apeal.207.17.jud.doc 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.207 OF 2017
Manohar s/o Sukhadeo Patil,
Aged about 43 years, Occupation : Labour,
R/o Pimpri (Mukhtyarpur), Tq. Ner,
District Yavatmal. C-4913
(Presently in Central Prison, Amravati) .... Appellant
-- Versus --
The State of Maharashtra,
Through P.S. Officer Ner,
Tal. Ner, Distt. Yavatmal. .... Respondent
Mrs. S.P. Kulkarni, Advocate (appointed) for the Appellant.
Mrs. H.N. Prabhu, Additional Public Prosecutor for the Respondent/State.
CORAM : KUM. INDIRA JAIN, JJ.
DATE : 20th NOVEMBER, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and order dated 18/08/2016 passed by the learned Additional Sessions Judge, Yavatmal in Special Case (POCSO) No.43/2013. By the said judgment and order, appellant-accused has been ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:52 ::: apeal.207.17.jud.doc 2 convicted of the offence punishable under Sections 450, 376(2)
(f)(i) of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act' for short). The sentence awarded by the trial Court is as under :
Sr.No. Sections Sentence
(i) 376(2)(f)(i) of IPC R.I. for 10 years with fine of Rs.3,000/-,
in default, R.I. for 3 months.
(ii) 450 of IPC R.I. for 5 years with fine of Rs.2,000/-,
in default, R.I. for 2 months.
(iii) 4 of POCSO Act R.I. for 7 years with fine of Rs.3,000/-
in default, R.I. for 3 months.
The learned Additional Sessions Judge directed all the sentences to run concurrently.
02] For the sake of convenience, appellant is referred in his original status as an accused as he was referred before the trial Court.
03] The prosecution case, in brief, is as under : ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 3
(i) Victim, a girl below 16 years of age at the relevant time, was resident of Pimpri (Mukhtyarpur) in Tahsil Ner, District Yavatmal. She was residing with her brother Akshay [PW-4], sister and parents. Incident occurred on 24/08/2013 at the house of victim at around 03:00 p.m. As parents and brother of victim went out, she was alone in the house.
(ii) According to prosecution, accused entered the house of prosecutrix. At that time, she was reading a book. He embraced her, pressed her chest and unclothed the victim. Thereafter, accused sexually assaulted the prosecutrix. Akshay, brother of victim, came to the house. She disclosed the incident to him. Accused went away after committing sexual assault on the victim.
(iii) PW-4 Akshay informed his father on phone. On arrival of father, prosecutrix narrated the incident to him. A report was lodged to Police Station Ner on the same day. Initially, offence under Section 376 of the Indian ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 4 Penal Code and Section 4 of the POCSO Act came to be registered vide Crime No.175/2013. PW-8 API Ashok Narayanrao Solanki took over investigation. He went to the spot and recorded spot-panchnama in presence of panch-witnesses. The spot of incident was shown by the informant. The clothes of victim came to be seized. It's seizure-panchnama was drawn. Prosecutrix was referred for medical examination. The blood sample, vaginal swab and pubic hair of victim came to be collected, seized and sealed. Accused was arrested. The clothes of accused were seized under seizure-panchnama. Blood and semen samples of accused were also collected and he was medically examined at Rural Hospital, Ner.
(iv) During investigation, statements of victim and other witnesses came to be recorded. Seized muddemal was sent to Chemical Analyzer. On completing investigation, charge-sheet was filed before the Special Court.
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04] Charge of the alleged offences came to be explained to accused vide Exh.8. He pleaded not guilty and claimed to be tried. The defence of accused is of total denial and false implication.
05] To substantiate the guilt of accused, prosecution examined in all eight witnesses. Accused examined one witness. Considering the evidence of prosecution witnesses, trial Court came to the conclusion that accused committed trespass and sexually assaulted the victim. In consequence, accused was convicted as stated hereinabove in paragraph 1. Being aggrieved by the judgment and order of conviction and sentence, present appeal has been preferred by the original accused.
06] Heard Mrs. S.P. Kulkarni, learned Counsel appointed for appellant and Mrs. H.N. Prabhu, learned Additional Public Prosecutor for the State. Perused reasonings recorded by the trial Court. On meticulous examination of evidence of prosecutrix, her brother and Medical Officer, this Court for the below mentioned reasons finds that prosecution has proved the ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 6 charge against the accused under Section 376(2)(f) and 450 of the Indian Penal Code and Section 4 of the POCSO Act. 07] Needless to state that in a case of sexual assault, where victim is minor, her evidence plays a significant role, but at the same time she being a child witness, her testimony has to be evaluated with great care, caution and circumspection. PW-1 is the victim in the present case. So far as her age is concerned, it appears from the line of cross-examination that accused has not seriously disputed the age of prosecutrix. The learned Counsel for appellant submitted that birth certificate produced by the prosecutrix has not been proved by examining the competent witness and the trial Court without legal proof wrongly placed reliance on the same. The learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in Alamelu and anohter vs. State, represented by Inspector of Police - [(2011) 2 SCC 385] and the judgments of the Division Bench of this Court in Ravi Anandrao Gurpude vs. State of Maharashtra - [2017 ALL MR (Cri) 1509] and Deepak s/o Jitendra Sawant vs. The State of Maharashtra
- [2017 ALL MR (Cri) 2058] to submit that in the absence of ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 7 proof of birth certificate, trial Court ought not to have placed reliance on the same.
08] It can be seen from the evidence of prosecutrix that at the time of incident, she was studying in 10 th standard at Z.P. High School, Manikwada. She states her date of birth as 20/03/1998. PW-4 Akshay, brother of prosecutrix also stated the age of victim as 20/03/1998. There is no challenge to the date of birth of prosecutrix in cross-examination. The trial Court in paragraph 44 of the impugned judgment observed that birth certificate [Exh.27] filed by the prosecutrix is a public document and no formal proof of the same is required. The entry in birth certificate reveals the date of birth as 20/03/1998. In medical examination report, the age of victim is mentioned as 16 years. PW-6 Dr. Sushma Gore, who examined the victim, admitted that she has not suggested ossification test of the victim. According to Dr. Gore, she verified birth certificate of the victim. As accused did not challenge the oral evidence of prosecutrix, her brother and Medical Officer regarding age of prosecutrix and as birth certificate [Exh.27] reveals the same date of birth, trial Court considered the age of victim as 15 years at the time of occurrence of incident.
::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 8 09] In the cases referred by the learned Counsel for the appellant, accused raised a dispute regarding age of prosecutrix. In the case on hand, accused did not challenge the same in the cross-examination of the witness. As oral testimonies of the important witnesses on age of prosecutrix and her date of birth remained un-controverted, trial Court rightly found that victim was below age at the time of incident.
10] It can be further seen from the evidence of prosecutrix that on 24/08/2013, she came from the school at around 12:00 to 01:00 p.m. She stated that her parents had been to the field. Akshay, brother of victim, was out side in the village. According to the prosecutrix, at about 03:00 p.m., her neighbour Manohar Sukhdeo Patil came to the house, while she was reading a book in a room on a chair. She stated that accused embraced her, pressed her mouth and chest and committed rape by removing her clothes. She states that her brother Akshay came home and she informed him that Manohar forcibly committed rape on her. Then Manohar Patil left the house of prosecutrix.
::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 9 11] Victim was cross-examined in extenso. Nothing substantial could be elicited in her cross-examination to disbelieve her testimony. Accused does not attribute previous animosity with the victim or her family members. There is no whisper in the cross-examination of either victim or her brother PW-4 Akshay regarding the same.
12] The evidence of prosecutrix is substantiated by PW-4 Akshay, who reached the spot immediately after the incident. It is stated by Akshay that at 12:00 noon, prosecutrix was reading a book and that time she was alone in the house. At around 02:00 p.m., he went to answer the nature's call. He came home at 03:00 p.m. That time, he noticed that door of house was closed but it was not bolted. So straightway, he entered the house and found victim lying on the ground and accused slept over the victim. He stated that accused was without clothes below his waist and clothes of victim below waist removed. Seeing Askhay, victim started weeping and wearing her clothes. Accused wore his clothes and went out of the house. It is stated by brother of victim that when he enquired, prosecutrix narrated the incident to him. Nothing substantial could be brought in the ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 10 cross-examination of PW-4 Akshay to disbelieve his evidence. Merely because he is brother of victim, his testimony cannot be doubted as accused has not raised any specific defence against the prosecutrix or her family members.
13] If evidence of PW-6 Dr. Gore is looked into, it is apparent that on the same day, she examined the prosecutrix and issued Medical Certificate. On examination, she found hymen of victim ruptured. Medical Report [Exh.47] corroborates the testimony of prosecutrix regarding sexual assault. 14] So far as seizure of clothes of accused and victim and panchnama regarding place of occurrence are concerned, C.A. Reports are in the negative. True, negative C.A. Report does not in any way affect the truthfulness and reliability of evidence of prosecutrix in a case where sexual assault has been alleged. As discussed above, victim fully supports the case of prosecution. She has no reason to grind an axe against the accused. The evidence of brother remains unshaken in cross-examination. Medical evidence corroborates the version of prosecutrix regarding commission of rape.
::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 ::: apeal.207.17.jud.doc 11 15] In the above background, this Court is of the view that trial Court has rightly come to the conclusion that prosecution has succeeded in proving the guilt of accused beyond reasonable doubt. There is no substance and merits in the appeal. Hence, the following order.
ORDER I. Criminal Appeal No.207/2017 stands dismissed. II. Fees of the learned Counsel appointed for appellant is quantified as Rs.5,000/- (Rupees Five Thousand Only). III. No costs.
(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 02/12/2017 ::: Downloaded on - 04/12/2017 23:21:53 :::