Rahul S/O. Dagadu Sirsat (In Jail) vs The State Of Maharashtra Thr. ...
2018 Latest Caselaw 284 Bom

        J-apeal97.17.odt                                                                                               1/14  


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


                                   CRIMINAL APPEAL No.97 OF 2017


        Rahul s/o. Dagadu Sirsat,
        Aged about 34 years,
        occupation : Labour,
        R/o. Akolkhed, Tahsil Akot,
        District Akola.                                                             :      APPELLANT

                           ...VERSUS...

        The State of Maharashtra,
        Through Police Station Officer,
        Police Station Akot (Rural),
        Tahsil Akot, District Akola.                                                 :      RESPONDENT


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri R.M. Daga, Advocate for the Appellant.
        Shri S.D. Sirpurkar, Addl. Public Prosecutor for the Respondent-State.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 11 JANUARY, 2018.

ORAL JUDGMENT :

1. This appeal is directed against the judgment and order dated

8.2.2017, rendered by the Special Judge, Akot appointed under

Protection of Children from Sexual Offences Act, 2012 (in short, "PoCSO

Act"), thereby convicting the appellant of the offences relating to

aggravated penetrative sexual assault punishable under Section 6 read

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with Section 5 (k) of the PoCSO Act and also under Sections 450 and

452 of the Indian Penal Code and handing over different sentences for all

these offenses ranging from 6 months to 10 years together with different

fine amounts varying between Rs.5,000/- and Rs.25,000/- along with

default sentences.

2. The appellant was about 34 years of age at the time of

incident which occurred on 17.11.2015 in the house of victim of the

crime situated at village Akolkhed, Tq. Akot, Distt. Akola. The victim of

the crime was then aged about 17 years and was differently abled person

with alleged mental age of 4 and half years. The victim was then present

at the house and it is alleged that as she desired to fetch the tap water for

household purposes, she asked her younger brother 'A' to go and see if

the water had started to run in the public water tap installed nearby.

The brother 'A' therefore left the house and taking advantage of the

victim being alone at her house, the appellant entered her house and

removed her clothes as well as his own lower clothes and committed

forcible sexual intercourse with the victim. The parents and elder

brother of the victim returned home in the evening and learnt about the

obnoxious act committed by the appellant with the victim. They were

told about the incident by brother 'A'. When enquired with the victim,

the victim also confirmed about commission of forcible sexual intercourse

with her by the appellant. The mother of the victim after consulting her

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husband decided to file a complaint against the appellant with the

concerned Police Station, which was Police Station Akot (Gramin).

3. First Information Report was lodged with Akot (Gramin)

Police Station on 17.11.2015 and criminal law was set in motion. The

spot panchanama was prepared, necessary seizures were made and

statements of witnesses were recorded. The appellant was found out,

identified and placed under arrest. After completion of the investigation

charge-sheet was filed against the appellant. On merits of the case,

learned Sessions Judge found that the charge framed against the

appellant of commission of aggravated penetrative sexual assault, rape

and house trace-pass was proved beyond reasonable doubt and

accordingly convicted and sentenced the appellant to different sentences

as stated earlier, by the impugned judgment and order. Not being

satisfied with the same, the appellant is before this Court in the present

appeal.

4. I have heard Shri R.M. Daga, learned counsel for the

appellant and Shri S.D. Sirpurkar, learned Additional Public Prosecutor

for the respondent-State. I have carefully gone through the record and

proceedings of the case including the impugned judgment and order.

5. The material point that arises for my consideration is :

Whether the right of the appellant to defend himself properly and adequately in the present case has been prejudicially affected by not producing before the Court the material witness i.e. victim of crime and

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exploring possibility of examining her as a witness within the hearing of the accused ?

