Bombay High Court
Lakhan S/O Kerbaji Sutare vs The State Of Mah. Thr. Pso Deoli ... on 18 June, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:6665
203.apeal.445.2019.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 445 OF 2019
Lakhan S/o. Kerbaji Sutare
Aged about 25 yrs, Occ.: Labour,
R/o. Isapur, Tah. Deoli, .... APPELLANT
District Wardha (In Jail)
// V E R S U S //
1. The State of Maharashtra,
Through its Police Station Officer,
Deoli, Tah. Deoli, Dist. Wardha
2. XYZ (victim) in Crime No. 193/13,
P.S.O., P.S. Deoli, Dist. Wardha ... RESPONDENTS
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Ms Kirti Deshpande, Advocate appointed for the appellant
Mrs H. S. Dhande, APP for the respondent No.1/State
Ms C. S. Bhute, Advocate for respondent No. 2
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CORAM : G. A. SANAP, J.
DATE : 18/06/2024
ORAL JUDGMENT :
1 Heard finally with the consent of learned
Advocates for the parties.
2 In this appeal, the challenge is to the Judgment
and order, dated 25.04.2019, passed by the learned Additional Session Judge, Wardha, whereby the learned Judge
203.apeal.445.2019.odt 2 on conviction of the accused for the offence punishable under Section 376(2)(i) of the Indian Penal Code (for short 'the IPC') and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act'), sentenced him to suffer ten years rigorous imprisonment on each count and directed to pay a total fine of Rs.25,000/-. 3 Background facts:
The FIR was registered on the basis of the report of the mother of the victim (PW-5). On the date of the incident, the victim was 13 years old. The informant and the accused at the time of the incident were residing adjoining to each other. The incident occurred on 16.12.2013 at about 1:00 p.m. The informant stated in the report that on 16.12.2013, she had gone to Deoli for purchasing groceries.
She returned at 5:00 p.m. and gave a call to the victim. The victim was present in the house, but she did not respond. The victim was sitting on the bed and crying. On her inquiry, the
203.apeal.445.2019.odt 3 victim hugged her and started profusely crying. The victim told her that at about 3:00 p.m., the accused came to her home and asked her to accompany him to the field of Bablu Ambatkar to pluck 'tur' pods. She accompanied the accused. They plucked a bag full of tur pods. The accused, at that time, told her that someone has come and that she should sit down. They both sat down. The victim narrated to her that thereafter, the accused gagged her mouth with his hand, pushed her to the ground and removed her knickers. She could not scream since the accused had gagged her mouth. The victim further narrated that the accused lay on her, inserted his penis in her vagina and again removed it. She has stated that she had severe pain. When she protested, the accused released her and then he fled from the spot. She collected her clothes and came back to home. It is stated that after the narration of this incident the informant examined private part of the victim and found that it was swollen. She
203.apeal.445.2019.odt 4 also found a white substance on her knickers. She therefore went to the police station and reported the incident to the police.
4 On the basis of the report, crime bearing No.193 of 2013 for the offences punishable under Section 376(2)(i) of the IPC and Section 3(a) R/w. Section 4 of the POCSO Act was registered. After completion of the investigation, the charge-sheet was filed. On committal of the case to the Sessions Court, the learned Judge framed the charge against the accused. The charge was explained to the accused and the accused pleaded not guilty to the same. His defence is of false implication and total denial.
5 In order to bring home the guilt against the accused, the prosecution examined eight witnesses. The prosecution has relied on number of documents. The learned Judge, on consideration of the evidence, found the evidence
203.apeal.445.2019.odt 5 reliable to prove the charge against the accused and on conviction, sentenced the accused, as above. The accused is, therefore, before this Court in appeal.
6 I have heard learned appointed Advocate Ms Kirti Deshpande for the appellant/accused, learned APP Ms H. S. Dhande for the State and learned appointed Advocate Ms C. S. Bhute for respondent No.2. Perused the record and proceedings.
