Shri. Sandeep @ Sanjay Deoram ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 7519 Bom

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

                                         Criminal Appeal No.158 of 2017

                Shri Sandeep @ Sanjay Deoram Meshram
                age 24 years, Occ.-Labour
                R/o. Adyal Tekdi, Tah. Bramhapuri,
                District-Chandrapur.                                                   ....  Appellant.

                        -Versus-

               State of Maharashtra,
               Through Police Station Officer
               Police Station, Bramhapuri
               District-Chandrapur.                                                     ....  Respondent.
               ------------------------------------------------------------------------------------------
               Mr. S.B. Bissa, Additional Public Prosecutor for State.
               Shri V. P. Mohod, Advocate (Appointed) for the Accused.
               ------------------------------------------------------------------------------------------
                                                    Coram : Mrs. Swapna Joshi, J.

th Dated : 25

September, 2017.

ORAL JUDGMENT

This appeal has been directed against the judgment and

order passed by the learned Special Judge and Ad-hoc Additional

Sessions Judge No.2, Chandrapur in Special POCSO Case No.

71/2014, delivered on 11.4.2016, whereby convicting the accused

under Sections 376(2)(i)(j) of the Indian Penal Code sentencing him

for rigorous imprisonment of ten years and a fine of Rs.5,000/-, in

default to undergo simple imprisonment of three months. The

accused was further convicted for the offence punishable under

Section 3 read with section 4 of the Protection of Children from

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Sexual Offences Act, 2012 and was sentenced to undergo for

rigorous imprisonment for ten years and a fine of Rs.5,000/-, in

default to undergo simple imprisonment for three months.

2] I have heard Mr. S.B. Bissa, the learned Additional

Public Prosecutor for the State. The appellant/accused and his

Counsel remained absent. With the assistance of the learned APP, I

have carefully gone through the record of the prosecution case.

3] The facts leading to prefer this appeal can be

summarised as under :-

The complainant- Smt. Nutan Yogesh Madavi (PW-1)

was residing at Adyal Tekdi, Tah. Bramhapuri, District-Chandrapur

with her husband and two daughters, aged about five and two years

old respectively. The complainant Smt. Nutan and her husband were

working as labourers in the field. The victim who was aged about five

years, was studying in Anganwadi. The house of the accused was

just after two houses from the house of the complainant. On the date

of incident i.e. 18.9.2014 at about 6.00 a.m., the husband of the

complainant left the house and proceeded for his work. The

complainant after finishing her work proceeded for her work at about

11.00 a.m. Her daughters were at home. At about 6.00 p.m. she

along with her husband returned from the work. Her both the

daughters went to sleep after having dinner. Thereafter, the cousin

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sister of the complainant namely Kajal visited her house. Kajal

informed the complainant that at about 12.00 p.m. the daughter of the

complainant and niece of the accused were playing near the Baniyan

tree. At that time the accused called the victim to his house on the

pretext of giving eatable-sweets to her. He took the victim to his

house and closed the door. Kajal told the complainant that the ladies

from that area namely Shantabai, Geetabai, and Gaya were

discussing about the said incident. On 19.9.2014, when the daughter

of the complainant was awakened at about 7.00 a.m., at that time the

complainant enquired with her as to what happed, when she was

playing below the Baniyan tree. At that time her daughter (victim)

informed her that on the earlier day when she was playing with

Chhakuli, the accused took her in his house on the pretext of giving

sweets to her. He took her inside his house and closed the door. He

removed her clothes, made her to lie down, he also removed her

clothes and laid down on her body. She informed that the accused

was shaking his waist. She started crying, thereafter the accused

released her from his clutches. Thereafter, the victim put on her

clothes and came out of the house of accused. The complainant and

her husband proceeded for their work to the field and on returning

back from their work, the victim informed the complainant that there

was a pain in her private part while urinating. The complainant then

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proceeded to the police station along with her husband and daughter.

The police recorded the complaint (Exh.9).

4] At the relevant time API Namdeo Sonkusre (PW-6) was

attached to Bramhapuri Police Station. He recorded the complaint

(Exh.9) of PW-1. On the basis of said complaint, he registered the

offence. PW-6 arrested the accused on 20.9.2014. PW-6 referred the

victim for medical examination to Rural Hospital, Bramhapuri. API

Mahadev Parate (PW-7) recorded the spot panchnama (Exh.16). PW-

7 took charge of clothes Exh.11. PW-7 recorded the statements of the

witnesses. He referred the accused for his medical examination to the

hospital. After completing necessary investigation, chargesheet was

filed. The learned trial Judge framed the charge. On analysis of the

evidence and after hearing both sides, the learned trial Judge

convicted the accused as aforesaid.

