High Court

Legal Reasoning

{1} CRI APPEAL 233 OF 2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 233 OF 2022.Ramdas s/o Deurao PawarAge: 50 years, Occ. : Labour,R/o. Tq. Telwadi, Paithan,District Aurangabad.….Appellant Versus1.The State of Maharashtra2.XYZ....Respondents…..Advocate for Appellant : Mr. Nilesh S.GhanekarAPP for Respondent no.1 : Mr.N.B.Patil Advocate for Respondent no.2 : Ms.Nayana D. Patil (appointed)….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 28 NOVEMBER, 2024 PRONOUNCED ON : 04 DECEMBER, 2024 JUDGMENT :- 1. In this appeal, there is challenge to the judgment and order ofconviction dated 07-03-2022 rendered by the learned Special Judge(POCSO), Aurangabad in Special Case (POCSO) No.181 of 2016holding present appellant guilty for offence under Sections 376(2)(f)of the Indian Penal Code (IPC) and under Sections 6 read with 5(m)of the Protection of Children from Sexual Offences Act (POCSO). {2} CRI APPEAL 233 OF 2022PROSECUTION CASE IN BRIEF2. In nutshell, case of prosecution is that victim lived with herPW1 mother and PW2 grandmother. PW1 mother of victim, who isilliterate, used to leave the house in the morning for labour work andreturn in the evening and as such during her absence, victim childaged 4 years was in the custody and care of grandmother. Theincident in question took place on 28-08-2016. At around 06:00p.m., appellant, who happens to be a distant relative of informantmother, visited her house. He sought permission of grandmotherPW2 to sit in the house and while she was busy in the kitchen, thechild was taken to one of the rooms of the house and after pullingdown his own pant, he removed the undergarments of the victim.PW2 grandmother, who fortunately went to see for the appellant,who had gone to other room, saw him inserting finger in the urinalorgan of the victim and therefore, she questioned him after which heallegedly fled. PW2 grandmother reported the incident to her daughter PW1,who returned in the evening. PW1 mother examined private parts ofvictim and claims to have noticed swelling. Next day, PW1approached Police Station and lodged report exh.21, on the strengthof which, crime bearing no.I-293 of 2016 came to be registered and {3} CRI APPEAL 233 OF 2022finally investigated by PW6 Kedar (PSI) and accused came tochargesheeted for offence under Sections 376(2)(f) of the IPC andunder Sections 3, 4, 7 and 8 of the Protection of the Children fromSexual Offences Act (POCSO).Charge was framed on 19-09-2018 for the offence punishableunder Sections 376(2)(f) of the IPC and under Sections 5(m)(n)punishable under Section 6 of the POCSO Act. At trial, learned Special Judge (POCSO), Aurangabad videSpecial Case (POCSO) No.181 of 2016 appreciated oraland documentary evidence and vide judgment and order dated07-03-2022, held charges for offence under Section 376(2)(f) of theIPC and under Sections 6 read with 5(m) of the POCSO Act, provedand sentenced accused to suffer rigorous imprisonment for ten yearsand twenty years respectively and to pay fine. Aggrieved by the above judgment and order of conviction,instant appeal has been preferred. SUBMISSIONSOn behalf of appellant :3. Learned Counsel for the appellant submitted that infactoffence for which appellant was chargesheeted was not made out. It {4} CRI APPEAL 233 OF 2022is his submission that though he does not dispute age of victim, hequestions the judgment as according to him, offence under Sections5(m) and 6 of the POCSO Act does not get attracted, rather at themost, offence under Sections 9 and 10 of the POCSO Act getsattracted. In support of such contentions, he took this Court throughthe evidence of PW1 mother and PW2 grandmoher of victim as wellas evidence of PW4 Dr.Nagawade and notings of medical expert i.e.more particularly, paragraph 4 of cross-examination. He tried toargue that PW1 mother reported insertion of finger in anus butprosecution’s own witness PW2 grandmother speaks about vaginalpenetration and as such according to him, prosecution evidence isinconsistent. Lastly, it is his submission that there is improvisation aswell as exaggeration and as such according to him, the FIR, which islodged after delay of one day and that too by PW1 mother of thevictim, who has mere hearsay information, ought not to have beenstraightway accepted by the learned trial Judge and hence, he seeksindulgence at the hands of this Court in overturning the findings ofthe trial Court.On behalf of State :4. In answer to above submissions, learned APP pointed out that {5} CRI APPEAL 233 OF 2022there is no dispute about the