High Court
Legal Reasoning
{1} CRI APPEAL 32 OF 2020IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 32 OF 2020.Pandurang S/o. Vithal KambleAge: 33 years, Occu.: Agril.,R/o. Mangural, Tal.Kallamb,Dist.Osmanabad.….Appellant(Org. accused) Versus1.The State of MaharashtraThrough the Police Station Officer,Shiradhon Police Station,Tq.Kallamb, Dist.Osmanabad.2.X.Y.Z.….Respondents …..Advocate for Appellant : Mr. P.B.JadhavAPP for Respondent no.1 : Mr.N.D.Batule Advocate for Respondent no.2: Mr. Abhijit G. Choudhari….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 18 MARCH, 2024 PRONOUNCED ON : 03 APRIL, 2024 JUDGMENT :- 1. Appellant herein is questioning the judgment and order passedby learned Special Judge Osmanabad dated 29-08-2018 holding himguilty for offence under Sections 377 and 506 of the Indian PenalCode (IPC) and under Sections 4 and 6 of the Protection of Childrenfrom Sexual Offences Act (POCSO Act). {2} CRI APPEAL 32 OF 2020FACTS OF PROSECUTION CASE IN BRIEF2.This is an unfortunate case of pederasty i.e. male committingcarnal intercourse with a male child. PW1 Victim, a boy aged 11 years, was studying in 5th Standard.On 12-12-2017 at around 3:00 p.m. while he was playing near aSamaj Mandir of his village, appellant went there and gave call to thevictim. When victim refused, he dragged him towards a ditch,himself got undress, removed clothes of victim and he committedcarnal intercourse by threatening to slit his throat. Out of fear, childdid not disclose said act to anyone. Even his parents were at the fieldfor agricultural work. After taking dinner, he disclosed the incidentto his father. In the morning, he also informed his mother, becausehe was suffering pain to his anus. Father took him to Police Stationand thereafter, before learned Magistrate, where his statements arerecorded. PW2 father of victim lodged report exh.10 on the basis ofwhich crime no.269 of 2017 was registered for offence underSections 377, 506 of the IPC and Section 4, 6 of the POCSO Act. Said crime was investigated by PW10 Mane (PSI), who after itscompletion and gathering sufficient evidence, chargesheeted accused.Case being triable by Special Court, it was assigned to Special Judge,
Legal Reasoning
{3} CRI APPEAL 32 OF 2020who conducted trial and finally after appreciating evidence onrecord, recorded guilt as stated above.Said judgment is impugned herein by filing instant appeal onvarious grounds mentioned in appeal memo.SUBMISSIONSOn behalf of Appellant : 3.Challenging the conviction, learned Counsel for the appellantwould point out that testimony of victim is not inspiring confidence.He is a child, who has been tutored to falsely implicate appellantbecause of dispute and quarrel for letting away sewage water anddispute over purchase of land. That law is fairly settled thattestimony of child witness should not be acted upon withoutcorroboration. Here there is no corroboration. According to him, nobody has seen accused in company of victim. 4.He next submitted that inspite of alleged occurrence takingplace in the afternoon at 3:00 p.m. on 12-12-2017, report is lodgedon 14-12-2017. There is no plausible explanation for delay.Neighbours of the spot are not examined. According to him, evenmedical evidence does not support prosecution as examining Doctor {4} CRI APPEAL 32 OF 2020has not noticed any injuries either on the person or private parts ofthe victim. He also pointed out that Doctor has also not collectedsample of semen of the accused. That prosecution case is rested oninterested witnesses. That Panchanamas are not proved. However,still learned trial Court has accepted case of prosecution as provedwithout assigning satisfactory reasons and for all above reasons, heprays to set aside the judgment by allowing the appeal.On behalf of State as well as victim : 5.Strongly opposing the appeal, learned APP as well as learnedCounsel for victim would strenuously submit that appellant ispervert. That crimes of similar nature are shown to be committed byhim. That victim, a 11 years boy has been sodomized. They pointedout that there was threat to kill and therefore, child did not raisealarm. Moreover, his parents were out of the house for working andonly after returning in the night, he has disclosed act of accused tothem. Therefore, there is some delay in lodging complaint. As suchthere is no reason to hold that there is deliberate delay. It is furtheradded by both that considering nature of crime, delay, if any, isinsignificant. {5} CRI APPEAL 32 OF 20206.Refuting false implication, they would submit that there is noreason for the child to falsely depose. Moreover, there is nothing toshow that there was any quarrel or dispute and as such false defencehas been taken. Learned APP pointed out statements of victim andhis father recorded before learned Magistrate and he submitted thatversions are consistent throughout. That accused is resident of samevillage and therefore, was known to the victim. That victim hasnamed accused and therefore, there is no reason to disbelieve suchquality of evidence.7.They also invited attention of this Court to medical evidenceand submitted that Doctor has clear opinion. That in cases of suchnature, there may not be injuries, more particularly, when act iscommitted by threat to kill. According them, victim’s evidenceinspires confidence. That he has withstood entire cross withoutgetting shaken. Therefore, learned trial Court has correctlyappreciated evidence and has committed no error whatsoever inreturning the guilt. According to them, there is no illegality orperversity in the findings of the learned trial Court so as to interfereand hence, they pray to dismiss the appeal. {6} CRI APPEAL 32 OF 2020EVIDENCE ON BEHALF OF PROSECUTION IN TRIAL COURT 8.PW1 victim deposed that he is unable to give date of birth. Heis studying in 5th Standard. He knew accused, who he identified asfellow villager. About the incident, he deposed that occurrence tookplace on 12-12-2017 at around 3:00 p.m. in a ditch near SamajMandir of village, while he was playing, accused came, called himbut he denied to go. He deposed that he was gagged and dragged ina ditch. He removed his own pant, undergarments as well as pantand undergarment of victim and inserted his pennis into victim’sanus. 