PRAMOD DATTATRAYA JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, appellant/accused No.1 Pramod Jadhav, is challenging the Judgment and Order dated 16/02/2015 passed by the learned Additional Sessions Judge, Nashik thereby convicting the appellant/accused No.1 Pramod Jadhav of the offences punishable under Section 376 of the Indian Penal Code as well as under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act' for the sake of brevity). For the offence punishable under Section 376 of the Indian Penal Code, appellant/accused No.1 Pramod Jadhav is sentenced to suffer rigorous imprisonment for ten years apart from imposition of fine of Rs.10,000/- and in default to undergo further rigorous imprisonment for two years. For the offence punishable under Section 4 of the POCSO Act, appellant/accused No.1 Pramod Jadhav is sentenced to suffer rigorous imprisonment for seven years apart from direction to pay fine of Rs.10,000/- and in default to further undergo rigorous imprisonment for one year. The substantive sentences are directed to run concurrently by the learned trial Court.

(2.) Facts leading to the prosecution and resultant conviction of appellant/accused No.1 Pramod Jadhav are thus :

(3.) I heard Shri.Gole, the learned Counsel appearing for appellant/accused No.1 Pramod Jadhav. He vehemently argued that evidence of the victim female child/P.W.No.2 is totally unbelievable and unacceptable. She is thoroughly discredited by her former statement made to the Investigating Officer. It is further argued that the prosecution has failed to prove age of the alleged victim of the crime in question. The prosecution has relied on Birth Certificate at Exhibit 25. In submission of the learned Counsel for the appellant/accused No.1, said Certificate is not relating to the alleged victim of the crime in question. There is variance in the name of father of the child as per evidence led by the prosecution as well as name of father of the child shown in Birth Certificate (Exhibit 25). No link evidence is adduced by the prosecution to co-relate the Birth Certificate at Exhibit 25 with that of the victim of the crime in question. Therefore, in absence of proof of age, it cannot be said that appellant/accused No.1 Pramod Jadhav has committed the offence punishable under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act. Evidence of the alleged victim is indicating her consent and, therefore, the prosecution has failed to prove that alleged sexual intercourse with the victim was without her consent and against her will. Shri.Gole, the learned Counsel placed reliance on the Judgment in the matter of Paryanibai v. Bajirao, 1963 AIR(Bom) 25 delivered by the learned Single Judge of this Court to substantiate his contention that despite filing of Birth Certificate, link evidence to establish that the Birth Certificate relates to the victim is required to be adduced by the prosecution.