Ashok S/O Yeshwant Gharat vs The State Of Maharashtra
2017 Latest Caselaw 6672 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

               CRIMINAL APPEAL NO.9 OF 2017 
                            WITH
        CRIMINAL REVISION APPLICATION NO. 4 OF 2017

Ashok s/o. Yeshwant Gharat,
Age : 61 years, Occ. Nil.,
r/o. Behind Swami Samarth Temple,
Near Madhav Talkies, Sangamner,
Tq. Sangamner, 
Dist. Ahmednagar                            ..Appellant

               Vs.

The State of Maharashtra                    ..Respondent


                         ----
Mr.S.K.Shinde, Advocate for appellant

Mr.K.D.Mundhe, APP for respondent 
                         ----

                         CORAM : SANGITRAO S. PATIL, J.
                   RESERVED ON : AUGUST 09, 2017
                 PRONOUNCED ON : SEPTEMBER 01, 2017


JUDGMENT  :

Heard

2. Being aggrieved by the conviction and

sentence for the offence punishable under Section

376(2)(n) of the Indian Penal Code ("I.P.C.", for

2 cri.appeal.9-2017

short) and under Section 3 punishable under Section 4

of the Protection of Children from Sexual Offences

Act, 2012 ("POCSO", for short) recorded in Sessions

Case No.19 of 2016 by the learned Additional Sessions

Judge, Sangamner, on 20.12.2016, the original accused

has preferred this appeal.

3. It is alleged that on 27.11.2015, 28.11.2015

and 30.11.2015, the appellant committed rape on the

victim girl, aged about 11 years, in Vajreshwari

temple, situate near Madhav Talkies, at Sangamner, by

extending threats to the victim of killing her

parents and maternal uncle.

4. The State/prosecution examined nine

witnesses to prove the guilt of the appellant for the

above-mentioned offences. After evaluating the

evidence produced on record, hearing the learned

A.P.P. for the prosecution and the learned Counsel

for the appellant, the learned trial Judge found that

the prosecution established the guilt of the

3 cri.appeal.9-2017

appellant for the above-mentioned offences, beyond

reasonable doubt. The learned trial Judge, therefore,

convicted the appellant for the said offences and

directed him to suffer rigorous imprisonment for

seven years and to pay a fine of Rs.500/- for the

offence punishable under Section 376(2)(n) of the

I.P.C. and also under Section 3 punishable under

Section 4 of the POCSO Act; and further sentenced him

to suffer simple imprisonment for one month for the

offence punishable under Section 506 of the I.P.C.

5. The learned Counsel for the appellant

submits that the appellant is aged about 61 years.

The victim was residing with her maternal uncle in a

house allotted to him under Gharkul Scheme. The

appellant also was residing in one of such houses in

the same locality. The sister of the appellant

namely, Vimal was having one of such houses which was

adjoining the house of the maternal uncle of the

victim. Her maternal uncle wanted to purchase that

house but Vimal sold it to somebody else. Therefore,

4 cri.appeal.9-2017

the maternal uncle of the victim had a grudge against

the appellant and he prepared a false case against

the appellant in order to take revenge. He submits

that the evidence of the victim and other witnesses

is not at all believable. The medical evidence does

not support the case of the prosecution that there

was sexual intercourse with the victim girl. No

circumstantial evidence is available to prove the

guilt of the appellant. According to him, the

appellant has been wrongly convicted and sentenced

for the above-mentioned offences.

6. On the other hand, the learned A.P.P.

submits that there was no reason for the victim to

state false against the appellant. The evidence of

the victim is quite natural, probable and believable.

The defence of the appellant is not at all probable.

He submits that for constituting the offence of rape,

slightest penetration is sufficient. There is medical

evidence to show that there were nail marks over the

right breast and rupture of hymen of the victim.

5 cri.appeal.9-2017

There were blood stains noticed on the garments of

the victim. He submits that the evidence of the

victim has been corroborated by the eye witnesses.

According to him, the appellant has been rightly

convicted by the trial Court.

7. The minimum punishment for the offence

punishable under Section 376(2)(n) of the I.P.C. is

rigorous imprisonment for a period of ten years. No

discretion is left with the Court to reduce the

sentence of imprisonment less than ten years,

however, the learned trial Judge sentenced the

appellant for the said offence with rigorous

imprisonment for seven years. Therefore, Suo-Motu

Criminal Revision Application No.4 of 2017 was

registered and notice was issued to the appellant to

show cause as to why the sentence of imprisonment

shall not be enhanced.

8. The learned Counsel for the appellant

submits that considering the age of the appellant,

6 cri.appeal.9-2017

the learned trial Judge has been pleased to reduce

the sentence of imprisonment to seven years.

According to him, no offence is established against

the appellant and even if it is assumed for a while,

that the said offences are established against him,

the punishment is not liable to be enhanced

considering the age of the appellant.

9. The learned A.P.P. submits that considering

the minimum sentence prescribed for the offence

punishable under Section 376(2)(n) of the I.P.C., the

punishment is required to be enhanced at least to the

extent of minimum that is prescribed for the said

offence.

10. The prosecution has produced bona fide

certificates (Exhs.10 and 11) issued by Headmaster,

Siddharth Vidyalaya, Sangamner, showing that the

victim was studying in 5th standard in that school and

her date of birth is 11.06.2004. The genuineness of

these documents has not been disputed by the

7 cri.appeal.9-2017

appellant. As such, her date of birth being

11.06.2004, she was aged about 11 years 5 months on

the date of the incident.

11. The victim girl states at Exh.27, that on

30.11.2015, she came back from the school and started

playing alone on the road in front of Vajreshwari

temple. At that time, the appellant came there and

took her inside the temple by holding her hand. The

appellant placed his palm on her mouth. Therefore,

she shouted. The appellant asked her not to shout and

assured that he would not do anything. Therefore, she

did not shout. The appellant then removed all of her

clothes. He then forced her to sleep on the bed that

was lying inside the room. He removed his own clothes

also. He then put his organ of urine in her organ of

urine and raped her. She states that the appellant

slapped her twice or thrice and asked her not to

disclose the said fact to anyone or else, threatened

to kill her parents and maternal uncle. After some

time, her maternal aunt - Asha (PW 1)(Exh.22) came

8 cri.appeal.9-2017

there. As Asha (PW 1) called the victim, the

appellant asked the victim to wear the clothes.

Thereafter, she went outside the temple. As regards

the misdeed committed by the appellant, Asha (PW 1)

asked him as to whether it was befitting him. Asha

(PW 1) then took the victim to her house, where the

victim narrated her about the incident.

12. Vijay (PW 4)(Exh.28) is the Panch Witness to

the spot panchnama (Exh.29). It has come in his

evidence that the spot of the incident is a temple

and one room which is a part of that temple. A cot

was lying in that room. The spot panchnama (Exh.29)

shows the description of the temple and the room

attached thereto. It also contains a rough map

thereof. From this evidence, it is clear that there

was a room, which was a part and parcel of the

temple, in which there was a cot, whereon the

incident took place.

9 cri.appeal.9-2017

13. Sonali (PW 5) (Exh.30) is the sister of the

victim girl. The victim and Sonali (PW 5) were

residing at the house of their maternal uncle i.e.

Vinayak (PW 6)(Exh.31). Sonali (PW 5) states that she

was studying in eighth standard in Siddharth

Vidyalaya, Sangamner. On the day of the incident i.e.

on 30.11.2015, her school hours were 7.15 a.m. to

12.15 O'clock. After coming from the school, she

completed her daily work. When she did not see the

victim anywhere, she started searching for her at

about 2.00 p.m. to 2.30 p.m. She went to Vajreshwari

temple along with her brother Akshay and gave calls

for the victim. However, there was no response from

the victim. The door of the temple was closed. She

then peeped inside the temple by pushing aside the

curtain of the temple. She noticed that the appellant

was sleeping on the body of the victim by removing

the clothes and there were no clothes on the body of

the victim as well. Then Akshay and herself called

10 cri.appeal.9-2017

Asha (PW1) and told her about the facts noticed by

them.

14. Asha (PW 1) states that on the call of

Sonali (PW 5) and Akshay, she went to see what was

going on inside the Vajreshwari temple. She saw

inside the temple by removing the curtain that the

appellant was sleeping on the body of the victim and

there were no clothes on the persons of both of them.

She states that the appellant committed sexual

intercourse with the victim. She raised shouts. Then

the appellant came outside the temple by wearing his

clothes hurriedly. She asked the appellant as to

whether it was befitting to him, whereon the

appellant challenged her to do whatever she wanted to

do. One Seema Jadhav and Mohan Jadhav also came there

and they also questioned the appellant about his

misdeeds.

15. Asha (PW 1) states that she took the victim

to her house. At that time, the victim was

11 cri.appeal.9-2017

frightened. The victim states that she told Asha

(PW1) that on Friday and Saturday also, the appellant

had committed sexual intercourse with her. Asha (PW1)

took the victim to the Police Station and lodged the

report (Exh.23) against the appellant. The contents

of the F.I.R. (Exh.23) corroborate the version of

Asha (PW 1).

16. From the evidence of the victim, which is

supported by Sonali (PW 5) and Asha (PW 1), it is

clear that the appellant was sleeping over naked body

of the victim after removing his own clothes. The

evidence of these witnesses is quite consistent.

Nothing has been illicited in their cross-examination

to doubt their evidence about the position in which

the appellant and the victim were seen at the time of

the incident.

17. Now it will have to be seen whether there is

medical evidence to establish that the appellant

committed sexual intercourse by actually penetrating

12 cri.appeal.9-2017

his male organ into female organ of the victim. Dr.

Bhavar (PW 7)(Exh.32) states that he conducted

medical examination of the victim on 01.12.2015 and

noted his observations in the Certificate (Exh.34).

He found that there were three nail marks over the

right breast of the victim. There were no marks of

violence over other parts of her body. He found that

her labia majora and minora were well developed. No

marks of violence were noted over external genitalia.

No discharge was noted from vagina. Hymen was

ruptured. No bleeding was noted. No internal vaginal

injury was noted. According to him, the findings

suggested forceful attempt of sexual assault. In his

cross-examination, he states that the hymen of the

victim was ruptured prior to more than seven days.

18. The appellant also was examined by the

Medical Officer - Dr.Gote on 03.12.2005 at about 4.30

p.m. in Rural Hospital, Sangamner. The medical

certificate (Exh.35) is produced by the prosecution.

The genuineness of the said certificate has not been

13 cri.appeal.9-2017

disputed by the appellant and therefore, it came to

be exhibited without its formal proof by examining

Dr.Gote. It was noted in the said certificate that

there were no marks of external injury on any part of

the body. No abnormality noted. No external injury

was noted on external genitals or on any part of the

body. It is noted that as the appellant had not given

semen sample, it was not possible to give opinion,

whether he was capable or not for committing sexual

intercourse.

19. The garments of the victim and that of the

appellant were seized. The quilt and blanket were

also seized from the spot. All these clothes were

sent to the Chemical Analyst for report. The report

of the Chemical Analyst shows that on the top of the

victim, there were two blood stains, each of 0.5 c.m.

in diameter, on the back lower portion. Her Salwar

was stained with blood on middle portion. Her nicker

was stained with blood on middle portion and appeared

to be washed. The group of blood found on the top of

14 cri.appeal.9-2017

the nicker could not be ascertained. However, the

blood that was on the Salwar was of 'O' group, which

is that of the victim. No semen was detected either

on the clothes of the victim or that of the

appellant. No blood was detected on the clothes of

the appellant. No semen or blood was detected on the

quilt or blanket.

20. It is not the version of the victim that the

appellant caused nail marks on her right breast. Asha

(PW 1) also does not state that the nail marks were

noted on the right breast of the victim when she was

brought from the spot of the incident. Therefore, the

finding of the nail marks on her right breast, would

not be helpful to the prosecution to incriminate the

appellant.

21. The medical evidence shows that hymen of

the victim was ruptured prior to more than seven days

of her examination. Admittedly, she was examined on

01.12.2015. The victim deposed that on Friday and

Saturday also, the appellant had committed sexual

15 cri.appeal.9-2017

intercourse with her, however, she has not

specifically stated as to which Friday or Saturday.

Even if it is assumed that it was the Friday and

Saturday preceding the date of the incident i.e.

Monday, November 30, 2015, the medical evidence

showing rupture of her hymen prior to more than seven

days of her examination, cannot be connected with the

alleged sexual intercourse dated 27.11.2015,

28.11.2015 and 30.11.2015. No blood, no vaginal

discharge, no vaginal injury or any injury on the

body of the victim, excepting the above-referred nail

marks on the right breast, were noticed when she was

medically examined on 11.12.2015. Thus, the medical

evidence rules out the possibility of actual sexual

intercourse committed on the victim either on

27.11.2015, 28.11.2015 or 30.11.2015. The medical

evidence does not support the case of the prosecution

about actual penetration or sexual intercourse by the

appellant with the victim on the above-mentioned

dates.

16 cri.appeal.9-2017

22. The ocular evidence of the victim

corroborated by the evidence of Asha (PW 1) and

Sonali (PW 5), however, makes it sufficiently clear

that the appellant committed sexual assault as

explained in Section 7 of the POCSO Act. Section 7

of the POCSO Act reads as under :-

"7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

23. As per clause (6) of Section 375 of the

I.P.C., a man is said to have committed rape if he

has sexual intercourse with a woman with or without

her consent, when she is under 16 years of age.

Though the victim states that the appellant

17 cri.appeal.9-2017

penetrated his male organ into her vagina, her

evidence is not supported by medical evidence. It

seems that before the appellant could commit sexual

intercourse with the victim, Sonali (PW 5) reached

there followed by Asha (PW 1), which made the

appellant to withdraw himself from proceeding further

and ultimately, he could not succeed in having

penetrative sexual intercourse. However, the evidence

on record is sufficiently clear to show that he had

made the victim to put off her clothes, he had

removed his own clothes, slept on the body of the

victim and before he penetrated his male organ into

the vagina of the victim, the above-named witnesses

interrupted and made him difficult to complete the

sexual intercourse. This fact sufficiently makes it

clear that the appellant attempted to commit rape on

the victim made punishable under Section 511 read

with Section 376 of the I.P.C.

24. There is no dependable evidence to show that

prior to 30.11.2015 also, the appellant actually

18 cri.appeal.9-2017

committed sexual intercourse with the victim

particularly on Friday and Saturday preceding the

date of the evidence. In fact, the evidence of the

victim in respect of the alleged acts of sexual

intercourse committed on Friday and Saturday is very

vague and general. She has not given any particular

time and the details of the alleged sexual

intercourse. The medical evidence also does not

support the fact of committing sexual intercourse

with the victim within a period of seven days of

30.11.2015. In the circumstances, the prosecution

cannot be said to have established guilt of the

appellant for the offence punishable under Section

376(2)(n) of the I.P.C.

25. The appellant is charged for the offence

under Section 3 punishable under Section 4 of the

POCSO Act, on the allegation of committing

penetrative sexual assault. Since there is no

evidence to prove that there was penetrative sexual

assault committed by the appellant, the appellant

19 cri.appeal.9-2017

cannot be said to have rightly convicted for the said

offence. Considering the facts and circumstances

of the case, I hold that the offence under Section 7

punishable under Section 8 of the POCSO Act of

committing sexual assault on the victim has been

established beyond reasonable doubt against the

appellant.

26. As per Section 29 of the POCSO Act, when a

person is prosecuted for committing or abetting or

attempting to commit any offence under Section 3, 5,

7 and Section 9 of this Act, the Special Court shall

presume that such person has committed or abetted or

attempted to commit the offence, as the case may be,

unless the contrary is proved. The appellant has not

produced any evidence or has not been able to shatter

the evidence of the prosecution disclosing that he

committed sexual assault on the victim. The appellant

is, therefore, liable to be convicted for the offence

under Section 7 punishable under Section 8 of the

POCSO Act. The maximum punishment for the offence

20 cri.appeal.9-2017

under Section 7 is imprisonment of either description

for a term which shall not be less than three years

but which may extend to five years and shall also be

liable to fine.

27. As per sub-section (1), Section 376 of the

I.P.C., whoever, except in the cases provided for in

sub-section (2), commits rape, shall be punished with

rigorous imprisonment of either description for a

term which shall not be less than seven years, but

which may extend to imprisonment for life, and shall

also be liable to fine.

28. In the present case, though it is not

established that the appellant committed rape on the

victim, the prosecution has proved beyond all

reasonable doubts that he attempted to commit rape on

the the victim, which is punishable under Section 511

read with Section 376 (1) of the I.P.C. and

accordingly, he is liable to be punished for

imprisonment of any description provided for the said

21 cri.appeal.9-2017

offence, or the term which may extend to one-half of

the imprisonment of life, or, as the case may be one-

half of the longest term of imprisonment provided for

that offence or with such fine as is provided for the

offence, or with both. Considering the age of the

appellant, the fact that he is neither a previous

convict nor a person having criminal antecedents and

the nature of the offence established against him, I

am of the view that it would be just, proper and

expedient to sentence him for the offence of

attempting to commit rape with rigorous imprisonment

for five years and fine of Rs.500/-. The sentence

prescribed for the offences of rape/attempt to commit

rape being greater in degree, the appellant is liable

to be punished for this offence only and not for the

offence under Section 7 punishable under Section 8 of

the POCSO Act vide Section 42 of the said Act.

29. The victim girl specifically states that at

the time of the incident, the appellant threatened to

kill her parents and uncle, in case she disclosed

22 cri.appeal.9-2017

them about the incident. She states that she was

terribly frightened. When Ashabai (PW 1) asked her

about the incident, she slowly disclosed about the

incident to Ashabai (PW 1). Ashabai (PW 1) also

states that the victim girl was frightened when she

was taken to her house after the incident. This

evidence has not been shattered in the cross-

examination of these witnesses. It is clear from

their evidence that because of the threat extended

by the appellant, the victim got frightened. The

appellant, thus, threatened the victim girl with

intent to cause alarm to her to deter her from

disclosing about the incident to anybody. The

prosecution has, thus, proved that the appellant

criminally intimidated the victim girl and committed

the offence punishable under Section 506 of the

I.P.C. The learned trial Judge has rightly convicted

and sentenced the appellant for the said offence.

This part of the impugned judgment and order does not

call for any inference.

23 cri.appeal.9-2017

30. The learned trial Judge did not consider the

facts of the case as well as the evidence on record

correctly and properly, and wrongly held the

appellant guilty of the offence of committing rape,

though the medical evidence did not support the

version of the victim girl about penetrative sexual

assault. The impugned judgment and order will have

to be modified accordingly by setting aside

conviction of the appellant for the offences under

Section 3 punishable under Section 4 of the POCSO Act

and under Section 376(2)(n) of the I.P.C.

31. Since the prosecution failed to establish

guilt of the appellant for the offences under Section

3 punishable with Section 4 of the POCSO Act and

under Section 376(2)(n) of the I.P.C., the question

of enhancing the sentence does not survive. Criminal

Revision Application No.4 of 2017 is liable to be

dismissed.

24 cri.appeal.9-2017

32. In the result, I pass the following order :-

(i)            The appeal is partly allowed.


(ii)           The   impugned   judgment   and   order   convicting 

and sentencing the appellant for the offences under

Section 3 punishable under Section 4 of the

Protection of Children from Sexual Offences Act, 2012

and under Section 376(2)(n) of the Indian Penal Code,

are set aside and instead, he is convicted for the

offences under Section 7 punishable under Section 8

of the Protection of Children from Sexual Offences

Act, 2012 and under Section 511 read with sub-section

(1), Section 376 of the Indian Penal Code.

(iii) The appellant is sentenced to suffer

rigorous imprisonment for five years and to pay a

fine of Rs.500/-, in default, to suffer rigorous

imprisonment for one month.

(iv) The conviction and sentence recorded

against the appellant for the offence punishable

25 cri.appeal.9-2017

under Section 506 of the Indian Penal Code are

maintained as they are.

(v) The substantive sentences of imprisonment

shall run concurrently.

(vi) The appellant be given set off from

01.12.2015 till today vide Section 428 of the Code of

Criminal Procedure.

(vii) Criminal Revision Application No.4 of 2017

is dismissed.

[SANGITRAO S. PATIL] JUDGE

kbp