High Court
Legal Reasoning
-1- Cri.Appeal.619.2021IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 619 OF 2021WITHCRIMINAL APPLICATION NO. 760 OF 2022Raju S/o. Vishwanath Sable, Age : 54 years, Occu. : Labour, R/o. Near Ambedkar Statue, Satara Village, Tq. Aurangabad, District Aurangabad.… Appellant(Orig. Accused)VersusThe State of Maharashtra, Through Police Station Officer, Police Station Satara, Tq. and Dist. Aurangabad.… Respondent.(Orig. Complainant)…Mr. P. S. Paranjape, Advocate for Appellant (Appointed throughLegal Aid).Mr. N. D. Batule, APP for Respondent – State.Mr. Vivek M. Lomte, Advocate for Respondent No.2 (Appointedthrough Legal Aid).... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 16th JANUARY, 2024 PRONOUNCED ON : 24th JANUARY, 2024JUDGMENT : 1.A convict for offence under sections 376(1), 323 ofIndian Penal Code (IPC) and for offence under sections 4 and 8 ofthe Protection of Children from Sexual Offences Act, 2012 (POCSOAct), is hereby questioning the judgment and order passed bylearned Additional Sessions Judge, Aurangabad dated 25.10.2018in Special Case (POCSO) No. 46 of 2015. -2- Cri.Appeal.619.20212.In brief, prosecution was launched against presentappellant, alleging that, informant had granddaughter aged 4years. On 09.03.2015, around 2:30 p.m., she had left hergranddaughter victim with neighbour and she went to railwaystation. Around 3:45 p.m., she received phone call and she wasurgently called by another neighbour Kantabai. When informantreached, she learnt that, accused took her in a wada, offered oneRupee and on the pretext of playing some game, took her to a toilet,removed her undergarment, he inserted his finger in her vaginaand thereafter, he inserted male organ. When the child cried, heclosed her mouth. On hearing the occurrence, police wasapproached and grandmother set law into motion vide report atExh.38, on the strength of which FIR was drawn vide Exh.39. After investigation carried out by PW9 API PushpaPatil, accused was challaned and charge-sheeted. On explanation ofcharge, he denied and so trial was undertaken. During which,prosecution has adduced oral and documentary evidence. Afterappreciating the evidence and on hearing submissions advanced byboth sides, learned trial Judge recorded conviction for aboveoffence and awarded sentence accordingly as spelt out in theoperative order. Hence the appeal.
Legal Reasoning
-3- Cri.Appeal.619.2021SUBMISSIONSOn behalf of appellant :3.Learned counsel for appellant would point out that atthe outset, there is no trustworthy, reliable account of any of thewitness so as to accept the case of prosecution as proved.According to him, here prosecution has deliberately not examinedmaterial and crucial witnesses, like the immediate neighbourChandrabhan, the person namely Janardhan who allegedlytelephoned and called complainant. Informant has apparentlylodged complaint on hearsay information. He further submittedthat, considering the age of the victim, it is difficult to believe thatshe could knew the phraseology and words used regardingcommission of offence. Thus, he submits that it is a clear case oftutoring. According to him, only immediate neighbours, who werefriends of informant are examined. Thus, except interestedwitnesses, there is no other independent evidence regarding theoccurrence. Learned advocate submits that, there is falseimplication and according to him medical evidence itself isinconsistent. He questions the sustainability of the judgment asaccording to him there is improper appreciation of evidence andlaw. On behalf of State :4.In answer to above, learned APP would strenuously -4- Cri.Appeal.619.2021submit that, accused had ravished a minor of about four years ofage. He took her to the washroom on the pretext of playing somegame. But, in fact it was a dirty game. He has committed sexualoffence and victim has narrated the acts and he indulged into byleveling her. Victim is examined. There is prompt reporting by theinformant – grandmother. Immediate neighbours, who had seenaccused, called informant and she rushed home. That, afterhearing from the victim, police authority has been promptlyapproached and matter is reported. He pointed out that, medicalexamination was got done. Examining Medical experts havestepped into the witness box and has confirmed the assault andrape. Therefore, there is convincing and reliable evidence. Allcharges are proved through victim, informant, her grandmother,immediate neighbours and they have all withstood extensive crosswithout getting shaken and resultantly learned trial court hasrightly convicted the appellant. According to him, there is correctappreciation of oral and documentary evidence and that no faultcould be found in the findings reached at and consequently heprays to dismiss the appeal for want of merits.5.In support of its case, prosecution has examinedfollowing witnesses:- -5- Cri.Appeal.619.2021 PW1 Informant; PW2 Victim; PW3 Deepali, panch toseizure of clothes of victim; PW4 Navnath, pancha to seizure ofclothes of accused; PW5 Dr. Daksha Bilagi, who examined notedhistory and conducted medical examination and issued opinion/report at Exh.61 and 62, respectively; PW6 and PW7 Kantabai,neighbours of informant and victim; PW8 Santosh, panch to spotpanchanama (Exh.77); PW9 API Pushpa Patil, InvestigatingOfficer, who took victim to the hospital and in whose presencestatement of victim was recorded; PW10 Dr. Sushin Waghmareanother doctor, who examined victim, conducted ossification testand issued opinion at Exh.102.6.As this is first appellate court, which exercises powersunder section 374 of Cr.P.C., it is incumbent upon this court to re-examine, re-appreciate and re-analyze the evidence adduced by theprosecution in its entirety to ascertain whether prosecutionestablished its case beyond reasonable doubt and whetherjudgment of trial court is legally maintainable and sustainable ornot. 7.Here, the record shows that, appellant was made toface charge (Exh.8) for commission of offence under sections376(1), 323 of IPC and for offence under sections 8 read with 7 -6- Cri.Appeal.619.2021and section 4 read with 3 of POCSO Act. The provisions underthese sections are as under :- “Section 376(1) of IPC :376. Punishment for rape.(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished withrigorous imprisonment of either description for a termwhich [shall not be less than ten years, but which mayextend to imprisonment for life, and shall also be liableto fine].Section 4 and 8 of POCSO Act :4. Punishment for penetrative sexual assault[(1)] Whoever commits penetrative sexual assault shall bepunished with imprisonment of either description for aterm which shall not be less than [ten years] but whichmay extend to imprisonment for life, and shall also beliable to fine.[(2) Whoever commits penetrative sexual assault on achild below sixteen years of age shall be punished withimprisonment for a term which shall not be less thantwenty years, but which may extend to imprisonment forlife, which shall mean imprisonment for the remainder ofnatural life of that person, and shall also be liable tofine.(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.]8. Punishment for sexual assault.-Whoever, commits sexual assault, shall be punished withimprisonment of either description for a term which shallnot be less than three years but which may extend to fiveyears, and shall also be liable to fine.” -7- Cri.Appeal.619.20218.Going by the story of the prosecution, admittedly, itrevolves entirely around the evidence of informant-grandmother(PW1) and victim (PW2), who was reported to be around 4 years ofage. Testimony of informant her grandmother shows that, victimlost her father, who was her nephew. Wife of his nephew i.e. motherof victim seems to have abandon victim barely at the age of 9months and since then she was cared and looked after by PW1grandmother. 9.This witness PW1 in her testimony, at Exh.26 inparagraph 2 has stated that, on 09.03.2015 around 2:30 p.m. asshe was go to railway station, she handed over custody of thevictim to her neighbour Chandrabhan Salve. She claims that,around 3:45 p.m., she received phone call from one Janardhan,asking her to return urgently and also her immediate neighbourKantabai informed her on phone call that, victim granddaughterwas found in the company of accused in a toilet. Therefore, whenshe returned home and interacted with victim, she found to bescared and on being asked, victim allegedly told her “baba ala anivicharle tuzi aai kuthe geli”. She replied “mazi aai kamala geli”.She further told this witness that accused offered her one rupeeand thereafter accused told her to enter the wada from beneath thegate. He again offered her one rupee and said to her that they -8- Cri.Appeal.619.2021should play game of ***** and she told her that he took her to thetoilet, made her lie down, removed her undergarment and insertedhis finger in her vagina. Thereafter, he again inserted his penis.When she cried out of pain, he closed her mouth causing injury toher lips. 10.According to informant, one Alkabai, who was standingon the terrace of the adjacent house had witnessed the incidentand has raised alarm and people gathered and assaulted accused.She further deposed that, Chandrabhan is her neighbour and hehad kept a cot near the gate when accused had came there.Chandrabhan asked the accused, who disclosed his name as RajuSable. There was conversation between Chandrabhan and accused,who sat on the cot and this witness left victim with Chandrabhan.Thereafter she took the victim to hospital along with the Gaikwadmadam. Doctor conducted medical examination and thereafter sheapproached police station lodged report (Exh.38) and causedsignature on FIR at Exh.39. 11.Thereafter, she handed over clothes of victim to thepolice on 10.03.2015. She again gave supplementary statement on11.03.2015, handed over death certificate of father and familyphoto. According to her, at the time of incident, victim was fouryears of age. Her statement was recorded in the court. Witness has -9- Cri.Appeal.619.2021identified accused in the court.12.While under cross, initially there are questions abouther native, legal heirs. Relevant cross in para 2, wherein she wasasked at what time she proceeded towards railway station and howmuch time to reach back and at what time she went to police. Sheflatly denied that, Chandrabhan narrated the incident to police.Suggestions to her that accused had brought her to Aurangabad,25 years back, accused conducting Jagaran for his livelihood, sheborrowing loan of Rs 10,000/- for construction and on second timethere was demanding further loan of Rs.5,000/- and about accuseda victim of cancer and having no source of income, are all denied byher.13. The crucial witness victim is also examined at Exh.45.After preliminary verification about competence to be deposed,learned trial court seems to have recorded testimony. On goingthrough the same, she is found to have deposed that, accused Babais present in the court. When she was playing with brotherLangada baba was sitting on the cot. He had inquired about hermother and according to her, she told him that her mother is out ofstation. He told her that he would give her money, took her to theirtoilet, took out his penis and her pantee and inserted his finger in -10- Cri.Appeal.619.2021her genitals. When she cried he pressed her mouth, as a result ofwhich she suffered injury on her lips. Hearing her cries, peoplegathered there. She narrated incident to her mother (informant)and police made inquiry with her. In her cross, she answered that, she was studying inBalwadi and she attended school on the day of incident. Shereplied that, she was taught counting and Marathi alphabets. Shealso counted from 1 to 10. She answered that, there are in all 10children and that she is the most intelligent amongst them and tolearn whatever is taught. She denied being taught by police aunty.She answered that whatever had taken place, she has beennarrated accordingly. She further flatly denied that she wastutored by mother and APP. In further cross she answered that,accused baba was residing behind her house and she had seen himmany times, but she cannot named him. She is also unable to givethe name of the lady, who took her after the incident. Rest are alldenial. 14.Now, it is necessary to be seen as to whether as claimedby prosecution in the trial court and learned APP before this courtthat, there is medical evidence also lending support to the versionof victim. -11- Cri.Appeal.619.202115.PW5 Dr. Daksha Bilagi seems to be the doctor, who isexamined at Exh.59, who had occasion to examine victim on beingbrought by Gaikwad. After completing the formalities of gettingconsent from grandmother, this medical expert deposed that, shenoted the history narrated by the victim herself, whereas time andplace told by grandmother. Doctor deposed about reducing historyin writing and conducted medical examination of the victim, duringwhich she claims to have noticed mucosal injury on lower lipadmeasuring 3 mm and on examination of genitals, she noticed oldhealed tear at 6:00 ‘O’ clock position. Dr. further deposed that fromthe history and clinical examinations, findings are suggestive ofvaginal penetration. She collected samples and issued a report andcertificate (Exh.61 and 62).16.Medical expert is also subjected to cross examination,wherein she given the timing of examination of victim and namedthe staff accompanying her. She flatly denied history to be givenand narrated by grandmother. She answered that, such type ofinjuries are possible on account of fall on stone and injuries on theperson of the victim like abrasions are also possible on account offall on stone. She denied having issued report and opinion on thebasis of history and false report being prepared. -12- Cri.Appeal.619.202117.Prosecution also seems to have come with a case ofavailability of direct eye witness i.e. immediate neighbour. Saidwitness is PW6, who in her evidence at Exh.74 testified thatinformant resides behind her house and that victim was hergranddaughter. According to her, on that day, she had been to theterrace to collect wheat and that time she saw accused takingvictim by bending below the gate and he himself entered the houseof informant by climbing over the gate. He took her to the toilet.Witness claims that, she went ahead and saw accused sexuallyassaulted victim and therefore, she raised alarm. That time,Kantabai, Janardhan, Manisha and public gathered there andaccused and victim were taken out of the toilet. Accused wasbeaten, but he managed to escape. She further deposed that,informant was not present. Kantabai called and informed herabout the incident. Above witness is also subjected to cross, wherein sheanswered that, there is wall between house of complainant and hersister. That, house were adjacent to each other. House of informantis constructed with slab and mud. There is slab over the toilet ofinformant, but there is no door and the toilet was facing towardssouth. Rest are all denials. -13- Cri.Appeal.619.202118.Similarly PW7 Kantabai also a neighbour deposedabout hearing shouts of PW6 and they all going to the house ofinformant. Accused had sexually assaulted victim in the toilet andthey were taken out from the toilet. People assaulted accused.According to her she told one Kiran More to inform informant andhe connected phone call and she herself talked, narrated theincident, when she reached she also identified accused. In cross, she is also questioned about her literacy,residence, its geographical direction of house of informant, toilet,age of victim. She answered that accused was residing 1 to 2 lanefrom her house. Rest is all denial. 19.PW3 Deepali and PW4 Navnath are panchas to seizureof clothes of victim and accused respectively; PW8 Santosh ispanch to spot panchanama; PW9 API Pushpa Patil is theInvestigating Officer; PW10 Dr. Sushin Waghmare is the forensicexpert, who conducted ossification test and issued report(Exh.101), opined that, victim was between 2 to 4 years of ageincluding margin.ANALYSIS20.On re-examination, re-appreciation and on critical -14- Cri.Appeal.619.2021analysis of above discussed evidence, victim is reported to be fourand half years of age at the time of incident. Victim is a student andshe herself in her evidence stated about studying in Balwadi.Admittedly, having lost her parents and being looked after bygrandmother, there are reasons for non availability of informationabout date of birth of victim. However, by examining PW10Dr.Sushin Waghmare, who conducted ossification test, age ofvictim is in the range of 2 to 4 years including margin permissibleunder law. Trial court, who recorded evidence also got itselfsatisfied and recorded her version. There is absolutely no seriouscross regarding age and not attempts are made to render itdoubtful. On the contrary, submissions advanced before thiscourt by learned counsel for appellant that considering the age ofthe victim, it is difficult to accept that she could use the wordsregarding sexual act to which she was subjected to by accused.Suggestions are also given in the trial court about she beingtutored. Therefore, taking such material into consideration, theredoes not seem to be any challenge that victim was not around 4years of age and hence, it can safely be held that at the time ofincident, victim was a child below 12 years of age. -15- Cri.Appeal.619.202121.As regards to occurrence is concerned, here,prosecution has adduced evidence of informant, who isgrandmother of victim. Her evidence is about she leaving house togo to the railway station on that day, by handing over custody ofher granddaughter victim to one Chandrabhan i.e. her neighbour.No doubt, Chandrabhan has not been examined, but in the light ofevidence of grandmother, very victim herself, non examination ofChandrabhan cannot be termed as fatal. PW6 and PW7 Kantabai,who are immediate neighbours are also lending support aboutinformant PW1 to be out of the house. Victim has in her testimony categorically narrated theacts indulged into by accused, who took her in her own toilet,removed his male organ, removed her undergarment, made her liedown and inserted both finger as well as his male organ. PW6 immediate neighbour has deposed about seeingaccused taking victim towards the toilet and indulging intocommitting sexual assault and she has raised alarm attractingothers. PW7 Kantabai also claims about hearing shouts of PW6 andthen going out and seeing accused with the victim in the toilet andthey being taken out and accused being beaten by public. Accusedafter giving thrashing was required to be admitted and there ismedical evidence to that extent also. -16- Cri.Appeal.619.202122.Therefore, taking above discussed evidence of PW1informant, PW2 victim, PW5 doctor, who examined victim andissued report and injury certificate giving clearly deposing abouthistory being narrated by victim herself, and on examinationissuing opinion about accused putting his finger inside vagina andtook his penis towards her vagina and therefore, she has deposedabout clinical examination finding suggestive of vaginalpenetration, clearly suggests that offence as alleged has beencommitted.23.Criticism made before this court that, materialwitnesses like Chandrabhan and Janardhan, who are named byinformant are not examined. There is no force in abovesubmission. In the opinion of this court, prosecution is entitled toadduce evidence of only those witnesses, to whom prosecution feelsto be necessary. It is the discretion of the prosecution to lead onlyas much evidence as is necessary in proving the charge. Whenoccurrence is getting unfolded from examined witnesses,prosecution is not bound to examine