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2 The victim, then aged 13 years lodged report at Police Station Mauda on 10.8.2013 (Exh. 25) pursuant to which offences punishable under section 6 of the POCSO Act and section 376(2)

(f)(i) of the Indian Penal Code ("IPC") were registered against the accused vide crime 129 of 2013.

3 The gist of the report, which is lodged by the victim who was accompanied by her mother Smt. Pushpa - (PW 2) is thus:

The victim was studying in the 9th standard at Shrinath Vidyalaya, Mahalgaon, her father was suffering from epilepsy and expired 5 years ago. Since then, the victim her mother, sister - Priya (PW 7), brother Prashant and the cousin brother of her deceased father (accused) were residing together in the house of Chudaman Wasnik, as tenant. 2 to 3 months prior to the lodging of report, the accused attempted to insert his penis in the anus of the child victim on two to three occasions. The victim disclosed 3 apeal316of18 the incidents to her mother who asked the accused to leave the house and since then the accused is residing separately. The victim returned from school at 6.30 p.m. on 7.8.2013 and was alone in the house. The victim was changing her clothes. The accused entered the house, went to the bathroom, undressed and rushed towards child victim. The accused closed the door, removed the salwar of the child victim which tore and since the accused was finding it difficult to untie the nada (cotton thread) of the paijama, he cut it with sickle. The accused forced the victim to lie, face down, pressed her breasts and inserted his penis in her anus. The accused got up from the person of the victim and tried to force her to come to his room by dragging her. The child victim gave a jerk to the hand of the accused and rushed to her neighbour's house in naked condition. The neighbor Smt. Sushma Deshbhratar - (PW 5) gave her clothes to wear. The victim disclosed the incident to the neighbor who in turn called one Wasnikbai and then narrated the incident to the mother of the child victim telephonically. The mother of the child victim came home, she called her brother and brother-in-law telephonically.

9 The deposition of the child victim - PW 1 is broadly consistent with the report, on material aspects. She has deposed that the accused was residing with her family and in view of his sexual misconduct, he was driven out of the house and he started residing adjacent to the house of the child victim. As regards the incident, the child victim states that she was alone in the house after returning from school and at 6.30 p.m. or thereabout on 7.8.2013 when she was changing her clothes, the accused came and knocked the door of the room. The victim told the accused that she was changing clothes. The accused went to the bathroom, undressed and since the latch of the door of the room was open, he entered the room naked, closed the door, tore the 8 apeal316of18 salwar of the child victim, tried to untie the paijama nada and since he was finding it difficult to do so, cut the nada. The child victim then deposes that the accused committed sexual intercourse, pressed her breasts due to which she sustained abrasion and then inserted his penis in her anus. The accused dragged the child victim who rescued herself and came out of the house in naked condition and went to Smt. Sushma Deshbhratar (PW 5) to whom the child victim narrated the incident and then the incident was informed to her mother telephonically. The child victim then states that her maternal uncle and elder paternal uncle were called on 8.8.2013 and made aware of the incident. The family went to the Police Station on 9th and lodged the report. 10 Shri M.S. Wakil, the learned counsel for the accused would submit that the evidence of the child victim is not confidence inspiring. The child victim admits that the earlier instances were not reported to the police, that the accused knocked the door of the room, is an omission. The evidence that the child victim told the accused that she was changing clothes and that after the incident, her sister Priya came, is an omission. In my considered opinion, the omissions do not touch the core of the prosecution version and are not significant enough to partake 9 apeal316of18 the character of contradictions. Considering the relationship, the fact that the earlier instances were not reported to the police is not a reflection on the veracity of the version of PW 1. Shri M.S. Wakil would then submit that the fact that the police did not seize the nada of the paijama is significant. I do not agree. The victim identified the clothes in the Court. The learned Sessions Judge found that the paijama nada was missing and that the salwar was torn. Shri M.S. Wakil, the learned counsel would then submit that the report is delayed which creates doubt as regards the prosecution version. The incident occurred on 7.8.2013 in the evening. It has come in evidence that the maternal uncle and elder paternal uncle were summoned on 8.8.2013, deliberations ensued, which is but natural, particularly considering that the accused is a close relative, since the social stigma and ostracization is a real possibility in the conservative Indian society in such situations. The report was lodged on 9.8.2013 which evidence is not challenged. The printed First Information Report does state that the information was received on 10.8.2013 at 2.15 p.m. In Exh. 25, the date of receiving the report which was initially recorded as 9.8.2013 is scored of and recorded as 10.8.2013. In any event, I am satisfied that the delay, if any, is properly explained and the veracity of the prosecution 10 apeal316of18 case is not affected thereby. Shri M.S. Wakil, the learned counsel then argues that since the evidence that the accused also inserted the penis in the vagina is an improvement, the credibility of the evidence of the child victim is destroyed. It is true that the child victim did not disclose in her statement to the police that the accused also inserted his penis in the vagina. To this extent, the evidence will have to be kept out of consideration. However, the evidence of the child victim that she was sexually ravished and that the accused inserted his penis in her anus is truthful, natural and implicitly reliable.

