Rohidas S/O Manik Chavhan And ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 3524 Bom

                                                    1                   apeal456.15A.odt

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

                       CRIMINAL APPEAL NO.456/2015


 1. Rohidas s/o Manik Chavhan, 
    aged 20 years, Occ. Auto Driver

 2. Pravin s/o Pundlik Rathod,
    aged 25 years, Occ. Agriculturist, 

      Both r/o Bhandegaon, Tq. Darwha,
      Dist. Yavatmal. 
      (In Amravati Jail)                                     .....APPELLANTS
                         ...V E R S U S...

      State of Maharashtra through 
      Police Station Officer, P. S. Darwha, 
      Dist. Yavatmal.                                        ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. R. M. Daga, Advocate for appellants. 
 Mr. N. B. Jawade, A.P.P. for respondent.  
 -------------------------------------------------------------------------------------------

                               CORAM:- V. M. DESHPANDE, J.

DATED :- 22.06.2017

ORAL JUDGMENT

1. Being aggrieved by the judgment and order of

conviction passed by the learned Additional Sessions Judge,

Darwha in Special Case No.4/2015 by which the the appellants

are convicted for an offence punishable under Section 376-D of

the Indian Penal Code and are directed to suffer rigorous

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imprisonment for 20 years and to pay a fine of Rs.2500/- each and

in default to suffer further imprisonment for 2 months, the

appellants are before this Court.

2. The prosecution case in short is stated as under:

The criminal law was set into motion by the prosecutrix

(PW1) by approaching to the Police Station, Darwha on

09.10.2014. Her oral report is at Exh.-18. As per the said oral

report, she is taking education at Svatantryavir Sawarkar

Vidyalaya, Bhulai. She is resident of village Bhandegaon and she

used to go to Bhulai for attending the school by bus. On

08.10.2014 as usual in the morning she had been to Bhulai. After

the school period was over at 4.30 p.m., she along with her friends

had been to the bus stand, Bhulai. Her friends proceeded towards

their village by ST. the prosecutrix went to her grandfather

Kisandas Chavhan. After meeting him, she again came at 5.30

p.m. at bus stand and she was waiting for the bus to go to her

village Bhandegaon. That time, appellant no.1-Rohidas from her

village who ply auto-rickshaw came there. Since there was no bus

and Rohidas was known to the prosecutrix as hailing from her

village, she sat in her auto-rickshaw. That time appellant no.2-

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Pravin was also occupying a seat in the auto-rickshaw. It is further

stated in the report that while proceeding to Bhandegaon, when

they reached near Bhandegaon, the appellant Rohidas stopped his

auto and asked her to step down as he was intending to have a

talk with her. On his request, the prosecutrix stepped down from

the auto and as per his command proceeded near the agricultural

field along with him. In the said agricultural field, she was fell

down by Rohidas and by using force, she was sexually assaulted.

Thereafter, the appellant Pravin also came there. He concealed

her clothes and asked the prosecutrix that he also be allowed to

enjoy sexual intercourse with her otherwise he will defame her in

the society and village. Thereafter, the appellant Pravin also

committed sexual intercourse with her against her will and ran

away from the spot. The appellant-Rohidas reached the

prosecutrix to her house. The prosecutrix immediately informed

the happening to her father Prakash (PW2).

3. A crime was registered against the appellants on the

basis of the oral report Exh.-18 vide CR No.332/2014. The case

diary of the said crime was entrusted to Sadanand Mankar

(PW10). He seized the clothes of the prosecutrix under seizure

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memo Exh.-23. He thereafter referred the prosecutrix for her

medical examination to Rural Hospital, Darwha immediately by

giving duty pass to Lady Police Constable Buckle No. 2116, Exh.-

48. He also gave requisition Exh.-37 to the Medical Officer,

Government Hospital, Darwha for her examination. However, she

could not be examined in the said hospital and therefore she was

brought back by the LPC. Thereafter the Investigating Officer

recorded statement of the prosecutrix and her parents. In the

meanwhile, the appellant Rohidas was arrested. The clothes on

his person were seized under seizure panchanama Exh.-24.

