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Judgment
By the present appeal, the appellant is challenging his conviction recorded by the learned Additional Sessions Judge, Achalpur in Special (P) Case
No. 106 of 2016 on 04.2.2017. By the impugned judgment, the appellant is convicted for the offence punishable under Section 363 of the Indian Penal
Code and for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the
POSCO Act†for short). For his conviction under Section 363 of the Indian Penal Code, the appellant is directed to suffer three years rigorous
imprisonment and to pay a fine of Rs.1,000/Â and in default of payment of fine, to undergo simple imprisonment for one month. Insofar as his
conviction under Section 6 of the POCSO Act is concerned, his sentence is to suffer rigorous imprisonment for Ten years and to pay a fine of
Rs.2,000/Â and in default of payment of fine to undergo simple imprisonment for two months.
The prosecution case in nut shell is as under :
PW1 Lalsingh on 02.5.2016 filed his oral report (Exh.10) against the appellant. On the basis of said oral report, under Exh.11 which is a printed First
Information Report, the offence was registered under Sections 363, 366ÂA of the Indian Penal Code. During the course of the investigation, after
medical examination of the victim (PW2), the offence under Section 376(2)(n) of the Indian Penal Code and offence under Section 6 of the POCSO
Act were added.
As per the first information report, the first informant is having two sons and one daughter (victim). In the first information report, her age is
disclosed as 17 years and intimated that she was taking education in 11th standard. As per the first information report, during the period of harvesting,
the first informant used to reside in agricultural field along with his wife and his two sons and daughter used to reside in the village. The first
information report further recites that on 28.4.2016, in the evening when the first informant was present in the agricultural field along with his wife,
one of his sons by name Niraj came and informed that the victim, who is his elder sister, is not available in the house. On getting this information, the
first informant came to the village and made search of his daughter. However, she was not found and/or noticed. On 30.4.2016, one Ramkisan
intimated him that his daughter had gone along with the appellant. In the first information report, it is stated that their love affair was going on as per
Ramkisan. Thereafter, Ramkisan had been to the house of the appellant. At that time, it was intimated to him that within 4Â5 days, they will be
brought back. However, till the date of report, they were not brought and therefore the report was lodged.
PW5 API Shrikrushna Pawar was entrusted with the investigation of crime which was registered as Crime No. 215/2016. Exh.30 is spot
panchanama drawn by him. It pertains to the spot from where the victim was taken away by the appellant. He also drew the spot panchanama
(Exh.31) of the spot where sexual intercourse took place. The appellant was arrested under arrest panchanama (Exh.32).
After giving the requisition for medical examination of the victim, PW3 Dr. Kanchan Jawanjal examined the victim and gave the certificate Exh.16. So
also is the Exh.17 which is requisition to the Medical Officer to examine the accused. The Investigating Officer collected the blood samples of the
victim as well as the appellant under Seizure memos Exh.26 and Exh.27. The clothes of the victim as well as the appellant were seized under seizure
memos Exh.25 and Exh.26, respectively. After completion of other usual investigation, the chargeÂsheeet was presented before the Court of law.
The learned Additional Sessions Judge, Achalpur framed the Charge (Exh.3) against the appellant for the offences punishable under Sections 363,
366ÂA, 376(2)(n) of the Indian Penal Code and under Section 6 of the POCSO Act. The appellant denied the charge and claimed for his trial.
In order to bring home the guilt of the appellant, the prosecution has examined in all five witnesses and also relied upon the various other documents
duly proved during the course of the trial.
After a full dressed trial, the learned Judge of the Court below acquitted the appellant for the offences punishable under Sections 366ÂA and 376(2)
(n) of the Indian Penal Code, however convicted him for the offences mentioned in the opening paragraph of the judgment. Against acquittal of the
appellant, no appeal is filed by the State.
The foremost submission that was pressed into service by Mr. R. M. Daga, the learned counsel, who is appointed by this Court for the appellant
since the counsel appearing for the appellant was not attending the Court, submitted that conviction of the appellant for the offence punishable under
Section 6 of the POCSO Act cannot stand to the scrutiny of law for the reason that the prosecution has failed to prove the age of the girl strictly,
though heavy burden is on the prosecution to prove the same and for that he relied on the Division Bench decision of this Court in the case of Ravi
Anandrao Gurpude .vs. State of Maharashtra, reported in 2017 All M.R. (Cri.) 509, to which I was a party, and submitted that the appeal be allowed.
Per contra, it is the submission of Mrs. Kolhe, the learned Additional Public Prosecutor for the State that the Court below has properly evaluated
the evidence of the prosecution and found that the victim was below 18 years of age in view of Exh.34 â€" the Birth Certificate. Therefore, the victim
is a 'Child' within the meaning of the provisions of the POCSO Act and as such, though, it appears that the victim may be a consenting party, the
punishment is required to be inflicted on the appellant since the consent by the minor has no value in the eye of law.
