High Court

Legal Reasoning

( 1 ) crap719.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 719 OF 2023Balaji s/o. Girmaji Warkare..AppellantAge. 45 years, Occ. Labour,R/o. Baliramapur,Tq. & Dist. Nanded.VERSUS1.The State of Maharashtra..Respondents2.XYZMs. Ashwini A. Lomte, Advocate (appointed) for the appellant.Ms. Chaitali Choudhari-Kutti, APP for respondent-State.Mr. V.B. Dhage, Advocate for respondent No.2.CORAM:KISHORE C. SANT, J.RESERVED ON:22.08.2024PRONOUNCED ON:26.11.2024J U D G M E N T :-01.This appeal arises out of judgment and order passed by thelearned Special Judge (POCSO), Nanded in Special Case No.89 of 2021dated 05.07.2023. By way of the impugned judgment and order the TrialJudge held the appellant-accused guilty of the offence punishable under ( 2 ) crap719.23sections 9(m) and 9(n) of the Protection of Children from SexualOffences Act [for short “POCSO Act”] and sentenced him to sufferrigorous imprisonment for five years and to pay fine of Rs.3000/-, indefault, to suffer simple imprisonment for three months for each of theoffences. The accused came to be acquitted for the offence punishableunder section 376(3), 376-AB , 376(2)(f), 376 (2)(i)(j), 323 and 506 ofthe Indian Penal Code [for short “IPC”] and section 3 punishable undersection 4 and under sections 5(m) and 5(n) punishable under section 6of the POCSO Act.STORY OF THE PROSECUTION02.On 16.06.2021 the mother of the prosecutrix lodged thecomplaint against the accused for the offences under the POCSO andIPC. Allegations are that in the night between 14.06.2021 and15.06.2021 the accused committed sexual assault on the prosecutrixaged 9 years who happens to be his daughter. It is stated that ataround 3.00 a.m. the accused woke up the informant and started beatingher for no reason saying that he does not need her company and droveher out of the room. The complainant therefore went out of the home.Being night hours, she sat in the courtyard and her husband and the ( 3 ) crap719.23prosecutrix were sleeping in the room. At 3.30 a.m. the prosecutrixshouted and came running out of the house. When asked, theprosecutrix told that the accused pressed her chest, removed her pantyand inserted his fingers in her private part. He threatened her not todisclose the incident to anyone. He also told her that she is not herbiological daughter. The complainant telephoned her maternal cousinsister and went to her. Thereafter the incident was reported to thebrother of the complainant. He advised them to go to the hospital. Thecomplainant, therefore, took the prosecutrix to the hospital with her.From the hospital, they were advised to go to police station. Thus, theywent to police station, Vajirabad. The police asked them to go to PoliceStation, Nanded. It is upon that both the prosecutrix and the informantwent to the police station at Nanded. The police took the complaint inwriting and again referred the victim to medical examination. Theoffence came to be registered bearing No. 387 of 2021. After recordingof the complaint, the investigation started. The clothes of the accusedand the prosecutrix came to be seized. The statement of the prosecutrixand the informant came to be recorded under section 164 of the Cr.P.C.The charges came to be framed against the accused. The accusedclaimed innocence and wanted to face a trial. ( 4 ) crap719.23GIST OF EVIDENCE BY THE PROSECUTION.03.The prosecution in its support, examined seven witnesses toprove the guilt of the accused; whereas the accused did not put-forth anyevidence in his defence. His defence is of total denial. 04.PW-1 – the complainant and mother of victim narrated theincident as alleged and as reported by her to the police. PW-2 is thevictim. PW-3 – Sukhdeo Prabhakar Jondhale is the punch of spot andseizure panchanama. PW-4 – Dr. R.D. Awasare is the doctor who provedmedical report of the victim. PW-5 – Govind Balaji Kendre is theHeadmaster of the school, where the victim was taking education. Thiswitness proved application preferred by the complainant for admission ofthe victim in the school. He also further proved the copy of leavingcertificate. PW-6 is Ganesh Holkar, who recorded the FIR. He proved theletter written by police station to the Municipal Council Hospital. PW-7Asad Chandpasha Shaikh is the Investigating Officer.05.After closing of the evidence, trial Court examined theaccused under section 313 of the Cr.P.C. The accused took a defencethat the complainant – his wife wanted a divorce from him and since he ( 5 ) crap719.23was not ready to give divorce, he is falsely implicated at the hands ofmother of the prosecutrix. He thus says, because of her other witnesseshave deposed falsely against him.06.PW-1 - Sujata narrated the whole incident in her deposition.In her cross-examination, it was suggested that because she wanteddivorce from the accused, she has falsely implicated the accused in thiscrime. It is also tried to be brought on record that there is no proof ofage of the victim. It is taken that this witness is illiterate and does notknow the reading and writing. It is also taken that while admitting theprosecutrix to the school she had not submitted any documents showingthe date of birth of the prosecutrix. Further, it is tried to suggest thatwhen the accused was sleeping in the room, even the brother of theprosecutrix was also sleeping in the room, but he did not see anything ornoted anything of the incident. 07.PW-2 is the prosecutrix. She deposed that she goes to schooland is studying in 6th standard. She told about beating the complainantby the accused and therefore the complainant went out of the house.She stated that after the mother went out of the house within fewminutes, the accused inserted his three fingers in to her vagina. She ( 6 ) crap719.23immediately removed those fingers. He threatened her not to discloseincident to anyone. He also said that the victim is not his daughter. Sheimmediately came out of the house and told the incident to her mother.She deposed that PW-1 contacted her sister and thereafter they went tothe hospital. From there, as per doctor’s advice they went to policestation and again thereafter from police station they went to hospitalagain for medical examination. She identified her frock and the towelworn by the accused. In the cross-examination it is taken that she wasadmitted by her mother to the school. On the day of incident, there wasno quarrel between the husband and wife. She accepted that she did notraise any shout when her legging was removed by the accused. Onlyafter removing the legging she went out and shouted. The incident wasnot told by her to any neighbour or any other person. 08.Next witness PW-3 – Sukhdeo Jondhale, the punch, workingin the Municipal Corporation, Nanded, told about drawing of panchanamaand how he was called by police to police station. It is taken in his cross-examination that he had acted as punch also on earlier occasion also forthe police. He proved the panchanama of the spot. 09.PW-4 is Dr. R.D. Awasare, who was working as a Medical ( 7 ) crap719.23Officer since 2007. On 16.06.2021 he was working as ResidentialMedical Officer and was present in the Government Hospital, Vishnupuri,Nanded. He deposed that the victim was brought to the Hospital by alady police constable from Gramin Police Station. He examined thevictim. His colleague was there, namely, Dr Prachi Koli. The consent wasobtained by him from the victim and mother of the victim forexamination of the victim. He deposed that on physical examination, hefound no surface injuries on the person of the victim. On genitalexamination, he found multiple old healed hymenal tears. He collectedsample of the blood. He gave the finding that possibility of sexualassault cannot be ruled out. The samples were collected and sent forforensic science laboratory examination. He, thereafter, submitted thereport. He proved the said report. In the cross-examination he acceptedthat there were no external injuries found to the victim. He denied thesuggestion that there were no signs of penetrative sexual assault on thevictim. He also denied that there was also no evidence of non-penetrative sexual assault. The injuries on the genital part were notfresh injuries. The genital organs of the victim were in normal conditionexcept old healed hymenal tears. The opinion was not a confirmedopinion. ( 8 ) crap719.2310.PW-5 Govind Kendre, Head Master working in Zilla ParishadSchool, village Ijali, deposed that the victim was student of his schooland she was admitted in the first standard. The application was filled bythe complainant for admission of the student. He had brought originaladmission register with him. From the record he deposed that the dateof birth of the victim was 07.10.2010. All these original documents wereproved by him. In the cross-examination, he accepted that theadmission form is not in the hand-writing of mother of the victim as shewas not much educated, however, it only bears her signature. He couldnot tell as to who filled in the admission form. At the time of admission,no birth certificate of the victim was given. The only document that wasgiven was Nirgam Utara (Leaving Certificate) from the earlier school.The entry about the birth date was taken on the basis of list ofanganwadi and on the basis of Adhar card as it was mentioned by themother of the victim.11.PW-6 Ganesh Holkar was attached to the police station asPSI. After registration of crime, the investigation was handed over tothis witness. He arrested the accused. He identified the accused. Herequested for two panchas from the office of ZP by giving a letter.Thereafter, he went to the place of incident along with punchas and the ( 9 ) crap719.23informant. The panchanama was drawn. He proved the spot panchanamaand seizure panchnama. He deposed that the clothes were seized andwere sent to the Forensic Laboratory. Thereafter, he referred the victimfor medical examination. In the cross-examination, he accepted that thedate of birth is not mentioned in the first information report. He did notrecord the statement of the person from the school from where hecollected the Nirgam Utara. He did not investigate the place of birth ofthe victim, from the hospital where she was born. In the section 164statement also there is no date of birth mentioned. He accepted that hedid not record statement of the victim except the daughter of thecomplainant and the accused, as they were not residing with theinformant. The incident took place in the room consisting of 8 x 8 ft insize. It was the only room that was used for all the purposes. He didnot record the statement of brother of the victim. He accepted thatthere was no dispute between husband and wife i.e. the complainant andthe accused. 