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Judgment
Manish Pitale, J
1.  By this appeal, the appellant has challenged judgment and order dated 29.08.2016 passed by the Court of Session, Amravati (trial Court) in
Sessions Trial No. 40 of 2015, whereby the trial Court has convicted the appellant under Sections 4 and 8 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act) and sentenced him to suffer rigorous imprisonment for 7 years and 3 years respectively and to pay fine of Rs.500/-
on each count.
2.  As per the prosecution, the prosecutrix in the present case was aged about 17 years in the year 2014 and she was studying in Mahanama
Malviye Vidyalaya, Tapowan, and Amravati. Since she did not have her mother and her father was a mentally retarded person, she was residing in
the hostel of Tapowan. In October, 2014, although school was closed for Diwali vacation, the prosecutrix continued to stay in the hostel because her
uncle had informed her not to come home during vacation. On 20.10.2014 at about 1.30 p.m. when the prosecutrix was going towards the library, the
appellantaccused met her near the temple and asked her to come to his room, which she refused. As per the prosecution, when the prosecutrix was
returning from the library at about 2.30 p.m., the appellant was present in front of room allotted to him and upon the prosecutrix reaching near, he
called her, caught her and took her inside the room and shut the door. The appellant removed the clothes of the prosecutrix and committed forcible
sexual intercourse with her, after which she returned to her hostel room.
3.  The prosecutrix did not disclose this incident to anyone out of fear and it was only when a social worker came to the school that she narrated
the incident, leading to filing of report with the Police Station and registration of first information report (FIR) on 20.12.2014 against the appellant in
Police Station Gadge Nagar, Amravati for offences under Section 376 (2) (d) and (i) of the Indian Penal Code and Sections 4, 6,8,10 and 12 of
POCSO Act. Upon registration of the FIR, investigation was carried out by the Assistant Commissioner of Police and the appellant was charged for
having committed the aforesaid offences.
4.  The prosecution examined three witnesses to prove its case. There was documentary evidence placed on record in the form of medical
record, date of birth certificate of the prosecutrix and other material. PW1 was the prosecutrix herself, while PW2 was one Rupali Nimbarte, the
social worker who had visited the school, leading to the registration of FIR in the present case and PW3 was the investigating officer, being Assistant
Commissioner of Police, Amravati.
5.  On the basis of the evidence and material on record, by the impugned judgment and order dated 29.08.2016, the trial Court convicted and
sentenced the appellant in the aforesaid manner. The trial Court found that since the age of the prosecutrix was more than 16 years at the time of the
incident, offence under Section 376 (2) (d) and (i) of the IPC was not made out but since the prosecutrix was less than 18 years of age and a child as
defined under Section 2(d) of the POCSO Act, he was guilty under Sections 4 and 8 of the said Act. Aggrieved by the said judgment and order, the
appellant has filed the present appeal. Since the appellant is in jail, counsel was appointed by this Court to appear on his behalf.
6.  Mr. D.A. Sonwane, learned counsel appointed to appear on behalf of the appellant, submitted that there was inordinate delay in registration of
FIR in the present case, which was fatal to the prosecution case and that this aspect was not considered by the trial Court while passing the impugned
judgment and order. It was contended that the evidence and material on record was not sufficient to prove the guilt of the appellant, particularly when
proof of age of the prosecutrix in the form of the date of birth certificate was not supported by examination of any witness in support thereof. It was
contended that even the oral evidence of the prosecutrix was not trustworthy and that therefore, the impugned judgment and order passed by the trial
Court was required to be set aside.
7.  On the other hand, Ms. Shamsi Haider, learned Additional Public Prosecutor appearing on behalf of the State, submitted that the delay in
registration of FIR had been sufficiently explained in the present case by the prosecutrix herself and also by PW2- Social Worker, who had deposed
that young girls from such schools were found to be sexually exploited and that when inquiries were made in the school of the prosecutrix that she had
come out with the details of the incident. On this basis, it was contended that the delay was properly explained by the prosecution. It was further
contended that the appellant had admitted all the documents pertaining to the medical record and that, therefore, there could be no dispute raised about
the same. Insofar as proof of date of birth of the prosecutrix was concerned, it was submitted that the prosecutrix was not cross-examined on this
aspect at all and that the date of birth certificate being a public document, it was sufficient proof of the age of the prosecutrix, particularly when she
had herself asserted her date of birth in her examination-in-chief as being 27.04.1997. On this basis, it was submitted that the appeal deserved to be
dismissed.
8.  A perusal of the evidence and material on record in the present case shows that the prosecutrix was a student of a school in Amravati, where
she was residing in the hostel because she did not have her mother and her father was a mentally retarded person. The prosecutrix has stated in detail
about the manner in which the appellant took her inside his room on 20.10.2014 in the afternoon and committed the act of forcible sexual intercourse.
