Vinod Kumar Laltaprasad Jaiswal vs The State Of Maharashtra & Anr.

This appeal takes exception to the judgment and order dated 11^th January 2021 passed in POCSO Special Case No.539 of 2016, whereby the accused came to be convicted for the offences punishable under Sections 6 and 8 of Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act") and Sections 363 and 376(1) of the Indian Penal Code 1860 (for short "IPC"). He is sentenced to suffer 10 SHANKAR (Ten) years Rigorous Imprisonment with fine of Rs.15,000/-, in default, 3 (Three) months Rigorous Imprisonment and 3 (three) years Rigorous Imprisonment with fine of Rs.5,000/-, in default, 2 (Two) months Rigorous Imprisonment for offences punishable under Sections 6 and 8 of the POCSO Act respectively.

It is the case of the prosecution that the victim was aged about 16 years at the time of occurrence of the incident. On 23^rd September 2016 as her mother scolded her, she left house and did not return. The search taken for the victim was futile. Her mobile phone was also found switched off. A report, therefore, came to be lodged by the father of the victim on 24^th September 2016 on the basis of which offence came to be registered under Section 363 of the IPC. After about a month, victim was found and brought back. She disclosed of having an affair with accused who is her maternal uncle. On the basis of the statement of victim and medical examination conducted, offences under Section 376 and POCSO Act came to be added. The investigation in the said Crime was done. On conclusion of investigation, charge sheet is filed before the competent Court.

The charge was framed against accused vide Exhibit-3. He abjured the charge. The prosecution examined the following four witnesses: PW1-Informant (Exhibit-8) PW2-Victim (Exhibit-12) PW3-Dr. Swapnil P. Akhade, (Exhibit-16) PW4-PSI Virendra G. Ghosalkar (Exhibit-18)

In addition to the oral evidence, the documentary evidence was also relied upon which included birth certificate of victim(Exhibit-10), FIR, spot panchanama, medical examination report of victim, etc.. Incriminating evidence was put to the accused in the statement under Section 313 of the Cr.P.C..He did not lead any evidence. Learned Trial Court found the evidence of the prosecution sufficient to bring home guilt of the accused beyond reasonable doubt, hence, recorded conviction against him by the impugned judgment and order.

Learned counsel for the appellant/accused submits that here in this case, the prosecution has failed to bring on record conclusive evidence indicating the age of the victim to be below 18 years and she being child. It is her contention that the investigating officer in his cross-examination was not able to answer the question as to from which source he obtained the birth certificate of the victim. It is submitted that having regard to the said evidence, it cannot be held that the prosecution has proved the age of the victim to be below 18 years. It is submitted that once the age of the victim is not proved, in view of the fact that this is a case of consensual sexual relationship between the accused and the victim, he deserves acquittal. By relying upon the judgment of Coordinate Bench of this Court in case of Pramod Dattatraya Jadhav versus The State of Maharashtra 2019 SCC OnLine Bom 145, it is submitted that for want of details with regard to the parents of the victim being proved before the Trial Court, it cannot be held that the victim is minor by placing reliance even on birth certificate. She also placed reliance on the judgment in case of Ashik Ramjaili Ansari versus State of Maharashtra and anr. in 2023 SCC OnLine Bom 1390 to argue that in case of consensual sexual relationship between the accused and victim, who is above 16 years of age but below 18 years of age, the offence cannot be said to have been proved. Learned counsel for the appellant submits that though the offence punishable under Section 363 of the IPC has been charged against the accused, there is absolutely no evidence on record to hold that the accused enticed the victim and took her away from the lawful custody of her parents.

Learned APP and learned counsel for respondent No.2 supported the impugned judgment and order. It is their contention that the prosecution has proved the age of the victim on the basis of birth certificate, which is not denied by the defense by conducting cross-examination of the victim as well as her father. It is submitted that once it is held that the victim was minor, consent if any of the victim for sexual relations is inconsequential. Thus, it is their contention that in any event, the offence of statutory rape has been proved against the accused. Similarly, it is argued that the victim was minor and it is the accused who took her away from the custody of her parents and she was brought back from his custody which is sufficient to prove the offence of kidnapping.

In order to prove the offence of kidnapping punishable under Section 363 of IPC, so also offences under the POCSO Act, the burden would be on the prosecution to prove that the victim is a child within the meaning of Section 2(d) of the POCSO Act. The evidence of PW1, informant-father of victim, shows that he placed on record original birth certificate of victim indicating her date of birth as 8^th November 1999. Learned Trial Court Court verified the original document and compared the same with the photo-copy and thereafter marked the photo-copy as Exhibit 10. In the cross-examination, no dispute was made by the defense with regard to the correctness of the birth certificate or that the birth certificate does not belong to the victim. Similarly, the victim in her evidence has specifically stated about her date of birth being 8^th November 1999. She is also not cross-examined in order to challenge the evidence of victim on oath. Thus, there is conclusive evidence to indicate that the victim was below the age of 18 years and hence a child within the meaning of Section 2(d) of the POCSO Act. Merely because the investigating officer is unable to state the source of birth certificate, the unchallenged evidence of informant as well as victim cannot be discarded. It is, therefore, held that prosecution has succeeded in proving victim to be child and hence provisions of the POCSO Act are squarely applicable to the present case.

In so far the offence charged of kidnapping against the accused is concerned, the testimony of the victim as well as her father indicate that she on her own left the house after her mother scolded her. It is stated that after one month, she was found at Pune. Thus there is no evidence to indicate that the accused has enticed the girl and taken her away from the custody of her parents. Thus, the essential ingredients to constitute an offence of kidnapping are not proved. It is, therefore, held that the prosecution has failed to prove the said charge.

As far as the offence under Section 376 of the IPC and Section 6 of the POCSO is concerned, the victim in her testimony claims that she had sexual relations with the accused but the same were consensual in nature. The said fact of the consensual sexual relationship between accused and victim is not denied by the accused. There is further medical evidence to indicate that the victim was subjected to the penetrative sexual intercourse. Thus, there is a conclusive evidence on record to hold that the accused had subjected the victim of sexual intercourse. Now the question arises as to whether the consent of the victim for such relationship is relevant. Needless to say that the definition of rape under IPC as it stood then indicates that the consent of a woman below age of 16 years at the relevant time was treated as no valid consent. However, provisions of POCSO Act provides that sexual intercourse with a child within the meaning of Section 2(d) of the said Act i.e. a person below age of 18 years is an offence and the consent of a child for sexual relationship, is no consent in the eyes of law and hence, the theory of consensual physical relationship, sought to be made out deserves to be ignored.

Learned counsel for the appellant has placed reliance on the judgment of the Coordinate Bench of this Court in the case of Ashik Ramjaili Ansari (Supra), wherein following observations amongst other are made :

With utmost respect to the judgment cited supra, in considered view of this Court, the consent which is not recognized by the statute cannot be accepted as a valid consent for offences under POCSO Act. Unlike, IPC, the consent of victim is not relevant under the said Special Act. Perusal of the provisions of the Act do not indicate that legislature ever intended to consider the consent of a child as a decisive factor for proof of offence. Thus, once it is held that the victim of sexual assault is a child, the consent or no consent of such child is inconsequential. There is no relevance of any consent of the child, in case of the sexual intercourse being done with her. Furthermore, the challenge to amendment to the provision of Section 375 raising the age for recording valid consent of a woman from 16 years to 18 years, has not been held unconstitutional till this date by any Court. In view of this, it would not be open for this Court to hold that since the victim girl was of age of understanding to record consent for sexual relationship, and to acquit the accused. It would amount to rewriting of the statute which is wholly impermissible. In view of above, this Court finds no reason to cause interference in the judgment of conviction recorded against the appellant/accused for offences punishable under Section 376 of the IPC and Section 6 of the POCSO Act.

Learned counsel for the appellant submits that having regard to the facts of the case, the appellant at the most may be sentenced to suffer minimum sentence prescribed by law. It is submitted that at the relevant time, the minimum sentence for the said offence was seven years.

Learned counsel for respondent No.2 as well as learned APP though opposed for reduction of the sentence, however, they do not dispute the fact that at the relevant time, minimum sentence was of seven years.

Even if this Court accepts the fact that it is a case of a love affair, it is not open for the Court to impose sentence less than the minimum sentence prescribed by the statute. Consequently, the Court has no other option but to sentence the accused to suffer 7 years of imprisonment for the offence punishable under Section 376 of the IPC and 6 of the POCSO Act with fine as imposed by the Trial Court.

In view of above discussion, the following order :