Bombay High Court
Shri. Kiran S/O. Prabhunath Verma vs The State Of Maharashtra Thr. Police ... on 11 July, 2018
Author: M.G. Giratkar
Bench: P. N. Deshmukh, M. G. Giratkar
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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
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Shri Y. B. Mandpe, Advocate for the appellant
Shri A. D. Sonak, Additional Public Prosecutor for the respondent
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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 ::: Uploaded on - 11/07/2018 ::: Downloaded on - 14/07/2018 01:26:04 ::: 18 jg.apeal 179.17.odt 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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