In her evidence before the Court, the prosecutrix has not only given the details of the incident but she has stated that she was frightened and mentally
disturbed by the said incident. She has further stated that since she did not have mother and her father was mentally retarded, she was in a helpless
condition and residing in the hostel. She has stated in detail the reason as to why she could not approach the authorities to raise a grievance about the
said incident immediately after the incident took place. The prosecutrix has also stated clearly that her date of birth was
27.04.1997, which demonstrated that at the time of the incident she was certainly less than 18 years of age. In her cross-examination no question has
been put to her in respect of her date of birth. Even as regards the reasons given by her for the delay of two months in registration of the FIR, there is
no cross-examination.
9.  A perusal of the evidence of PW2- Social Worker, shows that even prior to the said incident, there had been a case of rape of another girl
student and that there had been cases in the said area of girl students being sexually exploited, due to which Social Worker like PW2 had arranged for
Focus Group Discussion. It was stated by the said witness that during one such discussion, the prosecutrix disclosed the said incident. It is on this basis
that the FIR was ultimately registered in the present case.
10.  The evidence of PW3- investigating officer- Assistant Commissioner of Police, shows that during investigation he collected the date of birth
certificate of the prosecutrix which showed that her date of birth was indeed 27.04.1997 and this was placed on record as Exh.41. The trial Court
judgment shows that the appellant admitted Exhs. 9 to 39, which included the entire medical examination record of the prosecutrix.
11.  In order to sustain the conviction of the appellant under the provisions of the POCSO Act, the crucial issue pertains to the proof of age of the
prosecutrix and her claim that her date of birth was 27.04.1997. In this regard, it has been vehemently contended by the learned counsel appearing on
behalf of the appellant that the date of birth at Exh.41 could not have been relied upon by the trial Court in the absence of any witness being examined
in support thereof. A perusal of the date of birth certificate at Exh.41 shows that it has been issued by the Municipal Council, Akot, district Akola with
a proper seal and that it is indeed a public document. Apart from this, a perusal of the evidence of the prosecutrix (PW1) shows that she has
specifically asserted in her examination-in-chief that her date of birth was 27.04.1997.
12.  In this context the learned APP appearing on behalf of the respondent-State is correct in relying upon the judgment of the Division Bench of
this Court in the case of Kundan son of Nanaji Pendor .vs. State of Maharashtra â€" 2017 ALL MR (Cri) 1137, wherein it has been held as follows:-
“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
crossexamination, 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 crossexamined 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.“
In the present case, the statement of the prosecutrix about her date of birth being 27.04.1997 has not been challenged in cross-examination at all
on behalf of the appellant. Apart from this, Exh.41- date of birth certificate is a public document placed on record as proof of age of the prosecutrix.
Therefore, reliance sought to be placed by the learned counsel appearing on behalf of the appellant on judgment of the Hon'ble Supreme Court in the
case of Alamelu and another .vs. State â€" AIR 2011 Supreme Court 715 is misplaced because in the said case the Hon'ble Supreme Court was
concerned with a transfer certificate issued by Head Master of the School as proof of the date of birth of the prosecutrix and the lack of supporting
evidence to prove date of birth. Â The assertion of the prosecutrix in the present case about her date of birth in her evidence coupled with the public
document in the form of Exh.41 i.e. date of birth certificate issued by the Municipal Council, Akot, is sufficient proof of the fact that the prosecutrix
was born on 27.04.1997, demonstrating that on the date of the incident i.e. 20.10.2014 she was indeed less than 18 years of age.
14.  Once this conclusion is reached, it becomes clear that the prosecutrix was covered under the definition of “child†as defined under
Section 2 (d) of the POCSO Act, as a result of which no fault can be found with the trial Court proceeding on this basis and convicting the appellant
under the provisions of the said Act.
15.  Insofar as evidence in respect of the incident is concerned, the prosecutrix has deposed before the Court in detail regarding the same and her
evidence has not been shaken in the cross-examination. Her version is trustworthy and truthful. When her evidence is considered along with the
evidence of the other witnesses and the medical evidence on record, it becomes clear that the findings rendered by the trial Court regarding forcible
sexual intercourse by the appellant on the prosecutrix are justified. The trial Court has convicted the appellant under Section 4 of the POCSO Act for
penetrative sexual assault and under Section 8 for sexual assault. When the definitions of “penetrative sexual assault†and “sexual assault†as
defined in Sections 3 and 7 respectively are perused and the evidence in the present case is appreciated in the proper perspective, it becomes clear
that there is no error committed by the trial Court while passing the impugned judgment and order, convicting and sentencing the appellant in the
aforesaid manner.
16.  In the light of the above, there is no merit in the present appeal and accordingly it is dismissed. The judgment and order passed by the trial
Court is confirmed.
17.  Since the counsel appearing on behalf of the appellant was appointed counsel, his fee is assessed at Rs.5, 000/- (Rs. Five Thousand).