High Court

Legal Reasoning

Cri.Appeal.999.2023-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.999 OF 2023Siddharth Ashok Tupe,Age : 28 years, Occu. : Agri.,R/o. Malunja, Tq. Gangapur, Dist. Aurangabad.… Appellant Versus1.The State of Maharashtra2.X.Y.Z.… Respondents.…..Mr. Satej S. Jadhav, Advocate for Appellant.Mr. S. B. Narwade, APP for Respondent – State.Ms. Tejshree K. Nalawade, Advocate for Respondent (Appointed) …..CORAM :ABHAY S. WAGHWASE, J.RESERVED ON :18th FEBRUARY, 2025PRONOUNCED ON :5th MARCH, 2025JUDGMENT :1.In this appeal, there is challenge to the judgment andorder of conviction passed by Sessions Judge, Vaijapur, Dist.Aurangabad dated 04.10.2023 in Special Case Child Protection No.01 of 2018 recording guilt of appellant for offence punishable undersections 376(n) and 506 of Indian Penal Code (IPC).FACTUAL MATRIX 2.Informant’s cousin, alleged minor, went missing from thehouse on the evening of 08.10.2017. After due search, report was Cri.Appeal.999.2023-2-lodged by PW1 cousin for kidnapping the minor by unknown person,resulting into registration of Crime bearing No.394 of 2017 foroffence punishable under section 363 of IPC. Subsequently, policeparties succeeded in finding victim in the company of accused fromWadala Shivar. On her statement, further crime was added forcommission of offence under sections 366A, 376(i)(n) of IPC andunder sections 4, 6 and 17 of POCSO Act.3.PW11 PHC Karale, PW12 PSI Muthal and PW13 PSIIngale, who participated in the investigation at respective times andgathered evidence and charge-sheeted accused before learnedAdditional Sessions Judge, Vaijapur, who conducted Special CaseChild Protection No.1 of 2018 for commission of above offences.Prosecution case rested on oral evidence of in all 13 witnesses andpanch of documentary evidence, primarily including school extract,medical papers of both, victim and accused, and variouspanchanamas and CA reports. Defence did not adduce any evidence. 4.On appreciating the above evidence, learned trial Judgereached to a finding that present appellant i.e. accused no.1Siddharth alone is held guilty for commission of offence undersections 376(n) and 506 of IPC and thereby acquitted other accused. Cri.Appeal.999.2023-3- Precisely the above judgment is subject matter of presentappeal. SUBMISSIONS On behalf of Appellant :- 5.Learned counsel for appellant at the threshold pointedout that, here, prosecution had miserably failed to prove victim to bea minor, and therefore, learned trial court rightly acquitted accusedfrom the charges of POCSO Act. Thus, according to him, here, age ofvictim, who was alleged to be a minor, has not been demonstratedand further substantiated. According to him, there was acquaintancebetween accused and victim. That, there was stay of victim withaccused for days together without any resistance or raising alarm orregistering any protest. That, testimony of victim carries materialomissions of forcible sexual intercourse. He further submitted that,her version in the statement and that before the court are notconsistent. That, answers given by her in cross-examination rendersher testimony unworthy of credence.6.He further criticized the medical evidence adduced byprosecution and would specifically emphasized on the answers givenby medical expert, who allegedly examined victim, that opinionreached is mere probability and it could be otherwise also. Thus,according to him, essential ingredients of section 376 of IPC are not Cri.Appeal.999.2023-4-available. That, alleged bleeding is attributed to other naturalbiological phenomena. Hence, learned counsel put-forth that there isno convincing, cogent and reliable evidence on the charge of section376 of IPC. Lastly, he would submit that, applicant a young boy and24 years of age, is languishing in jail since October 2017 and is thusbehind bars for more than 7 years. According to him, going by allegeddate of occurrence to be of 2017 and the enhanced punishment byvirtue of amendment carried out in 2018, i.e. subsequently thequantum of sentence pre-amendment would come into play and thusnow applicant has already undergone almost the entire sentenceinflicted upon him by trial court and considering the age, he prays forreducing the sentence to already undergone.On behalf of Respondents :-7.Strongly opposing the above submissions, learned APPsubmitted that, though appellant is acquitted of charges under theprovisions of POCSO Act, he submitted that guilt is proved beyondreasonable doubt for commission of offence punishable under section376 of IPC. According to him, though medical evidence in such casesis merely corroborative, he emphasizes that, here, as required by lawvictim’s evidence itself being inspiring confidence, is rightly takeninto account by relied to by learned trial Judge. He also refuted thesubmissions about pre-amendment sentence could be made Cri.Appeal.999.2023-5-applicable and on this count, he took this court through theprovisions itself. According to learned APP, charges aresubstantiated and there being no merits in the appeal, he seeksdismissal of the same.8.Learned appointed counsel to espouse the cause andinterest of victim, too strongly opposed pointing out that, soleevidence of prosecutrix is inspiring confidence. She pointed out thatvictim has categorically stated that she was threatened and forcedupon. Thus, offence of rape is clearly made out, hence she opposesthe appeal and rather supports the impugned judgment.EVIDENCE ON RECORD9. Prosecution has adduced evidence of in all 13 witnessesin support of its case. Role and status of prosecution witnesses are asunder :PW1is the informant.PW2is the victim; PW3Suresh, PW4 Pawan, PW5 Jaya, PW6 Sumer are thepanch witness.PW7Dr. Rawlani is the Medical Officer.PW8Borude is the panch witness.PW9Dr. Katrina is also a Medical Officer.PW10Gitabharti is the Headmistress of School of Victim.PW11PHC Karale, PW12 PSI Muthal and PW13 PSI Ingale arethe Investigating Officers. Cri.Appeal.999.2023-6-10. For proper appreciation and comprehension, it wouldfruitful to reproduce the very testimonies of relevant witnesses i.e.PW1 informant; PW2 victim; PW7 Dr. Rawlani and PW9 Dr. Katrina11.PW1 informant is the cousin of victim. He deposed asunder:- 1.I am residing in a house constructed in Gat No.11 inAmbewadi Shivar. My uncle Sanjay also resides adjacent to myhouse. XYZ, Urmila, and Akash are children of my uncle Sanjay.On 08.10.2017 I was at my house throughout the day. My cousinXYZ was also at the house. At that time age of XYZ was 15 years.Date of birth of XYZ is 02.01.2002. 2.On that day, we were taking our dinner at 07.15 p.m. andXYZ was sitting on the platform. After finishing my dinner I cameout of the house and found XYZ was not present on the platform.We searched for XYZ in the house as well as in the surroundingarea. We also searched XYZ in Ambewadi village but did not findher. We also searched XYZ in Gangapur city but did not find her.We inquired with our relatives but did not find XYZ. 3.Thereafter, at about 01.45 a.m. we went to GangapurPolice Station and I lodged F.I.R. against unknown person thathe kidnapped XYZ. I have put my signature on the F.I.R. TheF.I.R. now shown to me. It bears my signature and its contentsare true and correct. It is marked at Exh.26.4.On 13.10.2017 police have taken my supplementary Cri.Appeal.999.2023-7-statement. From 09.10.2017 till 13.10.2017 we were searchingXYZ. During that we learnt that Sidharth Ashok Tupe has takenaway my sister XYZ. Sidharth Tupe was taking small children toschool in Omni Car. I am knowing Sidharth Tupe. (AccusedSidharth Tupe is under trial and till this time is not produced inCourt from Jail. His learned advocate has conducted the trial inhis absence by passing pursis at Exh.24 without challenging theidentity of Sidharth Tupe.” 12.PW2 is the victim. In her testimony at Exh.33 shedeposed as under :-“1.I reside at village Ambewadi along with my parents. Theincident was occurred when I was studying in 9th standard. Mybirth date is 02.01.2002. At the time of incident, I was studying inDhoot Kanya School, Gangapur. I used to go to the school by abicycle. One Ahswini Dolas was my friend. On 02.01.2017 therewere sports competition of our school at Aurangabad. On02.01.2017, I along with other students and madam had been toAurangabad to participate in the sports competition. The schoolhad provided a one vehicle to us to go to Aurangabad. The saidvehicle was from village Malunja. In the said vehicle myself,other girls and Dhas Madam were proceeded to Aurangabad.One man from village Malunja was driving the said vehicle.Ashwini Dolas acquainted me with the said driver. 