High Court
Legal Reasoning
CriAppeal-430-2023-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 430 OF 2023Vijay s/o Shankar Poul,Age 21 years, Occ. Labour,R/o Phule Nagar, Kaij,Tal. Kaij, Dist. Beed.… Appellant [Original accused]Versus1.The State of MaharashtraThrough Police Sub-Inspector,Police Station, Kaij,Taluka Kaij, District Beed.2.XYZ… Respondents…..Mr. S. B. Solanke, Advocate for the Appellant.Mr. N. D. Batule, APP for Respondent No.1-State.Ms. Nima R. Suryawanshi, Advocate for Respondent No.2 [appointedthrough Legal Aid]..... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 23.01.2024Pronounced on: 31.01.2024JUDGMENT : 1.Appellant is assailing the conviction recorded by Special Judge,Ambajogai in Special (Child) Case No. 50 of 2022 dated 19.04.2023,recording guilt for offence punishable under Sections 376(2)(n), 354-B, 363 of the Indian Penal Code [IPC] and Sections 4(2), 6 and 8 ofthe Protection of Children from Sexual Offences Act, 2012 [POCSOAct]. CriAppeal-430-2023-2- 2.In brief, case launched by prosecution was that on 06.04.2022around 9.00 p.m., victim, who was playing outside the house, wentmissing and was therefore searched for but was not found. Girl wastraced on the next day at 1.30 a.m. but she was in terrified conditionand so she was made to sleep. In the morning about 9.00 a.m., oninquiry, victim told that while she was playing, accused Vijay calledher. One friend was also accompanying him. They forcibly carriedher, removed her clothes, pressed her mouth and accused Vijaypressed her breast. He moved his hand on her private part. Friendalso pressed her breast and when she tried to raise shouts, her mouthwas pressed.On such information, police was approached by mother and onher report, crime was registered bearing no. 112 of 2022 forcommission of offence punishable under Sections 354, 354-A, 354-B,354-D r/w 34 of IPC. During investigation, I.O. came to know aboutaccused forcibly committing sexual intercourse twice with the minorvictim. After completion of investigation, I.O. filed chargesheetagainst accused for offence under Sections 376(2)(n), 354-A, 354-B,354-D of IPC and Sections 4(2), 6, 7, 8 and 12 of the POCSO Act. CriAppeal-430-2023-3- Appellant was tried by learned Additional Sessions Judge, who,on appreciation of oral and documentary evidence, accepted the caseof prosecution as proved and handed down conviction for sentence asspelt out in the operative part and the same judgment is now assailedbefore this court on various grounds raised in the appeal memo.SUBMISSIONS3.Advancing case of false implication, learned counsel for theappellant would submit that there is inordinate delay in lodging FIR.Alleged occurrence is of 06.04.2022 and report is of 08.04.2022.Report by mother is on hearsay information. Learned counselsubmitted that there were no allegations of rape as regards firstepisode is concerned. He pointed out that here, doctor who examinedvictim has not been made a witness and therefore, it is his submissionthat, medical evidence is lacking. He further pointed out that evenforensic evidence does not support prosecution. He invited attentionof this court to the written opinion issued by medical expert at Exhibit39. He further pointed out that in view of testimony of PW5, therewas no fresh injury, rather there was old hymeneal tear. He furthersubmitted that learned trial court has not properly appreciated theevidence adduced by prosecution and mere evidence is reproduced CriAppeal-430-2023-4- but there is no proper analysis and findings are not supported bysound reasons. Case of defence has been totally overlooked. Evencitations relied by defence are not taken into account. Resultantly, itis his submission that, when there was sufficiently long delay inlodging complaint and when testimony of victim, her mother,contents of FIR and statements under Section 164 of the Code ofCriminal Procedure [Cr.P.C.] are totally inconsistent, guilt ought notto have been recorded. However, that not having been done, he praysfor re-appreciation of evidence and to allow the appeal.Learned counsel for the appellant has placed reliance on thefollowing rulings:1.The State of Maharashtra v. XYZ MANU/MH/0053/2022; 2022 AllMR (Cri) 708.2.Ram Swaroop and others v. State of Rajasthan MANU/SC0224/2004 ; (2004) 13 SCC 134.3.Suraj Mal v. State (Delhi Administration) MANU/SC/0268/1979 ; (1979) 4 SCC 725.4.Narra Peddi Raju v. State of A.P. MANU/SCOR/37992/2019.5.Dilip and others v. State of M.P. MANU/SC/0678/2001 ;(2001) 9 SCC 452. CriAppeal-430-2023-5- 6.State of U.P. v. Mangal Singh and Others MANU/SC/0681/2009 ; (2009) 12 SCC 306.4.In answer to above submissions, learned APP submitted thatapparently, victim is 12 years of age. School authorities have beenexamined. Medical evidence is about rupture to the private part. Hesubmitted that there is no reason for false implication. Further,according to him, victim has reported late and therefore complaintwas not lodged immediately. Further according to him, in factinformant and accused are relatives. Accused has committed graveoffence. There is clinching evidence of both, victim and her mother, aswell as medical evidence. Therefore, according to him, no fault can befound in the manner of appreciation or the conclusion drawn by thelearned trial Judge. 5.Learned counsel for the victim also, in support of the judgmentof conviction, pointed out that victim is minor. Medical evidence issupporting prosecution. That, accused is not only named but he is alsoidentified in the court. Independent witnesses like panchas, medicalexperts have withstood cross and their evidence has remained intact.According to her, as offence is clearly made out, conviction has rightlybeen recorded and so she prays to dismiss the appeal. CriAppeal-430-2023-6- EVIDENCE ON BEHALF OF PROSECUTION6.PW1 Bhim Shinde is pancha to spot panchanamas Exhibits 18and 19 as well as seizure of clothes of victim on 25.04.2022.7.PW2 victim aged 12 years deposed that incident took place twomonths back and two times. Regarding first incident, she deposedthat at that time she was playing in front of the house. At that time,accused came and asked her to bring Rajnivas supari and then caughthold of her hand and carried her towards bandhara. According to her,she tried to shout but he pressed her mouth, then removed her clothesand his own clothes, slept over her, entered his urinal part in herurinal part and he inserted penis. She again stated that she tried toshout but he pressed her mouth. According to her, she sufferedabdominal problem, there was bleeding from her private part and shetried to get up but again he committed sexual intercourse with her.She further deposed that accused took her towards her house and heleft her near a tin shed and then she was taken home by one Atul.According to her, incident had happened at night time about 1.30a.m. CriAppeal-430-2023-7- In para 2 she deposed that her parents came to the spot to lookfor her and at that time friend of accused told him that her parentshad come and to leave her. Then she deposed that prior to it, she wastaken towards a tamarind tree. Then she deposed that very firstly shewas called towards bandhara and second time she was carried underthe tamarind tree. Under the tree, he removed her clothes and hisown clothes, slept on her and inserted his penis in her vagina. Hethreatened to kill her and throw her body in the well water andtherefore she did not tell the incident to anybody due to fear. After 15days, she narrated the incident to her parents. She claims that shewent to police station, to the doctor and her statement to be recordedbefore the court twice under Section 164 of Cr.P.C.Victim is subjected to extensive cross and in para 4, omissionsare brought regarding “he slept on me, he inserted his private partinto my private part, then friend of accused reached on the spot, henarrated accused that her parents are coming to the spot and youleave her, then he carried me towards tamarind tree and also slept onme and he inserted his urinal part into my urinal part”. In further cross she answered that she had narrated it to policebut the same is not appearing in her first statement recorded beforethe Court under Section 164 Cr.P.C., rather it is appearing in her CriAppeal-430-2023-8- supplementary statement. Then she answered that there is ten feetcement road in front of her house and there are houses to both side.She admitted that there are three lanes and that said tamarind tree isin front of her uncle’s house and there to be electric poles havinglights. She further admitted in para 5 that while going towardsmondha, there are houses on both sides of the lane. She admitted thatit takes 20 to 25 minutes to walk from her house to the bandhara andon the way there are houses on both sides and even houses nearbandhara. She answered that when first time accused came towardsher house, at that time her friends were present. Omission is broughtin her statement to police regarding she playing with her friends andat that time accused carrying her from the front side of school, shepurchasing Rajnivas sugandhi supari from the shop of one Suman.Rest is all denial.8.It seems that statement of victim was recorded first time on19.04.2022 and second time on 02.05.2022. In Exhibit 26, she hasnarrated as under:“That day when I came back home from school, I wasplaying with Chiu and Piu. Vijya came at night time andasked me to bring Rajvilas pouch. I refused but he insisted. CriAppeal-430-2023-9- Then I brought the pouch from shop and gave it to him. Hedragged me. He was accompanied with his Muslim friend.They took me from near the school. Up to school, Vijaydragged me and from there his friend dragged me up toBandhara. They made me sit there. I got up but was pusheddown. Vijay removed my pant. His friend removed shirt.Vijay moved his hand over my urinal part. His friendpressed my chest. When I shouted, my mouth was pressed.”Whereas in her second statement recorded under Section 