High Court
Facts
1 Cr.Appeal 371.2017IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.371 OF 2017.The State of Maharashtra through,Police Station, M.I.D.C., Latur,District – Latur.. AppellantVersus.Mahasagar Bapurao Jadhav,Age: 23 years, Occu.: Teacher,Resident of – Taka, Taluka – Ausa,District – Latur.. Respondent(Orig. Accused)…APP for Appellant: Mrs. Chaitali Choudhari - KuttiAdvocate for Respondent: Mr. Dhananjay Shide h/f. Mr. Shashikiran N. Patil…CORAM:ABHAY S. WAGHWASE, J.Reserved On:14.06.2024Pronounced On:20.06.2024JUDGMENT:1.Getting dissatisfied by the judgment and order of acquittaldated 18.06.2016, passed by the learned Additional Sessions Judge-2,Latur, in Special Case (POCSO) 17 OF 2015, by which presentrespondent, who was charged and tried for offence under Section 3(b)read with section 4 of the Protection of Children from Sexual OffencesAct, 2012 (POCSO Act) and sections 323, 504, 506 of the Indian PenalCode (IPC) came to be acquitted, State has preferred instant appeal. 2 Cr.Appeal 371.2017IN BRIEF FACTS LEADING TO TRIAL ARE AS UNDER 2.PW-3 victim, a boy, studying in 6th standard, who wasresiding in a hostel namely Vishva Vidnyan Gurukul Hostel since he wasin 3rd standard. His parents lived at Latur.3.On 17.10.2014, while the victim-boy was preparing for hisfirst term examination, around 11:30 p.m. present respondent, acaretaker of the hostel, entered the boy’s room and asked him to fetchwater. The boy informed that he was afraid to go out. Again after half anhour, the respondent entered his room, switched off the light, disrobedthe boy and inserted finger in boy’s anus. The boy resisted, but stillrespondent allegedly took him to the first floor and again repeated theabove act and threatened the boy to keep silent as he has to continue toremain in the hostel.For Diwali vacations the boy went back to his house. Whilethe vacations were over and it was time to return back to the academicsand the hostel, informant father discussed with him about his departure.That time victim boy declared that he does not want to go back to thehostel and started weeping. On enquiry, the boy narrated the incidentwith him at the hands of respondent. Therefore, father initiallyapproached the hostel authority and questioned them and subsequently 3 Cr.Appeal 371.2017approached police and lodged report Exhibit-27, on the basis of whichcrime was registered. After investigation respondent was chargesheeted and triedbefore learned Additional Sessions Judge-2, Latur. At trial prosecutionexamined as many as 9 witnesses and relied on documentary evidence.Defence denied to lead evidence and pleaded innocence and falseimplication.After appreciating the prosecution evidence, learned trialjudge reached to a finding that the prosecution failed to prove thecharges by leading cogent, reliable evidence and, thereby, acquitted theaccused from all the charges, i.e. under sections 323, 504, 506 of IPC andSection 3(b) read with section 4 of the POCSO Act.It is the above judgment that is questioned by the State onvarious grounds raised in the appeal memo.SUBMISSIONSOn behalf of the learned APP:4.Appraising this court about the nature of charge, learned APPwould strenuously submits that respondent no.2 was both a teacher aswell as a caretaker of the boys hostel. That, PW-3 victim was a resident ofsaid hostel. Unfortunate incident had taken place with the boy on thenight of 17.10.2014. Finding the boy alone in the night time, learned APP 4 Cr.Appeal 371.2017pointed out that, his own teacher - respondent, misbehaved with the boyand indulged in act of inflicting sexual assault. That, it was a pervert actby respondent not once but twice. Learned APP would submit that, therespondent accused has victimised his own pupil whom he was expectedto take care. Being a teacher and a caretaker, efforts by the minor boy toresists went futile. It is pointed out that accused threatened todiscontinue his residential stay in the hostel and, therefore, the child didnot inform others and the owner of the hostel or even the uncle, who hadcome to pick him up. Learned app pointed out that the child was understress and fear and, therefore, he also did not promptly report his fatheron reaching home for diwali vacations. She pointed out that only when itwas time to go back to the hostel, for continuation of academics of thesecond term arrived, and when preparations were made to send him backto the hostel, the child made disclosure to his father. According to learnedAPP, because of peculiar nature of crime inflicted on him, there was delayin reporting and according to learned APP in