all witnesses, whose namesare appearing in statements and testimonies of witnesses. It is thequality that matters and not quantity. Law is fairly settled that,the time honoured principle is that evidence has to be weighed andnot counted. Law to that extent has been expounded in the case of -17- Cri.Appeal.619.2021Amar Singh v. The State (NCT of Delhi) and Inderjeet Singh v. TheState (NCT of Delhi), (2020) 19 SCC 165. Very recently also, law to that extent is propounded inthe judgment of Ajai @ Ajju v. State of U.P., (Criminal Appeal 598-600 of 2013), MANU/SC/0127/2023. Here, in the light of nature of accusations, evidence ofPW1 informant, PW2 victim, PW5 medical expert is of significance.Moreover, PW6 and PW7 independent witnesses, who areneighbours have lend support to the prosecution story. Therefore,there is corroboration from independent corners. There is noreason for false implication as both informant as well as victimhave flatly denied suggestions regarding annoyance of informantfor loan amount not being extended and victim too flatly deniedthat she was tutored by informant and APP. Therefore, nosubstance in above submissions. 24.Another criticism made before this court is that, thereis old tear of hymen as per doctor. Even such submission would notcome to the rescue of accused to get himself exonerated as medicalexpert has noticed fresh injury to the lip. Victim categoricallystated that when she raised cries, accused forcibly shut her mouth.The injury is within 24 hours. Doctor has noticed abrasions. Suchinjuries are relatable to the occurrence. Victim categorically stated -18- Cri.Appeal.619.2021about he inserting finger in her vagina and even penetrating hispenis. Law is fairly settled that even partial penetration amountsto commission of rape. There is insertion of finger as well as maleorgan and therefore, offence is complete in legal parlance. 25.Learned counsel also questioned the credibility of PW6by pointing out that, it is doubtful whether she had any visibility tosee the occurrence. This witness has categorically stated about shetoo be on the terrace and he has narrated the sequence aboutaccused taking victim and asking her to bend beneath the gate andhe himself climbing over the gate and taking victim to the toiletand seeing his acts, she has raised alarm. In cross, she hascategorically given the exact location of her house, distance ofhouse of informant, its geographical direction and geographicaldirections of the toilet, which is a spot. Witness speaks about toilethaving no door and there is no serious challenge. Taking all suchcircumstances into consideration, there should not be any issueabout visibility or doubt about any occasion for witness to seeaccused taking victim to the toilet. 26.Learned counsel for victim raised a concern aboutquantum of sentence awarded by trial Judge, according to him,once offence was made out, higher sentence ought to have been -19- Cri.Appeal.619.2021inflicted. Such submissions were objected by learned counsel forthe appellant by pointing out that neither State nor victim haspreferred distinct proceedings for enhancing sentence. Thereforethere is no force in such submission. No such distinct proceedingsare apparently initiated, and therefore, it is not open for this courtto deal with such submission.27.Learned counsel for victim also impressed upon thiscourt that, the learned trial Judge has not granted anycompensation under section 357-A of Cr.P.C. On going through theimpugned judgment under change, more particularity theoperative part as pointed out, apparently there are no directions ororder to compensate victim by invoking section 357-A of Cr.P.C.28.In a case Suresh and another v. State of Haryana ;(2015) 2 SCC 227, the Hon’ble Apex Court has expectedscrupulous compliance of granting compensation under Section357-A of Cr.P.C. in deserving cases, even including in cases ofacquittal.29.For above reasons, we find it a fit case to compensatevictim herein as she has been deprived from the compensation.Therefore, directions to that extent are required to be issued to the -20- Cri.Appeal.619.2021District Legal Services Authority (DLSA), Aurangabad to conductthorough enquiry of the current status of the victim, her familybackground and on due satisfaction take steps to grant adequatecompensation as permissible under the rules. Hence, I proceed topass the following order:- ORDER (i)The criminal appeal is dismissed. (ii)The District Legal Services Authority, Aurangabad toundertake enquiry as directed in para 29 and take effective stepsto grant adequate compensation to victim as permissible under therules and law. (iii)Registrar (Judicial) to send copy of this judgment andrecord and proceeding immediately to District Legal ServicesAuthority, Aurangabad. (iv)In view of disposal of the appeal itself, CriminalApplication No.760 of 2022 does not survive and it is accordinglydisposed of. (ABHAY S. WAGHWASE, J.) Tandale