age and there is no challenge to age ofvictim. He pointed out that victim was barely 4 years of age. Thatincident has taken place in the house and it has been eye witnessedby PW2 grandmother of victim. That her evidence is also on record.That the same is remained intact and undisturbed. That medicalexpert also supports prosecution case and as such according to him,the impugned judgment is infallible. On behalf of Victim : 5.Learned Counsel appointed to represent the victim alsostrongly objected to the above submissions. According to her, victimwas proved to be 4 years of age and as such, she was below 12 yearsof age. Even according to her, there is eye witness account supportedby medical evidence. According to her, in cases of such nature, delayif any, is insignificant. That grave offence has been committed onchild, who had no male relative in the house and preciselydisadvantage of the same has been taken by the appellant, who isnone other than a relative. According to her, here though learnedtrial Court convicted appellant for offence under Sections 6 read with5(m) of the POCSO Act, according to her, in view of fact that accusedbeing relative of victim’s mother, even clause (n) of Section 5 of the {6} CRI APPEAL 233 OF 2022POCSO Act gets attracted. At the end, she supports findings andreasons assigned by learned trial Court in convicting appellant. EVIDENCE IN TRIAL COURT6.In support of its case, prosecution has adduced evidence of inall six witnesses. Evidence of PW1 mother of victim, PW2 grandmother ofvictim, PW3 Dr.Titare and PW4 Dr.Nagawade, who examined victim,is of importance and sum and substance of their evidence is asunder : 7.PW1 Informant and mother of victim deposed as under :“2]This incident took place in the year 2016. I am an illiterate.So I cannot tell date and month of the incident. I do not remember it.I go to my work in the morning at about 09.00 a.m. and return atabout 07.00 p.m. Accordingly, on the day of incident I returned frommy work in the evening at about 07.00 pm. When I returned to homeat that time my mother was at home and told me that Ramdas Pawarhad been to the house at about 06.00 p.m. Ramdas Pawar is mydistant maternal uncle. He is present before the court, I identify him.[witness pointed finger towards the accused and identified him].After arrivals of Ramdas Pawar he sat in the house. After some time,my mother told him that she is going to kitchen and asked him to go.He told my mother that he was going. My mother went inside thekitchen. Then instead of going out Ramdas Pawar went to ourbackside room. My mother suspected. So she came in front roomfrom kitchen. Then she went to back side as no one was seen in the {7} CRI APPEAL 233 OF 2022front room. In backside room Ramdas Pawar was with my daughter.My mother saw Ramdas Pawar took victim on his thighs, his pantchain was found open and he had given his penis in the hand ofvictim and put his finger in her anus. After seeing it, my motherinquired Ramdas by saying “vkjs js jkenkl gs dk; djrksl” Then hearing itRamdas ran away. It was told to me by my mother. Then mydaughter came to me. I took her on my thighs. She told me thatthere are pains to her urinal organ. Then I inquired her how it is.Then she told Ramdas Mama had been there, threatened her and didthis acts and she stated, as stated by my mother. On the next day Ihad been to police station to lodge complaint. Complaint now shownto me. It is the same. Its contents were read over to me. Thereafter,it being true and correct, I put my thumb mark on it. I identify it. Itis at Exh.21.3]It was late for me and there were pains to my daughter, so onthat day I had not been to police station to lodge complaint. Then Iwas sent to Ghati Hospital alongwith my daughter. In Ghati Hospitallady medical officer inquired with me. I had given consent formedical examination of my daughter. Surviver consent from nowreferred to the witness. It bears mark my thumb impression. It alsobears the signature of medical officer. I identify it. It is at Exh.22.While reporting complaint, I had stated that he inserted finger in theanus of my daughter, but after medical examination, it was revealedthat he inserted finger in the urinal organ of my daughter, so I statedabout it in my supplementary statement. Police had been to ourhouse. Place of incident was shown to them. My statement wasrecorded in the court. Statement now shown to me is the same. Itbears my thumb impression. Its contents are true and correct. It is atExh.23.”8.PW2 grandmother of victim and mother of informant deposed {8} CRI APPEAL 233 