9.Accused threatened to slit his neck by katti (dagger), if hediscloses the act to anyone. He went home but did not disclose it tohis grandmother. His parents returned from the field at around 5:00p.m. to 6:00 p.m. After dinner, he informed to his father. In themorning, as he was suffering pain in anus, he told his mother.Thereafter, his father took him to Police Station and his statementwas recorded there as well as before learned Magistrate. Heidentified the same at exh.8. 10.PW2 father of victim, in his evidence at exh.9, stated thatoccurrence took place in the noon of 12-12-2017. At relevant time, {7} CRI APPEAL 32 OF 2020he and his wife were in the field. He came at 6 p.m. and after dinner,his son told that accused inserted his pennis into his anus at noontime near Samaj Mandir. That his son further told that accusedthreatened him that if he discloses it to anybody else, he would killhim by katti. In the morning, his son told his wife about pain in theanus. With a view to protecting his regard, he immediately did notrush to Pollice Station. On 14-12-2017 he approached Police andregistered complaint and even gave statement before Magistrate. 11.PW3 Dr.Sudhir Trimbaklal Jogdand deposed about 11 yearsboy brought to PHC by Police on 14-12-2017 and on examination, henoticed black colour skin rash region over right and left tiibal region.He also examined accused and noticed abrasion on abdomen ofaccused and injury was fresh and oozing with blood. In further examination-in-chief, Doctor deposed that aftergoing through CA reports exh.28 to 30, blood group of accused andvictim was “B”. Semen stains were depicted on articles underwear ofvictim, full pant and underwear of accused. He further deposed thata boy of 11 years does not ejaculate semen and in his opinion, therewas contact and attempt of sexual act on victim as there was no analinjury. {8} CRI APPEAL 32 OF 202012.PW4 Vandana Ramesh Misal, resident of village Mangrul,deposed that she knew both accused and victim as they are fromsame village. Accused to be married having children. His wife hasabandoned him. He was jobless and loitering in the village and hehad molested a minor girl. 13.PW5 Ramling Shrimant Kadam, who was working asGramsevak placed on record birth certificate exh.23 and 25. 14.PW6 Rahul Nanasaheb Kamble, Pancha of seizure of clothes ofaccused has not supported prosecution.15.PW7 mother of victim, stated that on that day she and herhusband were at field. After dinner, her son told that at noonaccused had dragged him in a ditch near Samaj Mandir, removedunderwear of her son, his own and thereafter committed sodomy.That her son told that accused threatened to behead him by katti.Next day morning, her son complained of swelling to anus. They didnot disclose to anyone to protect spoiling of their image. Herhusband lodged complaint next day. Police and Magistrate recordedher statement. PW8 Vijay Baban Pawar is Pancha to spot, seizure of soil {9} CRI APPEAL 32 OF 2020samples and clothes of victim.PW9 Narhari Dnyanoba Munde is Carrier.PW10 Subhash Gokul Mane (PSI) is Investigating Officer.ANALYSIS16.Case of prosecution here primarily and fundamentally rests ontestimony of PW1 victim. Entire examination-in-chief of the victim isreproduced in aforesaid paragraph. The gist of his evidence is thaton relevant day while he was playing near a ditch, accused draggedhim in the ditch, removed clothes of victim, himself got undressedand inserted his pennis in child’s anus. According to victim, he did itafter issuing threat to slit his neck by dagger. On going through the cross-examination faced by the victim,there seems to be questions pertaining to location of the SamajMandir, circumstances around said spot, residential houses ofvillagers, road for passage and distance of the spot. Child flatlydenied that any of his friends were playing with him at the time ofincident or any villagers passing thereby. Again he is questionedabout surroundings to the location, about slope of gutter near thehouse of Shahaji and flow of sewage discharge, but the child hascategorically denied that 5-6 months prior to the incident, there wasany quarrel between his father and accused about discharging the {10} CRI APPEAL 32 OF 2020sewage into the gutter water. He further flatly denied that his fatherthreatened accused to falsely drag him in the case. Rest is all denial. 17.Admittedly, parents of victim i.e. PW2 and PW7 have receivedinformation after they returned in the evening. They both arespeaking about complain of pain in the anus by the victim. It ispertinent to note that both parents are speaking about protectingtheir image and reputation. Consequently, they divulged frompromptly approaching Police. In tradition bound society, parents ofvictim of such offences are extremely reluctant to disclose to avoidattention of society. Such instances have serious reflections on theirimage. Moreover, they are illiterate labours. Therefore, there isreason for approaching Police Station on 14-12-2017 regardingoccurrence of 12-12-2017. 