Manohar S/O. Sukhadeo Patil (In ... vs The State Of Maharashtra Thr. P.S. ...
2017 Latest Caselaw 8861 Bom

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

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 :

(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

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.

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

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

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.

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.

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

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.

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