Bombay High Court
Rajendra Gangaram More vs The State Of Maharashtra on 20 August, 2022
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.562 OF 2018
Rajendra Gangaram More .... Appellant
Versus
The State of Maharashtra & Anr. ....Respondents
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Mr. Prakash V. Vare, Advocate for the Appellant.
Mr. R.M. Pethe, APP for the Respondent No.1-State.
Ms. Vilasini Balsubramanian, Advocate (appointed) for Respondent
No.2.
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CORAM :SARANG V. KOTWAL, J.
DATE : 20th AUGUST, 2022
ORAL JUDGMENT :
1. The appellant has challenged the judgment and order dated 13.3.2018 passed by the Special Judge under POCSO Act, Greater Bombay passed in Special Case No.353/2016. By the impugned judgment and order, the appellant was convicted for commission of offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and was sentenced to suffer RI for ten years and to pay fine of Rs.1000/- and in default of payment of fine to undergo SI for 30 days. The appellant was also convicted for 1 of 20 Deshmane(PS) :2: 210.APEAL-562-18.odt commission of the offence punishable under Section 8 of the POCSO Act and was sentenced to suffer RI for three years and to pay fine of Rs.1000/- and in default of payment of fine to undergo SI for 30 days. The learned Judge in clause (3) of the operative part of the impugned judgment and order observed that there was no need to punish the appellant for the offence punishable under Sections 376(2)(i),(n) of IPC as per the provisions of Section 42 of the POCSO Act. He was acquitted from the charges of commission of offence punishable under Section 506 of IPC. In addition, he was directed to pay compensation of Rs.25,000/- to the victim as per the provisions of Section 33(8) of the POCSO Act. The amount, if deposited, was directed to be given to the victim. The amount was directed to be deposited within one month from the date of the impugned order. In default, he was directed to undergo SI for one year. All the offences were directed to run concurrently. He was given set off under Section 428 of Cr.P.C.
2. Heard Shri Prakash Vare, learned counsel for the appellant, Shri R.M. Pethe, learned APP for the respondent No.1 and Ms. Vilasini Balsubramanian, learned appointed counsel for respondent No.2.
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3. The prosecution case is that the victim was about fifteen & half years of age at the time of incident. The appellant was residing in the nearby room. The victim was residing with her grand-parents as her mother had expired and her father was not looking after her. The victim used to return from her school at around 12.00 p.m. Her grand-parents used to go to attend their work. Therefore, she used to be alone at home. It is the case of the prosecution that the appellant used to take advantage of this situation. He used to visit her house and commit all these offences for which he is convicted. Ultimately on 12.5.2016, the grand- mother came to know about it from a neighbour and she went to the police station and lodged FIR vide C.R. No.212/2016 at Dharavi police station, Mumbai under Section 354 of IPC and under Sections 8 & 12 of POCSO Act.
4. The appellant was arrested on the same day i.e. on 12.5.2016 and since then he is in custody. The victim was sent for medical examination and at that time it was noticed that the hymen was torn. The Medical Officer, therefore, opined that there was a possibility of commission of rape and, therefore, on 12.5.2016 itself Section 4 of POCSO Act and Section 376(2)(i),(n) 3 of 20 :4: 210.APEAL-562-18.odt of IPC were added.
5. The investigation was carried out. The statements of the witnesses were recorded and the charge-sheet was filed. The case was committed to the court of Special Judge. The appellant faced the trial.
6. During trial, the prosecution examined seven witnesses including the victim, her grand-mother, a neighbour, the Medical Officer and the investigating officers. The defence of the appellant was that he was doing the work of preparing sweetmeat boxes and the children playing in the area used to cause damage and he used to scold the children including the victim. Therefore, the victim implicated him. She was instigated by another neighbour to do so. He was falsely implicated. The appellant examined two defence witnesses to support his case that because of the damage caused by the children he used to scold the children and that is why he was implicated.
