Bombay High Court
Guruprasad S/O. Daulat Bhalavi vs The State Of Maharashtra Thr. P.S.O. ... on 4 July, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.88 OF 2019
Guruprasad s/o Daulat Bhalavi,
Aged about 26 years, Occu.- Labour,
R/o Sawandanti, Tahsil - Ramtek,
District - Nagpur. .... APPELLANT
VERSUS
The State of Maharashtra,
through P.S.O. Deolapar,
Tahsil and District Nagpur. .... RESPONDENT
______________________________________________________________
Shri Ashwin Wasnik, Counsel for the appellant,
Shri Amit Chutake, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 4th JULY, 2019.
ORAL JUDGMENT :
This appeal is directed against the judgment dated 21-8-2018 rendered by the learned Additional Sessions Judge, Nagpur in Special POCSO Case 224/2016, whereby the appellant-who shall be referred to as the 'accused'-is convicted as follows :
Offence Punishment Section 344 of the IPC Rigorous Imprisonment for one year and payment of fine of ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 2 apeal88.19 Rs.1,000/-, in default to undergo simple imprisonment for one month. Section 354-A of the IPC Rigorous Imprisonment for two years and payment of fine of Rs.1,000/-, in default to undergo simple imprisonment for one month. Section 323 of the IPC Rigorous imprisonment for six months. Section 506 of the IPC Rigorous imprisonment for one year.
Section 376(2)(f)(n) of the IPC Rigorous imprisonment for ten and Sections 4,5(j)(ii)(l)(n), 6 of years and to payment of fine of the POCSO Act. Rs.5,000/-, in default to undergo simple imprisonment for two months.
2. The prosecution case :-
The victim (PW 1) who was aged 16 years lodged report dated 14-5-2016 (Exhibit 16) at Deolapar Police Station, the gist of which is as follows :
i) The accused is the maternal uncle of the victim. In the month of June 2015, the victim went to the house of the accused to attend the naming ceremony of the child of the younger brother of the accused. The victim was sexually molested by the accused who used to touch her private parts. The victim used to protest and the accused used to pacify her saying that he loved her.::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 :::
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ii) It is alleged that in the second week of June 2015, when she was sleeping alone, the accused approached her, slept besides her and starting touching her in an appropriate manner. The victim awoke and noticing the accused, attempting to shout. She was threatened by the accused. The accused then subjected her to sexually intercourse. Due to fear, the victim did not disclose the incident to anyone.
iii) Thereafter the accused established sexual contact with the victim on multiple occasions when the other family members were not in the house. The victim suffered the sexual assaults fearing that she would be killed by the accused if she disclosed the sexual misconduct of the accused to the other family members or if she fled from the house.
iv) The victim states in the report that she was not permitted to move out of the house alone and was made to accompany the accused whenever he left the house. The accused used to come home drunk and terrorise the family members who were living in mortal fear.
v) The health of the victim deteriorated. The accused took the victim to the Government Hospital at Manegaon. The medical examination revealed that the victim was pregnant.
vi) In March 2016, the accused sent the victim alongwith her ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 4 apeal88.19 grandmother to Paoni market. While her grandmother was purchasing vegetables, the victim took the opportunity of fleeing. The victim went to Mansar and then took a bus to Saoner and took shelter in the house of her maternal aunt (mother's sister) and the next day went to her house at Patansawangi. The health of the victim deteriorated day by day. Fearing social stigma the victim did not disclose that she was pregnant. However, when the victim was admitted in the Saoner Hospital, her mother came to know that the victim was pregnant. She enquired and the victim narrated the sexual misconduct of the accused to her. The victim accompanied by her parents and maternal aunt went to the police station to lodge the report.
3. The prosecution examined ten witnesses. PW 1 is the victim, PW 2-Devki Salame is the mother of the victim, PW 3-Gita Dhurve is the sister of the mother of the victim, PW 4-Dr. Sanjay Meshram and PW 5-Dr. Sangita Jain are the Medical Officers, PW 6-Dr. Pramod Kodape is the Resident Doctor, PW 7-Pratima Telgote is the lady Constable who accompanied the victim to the Mayo Hospital for her medical examination, PW 8-Bhaurao Dhurve is the Headmaster who proved the school record, PW 9-Ashok Sonawane is the panch witness and PW 10-Namdev Pujari is the Investigating Officer. ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 :::
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4. The defence of the accused is of total denial. In the cross- examination of the prosecution witnesses, it is suggested that the victim is habituated to lodging complaints under the provisions of the Protection of Children from Sexual Offences Act ("POCSO Act" for short). The accused did not enter the witness box nor was any witness examined in defence.