7 Learned Advocate for the appellant/accused submitted that the learned Judge has failed to properly appreciate the evidence of the victim and her mother. Learned Advocate submitted that on the basis of the evidence adduced by the prosecution, the charge of a penetrative sexual assault on the victim has not been proved. Learned Advocate submitted that the victim was examined by the doctor and her examination revealed that there were no external or
203.apeal.445.2019.odt 6 internal injuries on the body or private part of the victim. Learned Advocate submitted that it is the case of the prosecution that there was forceful penetrative sexual assault on the victim and therefore, the medical officer ought to have noticed the fresh signs of the intercourse or attempt to commit intercourse with the victim. Learned Advocate submitted that the case of the prosecution as to the penetrative sexual assault cannot be believed because there were no injuries on the person of the victim as well as on the private part of the victim. Learned Advocate submitted that if the attempt was made by the victim to free herself from the clutches of the accused then there ought to have been injuries on her body as well as on the body of the accused. Learned Advocate submitted that such injuries would have corroborated the case of the prosecution. Learned Advocate submitted that the accused was examined by doctor and in his examination, the doctor did not notice any injury on the body of the accused. Learned Advocate relying
203.apeal.445.2019.odt 7 upon the decision of the Apex Court in the case of State (NCT of Delhi) .v/s. Pankaj Chaudhary & others 1 submitted that in the backdrop of the factual situation brought on record there ought to have been a medical evidence of penetration or an attempt to commit penetration. Learned Advocate submitted that the sole testimony of the victim can be used as a general rule to base a conviction, provided on appreciation of the same it must be found to be credible. Learned Advocate relying upon this judgment submitted that in the factual scenario, the evidence of the victim, which appears to be doubtful, ought to have been corroborated by the medical evidence. Learned Advocate submitted that the defence of the accused was put to the victim as well as to her mother in their evidence. In short, according to the accused, on account of the flow of dirty water from drainage towards the house of the accused, there was a dispute between them and as a result thereof, this false case was lodged against him. Learned Advocate in support of her 1 (2019) 11 SCC 575
203.apeal.445.2019.odt 8 submission also relied upon the judgment in the case of Yerumalla Latchaiah .v/s. State of A.P. 2.
8 Learned APP submitted that the learned Judge on appreciation of the evidence of the victim and her mother has found the same of a sterling quality to convict the accused. Learned APP submitted that the victim and her mother had no reason to falsely implicate the accused. Learned APP submitted that no material has been brought on record in their cross examination to suggest the possibility of a false implication. Learned APP submitted that the defence of enmity sought to be put forth has not been established. Learned APP submitted that the absence of injury to the private part, in the factual situation, would not be fatal to the case of the prosecution. Learned APP submitted that the evidence of the victim and her mother is of stellar quality and therefore, the conviction based on the said evidence is just and proper. Learned APP 2 (2006) 9 SCC 713
203.apeal.445.2019.odt 9 submitted that the basic ingredients of Section 375 of the IPC have been made out on the basis of the cogent and concrete evidence of the victim and her mother. Learned APP submitted that merely because of the absence of the injuries, as sought to be contended by the accused, the evidence of the victim and her mother, which is otherwise credible, cannot be discarded. Learned APP submitted that in an Indian setting a mother would not put the future of her daughter at stake to settle the score with her neighbour. Learned APP submitted that there is no reason to disbelieve and discard the evidence of the victim and the corroborative evidence of her mother coupled with other circumstances with regard to the incident. 9 Learned Advocate appointed to represent the victim has adopted the submissions made by the learned APP. Besides, the learned Advocate relied upon the decision in the case of Wahid Khan .v/s. State of Madhya Pradesh 3 to 3 (2010) 2 SCC 9
203.apeal.445.2019.odt 10 substantiate her contention that the absence of injuries could not be a ground to discard and disbelieve the evidence of the victim/prosecutrix, which stands on equal footing with that of the injured witness. Learned Advocate submitted that the evidence of the victim and her mother inspires confidence and therefore, the absence of corroboration to such evidence by the medical evidence may not be fatal to the case of the prosecution.
10 In order to appreciate the rival submissions, I have gone through the record and proceeding. The Apex Court in the case of Yerumalla Latchaiah .v/s. State of A.P. 4 held that if the medical evidence is inconsistent with the evidence of the prosecutrix, then the Court has to take great care while appreciating the evidence. It is observed that the evidence of the prosecutrix can be belied by medical evidence, if the examination of the prosecutrix by the Doctor immediately 4 (2006) 9 SCC 713
203.apeal.445.2019.odt 11 after the incident does not show any sign of rape. In the case of State .v/s. Pankaj5 it is held that the sole testimony of the prosecutrix, if credible, can be made the basis of the conviction without a corroboration. It is held that the Court can insist for corroboration from the medical officer where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. It is observed that the sole testimony of the prosecutrix should not be doubted by the Court merely on the basis of assumptions and surmises. 11 In the case of Wahid Khan .v/s. State of M.P. 6, the Hon'ble Apex Court has observed that judicial note has to be taken of social repercussions, backward looking Indian society, dangers of being ostracised and survival difficulties and the resultant psychology of an Indian girl or woman (especially an unmarried girl) not to admit rape unless rape had actually been committed. It is held that the evidence of the prosecutrix 5 (2019) 11 SCC 575 6 (2010) 2 SCC 9
203.apeal.445.2019.odt 12 stands on equal footing with that of the injured witness and if her evidence inspires confidence, corroboration is not necessary. It is held that corroboration through medical evidence depends upon the facts of each and every case. The evidence of the victim can be made the basis of conviction even though it is not corroborated by the medical evidence. It is observed that it depends upon the facts and circumstances and the evidence adduced by the prosecution in the case. In this case before the Apex Court, initially prosecutrix had turned hostile. The medical evidence did not corroborate the testimony of the victim. There was oral evidence of PW-3 Investigating Officer, who had caught the accused red-handed while committing rape and the auto-rickshaw, in which the prosecutrix was kidnapped, was recovered on the very same day. This evidence of the PW-3, who caught the accused red- handed, was found to be sufficient corroborative evidence. 12 In this case, the accused has admitted the medical
203.apeal.445.2019.odt 13 examination report of the victim. The medical officer, who examined the victim, has not given an opinion that the examination of the victim revealed that she was subjected to sexual intercourse or there was an attempt to commit intercourse with her. Her hymen was intact. There were no external injuries on her body. There was no injury to the labia majora or labia minora. There was no evidence of perineal tear. The medical officer noticed a white stain over her knickers. There were no blood stains on her clothes or knickers. The medical officer reserved her final opinion pending subject to receipt of FSL reports. It is necessary to note at this stage that the clothes of the accused as well as the clothes of the victim, including her knickers, were sent to CA for analysis. The stains were found on the knickers only. The report of the CA, which has been admitted by the accused, shows that in an examination neither the semen nor the blood was detected on the knickers of the victim.
