Bombay High Court
Fahad Mustaq Patankar vs The State Of Maharashtra on 7 February, 2018
Author: A. M. Badar
Bench: A. M. Badar
902-APPEAL-239-2017-APPA-1722-2017-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.239 OF 2017
WITH
CRIMINAL APPLICATION NO.1722 OF 2017
IN
CRIMINAL APPEAL NO.239 OF 2017
FAHAD MUSTAQ PATANKAR )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Aniket Vagal, Advocate for the Appellant.
Mr.V.V.Gangurde, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 6th FEBRUARY 2018 &
7th FEBRUARY 2018
ORAL JUDGMENT :
1 This appeal is taken up for final hearing while hearing the application for suspension of sentence in view of directions of this court contained in order dated 16 th August 2017 (Coram :
Smt.Anuja PrabhuDessai, J.) in the wake of the fact that the appellant/accused is in custody since the year 2014.avk 1 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 :::
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2 By this appeal, the appellant/accused is challenging the judgment and order dated 24 th July 2015 passed by the learned Special Judge, Ratnagiri, convicting the appellant/accused of the offence punishable under Sections 4 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as the POCSO Act for the sake of brevity) and for sentencing him to suffer rigorous imprisonment for 7 years apart from directing him to pay fine of Rs.5,000/-, and in default, to undergo further rigorous imprisonment for 3 months. The appellant/accused was, however, acquitted of the offence punishable under Section 363 of the Indian Penal Code.
3 Facts in nutshell leading to the prosecution of the appellant/accused can be summarized thus :
(a) The prosecutrix/PW2 is a resident of Village Nayari in Sangameshwar Taluka, Ratnagiri District. She was residing there along with her father PW1 Aslam Patankar and other relatives including her mother. The prosecutrix/PW2 was avk 2 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc taking education at the High School in 8th Standard, situated at Kasba Village. On 5th August 2014, as usual, the prosecutrix/PW2 left her home for attending the school at Kasba Village by State Transport bus. The appellant/accused was already present in the bus. He threatened the prosecutrix/PW2 by uttering the words "तुझी वाट लािवन"
meaning thereby, that he will put her to perilous situation. Because of the threat extended by the appellant/accused, the prosecutrix/PW2 became scared and got down at Sangameshwar along with the appellant/accused. At Shastripool locality of town Sangameshwar, they had snacks of Vada-pav. Then, accompanied with the appellant/accused, the prosecutrix/PW2 went to Sangameshwar Railway Station. In the vicinity, they passed time up to midnight, and in the night intervening 5th August 2014 and 6 th August 2014, the prosecutrix/PW2 along with the appellant/accused boarded the train and reached Ratnagiri in the morning hours of 6 th August 2014. By an autorickshaw, they then proceeded towards the State Transport stand and spent the day in the avk 3 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc vicinity of the State Transport stand of Ratnagiri. In the evening hours of 6th August 2014, the appellant/accused had taken the prosecutrix/PW2 to the house of PW3 Salwa Shandar. PW3 Salwa Shandar in turn, sent the couple to the house of PW4 Diba Solkar. In the night intervening 6 th August 2014 and 7th August 2014, the prosecutrix/PW2 along with the appellant/accused resided at the house of PW4 Diba Solkar, where according to the prosecutrix/PW2, the appellant/accused had committed forcible sexual intercourse on her.
(b) Upon noticing the fact that his daughter is missing from the house, PW1 Aslam Patankar lodged report with Police Station Sangameshwar on 6th August 2014 pointing a finger of suspicion against the appellant/accused and the said report has resulted in registration of Crime No.60 of 2014 against the appellant/accused for offences punishable under Sections 363 and 366A of the Indian Penal Code.
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(c) It is case of the prosecution that in the morning hours of 7 th August 2014, the appellant/accused took the prosecutrix/PW2 to the State Transport stand of Ratnagiri and by the train took her to Chiplun. After a day out at Chiplun, the appellant/accused took her back to Ratnagiri at about 8.30 p.m. At the State Transport stand, Ratnagiri, police accosted the couple and took them to Sangameshwar Police Station.
(d) Routine investigation of Crime No.60 of 2014 followed. The prosecutrix/PW2 was medically examined, so also the appellant/accused. Seizures were effected. Spot panchnama came to be recorded. On completion of investigation, the appellant/accused came to be charge-sheeted.
(e) The learned Special Judge at Ratnagiri framed Charge for offences punishable under Sections 363 and 376(2)(i)(n) of the Indian Penal Code. In the alternative, Charge for offences punishable under Sections 7 read with 8 of the POCSO Act, avk 5 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc so also under Section 4 thereof, came to be framed against the appellant/accused. He abjured his guilt and claimed trial.
(f) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eleven witnesses. The defence of the appellant/accused was that of total denial. He, however, did not enter in defence.
(g) After hearing the parties, by the impugned judgment and order dated 24th July 2015, the learned trial court came to the conclusion that the appellant/accused had committed penetrative sexual assault on the prosecutrix/PW2, who, at the relevant time, was below 18 years of age. The learned trial Judge found that the prosecution had failed to prove that the appellant/accused had kidnapped the prosecutrix/ PW2, and ultimately, the appellant/accused was convicted for the offence punishable under Section 4 of the POCSO Act, and he was accordingly sentenced, as indicated in the opening paragraph of this judgment.
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902-APPEAL-239-2017-APPA-1722-2017-J.doc 4 I have heard the learned advocate appearing for the appellant/accused. He vehemently argued that evidence of the prosecutrix/PW2 reflects her conduct and the case made out by the prosecution is, infact, a case of consensual sex between two persons. The learned advocate argued that evidence of the prosecutrix/PW2 coupled with the evidence of the Investigating Officer shows that the prosecutrix/PW2 had left her house on the pretext of going to attend her school, but at the relevant time, she had taken her clothes in a bag and was found to be wearing a T- Shirt. The learned advocate further argued that evidence of the prosecutrix/PW2 shows that she was roaming with the appellant/accused right from 5th August 2014 to 7th August 2014 by using public transport, such as State Transport bus and railway. She had tons of opportunities to raise hue and cry, if really she was kidnapped by the appellant/accused.
5 The learned advocate further argued that even evidence of PW3 Salwa Shandar shows that the prosecutrix/PW2 accompanied the appellant/accused voluntarily and when the avk 7 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc prosecutrix/PW2 came to know that her parents are coming to the house of PW3 Salwa Shandar, she insisted the appellant/accused to leave the house. The prosecutrix/PW2 was wearing Mangalsutra when she was accompanying the appellant/accused. Even PW4 Diba Solkar was also informed that the couple is married and this fact was not disputed by the prosecutrix/PW2. 6 The learned advocate appearing for the appellant/accused vehemently argued that case of alleged forcible sexual intercourse by the appellant/accused in the night intervening 6th August 2014 and 7th August 2014 is not proved by the prosecution. This incident, allegedly, took place at the house of PW4 Diba Solkar, but evidence of this witness goes to show that in the night, the appellant/accused, the prosecutrix/PW2 as well as inmates of house of PW4 Diba Solkar stayed and slept at the common hall. To that extent, evidence of the prosecutrix/PW2 is contrary to the version of PW4 Diba Solkar, and therefore, the same cannot be accepted. The learned advocate further argued that even if it is assumed for the sake of argument that such an avk 8 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc incident of penetrative sexual assault took place in the night intervening 6th August 2014 and 7th August 2014, the prosecutrix/PW2 was having ample opportunity to make hue and cry and to complain about this incident to all and sundry. 7 The learned advocate appearing for the appellant/accused drew my attention to the evidence of PW10 Dr.Vaibhav Jadhav from Civil Hospital, Ratnagiri, and argued that, this evidence shows that there was no recent sexual intercourse with the prosecutrix/PW2. By drawing my attention to the cross- examination of the prosecutrix/PW2, the learned advocate argued that even as per say of the prosecutrix/PW2, the incident of penetrative sexual assault on her, which took place in the night intervening 6th August 2014 and 7th August 2014, was the very first such incident which took place in her lifetime. With this, the learned advocate for the appellant/accused argued that veracity of this evidence coming from the mouth of the prosecutrix/PW2 is under shadow of doubt as the same is totally unsupported by the medical evidence. Hence, according to the learned advocate for avk 9 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc the appellant/accused, the prosecution has failed to prove the alleged incident of penetrative sexual assault in the night intervening 6th August 2014 and 7th August 2014, thereby entitling the appellant/accused for acquittal.