Missing of victim was brought to the notice of the father of the victim by his son on 28.4.2016, however, the prosecution case is totally silent that
immediately the father lodged any missing report about his daughter.
The report is lodged on 02.5.2016, on the basis of which initially offence under Section 363 and 366A of the Indian Penal Code was registered
with Police Station, Dharni. In the report itself the age of the victim was disclosed by the author of the first information report as 17 years. What is
important to note from the first information report is that it was intimated to him that there was a love affair between the appellant and the victim. On
the face value of the first information report, it is clear that the first informant remained silent and did not activate the wheels of criminal justice by
approaching to the police station since he was labouring under the impression that within 4Â5 days, the victim and the appellant will return to village
and since they did not return, he approached the police station.
Missing of young girl from the house and village is a very serious matter. Therefore, it was expected from the father of said girl that the first
information report or the missing report is promptly lodged. The said if not filed can be one of the factor for consideration that may weigh in favour of
the appellant.
PW2 is the victim. She has stated her date of birth as 25.8.1999. PW1 Lalsingh Dhande has neither disclosed the date of birth of the victim in the
first information report or in his substantive evidence. The incident took place on 28.4.2016. Therefore, if the date of birth of the victim is considered
as 25.8.1999, then definitely she is below the age of 18 i.e. the age prescribed for giving consent. The point this Court is expected to decide in view of
the rival submissions made by the learned counsel for the appellant and the learned Additional Public Prosecutor for the State is that whether by any
cogent and inspiring evidence, the prosecution has proved the date of birth of the victim as 25.8.1999.
As observed in preceding paragraphs, though at the cost of repetition it may be stated that Lalsingh, the father of victim, is not only silent about the
date of birth in the first information report (Exh.10), but he is totally silent even from the witness box regarding disclosing the date of birth of the
victim.
The victim has stated her date of birth as 25.8.1999. The learned Additional Public Prosecutor has vehemently submitted that Exh.34 is a
documentary proof showing the date of birth of the victim as 25.8.1999. It is also her submission that the said certificate is issued by the authority, who
is entrusted to keep the record of Birth and Death. Therefore, the said certificate will have to be given due weightage.
The evidence regarding the date of birth given by the victim is challenged during her crossÂexamination. Through her crossÂexamination, it is
brought on record that she is unaware as to how her father has entered her date of birth as 25.8.1999. Though, the suggestion is denied by the victim,
it was the case of the appellant that the date of birth of the victim is not 25.8.1999.
PW1 Lalsingh is not claiming that he disclosed the date of birth of his daughter to the Investigating Officer in his evidence. Nor it is the
Investigating Officer's evidence that during the course of the investigation with the father of the victim, he ascertained and/or gathered the date of
birth of victim. The Investigating Officer's evidence also does not show that any document was given to him by the father of the victim, which shows
that the date of birth of the victim is 25.8.1999.
The source of Exh.34 the birth certificate given by the Gram Sewak of Gram Panchayat, Ratnapur is the requisition letter (Exh.33). Exh.33 is
issued by the Investigating Officer API Pawar (PW5) to the Secretary of Gram Panchayat, Ratnapur. It is dated 16.7.2016. The relevant portion of
the recitals in the said are reproduced herein below :
“egksn;]
---------- fgP;k o;kpk nk[kyk vkiY;k iWMoj vki.k fygwu fnysyk vkgs- R;ke/ks o;kpk mYYs[k i.k vkgs- ijarw xqUgk xaHkhj Lo:ikpk vlY;kus lnj fifMr
eqyhpk o;kpk nk[kyk izks&QkeZ e/ks fygqu ns.;kr ;kok gh fouarh-
dfjrk lfou; lsoslh lknj vkgs-â€
From the aforesaid, it is clear that prior to issuance of this requisition letter, the Investigating Officer was in possession of a document in the nature
of writing on the pad of Secretary, Gram Panchayat, Ratnapur, wherein the date of birth of the victim is disclosed. Mr. Daga, the learned counsel for
the appellant submitted that though, this was well in the custody of the Investigating Officer, the said is not placed on record. The learned Additional
Public Prosecutor for the State also was required to cut sorry figure for this major lapse on the part of the Investigating Officer.
The first information report was lodged on 02.5.2016, whereas the requisition Exh.33 is issued on 16.7.2016 and no explanation whatsoever is
offered by the Investigating Officer for issuing the said requisition so belatedly. In the light of that not producing the letter pad on which the date of
birth was written as per the recitles in Exh.33 speaks volumes against the prosecution.
Mr. Daga, the learned counsel for the appellant also seriously criticized the birth certificate. Obviously, in view of the Investigating Officer's
evidence, this certificate (Exh.34) was issued in pursuance to requisition (Exh.33). Perusal of Exh.34 shows that the said certificate was issued on
22.7.2016. In the certificate, the date of birth is noted as 25.8.1999 and the date of registration is given as 26.8.1999. Thus, on the next day of the
birth, registration was made. What is important to note is that in Exh.34 under the caption “ckGkps iq.kZ ukoâ€, full name of the victim is disclosed.
