Gujarat High Court
Thakor Karanji Somaji vs State Of Gujarat on 5 May, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.A/1404/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1404 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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THAKOR KARANJI SOMAJI
Versus
STATE OF GUJARAT
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Appearance:
MR. YOGENDRA THAKORE(3975) for the PETITIONER(s) No. 1
MR HK PATEL, PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 05/05/2018
ORAL JUDGMENT
1. By way of the present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, the challenge has been made to the judgment and order of conviction passed by the learned Additional Sessions Judge and Special Judge (POCSO), Mehsana ('trial Court' for short), in Special POCSO case No. 2 of 2016, Dated:
28.09.2017, whereby, the trial Court convicted the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code, 1860, and sentenced him to undergo imprisonment for a period of five years and to pay fine of Rs.5,000/- and in default to undergo Page 1 of 38 R/CR.A/1404/2017 JUDGMENT further simple imprisonment for one year, whereas, under Section 354 of the IPC, he is sentenced to undergo imprisonment for a period of three years and to pay fine of Rs.1,000/- and in default, to undergo further simple imprisonment for two years, under Section 363 of the IPC to undergo imprisonment for a period of 7 years and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for two years, whereas, under Section 366 of the IPC to under go simple imprisonment for 10 years and to fine of Rs.1,000/- and in default to undergo further simple imprisonment for two years. The appellant is also punished for a period of three years for the offence under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (in brief, 'POCSO Act') and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one year, whereas, for the offence under Section 12 of the POCSO Act to undergo simple imprisonment for three years and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one years.
2. It is the case of the prosecution that the mother of the prosecutrix on 31.10.2015 lodged an FIR inter alia stating that her daughter aged 8 years was taken away from the custody of her parents without their consent by the appellant- accused. She and her husband had gone out and they Page 2 of 38 R/CR.A/1404/2017 JUDGMENT returned at around 07:00 hours in the evening. It was communicated to her that Thakor Karanji, i.e. the present appellant, had taken away the prosecutrix to the agricultural field, where, he had attempted to commit an act of rape, when Bharatbhai Narottambhai Patel, owner of the adjoining field had seen the appellant and the girl and he had brought the prosecutrix home from the field. On inquiry, the prosecutrix had conveyed that Karan uncle had told that the buffalo was needed to be tied and therefore, she was asked to accompany to the agricultural field, where, she was asked to lay down by the appellant. When she refused, she was slapped by the appellant. The appellant, then, removed her pajama and when she started crying, Patel Bharatbhai came there and scolded the appellant, as to why he had brought the prosecutrix there.
2.1 The FIR came to be lodged on 31.10.2015 with Visnagar Taluka Police Station being I-C.R No. 141 of 2015 for the offence punishable under Section 354, 363, 366, 376 of the IPC and Sections 8 and 12 of the POCSO Act. After due investigation, charge-sheet came to be filed before the Court of the learned Judicial Magistrate, First Class, who committed it to the Court of Sessions, Mehsana. The charges came to be framed against the appellant vide Exhibit-5 and since the appellant pleaded not guilty, the oral Page 3 of 38 R/CR.A/1404/2017 JUDGMENT evidence of as many as 13 witnesses came to be recorded, the details whereof are as under:
