KUNDAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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:-