12.The last witness is PW-7 Asad Chandpasha Shaikh, PSI, whowas attached to Nanded Gramin Police Station. He was Duty Officer on16.06.2021. On receiving the complaint he registered the crime.Nothing much is taken from his cross-examination. ( 10 ) crap719.23SUBMISSIONS BY THE ACCUSED.13.The learned Advocate for the appellant submits that theprosecution has not established the guilt of the accused beyondreasonable doubt. The age of the victim is not proved by theprosecution. The statement of the natural witness i.e. brother Sohamwho was in the room at the time of alleged incident is not recorded. Noinjuries were found on the person of the victim to show that there waspenetration. The evidence of the victim and the mother thus requires tobe discarded. The medical evidence clearly shows that no surfaceinjuries were found on the body of the victim. The incident alleged is of15.06.2021. The FIR is lodged on 17.06.2021. There is no satisfactoryexplanation for the said delay. PSI Munde, who recorded the FIR is notexamined. The accused in his 313 statement has taken defence thatsince the informant wanted divorce from the accused, she has falselyimplicated the accused. Sufficient case is shown for false implication.Though the trial Court has rightly acquitted the accused from the offencepunishable under section 376 of the IPC and section 3 punishable undersecrtion 4 and sections 5(m) and 5 (n) punishable under section 6 of thePOCSO Act, however, it has failed to appreciate that even for other ( 11 ) crap719.23sections there is no sufficient evidence on record. The CA report doesnot support case of the prosecution. To bring the offence under section9(m) of the POCSO Act, it was necessary for the prosecution tospecifically prove the age of the victim. Even ingredients of section 9(n)of the POCSO Act are not attracted. She relied upon judgment in thecase of Mangesh Wadekar Vs. State reported in AIRONLINE 2023Bom. 312.SUBMISSIONS BY THE PROSECUTION.14.The learned APP vehemently opposed the appeal. Shesubmits that the accused is father of the victim. He has committed suchheinous act with his own daughter by driving his wife out of the house.The evidence of PW-1 and PW-2 is consistent and corroborative. In themedical evidence it has come that there were old healed injuries to thehymen. It has come on record that the victim was in 6th standard at thetime of the incident. The mother has categorically told the date of birthof the victim as 07.10.2010. There is immediate disclosure of theincident by the victim to her mother. There is Nirgam Utara (leavingcertificate) wherein the date off birth is mentioned. She further submitsthat in the cases like this, the sole testimony of the victim if found ( 12 ) crap719.23reliable can be taken as sufficient evidence to convict the accused. Inher support, she relied upon judgment of this Court at Principal Seat inthe case of Mohd. Khatir Shaikh alias Murgiwala Chacha Vs. Stateof Maharashtra and Anr. - Criminal Appeal No.917 of 2022 Shethus prays for dismissal of the appeal.15.The learned Advocate Mr. Dhage for respondent No.2 adoptedarguments of learned APP. He submits that in this case inspite of therebeing clear evidence on record, the learned Trial Court has committedillegality in acquitting the accused from the offence punishable undersection 376 off the IPC and section 3, 5(m) and 5(n) of the POCSO Act.He prays for dismissal of the appeal filed by the accused.16.The learned Advocate for the appellant in rebuttal arguedthat though the School Leaving Certificate shows date of birth as07.10.2010, it has come on record in the evidence of the Headmasterthat the date was taken on information by someone else than the motheror father of the victim. In the case of Shaikh Khatir (supra), shesubmits that there was CA report that was proved by the prosecution andin that view the judgment was passed. She again emphasized that thecousin Soham and his mother were not examined by the prosecution. ( 13 ) crap719.23Soham would have been the best witness for the prosecution and still heis not examined. She submits that the judgment relied upon by thelearned APP are not applicable to the facts of the present case.DISCUSSION - CONSIDERATION17.After having gone through the record and the evidence, it hasclearly come on record from the evidence of PW-1 and PW-2 that in thenight of 15.06.2021, some incident took place. The victim immediatelycame out of the house and reported