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2019 Supreme(Bom) 938
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
Rohit B. Deo, J.
Guruprasad - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 88 of 2019
Decided On : 04-07-2019
Ashwin Wasnik, Adv., Amit Chutake, Adv.
The unchallenged evidence of the victim's date of birth is crucial in determining the age of the victim in cases involving sexual assault.
Headnote:
POCSO - Conviction under various sections of IPC and POCSO Act - Section 344, 354A, 323, 506, 376(2)(f)(n) and Sections 4,5(j)(ii)(l)(n), 6 of the POCSO Act - The court discussed the evidence and held that the prosecution proved beyond reasonable doubt that the accused subjected the victim to sexual intercourse and that the victim conceived and delivered a male child. The accused and the victim are the biological parents of the male child. The court also discussed the unchallenged evidence of the victim's date of birth and upheld the judgment of conviction.
Fact of the Case:
The victim, aged 16, was sexually assaulted by her maternal uncle, leading to pregnancy. She reported the incidents to her mother and the accused was convicted under various sections of IPC and POCSO Act.
Finding of the Court:
The court found the evidence of the victim to be reliable and held that the prosecution proved beyond reasonable doubt that the accused subjected the victim to sexual intercourse and that the victim conceived and delivered a male child. The court also upheld the judgment of conviction.
Issues: The main issue was whether the prosecution proved that the victim was a child as on the date of the incident.
Ratio Decidendi: The court relied on the unchallenged evidence of the victim's date of birth and held that the date of birth as disclosed by the victim is not in dispute.
Final Decision: The appeal was dismissed and the judgment of conviction was upheld.
JUDGMENT :
Rohit B. Deo, J.
This appeal is directed against the judgment dated 21-8-2018 rendered by the learned Additional Sessions Judge, Nagpur in Special POCSO Case 224/2016, whereby the appellant-who shall be referred to as the 'accused'-is convicted as follows :
| Offence | Punishment |
| Section 344 of the IPC | Rigorous Imprisonment for one year and payment of fine of Rs.1,000/, in default to undergo simple imprisonment for one month. |
| Section 354A of the IPC | Rigorous Imprisonment for two years and payment of fine of Rs.1,000/, in default to undergo simple imprisonment for one month. |
| Section 323 of the IPC | Rigorous imprisonment for six months. |
| Section 506 of the IPC | Rigorous imprisonment for one year. |
| Section 376(2)(f)(n) of the IPC and Sections 4,5(j)(ii)(l)(n), 6 of the POCSO Act. | Rigorous imprisonment for ten years and to payment of fine of Rs.5,000/, in default to undergo simple imprisonment for two months. |
2. The prosecution case :-
The victim (PW 1) who was aged 16 years lodged report dated 14-5-2016 (Exhibit 16) at Deolapar Police Station, the gist of which is as follows :
(i) The accused is the maternal uncle of the victim. In the month of June 2015, the victim went to the house of the accused to attend the naming ceremony of the child of the younger brother of the accused. The victim was sexually molested by the accused who used to touch her private parts. The victim used to protest and the accused used to pacify her saying that he loved her.
(ii) It is alleged that in the second week of June 2015, when she was sleeping alone, the accused approached her, slept besides her and starting touching her in an appropriate manner. The victim awoke and noticing the accused, attempting to shout. She was threatened by the accused. The accused then subjected her to sexually intercourse. Due to fear, the victim did not disclose the incident to anyone.
(iii) Thereafter the accused established sexual contact with the victim on multiple occasions when the other family members were not in the house. The victim suffered the sexual assaults fearing that she would be killed by the accused if she disclosed the sexual misconduct of the accused to the other family members or if she fled from the house.
(iv) The victim states in the report that she was not permitted to move out of the house alone and was made to accompany the accused whenever he left the house. The accused used to come home drunk and terrorise the family members who were living in mortal fear.
(v) The health of the victim deteriorated. The accused took the victim to the Government Hospital at Manegaon. The medical examination revealed that the victim was pregnant.
(vi) In March 2016, the accused sent the victim along with her grandmother to Paoni market. While her grandmother was purchasing vegetables, the victim took the opportunity of fleeing. The victim went to Mansar and then took a bus to Saoner and took shelter in the house of her maternal aunt (mother's sister) and the next day went to her house at Patansawangi. The health of the victim deteriorated day by day. Fearing social stigma the victim did not disclose that she was pregnant. However, when the victim was admitted in the Saoner Hospital, her mother came to know that the victim was pregnant. She enquired and the victim narrated the sexual misconduct of the accused to her. The victim accompanied by her parents and maternal aunt went to the police station to lodge the report.
3. The prosecution examined ten witnesses. PW 1 is the victim, PW 2-Devki Salame is the mother of the victim, PW 3-Gita Dhurve is the sister of the mother of the victim, PW 4-Dr. Sanjay Meshram and PW 5-Dr. Sangita Jain are the Medical Officers, PW 6-Dr. Pramod Kodape is the Resident Doctor, PW 7-Pratima Telgote is the lady Constable who accompanied the victim to th