7. After considering the submissions made by both the parties in the background of the evidence led by both sides, the learned Judge convicted and sentenced the appellant, as 4 of 20 :5: 210.APEAL-562-18.odt mentioned earlier. Learned Judge relied on the evidence of the victim herself in reaching her conclusions. She observed that there was no reason for the doctor to give false evidence. Even the history given by the victim to the doctor was important. Learned Judge, however, erroneously relied on the history given by the appellant to the Medical Officer ignoring Section 26 of the Evidence Act. At that time the appellant was in police custody and, therefore, such history amounting to confession was inadmissible under Section 26 of the Evidence Act.
8. The prosecution case is based on the evidence of PW-1. She has deposed that she was residing with her grand parents. Her date of birth was 26.11.2000. A copy of the birth certificate was given by her grand-father to the police. It is produced on record at Exhibit-14. The date of birth mentioned in the birth certificate was 26.11.2000. It was issued by the Registrar working with Municipal Corporation of Greater Bombay. She has deposed further that the appellant used to come to her house. He used to give her Rs.50/- and he used to remove her clothes and used to touch her chest and her private parts. She narrated that incident to her grand-mother and her neighbour PW-3. The grand-mother then took PW-1 to the 5 of 20 :6: 210.APEAL-562-18.odt police station. The police enquired with her and recorded her statement and also recorded her supplementary statement. It is her case that she narrated before the police that the appellant had committed rape on her. She deposed that when he committed rape, she shouted but he used to ask her to keep quiet. She has told this incident to PW-3 as well. The police took her to hospital. She narrated the incident to the Medical Officer. He examined her. PW-1 identified the appellant in the Court. She further deposed that her statement was recorded under Section 164 of Cr.P.C.
In her cross-examination, she deposed that her grand- mother had filed a complaint against the appellant with Dharavi police station on 2.2.2016. She has mentioned that pursuant to that complaint the police did not arrest him in that connection. The allegations in that complaint were that the appellant used to visit her house and used to touch her inappropriately. Her grand- mother had questioned the police as to why the appellant was not arrested. After that he was arrested in that police case. According to her, she narrated that particular incident to the doctor when she went to the doctor for the first time.
It is very important to note that no such record is 6 of 20 :7: 210.APEAL-562-18.odt brought forth by the investigating officer or by any other witness. There is no record to show that any such complaint was ever filed by PW-1's grand-mother on 2.2.2016 or that the appellant was arrested in that connection.
In her cross-examination, she admitted that the appellant used to prepare sweetmeat boxes in the open space in front of his house. The children used to play in that area. Because of that his work used to be obstructed and the appellant used to warn or beat the children playing there. Significantly she has stated that she went to the police station for the first time on 30.5.2016. She has then categorically stated that she had not gone to the police station prior to that date. The police had recorded her statement on 30.5.2016. On that date, she narrated to the police that the appellant used to come to her house and used to switch off the light and used to move his hand all over her body. After that statement, she was sent to a doctor for medical examination. She has specifically stated that prior to 30.5.2016 she had no occasion to go to the hospital.
9. PW-2 is the grand-mother of the victim. She has deposed that during the day time, she and her husband used to go 7 of 20 :8: 210.APEAL-562-18.odt to attend their work. Her husband was a gardener. They used to return only in the late evening. The victim used to be alone at home. The victim had told her that there was pain in her private parts. She told PW-2 that the appellant used to visit her house, used to give Rs.50/- and used to move his hand over her chest and private parts. He used to tell PW-1 not to disclose this fact to anybody else. She further told this witness that this was going on for many days. PW-2 did not believe her. Therefore, PW-3 a neighbour asked the victim about the same. According to PW-3- the neighbour, there appeared to be some substance in what PW-1 was telling them. And, therefore, they went to the police station and lodged the report. The FIR is lodged by PW-2. It is produced on record at Exhibit-15. After that the victim was taken to Sion Hospital. In the hospital, the doctor told her that there were physical relations kept with the victim. The grand-mother thereafter asked the victim about it. At that time, the victim told her that the appellant had kept physical relations on four to five occasions. After that the police recorded supplementary statement of PW-1. She took the victim to Mazgaon Court where her statement under Section 164 of Cr.P.C. was recorded.
