Bombay High Court
Sonu Alias Suraj S/O Dhanraj ... vs State Of Maharashtra, Through ... on 30 November, 2016
Bench: P.N. Deshmukh
Apeal 59.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.59 OF 2016.
APPELLANT: Sonu @ Suraj s/o Dhanraj Pathdevate,
aged about 25 years, Occu: Labour, r/o
Rajendra Ward, Bhandara, Tq. & Distt.
Bhandara.
: VERSUS :
RESPONDENT: The State of Maharashtra
ig through Police Station Officer,
P.S.Bhandara, Tq. and Distt.Bhandara.
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Mr.S.G.Karmarkar, Advocate for the appellant.
Mr.H.R.Dhumale, Addl.Public Prosecutor for the respondent/State.
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CORAM
: P.N.DESHMUKH, J.
DATED: 30th NOVEMBER, 2016.
ORAL JUDGMENT :
1. This appeal takes exception to judgment and order
dated 22nd of June, 2015, passed by the learned Special Judge and
Additional Sessions Judge, Bhandara in Special Criminal
(Children) Case No.29 of 2014, by which the appellant came to be
convicted for the offence punishable under Section 450 of the
Indian Penal Code and is sentenced to suffer rigorous
imprisonment for seven years and to pay fine of Rs.1000/-, in
default of payment of fine to suffer further rigorous imprisonment
for three months.
Appellant is further convicted for the offence punishable
under Section 376(i) of the Indian Penal Code and under Section
4 of the Protection of Children from Sexual Offences Act and is
sentenced to suffer rigorous imprisonment for seven years on each
count and also to pay fine of Rs.1000/- on each count, in default
of payment of fine to suffer further rigorous imprisonment for
three months on each count. He is also convicted for the offence
punishable under Section 6 of the Protection of Children from
Sexual Offences Act and is sentenced to suffer rigorous
imprisonment for ten years and to pay fine of Rs.2000/-, in default
to suffer rigorous imprisonment for six months. All the sentences
are directed to run concurrently.
2. It appears to be the case of prosecution that on 17 th of
July, 2014, at about 2.00 p.m., when prosecutrix was alone in her
house, appellant visited her and made enquiry about presence of
her family members. On reply of prosecutrix that she is alone,
appellant entered the house and by closing the door from inside,
committed forcible sexual intercourse upon her and ran away.
On the basis of report lodged by prosecutrix vide Exh.16, offence
came to be registered vide Crime No.261 of 2014 at Police Station
Bhandara for the offence punishable under Sections 376(2)(i)(h),
452 of the Indian Penal Code read with Section 6 of the Protection
of Children from Sexual Offences Act, which was investigated by
PW 10 Pranita Karhade, PSI, attached to Bhandara Police Station.
3. During the course of the investigation, accused came to
be arrested on the day of incident. PW 10 Pranita Karhade
referred prosecutrix for medical examination which was conducted
by PW 8 Dr.Chanchal Khobragade and has issued medical
certificate, Exh.34. Investigating Officer visited the spot of
incident and drawn spot panchanama vide Exh.24 and seized
clothes of prosecutrix being Articles A/1 to A/4 under seizure
panchanama, Exh.39. She also collected vaginal swab, pubic
hairs, blood sample and nail clippings of prosecutrix under
requisition to Medical Officer and seized the same under seizure
panchanama,
Exh.40. On arrest of appellant he was referred for his medical
examination and his blood sample, semen sample, nail clippings
etc. were seized under seizure panchanama, Exh.42. During the
course of interrogation, on the basis of disclosure statement made
by appellant vide Exh.43, his clothes came to be seized as
produced by him under seizure panchanama, Exh.44 which were
concealed in a dilapidated house. On recording statements of
material witnesses and on completion of the investigation, charge-
sheet came to be filed before the learned Magistrate, First Class,
Bhandara.
4. In the course of time, the case came to be committed for
trial before the learned Sessions Court. Charge was framed
against the accused vide Exh.3 for the offence punishable under
Sections 450, 376(i) of the Indian Penal Code and under Sections
4, 6 of the Protection of Children from Sexual Offences Act, 2012,
to which he pleaded not guilty and claimed to be tried. The
defence of the accused is that of total denial and of false
implication.
5. To establish the Charge levelled against the appellant,
the prosecution has examined in all ten witnesses and commenced
its evidence by examining PW 1 -Yashoda Bawanthade, mother of
prosecutrix, to whom prosecutrix has made disclosure of incident,
PW 2 , the prosecutrix, PW 3 Mrinal Girish Muneshwar, Councilor,
in whose presence statement of prosecutrix was recorded, PW 4
Bisan Bawanthade, father of prosecutrix, PW 5 Poonam Mane, a
panch on spot panchanama, who has partly supported the case of
prosecution since has not supported with regards to seizure of
clothes of prosecutrix in her presence, PW 6 Chakradhar Bhujade
who did not support the case of prosecution on the ground of
memorandum statement of accused and subsequent seizure, PW
7 Gajanan Bapurao Gite, Carrier, PW 8 Dr.Chanchal who has
medically examined the prosecutrix and issued certificate, Exh.34,
PW 9 Malti Mane who did not support the case of prosecution and
concluded its evidence on examining PW 10 Ku.Pranita Karhade,
Investigating Officer.