Neither the victim nor the father of the victim (PW1) state before the Court that on the day of the birth, or on the next day, the naming ceremony was
done. Further, the entire prosecution is conspicuously silent as to on what date the name of newly born child was communicated to the authority. If
that be so, I am bound by the law laid down by this Court in Ravi Gurpude's case (cited supra), to which I was a party, which ruled down the law that
Â
“From the provisions of the POCSO Act, it is crystal clear that the prosecution is under bounden duty to prove that the victim is a child. Unless the
prosecution successfully establishes that the victim is a child within the meaning of clause (d) of Section2 of the Act, a person cannot be convicted for
the offence punishable under Section 6 of the Act.â€
It is further observed by the Division Bench that Â
“The provisions of the Act are stringent in nature. Even there is a statutory presumption under Section 29 of the Act. Since the enactment is
stringent in nature, the degree of proof is stricter. The prosecution is under bounden duty to prove the age of the prosecutrix to show that at the time
of the incident, the prosecutrix was “Child†within the meaning of provisions of the Act. The burden is on the prosecution to prove that the age of
the prosecutrix, on the date of the occurrence, was less than 18 years.â€
In the present case, after evaluating the evidence brought on record by the prosecution in respect of the age of the victim, as discussed above, in
my view, makes a room for doubt as to really the date of birth of the victim was 25.8.1999 as claimed by the prosecution. In that view of the matter, it
is my opinion that the prosecution has utterly failed to discharge its bounden duty to prove the age of the victim that she is a child within the meaning
of clause (d) of Section 2 of the POCSO Act and therefore, the benefit will have to be extended in that behalf in favour of the appellant/ accused.
Insofar as the medical evidence is concerned, the victim was examined by PW3 Dr. Kanchan Jawanjal. According to her opinion, the sexual
intercourse has happened with the girl and the hymen is ruptured. In my view, much importance cannot be given to this medical opinion since, the girl
herself has stated that she had sexual intercourse with the appellant. However, according to the girl from the witness box, the appellant had
established sexual relations against her wish.
Evidence of the victim girl is at Exh.12. Her evidence would show that there was a promise of marriage by the appellant and believing the said
promise, she had been with him. As per her evidence, for whole night they stayed in a hut. Thereafter, they had gone in the forest area outside the
village. In the forest they stayed for four days and thereafter they returned to the village. Her examinationÂinÂchief is totally silent that at any point
of time the appellant had used any force and/or the girl was prevented from moving here and there. In her crossÂexamination, she has stated that
they had gone from Ritkhed to Hiwarkhed by train and then she had been to the job of cutting groundnuts for a day. In her cross examination, she
has admitted that she stayed with the appellant believing the promise of marriage. After minutely scrutinizing the evidence of the girl, there cannot be
two opinions that the girl was a consenting party. As observed above, it was the bounden duty of the prosecution to prove that the girl was a 'Child'
within the meaning of POCSO Act. However, in the present case, the prosecution has failed to prove the same and therefore, this Court has already
extended the benefit in that behalf in favour of the appellant. In that view of the matter, there is a room to record a finding that the victim girl, who is
not a Child, accompanied the appellant, stayed with him for 4Â5 days and during that period had sexual intercourse.
As observed in the opening paragraph of the judgment, the appellant is acquitted for the offences punishable under Sections 366ÂA and 376(2)(n)
of the Indian Penal Code and the State has not filed any appeal against the said. If the prosecution has utterly failed to prove the age of the girl as
below 18 years within the strict sense as observed in Ravi Gurpude's case (cited supra), in my view, the conviction recorded against the appellant for
the said offence cannot sustain. The appellant is in jail from 04.5.2016.
The reÂappreciation and evaluation of the prosecution case, leads me to pass the following order :
The criminal appeal is allowed.
The judgment and order of conviction passed by the learned Additional Sessions Judge, Achalpur in Special (P) Case No. 106 of 2016 on 04.2.2017
convicting the appellant for the offene punishable under Section 363 of the Indian Penal Code and for the offence punishable under 6 of the Protection
of Children from Sexual Offences Act, 2012, is hereby quashed and set aside.
The appellant who is in jail should be released forthwith if not required in any other offence.
Mr. Daga, the learned counsel who is appointed by this Court to represent the appellant and who has ably assisted the Court, is entitled for the
remuneration, which is quantified at Rs.5,000/Â. Mr. Daga, the learned counsel submit that in stead of giving the said to him, the High Court Legal
Services Sub Committee, Nagpur be directed to deposit the said sum with the District Bar Association, Nagpur as donation on the part of Mr. Daga,
Advocate. Order accordingly.
With this, the criminal appeal is allowed and disposed of.