Dahim Shaha @ Daku Gulam vs State Of Maharashtra Thr. Police ...
2021 Latest Caselaw 11839 Bom

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


                                  CRIMINAL APPEAL NO. 261/2018


                   Dahim Shaha @ Daku Gulam Shah,
                   Aged about 34 years, Occ. Fakir,
                   Stone (Ornamental) Seller,
                   R/o. Laden Nagar, Sindi (Railway),
                   Tah. Seloo, Dist. Wardha
                                                                  .... APPELLANT(S)

                                           // VERSUS //

                   The State of Maharashtra,
                   Through Police Station Officer,
                   Police Station Sindi (Railway)
                   Tah. Seloo, District Wardha
                                                               .... RESPONDENT(S)

           *******************************************************************
                    Shri R.M. Patwardhan, Advocate for the appellant(s)
                      Shri V.A. Thakare, APP for the respondent/State
           *******************************************************************

                             CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 26, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Vide order dated 28/02/2018 passed by the learned Special

Judge, POCSO, Wardha in Spl. (Ch.) Case No. 103/2014, the appellant

was convicted and sentenced as under :-

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                           (a)          Under Section 363 of the Indian Penal Code to

suffer rigorous imprisonment for seven years and fine of

Rs. 1000/- and in default of payment of fine to suffer simple

imprisonment for 15 days.

(b) Under Section 307 of the Indian Penal Code to

suffer imprisonment for life and fine of Rs. 2000/- and in

default of payment of fine to suffer rigorous imprisonment

for one month.

(c) Under Section 376(2) of the Indian Penal Code

and Sections 5(m) & 5(j)(i) of the Protection Of Children

From Sexual Offences Act to suffer imprisonment for

remainder of his natural life and fine of Rs. 5000/- and in

default of payment of fine to suffer rigorous imprisonment

for two months.

(d) Under Section 377 of the Indian Penal Code to

suffer imprisonment for life and fine of Rs. 2000/- and in

default of payment of fine to suffer rigorous imprisonment

for one month.

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          2]               The substantive sentences were ordered to be run

concurrently. The aforesaid conviction and sentences of the appellant

have been challenged in this appeal.

3] The prosecution case, in short, is as under:-

The informant - Rashim Shaha Gulam Shaha (PW2) was

residing at Sindi (Rly.), Tah. Seloo, District Wardha with his elder

daughter "Victim" (aged about 5 ½ years). The parents and brother of the

accused were residing at Beda of Laden Nagar, Sindi (Rly.). On

19/08/2014, at about 8:00 pm, when Rashim Shaha (PW2) went to

smoke bidi, the victim was sleeping alone in the courtyard while her sister

and mother were sleeping inside the house. When Rashim Shaha (PW2)

returned around 8:30 pm, the victim was not at her place and was not

found inspite of searching the premises. Rashim Shaha (PW2) woke up

her mother and sister and enquired about the victim but they were also

unaware about the victim. When they started searching for the victim,

they saw the juvenile in conflict with law (name withheld) coming from

the side of Parsodi Road, near brick kiln and on enquiry, he refused to

disclose anything. The informant went towards the railway station in

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search of the victim. Around 9:45 pm, when the informant returned to

his home, his sister informed that the victim was found near Brick kiln

and had been taken to the hospital as somebody had done 'Jabardasti'

with her. The informant therefore went to the Primary Health Centre,

Sindi (Rly.). The victim was lying unconscious and was without paijama.

Her hands and clothes were blood stained. There were assault marks on

her person and her private part was bleeding. The Officials of the

Primary Health Centre referred the victim to Sewagram Hospital. The

victim was taken to Sewagram Hospital.

4] The appellant - accused carried the victim to the Primary

Health Centre and at that time the victim was unable to talk. The

appellant gave history that the victim was abducted by somebody around

8:30 pm from the hut of the informant and somebody did 'Ghinona

Kam' with her. The appellant disclosed that he himself found the victim

coming towards the locality and therefore he brought her to the hospital.

