Bombay High Court
Rajkumar S/O Biralal Chakravati vs State Of Mah. Through Pso, Sitabuldi, ... on 24 January, 2019
Author: V. M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.302/2018
Rajkumar s/o Biralal Chakravarti,
aged 50 years, Occ. In Jail,
r/o c/o Bablu Hiranwar, Marartoli,
Ramnagar, Nagpur, P.S. Ambajhari. .....APPELLANT
...V E R S U S...
The State of Maharashtra through
P.S.O., Sitabuldi, Nagpur ...RESPONDENT
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Mr. S. G. Karmarkar, Advocate for appellant.
Mr. M. K. Pathan, A.P.P. for respondent-State
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CORAM:- V. M. DESHPANDE, J.
DATED :- 24.01.2019
ORAL JUDGMENT
1. By the present appeal the appellant is challenging his conviction for an offence punishable under Sections 376 (2) (n) and 506 of the Indian Penal Code (IPC). For this conviction, the appellant is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 20,000/-. In default of payment of fine, to suffer rigorous imprisonment for six months. For an offence punishable unde Section 506 of the IPC, the appellant is directed to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-. In default of payment of fine, to undergo rigorous imprisonment for one month respectively.
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2. The prosecution case as it is unfurled is as under:
(i) Sachin Matte (PW6) was attached to Police Station, Sitabuldi as Police Sub Inspector on 21.12.2015 and his duty was as Day Duty Officer. In between 4.00 to 4.30 p.m., victim along with her employer Ruplekha and her husband came to the Police Station. One lady by name Minakshi was also with them. The victim was working as maid servant at the house of Ruplekha. It was disclosed to PSI Matte that when she took the victim to Doctor for treatment of her illness, it was revealed that the victim was pregnant. Therefore, Sachin (PW6) asked them to contact Woman Police Sub Inspector Madhuri Waghade (PW9).
(ii) PSI Waghade (PW9) recorded oral report of victim. The said oral report is at Exh.-10. On the basis of said oral report, PSI Matte (PW6) registered crime vide Crime No.492/2015 for an offence punishable under Section 376 (1) and 506 of the IPC and Section 4 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act) against the present appellant. Printed FIR is at Exh.10-A.
(iii) Investigation was handed over to PSI Waghade.
She arrested appellant on 23.12.2015 under arrest ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 3 apeal302.18.odt panchanama, Exh.-17. She sent appellant to Government Medical College and Hospital, Nagpur (GMC) for his examination. On the same day, she seized medical samples of the victim girl received from Medical Officer, which was brought by Woman Police Constable Prabha Iwnate, by preparing seizure panchanama, Exh.-24.
(iv) On 24.12.2015, PSI Waghade sent accused for Special Medical Examination as per requisition, Exh.-66. Medical Officer conducted his medical examination and sent samples through Police Constable Gopal under the seizure panchanama, Exh.-62.
(v) Since she was on leave, PSI Waghade handed over investigation to Mr. Gajendra Raut, API.
After being entrusted with investigation. API Raut (PW7) sent requisition letter to Chemical Analyser (CA) seeking DNA Kits of accused, Exh.-38. DNA kits were received on the very same day. He took the accused to GMC Nagpur for collecting his blood samples for DNA test. The victim girl was already admitted in the said hospital. API Raut (PW7) sought collection of blood samples of the accused by requisition Exh.-39.
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(vi) After Medical Officer collected the blood samples of victim girl and also accused for DNA test and handed over the DNA Kits. On the same day, he sent the sealed DNA kits to the office of CA, Nagpur under requisition Exh.-40. Along with the said, he also sent identification forms of accused as well as the victim, duly filled in by respective Medical officers i.e. Exhs.-28 and 12 respectively. Both the DNA kits received from the Medical Officer in sealed condition and those were remitted to the CA Laboratory in sealed condition. On 05.01.2016, victim girl was discharged from the hospital. She was produced before the Child Welfare Committee for recording her statement. Thereafter, PSI Waghade (PW9) resumed her duties. Therefore, investigation was again handed over to her. After receiving case diary from API Raut, PSI Waghade recorded statements of witnesses from time to time. On 08.01.2016, victim delivered a female child in Mure Memorial Hospital, Nagpur. Therefore, PSI Waghade collected medical certificate about the said delivery. It is at Exh.-52.
(vii) On 12.02.2016, PSI Waghade sought DNA kit from CA, Nagpur for collecting blood samples of baby girl for DNA ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 5 apeal302.18.odt test. After receiving the DNA kits along with identification form, she sent the same to Medical Officer under requisition for collecting the blood sample of newly born baby girl. This requisition letter is at Exh.-56. After receipt of the blood sample of the newly born baby girl in DNA Kit from Medical Officer along with identification from, the said was sent in DNA kit to CA as per requisition Exh.-57. PSI Waghade received DNA report from the office of Chemical Analyser. DNA report is at Exh.-60. As per the DNA report, victim is biological mother and appellant is biological father of the newly born girl. Upon completion of investigation, charge- sheet was filed.