164of Cr.P.C. on 02.05.2022, her narration is as under:“Last month when I was playing with my neighbours Chiuand Piu, at that time Vijya alias Vijay Poul came there. Heasked me to bring supari from shop. I brought supari fromthe shop and gave it to him. He asked me to come towardsmodha. I refused. His friend came near water tank. Thattime electricity was discontinued. Vijya pressed my mouth.That time I shouted and they both dragged me towardsBandhara. At that time a woman had come there to dropthe thrash. She asked as to who was there. That time bothof them hide me in the field. After that woman left, theyboth removed my clothes and made me lie down. Friend ofVijya caught my hands. Vijya removed his underwear. Heinserted his urinal part in my urinal part and he alsoinserted his finger in my urinal part. His friend pressed mychest. Then Vijya committed same act beneath the aakda. I CriAppeal-430-2023-10- did not tell about the incident to my mother due to fear.Vijay threatened to beat me and kill me if I tell the incidentto anyone. After the first incident, son of my aunt took meto my home, gave me water to drink and made me sleep.Vijya was called at my house and my parents inquired himabout the incident. Thereafter my parents approachedpolice station and reported the incident to police. Then Iwas medically examined. Vijya and his friend forcedthemselves on me. I have nothing more to say.”9.If we sift the evidence of mother PW3, we find her giving age ofher daughter as 12 years, to be born in 2009. Her testimony is thatincident took place in the month of April 2022 at around 9.00 p.m.near the water tank. She claims that she was cooking in the houseand when she went out to call her daughter for dinner, she was notavailable and therefore she was searched for till 1.30 a.m. Around1.30 a.m., accused Vijay brought her daughter home but according toher, her daughter was in frightened condition. Then wife of brother ofher husband, i.e. her sister-in-law, gave water to her daughter and shewas made to sleep. She further stated that on the next morningparents of accused were called and incident was narrated to them.Then again on 3rd day, accused came in front of her house and he wasmaking gestures to her daughter. She further deposed that next day,prior to calling parents of accused, she had made inquiries with her CriAppeal-430-2023-11- daughter and she narrated about being taken towards water tank,clothes being removed, accused removing his clothes and he insertinghis penis in the vagina of her daughter and therefore they approachedpolice. In examination-in-chief itself she stated that after 15 days oflodging complaint, her daughter narrated her the incident which hadtaken place 15 days back i.e. beneath the tamarind tree where herdaughter’s clothes were removed and accused had inserted his urinalpart in her daughter’s urinal part and therefore she narrated theoccurrence to Koli madam [I.O.] and her daughter was referred tohospital as well as court. While under cross, she admitted about not stating before policeregarding her daughter informing that accused inserted his urinal partinto her urinal part. She admitted that at the time of recordingstatement under Section 164 Cr.P.C. for the first time, she did notstate that daughter narrated to her about accused inserting his urinalpart into her urinal part. Then she is questioned about location andsurroundings of the house. There are suggestions about one Mhaskebeing defeated in election against Bansode bai. She admitted thatBansode bai came to their house and thereafter they approachedpolice and told about what her daughter had informed. Rest is alldenial. CriAppeal-430-2023-12- 10.Apparently, from above discussion and record, it is emergingthat FIR is lodged by mother on 08.04.2022. On close scrutiny oftestimony of victim, though she has spoken about two instancestaking place, first one near the water tank and second one near thetamarind tree, exactly on which day those incidents took place hasnot been established by prosecution. Evidence of informant motherclearly shows that on night around 9.00 p.m., her daughter was notfound up to 1.30 a.m. and it is accused who had brought victimhome. Victim admittedly did not inform her anything that night.Mother’s evidence shows that next day her daughter narrated aboutshe being carried towards the water tank. Second episode whichallegedly took place beneath the tamarind tree is admittedly,according to the complainant, informed to her by her own daughterafter 15 days of lodgement of complaint dated 08.04.2022. Victim inher initial part of evidence in the witness box spoke about abdominalpain and bleeding to her private part, however, mother does notspeak about it and even medical expert has not noticed any bleedingor signs of tenderness when victim was examined on 24.04.2022.Therefore, from the available evidence and evidence of victim,apparently there is delay in lodging FIR. Specific dates when allegedincident took place has not