8 It is further argued that the version of the prosecutrix/PW2 regarding the forcible sexual intercourse is doubtful because even after her return, she has not disclosed such incident to her father PW1 Aslam Patankar. The query regarding age of the prosecutrix/PW2 was not replied by the Medical Officer. The prosecution has failed to prove age of the prosecutrix/PW2. With this, the learned advocate for the appellant/accused, argued that the prosecution has failed to prove the offence punishable under Section 4 of the POCSO Act against the appellant/accused. 9 The learned APP justified the impugned judgment and order by contending that evidence of the prosecutrix/PW2 is reliable and the same is supported by the medical evidence on record. The learned APP further argued that the certificate avk 10 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc regarding date of birth of the prosecutrix/PW2 is a public document within the meaning of the term under Section 74 of the Evidence Act.
10 I have carefully considered the rival submissions and also perused the Record and Proceedings including copies of deposition of prosecution witnesses as well as documentary evidence placed on record.
11 According to the prosecution case, the appellant/ accused had committed penetrative sexual assault on a femaly child, and therefore, has committed the offence punishable under Section 4 of the POCSO Act. Section 2(d) of the said Act defines the term "child". As per this definition, the child is a person below the age of 18 years. In order to make out the offence punishable under Section 4 of the POCSO Act, the prosecution will have to prove that the prosecutrix/PW2, at the relevant time of the alleged penetrative sexual assault on her, was below 18 years of age. Thus, age of the prosecutrix/PW2 and the proof thereof are avk 11 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc the factors which are of vital importance for deciding the case in hand. Let us, therefore, at the outset, decide whether the prosecution has proved the fact that the prosecutrix/PW2 was below 18 years of age in August 2014.
12 Evidence regarding age of the prosecutrix/PW2 is coming on record from oral evidence of PW1 Aslam Patankar as well as that of the prosecutrix/PW2. As per oral evidence of both these witnesses, date of birth of the prosecutrix/PW2 is 6 th March 2000. By now, it is well settled that, oral evidence is hardly sufficient to conclude and determine the age of a person. Moreover, evidence regarding her date of birth given by the prosecutrix/PW2 is coming on record by way of omission. 13 Now let us turn to the documentary evidence produced on record by the prosecution in respect of age of the prosecutrix/PW2. PW11 Manohar Chikhale, Police Inspector of Sangameshwar Police Station, had conducted investigation of the said crime. His evidence reveals that during the course of avk 12 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc investigation, he collected the Birth Certificate of the prosecutrix/PW2 through Gram Panchayat, Mabhale. This Birth Certificate, during the course of evidence of PW11 Manohar Chikhale, Police Inspector, is marked as Exhibit 50. It is needless to mention that mere marking as Exhibit of a document does not amount to proof of contents of such document, and therefore, by formally marking any document as Exhibit, the contents thereof cannot be read in evidence. However, in the case in hand, Birth Certificate, which is at Exhibit 50, is issued by the Assistant Block Development Officer of Panchayat Samiti, who at the relevant time, was acting as Additional District Registrar of Birth and Death, as per the provisions of the Registration of Births and Deaths Act, 1969. This certificate at Exhibit 50 shows that the prosecutrix/PW2 was born to PW1 Aslam Patankar on 6 th March 2000. The certificate at Exhibit 50 is issued by the Registrar acting under the provision of Registration of Births and Deaths Act, 1969. Section 7 of the said Act deals with appointment of Registrar for each local area, comprising the area within the jurisdiction of a Municipality, Panchayat or other local authority. avk 13 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:25 :::
902-APPEAL-239-2017-APPA-1722-2017-J.doc It is the statutory duty of the Registrar to register every birth and death which takes place within his jurisdiction. The provisions of this Act mandates that the Registrar should discharge his duties carefully. Section 8 thereof requires each head of the house to report births and deaths in the family to the Registrar under the said Act. Provisions of the Registration of Births and Deaths Act, 1969, provides for maintaining of records of births and deaths. Perusal of Exhibit 50 Birth Certificate shows that the same is issued by the Registrar as per provisions of Sections 12 and 17 of the said Act. At this juncture, it is apposite to quote provisions of Section 17 of the said Act. It reads thus :
"17 Search of births and deaths register -
(1) Subject to any rules made in this behalf by the State Government, including rules relating to the payment of fees and postal charges, any person may
-
(a) cause a search to be made by the Registrar for any entry in a register of births and deaths;
(b)obtain an extract from such register relating to any birth or death:
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902-APPEAL-239-2017-APPA-1722-2017-J.doc Provided that no extract relating to any death, issued to any person, shall disclose the particulars regarding the cause of death as entered in the register.
