High Court
Legal Reasoning
CriAppeal-832-2018-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 832 OF 2018Ram s/o. Dashrath Korde,Age- 28 years, Occ.- Nil,R/o – Navnath Wasti, Mochipimplagaon,Taluka and District Beed.… AppellantVersus1.The State of Maharashtra2.XYZ… Respondents…..Mr. Ravindra S. Shinde, Advocate for the Appellant.Mr. N. D. Batule, APP for Respondent No.1-State.Mrs. Rashmi S. Kulkarni, Advocate for Respondent No.2 [appointed]...... CORAM :ABHAY S. WAGHWASE, J. DATED :02.01.2024 JUDGMENT : 1.Instant appeal is directed against the judgment and order ofconviction passed by learned Special Judge, Beed dated 24.09.2018 inSpecial (POCSO) Case No. 28 of 2016 tried for the offencespunishable under Sections 363, 366-A, 376(2)(i)(j) of the IndianPenal Code [IPC] and Sections 4 and 6 of the Protection of Childrenfrom Sexual Offences Act, 2012 [POCSO Act] thereby sentencing theappellant to suffer imprisonment as spelt out in the operative part ofthe order. CriAppeal-832-2018-2- 2.In nutshell, case of prosecution is that victim, a minor studyingin 9th standard, went missing from the house on 31.05.2016. As inspite of search she was not found, mother PW3 lodged report Exhibit73 on 01.06.2016. Minor was found on 03.06.2016 and on inquirywith her, she narrated that she got acquainted with one Juvenile andthey came close to each other. Noticing her such conduct, motherstarted seeing suitable groom and therefore, on 31.05.2016 around10.00 a.m., minor left the house. Present appellant developed contactwith her and informed that her mother had lodged complaint andmade her accompany him to the house of his grand mother at villageDhekanmoha. In the night he disrobed her and, according to her, hadforcible sexual intercourse with her that night and even on the nextday and finally dropped her near Barshi Naka. 3.Victim was spotted by police at the bus stand and was broughtback after which her statement under Section 161 as well as Section164 of Cr.P.C. was got recorded. Police machinery registered crime onthe complaint lodged by mother with is at Exhibit 73. PW11 APIJadhav carried out investigation and on gathering sufficient evidence,accused appellant was chargesheeted and in view of the charge, wastried and held guilty by learned Special Court.
Legal Reasoning
CriAppeal-832-2018-3- Precisely said judgment and order of conviction is now takenexception to by filing instant appeal by invoking Section 374 of theCode of Criminal Procedure [Cr.P.C.].SUBMISSIONS4.Learned counsel for the appellant would submit that it isapparently false implication. There is no cogent, reliable, trustworthyaccount including that of said victim. He took this court through thestatement given by victim to police, her statement recorded bylearned Judicial Magistrate First Class and even her substantiveevidence in witness box and would strenuously submit that victimapparently went on changing her versions and each time new story isset up and as such, according to him, her version/testimony is notcredible and reliable. 5.He would point out that even going by the story of prosecution,it is evident that the girl had herself left her place. That, she hadherself stated and deposed about her relations with a juvenile andthat she had several sexual encounters with him. That, subsequentlyshe has, probably at the instance of her mother who was on crossterms with the father of accused, deliberately roped appellant withulterior motive. Further according to him, here, material witnesses CriAppeal-832-2018-4- like very sister of victim, the landlady whose room she allegedlyoccupied or the alleged grand mother of accused at whose house sheclaimed to have been forced upon are not examined by prosecution.That, pancha to spot panchanama has also not supported. For saidreasons also he doubts the prosecution version. He lastly submittedthat even medical evidence does not clearly establish offence offorceful rape and thus, according to him, with such weak type ofevidence, learned trial Judge ought not to have accepted theprosecution version. For all above reasons, he prays to interfere andset aside the judgment under challenge by allowing the appeal.To buttress his contention, learned counsel for the appellanthas placed reliance on the decisions in Suresh Govinda Nagdeve andAnother v. State of Maharashtra ; 2008 Cri.L.J. 2943 and NarenderKumar v. State (NCT of Delhi) ; AIR 2012 SC 2281. 6.Per contra, learned APP would point out that in trial courtprosecution has firmly and cogently established that victim wasminor. That, her testimony regarding forceful sexual acts with her byappellant has remained intact. Her sole testimony is inspiringconfidence. Further according to him, even medical evidence andforensic evidence fortifies the prosecution case. Evidence has rightly CriAppeal-832-2018-5- been appreciated and correct conclusion has been drawn and so heprays to dismiss the appeal for want of merits. 7.Learned counsel appointed on behalf of victim would alsostrenuously submit that there is no challenge about victim to be aminor. She also led emphasis on the substantive evidence of victimand would submit that the very manner of cross of the victim clearlyshows that there is also no serious dispute about the sexual assault onher by appellant more than once. That, she remained steadfast inspite of incisive cross-examination. Further according to her, in casesof such nature it is fairly settled position that sole testimony of avictim of sexual assault, if it inspires confidence, can be made thebasis of conviction. According to her, case in hand is of similar typewherein evidence of PW2 victim is having ring of truth and hertestimony has remained intact and unshaken. Further according toher, scientific evidence fortifies and confirms involvement of appellantas blood of victim is found on his clothes for which there is noexplanation. 8.Learned counsel representing victim would add that futileattempt has been made by adducing defence witness that too of veryfather of appellant himself who happens to be maternal uncle of CriAppeal-832-2018-6- victim and the further attempt of showing false implication on theground of partition of property not being supported with anyfoundation, is of no avail and has been rightly discarded by trialcourt. While summing up, she would submit that prosecution hasfirmly and cogently established the charges and therefore, learnedtrial court committed no error whatsoever in accepting the case ofprosecution as proved. Resultantly she prays to dismiss the appeal. 9.Here, in support of its case prosecution has examined 11witnesses and their status/role could be summarized as under;PW1Paternal uncle of victim has hearsay information. PW2Victim.PW3Mother of victim.PW4 Baliram and PW5 Nitin are panchas but they have notsupported.PW6PC Kanade is the carried who took muddemal to thelaboratory. PW7Headmaster of the school where victim was taking education. CriAppeal-832-2018-7- PW8Dr. Shinde who medically examined victim and issued reportExhibit 68.PW9Head Constable Bombale who recorded complaint Exhibit 73.PW10Ravindra is pancha to seizure of documents, however he hasnot supported prosecution.PW11 API Jadhav is the Investigating Officer [IO].10.On re-appreciation, re-analysis and re-examination of entireprosecution evidence, in my considered opinion, testimony of PW7Headmaster, PW2 victim and her mother PW3 as well as evidence ofPW8 medical expert is of significance. ANALYSIS11.Though here no issue is raised regarding age of victim, thiscourt deems it fit to get satisfied that victim is a minor.12.I have carefully gone through the testimony of PW7Headmaster at Exhibit 60. He deposed that victim was student of theirschool, who had taken admission in 9th standard. According to him, asper school record, ie. T.C. of earlier school filed at the time ofadmission, reflects date of birth of victim as 07.08.2001. He also CriAppeal-832-2018-8- placed on record admission form along with T.C. and the same aremarked as Exhibits 62 and 63. There is no effective cross of PW7.Even otherwise during hearing of the appeal, learned counsel for theappellant at the outset on court query conceded that he has no issuesabout victim to be not a minor. Going by the date of birth and thetestimony of PW7 Headmaster, it is established by prosecution that on31.05.2016, victim was around 15 years old and hence a minor. 13.Once having established that victim PW2 was a minor, now it isto be further seen on re-appreciation of evidence whether, as claimedby prosecution and as affirmed by learned trial judge, offences forwhich appellant was charged are established. As stated above,evidence of PW3 mother and PW2 victim as well as that of medicalexpert PW8 is crucial i.e. on the point of forceful sexual assault. 14.Mother PW3 at exhibit 48 has deposed that she went for labourwork. Her son had been to Pune whereas her both daughters were athome and when she returned in the evening, her differently ableddaughter informed that victim received call and she went away sayingthat she would not return. At that time victim was 14 years old andstudying in 9th standard. Mother PW3 has further deposed that afterwaiting for a day she lodged complaint at Pimpalner Police Station. CriAppeal-832-2018-9- That, her daughter was found after four days by Shivaji Nagar Police.She further deposed that in front of her house, appellant resided andhe assured victim daughter of marriage and had physical relationswith her after taking her to Dhekanmoha. 