High Court
Legal Reasoning
APEAL-907-18.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 907 OF 2018Madhav Rama YelewadAge: 36 years, Occu.: Labour,R/o Bidrali, Tq. Basar,Dist. Nirmal (Telangana State)..APPELLANTVERSUS1. State of Maharashtra2. XYZ Through her Legal Guardian..RESPONDENTS....Ms. R.S. Kulkarni, Advocate for appellant (appointed)Mr. S.D. Ghayal, A.P.P. for respondent no.1 – StateMr. S.S. Jadhav, Advocate for respondent no.2 (appointed)Mr. C.P. Patil, Advocate for intervener....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 13th FEBRUARY, 2024PRONOUNCED ON : 01st MARCH, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The challenge in this appeal is to the judgment of conviction andorder of consequential sentence passed by the Special Court constituted fortrial for the offence under the Protection of Children from Sexual OffencesAct, 2012 (‘POCSO’) on 23rd March, 2018 in Special (POCSO) Case No. 8 of2017. The order of conviction and consequential sentence reads as under :-1 APEAL-907-18.odtSectionActSentenceFine376(2)(f)(i)(n)(m)I.P.C.Life ImprisonmentRs.5,000/- In DefaultS.I. for 06 months377I.P.C.R.I. for 10 yearsRs.5,000/- In DefaultS.I. for 06 months504I.P.C.R.I. for 01 yearRs.2,000/- In DefaultS.I. for 02 months506I.P.C.R.I. for 01 yearRs.2,000/- In DefaultS.I. for 02 months4POCSOR.I. for 10 yearsRs.5,000/- In DefaultS.I. for 03 months6POCSOLife ImprisonmentRs.5,000/- In DefaultS.I. for 03 monthsThe substantive sentences are directed to run concurrently.2.The facts giving rise to the present appeal are as follows :The appellant married P.W.3 – Ashatai (informant) in April 2007.The couple is blessed with three children, a son and two daughters. P.W.2(victim) is one of the two daughters of the appellant and informant. Both, theappellant and informant would do labour work to earn their living. Parentalhouse of the informant was at Bhokar. The appellant was resident of Bidrali(State of Telangana). Bidrali is the village neighbouring the village Bhokar.The victim would reside with her maternal grand parents, for education.3.The F.I.R. (Exh.14) was lodged by the informant on 01stSeptember, 2017 with Bhokar Police Station. The averments in the F.I.R.are to the effect that since four-five months before 01st September, 2017, thevictim experienced pain at her anus. The informant suspected that the victimmight have been suffering from piles. The informant, therefore, took her to aprivate hospital of one Dr. Vilas Bhokare for treatment. About eight days2 APEAL-907-18.odtbefore 01st September, 2017, the informant, the appellant and the victimwere home alongwith two other children. It was night time. The appellantundressed himself. He undressed the informant. The appellant did sexualintercourse with her. He also did sexual intercourse with her against order ofnature. The appellant woke up the victim and started removing clothes onher person. The appellant told the informant that he wanted to have sexualintercourse with the victim the same way. The informant requested him notto do anything with the victim. Do her (informant) the way he wanted. Onthe following morning, the victim related the informant that the appellant hadsexual intercourse with her many a time earlier. She also related theinformant that the appellant ejacuated in her mouth. He also did analintercourse with her. The informant, therefore, left the victim at her paternalhome at Bhokar and returned to her matrimonial home at Bidrali to livealongwith the appellant and the other children.On 31st August, 2017, the appellant told the informant that he wasgoing to visit Dharmabad. The informant suspected something amiss. Shesuspected that the appellant would go to her parental home and misbehavewith the victim. She, therefore, informed her maternal uncle on phone. Herparents and sister, therefore, went to their field taking the victim along withthem. The appellant went there. He picked up quarrel with his parents andsister-in-law. He assaulted the informant’s mother and even threatened herof dire consequences. The informant, having learnt about the incident, wentto her parent’s home at Bhokar and lodged the F.I.R. (Exh.14). Crime videC.R. No. 250 of 2017 was registered for the offences punishable under3 APEAL-907-18.odtSections 376(2)(f)(i)(n)(m), 377, 504 and 506 of the Indian Penal Code andunder Sections 4 and 6 of the POCSO. Both, the informant and the victimwere medically screened. Scene of offence panchanama (Exh.34) wasdrawn. The appellant was arrested. Statements of both, the informant andthe victim were recorded by Magistrate (statement under Section 164 ofCr.P.C.). Statements of the persons acquainted with the facts andcircumstances of the case were recorded. Upon completion of investigation,the appellant was proceeded against by filing the charge-sheet before theSpecial Court (‘trial Court’).4.The trial Court framed the charge (Exh.4). The appellant pleadednot guilty. His defence is of false implication. According to him, his marriedsister-in-law was staying away from her husband. She was residing at herparental home at Bhokar. Her character was not good. She would talk tomany persons on cell phone. He disliked the same. He would insist hisparents-in-law to ensure that she gets married again. The victim was residingwith his parents and sister-in-law. The victim was under their influence. Thesister-in-law would show the victim obscene pictures on cell phone.According to him, the F.I.R. (Exh.14) was lodged to teach him a lesson as hequarreled with his parents-in-law over character of his sister-in-law.5.The prosecution has examined six witnesses and produced inevidence certain documents, to establish the charge. The trial Court, onappreciation of the evidence in the case, convicted the appellant andsentenced as stated above.4 APEAL-907-18.odt6.Learned counsel appointed to represent the appellant wouldsubmit that the case is based on sole testimony of the victim. The victim wasa child, prone to tutoring. The informant did not stand by the prosecution.Arrest panchanama of the appellant (Exh.42) indicates injury on his person.The appellant had been to the house of his parents-in-law on 31st August,2017. There was a quarrel between him and his in-laws. On appellant’sarrest, he has not been medically screened. It was the in-laws of theappellant, who assaulted him. She would further submit that P.W. 6 -Investigating Officer took extra interest in the investigation. She went out ofher way to ensure successful prosecution. Our attention has been drawn toExh.58. It was a note in the handwriting of the investigating officer. It wasgiven by her for tutoring. According to learned counsel, a police officer hadalready accompanied the victim for recording her statement under Section164 of Cr.P.C., still investigating officer’s presence was secured by theMagistrate concerned while recording victim’s statement. Learned counselwould further submit that under the POCSO, re-examination of the victim isnot permissible. Cross-examination is to be conducted in question-answerform. When the document (Exh.58) came to light, evidence of the victim hadalready been recorded. The appellant has thus been prejudiced in hisdefence. Extra interest taken by the investigating officer could be brought onrecord through re-examination of the informant. Investigating officer did notoffer any explanation as to why she prepared the said document (Exh.58).On the day F.I.R. was lodged and victim was medically screened, victim’sstatement was not recorded. Victim’s statements under Section 164 of5 APEAL-907-18.odtCr.P.C. was recorded after seventeen days of lodging of the F.I.R. If onegoes by the prosecution case, last alleged sexual assault on the victim tookplace in March/April 2017. There is delay of over five months in approachingthe police. The victim admitted in her evidence that her maternal aunt wasnot behaving properly. The appellant would insist his parents-in-law to gethis sister-in-law married, therefore there used to be quarrel between them.Learned counsel relied on the following authorities to ultimately urge forallowing the appeal :-1. Vishal Vs. State of Maharashtra and Ors., MANU/MH/1433/20232. State of Karnataka Vs. Shivanna, MANU/SC/0400/20147.Learned A.P.P. would, on the other hand, submit that a nine yearsold daughter of the appellant has no reason to falsely implicate her father,the appellant. The daughter speaking against her own father goes a long wayto infer the appellant to have committed the crime in question. According tolearned A.P.P., although the informant turned hostile, her entire evidencedoes not get washed off. He relied on the Apex Court judgment in case ofNeeraj Dutta Vs. State (Govt. of N.C.T. of Delhi), (2023) 2 SCR 997 tosubmit that evidence of a hostile witness is required to be considered withdue care and caution and that part of the testimony which is credit worthymust be considered and acted upon. He adverted our attention to theevidence of the informant to suggest that she admitted to have had givenconsent for medical examination of the victim and herself. She gave thehistory. Learned A.P.P. further relied on the judgment of this Court in case of6 APEAL-907-18.odtAshok Mahadev Kannake Vs. State of Maharashtra, 2021 DGLS (Bom.)1922 to submit that the facts therein were similar to the one in question. ThisCourt convicted the appellant therein for having committed rape of his owndaughter.8.The informant is party to this appeal. Since she did not stand bythe prosecution before the trial Court itself, Mr. Patil, learned counsel, whohas filed an application for intervention on behalf of the informant submittedthat the victim too concedes to allow the appeal. In view of this fact, we haveappointed Mr. Satej Jadhav, learned counsel, to represent the victim in thismatter and assist the Court. He submits that the appellant’s defence underSection 313 of Cr.P.C. is