Bombay High Court
Roshan S/O. Purushottam Wankhade vs The State Of Maharashtra Thr. P.S.O., ... on 24 July, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:9076
248 cr.a. 572.18.jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 572 OF 2018
Roshan S/o Purushottam Wankhade
Aged about 22 yrs. Occ. Labourer,
Resident of: Dehni, Tq. Tiosa, .... APPELLANT
District : Amravati (In Amravati jail)
// V E R S U S //
1. The State of Maharashtra,
Through P.S.O., Police Station,
Tiosa, District : Amravati
2. X (Complainant/Informant) through
Police Station Officer, P.S. Tiosa,
District Amravati
Crime No.143/2014 ... RESPONDENTS
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Mr Parimal R. Jalit, Advocate for appellant.
Mr. Suraj Hulke, APP for respondent No.1/State.
Ms M.Z. Haq, Adv. h/f Mr. Z.Z. Haq, Advocate (Appointed) for respondent
No.2.
-----------------------------------------------------------------------------------------------
WITH
CRIMINAL APPEAL NO. 477 OF 2018
Nandu S/o Rameshrao Avzad
Aged about 28 yrs. Occ. Labourer,
R/o Dehni, Tq. Tiosa,
District : Amravati .... APPELLANT
(Accused No.2)
// V E R S U S //
The State of Maharashtra,
Through P.S.O., Police Station Tiosa,
District : Amravati ... RESPONDENT
248 cr.a. 572.18.jud..odt
2
-----------------------------------------------------------------------------------------------
Mr N.R. Tekade, Advocate for appellant.
Mr. Suraj Hulke, APP for respondent/State.
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CORAM : G. A. SANAP, J.
DATE : 24.07.2024
ORAL JUDGMENT :
1. These two appeals arise out of the judgment and order dated 23.03.2017 passed by the learned Sessions Judge Amravati, and therefore, the same are being disposed of by common Judgment.
2. Appeal No.572/2018 is filed by original accused No.1 and appeal No.477/2018 is filed by original accused No.2. Learned Sessions Judge, vide judgment and order dated 23.03.2017, held the accused/appellants guilty of the offences punishable under Sections 376(D) of the Indian Penal Code (for short "the I.P.C.") and under Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, " POCSO Act"). On first count i.e. under Section 248 cr.a. 572.18.jud..odt 3 376-D of the I.P.C., they are sentenced to suffer rigorous imprisonment for twenty years and to pay a fine of Rs.50,000/-, in default, to suffer rigorous imprisonment for one year each, and on the second count under Section 3 read with Section 4 of the POCSO Act, they are sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for six months each.
3. Background facts:-
Before the Sessions Court in Special (POCSO) Case No.6/2014, there were seven accused. The Sessions Judge acquitted accused Nos.3 to 7. Informant (PW-1) is the victim girl. The wheels of the investigation were put into motion on her report dated 12.09.2014. The case of the prosecution, which can be discerned from the report and the accompanying documents, is that the incident in question occurred on
04.08.2014 at about 08.00 p.m. The victim on the date of the incident was 14 years old. She had gone to attend the natures 248 cr.a. 572.18.jud..odt 4 call in the godhari (easing place used by the women of the village). When she was proceeding to attend the nature's call, near the river accused Nos. 1 to 3 obstructed her. Accused No.2 Nandu Rameshrao Avzad gagged her mouth and accused No.1 Roshan Purushottam Wankhade lifted her. Accused No.3 illuminated the path by using the light. The victim saw the faces of the accused in the light. Accused Nos.1 to 3 took her in the field of one Janrao. Accused No.1 Roshan removed her clothes and committed forcible sexual intercourse with her. Thereafter, accused No.2 Nandu committed sexual intercourse with her. It is stated that again the accused No.1 committed forcible intercourse with her. Acquitted accused No.3 was keeping watch. Accused Nos.1 and 2 continued penetrative sexual assault upon the victim for about one and a half hours. She resisted the accused. Accused No.1 pulled her hand. She had a sprain in her right hand. After the incident, she came to the house. On inquiry by her father as to the inordinate time 248 cr.a. 572.18.jud..odt 5 taken by her to attend the nature's call, she narrated the incident to her parents.