12 PW 4 - Dr. Swati Chavan, who is a pathologist conducted the preliminary examination of the child victim on 10.8.2013. She noticed two abrasions on the chest and opined that the injury was fresh and was caused by sharp object like nails. PW 6 - Dr. Manik Gedam to whom the child victim was referred by the gynecologist is a surgeon. PW 6- Dr. Gedam has deposed that the child victim and her mother gave the history of insertion of penis in the vagina. The child victim was complaining of pain in the perineal region since the time of the incident. PW 6 noticed injuries on the right breast and the left lower limb of the child victim. One contusion abrasion with scab formation was noticed below the left knee. PW 6 - Dr. Gedam deposed that the formation of scab indicates that the injury was sustained prior 48 hours. PW 6 Dr. Gedam states that he did not notice any external injury at the perineal region. However, on rectal digital examination, he found that the child victim was experiencing pain. Spasms of external anal sphincter was noticed on proctoscopic examination, contusion 0.5 x 0.5 cm on anal mucosa just above the mucocutanious junction was noticed at 5 O' clock position. Dr. Gedam deposed that the injuries are suggestive of forceful 12 apeal316of18 insertion of penis in the anus and that the injuries on the breasts are suggestive of resistance. It is elicited in the cross-examination that PW 1 - Dr. Gedam did not mention in the report that the injuries are suggestive of forceful insertion of penis and the injuries on the breasts are suggestive of resistance. Shri M.S. Wakil, the learned counsel for the accused would submit that the said omission is significant. In my opinion, the fact that the injuries are suggestive of forcible or forceful insertion of penis in the anus is not specifically mentioned in the report would not detract from the evidence of the doctor. The report specifically mentions the nature and extent of injuries and there is no reason not to accept the opinion of the doctor that the probable causes may be the resistance offered and the forceful insertion of the penis in the anus. Shri M.S. Wakil would then emphasize on the inconsistency in the opinion of PW 4 - Dr. Swati Chavan and PW 6 - Dr. Manik Gedam on the nature of injuries noticed on the breast and the leg of the child victim. It is true that PW 4 - Dr. Swati states that the injuries were fresh which is inconsistent with the opinion of PW 6 - Dr. Manik Gedam. The learned Sessions Judge has for reasons recorded given more weightage to the opinion of Dr. Manik Gedam and I see no reason to differ. PW 8 - Dr. Vilas Kurude is a gynecologist who examined the child 13 apeal316of18 victim on 10.8.2013. PW 8 deposed that the child victim was complaining of pain at the perineal region and the history given was of insertion of penis in the anus by the accused. PW 8 - Dr. Kurude states that the injuries were caused within 4 to 8 hours. However, in view of the deposition that the injuries were scab formation, the evidence of the surgeon PW 6 - Dr. Gedam that the injuries were 48 hours old appears to be consistent with the authoritative texts on medical jurisprudence. PW 8 - Dr. Kurude has deposed that since the victim was examined after 48 hours during which period she passed stool more than once, there is less possibility of finding any semen or bloodstain in the sample sent for chemical analysis. PW 8 has deposed that abrasions are possible due to struggle, and that he referred the child victim to the surgeon for examination.

13 The medical evidence is consistent with the version of the child victim that the accused inserted his penis in her anus. Shri Wakil would then argue that PW 5 - Smt. Sushma did not support the prosecution. Witnesses turning hostile is a common occurrence. However, since the evidence of the child victim is implicitly reliable, the fact that PW 5 - Sushma did not support the prosecution is of scant significance. PW 2 - Pushpa is the mother 14 apeal316of18 of the victim who has deposed that the child victim narrated the entire incident when she returned home after receiving telephonic call from PW 5 - Sushma. It is suggested that she and the accused were residing as husband and wife, which suggestion is denied. PW 2 admits that while residing together, the accused used to contribute to the family expenses. PW 2 denied the suggestion that her children and the landlord were disliking the relationship between PW 2 and the accused. PW 2 denied the suggestion that her relationship with the accused turned sour since the accused disclosed having seen the child victim with one boy. PW 7 - Priya is examined to establish that the child victim disclosed that she was sexually ravished by the accused. Nothing is brought on record in the cross-examination to discredit her testimony. PW 7 - Priya has denied the suggestion that the child victim was having affair with one Subhash and that since the child victim and Priya apprehended that the accused would reveal the affair to their mother, the accused is falsely implicated.