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2016 Supreme(Bom) 1404
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
B. P. DHARMADHIKARI, A.S. CHANDURKAR, JJ.
Kundan son of Nanaji Pendor – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 313 of 2014
Decided On : 21-10-2016
For the Appellant : Mr. S. V. Sirpurkar, Adv.
For the Respondent: Mr. M.J. Khan, Addl. Public Prosecutor
The unchallenged deposition of a witness on a material fact is required to be accepted, and if a witness is not cross-examined on a particular portion of her deposition, said statement is required to be accepted as unchallenged.
Headnote:
Criminal Procedure Code - Conviction under Protection of Children from Sexual Offences Act, 2012 and Indian Penal Code - Section 374(2), Section 3(a), Section 5(j)(ii), Section 5(l), Section 376, Section 417 - The court discussed the age of the prosecutrix, the relationship between the appellant and the prosecutrix, and the evidence supporting the charges. Key legal provisions include Section 2(1)(d) of the Protection of Children from Sexual Offences Act, and Section 375 sixthly of the Indian Penal Code. The court's decision was influenced by the unchallenged deposition of the prosecutrix regarding her date of birth and the corroborating ossification report, leading to the finding that the prosecutrix was a child below eighteen years and the appellant was rightly charged under the provisions of the Protection of Children from Sexual Offences Act.
Fact of the Case:
The appellant, a driver, was convicted for offences under the Protection of Children from Sexual Offences Act, 2012 and the Indian Penal Code for having sexual relations with the prosecutrix, who became pregnant. The appellant appealed his conviction, arguing that the age of the prosecutrix had not been proved beyond doubt and that the relationship was consensual.
Finding of the Court:
The court found that the unchallenged deposition of the prosecutrix regarding her date of birth and the corroborating ossification report proved that she was a child below eighteen years, leading to the appellant's conviction under the Protection of Children from Sexual Offences Act, 2012 and the Indian Penal Code.
Issues: The issues included the age of the prosecutrix, the nature of the relationship between the appellant and the prosecutrix, and the applicability of consent in cases where the victim is below sixteen years of age.
Ratio Decidendi: The unchallenged deposition of the prosecutrix regarding her date of birth and the corroborating ossification report led to the finding that she was a child below eighteen years, influencing the court's decision to uphold the appellant's conviction.
Final Decision: The appeal was dismissed, and the sentence of conviction handed down by the Sessions Court was maintained.
A.S. Chandurkar, J.
1. By the present appeal filed under Section 374 (2) of the Criminal Procedure Code, 1973, the appellant takes exception to his conviction for having committed an offence punishable under Section 3 (a) as well as for the offence under Section 5 (j) (ii) and 5 (l) of the Protection of Children from Sexual Offences Act, 2012 [for short “the said Act”]. The appellant has also been convicted for the offence punishable under Section 376 and Section 417 of the Indian Penal Code [for short “the Penal Code”]. He has been sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/-.
2. Case of the prosecution is that the appellant, who was serving as a driver, was acquainted with one “S” - the prosecutrix. The appellant developed friendship with “S” and both had decided to get married after “S” attained the age of majority. In November, 2010, when the prosecutrix was studying in VIIIth Standard, the appellant had been to her place and had stated that as they had decided to marry, he had sexual intercourse with her. This continued for some more period. As a result of said relationship, the prosecutrix became pregnant and on 15th June, 2013, a report was lodged in that regard. On the basis of investigation carried out by the police authorities, a charge-sheet came to be filed against the appellant for offences under the said Act as well as under Sections 376 and 417 of the Penal Code. The appellant did not plead guilty and was, thus, tried. At the conclusion of the trial, the appellant was held guilty and was accordingly convicted in the manner stated herein above. Hence this appeal.
3. Shri S.V. Sirpurkar, the learned counsel for the appellant, submitted that the conviction of the appellant was totally unjustified and unsustainable in law. He submitted that the age of the prosecutrix had not been proved beyond doubt. The Radiologist, who was examined as PW 5, had opined in his report at Exh.19 that the age of the prosecutrix was not less than sixteen years and not more than eighteen years. According to him, a margin of error in the assessment of the age by the Radiologist was two years on either side. The defence was entitled to rely upon the higher age as assessed by the Radiologist. The Birth Certificate of the prosecutrix had not been placed on record. It was urged that initial burden to prove the age of the prosecutrix was on the prosecution and having failed to do so, the appellant could not have been convicted under the provisions of the said Act by treating the prosecutrix as a child. He referred to the deposition of the Investigating Officer – PW 11 who had stated that the Birth Certificate of “S” had not been collected from the Nagar Parishad. Referring to the case of the prosecution itself, it was submitted that the relationship between the appellant and the prosecutrix was consensual. The report, in question, was belatedly lodged on 15th June, 2013 and till said date, the prosecutrix remained silent.
In the alternate, it was submitted that if it is found that the prosecutrix was not a child and the offence punishable under Section 376 of the Penal Code was made out, the appellant would be entitled for a lesser punishment than the one awarded by the Sessions Court. In support of his submissions, the learned counsel relied upon the following judgments:-
[a] Kaini Rajan Vs. State of Kerala [(2013) 9 SCC 113],
[b] Ganga Singh Vs. State of Madhya Pradesh [(2013) 7 SCC 278],
[c] Musauddin Ahmed Vs. State of Assam [AIR 2010 SC 3813],
[d] Ram Suresh Singh Vs. Prabhat Singh alias Chhotu Singh & another [(2009) 6 SCC 681],
[e] Deelip Singh alias Dilip Kumar Vs. State of Bihar [(2005) 1 SCC 88],
[f] State of U.P. Vs. Nahar Singh (dead) & others [(1998) 3 SCC 561], and
[g] Jaya Mala Vs. Home Secretary, Govt. of Jammu & Kashmir & others [(1982) 2 SCC 538].
4. Shri M.J. Khan, learned Addl. Public Prosecutor, on the other hand, supported the appellant's conviction. He relied upon the certificate issued by the