(2) All extracts given under this section shall be certified by the Registrar or any other officer authorised by the State Government to give such extracts as provided in section 76 of the Indian Evidence Act, 1872 (1 of 1872), and shall be admissible in evidence for the purpose of proving the birth or death to which the entry relates."
This makes it clear that the Birth Certificate issued under the provisions of the Registration of Births and Deaths Act, 1969, is admissible in evidence for the purpose of proving birth or death to which the same relates. Therefore, it is crystal clear that the Birth Certificate at Exhibit 50 is a document forming the record of the Act of the Public Officer, and therefore, the same is a public document within the meaning of the said term as provided by Section 74 of the Indian Evidence Act, 1872. This being so, the Birth Certificate at Exhibit 50 does not require any formal proof. avk 15 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 :::
902-APPEAL-239-2017-APPA-1722-2017-J.doc 14 At this juncture, it is apposite to look into the provisions of Section 35 of the Indian Evidence Act, 1872. Bare perusal of this provision makes it clear that if entry is made by a public servant in the official book in discharge of his official duty, then such entry becomes a relevant fact and admissible in evidence. The extract of the Birth Register maintained by a Public Officer in discharge of his public duty is, as such, admissible under Section 35 of the Indian Evidence Act and it is not even necessary to examine the Officer who records such an entry. Valuable reference to this proposition can be had from the judgment of the Hon'ble Apex Court in Harpal Singh & Anr. v. State of Himachal Pradesh 1. In this view of the matter, it needs to be held that date of birth of the prosecutrix/PW2 recorded in the statutory register as 6th March 2000 is relevant and the same is gaining corroboration from the oral evidence of the prosecutrix/PW2 as well as that of her father PW1 Aslam Patankar. With this evidence, it needs to be concluded that the prosecutrix/PW2, who was born on 6th March 2000, was below 18 years of age, at the relevant time of commission of alleged offence in August 2014. 1 AIR 1981 SC 361 avk 16 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc 15 Now let us examine whether the appellant/accused has committed penetrative sexual assault on the prosecutrix/PW2, who at the relevant time is proved to be a female child. By now, it is settled that, the prosecutrix in a rape case is treated as a victim of the offence, and finding of guilt in the case of rape can be based on uncorroborated evidence of the victim of such crime, as the very nature of the offence makes it difficult to get direct corroborating evidence. Evidence of the victim of such crime is not liable to be rejected on the basis of minor discrepancies and contradictions and her statement is normally required to be accepted, unless and until it is found that she is not a witness of truth. The prosecutrix/PW2 in the instant case is the minor female child, on whom, according to the prosecution case, the appellant/accused committed penetrative sexual assault in the night intervening 6th August 2014 and 7 th August 2014, at the house of PW4 Diba Solkar at Ratnagiri. In view of this allegation against the appellant/accused, evidence of the prosecutrix/PW2 assumes great importance, in order to determine whether the avk 17 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc appellant/accused is guilty of the offence punishable under Section 4 of the POCSO Act or not.
16 The prosecutrix/PW2, as seen from her evidence as well as evidence of her father PW1 Aslam Patankar,was a school going girl taking education in 8th Standard at the High School situated at Village Kasba. She was resident of Nayari Village. Evidence of PW1 Aslam Patankar and that of the prosecutrix/PW2 also shows that the prosecutrix/PW2 was attending her school at Kasba by undertaking to and fro journey by the State Transport bus. PW1 Aslam Patankar has stated that though his daughter i.e. the prosecutrix/PW2 had left the house at 7.00 a.m. on 5 th August 2014 for attending the school at Kasba, she did not return, and therefore, after making inquiry on 6th August 2014 itself, he lodged the First Information Report (FIR) Exhibit 13 with Police Station Sangameshwar, by suspecting the appellant/accused. The FIR at Exhibit 13 lodged by PW1 Aslam Patankar duly corroborates his version to the effect that on 5 th August 2014, his daughter i.e. the prosecutrix/PW2 went missing. avk 18 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 :::
902-APPEAL-239-2017-APPA-1722-2017-J.doc 17 It is in evidence of the prosecutrix/PW2 that she boarded the State Transport bus on 5 th August 2014 at Village Nayari for going to her school at Kasba, and at that time, the appellant/accused was present in the bus. He threatened her with dire consequences by uttering "तुझी वाट लािवन" and therefore, she got scared. She, therefore, alighted the State Transport bus along with the appellant/accused at Sangameshwar and had snacks "Vada-pav" at Shastripool area, by going there in an autorickshaw with the appellant/accused. Version of the prosecutrix/PW2 reveals that then by hiring another autorickshaw, she along with the appellant/accused went to Sangameshwar Railway Station and passed time till midnight as the train proceeding to Ratnagiri was to arrive at midnight. The prosecutrix/PW2 further deposed that then in the company of the appellant/accused, she boarded the train from Sangameshwar at 2.30 a.m. of 6 th August 2014 to reach Ratnagiri in the morning hours. Thereafter, by hiring an autorickshaw, the couple went to the State Transport stand of Ratnagiri and again indulged in passing time in company of each other till evening of that day. Then, as stated by the avk 19 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc prosecutrix/PW2, in the evening accompanied by the appellant/accused, she went to the house of PW3 Salwa Shandar. 18 Evidence of PW3 Salwa Shandar shows that as mother of the appellant/accused is her neighbour, she is acquainted with the appellant/accused. As seen from evidence of PW3 Salwa Shandar, on 6th August 2014, the appellant/accused came to her house along with the girl, and therefore, she contacted the mother of the appellant/accused, who requested her to allow the appellant/accused to stay at her house.
19 The prosecutrix/PW2 as well as PW3 Salwa Shandar are unanimous in stating that PW3 Salwa Shandar then requested PW4 Diba Solkar to give shelter to the appellant/accused and the prosecutrix/PW2 for that night. Evidence of PW3 Salwa Shandar further shows that the prosecutrix/PW2 accompanied the appellant/accused voluntarily to her house and despite trying to convince her to go back, she refused. At that time, the prosecutrix/PW2 was wearing a Mangalsutra and when she came avk 20 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc to know that her parents were coming to the house of PW3 Salwa Shandar, she insisted the appellant/accused to leave the house of PW3 Salwa Shandar.
20 Evidence on record shows that in the night of 6 th August 2014, the appellant/accused and the prosecutrix/PW2 took shelter at the house of PW4 Diba Solkar, who deposed that at about 11.00 p.m. of 6th August 2014, the appellant/accused along with the girl wearing Mangalsutra came to her house, and in the night, they all slept in a hall together.