15.She is subjected to extensive cross on the point as to whethervictim was receiving calls from juvenile, for how many hours theytalked. She admitted that getting fed up of victim’s behaviour shedecided to perform her marriage. After again questioning her aboutthe standard in which victim took education, she was asked aboutvictim’s age but she was unable to give her date of birth and name ofthe teacher. After questioning her about other daughter, suggestionsare given regarding financial crisis, but she flatly denied aboutdemanding any partition from her brother or any quarrel with him.On re-examination by APP, mother answered that she can file birthcertificate after collecting it from hospital. 16.Star witness of prosecution is PW2 victim. In her initialexamination-in-chief, she stated about her acquaintance with ajuvenile, about her mother inviting guests after deciding to performher marriage. Regarding the offence, she stated that on 31.05.2016,she received call from juvenile informing her that he was ill and to CriAppeal-832-2018-10- come and meet him and therefore, she claims that, she carried cash ofRs.3000/- from the house and informed her sister that she would notreturn and came to Beed. She and juvenile stayed in a room atTelgaon Naka. After some time, juvenile went back to his house. Inthe next day morning she visited Jijamata Chowk to buy articles andat that time she received call from appellant informing her aboutlodgement of complaint by her mother and that she should notwander. He asked her to accompany him to the house of hisgrandmother and accordingly, they went at 6.00 pm on motorcycle tovillage Dekanmoha. She testified that when his old aged grandmotherwent to sleep, at night appellant disrobed her and had forcible sexualintercourse. That, she pushed him but he again tried to disrobe herand so she went outside, hired a rickshaw and came to Beed butappellant followed her, made her get down and accompany him onmotorcycle behind oil mill. According to her, there he again hadsexual intercourse with her and then dropped her at Barshi Naka.Thereafter she spent night in a temple and on 02.06.2016 shereceived phone call from daughter-in-law of her paternal aunt and soshe went and stayed there. But same night, she went to bus stand.She deposed that seeing her, police took her in custody. CriAppeal-832-2018-11- 17.Learned defence counsel cross-examined victim by questioningher when she lost her father, cause of his death, about house ofjuvenile, its distance from her house and names of friends of juvenile.She admitted that police recorded her statement as per her say on04.06.2016. She identified portion marked “A”. Then she wasquestioned about her mother leaving the house for labour work on31.05.2016. Omissions are brought about she taking Rs.3000/- cashand clothes, about staying in the room of landlady Abu by taking it onrent at Rs.800/-, about appellant attempting to establish physicalrelations again in the night and in anger she leaving the house in autorickshaw and appellant following her and stopping the rickshaw andabout she pushing accused when he tried to have sexual intercourse.She was unable to give the names of the hotel and the lady whom shemet at parlor. She admitted that she narrated the incident dated01.06.2016 to police for the first time on 04.06.2016. However, sheclarified by stating that she did not disclose to anyone till 04.06.2016as she was scared. She admitted that juvenile used to assure her ofmarriage and so she became intimate with him. Then she isquestioned about her academics, mode of attending school. Rest is alldenial. CriAppeal-832-2018-12- 18.PW8 a doctor who has occasion to subject victim to physicalexamination, deposed about LPC bringing victim to the hospital forage estimation and forensic medical examination regarding sexualassault. She deposed that on medical examination, she did not findany physical injuries on the body of the victim but she noticed hymento be torn and it was an old tear. In cross, she admitted that final opinion is issued after receivingCA report which she claimed to be carrying in the court. As per heropinion, sexual assault could not be ruled out. 19.On carefully analyzing testimony of mother and victim, it isclear that victim left the house on the morning of 