Bombay High Court
Abhilash Shankarrao Raipure vs The State Of Mah., Thr. P.S.O. ... on 22 December, 2020
Author: Vinay Joshi
Bench: Vinay Joshi
Judgment 1 938judgmentapeal 602.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 602/2019
Abhilash S/o Shankarrao Raipure,
aged about 43 years, Occ. Driver,
R/o. Nepali Chawl Surendragarh,
Gittikhadan, Nagpur.
.... APPELLANT
(in Jail)
// VERSUS //
The State of Maharashtra,
through PSO Gittikhadan Nagpur.
.... RESPONDENT
___________________________________________________________________
Shri Shaikh Sabahat Ullah, Advocate for appellant.
Shri S. D. Shirpurkar, A.P. P. for State/Respondent.
___________________________________________________________________
CORAM : VINAY JOSHI, J.
CLOSED FOR JUDGMENT ON : 11.10.2020
JUDGMENT PRONOUNCED ON : 22.12.2020
JUDGMENT
Heard.
2. The appellant herein has challenged his conviction in Special Case No. 53/2014 under Section 377 of the Indian Penal Code ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 2 938judgmentapeal 602.19.odt along with Section 4 of the Protection of Children from Sexual Offences Act (short 'POCSO'). The Trial Court imposed sentence to suffer simple imprisonment for five years along with fine of Rs. 10,000/- for the offence punishable under Section 377 of the Indian Penal Code, whilst for the offence punishable under Section 4 of the POCSO Act, he has been sentenced to suffer simple imprisonment for seven years and to pay fine of equal amount.
3. The prosecution case in nutshell is that the victim boy was aged about 7 years at the time of occurrence. At relevant time, he was staying with his younger brother and parents in the rented house. Accused was his adjacent resident.
4. According to the prosecution, on 22.02.2014 in the after noon, victim's mother-PW-2, Ashwini had gone for work. When she returned at 04.00 p.m, she noticed that her younger son Om was weeping. On inquiry, he said that victim was sitting at nearby Darga. Accordingly, Mother Ashvini went to Darga where victim was sitting. She asked to the victim on which he started weeping and informed that in her absence, accused took him at his house under pretext of offering sweets. Accused caused him to lay down on stomach and inserted his penis at his anus. She immediately took victim to PW-5, Dr. Chouresia ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 3 938judgmentapeal 602.19.odt who directed them to approach to the Police. On the following day, she went to the concerned Police Station and lodged report (Exh.11). The Police registered offence vide Crime No. 65/2014 for the offence punishable under Section 377 of the Indian Penal Code and for the offence punishable under Section 4 of the POCSO Act.
5. The Police undertook investigation and prepared spot Panchanama. The victim as well as accused were sent for medical examination and upon seizure of the clothes and other items, the same were sent for chemical analysation. Upon completion of investigation, final report was submitted in the Special Court.
6. In order to establish the guilt of the accused, the prosecution has examined nine witnesses. The prosecution evidence consists of the evidence of victim, his mother, medical officers and investigating officer. The defence of the accused was of total denial and false implication.
7. The Special Court considered the evidence placed on record and came to the conclusion that the prosecution has proved the levelled charges with requisite standard of proof and passed aforementioned sentence.
::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 :::
Judgment 4 938judgmentapeal 602.19.odt
8. The learned counsel for the appellant has seriously challenged the finding of guilt recorded by the Trial Court. He would submit that there are vital omissions and contradictions in the evidence of victim boy. It is submitted that the medical examination report of the victim nowhere supports the prosecution. Likewise, chemical analysis report also does not support the prosecution case. It is argued that the Trial Court without appreciating the evidence in proper manner and without assigning cogent reasons had arrived on the conclusion of guilt. It is submitted that though there is statutory presumption under Section 29 of the POCSO Act, unless foundational facts are proved, the accused cannot be convicted on the basis of presumption. According to him, it is a case of false implication and therefore, impugned judgment and order of conviction deserves to be quashed and set aside.
