Kundan S/O Nanaji Pendor vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 6240 Bom

                                                                      apeal313.14


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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   NAGPUR BENCH : NAGPUR
                           Criminal Appeal No. 313 of 2014




                                                   
     Kundan son of Nanaji Pendor,
     aged about 25 years,
     occupation - Driver,




                                          
     resident of Bodkha,
     Tq. Warora,
     Distt. Chandrapur.       ig                       .....            Appellant.
                                                                      [in jail]
                            
                                          Versus


     The State of Maharashtra,
     through Police Station Officer,
      


     Police Station, Warora,
     Tq. Warora,
   



     Distt. Chandrapur.                              ....       Respondent.





                                      *****
     Mr. S. V. Sirpurkar, Adv., for the Appellant.

     Mr. M.J. Khan, Addl. Public Prosecutor respondent.

                                           *****





                                        CORAM :     B. P. DHARMADHIKARI
                                                    AND
                                                    A.S. CHANDURKAR, JJ.

Date when arguments were concluded : 28th September, 2016

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Date when judgment is pronounced : 21st October, 2016

J U D G M E N T [Per A.S. Chandurkar, J.] :

01. By the present appeal filed under Section 374 (2) of the

Criminal Procedure Code, 1973, the appellant takes exception to his

conviction for having committed an offence punishable under Section 3

(a) as well as for the offence under Section 5 (j) (ii) and 5 (l) of the

Protection of Children from Sexual Offences Act, 2012 [for short "the

said Act"]. The appellant has also been convicted for the offence

punishable under Section 376 and Section 417 of the Indian Penal

Code [for short "the Penal Code"]. He has been sentenced to suffer

imprisonment for life and to pay a fine of Rs.1,000/-.

02. Case of the prosecution is that the appellant, who was

serving as a driver, was acquainted with one "S" - the prosecutrix. The

appellant developed friendship with "S" and both had decided to get

married after "S" attained the age of majority. In November, 2010,

when the prosecutrix was studying in VIIIth Standard, the appellant

had been to her place and had stated that as they had decided to

marry, he had sexual intercourse with her. This continued for some

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more period. As a result of said relationship, the prosecutrix became

pregnant and on 15th June, 2013, a report was lodged in that regard.

On the basis of investigation carried out by the police authorities, a

charge-sheet came to be filed against the appellant for offences under

the said Act as well as under Sections 376 and 417 of the Penal Code.

The appellant did not plead guilty and was, thus, tried. At the

conclusion of the trial, the appellant was held guilty and was

accordingly convicted in the manner stated herein above. Hence this

appeal.

03. Shri S.V. Sirpurkar, the learned counsel for the appellant,

submitted that the conviction of the appellant was totally unjustified

and unsustainable in law. He submitted that the age of the prosecutrix

had not been proved beyond doubt. The Radiologist, who was

examined as PW 5, had opined in his report at Exh.19 that the age of

the prosecutrix was not less than sixteen years and not more than

eighteen years. According to him, a margin of error in the assessment

of the age by the Radiologist was two years on either side. The

defence was entitled to rely upon the higher age as assessed by the

Radiologist. The Birth Certificate of the prosecutrix had not been

placed on record. It was urged that initial burden to prove the age of

the prosecutrix was on the prosecution and having failed to do so, the

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appellant could not have been convicted under the provisions of the

said Act by treating the prosecutrix as a child. He referred to the

deposition of the Investigating Officer - PW 11 who had stated that the

Birth Certificate of "S" had not been collected from the Nagar Parishad.

Referring to the case of the prosecution itself, it was submitted that

the relationship between the appellant and the prosecutrix was

consensual.

The report, in question, was belatedly lodged on 15th

June, 2013 and till said date, the prosecutrix remained silent.

In the alternate, it was submitted that if it is found that the

prosecutrix was not a child and the offence punishable under Section

376 of the Penal Code was made out, the appellant would be entitled

for a lesser punishment than the one awarded by the Sessions Court.

In support of his submissions, the learned counsel relied upon the

following judgments:-

[a] Kaini Rajan Vs. State of Kerala [(2013) 9 SCC 113],

[b] Ganga Singh Vs. State of Madhya Pradesh [(2013)

7 SCC 278],

[c] Musauddin Ahmed Vs. State of Assam [AIR 2010 SC 3813],

[d] Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh & another [(2009) 6 SCC 681],

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[e] Deelip Singh alias Dilip Kumar Vs. State of Bihar [(2005) 1 SCC 88],

[f] State of U.P. Vs. Nahar Singh (dead) & others [(1998) 3 SCC 561], and

[g] Jaya Mala Vs. Home Secretary, Govt. of Jammu &

Kashmir & others [(1982) 2 SCC 538].