3. After charge-sheet was filed before the Special Court, the learned Special Judge under the POCSO Act, Nagpur framed charge against the appellant for an offence punishable under Section 376 (2) (n), 506 of the IPC and Section 6 of the POCSO Act. The appellant abjured his guilt. The prosecution has examined in all 10 witnesses and also relied on various documents duly proved during the course of trial including various requisitions, medical certificates and DNA reports. ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 :::
6 apeal302.18.odt The defence of the appellant before the trial Court was that of total denial, false implication, though remotely suggestive of consensual sex.
4. After evaluation of the prosecution case in its entirety, learned Judge of the Court below recorded a specific finding that the prosecution has utterly failed to prove that the victim was a "Child" on the date of the incident within the meaning of clause
(d) of Section 2 of the POCSO Act and therefore acquitted the appellant of the offence punishable under Section 6 of the POCSO Act. However, convicted him for an offence punishable under Section 376 (2) (n) and 506 of the IPC.
5. I have heard Mr.S. G. Karmarkar, learned counsel for the appellant and Mr. Pathan, learned A.P.P. for the State. Both the learned counsel took me through the notes of evidence as well as various proved documents.
6. It is the submission of the learned counsel for the appellant that the Court below has committed error in convicting the appellant for an offence punishable under Section 376 of the ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 7 apeal302.18.odt IPC inasmuch as according to his submission the victim girl was a party to consensual sex. Therefore, submitted that appellant be freed from jail by allowing the appeal.
7. Per contra, it is the submission of the learned A.P.P. that the Court below has properly evaluated the evidence of the prosecution witness. He, therefore, submitted that the Court below was right in recording a finding that evidence of victim inspires confidence and therefore the theory of consensual sex propagated by the appellant is required to be rejected. He also submitted that when the appellant was examined by learned Judge of the Court below under Section 313 of the Code of Criminal Procedure, at that time he took a defence that he is falsely implicated but he did submit a defence before the Court below that victim was a party to consensual sex. He therefore, prayed for dismissal of the appeal.
8. Though, charge was framed against the appellant for an offence punishable under Section 6 of the POCSO Act, prosecution has utterly failed to prove date of birth of victim. Learned Judge of the Court below, therefore, recorded a finding, relevant part of is reproduced hereinbelow.
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8 apeal302.18.odt "There are material lacunae in the investigation itself on the aspect of the age of the victim girl being child. There is no cogent and reliable evidence on record to hold that at the time of alleged crime, the victim girl was below 18 years of age. From the facts and circumstances as above, there is reason to believe that the victim girl may be above 18 years of age at the time of crime, more particularly from the admission given by the prosecution witnesses about the employment of the victim girl at the house of Ruplekha Roy. On this aspect, the presumption under Section 29 of POCSO Act would not help the prosecution."
Thus, the Court below recorded a finding that the presumption under Section 29 of the POCSO Act would not be helpful to the prosecution.
9. Exh.-10 is oral report lodged by the victim (PW1). It is dated 21.12.2015. Reading of the oral report would disclose that report was lodged only after the victim was found to be pregnant by Dr. Kate when the victim was taken to her hospital by employer of victim.
10. According to the oral report as well as evidence of the victim, originally she is resident of Jharkhand State. She was sent ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 9 apeal302.18.odt to Nagpur to work as maidservant in the house of Ruplekha by her father. Ruplekha resides at Bhagwaghar Layout, Dharampeth, Nagpur. Evidence of the victim (PW1) would show that she was sent to Nagpur in the year 2013 and from the said date and time, she was working as maidservant in the house of Ruplekha for taking care of the children of Ruplekha.
Appellant-Rajkumar Chakravarti was working as servant in the house of Ruplekha and Siddharth as their Watchman.
Evidence of the victim would further disclose that she used to prepare daughter of Ruplekha and Siddharth, for her school at 9 O'clock and it was the duty of the present appellant Rajkumar to reach her to school and to bring back her at 1.00 O'clck. During this period, as per the evidence of victim, she used to take bath and used to do remaining works when owners used to go out. Her evidence shows that appellant-Rajkumar used to talk with her.
Evidence of victim further shows that in April-2014, she went to her native place and came back in May, 2014. According to the victim, in the month of May,2014, on 3-4 occasions, appellant forcibly established physical relations with her whenever ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 10 apeal302.18.odt their owners used to remain out of house. It is also her evidence that he used to extend threats that the victim should not disclose the fact of intercourse with anybody. He used to press her mouth when she used feeling like screaming. According to the evidence, when first sexual intercourse took place, that time when she was shouting her mouth was pressed. It is her evidence that due to threat she did not disclose the fact to anybody. In the month of June, her menstrual cycle stopped. It is also her evidence that after her physical relations, discord took place in between her employer and the present appellant and therefore appellant was removed from the job. Thereafter, the victim started vomiting. Therefore, in the month of December, her employer took her to the hospital of Dr. Kate where it was informed that the victim is carrying 8th month of pregnancy. Therefore, victim, along with her employer approached to police Station and lodged the report.