PROSECUTION NAME OF THE WITNESS EXHIBIT WITNESS NUMBER NUMBER 1 Dr. Dipakkumar Meghjibhai 8 Chaudhri (Medical Officer) 2 Dr. Ajiz Mohmmed Noor 13 Mohmmed Shaikh (Medical Officer) 3 Jyotsnaben Ratanji Thakor 18 (First Informant) 4 The Proesexutrix 20 5 Udaji Gandaji Thakor (Panch 22 Witness) 6 Thakor Pravinji Babuji 28 (Panch Witness) 7 Vishnuji Khushalji Thakor 29 (Panch Witness) 8 Shardaben Bhagwanji Thakor 30 (Grandmother of the Prosecutrix) 9 Valuben Gandaji Thakor 32 (Relative of the First Informant) 10 Bharatbhai Narottambhai 34 Patel (Independent Witness 11 Prajapati Prahladbhai 35 Page 4 of 38 R/CR.A/1404/2017 JUDGMENT Babaldas (Principal, Girls' Primary School, Umta) 12 Shamalbhai Dungarbhai Senma 40 (Police Station Officer) 13 Dharmendrasinh Chandrasinh 43 Raol (Investigating Officer) 2.2 Over and above the oral evidence, the prosecution also produced the following documentary evidences:
DOCUMENTARY PARTICULARS EXHIBIT EVIDENCE NUMBER NUMBER 1 Certificate of medical 9 examination of the prosecutrix (Civil Hospital, Visnagar) 2 Office Copy of Register 10 No.2B in regard to sending of samples of the prosecutrix to FSL
3 Case Papers of the 11 Prosecutrix ( Civil Hospital, Visnagar) 4 Memorandum written by police 12 for medical examination of the prosecutrix 5 Certificate of medical 14 Page 5 of 38 R/CR.A/1404/2017 JUDGMENT examination of the accused (Civil Hospital, Visnagar) 6 Memorandum written by police 15 for medical examination of the accused 7 Original case papers of the 16 accused (Civil Hospital, Visnagar) 8 Office Copy of Register 17 No.2B in regard to sending of samples of the accused to FSL 9 FIR 19 10 Statement of the prosecutrix 21 recorded under Section 164 of the Code 11 Panchnama of place of 23 offence 12 Panchnama of seizure of 24 clothes of the prosecutrix 13 Panchnama of seizure of 25 clothes of the accused 14 Panch slips found alog with 26,27 muddamal articles Nos. 1 and 2 15 A copy of the extract of the 36 General Register of the school 16 Certificate issued in regard 37 to date of birth of the Page 6 of 38 R/CR.A/1404/2017 JUDGMENT prosecutrix 17 True copy of the school 38 admission form 18 True copy of the certificate 39 of the prosecutrix 19 True copy of the entry made 41 vide Sr. No.13 of the registering the offence in Station Diary 20 Depute order 42 21 Report made for registering 44 the offence 22 Report made for making an 45 entry in Station Diary, after the arrest of the accused 23 Muddamal dispatch note 46 24 Receipt issued by FSL on 47 to 51 receipt of muddamal, reports of Biology Department and Serological Department of the FSL 2.3 On completion of the trial, further statement of the appellant accused came to be recorded under Section 313 of the Code and on hearing both the sides, the trial Court convicted the appellant as mentioned herein above vide judgment and order dated 28.09.2017.
3. Learned Advocate, Mr. Y.M. Thakor, Page 7 of 38 R/CR.A/1404/2017 JUDGMENT appearing for the appellant has strongly argued before this Court that the prosecution has not succeeded in proving the fact of sexual molestation much less the act of rape, as alleged. He also, further, urged that the evidence of the prosecutrix as well as of the doctor if is considered, there is no injury on the private part of the prosecutrix found. Again, according to him, except,the prosecutrix none was present and therefore also, the evidence of none of the witnesses would have any bearing on the subject. The IO also had not examined any person in the vicinity, where the incident had occurred. Out of the personal enmity of the parents of the prosecutrix with the appellant, he has been falsely roped in. A Social Worker, namely Varshaben Patel, in whose presence statement of the prosecutrix was recorded, was neither examined nor her statement has been recorded.
4. Learned APP appearing for the respondent State has urged that the prosecutrix was only eight years of age, at the time of incident. She was too young to be instrumental in the hands of her parents. Further, her parents also cannot stoop to this level when there is apparently no animosity. This is nothing but a sheer defence on the part of the accused, who is involved in a very gruesome offence. He, further, has urged that the version of the prosecution that has been supported Page 8 of 38 R/CR.A/1404/2017 JUDGMENT fully by the medical evidence and hence also, the Court below has rightly convicted the appellant. No interference is desirable.
5. At the outset, this Court requires to consider the deposition of PW-3, which is the first informant and the also the mother of the prosecutrix. According to her, she has three children, aged 12 years, 15 hears and the prosecutrix, who was aged 8 years. The incident took place before about 12 months before her deposition. She had gone to Khedbrahma for attending a function in the temple with her sister and her husband. She had left at around 03:00 p.m. and she returned at night at about 08:00 p.m.. Her mother and the prsoecutrix were at home. Her husband has a 'lary' (hand push cart) of cold drink, who had returned at 08:00 p.m.. her mother had intimated her that the neighbour, Karanji, i.e. the appellant, had taken the prosecutrix to the field of one Bharatbhai Patel, where, the prosecutrix had raised hue and cry, and therefore, Bharatbhai had rushed to the place, and she was rescued by him and was dropped at home. According to this witness, her daughter was offered some food by the appellant and she was taken to the field of Bharatbhai. She was also told by the appellant that one buffalo of her ant was lost and under that pretext he had taken her. Her pajama was removed when she refused to lie down, she was Page 9 of 38 R/CR.A/1404/2017 JUDGMENT threatened and scolded. She did not know as to how to express the attempt on the part of the appellant and to insert his private part she had used the word, "kok na godha". She also had stated that he was the person who had slapped her. It was Bharatbhai, who had dropped her at home and the appellant had threatened her, if, she reveals the incident to anyone, he would kill her with knife. She did not reveal it to her husband, but, went to the resident of Karanji and he disowned the act saying that nobody would take such an young girl for such an act. He on the contrary had become defensive by telling her that she would take his life by narrating such nonsense and she and her family decided to give a complaint. She had examined the private part of hear daughter and found redness and also and there were marks. She was also taken to the Visnagar Hospital and Mehsana Hospital for treatment of redness.
5.1 She agreed in her cross-examination, that in her FIR she had not stated of redness and the injury on the private part of her daughter. She denied of her giving history to the doctor. She also denied clearly that there is any animosity between them and the appellant. According to her, her daughter studies in the school. However, on the date of the incident, it was a public holiday.
If one looks at the FIR that she had given, it is
also along the same line. There does not appear
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to be much improvement in the examination-in-chief and in cross-examination.
6. Along with her deposition, the version of the victim shall need to be regarded. She was 9 years of age at the time of deposition. She was given oath by the Court. According to her, she was studying in the fourth standard at the time of incident. This was during the summer vacation that the incident had happened. Her mother had gone with her maternal aunt to Khedbrahma for darshan and she was with her maternal grand- mother. Her father had gone for his work and at around 02:00 p.m. in the afternoon, while she was paying near temple of Jogni Mata, the appellant, who was called by her, Karan kaka, approached her. He resides in the same vicinity and told her that a buffalo of her maternal aunt had escaped and needed to be tied, and therefore, she was asked to accompany. She was taken towards the crematorium and then to the field with cotton crop. She was offered 'Pinku', which was a food item, and then, by removing her clothes, he attempted to insert his private part, who according to her was "Kok na godha". Her Pajama was torn by him and when he started inserting his private part, she started crying. Then, Bharatbhai came there and the appellant threatened her that she would be done away with if she reveals this to anyone. Bharatbhai also gave two slaps to the appellant Page 11 of 38 R/CR.A/1404/2017 JUDGMENT and dropped her back at her residence. She also identified the accused before the Court, she agreed that she was taken to the Court for recording her statement. It appears that the statement of this witness was recorded under Section 164 of the Code. She was taken to the hospital at Visnagar. She, however, denied that the doctor had questioned her mother. She identified the clothes warn by her on the date of the incident.
6.1 She agreed in the cross-examination that at the time when the appellant called her, there were five to six young children playing. She agreed that many a times, she used to go to appellant's house for playing and he used to visit their home. She also used to go to his residence. When her statement was recorded, her patents and brothers were present. She denied the suggestion that it was her mother, who had given her version. According to her, it was she, who had given the details and her mother was sitting outside. She denied that many a times, she used to go with the appellant in the field. She denied of her family and the appellant's family having any dispute. She also denied the suggestion that the pajama was torn while playing. She reiterated in the cross- examination, the threat given to her. She denied the suggestion that there was nobody in the vicinity, when he attempted to commit the crime.
Page 12 of 38R/CR.A/1404/2017 JUDGMENT She denied emphatically that because of her
parents' insistence, she has stated a lie.
6.2 Her version recorded under Section 164 of the Code is along the same line.
6.3 She had added in her version under Section 164 of the Code that when her grandmother had asked the appellant, as to where had he taken her, he had told her that she was taken to collect woods. This statement was recorded by the learned 12th Addl. Judicial Magistrate, First Class, Mehsana.
7. Two of the witnesses, Dr. Dipak Meghjibhai Chaudhary-PW-1, who was working as Medical Officer, stated that he has been discharging duties at Visnagar Hospital for last about six years. On 01.11.2015, a patient was brought by police, i.e. the prosecutrix, for her medical examination. She was 8 years of age. Her mother had given consent for her examination. She was unable to answer any question, however, she had given the history that while she was playing in the after noon near Jogni Mata Temple, the appellant, had taken her to the field of cotton, here, he had torn her pajama and when she started shouting, from the nearby filed, one Bharatbhai, had com and he had slapped the appellant and had then Bharatbhai had dropped her back home. Doctor Page 13 of 38 R/CR.A/1404/2017 JUDGMENT had examined different parts of her body. However, he did not find any marks of injury. He had collected various samples of her, which were sent to the FSL. She was referred to the gynecologist for an expert opinion. The certificate, issued by him reflects and reiterates what he orally stated that the patient was oriented and was answering all questions and was mentally stable and history was given by the patient that after lunch she was taken to the cotton field by Thakor Karanji from Jogni Mata's temple situated at Umta. In the cotton field he had torn her pajama, and therefore, she had raised hue and cry, and therefore, Bharatbhai from the nearby field came and he had seen them and gave two slaps to the appellant. Then, Bharatbhai rescued her and dropped back at her home. The certificate also notes that there are no external injury marks over the chest, entire thigh region, abdomen or anal region.
8. Before appreciating the evidence of this witness, the evidence of Bharatbhai Patel, PW-10, need to be regarded. He is the resident of Umta and near the crematorium, he has agricultural land of about five bighas. He does agricultural activities for his subsistence. On 31.10.2015, in the afternoon, when he was at his field, he heard the voice of a child from the neighbouring field, which had grown cotton crop. He went there and Page 14 of 38 R/CR.A/1404/2017 JUDGMENT found was appellant with a girl, aged 8-10 years with him he asked him to leave immediately and told him never to use his field. He also asked him to take public road, and therefore, after opening the gate, he left. This witness has been declared hostile to the case of the prosecution and was cross-examined by the prosecution. He denied the suggestion that before the police on 01.11.2015, he had stated that he had found the appellant, a resident of Umta, in the cotton field, and therefore, he had questioned the appellant as to what was he doing in his filed. He also had questioned the accused, as to why the girl was crying. He was scolded and had asked him to get out. In his statement, he denied to have stated that the appellant was previously a resident of Kukarwada and there also a complaint of rape filed against him. he denied the suggestion that the appellant was working in his filed in the past and to save his skin, he had lied.
9. Shardaben Bhagwanji Thakor-PW-8, maternal grand-mother of the prosecutrix, in his statement Exhibit-30 stated that his daughter-Jyotsna has two children. One son is aged around 17 to 18 years and the daughter is around 12 years, at the time of recording her evidence. At the time of incident, she was studying in Standard 3. According to her about 12 months before because of holiday on the date of the incident, her daughter Page 15 of 38 R/CR.A/1404/2017 JUDGMENT had gone out and her husband had gone to his job at Visnagar. She was alone with her grand child, who had gone to play near Jogni Mata Temple and at about 01:00 p.m., i.e. after lunch, two girls from the neighbourhood had gone to her and asked her, where had she sent the prosecutrix. To which her answer was that she did not send her anywhere and she was told that the appellant, who was a known drunkard in the vicinity, had taken away the girl towards crematorium. She had rushed to the residece of the appellant and had pleaded his family members to bring back the girl. She was very apprehensive when she found the victim back. She was asked to convey as to what had happened and she replied that she was very scared to confide in her because of fear of beating. She also told her that she was threatened by the appellant that if she revealed anything to anyone, she would be done away with. It was also told that the appellant had attempted to insert his private part, after torning her pajama. She was taken to the cotton field and when she raised hue and cry, one Bharatbhai Patel with spectacles had reached the place and had rescued the prosecutrix from the appellant. She denied clearly that her statement to the IO was given by her son- in-law and that there is some old animosity between them.
10. PW-9 is a relative, who had heard the Page 16 of 38 R/CR.A/1404/2017 JUDGMENT story from others, and therefore, her version is of a hearsay witness, which does not require any discussion. She, of course, narrated the details as given to her by PW-8, although ,her version in the eyes of law would not have much importance.
11. If, one looks at the evidence, which had been given by these witnesses, whose depositions have been discussed herein above, what emerges clearly is that the prosecutrix is, though, eight years of age and was unable to describe the anatomy or the physiology of human body, who may not be aware of many of such aspects. Nonetheless, she was knowing what was happening with her. Not only soon after the incident, she stated it to her grandmother and when her mother returned at 08:00 p.m. night, she gave her a complete version of what had happened. The chronology of the event is very very clear, after lunch, eight years old child when was playing with her friends, the appellant had under the pretext of tying the buffalo had taken her to the cotton filed. Some of the questions asked in the cross- examination, clearly indicate that the appellant was a known figure to the child. It is a known fact that these incidents often happen with children with the people, who are acquaintances or are close relatives. It is only after the child's confidence is won over that they would attempt to breach such confidence by their act of sexual Page 17 of 38 R/CR.A/1404/2017 JUDGMENT assault or attempt commission of sexual offence.
11.1 As can be seen in the instant case, the appellant had chosen an agricultural field of cotton, where, comparatively the visibility, when a person lies down of seeing the human figure is minimal. Moreover, this agricultural filed is situated near a crematorium, and therefore, ordinarily no human being would be seen unless, of course, there is a death in the village. It is not being revealed whether he was aware of the mother and maternal aunt being away, but, he would surely know about the father not being around, as he was working and running his small business of hand cart. Therefore, he has chosen the afternoon time and had asked the girl to accompany for tying the buffalo of her maternal aunt. The maternal grandmother also had rushed to the residence of the appellant. However, when she came to know from friends of prosecutrix, she could not find the girl and eventually she had seen the girl returning with Bharatbhai Patel. It is unfortunate that PW-10, who is owning a field, had chosen not to support the case of the prosecution. However, he did depose of having seen the prosecutrix and the appellant both in the field. He does not support the case of the prosecution of his having seen anything which would vindicate the case of the prosecution with regard to commission of sexual offence. However, even that witness is Page 18 of 38 R/CR.A/1404/2017 JUDGMENT declared hostile, the trite law is that the version of hostile witness, which corroborates the evidence of other prosecution witnesses can be regarded by the Court.
11.2 Deposition of the mother of prosecutrix and that of grandmother both clearly reveal that there was no animosity with the appellant as had been indicated by the defence in the cross- examination. Even if the mother's version of redness on the private part and some marks of injuries found soon after her knowing about the incident are not reflected in the medical version. The facts remains that before the doctor also the history given by the prosecutrix is consistent with the story narrated by her to her mother. The mother's version also gives details provided to her by the prosecutrix and if the versions of both of them are placed on record, there hardly appears to be any discrepancy. There are bound to be certain discrepancies between the narration of the different witnesses. Minor improvisations, there may be for various reasons and that should not render the evidence of the eye-witness void.
11.3 At this stage, reference shall need to be made to the decision of the Apex Court in 'STATE OF U.P. VS. M.K. ANTHONY', (1985) 1 SCC 505. The apex Court in this case held and observed as under:
Page 19 of 38R/CR.A/1404/2017 JUDGMENT "10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-
technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the : root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident Page 20 of 38 R/CR.A/1404/2017 JUDGMENT because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned Counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible. "
11.4 The Apex Court in the case of "RAMMI @ RAMESHWAR VS. STATE OF MP'. Verma Vs. MP', (1999) 8 SCC 649, has held and observed that when eye- witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as Page 21 of 38 R/CR.A/1404/2017 JUDGMENT between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
11.5 Some of the relevant findings deserve reproduction profitable hereunder:
"It is a common practice in trial courts to make out contradictions from previous statement of a witness for confronting him during cross- examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of inconsistent former statement. But a reading of the Section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the Section is extracted below: 155. Impeaching credit of witness.- The credit of a witness maybe impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be contradicted would affect the credit of the witness.Page 22 of 38
R/CR.A/1404/2017 JUDGMENT Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to contradict the witness the cross- examiner is enjoined to comply with the formality prescribed therein. Section 162 of Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose, i.e. to contradict the witness.
To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness, (vide Tahsildar Singh and anr. vs. State of U.P., AIR 1959 SC 1012)."
11.6 In 'GANGADHAR BEHERA & OTHERS VS. STATE OF ORISSA', (2002) 8 SCC 381, where the Apex Court held as under:
"To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana ( 2002 (3) SCC 76). Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus"
(false in one thing, false in
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everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co- accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'."
However, the Apex Court held that this principle has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has it occupied the status of rule of law in India.
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11.7 The Apex Court in 'STATE OF PUNJAB VS.
JAGIR SINGH', (1974) 3 SCC 277, held that a
criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
11.8 So also in the decision in 'SOHRAB VS. STATE OF MADHYA PRADESH', (1972) 3 SCC 751, the Apex Court held that "falsus in uno falsus in omnibus" is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate Page 25 of 38 R/CR.A/1404/2017 JUDGMENT exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which the has been witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is dis- believable, it will not be permissible for the Court to reconstruct a story of its own out of the rest.
11.9 With the discussion on the law on the subject, it can be noticed that so far as the lone witness is concerned, she would have no reason to exaggerate much less to implead the appellant. Except, the bald defence of there being animosity of the parents of the prosecutrix with the appellant, nothing comes on record either by way of cross-examination or further statement nor was there any earthly reason for her parents to implicate the appellant in a serious matter of the kind or for the parents to make the child an instrumental in such an offence against the appellant. The child who has no knowledge of even anatomy of the human body and who used the words 'Kok na Ghoka' for the private part of the male organ, disbelieving her version would amount to Page 26 of 38 R/CR.A/1404/2017 JUDGMENT travesty. The details, which she has given soon after the incident on her return to her grandmother as to the act of the appellant shall have to regraded under the Indian Evidence Act, as res gestae, i.e. things done, under the heading of 'Of the Relevancy of Facts' under Chapter 2, Section 8 provides motive, preparation or previous or subsequent conduct. The relevant provision read thus:
"8. Motive, preparation and previous or subsequent conducts:- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.- The word "conduct" this section does not include statements unless those statements accompany and explain acts other than statements, but this explanation is not to affect die relevancy of statements under any other section of this Act.
Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant.Page 27 of 38
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(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made, are relevant. The fact that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant.
as a dying declaration under Section 32(1), or as corroborative evidence under Section 157."
In the instant case, soon after the incident, the prosecutrix had returned home and had narrated the entire story to her grandmother and her mother, both. This would be a relevant aspect and can be looked at in the perspective of Section 8 of the Indian Evidence Act, 1872.
11.10 At this stage, the aspect of establishing of the age of the prosecutrix through the Principal of the Girls Primary School, Umta, i.e. PW-11, is required to be considered.
11.11 PW-11 had brought General Register
with him. The parents' form and the birth
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certificates, they were the birth dates of the prosecutrix has been shown as 02.12.2007. She was admitted in school on 14.06.2013 and her birth certificate also reflects the names of both the parents. Her birth date remains 02.12.2007. Therefore, on the date of the incident, her age was about eight years.
The Investigating Officer, PW-13, has given the chronology of the registration of the crime and the details of the investigation that he had carried out, which included recording of the statement under Section 164 of the Code, recording of panchnama of scene of offence in the presence of the panch witnesses and sending of samples to the FSL and also the arrest of the accused and getting done his medical examination so also the seizure of clothes etc. as a part of investigation.
11.12 If, one looks at the evidence of PW- 5, he had been called as panch witness for carrying out the panchnama of scene of offence. It was the field owned by PW-10. There was a gate for entering the village. The crop of cotton was found at the place.
11.13 The other panch witness of the said panchnama was Vishnuji Khushalji Thakor-PW-7, in whose presence the clothes had been seized.
Page 29 of 38R/CR.A/1404/2017 JUDGMENT Although, he supported the panchnama of scene of offence, he did not support the panchnama of seizure of the clothes and to that extent, he had been declared hostile.
11.14 Likewise, Thakor Pravinji Babuji-PW-6 also has not supported the case of the prosecution.
11.15 The Police Inspector-PW-13, of course, has given the details of the drawing of the panchnama and taking of the signatures of the panch witnesses and the details given in the panchnama, itself. There was sufficient grown crop of cotton to hide the human figures. This also was situated near the crematorium and there was a gate. A possibility cannot be ruled out that he was familiar with the absence of both the parents of the deceased and he had also chosen the place near crematorium, which is comparatively secluded.
11.16 It is worth noting at this stage, the report of FSL does not show any stains of semen or blood on the clothes of the prosecutrix. It may noted that at the time of recording the statement of the prosecutrix, one Social Worker, namely Varshaben Patel, was present. However, she was not examined as a witness before the trial Court. Likewise, the friends of the prosecutrix, namely Padma and Nikita, who were playing with her and Page 30 of 38 R/CR.A/1404/2017 JUDGMENT who had disclosed the abduction of the prosecutrix by the appellant to her grandmother, were also neither examined nor their statements were recorded. It can be also noticed that the field in question belonged to one Jayantibhai Jivanbhai Patel and PW-10 was the owner of the adjoining field.
12. In this back drop of facts, if, one looks at the provisions of the POCSO Act which was formulated for protecting the children from all kinds of sexual offences. This act was notified on 20.01.2012 and it defines child as the person below 18 years of age. It also defined different forms of sexual abuses, which includes penetrative and non-penetrative assault as well as sexual harassment and pornography. The act provides for mandatory reporting of the sexual offence and casts a legal duty upon a person, who is legal knowledge that a child is sexually abused to report the offence, since any failure on that count also punishes the person for six months.
12.1 Sections 3 and 7 of the POCSO Act require reproduction read thus:
"3. A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, Page 31 of 38 R/CR.A/1404/2017 JUDGMENT urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
XXX XXX XXX
7. Sexual assault.-Whoever, with sexual intent tousches the vagina, penis, anus oar breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does nay other act with sexual intent which invovles physical contact without penetration is said to committ sexual assault."
12.2 Section 2(i) provides that 'Sexual assault' has the same meaning as assigned to it in Section 7 of the Act. As can be seen above, as defined under Section 7 of the Act, the sexual assault is when, with sexual intent, touching of private parts of the child or makes the child touch private parts of such person or any other Page 32 of 38 R/CR.A/1404/2017 JUDGMENT person, or does any other act with sexual intent which involves physical contact without penetration is said to have committed sexual assault.
12.3 As provided under Section 8 of the POCSO Act, prescribes for punishment, who commits sexual assault on a child shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years and shall also be liable to fine.
12.4 As provided under Section 3 of the POCSO Act, a person, who penetrates his penis to any extent in to the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person or he inserts to any extent, any object or a part of the body not being the penis into the vagina, the urethra or anus of a child or makes the child to do so with him or any other person or he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person or he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person, as provided under Section 4 of the POCSO Act, such person shall be punished with the imprisonment of Page 33 of 38 R/CR.A/1404/2017 JUDGMENT either description for term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
12.5 Section 11 of the POCSO Act speaks of sexual harassment. When a person utters any word, makes any sound or makes any gesture or exhibits an object or part of his body with the intention that such word or sound shall be heard or such gesture or object or part of body shall be sen by the child or make a child exhibit his body or any part of his body so as it is seen by such person or any other person or shows any object to a child in any form or media for pornographic purposes or repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means of threatens to use in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode or any part of the body of the child or the involvement of the child in a sexual act or entices a child for pornographic purpose or gives gratification for such purpose, such a person shall be said to have committed sexual harassment upon a child and shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Page 34 of 38R/CR.A/1404/2017 JUDGMENT 12.6 The trial Court, in the opinion of this
Court, has rightly appreciated the provisions of Section 7 and 11 of the POCSO Act. Sexual assault with sexual intent as defined under Section 7 of POCSO and sexual harassment as defined under Section 11 of the POCSO Act would cover completely and totally of the act of the appellant and therefore, no interference is desirable.