2. One a one day Ashwini Dolas gave me a one phonenumber. The said number was 9604932143. Ashwini Dolas toldme that the said number is of her house. She told me to make aphone call on the said number. On the next day, I made phonecall on the said number. There was voice of male person on the Cri.Appeal.999.2023-8-phone. I cut the said phone call. I received phone call from thesaid number on my phone. I picked up the phone call. The personfrom the other end told me that he is Siddharth. The said persontold me that he intends to have friendship with me. I again cut thesaid phone call due to fear. 3.On the next day the said person met me in the school. Hetold me that he is brother of Ashwini Dolas. Therefore, Isupposed that the said person is brother of Ashwini hence Istarted talks with him. Thereafter, I and said person talked witheach other on phone calls many times.4. On a one day he told me that he likes me. He asked me omarry with him. Thereafter, we were talking with each other. On08.10.2017, my father was out of house. My mother was cookingfood in the house. At that time, the said person made phone callto me. We talked with each other on phone for long time. He toldme that he intends to meet me and I should come on a road.There was none in the house, hence I came on the road.Siddharth had brought one white omni on the road. There wereother two persons in the omni vehicle. Siddharth dragged me andmade me seat in the omni van. The persons sitting in the vanpressed my mouth and therefore, I could not raise shout. Thesaid persons threatened me that if I raise shout they will kill myfather. The said persons took the omni van towards Aurangabad.At that time, Siddharth was driving the vehicle. The said personstook vehicle towards Newasa via Bhendala Phata. From the talksof the said persons I came to know their names as Sambha andAnil. They were talking to keep the omni van at garage atNewasa. The said persons stopped the omni van near a onevillage across Ahmednagar Highway. The said persons dropped Cri.Appeal.999.2023-9-me and Siddharth at the said place. Thereafter, the said twopersons went with omni van. Siddharth took me by a Kaccharoad towards one house. There was one woman at the saidhouse. (The witness is giving answers after taking time). I came to knowthat the name of said woman was Ashwini Gawali. The saidwoman took me in the house and made me seat in a one room. Atthat time one unknown person came there. The said threepersons were talking with each other. From their talks, I came toknow the name of said person as Sonna Mote. Thereafter, the twopersons who were in omni van came at the said house. Thewoman present at the said house cooked food. The said personseat food. They also provided food to me. We all stayed at the saidhouse. 5. On 09.10.2017, all the said persons confined me in thesaid house and left the house. In the noon at about 03.00 p.m. thesaid persons returned to the said place. We all stayed at the saidhouse. 6. On 10.10.2017, in the morning Anil left the said house.Siddharth and Sambha were talking that they have no guaranteeof Anil and we should went to another place. Thereafter,Siddharth and Sambha confined me in the house by putting lockand went away. At about 04.00 p.m. Siddharth, Sambha andAshwini Gawali returned to the house. We all stayed at the saidhouse. 7. On 12.10.2017 also we stayed at the said house. On11.10.2017 at about 07.00 a.m. Siddharth, Sambha and Ashwinitook me by walk to one village. They took me in a one house Cri.Appeal.999.2023-10-situate in a one field. We reached there at about 04.00 p.m. Alltook a lunch at the said place. All persons from the said houseleft the house and went somewhere. Siddharth was present in thesaid house. Siddharth took me in the room and removed my allclothes. Siddharth made forcible sexual intercourse with me.Siddharth threatened me if I disclose the incident, he will kill myfather and sister. We stayed at the said house. On 12.10.2017 1,Siddharth, Sambha and Ashwini stayed at the said house. 8. On 13.10.2017 at 07.00 a.m. Siddharth, Sambha andAshwini took me to a one temple. I came to know that the saidtemple was of goddess Ghodeshwari. Sambha and Ashwinithreatened me that 1 should marry with Siddharth else they willkill me. Siddharth forcibly put gol en string (mangalsutra) in myneck. The said persons again took me at the said house situate infield. Siddharth forcibly committed sexual intercourse with me ontwo occasions. 9. On 14.10.2017, the said persons took me to one ghat byrickshaw. They were searching a room on rent at the said place.The said persons did not get room and hence they again broughtme to the one house of relative of Ashwini. The police came atthe said place. The police brought me, Siddharth, Sambha andAshwini at police station. The police recorded my statement on15.10.2017. The police sent me for medical examination to CivilHospital, Aurangabad. 