4. It is the case of the prosecution that on the next day the acquitted accused No.7 Ramesh Wankhade, came to their house and took her father with him. The victim's father returned after some time and told that father of accused Nos.1 and accused No.2 had threatened him and directed him not to lodge report of the incident.
5. It is stated that on next day of the incident her father took her to the hospital of Doctor Bhutada at Tiosa. Dr. Bhutada on examination, diagnosed that her right hand was fractured. Father of the victim therefore, took her to Dr. Panjabrao Deshmukh Hospital, Amravati. After taking x-ray the fracture was plastered. The doctor gave an estimate of Rs.18,000/-for further medical treatment. Her father had no money therefore, he returned back. It is further case of the 248 cr.a. 572.18.jud..odt 6 prosecution that her father took her to General Hospital, Amravati, for treatment. She was admitted in the hospital on 08.08.2014. She was an indoor patient till 04.09.2014. After coming back to their village there was flood to the river, and therefore, they could not go to Police Station. On 12.09.2014, the informant went to police with her parents and lodged the report. On the basis of her report, crime bearing No.143/2014 was registered at Tiosa Police Station.
6. Police Inspector - Anil Lad (PW-11) investigated the crime. The victim was sent for medical examination at Tiosa. She was medically examined. The doctor found that her hand was fractured. Similarly, the doctor noticed that she was carrying pregnancy. As per the advice of the doctor, she was sent for x-ray and sonography test to Government Hospital, Amravati. Her sonography test was conducted. The sonography test confirmed that she was carrying a pregnancy of six weeks and three days. The accused were arrested and sent for medical 248 cr.a. 572.18.jud..odt 7 examination. The samples of the victim as well as samples of accused Nos.1 and 2 were collected for DNA test. The samples were sent to the Regional Forensic Science Laboratory, Nagpur, for DNA analysis. During the investigation, the clothes and other articles were seized. After completion of the investigation, the charge-sheet was filed against the accused.
7. Learned Sessions Judge framed the charge against the accused. The accused pleaded not guilty. Their defence is of false implication. The prosecution in order to bring home guilt against the accused examined 15 witnesses. Learned Sessions Judge, on consideration of the evidence, found accused Nos.1 and 2 guilty of the charge and sentenced them, as above. Learned Sessions Judge for want of evidence acquitted the remaining accused. Being aggrieved by the judgment and order the appellants/accused Nos.1 and 2 have come before this Court in appeal.
248 cr.a. 572.18.jud..odt 8
8. I have heard learned Advocates for the appellants and learned APP for the State. I have also heard learned appointed Advocate to represent the victim/respondent No.2. Perused the record and proceedings.
9. Learned Advocate for accused No.1 submitted that there has been an inordinate delay in lodging the report and therefore, appellants deserve benefit of doubt. Learned Advocate submitted that there was a 37 days delay in lodging the report and therefore, the delayed report is suggestive of the fact that it was a result of due deliberation. The report was after thought and completely embellished. Learned Advocate submitted that the learned Sessions Judge has failed to properly appreciate this evidence. As far as accused No.2 is concerned, learned Advocate submitted that there is no iota of evidence against accused No.2 except the words of the victim. Learned Advocate for accused No.2 submitted that, therefore, accused No.2 deserves benefit of doubt. Learned Advocates for accused 248 cr.a. 572.18.jud..odt 9 Nos.1 and 2 submitted that the report of the radiologist clearly proved that her age was between 16 to 18 years on the date of the incident. Learned Advocate submitted that in the case of a report of ossification test, there is always margin of error of two years on either side. Learned Advocates submitted that the margin of error on the higher side i.e. the margin of error which supports the contention of the accused is required to be accepted, and if it is so accepted it would show that on the date of the incident, the victim was more than 18 years of age. Learned Advocate submitted that evidence of PW-5 and PW-6 with regard to the birth date of the victim cannot be given any weightage and importance in the teeth of the report of the radiologist. Learned Advocates by relying upon the report of the radiologist tried to make good their submissions that the victim was a consenting party to the act. Learned Advocates, in order to prove this point, took me through her statement of the victim recorded under Section 164 of the Cr.P.C. and pointed 248 cr.a. 572.18.jud..odt 10 out that in the said statement the victim had stated that in the month of July, 2014, accused Nos.1 & 2 had committed sexual intercourse with her. Learned Advocates submitted that the victim was consenting party. Learned Advocates further submitted that the evidence of the victim and her father as to the occurrence of the incident is not trustworthy. Learned Advocates pointed out various omissions and contradictions from their evidence and submitted that such dented evidence cannot be believed. As far as accused No.1 is concerned, the DNA report is against him. Learned Advocate submitted that purity of the sample and quality control of the samples analysed by DNA analyser has not been proved beyond any doubt to place implicit reliance upon the DNA report. Learned Advocate submitted that only on the basis of DNA report, the evidence of the victim and her father cannot be accepted.
