Bombay High Court
Pradip Devidas Dongre vs The State Of Maharashtra Thr. Police ... on 29 January, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.230/2018
Pradip Devidas Dongre,
aged 27 years, Occ. Private Service,
r/o Indiranagar, Wadegaon,
Tq. Balapur, Dist. Akola. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
Police Station Officer, Police Station,
Balapur, Dist. Akola ...RESPONDENT
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Mr. S. V. Sirpurkar, Advocate for appellant.
Mr. S. M. Ghodeswar, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 29.01.2019
ORAL JUDGMENT
1. By the present appeal, appellant is challenging judgment and order of conviction dated 22.11.2017 passed by learned Additional Sessions Judge-2, Akola in Sessions Trial No.114/2016, whereby appellant was found guilty for an offence punishable under Section 4 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act) and under Section 376 (2) (i) of the Indian Penal Code (IPC). Appellant is directed to suffer rigorous imprisonment for 10 years for committing offence punishable under Section 4 of the POCSO Act and also directed to ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 ::: 2 apeal230.18.odt pay fine amount of Rs.3,000/-, with default clause. Though the appellant was found to be guilty for the offence under Section 376 (2)(i) of the IPC, no separate sentence is awarded for said offence.
3. I have heard Mr.Sirpurkar, learned counsel for appellant and Mr. Ghodeswar, learned A.P.P. for State in extenso. I have also perused record and proceeding and notes of evidence.
4. The only point that is raised before this Court by learned counsel for the appellant is that prosecution has utterly failed to prove age of the victim. It is the submission that for want of admissible evidence, it would be an error in recording a finding that the victim was child within the meaning of clause 2 (d) of the POCSO Act and/or the victim was below age of extending consent as envisaged in Section 375 of the IPC. In order to buttress his submissions, he relied on various reported cases of this Court as well as Hon'ble Apex Court. He submitted that conduct of the victim shows that she was a consenting party for sexual relations and if the prosecution fails to prove her age beyond reasonable doubt, benefit of doubt must be extended in favour of appellant. ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 :::
3 apeal230.18.odt Per contra, learned A.P.P. would submit that prosecution has proved date of birth of victim as 01.07.2001 and therefore on the day of incident, she was a "Child" within the meaning of POCSO Act. He also submitted that there cannot be any doubt about sexual relations in between appellant and victim girl in view of Exh.-66, DNA report which shows that appellant is biological father of baby delivered by victim girl. He, therefore, prays for dismissal of the appeal.
5. The prosecution has examined in all 8 witnesses. Saptafula (PW1), mother of victim has lodged oral report Exh.-25 on 21.03.2016 on the basis of which crime was registered at Police Station, Balapur initially for an offence punishable under Sections 363, 366-A of the IPC.
6. Victim is PW2. Ravindra Masne (PW3) is Head Master, who has proved extract of admission register and certificate to show that date of birth of the victim is 01.07.2001. Dr. Dinesh Naitam (PW4) is a Dentist, who proved the age certificate, Exh.- 34, Dr. Subhash Gujarkar (PW5) examined the victim, Dr.Kanchan Bhuibhar (PW6) has done Sonography and gave Sonography ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 ::: 4 apeal230.18.odt report Exh.-40, Dr. Amol Ravankar (PW7) has examined accused and extracted his blood sample for DNA and Manisha Raut (PW8) is the investigating officer.
7. Learned Judge of Court below acquitted the appellant of the offence punishable under Section 363 and 363-A of the IPC. In the present case, in view of DNA report Exh.-66, there cannot be any second opinion about establishment of sexual relations by appellant with victim girl since the victim girl, after full grown pregnancy, delivered a baby and appellant was found to be biological father of the said baby.
8. Since the only question and submission that is raised before this Court by the appellant is regarding age of the victim, this Court is restricting this judgment only to that extent to avoid unnecessarily bulkiness of judgment.
9. Appellant is convicted for the offence punishable under Section 4 of the POCSO Act. This Court in Ravi Anandrao Gurpude .vs. State of Maharashtra, thr. PSO P.S. Bhisi (Coram:
B.R. Gavai & V.M. Deshpande, JJ.) reported in 2017 All.M.R. ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 ::: 5 apeal230.18.odt (Cri.) 1509, found that prosecution is under bounden duty to prove that victim is "Child" and unless the prosecution successfully establishes that the victim is child within the meaning of section 2
(d) of the POCOS Act, accused cannot be convicted for the offence.
In paragraph 9 of said judgment, this Court recorded its opinion that provisions of the POCSO Act are stringent in nature. Even there is a statutory presumption under Section 29 of the POCSO Act. Since the enactment is stringent in nature, the degree of proof is more strict.
10. Oral report is at Exh.-23. It is lodged by Saptafula (PW1), mother of the victim. The oral report is silent about date of birth. Even from witness box, the mother is conspicuously silent regarding date of birth of the victim.
11. Victim (PW2) has stated her date of birth in her examination-in-chief as 01.07.2001, which is seriously challenged in her cross-examination. In addition to that, in her prior statement, the victim does not disclose what is her date of birth. So for the first time from the witness box, the date of birth, which is seriously challenged by the defence was disclosed. ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 :::
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12. The prosecution has examined Ravindrakumar Masne (PW3). This witness from 18.03.2017 is working as Head Master at Dr. Babasaheb Chincholkar Vidyalaya, Wadegaon and before his appointment, Ku. Rajeshwari Deshmukh was Head Mistress of the said school. The victim was student of this school. Her evidence would corroborate that she was student of this school. Head Master Masne (PW3) brought with him original school record at the time of his evidence. In the school register, at Sr. No.1949, name of the victim is reflected and as per the said entry, the date of birth of the victim is 01.07.2001. In his examination in chief itself, the Head Master has admitted that entry of birth is taken on the basis of the previous transfer certificate of the concerned student and the entry was certified by the previous Head Mistress. According to school record, victim left the school in 9 th standard. Photocopy of admission register is produced on record at Exh.-31.
13. Similarly, Head Master Masne (PW3) has proved Exh.-
32. It is the certificate given by this prosecution witness himself in which he has certified that as per entry No.1949 in the admission register, date of birth of the victim is 01.07.2001. ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 :::
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14. From the evidence of Head Master Masne (PW3), it is clear that date of birth was noted in the admission register of the school on the basis of transfer certificate issued by the previous school. Said transfer certificate is not produced on record. Thus, on the basis of Exhs.31 and 32, the prosecution wishes to contend before this Court that date of birth of victim is duly proved by the prosecution. Section 35 of the Indian Evidence Act reads as under:
"35. Relevancy of entry in public [record or an electronic record] made in performance of duty.--An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact."
What would be evidentiary value of admission register and transfer certificate is no more res integra in view of decision of the Hon'ble Apex Court in Birad Mal Singhvi Vs. Anand Purohit; reported in AIR 1988 SC 1796. In this authoritative pronouncement, Hon'ble Apex Court held as under: ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 :::
8 apeal230.18.odt "..To render a document admissible under Section 35 of the Evidence Act three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act, but the entry regarding the age of 3 person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded."
Saptafula (PW1) is mother of victim, who has not deposed the date of birth, has stated that since 19 years, she was residing at Wadegaon where the victim was born. Manisha Raut (PW8), the investigating officer, in her evidence has admitted that she has not obtained birth certificate of the victim from the office of Gram Panchayat, Wadegaon nor she personally checked the gram panchayat record. Explanation for that is offered by Manisha (PW8) that mother of the victim did not confirm place of birth of the victim, which is contrary to the evidence of victim (PW1), who in clear terms, has stated that the victim was born at Wadegaon. Exh.-34 is age certificate proved by Dr. Dinesh Naitam (PW4). His ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 ::: 9 apeal230.18.odt evidence would show that he is a Dentist and since all 4 wisdom teeth of the victim were missing, he found that she was less than 18 years. However, in his cross-examination, he has admitted that it was necessary for determination of accurate age to have radiological investigation. He also admitted that in the case at hand, the said radiological investigation was not followed. Thus, Ossification Test was not conducted for determining the age of the victim. Further, by catena of decisions, this Court as well as Hon'ble Apex Court has ruled that there is a possibility of error of 1 or 2 years on both sides even if Ossification test is conducted.
15. In the present case, since primary document, on the basis of which entry was taken in admission register Exh.-31 and 32, is not placed on record, entry made in Exhs.-31 and 32 cannot be held to be conclusive one and, therefore, in my view, the prosecution has not proved the age of the girl and/or date of birth of the girl conclusively.
16. Conduct and evidence of the victim girl is suggestive that she voluntarily had relations with the appellant. Since the age is not proved, in my view, the prosecution has brought its case ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 ::: 10 apeal230.18.odt under the cloud of doubts and therefore benefit of doubt has to be granted in favour of the appellant. Consequently, I pass the following order.
ORDER
(i) Criminal Appeal No.230/2018 is allowed.
(ii) Judgment and order of conviction dated 22.11.2017 in Sessions Trial No.114/2016 passed by Additional Sessions Judge, Akola convicting appellant- Pradip Devidas Dongare, for an offence punishable under Section 4 of the Protection of Children From Sexual Offences Act and Section 376 (2) (i) the Indian Penal Code, is set aside.
(iii) Appellant is acquitted of the offence
punishable under Section 4 of the Protection of
Children From Sexual Offences Act and Section 376 (2) (i) the Indian Penal Code
(iv) Appellant-Pradip Devidas Dongare is in jail. He shall be released forthwith, if he is not required in any other crime.
JUDGE kahale ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:57:36 :::