5. The learned Sessions Judge held that the prosecution proved that the victim was a child as on the date of the incident. The evidence of the victim is found reliable and confidence inspiring. The disclosure made by the victim to her mother is considered as relevant material of corroborative value. The learned Sessions Judge took note of the presumption under Section 29 of the POCSO Act and held that the defence is not established and the presumption is not rebutted. The learned Sessions Judge noted that the DNA report below Exhibit 17 which opines that the victim and the accused are the biological parents of the child victim, is not challenged.
6. I have heard Shri Ashwin Wasnik, learned Counsel for the appellant and Shri Amit Chutake, learned Additional Public Prosecutor for the respondent-State. With their able assistance, I have minutely ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 6 apeal88.19 scrutinized the record and the reasons recorded by the learned Sessions Judge.
7. The seminal issue is whether the prosecution has established that as on the date of the incident the victim was a child within the meaning of Section 2(d) of the POCSO Act. A strenuous attempt is made by the learned Counsel Shri Ashwin Wasnik that the prosecution failed to establish that the victim was aged less than 18 years. The challenge to the age of the victim is the thrust of the submissions presumably in view of the overwhelming and clinching evidence on record that the accused and the victim were in sexual relationship from which the victim gave birth to a male child and the victim and the accused are the biological parents of the child, if the DNA report is accepted. The learned Sessions Judge has observed that there is no challenge to the DNA report. In this appeal, no submission is advanced assailing the DNA report nor is any material brought to my notice which would affect the admissibility or probative value of the DNA report.
8. The DNA report apart, the evidence of the victim PW 1 is consistent with the report, and is implicitly reliable. No omission ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 7 apeal88.19 partaking the character of contradiction or any other infirmity is brought out in the cross-examination. General suggestions are given that the accused did not subject the victim to forcible sexual intercourse and that the victim was in a relationship with one Sunil Uike. The suggestions are denied. It is brought on record in the cross- examination that the accused narrated the name and address of the victim to the doctor and stated the age of the victim as 20 years. The victim is confronted with the medical card of the Saoner Hospital. The response of the victim is that the doctor refused to treat her unless the name of the father of the child is disclosed. This is in the context of the name disclosed which suggests that the victim is the wife of the accused and is aged 20 years. The disclosure of age as 20 years is of no significance and was obviously at the instance of the accused. I am satisfied, that the evidence of the victim is confidence inspiring.
9. No corroboration is necessary if the evidence of the victim of sexual assault is found trustworthy. If the evidence is not implicitly reliable, assurance, short of corroboration can be sought from other evidence.
10. Sufficient assurance of the credibility and veracity of the ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 8 apeal88.19 version of the victim is available from the evidence on record. The evidence of PW 2-Devki Salame, who is the mother of the victim and who speaks of the disclosure made by the victim, is consistent with the version of the victim. Similar is the evidence of PW 3-Gita Dhurve who is the sister of PW 2. PW 5-Dr. Sangita Jain examined the victim on 11-5-2016 and diagnosed the pregnancy. PW 5 states that the victim was carrying fetus of five and half months. PW 5 has deposed that though the victim was insisting on aborting the fetus, she refused to oblige since abortion at the advanced stage of pregnancy would have endangered the victim's life. PW 6-Dr. Promod Kodape is the Resident Medical Officer at the Forensic Department who medically examined the victim and proved the report Exhibit 42 and the sonography report Exhibit 43. PW 6-Dr. Pramod Kodape has deposed that he collected the samples for the purpose of DNA profiling and handed over the samples to WPC Pratima in sealed condition. The evidence that PW 6-Dr. Pramod Kodape collected the samples for DNA profiling, sealed the samples and handed them over to PWC Pratima is not challenged in the cross-examination. PW 7-Pratima Telgote states that she deposited the samples in the police station. A bare suggestion is given that she did not deposit the sample in the police station, which suggestion is denied. PW 10-Namdev Pujari is the Investigating Officer, who has ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 9 apeal88.19 stated that the samples collected by WPC Kalpana which she deposited in the police station in sealed condition were seized in presence of panchas vide seizure panchanama Exhibit 62 and after the birth of the child, the DNA sample of the new born child was collected and then the DNA sample of the accused, the victim and the child were sent to Chemical Analyzer. Nothing is brought out in the cross-examination to discredit the testimony of the Investigating Officer. There is no serious challenge to the testimony that the samples were collected, sealed and forwarded for chemical analysis in sealed condition. A bare suggestion is given that the Investigating Officer did not collect or seal the samples of the victim, the accused and the new born child, is denied.
11. Considering the evidence on record, it is irrefutable that the prosecution has established beyond reasonable doubt that the accused subjected the victim to sexual intercourse and that the victim conceived and delivered a male child. The accused and the victim are the biological parents of the male child. In the context of the evidence on record, all that remains to be seen is whether there is any merit in the submission of the learned Counsel for the accused that the prosecution has not proved that the victim was a child as on the date of the incident.