11. The victim was cross-examined by the learned counsel for the appellant. From the cross-examination, it is brought on record that at no point of time she has disclosed that the appellant has established forcible sexual relations with her to anybody. There are two omissions brought on record and in my view, those ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 11 apeal302.18.odt omissions are very minor and general in nature and do not go to the root of the prosecution case. Therefore, those omissions, in my view, were rightly not considered by learned Judge of the Court below. During the course of cross-examination, a suggestion was given that appellant did not have forcible intercourse with her. However, the suggestion is denied by the victim.
12. In view of Exh.-60, DNA Report, which is duly proved by Amulya Pande (PW8) that appellant is biological father of the female child delivered by victim, in my view, I need not discuss the medical evidence in respect of the procedure of collection of blood sample, etc. and medical report Exh.-20, which shows that hymen of the girl was having old torn. In my view, it has no relevance at all since the victim girl delivered the female child.
13. Learned A.P.P. for the State submitted that no specific defence about consent was pleaded when appellant was examined by learned Court below under Section 313 of the Cr.P.C. though a feeble suggestion is given to the victim. I find myself unable to accept this submission of the learned A.P.P. in view of the law laid down by the Hon'ble Apex Court in Pratap Misra and Ors. Vs. ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 12 apeal302.18.odt State of Orissa; reported in (1997) 3 SCC 41. Paragraph 2 of the said report, which is relevant, reads thus:
"2. Ordinarily this Court does not interfere with the concurrent findings of fact arrived at by the Courts below, but after hearing counsel for the parties we are satisfied that this is a case in which the Sessions Judge as also the High Court have completely overlooked some striking facts and glaring defects appearing in the prosecution evidence which have vitiated the findings of fact. Furthermore, none of the Courts below tried to examine the possibility which was clearly suggested by the evidence of the prosecution itself that one or more of the appellants may have had sexual intercourse with the prosecution not against her will but with her consent and the connivance of her husband P.W. 2. The learned Sessions Judge dismissed the plea of consent on the ground that it was not pleaded by the accused, completely losing sight of the fact that in a criminal case the accused was not bound by his pleading and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The High Court has not considered this aspect at all. Such a wrong approach, therefore, by both the Courts below has resulted in a serious miscarriage of justice to the accused calling for our interference in these appeals."
(Emphasis is supplied) ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 13 apeal302.18.odt From the aforesaid authoritative pronouncement of the Hon'ble Apex Court, it is clear that accused is not bound by his pleadings. It is always open for the accused to prove his defence even from the admissions made by prosecution witness or circumstances as brought on record.
14. This Court is mindful of the principle that testimony of victim alone is sufficient to record a finding of guilt. However, caveat to this principal is that it must inspire confidence. If the circumstances brought on record show that that testimony comes under cloud then testimony of victim girl has to be evaluated with great care and caution. Merely because witness comes and deposes before the Court, it is not sufficient to accept their evidence as a gospel truth. However, it is the duty of the Court to evaluate evidence in the light of circumstances brought on record.
15. For deciding this particular case, in my view, observations of Hon'ble Apex Court in Kaini Rajan Vs. State of Kerala; reported in (2013) 9 SCC 113 would be useful. Paragraph 12 of the said report reads as under: ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 :::
14 apeal302.18.odt "12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. [See State of H.P. v. Mango Ram (2000) 7 SCC 234)"
Keeping the aforesaid in my mind, now let's examine ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 15 apeal302.18.odt circumstances which can prove defence of the appellant that the girl was a consenting party.
16. As per the evidence, first sexual bout in between victim and the appellant took place in May-2014 and that continued for 3-4 times. It is to be noted here that victim girl was not residing separately from her employer. She was residing with her employer. However, in her cross-examination, it is brought on record that duty of the appellant as watchman was in between 08.00 a.m. to 08.00 p.m. and after 08.00 p.m. appellant used to leave his duty place. Thus, from 08.00 p.m. till 08.00 a.m. till next day, victim alone used to be in company of her employer. Thus, ample time was available with victim girl to narrate the forceful sexual bout with her at the hands of the appellant. However, till lodging of report, nothing that sort was done by victim. Similarly, it was not informed by her to her parents. From the FIR and from her evidence, it is clear that the victim is not an uneducated girl. She has done matriculation and therefore one can readily presume that she can write and/or can use other modes of communication to communicate the happening to her at the hands of the appellant to her parents. This step is also not taken by the victim. ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 :::
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17. The prosecution has examined Mrs. Sangeeta Dhomne (PW2). This witness acted as pancha. She was called at Bhagwaghar layout by police. Her evidence shows that she went with one Gouri Bhalerao. House of the employer is situated at plot no.1, Bhagwaghar Layout. Her evidence would show that the victim herself has shown the spot of incident in presence of pancha witness. According to the evidence of pancha witness Sangeeta, spot of incident is guard room underneath the staircase. This oral evidence of pancha witness shows that it is duly corroborated by Exh.-16, spot panchanama. The relevant recitals from the said proved documents are reproduced hereinbelow.