10. Learned APP submitted that the DNA report has been used as a corroborative piece of evidence to base the 248 cr.a. 572.18.jud..odt 11 conviction of the accused. Learned APP submitted that, on the basis of the cogent and concrete evidence, the prosecution has established the complete chain from the time of collection of the blood samples and other samples till the samples were analysed in the F.S.L. Nagpur. Learned APP submitted that there is hardly any material on record to doubt the quality control. Learned APP submitted that evidence on record is sufficient to prove that the victim, on the date of report, was carrying a pregnancy of six weeks and three days. Learned APP submitted that the delay in this case has been properly explained. It is pointed out that admittedly the victim was admitted in Irwin Hospital from 08.08.2014 to 04.09.2014. Learned APP further submitted that evidence of the victim (PW-1) and her father would show that on the say of the accused, her father was pressurized. Learned APP submitted that though accused Nos.3 to 7 are acquitted by the learned Judge, however, the fact remains that evidence of the victim 248 cr.a. 572.18.jud..odt 12 and evidence of her father (PW-3) on the point of delay cannot be discarded. Learned APP further submitted that on the basis of proved minor omissions and contradictions no dent has been caused to the core of the evidence of the victim and her father. Learned APP submitted that on the basis of the legally admissible documentary evidence, the prosecution has proved that the birth date of victim is 10.02.2000. Learned APP, therefore, submitted that the margin of error of two years has to be appreciated in view of the documentary evidence. It is submitted that on the basis of cogent and concrete evidence it has been proved that on the date of the incident, the victim was 14 years old and as such a 'child' as defined under Section 2 (d) of the POCSO Act. Learned APP submitted that the learned Sessions Judge has thoroughly appreciated and analysed the evidence of the prosecution and recorded the cogent reasons in support of his findings. In short, it is submitted that the well reasoned judgment and order passed by learned Sessions Judge does not warrant interference.
248 cr.a. 572.18.jud..odt 13
11. Learned Appointed Advocate to represent the victim has adopted the submissions advanced by the learned APP for the State.
12. The main question that needs to be addressed at the out set is with regard to the age of the victim. Victim (PW-1) has stated that her birth date is 10.02.2000. On the date of her evidence, she was studying in 7 th standard. On the date of incident, she was studying in 4 th standard. PW-3, her father, has stated that the victim is his daughter. He has stated that her birth date is 10.02.2000. The prosecution has examined PW-5. PW-5 is a clerk serving in Municipal Council, Tiosa. Earlier there was a Gram Panchayat at Tiosa. PW-5 has produced before Court the birth and death register maintained at Gram Panchayat Tiosa. He has stated that, the relevant entry of the birth date of the victim is at serial No.44 dated 02.03.2000. He has stated that the entry of birth of the victim was made in the register. Birth date is recorded in register as 248 cr.a. 572.18.jud..odt 14 10.02.2000. He has stated that the victim was born in a maternity home at Tiosa. Exh-69 is the extract of the birth and death entry register. Exh.69-1 is the birth certificate issued by Nagar Panchayat, Tiosa. The registration number with the date mentioned in the birth certificate corresponds with the registration number of the entry in the birth and death register. The oral evidence of PW-5 coupled with these two documents is sufficient to conclude that birth date of the victim is 10.02.2000. I do not see any reason to discard and disbelieve the oral evidence of PW-5. I also do not see any reason to discard or disbelieve the documents at Exh.69 & 69-1. These are public documents. The documents have presumptive value under Section 35 of the Indian Evidence Act, 1872.