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In her cross-examination, she admitted that the children playing in front of his house caused inconvenience and disturbance to the appellant. Before May, 2016 PW-1 had never disclosed about any incident to her. During that period, PW-2 had gone to her native place on four to five occasions and on all these occasions, the neighbour PW-3 used to take care of the victim. She further deposed that the victim told her on the same day when the medical examination was conducted that there were physical relations between her and the appellant.
10. PW-3 is the neighbour who is referred to by PW-2 in her deposition. She used to reside in the neighbourhood but she had shifted from that place and had gone to reside at Dombivali from 30.4.2016. She has deposed that the victim used to be alone in her house during the day time and the appellant used to visit the victim's house regularly. She questioned the victim. At that time, the victim had told her that the appellant used to touch her breasts and private parts. She further told that he put something on her private parts.
In her cross-examination, she deposed that she told the victim's grand-mother to take her care because the appellant used 9 of 20 : 10 : 210.APEAL-562-18.odt to visit her house. In her cross-examination she denied having stated before the police that the victim had told her that the appellant had committed rape on her. She could not assign as to why that fact was not mentioned in the police statement.
11. PW-4 was the Chairman of the Society where PW-2 was residing. He had advised PW-2 to approach the police.
12. PW-5 Dr. Hemant Kukde had examined the victim. According to him, on 12.5.2016 the victim was brought to Sion Hospital. As per the history given by the victim, the appellant had sexually assaulted her by touching and hugging her. He used to touch her breasts. He used to give Rs.50/-. This witness has deposed that the victim was not sure about the penile penetration but she used to feel pain in her abdomen. There was reference to the victim suffering from bleeding but the date mentioned was August 2016. It appears that it was a typographical error. In any case, this particular allegation and this particular date does not match with the prosecution case. On the examination of the victim he did not find any external injury. The hymen showed old tear at 2 O'Clock position. There was no perineal tear present. There was no external injury anywhere. On the basis of this examination, he 10 of 20 : 11 : 210.APEAL-562-18.odt opined that overall finding was consistent with old sexual intercourse/ assault.
He also examined the appellant and recorded the history given by the appellant. There was nothing to suggest that the appellant was not capable to perform sexual intercourse, according to his opinion. He denied the suggestion that the injury to hymen was possible due to cycling or running.
13. PW-6 PSI Anand Maneshwar was the investigating officer. He has deposed that initially FIR was registered under Section 354 of IPC read with Sections 8 & 10 of the POCSO Act. Then the victim was sent for medical examination on 12.5.2016. After the medical examination, Section 376 of IPC read with Section 4 of the POCSO Act was added on 12.5.2016 itself. He conducted the spot panchnama. It is produced on record at Exhibit-23.
In the cross-examination, he categorically admitted that it did not happen that on 2.2.2016 the victim had lodged a report against the appellant, or that she was taken for medical examination on 2.2.2016. He denied any knowledge of the victim's statement being recorded on 30.5.2016 or whether she 11 of 20 : 12 : 210.APEAL-562-18.odt was referred for medical examination on that date. He admitted that initially the victim had not stated about the rape even the grand-mother of the victim had not stated about the rape.
14. PW-7 PI Madhukar Sanap has deposed that he had recorded the supplementary statement of the grand-mother. The record shows that it was recorded on 16.5.2016. The victim's supplementary statement was recorded on 30.5.2016 by a woman police constable. This witness had then filed the charge-sheet. He also admitted that in the first statement dated 12.5.2016 the victim did not make any accusation about the offence of rape.
15. After the evidence of prosecution was over, the statement of the accused-appellant was recorded under Section 313 of Cr.P.C. in which he has taken a defence that he was falsely implicated because he used to scold the victim as his boxes used to be damaged. There were quarrels between him and PW-3 who instigated PW-2 to lodge a false case against him. According to him, his life was spoiled due to this false case. He also examined two defence witnesses. The first defence witness DW-1 Madhukar Mali was residing in the same locality. He has deposed that the victim and other children used to play in front of the appellant's 12 of 20 : 13 : 210.APEAL-562-18.odt house. His boxes used to get damaged. Because of that, the appellant used to shout at them including the victim, who complained to her grand-parents. The grand-parents had threatened the appellant.
