High Court
Facts
APEAL-666-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 666 OF 2024Harishchandra Yamaji GhodeAge: 50 years, Occu.: Agri.,R/o Ghoti, Tq. Akole,Dist. Ahmednagar..APPELLANTVERSUS1. State of Maharashtra Through Rajur Police Station, Tq. Akole, Dist. Ahmednagar2. XYZ..RESPONDENTS....Mr. P.B. Jadhav, Advocate for appellant (appointed through Legal Aid)Mr. S.D. Ghayal, Addl.P.P. for respondent no.1 – StateMr. P.M. Kulkarni, Advocate for residence no.2 (appointed by Court)....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 25th FEBRUARY, 2025PRONOUNCED ON : 01st APRIL, 2025JUDGMENT ( PER : R.G. AVACHAT,J. ) :1.The challenge in this appeal is to the judgment and order ofconviction and consequential sentence dated 21st February, 2017 passed bythe Court of Additional Sessions Judge, Sangamner (‘trial Court’) in SessionsCase No. 68 of 2015. Vide the impugned judgment and order, the appellantwas convicted and consequently sentenced as under :-“1.The accused Harishchandra Yamaji Ghode is herebyconvicted u/s. 235(2) of Criminal Procedure Code for the offenceu/s.5 of Protection of Children from Sexual Offences Act, 2012punishable u/s.6 of the Act and sentenced to suffer rigorousimprisonment for life and to pay a fine of Rs.2000/- (Rupees Two1 / 11 APEAL-666-24.odtThousand only). In default to undergo rigorous imprisonment forthree months.In view of the above sentence, no separate sentence isawarded for the offence u/s. 376 of Indian Penal Code and Sec.4of POCSO Act, though he is convicted for the same.”2.The facts in brief, giving rise to the present appeal, are asfollows:-PW 1 – ‘A’ (victim) was said to be little over fifteen years of age atthe relevant time. PW 2 – ‘B’ is the mother of the victim. She had beenpreviously married. PW 1 – ‘A’ was born of the said wedlock. There was,however separation between the couple. She thereafter started residing withthe appellant as his wife. This couple has been blessed with four children.PW 1 would reside with her mother, appellant (step-father) and her step-siblings as well. PW 1 was admitted to the school, initially. The appellant,however discontinued her schooling so as to ensure that she would take careof her younger siblings. Both, the appellant and PW 2 used to go out of thehouse for work. It is the case of the prosecution that the appellant, duringabsence of the other family members, would commit sexual intercourse withPW 1. He continued to do so for long. As a result, PW 1 conceived.Information was given to Rajur Police Station about PW 1, being minor, tohave been conceived. Police officials, therefore, rushed to her house andtook both, PW 1 and 2 to the police station. PW 1 was medically screened.It was found that she was pregnant of 26-28 weeks. PW 1 lodged the FirstInformation Report (‘F.I.R.’) (Exh.22) against the appellant.2 / 11 APEAL-666-24.odt3.Crime, vide C.R. No. 38 of 2015 was registered. The crime wasinvestigated. Crime scene panchanama was drawn (Exh.38). The appellantwas arrested. He too was medically screened. PW 1 delivered a baby girl.Blood samples of the trio were obtained for DNA profiling. DNA reportsindicate that appellant and PW 1 to be the biological parents of the new born.On completion of investigation, the appellant was proceeded against by filingthe charge-sheet.4.The trial Court framed the charge (Exh.6). The appellant pleadednot guilty. His defence was of false implication at the behest of police. Atone stage it was suggested to PW 1 that she was in consensual relationshipwith the appellant and was above eighteen years of age at the relevant time.5.The prosecution, to bring home the charge, examined twelvewitnesses and produced in evidence certain documents. The trial Court, onappreciation of the evidence, convicted and consequently sentenced theappellant as stated above.6.Learned counsel, appointed to represent the appellant, wouldsubmit that there was delay in lodging of the F.I.R. The same has not beenexplained. There was step relationship between the victim and the appellant.The victim’s mother (PW 2) did not stand by the prosecution. He wouldfurther submit that there was no reliable evidence to suggest PW 1 wasbelow eighteen years of age at the relevant time. As regards DNA report,3 / 11 APEAL-666-24.odtlearned counsel would submit that protocol regarding collection andpreservation of the samples for DNA profiling has not been duly observed.No witness was examined in whose presence blood sample of the new bornbaby was said to have been obtained. Learned counsel relied on thefollowing authorities to ultimately urge for allowing the appeal :-(I)Suresh s/o. Devidas Malche Vs. The State of Maharashtra,decided on 15.03.2023 (Criminal Appeal No. 306 of 2016);(II)Premjibhai Bachubhai Khasiya Vs. State of Gujarat and Anr.,2009 Criminal Law Journal, 2888;7.Learned A.P.P. and learned counsel appointed to representRespondent No.2 (victim) would submit that the victim did not have anyreason to falsely implicate the appellant, who is not less than a father for her.They would further submit that the appellant took disadvantage of the victimto have been under his shelter. The offence is thus serious one. It was butnatural for the victim to report the incident some what late that too onintervention of police, otherwise she would have been in dilemma where togo and fend for herself. Learned counsel took us through the evidence onrecord to submit that at one stage PW 1 was suggested to have consensualrelationship with the appellant. A certificate issued by the Ashram school,wherein she was admitted, was tendered in evidence in proof of her age.Learned counsel reiterated the reasons given by the trial Court for convictionof the appellant and consequential sentence. Both of them relied on thefollowing authorities and urged for dismissal of the appeal :-(I)Chhotelal Kandhari Pajapati vs. State of Maharashtra,2017 ALL MR (Cri) 5323;4 / 11 APEAL-666-24.odt(II)Pravin Popat Kharat Vs. State of Maharashtra, Mh.LJ(Cri)-2024-4-242;(III)Gaya Prasad Pal Vs. State of Delhi, 2017 All MR (Cri)Journal 18.Considered the submissions advanced. Perused the judgmentimpugned herein. Let us advert to the evidence on record and appreciate thesame.9.PW 1 – ‘A’ testified that her date of birth is 11th March, 2000. PW2 – ‘B’ is her mother. The appellant is her step-father. She would reside withthem. She has step siblings as well. She further testified that she tookeducation of 1st and 2nd standard at Ghoti and then she took admission to anAshram school at village Palsunda. She was in 7th class in Kahane AshramSchool. She further testified that after her examination of 7th class was over,she came to Ghoti for vacation. Since the appellant and her mother wouldgo for work, she used to be at the house alongwith her younger siblings. Theappellant removed her from school to ensure that she would take care of hischildren (step siblings of PW 1). She further testified that the appellant wouldnot behave properly with her and her mother as well. She further testifiedthat the appellant repeatedly committed sexual intercourse with her at theirresidence. The same happened while her mother used to be away for workin the field and brothers in the school. She further testified to have beenconceived from the appellant. Her mother learnt about the same. She gavebirth to a female child. Her evidence further indicates that the police officials5 / 11 APEAL-666-24.odtof Rajur Police Station had come to her house. She related them theincidents. Her statement (F.I.R., Exh.22) was recorded.10.PW 1 further testified that the appellant would return home underinfluence of alcohol. He would beat up her mother and drive her out of thehouse. He would then commit sexual intercourse with her against her wish.The appellant had even threatened her of dire consequences, if she reportedthe matter to anyone. She further testified to have undergone medicalscreening. She delivered a baby girl. The girl was admitted to Snehalaya (asocial organisation) at Ahmednagar.During her cross-examination, she testified that she did not knowwhen and where she was born. Her mother was deaf. She admitted that theappellant had not beaten up her mother in her presence. She claimedignorance about her age. She admitted to have left the school on her own.She further testified that her mother, other siblings and the appellant wouldreside in one room. She even testified that her blood sample was notobtained nor her baby’s. It was further suggested to PW 1 that she keptphysical relationship with the appellant on her own. She flatly denied thesame.11.PW 2, mother of the victim, did not stand by the prosecution. Inher cross-examination she stated that the victim was above twenty years ofage at the relevant time. Learned A.P.P. submitted that the history given bymother of the victim would vouch for the prosecution case. Before the policeshe has stated against her husband.6 / 11
Legal Reasoning
APEAL-666-24.odt16.PW 10 – Suresh was the Police Constable attached to RajurPolice Station. He testified to have carried the blood samples to ForensicScience Laboratory, Kalina. He placed on record acknowledgment receipt(Exh.68) thereof. On the same lines is the evidence of PW 9 – Kishor, whoclaimed to have carried the seized articles for chemical analysis to theR.F.S.L., Nashik. Acknowledgment receipt thereof is at Exhibit 66.17.PW 8 – Rahulkumar was the Assistant Police Inspector servingwith Kotwali Police Station, Ahmednagar. He testified that pursuant to asecret information, he alongwith his staff paid visit to Ghoti-Shilvandi village.They then went to the house of PW 1 and 2. He took them into confidence.He noticed PW 1 was pregnant. With the assistance of lady PoliceConstable, he brought them to the police station. The victim was medicallyscreened. He recorded the statement-cum-F.I.R. lodged by the victim.18.PW 12 – Sunil is the another police official, who did investigationof the crime and filed the charge-sheet on completion thereof. The DNAreport indicating the appellant and the victim to have been the biologicalparents of the baby girl is at Exhibit 78.19.Aforesaid is the evidence in the case. There is no dispute that theappellant alongwith his wife, victim and his other children would residetogether for long. In proof of age of the victim, her biological mother did not8 / 11 APEAL-666-24.odtsupport the prosecution case. According to her, the victim was twenty yearsof age. Although the victim has stated her date of birth, the same isinadmissible, being hearsay. A certificate issued by the Government AshramSchool, wherein the victim was admitted, was placed on record by theinvestigating officer. The same is at Exhibit 57. As per the said document,the date of birth of the victim is 11th March, 2000. The contents thereofindicate that it was issued on 08th July, 2015. The victim was 9th standardstudent of the said school. No original school record was placed on recordnor the headmaster, who issued the said certificate, was examined in proofof the certificate. The radiological examination report of the victim has alsonot been proved by examining the concerned radiologist, who opined thevictim to have been above thirteen years of age. In our view, therefore, theprosecution did not place on record reliable evidence in proof of age of thevictim.20.So far as regards the offence of rape is concerned, the victim wasconsistent in her evidence to state the appellant to have had sexualintercourse with her many a time in the absence of other family members.Though the F.I.R. was silent to state her father would return in drunken stateand assault her mother in her presence, we find no reason to disbelieve herevidence. Moreso, when it was specifically suggested to her in her cross-examination as under :-gs Eg.k.ks [kjs ukgh dh] eh ek>s Lor%P;k oMhyka’kh ‘kkjhjhd laca/k Bsoys vkf.kR;kauk ek>s’kh laHkksx dj.;kl Hkkx ikMys-9 / 11 APEAL-666-24.odtIt is not true to say that I have kept physical relationship with myfather by my own will and forced him to do intercourse with me.21.Section 114-A of the POCSO reads thus :-“Presumption as to absence of consent in certain prosecution forrape. - In a prosecution for rape under clause (a), clause (b),clause (c), clause (d), clause (e), clause (f), clause (g), clause (h),clause (i), clause (j), clause (k), clause (l), clause (m) or clause(n) of sub-section (2) of section 376 of the Indian Penal Code (45of 1860), where sexual intercourse by the accused is proved andthe question is whether it was without the consent of the womanalleged to have been raped and such woman states in herevidence before the Court that she did not consent, the Court shallpresume that she did not consent.”22.The aforesaid suggestion, amounting to admission, goes a longway for us to infer that it was the appellant and none else, who made thevictim pregnant and is the biological father of the new born. We haveconsidered the authorities relied on as regards breach of protocol incollection of the blood sample for DNA profiling. Although learned counselfor the appellant did his best, the fact remains that before the trial Court, theappellant admitted to have had sexual relation with the victim (PW 1). Thevictim was helpless. She was residing with her natural mother. Theappellant was her step-father. We have, therefore, no hesitation to concludethe appellant to have committed rape of the victim.23.The appellant is behind the bars close to ten years. He has a wifeand four minor children to look after. In the facts and circumstances of thecase, we find the imprisonment for life imposed against the the appellant by10 / 11 APEAL-666-24.odtthe trial Court needs to be brought down to the minimum sentence ofimprisonment of ten years.24.In view of above we pass the following order :-ORDER(I)Criminal appeal is partly allowed.(II)Impugned judgment and order dated 21st February, 2017passed by the Court of Additional Sessions Judge,Sangamner (‘trial Court’) in Sessions Case No. 68 of 2015thereby convicting the appellant for the offence punishableunder Section 5 of Protection of Children from SexualOffences Act, 2012 punishable u/s.6 of the said Act ishereby set aside. He stands acquitted thereof.(III)For conviction under Section 376(2) of the Indian PenalCode, the appellant is sentenced to suffer rigorousimprisonment for ten years and to pay fine of Rs.1,000/-(Rupees One Thousand), in default to undergo rigorousimprisonment for ten days.(V)In addition to the fees already quantified, fees of Mr.P.B.Jadhav and Mr. P.M. Kulkarni, learned counsel appointed torepresent the appellant and Respondent No.2 – victimrespectively is quantified at Rs.8,000/- (Rupees EightThousand) each.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD11 / 11
Arguments
APEAL-666-24.odt12.PW 3 – Asha and PW 4 – Bhima were the neighbours of PW 1and 2. Both of them did not speak about any physical relationship betweenthe victim and the appellant. Their evidence only speaks of the appellantwould return drunk and then quarrel with his wife.13.PW 5 – Dr. Chaya had medically screened the victim. Accordingto her, the victim was thirteen years of age in view of her ossification andradiological examination. According to her, the victim was referred to CivilHospital, Ahmednagar. She found the victim pregnant of 24-26 weeks. Themedical examination report of the victim is at Exhibit 26. She also examinedthe appellant and found him potent.Only one question was put to her in cross-examination, denyingage of the victim and her pregnancy.14.PW 7 – Dr. Jayshri was the medical officer with Rural Hospital,Akole. She testified to have collected the blood of the appellant for DNAprofiling and after sealing the same, handed it over to constable Wakchaure.According to defence, Wakchaure was not examined asprosecution witness.15.PW 11 – Dr. Khan testified to have collected blood samples of thevictim and her baby for DNA profiling. She referred to medical papers in thatregard and the prescribed form duly filled in in the presence of three panchwitnesses.7 / 11