21 As against this, version of the prosecutrix/PW2 is to the effect that in the night of 6 th August 2014, she along with the appellant/accused slept in a separate room in the house of PW4 Diba Solkar, and in that night, the appellant/accused committed penetrative sexual assault on her forcibly. The prosecutrix/PW2 further deposed that then at about 5.30 a.m. of 7 th August 2014, she along with the appellant/accused came to the State Transport stand of Ratnagiri, from where by boarding a train they went to avk 21 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc Chiplun and stayed for the day at the State Transport stand of Chiplun. Thereafter, they came back to Ratnagiri at 8.30 p.m. of 7th August 2014, when police accosted them and they were taken to Sangameshwar Police Station. The prosecutrix/PW2 candidly accepted the fact that at the time of penetrative sexual assault on her by the appellant/accused, she did not raise any hue or cry and it was the first time when there was penetrative sexual assault on her. She did not call family members of PW4 Diba Solkar when she was being molested. On the contrary, in the morning hours of 7th August 2014, by taking tea at the house of PW4 Diba Solkar, she left it in the company of the appellant/accused. 22 The sequence of events unfolded from the evidence of the prosecutrix/PW2, PW3 Salwa Shandar and PW4 Diba Solkar, as such, goes to show that the appellant/accused and the prosecutrix/PW2 were roaming at various places by using the public transport system. They were spending the day time at public places such as State Transport stand of Ratnagiri and Chiplun and then in the night hours, both of them were either in avk 22 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc the train or at the house of PW4 Diba Solkar, during this period, in the company of each other. Even while proceeding from Sangameshwar Railway Station to Ratnagiri on 5 th August 2014, at Sangameshwar itself, the couple had snacks at the Vada-pav stall of PW6 Ramesh Rahate and then they left for the Railway Station of Sangameshwar, where they spent time till late night for boarding the train. Thus, right from 5 th August 2014 till the couple was accosted by the police at about 8.30 p.m. of 7 th August 2014, the prosecutrix/PW2 was having tons of opportunity to make a hue and cry to extricate herself from the clutches of the appellant/accused. She had ample opportunity to get herself rescued by taking aid of the public at large available at the public places, so also the police personnel available at the State Transport stand as well as Railway station, during this period. However, this did not happen. The prosecutrix/PW2 had not disclosed the penetrative sexual assault on her either to PW4 Diba Solkar or other members of her family, nor had disclosed the same to her father PW1 Aslam Patankar, on return. Thus, this evidence indicates that the prosecutrix/PW2 was deeply in love with the avk 23 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc appellant/accused and as such, had joined his company and indulged in roaming with him for three days, by eloping from her house with her clothes on the pretext of going to school. 23 Now let us examine whether there is evidence to conclude that there was penetrative sexual assault on the prosecutrix/PW2 in the night intervening 6th August 2014 and 7th August 2014. Though PW4 Diba Solkar has spoken that after arrival of the couple in late night hours of 6 th August 2014, they all slept in the hall of her house, the prosecutrix/PW2 has candidly deposed that she along with the appellant/accused slept in a separate room in the house of PW4 Diba Solkar. Nothing could be elicited in cross-examination of the prosecutrix/PW2 to disbelieve this version. Version of PW4 Diba Solkar regarding sleeping in the common hall appears to be out of instinct of self- reservation, as she had given shelter to the appellant/accused, who was in company of a minor female child. Hence, no overbearing importance can be given to such a statement of PW4 Diba Solkar. The prosecutrix/PW2 is very candid in stating that in avk 24 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc the night intervening 6th August 2014 and 7th August 2014, at the house of PW4 Diba Solkar, the appellant/accused had committed penetrative sexual assault on her and it was the first such incident in her life. As against this, evidence of PW10 Dr.Vaibhav Jadhav, who examined the prosecutrix/PW2 on 8 th August 2014, is to the effect that upon gynecological examination of the prosecutrix/PW2, he found her hymen already ruptured and perineum without injury. With this observation, PW10 Dr.Vaibhav Jadhav had opined that the prosecutrix/PW2 had sexual intercourse, but at present there were no injuries at her genital or other body surface area, and that, no signs of forcible sexual intercourse were found on person of the prosecutrix/PW2. This evidence will have to be appreciated in the wake of history narrated to PW10 Dr.Vaibhav Jadhav by the prosecutrix/PW2. Evidence of PW10 Dr.Vaibhav Jadhav, on this aspect, is to the effect that the prosecutrix/PW2 has disclosed to him that she was having an affair with the appellant/accused since last one year and they had first sexual intercourse two to three months prior to the incident and then they had last sexual contact on 6 th August avk 25 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc 2014. This evidence of PW10 Dr.Vaibhav Jadhav went unchallenged in the cross-examination and the same constitutes proof of former statement made by the prosecutrix/PW2 to him, which is admissible under Section 157 of the Evidence Act. The cumulative effect of the evidence of the prosecutrix/PW2 and that of PW10 Dr.Vaibhav Jadhav, as such, is to the effect that the prosecutrix/PW2 was accustomed to sexual intercourse, as reflected from the ruptured hymen as well as narrations of the prosecutrix/PW2 to PW10 Dr.Vaibhav Jadhav. This explains absence of signs of forcible sexual intercourse on her body. Therefore, merely because there was absence of abrasion, bruises, inflammation and swelling on the private part of the prosecutrix/PW2 during the course of her medical examination conducted after more than one and half day, it cannot be said that she is deposing a lie about the penetrative sexual assault on her. In every probability, the act of sexual intercourse must be consensual, and resultantly, there were no signs of application of force such as abrasion, inflammation, swelling etc. However, even if the sexual intercourse between the appellant/accused and the avk 26 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc prosecutrix/PW2, which took place in the night intervening 6 th August 2014 and 7th August 2014, was with consent of the prosecutrix/PW2, the same shall amount to penetrative sexual assault, as the prosecutrix/PW2 was below 18 years of age and was a child at the relevant time.