203.apeal.445.2019.odt 14 13 Learned APP submitted that the accused, at the time of his examination by a medical officer, narrated the history. In short, it is submitted that the accused admitted the ejaculation. However, in my opinion, the report of the CA, which says that the semen was not detected on the knickers, is sufficient to reject this submission. The accused was examined by PW-6. It is the case of the prosecution that the victim was overpowered by the accused. It is the case of the prosecution that, the victim, who at the time of the incident was 13 years old and the accused was 25 years old, somehow managed to free herself from the clutches of the accused. It is the case of the prosecution that the accused gagged the mouth of the victim and after removing the knickers of the victim committed the penetrative sexual assault. In ordinary circumstances, if such a forceful act was committed by the accused, considering the age difference between the victim and the accused, the victim would not have been successful to free
203.apeal.445.2019.odt 15 herself from the clutches of the accused. Even if she had tried to save herself, then there ought to have been some injury on her body as well as on the body of the accused. It, therefore, goes without saying that the medical evidence does not support the evidence of the victim.
14 It is the defence of the accused that there was enmity between the informant and his family on account of drainage water. Learned APP submitted that the accused has not substantiated his defence. It needs to be stated at this stage that the initial burden is on the prosecution to prove the charge. Even in order to invoke the presumption provided under Section 29 of the POCSO Act, the foundational facts must be established on the basis of the evidence led by the prosecution. In the absence of proof of foundational facts on the basis of credible evidence, the presumption under Section 29 of the POCSO Act cannot be invoked as a matter of course. The accused is not required to prove his defence. It needs to
203.apeal.445.2019.odt 16 be stated that the accused is not even required to plead any defence. However, when the accused raises a particular defence, without leading evidence, on the basis of the available materials on record he can probablize the defence. There cannot be a negative burden on the shoulder of the accused even by invoking Section 29 of the POCSO Act. 15 The case of the prosecution rests on the sole testimony of the victim as to the incident. It has come on record that the father and mother of the victim have been residing separately. The victim was residing with her mother. It is undisputed that the houses of the accused and the informant are adjoining to each other. The victim, in her evidence, has admitted about the existence of the public drainage in front of the house. In the ordinary circumstances, there was no reason for the victim to implicate the accused on the basis of false statement. The possibility of the false implication must be probablized on the basis of the material on
203.apeal.445.2019.odt 17 record. The evidence of the victim has to be appreciated very carefully. If the evidence of the victim is found to be of sterling quality, then in that event, reliance can be placed on the same in the absence of the medical evidence to base the conviction. The minute perusal and scrutiny of the evidence of the victim would show that it creates doubt in the mind of the Court about her credibility and veracity. Her evidence is being completely shaken.
