SANJAY DIGAMBAR SUKHDEVE Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) Challenge is to the judgment and order dated 7.6.2017 rendered by the Additional Sessions Judge, Gadchiroli in POCSO Case 8 of 2016, by and under which, the accused is convicted for offence punishable under section 376(2)(n) of the Indian Penal Code (" IPC ") and sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 5,000/-, and is convicted for offence punishable under section 387 of IPC and sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 1,000/- and is further convicted for offence punishable under section 11(v) read with section 12 of the Prevention of Children from Sexual Offences Act ("POCSO" Act) and sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 1,000/-. The appellant is acquitted of offence punishable under section 384 and 506 part II of the IPC and section 66-E & 67-A of the Information Technology Act.

(2.) Prosecution case: The accused and the uncle of the victim were friends and partners in video game business. The accused used to visit the residence of the victim, One Bharat, a common friend introduced the accused and the victim to eachother and gave the number of cellphone of the victim to the accused. The victim was then aged 16 years. The accused called the victim to a construction site near her house. He demanded sexual favour from the victim who refused to oblige. The accused attempted to force himself upon the victim who rescued herself and returned home. After some days, on the pretext of offering an apology, the accused called the victim in front of the house of one Pinku. The accused took her to the upper floor of that house. The victim was taken to a vacant block rented by one Vimal Hichami. The accused committed forcible sexual intercourse with the victim. The accused further told the victim that he had prepared a video clip of the sexual act and should the victim disclose the incident, the video clip would be circulated. The threats scared the victim who did not share the traumatic incident with anyone. After some days, the accused again threatened her, called her to the place of Vimal and had sexual intercourse with her. The victim was subjected to sexual intercourse on 5 to 6 occasions. The victim was also called to the place of one Sanjay a friend of the accused and subjected to sexual intercourse there 3 to 4 times. The victim was forced to succumb since the accused threatened her that he would disclose the sexual relationship to her mother and further threatened her that she will be killed if the accused is not paid Rs. 20,000/-. The accused used to send the victim threatening and abusive messages from his cellphone number 8308808850 to the cell phone of the victim bearing number 8975525342. The trauma became unbearable to the victim who disclosed her sufferings to her uncle and lodged report at Desaiganj Police Station on 1.12.2015 on the basis of which offence punishable under sections 376 , 506 part II of the IPC , sections 4, 8 and 12 of the POCSO Act and sections 67 of the Information Technology Act was registered. The accused was arrested, his cellphone and memory card containing video clips and other data were seized. The seized mobile phone and memory cards were sent to Forensic Laboratory, Nagpur, the data was retrieved. It transpired during investigation that the victim was physically ravished and exploited by the accused who also tried to extort money from the victim. Upon completion of the investigation, charge sheet was submitted in the Court of Judicial Magistrate First Class, Desaiganj, who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exh.10) for the offence under section 375 Clause sixthly, 376(2)(n), 506(2), 384, 387 and under section 3 punishable under section 4 , 11(v) punishable under section 12 of POCSO act and 66-E and 67-A of Information & Technology Act . The accused abjured guilt and claimed to be tried. The defence of the accused as is reflected in the statement recorded under section 313 of the Code of Criminal procedure is total denial. However, the trend and tenor of the cross- examination of PW 1 would suggest that the defence is that the victim and the accused were in love which was not liked by the parents of the victim who forced the victim to lodge a false report.

(3.) Shri C.R. Thakur, the learned counsel for the appellant submits, at the very outset that the prosecution failed to prove that the victim was less than 18 years of age. This submission is made in the context of the defence that even if it is assumed arguendo that the prosecution proved that the victim was subjected to sexual intercourse, the relationship was consensual. The victim (PW 1) has stated that her date of birth is 30.7.1999. The incident occurred in early 2015. The evidence of the victim that her date of birth is 30.7.1999 has gone unchallenged. Exh. 38 is the bonafide certificate issued by the Adarsha English Junior College in which the date of birth of the child victim is recorded as 30.7.1999. The defence has suggested to the victim that she conveyed to Bharat that after attaining majority, she would marry the accused. This suggestion is denied. However, the suggestion would suggest that it is the case of the defence that the victim was minor and therefore, she declared that she would marry the accused after attaining the majority. It would be apposite to refer to the following observations of the Division Bench of this Court in Kundan s/o. Nanaji Pendor ..vs.. The State of Maharashtra, 2017 ALL MR (Cri) 1137. 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 apeal313.14 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) & 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: