High Court
Legal Reasoning
8-sr.906.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1819 OF 2024INCRIMINAL APPEAL NO.420 OF 2024Sunil s/o. Indalsingh Dangar..ApplicantVs.The State of Maharashtra and anr...Respondents----Mr.N.S.Ghanekar, Advocate for applicantMrs.U.S.Bhosale, APP for respondent no.1Mr.N.S.Kadarale, Advocate for respondent no.2----ANDCRIMINAL APPLICATION NO.2592 OF 2024INCRIMINAL APPEAL NO.455 OF 2024Vitthal @ Dnyaneshwar Pandurang More..ApplicantVs.The State of Maharashtra..Respondent----Mr.S.J.Salunke, Advocate for applicantMrs.U.S.Bhosale, APP for respondent no.1Mr.N.S.Kadarale, Advocate for respondent no.2---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : AUGUST 14, 2024 ORDER :- These applications are filed praying for suspension ofsubstantive sentence of imprisonment imposed by learned SpecialJudge (POCSO Act), Aurangabad, in Special Case Child Protection
Legal Reasoning
28-sr.906No.209 of 2019, vide the judgment dated 23.04.2024. By thatjudgment, the applicants/appellants and one more accused havebeen convicted for the offences punishable under Sections 376(2)(n)and Section 506 of Indian Penal Code and Section 5(1) read withSection 6 of the Protection of Children from Sexual Offences, 2012.They have been sentenced to suffer imprisonment for life, whichmeans remainder of their natural life with fine of Rs.1,00,000/- each,in default, to undergo S.I. for three months for offence under Section6 of POCSO Act. They have been further sentenced to undergo R.I.for a term of one year with fine of Rs.1,000/- each, in default, toundergo S.I. for 15 days for offence under Section 506 of I.P.C. Noseparate sentence has been awarded for offence under Section376(2)(n) of IPC.2.Learned counsel for the applicants in both theapplications submit that if the evidence of the prosecutrix/victim(PW 1) is seen, there is vital inconsistency in her report and thesubsequent statements, which clearly show that she cannot bebelieved. They submit that though there is DNA report, same doesnot show that any of the applicants herein is the biological father ofthe fetus. They submit that the applicants were on bail during trial.They submit that the applications may be allowed. 38-sr.9063.Learned APP for respondent no.1 – State submits thatthough there are inconsistencies in the report (Exh.32) and thesubsequent statements of the victim, that cannot be a ground todiscard her testimony. She submit that one of the convicts is thebiological father of the fetus of the victim. She submit that the trialcourt has rightly convicted the applicants and therefore, theapplication may be rejected.4.Learned counsel for respondent no.2 – victim(prosecutrix) strongly opposes the applications. He submits that thevariance in the statements of the victim would not by itself besufficient to discard her testimony. He submits that the evidence ofthe maternal aunt of the victim shows that the victim had informedher about the acts of the applicants and the co-convicts. He submitsthat the victim was consistent in respect of the role attributed toaccused no.1. He submits that the victim was not an accomplice inthe crime and therefore, her testimony is required to be believed.He relies on the decision of the Apex Court in the case of State ofHimachal Pradesh Vs. Shree Kant Shekari, 2004 STPL 14077SC and invites our attention to paragraph 21 thereof, which readsthus:- 48-sr.90621.It is well settled that a prosecutrix complainingof having been a victim of the offence of rape is not anaccomplice after the crime. There is no rule of law thather testimony cannot be acted without corroboration inmaterial particulars. She stands at a higher pedestalthan an injured witness. In the latter case, there is injuryon the physical form, while in the former it is physical aswell as psychological and emotional. However, if thecourt on facts finds it difficult to accept the version ofthe prosecutrix on its face value, it may search forevidence, direct or circumstantial, which would lendassurance to her testimony. Assurance, short ofcorroboration as understood in the context of anaccomplice would suffice. He further relies on the decision of the Apex Court in the case ofState of Punjab Vs. Ramdev Singh, 2003 STPL 19136 SC andinvites our attention to paragraph 9 thereof, which reads thus :-9.Delay in lodging the FIR cannot be used as aritualistic formula for doubting the prosecution case anddiscarding the same solely on the ground of delay inlodging the first information report. Delay has the effectof putting the Court in its guard to search if anyexplanation has been offered for the delay, and ifoffered, whether it is satisfactory or not. If theprosecution fails to satisfactorily explain the delay andthere is possibility of embellishment in prosecutionversion on account of such delay, the same would befatal to the prosecution. However, if the delay isexplained to the satisfaction of the Court, same cannotby itself be a ground for disbelieving and discarding theentire prosecution version, as done by the High Court inthe present case. Learned counsel, ultimately, prays for rejection of the applications. 58-sr.9065.We have scrutinised the evidence of the victim and otherevidence on record. According to the victim, the applicants and theco-convicts committed rape on her when she was alone in hermaternal uncle’s home, when her maternal uncle and aunt were notpresent. Admittedly, in the report (Exh.32) lodged by the victim, shenamed only accused no.1 - Dnyaneshwar @ Vitthal (applicant) as theperson who committed rape on her. It is also not in dispute that saidreport was lodged after her pregnancy was realised. It is further notin dispute that in her statement under Section 164 of the Code ofCriminal Procedure, recorded after her report, she named accusedno.1. Thereafter, the investigating machinery filed charge-sheetagainst accused no.1. It is further not in dispute that subsequently,the DNA report was received, which showed that accused no.2 wasthe biological father of the fetus. Thereafter, supplementarystatement of the victim was recorded, in which she named accusednos.2 and 3 and one Gopal as the persons, who committed rape onher. Thereafter, her second statement under Section 164 of Cr.P.C.was recorded, in which she named only accused nos.2 and 3 andexcluded Gopal.6.The evidence of the Investigating Officer would show thatthe victim had named different accused persons at different stages.
Decision
68-sr.906We reproduce the relevant paragraph from the evidence of theInvestigating Officer, who was examined as PW 10, as under:-“5.I had filed charge-sheet against accused no.1.Thereafter, I had received DNA report. From the same itreveals to me accused no.1 is not biological father ofbaby of victim. So, I had again made enquiry fromvictim. I had recorded supplementary statement ofvictim. In it she has stated that accused no.2 and 3 andGopal Khokad by taking advantage of her simpletonnature and by threatening her had established physicalrelations with her during the said period on 2-3occasions. In view of the said statement, I made requestto the court again record statement of victim undersection 164 of Cr.P.C. Accordingly, again her statementunder section 164 Cr.P.C. had been recorded. In it, shehad stated names of accused no.2 and 3 only and notstated the name of Gopal Khokad……………………...” 7.It is further not in dispute that the victim in her cross-examination admitted that there was agricultural dispute betweenher maternal uncle and the parents of accused no.3 (applicant),before the incident in question.8.In view of the above evidence on record, it is clear thatthere is inconsistency in respect of person involved in the act, whichmakes the version of the victim shaky. Admittedly, none of theapplicants is shown as the biological father of the fetus as per the 78-sr.906DNA report. The applicants were on bail during trial, on the basis ofthe very material which is before us. In this view of the matter, weproceed to pass the following order:-(i)Both the applications are allowed.(ii)During pendency of the appeals, the substantivesentence of imprisonment imposed against the applicants/appellantsby learned Special Judge (POCSO Act), Aurangabad, in Special CaseChild Protection No.209 of 2019, vide the judgment and order dated23.04.2024, to stand suspended.(iii)The applicants/appellants be released on bail, onexecuting P.R. Bond in the sum of Rs.15,000/- (Rupees FifteenThousand) each with one surety each in the like amount.9.We quantify the fee of learned counsel appointed torepresent respondent no.2 at Rs.12,000/- (Rupees Twelve Thousand),to be paid by the High Court Legal Services Sub-Committee,Aurangabad.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP