Appeal rejected against the charges of Sec-4 & 6 of POCSO Act: High Court of Bombay
In the present case, an appeal has been filed under sec 374(2) of CrPC against the conviction of the appellant for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and under Sections 452 and 506 of the Indian Penal Code and sentencing him to punishments, the maximum of which is rigorous imprisonment for ten years and fine of Rs.35,000/-, in default simple imprisonment for one year for the offence punishable under Section 6 of the POCSO Act. A single-judge bench comprising of justice Mangesh S. Patil adjudicating the matter of Ashok v. The State of Maharashtra, (CRIMINAL APPEAL NO. 227 OF 2018) dealt with the issue of whether to allow the present criminal appeal or not.
The Respondent is of 16 years and 3 months on the date of lodging of the FIR on 28.03.2017. It was alleged by the Respondent that she has been residing with her parents, two brothers, and grandmother at village Parsamal, Taluka Shindkheda, District Dhule. Her date of birth is 15.08.2001. Her parents along with one of her brothers had gone to Selamba on 19.03.2017. She along with her grandmother and another brother were at home in Parsamal. She then alleges that on 24.03.2017, during afternoon hours, her grandmother had taken her brother Akash for medical treatment to a doctor. She was alone in the home. She bolted the backside door and was having meals in the front room. She alleges that at about 1.30 p.m., the appellant affected entry into the house by unbolting the backside door by putting the hand inside. When she questioned him as to how and why he had entered into the house in this manner, he pulled her to the inside room, disrobed her, and committed rape at the point of a knife. He also threatened her with dire consequences if the incident was disclosed. After the incident, he left from the backside door. She tried to raise hue and cry, but he had gagged her mouth during the incident and also threatened her because of which she was frightened. When her grandmother and brother came back and saw her dejected, the grandmother asked her the reason but she could not disclose anything. Her parents returned on 26.03.2017 and thereafter she started crying and narrated the incident to her parents. Since both of them and grandmother were unable to comprehend how to meet the situation as they were apprehensive of there being a social stigma, after giving some thought, they went to the Police Station on 28.03.2017 and lodged the report.
The offence was registered. The victim was sent for medical examination. Her clothes were seized under seizure panchanama. The appellant was arrested. Even his clothes were seized under seizure panchanama. Samples were collected. A spot panchanama was drawn. The samples were forwarded for chemical analysis and the reports were received. In due course of time, after the conclusion of the investigation, PSI Potadar submitted the charge sheet. A charge was framed for the offences punishable under Sections 376(2), 452, and 506 of the Indian Penal Code and for the offences punishable under Sections 4, 6, and 8 of the POCSO Act.
The Appellant pleaded not guilty and stated that he was having an affair with the victim. He Stated that He had entered the house as alleged and both of them had hugged each other though there was no sexual intercourse. Also, it was submitted that the date of birth of the victim has not been duly proved and consequently, there is serious doubt as to if she was a child within the meaning of Section 2(d) of the POCSO Act on the date of the incident. He would further point out that there is an enormous delay of 4 to 5 days in reporting the matter to the police. No plausible explanation is coming forth. On the contrary, the father of the victim admitted during his cross-examination to have deliberated before approaching the police and lodging the FIR, which clearly shows that there is an element of concoction. It was submitted that Having asserted about having bolted the backside door of the house from inside, one cannot comprehend as to how entry could have been effected in the house by unbolting the door. Also, it is submitted that though she is pretending to have made an attempt to raise an alarm, even this version of her is not plausible inasmuch as she admits that the house is surrounded by several other relatives of her father. It was also submitted that there is not enough material to prove the offence and without assigning cogent and convincing reasons, the appellant was illegally convicted and sentenced.
According to the Respondents, the delay was due to the social implications and not only the victim but even the parents of the victim would be shy and apprehensive in readily making the incident public. The Respondent submitted the matriculation certificate and as per her school certificate, her birth date was corroborated by the evidence produced by the father of the victim. Hence there is no error or illegality in regards to her date of birth. The Respondents also contended that there is no requirement of the law of seeking corroboration to the testimony of a victim and the conviction in a rape matter can be returned on her sole testimony if it is found to be reliable and trustworthy.
The court heard the submissions from both the parties and minutely observed all the evidences. In relation to the aspect of delay in lodging the FIR, it was held that” though the appellant stated that there was a love affair with the appellant and he entered the house with her consent and he denies to have had any sexual intercourse, this circumstance would indicate that though being a child, her consent is inconsequential, if the incident had taken place because of such an affair, obviously, one can comprehend that this could be a reason for the delay in lodging the FIR. Whatever may be the case, the delay that has occurred in lodging the FIR can easily be explained away and would not be decisive of the matter much less to throw out the prosecution case”. In relation to the age of the victim, the court held that,” when there is direct evidence of the father about the date of birth of the victim in the absence of any material to discard his testimony, one can safely proceed simply on the basis of his such evidence. Also, there is a School Record and matriculation Passing Certificate which corroborates his direct evidence.” In relation to the evidence relating to the incident, the court held that,” even though because of such enticement, the victim had succumbed to the lust of the appellant, having found that she was a child who was incapable of giving valid consent, the appellant is not entitled to derive any benefit from her such stand even if it is held to be her lame attempt to pretend it to be forcible sex. Therefore merely because the victim has not sustained any external injury and her version regarding the incident has taken place when the appellant affected an entry into the house by unbolting backside door is not accepted, her version is sufficient to conclude that he had indulged into penetrative sexual assault.”