1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.366 OF 2016
Gopal Natthuji Shreenath,
Aged about 35 years,
Occ. Labour,
R/o. Khadi, Tq. Mangrulpir,
District Washim ...APPELLANT
...V E R S U S...
The State of Maharashtra,
Through Police Station Officer,
Police Station, Mangrulpir,
Tahsil Mangrulpir,
District Washim, ...RESPONDENT
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Mr., S.S. Jaiswal, Counsel for appellant.
Mr. A.V. Kadukar, Addl. Public Prosecutor for respondent.
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CORAM: ROHIT B. DEO, J.
Date of reserving the Judgment : 28.11.2017
Date of pronouncing the judgment : 23.01.2018
JUDGMENT
The appellant (hereinafter referred to as "the accused) is convicted for offence punishable under section 452 of the Indian Penal Code ("IPC" for short) and sentenced to suffer ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 2 rigorous imprisonment for a period of three years and to payment of fine of Rs. 500/-, and is convicted for offence punishable under section 376(2)(i) of IPC and is sentenced to suffer rigorous imprisonment for a period of ten years and to payment of fine of Rs. 1,000/-. The appellant is further convicted for offence punishable under section 5 read with section 6 of the Protection of Children from Sexual Offence Act ("POCSO" for short), for which offence no separate sentence is imposed.
This judgment and order of conviction dated 15.3.2016 delivered by the learned the Additional Sessions Judge, Washim in Special Session Trial 60 of 2014, is assailed in appeal. 2 Heard Shri S.S. Jaiswal, the learned counsel for the accused and Shri A.V. Palshikar, the learned Additional Public Prosecutor for the respondent.
3 Indubitably, the victim is mentally challenged. Her mother Ashabai (PW 2) lodged oral report (Exh. 26) on 11.8.2014. The gist of the oral report is that the PW 2 is resident of village Khadi and has three daughters, one daughter is married, the elder daughter is suffering from some mental ailment and the third daughter - victim is mentally challenged. PW 2 and her ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 3 elder daughter used to go for labour work leaving the victim at home. The victim used to spend time at the house of the nephew of the informant Balu after having her lunch. The husband of PW 2 is employed at Pune.
4 PW 2 left her house at 9.00 to 9.30 a.m. on 10.8.2014 instructing the victim to have lunch and go to the house of Balu. PW 2 and her elder daughter returned between 7 to 7.15 p.m. The elder daughter was send to the house of Balu. A neighbor Kamlabai ( PW 3) and her daughter Chhakuli informed PW 2 that when the victim was alone in the house in the morning, the accused entered the house and was molesting the victim, who raised alarm. Chhakuli went to investigate and saw the accused forcing himself on the victim. Chhakuli narrated the incident to her mother Kamlabai. Kamlabai went to the house of victim and on seeing her, the accused fled. PW 2 then went to the house of nephew Balu to fetch the victim. At that time, the mother in law (PW 4 Anjanabai) also narrated the said incident to PW 2. The victim conveyed to PW 2 by signs that the accused subjected her to sexual intercourse. Since there was no male member in the house and due to fear and poverty, PW 2 lodged report on the next day. ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 4 5 On the basis of the said report offence under section 376(2) (i)(l), 452 of IPC and under section 5 (k) read with section 6 of POCSO Act was registered against the accused. Investigation ensued upon completion of which charge sheet was submitted before the Special Court. The learned judge framed charge against accused for offence punishable under section 452, 376, 2(i)(1) of IPC, 5(k) read with section 6 of POCSO Act and under section 3(i) (xi), 3(i)(xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The accused abjured guilt. His defence is of false implication due to a dispute with PW 2 on the issue of payment of labour charges.
6 The learned counsel for the accused Shri. S.S. Jaiswal, at the very outset, strenuously urged that since the prosecution failed to establish that the victim was aged less than 18 years on the date of the incident, the provisions of POCSO Act are not attracted. The submission is, that the mother of the victim (PW 2) has deposed that the age of the victim was 14 years approximately. Ossification test would reveal that the age of the victim was more than 18 years. I deem it appropriate to deal with the said submission before discussing the other issues which fall for determination.
::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 5 7 Concededly, there is no documentary evidence placed on record to prove the age of the victim. The oral evidence of PW 2, which is an approximation, is seriously challenged by the defence. The radiological report Exh. 64 is the only evidence adduced by the prosecution to prove the age of the victim. The radiological report is exhibited on admission. The probable age of the victim is opined as above 14 years and below 17 years. However, the opinion is inconsistent with the findings recorded in Exh. 64. The findings recorded read thus:-
"X-ray wrist anterior posterior elbow anterior posterior. Distal end of radius fused. (seen above 16-18 years) Head of radius fused (Seen above 19 years) X-ray pelvis Vertebral crest not fused (seen below 17-19 years)"
8 In the teeth of the said findings, the opinion that the age of the prosecutrix was between 14 to 17 years is of no assistance to the prosecution.
