Bombay High Court

Dharmendra S/O. Keshav Nagdevte vs The State Of Maharashtra Thr. The ... on 8 January, 2018

Bench: Ravi K. Deshpande

                                       1
                                                                  apeal170.17.odt

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

                               Criminal Appeal No.170 of 2017


          Dharmendra s/o Keshav Nagdevte,
          Aged 29 years,
          Occupation - Labour,
          R/o Ladbori, Tah. Sindewahi,
          District - Chandrapur.                                   ... Appellant
                                                                        (In Jail)

               Versus

          The State of Maharashtra,
          through the Police Station Officer,
          Police Station Sindewahi,
          Chandrapur.                                              ... Respondent



          None for Appellant.
          Ms   H.N.   Jaipurkar,   Additional   Public   Prosecutor   for 
          Respondent.


                      Coram : R.K. Deshpande & M.G. Giratkar, JJ.

Date of Reserving the Judgment : 4-1-2018

Date of Pronouncing the Judgment : 8

-1-2018

Judgment (Per R.K. Deshpande, J.) :

1. The challenge in this appeal is to the conviction of

appellant-accused Dharmendra s/o Keshav Nagdevte for the

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offence punishable under Section 376(2)(f)(i) of the Indian

Penal Code. The accused is also convicted for the offence

under Section 5(m)(n) punishable under Section 6 of the

Protection of Children from Sexual Offences Act, 2012. The

accused is sentenced to suffer rigorous imprisonment for life

and to pay a fine of Rs.50,000/- for conviction for each such

offence. The accused has preferred this appeal challenging the

judgment and order dated 25-11-2016 delivered in Special

(POCSO) Case No.59 of 2015.

2. The incident occurred on 23-3-2015 at about

10.00 p.m. at Mouza Ladbori, Tahsil Sindewahi, District

Chandrapur. The accused was charged for committing rape on

his niece Ku. Akanksha d/o Sandip Nagdevte, aged about seven

years. PW 4 Pournima is the mother of the victim, who lodged

a complaint on 26-3-2015 at Exhibit 25 in the Police Station in

respect of the offences. The FIR was registered on 26-3-2015

at 22.00 hours. She states in her deposition that on the day of

incident, the accused, who is the uncle of the victim, came to

her house in the night, and at that time, she herself, the victim,

and Sapna, the real sister of the victim, were present in the

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house. PW 4 Pournima went outside and sat with the

neighbouring women, whereas the victim-daughter and sister

Sapna were sleeping on the separate cots inside the house.

When she came to the house, daughter Sapna told her that the

accused slept on the person of the victim and when she went

inside, she found that the knicker of the victim was removed

upto her knee and she was covered with shawl. She saw the

semen on the frock of the victim as well as on the quilt and the

cot. She wiped out the same. The victim complained about

burning her vaginal portion. The husband of PW 4 and the

father of the victim was not in the house and he returned after

three days. Thereafter, a report was lodged in the Police

Station on 26-3-2015.

3. The victim was sent to Civil Hospital, Chandrapur, for

medical examination. The police seized white coloured lining

shirt, frock and knicker from the victim. The seizure

panchanama was drawn. The police also seized the quilt and

one torn shirt from PW 4. The prosecution examined the

prosecutrix as PW 1, the sister Sapna as PW 2, Pournima, the

mother of the victim, as PW 4, and Sandip, the father of the

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victim, as PW 5, to depose the theory of the prosecution.

Dr. Jaya Bhongle, PW 8, is the Medical Officer, who conducted

medical examination of the victim and submitted her report at

Exhibit 49, concluding that "hymen appeared torn so sexual

assault had occurred".

4. The Sessions Court relies upon the evidence led by the

prosecution to record the finding that the accused being the

uncle of the victim, committed an offence of rape upon the

victim, who was minor. It holds that the medical evidence

produced is in corroboration of the testimony of the witnesses

examined by the prosecution. It holds that the sexual assault

has been proved. It considers the reports of the Chemical

Analyzer at Exhibits 72 to 74, and holds that though neither

the blood or the semen is detected on the quilt, full shirt, half

shirt, frock, underwear, barmuda, T-shirt and knicker (torn),

the same cannot be fatal to the prosecution, because the

incident took place on 23-3-2015 and the offence was

registered on 26-3-2015. It holds that the delay in lodging the

FIR was sufficiently explained, and when the prosecutrix was

sent for medical examination, it was found that she had already

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changed her clothes and there was no stain found over her

person or clothes. It holds that though the blood sample and

the pubic hair sample of the accused were also seized, the

inconclusiveness of the report of the Chemical Analyzer would

not be fatal, particularly when the sexual assault is established.

5. The Court relies upon the oral evidence of PW 1, the

victim, PW 2 Sapna, the sister, PW 4 Pournima, the mother,

and PW 5 Sandip, the father of the victim, to hold that the

accused has committed the act of rape on the minor child

Ku. Akanksha. The Court further relies upon the oral evidence

of PW 8 Dr. Jaya and the medical report at Exhibit 49 to hold

that there was a sexual assault on the victim. Though the

reports of the Chemical Analyzer at Exhibits 72 to 74 do not

corroborate the theory of the prosecution, the Court holds that

the delay in lodging the FIR has to be taken into consideration

to ignore the said reports.

6. In our view, only two questions need to be considered

in the present case - (i) whether the evidence of the witnesses

is reliable and worthy of credence, and (ii) whether there is

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any evidence on record to connect the accused with the crime.

7. None appears for the appellant-accused. With the

assistance of the learned Additional Public Prosecutor

appearing for the respondent-State, we have gone through the

evidence of witnesses relied upon by the Sessions Court. The

incident occurred on 23-3-2015 at about 10 p.m., when the

victim was present in the house along with her sister

PW 2 Sapna and mother PW 4 Pournima, who is the

complainant. PW 4 in her evidence states that when both the

daughters were sleeping in the house, the accused was there in

the house. When the incident took place, PW 4 was sitting

with the neighbouring women outside the house. PW 4 does

not depose to have actually seen the incident, but she learnt

about the incident from her daughter PW 2 Sapna, who

claimed to be sleeping on the another cot in the same room

besides the cot on which the victim slept. PW 2 narrated the

incident to PW 4.

8. The victim PW 1 was examined. She states in her

examination-in-chief as under :

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"1) ... At the time of incident my mother was sitting on road. I was sleeping on bed at home. At that time accused was there. Uncle Dharmendra took out my nicker upto my knee. Thereafter he slept on my person. Therefore, there was burning at my urine place. Dharmendra uncle put his place of urine in my place of urine therefore there was burning. Thereafter he went towards road. Then my mother arrived. I narrated about incident to my mother. My mother took me to police station. Thereafter police brought me to hospital at Chandrapur. There doctor examined me. Police recorded my statement. I had shown the spot to police. ..."

In paras 5 to 7 of her cross-examination, she states as

under :

"5. I had stated to police aunt that Dharmendra uncle took out my nicker upto my knee. I had also stated to police aunt that Dharmendra uncle put his urine place at my urine place and therefore there was burning. I had stated to police aunt that thereafter Dharmendra uncle went towards road. I had stated to police aunt that I had stated about incident to my

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mother. I cannot assign any reason why above facts are not mentioned in my statement."

"6. While giving statement to Judge uncle I had not stated that Dharmendra uncle had put his urine place at my urine place."

"7. My mother told me to depose in court today that Dharmendra uncle had put his place of urine at my place of urine. My mother also told me to depose in court that Dharmendra uncle took out my nicker upto my knee. My mother told me to depose in court that Dharmendra uncle slept on my person. As my mother stated me all these facts therefore I am stating the same in court. It is correct to say that I am deposing in court today as per say of my mother."