5] The informant (father of the victim) gave history of forceful

sexual assault on the victim. On examining the victim, the doctor found

that she was profusely bleeding per vaginally; her clothes were blood

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stained which were preserved; there were injuries on her upper leg, cheek,

and eyelid and thighs were with contused abrasion and linear scratch; bite

marks were present on her breast; and after shifting the mass coming out

of vagina, labia majora and labia minora could be seen which were

injured. On first examination, a reddish colour mass of size around 6 cm.

X 6 cm. was seen with irregular surface and multiple clots; approximately

10 cm. of rectum was outside; external and internal anal sphincters were

lacerated; posteriorly vagina showed tear of posterior fourchette and

perinial raphe; and the tear was so extensive that the vaginal and anal

opening had become a single opening. Further, medico-legal examination

was not possible and therefore doctor decided to examine her in

operation theater under general anesthesia. In operation theater, the

suturing of wound was done at 10.30 a.m. on 20/08/2014 and further

examination was done. Tear of anterior rectal wall of size 10 cm. was

present; most of the part of both lateral walls of vagina showed tears; it

was 4th degree perineal tear; repairing of tear was done layer by layer by

the Surgeon Gynecologist; colostomy was done by surgeon as anal area

was severely injured; the samples of prosecutrix could not be collected as

per the requirement of a case advised; the doctors opined that the injuries

were fresh i.e. caused within 10 hours and the evidence was sufficient to

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draw the inference of force; and the genital injuries were fatal

endangering the life. Overall opinion was given that the medical

examination findings are consistent with forceful penetration of vagina

and anus by hard object, but the same was kept pending for final opinion

till receipt of forensic science laboratory result.

6] The first information report was registered for the offences

punishable under Sections 366 & 376 of the Indian Penal Code. API

Sohansingh Tulshiram Parmar (PW14) carried out spot panchanama and

seized the clothes and samples of the victim. The investigation was

thereafter handed over to Dy. S.P. Santosh Madhukar Wankhede (PW16).

PSI Vaishali Murlidhar Totewar (PW17) recorded the statement of the

victim. The name of the appellant along with another person Santa @

Amjad Ali surfaced in the statement of the victim. The Investigating

Officer therefore started search of the appellant but he was not found.

The statement of the victim was recorded by the Child Welfare

Committee on 28/08/2014 wherein the victim disclosed the name of the

appellant and thereafter she started crying stating that her father had

asked her not to disclose about the incident otherwise he will beat her. It

is pertinent to note that when the Child Welfare Committee was

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recording the statement of the victim, the informant (PW2) (father)

entered into the room and tried to threaten the victim in presence of the

members of the Child Welfare Committee. The Committee handed over

the statement of the victim to the Investigating Officer.

7] Another accused - Santa Amjad Ali was arrested on

27/08/2014 but the appellant was not traced out and ultimately on

03/09/2014, the appellant was arrested. The appellant - accused gave his

confessional statement and disclosed the place where the crime was

committed. His blood stained clothes and the piece of glass with red

brown spot were seized in presence of the panchas. The investigation

revealed registration of previous crime under Section 324 of the Indian

Penal Code by the appellant - accused. The Investigating Officer

recorded the statements of witnesses including statement of Rajju Shaha

Dhanuk Shaha (PW1) which was recorded on 20/09/2014. The

statement of Rajju Shaha (PW1) was also recorded under Section 164 of

the Code of Criminal Procedure. The Investigating Officer filed charge-

sheet against the accused persons after completion of the investigation.

The learned Special Judge framed charges against the accused persons for

the offences punishable under Sections 363, 376(2)(i), 376(2)(m), 376D,

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307, 377 & 34 of the Indian Penal Code and Section 6 of the Protection

Of Children From Sexual Offences Act, 2012 (for short "the said Act").

The accused pleaded not guilty and claimed to be tried.

8] The prosecution, in all, examined 20 witnesses apart from

tendering and proving the various exhibits. The defence has not

examined any witness. On appraisement of evidence, the learned Special

Judge came to the conclusion that the appellant was guilty of the offences

stated in para no. 1 of this judgment.