the incident to her mother PW-2. Itwas 03.30 a.m. in the morning. It is but natural that PW-2 did notimmediately go to police station. It has come on record that that she iseducated woman. It is obvious that she waited for some time tillmorning. As she could not have courage to go to police station alone,she went to her sister’s house first. It is after meeting her sister, shewent to police station. This Court finds that this conduct cannot be saidto be unnatural. The delay in lodging an FIR in this case cannot be saidto be fatal to the case of the prosecution. So far as age is concerned, itis stated to be 9 years at the time of the incident. From the schoolrecord, it is brought on record that the date of birth recorded is07.10.2010. The victim was studying in 6th standard. There is no ( 14 ) crap719.23serious challenge by the accused as regards the age of the victim. ThisCourt finds that it can be safely taken that the age of the victim wasbelow 12 years at the time of the incident. The learned Trial Court,therefore, has rightly taken the age of the victim as 9 years at the timeof the incident. The trial Court has also rightly accepted the case of theprosecution that some incident took place in the night. No fault can befound with this finding. As regards the offence is concerned, this Courtfinds that evidence of the prosecution is short to prove the offence undersection 376 of the IPC and section 5(m) and (n) of the POCSO Act.Though it is tried to be argued by respondent No.2 that acquittal in boththe sections is not correct, this Court finds that the learned Trial Courthas rightly appreciated evidence in that regard and rightly acquitted theaccused under those sections. 18.In the case of Mangesh Wadekar (supra), it was recordedthat there was no opinion given by the Doctor as to the recent sexualintercourse. The opinion shown in that case that in view of fleshyhymen, vaginal penetration cannot be ruled out. In that case it was notbrought on record from the evidence of Doctor that there was any injuryor tear or any laceration or abrasion on the private part of the victim.There was no bleeding from the private part. The evidence of the victim ( 15 ) crap719.23and her sister in that case about bleeding from private part wasconsidered to be improvisation and exaggeration. 19.So far as judgment cited by learned APP is concerned, in thecase of Shaikh Atiq Shaikh Khadar Vs. The State of Maharashtraand Anr., Criminal Appeal No. 195 of 2024, there was no properdescription given by the victim of the offence. It was held that the victimwas of six years of age, it is not expected of her to give properdescription as expected from any adult person. The clothes of the victimwere not seized in that case. There the accused could not give properexplanation as to how his semen was found on the clothes of the victim.In that case the Court acquitted the accused of the offences under thePOCSO Act. 20.In the case of Ganesan Vs. State represented through itsInspector of Police, reported in AIR 2020 SUPREME COURT 5019,the Hon’ble Apex Court has held that when sole testimony of the victim isreliable and supports the prosecution, the same is sufficient to convictthe accused.21.In the case of Attorney General for India Vs. Satish and ( 16 ) crap719.23Anr. reported in (2022) 5 SCC 545, the Hon’ble Apex Court hasconsidered the provisions of sections 7 to 12 and 29 and 30 of thePOCSO Act and held that any act done with sexual intent involvingphysical contact without penetration would fall in the definition ofphysical contact under sections 7 and 9 of the POCSO. Section 13 ispresumption under the POCSO Act. In the present case the accused hasnot rebutted the presumption under section 13 of the POCSO Act. 22.Considering all the above, this Court finds that theprosecution has clearly established that the incident has taken place inthe night. The victim was minor below 12 years of age. There wassexual assault at the hands of the accused. The Trial Court has rightlytaken all these points against the accused. In absence of sufficientevidence, the Trial Court rightly acquitted the accused from the offencepunishable under section 376 of the IPC and sections 3, 5(m) and (n) ofthe POCSO Act. 23.Before parting with the judgment, this Court appreciatesefforts taken by the learned Advocate appointed for the appellant by thisCourt. ( 17 ) crap719.2324.This Court finds that no case is made out calling forinterference in the appeal. The appeal, therefore, deserves to bedismissed. In view of the discussions above, following order :-ORDER(I)The appeal stands dismissed.(II)The judgment and order passed by the learned SpecialJudge (POCSO), Nanded in Special Case No.89 of 2021dated 05.07.2023 is hereby confirmed.(III)Consequences to follow.(IV)The professional fees of learned Advocate Ms. AshwiniA. Lomte appointed for the appellant is quantified atRs. 15,000/- (Rupees Fifteen Thousand) to be paid bythe High Court Legal Services Sub-Committee, HighCourt of Bombay, Bench at Aurangabad.[KISHORE C. SANT, J.]snk/2024/nov24/crap719.23