It would be apposite to refer to the following observations of the Apex Court in Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others reported in AIR 1982 SC 1297.
"9. ..... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side."
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The submission of the learned counsel for the accused that the prosecution has not proved that the age of the victim was less than 18 years, is well founded. The provisions of the POCSO Act could not have been invoked.
9 The victim, who is mentally challenged, is examined as PW 7. The learned judge did record that the victim is unable to speak and understand the questions put by the learned Additional Public Prosecutor. The learned Judge permitted the learned APP to question the victim with the assistance of PW 2. The examination in chief and the cross examination reveal that the victim responded with "gks" (yes) to every question put to her. This is recorded by the learned Sessions Judge and it would be pertinent to reproduce the cross examination of the victim -
"learned counsel for accused put question of cross examination through her mother and ask whether your mother quarreled with accused, she replied " gks". On asking her that, whether accused taken out labour money from her mother, she replied "gks". On asking her that, her mother tutored and teach her to touch her body here and there, she replied "gks". On asking her today she indicated her finger towards accused as per her mother's say, she replied "gks". On asking her, her mother dropped her in the house of her grandmother whenever she went to field for work, she replied "gks".
The mother of victim girl during the course of evidence mentioned that, in the usual manner victim replied as ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 7 "gks" for everything"
The learned Sessions Judge has recorded a finding that the evidence of PW 7 victim must be kept out of consideration which finding is unexceptionable. The observations of the learned Sessions Judge read thus:-
"P.W. 7 is the prosecutrix. Her evidence shows that my learned predecessor recorded her evidence without any oath, without assistance of any social worker, Medical Officer or interpreter. The record shows that the evidence of prosecutrix came to be recorded as per the signs shown by her and with the aid of P.W. 2 Asha. The record shows that the prosecutrix used to reply in words i.e. "hay and Ho". It is also not disputed by both the parties that during investigation the statement of prosecutrix was not recorded as she was unable to give statement properly. In such situation I found that the evidence of P.W. 7 prosecutrix is not considerable".
10 I may now proceed to analyze the other evidence on which the prosecution is relying.
PW 2 Ashabai is the mother of the victim and the informant. Her deposition is that it was conveyed to her by Kamalabai that her daughter had gone to the tap and saw the victim shouting since one man was in the house. PW 2 then states that Kamlabai disclosed that when she went to the house of PW 2, the person who was in the house fled. Kamlabai escorted the victim to the house of Ashabai's mother in law (PW 4). PW 2 went to the house ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 8 of PW 4 to fetch the victim. She was told by PW 4 that the victim took PW 4 to the house of the accused and she was weeping . PW 2 asked the victim as to what was done by the accused with her and the victim replied by gestures that the accused pressed her mouth, neck, breast and committed forcible sexual intercourse. The victim showed her private part from which blood was oozing. PW 2 proves the oral report Exh. 26 and the printed First Information Report Exh. 27. It is extracted in cross examination that her house and the house of the accused are situated in front of each other and anybody entering in the house of PW 2 would be noticed easily. PW 2 admits that accused is residing with aged mother, wife and two children. She admits that besides farming, the accused was engaged in selling fish and normally the accused would leave early morning and return in the evening. She volunteers that on the day of the incident, the accused was at his house. In response to a suggestion, she denies that she went to jail to meet the accused. However, PW 2 volunteers that under a false pretext, the sister of the accused took her to the jail. Few omissions are brought on record. One of the omissions is the statement that the victim conveyed to her by gestures that the accused pressed her mouth, breast, chest and showed her knickers and private part smeared with blood. She denies the suggestion ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 9 that her daughter was aged more than 18 years on the date of the incident while admitting that the age stated to police is approximate. She denies the suggestion that the accused is falsely implicated due to a dispute on the issue of payment of wages. 11 Kamlabai who is examined as PW 3 did not support the prosecution, and was cross examined by the learned APP pursuant to permission granted under section 154 of the Indian Evidence Act. Nothing is elicited in her cross examination to assist the prosecution.
12 The evidence of PW 2 Ashabai is not corroborated by PW 3 Kamlabai and the daughter of Kamlabai - Chhakuli is not examined, with the result that there is no ocular evidence on record to prove the presence of the accused in the house of PW 2 Ashabai.
13 The evidence of PW 2 is substantially hearsay. She has deposed on the basis of information received from her mother in law PW 4 Anjanabai. The evidence that victim disclosed to her that she was subjected to sexual intercourse would have been relevant as corroborating the evidence of the victim, which ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 10 however, is rightly kept out of consideration. 14 The most important witness from the perspective of the prosecution is PW 4 Anjanabai. She has deposed that on the day of the incident, the victim took her to the house of the accused. The victim came to her house weeping at 10.00 a.m. and took her to the house of the accused by catching hold of her saree. The victim pointed her finger towards accused saying " iksVkM;k". She confronted accused and then returned to her house with the victim. PW 2 states that when PW 2 came home, a quarrel took place between accused and PW 2. She admits that after lodging the report, the police visited her village on 2 to 3 occasions. She denies the suggestion that accused is falsely implicated due to a dispute on the issue of wages. She admits that after lodging the report, she was in the village for a month.