cases of such nature, delayis insignificant. However, according to her, such aspect unfortunatelyprevailed and weighed over the opinion drawn by the learned trial judge.5.Learned APP further submitted that father approached andquestioned the respondent as well as hostel owner. Respondent fled aftervisit of father. Therefore, his such conduct confirms his involvement. She 5 Cr.Appeal 371.2017pointed out that maternal uncle also deposed. Moreover, according to herthe child has also testified in the witness box. His testimony was inspiringconfidence and, therefore, according to her, there was clinching andoverwhelming evidence confirming and establishing the pervert act of theaccused. Prosecution had established all the charges but unfortunately asthere is improper appreciation of evidence and law, it is her submissionthat trial ended up in acquittal. In the light of above submissions, shestates that such judgment should not be allowed to be sustained andrather should be set aside by allowing the appeal. On behalf of respondent - accused:6.Pleading innocence and alleging false implication learnedcounsel for respondent pointed out that there is no dispute that the boywas residing in the hostel and that there is no further dispute thatrespondent was appointed as a teacher in the hostel. However, accordingto him, there was no such episode of alleged sexual assault. He pointedout that false and fabricated story has been set up only because the boywas caught redhanded watching of obscene clips on mobile of other boyand was reprimanded and was directed to call father to the hostel afterdiwali vacations. Only because of such episode, false story has beenconcocted and he is tried to be involved. He pointed out that mere fleeing
Legal Reasoning
12 Cr.Appeal 371.201717.Here crucial evidence is that of victim followed by that of hisfather informant and his uncle. Unfortunately, even when it wasmandatory, no steps seems to have been taken to get the victim boymedically examined. Be it so. There is no dispute that victim was put upin a hostel namely Vishva Vidnyan Gurukul Hostel owned and run byPW-7 Ramanand Khake-Patil. There is no serious challenge that boy wasstaying in the hostel. However, now it is to be seen as to whether there issubstance in the accusation of accused victim boy being subjected tosexual assault with sexual intent by his so called rector or caretaker -respondent.18.On carefully evaluating the evidence of victim PW-3 it isemerging that according to him around 11:30 p.m., on 17.10.2014, whilehe was studying, present respondent entered his room, asked him tobring water. He told him that he was feeling afraid. He deposed thataccused went away but returned back after half an hour. He switched offthe light removed the boys pant and inserted his finger in the boys anus.The boy started crying. Then according to him the accused took him tothe upper floor and tore his clothes and again inserted his finger sayingthat he has to again come back to the hostel. Next day his uncle cameand took him home. He did not reported the incident to his parents andfell ill. After diwali vacations were over, when his father was arranging to 13 Cr.Appeal 371.2017take him back to the hostel he informed his father that he does not wantgo to the hostel and on being asked the reason, he reported the incidentof which his father lodged report. He deposed that police had madeinquiries with him. He also identified accused in the court.19.While under cross victim boy answered that the hostel hastwo floors. There are 4 to 5 teachers and 1 attendant. He answered thatall use to reside on ground floor. He answered that he was residing in thehostel since he was in 3rd standard. He answered that there is waterfacility on both the floors. He denied hostel staff to be strict anddisciplined. He admitted that if student commits mischief teachers use toreprimand them and punish them. He denied that two three days priorto the diwali holidays accused had slapped him questioning him what hewas doing in the dark and he was also scolded for coming late. Heanswered that there is no room number in which he stayed. He furtheranswered that there are 7 to 8 rooms for the student. In hall 10 studentsstays and in each room there were 4 to 5 student. He is unable to givenames of his inmates. He answered that he reported the incident to hisfather when he was asked to come to Latur. He further answered that hedisclosed to his father about the incident 2 to 3 days after diwali holidayswere over. He denied that his father took him to the police station. Heanswered that police came to his uncle’s