Thursday, 4 May 2017

Whether accused can be convicted under POCSO Act if is not proved that victim was child at time of incident?

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
more strict.  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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.412/2014
Ravi Anandrao Gurpude,

State of Maharashtra,
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­ B. R. GAVAI & V. M. DESHPANDE, JJ.
DATED :­ 01.08.2016
Citation: 2017 CRLJ (NOC) 13 Bom

1. The appellant is convicted for the offence punishable
under   Section   3   (a)   punishable   under   Section   4   and   for   the
offence under Section 5 (j) (ii) and 5 (l) punishable under Section
6 of the Protection of Children From Sexual Offences Act, 2012, by
the   learned   Special   Judge,   Warora   on   21.04.2014   in   Special
(POCSO) Case No.2/2013 and directed that the appellant shall
suffer imprisonment for life and pay a fine of Rs.5,000/­ and in
default to undergo rigorous imprisonment for six months.   The

appellant is further convicted for the offence punishable under
Section   506   of   the   IPC   and   sentenced   to   suffer   rigorous
imprisonment for one year.
2. The prosecution case as it is unfolded during the course
of trial is narrated hereunder:
(a) On   09.09.2013,   Siddhanand   Mandavkar   (PW7)
was   discharging   his   duties   as   Police   Inspector   at   Police
Station, Bhisi.  On the said day at 2.00 p.m. the prosecutrix
along with her father Bhagwan Gongal (PW5) came to Police
Station.     The   prosecutrix   lodged   her   oral   report.     It   was
reduced into writing as per her say.   The oral report is at
Exh.­52.     On   the   basis   of   the   said,   Siddhanand   (PW7),
registered   the   offence   against   the   appellant   vide   Crime
No.45/2013 for the offence punishable under Section 376,
506 of the IPC and under Section 4 and 6 of the POCSO Act
(Hereinafter referred to as the “Act” for the sake of brevity).
The printed FIR is at Exh.­13.

(b) The oral report of the prosecutrix shows that when
she  was residing at mouja Panjrepar, Dist. Chandrapur in the
month of March­2013, her father had been to her elder sister
Pushpa who stays outstation.   The Prosecutrix had been to
her agricultural field for grazing her she goats.  That time, at
about   2.00   p.m.   the   appellant   suddenly   came   from   her
behind and forced her to fell down.  She raised hue and cry,
then   started   running   towards   the   village.   That   time   the
appellant   followed   her   and   thereafter   committed   forcible
sexual   intercourse   with   her.     After   the   sexual   assault,   he
extended the threats to her.  In the evening, the prosecutrix
returned to her house.  However, since, her father was out of
station, she could not narrate the incident to anybody.
On the second day also, the appellate repeated his
act on the prosecutrix.  Not only that, he continued to fulfill
his lust for a period of three days.
It   is   further   stated   in   the   FIR   that   thereafter
whenever father of the prosecutrix was not available in the
house, the appellant used to commit sexual intercourse in her
agricultural field.  In the month of May, the marriage of the
appellant   took   place   and   he   left   along   with   his   wife.

Thereafter,   the   prosecutrix   noticed   that   she   is   pregnant.
When the pregnancy became visible, her father gave courage
to her and thereafter the report was lodged.
(c) The   Investigating   Officer,   after   registration   of
crime, sent the prosecutrix to Primary Health Centre, Bhisi.
However, her medical examination could not be done there.
Therefore, she was sent to the Rural Hosptial, Chimur under
requisition Exh.­44.  He arrested the appellant on 09.09.2013
under arrest memo Exh.­55. On 10.09.2013, the Investigating
Officer visited the spot of incident.  The spot was shown by
the   prosecutrix.     The   spot   panchanama   was   drawn   in
presence of pancha witness Nanaji Lokhande (PW2), which is
at ExH.­17.  He also recorded statement of some witnesses.
He also sent the appellant for medical examination.  All the
formalities for DNA test were also completed. He thereafter
obtained   birth   certificate   from   Sarpanch   of   the   Gram
Panchayat.  The Prosecutrix was sent to the General Hospital
from Chimur hospital.   She gave birth to one female child.
The   blood   sample   for   DNA   test   was   also   collected.     On
27.09.2013,   the   Investigating   Officer   received   the

information   that   newly   born   child   is   dead.   Therefore,   he
registered Accidental Death No.32/2013 and sent the dead
body of autopsy.   After completion of other investigation,
charge­sheet was filed before the Court of law.
(d) The J.M.F.C. in whose Court, the charge­sheet was
presented found that the offence is exclusively triable by the
Court of Sessions.  Therefore, the case was committed in the
Court of Special Judge, Warora, Dist. Chandrapur and it was
registered as Special Case No. 2/2013.
(e) The   learned   Special   Judge   framed   the   charge
against   the   appellant   for   the   offence   punishable   under
Section 5 (j) (2) and 5 (c) punishable under Section 6 of the
Act.  Similarly, the appellant was also charged for the offence
punishable under Section 506 of the IPC.   After full dress
trial, the learned special Judge convicted the appellant as
observed in the opening paragraph of the judgment.  Hence,
this appeal.

