High Court
Legal Reasoning
{1} CRI APPEAL652 OF 2020IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 652 OF 2020.Devidas Baban Sarode Age: 32 years, Occu.: Labour,R/o.Kukana, Tq.Newasa,Dist.Ahmednagar.….Appellant Versus1.The State Of MaharashtraThrough : The Police Inspector,Newasa Police Station,Tq.Newasa, Dist.Ahmednagar.2.XYZ …..Respondents …..Advocate for Appellant : Mr. Sanjay D. KotkarAPP for Respondent no.1 : Mr.N.D.Batule Advocate for Respondent no.2 : Mr.Pradeep G. Tambade (appointed)….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 22 JANUARY, 2024 PRONOUNCED ON : 31 JANUARY, 2024 JUDGMENT :- 1.Appellant original accused hereby questions the legality andmaintainability of judgment dated 31-10-2020 passed by learnedAdditional Sessions Judge, Newasa, Dist.Ahmednagar in Special(POCSO) Case No.80 of 2018 recording guilt for offence underSection 5(n) r/w 6 of the Protection of Children from Sexual {2} CRI APPEAL652 OF 2020Offences Act (the POCSO Act) and sentencing appellant to sufferrigorous imprisonment for 10 yeas and to pay fine.CASE OF PROSECUTION IN BRIEF2.Report was lodged with Newasa Police Station by PW1 brotherof the victim alleging that, 2-3 days prior to the incident, he and hisfamily members had been to a fair and they had returned to Kukanaon 06-04-2018. His sister i.e. victim stayed back with theirgrandparents, whereas his other family members returned back tohome at village Kukana. It was informed that accused had takenvictim on the pretext that guests have arrived with marriage proposaland he took her on motorcycle. While on way, he forcibly raped her.Victim rushed back to her grandparents and informed them, who inturn informed to the informant, who came alongwith his mother andthereafter, report exh.18 was lodged, which was made basis forregistration of crime by Newasa Police Station and afterinvestigation, accused was made to face trial for offence underSection 376(2)(f) of the Indian Penal Code (IPC) and Section 5(n)r/w 6 of the POCSO Act.
Legal Reasoning
{3} CRI APPEAL652 OF 2020SUBMISSIONSOn behalf of appellant :3.Learned Counsel for the appellant claimed of false implication.According to him, story is fabricated and concocted. That evenalleged occurrence has taken place on 07-04-2018 but there is noprompt reporting and rather FIR is lodged after delay of one day.According to him, there are two distinct spots and as per prosecutionwitnesses i.e. victim, who narrated about being raped in the field andone Bhagwat but spot panchanama exh.30 does not show such spot.According to him, FIR is on the basis of hearsay information. Thattestimony of victim in witness box is contrary to what is reported inthe FIR. According to him, there are several material omissions apartfrom contradictions. He pointed out that age of the victim is also notconclusively proved. Moreover, according to him, even when motherof victim claimed to have handed over birth certificate, investigationmachinery had not made it part of investigation papers. He alsoquestions the panchanama and seizure of clothes of both accused andvictim. He also questions panchanama of seizure of vehicle.According to him, victim gave place of education as Kukana butdocuments show it otherwise. He would submit that there is clear {4} CRI APPEAL652 OF 2020possibility of fabricated story being narrated. For all above reasons,learned Counsel for the appellant prays for setting aside theimpugned judgment by allowing the appeal.On behalf of State :4.In answer to above, learned APP pointed out that prosecutioncase was full-proof in the trial Court. Victim, a minor, was taken byaccused, who happens to be her paternal uncle. However, hemisused the trust and raped her forcibly. Victim has deposed to thatextent. That she promptly reported occurrence to her grandparents.According to the learned APP, brother and mother of victim resides atother place and therefore, they reached at a later point of time andhence, there is delay of one day in lodging FIR but according to him,it is not fatal in view of nature of offence. He further submitted thatprosecution has established that victim is a minor. Evidence of victimand medical expert confirms occurrence of rape. Medical expert hasissued positive opinion. Taking such evidence into consideration,learned trial Judge has correctly appreciated evidence adduced byprosecution and has correctly accepted the case. According to him,there is no merit in the appeal and therefore, he prays to dismiss theappeal. {5} CRI APPEAL652 OF 2020Learned Counsel for the victim, who was appointed, tookexception to the appeal pointing out that victim is a minor, hertestimony is categorical about she being forced upon. That herevidence is corroborated by medical witness and therefore, offenceand charges are brought home and hence, he also prays to dismissthe appeal.5.In support of its case, prosecution has examined in all ninewitnesses and has also sought reliance on documentary evidence.PROSECUTION WITNESSESPW1 is brother of victim.PW2 is mother of victim.PW3 is victim.PW4 Bhalbhim Arjun Gavhane is Pancha to spot panchanama.PW5 Mohan Dayanand Chauhan is Kotwal of village Newasa Kh. Heis Pancha to seizure panchanama of apparels of victim exh.26 andseizure panchanama of apparels of accused exh.34. PW6 Santosh Bhagirath Ghungase is pancha to seizure of Motorcycleexh.37. PW7 Dr.Bhagwan Mohammad is the Medical Officer, who examined {6} CRI APPEAL652 OF 2020accused.PW8 Pramod Rangnath Bhingare is the Investigating Officer.PW9 Dr.Supriya Shankarrao Jagtap is the Medical Officer, whoexamined victim. 6.While exercising powers under Section 374 of the Code ofCriminal Procedure, this Court is called upon to re-examine, re-appreciate, re-analysis the entire evidence adduced by prosecution inthe trial Court to ascertain the legality of the impugned judgment.ANALYSIS7.After considering the submissions advanced by each of theside, this Court is, at the threshold, required to deal with objection oflearned Counsel for the appellant. According to him, prosecution hasnot established that victim is a minor. In the light of such objection, it is required to be seen whetherit is so. PW1 Informant / brother of victim in FIR reported age of hissister as 16 years. PW2 mother of victim in her testimony at exh.21 addressed heras child daughter but she has not given her date of birth. {7} CRI APPEAL652 OF 2020It is to be noted that mother of victim is a labourer, but incross-examination of mother, she is questioned about age of victim,wherein she has answered that birth of children took place atErandgaon and that victim was admitted in School at Erandgaon foreducation and at that time her birth certificate was availed. Sheclaims that she has supplied birth certificate to Police. She furtherdeposed that her daughter studied up to 3rd standard at Erandgaonbut further education was completed in village Kukana. She flatlydenied that at the time of admissions date was given as July 1998. Infurther cross, it has come on record by way of answer of mother ofvictim that at the time of incident, victim child was studied up to 6thstandard and thereafter, she did not complete the education.PW3 victim, who is examined at exh.24 is unable to give dateof birth but she answered that she was studied up to 5th standard.She has given her age as 16 years i.e. on 10-04-2018 when herstatement under Section 164 was recorded. While under cross-examination, victim has answered that shetook admission in 1st standard in the School at village Kukana andshe studied there till 3rd standard, thereafter she took admission inthe School at Erandgaon and there she studied up to 4th Standard.She took gap in education i.e. between School at Kukana and {8} CRI APPEAL652 OF 2020Erandgaon. The gap was of two years. Prosecution in the trial Court seems to have relied on theevidence of medical expert as well as Investigating Officer on theaspect of age of victim. PW9 Dr.Supriya Shankarrao Jagtap, in her evidence at exh.78para 3, deposed that all necessary tests were conducted. That inview of age determination of victim, radiological test was done andfurther, the dentist opinion in view of age determination was alsoobtained. The conclusion reached at by dentist is that dental age ofvictim is approximately below 17 years. However, neither the Doctor,who conducted ossification test nor the dentist, who opined aboutdental age, have been examined by the prosecution for the reasonsbest known to them. 8.However, on record there is School Leaving Certificate and thatis got proved through Investigating Officer and is marked as exh.67.In the said Leave Certificate, the date of birth of victim is reported as03-07-2001. In the case of P. Yuvaprakash v. State Rep. By Inspector ofPolice, AIR 2023 Supreme Court 3525, as regards to computation ofage, Section 34 of the POCSO Act is discussed and following nature {9} CRI APPEAL652 OF 2020of evidence is considered relevant for determination of age. “13. It is evident from conjoint reading of the above provisionsthat wherever the dispute with respect to the age of a personarises in the context of her or him being a victim under thePOCSO Act, the courts have to take recourse to the stepsindicated in Section 94 of the JJ Act. The three documents inorder of which the Juvenile Justice Act requires consideration isthat the concerned court has to determine the age byconsidering the following documents:“(i) the date of birth certificate from the school, or thematriculation or equivalent certificate from the concernedexamination Board, if available; and in the absence thereof;(ii) the birth certificate given by a corporation or a municipalauthority or a panchayat;(iii) and only in the absence of (i) and (ii) above, age shall bedetermined by an ossification test or any other latest medicalage determination test conducted on the orders of theCommittee or the Board”.”Here, therefore, going by leaving certificate, which is gatheredby the Investigating Officer, date of birth of victim is 03-07–2001.Alleged occurrence of sexual assault had taken place on 07-04-2018.Resultantly, on such date age of victim was 16 years and 8 months.9.Now, it is to be seen whether offence as alleged has beencommitted by the appellant. Again we have to fallback on thetestimony of PW1 brother of victim, PW2 mother of victim, PW {10} CRI APPEAL652 OF 2020victim herself and PW9 Dr.Supriya medical expert. Admittedly PW1 brother and PW2 mother of the victim wereresiding at a distinct village and on getting message from grandfatherthey had returned back to the village where incident took place andinteracted with the victim and learnt about occurrence from her. 10.In her testimony, PW3 victim has categorically stated that on07-04-2018, present appellant came and told that guests of SainathNagar has come and therefore, her mother had called her and tookher on his Motorcycle. She stated that while travelling onMotorcycle, when they reached near the canal, he halted Motorcyclenear the field on the pretext of urination, there he came back, gaggedher mouth, lifted her, took her to sugarcane field and committedsexual assault. She stated that she attempted to raise hue and cry buther mouth was gagged and therefore she could not raise shouts. Shestated that the said place was muddy and therefore her clothes gotsoaked in mud. She stated that he threatened her that if she narratesit to anyone, he would obstruct her marriage and further suggestedto her that if anyone asked her about mud soaked clothes, she shouldinform that she fallen from Motorcycle near the canal. He left her atBus Stand. She further deposed in paragraph no.3 that out of fright, {11} CRI APPEAL652 OF 2020she directly ran to house and narrated occurrence to grandparents.Then her grandfather contacted her brother and mother on phoneand after their arrival, she narrated occurrence to them andthereafter Police and medical authorities were approached.In cross-examination, she narrated that prior to occurrence,they used to visit each others house. In paragraph no.9, there arequestions about occurrence wherein she has answered that it takes10 minutes to remove and wear apparels. She stated that her entirebody was soaked with mud. She answered that her apparels werekept at a distance of 10 to 15 feet from the alleged spot of incident.She stated that there was traffic on the road. She answered thatwhen she returned home, after the incident, at that time, she was notwearing footwear and she further answered that she had lost it at thespot. She is questioned about exact distance between the placewhere motorcycle was parked and the place where her clothes werekept. Thereafter, she is questioned about information being passed tofamily members after reaching home and then informing Police. Thenshe is questioned as to when she took bath to which she answeredthat she had not taken bath for three days. Then she is questionedabout taking dinner, having tea