the victim was more than 18 years old. Learned counsel

has submitted that prosecution has failed to prove the guilt of accused

beyond reasonable doubt. Learned trial Court wrongly convicted the

accused, hence, prayed to allow the appeal and acquit the accused for

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the offence charged against him.

5. Heard learned Additional Public Prosecutor Shri Sonak for

the State/respondent. He has pointed out evidence on record and

submitted that victim was minor, aged about 14 years at the time of

incident. There was no any reason for the victim to falsely implicate her

uncle at the stake of her future/character. Medical evidence of P.W. 6

shows that her hymen was torn. She was subjected to sexual

intercourse.

6. Learned Additional Public Prosecutor has submitted that

material evidence of victim in respect of her date of birth is not

challenged by the prosecution. She was minor at the time of incident,

aged about 14 years. Her evidence is corroborated by medical evidence.

Evidence of father P.W. 4, P.W. 3 Manoj Patil and P.W. 5 Sunita Singh

corroborates her version. Learned trial Court rightly considered all the

evidence properly. There is no illegality in the judgment, hence, appeal

is liable to be dismissed.

7. Evidence of victim (P.W. 1) show that her mother died four

years back. Accused is her uncle. Her father is a vegetable vendor.

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Accused resides near her house. Marriage of accused was solemnized

before the incident. Even after marriage, he had illicit relations with

one Sujata. Because of Sujata, there was quarrel in between accused

and his wife, therefore, she went to her maternal house.

8. Two months before the incident, accused had purchased

Scooty. Victim requested accused to teach her vehicle. Accused took

her on bypass road at about 8.00 p.m. to teach her how to drive the

vehicle. At that time, accused had pressed her breasts. She asked him

to leave her at home, but, he did not leave her at home and told her that

he would teach her how to drive the vehicle. While driving, she gave

dash to one car. There was quarrel between accused and car driver.

Thereafter she came to house at about 10.00 p.m.

9. On 14-7-2015, accused called her at 5.30 p.m. He gave her

Rs. 20/- to bring cold drink from the shop. She brought cold drink. She

went to her house. After sometime, Sujata called her saying that

accused was calling her. She went to the house of accused. Accused

gave Thums-Up bottle. She consumed cold drink and went to her house.

Victim has further stated that in the same night about about 9.00 to

9.30 p.m. accused called her for sweeping the house. When she went,

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accused told her that she should come with him. She was feeling dizzy.

Accused dragged her to railway track. There was dark. Accused pressed

her breasts, fell down her, took out her cloths and committed sexual

intercourse with her. She was feeling pain. He took her to one Aunty

and left there. At about 3.00 a.m., he came and taken her to her house.

Accused threatened her if she narrate this to anybody, he would kill her.

10. P.W. 1 has further stated that on 15 th again, accused called

her and was taking her to railway track forcibly. She gave him jolt and

ran away towards her grandmother. She told her about the incident.

Her grandmother took her to the house of Sunita Singh Aunty. She

went with her father and grandmother to Sunita Singh. Thereafter they

met Manoj and Hemlata. Thereafter she was taken to Balgruha Center.

On next day, she lodged report, Exhibit 17.

11. In the night at about 12.00, she was sent for medical

examination. In the cross-examination, she has stated that her father

and uncle are having ancestral property at Uttar Pradesh. Said property

is not partitioned. Her father is not on talking terms with the accused

and his family members. She was visiting to the house of accused.

There was dispute in between her father and uncle about the partition of

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property at Uttar Pradesh. It is tried to bring on record in the cross-

examination that accused is falsely involved in the crime, but she has

denied material suggestions.

12. P.W. 2 has stated in his evidence that police seized cloths of

accused and victim vide seizure panchanama, Exhibit 27 to 30. P.W. 3

Manoj Patil has stated in his evidence that police took him to the spot of

incident and prepared spot panchanama, Exhibit 34. He was working at

Childline 1098. Victim and her father came to them and told them

about the incident. Thereafter they went to police station. Police

recorded her statement in their presence.

13. P.W. 4, father of victim has stated in his evidence that

accused is his step brother. He returned from work at about 6.00 p.m.

He took meal with his children. He asked victim to hang mosquito net.

When he returned from bathroom, victim was not found. He inquired in

the neighbourhood. They searched the victim till 1.00 p.m. At about

3.00 a.m. accused brought his daughter. His daughter was being afraid,

she was crying, therefore, he did not ask anything to her. On the next

day at about 5.30 p.m., he saw his daughter going along with her

grandmother towards the house of Sunita. He also went there. Victim

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narrated incident to Sunitasingh Thakur and her grandmother. He also

heard it. His daughter told them that accused raped her inside railway

bridge. She also disclosed that she tried to scream but accused

threatened her, therefore, she could not shout. Sunitasingh taken her to

Child Helpline and registered her name. Thereafter report was lodged.

14. P.W. 5 Sunita Singh has stated that she helped grandmother

of victim for preparing her voting card etc., therefore, her grandmother

was knowing to her. Grandmother of victim brought her. Victim

narrated the incident. She called para legal aid volunteer. Thereafter

they went to office of childline. Victim narrated incident. Report was

lodged.

15. P.W. 6 Medical Officer has stated in her evidence that on

16-7-2015, she examined the victim and found following observations :-

(1) Her general physical condition was within normal limits.

(2) On her genital examination vagina admit one finger easily

and two fingers with slight difficulty.

(3) Her hymen was old torn, healed at 1.00 O’Clock and 4.00

O’Clock in position.

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16. P.W. 6 Medical Officer answered the queries. Victim was

able to have sexual intercourse. She has stated that her hymen had tear.

Victim might have been subjected to sexual intercourse and it might

have occurred prior to 7 days of medical examination. Victim was

referred for ossification test for determining her actual age. Accordingly

she issued MLC, Exhibit 45 and 46.

17. P.W. 7 API Chandrakant Kale has stated about the

investigation. There is nothing in cross-examination of victim to

disbelieve her testimony. Learned counsel has submitted that there was

no any injury on the person of victim. It is pertinent to note that

photographs of the spot of incident proved by the prosecution show that

it was a place under the railway bridge. Incident took place before 2-3

days of her medical examination. Her evidence cannot be discarded

only because there was no injury on her person. There was no any

reason for the victim to depose falsely against her uncle. It appears from

her evidence that she was always visiting to the house of accused. There

was no such enmity as suggested by the defence. Her father was also

not objected to her visit to the house of accused.

18. Evidence of victim is corroborated by the evidence of

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Medical Officer. As per evidence of Medical Officer, there was sexual

intercourse with the victim. Victim was aged about 14 years. Victim has

stated her age in her examination-in-chief as 14 years. She has stated

that her date of birth is 25-11-2001. This is corroborated by Birth

Certificate issued by Municipal Council, Chandrapur. Her date of birth

as per Exhibit 55 is 25-11-2001. Ossification test report is at Exhibit 51.

It shows that age of victim was in between 14 to 15 years and not less

than 14 and not more than 16 years.

19. Learned counsel Shri Mandpe has submitted that

ossification test report and birth certificate are not duly proved by

examining the concerned officer. In support of his submissions, he

pointed out decision in the case of Sunil Vs. State of Haryana reported

in 2010 AIR (SC) 392. Their Lordships of Apex Court has held that

“conviction cannot be based on approximate date which is not supported

by a record. Omission to get verification from Dental Surgeon and

Radiologist, despite, same was referred, held, a serious flaw in

prosecution version. No rule that all the tests must be performed in all

cases, but, in absence of primary evidence those reports would have

helped the Court in arriving at a conclusion regarding the age of

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prosecutrix. Admission Form of the School not produced. School

Leaving Certificate, too, found unreliable.”

20. In the case of State of Himachal Pradesh Vs. Rajeev

Kumar ors. reported in 2017 ALL MR (Cri) JOURNAL 432, Their

Lordships have observed that “extracts of Parivar Register is not a legally

acceptable piece of evidence. Even for placing reliance on birth

certificate, its authenticity is to be established by examining the person

making relevant entries. Birth and Death Register produced in Court,

however, its authenticity not established. Documentary evidence

insufficient to establish age of prosecutrix. Oral evidence of mother that

prosecutrix was admitted in the school at the age of 6. At the time of

incident, she was student of 10 th Standard (after failing twice or thrice).

Age of prosecutrix was therefore not less than 18 years. Conduct of

prosecutrix in visiting several places with accused without any protest,

also demonstrates her maturity.”

21. In the case of Satpal Singh Vs. State of Haryana reported

in 2010 ALL SCR 2526, Their Lordships of Apex Court have observed

that “entry in school register/certificate requires to be proved in

accordance with law. No material to corroborate the date of birth of the

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prosecutrix recorded in the School Register nor it was shown as to who

was the person who had recorded her date of birth in the Primary

School Register. It cannot be held with certainty that the prosecutrix

was a major.”