3. We   have   heard   Mr.   Daga,   learned   counsel   for   the
appellant   and   Mr.   Jawade,   learned   A.P.P.   for   the   State.     The
learned counsel for the appellant vehemently submitted that the
prosecution has utterly failed to prove the age of the prosecutrix.
In that view of the matter, he submitted that the conviction of the
appellant for the offence punishable under the Act cannot stand to
the scrutiny of law.  Insofar as conviction under Section 506 of the
IPC is concerned, he submitted that the evidence of the prosecutrix
is not reliable for not disclosing the incident for a long time.
Per contra, learned A.P.P. submitted that the learned
Special Judge has evaluated the prosecution case correctly and has
recorded the correct finding of guilt committed by the appellant.
Hence, he prays for dismissal of the appeal.
4. Though, the FIR and charge­sheet was filed against the
appellant for the offence punishable under Section 376 of the IPC
in addition to the offence for which the appellant is convicted, the
learned   Special   Judge   did   not   frame   the   charge   against   the
appellant for the offence punishable under Section 376 of the IPC.
The said omission of not framing the charge under Section 376 of
the IPC was not challenged by the prosecution.   Further, even

during the course of the trial, though it was open for the learned
Special Judge to alter the charge in view of the provisions of
Section 216 of Cr. P. C., it was not altered.
5. The prosecution, in the present case, has proved that
the   prosecutrix   gave   birth   to   a   female   child.     The   scientific
evidence in the nature of DNA test which is placed on record at
Exh.­63, shows that the prosecutrix and the present appellant are
the biological parents of the baby of the prosecutrix.  In that view
of the matter, the sexual intercourse with the prosecutrix by the
appellant is a foregone conclusion.
6. The question that has to be decided by this Court is as
to whether the prosecution is successful to establish the charge,
which was framed against the appellant.
7. It would be useful to refer few provisions of the Act for
apt consideration of the submission made by the learned counsel
for appellant.
The Parliament has enacted the Act, 2012 in order to
protect   children   from   the   offence   of   sexual   assault,   sexual

harassment  and   pornography   and  provide   for   establishment  of
Special Courts for trial of such offences and for matters connected
therewith or incidental thereto.  The act extends to the whole of
India except the State of Jammu and Kashmir.
Clause (d) of Section 2 of the Act reads as under: 
“(d)     "child"   means   any   person   below   the   age   of
eighteen years.”
Section 5 deals with the aggravated penetrative sexual
assault.  Clause (j) of Section 5 reads as under:
“(j) whoever commits penetrative sexual assault on a child,
which­
(i) …..
(ii) in  the  case of  female child,  makes  the  child
pregnant as a consequence of sexual assault;”
Clause (l) of Section 5 reads as under:
“(l) whoever commits penetrative sexual assault on
the child more than once or repeatedly.”
Section 6 provides for punishment for aggravated and
penetrative sexual assault as enumerated in Section 5 of the Act.
From the aforesaid provisions, 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 Section 2 of

the Act, a person cannot be convicted for the offence punishable
under Section 6 of the Act.
8. In the present case, the FIR is dated 09.09.2013.  The
FIR is silent about the date of birth of the prosecutrix though she
has stated that her age is 17 years.   She gave her date of birth
during her evidence as 23.08.1995.  Her evidence is recorded on
26.11.2013.   Worth to note here that prior to recording of her
evidence, nowhere the prosecutrix has disclosed her date of birth.
Though,   the   Investigating   Officer   has   stated   in   his   crossexamination
that after giving report, when he made inquiry with
the prosecutrix, she gave her date of birth.   However, there is
nothing available on record to substantiate the said claim of the
Investigating Officer.
9. 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
more strict.  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.
As observed above, at the first opportunity, the date of birth of the
prosecutrix   is   not   available   in   the   prosecution   case.     The
Investigating Officer has given a requisition to Sarpanch of Gram
Panchayat, Panjarepar by which the Sarpancha was requested by
the   Investigating   Officer   to   furnish   the   birth   certificate   of   the
prosecutrix.   The   said   requisition   is   at   Exh.­56.   It   is   dated
25.09.2013   and   it   appears   that   it   was   sent   under   Outward
No.100/2013.
The   prosecution   has   placed   on   record,   the   birth
certificate issued by the Birth and Death Record Officer, Gram
Panchayat,   Panjarepar.   The   said   certificate   is   at   Exh.­57.
According to the Investigating Officer, the said is obtained by him
from Gram Panchayat.    
The document Exh.­57, the birth certificate is issued on
16.09.2013.   It shows that it is in respect of one female, “Bali”.
The date of birth is 23.08.1995.
10. The   learned   A.P.P.   submitted   that   this   particular
certificate is a conclusive proof to show that the date of birth of