place at Latur and made inquiry 14 Cr.Appeal 371.2017with him. That is, after 8 days of the diwali holidays. He answered thatpolice noted his name. He further answered that he did not disclosepolice that he had disclosed the incident to his father, which allegedlywas at the instance of accused. He volunteered that police merely askedhis name and parents name. He categorically answered that he did notstate anything about the incident at the instance of accused to the police.He answered that the torn pant was lying in the hostel itself. He deniedthat accused warned him to bring his father to the hostel. He also deniedthat he was apprehending about his removal from the hostel. He furtheranswered that after reporting to his father his father alone went to Latur.20.Now, let us appreciate the evidence of informant fatherPW-2, who is examined at Exhibit 26. He deposed that his son wasstudying in 7th standard and studying in Sudarshan Vidyalaya and stayingin hostel. He deposed that during diwali holidays, last year his son camehome but was silent. After holidays his son refused to go back to thehostel and started crying and on inquiry told that on 17.10.2014,respondent came to his room switched the lights put finger in his anus,took him to the upper floor, tore his pant and again put finger in theanus. That, when his son crying accused threatened him that he has tocome back to the hostel. Father deposed that hence he visited the hostel 15 Cr.Appeal 371.2017on 13.11.2014, and, thereafter, he approached MIDC Police and lodgedreport - Exhibit 27. 21.Father has been cross examined and the relevant cross is asunder:He is unable to state number of rooms and number ofstudents in the hostel at that time. He answered that hostel was availablefor student from 5th standard to 10th standard. He admitted that he use tomet his son once in a fortnight or once in a month. He is unable to givenames of roommate of his son. In para 5, he stated that his son came fordiwali vacations on 18.10.2014 but told about the incident after 26 to 27days. He admitted that his son is not accompanying him during visit. Heanswered that as he was frightened, he is unable to state what wasreported and what was written in the complaint. He answered that as hewas frightened he did not mentioned in the complaint that on furtherinquiry by him his son told that on 17.10.2014 accused came and askedhim to bring water and when his son said that he was afraid accusedwent away.22.He answered that he had lodged the FIR at between 12:00noon to 01:00 p.m. He answered that, 4 to 5 days after the FIR, again hewas called to police station to give statement but even according to himat the time he was frightened and he could not state facts which were 16 Cr.Appeal 371.2017missed in the FIR. He answered that his son has brought the torn pantback to home. 23.In further cross father denied knowing whether 2 to 3 daysprior to 17.10.2014 respondent accused had slapped his son questioninghim what he was doing in dark and he also denied knowing whether hisson was asked to bring him after diwali and had further warned that if hefails to bring he would take action. Rest is all denied.24.Uncle who brought the boy home before diwali vacations isalso examined as PW-4 and according to him, he found victim nervousand in spite of being asked the reason the boy did not informed. Heclaims that he received phone call from PW-2 informing about boy beingsexually abused and so he accompanying PW-2 to the hostel. He claimsthat after returning from there he questioned the boy and the boyreported the incident which had occurred with him. Almost all questions put to him in cross are denied by thiswitness.25.PW-7 Hostel Owner, stated that accused was working in theirhostel where 32 students were admitted. According to him accused wasthe caretaker of the hostel. He deposed that, on 11.11.2014, father of the 17 Cr.Appeal 371.2017victim reported misbehavior with his son and even beat accused who ranaway.26.Rest of the witnesses are spot punch who did not support,P.S.O. and I.O. respectively.27.What can be culled out from above substantive evidence ofvictim is that according to him, on 17.10.2014, around 11:30 p.m., whilehe was studying accused came to his room, inserted finger in his anusand again took him on the first floor and repeated the act. But whileunder cross victim has admitted that there are 4 to 5 boys in each room.However, none of the other boys are shown to be present there. It is notgetting clear where other roommates went. Surprisingly, child was unableto state the names of his roommates, in spite of claiming