Bombay High Court
Manthir S/O Punaram Madavi vs State Of Mah., Thr. Pso P S Korchi Dist ... on 13 February, 2020
Author: V.M.Deshpande
Bench: V.M.Deshpande
Judgment
apeal624.19 1
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.624 OF 2019
Manthir s/o Punaram Madavi,
Age 47 years, occupation : cultivator,
R/o Sonpur, tahsil : Korchi,
District : Gadchiroli. ..... Appellant.
:: VERSUS ::
State of Maharashtra,
Through its Police Station Officer,
Police Station : Korchi,
District : Gadchiroli. ..... Respondent.
===================================
Shri R.R.Vyas, Counsel for the Appellant.
Shri M.K.Pathan, Additional Public Prosecutor for the Respondent/
State.
===================================
CORAM : V.M.DESHPANDE, J.
DATE : FEBRUARY 13, 2020
ORAL JUDGMENT
1. By this appeal, the appellant is challenging judgment and order of conviction dated 6.8.2019 passed by learned Additional Sessions Judge/Special Judge, Gadchiroli in Special .....2/-
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2. By the impugned judgment and order of conviction, the appellant was convicted for offences punishable under Sections 376 and 506 Part II of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act").
For offence punishable under Section 506 Part II of the Indian Penal Code, the appellant was sentenced to suffer rigorous imprisonment for 1 year.
For offence punishable under Section 4 of the POCSO Act, the appellant was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine Rs.500/- and in default of payment of the fine amount to suffer simple imprisonment for 10 days.
For offence punishable under Section 376 of the Indian Penal Code, no separate sentence was passed inasmuch as .....3/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 3 sentence relating to the same type of act was already passed relating to Section 4 of the POCSO Act, as it could be seen from operative portion of the judgment and order of conviction impugned in this appeal.
Learned Judge of the Court below directed that all sentences of the appellant shall run concurrently and also set-off was given to him since he was in jail.
3. The prosecution case is in a narrow compass. It starts when victim (PW1), along with her mother Hiramati (PW2), went to Kotgul Police Help Centre, District Gadchiroli which falls within jurisdiction of Korchi Police Station, District Gadchiroli. There, victim gave her oral report (Exhibit 7). On the basis of the said oral report, occurrence was registered as Occurrence Report No.11/2017 (Exhibit 50).
4. Police Constable Rajesh Chavar (PW10), at Korchi Police Station, received Occurrence Report No.11/2017 (Exhibit .....4/-
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50) from Kotgul Police Help Centre, Gadchiroli along with complaint, on the basis of which at Korchi Police Station offence was registered vide Crime No.53/2017 against the appellant under Sections 376(2)(1) and 506 of the Indian Penal Code and under Sections 4 and 8 of the POCSO Act. Printed First Information Report is at Exhibit 51.
5. As per oral report (Exhibit 7), victim (PW1) along with her friend Haseena (PW4) and Haseena's younger brother Krish went towards a pond for a bath. There, they washed their clothes and took a bath. At the time of their bath, the appellant, who is referred by the victim in her report as her grandfather in relation, also came there for a bath and after his bath, he sat on boundary of an agricultural field of the victim. The report shows that after bath, victim asked Haseena and her brother to proceed and she will follow them after playing on swing. When she was playing on a swing, the appellant called her and when she went in response to his call to her, as per the report, in Chhattisgarhi language he .....5/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 5 asked her that they should go for a sexual intercourse and directed the victim that she should go near Jamun Tree at Gyarapatii Road. Accordingly, she went near the said tree. After some time, the appellant came there and asked the victim to sleep on ground and, thereafter, removed her clothes and inserted his male organ into her private part due to which there was a pain, however he pressed his hands so that the victim should not shout. After some time, the appellant asked the victim to put her clothes and extended threat that she shall not disclose the incident to anybody. The report shows that while she was going to her house, she noticed police. On noticing them, she stopped weeping. On their enquiry, she disclosed that she went for a bath and, thereafter, went to house. The report shows that on the said day, she was under fear and used to sleep in house of her friend and after 2-3 days, when her mother asked as to why she is not sleeping in house, she disclosed the incident on 3.10.2017 and, thereafter, both of them came to Kotgul Police Help Centre, Gadchiroli and .....6/-
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6. After registration of the crime, investigation was conducted by Police Sub Inspector Swapnil Lohar (PW8). On 7.10.2017, he executed spot panchnama (Exhibit 20) in presence of Shamlal Naitam (PW5). He also sent victim (PW1) to Gadchiroli General Hospital, Gadchiroli, under requisition (Exhibit
34), for her medial examination. Statements of witnesses were recorded. He arrested the appellant on 9.10.2017, under arrest panchnama (Exhibit 35). He also sent the appellant to General Hospital, under requisition (Exhibit 36), for his medical examination. During the investigation, on memorandum statement of the appellant, a "towel" used by the appellant was seized. Also, clothes of the appellant were seized. During course of the investigation, he also collected birth certificate (Exhibit 39) of the victim. In the meanwhile, since he was transferred, final report was presented by Police Sub Inspector Vishal Patil before Court below.
