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Kundan Vs. The State of Maharashtra - Court Judgment

LegalCrystal Citation
CourtMumbai Nagpur High Court
Decided On
Case NumberCriminal Appeal No. 313 of 2014
Judge
AppellantKundan
RespondentThe State of Maharashtra
Excerpt:
.....punishable under section 376 and section 417 of ipc. court held once it is found that s was child below eighteen years, coupled with admitted position that report proved appellant to be father of said child, conviction of the appellant for having committed offences punishable under sections 3 (a), 5 (j) (ii) and 5 (l) of the said act cannot be faulted conduct of appellant also needs to be noticed as per the evidence on record, appellant had sexual intercourse with prosecutrix when she was less than sixteen years of age after she conceived, this fact was brought to his notice however, appellant got engaged with another girl and also married said girl only defence sought to be raised by appellant in his examination in which he stated that mother of prosecutrix asked him..........with another girl on 3rd july, 2013 and got married with said other girl. she deposed that her date of birth was 5th january, 1997 and that on 23rd september, 2013 she had given birth to a female child at chandrapur govt. hospital. in her cross-examination, it was suggested to her that in the year 2012, she was in ixth standard. except the suggestion that the prosecutrix had not informed her parents about their relationship, nothing material has been extracted from her in her deposition. in fact, she was not cross-examined on her statement that her date of birth was 5th january, 1997 and that a female child was born on 23rd september, 2013. 9. pw 5 dr. ashok barapatre was examined below exh.18. he deposed that on 18th june, 2013, he had done the sonography and ossification test of s.....
Judgment:

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 and 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) and others [(1998) 3 SCC 561], and

[g] Jaya Mala Vs. Home Secretary, Govt. of Jammu and Kashmir and 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 Radiologist at Exh.19 which indicated that the age of the prosecutrix was not more than eighteen years. He submitted that there was no question of either adding or reducing the age from the one assessed by the Radiologist. He submitted that the appellant had, in fact, not questioned the prosecutrix about her age as deposed by her. He referred to the provisions of Section 2 (1) (d) of the said Act, to urge that the prosecutrix being a person below the age of eighteen years, she was a child and hence appellant-accused was rightly charged under the said Act. He referred to the report at Exh.43 which showed the appellant to be the biological father of the daughter born to the prosecutrix. He also referred to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 as well as Rule 12 (3) (b) of the Rules framed thereunder. The learned counsel, therefore, submitted that since the inception of the relationship, the appellant had promised to marry the prosecutrix and had continued the relationship. Hence the conviction as recorded by the Sessions Court need not call for any interference. To substantiate his arguments, learned Addl. Public Prosecutor relied on the decisions of Hon'ble Supreme Court in [1] Deepak Gulati Vs. State of Haryana [(2013) 7 SCC 675], and [2] State of Uttar Pradesh Vs. Naushad [(2013) 16 SCC 651].

5. We have heard the respective counsel for the parties at length and with their assistance, we have also gone through the records of the case.

6. Before considering the submissions as urged by the learned counsel for the parties, reference can be made to certain factual aspects that have come on record and which have not been duly challenged by the appellant.

7. The prosecution had conducted the parentage test of the child born to the prosecutrix by collecting the blood samples of the appellant, the prosecutrix and the child. On the basis of these blood samples, the prosecution placed on record the results of said test dated 18th November, 2013 as per Exh.43. It was clearly opined therein that the appellant and the prosecutrix were the biological parents of the child born to the prosecutrix. This report was brought on record in the deposition of Investigating Officer PW 11 and there was no challenge by the appellant to this report. Even before us, there was no such challenge raised to the said report. It is, thus, clear from the aforesaid report that on account of the relationship between the appellant and the prosecutrix, a child was born to them.

8. PW 1 - S was examined below Exh.9. In her deposition, she has stated that the appellant was serving as a driver and that he used to intermittently come to their house as her parents were also working at Anandwan where the appellant was serving. She has stated that while she was in IXth Standard, the appellant had stated that he would marry her and had started having sexual relations with her. She has stated that they had last sexual intercourse in the month of June, 2013. After her menstrual cycle had stopped, she had told the appellant about the same. The appellant, instead, got engaged with another girl on 3rd July, 2013 and got married with said other girl. She deposed that her date of birth was 5th January, 1997 and that on 23rd September, 2013 she had given birth to a female child at Chandrapur Govt. Hospital. In her cross-examination, it was suggested to her that in the year 2012, she was in IXth Standard. Except the suggestion that the prosecutrix had not informed her parents about their relationship, nothing material has been extracted from her in her deposition. In fact, she was not cross-examined on her statement that her date of birth was 5th January, 1997 and that a female child was born on 23rd September, 2013.

9. PW 5 Dr. Ashok Barapatre was examined below Exh.18. He deposed that on 18th June, 2013, he had done the sonography and ossification test of S . He stated that after such examination, the expected date of delivery was given to be 16th September, 2013 and that her age on radiological examination appeared to be sixteen to eighteen years. This Ossification Report is at Exh.19. In his cross-examination, he stated that the Crest Ilium Test was not conducted because the patient was pregnant.

10. PW 10 Dr. Dipti Shrirame was examined below Exh.30. She has deposed that she had examined the prosecutrix on 17th June, 2013 and had noted that she was between twenty-four to twenty-six weeks' pregnant and her last menstrual period was on 8th January, 2013. In her cross-examination, she stated that on the basis of said last menstrual period, the expected date of delivery would be 15th October, 2013. The Investigating Officer Ms. Shubhangi Aagase, examined as PW 11, admitted that the Birth Certificate of the prosecutrix had not been collected nor was the date of birth verified from the Nagar Parishad. The mother of the prosecutrix had given the School Leaving Certificate of the prosecutrix.

11. Since the appellant has been charged with having committed offence under Sections 3 (a), 5 (j) (ii) and 5 (l) of the Act of 2002, as per Charge at Exh.4, it would be necessary to first record a finding as to the age of S . As per provisions of Section 2 (1) (d) of the said Act, a child means a person below the age of eighteen years. As noted above, the prosecutrix had stated on oath that her date of birth was 5th January, 1997. There is no cross-examination, whatsoever, to this specific assertion made by the prosecutrix in her Examination-in-Chief. Her said statement has gone totally unchallenged. It is a settled position of law that if a witness is not cross-examined on a particular portion of her deposition in her Examination-in-Chief, said statement is required to be accepted as the same is not challenged by the defence. Reference in this regard can be made to the observations of the Hon'ble Supreme Court in paragraphs 13 and 14 of its decision in State of U.P. Vs. Nahar Singh (dead) and others [(1998) 3 SCC 561] which are quoted below:-

13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence PW-1 remained unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by a allowing a witness to be questioned:

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.

14. The oft-quoted observation of Lord Herschell, L.C. in Browne vs. Dunn clearly elucidates the principle underlying those provisions. It reads thus:

I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses.

Similarly, in Sarwan Singh Vs. State of Punjab [ (2003) 1 SCC 240], the Hon'ble Supreme Court reiterated this position by observing in Paragraph 9 of its judgment as under:-

9. ...........................................................................

................It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. ..

Hence, following aforesaid position of law, there would be no difficulty in accepting the unchallenged version of the prosecutrix that her date of birth was 5th January, 1997. Though it is true, as urged by the learned counsel for the appellant, that the initial burden to prove the age of the prosecutrix lies on the prosecution, it is also true that if the relevant version of the prosecutrix as regards her date of birth has gone unchallenged, it means that the defence has accepted said statement made on oath by the witness. Hence, there is no reason to discard the unchallenged version of S that her date of birth was 5th January, 1997.

12. As regards the ossification test and its report at Exh.19, the same indicates that it has been opined by PW 5 that the age of S was not less then sixteen years and not more than eighteen years. This report is dated 18th June, 2013 and if it is the unchallenged version of the prosecutrix that her date of birth was 5th January, 1997, this report at Exh.19 corroborates her said statement. If she was born on 5th January, 1997, she would be aged about sixteen years and five months on 18th June, 2013 when the said test was conducted. Thus, as opined, her age was not less than sixteen years and not more than eighteen years as per this report. The report at Exh.19, thus, corroborates the version of S as regards her age. Though heavy reliance was placed by the learned counsel for the appellant on the judgment of Hon'ble Supreme Court in Jaya Mala [supra] to contend that a margin of error of two years on either side was possible, the ratio therein cannot support the case of the appellant, especially when the version of the prosecutrix as regards her date of birth has gone unchallenged. Moreover, in Ram Suresh Singh [supra], the Hon'ble Supreme Court after referring to its earlier judgment in Jaya Mala [supra] has observed that it would be difficult to lay down a law as to whether the lower or the upper age or the average age should be taken into consideration and each case depends on its own facts.

In any event, the conclusion as to her age is not arrived at solely on the basis of the Ossification Report at Exh.19, but on the basis of her unchallenged deposition. The report at Exh.19 merely corroborates her oral deposition. A mere suggestion given to the Investigating Officer that the prosecution had not collected the Birth Certificate of S by itself cannot support the case of the defence. In the light of the material on record, it is difficult to accept the contention made on behalf of the appellant that the age of the prosecutrix was not duly proved. The inevitable fallout of the aforesaid discussion is that the prosecution has succeeded in proving that the prosecutrix was a child as defined by Section 2 (1) (d) of the said Act and hence was rightly charged under provisions of the said Act.

13. From the deposition of PW 10, it is clear that the last menstrual period was stated to be on 8th January, 2013. The baby was actually born on 23rd September, 2013 through a normal delivery. It is, thus, obvious that the prosecutrix was hardly aged 16 years when on account of sexual intercourse by the appellant, she had conceived. Once her date of birth is accepted to be 5th January, 1997, it is clear that on 5th January, 2013 she was aged sixteen years of age. It is, thus, clear from the evidence on record that she was less than sixteen years of age when the appellant had sexual intercourse with her. In this backdrop, therefore, the endeavour on the part of the learned counsel for the appellant to urge that the relationship between the parties was consensual in nature falls to the ground. As per provisions of Section 375 sixthly of the Penal Code where the age of the victim is less than sixteen years, the aspect of consent becomes irrelevant. Reference in that regard can be made to the decision of Hon'ble Supreme Court in Satish Kumar Jayantilal Dabgar Vs. State of Gujrat [(2015) 7 SCC 359]. In that view of the matter, the decisions relied upon by the learned counsel for the appellant to indicate consent on the part of the prosecutrix cannot be made applicable in the present facts. For the same reason, the alternate argument made on behalf of the appellant by referring to Section 42 of the said Act that a lesser punishment as per the provisions of Section 376 of the Penal Code deserves to be imposed, also cannot be accepted.

14. Once it is found that S was a child below eighteen years, coupled with the admitted position that the report at Exh.43 proved the appellant to be the father of the said child, the conviction of the appellant for having committed the offences punishable under Sections 3 (a), 5 (j) (ii) and 5 (l) of the said Act cannot be faulted.

15. In the passing, conduct of the appellant also needs to be noticed. As per the evidence on record, the appellant had sexual intercourse with the prosecutrix when she was less than sixteen years of age. After she conceived, this fact was brought to his notice in June, 2013. However, the appellant got engaged with another girl and also married said girl on 3rd July, 2013. The only defence sought to be raised by the appellant in his examination under Section 313 of the Code is his answer to Question No. 43, in which he stated that the mother of the prosecutrix asked him whether he would marry S and as he refused to marry her, false allegations were made against him. In the light of the evidence on record, the defence as raised does not deserve acceptance.

16. In view of the aforesaid discussion, we do not find any reason to take a different view from the one taken by the learned Judge of the Sessions Court. Accordingly, the Appeal stands dismissed. The sentence of conviction handed down by the learned Special Judge, Warora, in Special [POCSO] Case No. 3 of 2013 is maintained. The seized property be destroyed after the period of appeal. There would be no order as to costs.


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