13. As far as this issue is concerned, the evidence of Subhas Devidas Hade (PW-6) would also be relevant. PW-6 is Head Master at Anandrao Patil Medium School, Tiosa. He was summoned to produce the admission register. He has stated 248 cr.a. 572.18.jud..odt 15 that, as per admission register the victim took admission in the school on 26.06.2012. It is stated that as per the record earlier she was studying in Zila Parishad Primary School at Dehani. He has stated that as per the entry in admission register, her birth date is 10.02.2000. Original register was produced. The relevant entry is at Exh.71. He has stated that birth date of the victim was recorded in their school on the basis of the school leaving certificate issued by the previous school. The original TC issued by Dehani School is on record. However, it has not been admitted in evidence. The evidence of PW-6 coupled with this general admission register entry is consistent with the Municipal Council record with regard to the birth date of the victim. On perusal of this evidence, it is not possible to conclude that these documents have been created to support the case of prosecution. The evidence of PW-5 and PW-6 coupled with the documentary evidence is sufficient to prove that the birth date of the victim is 10.02.2000.
248 cr.a. 572.18.jud..odt 16
14. In the above context, it is necessary to appreciate the evidence of Ajay Kadukar (PW-8), Radiologist. On 09.08.2014, he had examined the victim. He took the x-ray of the victim. He found that the victim had fracture to her hand. He has stated that on 15.09.2014, the victim was referred to him for a sonography test to determine the pregnancy. He conducted the sonography test. He has stated that the result of the sonography test disclosed that the victim was pregnant with gestation of 6 weeks 3 days plus or minus one week. He has stated that he conducted the ossification test of the victim. He has opined that the age of the victim as per the ossification test was between 16 to 17 years. It is true that as far as the result of ossification test is concerned, there is always a margin of error of two years on either side. In the absence of documentary evidence, the submissions advanced by the accused would have merited consideration. By accepting the error of margin on the higher side, the age of the victim on the date of the incident as 248 cr.a. 572.18.jud..odt 17 per the ossification test would be 19 years. However, in the teeth of the evidence of birth date of the victim, as discussed above in this case, the margin of error on the lower side of age has to be accepted. It has been supported by the documentary evidence. It needs to be stated that when there is concrete documentary evidence to establish the birth date of the victim, then such evidence has to be given precedence over the report of radiologist. The scientific method of determination of the age by conducting the ossification test may not provide concrete evidence of the age. As stated above, in the case of the age determination by the radiologist, there is always a margin of error on either side. In my view, therefore, there is no substance in the submissions of learned Advocates for the accused that the victim on the date of incident was more than 18 years of age. The evidence on record is sufficient to conclude that the victim was 14 years of age on the date of the incident and as such, a child as understood by Section 2(d) of the POCSO Act.
248 cr.a. 572.18.jud..odt 18
15. Before proceeding to appreciate the evidence of the victim and her father (PW-3) it would be appropriate to consider the evidence of Medical Officer, who had collected the samples for DNA purpose and the opinion of the DNA analyser. Medical Officer (PW-2) attached to Government Hospital at Tiosa, on examination of the victim, found that she was pregnant. Medical Officer (PW-7) examined the victim and found her pregnancy test positive. He referred the victim for sonography test. Dr. Ajay Kadukar (PW-8) a Medical Officer was attached to Irwin General Hospital, Amravati. On 15.09.2014, he conducted the sonography test for pregnancy. The sonography test revealed that she was pregnant with a gestation of 6 weeks 3 days plus or minus one week. His report is at Exh.87. Investigating Officer had deputed PW-14, police constable to collect three DNA Kits from Regional Forensic Science Laboratory (R.F.S.L.), Nagpur, for the collection of the samples of accused Nos.1 and 2 and the victim. Dr. Ujwala 248 cr.a. 572.18.jud..odt 19 Mohod (PW-15) collected blood samples of accused Nos.1 and
2. The samples were collected in the presence of the witnesses. The forms prepared at that time are at Exh.98 and 99. She has stated that samples were placed in a cold box and handed over to police constable. Investigating Officer (PW-11) received blood samples and conception fluid of PW-1 from Duffirine Hospital on 18.09.2014 and 19.09.2014 respectively. Suresh Makeshwar (PW-10) is a Panch witness to the identification forms of the accused prepared at the time of drawing their samples. The identification forms are at Exh.98 and 99. Investigating Officer forwarded the blood samples of the accused Nos. 1 and 2 to the C.A. Office on 17.09.2014 with carrier Police Officer (PW-14). Investigating Officer forwarded the blood samples and conception fluid of the victim to C.A. Office on 20.09.2014 through Police Constable Nilesh Deshmukh. The samples after collection were immediately forwarded to the C.A. Office at Nagpur. Investigating Officer 248 cr.a. 572.18.jud..odt 20 (PW-11) has deposed that the precautions were taken to preserve the samples and the same were immediately forwarded to the C.A. Office. C.A. reports are at Exhs.132 to 135. Perusal of the C.A. reports would show that samples were received in sealed parcels. The seals were intact and as per copy sent. The description of the sample mentioned in the requisition letter and one mentioned in the C.A reports match with each other. Perusal of the C.A. report would show that the blood group of the victim is 'O'. Blood group of accused No.1 is 'A' and blood group of accused No.2 is 'O'. CA report would further show that the blood detected on the salwar kurta, knickers and half shirt is human blood.
