Bombay High Court
Bandu S/O. Natthuji Raut vs The State Of Maharashtra Thr. ... on 4 September, 2017
Bench: R. B. Deo
apeal398.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.398 OF 2016
Bandu s/o Natthuji Raut
Age : 40 years, Occ: Nil,
R/o : Bori, Tahsil : Ralegaon,
District : Yavatmal. ....... APPELLANT
...V E R S U S...
The State of Maharashtra
through P.S.O. Ralegaon
Police Station, Dist. Yavatmal. ....... RESPONDENT
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Shri R.D. Hajare, Advocate (Appointed) for Appellant.
Shri H.R. Dhumale, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
4 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The appellant seeks to assail judgment and order
dated 09.05.2016 in Special Case (POCSO) 37/2013 delivered by
the Special Judge, Yavatmal, by and under which, the appellant is
convicted of offences punishable under sections 451, 376 (2)(i)(j)
(1) of the Indian Penal Code and section 4 and 6 of Protection of
Children from Sexual Offences Act, 2012 (for short 'POCSO Act')
and is sentenced to suffer rigorous imprisonment for ten years and
fine of Rs.5000/- for offence punishable under section 376 (2)(i)
(j)(1) of I.P.C. and section 6 of POCSO Act.
2] Heard Shri Hajare, the learned counsel for the
appellant-accused (hereinafter referred to as the "accused") and
Shri H.R. Dhumale, the learned Additional Public Prosecutor for
the State.
3] Shri R.D. Hajare, the learned counsel for the accused
has a two fold submission to advance. He contends that the
evidence on record is grossly insufficient to bring home the charge
under sections 451, 376 (2)(i)(j)(1) of I.P.C. and section 4 and 6
of the POCSO Act. Shri Hajare contends that the entire
prosecution case is based on the testimony of two child witnesses
who according to the prosecution are eye witnesses to the
incident. Shri Hajare would contend that the victim is admittedly
mentally challenged and was not examined during the trial. P.W.1
Shri Manohar Dandekar is examined since he has recorded the
statement of the victim. The learned counsel for the accused
would urge, which is the second submission in the alternate, that
the evidence of P.W.1 does not suggest sexual intercourse and
even if the entire testimony of P.W.1 is taken at face value, the
only offence which is made out is under section 354-A and 354-B
of I.P.C. read with section 8 of POCSO Act. Shri Hajare invites my
attention to the testimony of the two child witnesses Mayur and
Gayatri who are examined as P.W.2 and P.W.4 respectively.
The testimony of P.W.4 Gayatri is subjected to severe criticism on
the ground that the witness admits that she was tutored.
The testimony of the other child witness Mayur is also subjected
to similar criticism. Shri Hajare, the learned counsel for the
accused would submit that even if arguendo the testimony of the
two child witnesses is considered as reliable and believable, the
testimony does not make any reference to an act of penetration of
the male organ in the vagina of the victim. Shri Hajare would urge
that even if the evidence of two child witnesses is considered
credible, the prosecution has not established the ingredients of
offences punishable under sections 451, 376 (2)(i)(j)(1) of I.P.C.
and section 4 and 6 of the POCSO Act.
4] Shri Dhumale, the Additional Public Prosecutor, per
contra, would urge that there is no reason why the evidence of the
two child witnesses is Mayur and Gayatri should not be
considered as confidence inspiring. A stray admission by Gayatri
that she and Mayur were tutored is not sufficient to discard the
testimony of Mayur and Gayatri. Looking at the respective ages of
Mayur and Gayatri when they entered the witness box, it is but
obvious that the witnesses would be given some idea as to what to
expect in the witness box. It is true that in response to suggestion
by the defence Gayatri admits that she was tutored. But then, such
an admission has to be viewed in the context of the age of the
witness and the real possibility of the witness not really
understanding the import or implication of either the question or
the answer. It is quite possible and indeed probable that the two
child witnesses may have been told either by the elders or
somebody else that they must speak the truth or to depose in the
Court about the happenings on the date of the incident without
any fear or apprehension. Shri Dhumale, the learned A.P.P. would
then, urge that other than the evidence of the victim, as has come
on record through P.W.1 Manohar Dandekar, and the evidence of
the two eye witnesses Mayur and Gayatri, the medical evidence is
clinching. The ocular evidence is more than amply corroborated
by the medical evidence. The evidence of the eye witnesses is also
corroborated by the evidence of P.W.3 the father of the victim
who noticed swelling and reddishness on the private part of the
victim. The learned A.P.P. would urge that the judgment
impugned is unexceptionable and does not suffer from any
infirmity, in law or on facts.
5] I have given my anxious consideration to the evidence
on record in the light of the submissions of Shri Hajare for the
accused and Shri Dhumale, the learned A.P.P. for the State.
6] The prosecution case is substantially based on the
ocular evidence of the victim and the two eye witnesses Mayur
and Gayatri. The learned counsel for the accused relies on a
judgment of the Hon'ble Supreme Court in K. Venkateshwarlu vs.
The State of Andhra Pradesh reported in 2012 ALL SCR 2328 and
contends that the evidence of a child witness must receive a
careful evaluation and it would be extremely unsafe to rely on the
evidence of the child witness in the absence of corroboration.
The juristic principle that the evidence of the child witness needs
to be tested on the anvil of caution and corroboration is too well
recognized in criminal jurisprudence for this Court to have any
demur with the proposition which Shri Hajare is canvassing.
The evidence of the child witnesses must indeed be evaluated
carefully and ordinarily the Court must insist on corroboration.
I intend to precisely do that.
7] The victim is a physically and mentally challenged
child and was ten years old as on the date of the incident.
The case of the prosecution is that the victim was in a wheel chair
outside her house along with Mayur and Gayatri who are
examined as P.W.2 and P.W.4 respectively. The accused lifted the
victim from the wheel chair, carried her inside the house and
committed sexual intercourse. The learned Special Judge has held,
and rightly so, that the victim is not a competent witness and her
non-examination would not dent the prosecution case. P.W.1 who
is a Special Teacher in a school for mentally retarded children
recorded the statement of the victim. Manohar Dandekar who
recorded the statement of victim is subjected to extensive
cross-examination. The learned counsel for the accused invites my
attention to the examination-in-chief of P.W.1 and contends that
the only statement attributed to the victim is that the accused
removed her nicker, slept over her person and touched his private
organ to her private part. The learned counsel also invites my
attention to the evidence of the two child witnesses Mayur and
Gayatri and contends that neither Mayur nor Gayatri speak of a
penetrative act and all that is deposed by both Mayur and Gayatri
is that the accused slept on the person of the victim. I am afraid,
I am not inclined to view the evidence in the self-serving manner
in which the learned counsel for the accused would view the
same. Mayur who is 14 years when he entered the witness box
clearly states that he witnessed the accused sleeping over the
victim and doing the sexual act (rocking motions). The witness
then deposes that the accused, after completing the act, inserted
penis inside the trousers and pulled up the chain of the trouser.
The witness deposes that he noticed reddishness and swelling on
the private part of the victim. Mayur's testimony is not shaken in
the cross-examination. He denies the suggestion that he was
tutored by P.W.3 and the police. I have no hesitation in holding
that the testimony of Mayur is implicitly reliable and confidence
inspiring. The other child eye witness Gayatri deposes that the
accused was sleeping on the person of the victim, both she and
Mayur witnessed the incident, that Mayur confronted the accused
as to why he was sleeping over the person of the victim, and then
the accused left. Gayatri indeed admits in the cross-examination
that P.W.3 and her father told me that she has to depose before
the Court and that since same date she and Mayur were preparing
for evidence. She gives a categorical admission in the
cross-examination that her statement was tutored and who was
Mayur's. However, she denies the suggestion that she is deposing
fall suit.
8] The medical evidence conclusively corroborates the
case of the prosecution that there was a penetrative sexual
intercourse. The victim was examined by P.W.6 Dr. Archana
Rathod. She has deposed that on clinical examination she noticed
that the victim was mentally challenged and that there was
reddishness over labia, minora and fourchette and two small
abrasions of size 0.5 cm. over the buttock. Hymen was torn,
congestion and tenderness was visible around the torn hymen.
The Doctor also noticed reddishness at the vagina. P.W.6 has
proved the medical certificate at Exh.36 and has categorically
stated that the findings are consistent with recent sexual
intercourse-assault. The cross-examination does not take the case
of the defence any further. The ocular evidence is clinchingly
corroborated by the medical evidence. I have no hesitation in
holding that the penetrative sexual assault is proved beyond any
reasonable doubt.
9] The learned counsel for the accused has also relied on
the 2013 All MR (Cri.) 4167 Bandu @ Daulat s/o Gulabrao Itankar
vs. The State of Maharashtra and 2015 All MR (Cri.) 501 Dhanraj
s/o Shivram Tagde vs. The State of Maharashtra. In Dhanraj Tagde,
this Court held that the medical evidence and the C.A. report did
not support the prosecution case even to the slightest extent and
conviction recorded on the basis of only one description word, is
not sustainable. It would be necessary to notice the factual
scenario in which, in Bandu Itankar this Court set aside the
conviction. In Bandu Itankar this Court was considering a factual
scenario in which the prosecution did not examine any eye
witness to the incident. The victim who was mentally challenged
was not examined and reliance was placed by the prosecution
only on the testimony of the mother of the victim and the teacher
who could understand the gestures of the victim. The medical
evidence did not suggest any injury on or near the genitals.
This Court held that if the mother of the victim could understand
language of victim girl by gestures, evidence ought to have been
recorded in camera with the help of expert and her mother. I need
not dwelve on this aspect any more as Bandu Itankar case is
clearly distinguishable on facts. Be it noted, that in Bandu Itankar
no eye witness was available for examination and none was
examined. The victim was not examined and the teacher and the
mother of the victim who understood the gestures of the victim
were examined in the Court. The observations in Bandu Itankar
must be held to be observations made in the context of the facts of
that case. Even if arguendo the contention of the learned counsel
Shri Hajare is to be accepted, the only result would be that the
evidence of the victim would have to be kept out of the
consideration. I have already recorded a finding that the evidence
of P.W.2 and P.W.4 who are eye witnesses, which evidence is
corroborated by P.W.3 and the medical evidence, is more than
sufficient to establish the offence beyond any reasonable doubt.
10] The presumption of innocence, as is held by the
Hon'ble Supreme Court, is not a fetish. The evidence of the child
witnesses, in my opinion, is confidence inspiring and even the
alternate submission that at the most the sexual act will be an
offence under section 376 of I.P.C. is to be noted only for
rejection, in the teeth of the ocular evidence which is corroborated
by the medical evidence on record.
11] The appeal is absolutely unmerited and is dismissed.
The fees of the learned Counsel who is appointed for the appellant
is quantified at Rs.5,000/-.
JUDGE
NSN