10. At the time of recording my statement, the police seizedmy nicker. I can identify the said nicker if shown to me. (Thesealed envelope is opened in the presence of APP and advocatefor the accused). There is one nicker in the said envelope. The Cri.Appeal.999.2023-11-said nicker now shown to me is the same. It is marked as articleA. My statement was recorded before Judge in a Gangapurcourt. (There is one envelope in the file having signature ofJMFC, Gangapur. It is opened in the presence of APP andadvocate for the accused). The said statement now shown to meis the same. It bears my signature. The contents thereof are trueand correct. It is marked as Exh.42. 11. I can identify Siddharth, Sambha, Anil and Ashwini. Thewitness has pointed out a finger to a person sitting in the dockwith police and said that he is Siddharth. (The said person hasbeen asked his name, he told that he is Siddharth). The witnesshas pointed out a finger to a person with mask sitting in the dockwith police and said that he is Sambha. (The said person hasbeen as¹ d his name, he told that he is Sambha). Anil is notpresent in the court. (The advocate for accused Anil has filedapplication for exemption of Anil and it has been granted on thecondition and not to dispute the identity of Anil). I can identifyAshwini Gawali.”13.PW7 Dr. Rawlani is the Medical Officer, who examinedPW2 victim. In his testimony, he deposed as under :- “On 15.10.2017, I was resident Medical Officer at GovernmentMedical College, Aurangabad. On the said date the police gaveletter to Medical Officer, GMCH for medical examination of thevictim girl. (The witness has stated the name of the victim girl,but it is not mentioned to maintain privacy). The said letter nowshown to me is the same. It is marked as Exh. 69. I called myfemale colleague Dr. Ashwini Torage to assist me. I asked thevictim girl the history in vernacular language. The victim girl Cri.Appeal.999.2023-12-narrated the history to me in vernacular language. I noted downthe said history in the report in English language. The saidhistory as mentioned in the report now read over to me is thesame. The gist of the history was that the victim girl wasacquainted with assailant and they had talks with each other andthat on 13 & 14.10.2017 the assailant committed forcible sexualintercourse with the victim girl. 2. Thereafter, I with the assistance of Dr. Ashwini Toragemedically examined the victim girl. On her general examinationno external injuries were found on her body. We have conductedgentile examination of the victim girl. I found that there weretears to hymen. There was spotting and presence of minimalbleeding in the vagina. I did not perform her per speculum andper vaginal examination of the victim girl. I have taken thevagina sample of the victim girl. Upon medical examination ofthe victim girl I formed the following opinion - There are signs of forceful penetration of vaginaand possibility of sexual intercourse cannot beruled out. 3. I accordingly prepared the medical examination report.The said report now shown to me is the same. It is in myhandwriting. It bears my signature and seal of GMC Hospital,Aurangabad. The contents of the medical examination report aretrue and correct. It is marked as Exh.70. The victim girl's consentform is attached with the medical examination report. It bearsthe signature of victim girl and mine signature.”14.PW9 Dr. Katrina is the Medical Officer, who examinedaccused. In her testimony, she deposed as under :- Cri.Appeal.999.2023-13-“1.On 15.10.2017, I was working as Medical Officer, at subDistrict Hospital, Gangapur. On the said date, the police hadreferred Siddharth Ashok Tupe to Sub District HospitalGangapur for me lical examination. I medically examined himwith reference to allegation against him about sexual assault. Inthe said examination I noticed the following aspect and injuries. The patient was well nourished. There was fresh abrasion 1 c.m., red in colour and age ofinjury within 6 hours. The said injury was on neck. However, Iforgot to mention it in the register and certificate. I had taken blood sample of the said person for bloodgrouping. There was no evidence suggestive of that the person is notcapable of doing sexual intercourse. He can very well performthe sexual intercourse. 