16. Exh. 136 and 137 are the DNA reports. The Assistant Chemical Analyser, on analysis of the DNA extract from blood samples of the accused, victim and the DNA extract from product of conception of the victim, opined that accused 248 cr.a. 572.18.jud..odt 21 No.1 and the victim are concluded to be biological parents of Tissue (Product of conception of the victim). The chemical Analyser opined that accused No.2 is excluded to be biological father of the tissue (Product of conception of victim). The evidence on record is sufficient to prove that the victim was carrying pregnancy of six weeks. The report was lodged after 37 days of the occurrence of the incident. The age of the foetus was six weeks and three days with plus or minus of one week on either side. In my view, DNA report is very vital and important piece of evidence. This evidence has been used as a corroborative piece of evidence by the prosecution. Learned Sessions Judge has found this evidence trustworthy and reliable. The evidence on record is sufficient to establish the precaution taken from the time of collection of sample till the samples were received in the FSL, Nagpur. The samples were immediately analysed. There is no delay. The evidence on record is sufficient to rule out the possibility of tampering with 248 cr.a. 572.18.jud..odt 22 the samples or manipulation of samples in any manner. The evidence of the doctors, who are independent witnesses, deserves acceptance on this count. In the above backdrop, it would be useful to make reference of Hon'ble Apex Court in Mukesh and another. vs. State (NCT of Delhi) and others , reported at (2017) 6 SCC 1. The Apex Court has observed that DNA Technology as a part of Forensic Science and Scientific discipline not only provides guidance to investigation but also supplies the Court accurate information about tending features to establish identification of criminals. After the amendment in the Criminal Procedure Code by the insertion of Section 53-A by Act 25 of 2005, DNA profiling has now become a part of the statutory scheme. It is held that the DNA report deserves to be accepted unless it is absolutely dented and for non - acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, 248 cr.a. 572.18.jud..odt 23 the DNA test report is to be accepted. No doubt to doubt the quality control or quality assurance of the DNA report.
17. Keeping the above stated proved facts in mind, the evidence of PW-1-victim and her father needs appreciation. There was a delay of 37 days in lodging the report. PW-1 victim as well as her father PW-3 have stated the reasons for delay. Undisputedly, the right hand elbow of the victim was fractured. Her father took her to Dr. Bhutada Hospital at Tiosa. Dr. Bhutada referred her to Punjabrao Deshmukh Hospital, Amravati. The x-ray was taken at the said hospital and fracture was plastered. Her father had no money therefore, he brought the victim to his house and on 08.08.2014 took her to Irwin Hospital, at Amravati. She was admitted in Irwin Hospital, Amravati from 08.08.2014 to 04.09.2014. During her admissions period, two surgical operations were performed. It is true that neither the victim nor her father disclosed this incident to any of the doctors. The victim had disclosed the 248 cr.a. 572.18.jud..odt 24 incident to her parents. It is stated that after coming back from Irwin Hospital on 04.09.2014 there was flood to the river and therefore, they could not go to Police Station. After eight days, they went to the Police Station and reported the matter to the police. It has come on record that on 06.09.2014 the father of accused No.1 and father of accused No.2 had called the father of the victim and had threatened him not to lodge the report to the police about the incident. Father has deposed about it. The delay by applying any standard is inordinate delay. However, the fact remains that from 08.08.2014 to 04.09.2014 the victim was taking treatment in the hospital. She was admitted in the hospital. The question is whether this delay would be fatal to the case of the prosecution.
