Bombay High Court
Sanjay Digambar Sukhdeve (In Jail) vs The State Of Maharashtra Thr. Police ... on 22 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
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
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Shri C.R. Thakur, counsel for the appellant.
Shri. N. H. Joshi, Addl. Public Prosecutor for respondent.
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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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:36 ::: 2 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:36 ::: 3 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:36 ::: 4 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. ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:36 ::: 5
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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:36 ::: 6 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:36 ::: 7 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:37 ::: 8 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:37 ::: 9 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. ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:37 ::: 10 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:37 ::: 11 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:37 ::: 12 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 ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:30:37 :::