The Investigating Officer prepared spot panchanama

Exh.-49. He found one gray coloured odhni and one yellow-red

scarf on the spot. These were seized while preparing the spot

panchanama. The prosecutrix also shown another spot of incident

which was also 50 Mts. away from the spot of incident from where

the scarf of yellow-red colour was seized.

The prosecutrix was thereafter referred for medical

examination to Shri Vasantrao Naik Government Medical College

and Hospital, Yavatmal under requisition Exh.-50. The appellant

was also referred for his medical examination under requisition

Exh.-51. His blood sample and pubic hair were seized in presence

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of panchas under seizure panchanama Exh.-52. The map of the

spot of occurrence was also drawn.

The LPC who took the prosecutrix for medical

examination brought blood sample, vaginal swab, pubic hair,

vaginal smear and UPT kit in a sealed condition. Those articles

were seized by the Investigating Officer by drawing seizure

panchanama Exh.-42.

The appellant Pravin was arrested on 11.10.2014. His

clothes were seized under seizure memo Exh.-43. He was also

referred for medical examination. His sample of blood, pubic hair

in sealed condition were seized under the seizure memo Exh.-44.

On 11.10.2017, statement of the prosecutrix under

Section 164 of the Cr.P.C. was recorded. All the seized articles

were sent to the Chemical Analyzer under requisition Exh.-56.

The CA report and the DNA reports were also obtained. The

charge-sheet was filed against both the appellants.

4. The learned Additional Sessions Judge, Darwha, on

29.04.2015 framed the charge against the appellants for the

offence punishable under Section 376 (g) and 506 of the Indian

Penal Code and also for an offence punishable under Section 6 of

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the Protection of Children from Sexual Offences Act, 2012. In all

9 witnesses were examined during the course of trial and after

culmination of the prosecution evidence and after recording the

statements of the appellants under Section 313 of the Cr. P. C., the

learned Judge handed down the verdict as stated in the opening

paragraph of the judgment.

5. I have heard Mr. R.M. Daga, learned counsel for the

appellants and Mr. N. B. Jawade, learned A.P.P. for the State in

extenso. The main thrust of the submissions of the learned

counsel for the appellants is that they ought not to have been

convicted for the offence punishable under Section 376-D of the

IPC. He submitted that the learned trial Court ought not to have

pressed into service the provisions of Section 42 of the POCSO

Act since according to the learned counsel for the appellants,

in the absence of the strict proof of age of the prosecutrix,

the provisions of Section POCSO Act cannot be made applicable.

To buttress his point, he has relied on a reported decision

of Division Bench of this Court in Ravi Anandrao Gurpude vs.

State of Maharashtra; 2017 ALL MR (Cri) 1509, and

submitted that at least to that extent, the judgment of the Court

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below needs to be set aside.

Per contra, Mr. Jawade, the learned A.P.P. supported

the impugned judgment.

6. Two pancha witnesses Siddharth (PW3) and Ghamesh

(PW4) have turned hostile. However, there is no impact of the

same on the case.

Mahadev Chavhan (PW5) a pancha is examined by the

prosecution to prove the seizure panchanama Exh.-26 under which

the police seized his auto-rickshaw bearing registration No.MH-

29/V-9074. Another witness who is examined is Gajanan (PW8) is

a Revenue Inspector and he has prepared the map of the spot

which is at Exh.-29.

Sachin Wankhede, who was attached to the Police

Station Darwha has carried muddemal articles to the Chemical

Analyzer.

The prosecution has also examined the prosecutrix, her

father Prakash (PW2) and Dr. Raviprakash Meshram (PW7) who

has examined the prosecutrix.

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7. The printed FIR Exh.-19 shows that Bhandegaon where

the prosecutrix resides is 10 km away from Police Station, Darwha.

Exh.-19 shows that the report was lodged at Police Station on

09.10.2014 at 5.30 a.m. having general diary reference

No.11/2014. As per the oral report Exh.-18, the atrocities on the

prosecutrix were committed in the early hours of night on

08.10.2014. Looking to the distance between the police station

and the village, in my view, lodging of the FIR at 5.30 a.m. on

09.10.2014 is prompt one. Immediate lodging of the FIR rules out

the embellishment and the false implication.

Scrutiny of the evidence of the prosecutrix which she

deposed from the witness box shows that it is in conformity with

her oral report. Though she was cross-examined at length, her

evidence is found to be without any improvements or

contradictions. Her evidence is trustworthy and it inspires

confidence.

8. From the line of cross-examination, it is the defence of

the accused persons that the prosecutrix is having a love affair

with a boy from Bhulai and with whom she enjoyed sex near the

spot of incident and when she was standing on road in frightened

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condition, the appellant-Rohidas came there with his auto-

rickshaw and he got the knowledge about the said fact and

therefore in order to save herself from defamation, the appellants

are falsely implicated.

From the line of cross-examination and from the

statements of the appellants recorded during the course of Section

313 Cr.P.C. statement, it appears that they are not denying their

presence near the spot and the company of the prosecutrix.

From the aforesaid defence of the appellants, it is clear

that a half hearted attempt is made by the appellants in the cross-

examination of victim. In my view, such a defence is raised only

for the purpose of defence. It has no foundation at all. There was

no reason for prosecutrix to falsely implicate these two persons.

9. The evidence of Prakash (PW2) shows that when the

prosecutrix returned to the house on the day of incident she

started crying and on being questioned by him she disclosed the

happening to her at the hands of the appellants. The act of

starting crying immediately on noticing the father in the house

corroborates the version of the prosecutrix since it was the most

natural on her part to vent her sorrow to her near and dear ones.

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10. Dr. Raviprakash Mehsram (PW7), an Assistant

Professor of the Department of Forensic Sciences in the Vasantrao

Naik Government Medical College and Hospital, Yavatmal, has

examined the prosecutrix on 09.10.2014 along with Dr. Garima

Arora. On examination of the prosecutrix, they noticed abrasion

at 6 O'clock position having size of 3 X 2 cm. on her private parts.

According to the medical certificate of the prosecutrix Exh.-38,

sexual intercourse cannot be ruled out. The doctor also collected

her vaginal swab, vaginal smear, blood for blood group and pubic

hair and sample of urine for pregnancy text. During the course of

cross-examination, Dr. Meshram stoutly denied the suggestion

given to him that the injuries as noticed on the private part of the

prosecutrix is possible while playing games. The doctor also

denied that the injury was not fresh.

The CA report Exh.11 shows semen stains on the

clothes of the prosecutrix so also blood stains on the

undergarments of the prosecutrix. Further Exh.-15, DNA report

also shows the finger of guilt against the appellants.

11. Thus, in view of the consistent evidence of the

prosecutrix which is supported by the medical evidence and the

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scientific report in the nature of CA report and DNA report, there

is no doubt in my mind that the prosecutrix was subjected to the

sexual assault against her will by the appellants.

12. The next question that this court is required to address

is as to whether they could be convicted by taking recourse to

Section 42 of the POCSO Act. Section 2 (D) of the POCSO Act

defines "Child". According to the definition, a person below the

age of 18 is a child. The Division Bench of this Court in Ravi

Anandrao Gurpude (supra) in paragraph 9 reads thus:

"9. The provisions of the Act are stringent in nature. Even there is a statutory presumption under Section 29 of the Act. Since the enactment is stringent in nature, the degree of proof is more strict. The prosecution is under bounden duty to prove the age of the prosecutrix to show that at the time of the incident, the prosecutrix was "Child" within the meaning of provisions of the Act. The burden is on the prosecution to prove that the age of the prosecutrix, on the date of the occurrence, was less than 18 years. As observed above, at the first opportunity, the date of birth of the prosecutrix is not available in the prosecution case. The Investigating Officer has given a requisition to Sarpanch of Gram Panchayat, Panjarepar by which the Sarpancha was requested by the Investigating Officer to furnish the birth

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certificate of the prosecutrix. The said requisition is at Exh.-56. It is dated 25.09.2013 and it appears that it was sent under Outward No.100/2013.

The prosecution has placed on record, the birth certificate issued by the Birth and Death Record Officer, Gram Panchayat, Panjarepar. The said certificate is at Exh.-57. According to the Investigating Officer, the said is obtained by him from Gram Panchayat.

The document Exh.-57, the birth certificate is issued on 16.09.2013. It shows that it is in respect of one female, "Bali". The date of birth is 23.08.1995."

On the touchstone of the aforesaid law laid down by

this Court, it has to be seen whether the prosecution has

established that the prosecutrix was "Child" within the meaning of

Section 2 (d) of the POCSO Act.

13. The evidence of the prosecutrix is silent about her date

of birth. Even on that aspect, her father Prakash (PW2) is silent.

Exh.-54 was given by the Investigating Officer to the

Head Mistress of the school at which the prosecutrix was taking

her education. Though the certificate issued by the Head Mistress

of the said School is placed on record, the said Head Mistress was

not examined by the prosecution. With the result, the said

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certificate remained to be proved. Further, no attempts were made

by the prosecution to produce on record the birth certificate duly

issued by the authorities of the Gram Panchayat. In that view of

the matter, the date of birth of the prosecutrix is not at all proved.

Dr. Raviprakash Meshram has proved the certificate

styled as Age Certificate (Exh.-39). As per the said certificate, the

age of the prosecutrix is between 14 to 15 years. As per the

evidence of Dr. Meshram, he has issued this certificate on the basis

of the X-ray plates. The prosecution case completely lacks in

particulars as to who has taken the X-rays of the prosecutrix.

From the evidence of Dr. Raviprakash, it is clear that he has not

taken the X-rays. It is significant to observe that those X-ray plates

on the basis of which Dr. Meshram has determined the age were

not brought before the Court and are not part and parcel of the

record. In that view of the matter, no importance can be attached

to the certificate Exh.-39 issued by Dr. Raviprakash Meshram to

reach to the conclusion that the age of the prosecutrix was in

between 14 to 15 years.

14. In view of the law laid down by this Court in the matter

of Ravi Anandrao Gurpude, (supra), it was incumbent on the part

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of the prosecution to prove the age of the prosecutrix by adducing

clinching evidence leaving no room of doubt. The prosecution

cannot be allowed to determine the age of the prosecutrix only by

guesswork.

15. I have therefore no doubt in my mind to record a

finding that the prosecution has utterly failed to prove that the

prosecutrix was "Child" to bring the case within Section 4 of the

POCSO Act. Consequently, the conviction under Section 376-D of

the IPC as recorded by the Court below cannot sustain.

However, there is a consistent, cogent and trustworthy

evidence of the prosecutrix on record which is duly supported by

her medical certificate, CA report and DNA report. Therefore, in

my view, the prosecution has successfully proved the guilt of the

appellants for an offence punishable under Sections 376 (g) of the

IPC. That leads me to pass the following order is passed.

ORDER

(i) Criminal Appeal No.456/2015 is partly allowed.

(ii) The judgment and order dated 04.11.2015 passed by Additional Sessions Judge, Darwha, in Special Case No.4/2015 thereby convicting the appellants for an offence punishable under Section

15 apeal456.15A.odt

376-D of the IPC (amended Act of 2013) is quashed and set aside. Instead, the appellants are convicted for an offence punishable under Section 376 (g) of the IPC.

(iii) The appellants are directed to suffer rigorous imprisonment for 10 years.

(iv) Needless to mention that the appellants are entitled to set off under Section 428 of the Cr. P. C.

JUDGE

kahale