18.Learned Counsel for the appellant would strenuously andforcefully submitted that victim, a child, has been tutored to falselyimplicate in the background of some quarrel between accused andfather of victim resulting out of letting out sewage water in thegutter. Such submission apparently is nothing but a desperate attempt {11} CRI APPEAL 32 OF 2020to create doubt. There is no distinct evidence in support of suchevidence. Even attempt of suggesting such defence to the very victimchild has gone futile as the child having flatly denied any quarrelwith his father on that count. 19.Much stress is also laid by learned counsel for appellant on thepoint that there is no supporting medical evidence. There are noinjuries noticed by medical expert and even semen of the victim hasnot been gathered by Doctor. In the light of above submissions, evidence of PW3 Dr.Jogdandis put to minute scrutiny upon which it is revealed that Doctor onexamination, noticed a mere black colour skin rash legion over rightand left side tibial region and the same is computed to be 7 to 8months back. Apparently, Doctor though has issued exh.15 statingthat there is no injury found on the body or near anal region, pennisregion, peri-anal region, pubic region, but it is pertinent to note thatsaid examination has been carried out on 14-12-2017 i.e. after twodays of alleged occurrence. Resultantly, it is possible that Doctor maynot have noticed any injuries on the anus. Child has reported pain tothe anus in the morning of 13-12-2017 and apparently medicalexamination is done on 14-12-2017 i.e. after child being referred for {12} CRI APPEAL 32 OF 2020medical examination on registration of crime. Both parents claim tohave heard their child making complain of pain to the anus. Theyhave stuck up to such version both in statement under Sections 164of the Code of Criminal Procedure before learned Magistrate as wellas are consistent on this count in witness box. Mere omission on thepart of father that his son told his wife that he suffered pain in anusis not material omission. 20.Here evidence of child is of prime importance and victim childhas, categorically stated about the act indulged by the accused withhim. As stated above, mere absence of visible external injuries on theprivate part of victim, itself is not a good ground to either doubt theversion of a innocent child, who has stood steadfast and firm in thewitness box both in examination-in-chief as well as while undercross-examination as regards to actual act is concerned. Evenotherwise, medical evidence is mere opinion evidence. Law is fairlysettled that in cases of sexual violence, it is not imperative forprosecution to substantiate the charge by adducing medical evidence.Infact in cases of such nature, evidence of victim of sexual violence isentitled to great weight unless it is patently shown to be unworthy ofcredence. Consequently, plea of lack of corroboration raised beforethis Court has no substance or force. The Hon’ble Apex Court in the {13} CRI APPEAL 32 OF 2020case of Bhupinder Sharma v. State of Himachal Pradesh [(2003) 8SCC 551] observed “11. Rule regarding non-requirement ofcorroboration is equally applicable in the cases of nature relating toSection 377 of the IPC.” 21.As regards to submission about semen of accused not gatheredby Doctor is concerned, it is true that PW3 Dr.Jogdand unfortunatelyin paragraph no.7 of examination-in-chief stated that he did notcollect semen of accused because of refusal, but that itself would notbe beneficial to the accused. Here issue is whether carnal orunnatural sexual offence is committed by appellant on victim, who isa child, who is vulnerable. There is no question of potency alsounder consideration. Only it is to be seen whether there is act ofsodomy. Child’s evidence here is inspiring confidence. Here onfurther examination-in-chief, Doctor has, on perusal of CA report,confirmed availability of semen stains on the garments of both victimas well as accused and they both are said to be of ‘B’ blood group. Infurther examination--in-chief in paragraph 17, Doctor has confirmedthat he had taken sample of semen of accused and also had handed itover to Police for CA. Even otherwise mere absence of semen itself isnot sufficient to rule out offence under Section 377 of the IPC. {14} CRI APPEAL 32 OF 202022.Testimony of PW4 Vandana brings to light involvement ofappellant in similar pervert acts. Copy of FIR to that extent has alsobeen gathered by investigating machinery. This can be said to be avalue addition throwing light on the pervert nature of appellant,which also cannot be lightly brushed aside. SUMMATION23.To sum up, here evidence of victim child, which is crucial, isinspiring confidence. Though there is delay in reporting to Police,child has promptly reported incident to his parents. Delay inapproaching Police is at their end for the reasons discussed inaforesaid paragraphs. Mere absence of injury marks on the privatepart upon medical examination, which is apparently done afterdelayed period, is also no good ground to discard victim’s evidence.Defence of false implication has not been probabilized by any means.24.Learned trial Court has, in the view of this Court, correctlyappreciated the oral and documentary evidence. There is noinfirmity, perversity in appreciation of available evidence so as tointerfere in the impugned judgment. Appeal fails and judgmentpassed by the learned trial Court is required to be sustained.Accordingly, I pass following order : {15} CRI APPEAL 32 OF 2020ORDERCriminal Appeal No.32 of 2020 stands dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT