Bombay High Court
Bandu S/O. Natthuji Raut vs The State Of Maharashtra Thr. P.S.O. ... on 4 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
apeal398.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.398 OF 2016
Bandu s/o Natthuji Raut
Age : 40 years, Occ: Nil,
R/o : Bori, Tahsil : Ralegaon,
District : Yavatmal. ....... APPELLANT
...V E R S U S...
The State of Maharashtra
through P.S.O. Ralegaon
Police Station, Dist. Yavatmal. ....... RESPONDENT
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Shri R.D. Hajare, Advocate (Appointed) for Appellant.
Shri H.R. Dhumale, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
4 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The appellant seeks to assail judgment and order dated 09.05.2016 in Special Case (POCSO) 37/2013 delivered by the Special Judge, Yavatmal, by and under which, the appellant is convicted of offences punishable under sections 451, 376 (2)(i)(j) (1) of the Indian Penal Code and section 4 and 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and is sentenced to suffer rigorous imprisonment for ten years and fine of Rs.5000/- for offence punishable under section 376 (2)(i) ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 2
(j)(1) of I.P.C. and section 6 of POCSO Act.
2] Heard Shri Hajare, the learned counsel for the appellant-accused (hereinafter referred to as the "accused") and Shri H.R. Dhumale, the learned Additional Public Prosecutor for the State.
3] Shri R.D. Hajare, the learned counsel for the accused has a two fold submission to advance. He contends that the evidence on record is grossly insufficient to bring home the charge under sections 451, 376 (2)(i)(j)(1) of I.P.C. and section 4 and 6 of the POCSO Act. Shri Hajare contends that the entire prosecution case is based on the testimony of two child witnesses who according to the prosecution are eye witnesses to the incident. Shri Hajare would contend that the victim is admittedly mentally challenged and was not examined during the trial. P.W.1 Shri Manohar Dandekar is examined since he has recorded the statement of the victim. The learned counsel for the accused would urge, which is the second submission in the alternate, that the evidence of P.W.1 does not suggest sexual intercourse and even if the entire testimony of P.W.1 is taken at face value, the only offence which is made out is under section 354-A and 354-B ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 3 of I.P.C. read with section 8 of POCSO Act. Shri Hajare invites my attention to the testimony of the two child witnesses Mayur and Gayatri who are examined as P.W.2 and P.W.4 respectively. The testimony of P.W.4 Gayatri is subjected to severe criticism on the ground that the witness admits that she was tutored. The testimony of the other child witness Mayur is also subjected to similar criticism. Shri Hajare, the learned counsel for the accused would submit that even if arguendo the testimony of the two child witnesses is considered as reliable and believable, the testimony does not make any reference to an act of penetration of the male organ in the vagina of the victim. Shri Hajare would urge that even if the evidence of two child witnesses is considered credible, the prosecution has not established the ingredients of offences punishable under sections 451, 376 (2)(i)(j)(1) of I.P.C. and section 4 and 6 of the POCSO Act.
4] Shri Dhumale, the Additional Public Prosecutor, per contra, would urge that there is no reason why the evidence of the two child witnesses is Mayur and Gayatri should not be considered as confidence inspiring. A stray admission by Gayatri that she and Mayur were tutored is not sufficient to discard the testimony of Mayur and Gayatri. Looking at the respective ages of ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 4 Mayur and Gayatri when they entered the witness box, it is but obvious that the witnesses would be given some idea as to what to expect in the witness box. It is true that in response to suggestion by the defence Gayatri admits that she was tutored. But then, such an admission has to be viewed in the context of the age of the witness and the real possibility of the witness not really understanding the import or implication of either the question or the answer. It is quite possible and indeed probable that the two child witnesses may have been told either by the elders or somebody else that they must speak the truth or to depose in the Court about the happenings on the date of the incident without any fear or apprehension. Shri Dhumale, the learned A.P.P. would then, urge that other than the evidence of the victim, as has come on record through P.W.1 Manohar Dandekar, and the evidence of the two eye witnesses Mayur and Gayatri, the medical evidence is clinching. The ocular evidence is more than amply corroborated by the medical evidence. The evidence of the eye witnesses is also corroborated by the evidence of P.W.3 the father of the victim who noticed swelling and reddishness on the private part of the victim. The learned A.P.P. would urge that the judgment impugned is unexceptionable and does not suffer from any infirmity, in law or on facts.
::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 5 5] I have given my anxious consideration to the evidence on record in the light of the submissions of Shri Hajare for the accused and Shri Dhumale, the learned A.P.P. for the State. 6] The prosecution case is substantially based on the ocular evidence of the victim and the two eye witnesses Mayur and Gayatri. The learned counsel for the accused relies on a judgment of the Hon'ble Supreme Court in K. Venkateshwarlu vs. The State of Andhra Pradesh reported in 2012 ALL SCR 2328 and contends that the evidence of a child witness must receive a careful evaluation and it would be extremely unsafe to rely on the evidence of the child witness in the absence of corroboration. The juristic principle that the evidence of the child witness needs to be tested on the anvil of caution and corroboration is too well recognized in criminal jurisprudence for this Court to have any demur with the proposition which Shri Hajare is canvassing. The evidence of the child witnesses must indeed be evaluated carefully and ordinarily the Court must insist on corroboration. I intend to precisely do that.