9. PW 11 Panjabrao, the Investigating Officer, who

recorded the statement of the victim in presence of lady police

officer Rina Janbandhu, states in his cross-examination as

under :

"2) It is correct to say that I recorded statement of victim. She had not narrated to me that Dharmendra uncle took out her nicker upto her knee. She had also

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not stated to me that Dharmendra uncle put his urine place at her urine place and therefore there was burning. She had also not stated to me that thereafter Dharmendra uncle went towards road. She had also not stated to me that she had stated about incident to her mother. It is not correct to say that without there being any substantial evidence against accused I have filed false charge sheet against accused and I am deposing false."

10. PW 2 Sapna, the sister of the victim, deposed as an

eye-witness to the incident. She claimed to be sleeping on a

cot in the same room where the incident occurred. She states

that the accused was sleeping over the victim sister and his

body was in motion. He inserted in the urinal place of her

sister. She further states in her examination-in-chief as under :

"1) ... Dharmendra Kaka had come to our home for charging his mobile. My mother told him to fix his mobile for charging and asked him to go out and she went out of the house. I cannot state what was inserted. My victim sister told to my mother that she was having burning in her urinal place. At that time I was present there. Thereafter I went to call my mother. I narrated

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my mother about what the Dharmendra Kaka had done with my victim sister. The nicker of Akansha was upto her knee. Dharmendra Kaka had removed nicker of my victim sister upto her knee. When I called my mother, Dharmendra Kaka fled away. Thereafter my mother narrated about the incident to the mother of Dharmendra Kaka. Police made enquiry from me. Police had recorded my statement."

In her cross-examination, she states as under :

"3) ... It is correct to say that as the battery of the mobile of Dharmendra Kaka was totally discharged, therefore, he came for charging the same. It is correct to say that he has not connected the mobile for charging. It is correct to say that victim was sleeping on cot. It is not correct to say that I was in sleep. It is correct to say that I was sleeping on the cot and my eyes were closed. While my mother was going out, she asked us to switch off the light. Dharmendra Kaka switched off the light. As the light was off there was dark in the room and nothing could be seen there on the cot of victim, I saw a figure of a person sitting there. It is correct to say that after seeing that I got frightened, therefore, I got up and ran out to search for my mother. I saw my mother sitting in front of the house of Mainabai. I told my mother that there is dark in the house and I saw one figure sitting on

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the cot of victim. Thereafter I and my mother returned back to home. My mother switch on the light. It is correct to say that at that time victim was sleeping by covering with chadar. My mother woke up the victim. My mother asked victim as to what had happened. It is not correct to say that she told my mother that nothing has happened (witness volunteers that she told my mother that she was having burning in her urinal place). It is correct to say that Dharmendra kaka after switching the light off went away. ..."

She further states in her cross-examination that "It is

correct to say that today when I came to the Court police kaka

met me. Police kaka enquired me about my name." She

further denies that police kaka tutored her or that she was

deposing false at the instance of police.

11. PW 4 Pournima, the mother of the victim, is not an

eye-witness to the incident. She claims to have acquired the

knowledge of the incident from PW 1, the victim, and

PW 2 Sapna, the another daughter. PWs 1 and 4 claim to have

narrated the entire incident to their mother PW 4. We have

gone through the entire evidence of PW 4 and we do not find

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any corroboration by her to the testimony of PWs 1 and 2.

PW 4 only states that in the night of the date of incident, the

accused came in the house. At that time, she went outside to

sit with the neighbouring women, and the two daughters,

viz. PWs 1 and 2 were sitting on the separate cot inside the

house. PW 4 does not state in her evidence that either PW 1

or PW 2 told her that the accused put his urine place in the

urine place of the victim and, therefore, there was burning.

She only states that the daughter Sapna told her that the

accused had slept on the person of the victim. In fact, PW 2

states in her cross-examination that "It is correct to say that I

was sleeping on the cot and my eyes were closed."

PW 4 Pournima in her cross-examination states that she had

gone to the house of the neighbourers to sit, which is at the

distance of 30 feet. She does not depose to have heard hue

and cry either by the victim or by PW 2 Sapna, the real sister,

who was present at the time of occurrence of incident.