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7. On presentation of final report, learned Additional Sessions Judge, Gadchiroli, in Special POCSO Case No.1/2018, framed charge against the appellant for offences punishable under Sections 376(2)(1) and 506 of the Indian Penal Code under Section 4 of the POCSO Act. The appellant denied the charge and claimed for his trial. In order to prove the charge, the prosecution examined in all 10 witnesses and also relied upon documents especially birth certificate and medical certificate of victim (PW1). Learned Judge of the Court below, after appreciating evidence brought on record, passed judgment and order of conviction impugned in this appeal.
Hence, this appeal.
8. Heard learned counsel Shri R.R.Vyas for the appellant and learned Additional Public Prosecutor Shri M.K.Pathan for the respondent/State. With their able assistance, I have gone through notes of evidence and record and proceedings of the case.
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9. It is submission of learned counsel for the appellant that learned Judge of the Court below committed an error for convicting the appellant for offence punishable under Section 4 of the POCSO Act and also under Section 376 of the Indian Penal Code. He submitted that there is no scientific corroboration to the prosecution case inasmuch as Chemical Analyzer's Report (Exhibit
14) does not show that there were stains of semen or there was blood either on clothes of victim (PW1) or the appellant. He also submitted that there is a delay of lodging of First Information Report (Exhibit 7) and, therefore, a possibility of appellant being falsely implicated in crime is completely ruled out. It is also his submission that evidence of doctor does not show that hymen of the victim was torn which in his submission proves his innocence. He, therefore, submitted that the appeal be allowed and the appellant, who is in jail, be set at liberty.
10. Per contra, learned Additional Public Prosecutor for the State, submitted that the appellant has committed an act of .....9/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 9 rape on a minor girl. He submitted that delay of 3 days in lodging of First Information Report is properly explained in the First Information Report itself. He submitted that there is a statutory presumption in view of provisions of Section 29 of the POCSO Act and the appellant failed to discharge the burden. He also supported reasoning supplemented by learned Judge of the Court below for recording finding of guilt against the appellant and prayed for dismissal of this appeal.
11. In view of framing of charge under Section 4 of the POCSO Act, it is a duty of the prosecution to prove that victim (PW1) was child at the time of incident.
12. Clause (d) of sub section (1) of Section 2 of the POCSO Act, states that, "child means any person below the age of eighteen years."
13. Now, let us examine as to whether the prosecution has discharged its burden and proved conclusively that victim (PW1) .....10/-
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14. In oral report (Exhibit 7), lodged by victim (PW1) herself, she disclosed her age as 13 years. It is submission of learned counsel for the appellant that in the report the victim did not disclose her date of birth and, therefore, it would be unsafe to reach to a conclusion that at the time of lodging of the report she was 13 years old. I have no hesitation in my mind to reject the said submission. The victim from witness box on oath disclosed her date of birth as 18.12.2004. This particular assertion of fact regarding her date of birth is not at all challenged by the defence during cross-examination of the victim. Rather, her such evidence has gone unchallenged.