6. Shri R.M. Daga, learned counsel for the appellant submits

that in the present case, on the material aspect of the offence of

aggravated penetrative sexual assault with which the appellant has been

charged, the appellant has been deprived of reasonable opportunity of

proving his innocence as the victim of crime, though her statement under

Section 164 of Cr.P.C was recorded by a competent Magistrate, was not

produced before the Court to ascertain as to whether or not she was still

capable of testifying before the Court. He points out from Section

164(5-A)(b) Cr.P.C. that when a statement of a person, temporarily or

permanently mentally or physically disabled, is recorded by a competent

Magistrate, such a statement is considered to be a statement in lieu of

examination-in-chief, as prescribed under Section 137 of the Indian

Evidence Act, 1872 and, therefore, the law confers a right upon the

accused to cross-examine the witness on such a statement. He submits

that at least the victim of crime should have been produced before the

Court and the special educator, who was stated to be accompanying the

victim of crime, was examined on oath before the Court so that an

appropriate opinion about the fitness or otherwise of the victim to testify

before the Court in terms of Section 118 of the Indian Evidence Act read

with Section 164 (5-A)(b) of Cr.P.C. and Section 38(2) of the PoCSO Act

J-apeal97.17.odt 5/14

could be formed by the Court. He submits that this was not done by the

Sessions Court as there is no noting made in the roznama of the case nor

is it mentioned anywhere in the judgment about the date on which the

victim of crime was produced before the Court, the kind of questions that

were put to the victim of crime as well as special educator and the

manner in which an opinion was formed by the learned Additional

Sessions Judge that the victim was incapable of understanding the

questions put to her by the Court and, therefore, incompetent to testify.

7. Learned counsel for the appellant further submits that even

the mental disability of the victim of crime has not been proved in the

present case, although there is a report of the psychologist available on

record. He points out that this report was never admitted in evidence

which could be seen from the absence of exhibit mark given to it. He

also submits that the author of this report was not examined as a witness

by the prosecution. He, therefore, submits that no inference about the

victim suffering from mental disability could have been drawn by the

learned Additional Sessions Judge and as such no conviction for the

offence punishable under Section 6 read with Section 5(k) of the PoCSO

Act could have been recorded.

8. Shri S.D. Sirpurkar, learned Additional Public Prosecutor for

the respondent-State submits that even though the statement of the

victim under Section 164 of the Cr.P.C. was recorded, the victim could

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not be examined as a witness before the Court for the reason that she

was incapable of understanding the questions put to her . In this regard

he invites my attention to paragraph 6 of the judgment, wherein the

observations about incapacity of the victim to testify before the Court

have been made by the learned Additional Sessions Judge. He submits

that learned Additional Sessions Judge made sincere efforts to examine

the victim as a witness before the Court but his efforts did not yield any

result as the victim could not understand the questions put to her. Thus,

according to him, this is not a case wherein any prejudice can be said to

have occurred to the defence of the appellant. Learned A.P.P. further

submits that no serious dispute to the mental condition of the victim has

been raised by the appellant and, therefore, non-examination of the

psychologist as a witness in the present case has not prejudicially affected

the appellant in any manner. Thus, he submits that this is not a fit case

for making any interference with the impugned judgment and order.

9. On going through the record of the case and also the

impugned judgment and order, I find great substance in the argument of

learned counsel for the appellant and no merit in the submissions of the

learned A.P.P. for the respondent.

10. The statement of victim under Section 164 Cr.P.C. has indeed

recorded in the present case. At that time, the competent Magistrate

obtained assistance of special educator and formed an opinion that the

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victim of crime was capable to understand the questions put to her and

accordingly he recorded her statement as provided under Section 164 of

Cr.P.C. Under clause (b) to Section 5-A of Section 164 of Cr.P.C.,

whenever such a statement is recorded, it is required to be considered as

a statement in lieu of examination in chief, as specified in Section 137 of

the Indian Evidence Act and, therefore, there is a right conferred upon

the accused to put the maker of such a statement directly to the

cross-examination. This provision of law would make it necessary for the

Court to at least make a sincere effort for examining the maker of such a

statement as a witness before the Court. It would be a different matter if,

due to mental or physical incapacity, developed later or not seen earlier

by the Magistrate recording Section 164 Cr.P.C. statement, maker of such

a statement is unable to understand the questions put to him or her by

the Court and then, it would be a case wherein there would be no

question of prejudicially affecting right of the accused to cross-examine

such a witness. In such a case only, one can say that these being the

circumstances which are beyond human control and which are the

product of nature, the accused cannot be heard to say that he is

prejudicially affected in his defence. But, even for this thing to happen

there must be a sincere effort made by the Court to explore the

possibility of examining the maker of such a statement as a witness

before the Court and if such effort is not seen to be manifestly taken from

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the record of the case, then, an inference in favour of the accused to the

effect that there is a serious prejudice caused to his defence would have

to be drawn.