9] We have heard Shri R.M. Patwardhan, learned advocate for

the appellant and Shri V.A. Thakare, learned APP for the

respondent/State at considerable length. We have also perused the

depositions of various witnesses recorded during the trial and various

exhibits tendered and proved by the prosecution. After giving our

anxious consideration to the matter, we are of the view that the appeal

has no merit and should fail.

10] The prosecution, in order to prove its case, relied on the oral

testimonies of the various witnesses, medical evidence, forensic evidence in the

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form of DNA and circumstantial evidence in the form of recoveries of articles,

seizure of the clothes and presumption under the provisions of POCSO Act.

11] The prosecution has examined Rajju Shaha (PW1) who had

seen the accused around 8:45 pm on 19/08/2014 while he was returning

from Parsodi road towards Laden Nagar. He stated that he saw the

appellant carrying one girl on his shoulder going from Laden Nagar by

Pardosi Road in the light of the motor cycle. He stated that the girl was

wearing green frock with maroom coloured Odhani. He did not say

anything at that time as he thought that it was the daughter of the

appellant. It is stated that thereafter he heard commotion in the area and

learnt that the daughter of Rashim Shaha (PW2) was missing. He stated

that after 15-20 minutes, he again saw the appellant bringing the victim

holding in his hands. She was unconscious. She had bleeding injuries on

her private part. In the cross-examination, he admitted that the police

recorded his statement after period of one month after the date of

incident but the defence has not asked any question in cross examination

to the Investigating Officer about delay in recording statement of Rajju

Shaha (PW1). He further admitted that he himself had not been to the

police station. The statement of Rajju Shaha (PW1) under Section 164 of

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the Code of Criminal Procedure was recorded which supports his

deposition before the Court.

12] The informant Rashim Shaha (PW2) deposed that at the

time of incident, he was at home. He along with Dahim Shaha went to

search the victim when he was reported that the victim was missing. He

saw the accused Santa and one Rajju hiding in one pit; the juvenile in

conflict running towards the forest. He stated that Hakikat met Dahim

Shaha and told that the victim was lying towards the forest. Thereafter,

Hakikat and Dahim Shaha (appellant) brought the victim from that place

and took her to the doctor. The victim was unconscious and was having

injuries on her face, legs and serious injuries on her private part. Rashim

Shaha (PW2) was declared hostile by the prosecution and was cross-

examined. He admitted in his cross-examination that the statement of the

victim was recorded by the police in the hospital and also by the Child

Welfare Committee. Rashim Shaha (PW2) admitted in his cross-

examination that after regaining consciousness, the victim was taking the

name of the juvenile accused.

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          13]               Apart from the evidence of Rajju Shaha (PW1) on the point

of last seen, there is forensic evidence against the appellant in the form of

DNA report. Santosh Wankhede (PW16) stated that he sent the articles

for chemical analysis vide letter (Exh. 134) which included clothes of the

accused Dahim Shaha, Amjad Ali and prosecutrix as well as their samples.

The Forensic Science Laboratory, Nagpur received sealed parcels by the

invoice challan (Exh. 135). The DNA report (Exh. 143) dated

28/11/2014 refers to the opinion stating that the DNA profiles obtained

from the blood detected on the Top and Odhani of the victim and Lungi

of the appellant are identical and from one and the same source of female

origin and matched with the DNA profile of the blood of the victim.

14] The Hon'ble Supreme Court in the case of Mukesh & anr.

vs. State for NCT of Delhi and ors. reported in (2017) 6 SCC 1 has held

that the DNA report deserves to be accepted unless it is absolutely

dented; for non-acceptance of the same, it has to be established that there

had been no quality control or quality assurance. If the sampling is proper

and if there is no evidence as to tampering of samples, the DNA test

report has to be accepted. It has been further held that identification by

DNA genetic finger print is almost 100% precise and accurate. The DNA

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profile generated from the clothes of the accused and other articles are

found, which are consistent with the DNA profile of the victim. This is

strong piece of evidence against the accused. The DNA report and the

findings thereon, being scientifically accurate, clearly establish the link

involving the accused persons in the incident. In the present case, there is

no evidence that the report was dented or there was no quality control or

quality assurance. There is no evidence as to tampering of the samples.

Therefore, in our opinion, the prosecution has clearly established the link

between the accused and the victim.

