Bombay High Court
Satpalsingh Jogendarsingh Kotda vs The State Of Maharashtra on 1 April, 2021
Equivalent citations: AIRONLINE 2021 BOM 905
Author: Bharati Dangre
Bench: Bharati Dangre
1 apeal 723 (J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 723 OF 2018
Satpalsingh Jogendarsingh Kotda .. Appellant
Versus
The State of Maharashtra .. Respondent
...
Ms.Apeksha Vora with Janaki Ravi i/b Hulyalkar & Associates for
the appellant.
Mr.R.M. Pethe, APP for the State.
CORAM : BHARATI DANGRE, J.
RESERVED : 17th MARCH, 2021
PRONOUNCED : 1st APRIL 2021.
JUDGMENT :-
1 Being aggrieved by the judgment passed by the Special Court for Protection Of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') in Case no.819 of 2013, thereby convicting the appellant for the offences punishable under Section 377 IPC read with Section 6 and 10 of the POCSO Act, and sentencing him to suffer RI for 10 years and to pay fine of sum of Rs.25,000/-, in default to undergo RI for further six months, the appellant has instituted the present Appeal.
Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 2 apeal 723 (J).doc 2 The prosecution case can be briefly summarized as under :-
On 28th March 2013, a complaint came to be lodged by PW No.1 in the Antop Hill Police Station, stating therein that he is residing on the given address with his wife and three children, which include the victim boy, who at the relevant day was aged three years and at this tender age, he faced a wild rage. On 27th March 2013, the complainant returned home at 10.00 p.m and offered money to his daughter and the victim boy for buying chocolates. When his daughter (PW 2), aged 8 years returned home, but the victim did not, he inquired, and was informed that he is with the accused who was residing in the neighbourhood on being called for offering chocolates. When the complainant approached the house of the accused which was located on a mezanine floor, he heard the victim boy crying and when he knocked the door, he noticed him without his underwear and accused was present along with him wearing banyan and pants. When asked as to why the victim was crying, he was told that he has got some injuries on his back side in anal area and on examination of the victim boy, he was found bleeding from anus. He was brought home in a frightened condition but he could not tell anything.
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3 apeal 723 (J).doc 3 On the next day, when he was passing stools, he complained of pain and was crying and it is the case of the prosecution that the victim boy informed the complainant about the misdeeds in his own words "lriky vadyus esjs eqg es pwUuh Mkyh vkSj mlds ckr eq>s fups >qdkdj esjs fiNs cktqes pqUuh tksjls Mkyh gS A ml dkj.k esjs fiNss nnZ gksrk gSA blds igys Hkh nks ckj lriky vadyus esjs eqges pqUuh Mkyh FkhA 4 When the complainant approached to question the accused, he was not found home and therefore, he proceeded to his work place and did not lodge any complaint at that point of time. In the evening when he returned home, he confronted the accused with the incident of earlier night, he retorted by abusing the complainant. This prompted the complainant to seek help of the residents in the neighborhood, who on being made aware of the act of the accused, assaulted the accused by fists and blows. He was then brought to the police station, where he disclosed his name and his age as 28 years.
5 Based on the said complaint, an offence was registered under the relevant provision of IPC and POCSO Act. Investigating machinery was set into motion, spot panchnama was recorded along with the statements of witnesses. Investigation was carried out by medically examining the accused as well as the victim boy. The accused came to be arrested and was forwarded for medical examination, so also the victim boy. On completion of investigation, the charge-sheet came to be filed. Since the Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 4 apeal 723 (J).doc accused abjured the guilt and claimed to be tried, the trial proceeded further.
6 The prosecution examined 9 witnesses, including the complainant (PW 1), sister of the victim boy (PW 2), person in the neighborhood (PW 4), Medical Officers (PW 5 and PW 6), Investigating Officers (PW 8 and PW 9). The victim was examined as PW 7. The trial culminated into a finding of guilt recorded against the accused and the sentence being imposed on him as mentioned in the primorial part of this judgment.