31.05.2016. Thoughvictim deposed about leaving the house on being called by a juvenile,as regards to present appellant is concerned, she categoricallydeposed that he contacted her and took her to Dhekanmoha onmotorcycle. She is very categorical about she being disrobed in thenight. She specifically deposed that he had forcible sexual intercoursewith her and when he attempted it again, she seems to have left thehouse but again she stated that he made her sit on his motorcycleafter alighting from the rickshaw and had sexual intercourse with her CriAppeal-832-2018-13- second time. It is pertinent to note that though victim is incisivelycross-examined, there is virtually no cross regarding the abovedeposition about appellant developing contact with her on phone,taking her on motorcycle and having sexual intercourse in the houseof grandmother. The victim has stated about forceful sexualintercourse and she pushing him. She was second time made to havesexual intercourse. So much part of her testimony has remaineduntouched and therefore not disputed. This court has alreadyaffirmed the finding of learned trial court regarding victim to be aminor. 20.Before this court, prosecution case and conclusion reached bylearned trial court is criticized firstly on the ground of delay bysubmitting that alleged occurrence is of 01.06.2016 and the statementof victim is recorded on 04.06.2016. It needs to be noted that PW3mother had already lodged report on 01.06.2016. Only when the girlwas located by police, events came to light on inquiry with her. Evenotherwise, in cases of such nature, delay is not of much significance. Itmay affect the merits if there is no explanation at all for the saiddelay. However, in the case in hand, victim has answered in her crossthat she did not report because she was scared. Hence, there is aplausible explanation for the delay. CriAppeal-832-2018-14- Second ground of attack is that material witnesses are notexamined. It is true that grandmother of appellant, to whose houseappellant took victim, is not examined but learned counselrepresenting victim has pointed to the testimony of InvestigatingOfficer wherein he has assigned reason for not recording statement ofgrandmother because of her impaired auditory and speaking capacity.Even otherwise, sole testimony of victim, if truthful, is sufficient torecord conviction and when it inspires confidence, corroboration neednot be insisted upon.Learned counsel for the appellant also tried to make a hue andcry by submitting that there are material omissions in the testimony ofvery victim and that she went on changing her versions and henceunreliable. In the light of such submission, this court has carefullygone through the testimony of victim and this court does not find theso called omissions to be too material which would render the entirecase of prosecution itself doubtful. She is a minor and victim offorceful sexual assault who had suffered the atrocity on having leftthe company of her mother and therefore there are bound to be slightvariations in her statements and substantive evidence. In theconsidered opinion of this court, the so called omissions cannot be CriAppeal-832-2018-15- termed as material so as to have impact on her very testimony, thecore of which having remained unshaken. 21.Consequently, to sum up, evidence adduced by prosecutioncogently proved that PW2 victim on 31.05.2016 was a minor. She wasforced upon by appellant not once but twice. PW8 Dr. Shinde, whosubjected victim to physical examination has opined that possibility offorceful sexual intercourse cannot be ruled out. Therefore, apparently,victim was taken away without consent of PW3 mother and as such,initially offence under Section 363 of IPC has been committed.Medical evidence and forensic evidence fortifies charge of forcefulsexual rape. Appellant could not point any infirmity or infraction inthe appreciation at the hands of learned trial court. 22.Resultantly, required ingredients for attracting the chargesbeing available on record, no fault can be found in the conclusionarrived at by learned trial Judge. Citations relied by learned counselfor the appellant cannot be taken aid of as the facts in those cases aredistinct than the facts in the case in hand. Finding no merits, Iproceed to pass the following order : CriAppeal-832-2018-16- ORDERI.The appeal is hereby dismissed.II.Fees of the learned Advocate appointed to represent the causeof respondent no.2 is quantified at Rs.10,000/- [Rupees ten thousandonly] to be paid by the High Court Legal Services Sub-Committee,Aurangabad. [ABHAY S. WAGHWASE, J.]vre