Anil S/O Duryodhan Gharat (In ... vs The State Of Maharashtra, Thr. ...
2017 Latest Caselaw 6492 Bom

 apeal319.16.J.odt                       1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.319 OF 2016

          Anil s/o Duryodhan Gharat,
          Aged about 36 years,
          Occ: Cultivation,
          R/o Pathari (Goregaon),
          Tah. Goregaon, District Gondia.                 ....... APPELLANT

                                 ...V E R S U S...

          The State of Maharashtra,
          Through Police Station Officer,
          Police Station Goregaon,
          District Gondia.                                   ....... RESPONDENT
 -------------------------------------------------------------------------------------
          Shri R.M. Daga with Ms. F.N. Haidari, Advocate for 
          Appellant.
          Mrs. M.H. Deshmukh, APP for Respondent/State.
 -------------------------------------------------------------------------------------

 CORAM:  ROHIT B. DEO, J. 

 DATE OF RESERVING THE JUDGMENT                                   :      07.08.2017
 DATE OF PRONOUNCING THE JUDGMENT                                 :      23.08.2017



 1]               The   appellant   is   aggrieved   by   judgment   and   order

dated 23.02.2016 delivered by the Special Judge, Gondia in

Special Case 49/2014 by and under which the appellant is

convicted for offence punishable under section 3 read with section

4 of the Protection of Children from Sexual Offences Act, 2012

(for short 'POCSO') and is sentenced to suffer rigorous

imprisonment for ten years and to additionally pay fine of

Rs.5000/-, and is further convicted for offence punishable under

section 376(2)(i) of the Indian Penal Code and is sentenced to

suffer rigorous imprisonment for ten years and to additionally pay

a fine of Rs.5000/-.

2] The prosecution case, as is unfolded during the

course of trial is thus. P.W.2 victim girl was residing at Pathari

(Goregaon) along with her two sisters Durga, Anjali and

grand-mother Nirmalabai Raut. Her parents and brother were

away in Hyderabad for labour work. The grand-mother of the

victim girl informed her mother Sushilabai on 19.05.2014

telephonically that prior to eight days the accused sexually

assaulted the victim girl in a field on the pretext of giving sweets

and chocolate. Sushilabai and her husband returned to village

Pathari on 22.05.2014, made inquiry with the victim girl, were

told by the victim girl that the accused took her to a field,

removed his pant and her clothes, sat on her and inserted his

private organ into her vagina. Sushilabai lodged report (Exh.12)

against the accused on 23.05.2014 at Goregaon Police Station.

An offence punishable under section 3 read with section 4 of

POCSO and 376(2)(i) of the I.P.C. was registered against the

accused vide Crime 41/2014. A spot panchnama was drawn, the

accused was arrested, the victim girl was medically examined, her

blood sample and vaginal swab sample were collected, C.A. report

and the birth certificate of the victim girl were obtained and after

completion of the investigation charge-sheet was submitted in the

Special Court.

3] The Trial Court framed charge (Exh.8), the accused

pleaded not guilty and claimed to be tried. The prosecution

examined eight witnesses, the statement of accused was recorded

under section 313 of Cr.P.C. in which the accused contended that

he is falsely implicated due to old enmity. The judgment of

conviction is assailed in the present appeal.

4] Heard Shri R.M. Daga and Ms. F.N. Haidari, the

learned counsels for the appellant-accused and Mrs. M.H.

Deshmukh, the Additional Public Prosecutor for the State.

Shri R.M. Daga, contends that the evidence of the victim girl who

is examined as P.W.2 is not confidence inspiring and her conduct

of regularly attending the school and playing with her friends

even after the alleged incident, is unnatural. He contends that the

failure of P.W.2 to disclose the incident to anybody for 12 to 13

days renders her testimony wholly unreliable and the conviction

on the basis of such testimony is unsustainable. The learned

counsel contends that the testimony of P.W.2 victim girl is not

corroborated by the medical evidence. The learned counsel further

contends that the age of the minor is not proved conclusively.

The learned counsel would invite my attention to certain

omissions which by partake the character of contradiction which

are duly proved and the submission is that the contradiction

renders the testimony of P.W.1 untrustworthy. In the alternative,

it is the contention of Shri R.M. Daga, that even if the evidence is

taken at face value, only an attempt to commit offence punishable

under section 3 read with section 4 of the Protection of Children

from Sexual Offences Act, 2012 and 376(2)(i) of the Indian Penal

Code is made out.

5] Per contra, Mrs. M.H. Deshmukh, the learned A.P.P.

would urge that the testimony of the victim girl is absolutely

reliable and confidence inspiring. She would urge that the victim

girl who is proved to be of 11 years as on the date of the incident

did not have any reason much less motive to falsely implicate the

accused. The testimony of the victim girl is corroborated by the

medical evidence. The learned A.P.P. would urge that it is a well

established position of law that the conviction can be based on the

uncorroborated testimony of the victim - prosecutrix if the

testimony is otherwise confidence inspiring. The learned A.P.P.

contends that it is conclusively established that the victim was a

minor and the alternate submission of the learned counsel for the

accused that the evidence at the most is suggestive of an attempt

to commit rape holds no water and militates against the evidence

of the victim girl which is corroborated by the medical evidence.

6] I have minutely scrutinized the evidence on record

and having done so, I am unable to accept the submission of the

learned counsel Shri R.M. Daga that the judgment impugned is

unsustainable in law nor am I persuaded to agree with the

alternate submission that the evidence at the most is suggestive of

an attempt to commit rape.

7] The mother of the victim girl Sushilabai is examined

as P.W.1. Her evidence reveals that she along with her husband

and son were in Hyderabad when she received a phone call from

her mother-in-law (P.W.3) on 19.05.2014 informing that the

accused had committed forcible sexual intercourse with the victim

girl after inducing the victim girl to accompany the accused to a

field under the pretext of giving her sweet and chocolate. P.W.1

was informed by P.W.3 that the accused inserted his private organ

in the vagina of the victim girl. She states that since she and her

husband did not have money for traveling, they arranged money

and on 22.05.2014 reached Pathari village. She made inquiry with

the victim girl and learnt that the accused took the victim girl to a

field, removed his pant and her clothes, sat on her and inserted

his private organ in the vagina of the victim girl. She states that a

police report Exh.12 was lodged. P.W.1 identifies the accused in

the Court and deposes that the accused is residing in front of her

house.

8] P.W.1 further states that she accompanied the victim

girl to the hospital for her medical examination, that during

investigation she handed over the clothes of the victim girl to the

police and further identifies the clothes. P.W.1 proves the seizure

memorandum Exh.14 by identifying her signature. P.W.1 states

that the victim girl was studying in 5 th standard and her month of

birth is June, 2003. In the cross-examination, she denies the

suggestion that the relationship between Nirmalabai (P.W.3) and

the mother of the accused were strained. She denies the

suggestion that there was an altercation between P.W.3 and the

mother of the accused on the issue of she-goat and hen of the

mother of the accused entering the house of P.W.1 and P.W.3.

Certain omissions are brought on record in paragraph 8 of the

cross-examination. She denies the suggestion that one day prior to

the lodging of report she quarreled with the accused.

9] The victim girl is examined as P.W.2. She states that

at the time of the incident she was studying in 5 th standard.

Accused, whom P.W.2 calls 'Bhau' offered her Rs.10/- which did

not accept. She states that she had been to the field for grazing

she-goat. She was told by the accused that he would pluck

mangoes for her and she was taken by the accused to the field of

Dhanna Badole. In the field, the accused removed her underwear,

removed his pant and then inserted his male organ in her vagina.

P.W.2 victim girl states that the accused threatened her not to

disclose the incident to anybody and therefore, she did not

disclose the incident to anybody. She states that 12 to 13 days

after the incident, she had been to the field to collect wax.

She was accompanied by her friend Rohini - the accused gave

money to Rohini for purchasing chocolate, Rohini brought

chocolate and both P.W.2 and Rohini consumed them. P.W.1

states that at that time also the accused told them to accompany

him. P.W.1 and Rohini did not accompany the accused and

returned to their respective home. It was then, that P.W.2

disclosed the first incident to P.W.3. She identifies the clothes

worn by her on the date of the incident. P.W.2 is extensively

cross-examined. It is brought on record that even after the

incident P.W.2 was attending school and regularly playing with

her friend. She denies the suggestion that her grand-mother

(P.W.3), used to reprimand the family members of the accused

due to the she-goat of the accused entering in the court-yard of

the house of the victim girl. She denies the suggestion that P.W.3

and mother of the accused were not on talking terms. She denies

the suggestion that P.W.3 was restraining her from visiting the

house of the accused. A suggestion was given to P.W.2 that she

was visiting the house of the accused and she was being offered

chocolate. P.W.2 victim girl admits the suggestion and volunteers

that after the incident she stopped going to the house of the

accused. She admits that before disclosing the incident to P.W.3

she was on talking terms with the accused and that even after the

incident she was taking her she-goat for crazing.

10] The grand-mother of the victim girl Nirmalabai is

examined as P.W.3 who corroborates the version of the victim girl.

She states that the victim girl informed her that the accused took

her to the field of Dhanlal Badole, removed her nicker and

inserted his male organ in her vagina. She states that on the same

day, with the help of her one Durga, she informed the father of

the victim girl telephonically and after 2-3 days the parents of the

victim girl returned to village Pathari and the victim girl narrated

the entire incident to them. She is subjected to grueling

cross-examination and the effort is to bring on record motive to

falsely implicate the accused. She denies the suggestion that there

was a strained relationship between her and the accused and his

mother. She denies the suggestion that the day before lodging the

report she and her son had an altercation with the accused.

She denies the suggestion that due to the altercation, the report

was lodged to falsely implicate the accused.

11] Poliram Katre is examined as P.W.4 to prove the

seizure panchnama. He did not support the prosecution, is

declared hostile and cross-examined by the prosecution.

Nothing relevant is brought on record in his cross-examination.

12] P.W.5 Bharat Karade is the Investigating Officer who

proves the spot panchnama Exh.26, the arrest panchnama Exh.27,

the blood sample and vaginal swab sample seizure panchnama

Exh.20, seizure panchnama of the clothes of the victim Exh.14,

seizure panchnama of the clothes of the accused Exh.21, the

seizure panchnama of the blood sample of the accused Exh.22,

C.A. reports Exh.31 to 33 and elaborately deposes about the

investigation conducted. P.W.6 Sheela Raut who is the Head

Mistress of the School in which the victim girl was studying is

examined to prove the age of the victim girl.

13] P.W.7 Dr. Kushal Sakure is examined to prove the

medical certificate issued pursuant to the medical examination of

the accused. P.W.8 Vijay Dawadi is the Medical Officer who along

with Gynecologist Dr. Punam Pardhi examined the victim girl.

He states that during the examination the victim girl complained

of burning sensation on genital and in urination. Hymen of the

victim girl was ruptured and there was redness on her vaginal part

with laceration. He states that since the victim girl was having

acute pain, the internal examination of vagina could not be done.

He confirms the opinion that sexual intercourse had taken place

with the victim girl. P.W.8 proves the M.L.C. Exh.45 by identifying

his signature and the signature of Gynecologist Dr. Punam Pardhi.

During the cross-examination, P.W.8 states that no marks of

injuries were found on the body of the victim girl. He states that

injury on genital would be found only if the rape is committed by

ample force. He denies the suggestion that a false medical

certificate is issued at the behest of the police and that the opinion

that sexual intercourse took place is incorrect.

14] The testimony of the victim girl P.W.2 is confidence

inspiring. Nothing is brought on record to suggest that the 11

years old victim was falsely implicating the accused. The defence

that the accused was falsely implicated due to strained

relationship between the family of the victim girl and the accused

and his mother is unacceptable. Firstly, nothing is brought on

record, other than the suggestions given to the prosecution

witnesses and which suggestions have been denied, to show that

there was strained relationship between the families. On the

contrary, it is the case of the defence, as is discernable from the

cross-examination of the victim girl, that the victim girl was a

regular visitor to the house of the accused. I do not have any

reason to seriously consider the possibility that the family of the

victim girl could have used her as a tool in a nefarious design of

falsely implicating the accused. No evidence is adduced nor is any

realistic possibility of false implication brought on record during

the cross-examination of the prosecution witnesses. The testimony

of the victim girl, in my opinion, is confidence inspiring and I have

accepted the same. The victim girl has testified that the accused

put his male organ in her vagina, her testimony is corroborated by

medical evidence. In the teeth of evidence on record, I am not in a

position to accept the alternate submission of Shri R.M. Daga that

even if the evidence is accepted at face value, only an attempt to

rape is proved. I am no hesitation in rejecting the alternate

submission.

15] The contention of the learned counsel for the accused

that the age of the victim girl is not proved holds no water. P.W.6

has proved Exh.36 which certifies the date of birth of the victim

girl as 30.06.2003. The certificate is issued on the basis of the

school admission register and the relevant entry 3182 is proved

and exhibited as Exh.37. The victim girl who was studying in 5 th

standard as on the date of the incident is proved to be then of 11

years of age.

16] Shri R.M. Daga contends that entire paragraph 8 of

the cross-examination of P.W.1 who is the mother of the accused

is an omission. The omission is however, not of the magnitude

much less importance as to cast a cloud on the prosecution case.

The finding of the learned Special Judge that the delay in lodging

the report is satisfactorily explained and the reasoning underlying

the finding, as is discernable from the paragraph 33 of the

judgment impugned, is unexceptionable. I see no reason, in law or

on facts, to take a view different from that taken by the learned

Special Judge. The prosecution has proved the offence punishable

under section 3 read with section 4 of the Protection of Children

from Sexual Offences Act, 2012 and section 376(2)(i) of the

Indian Penal Code beyond reasonable doubt.

17] The appeal is sans merit and is, accordingly,

dismissed.

JUDGE

NSN