11. In paragraph 6 of the impugned judgment and order, the

learned Additional Sessions Judge has noted that he examined the victim

and on preliminary examination, he found her to be unfit for recording

her evidence or understanding fully the questions that would be put to

her and, therefore, he refused his permission to let her be examined as a

witness before the Court. With the assistance of learned counsel for the

appellant as well as learned A.P.P. or the State, I have gone through the

roznama of the sessions case. But, I could not find anywhere any

endorsement about the production of victim before the Court on a

particular date and her being examined in the fashion as mentioned in

paragraph 6 of the impugned judgment and order, by the learned

Additional Sessions Judge. Even in the judgment impugned herein, no

particular date of examination of the victim has been mentioned. There

is also no record created for examination of the victim in the presence of

the special educator.

12. Whenever a witness of tender age or with disability is

brought before the Court with a view to examine him or her as a witness,

such witness, as per the established procedure, is made to stand in the

witness box, asked some questions and then the answers given to such

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questions are appropriately considered. After consideration of the

answers, an inference is drawn by the Presiding Officer as to whether or

not, in his opinion, such a witness is competent to testify or otherwise in

the case. Record of such proceeding is created in the name of such a

person by giving him a particular witness number. If the opinion is

formed that such witness is incompetent to testify, the witness is

discharged. On the other hand if an opinion is formed about competence

necessary permission to tender evidence is granted by the Court. All

these facts are entered in the record of the proceeding that is so created.

13. In the present case, the above procedure has not been

followed, which is an intrinsic part of fairness of trial on the one hand

and granting of effective opportunity of defence to the accused on the

other. It is also seen from the impugned judgment and order that one

translator/expert was present along with the victim in the Court. At

least, the evidence of the translator/expert could have been recorded so

as to enable the Court to form an opinion about the fitness or otherwise

of the victim to testify before the Court. That also appears to be not

done. In other words, one can say that there is no such effort as is

contemplated under the law made by the learned Additional Sessions

Judge in considering the possibility of recording of evidence of the

victim. This was all the more necessary because there is an opinion of a

competent Magistrate already available on record to the contrary.

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According to this opinion, which can be said to be arising from recording

of Section 164 Cr.P.C. statement, that the victim was competent to

testify. So, prejudicial affecting of defence of the appellant is writ large

in the present case.

14. Section 29 of the PoCSO Act requires the Court to draw a

presumption of commission of an offence, amongst others, under Section

5 of the PoCSO Act which presumption is rebuttable at the instance of

the accused. If the presumption of guilt of the accused is to be

mandatorily drawn against the accused and which presumption is

rebuttable at the hands of the accused, the accused would be required in

law to be given sufficient opportunity to rebut the presumption being

drawn against him. Then, there is also a right of cross-examination

conferred upon the accused in a case where statement of victim of such a

crime is recorded under Section 164 of Cr.P.C., which right is to be seen

in Section 164(5-A)(b) of the Cr.P.C. If, upon proper examination of

maker of such a statement, it is found by the Court that the maker of the

statement is not capable of understanding the questions put to her, due

to circumstances subsequently intervening after recording of her

statement under Section 164 Cr.P.C, a finding regarding drawing or

otherwise of the presumption under Section 29 of the PoCSO Act would

have to be recorded by the trial Court. In such a case, the trial Court

would also be required to record another finding on the impact the

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inability of the maker of such a testament to testify before the Court

would have upon the defence of the accused.

15. In the present case, these possibilities could not be

considered at all as there was no proper examination of victim of crime,

whose statement was recorded under Section 164 Cr.P.C. as regards her

competence or incompetence to testify before the Court, in terms of

Section 118 of the Indian Evidence Act. This has all prejudicially affected

the defence of the appellant.