Undoubtedly, PW 5 Sandip, the father of the victim, was not in

the house when the incident occurred and he came back after

three days.

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12. In view of above, we do not find the oral evidence of

PW 1, the victim, PW 2 Sapna, PW 4 Pournima and PW 5

Sandip to be reliable and trustworthy because of the omissions

in the statements of the victim recorded under Section 164 of

the Code of Criminal Procedure by the Magistrate and also by

the police authorities in presence of a lady police constable

which are proved. There are also inconsistencies and variance

in the testimony of the witnesses and there is a delay in lodging

the FIR. In the absence of corroboration of the testimony of

PWs 1 and 2 on material aspects, the oral evidence of these

witnesses do not inspire confidence so as to base the conviction

of the accused on it. In our view, the Sessions Court has

committed an error in accepting the evidence of these

witnesses as reliable and trustworthy.

13. PW 8 Dr. Jaya, who medically examined the victim,

submitted her report stating that "On examination hymen

appeared torn so sexual assault had occurred." In answer to

Query No.(2) contained in Exhibit 47, PW 8 states that the

victim is capable of sexual intercourse. In her

cross-examination, she states as under :

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"2) It is correct to say that I have not mentioned the age of injury whether it was fresh or old. It is true that if the injury is older than one year, then it is treated as old injury. Whether the injuries were painful or not at the time of examining the victim, I cannot state it. It is true that there may be other reasons for hymen tearing. The tearing of hymen is not possible if a girl is playing Pitu (Lagori) and falls down and sustained injury over her vaginal part.

Que. In which type of game here is possibility of tearing of hymen ?

Ans If the child is involved in sports activities only in these cases there is possibility of tearing of hymen.

The tearing of hymen is possible if a girl child is living in unhygienic condition and there is itching to her private part and if she scratches it by her own finger."

14. No doubt, the medical report suggests that hymen of

the victim was torn and that sexual assault had occurred. The

victim was aged seven years. PW 8 Dr. Jaya states that it

cannot be stated whether the injuries were painful or not at the

time of examining the victim. She states that there may be

other reasons for hymen tearing and tearing of hymen is

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possible if a child is involved in the sports activities. She states

that tearing of hymen is possible if a girl child is living in

unhygienic condition and there is itching to her private part

and if she scratches it by her own finger. She states in response

to the query that the minor girl of seven years is capable of

sexual intercourse. In view of this, it is not possible to confirm

the finding of the Sessions Court that there was a sexual assault

on the victim.

15. In view of above, we are of the view that the oral

evidence of the witnesses relied upon by the Sessions Court is

untrustworthy and not of credence to hold that the offence

against the accused is established. Neither the oral evidence

and the medical examination report by PW 8 Dr. Jaya nor the

report of the Chemical Analyzer can be relied upon to hold that

the accused committed sexual assault on the minor child. The

evidence on record is short of connecting the accused with the

crime alleged and the possibility of falsely implicating the

accused cannot be ruled out. It is, therefore, not possible for us

to sustain the findings recorded by the Sessions Court holding

the appellant-accused guilty of the offences charged and he is

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required to be acquitted for want of reliable evidence of

committing an act of rape on the minor child, being in relation

as niece.

16. In the result, the appeal is allowed and the following

order is passed :

: O R D E R :

(1) The judgment and order dated 25-11-2016

delivered by the Additional Sessions Judge,

Chandrapur, in Special (POCSO) Case No.59 of 2015

to the extent it holds appellant-accused Dharmendra

s/o Keshav Nagdevte guilty of the offences punishable

under Section 376(2)(f)(i) of the Indian Penal Code

and the offence under Section 5(m)(n) punishable

under Section 6 of the Protection of Children from

sexual Offences Act, 2012, is hereby quashed and set

aside.

(2) Appellant-accused Dharmendra s/o Keshav

Nagdevte is acquitted of the charge levelled against

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him and he be forthwith released from the custody, if

he is not required in any other offence.