15. Investigating Officer Police Sub Inspector Swapnil Lohar (PW8), collected birth certificate (Exhibit 39) of victim (PW1). Perusal of the birth certificate shows that the said is given by Secretary of Sonpur Gram Panchayat. It also shows date of .....11/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 11 birth of the victim as 18.12.2004. It is not the case of the appellant before this Court that for any reason the said certificate is inadmissible in evidence.
16. When victim (PW1) was sent for her medical examination, she was also referred to Radiology Department for ascertaining her age. The prosecution examined Dr.Rajesh Raipure (PW6), who was Medical Officer and Radiologist at Gadchiroli General Hospital, Gadchiroli. His evidence shows that the victim was brought for her age determination test by a woman police constable and accordingly he examined the victim. He took X-Ray of her wrist and elbow joint and after going through the X-Ray plates, doctor Rajesh's evidence shows that age of the victim was not less than 12 years and not more than 13 years. Ossification Test Report is at Exhibit 23. Cross examination of Dr.Rajesh Raipure, shows that learned cross-examiner has not examined him at all except giving a lame suggestion that he gave an incorrect opinion about age of the victim. Of course, the said suggestion .....12/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 12 was also stoutly denied by the doctor.
17. In view of unchallenged version of victim (PW1) about her date of birth, which stands corroborated by documentary evidence i.e. birth certificate issued by the Secretary of Sonpur Gram Panchayat (Exhibit 39) and also by opinion of Radiologist Dr.Rajesh Raipure (PW6) in the nature of Ossification Test to show that her age was not less than 12 years and not more than 13 years and date of incident is 3.10.2017, there is no hesitation in my mind to record a finding that the prosecution successfully proved that the victim was child within the meaning of the POCSO Act.
18. Once it is proved that victim (PW1) is child, provisions of the POCSO Act will apply with its full force.
19. It is submission of learned counsel for the appellant that there is a delay of 3 days in lodging of First Information Report.
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20. True it is, that incident took place on 3.10.2017 and heinous act on the part of the appellant was reported to Kotgul Police Help Centre on 6.10.2017. Thus, incident was reported to the Police Help Centre after 3 days.
21. Delay itself is not sufficient to throw the case of the prosecution in dustbin. It is always open for the prosecution to offer an explanation regarding lodgment of report at belated stage at various stages such as at the time of enquiry, lodging of report, and during trial.
22. Perusal of oral report (Exhibit 7) and substantive evidence of victim (PW1) shows that the victim offered plausible explanation for the delay. The victim and her family are resident of village Sonpur, District Gadchiroli, which is a very backward district of Vidarbha Region. Printed First Information Report (Exhibit 51), shows that village Sonpur is 43 kilometers away from Korchi Police Station, District Gadchiroli whereat offence was .....14/-
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23. During course of submissions before this Court, both learned counsel did submit distance between village Sonpur and Kotgul is 5 kilometers.
24. Further, Police Help Centre is also not available at village Sonpur. Though exact distance between village Sonpur and Kotgul Police Help Centre has not come on record, fact remains that Police Help Centre is not at village Sonpur.
25. Victim (PW1) referred the appellant as her grandfather in her relation. At the time of arrest, age of the appellant was shown as 48. The victim, in her oral report (Exhibit
7) and in her substantive evidence, deposed that after act of sexual intercourse, the appellant extended threat that if this incident is disclosed to anybody, he will kill her. In my view, the appellant was in dominating position looking to his relation with the victim. The threat appears to be in such a nature that after incident while .....15/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 15 proceeding to house, the victim noticed police and on noticing them she stopped weeping and on their enquiry even she did not disclose incident to them. That shows degree of threat given to her by the appellant. Even, she could not dare to speak to her mother immediately about incident. Her evidence shows that she kept mum for 2 days. Oral Report (Exhibit 7), shows that even during the said period she was not having courage to sleep in her house, but she used to sleep in the house of her friend. These recitals of proved document (Exhibit 7), in my view, show that the victim was feeling ashamed due to act done to her. It is only after 3 days, when Hiramati (PW2), the mother of the victim, enquired, the victim disclosed incident on 6.10.2017 and, thereafter, immediately report was lodged.
