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, V State of Maharashtra,
CORAM: B. R. GAVAI & V. M. DESHPANDE, JJ.
DATED : 01.08.2016
Citation: 2017 CRLJ (NOC) 13 Bom,2017 ALLMR(CRI) 1509
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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