16. It is seen from the impugned judgment and order that the

learned Additional Sessions Judge has found the appellant as guilty of

aggravated penetrative sexual assault as contemplated under under

Section 5(k) of the PoCSO Act and accordingly, the learned Additional

Sessions Judge has sentenced the appellant to rigorous imprisonment of

ten years together with fine of Rs.25,000/- with default sentence of one

year of rigorous imprisonment under Section 6 of the PoCSO Act. But,

there is no satisfactory evidence brought on record by the prosecution to

prove the fact that at the relevant time, the victim of crime was suffering

from mental disability or was a differently abled child. There is just one

statement in the testimony of PW 1, the mother of the victim, that the

victim was a differently abled child. She has not clarified as to what she

meant by the expression "differently abled child". On the other hand,

there is a report available on record given by the Psychologist. This

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report is about the mental condition of the victim. However, the author

of this report has not been examined and it appears that this report has

not been proved in evidence by the prosecution. So, except for just one

bald statement from the mother that her child was differently abled

person, there is absolutely no evidence to prove in a reasonable manner

the fact that the victim was mentally disabled person, which is the

requirement of Section 5(k) of the PoCSO Act. Thus, no conviction for

an offence punishable under Section 6 read with Section 5(k) of the

PoCSO Act could have been handed over to the appellant by the learned

Additional Sessions Judge on the basis of just the testimony of the

mother in the present case.

17. There is yet another dimension involved in this case. So far

as penetrative sexual assault is concerned, whatever evidence has been

brought on record by the prosecution, it is in the nature of hearsay

evidence. PW 1, mother of the victim, was present at the house when the

incident occurred and she was told about the incident firstly by her son

and brother 'A' of the victim (PW 2) and then by the victim herself. The

brother 'A' (PW 2) of the victim was, however, not aware as to exactly

what was done by the appellant to his sister, though according to his

evidence, he seems to have seen the appellant as lying on the body of his

sister in semi naked condition while his sister lying below him was fully

naked. These circumstances would require that a reasonable effort is

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made for ascertaining the mental condition of the victim directly as well

as through the assistance of the expert or educator as contemplated

under the law and the record of which proceeding is also properly made.

18. For the reasons stated above, I am of the view that the

finding of guilt recorded by the leaned Additional Sessions Judge on the

basis of evidence available on record cannot be sustained in the eye of

law. At the same time, reasonable opportunity of proving its case beyond

reasonable doubt needs to be afforded to the prosecution and this would

require a de novo trial of the entire case, in terms of Section 386

clause (b)(i) of the Cr.P.C. The fresh trial would have to be concluded

expeditiously. There being no fault of the appellant in directing re-trial

of the whole case and the appellant having already spent two years and

one month in jail, the appellant cannot be permitted to be detained in jail

during pendency of the re-trial and, therefore, would have to be released

on bail by imposing suitable conditions. The point is answered

accordingly.

19. In the result, following order is passed :

20. The impugned judgment and order are hereby quashed and

set aside.

21. The matter is remitted back to the trial Court for re-trial by

exercising power under Section 386(b)(i) of the Code of Criminal

Procedure.

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22. The Sessions Court shall re-try the appellant from the stage

of charge in accordance with law and shall conclude the trial as early as

possible, preferably within three months from the date of appearance of

the appellant before it.

23. The appellant is directed to be released on bail on his

furnishing a PR Bond in the sum of Rs.25,000/- together with one solvent

surety in the like sum on following conditions :

(A) The appellant shall attend the Police Station Akot

(Gramin) on every third Saturday of the month between 11.00 a.m. to

1.00 p.m. till the trial is over;

(B) The appellant shall not tamper or attempt to

tamper with the prosecution evidence in any manner;

(C) The appellant shall appear before trial Court

firstly on 12.2.2018 and thereafter on every such date as directed by the

trial Court, unless exempted by it from appearance, and his failure, to

attend the trial Court shall automatically result in cancellation of his bail

and forfeiture of his bail bonds.

(D) The appellant shall co-operate with the trial

Court in expeditious disposal of the case without seeking any

adjournment, unless justified by circumstances beyond control.

JUDGE okMksns