7 Learned counsel Ms.Apeksha Vora along with Janki Ravi assailed the finding of guilt and resultantly the sentence imposed on the appellant by submitting that the prosecution has failed to bring home the guilt of the accused and has committed a grave error in not being appreciative of the discrepancy in the testimony of the prosecution witnesses, in particular, PW 1 and PW 2. She would also argue that the unexplained delay in lodging the FIR is fatal to the prosecution as though the victim was in pain, the complainant did not lodge any report on the day of incident and on the next day, he left his home for work and only when he returned back, the report was lodged. This conduct of the complainant, according to Ms.Vora, has to be appreciated, but the trial Court has miserably failed to do so. The inconsistency in the statement of PW 1 and PW 2, according to Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 5 apeal 723 (J).doc the learned counsel, create serious dent in the case of the prosecution. On the basis of the medical evidence, the learned counsel would submit that the anal laceration mentioned in the medical report at 12 O'clock position and the edema seen at edges with the wound being reddish brown in colour has been explained by PW 6, the Doctor and he has admitted in the cross- examination that laceration can be caused by internal physiological infection and constipation (wrongly recorded as 'conspecution'). Further, she is critical of the fact that in the medical report, there is no mention of the history narrated by the parents of the victim and this witness has admitted that he has given the opinion, that the case is of sexual assault on the basis of the police report. In absence of any indication in the Chemical Analyser's report or the Forensic Report, corroborating the case of the prosecution, learned counsel assert that there is no iota of evidence brought on record by the prosecution so as to attract Section 377 of the IPC. About the POCSO case, her submission is that the statement of victim boy was not recorded under Section 164 of the Cr.P.C and in fact, the victim boy has been brought as a witness by filing an application under Section 311 of the Cr.P.C. Based on the aforesaid lacunae in the prosecution case, she would submit that if the two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view favourable to the accused should be adopted. The case of the prosecution Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 6 apeal 723 (J).doc being doubtful, according to the learned counsel, the accused must gain the benefit. The learned counsel place reliance on the decision of the Apex Court in case of Meharaj Singh & Ors Vs. State of Uttar Pradesh & Ors, 1994(5) SCC 188, and also upon the decision of the Apex Court in case of Jagjit Singh @ Jagga Vs. State of Punjab 2005(3) SCC 689, in support of her submission.
Per contra, Mr.Pethe would submit that the prosecution has placed on record cogent and reliable material which is sufficient for holding the accused guilty and merely on account of some inflictions being noticed, the appellant cannot take advantage of the same, and therefore, he submit that the impugned judgment must be upheld along with the conviction and sentence of the accused.
8 The victim, as on the date of incident, was aged three years and the appellant is charged for committing unnatural carnal intercourse and oral intercourse on the victim boy on the date of incident, thereby attracting an offence under Section 377 of the IPC along with Sections 6 and 10 of the POCSO Act on account of the penetrative sexual assault on the victim boy and Section 10 is also invoked since the sexual assault is committed on the victim who is below 12 years.
9 The two key witnesses of the prosecution are the father (PW 1) and sister of the victim (PW 2). The two witnesses Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 7 apeal 723 (J).doc have deposed about the victim boy being bleeding from his anus when he was retrieved from the custody of the appellant. The version of these two witnesses as to how the victim boy landed in the house of the appellant is in sync with each other and there is no inconsistency in their version, that the victim was called by the appellant in his house on the pretext of offering chocolates and when they reached his house, after lapse of some time as he did not return, he was without his pants and bleeding from the anal area. There is some inconsistency in the statement of the complainant as against the averment in the complaint, on the aspect of the appellant opening the door after 10 to 15 minutes, when the complainant knocked the door of his house and on the aspect whether PW 2 went to the appellant's house and knocked the door. PW 2 has also deposed that the appellant did not open the door immediately. The two witnesses are, therefore, corroborating each other on the aspect that on 27/03/2013, the victim was rescued from the house of the appellant by knocking on the door and that he was crying. An explanation was offered by the appellant by stating that there was some injury in his anal area. Not suspecting anything serious, even on noting the bleeding from the anus, the victim boy was carried home. It is in the morning of the next day, when the boy was crying while passing stool, and when specifically asked, he narrated the incident of the previous night that the appellant had inserted his penis in the anus and had also inserted his penis in his mouth.
Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 8 apeal 723 (J).doc He also narrated that prior to the incident, the accused had inserted his penis in his mouth.
10 PW 1 has offered explanation in the complaint as well as before the Court as to why he did not immediately approach the police station and has stated that he went to the house of the accused to question him, when he became aware of his deeds, but he was not at home and therefore, he left for his work. In the evening, when he confronted the appellant with his action, he resisted and denied, which constrained the complainant (PW 1) to seek assistance in the neighborhood.
PW 4 is a witness to the happenings which took place on 28th March 2013. In his deposition, he has stated that the victim boy was present with his mother, when the accused was being confronted by the residents and he was seen crying. The witness depose that he noted his anal area to be reddish in colour. On this aspect, the prosecution has proved that the victim boy was traced to the room of the appellant and it is from this point of time, he had a bleeding from anus. Coupled with the version of the complainant as to what the victim had narrated to him as per his understanding, and it can very well be appreciated that a boy, aged 3 years speak his own language, unaware of what an act of Coitus is, or even without being aware of the male organs or its purpose.
Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 9 apeal 723 (J).doc Minor inconsistency in the statement of the complainant before the Court and in the complaint, without there being any material inconsistency, in no way give rise to a doubt of the prosecution story as brought on record by PW 1, PW 2 and PW 4. Pertinent to note that PW 2 was as innocent as the victim boy, she being aged 9 years at the time of incident.
11 The prosecution case is further corroborated and strengthened by the testimony of the victim who stepped into the witness box as PW 7. On the day on which he stands in the witness box, he is aged seven. He identify the appellant in the witness box and state that he is the uncle who had cut his chunni. On being asked what it is, he showed the place of urinal and depose that due to it, he had trouble at the time of urination. He referred to the previous similar act at the instance of the appellant and deposed that the appellant was residing adjacent to their house on the 1st floor of the neighboring uncle.
The cross-examination of this victim boy, a child aged 7 years has to be appreciated in the backdrop of his understanding and his tender age. However, nothing much relevant, damaging the case of the prosecution has been elicited in the cross- examination, except he state that he had narrated the incident to the police who had recorded his statement in writing and the police had come when he went to the hospital. He has also deposed that he narrated the incident to the Doctor.
Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 10 apeal 723 (J).doc An attempt has been made to attack the credibility of this witness by relying upon the following portion of his testimony.
"It is true to say that I don't know my address. It is true to say that earlier also I came with my father. My father informed and state before the Court that accused cut my chunni. I am not able to tell in morning at what time I left my house. My father informed me to identify the person with turban therefore I have identified the accused before the court. It is not correct to say that on the say of my father today I deposed before the court against the accused"
The submission is this is indicative of the victim being tutored by PW 1.
12 The appreciation of evidence of a child witness is a balancing act; on one hand, it is to be appreciated by keeping in mind the tender age and understanding of the witness, in juxtaposition with the possibility of tutoring such a witness. The path to be treaded, therefore, is one of caution. The testimony of PW 7 is not only a testimony of a witness, but it is the testimony of a victim, who is ravished at the age when he was three, when he was not even aware and conscious of the parts of his body and what purpose each part serves in human body. If the victim would have been said to be tutored, he would have come up with an extremely clean and clear version without any flaw which is Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 11 apeal 723 (J).doc now noted. Looking at his testimony and the attempt to confuse this boy, reflect, he being a natural witness and unable to understand the implications of his statement and with the same innocence, the version come out of him that his father had told him to identify the accused. This statement, read in isolation, is not sufficient to impeach the credibility of the victim particularly when the victim has identified appellant to be the person who had committed a bad act with him. He also narrate that the said uncle was residing in his neighborhood. In the cross-examination, he deny the suggestion that at the instance of his father, he is deposing falsely.
13 The testimony of the victim boy will have to be appreciated by applying similar parameters which are applied while appreciating the testimony of a victim girl of sexual assault as laid down by Apex court in State of Maharashtra Vs. Chandraprakash Kewalchand Jain, (1990) 1 SCC page 550 which observed as under :-
"16 A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in case of physical violence. The same degree of care and caution must attach in the evaluation of her evidence and in the case of an injured complainant or witness and no more. ................
Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 12 apeal 723 (J).doc Ordinarily, the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is form of violence unless there are special circumstances which call for greater caution in which case it would be sufficient to act on her testimony if there is independent evidence lending assurance to her accusation.
14 Coming to the medical evidence on the basis of which the impugned judgment faces severe criticism being, that the trial Court has failed to appreciate the testimony of the expert. There are two doctors who have been examined; PW 5 is the Medical Officer attached to Nagpada Hospital on 29th March 2013, when the victim boy was brought for medical examination. PW 5 depose that she had seen the victim and found anal injuries. She referred him to J.J. Hospital for further treatment. Exhibit 24 is a letter addressed to her by the Sr.P.I, Antop Hill and on the same letter, she endorsed the victim to be referred to J.J. Hospital with the following endorsement.
"Referred to J.J. Hospital. A case of sodomy with anal injuries. To examine and treatment as the child needs pediatric care".
Exhibit-24 is proved by her. The said letter make a reference to the history of the victim boy being subjected to unnatural forcible intercourse by the accused and he being forwarded for medical examination and the report was sought on the points particularly set out. At the rear side of the said report to which the learned Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 13 apeal 723 (J).doc APP has invited my attention to, from the original record is the inscription at the hands of PW 5.
15 With this reference, the victim was taken for medical examination to PW 6 who deposed that on 29th March 2013, the victim boy was brought by a woman police constable of Antop Hill Police Station along with forwarding letter dated 29 th March 2013. The letter is received and bears his acknowledgment and marked as 'Exhibit-28'. On examination, a report was prepared by PW 6 in his handwriting which is exhibited as Exhibit-29. Pertinent to note that the said report is in form of response to the questions raised as per the earlier query letter i.e. Exhibit-24 and as to question no.1 - whether unnatural sex has been performed, the answer is in the affirmative. To the question as to whether there are any injuries or patches of semen on the body of the victim, it is answered in negative. As to query no.5 - what is the cause of injuries near the anus of the victim boy and as to what is its nature, Exhibit-28 respond as under :-
"Anal Laceration seen at 12'O clock Edema seen at edges, wound is reddish brown in colour. No active bleeding seen.
Nature of injury - Simple.
Cause of injury - Hard blunt object."
16 PW 6 who has issued the opinion/report at Exhibit- 29 depose that after medical examination of the victim, he had Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 14 apeal 723 (J).doc given the opinion that victim is sexually assaulted. In the cross- examination, the said witness respond to the suggestion about the cause of edema in the following words :
"edema means the increasing fluid in body. It is true to say that there are many reasons due to which Edema can cause. It is true to say that Laceration can be caused by internal physiological infection and conspecution. It is true to say that my clinical finding I have mentioned Edema and anal laceration it can be caused by internal physiological infection and conspecution"
Much advantage is sought to be elicited from testimony of this witness, where in the cross-examination, he state :-
"It is true to say that in report as well as EPR no where it is mentioned that history narrated by parents of the victim. It is true to say that from the police report I opined that it is the case of sexual assault".
17 The medical expert who has examined the victim boy has narrated the cause for edema and cited the possible reasons for the same. About the medical history, as already noted above, since the query report itself mention the medical history and the query report was addressed to PW 5 who forwarded the very same document with her endorsement to PW 6, who has acknowledged it and gave his opinion in the same format by answering point nos.1 to 5 raised by way of query. The said report cannot be said to be lacking or falling short of the medical expert opinion in absence of the history being narrated as, history Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 15 apeal 723 (J).doc is already mentioned by the Investigating Officer and it is the backdrop of the said history, with reference to the complaint lodged in the police station, the doctor was asked to examine the victim boy and tender the report.