22. In the present case, the victim has stated in her deposition

before the Court her age as 14 years. She has specifically stated her

date of birth as 25-11-2001. This particular evidence is not denied by

the defence. Her evidence is corroborated by the Birth Certificate,

Exhibit 55. Exhibit 55 is a certified copy of birth register maintained by

public authority. Exhibit 55 shows her date of birth as 25-11-2001.

Exhibit 51, ossification test report shows that her age was in between 14

and 15 years. Documents, Exhibit 51 and 55 came to be proved by the

Investigating Officer. But there is no effective cross-examination to deny

both the documents, Exhibit 51 and 55. In fact, defence not denied both

the documents, Exhibit 51 and 55.

23. Evidence of victim that her date of birth is 25-11-2001 is

not denied in her cross-examination. Document Exhibit 51, ossification

test report shows that her age was in between 14 and 15 years. Exhibit

55, certified copy of birth certificate shows that her date of birth is

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25-11-2001. Both these documents are not denied by the defence.

Moreover, learned trial Court recorded its observation that victim was

child at the time of recording her statement. In view of undisputed fact

about the date of birth of victim, it is clear that victim was minor below

18 years at the time of incident. Therefore, defence of the accused that

she was consenting party for sexual intercourse has no force.

24. Medical evidence shows that victim had sexual intercourse.

Her hymen was torn. Victim could not dare to disclose the incident

immediately to her father because accused who is her uncle threatened

her to kill if she disclosed the same. For the first time, victim disclosed

the incident before one social worker, namely, Sunita Singh (P.W. 5).

Thereafter she was taken to child helpline. Manoj Patil who was

working at childline helped the victim to take her to the police station.

25. There is nothing on record to show that accused is falsely

implicated by the victim on the say of her father. The only defence of

the accused is enmity between him and father of victim on account

of partition of joint family property situated at Uttar Pradesh. It is

pertinent to note that evidence of victim and her father show that victim

was always visiting to the house of accused. This itself shows that there

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was no such enmity as suggested by the defence. Therefore, false

implication by the victim on that ground is not digestible. Moreover, the

victim, a young girl, aged about 14 years could not falsely make

allegations at the stake of her character and her future life. Victim tried

to suppress the act of accused. Previously, accused pressed her breasts

but she did not disclose. Even the fact of sexual intercourse was not

disclosed by her. She would not have disclosed but accused compelled

her to disclose the said fact because on the next day also, accused tried

to take her to the same spot (railway line) for sexual intercourse,

anyhow, she rescued and ran away. Thereafter, she narrated the

incident to her grandmother who had taken her to social worker Sunita

Singh. Looking to the relations, victim would not have disclosed but she

was compelled to disclose because accused again tried to ravish her.

26. Evidence on record show that victim was aged about 14

years. She has stated her date of birth as 25-11-2001, which is not

denied by the defence. Documents viz. ossification test report, Exhibit

51 and birth certificate, Exhibit 55 are not denied by the defence in

the cross-examination of Investigating Officer who has proved both

the documents. Both documents cannot be thrown out merely because

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authenticity of the documents are not proved. It appears from the cross-

examination that both the documents, Exhibit 51 and 55 are admitted

by the defence. Her date of birth is also admitted by the defence

because it is not denied.

27. Victim was minor, aged about 14 years. Even she was

consenting party for sexual intercourse, then also, it constitute an

offence of rape. Learned trial Court rightly convicted the accused for the

offence charged against him.

28. Learned counsel Shri Mandpe has submitted that accused is

a young person aged about 25 years, therefore, sentence awarded by the

trial Court be reduced to the minimum. Looking to the age of accused,

we find that life imprisonment awarded by the trial Court is a harsh

punishment, therefore, minimum punishment is to be awarded. With

these findings, we proceed to pass the following order.

ORDER

(i) The appeal is partly allowed.

(ii) Conviction of appellant/accused for the offence punishable

under Sections 354A[1][i] and 506II of the Indian Penal Code

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is maintained. However, conviction of appellant/accused for

the offences punishable under Sections 376[2][f] [i] of the

Indian Penal Code read with Section 5 and 6 of the Prevention

of Children from Sexual Offence Act, 2012 is modified as

under :-

“Accused is convicted for the offences punishable under

Sections 376[2][f] [i] of the Indian Penal Code read with

Section 5 and 6 of the Prevention of Children from Sexual

Offence Act, 2012 and sentenced to suffer rigorous

imprisonment for 10 years and shall pay a fine of Rs. 5,000/-

(Rupees Five Thousand Only) in default to suffer simple

imprisonment for six months.”

(iii) Rest of the operative part of judgment passed by the trial

Court is maintained as it is.

(iv) R P be sent back to the trial Court.

                        JUDGE                                         JUDGE

wasnik

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