OF 2022as under :“1] Complainant is my daughter. She was married with XYZ. Shewas given in Deoulgaon Raja, Dist.Buldana in marriage. She begot adaughter. Her husband was addicted to liquor so there were quarrelsin between my daughter and her husband, so I brought her to me. Ibrought her to me in the year 2016. Since then she is staying withme. She is also doing labour work. 2] She goes for work in the morning at 09.00 a.m. and returns at07.00 p.m. This incident took place in the year 2016. I cannotrecollect the exact date of incident. As usual in the morning at 09.00a.m. mother of victim went to her work. I and her victim daughterwere at home. In the evening at about 06.00 p.m. Ramdas Pawarcame. Ramdas Pawar is our distant relative. He is present before theCourt. I identify him. [Witness pointed fingers towards accused andidentified him]. He stated me let him sit for some time there. I toldhim I have no time and I have to cook food. So I told him that I donot have time. Then I asked him to go. Then he went and I wentinside kitchen. But I do not know when he again entered in thehouse. I was in kitchen. victim told me that she wanted to sleep. Atthat time victim was aged about 4 years. Victim came to me and Itold her to sleep on the cot. That cot was in the another room. Isuspected whether accused went out or not. I went in the hall. Hewas not there. Then I went to another room adjoining to hall. He wasthere. I saw that nicker of victim was removed. I had seen that heopened his pant chain and had given his penis in the hand of victim.Middle finger of his right hand was inserted in the urinal organ ofvictim. I was frightened. On seeing it I reacted “vkjs js gs dk; djrksl”.Then he left the child and ran away. Then my daughter complainantcame at about 07.00 p.m. Then I narrated entire incident to mydaughter. There was no male member in our family. During wholenight we were crying. On the next day we had been to police station {9} CRI APPEAL 233 OF 2022and my daughter lodged the complaint. Police recorded mycomplaint. 9.PW3 Dr.Prashant Uddhavrao Titare is the Medical Officer. Hedeposed as under :“On 2nd Nov.2016 three X-rays of victim were taken. I opined that ageof child is between 3 to 5 years. Accordingly, I assessed her age onthe basis of radiological bone assessment process. Accordingly, Iissued age certificate. It now shown to me is the same. It bearssignature. Its contents are true and correct. My opinion therein isbased on scientific test. It is at Exh.30.”10.PW4 Dr.Ashwini Keshrao Nagawade is another Medical Officer,who examined victim and recorded history of victim. She deposed asunder :“I was Assistant Professor in Govt. Medical College HospitalAurangabad on 30.08.20167. On that day victim girl was brought tome by police personnel and her relative alongwith requisition letter ofpolice. Then I recorded history of sexual assault narrated by therelative of the victim girl. She stated that accused did sexual assaultby fingering on dated 28th August 2016. Then I examined her. Onlocal examination of perineal region, I found abrasions and rednessover fourchette and valva. Hymen was intact. My opinion is forcefulvaginal penetration and vaginal and vulval mutilation cannot be ruledout. Final opinion is reserved till report of FSL are made available.Accordingly, I issued Annexure-III. It now shown to me is the same. Itbears my signature. Its contents are true and correct. It is at Exh.34.PW5 Mahesh Ramrao Maid is pancha to spot panchanama Exh.38. {10} CRI APPEAL 233 OF 2022PW6 Sitaram Bhagwanta Kedar (PSI) is the Investigating Officer, whocarried out investigation and on gathering sufficient evidence,chargesheeted accused. ANALYSIS 11. Before adverting to the analysis of the evidence, it would befruitful to reproduce certain phrases i.e. Sections 3, 5(m), (n) and 7,which are crucial and are highlighted and incorporated in the SpecialStatute i.e. POCSO Act. Sections 3, 5(m), (n) and 7 read as under : “3. Penetrative sexual assault. - A person is said to commit"penetrative sexual assault" if--(a) he penetrates his penis, to any extent, into the vagina, mouth,urethra or anus of a child or makes the child to do so with him or anyother person; or(b) he inserts, to any extent, any object or a part of the body, notbeing the penis, into the vagina, the urethra or anus of the child ormakes the child to do so with him or any other person; or(c) he manipulates any part of the body of the child so as to causepenetration into the vagina, urethra, anus or any part of body of thechild or makes the child to do so with him or any other person; or(d) he applies his mouth to the penis, vagina, anus, urethra of thechild or makes the child to do so to such person or any other person.”