15] The next circumstance against the accused is of recovery of

the glass piece used to cut the private part of the victim. Dattu Balaji

Wandile (PW6) stated that the appellant gave disclosure statement in

respect of the piece of glass and the cloths. Initially, the appellant took

them at Laden Nagar to one hut. He took out the T-Shirt and Lungi from

the bundle of cloths. Those cloths were having blood stains. Thereafter,

he showed the spot near brick kiln of Warghane. He took out the piece of

glass from the bricks.

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          16]              Nago Bhauraoji Sontakke (PW11) is the panch of seizure

memo under which the clothes of the appellant, samples of the victim &

samples of semen blood and hair were seized. Though the said witness is

declared hostile, the portion of the evidence which supports the

prosecution is in relation to the seizure of three bottles & clothes can be

admitted in evidence.

17] The evidence of Dr. Gopal Pandurangji Landge (PW3),

Dr. Indrajit Laxmanrao Khandekar (PW15) and Dr. Punam Varma

Shivkumar (PW19) show that the injuries caused to the victim were fatal

in nature and it is only because of timely treatment, the life of the victim

was saved. Their evidence show that the tear suffered by the victim was of

4th degree which is highest in the degree; the tears had reached up to

colon; and the mass was protruding out from the place of vagina and

anus. Dr. Punam (PW19) stated in her evidence that the vagina and anus

of the victim may not be restored to normal functioning in future. We are

at pains to observe that the child of six years suffered such injuries where

her intestinal part had come out of vagina and anus, which required

surgery and hospitalization for two months. From the evidence of the

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witnesses i.e. PW3, PW15 & PW19, it can be safely concluded that the

victim had suffered penetrative sexual assault, rape and unnatural sex.

18] The crucial question which arises for consideration of this

Court is as to whether it is the appellant who is the perpetrator of the

crime committed on the victim or not. The prosecution, in order to prove

the role of the appellant, has relied on the last seen theory, admissible part

of the evidence of the hostile witnesses, the evidence of PW4 & PW17

before whom the victim had disclosed the role of the appellant, the

subsequent conduct of the appellant of absconding himself, no

explanation to the incriminating material under Section 313 of the Code

of Criminal Procedure & presumption under Section 29 of the said Act.

19] The prosecution has relied on the evidence of Rajju Shaha

(PW1) who stated that he had seen the appellant and the victim 20

minutes before the incident. He gave description of the clothes of the

victim and the accused which matched with the articles referred by the

prosecution.

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          20]              It is pertinent to note that the Child Welfare Committee is

empowered to work as Magistrate as per the Code of Criminal Procedure

under Section 29(5) of the Juvenile Justice (Care and Protection Of

Children) Act, and therefore the information collected by the said

committee assumes importance, particularly in the facts of the present

case, where initially the victim had implicated the appellant by disclosing

his name to the President of the Child Welfare Committee - Sangita

Dhanaddhe (PW20), but thereafter she started crying stating that her

father (PW2) will beat her and he had instructed her not to disclose

anything. It has come on record that Rashim Shah (PW2) had

interrupted the recording of the statement by Sangita Dhanaddhe

(PW20). With the result, full statement of the victim was not recorded by

the Child Welfare Committee. The testimony of Sangita Dhanaddhe

(PW20) clearly discloses that right from the beginning, it was the

endeavour of Rashim Shaha (PW2) - father and mother of the victim to

save the appellant who is brother of Rashim Shaha (PW2) and therefore

they turned hostile and did not allow the victim to state anything in

relation to the unfortunate incident.

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          21]              The appellant, though had opportunity to explain the

incriminating circumstances against him, he chose not to explain the

incriminating circumstances. The facts, within the special knowledge of

the appellant, were not satisfactorily explained by the appellant except

making bold denial. In the facts of the case, where various links have

been satisfactorily made out and the circumstances point to the appellant

as probable assailant with reasonable definiteness and in proximity to the

victim as regards the time and situation, the appellant had offered no

explanation, afford reasonable basis for conviction that the prosecution

case is consistent and absence of explanation or false explanation would

itself be an additional link which completes the chain.

22] While ordinarily there is presumption of innocence in

relation to an accused. Section 29 of the said Act creates a presumption

of guilt on the part of the accused if he is prosecuted for committing,

abetting or attempting certain offences. Section 29 of the said 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 u/s.3, 5, 7 and Section 9 of this Act, the Special

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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."

23] The question of when the presumption of guilt gets triggered

has been addressed by the Supreme Court in the context of the NDPS

Act and by various other High Courts in POCSO cases, holding that such

presumption comes into play only when the prosecution establishes the

facts that form the basis of such presumption.

24] In our view, the accused has miserably failed to rebut the

presumption under Section 29 of the said Act in relation to the

incriminating circumstances and the chain of events proved by the

prosecution. In relation to the circumstantial evidence, it is well settled

that the circumstances forming chain of events should be proved. They

should cumulatively point towards the guilt of the accused alone. In such

situation, inference of guilt can be justified only when all the

incriminating facts and circumstances are found to be incompatible with

the innocence of the accused or guilt of another person. The Court has to

examine the complete chain of events and then to see whether all the

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material facts sought to be established by the prosecution to bring home

the guilt of the accused have been proved beyond reasonable doubt or

not.

25] The learned Trial Judge relied upon the following

circumstances to show that it is the appellant who has committed the

crime :-

"1) PW.1 had seen Dahim Shahaa carrying prosecutrix towards Parsodi road;

2) Accused Dahim Shahaa took prosecutrix to PHC, Sindi (Rly.) and gave history of sexual assault and upon information of incident to police he absconded;

3) He gave his false and inconsistent history to PW.3 regarding the incident;

4) Prosecutrix gave her statement to PW.3 and PW.17 on 25.08.2014 when her mother obstructed recording of her statement.

5) On 28.08.2014, the prosecutrix gave statement to PW.20 which was obstructed by PW.2 and was discontinued as he gave threats to her and she could not speak further. Prosecutrix stated that in case of disclosure of other name, out of the two persons, her father will beat her;

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6) He was traced out at Salekasa, District Gondia on 03.09.2014 and was arrested;

7) On 06.09.2014, he gave confessional statement leading to recovery of his blood stained clothes and blood stained piece of glass.

8) DNA Report unfolds that Lungi was stained with the blood of the prosecutrix;

9) Glass piece was found with human blood stain;

10) False explanation offered under Section 313 of Cr.P.C.;

11) False explanation to photographs Article P-1 to P-19;

12) Inconsistency regarding seen the prosecutrix coming towards Parsodi road in the history given to PW.3 and in 313 of Cr.P.C. that she was found sitting;

13) Failure to explain the fact within his knowledge as to where he was after the prosecutrix was taken to PHC till he was taken in custody by police;

14) Clothes of the prosecutrix and Dahim Shaha as seen by PW.1, identified by him and by the prosecutrix, that she was wearing the same at the time of the incident;

15) No inimical terms of police and witnesses with the accused to involve him falsely in the crime."

26] The above circumstances and the chain of events is complete

with regard to commission of crime and undoubtedly point towards the

appellant. In the light of the facts and circumstances stated above, we are

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of the considered view that the crime committed by the appellant is not

only heinous but is brutal and inhuman crime, where real uncle of the

victim (aged about 34 years) commits rape on his niece (aged about 5 ½

years). It can hardly be even imagined as to what torture and brutality the

minor child must have faced during the commission of this crime. All her

private parts underwent intricate surgery by team of experts. The anal

and vaginal areas became one. The team of expert doctors tried to create

spaces to look like vagina and to separate the anal area from vaginal area

by a septum. The victim was in hospital from 20/08/2014 upto

18/10/2014 and was again hospitalized for colostomy repairs from

08/12/2014 upto 05/01/2015, however, the medical expert (PW20) is

not sure whether the victim can regain her organs to normal functioning.

The victim, being minor child, was helpless in the cruel hands of the

appellant and the appellant was in relationship of trust / belief and

confidence in his capacity as real uncle of the victim. This reflects the

most unfortunate and abusive facet of human conduct, for which the

accused has to blame no one else than his own self.