15 PW 4 Anjanabai has deposed that the victim came to her weeping at 10.00 a.m. She has not made any reference to Kamlabai. The version of PW 2 is that Chhakuli saw the victim shouting due to the presence of one man in the house and when Kamlabai went to investigate, the person who was in the house fled and it was Kamlabai who escorted the victim to the house of ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 11 PW 4 Anjanabai.
The First Information Report dated 11.8.2014 is elaborate. The First Information Report makes no reference whatsoever to the victim having taken PW 4 Anjanabai to the house of the accused. The narrative that victim came weeping to PW 4 Anjanabai and catching hold of her saree took her to the house of the accused has come on record for the first time in the 161 statement of PW 4 Anjanabai. Be it noted that the 161 statement of PW 4 Anjanabai is recorded belatedly on 30.8.2014. No explanation is forthcoming from the prosecution justifying the delay in recording the statement. PW 4 admits that she was present in the village for a month after the incident and the police visited the village on 2 or 3 days. The delay of 20 days in recording the statement of PW 4 Anjanabai assumes significance particularly since her version recorded in 161 statement is conspicuously absent in the First Information Report lodged on 11.8.2014. In the context of unexplained delay in recording the statement, it would be apposite to refer to the following observations of the Apex Court in Ganesh Bhawan Patel Vs. State of Maharashtra, (1978) 4 SCC 371:
"15. As noted by the trial Court, one unusual feature which projects its shadow on the evidence of Pws Welji, ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 12 Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161, Cr. P.C. were recorded on the following day. Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case."
I am not satisfied that there is any justification for delay in recording 161 statement of PW 4 Anjanabai. Her evidence is rendered suspect and must be kept out of consideration. 16 Dr. Isha Kulkarni who examined the victim and issued report Exh. 56 is examined as PW 6. Report (Exh. 56) does not record signs of any physical injuries on the person of the victim. The labia majora and minora are normal and so are fourchette and introitus / vagina. The edges of hymen are smooth, is the report. The report does notes injury to the hymen. PW 6 admits that hymen can be ruptured either due to sexual assault or due to rubbing on any rough surface. She however, volunteers that the ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 13 possibility of rubbing on rough surface is less in the case of the victim. She admits that she has not mentioned the age of the hymen injury in the report as the age cannot be ascertained. The report opines that evidence of sexual intercourse / assault cannot be ruled out hence final opinion is kept pending till receipt of FSL reports.
The medical evidence is that the victim suffered injury to hymen. However, the age of the injury is not stated and the deposition of PW 6 is that the same cannot be ascertained. 17 Report of the chemical analyzer Exh. 31 does not take the case of the prosecution any further. No semen is detected on the vaginal swab or pubic hair. Neither blood nor tissue matter is detected on the nail clippings of the victim. The Chemical Analysis report Exh. 32 is again of no assistance to the prosecution. Neither blood nor semen is detected on the knicker, salwar, slip, underwear of the victim or on the full pant and full shirt seized from the accused.
18 The medical and forensic evidence on record is not consistent with the prosecution version that the victim was subjected to sexual intercourse. The learned APP is justified in the ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 14 submission that neither medical nor forensic evidence is decisive. The absence of visible signs of violence is not decisive. If the ocular and direct evidence is reliable and confidence inspiring, the conviction on the basis of such evidence would be perfectly legal notwithstanding that the ocular evidence is not corroborated by medical or forensic evidence. However, since the evidence of the child victim and that of PW 4 Anjanabai must be kept out of consideration, for reasons recorded supra, and the conviction cannot rest on the sole testimony of PW 2 Ashabai whose evidence is either hearsay or is based on what is conveyed to her by the victim by gestures. Since the ocular evidence is not implicitly reliable and unimpeachable, this Court was compelled to search for corroboration. No corroboration could be found either by way of medical evidence or forensic evidence. Injury to hymen, the age of the injury being unascertainable is not sufficient to prove sexual assault.
19 On a holistic appreciation of evidence, I am not persuaded to hold that the prosecution has proved the offence beyond reasonable doubt. In the result, I pass following order :
i) The judgment and order dated 15.3.2016 passed by the learned the Additional Sessions Judge, Washim in ::: Uploaded on - 23/01/2018 ::: Downloaded on - 25/01/2018 02:12:26 ::: 15 Special Session Trial 60 of 2014, is set aside.
ii) The accused is acquitted of offence punishable under section 452, 376(2)(i) of IPC and under section 5 read with section 6 of POCSO Act.
iii) The accused is in jail. He be released forthwith unless required in any other case.
iv) The appeal is allowed.
JUDGE
Belkhede, PA
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