the prosecutrix was 23.08.1995 and, therefore, on the date of
incident in March­2013, her age was 17 years 5 months and thus
she was below 18 years of age and was child within the meaning
of the Act.
11. Though,  under  Section  35  of   the  Evidence   Act,  this
document is having its presumptive value, we are afraid that for
the following reasons, reliance cannot be placed on Exh.­57 to
determine the of birth of the prosecutrix as 23.08.1995.
“(A) The prosecutrix has stated in her evidence that she
is having one brother and three sisters. The said fact is also
corroborated   by   her   sister   Savita   (PW4)   and   her   father
Bhagwan. (PW5).  The date of birth of any of her sister is not
brought on record.
(B) Exh.­56 a requisition from the Investigating Officer
to the Sarpancha of Gram Panchayat, Panjarepar is dated
25.09.2013.  It is not the case of the prosecution that prior to
issuance of requisition Exh.­56, there was any occasion for
the prosecutrix or for her family to obtain the birth certificate
in respect of the prosecutrix.

(C) Though, Exh.­56 requisition is dated 25.09.2013,
Exh.­57, birth certificate is issued on 16.09.2013.  The birth
certificate Exh.­57 appears to have been issued even prior to
the requisition Exh.56.  The prosecution has completely failed
to reconcile this situation.
(D) Further, Exh.­57 shows that the name of the child
as “Bali”.   Normally, when the birth certificate is obtained
immediately   after   the   birth   i.e.   even   prior   to   the   naming
ceremony,   the   pen   name   appears   on   the   said   certificate.
However,   in   the   present   case,   even   according   to   the
prosecution, the date of birth is 23.08.1995 and the birth
certificate   is   not   issued   in   the   name   of   the   prosecutrix.
Neither it is stated in the FIR nor in the substantive evidence,
the  prosecutrix deposed that she is also known as “Bali”.
Further, Savita (PW4) and Bhagwan (PW5) sister and father
of the prosecutrix are also completely silent in that behalf.
Not   only   that,   the   evidence   of   these   witnesses   is
conspicuously silent on the point that any other sister of the
prosecutrix is not known as “Bali”.

(E)          In view of the aforesaid, it is really doubtful that
the birth certificate Exh.­57 pertains to the prosecutrix and
the prosecutrix alone.  Further, there is no evidence available
in the prosecution case that there is only one Bhagwan Maroti
Gangal in the village, who is shown to be the father of Bali.
These all were required to be proved by the prosecution in
view of the stringent provisions contained in the Act.
In view of the aforesaid, we are of the opinion
that,   it   would   be   hazardous   to   accept   Exh.­57,   the   birth
certificate as the birth certificate of the prosecutrix.  Further,
the prosecutrix is giving her date of birth only during the
course of her evidence, which was recorded after obtaining
certificate Exh.­57 by the Investigating Officer and in absence
of non disclosure of her date of birth at the first opportunity,
much reliance cannot be placed on her evidence in respect of
the date of birth also.
12. Once the aforesaid evidence in respect of the date of
birth goes, then it is crystal clear that the prosecution has utterly
failed to prove that the prosecutrix was child on the date of the
incident within the meaning of the provisions of the Act.  Once,

the   prosecution   has   failed   to   prove   that   she   was   child,
consequently, the applicant cannot be convicted for the offence for
which he  was charged under  the provisions of the Act and is
entitled to be acquitted.
13. Insofar as the punishment under Section 506 of the IPC
is concerned, the evidence of the prosecutrix as well as the FIR
shows that the act of sexual assault continued for number of days
and even though her father was available, nothing was disclosed
to  the   father   by  the   prosecutrix   and  only   after  the  pregnancy
became visible, the report was lodged.  Therefore, we are of the
view that conviction for the offence punishable under Section 506
of the IPC also cannot be confirmed.
14. In view of above, following order is passed.
(i) Criminal Appeal No.412/2014 is allowed.
(ii) The judgment of conviction and order of sentence
dated   21.04.2014   in   Special   (POCSO)   Case   No.2/2013
passed   by   Special   Judge,   Warora,   thereby   convicting   the
appellant­Ravi s/o Anandrao Gurpude for the offence under

Section 3 (a) punishable under Section 4; for the offence
under Section 5 (j) (ii) and 5 (l) punishable under Section 6
of the Protection of Children From Sexual Offences Act, 2012
and   for   an   offence   punishable   under   Section   506   of   the
Indian Penal Code is quashed and set aside.
(iii) The appellant be set at liberty forthwith, if not
required in any other crime.
(V. M. Deshpande) (B. R. Gavai)

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