18 The cause for edema has been explained by PW 6 but the anal laceration recorded at 12 O'clock position and the cause of injury was opined to be by hard and blunt object. The explanation about edema being caused by physiological infection and constipation which has been sought to be encashed by the counsel for the appellant gets however rebutted by the expert who opine that in the present case, the cause of anal laceration at 12 O clock position is the hard and blunt object. The said opinion/report not being contradicted by bringing on record any evidence to the contrary at the instance of the appellant, with no explanation being offered, the injury to the anus of the victim boy is attributed to hard and blunt object and in the present case, it is by means of penetration at the instance of the applicant.
19 Modi in his Medical Jurisprudence and Toxicology in Twenty Second Edition has described 'unnatural sexual offences' and according to him, Section 377 of the IPC treats offences relating to carnal intercourse against the order of nature with any man, woman or animal. The said offences are classified as Sodomy, buccal coitus and bestiality. Sodomy is also called Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 16 apeal 723 (J).doc buggery and means an anal intercourse between man and man and between man and woman. It is termed as Pederasty when the passive agent is young boy (catamite). Further, according to him, Sodomy is practiced between two men who alternatively act as active and passive agents. The following points are to be recorded as per Modi, before commencement of medical examination and the following signs may be discovered if the boy (passive agent) is not accustomed to Sodomy.
(i) Abrasions on the skin near the anus with pain in walking and on defaecation, as well as during examination. These injuries are extensive and well defined in cases where there is great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence lesions will be most marked in children, while they may be almost absent in adults, when there is no resistance to the anal coitus. These injuries, if slight, heal very rapidly in two or three days. In most of the cases brought before Modi, he had seen superficial abrasions, varying from 1/6" to 1" x 1/6" to 1/4", external to the sphincter ani. In some cases, there may be bruising of the parts round about the anus, and the abrasions may extent into the anus beyond its sphincter.
(ii) ...............
(iii) Blood may be found around the anus, on the perinaeum or things, and also on the clothes.
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(iv) Semen may be found in or at the anus, on the perinaeum, or on the garments of the boy too young to have seminal emissions."
20 The prosecution has therefore brought on record the cogent evidence establishing that the victim was subjected to sexual assault at the instance of the appellant and the said assault is in form of unnatural sex. The Doctor who has examined the victim has clearly opined that the anal laceration seen at 12'O clock position in the victim is by hard and blunt object. No suggestion has been given to the witness on the said point on the opinion that the injury in form of laceration with edema seen at edges and the wound reddish brown in colour is not on account of a hard and blunt object. No explanation has come forward from the accused in his statement recorded under Section 313 of the Code of Criminal Procedure. The mere delay in lodging FIR cannot be said to be fatal to the case of prosecution as PW 1 has offered an explanation in his deposition and which cannot be said to be untrustworthy.
Reliance on the judgment of Meharaj Singh and Others (supra) for the proposition that the delay in lodging the FIR often result in embellishment and is reflective of after- thought is not applicable to the present case on account of the peculiar situation narrated by the father of the victim boy before the Court as well as in his complaint. Minor contradictions or discrepancies which have been brought on record are also not fatal Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 ::: 18 apeal 723 (J).doc to the case of the prosecution and in no way make prosecution story unbelievable or suspicious. On the other hand, the consistency in the statement of the prosecution witnesses coupled with the medical evidence brought on record and the victim himself being examined, when no reason has been assigned by the appellant about his false implication, the prosecution story cannot be doubted just for the sake of it.
21 The Special Court has rightly appreciated the evidence placed before it by the prosecution and based on the same, has found the appellant to be guilty of the offence punishable under Section 377 of the IPC and also Sections 6 and 10 of the POCSO Act, which is an act to protect Children from offences of sexual assault and sexual harassment. The sentence imposed on the appellant on his conviction for the aforesaid offence is just and proper taking into consideration the gravity of the offence and it's after-effect on the victim, his family and the entire society.
I see no legal infirmity in the judgment and order passed by the Special Court in POCSO Case No. 819 of 2013 and by confirming the judgment of conviction and the order imposing the sentence on the appellant, I deem it fit to dismiss the Appeal.
Accordingly, Criminal Appeal is dismissed.
SMT.BHARATI DANGRE, J Tilak ::: Uploaded on - 01/04/2021 ::: Downloaded on - 01/04/2021 23:27:01 :::