04. Shri M.J. Khan, learned Addl. Public Prosecutor, on the other

hand, supported the appellant's conviction. He relied upon the

certificate issued by the Radiologist at Exh.19 which indicated that the

age of the prosecutrix was not more than eighteen years. He

submitted that there was no question of either adding or reducing the

age from the one assessed by the Radiologist. He submitted that the

appellant had, in fact, not questioned the prosecutrix about her age as

deposed by her. He referred to the provisions of Section 2 (1) (d) of

the said Act, to urge that the prosecutrix being a person below the age

of eighteen years, she was a child and hence appellant-accused was

rightly charged under the said Act. He referred to the report at Exh.43

which showed the appellant to be the biological father of the daughter

born to the prosecutrix. He also referred to the provisions of the

Juvenile Justice (Care & Protection of Children) Act, 2015 as well as

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Rule 12 (3) (b) of the Rules framed thereunder. The learned counsel,

therefore, submitted that since the inception of the relationship, the

appellant had promised to marry the prosecutrix and had continued

the relationship. Hence the conviction as recorded by the Sessions

Court need not call for any interference. To substantiate his

arguments, learned Addl. Public Prosecutor relied on the decisions of

Hon'ble Supreme Court in [1] Deepak Gulati Vs. State of Haryana

[(2013) 7 SCC 675], and [2] State of Uttar Pradesh Vs. Naushad

[(2013) 16 SCC 651].

05. We have heard the respective counsel for the parties at

length and with their assistance, we have also gone through the

records of the case.

06. Before considering the submissions as urged by the learned

counsel for the parties, reference can be made to certain factual

aspects that have come on record and which have not been duly

challenged by the appellant.

07. The prosecution had conducted the parentage test of the

child born to the prosecutrix by collecting the blood samples of the

appellant, the prosecutrix and the child. On the basis of these blood

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samples, the prosecution placed on record the results of said test

dated 18th November, 2013 as per Exh.43. It was clearly opined

therein that the appellant and the prosecutrix were the biological

parents of the child born to the prosecutrix. This report was brought

on record in the deposition of Investigating Officer - PW 11 and there

was no challenge by the appellant to this report. Even before us, there

was no such challenge raised to the said report. It is, thus, clear from

the aforesaid report that on account of the relationship between the

appellant and the prosecutrix, a child was born to them.

08. PW 1 - "S" was examined below Exh.9. In her deposition,

she has stated that the appellant was serving as a driver and that he

used to intermittently come to their house as her parents were also

working at Anandwan where the appellant was serving. She has stated

that while she was in IXth Standard, the appellant had stated that he

would marry her and had started having sexual relations with her. She

has stated that they had last sexual intercourse in the month of June,

2013. After her menstrual cycle had stopped, she had told the

appellant about the same. The appellant, instead, got engaged with

another girl on 3rd July, 2013 and got married with said other girl. She

deposed that her date of birth was 5th January, 1997 and that on 23rd

September, 2013 she had given birth to a female child at Chandrapur

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Govt. Hospital.

In her cross-examination, it was suggested to her that in the

year 2012, she was in IXth Standard. Except the suggestion that the

prosecutrix had not informed her parents about their relationship,

nothing material has been extracted from her in her deposition. In

fact, she was not cross-examined on her statement that her date of

birth was 5th January, 1997 and that a female child was born on 23rd

September, 2013.

09. PW 5 - Dr. Ashok Barapatre was examined below Exh.18.

He deposed that on 18th June, 2013, he had done the sonography and

ossification test of "S" . He stated that after such examination, the

expected date of delivery was given to be 16th September, 2013 and

that her age on radiological examination appeared to be sixteen to

eighteen years. This Ossification Report is at Exh.19. In his cross-

examination, he stated that the "Crest Ilium Test" was not conducted

because the patient was pregnant.

10. PW 10 - Dr. Dipti Shrirame was examined below Exh.30.

She has deposed that she had examined the prosecutrix on 17th June,

2013 and had noted that she was between twenty-four to twenty-six

weeks' pregnant and her last menstrual period was on 8th January,

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2013. In her cross-examination, she stated that on the basis of said

last menstrual period, the expected date of delivery would be 15th

October, 2013.

The Investigating Officer - Ms. Shubhangi Aagase, examined

as PW 11, admitted that the Birth Certificate of the prosecutrix had not

been collected nor was the date of birth verified from the Nagar

Parishad. The mother of the prosecutrix had given the School Leaving

Certificate of the prosecutrix.

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

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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 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

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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 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

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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.

12. As regards the ossification test and its report at Exh.19, the

same indicates that it has been opined by PW 5 that the age of "S"

was not less then sixteen years and not more than eighteen years.

This report is dated 18th June, 2013 and if it is the unchallenged

version of the prosecutrix that her date of birth was 5th January, 1997,

this report at Exh.19 corroborates her said statement. If she was born

on 5th January, 1997, she would be aged about sixteen years and five

months on 18th June, 2013 when the said test was conducted. Thus,

as opined, her age was not less than sixteen years and not more than

eighteen years as per this report. The report at Exh.19, thus,

corroborates the version of "S" as regards her age.

Though heavy reliance was placed by the learned counsel

for the appellant on the judgment of Hon'ble Supreme Court in Jaya

Mala [supra] to contend that a margin of error of two years on either

side was possible, the ratio therein cannot support the case of the

appellant, especially when the version of the prosecutrix as regards

her date of birth has gone unchallenged. Moreover, in Ram Suresh

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Singh [supra], the Hon'ble Supreme Court after referring to its earlier

judgment in Jaya Mala [supra] has observed that it would be difficult to

lay down a law as to whether the lower or the upper age or the

average age should be taken into consideration and each case

depends on its own facts.

In any event, the conclusion as to her age is not arrived at

solely on the basis of the Ossification Report at Exh.19, but on the

basis of her unchallenged deposition. The report at Exh.19 merely

corroborates her oral deposition. A mere suggestion given to the

Investigating Officer that the prosecution had not collected the Birth

Certificate of "S" by itself cannot support the case of the defence. In

the light of the material on record, it is difficult to accept the

contention made on behalf of the appellant that the age of the

prosecutrix was not duly proved. The inevitable fallout of the aforesaid

discussion is that the prosecution has succeeded in proving that the

prosecutrix was a child as defined by Section 2 (1) (d) of the said Act

and hence was rightly charged under provisions of the said Act.

13. From the deposition of PW 10, it is clear that the last

menstrual period was stated to be on 8th January, 2013. The baby was

actually born on 23rd September, 2013 through a normal delivery. It

is, thus, obvious that the prosecutrix was hardly aged 16 years when

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on account of sexual intercourse by the appellant, she had conceived.

Once her date of birth is accepted to be 5th January, 1997, it is clear

that on 5th January, 2013 she was aged sixteen years of age. It is,

thus, clear from the evidence on record that she was less than sixteen

years of age when the appellant had sexual intercourse with her. In

this backdrop, therefore, the endeavour on the part of the learned

counsel for the appellant to urge that the relationship between the

parties was consensual in nature falls to the ground. As per provisions

of Section 375 sixthly of the Penal Code where the age of the victim is

less than sixteen years, the aspect of consent becomes irrelevant.

Reference in that regard can be made to the decision of Hon'ble

Supreme Court in Satish Kumar Jayantilal Dabgar Vs. State of

Gujrat [ (2015) 7 SCC 359]. In that view of the matter, the decisions

relied upon by the learned counsel for the appellant to indicate

consent on the part of the prosecutrix cannot be made applicable in

the present facts. For the same reason, the alternate argument made

on behalf of the appellant by referring to Section 42 of the said Act

that a lesser punishment as per the provisions of Section 376 of the

Penal Code deserves to be imposed, also cannot be accepted.

14. Once it is found that "S" was a child below eighteen years,

coupled with the admitted position that the report at Exh.43 proved

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the appellant to be the father of the said child, the conviction of the

appellant for having committed the offences punishable under Sections

3 (a), 5 (j) (ii) and 5 (l) of the said Act cannot be faulted.

15. In the passing, conduct of the appellant also needs to be

noticed. As per the evidence on record, the appellant had sexual

intercourse with the prosecutrix when she was less than sixteen years

of age. After she conceived, this fact was brought to his notice in June,

2013. However, the appellant got engaged with another girl and also

married said girl on 3rd July, 2013. The only defence sought to be

raised by the appellant in his examination under Section 313 of the

Code is his answer to Question No. 43, in which he stated that the

mother of the prosecutrix asked him whether he would marry "S" and

as he refused to marry her, false allegations were made against him.

In the light of the evidence on record, the defence as raised does not

deserve acceptance.

16. In view of the aforesaid discussion, we do not find any

reason to take a different view from the one taken by the learned

Judge of the Sessions Court. Accordingly, the Appeal stands dismissed.

The sentence of conviction handed down by the learned Special Judge,

Warora, in Special [POCSO] Case No. 3 of 2013 is maintained. The

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seized property be destroyed after the period of appeal. There would

be no order as to costs.

             Judge                                              Judge
                                   -0-0-0-0-




                                        
                             
                            
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