6. The learned Special Judge and Additional Sessions
Judge on considering the evidence of above witnesses and
documents placed on record has found appellant guilty of offence
punishable under Sections 450, 376(i) of the Indian Penal Code
and under Sections 4 and 6 of the Protection of Children from
Sexual Offences Act, 2012, and awarded sentence to appellant as
aforesaid. Hence, this appeal.
7. Heard learned counsel for the appellant and the learned
Additional Public Prosecutor for the State.
8. The learned counsel for the appellant has stressfully
submitted that prosecution has failed to establish age of
prosecutrix to be minor under the Protection of Children from
Sexual Offences Act as her birth certificate filed on record is not
proved. It is further contended that there is no corroboration to
the evidence of prosecutrix though, according to her, immediately
after the incident, she has disclosed about it to PW 9 Malti who,
however, has not corroborated evidence of prosecutrix.
9. It is further contended that though Chemical Analyzer's
report established that blood stains found on clothes of prosecutrix
as well as that of appellant were of blood group of prosecutrix,
that by itself is not sufficient to establish the involvement of
appellant in this Crime for want of substantive evidence. It is,
therefore, prayed that the appeal be allowed.
10. Learned Additional Public Prosecutor, on the other
hand, has submitted that nothing is brought on record to doubt
evidence of prosecutrix and there is no reason for her to falsely
implicate the appellant. According to the learned Additional
Public Prosecutor, oral testimony of prosecutrix is fully supported
by medical evidence and Chemical Analyzer's report as well as
evidence of PW 1, her mother, who immediately on having
knowledge of incident from prosecutrix lodged report and put the
investigation into motion. It is, therefore, contended that the
appeal is liable to be dismissed.
11. With the assistance of the learned Counsel for the
parties, I have scrutinized the evidence and documents on record.
12. PW 2, prosecutrix has stated that incident took place on
17th of July, 2014, at about 2.00 p.m., when she was alone in the
house. At that time, accused came to her house and enquired
whether her father was inside, to which she replied in negative,
upon which he asked her to open the door as he had some work.
Prosecutrix accordingly opened the door upon which appellant
entered the house and closed the door from inside. She further
stated that accused then gagged her mouth and dragged her into
the kitchen and on removing her clothes committed forcible sexual
intercourse. She has further stated that in the meantime, PW 9
Malti arrived in her house and gave call to her due to which
accused ran away from the back side door.
13. It has further come in her evidence that she narrated
said incident to her mother who accompanied her to Police Station
and lodged her report, Exh.16 on the strength of which offence
came to be registered vide Exh.17. As per further evidence of
prosecutrix, she was then referred for her medical examination
and during the course of investigation police drew spot
panchanama in respect of spot pointed out by her and seized her
clothes consisting of underwear, legging, Salvar and slip under
seizure panchanama. As per her report, her date of birth is 13 th of
March, 1998 and that she was indoor patient in the hospital for
three days.
14. In the cross-examination, nothing has been elicited from
the evidence of prosecutrix to discard her evidence. It is material
to note that even there is no suggestion put to prosecutrix that she
was not sexually assaulted by accused. In that view of the matter,
entire evidence of prosecutrix on the point of incident goes
unchallenged. Though two omissions are brought on record in her
evidence, they are, with reference to prosecutrix to have not stated
in her report that accused asked if her father was in the house and
with regard to accused dragging her to kitchen, however, both
these omissions appear to be minor as they do not go to the root of
the case. It is further material to note that even there is no
challenge to date of birth as stated by prosecutrix as 13 th of March,
1998, according to which, prosecutrix on the date of incident
which took place on 17th of July, 2014 was minor.
15. In view of facts as aforesaid, though it is argued on
behalf of the appellant that birth certificate of prosecutrix is not
proved though it is filed with the charge-sheet, there appears no
substance in said submission in view of defence having no
challenge to date of birth of prosecutrix, as deposed by her.
16. Evidence of prosecutrix finds corroboration from
evidence of PW 1 Yashoda, her mother, on material aspects. She
has stated that incident took place on 17 th of July, 2014 when
prosecutrix was alone in the house and on her reaching back to
home at 6.00 p.m., prosecutrix had informed her while weeping
that when she was alone in the home, at 2.00 p.m., accused
arrived and asked her to open the door, which she opened, upon
which he entered the house and committed sexual assault on her.
PW 1 Yashoda further stated that she thus accompanied
prosecutrix to police station when report came to be lodged and
that her daughter was then referred for medical examination.