“ 5. Aggravated penetrative sexual assault.-(m) whoever commits penetrative sexual assault on a child belowtwelve years; or(n) whoever being a relative of the child through blood or adoption or {11} CRI APPEAL 233 OF 2022marriage or guardianship or in foster care or having a domesticrelationship with a parent of the child or who is living in the same orshared household with the child, commits penetrative sexual assaulton such child;”“7. Sexual assault. - Whoever, with sexual intent touches the vagina,penis, anus or breast of the child or makes the child touch the vagina,penis, anus or breast of such person or any other person, or does anyother act with sexual intent which involves physical contact withoutpenetration is said to commit sexual assault.”12.Here admittedly, during hearing or even in the trial Court, noissues are raised about victim to be below 12 years of age. Herethough PW1 informant mother has set law into motion, there is nodenial that while she was out for work, incident had taken place inthe house. However, in the house, the child was in the care andcustody of grandmother PW2 and as such, it would be appropriate tofirst deal with evidence of PW2. PW2 grandmother of victim is examined at exh.24. Hersubstantive evidence of is already reproduced above. On scrutiny ofthe same, it is emerging that on the day of incident PW1 mother ofvictim, left for work as usual at 09:00 a.m. and only this witnessand victim, daughter of PW1, were at home. At around 06:00 p.m.appellant, who is said to be a distant relative, allegedly came andsought permission to sit in the house for some time. PW2 specifically {12} CRI APPEAL 233 OF 2022stated that she had no time and she had to cook meals. Thereafter,she asked him to go, he went away and she proceeded towards thekitchen. She further deposed that she does not know when appellantcame again and entered in the room while she was in kitchen.Witness claims that she suspected whether accused went out or notand therefore, she first went to the hall, but accused was not there.Then she deposed that she went in another room adjoining to hall.That accused was there. She deposed that “I saw that nicker of victimwas removed. I had seen that he opened his pant chain and had given his penisin the hand of victim. Middle finger of his right hand was inserted in the urinalorgan of victim.” Therefore, out of fright, she questioned him and thenhe left the house and went away. She claims that when her daughterPW1 came in the evening, she narrated the incident to her. Shefurther stated that there was no male member in their family. Duringentire night, they were crying and on the next day, they went toPolice Station, where her daughter PW1 lodged complaint. Above witness is subjected to cross-examination initially aboutmarriage of daughter PW1 and that it was second marriage andvictim was begotten from the same. Omissions are brought to the extent that husband of herdaughter was quarreling with her, about accused to be distant {13} CRI APPEAL 233 OF 2022relative, about asking her granddaughter to sleep on the cot, seeingaccused inserting middle finger of his right hand in private part ofvictim. But learned trial Court has noted that only omission is to theextent of right hand and middle finger. The manner of cross-examination in paragraph 5 shows thatthere is no serious challenge to the occurrence, rather it is apparentlyadmitted. 13.Now, let us visit evidence of informant PW1 i.e. mother ofvictim, whose evidence is at exh.20. She has deposed that she isilliterate. That she is unable to give date, month of the incident.That she used to go for work in the morning at 09:00 a.m. and returnby 07:00 p.m. According to her, on that day, she returned from thework in the evening at 07:00 p.m. When she returned, that time hermother PW2 was at home and she told her that appellant had cometo house at around 06:00 p.m. Witness stated that appellant is herdistant maternal uncle and she identified him in the Court. Shefurther stated that after arrival, appellant sat in the house and aftersome time, when her mother PW2 told him that she is going in thekitchen and asked him to leave, he told her mother PW2 that he was {14} CRI APPEAL 233 OF 2022going. She further deposed that when her mother PW2 went insidethe kitchen, instead of going out, appellant went towards backsideroom. That her mother suspected, so she came in front room