Sanjay Popat Aghane vs The State Of Maharashtra
2021 Latest Caselaw 4663 Bom

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nsc.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL APPEAL NO.1141 OF 2015

       Sanjay Popat Aghane
       Age. 20 years. Occ.
       R/o. Manegaon Phata,
       Sinnar, Tal. Sinnar,
       District Nashik                                   ...Appellant
       (presently at Nashik Road Central Prison)      (Original Accused)

            Versus

       1.     The State of Maharashtra
              To be served through
              A.P.P. High Court Bombay

       2.     Rohini Balu Hande
              Age : 19 years, Occ: Nil.
              R/o: Indiranagar, Vavi,
              Tal: Sinnar, District - Nashik.              ...Respondents


       Ms. Avanti Inamdar i/b Mr. R. N. Gite, for the Appellant.

       Mr. S. V. Gavand, A.P.P for the Respondent - State.

                                       CORAM : REVATI MOHITE DERE, J.

DATE : 15th MARCH, 2021

ORAL JUDGMENT :

1. The appellant vide Judgment and Order dated 29th October

2015, passed by the learned Additional Sessions Judge, Nashik in Sessions

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Case No.232 of 2014, has been convicted and sentenced, as under:-

- for the offence punishable under Section 376(2)(i) of the Indian Penal Code, to suffer rigorous imprisonment for 10 years and to pay fine of Rs.20,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 3 years;

- No separate punishment is awarded to the appellant under Section 4 of the Protection of Children from Sexual Offences Act;

- If the fine amount of Rs.20,000/- is deposited, out of the said fine amount, an amount of Rs.15,000/- was directed to be paid to the victim girl as compensation under Section 357(2) of the Code of Criminal Procedure.

2. The prosecution case in brief, is as under:-

'X' - prosecutrix (PW 1), a minor at the relevant time (between

14 - 15 years) was residing with her grandparents, as her parents had

performed 2nd marriage. 'X' would accompany Tarabai Aghane, who was

residing near her grandmother's house to the agricultural field, for assisting

Tarabai. The appellant is the grandson of Tarabai and as such 'X' was

acquainted with him. One day when 'X' was resting from work, she went to

sleep in the appellant's house. It is alleged that the appellant entered the

house, latched the door from inside and sexually assaulted her; that though

'X' resisted the act, the appellant threatened her not to disclose the same or

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he would assault her; the appellant is also alleged to have told 'X' that he

would marry her; and that 'X' had disclosed the said fact, to Tarabai and

her maternal aunt. Thereafter, on 4 - 5 occasions, the appellant is alleged to

have sexually assaulted 'X', as a result of which she had pain in her

abdomen. As 'X' refused to stay with her grandmother, her grandmother

called her mother to Sinnar. When 'X' disclosed to her mother that she had

missed her menstrual cycle, her mother took her to a private hospital at

Sinnar, where the doctor disclosed that 'X' was 4 month's pregnant,

pursuant to which, 'X' told her mother, that the appellant had sexually

assaulted her. Thereafter, 'X' lodged a complaint in the police station,

alleging offences punishable under Section 376(2)(i) of the Indian Penal

Code and under Section 4 of the Protection of Children from Sexual

Offences Act. The statement of 'X' was also recorded under Section 164 of

Code of Criminal Procedure. 'X' delivered a male child, pursuant to which

the DNA sample of the newly born child as well as that of the appellant

and 'X' were taken, and sent for chemical analysis.

After completion of investigation, charge-sheet was filed as

against the appellant in the Court of the learned Special Judge, Nashik.

Charges were framed as against the appellant, to which he

pleaded not guilty and claimed to be tried.

The prosecution in support of its case, examined as many as 6

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witnesses i.e. PW 1 - prosecutrix; PW 2 - Sunil Anna Bhambad, the

Police Constable who carried the articles to the Chemical Analyst; PW 3 -

Dr. Abhijit Shashikant Sarode, Medical Officer, who examined 'X'; PW 4 -

Ganesh Balasaheb Londhe, panch to the spot panchanama; PW 5 - Deepak

Vasant Bhatjire, Clerk of Sinnar Municipal Council, who produced the

Birth Certificate of 'X', to show that 'X' was a minor and PW 6 - Haridas

Mahadeo Dole, the Investigating Officer.