27] Insofar the offence punishable under Section 363 of the

Indian Penal Code is concerned, the prosecution has established that the

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appellant had taken the victim out of the custody of her parents (lawful

guardians). It is the appellant who carried the victim to the hospital. Rajju

Shaha (PW1) had seen the appellant carrying the victim on his shoulder

and had identified the victim and the accused from their clothes and

therefore the essential ingredients of the offence under Section 363 of the

Indian Penal Code are satisfied by the prosecution on the basis of chain of

circumstantial evidence. There is no serious dispute about the age of the

victim. The appellant has not disputed that the age of the victim is below

12 years.

28] Learned advocate for the appellant submitted that there is

delay in recording the statement of Rajju Shaha (PW1) under Section 161

of the Code of Criminal Procedure and therefore the said evidence loses

its credibility. It is alleged that the delay in recording the statement of the

witness by itself does not make the said statement unreliable. If the

prosecution has explained the delay, the statement of the witness can be

relied upon as a circumstance against the accused. From the statement of

the victim recorded by Vaishali (PW17), the name of the appellant

surfaced on 25/08/2014. The appellant was traced out on 03/09/2014.

There is no evidence on record that Rajju Shaha (PW1) was present when

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the statements of the witnesses were recorded. Rajju Shaha (PW1) is

doing the business of selling finger rings and begging alms. The appellant

had not asked any question to the Investigating Officer about the delay in

recording the statement of Rajju Shaha (PW1). The Hon'ble Supreme

Court in the case of State of Uttar Pradesh vs. Satish reported in (2005) 3

SCC 114 held that mere delay in examination of the witnesses by the

Investigating Agency does not ipso-facto makes the prosecution version

unreliable. The defence is required to ask the question to the

Investigating Officer for such delay and in the absence of any question,

any delay in recording the statement of the witnesses is not fatal to the

prosecution. In the present case, undisputedly, the appellant has not

asked any question regarding the delay in recording the statement of

Rajju Shaha (PW1) and therefore it is not open for the appellant to

challenge the testimony on the ground of delay in recording the

statement.

29] The next submission made on behalf of the appellant is to

the effect that the recovery of the clothes and the peace of glass is from

open space and therefore no reliance can be placed on such recovery. It

would be useful to place reliance on the judgment of the Hon'ble

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Supreme Court in the case of State of Himachal Pradesh vs. Jeet Singh

reported in (1999) 4 SCC 370 wherein the Hon'ble Supreme Court has

observed that there is nothing in Section 27 of the Evidence Act which

renders the statement of the accused inadmissible if recovery of the

articles was made from any place which is "open or accessible to others".

It is a fallacious notion that when recovery of any incriminating article

was made from a place which is open or accessible to others, it would

vitiate the evidence under Section 27 of the Evidence Act. Any object

can be concealed in places which are open or accessible to others.

However, crucial question is not whether the place was accessible to

others or not but whether it was ordinarily visible to others. If it is not,

then it is immaterial that the concealed place is accessible to others.

30] In view of the authoritative pronouncement of the Hon'ble

Supreme Court, in our view, the submission about recovery from the

open space is liable to be rejected.

31] Learned advocate for the appellant submitted that since the

accused was carrying the victim to the hospital, the blood stains on his

clothes are bound to be there. It needs to be noted that the appellant was

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carrying the victim on his shoulder and it has come in evidence that the

victim was bleeding profusely. Therefore, the possibility of blood stains

on the clothes of the accused while carrying the victim cannot be ruled

out. Since the prosecution has conclusively proved the other

circumstances, merely because the blood stains on the clothes of the

accused is explained, the same is not sufficient to create doubt about the

credible evidence in the form of chain of circumstances proved by the

prosecution. Thus, for the reasons stated above, we find that the learned

Special Judge was fully justified in law and on facts of the present case in

awarding the punishment stated in para no. 1 of this judgment. We find

no justifiable reason to interfere with the judgment of conviction and

order of sentence under the impugned judgment.

32] There is no merit in the appeal and the same is dismissed.

Pending application(s), if any, stand(s) disposed of.

                            (JUDGE)                               (JUDGE)




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