afterthought. The informant had given the history ofsexual assault on the victim and herself as well. According to him, testimonyof the victim was sufficient to bring home the charge.9.Considered the submissions advanced. Perused the evidence onrecord. We highly appreciate the able assistance rendered by Ms.R.S.Kulkarni and Mr.S.S. Jadhav, learned counsel appointed to represent theparties.10.Paragraph no.18 of the judgment in case of Vishal (supra) readsthus :-“18. The Hon’ble Supreme Court of India in the case of State ofKarnataka Vs. Shantappa Madivalappa Galapuji and others,(2009) 12 SCC 731, has held thus:“14. The position in law relating to the evidence of childwitness has been dealt with by this Court in Nivrutti Pandurang7 APEAL-907-18.odtKokate v. State of Maharashtra and Golla Yelugu Govindu v.State of A.P. 15.... “6....The Evidence Act, 1872 (in short "theEvidence Act") does not prescribe any particular age as adeterminative factor to treat a witness to be a competent one. Onthe contrary, Section 118 of the Evidence Act envisages that allpersons shall be competent to testify, unless the court considersthat they are prevented from understanding the questions puttothem or from giving rational answers to these questions, becauseof tender years, extreme old age, disease - whether of mind, orany other cause of the same kind. A child of tender age can beallowed to testify if he has intellectual capacity to understandquestions and give rational answers thereto. This position wasconcisely stated by Brewer, J. in Wheeler v. United States. Theevidence of a child witness is not required to be rejected per se,but the court as a rule of prudence considers such evidence withclose scrutiny and only on being convinced about the qualitythereof and reliability can record conviction, based thereon. (SeeSuryanarayana v. State of Karnataka)7. In Dattu Ramrao Sakhare v. State of Maharashtra it washeld as follows: (SCC p. 343, para 5) :"5. ... A child witness if found competent to depose to thefacts and reliable one such evidence could be the basis ofconviction. In other words even in the absence of oath theevidence of a child witness can be considered under Section 118of the Evidence Act provided that such witness is able tounderstand the questions and able to give rational answersthereof. The evidence of a child witness and credibility thereofwould depend upon the circumstances of each case. The onlyprecaution which the court should bear in mind while assessingthe evidence of a child witness is that the witness must be a8 APEAL-907-18.odtreliable one and his/her demeanour must be like any othercompetent witness and there is no likelihood of being tutored."The decision on the question whether the child witness hassufficient intelligence primarily rests with the trial Judge whonotices his manners, his apparent possession or lack ofintelligence, and the said Judge may resort to any examinationwhich will tend to disclose his capacity and intelligence as well ashis understanding of the obligation of an oath. The decision of thetrial court may, however, be disturbed by the higher court if fromwhat is preserved in the records, it is clear that his conclusion waserroneous. This precaution is necessary because child witnessesare amenable to tutoring and often live in a world of make-believe.Though it is an established principle that child witnesses aredangerous witnesses as they are pliable and liable to beinfluenced easily, shaken and moulded, but it is also an acceptednorm that if after careful scrutiny of their evidence the courtcomes to the conclusion that there is an impress of truth in it,there is no obstacle in the way of accepting the evidence of achild witness.”The above position was highlighted in Ratansingh DalsukhbhaiNayak v. State of Gujrat at SCC pp. 67-68, paras 6-7.”11.A child witness is prone to tutoring. A careful scrutiny of evidenceof the child witness is a must. In the case in hand, although the prosecutionhas examined six witnesses, the only evidence that is relevant to decide thepresent appeal is that of the victim, a child of eight years old at the relevanttime, besides medical evidence to some extent. P.W.1 – Jay is a witness tothe scene of offence panchanama (Exh.9), while P.W.5 – Vikas is a witnessto the panchanama (Exh.33) whereunder clothes on the person of the victim9 APEAL-907-18.odtwere seized. The clothes were delivered by the informant (mother of thevictim) to the police on 02nd September, 2017. The evidence of both thesewitnesses is of little relevance, since nothing incriminating was found at thescene of offence and C.A. report (Exh.29) relating to the clothes of the victim.Although the blood stains were noticed on her legging, the C.A. report(Exh.29) concludes that blood grouping of the blood stains was inconclusive.Moreover, the clothes were delivered a few months after the alleged lastsexual intercourse.12.P.W.3 – informant (mother of the victim) did not support