24 At this juncture, it is apposite to note that in the matter of Bharwada Bhoginbhai Hirjibhai v 2 /s. State of Gujarat the Hon'ble Apex Court has observed that rarely will a girl or a woman in India make false allegations of sexual assault. The Hon'ble Apex Court has given reasons for this observation and it is apposite to quote few such reasons stated in the said judgment. Those are -
(a) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(b) The fear of being taunted by others will always haunt her.
2 AIR 1983 Supreme Court 753(1) avk 27 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc
(c) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo.
If these observations are kept in mind, then, version of the prosecutrix/PW2 in cross-examination to the effect that the act of penetrative sexual assault on her in the night intervening 6th August 2014 and 7th August 2014 by the appellant/accused was the first act, gets explained. Hence, no overbearing importance can be given to this admission, given by the prosecutrix/PW2 in her cross-examination.
25 In the result, it needs to be held that the prosecution has successfully established that the appellant/accused had committed the penetrative sexual assault of the prosecutrix/PW2 in the night intervening 6th August 2014 and 7th August 2014. 26 So far as quantum of sentence is concerned, the learned advocate for the appellant/accused has placed reliance on avk 28 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc the judgments of the Hon'ble Apex Court in the matters of -
(i) State of Madhya Pradesh vs. Basodi 3, (ii)State of Himachal Pradesh vs. Mange Ram4, (iii) Satinath s/o. Maniknath Raut vs. State of Maharashtra5, (iv) Zindar Ali SK vs. State of West Bengal & Anr.6, (v) Raju vs. State of Karnataka 7, (vi) Phul Singh vs. State of Haryana8, (vii)Padam Bahadur Darjee vs. State of Sikkim9, (viii) State of Rajasthan vs. N.K.10 and submitted that considering the fact that the act was consensual, sentence imposed on the appellant/accused be reduced. 27 Section 4 of the POCSO Act provides for punishment for penetrative sexual assault. The minimum sentence is that of 7 years and the same can extend up to imprisonment for life. In the case in hand, the learned trial court had sentenced the appellant/accused for rigorous imprisonment for 7 years. Section 4 of the POCSO Act does not provide for reducing the minimum 3 2009 ALL MR (Cri) 3470 (S.C.) 4 2000 CRI.L.J. 4027 5 2010 ALL MR (Cri) 3484 6 2009 CRI.L.J.1324 7 1994 CRI.L.J. 248 8 1980 CRI.L.J. 8 9 1981 CRI.L.J. 1317 10 2000 CRI.L.J. 2205 avk 29 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 ::: 902-APPEAL-239-2017-APPA-1722-2017-J.doc sentence prescribed therein, even if there are special reasons. Therefore, I am unable to accept the contention of the learned advocate for the appellant/accused that taking aid of the rulings cited by him, which relates to the provisions of Section 376 of the Indian Penal Code for awarding lesser sentence for adequate and special reasons, sentence imposed on the appellant/accused needs to be reduced further. The learned trial court has awarded bare minimum sentence to the appellant/accused, which cannot be interfered with.
28 In the result, the appeal fails and the same is dismissed.
29 Consequently, the criminal application also stands rejected.
(A. M. BADAR, J.) avk 30 ::: Uploaded on - 07/02/2018 ::: Downloaded on - 08/02/2018 02:08:26 :::