9. Per-contra, learned Additional Public Prosecutor submitted that there was sufficient evidence on record to confirm the conviction and sentence imposed by the Trial Court. It is submission that victim has stated about the occurrence in categorical terms. The defence was not able to bring on record enemical terms. Moreover, presumption under Section 29 of the POCSO Act, has been pressed into service. Learned Additional Public Prosecutor would submit that Medical ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 5 938judgmentapeal 602.19.odt Officer has not excluded the possibility of sexual assault. In short, there was sufficient evidence and therefore, the Trial Court was justified in convicting and sentencing the accused.
10. The prosecution is under the provisions of POCSO Act therefore, it is necessary to establish that the victim was a 'child' within the meaning of Section 2(d) of the POCSO Act. It is prosecution case that the victim was seven years of age at the time of occurrence. His date of birth was 05.07.2007. The defence has not challenged that the victim was minor at relevant time, hence prosecution under the POCSO Act would stand.
11. Perusal of the evidence of PW-1 victim reveals that on the day of occurrence around 03.00 p.m., accused called him at his house when he was alone. The accused offered him peda (sweet) and caused him to lay down. Accused removed victim's pant and inserted his penis in his anus. Thereafter, the accused went to toilet, on which victim ran away. The victim stated that he sustained pain at his anus and injury at his hands. The prosecution has examined PW-2 Ashwini, who was mother of victim. She stated that, on the day of occurrence when she came across victim the latter narrated the entire incident. It is her evidence that immediately she took victim to the hospital of PW-5 Dr. ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 6 938judgmentapeal 602.19.odt Chouresia, who examined and directed to approach to the Police. She deposed that victim was weeping because he felt pain at his anus and thereafter, on the following day, she lodged report. The prosecution also led medical evidence to corroborate the evidence of victim and his mother.
12. The learned counsel for accused would submit that unless the prosecution establishes foundational facts, presumption would not come into play. In this regard, he relied on the decisions of this Court in cases of Sagar Dinanath Jadhav Vs. State of Maharashtra, through Police Station Officer, Old City Police Station, Akola, 2018 LawSuit(Bom) 1019, and Navin Dhaniram Baraiye Vs. State of Maharashtra, through P. S. O., P. S. Ajni, District Nagpur, 2018 LawSuit(Bom) 1020. In both the cases, Single Judge of this court has considered the position of law about applicability of the statutory presumption. On elaborate discussion, it is concluded that the presumption does not take away the essential duty of the Court to analysis evidence on record and the prosecution has to establish foundational facts.
13. The prosecution case largely depends upon the evidence of PW-1 victim. He being a child witness and the sole witness on incident, ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 7 938judgmentapeal 602.19.odt his evidence has to be evaluated with great care and circumspection. The Court shall be on guard since the child of tender age is susceptible to tutoring. There is no difficulty in basing conviction on the evidence of child witness but it should inspire full confidence of the Court. On facts, as a rule of prudence, the Court may seek for corroborative evidence to get assurance to the sole testimony of child witness.
14. Learned counsel for the defence argued that the evidence of PW-1 victim is not at all reliable. According to him, there are major omissions and contradictions which makes his evidence unreliable. The defence has ably proved several omissions through the evidence of PW-9 API Bhande, who was Investigating Officer. It emerges that the victim has made several improvements in his evidence. It is proved that the victim has made improvement in stating that the accused inserted penis in his anus and he sustained injuries to his hands. It is improved that at the time of occurrence, accused was alone at his house. The victim improved that at relevant time, accused went to the bathroom on which, he fled. In this regard, the counsel for defence would submit that the Trial Court has lightly brushed aside the vital omissions which pertains to the actual occurrence. Insertion of penis into anus is an improvement which touches to the core issue. In the ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 8 938judgmentapeal 602.19.odt situation as a rule of prudence, it is necessary to look for corroborative evidence.
15. The prosecution has examined PW-6 Dr. Dipti Barekar, a Medical Officer attached to Mayo Hospital. It is her evidence that on 23.02.2014 around 02.30 p.m., he has medically examined the victim. On general examination, he had not found any external injury on the person of victim. The prosecution has examined another Medical Officer PW-7 Dr. Gedam attached to the Mayo Hospital. It is his evidence that on 23.02.2014 around 03.45 p.m., he has examined the victim. He has observed that victim had pain in the anus while walking and anus area was red and tender. He has opined that the possibility of unnatural sexual act cannot be excluded. Learned Additional Public Prosecutor would submit that since in medical examination redness and tenderness was found, it sufficiently corroborates the victim's evidence. On the other hand, learned counsel for defence submitted that as per evidence of both Medical Officers, there was no injury on the person of victim. According to him, in order to constitute the offence of carnal intercourse, it requires penetration which is also requirement to comply Section 3 of the POCSO Act. He would submit that the victim has improved his case about insertion of penis into anus and secondly, medical evidence does not support the prosecution case. ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 :::
Judgment 9 938judgmentapeal 602.19.odt According to him, casual and general opinion that unnatural sexual act cannot be excluded, cannot be construed as sufficient evidence about penetrative sexual assault.
16. Pertinent to note that as per prosecution case, alleged incident occurred on 22.02.2014 around 03.00 p.m. whilst victim was examined by Medical officer around 03.00 p.m. of the following day that is within 24 hours from the occurrence. Depending upon the facts of each case, the evidence led by the Medical Officer requires to be construed. It is a case of forceable insertion of penis by grown up man in the anus of victim who was barely 7 years of age. Moreover, the victim was medically examined within 24 hours from the occurrence therefore, these factors have to be take into account while assessing evidence. PW-6 Dr. Barekar stated that he had not seen any injury on the person of victim nor PW-7 Dr. Gedam stated about injury but said that there was tenderness and redness. During the course of evidence, PW-7 Dr. Gedam opined that if a person having 60 k.g. weight had a forceful penetration to a boy aged 7 years that boy would sustain the bleeding. He admits that if boy has worn tendency and he rubbed to the anus, such tenderness may be possible. Further, he admits that if unnatural sex is committed on the boy aged about 7 years in that case there must be a tear in the anus. At the cost of repetition, it is to be ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 10 938judgmentapeal 602.19.odt remembered that boy was of very tender age and medical examination was within 24 hours. In that context, if there was forceful penetration, there must be injuries and bleeding on the anus of the victim. The Medical Officer was not sure in giving opinion about unnatural sex but according to him, such possibility cannot be excluded, meaning thereby, it may be or may not be. Therefore, Medical Evidence does not support the prosecution case that the victim was subjected to unnatural sexual intercourse. The Investigating Officer has seized the clothes of victim and collected samples for medical analysis. On perusal of chemical analyzer report (Exh. 53), it reveals that neither blood nor semen was detected on the clothes of victim. It is not a case that the victim had changed his clothes. True, due to wash, semen may not found at anus swab. However, absence of blood or semen on the clothes of victim create doubt about the prosecution case.
17. In the background of such facts on proper analysis of the evidence of the prosecution witness and particularly the medical evidence, it is not safe to rely on the victim's improved testimony. In that case, the statutory presumption cannot be invoked. It would be risk to rely on the sole testimony of child witness in absence of corroborative evidence. In this backdrop, it would be unsafe to hold that the prosecution evidence is sufficient to establish the levelled ::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 ::: Judgment 11 938judgmentapeal 602.19.odt charges on the touchstone of requirement of proof beyond reasonable doubt.
18. In the light of above discussion, the impugned judgment passed by the Additional Sessions Judge, Nagpur in Special Child Case No. 53/2014 dated 29.06.2019 is quashed and set aside. 19 The appellant/accused is hereby acquitted of the offence punishable under Section 377 of the Indian Penal Code, and Section 4 of the Protection of Children from Sexual Offences Act. He be released forthwith, if not required in any other case.
20. Fine amount if deposited, be refunded to the accused.
21. Muddemal property be dealt with in accordance with law.
22. Appeal is allowed and disposed of accordingly.
JUDGE Gohane.
::: Uploaded on - 29/12/2020 ::: Downloaded on - 10/02/2021 16:51:34 :::