16 The statement of the victim was recorded by the Magistrate. The statement of the victim recorded by the Magistrate is part of the record. This statement was conveniently not shown to the victim at the time of her evidence. The record shows that this statement was recorded on 09.01.2024 and forwarded to the Special Judge, Wardha on 09.01.2024 itself. Since, the said statement was recorded by the learned Magistrate for the purpose of appreciating of the evidence of the victim, the court can look into it. The
203.apeal.445.2019.odt 18 victim, in her evidence before the Court, has stated that when the accused applied force, she held his hand and gave a bite to his hand and therefore, the accused left her. She was cross examined as to the contents of her statement recorded under Section 164 of the Code of Criminal Procedure. In her cross examination, certain facts which had been recorded in her Section 164 statement were put to her, however, she denied the same. In her Section 164 statement, she has stated that the accused had put a handkerchief in her mouth and gagged her mouth. She has further stated that she tried to bite the accused, but since the handkerchief was put in her mouth, she could not bite him. She has further stated that she felt that some thing was touching her private part and she felt severe pain. But she could not see what that object was. In her cross examination, she has denied having made such a statement before the Magistrate while recording her Section 164 statement. In her evidence, she has deposed that she was
203.apeal.445.2019.odt 19 forcefully pushed on the ground and subjected to sexual assault. In my view, if the incident, as narrated by the victim, had occurred then there ought to have been injury to her private part. If she had resisted the attempt by the accused, then there ought to have been injury on her person as well as on the person of the accused. In my view, the absence of injuries on her person as well as on the person of the accused would speak volumes about the credibility of the evidence of the victim and the case of the prosecution in totality. 17 The mother of the victim is not an eye-witness to the incident. She has deposed before the Court on the basis of the incident narrated to her by the victim. She has stated that when the incident was narrated to her by the victim, she went to the house of the accused and brought this incident to the notice of his parents. She has personally verified the genitals of the victim girl and found that there was swelling. She has stated that, therefore, she went to the police with the victim.
203.apeal.445.2019.odt 20 PW-5, the mother of the victim, has stated that the victim girl was medically examined by the doctor. She was admitted in the hospital for four days. It is seen that this is contrary to the case of the prosecution. This is not supported by any material. 18 The victim, in her Section 164 statement, has stated that from the house of the accused, she was taken to the hospital at village Deoli. The doctor examined her in the hospital and told them that it was a police case. She has stated that thereafter, they went to the police station and narrated the incident. She has stated that the doctor performed sonography and X-ray. As far as the medical evidence is concerned, it is completely silent about it. It appears that the mother of the victim concealed this fact when she gave evidence before the Court. On appreciation of the evidence, I am convinced that the account of the incident narrated before the Court creates doubt about the case of the prosecution. In order to dispel such doubt, there ought to have been corroborative medical
203.apeal.445.2019.odt 21 evidence. The absence of such medical evidence, is fatal to the case of the prosecution.
19 It is true that in an Indian setting, a mother would not jeopardize the future of her daughter. Similarly, in the Indian setting, an attempt is made to sweep such incident under carpet to preserve the pride and prestige of the family and the girl. However, this factor alone cannot be given much weightage. The evidence of the victim and her mother is lacking to prove the charge against the accused. The absence of injuries or medical evidence in this case is fatal to the case of the prosecution. On appreciation of the evidence of the victim, I am satisfied that it is not of a stellar quality to place implicit reliance on it in the absence of medical evidence. Keeping the above stated legal position in mind, I am of the view that sufficient doubt has been created about the case of the prosecution. The benefit of doubt deserves to be given to the accused. Learned Judge has failed to appreciate the evidence in
203.apeal.445.2019.odt 22 the proper perspective. The evidence is not sufficient to establish the basic ingredients of Section 375 of the IPC. It is not possible, on the basis of the medical evidence, to conclude that there was penetration or an attempt of penetration. The report of the chemical analyzer with regard to the analysis of the stain found on the knickers is negative. If there was ejaculation, as stated by the prosecution, then the report of the chemical analyzer would have been positive. 20 In my view, in the backdrop of the circumstances and the absence of the medical evidence, the learned Judge was not right in holding the accused guilty. The judgment and order, therefore, cannot be sustained. The prosecution has failed to prove the charge against the accused beyond a reasonable doubt. The accused is, therefore, entitled to be acquitted.
203.apeal.445.2019.odt 23 21 Before parting with the matter, I must place on record my appreciation for the valuable assistance rendered by learned appointed Advocate Ms Kirti Deshpande for the accused/appellant, learned appointed Advocate Ms C. S. Bhute for the victim and learned APP Mrs H. S. Dhande. The legal fees of the learned appointed advocates be paid, as per the rules.
22 Accordingly, I pass the following order:
ORDER
i) The criminal appeal is allowed.
ii) The judgment and order dated 25.04.2019 passed by learned Additional Sessions Judge, Wardha in Special (POCSO) Case No.43 of 2014, thereby convicting the appellant for the offences punishable under Section 376(2)(i) of the Indian Penal Code, and Section 4 of the Protection of Children From Sexual Offences Act, 2012 is quashed and set aside.
203.apeal.445.2019.odt 24
iii) The appellant- Lakhan Kerbaji Sutare is acquitted of the offences punishable under Section 376(2)(i) of the Indian Penal Code and Section 4 of the Protection of Children From Sexual Offences Act, 2012.
iv) The appellant, who is in jail, shall be released forthwith, if not required in any other case. 23 The criminal appeal stands disposed of, accordingly.
(G. A. SANAP, J.) Namrata Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 28/06/2024 17:56:30