16. DW-2 Geeta Kamble was another resident of the locality. She has also deposed that the children used to damage the appellant's boxes and on one occasion she had seen the quarrel between the appellant and PW-2. She saw that the appellant was threatened by PW-2.
17. Learned counsel for the appellant submitted that the narration of the victim is not believable. She did not inform about those incidents to anybody. According to her, it was going on for a long period and her silence was important. When PW-2 had gone to her native place, at that time PW-3 was looking after her. Even then PW-1 had not told anything to PW-3. In any case, PW-3's evidence does not inspire confidence.
18. Learned counsel further submitted that the victim has not given any details or has not given even any approximate date and month when the incident of rape had taken place. He further 13 of 20 : 14 : 210.APEAL-562-18.odt submitted that her cross-examination shows that there was an attempt made by her to implicate the appellant in the month of February itself but at that time the police had not paid any attention which shows that the victim's family and the victim were interested in implicating the appellant falsely. He relied on the evidence of the defence witnesses to show that there was a reason as to why the victim was deposing against him.
19. Learned counsel for respondent No.2 as well as learned APP opposed these submissions. They submitted that there is no reason to disbelieve the victim who was barely 15 & ½ years of age at the time of incident. The appellant used to pay her money and she had kept quiet. In such cases, delay in lodging the FIR can be accepted. There was no reason for her to implicate the appellant falsely. Her evidence is sufficiently corroborated by PW-2 & PW-3. Her evidence is further corroborated by the medical evidence. The Medical Officer was an independent witness and he had no reason to implicate the appellant falsely.
20. I have considered these submissions in the backdrop of the evidence led in the trial Court by both the parties. The FIR at the first instance was lodged only under Section 354 of IPC and 14 of 20 : 15 : 210.APEAL-562-18.odt under Sections 8 & 12 of the POCSO Act. As far as those allegations are concerned, there is no reason to disbelieve the prosecution case based on the victim's deposition to that extent. She has deposed that the appellant used to visit her house and used to touch her inappropriately. The allegations would squarely fall within the meaning of Section 7 of the POCSO Act for which punishment is provided under Section 8 but since it was repeated on more than one occasion, on the basis of Section 9(l), the sexual assault becomes aggravated sexual assault and it is made punishable under Section 10 of the POCSO Act which provides for imprisonment for the term which shall not be less than five years but which may extend to seven years and also for fine. From the record of this case, the offence under Section 9 punishable under Section 10 is made out. Her evidence to that extent is supported by PW-2. After PW-2 came to know about the incident, she has lodged the F.I.R.. To that extent, PW-1 and PW-2 support each other. There is no reason to disbelieve that part of the evidence.
21. However, other serious allegations need serious consideration. The allegation of commission of rape or penetrative sexual assault was not made in the FIR. The victim had told her 15 of 20 : 16 : 210.APEAL-562-18.odt grand-mother PW-2 about the acts committed by the appellant and even on that occasion there was absolutely no reference to offence of rape or penetrative sexual assault. The allegations were restricted only to the offence described under Section 7 of the POCSO Act and under Section 354 of IPC. It was only after the medical examination that the doctor opined about the possibility of rape. These allegations are made by the grand-mother i.e. PW-2 in her statement recorded on 16.5.2016. She had not immediately made allegations of rape on 12.5.2016 though those serious sections were added on that date itself. Apart from that it is also important to note that the victim had made a reference to the fact that she had gone to the police for the first time on 30.5.2016. She has not supported the prosecution case that she had gone on 12.5.2016 to the police station and had made any allegations. She has also deposed that she was taken for the medical examination for the first time on 30.5.2016. Therefore, there is a serious discrepancy about the prosecution case in respect of these aspects and a serious doubt is created regarding allegations of penetrative sexual assault.