5] The learned counsel Mr. Mohod (State appointed)

vehemently argued that learned Judge has not considered the

evidence of the witnesses in right perspective and has erroneously

convicted the accused. The learned Additional Public Prosecutor

contended that learned trial Judge has rightly convicted the accused

after scrutiny of the evidence of the prosecution witnesses.

6] In order to appreciate the rival contentions of both sides,

it would be advantageous to go through the testimony of complainant

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(PW-1), victim- PW-2, PW-4 grandmother of the victim and Medical

Officer Dr. Smt. Jaya Bhongale. (PW-5).

7] So far as the testimony of the complainant is concerned,

according to the complainant (PW-1), the victim was aged about five

years old at the time of incident. The incident occurred on 18.9.2013.

In the morning, she along with her husband proceeded for work. Her

daughter and her father were at home. She returned to home at 5.00

p.m. She prepared food. Both of her daughters went to sleep.

Thereafter, at 8.00 p.m. her cousin sister Kajal came to her house.

She informed that her neighbours Shantabai, Gaya and Gitabai told

her that accused took the victim inside the house and closed the

door. The incident occurred in the afternoon. In the next morning at

about 7.00 a.m., PW-1 enquired with her daughter. On this, the victim

informed to PW-1 that the accused said that he will provide 'Khao'

(sweets) to her and took her to his house. The accused closed the

door of his house, made her to lie down on his bed and he was

moving his waist, before that he removed her clothes. When she tried

to scream, accused pressed her mouth, since she got pain, the

accused released her. In the evening PW-1 proceeded to police

station and lodged her complaint (Exh.9).

8] During the cross-examination PW-1 stated that she

asked Shantabai, Gayabai and Gitabai as to why they had not

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banged the door of the house of the accused when he closed it after

taking her daughter inside. They said that they knocked the door but

he did not open it. PW-2 asked them as to whether they shouted. On

this they said that on raising their shouts many persons gathered

there. They broke open the door and went inside the house of the

accused. He was dragged out of his house. It appears that the PW-1

has exaggerated her version. It was suggested to PW-1 that there

was no injury on the private part of the victim. PW-1 however, denied

it. It was also suggested that two months back her husband had taken

a hand-loan of Rs.2,000/- from the accused and the accused

demanded the said amount, there was quarrel between PW-1 and the

accused. PW-1 denied the said suggestion. The testimony of PW-1 is

not shattered in cross-examination and she is found to be a truthful

witness.

9] The prosecution has examined PW-2 who is the victim.

PW-2 was aged about 5 years old when she deposed before the

Court. The learned trial Judge found that the victim was unable to

understand the sanctity of oath, hence oath was not administered to

her. There is no impediment that the testimony of the child is to be

disbelieved, if oath is not administered to her. No doubt, the evidence

of the child witness is to be scrutinized carefully. According to the

victim (PW-2), she knows the accused Sanjay. He stays at Adyal

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Tekadi. On the day of incident, he called her saying that he will

provide sweets (Kaho). The accused took her inside his house, made

her to lie down on the cot. PW-2 then gestured before the Court by

moving her waist to say that the accused did such act with her. PW-2

then deposed that the accused had removed her clothes as well as

his clothes and closed the door from inside. During cross-examination

PW-2 admitted that her mother told her that the accused is a bad

person. PW-2 admitted during her cross-examination that she will

have to tell the police that the accused removed her clothes and that

the accused moved his waist. The testimony of victim (PW-2)

indicates that she being a child witness, she stated before the Court

that her mother had instructed her to tell before the police. There was

no suggestion that the victim was instructed to depose before the

Court as such. Thus, the victim has deposed before the Court

whatever she remembered. The victim categorically stated after the

incident on the next day. She narrated the incident to her mother.

Finally, the victim denied that she was deposing falsely before the

Court. She also denied that since there was quarrel with the accused

on the say of her mother, she narrated the incident to police falsely.

The testimony of the victim is not shattered on material aspects.