The defence of the appellant was that of denial and false

implication on one hand and also of consent on the other.

The learned Additional Sessions Judge, Nashik, after hearing

the parties and after considering the evidence on record, convicted and

sentenced the appellant, as stated aforesaid in Para 1.

3. Learned Counsel for the appellant submits that the allegations

as against the appellant are false and baseless. She submits that the

prosecution had not proved that 'X' was a minor, at the time of the alleged

incident. She submits that the relations between the appellant and 'X' were

consensual and that they were living together as husband and wife and that

the appellant was ready to marry 'X' then and even today.

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4. Learned APP supported the impugned judgment and order of

conviction and sentence and submitted that no interference was warranted

in the same. He submitted that the prosecution had proved that 'X' was a

minor at the relevant time by producing 'X's' birth certificate. He submitted

that the said birth certificate has been proved under Section 17(2) of the

Registration of Births and Deaths Act, 1969 r/w Section 35 of the Evidence

Act. He submitted that the DNA report clearly shows that the appellant is

the father of the child.

5. Heard the submissions advanced by the learned counsel for the

parties and with their assistance, perused the papers i.e. the evidence and

the documents.

6. The first question that arises for consideration is whether the

prosecution has proved that 'X' was a minor at the time of the alleged

incident ? PW 1 - 'X' in her evidence has stated that her date of birth is 28 th

November 1998. She has stated that at the relevant time, she was residing

with her grandparents as her father and mother had performed their 2 nd

marriage. PW 1 has further stated that one Tarabai was residing near her

grandmother's house and that she would take her to the agricultural field for

agricultural operations; that the appellant is the grandson of Tarabai; that

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the appellant would come to their house and that she was acquainted with

him; that one day when she was working in the field, she took a break from

work for taking her meal; that after taking meal, she slept in the appellant's

house, which was situated in the agricultural field; that while she was

sleeping, the appellant entered the house, latched the door from inside,

removed her clothes forcibly and sexually assaulted her; that she resisted

the said act, but the appellant threatened her not to disclose the said incident

or he would assault her; and that she should not be scared as he would

marry her. PW 1 has stated that as her clothes were torn, she disclosed the

said incident to Tarabai and her maternal aunt, after which, she returned

home. She has stated that she did not disclose the said incident to her

grandmother, as the appellant had threatened her. She has stated that as she

had pain in her abdomen, she disclosed the same to the appellant, who told

her not to be scared. According to the PW 1, the appellant thereafter

sexually assaulted her on 4 - 5 occasions. She has stated that as she was

sexually assaulted by the appellant, she refused to stay with her

grandmother, pursuant to which, her mother came to Sinnar, to take her

back. PW 1 has stated that she disclosed to her mother that she had missed

her periods, pursuant to which, her mother took her to a private hospital at

Sinnar, where after examination, the doctor revealed that she was 4 month's

pregnant. PW 1 has stated that she disclosed to her mother that the

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appellant had sexually assaulted her, after which her mother took her to the

house of Tarabai and requested Tarabai to perform marriage of her daughter

with the appellant, however, the appellant and Tarabai declined for the

same. Thereafter, 'X' approached Sinnar Police Station and lodged an FIR.

She has stated that her medical examination was done and even her 164

statement was recorded as per her narration. She has identified the

appellant.

7. Nothing material has been elicited in the cross-examination of

PW 1, so as to disbelieve her testimony. 'X' has admitted in her cross-

examination that she had watched movie on two occasions with the

appellant and that the appellant had promised marriage and that they were

residing together as husband and wife. It was suggested to 'X' that she was

acquainted with some other boys and that she had physical relations with

them, however, the said suggestions were denied by her. 'X' had

categorically stated that except the appellant, she never had any physical

relations with any other person. She has also denied the suggestion that the

birth certificate produced by the prosecution was the birth certificate of her

younger sister. She has admitted in her cross-examination that her birth

date is 11th November, 1998. PW 1 has in her cross-examination denied

that she was 19 years of age at the relevant time. She has denied the

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suggestion that the incidents of sexual intercourse were with her consent.

The said evidence of PW 1 with respect to the fact, that 'X' was a minor has

been duly corroborated by PW 5 - Deepak Bhatjire.

8. PW 5 - Deepak Bhatjire, in his evidence stated that he was

serving as a Junior Clerk in Sinnar Municipal Council; that he was assigned

with the work of birth and death registration; that the birth date of the

victim girl is registered with the Municipal Council and that they had

received the said information regarding the birth from the Sinnar Municipal

Council Hospital. He has stated that the prosecutrix's mother's as well as

the father's name is mentioned in the certificate. PW 5 - Deepak has

produced the original birth and death register in which there is an entry

regarding birth of 'X' at serial number '1635'. He has further stated that

there office had received the birth format maintained in the Civil Hospital

on 28th November 1998. He has stated that the birth date of the victim girl

is 28th November 1998. The said witness produced the original birth

certificate bearing the signature of the Chief Officer of the Municipal

Council. He has stated that the entries in the birth certificate are true and

correct, as per the record. Accordingly, the birth certificate was marked as

Exhibit - 41 and the entry in the register as Exhibit - 42. Nothing

significant is brought in the cross-examination of the said witness to

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disbelieve his evidence with respect to the entry made in the Birth and

Death register of Sinnar Municipal Council.

9. The prosecution has therefore clearly established that 'X' was a

minor at the time of the incident of sexual assault on her i.e. between 14 -

15 years, at the relevant time. Therefore, the question of consent would not

arise, considering the fact, that 'X' was a minor.

10. The aforesaid evidence is duly corroborated by PW 3 - Dr.

Abhijit Sarode. PW 3 - Dr. Sarode has stated that 'X' was referred to him

on 12th June, 2014 and that the sonography report disclosed that she was 32

weeks pregnant. PW 3 - Dr. Sarode has produced the said sonography

report as well as the medical case papers of 'X'. He has stated that during

her examination, it was revealed that 'X' was 32 weeks pregnant and

accordingly he issued a certificate which is at Exhibit - 32.

11. Nothing material is brought in the cross-examination of the

said witness except a suggestion that it is not correct that 'X' was not

pregnant. The fact that 'X' was 32 weeks pregnant and subsequently

delivered a male child has also been brought on record. The DNA report,

which is at Exhibit - 49 clearly shows that the appellant and 'X' are the

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biological parents of the male child.

12. Although, learned counsel for the appellant assiduously

submitted that 'X' being a major, it is a case of consent and that having

regard to the evidence on record, the sentence may be reduced to the period

undergone, the evidence on record is to the contrary. The prosecution has

proved that 'X' was a minor at the relevant time and therefore the question

of consent does not arise. It is also pertinent to note that the minimum

sentence for the offence punishable under Section 376(2)(i) is 10 years and

that there is no discretion vested in the Court to award a sentence less than

the minimum.

13. The evidence of the prosecutrix is cogent and inspires

confidence. Coupled with the said evidence, the evidence of PW 5 -

Deepak shows that 'X' was a minor; and the DNA report, which clearly

shows that the appellant is the father of the child. Thus, the prosecution has

clearly proved its case beyond reasonable doubt.

14. Infact, the defence of the appellant on the one hand is of false

implication under Section 313 of Code of Criminal Procedure, which

defence is contrary to the suggestions given in the cross-examination i.e. of

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consent. Thus, the appellant has not also discharged the burden cast on him

under Section 29 of the Protection of Children from Sexual Offences Act.

15. Considering the aforesaid, there is no merit in the appeal. The

appeal stands dismissed.

16. It is pertinent to note that the trial Court has awarded

compensation to 'X' only under Section 357(2) of the Code of Criminal

Procedure.

17. Accordingly, in addition to what is directed to be given to 'X',

the case of 'X' is referred to the District Legal Services Authority, Nashik,

who will determine the compensation and award appropriate compensation

to 'X', under Section 357-A of Code of Criminal Procedure, if not awarded.

18. District Legal Services Authority, Nashik is requested to

complete the entire exercise within six months of receipt of this judgment.

19. Registry to communicate the aforesaid judgment forthwith to

District Legal Services Authority, Nashik, for complying with the same.

REVATI MOHITE DERE, J.