High Court
Legal Reasoning
CriAppeal-925-2019+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 925 OF 2019WITHCRIMINAL APPLICATION NO. 937 OF 2022IN CRIMINAL APPEAL NO. 925 OF 2019Ananda s/o Mahadu Sawant,Age - 33 years, Occu – Agril.,R/o Gortha, Taluka Umri,District Nanded.… Appellant[Orig. Accused No.1]Versus1.The State of MaharashtraThrough Umri Police Station,Taluka Umri, District Nanded.2.XYZ… RespondentsWITHCRIMINAL APPEAL NO. 844 OF 2019WITHCRIMINAL APPLICATION NO. 375 OF 2021IN CRIMINAL APPEAL NO. 844 OF 2019Kunal @ Khandu s/o Pandurang Gaikwad,Age : 21 years, Occ : Painter,R/o Venkatesh Nagar, Umri,Taluka Umri, District Nanded.… Appellant[Orig. Accused No.2]Versus1.The State of MaharashtraThrough the Police Station Officer,Umri Police Station,District Nanded.2.XYZ… Respondent
Legal Reasoning
CriAppeal-925-2019+-2- …..Mr. A. M. Gaikwad, Advocate for the Appellant in Criminal AppealNo. 925 of 2019.Ms. Rekha Choudhari h/f Mr. S. S. Choudhari, Advocate for theAppellant in Criminal Appeal No. 844 of 2019.Mr. S. M. Ganachari, Advocate for Respondent No.1-State in bothappeals.Ms. Namita P. Thole, Advocate (appointed) for Respondent No.2 inboth appeals.….. CORAM :ABHAY S. WAGHWASE, J.Reserved on: 12.01.2024Pronounced on: 17.01.2024JUDGMENT : 1.Feeling aggrieved by the judgment and order of convictionpassed by learned Additional Sessions Judge, Bhokar in Special Case[POCSO] No. 3/2019 recording guilt for commission of offencepunishable under Sections 376(2)(i), 376-D, 452, 506 r/w 34 of theIndian Penal Code [IPC], Section 6 of the Protection of Children fromSexual Offences Ace, 2012 [POCSO Act], both convicts have preferredabove two separate appeals.As both the appeals have been heard by this court andanswered by learned APP on the same day, they are decided by thiscommon judgment. CriAppeal-925-2019+-3- 2.Umri police station registered crime bearing no. 195/2018 onthe strength of report filed by victim PW1 alleging that she resideswith her mother. That, on 26.11.2018 when she and her mother weresleeping in their house, around 1.00 a.m. there was knock on theirdoor. The door was forcibly pushed thereby breaking the chain. Threepersons entered the house, one of them placed knife on the neck ofher mother and took her in another room and accused no.1 Anandaafter making her fall on the bed, forcibly raped her. Then he wenttowards her mother and other one i.e. accused no.2 came and afterhim accused no.3 came and raped her. Around 4.00 a.m. thosepersons went out of the house. Victim and her mother approachedpolice and victim lodged report Exhibit 15.3.Investigation was entrusted to PW7 SDPO Deshpande who tookall steps like arresting accused, drawing various panchanamas; victimwas subjected to medical examination; medical papers were gatheredand made of part of chargesheet. After gathering sufficient evidence,challan was filed and all three accused were tried by learnedAdditional Sessions Judge, who held case of prosecution as proved asagainst accused nos. 1 and 2, i.e. present appellants, and recordedguilt as stated above. CriAppeal-925-2019+-4- Said judgment is now taken exception to by filing instantappeals by invoking Section 374 of the Code of Criminal Procedure[Cr.P.C.].4.Mr. A. M. Gaikwad, learned counsel representing accused no.1Ananda would submit that at the outset prosecution had failed toestablish that victim was child as per the definition under the POCSOAct. That, though it was claimed that victim was 16 years of age, hewould submit that the proof adduced by prosecution in support of agewas mere school extract which was prepared on the strength ofTransfer Certificate [TC] of earlier school. According to him, suchdocument has no evidentiary value. According to him, the Hon’bleApex Court in the case of P. Yuvaprakash v. State 2023 LiveLaw (SC)538 held that prosecution has to establish the age by adducing, firstly,‘date of birth certificate from the school’, or ‘matriculation orequivalent certificate from concerned examination board’, if available,and in absence of it, ‘birth certificate issued by corporation, municipalauthority or Panchayat’ and only in absence of above modes, age hasto be determined by subjecting victim to ossification test. Here,according to him, none of the above requirements were fulfilled and CriAppeal-925-2019+-5- therefore, it is his submission that, prosecution has utterly failed toestablish that victim was minor and hence it is his submission thatthere cannot be conviction under the provisions of POCSO Act. 5He next submitted that though prosecution examined in all 8witnesses, evidence of victim, her mother and the school Headmasterwas relevant. He pointed out that both, victim and her mother, areinconsistent and not corroborating each other. Further according tohim, there is no proper identification. Investigating machinery hasconfronted photograph of arrested accused. He pointed out thataccusations are made that there was forced entry by breaking chain ofthe door but there is no evidence to that extent and spot panchanamais silent in that regard. He further pointed out that in spite of allegedincident taking place between 1.00 a.m. to 4.00 a.m., complaint islodged after almost 5 to 6 hours and the so called delay is notexplained. He further pointed out that there is evidence suggestingmother of victim to be involved in prostitution and thereforepossibility of false implication cannot be ruled out. Further he pointedout that in spite of rape being committed by three persons, there areno injuries and even medical expert has not issued final opinion.Therefore, such crucial aspects were fatal for prosecution. CA report isalso negative and resultantly it is his submission that learned trial CriAppeal-925-2019+-6- court ought not to have accepted the case of prosecution and furtherconvicted the appellants.6.Learned counsel Mr. Rekha Choudhari h/f Mr. S. S. Choudharifor appellant Kunal adopted the above submissions advanced bylearned counsel Mr. A. M. Gaikwad.7.Per contra, learned APP for State pointed out that victim was aminor. School authority was examined who had carried originalregister and had placed on record its extract. Therefore victim wasproved to be a minor. Further according to him, after forced entry, byuse of knife, threats were issued to mother and in her presence herdaughter was raped by three men including present accused. That, itwas a serious and heinous crime committed on a minor. Both, victimas well as her mother have deposed accordingly and they areconsistent and corroborating each other on material count. Theirevidence has remained unshaken on the actual act of rape. LearnedAPP pointed out that there was no possibility of injury as rape wascommitted on knife point and victim was made helpless. Furtheraccording to him, mere absence of injuries on the person of victimwould not negate the fact of rape. He lastly submitted that availableevidence has been rightly appreciated by learned trial Judge and CriAppeal-925-2019+-7- conviction has been correctly recorded. Hence, for want of merits, heprays to dismiss the appeal.8.Learned counsel appointed to represent the victim would alsoresist the appeal by pointing out that there is cogent, reliable evidenceof victim to be minor; she was raped in the house and she named andidentified both appellants. Therefore, according to her, they arerightly convicted and even she prays to dismiss the appeal. 9.It seems that prosecution in trial court has adduced evidence offollowing 8 witnesses:PW1Victim.PW2Jagdish acted as pancha to spot panchanama Exhibit 21 andseizure of clothes of accused vide panchanama Exhibits 22,23 and 24. He also acted as pancha to memorandum ofdisclosure and recovery of knife (Exhibits 25 and 26) at theinstance of accused no.1 AnandaPW3Mother of victim.PW4Dr. Chavan, who examined victim as well as all threeaccused. CriAppeal-925-2019+-8- PW5Police Naik Wanole acted as carrier.PW6Bhimrao is pancha to seizure of clothes of victim vide Exhibit43.PW7SDPO Deshpande is the Investigating Officer [IO].PW8 Headmaster. 10.On hearing above submissions, at the threshold this court isrequired to deal with the issue of age raised before this court. It seemsthat such issue was not at all raised in the trial court and there is nosuggestion even for the namesake regarding minority of the victim. Beit so. Here, admittedly school authority i.e. the Headmaster has beenexamined as PW8. He claimed that on request from police, he wascarrying admission register and its extract in the court. He stated thatas per the register of admission, date of birth of victim is 08.01.2014.He further stated that date of birth of victim on admission registerextract and the copy of school admission extract reflects the same age.In cross, to a suggestion he has answered and admitted thatthey use to take entry of date of birth of any child after perusing thedate of birth recorded by Grampanchayat or Nagar Parishad. Hefurther deposed that date of birth of victim is mentioned in their CriAppeal-925-2019+-9- register on the basis of date of birth mentioned in the TC of otherschool.11.On analyzing above testimony, it is emerging that this witnesshas brought only original admission register wherein date of birth wasnoted as 08.01.2014. His testimony shows that he was not calledupon to produce birth certificate tendered in the school. Investigatingmachinery is therefore to be blamed for not asking this witness tobring the birth certificate. Even Investigating Officer himself, on heown, does not seem to have gathered the birth certificate issued byGrampanchayat. It is to be noted that in cross on being questioned byaccused, PW8 Headmaster has admitted that there is practice oftaking entry of date of birth on perusing date of birth recorded by theGrampanchayat. Therefore, with such answer, it can safely be inferredthat date of birth was noted on the basis of certificate issued byGrampanchayat. However, the same has not been brought becausethis witness has carried only school register as requested by policemachinery. Therefore, above submission by learned counsel for theappellants cannot be straightway accepted that there is no evidenceabout date of birth and that documents as spelt out by Hon’ble ApexCourt in the above ruling P. Yuvaprakash (supra) not being available,it cannot be said that age of victim has been proved. CriAppeal-925-2019+-10- 12.On carefully going through the evidence of victim PW1 atExhibit 14, it is emerging that on the night when she was sleepingwith her mother, around 1.00 a.m., on hearing knock on the door sheand her mother woke up. She speaks about door being pushed openby breaking the chain. She has categorically stated that three personsentered. That, when she and her mother made attempt to shout, atthat time accused kept knife on the throat of her mother and wastaken in another room and thereafter accused Ananda pushed her onthe cot, disrobed her and committed rape on her. Thereafter accusedKunal and third accused took turns to rape her. She identified theaccused Ananda and Kunal in court.In initial cross, she is questioned about her father, maternaluncles and that they were insisting them to come and stay at theirvillage Narwat after she lost her father. Then she is questioned aboutlocality and surrounding houses. There are questions about railwaytrack passing near their house. She flatly denied that if one talks inher house then the talk is easily heard in the neighbourhood.Omission is brought only to the extent that accused Ananda slept onher person and committed rape; that thereafter Kunal had come; andlastly, Ananda had gone out of the house. CriAppeal-925-2019+-11- 13.PW3 mother has also stated that at mid night around 1.00 a.m.there was knock on the door and they woke up. That, their housedoor was broke open by applying pressure and entry was forced bythree persons. Further she stated that accused Ananda kept knife onher neck and took her to another room; thereafter accused Kunalcame and kept knife on on her throad and thereafter Ananda, byremoving clothes of her daughter, committed sexual intercourse; thenAnanda came to her room and accused Kunal went in the adjoiningroom and he also committed sexual intercourse; thereafter thirdperson also committed sexual intercourse with her daughter; accusedthreatened to kill them if they report it to anyone; and those threepersons left their house around 04.00 a.m. She further stated that shecontacted her brother on phone. Thereafter they approached police.Even she identified accused Ananda and Kunal sitting in the court.On carefully going through the above cross faced by thiswitness, omission is brought to the extent that accused Ananda, Kunaland Shubham committed forceful sexual intercourse with victim oneafter the other. Then she is questioned about locality, heracquaintances and she flatly denied about complaint being made to CriAppeal-925-2019+-12- the Collector that she is running prostitution business. She admittedthat since 4.00 a.m. to 9.00 a.m., she did not disclose the incident toanybody. In cross at the hands of learned counsel for accused no.2,she has answered that there is police colony in front of her house andTahsil office and Court are situated at a short distance. That, thereuse to be traffic on the road. That, all the families in the vicinity werehaving visiting terms with her house. Further, omissions are broughtregarding accused breaking chain of the door, Kunal keeping knife onher throat and accused Ananda coming and accused Kunal going tocommit sexual intercourse. She admitted that alleged incident of rapewas committed in another room and she was present in differentroom and that she had not actually seen the incident with her owneyes.14.Medical expert who had occasion to examine the victim is PW4(Dr. Dhavan) and this doctor has stated that history was given aboutthree persons entering the house around 01.00 a.m. on 26.11.2018and by issuing threat to life with sharp object, there was demand ofsexual intercourse. This witness stated that after examination ofvictim, his overall findings are consistent with sexualintercourse/assault. He further deposed that final report was keptpending for receipt of CA report. He also examined three accused on CriAppeal-925-2019+-13- 27.11.2018 and opined that it cannot be refuted nor confirmed thataccused persons were unable to perform sexual intercourse.In cross, medical expert has admitted that ossification test ofvictim was not done. That, names of accused were not disclosedduring recording history and that he did not notice injury on the bodyof victim. He admitted that final report was kept pending till receiptof CA report and after receiving CA report, final report has not beenobtained by IO till date and he has not issued the final report.15.On re-analyzing the above evidence of victim and her mother,it is noticed that both, victim and her mother, are lending support toeach other. They were together sleeping when entry was forced byaccused. They both are consistent about knife being used to threatenthem. PW3 mother seems to have been taken in another room andvictim was raped by all three whom she has named. Both, victim andher mother have identified accused-appellants in the court for takingturns in raping victim. Though they are subjected to cross, theirevidence to the extent of commission of rape has remained untouchedand unshaken. CriAppeal-925-2019+-14- 16.No doubt medical expert has not noticed any injuries, but it isfairly settled legal position that in case of rape, non-appearance ofinjury is insignificant. Law to this extent has been dealt and discussedin numerous judgments including Gurucharan Singh v. State ofHaryana, AIR 1972 SC 2661 ; Krishan Lal v. State of Haryana, AIR1980 SC 1252 ; State of Rajasthan v. N.K., (2000) 5 SCC 30 ;Narayanamma (Kum) v. State of Karnataka and Others,1994 (5) SCC728 ; State of Rajasthan v. Shri Narayan, (1992) 3 SCC 615 andDevinder Singh and others v. State of Himachal Pradesh, (2003) 11SCC 488. In Gurucharan Singh (supra) the Hon’ble Apex Court hasobserved that “absence of injury or mark of violence on the privateparts or elsewhere on the person of the prosecutrix is of noconsequence when the prosecutrix is minor and would merelysuggest want of violent resistance on the part of the prosecutrix.”Moreover, in the instant case when victim and her mother bothare categorical about knife being used to threaten and terrorize, thereis least possibility of resistance being put. Further, it is pertinent tonote that medical expert has very categorically stated in hisexamination-in-chief itself that on examination of the victim hisoverall findings were consistent with sexual intercourse/assault.Therefore, taking into consideration such evidence of medical expert CriAppeal-925-2019+-15- coupled with evidence of victim and her mother as discussed above,there is no hesitation to hold that prosecution has established thatvictim was a minor and was sexually ravished. 17.Therefore there is overwhelming evidence against appellants.Such evidence has been rightly appreciated and guilt has beencorrectly recorded. No case is made out on merits. No perversity isbrought to the notice of this court so as to interfere. Hence, I proceedto pass the following order:ORDERI.Both the appeals are hereby dismissed.II.Pending applications does not survive and the same also standdisposed off.III.Fees of the counsel appointed to represent respondent no.2 isquantified at Rs.10,000/- to be paid by the High Court LegalServices Sub-Committee, Aurangabad. [ABHAY S. WAGHWASE, J.]vre