that he wasresiding in the said hostel from 3rd standard. In cross he had stated thathe even did not report the incident with him to police when they came tomake inquiry with him. Though his statement was shown to be recorded,surprisingly prosecution in the trial court failed to get it exhibited byconfronting to the victim. On the contrary, the child in cross has verycategorically stated that except asking his name and his parents namenothing was asked by police. Therefore, apparently, there is breach ofmandatory provisions of POCSO Act of not noting the statement of thevictim. The boy was a student and was capable of giving statement but 18 Cr.Appeal 371.2017still though statement is shown to be recorded, it is not got exhibited soas to consider it in appreciation of the evidence. 28.Specific defence of accused is that the boy was caught whilewatching obscene clips and was reprimanded and was asked to bringfather to the hostel and on failure there would be action taken againsthim. Hence, defence came with a case that out of fear of being caught forthe above episode and apprehending action, concocted story has been setup. It is noticed that the entire tenor of the cross to the boy is in suchbackdrop, though he has denied the same. 29.Even on appreciation of father’s evidence, it is evident thathe has been allegedly reported by his son just after diwali vacations wereover and it was time to go back to the hostel. The child was brought fromthe hostel by uncle on 18.10.2014 itself. But in F.I.R., PW-2 informantfather stated that immediately after coming home for diwali vacations hisboy reported about the incident but father claims to have visited hostelon 13.11.2014 to question the accused and the hostel authorities.However, the hostel owner PW-7 deposed about visit of father on11.11.2014. Therefore, exactly on which day informant went to questionis not clear. Even otherwise, incident of 17.10.2014 is finally reported on13.11.2014. Apparently, when in FIR occurrence was reportedimmediately after coming home on 18/19.10.2014, why it took so long 19 Cr.Appeal 371.2017that is almost a month, for father to report the occurrence to the police isnot satisfactorily explained by the father. Father has shown ignoranceabout alleged incidences of his son being reprimanded for watchingobscene clips and he himself is being called by accused caretaker aftervacation. Father has not denied that said episode was false one, rather hemerely expressed his ignorance. PW-7, in para 2 of the cross, admittedthat 2-3 weeks prior to the incident accused had made complaint to himthat the victim used to view obscene films on the mobile of the otherstudents and that time he himself has instructed accused to call victim’sparents after diwali vacations.Testimony of uncle is of no avail as he has merely broughtthe boy home and apparently he was not informed by the boy at anypoint of time earlier. 30.Consequently, here age of victim is not proved. Secondly,there is no medical evidence and no independent corroboration. Here,there is child witness account. Law mandates in cases of grave nature toseek corroboration, as there is possibility and children being prone andsusceptible to tutoring, as a caution, in peculiar cases, it is desirable thatthe court should look for corroboration. Here peculiar circumstances ofthe case coupled with the fact of inordinate delay in reporting, calls forseeking corroboration. Apparently here there is none. In the considered 20 Cr.Appeal 371.2017opinion of this court in light of specific defence of false implication raisedby accused in the backdrop of boy being caught and reprimanded forwatching obscene material and father being summoned to hostel,possibility of false implication cannot be completely ruled out. For abovereasons, respondent deserves benefit of doubt.31.That apart, there is apparent carelessness on the part ofinvestigating machinery and prosecution in not adhering to the procedurelaid down in the POCSO Act, even when the case was of minor beingvictimised. Therefore, above lapses and lacunas contribute to theunreliable and uncorroborated testimony of victim, thereby rendering thecase of prosecution weak, fragile and unworthy of complete reliance.Even in the considered opinion of this court , case has not been proved byprosecution beyond reasonable doubt. It is cardinal principle of criminaljurisprudence that graver the offence , stricter is the requirement ofproof. Here it is not so.32.Perused the judgment under challenge. In the consideredopinion of this court the findings recorded by the learned trial judge arein consonance with the quality of evidence on record. How and in whatmanner there is improper appreciation or failure to apply law as is triedto be put forth in appeal has not been demonstrated. With such quality ofevidence, the view taken by the learned trial judge can be said to be thepossible view. Keeping the settled principles to be applied in mind, while 21 Cr.Appeal 371.2017dealing with the appeal against acquittal, there is no reason to takedifferent view or disturb the findings reached at by the learned trialjudge. No case being made out on merits. I proceed to pass followingorder:ORDER The criminal appeal stands dismissed. [ABHAY S. WAGHWASE, J.]marathe
Arguments
6 Cr.Appeal 371.2017out of fear of being beaten, as is tried to be put-forth, would not itself besufficient to infer his guilt or involvement. 7.Learned counsel pointed out that at the outset prosecutionfailed to established the age of the boy as according to him it was sinequo non in view of charge under section POCSO Act. He pointed out thatprosecution failed to adduce single peace of evidence about victim boy tobe a minor. He seeks reliance on the judgment of this court in the case ofDinesh @ Nitin Ukandrao Khandate Vs. State of Maharashtra, in CriminalAppeal No.97 of 2020, dated 17.12.2020, reported in 2021 ALL MR (Cri.)313. 8.Taking this court through testimony of victim PW-3, hepointed out that answers given by the victim clearly shows that he hasnot reported about the alleged occurrence with the police. That boy’sstatement has not been recorded, which was mandatory in view ofprovisions of POCSO Act and it is evident from the answers given by theboy in cross. Learned counsel further pointed out that prosecution did notget statement of victim got exhibited. Learned counsel pointed out thatthere is inordinate delay in reporting the alleged incident and there is noplausible explanation for the said delay. Therefore, it is his submissionthat entire case of prosecution had collapsed. According to him, in spiteof alleged incident taking place on 17.10.2014 and in spite of boy to be 7 Cr.Appeal 371.2017brought from hostel by uncle, there was no reporting by the boy of suchserious incident. Learned counsel took this court through the FIR andwould submit that when the boy came from diwali vacation the boy hadreported the incident but even immediately at that time itself there wasno complaint or reporting. Learned counsel pointed out that father -informant is contradicting himself, as in witness box he deposed aboutboy informing about the incident after diwali vacations were coming toan end and it was time to go back to the hostel. Therefore, according tothe learned counsel there is immense unexplainable delay in lodgingreport. Consequently, it is submission of learned counsel for respondentthat false afterthought and concocted version is reported only becausevictim boy was caught watching obscene clips and reprimanded andfather was summoned to hostel. 9.Lastly, learned counsel submitted that the above evidencewas correctly appreciated by the learned trial judge. As version ofcomplainant and victim was not inspiring confidence and as charges werenot proved beyond reasonable doubt, he submitted that learned trialcourt correctly acquitted the accused and, as such, he prays to dismiss theappeal for want of merits. 8 Cr.Appeal 371.2017ANALYSIS10.Here present respondent was chargesheeted for commissionof offence under sections 3(b) read with section 4 of POCSO Act andsections 323, 504, 506 of IPC. 11.For proper comprehension and ready reference, the aboveprovisions of the POCSO Act are reproduced as under:“3. Penetrative sexual assault.- A person is said to commit“penetrative sexual assault” if-(a)...(b)he inserts, to any extent, any object or a part of thebody, not being the penis, into the vagina, the urethra oranus of the child or makes the child to do so with him or anyother person; or”“4.Punishment for penetrative sexual assault.-(1)Whoever commits penetrative sexual assault shall bepunished with imprisonment of either description for a termwhich shall not be less than ten years but which may extendto imprisonment for life, and shall also be liable to fine.(2)Whoever commits penetrative sexual assault on a childbelow sixteen years of age shall be punished withimprisonment for a term which shall not be less than twentyyears, but which may extend to imprisonment for life, whichshall mean imprisonment for the remainder of natural life ofthat person, and shall also be liable to fine.(3)The fine imposed under sub-section (1) shall be justand reasonable and paid to the victim to meet the medicalexpenses and rehabilitation of such victim.” 9 Cr.Appeal 371.201712.Before reappreciating and reanalysing evidence ofprosecution in trial court, present proceedings being appeal arising out ofacquittal, it would be desirable to deal and discuss the settled legalposition and principles enunciated by the Hon’ble Apex Court, which areto be borne in mind while dealing with an appeal against acquittal.LEGAL POSITION13.Here is the appeal by the State against judgment and orderof acquittal. Before proceeding to re-appreciate the evidence, it would beappropriate to give brief account of settled legal position while dealingwith appeal against acquittal. Recently, the Hon’ble Apex Court in the case of Ravi Sharma vState (Government of N.C.T. Delhi and another), 2022 LiveLaw (SC) 615has considered and discussed the law settled by the Hon’ble Apex Courtin the case of Chandrappa v. State of Karnataka, (2007) 4 SCC 415,which are as under : “42. From the above decisions, in our considered view, the followinggeneral principles regarding powers of the appellate court while dealingwith an appeal against an order of acquittal emerge:(1) An appellate court has full power to review, reappreciate andreconsider the evidence upon which the order of acquittal is founded.(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction orcondition on exercise of such power and an appellate court on the 10 Cr.Appeal 371.2017evidence before it may reach its own conclusion, both on questions of factand of law.(3) Various expressions, such as, “substantial and compelling reasons”,“good and sufficient grounds”, “very strong circumstances”, “distortedconclusions”, “glaring mistakes”, etc. are not intended to curtail extensivepowers of an appellate court in an appeal against acquittal. Suchphraseologies are more in the nature of “flourishes oflanguage” to emphasise the reluctance of an appellate court to interferewith acquittal than to curtail the power of the court to review the evidenceand to come to its own conclusion.(4) An appellate court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of the accused. Firstly, thepresumption of innocence is available to him under the fundamentalprinciple of criminal jurisprudence that every person shall be presumed tobe innocent unless he is proved guilty by a competent court of law.Secondly, the accused having secured his acquittal, the presumption of hisinnocence is further reinforced, reaffirmed and strengthened by the trialcourt.(5) If two reasonable conclusions are possible on the basis of the evidenceon record, the appellate court should not disturb the finding of acquittalrecorded by the trial court.”14.Likewise in the same judgment, the Hon’ble Apex Court hastouched and dealt with as to what is meant by perverse findings by takingrecourse to the earlier decisions in the cases of Arulvelu and another v.State, (2009) 10 SCC 206; Babu v. State of Kerala (2010) 9 SCC 189 andAnwar Ali and another v. State of Himachal Pradesh, (2020) 10 SCC 166.Similarly, while dealing with the aspect as to what is meant by“possible view”, the Hon’ble Apex Court in Ravi Sharma (supra), byreferring to the Judgments in the cases viz. N.Vijay Kumar v. State of 11 Cr.Appeal 371.2017Tamil Nadu, (2021) 3 SCC 687; Murugesan v. State, (2012) 10 SCC 383,Hakeem Khan v. State of M.P., (2017) 5 SCC 719, observed that “if the“possible view” of the trial Court is not aggreable for the High Court,even then such “possible view” recorded by the trial Court cannot beinterdicted. It is further held that as long as the view of the trial Courtcan be reasonably formed, regardless of whether the High Court agreeswith the same or not, verdict of the trial Court cannot be interdicted andthe High Court cannot be supplant over the view of the trial Court”.15.Keeping the above discussed legal position in mind, appeal filed byState against acquittal is taken up for consideration.16.On complete reappreciation and analysis of the evidence intrial court, it is noticed that though prosecution has come with a case thatthe boy at the time of alleged incident was studying in 6th standard,entire evidence of prosecution at the outset is found to be silent aboutage or date of birth of the boy. Father did not give date of birth of hischild. The Investigating Officer has not bothered or cared to collect andplace on record documents pertaining to the age of the boy. In cases ofsuch nature, it is incumbent upon the prosecution, at the threshold toestablished age of the victim or even accused if he is juvenile. This legalrequirement has apparently not been adhered to by prosecution.