17. Even in the cross-examination of PW 1 Yeshoda nothing
is brought on record so as to doubt her evidence. Said witness has
specifically denied that prosecutrix did not disclose her any facts
involving appellant about his arriving in their house and
committing rape on her. No case is put forth on behalf of
appellant with regards to his false implication. In that view of the
matter, there is no reason for the prosecutrix or her mother to
falsely involve the appellant. Even otherwise, oral version of
prosecutrix is found to have materially corroborated with her
report, Exh.16.
18. Evidence of prosecutrix and her mother, when
considered, coupled with medical evidence in the form of evidence
of PW 8 Dr.Chanchal Khobragade, the case of prosecution is
further substantiated as said witness deposed that on 18 th of July,
2014, i.e. one day after incident dated 17 th of July, 2014, she had
examined prosecutrix who had given history of single sexual
contact one day before at about 2.00 to 2.30 p.m. On
examination, Medical Officer has noted that the gait of victim was
painful and she had sustained abrasions on both sides of labia
majora and labia minora and there was also perennial tear of one
degree. Hymen too was found having injuries and was ruptured.
From above stated findings it was confirmed that prosecutrix was
subjected to the sexual intercourse. She has accordingly proved
medical Certificate, Exh.34.
In the cross-examination Medical Officer has specifically
denied that bleeding in the hymen was not due to rupture of
hymen and that the injuries found sustained in hymen were old.
It is also denied that the injuries sustained by the prosecutrix were
possible by forceful fingering or by accidentally falling on the
sharp object.
19. Above stated evidence, thus do not leave any doubt to
hold that prosecutrix was subjected to sexual intercourse which,
from the evidence of prosecutrix and her mother, can only be said
to have committed by accused.
20. Above stated evidence is further found corroborated
when from the evidence of PW 10 Pranita, PSI, Investigating
Officer, when she deposed that during the course of investigation
she had seized clothes of prosecutrix and had also seized vaginal
swab, pubic hairs, blood sample, nail clippings under seizure
panchanama, Exh.40. She has further deposed that after arrest of
accused, he was referred for his medical examination and had also
seized his blood sample, nail clippings under seizure panchanama,
Exh.42. It has further come in her evidence that she had sent all
the seized muddemal articles to Chemical Analyzer for its analysis
under covering letter, Exh.45 and had placed on record C.A.
reports at Exhs.46 to 48.
21. In the background of oral testimony of Investigating
Officer, as aforesaid, perusal of Exh.45 establish facts of sending
clothes as well as blood sample, nail clippings of prosecutrix as
well as of accused for its analysis to the Forensic Science
Laboratory, while from the Chemical Analyzer's Report, Exh.47
blood group of prosecutrix is certified to be of group 'B'. However,
vide C.A.report, Exh.48, no group of blood of accused could be
determined, as results are inconclusive. It is material to point out
that as per C.A.report, Exh.46, Kurta, legging, sleeves and
underwear of prosecutrix are marked as articles A/1 to A/4 and
vide said report, except for slip, at Sr.no.3, all clothes of
prosecutrix are stated to be stained with blood of group 'B'.
22. It is further material to note that half pant as well
baniyan of accused are also stated to have stained with blood of
group 'B'. No explanation is put forth on behalf of the accused as
to under what circumstances his half pant as well as baniyan is
found to have stained with blood of group 'B' which blood group is
of prosecutrix. Above stated evidence, thus further substantiates
the oral version of prosecutrix of her being ravished by appellant
on the date of incident, as there is no other reason for prosecutrix
to sustain bleeding from her private part, and PW 8 Dr.Chanchal
had specifically denied that on 18th of July, 2014 at 6.50 a.m.
when she examined prosecutrix, she noted that prosecutrix was
undergoing her menses period. In view of specific denial of
Medical Officer, as aforesaid, there is nothing to disbelieve the
case of prosecution of accused on 17th of July, 2014 taking
advantage of minor girl having been alone in her house, at 2 p.m.
forcibly committed sexual assault upon her.
23. Having considering evidence as aforesaid, case set out
on behalf of appellant that the prosecution has not proved her
birth certificate though placed on record or that her evidence does
not find corroboration from the independent witness being PW 9
Malti, who did not support the case of prosecution, by itself is not
sufficient to dislodge the case of prosecution. More particularly, as
stated aforesaid, when there is no challenge to date of birth as 13 th
of March, 1998 as deposed by prosecutrix and though PW 9 Malti
has not supported the case of prosecution, evidence of prosecutrix
by itself is reliable which is substantially found corroborated by
her mother and medical evidence on record.
24. In the circumstances, prosecution has established charge
levelled against the appellant beyond reasonable doubt. Appeal is
thus, devoid of merit and hence liable to be dismissed. Hence, the
following order.
-ORDER-
Appeal stands dismissed.
JUDGE
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