7] The victim is a physically and mentally challenged child and was ten years old as on the date of the incident. ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 6 The case of the prosecution is that the victim was in a wheel chair outside her house along with Mayur and Gayatri who are examined as P.W.2 and P.W.4 respectively. The accused lifted the victim from the wheel chair, carried her inside the house and committed sexual intercourse. The learned Special Judge has held, and rightly so, that the victim is not a competent witness and her non-examination would not dent the prosecution case. P.W.1 who is a Special Teacher in a school for mentally retarded children recorded the statement of the victim. Manohar Dandekar who recorded the statement of victim is subjected to extensive cross-examination. The learned counsel for the accused invites my attention to the examination-in-chief of P.W.1 and contends that the only statement attributed to the victim is that the accused removed her nicker, slept over her person and touched his private organ to her private part. The learned counsel also invites my attention to the evidence of the two child witnesses Mayur and Gayatri and contends that neither Mayur nor Gayatri speak of a penetrative act and all that is deposed by both Mayur and Gayatri is that the accused slept on the person of the victim. I am afraid, I am not inclined to view the evidence in the self-serving manner in which the learned counsel for the accused would view the same. Mayur who is 14 years when he entered the witness box ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 7 clearly states that he witnessed the accused sleeping over the victim and doing the sexual act (rocking motions). The witness then deposes that the accused, after completing the act, inserted penis inside the trousers and pulled up the chain of the trouser. The witness deposes that he noticed reddishness and swelling on the private part of the victim. Mayur's testimony is not shaken in the cross-examination. He denies the suggestion that he was tutored by P.W.3 and the police. I have no hesitation in holding that the testimony of Mayur is implicitly reliable and confidence inspiring. The other child eye witness Gayatri deposes that the accused was sleeping on the person of the victim, both she and Mayur witnessed the incident, that Mayur confronted the accused as to why he was sleeping over the person of the victim, and then the accused left. Gayatri indeed admits in the cross-examination that P.W.3 and her father told me that she has to depose before the Court and that since same date she and Mayur were preparing for evidence. She gives a categorical admission in the cross-examination that her statement was tutored and who was Mayur's. However, she denies the suggestion that she is deposing fall suit.
8] The medical evidence conclusively corroborates the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 8 case of the prosecution that there was a penetrative sexual intercourse. The victim was examined by P.W.6 Dr. Archana Rathod. She has deposed that on clinical examination she noticed that the victim was mentally challenged and that there was reddishness over labia, minora and fourchette and two small abrasions of size 0.5 cm. over the buttock. Hymen was torn, congestion and tenderness was visible around the torn hymen. The Doctor also noticed reddishness at the vagina. P.W.6 has proved the medical certificate at Exh.36 and has categorically stated that the findings are consistent with recent sexual intercourse-assault. The cross-examination does not take the case of the defence any further. The ocular evidence is clinchingly corroborated by the medical evidence. I have no hesitation in holding that the penetrative sexual assault is proved beyond any reasonable doubt.
9] The learned counsel for the accused has also relied on the 2013 All MR (Cri.) 4167 Bandu @ Daulat s/o Gulabrao Itankar vs. The State of Maharashtra and 2015 All MR (Cri.) 501 Dhanraj s/o Shivram Tagde vs. The State of Maharashtra. In Dhanraj Tagde, this Court held that the medical evidence and the C.A. report did not support the prosecution case even to the slightest extent and ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 9 conviction recorded on the basis of only one description word, is not sustainable. It would be necessary to notice the factual scenario in which, in Bandu Itankar this Court set aside the conviction. In Bandu Itankar this Court was considering a factual scenario in which the prosecution did not examine any eye witness to the incident. The victim who was mentally challenged was not examined and reliance was placed by the prosecution only on the testimony of the mother of the victim and the teacher who could understand the gestures of the victim. The medical evidence did not suggest any injury on or near the genitals. This Court held that if the mother of the victim could understand language of victim girl by gestures, evidence ought to have been recorded in camera with the help of expert and her mother. I need not dwelve on this aspect any more as Bandu Itankar case is clearly distinguishable on facts. Be it noted, that in Bandu Itankar no eye witness was available for examination and none was examined. The victim was not examined and the teacher and the mother of the victim who understood the gestures of the victim were examined in the Court. The observations in Bandu Itankar must be held to be observations made in the context of the facts of that case. Even if arguendo the contention of the learned counsel Shri Hajare is to be accepted, the only result would be that the ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 ::: apeal398.16.J.odt 10 evidence of the victim would have to be kept out of the consideration. I have already recorded a finding that the evidence of P.W.2 and P.W.4 who are eye witnesses, which evidence is corroborated by P.W.3 and the medical evidence, is more than sufficient to establish the offence beyond any reasonable doubt. 10] The presumption of innocence, as is held by the Hon'ble Supreme Court, is not a fetish. The evidence of the child witnesses, in my opinion, is confidence inspiring and even the alternate submission that at the most the sexual act will be an offence under section 376 of I.P.C. is to be noted only for rejection, in the teeth of the ocular evidence which is corroborated by the medical evidence on record.
11] The appeal is absolutely unmerited and is dismissed. The fees of the learned Counsel who is appointed for the appellant is quantified at Rs.5,000/-.
JUDGE NSN ::: Uploaded on - 07/09/2017 ::: Downloaded on - 09/09/2017 02:01:55 :::