12.7 It is to be noted that the trial Court has held the appellant not guilty under Section 4 of POCSO Act for offence of attempt of rape, as provided under Section 375 read with Section 511 of the IPC, it has held the appellant guilty. Had it thought that proof of attempt to rape is unshakeable the trial Court also ought to have held him guilty for the offence of penetrative sexual assault, as provided under Section 3 of the POCSO Act. However, it appears that the trial Court has given the benefit of doubt to the appellant, so far as the offence punishable under Section 4 of the POCSO Act is concerned. Once, the trial Court held the offence under Section 375 of the IPC to have been proved, it could not have held non proving of the offence punishable under Section 4 of the POCSO Act. The attempt of rape on the part of the appellant shall be included in commission offence of penetrative sexual assault.
12.8 It may, here, be noted that the
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Respondent-State has not challenged the giving of benefit of doubt to the appellant for the offence punishable under Section 4 of the POCSO Act.
12.9 With the description given by the child, the holding of attempt to rape under Section 376 read with Section 511 of the IPC can not be said to have been proved. There is not only absence of medical evidence with regard to the same, this Court also cannot be oblivious of the fact that soon after the appellant made the girl sleep on field, from the neighbouring field a person, i.e. PW-10, had arrived, who had not only scolded the appellant but had also slapped him twice for his act and had driven him out, whereupon, PW-10 himself had dropped the girl back safely at her home.
12.10 Considering the fact that in the first version given to the police and also bearing in mind version of prosecutrix before the learned Judicial Magistrate under Section 164 of the Code coupled with the complaint given by her mother to the police, there is a specific absence of her description of the appellant having done the act of penetration or of attempting to rape by using the words'Kok na godha' and the same has been a subsequent addition at the time of recording of her deposition before the trial Court. Moreover, the trial Court having not believed the Page 36 of 38 R/CR.A/1404/2017 JUDGMENT ingredients of Section 4 of the POCSO Act having been proved, the findings of proof of attempt to rape would also come under the question. However, this Court finds no reason to interfere with the judgment and order of conviction passed by the trial Court so far as Sections 363, 366, 354 of the IPC and Section 8 and 12 of the POCSO Act are concerned.
13. Resultantly, this appeal is PARTLY ALLOWED. The judgment and order passed in Special (POCSO) Case No. 2 of 2016, holding the appellant guilty under Sections 354, 363 of 366 of the IPC and also under Sections 8 and 12 of the POCSO Act is CONFIRMED. Thus, the judgment and order of conviction as also sentence and fine remain unaltered under each of these sections.
13.1 However, the appellant is given the benefit of doubt and ACQUITTED of the offence under Section 376 read with Section 511 of the IPC.
13.2 Out of the total amount of fine to be paid by the appellant, an amount of Rs.5,000/- shall be paid to the victim-girl.
13.3 When there is no challenge either to the punishment or to the fine awarded to the appellant by the State as per the order of compensation made Page 37 of 38 R/CR.A/1404/2017 JUDGMENT by the trial Court, if not already determined, the Chairman District Legal Service Authority, Mehsana, is DIRECTED to determine, under Section 357A of the Code, the amount of compensation for the victim within a period of THREE MONTHS from the date of receipt of a copy of this judgment and order.
13.4 Office to send R&P back to the trial Court concerned, FORTHWITH. Direct service is permitted.
(SONIA GOKANI, J) UMESH /-
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