"सदरचच घटननसथळ हच पप. सटच . ससतनबरर, हदसतसल पललट न. १, भगवनघर लचऊट, धरमपचठ ननगपपर, यचथसल रपलचखन रनय यनयचच घरनचच जजनयनचच खनलसल गनरर रम मधसल असपन घटननसथळ दनखववणनरस वफयनरदस मवहलन वह सवतत घटननसथळस हजनर रनहह न घटननसथळ दनखवसत आहच."
Exh.-16 is also having sketch map and it is at page 25 of the compilation of paper book, which also shows that the spot panchanama of the spot of incident is not the main house of the employer of victim but it is beneath the staircase. ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 :::
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18. It is to be noted here that the victim is conspicuously silent in her evidence that at any point of time she was sexually assaulted inside the house of her employer. On the contrary, during the course of investigation, she on her own shown spot of the incident to the investigating officer in presence of panchas as noted in Exh.-16.
19. From the aforesaid, now it is clear that at no point of tine, the incident of forcible sexual intercourse took place inside the house but on every occasion, it took place in the guardroom. If that be so, unless and until victim is taken forcibly, either under any threat or by dragging her from the main house of her employer to the spot of incident or when it is not the version of victim that she was enticed by the accused to follow him in the guardroom on giving any promises, the presence of the girl could not be fixed in the guardroom. Evidence of victim (PW1) does not disclose that at any point of time under threat she was taken from main house, where she used to work, to the guardroom or at any point of time physically by applying physical force she was taken ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 18 apeal302.18.odt to the guardroom when sexual assault took place.
In view of this circumstance, it is definitely clear that the victim girl was a party to the consensual sex.
20. As observed in the paragraphs of the judgment, I have reproduced relevant paragraph no.21 of the impugned judgment. However, after recording the finding in paragraph 21, the learned Judge in paragraph 43 observed as under:
"43. In these circumstances, when the oral testimony of the victim girl (PW1) inspires confidence this Court has to take into consideration presumption under Section 29 of POCSO Act...."
In my view, this type of observation on the part of Court below is nothing but a perverse approach. In the very same judgment, at one breathe in paragraph no.21, the learned Judge observes that presumption under Section 29 of the POCSO Act would not help the prosecution and in another breathe, the learned Judge observes that this Court has to take into consideration the presumption under Section 29 of POCSO Act.
21. There is also one reason as to why the learned Judge ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 19 apeal302.18.odt has committed mistake in applying statutory presumption. Section 29 presumption is available only when the accused person is tried for an offence punishable under the POCSO Act. In the present case, learned Judge himself has acquitted the appellant of the offence under Section 6 of the POCSO Act for which he was charged. In that view of the matter, no provision of said Act can be applied with its full vigour for convicting the appellant for the offence punishable under Section 376 of the IPC.
22. The conspectus of the aforesaid discussion shows that victim girl (PW1) was party to the consensual sex. Therefore, though the appellant is found to be putative father of the female child delivered by the victim girl, as per Exh.-60 DNA report, in my view, that cannot be the incriminating circumstance against the present appellant for convicting him for an offence punishable under Section 376 of the IPC.
23. On reappreciation of the entire prosecution case, I am of the view that the prosecution has utterly failed to prove its case beyond reasonable doubt. Hence, I pass the following order.
ORDER ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 ::: 20 apeal302.18.odt
(i) Criminal Appeal No.302/2018 is allowed.
(ii) Judgment and order of conviction dated 02.04.2018 in Special Cri. (POCSO) Case No.92/2016 passed by Principal District & Sessions Judge, Nagpur convicting appellant-Rajkumar Biralal Chakravarti for an offence punishable under Sections 376 (2) (n) and 506 of the Indian Penal Code is set aside.
(iii) Appellant is acquitted of the offence punishable under Section 376 (2) (n) and 506 of IPC.
(iv) Appellant-Rajkumar Biralal Chakravarti is in jail since 23.12.2015. He shall be released forthwith, if he is not required in any other crime.
JUDGE kahale ::: Uploaded on - 28/01/2019 ::: Downloaded on - 27/03/2020 05:34:30 :::