and snacks and whether she servedmeal to all. She is asked when she changed her apparels to which {12} CRI APPEAL652 OF 2020she answered that the same were changed after two days. To aquestion, she answered that she is unable to give ownership of thespot and that Motorcycle was also soaked with mud. Omission isbrought to the extent that her mouth being gagged. Rest all is denial.11.PW9 Dr.Supriya, who had occasion to conduct medicalexamination of victim on 09-04-2018, deposed about noting historyand conducting medical examination of the victim. According to her,hymen was torn but there was no redness or discharge. Clothes werefound to be changed. On physical examination, she noticed scabinjury over right elbow, abrasion over right side of neck and multiplelinear abrasions over left fore arm on bolar posterior aspect andaccording to her, age of injuries were more than 24 hours. Inparagraph no.5, Doctor deposed that conclusion was made on thebasis of history and recent injuries on the person of the victim.Doctor concluded that on clinical examination, there were signs ofrecent forced sexual violence and about possibility of sexualintercourse. Above witness is initially cross-examined about conclusion ofossification test and age differences. She answered that in the case inhand, observed injuries were not caused within 24 hours and that {13} CRI APPEAL652 OF 2020scab can remains for 5 to 7 days. She admitted that abrasion injuriesare simple injuries and same can be sustained by etching and nailscratches and that such injuries can also be self inflicted. Sheadmitted that hymen can be torn due to long jumping, horse riding,bicycle riding etc. She denied that after wash, commission of sexualintercourse cannot be formulated. Then she is questioned abouttypes of abrasions. She admitted that in case of recent sexualintercourse, there could be redness and swelling. She admitted thatin the report exh.80, colour of injuries is not reflected. She flatlydenied that there were no marks of sexual violence. 12.On analyzing evidence of PW3 victim,, who is shown to bebelow 18 years of age, it appears that she has categorically narratedabout accused taking her away from her grandparents house onMotorcycle and while on the way, he halted the Motorcycle underthe garb of urination and thereafter, he lifted her and had forciblesexual intercourse with her. Inspite of being cross-examined, there isno serious cross about actual forcible sexual act and that much acthas not been rendered doubtful. Victim has promptly rushed homeand reported it to her grandparents and thereafter, to her brother,who was at Kukana, who then came to Warkhad and thereafter, they {14} CRI APPEAL652 OF 2020had approached Police. Therefore, taking such circumstances into consideration,though there is some delay in lodging FIR, however, considering thenature of offence and above circumstances, it cannot be said thatthere is inordinate delay and same to be fatal for prosecution. As discussed above, medical evidence is categorical andconclusion given by medical expert is about coming across signs offorcible sexual assault and possibility of sexual intercourse. Doctorhas also noted history and narrated that the name of appellant wasprovided. Therefore, taking into consideration the testimony of PW3victim and PW9 Dr.Supriya Jagtap, medical expert, offence isestablished. CONCLUSION13.After considering the submissions advanced by learned Counselfor appellant, this Court has not come across any point so worthy soas to doubt the prosecution evidence. No convincing ground is raisedto doubt the prosecution version. 14.After going through the impugned judgment, it is noticed thatlearned trial Judge has correctly appreciated both evidence as wellas law. Findings reached at are supported by sound reasons. It is the {15} CRI APPEAL652 OF 2020only view and conclusion that could emerge even on re-appreciationof evidence. No case being made out on merits, appeal deserves tobe dismissed. Accordingly, I proceed to pass following order : ORDER(i) Criminal Appeal No.652 of 2020 is dismissed. (ii) Fees of the learned Counsel appointed to represent respondent no.2 is quantified at Rs.10,000/- (Rs.Ten thousand only) to be paid through High Court Legal Services Sub-Committee, Aurangabad. ( ABHAY S. WAGHWASE ) JUDGE SPT