PRITAM MANSARAM VERMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By this application under section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred as "the Code"), the applicant seeks suspension of the execution of the sentence awarded by the learned Special POCSO Judge, Gandhinagar vide order dated 28.2.2019 passed in Special Case (POCSO) No.69 of 2016 and seeks to be enlarged on bail during the pendency of the appeal.

(2.) The prosecution case is that the complainant, who is the mother of the victim, lodged a complaint on 22.9.2016 before Police Inspector, Kalol Taluka Police Station, stating that she was residing at Gandhinagar since the last one year and was doing household work. Her husband has passed away about four months prior thereto. She had three daughters and three sons. The victim was her third child and she was studying at Dhanot Village in the primary school in Standard VII. The birth date of the victim was 19.4.2001. Prior to her husband having passed away, her minor daughter (the victim) was residing in a room at Ronak Plastic Industries, Chhatral GIDC Phase IV with her brother-in-law and the mother-in-law and she used to go to Dhanot Primary School for studying. That about one month prior thereto, her daughter was bathing at their house in Dhanot village, when her eyes fell on her stomach, and as her stomach was enlarged she suspected something and upon inquiring from her daughter, she told her that nothing had happened. However, as she had doubts and on the next day, as her son was suffering from some kidney problem and was required to be taken to the hospital, she had also taken her daughter to Bhagyoday Hospital at Kadi and upon getting her examined by the doctor, the doctor had said that her daughter was five months' pregnant and advised her to take her for treatment to the Civil Hospital at Ahmedabad. Therefore, she was very frightened. As she did not have the funds for treatment, she had straightway gone home and after taking the victim into confidence, she had questioned her, and the victim had informed that about seven months prior thereto, when her uncle had gone for service and her grandfather was sleeping outside in the courtyard at that time, the appellant-Pritam Mansaram Verma, who was residing in a room of Ronak Plastic Industries, Chatral GIDC Phase No.4, had opened the door of the room and come inside and forcibly caught hold of her and had done wrong things with her. Hence, she had started crying whereupon Pritam had told her that if she tells anyone about it, he would kill her brother. Hence out of fear she had not told anyone about the incident. Thereafter, when she was alone in the room, the appellant would come at around 11 o'clock at night and despite her saying no, he would forcibly do wrong things with her without her consent and used to threaten her not to tell anyone. Hence out of fear, she had not told anyone. The complainant has further stated that as her husband had recently passed away and her son was suffering from kidney ailment, and she did not have sufficient funds to take the victim to the hospital, she had talked with the applicant in this regard, whereupon he had got provoked and hurled abuses and had said that he did not have anything to do with it and threatened her that if she gives his name, he would finish her entire family. Hence, she had informed her brother-in-law and father-in-law about the above incident and they had told her that she need not be afraid of anyone and asked her to inform the police, whereupon she had taken her daughter and gone to the police station and lodged the complaint. She has stated that the applicant herein by taking advantage of her minor daughter aged 15 years and 5 months, who was suffering from paralysis in both her hands and when she was alone, against her wishes, time and again, by having sexual intercourse with her and threatening her not to inform anyone or else he would kill her son Nitin and other family members and by making her daughter five months pregnant had committed an offence.

(3.) Mr. Yogesh Kanade, learned advocate for the applicant, vehemently argued that the prosecution has failed to establish beyond reasonable doubt that the victim was born on 19.4.2001, as stated in her deposition as well as by her mother. It was submitted that the prosecution has placed reliance upon a certificate regarding the birth date of the victim issued by the school, whereas, the Principal of the school was not examined to establish as to on what basis such entry had been made in the record. It was submitted that the prosecution has not produced any admissible evidence indicating the age of the victim. Hence, in the absence of any proper evidence having been brought on the record, the prosecution has not proved the charge against the applicant beyond reasonable doubt.