fromkitchen and from there, she went to backside room as no one was inthe front room. Witness stated that her mother told that in thebackside room, appellant was with her victim daughter and hermother PW2 saw appellant took victim on his thighs, his pant chainwas found to be opened and he had given his penis in the hands ofvictim and put his finger in her anus and therefore, she questionedhim and after which he ran away. Witness further stated that hervictim daughter came to her. That she took her on her own thighs.That her daughter told that there was pain to her urinal organ. Thenthis witness claims to have enquired how it is, after which, victimallegedly told her that appellant had been there, threatened her anddid this act and victim stated it to mother of this witness. That onnext day, she had been to Police Station and lodged report.She further deposed about visiting hospital, giving consent. Inparagraph 3 of examination-in-chief itself, she stated that whilereporting complaint, she had stated that appellant inserted finger inanus of her daughter, but after medical examination, it was revealedthat appellant inserted finger in the urinal organ of her daughter and {15} CRI APPEAL 233 OF 2022so she stated about it to that extent in her supplementary statement. In cross-examination, she admitted that she personally did notsee the incident. She admitted that while giving complaint, she didnot state that appellant threatened her daughter. She also answeredthat her mother did not tell her that daughter told her that shewanted to sleep and therefore, contents in her statement exh.23 areincorrect. She denied accused to be close relative or they to be incross terms on account of cohabitation with her husband. She alsodenied any dispute. She admitted that accused has son, daughterand grandchildren. She further answered that her daughter was 4years of age at the time of incident and as such was not in conditionto talk properly. She admitted that on that day when she returnedand saw her daughter, she did not take her daughter to hospital. 14.Another crucial witness in instant case is PW4 Dr.Nagawade,who had occasion to examine victim. She has stated that on localexamination of perineal region, she found abrasions and redness overfourchette and valva. She stated that hymen was intact. She opinedthat forceful vaginal penetration and vaginal and vulval mutilationcannot be ruled out. In cross-examination though she admitted that on account of {16} CRI APPEAL 233 OF 2022urinal infection there could be redness to vagina and on account offingering in vagina, there may be bleeding or may not be, but sheadmitted that in this case there was no bleeding but there wasabrasion and swelling. CONCLUSION15.Therefore, on meticulous and careful analysis of evidence ofPW2 grandmother followed by PW1 mother, here it is clearly comingon record that on the date of incident, victim, aged 4 years, was inthe house with her grandmother PW2. PW1 mother of victim wasout for work. Accused, who is in relation, came to the house and didthe above acts. The impact of the above sexual assault by mode offingering, has left marks of abrasions and swelling. PW1 mother ofvictim, is illiterate and may not have examined urinal part of victimand may have merely examined anal part. PW4 Dr.Nagawade,medical expert, who is the right person to opine, has on examination,issued above opinion and has also noted the manner and nature ofinjuries, which have remained intact.16.Before this Court, learned Counsel for the appellant tried tosubmit that offence under Sections 5 and 6 of the POCSO Act wouldnot be attracted, but at the most offence under Sections 9 and 10 of {17} CRI APPEAL 233 OF 2022the POCSO Act would be attracted. This Court does not find any force in the above submission.There is overwhelming evidence that accused indulged in penetrativesexual assault. The act falls within the teeth of above reproducedprovisions of the POCSO Act. Considering the age of the victim,learned trial Court has rightly applied clause (m) of Section 5 of thePOCSO Act and as such there does not seem to be any error orinfirmity in the findings of the trial Court so as to interfere in theimpugned judgment and order in any manner. No case being madeout, appeal deserves to be dismissed. Accordingly, I proceed to passfollowing order : ORDER(I) Criminal Appeal No.233 of 2022 standsdismissed. (II)Fees of the learned Advocate appointed torepresent respondent no.2 is to be paid throughthe High Court Legal Services Sub-Committee,Aurangabad, as per Rules. ( ABHAY S. WAGHWASE ) JUDGE SPT