10] The testimony of PW-1 corroborates the testimony of

PW-2. So far as the testimony PW-4 is concerned, she is

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grandmother of victim. She deposed that she knows that the incident

took place on 18.9.2014. She returned from work at 5.30 p.m. The

victim informed her that the accused called her on his house,

removed her clothes, made her to sleep on the bed and he committed

sexual intercourse with her, therefore, she started crying. Therefore,

PW-4 along with the victim's mother (PW-1) proceeded to the house

of the accused. However, he was not available at home. During

cross-examination, it was suggested to the victim that she asked the

victim as to what had happened and she narrated the incident.

However, it is not clear from the cross-examination as to what was

exactly stated by PW-4. In view thereof, it can be said that testimony

of PW-4 is not shaken during the cross-examination. Thus, the

testimony of PW-2 is corroborated to PW-1 and PW-4.

11] So far as medical evidence is concerned, the Medical

Officer Smt. Jaya Bhongale (PW-5) examined the victim on

20.9.2014. She found that her hymen was torn, circumferential,

slightly oedematous margine oedema. She issued the medical

certificate (Exh.23). PW-5 categorically stated that as per her medical

examination, it could be considered that sexual intercourse had

occurred. She opined that victim has been raped. It was suggested in

the cross-examination of the Medical Officer that she has not clarified

that the injury was old or fresh. She further stated that it is possible

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that if a small finger of any person inserted in vagina of a 5 years old,

it may also result in tear of hymen.

12] The testimony of PW-5 indicates that the hymen of the

victim was found torn, circumferential slightly oedematous margine

oedema, indicates that the victim was sexually assaulted although

from the testimony PW-5 it is clear that there was circumferential

slightly oedematous margine oedema on the hymen which indicates

that the injury was fresh and certainly not old. Thus, the prosecution

has proved its case beyond reasonable doubt. There is no reason for

the complainant to make false accusation against the accused by

putting the reputation of her daughter and family at stake.

13] In this regard, Section 29 of POCSO Act reads as under :-

"29..... Presumption as to certain offences.-- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 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.

This clause provides for presumption as to certain offences. It provides that where a person is prosecuted for violating any of the provisions under clauses 3, 5, 7 and 9 of the proposed legislation, and where the victim is a child below the age of sixteen years, the Special Court shall presume that such person has committed the offence, unless the contrary is proved.

14] In case of State of H.P. v. Sanjay Kumar alias Sunny

reported in 2017(3) Mh.L.J. (Cri.)(S.C.) 68, the Hon'ble apex Court

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has held in paragraph 31 as under :-

"31. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the Courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the Court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance."

15] In the instant case, during the cross-examination the

testimony of the victim is not shattered on the material aspects. The

victim disclosed the incident to her mother and her mother has

accordingly lodged complaint in the police station. Under no

circumstances a mother would like to put the reputation of the family

at stake. The medical evidence supports the case of prosecution.

16] In (1996) 2 SCC 384 in case of State of Punjab v.

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Gurmit Singh and others, in paragraph 8 the Hon'ble apex Court has held as under :-

"8. .......The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."

17] In case of Aman Kumar and another v. State of Haryana, reported in (2004) 4 SCC 379, the Hon'ble apex Court has held as under :-

"It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional."

18] In view of the facts and circumstances, it is held that the

prosecution has proved its case beyond reasonable doubt. There is

no infirmity in the judgment and order delivered by the learned trial

Judge. The learned trial Judge had an opportunity to examine the

demeanour of the victim as well as her mother and on analysing of

the prosecution evidence, the learned trial Judge has rightly convicted

the accused. There is no illegality or perversity in the judgment

passed by the learned trial Judge. Hence, the order.

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                                                           ORDER
              i]        Criminal Appeal No.158 of 2017 is dismissed.

              ii]       The   judgment   and   order   passed   by   the   learned   Special

Judge and Ad-hoc Additional Sessions Judge, No.2,

Chandrapur in Special POCSO Case No. 71/2014 on

11.4.2016 is confirmed and maintained.

iii] Accused shall surrender to his bail bond.

iv] The fees, payable to learned counsel Shri V. P. Mohod

appointed by the High Legal Services Sub Committee,

Nagpur for the appellant, is quantified at Rs.5,000/-

(rupees five thousand only).

JUDGE

ingole