come on record. Two episodes are CriAppeal-430-2023-13- reported but regarding second episode, there seems to be asupplementary statement which is apparently recorded 13 days afterthe first statement.11.If we visit the medical evidence, PW5 Dr. Aishwarya Shinde hascategorically stated about examining victim on 24.04.2022 i.e. almostafter more than two weeks of lodgement of FIR dated 08.04.2022.Doctor gave findings to be normal and no fresh external injuriesfound but claims to have noticed old hymen rupture. Resultantly,evidence of doctor shows that only on the basis of history, shedeposed about it to be true and correct. In examination-in-chief itselfthis doctor has admitted that if hymen is ruptured 12 days back, thenalso it can be said to be old tear. Be it so. 12.Firstly, exact date of occurrence has not been proved. It isalleged that there are two episodes of alleged sexual assault but thereis no prompt examination in spite of FIR being lodged on 08.04.2022.Medical expert has candidly answered in cross that she personally didnot examine the hymeneal tear and that she did not find any reportabout sexual intercourse with minor. She admitted that if there issexual assault on minor below 12 years of age, there may betenderness and inflammation and that hymeneal tear can occur forvarious reasons like riding cycle, playing, falling etc. CriAppeal-430-2023-14- Therefore, the testimony of doctor and the report is also aboutold hymen tear. There is no conclusive opinion about victim beingforcibly raped or penetrative sexual assault being made on her. Thereare material omissions in the evidence of victim as well as her mother,which have come while they were under cross.13.The Investigating officer PW6 PSI Seemali Koli, while undercross, also admitted that in the first statement, victim had notnarrated about insertion of private part by accused in her private partafter making her fall. Even in statement under Section 164 Cr.P.C., victim did notinform court about penetrative sexual assault while it was recordedfor the first time i.e. on 19.04.2022. 14.Therefore, on sifting the evidence of victim, which is crucial,tough child is of 12 years of age, apart form several ambiguities, thereare material omissions and inconsistent versions in substantiveevidence as well as statements under Section 164 Cr.P.C.. Hence, it isunsafe to place complete reliance on her evidence alone. Mother haslodged report on 08.04.2022 i.e. after almost two days of herdaughter going missing for some time and in spite of claiming to have CriAppeal-430-2023-15- learnt from the victim on the very next day morning. Surprisingly,medical examination is got done after almost more than two weeksand medical evidence also is not completely supporting testimony ofvictim.Therefore, apart from testimony of victim which is failing toinspire confidence, there is no corroborative piece of evidence.Resultantly, such quality of sole testimony cannot be applied forproving serious charges.15.It is trite law that graver the offence, stricter is the proofexpected to be brought by prosecution. It is cardinal principle thatprosecution has to prove the case beyond reasonable doubt. Thoughlaw is settled that sole testimony of victim is sufficient to record guilt,but the rider is that her such testimony should, at the first place,inspire confidence. Here, it is not so for the reasons stated above.16.I have gone through the impugned judgment. Learned trialcourt has not appreciated the evidence in correct spirit and asrequired by law. Straightway testimony of victim and her mother isaccepted as truthful version. The material omissions and answersgiven in cross are totally lost sight of. Medical evidence is also not
Decision
CriAppeal-430-2023-16- taken into account. Merely finding the victim to be minor, hertestimony has been straightway accepted without assigning properreasons for its acceptance. Therefore, findings are bereft of evidenceand not in consonance with the same. Such findings cannot beallowed to be sustained, necessitating interference at the hands of thiscourt. Hence, I proceed to pass the following order:ORDERI. The appeal is allowed.II.The conviction awarded to the appellant Vijay s/o Shankar Poulby learned Special Judge, Ambajogai in Special (Child) Case No. 50 of2022 on 19.04.2023 under Sections 376(2)(n), 354-B, 363 of IPC andSections 4(2), 6 and 8 of POCSO Act stands quashed and set aside. III.Appellant stands acquitted of the offence punishable underSections 376(2)(n), 354-B, 363 of IPC and Sections 4(2), 6 and 8 ofPOCSO Act.IV.The appellant be set at liberty, if not required in any other case.V.Fine amount deposited, if any, be refunded to the appellantafter the statutory period. CriAppeal-430-2023-17- VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal.VII.The High Court Legal Services Sub-Committee, Aurangabad topay the fees to the learned counsel appointed to represent the causeof respondent no.2 as per the schedule. [ABHAY S. WAGHWASE, J.]vre