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Judgment
1.The appellant  accused is convicted for offence punishable under section 6 of the Protection of Children from Sexual Offences Act
(“POCSO†Act for short) and section 376(2)(i) of the Indian Penal Code (“IPC†for short) and is sentenced to suffer rigorous imprisonment
for ten years and to payment of fine of rs. 500/Â, by and under judgment and order dated 31.12.2014 rendered by the Additional Sessions Judge â€" 1,
Achalpur in Special POCSO Case 20 of 2014, which judgment and order is impugned herein.
2.Heard Shri R. Khemuka, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent /
State.
3.The incident occurred on 25.1.2014. The victim, who was then barely 13 years old was studying in Ratnabai Rathi Vidyalaya, Daryapur in 9th
standard. The case of the prosecution is that on 25.1.2014, the victim returned from school at 12.00 p.m., had lunch and then went to the courtyard of
the house of the accused to play with his grandÂdaughter Poonam. The accused gave some amount to Poonam to buy chocolate from the shop.
After Poonam left to buy the chocolate, the accused took the victim to his house, bolted the door from inside, put on the fan and increased the volume
of the television and made the victim sleep on the cot. The victim was subjected to sexual intercourse. The accused inserted his penis in the private
part of the victim and pressed and kissed her breasts. The victim was in pain. The accused warned the victim not to disclose the incident to anybody,
opened the door of the house and let the victim to go, the victim wore her clothes and went to her house. The mother of the victim returned from the
field at 7.00 p.m., to whom the victim disclosed the incident. The mother of the victim Urmila Ingle (PW 2) went to the house of the accused and
confronted him. The victim and her mother went to Daryapur Police Station where the mother lodged report (Exh. 16). The victim was send to the
hospital for medical examination. Offence was registered under section 376(2)(i) of the IPC and section 4 of the POCSO Act. The clothes of the
victim were seized and her statement was recorded. Upon completion of investigation, chargesheet was filed in the Special Court established for the
POCSO Act. The learned Special Judge framed charge (Exh. 7) for the offence punishable under section 4 and 6 of the POCSO Act and section
376 of the IPC. The accused abjured guilt. The defence is of total denial and false implication.
In the statement recorded under section 313 of Criminal Procedure Code all that the accused states in response to question 38 is that the prosecution
is false. However, from the suggestions given to the prosecution witnesses, it is discernible that the defence is that the accused is falsely implicated
since he demanded return of amount lent to the father of the victim. It is also suggested to Urmila Ingale â€" PW 2 that a false report is lodged to
claim compensation of Rs. 2 lacs from the Government. The prosecution examined 9 witnesses including the victim. The learned Sessions Judge was
pleased to convict the accused as afore stated.
4.Shri R. Khemuka, the learned counsel for the accused submits that the evidence on record is not sufficient to bring home the charge. The medical
evidence is inconsistent with the ocular evidence, is the submission. Shri R. Khemuka would submit that the prosecution has failed to prove that the
victim was aged less than 18 years. Finally, Shri R. Khemuka would submit that the medical examination of the accused and the fact that he could not
give semen for chemical analysis belies the version of the prosecutrix that she was raped. Shri N.B. Jawade, the learned Additional Public
Prosecutor, has relied on the following observations in Kundan s/o.Nanaji Pendor Vs. The State of Maharashtra, 2017 ALL MR (Cri) 1137:
“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 ExaminationÂinÂChief. Her said statement has gone totally
unchallenged. It is a settled position of law that if a witness is not crossÂexamined on a particular portion of her deposition in her ExaminationÂ‐
inChief, said statement is required to be accepted as the same is not challenged by the defence. Reference in this regard can 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]: [1998 All MR (Cri) 1308 (SC)] which are quoted below:Â
It may be noted here that that part of the statement of PWÂ1 was not crossÂexamined by the accused. In the absence of crossÂexamination on
the explanation of delay, the evidence PWÂ1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence
Act confers a valuable right of crossÂexamining 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 hischaracter,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 oftÂquoted 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 crossÂexamination 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
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] : [2003 ALL MR (CRI)156 (S.C.)], the Hon'ble Supreme Court reiterated this
position by observing in Paragraph 9 of its judgment as under:Â
............It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in crossÂ‐
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 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.â€
The learned APP contends that the date of birth is not challenged in the crossÂexamination. Shri N.B. Jawade would submit that the defence of false
implication must be noted only for rejection. No material is placed on record to show that the accused lent any money to the father of the victim and
that there was a strained relationship. Shri N.B. Jawade, the learned APP submits that it would be rare, if at all, that a 13 year old child would be
used as a tool to wreak vengeance. The testimony of the victim is more than amply corroborated by the medical evidence, is the submission. Shri
N.B. Jawade, the learned APP submits that the fact that the accused could not give semen is not decisive. The judgment and order of conviction is
unexceptionable, is the submission.
5.The victim has deposed that her date of birth is 5.3.2001, the defence did not challenge the said statement. Shri N.B. Jawade, the learned APP is
justified in placing reliance on the Division Bench Judgment in Kundan s/o.Nanaji Pendor Vs. The State of Maharashtra, 2017 ALL MR (Cri) 1137
and in contending that in the absence of a challenge to the assertion of the victim that her date of birth is 5.3.2001, it must be held that the prosecution
proved that the victim is a child within the meaning of section 2(d) of the POCSO Act. The testimony of the victim is confidence inspiring. She has
deposed that on 25.1.2014 after returning from school, she went to play with the granddaughter of the accused. The accused gave some amount to
his grandÂdaughter Poonam to buy chocolate and after Poonam left, the accused took the victim in the house, bolted the door of the house from
inside, increased the volume of television and subjected the victim to sexual intercourse. In the crossÂexamination, the testimony of the victim is not
shaken. Minor and inconsequential omissions are brought on record. The omissions do not touch the core of the testimony and the credibility of the
testimony is not dented. Illustratively, that the victim did not state before the police that she accompanied her mother to the house of the accused is an
omission. The statement that the mother of the victim told the accused that he did bad act, is an omission and that the accused asked the victim to go
in the house is an omission. These omissions do not take the case of the defence any further. The substratum of the testimony is not affected. The
suggestion that the accused demanded return of the hand loan extended to the father of the victim, is denied.
6.The evidence of the victim is more than amply corroborated by the medical evidence. The victim was examined on 26.1.2014 by PW 6 Â Dr.
Sharayu Bijwe. PW 6 has deposed that she found the labia slightly oedematous and the hymen torn. The labia was inflamed and the hymen was torn
which led PW 6 to opine that the victim may have been subjected to intercourse. PW 6 has proved the medical examination certificate Exh. 26. The
evidence of PW 6 has gone virtually unchallenged and the only suggestion given is that due to fingering redness can be caused on labia majora, with
which suggestion PW 6 agrees.
7.The victim is corroborated by her mother PW 2 who has deposed that when she returned home at 7.00 p.m. on 25.1.2014, the victim was weeping
and upon inquiry, she disclosed that the accused subjected her to sexual intercourse in his house. PW 2 states that she went to the house of the
accused and confronted him, the accused left his house and then PW 2 went to the house of the Police Patil who asked her to lodge report. PW 2
accompanied by the Police Patil and others and went to the Police Station where PW 2 lodged report Exh. 16. PW 2 has denied the suggestion that
false report was lodged to claim Rs. 2 lacs from the Government. PW 2 has further denied the suggestion that her husband had financial transactions
with the accused.
8.Exh. 46 is the Chemical Analysis Report which opines that the knicker of the victim is stained with blood and semen is detected at the middle
portion. Be it noted that the defence admitted seizure panchanama Exh. 31 vide which the clothes of the accused were seized. Shri R. Khemuka, the
learned counsel submits, with some vehemence, that the forensic evidence is belied by the inability of the accused to give sample of semen. The
learned counsel Shri R. Khemuka invites my attention to Exh. 34 and Exh. 35 to buttress the said submission. Exh. 34 is a communication addressed
by the Medical Officer to the Police Station Officer, Daryapur in which the Medical Officer records that the semen of the accused is not given and
the bracketed portion is “triedâ€. Exh. 35 also records, “seen and tried for ejaculation but not possibleâ€. The submission of Shri R. Khemuka
that the forensic evidence is belied by the inability of the accused to give semen for sampling and analysis ignores the known medical condition or
phenomenon of situational inability to ejaculate (situational anejaculation). In this condition a person is able to ejaculate in some situations but not in
other. The inability could be stress induced. A person may be conscious and anxious and therefore unable to ejaculate. The learned Additional
Public Prosecutor Shri N.B. Jawade, is right in submitting that the inability of the accused to give semen for sampling and analysis is of scant
relevance. It is not even argued that the accused was not capable of sexual intercourse or was suffering from erectile dysfunction. The evidence of
the victim, which is corroborated by the evidence of her mother PW 2 and the chemical analyzer’s report Exh. 46 clinchingly establishes the
complicity of the accused. The prosecution has proved the offence under section 6 of the POCSO Act and section 376(2)(i) of the IPC beyond
reasonable doubt.
9.The appeal is sans merit and is rejected.