18. At this stage, it is necessary to consider the decision of the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported at (2002) 5 SCC, 745. In this case the Hon'ble Apex Court has observed that the object of insisting 248 cr.a. 572.18.jud..odt 25 upon prompt lodging of a report to the police in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. It is observed that the delay in lodging FIR quite often results in embellishment, which is a creature of an afterthought. It is further observed that on account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.
19. The Hon'ble Apex Court had an occasion in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujrat reported at (1983) 3 SCC 217 to consider this issue in the Indian setting. The Apex Court has observed by and large factors which are relevant to the western setting may not be relevant to India and Indian conditions. The relevant 248 cr.a. 572.18.jud..odt 26 observation is in paragraph No.10 of the decision. It is extracted below:-
" By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because: (1) A girl or a woman in the tradition bound non-permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (S) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to 248 cr.a. 572.18.jud..odt 27 face the cross examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."
20. In my view, this legal position is required to be born in mind while appreciating the evidence of victim (PW-1) and evidence of her father PW-3. They have placed the explanation on record. In this case, first priority of the father was to provide best possible treatment to her daughter. He was not financially well off, and therefore, he took his daughter to Irwin Hospital and there she was admitted from 08.08.2014 to 04.09.2014. In the hospital two surgical operations were performed. Sudhakar Avazad (PW-3) is father of victim. According to him, father of accused No.1 and father of accused No.2 in the presence of other villagers had suggested him not to report the matter to the police. A threat was also extended to him. It needs to be stated that accused No.2 is none other than the distant uncle of the victim. It was therefore, not possible for the victim to falsely implicate accused No.2, who is her uncle.
248 cr.a. 572.18.jud..odt 28
21. The reasons stated by the informant for delay in lodging the report need to be appreciated in the backdrop of the other evidence adduced by the prosecution. Delay in lodging the First Information Report per se could not be the sole ground to reject the otherwise meritorious case of the prosecution and the evidence of the prosecutrix. There must be sufficient evidence on record to lend an assurance to the trustworthiness of the evidence of the prosecutrix as to the occurrence of the incident and the involvement of the accused. The delay needs to be explained to the satisfaction of the Court. The explanation put forth for delay in lodging the report needs appreciation in totality of the facts, circumstances and evidence on record. The evidence on record must be sufficient to convince the Court that the accused has not been falsely implicated by the prosecutrix or the victim or her family members for one reason or the other. If there is evidence to lend an assurance to the trustworthiness of the evidence of the 248 cr.a. 572.18.jud..odt 29 victim then the Court has to accept the evidence of the prosecutrix and explanation for delay in lodging the report.
22. It needs to be stated that on the date of occurrence of the incident, the victim was 14 years old. The parents of the victim would not have lodged the false report and jeopardised the future of the victim. The consequences of reporting such an incident are stigmatic for the victim and the family members. It needs to be stated that bringing such matter in public domain, with certainty, defames the family. It can affect the future of the girl. In Indian societal setup, the parents are bound to take care of the daughter. Parents would not normally put the future and life of the girl at stake by involving her in such a matter and damaging her future and life. In this case, the DNA report is very vital piece of evidence to lend an assurance to the evidence of the victim on the point of the involvement of accused No.1. On the date of the report, she was carrying a pregnancy of six months and three days. Accused No.2 is her uncle. The victim, 248 cr.a. 572.18.jud..odt 30 in the ordinary circumstances, would not have even thought of involving her uncle in such a crime, if he had not played any part in such deplorable crime. In my view, the evidence on record is sufficient to rule out the possibility of false implication of accused Nos.1 and 2.
23. This would now take me to the evidence of the victim and her father, PW-3. The victim has narrated the first hand account of the incident. She has stated that her mouth was gagged by accused No.2 and she was lifted and carried to the spot of the incident by accused No.1. At the spot of the incident, her clothes were removed and accused No.1 first committed forcible sexual intercourse with her. After accused No.1, accused No.2 committed forcible sexual intercourse with her. She has stated that accused No.1 again committed forcible sexual intercourse with her. She has stated that when she tried to run away from the spot, accused No.1 pulled her by holding her hand and therefore, she sustained a sprain in her right hand.
248 cr.a. 572.18.jud..odt 31 Medical evidence is sufficient to corroborate this fact. The line of cross-examination of the victim suggests that it was a consensual act by the victim. In my view, this defence is not available to the accused inasmuch as the prosecution has proved that the victim on the date of crime was 14 years old. Learned Advocate pointed out certain omissions and improvements in the evidence of the victim and her father. It has come on record that at the time of recording her statement under Section 164 of the Cr.P.C. by the Magistrate, she has stated that prior to 04.08.2014, in the month of July, 2014 accused Nos.1 and 2 had committed forcible sexual intercourse with her but she did not disclose the same to her parents on account of fear of her parents. The victim had not deposed about this incident in her evidence. However, during the cross-examination she was confronted with her statement recorded by the learned Magistrate under Section 164 of the Cr.P.C. On being confronted, she has categorically denied the same. In any case 248 cr.a. 572.18.jud..odt 32 merely because of failure to report the said incident by the victim would not enure to the benefit of the accused. The accused cannot take benefit of this fact to cover up the incident reported by PW-1 dated 04.08.2014. On minute scrutiny of her evidence, I am satisfied that there is no reason to doubt her trustworthiness. She had no reason to falsely implicate accused Nos.1 and 2. Her medical examination report and DNA report is sufficient to lend an assurance to her oral testimony with regard to the occurrence of the incident and involvement of accused Nos.1 and 2. It is not the case of the accused No.2 that there was enmity between his parents and parents of the victim. Such defence was setup by accused No.3, who has been acquitted by the learned Sessions Judge. The evidence of the victim is trustworthy. The evidence cannot be discarded or disbelieved only on the ground of delay in lodging the report. The delay has been properly explained. The circumstances brought on record are sufficient to substantiate the reasons put 248 cr.a. 572.18.jud..odt 33 forth for the delay in lodging the report.
24. PW-3 is the father of the victim. He has stated that the victim, after coming back home narrated the incident to him. He has deposed that the victim told him that she had a serious sprain in her right hand elbow. The father PW-3 has deposed that on the next date before he went to the hospital, he was called by the fathers of accused Nos.1 and 2. They had instructed him not to report the matter to the Police. They had threatened him. They had offered money to him. In his evidence, he has reiterated almost all the facts narrated to him by the victim as to the occurrence of incident and involvement of accused persons. His evidence and the evidence of the victim on the point of delay in lodging the report is consistent. On perusal of his cross-examination, I have not come across any admission to create a doubt about his credibility and trustworthiness. The evidence of PW-1-victim and evidence of PW-3 is consistent. The evidence has been corroborated by 248 cr.a. 572.18.jud..odt 34 medical evidence and the DNA report. The credibility of victim and PW-3 has not at all been shaken. The only ground which has been put forth to discard the evidence is the delay in lodging the report. In the absence of the DNA report, the Court would have considered to attach some weight to the submission. The DNA report completely rules out the possibility of false implication. In view of this, I conclude that the evidence cannot be discarded or disbelieved. The evidence is sufficient to prove the incident and the involvement of accused Nos.1 and 2, being perpetrators of the crime.
25. PW-2 is the Medical Officer, who had examined the victim. On local examination of genitals, she found that hymen was absent. There was no injury on hymen. The pregnancy test was positive. She has stated that on the basis of the history narrated by the victim and her over all examination she concluded that the victim was subjected to sexual intercourse. She had reserved the final opinion till receipt of the 248 cr.a. 572.18.jud..odt 35 FSL report. She has stated that she referred the victim to Amravati for a pregnancy and ossification test on the basis of the history narrated by the victim and the absence of hymen. In her cross-examination, nothing has been brought on record to suggest that her opinion is not consistent with her over all findings. The medical evidence and the DNA report is consistent. In view of this, I conclude that there is voluminous evidence to prove the charge against the accused. Learned Sessions Judge has properly appreciated the evidence. Learned Judge has recorded cogent reasons in support of his findings. I do not see any reason to interfere with well reasoned judgment and order passed by the learned Judge. As a result of this, the appeals fail. The Appeals are accordingly dismissed.
26. Learned appointed advocate for the respondent No.2 in Criminal Appeal No.572 of 2018 be paid professional fees, as per the rules.
248 cr.a. 572.18.jud..odt 36
27. The Criminal Appeals stand disposed of. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.) manisha Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 16/08/2024 18:59:02