26. It is my considered view that the aforesaid evidence and the narration in First Information Report (Exhibit 7) in an explanation that is offered by victim (PW1) for narrating incident to the police authority belatedly, I see no reason for not accepting .....16/-
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27. Another submission of learned counsel for the appellant is that there is no injury on the person of victim (PW1) or even to her private part. He, therefore, submitted that benefit of doubt is to be extended in favour of the appellant.
28. It is trite law that not noticing injuries on person of victim especially in rape cases cannot be the ground to acquit the accused. If evidence of victim of rape cases is found to be trustworthy and free from falsehood, such solitary evidence is sufficient to record finding of guilt.
29. In this case, after registration of crime, Investigating Officer Police Sub Inspector Swapnil Lohar (PW8) immediately gave requisition letter to Medical Officer, District General Hospital, Gadchiroli and accordingly Gynecologist Dr.Dipchand Soyam .....17/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 17 (PW7) working at General Hospital at Gadchiroli examined victim (PW1) on 8.10.2017. His evidence shows that at the time of her examination she gave history of sexual assault on her. His evidence shows that her hymen was found to be congested. Similarly, her clitoris was also found to be congested. In his cross- examination, he did state that it is true that injury on the hymen perineum and clitoris were not fresh. This admission is not supportive to the appellant inasmuch as the victim was examined on 8.10.2017 in respect of incident on 3.10.2017. Thus, the girl was examined after 5 days. If that be so, the doctor was right in stating that injuries were not fresh. However, fact remains that he noticed injury on the hymen perineum in the nature of congestion and the victim's clitoris was also found to be congested which clearly show that private part of the victim came in contact with foreign object and in this case as per evidence of the victim the appellant pushed his male organ inside her private part.
30. In view of evidence of Dr.Dipchand Soyam (PW7) and .....18/-
::: Uploaded on - 18/02/2020 ::: Downloaded on - 09/06/2020 09:33:45 ::: Judgment apeal624.19 1 18 contemporary document (Exhibit 26), which he proved regarding medical examination of victim (PW1), I am of view that there took sexual assault on the person of the victim.
31. Insofar as negative Chemical Analyzer's Report is concerned, I am not attaching any importance to the same, in view of fact that clothes of victim (PW1) as well as the appellant were seized near about 6 days after incident and in absence of any positive evidence that there was no washing to their clothes, it will be open for the Court to draw an inference that clothes must have been washed away. Clothes of the appellant were seized under seizure panchnama (Exhibit 37) on 11.10.2017. Whereas, clothes of victim (PW1) were seized under seizure panchnama (Exhibit
21).
32. In this case, when the prosecution has proved foundational facts which are material to prove the charge under the POCSO Act, the legal presumption under Section 29 of the Act .....19/-
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The presumption under Section 29 of the POCSO Act, can be rebutted. It is always open for the accused to rebut the presumption either by adducing evidence of through cross- examination of prosecution witnesses.
33. In the present case, the appellant did not adduce any evidence. In supplementary statement under Section 313 of the Code of Criminal Procedure, he only stated that he is falsely implicated in the crime. Though in cross-examination of victim (PW1) suggestion was given about dispute between the accused and the victim's parents on fishing, the said suggestion was also denied by the victim. There is no iota of any evidence about existence of such dispute. Further, when Hiramati (PW2), the mother of the victim, was under cross-examination, even such .....20/-
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34. In this view of the matter, I am of view that the appellant has not rebutted the presumption.
35. On re-appreciation of the entire prosecution case, I am of view that the prosecution has successfully proved the charge framed against the appellant. Consequently, I pass following order:
ORDER (1) The criminal appeal is dismissed. (2) The appellant who is in jail shall undergo remainder of his jail sentence.
JUDGE !! BRW !! ...../-
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