22. Apart from that the victim has also admitted that there 16 of 20 : 17 : 210.APEAL-562-18.odt was some previous complaint made to the police station on 2.2.2016, for which the appellant was arrested at her behest. The investigating officer has denied these allegations. Those allegations were also pertaining to the offence of outraging modesty under Section 354 of IPC. There is no further reference or record in respect of those allegations. Thus, it is clear that from February, 2016 itself the victim had tried to make allegations against the appellant. But even then there were no allegations of commission of rape. Thus, there is a gap between February and May, 2016. During this period, there were no allegations of penetrative sexual assault against the appellant. All these factors have remained unexplained. The date of medical examination is in doubt. PW-1 has deposed that she was examined on 30.5.2016 and not on 12.5.2016.
23. The evidence of the defence witness has proved the defence of the appellant to some extent within the parameters of preponderance of probability and, therefore, there is a possibility of exaggeration on the part of the victim to implicate the appellant in a more serious offence. By examining defence witness, the appellant has rebutted presumption under Section 29 of the 17 of 20 : 18 : 210.APEAL-562-18.odt POCSO Act. Therefore, the appellant deserves benefit of doubt to that extent. Thus, based on this consideration, I am of the opinion that the prosecution has proved its case beyond reasonable doubt only to the extent of commission of the offence under Section 9 of POCSO Act punishable under Section 10 of the POCSO Act. The rest of the offences are not proved and the appellant deserves to be acquitted from those charges. The judgment and order needs to be modified in that behalf to that extent. As far as the compensation part is concerned, since I am holding that the offence under Section 9 read with 10 of POCSO Act is proved, the compensation as awarded by trial Court will have to be paid by the appellant. However, I am inclined to grant further time to pay the compensation. Learned counsel for the appellant states that he has not paid the fine amount as of today.
24. Hence, the following order :
:: O R D E R ::
i. The appeal is partly allowed. ii. The appellant is acquitted from the charges of commission of
the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012, and also from the charges of commission of offences punishable under Section 18 of 20 : 19 : 210.APEAL-562-18.odt 376(2)(i) and 376(2)(n) of the Indian Penal Code.
iii. The appellant is convicted for commission of the offence punishable under Section 9 read with 10 of the POCSO Act. iv. The appellant is in custody since 12.5.2016. Therefore he is sentenced to suffer RI for the period which he has already undergone which is more than the minimum sentence of five years. The appellant shall pay the fine of Rs.5,000/- for this offence and in default of payment of fine he shall undergo SI for three months.
v. In view of the conviction and sentence under Section 9 read with Section 10 of the POCSO Act, the conviction and sentence under Section 8 of the POCSO Act does not survive as mentioned in clause (3) of the impugned judgment and order.
vi. The appellant was directed to pay compensation of Rs.25,000/- to the victim as per Section 33(8) of the POCSO Act. The amount if deposited was directed to be paid to the victim. That part of the operative part of the impugned judgment is maintained. However, the appellant is permitted to deposit that amount before the actual release of the 19 of 20 : 20 : 210.APEAL-562-18.odt appellant from prison. If he does not deposit that amount before his release then he shall undergo further SI for one year from today.
vii. If the appellant deposits the compensation and fine amount within a period of next one year and three months from today, then he shall be released on that date. Otherwise, the maximum remaining sentence including the in default sentence would be one year and three months from today. The amount shall be deposited in the trial Court. viii. On deposit of such compensation amount, the amount shall be paid to the victim at the earliest.
ix. The other clauses from the impugned order are retained as they are.
x. He is also granted set off under Section 428 of Cr.P.C.. xi. Criminal Appeal is disposed of in the aforesaid terms. . Advocate Ms. Vilasini Balsubramanian who is appointed to represent respondent No.2 shall be paid professional charges in accordance with the rules.
(SARANG V. KOTWAL, J.)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO Deshmane (PS)
PRAKASHRAO DESHMANE
DESHMANE Date:
2022.08.23
18:17:41
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