Gujarat High Court
Pritam Mansaram Verma vs State Of Gujarat on 18 September, 2019
Author: Harsha Devani
Bench: Harsha Devani
R/CR.A/1445/2019 IA ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2019
In R/CRIMINAL APPEAL NO. 1445 of 2019
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PRITAM MANSARAM VERMA Versus STATE OF GUJARAT ========================================================== Appearance:
MR YOGESH G KANADE for the PETITIONER(s) No. MR CH DAVE, ADDITIONAL PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI Date : 18/09/2019 IA ORDER (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. By this application under section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred as "the Code"), the applicant seeks suspension of the execution of the sentence awarded by the learned Special POCSO Judge, Gandhinagar vide order dated 28.2.2019 passed in Special Case (POCSO) No.69 of 2016 and seeks to be enlarged on bail during the pendency of the appeal.
2. The prosecution case is that the complainant, who is the mother of the victim, lodged a complaint on 22.9.2016 before Police Inspector, Kalol Taluka Police Station, stating that she was residing at Gandhinagar since the last one year and was doing household work. Her husband has passed away about four months prior thereto. She had three daughters and three Page 1 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER sons. The victim was her third child and she was studying at Dhanot Village in the primary school in Standard VII. The birth date of the victim was 19.4.2001. Prior to her husband having passed away, her minor daughter (the victim) was residing in a room at Ronak Plastic Industries, Chhatral GIDC Phase IV with her brotherinlaw and the motherinlaw and she used to go to Dhanot Primary School for studying. That about one month prior thereto, her daughter was bathing at their house in Dhanot village, when her eyes fell on her stomach, and as her stomach was enlarged she suspected something and upon inquiring from her daughter, she told her that nothing had happened. However, as she had doubts and on the next day, as her son was suffering from some kidney problem and was required to be taken to the hospital, she had also taken her daughter to Bhagyoday Hospital at Kadi and upon getting her examined by the doctor, the doctor had said that her daughter was five months' pregnant and advised her to take her for treatment to the Civil Hospital at Ahmedabad. Therefore, she was very frightened. As she did not have the funds for treatment, she had straightway gone home and after taking the victim into confidence, she had questioned her, and the victim had informed that about seven months prior thereto, when her uncle had gone for service and her grandfather was sleeping outside in the courtyard at that time, the appellantPritam Mansaram Verma, who was residing in a room of Ronak Plastic Industries, Chatral GIDC Phase No.4, had opened the door of Page 2 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER the room and come inside and forcibly caught hold of her and had done wrong things with her. Hence, she had started crying whereupon Pritam had told her that if she tells anyone about it, he would kill her brother. Hence out of fear she had not told anyone about the incident. Thereafter, when she was alone in the room, the appellant would come at around 11 o'clock at night and despite her saying no, he would forcibly do wrong things with her without her consent and used to threaten her not to tell anyone. Hence out of fear, she had not told anyone.
The complainant has further stated that as her husband had recently passed away and her son was suffering from kidney ailment, and she did not have sufficient funds to take the victim to the hospital, she had talked with the applicant in this regard, whereupon he had got provoked and hurled abuses and had said that he did not have anything to do with it and threatened her that if she gives his name, he would finish her entire family. Hence, she had informed her brotherinlaw and fatherinlaw about the above incident and they had told her that she need not be afraid of anyone and asked her to inform the police, whereupon she had taken her daughter and gone to the police station and lodged the complaint. She has stated that the applicant herein by taking advantage of her minor daughter aged 15 years and 5 months, who was suffering from paralysis in both her hands and when she was alone, against her wishes, time and again, by having sexual intercourse with her and threatening her not to inform anyone or else he would Page 3 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER kill her son Nitin and other family members and by making her daughter five months pregnant had committed an offence.
3. Mr. Yogesh Kanade, learned advocate for the applicant, vehemently argued that the prosecution has failed to establish beyond reasonable doubt that the victim was born on 19.4.2001, as stated in her deposition as well as by her mother. It was submitted that the prosecution has placed reliance upon a certificate regarding the birth date of the victim issued by the school, whereas, the Principal of the school was not examined to establish as to on what basis such entry had been made in the record. It was submitted that the prosecution has not produced any admissible evidence indicating the age of the victim. Hence, in the absence of any proper evidence having been brought on the record, the prosecution has not proved the charge against the applicant beyond reasonable doubt.
3.1 It was submitted that the trial court had erred in relying upon the certificate issued by the school authorities and the medical test and that in the absence of a birth certificate having brought on the record, the age of the victim was not established. In support of his submissions, the learned advocate placed reliance upon the decision of the Madras High Court in the case of Sabari@ Sabarinathan@ Sabarivasan vs The Inspector of Police, rendered on 26.4.2019 in Criminal Page 4 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER Appeal No.490 of 2018, wherein, the court held thus:
"28. When the girl below 18 years is involved in a relationship with the teen age boy or little over the teen age, it is always a question mark as to how such relationship would be the result of mutual innocence and biological attraction. Such a relationship cannot be construed as an unnatural one or alien to between relationship of opposite sexes. But in such cases where the girl is below 18 years, even though she was capable of giving consent for relationship, being mentally matured, unfortunately, the provisions of the POCSO Act get attracted if such relationship transcends beyond platonic limits, attracting strong arm of law sanctioned by the provisions of POCSO Act, catching up with the so called offender of sexual assault, warranting a severe imprisonment of 7/10 years.
29. Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen age relationship after 16 years, from the cases of sexual Page 5 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence."
The Court had further suggested that such suggestions may be circulated to all concerned by the Department and the suggestions may be translated into deeds by the Government in the larger interest of the society.
3.2 Reliance was also placed upon the decision of the Supreme Court in the case of Mukarrab etc. v. State of U.P., rendered on 30th November, 2016, wherein it was observed that age determination is essential to find out whether or not the person claiming to be a child is below the cutoff age prescribed for application of the Juvenile Justice Act. The issue of age determination is of utmost importance as very few children subjected to the provisions of the Juvenile Justice Act have a birth certificate. As juvenile in conflict with law usually do not have any documentary evidence, age determination, cannot be easily ascertained, specially in borderline cases. Medical examination leaves a margin of about two years on either side even if ossification test of multiple joints is Page 6 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER conducted. The court held that the credibility and/or acceptability of documents like school leaving certificate or voters list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. It was further held that if such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of section 7(a) and order an inquiry for determination of the age of the delinquent.
3.3 Mr. Kanade also placed reliance upon the decision of the Delhi High Court in the case of Shweta Gulati v. The State Government of NCT of Delhi, rendered on 8th August, 2018 in Criminal Revision Petition No.195 of 2018, wherein, the court held that there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime.
3.4 Reliance was also placed upon the decision of the Supreme Court in the case of Jarnail Singh v. State of Haryana, (2013) 7 SCC 263, where it has been held that there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. The Court explained that under rule12, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in rule Page 7 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER 12(3). If, in the scheme of options under rule 12 (3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of rule 12 (3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, rule 12 (3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in absence of such entry, rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid that rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.
3.5. The learned advocate for the applicant submitted that in the facts of the present case, in the absence of any proper proof of the date of birth of the victim, the prosecution had failed to Page 8 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER establish its case against the applicant. It was submitted that the applicant has a strong prima facie case and is likely to succeed in the appeal and hence, the court may exercise discretion in his favour and suspend the sentence awarded by the trial court and enlarge the applicant on bail.
3.6 It was further submitted that the applicant was about 23 years of age at the time of the incident and he is only earning member of his family and that having regard to the facts and circumstances of the case and more particularly considering the fact that the act was consensual in nature, the court may exercise discretion in favour of the applicant.
4. On the other hand Mr. Chintan Dave, learned Additional Public Prosecutor, invited attention of the court to the findings recorded in the impugned judgment and order, to submit that the prosecution has placed reliance upon the certificate issued by the school where the victim was studying, which shows that the birth date of the victim is 19.4.2001. It was pointed out that the medical record also indicates that the age of the victim was less than 16 years at the time when the offence came to be committed. It was submitted that in view of these facts, the trial court was wholly justified in relying upon the documents produced by the prosecution and in holding that the victim was less than 18 years of age. It was submitted that the evidence on record clearly establishes that the victim was less Page 9 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER than sixteen years of age at the time when the offence in question came to be committed and hence, no case is made out so as to exercise discretion in favour of the applicant. It was urged that the application being devoid of merits, deserves to be rejected.
5. This court has considered the submissions advanced by the learned advocates for the respective parties. From the evidence which has come on the record, as reflected in the impugned judgment and order, it appears that the victim had produced a certificate issued by the Primary School, Dhanot, where she was studying, which shows that her birth date was 19.4.2001. It further appears that the victim was also subjected to medical tests for ascertaining her age. As per the radiological report of the test carried out at the Gandhinagar Civil Hospital, the age of the victim appeared to be 15 + 1 and as per the dental report she was between 12 to 16 years of age. On behalf of the applicant, the learned advocate had submitted that before the trial court, the applicant had sought to rely upon the birth certificate of the victim, which is the best evidence of the date of birth; however, the trial court had wrongly turned down such request and consequently such important evidence could not be brought on record.
6. From the evidence on record it is apparent that the prosecution had produced a certificate issued by the school to Page 10 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020 R/CR.A/1445/2019 IA ORDER establish the birth date of the victim. Medical tests also came to be conducted which also show that the age of the victim was less than 16 years. Even according to the decision of the Supreme Court in Jarnail Singh v. State of Haryana (supra) on which reliance has been placed on behalf of the applicant, the certificate issued by the school is given more weightage than the birth certificate issued by a municipality or a panchayat etc. Considering the evidence on record, which prima facie shows that the birth date of the victim was less than 16 years of age, the decision of the Madras High Court in Sabari @ Sabarinathan @ Sabarivasan (supra) would also not come to the aid of the applicant inasmuch as the same relates to those cases where the victim is above 16 years of age.
7. On a perusal of the evidence on record, as discussed hereinabove, this court is of the view that no prima facie case has been made out for exercising discretion in favour of the applicant. The application, therefore, fails and is accordingly, rejected.
(HARSHA DEVANI, J) (VIRESHKUMAR B. MAYANI, J) ALI Page 11 of 11 Downloaded on : Mon Jan 06 20:30:56 IST 2020