2. I accordingly prepared the medical certificate. It is noshown to me is the same. It bears my signature. The contents aretrue and correct. It is marked as Exh.84.”ANALYSIS15.Before adverting to the evidence on the point of chargeswhich are said to be proved, it is also required to be ascertain thiscourt being first appellate court, whether prosecution is indeed at allfailed to prove that victim was minor in view of definition providedunder section 2(d) of POCSO Act. On re-appreciating the evidence ofinformant, it is emerging that, he is a cousin. Biological parents ofvictim are not examined on the point of date of birth of victim. Cri.Appeal.999.2023-14-Though victim and her cousin i.e. informant have given date of birthand evidence of PW10 Headmistress, is of no avail to the prosecution,because firstly she is not carrying the original record, on the strengthof which entry is taken in the extract Exh.86 tendered by her in thecourt. Her cross goes to show that, he is not in a position to satisfy onthe point of source of said date incorporated in the record. It isimperative for the prosecution to substantiate the date of birth whenprovisions of POCSO Act are attracted. Here, the manner of cross ofPW10 Headmistress gives scope for doubt about the exact date ofbirth appearing in the school record. Therefore, learned trial courthas correctly discarded such evidence on the point of age andanswered point to that extent in negative. On the aspect of sexual assault, after appreciating thesubstantive evidence reproduced above and also on meticulouslygoing through the cross of above witnesses, it is noticed that,evidence of victim, more particularly has remained unshaken. Herevidence shows that she did get acquainted with accused through herfriend and acquaintance grew further. She has deposed that heexpressed his desire to marry her. On 08.10.2017, she claims that,he called her, asking her to meet outside and then claims that sheforced into a vehicle by associates of accused and taken toAurangabad while appellant was behind the wheels. She deposed of Cri.Appeal.999.2023-15-being threatened, if she raises voice. She has given the route ofvehicle being taken from Newasa to Ahmednagar, taken to house of alady, then confined in the house. Again further taken to one villageand there she claims that on 11.10.2017, applicant disrobed her andhad sexually intercourse with her. She also deposed being taken to atemple and golden string tied to her neck and again committingsexual intercourse on two to three occasions. 16.Learned counsel for appellant would hotly contest theabove testimony on the ground that there was no resistance,objection or raising alarm during almost a week stay and in spite ofmoving to various places. That, there are no injuries of struggle onher person and that there was rather active submission. Learnedcounsel also invited attention of this court through the evidence ofboth medical experts and would submit that, answers given by themin cross renders the act of forceful sexual intercourse itself doubtful.This court finds no substance in the above submissions. Once, thevictim testifies or deposes the act to be forceful, no contrary standlike passive submission about not raising alarm, not resisting is openfor a person, who is accused of committing rape. Here, victim hascategorically and repeatedly testified about being forced upon.Therefore, it is not open for anyone to give a different complexion tothe story narrated by the victim. Here, medical expert has deposed Cri.Appeal.999.2023-16-about receiving history from the mouth of victim herself. Thus, thereis no further need for other independent corroboration. There is noreason for medical experts to issue false opinion. It is to be notedthat, it is fairly accepted position that, medical evidence is opinionevidence, but when it is consistent with witness account, accusationsget reinforced and fortified.17.Perused the judgment under challenge. Learned trialJudge has apparently entertained each and every defence raised byaccused. Evidence on record adduced by prosecution has been put tominute scrutiny. Answers given by victim and doctor while undercross are also correctly appreciated. Judgment rendered is wellreasoned and after taking recourse to settled legal precedents.Consequently, there is no reason to over turn the judgment or findany fault or infirmity in the judgment.18.Contention put-forth at the end that appellant hadsuffered almost 7 years out of 10 years and that he is of young age, hebe let off on already undergone sentence also cannot be considered inthe light of gravity of the offence.19. There being no merits, appeal stands dismissed. Cri.Appeal.999.2023-17-20.Fees of learned Advocate, who is appointed to representthe cause of respondent No.2 is to be paid by the High Court LegalServices Sub-Committee, Aurangabad as per rules. (ABHAY S. WAGHWASE, J.) Tandale