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12. The victim has deposed that her date of birth is 22-5-1999. It is not even suggested to the victim in the cross-examination that the date of birth of the victim is not 22-5-1999. The evidence of the victim on the date of birth has gone unchallenged. The victim has also stated in the report that she is aged 16 years. The mother of the victim PW 2 states that the victim was 13-14 years old as on the date of the incident. In the cross-examination, she admits that she cannot state the date of birth of the victim. The suggestion that the age of the victim is more than 18 years is, however, denied. PW 8-Bhaurao Dhurve is the Headmaster of the Government Primary School, in which school the victim was admitted in the 1st Standard. PW 8 has deposed that he is incharge of the admissions and other activities of the school and maintains the relevant record. The school register (Exhibit 49) in which the date of birth of the victim is recorded as 22-5-1999 is proved. PW 8 has also proved the entry in the school register taken while issuing the transfer certificate which was issued on 03-12-2013. The date recorded in the School Leaving Certificate/Transfer Certificate and the original register of the school is the same, is the deposition. It is elicited in the cross-examination that PW 8 is not aware whether birth certificate was produced by the victim while securing admission in the school. The witness admits that the school cannot admit ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 11 apeal88.19 student without birth certificate.
13. Shri Amit Chutake, learned Additional Public Prosecutor relies on the decision of the Hon'ble Apex Court in Sarwan Singh vs. State of Punjab, 2004 ALL MR (Cri) 156 (SC) to buttress the submission that if the evidence has gone unchallenged in the cross- examination, the evidence ought to be accepted. The reliance on the said decision is in the context of the accused not cross-examining the victim on the date of birth deposed. Shri Amit Chutake would then rely on the Division Bench judgment of this Court in Kundan s/o Nanaji Pendor vs. The State of Maharashtra, 2017 All MR (Cri) 1137 and particularly paragraph 11 thereof which reads thus :
"11. Since the appellant has been charged with having committed offence under Sections 3(a), 5 (j) (ii) and 5 (l) of 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 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. ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 12 apeal88.19 Nahar Singh (dead) & others [(1998) 3 SCC 561] : [1998 All MR (Cri) 1308] 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 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 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 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."::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 :::
13 apeal88.19 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 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 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."
14. Shri Amit Chutake would further rely on the decision of the Hon'ble Apex Court in State of Madhya Pradesh vs. Anoop Singh, (2015) SCC 773 and in particular paragraphs 14, 15 and 16 thereof which read thus :
"14. This Court in Mahadeo v. State of Maharashtra, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under:
"12(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 :::
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(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),
(ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."
15. This Court further held in paragraph 12 of Mahadeo as under:
"12. ...under Rule 12(3)(b), it is specifically provided that only in absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.
(Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In para 13, this Court observed (Mahadeo vase, SCC p.641)
13. In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the proseuctrix did her Vth standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.5.1990 and this document ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 15 apeal88.19 was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.5.1990. The reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same."
16. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P-5 and P-6 cannot be discarded. Therefore, the trial Court was correct in relying on the documents."
15. Shri Ashwin Wasnik, learned Counsel for the accused would rely on the Division Bench decision of this Court in Ravi Anandrao Gurpude vs. State of Maharashtra, 2017 All MR (Cr) 1509. The Division Bench articulated that the prosecution is under the bounden duty to prove that the victim is a child within the meaning of Section 2(d) of the POCSO Act. The Division Bench holds that since the provisions of the POCSO Act are stringent and Section 29 thereof provides for statutory presumption, the degree of proof is stricter. I am respectfully bound by the enunciation of law by the Division Bench. However, the said decision is of no assistance to the accused in the ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 ::: 16 apeal88.19 facts of the present case. It does not appear from the facts noted by the Division Bench that the evidence of the prosecutrix on the date of birth remained unchallenged. In Ravi Anandrao Gurpude vs. State of Maharashtra, the birth certificate recorded name of the child as "Bali". The Division Bench notes that there is no evidence to connect the name Bali with the victim. The decision in Ravi Anandrao Gurpude Vs. State of Maharashtra, turns on the facts of that case. As I have observed supra, the evidence of the prosecutrix having gone unchallenged, in view of the enunciation of law in Kundan s/o Nanaji Pendor vs. The State of Maharashtra, it must be held that the date of birth as disclosed by the victim is not in dispute.
16. In the light of the discussion supra, I am satisfied that the judgment of conviction needs no interference and the appeal merits dismissal.
17. The appeal is dismissed.
JUDGE adgokar ::: Uploaded on - 06/07/2019 ::: Downloaded on - 06/07/2019 23:01:43 :::