theprosecution. It is true that evidence of hostile witness cannot be ignored inits entirety. A part of testimony which is credit worthy must be consideredand acted upon. Evidence of the informant is to the effect that the appellantwas short tempered. He would consume liquor occasionally and underinfluence thereof, used to pick up quarrel with her and even beat her up. Shewas staying at her matrimonial home at Bidrali. She was insisting him toreside permanently at Bhokar at her parents place. It is further in herevidence that on 31st August, 2017 the appellant had been to Bhokar. Hepicked up quarrel with his sister-in-law. The informant, therefore, lodged thereport (Exh.14) against the appellant.13.Since the informant did not stand by the prosecution, she wassubjected to the searching cross-examination by learned A.P.P. She wasconfronted with certain matters appearing in the F.I.R. (Exh.14). She10 APEAL-907-18.odtdisowned to have stated the same. She has, however categorically statedthat the victim was medically screened, after she gave consent therefor. Herconsent to that effect is at Exhibit 16. In response to the questions put duringcross-examination by the defence, she testified that the victim would resideat her parent’s house at Bhokar. Her sister – Kiran was also residing with herparents. Character of her sister was not good. She used to show the victimobscene pictures on her cellphone. The appellant dislike the same.14.Although in cross-examination, evidence of the informant mayappear to be an embellishment, there is some truth therein, since the victimin her cross-examination reinforces the same. The victim gave evidencewhile she was in fifth standard. It is in her evidence that she did not like theappellant since he did dirty things with her. The appellant would give threatsto her life if she did not allow him to have sexual intercourse with her. It is inher evidence that while she was in third standard, she had accompanied theappellant to their field. The appellant showed her obscene pictures in hiscellphone. He gave his private part in her hand and then in her mouth. Heeven ejacuated in her mouth. Again after two-three days while the motherwas not home, the appellant did penovaginal intercourse with her. Theappellant did not allow her to shout. Again two-three days thereafter, theappellant behaved with her similar way. He applied oil at her anus andinserted finger. Evidence of the victim further indicates that after appearingfor fourth standard examination when she returned home, the appellantcommitted oral and penovaginal intercourse with her. It is further in her11 APEAL-907-18.odtevidence that some days before the report was lodged with the police, herparents and siblings were home. It was night time. The appellant removedclothes on the person of her mother. He also attempted to remove herclothes. The mother (informant) rescued her from the appellant. It is furtherin her evidence that thereafter she related her mother the past incidents ofsexual assaults committed by the appellant. Her evidence further indicatesthat once she was referred to the government hospital for treatmentconsidering it to be the pain due to piles. Evidence of the victim brought onrecord through cross-examination would be referred to while appreciating theevidence, with a view to avoid repetition.15.P.W.4 – Dr. Mohan medically screened the victim. His evidenceindicates that the history was narrated by the informant (mother of thevictim). He noticed hymen of the victim to have been ruptured (old hymenrupture). As per examination perinea tear and urethra were intact. Therewas no anal injury. Hymen rupture may be possible for more than onereason. Medical examination report of the victim is at Exhibit 25. Hereserved his final opinion pending receipt of C.A. report. C.A. report (Exh.29)do not further the prosecution case. The blood stains found on the legging ofthe victim could not be concluded of a particular group of blood.16.P.W.6 – Poonam Suryawanshi did the investigation of the crime.Her evidence indicates that the scene of offence panchanama (Exh.34) wasdrawn by her. She got the statement of the victim recorded. According toher, the F.I.R. was recorded as narrated by the informant.12 APEAL-907-18.odtAPPRECIATION :-17.The question is whether based on sole testimony of the victim, aneight years old child at the relevant time, conviction and consequentialsentence stands sustained. It is stated that a child witness is prone totutoring. A child witness’s evidence is required to be closely scrutinised.Learned A.P.P. may be justified in contending that a girl child did not havereason to falsely implicate her father. True, the victim has given details ofthe incidents happened with her. We, however cannot lose sight of the factthat the F.I.R. has been lodged by the informant (mother of the victim/wife ofthe appellant) eight/nine days after the alleged incident, wherein theappellant tried to disrobe the victim and expressed his desire to have sexualintercourse with her (victim). As per the prosecution case itself the victimthereafter related the informant three/four incidents of penovaginal andunnatural intercourse committed by the appellant about five months beforethe F.I.R. was lodged. Since the victim was medically screened about sixmonths after last such alleged incident, the medical evidence does not speakof sexual assault.18.As per the prosecution case itself, on the day before the F.I.R.was registered, the appellant had been to the house of his parents-in-law. Hepicked up quarrel and even assaulted them. It is only having learnt thesame, the informant went to the house of her parents and lodged the F.I.R.(Exh.14) against the appellant. The same suggests there was anger in themind of the informant against the appellant. Although the F.I.R. was lodged13 APEAL-907-18.odton 01st September, 2017, statement of the victim was recorded by P.W.6 -Investigating Officer after twelve days, while the victim’s statement underSection 164 of Cr.P.C. was recorded after seventeen days. It is not knownas to why the Investigating Officer did not record victim’s statement the dayon which the F.I.R. was lodged. Admittedly, the victim was residingalongwith her maternal grand parents, maternal uncle and aunt as well. Thesame suggests the victim was under their influence at the relevant time.19.After recording of evidence of the informant was over, a document(Exh.58) was placed on record. P.W.6 – Investigation Officer admitted thesame to have been in her handwriting. Close reading thereof would indicatethat those were the bullet points as to the victim’s grievance against herfather (appellant). P.W.6 – Investigating Officer failed to offer any explanationas to why did she prepare the said document and handed it over to theinformant. The same suggests that the victim’s statement before theMagistrate was preceded by prompting/tutoring in terms of document(Exh.58). Although, the informant did not stand by the prosecution, herevidence indicates that she lodged the F.I.R. at the behest of her parents.20.There is one more reason for not to act upon the prosecutioncase. Kiran is the sister-in-law of the appellant. Although married, she wasresiding at her parent’s house. The victim too was residing with them. Thevictim in her cross-examination testified in no uncertain terms that theappellant had a quarrel with her grand parents over behaviour of Kiran. Shefurther testified that Kiran would talk with many persons on cellphone. The14 APEAL-907-18.odtappellant disliked the same. The appellant would urge his parents-in-law tosee that Kiran gets remarried. There, therefore, used to be quarrel betweenthe appellant and his parents-in-law. It is reiterated that on the day beforethe F.I.R. was lodged, the appellant had been to the house of his parents-in-law and quarreled and even assaulted them. It is the case of the appellantthat it was he, who was at the receiving end. He was assaulted by his in-laws. Our attention was drawn to his arrest panchanama (Exh.42) whereinmarks of old injuries have been noted. Admittedly, on arrest of the appellanthe was not subjected to medical examination. It is not known as to why theInvestigating Officer did not comply with the statutory mandate to have theappellant medically screened soon after his arrest.21.The fact remains that the criminal law was set in motion againstthe appellant by lodging the F.I.R. on the following day on which he allegedlyassaulted his parents-in-law. Same suggests the informant to have had areason to grind an axe against the appellant. The victim was under theinfluence of the informant, informant’s parents and sister – Kiran. Possibilityof the victim, therefore, deposing against the appellant at their behest couldnot be ruled out. As such, it is a case based on sole testimony of the victim,child witness. P.W.6 – Investigating Officer appeared to have indulged intutoring the victim. The alleged acts of sexual assault took place five monthsbefore the F.I.R. was registered. All these circumstances lead us to observethe prosecution case to have not been inspiring confidence to sustainconviction and consequential sentence of life imprisonment.15
Decision
APEAL-907-18.odt22.In the result, we pass the following order:-I)Criminal appeal is allowed.II)Order dated 23rd March, 2018 passed by AdditionalSessions Judge (Special Court), Bhokar in Special (POCSO)Case No. 8 of 2017 thereby convicting the appellant for theoffence punishable under Sections 376(2)(f)(i)(n)(m), 377, 504and 506 of the Indian Penal Code and under Sections 4 and 6 ofProtection of Children from Sexual Offences Act, 2012 andsentencing therefor is hereby set aside.(III)The appellant stands acquitted.(IV)The appellant shall be set at liberty forthwith, if notrequired in any other case.(V)Fine amount paid, if any, be repaid to him.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD16