Sonu @ Ashwin S/O Vitthal Meshram vs State Of Mah. Thr. Pso Ps Deori ...
2021 Latest Caselaw 3114 Bom

                                                      1            1702 Cr. Appeal 456.20


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

                           CRIMINAL APPEAL NO.456 OF 2020


Sonu @ Ashwin s/o Vitthal Meshram,
Aged about 29 years,
Occ. Agriculturist,
R/o Ward No.9, Surabhi Chowk,
Deori, District - Gondia.                                                     . . . . APPELLANT

. . .VERSUS . .

The State of Maharashtra,
Through Police Station Officer,
Police Station Deori,
Tahsil Deori, Distrtict- Gondia                                                   .RESPONDENT.
----------------------------------------------------------------------------------------------------------
Shri R.M. Daga, Advocate for appellant.
Shri T. A. Mirza, A.P.P. for respondent/State.

                                         CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 17/02/2021.

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

1. By this appeal, the appellant is challenging the judgment and

order dated 7.2.2020 passed by the Special Judge, Gondia in Special

(POCSO) Case No.45/2019, thereby convicting the appellant for offence

under Section 376-AB of the Indian Penal Code and for offence punishable

under Section 6 of the Protection of Children from Sexual Offences Act, 2012

(for short "Act of 2012") and sentencing the appellant to suffer rigorous

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imprisonment for twenty one years and to pay fine of Rs.75,000/- (Rs.

Seventy five thousand), in default of payment of fine, the appellant was

directed to undergo further rigorous imprisonment for three years.

2. Facts, in brief, leading to the prosecution case can be

summarised as under:

Pushpa (PW 1), her husband, son aged about 7 years and Victim

aged about 4½ years were staying at Deori. Brother-in-law of Pushpa

(PW 1) Santosh is also residing in the vicinity of the house. The appellant is

residing at a distance of about 50 to 60 feet from the house of Pushpa

(PW 1). The appellant is known as "Sonu Kaka" by the family of Pushpa

(PW 1).

3. On 1.6.2019 at about 6.00 a.m. to 6.30 a.m., son and Victim

were playing in the courtyard of the house of Pushpa (PW 1). The appellant

around 6.10 a.m to 6.15 a.m. called the Victim in his house but, the Victim

did not go to his house. Again, the appellant gave call to the Victim. At that

time, the Victim asked Pushpa (PW 1) that the appellant is calling her but,

Pushpa (PW 1) prohibited the Victim from going to the house of the

appellant and asked her to play in the courtyard. Thereafter Pushpa (PW 1)

went for bathe and when she completed her bathe around 7.30 a.m. the

Victim came towards house of Pushpa (PW 1) crying and told that the

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appellant gave her chocklet made her panty dirty. Pushpa (PW 1) took the

Victim for bathe and noticed something sticky on her panty. Pushpa (PW 1)

asked the Victim about the incident on which the Victim told Pushpa (PW 1)

that the appellant slept on her person. When Pushpa (PW 1) verified panty of

the Victim, she noticed semen on the panty of the Victim. The Victim was

complaining of burning sensation at her private part. On examination of

private part of the Victim, Pushpa (PW 1) found that there was semen and

blood. Pushpa (PW 1) immediately gave phone-call to her husband and

called him to home. After arrival of her husband, report was lodged at 12.00

noon.

4. On the basis of the report, F.I.R. came to be registered against

the appellant for the offences punishable under Section 376 (2) (j) of the

Indian Penal Code read with Sections 4, 8 and 12 of the Act of 2012, vide

Crime no.116 of 2019. The investigation was carried out and after its

completion, charge-sheet came to be filed against the appellant for the

offences stated above.

5. The Special Judge framed charges against the appellant for

the offences punishable under Section 376-AB of the Indian Penal Code and

Sections 6 and 10 of the Act of 2012. The charges were explained to the

appellant in vernacular, for which he pleaded not guilty and claimed to be

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tried.

6. In support of case of the prosecution, the prosecution

examined 15 witnesses, out of which, Pushpa (PW 1) is the mother of the

Victim and PW 13 is herself the Victim, aged about 4½ years on the date of

incident. After recording the evidence adduced by the prosecution, perusing

exhibits proved by the prosecution, the defence, and the hearing of the

learned Advocates for the parties, the learned Trial Judge convicted the

appellant, as stated in paragraph no.1. Hence, the present appeal.

7. We have heard Shri R.M. Daga, learned Advocate for the

appellant and Shri T.A.Mirza, learned Additional Public Prosecutor for the

State of Maharashtra - respondent. We have perused depositions of the

prosecution witnesses, material exhibits tendered and proved by the

prosecution, the statement of the appellant recorded under Section 313 of

the Code of Criminal Procedure and the impugned judgment.

8. Before analysing the evidence available on record and going

into legal aspects of the same, we feel it appropriate to first deal with the

contentions advanced by the learned Advocate for the appellant and the

learned Additional Public Prosecutor for the respondent.

9. Shri R.M. Daga, learned Advocate for the appellant, submitted

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that the prosecution has miserably failed to prove the charges against the

appellant beyond reasonable doubt. He contended that there are material

omissions in the testimonies of Pushpa (PW 1) the mother of the Victim and

PW 13 - Victim. He submitted that from the medical evidence available on

record, it is clear that the doctors have not stated about aggravated

penetrative assault. He submitted that from the admission of the Victim in

the cross-examination, it is clear that at the time of alleged incident, the

mother and the sister of the appellant were present and, therefore, the

prosecution story does not inspire confidence. He submitted that perusal of

DNA report and the testimony of PW 8 - Medical Officer shows that there is

no finding that the Victim had suffered aggravated penetrative assault. He

submitted that false case was lodged against the appellant due to enmity

between the parents of the Victim and the appellant. In the alternative, he

submitted that, at the most, it can be said that there was attempt to commit

sexual assault but, there is no evidence that ingredients of Section 10 of the

Act of 2012 are fulfilled. He, therefore, submitted that the impugned

judgment needs to be reversed.

10. We have examined whether the evidence of the prosecution

makes out a case of aggravated penetrative assault and rape by the appellant

on the Victim. At the outset, the prosecution has to establish that the Victim

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of crime in question, at the time of alleged offence, was below 12 years of

age. The prosecution, in order to prove age of the Victim (PW 13) has relied

on Birth Certificate issued by the Registrar, Birth and Death, Nagar Parishad,

Bhandara, which bears the date of birth of Victim as 13-11-2018. The

appellant had not denied date of birth of the Victim. From the said Birth

Certificate, it is clear that the Victim (PW 13) on the date of incident was 4

years and 6 months old. Therefore, the age of the Victim (PW 13) was below

12 years on the date of incident and, therefore, the Victim (PW 13) was child

as per Section 2 (d) of the Act of 2012. The learned Trial Judge, by

accepting documentary evidence in the form of the Birth Certificate, recorded

finding that the prosecution has proved first mandatory ingredient that age of

the Victim was below 12 years at the time of commission of offence. We are

in agreement with the Trial Judge on this point.

11. Now, let us examine the evidence of minor Victim girl. The

deposition of the Victim (PW 13) was recorded by the learned Trial Judge.

The learned Trial Judge has observed that he took due care before recording

evidence of the Victim (PW 13) and ascertained whether the Victim was in a

position to give rational answers to the questions put to her and only after

coming to the conclusion that the Victim was able to give rational answers to

the questions put by the learned Trial Judge, the evidence of the Victim

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(PW 13) was recorded in question and answer form. The relevant portion of

the evidence of Victim (PW 13) is reproduced as under:

"Que                 What Sonu had done with you?

Ans                  Sonu removed his pant, my pant and put his private part

                     in my private part.

In the cross-examination by the learned advocate for accused,

asked victim following questions ;

Que Did you come home crying because Sonu Kaka has beaten?

Ans                  No. xank dsys-

Que                  Did your mother tell you that Sonu kaka made you dirt?

                    She has answered in the negative.

Que                  Do you tell at the instance of mother that

lksuq dkdkus R;kph lq ph tkxk ek>;k lq P;k tkxh ykoyh o xank xank dsys ?

She has answered in the negative."

"Whether she is telling false at the instance of her mother?" She has denied and asserted that she is telling correctly.

Que. Whether she was telling lie to the police on the say of Mummy

and Pappa?

She answered in the negative and replied assertively that I am

telling truth".

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12. The testimony of the Victim ( PW 13) is corroborated by the

testimony of Pushpa (PW 1) - the mother of Victim. Pushpa (PW 1) stated in

her evidence that initially the appellant called the Victim in his house but

Pushpa (PW 1) refused permission to the Victim to go to the appellant's

house and thereafter when she was taking water for bathe, Pushpa (PW 1)

heard the appellant calling Victim by saying "come here". After completing

the bathe when Pushpa (PW 1) came back, the Victim came in the house

crying. Victim's panty was in half removed condition and when Pushpa

(PW 1) asked the Victim what happened, the Victim told her that "appellant

made dirty dirty and sticky sticky". Thereafter, Pushpa (PW 1) told the Victim

that "you have become dirty and I will bathe you". Pushpa (PW 1) removed

her panty and took her for bathe. When water was showered on victim at the

time of bathe, the Victim started shouting and crying loudly. The Victim told

Pushpa (PW 1) that she was having burning sensation and pain. When

Pushpa (PW 1) asked the Victim where it was paining, the Victim showed her

private part by putting her hand. When Pushpa (PW 1) saw private part of

the Victim, there was blood and sticky white liquid. Pushpa (PW 1) realised

that something wrong had happened with her daughter. Pushpa (PW 1)

noticed on the Victim's panty that there was white sticky liquid on her panty.

The Victim told Pushpa (PW 1) that the appellant called her in his house for

eating chocolate and took the Victim on his bed, removed his towel and pant

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and touched his private part to the private part of the Victim. Victim told

Pushpa (PW 1) that the appellant made private part of the Victim "dirty dirty

and sticky sticky". When Pushpa (PW 1) asked the Victim as to why she did

not shout or cry, the Victim told her that she tried to shout but, the appellant

gagged her mouth. Pushpa (PW 1) thereafter called her husband and

informed him about the incident.

13. In the cross-examination of Pushpa (PW 1 ), it was tried to

suggest that there was delay of five hours in lodging the report. Pushpa

(PW 1) explained the reason by stating that she gave phone-call to her

husband after the incident and waited for his arrival. She stated that the

report was lodged after arrival of her husband.

14. On reading, we find that the testimony of the Victim (PW 13)

proves beyond doubt that the appellant had inserted his private part in the

private part of the Victim. Thereafter, the Victim came towards her house

crying and when Pushpa (PW 1) poured water at the time of bathe, the

Victim complained of pain and burning sensation to Pushpa (PW 1), which

proves that there was penetration.

15. Subsequent conduct of the appellant immediately after the incident

has been proved by the evidence of Amol Pendurkar (PW 5), who was

staying in the neighbourhood of the appellant. Amol Pendurkar (PW 5)

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stated that when he returned to his house after purchasing Dal, he saw crowd

in his area. The crowd was discussing about rape committed by the appellant

on the Victim. Father of the Victim was shouting on the appellant that why

he did those acts with his daughter. The crowd had standing in front of the

house of the accused. When the father of the Victim and other family

members started going to police station, the appellant was peeping from the

window of his house to ascertain as to whether the crowd had dispersed or

not. The appellant immediately thereafter came out of his house and fled on

his motorcycle in the high-speed. This evidence of Amol Pendurkar (PW 5)

corroborates the evidence of Meghraj (PW 2). Meghraj (PW 2) stated that he

visited the house of the accused and made enquiry as to why he committed

such act with Victim. Meghraj (PW 2) caught hold of Baniyan of the

appellant and tried to bring him on road. He stated that the appellant gave a

jerk and ran away. Meghraj (PW 2) stated that he told the mob of mohalla

about the incident.

16. The prosecution examined the Medical Officer (PW 8), who

had examined the Victim on the date of the incident. The Medical Officer

(PW 8) in her examination stated that there was redness and hyperemic

reason around the vulva. She stated that there was swelling on the vulva. She

stated in her final opinion that there was evidence of possibility of attempt of

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sexual intercourse or assault on the girl. The Medical Officer (PW 8) was

cross-examined at length. It was suggested that there are many reasons for

redness and swelling to the vulva. One of the reason for redness and swelling

could be unhygienic condition, disease and itching by own nails.

17. Perusal of the DNA report (Ex.103) makes it clear that the

DNA profile of semen of the accused matches with semen found on nicker of

the Victim. The conduct of the Victim of crime and shouting when the water

was poured at the time of bathe and complaining of pain and burning

sensation to her mother proves that there was penetration. We have gone

through the testimonies of Pushpa (PW 1) mother, Victim (PW 13) and the

Medical Officer (PW 8 ) and we find that their evidence inspire implicit

confidence. Their evidence is not showing that they are tutored witnesses. As

a matter of prudence, we have examined the evidence of the Victim (PW 13)

and we find that the evidence of the Victim is getting corroboration from the

evidence of her mother Pushpa (PW 1). The evidence of Victim (PW 13)

corroborated by the evidence of Pushpa (PW 1) mother and Medical Officer

(PW 8) proves beyond reasonable doubt that the appellant inserted his

private part in the private part of the Victim. The evidence of Victim (PW 13),

Pushpa (PW 1) and Medical Officer (PW 8) proves beyond reasonable doubt

ingredients of offence under Section 5(m) and 9(m) of Act of 2012 and

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Section 375 of the Indian Penal Code.

18. The evidence of Victim (PW 13) is sufficient to establish that

the appellant had inserted his private part into the private part of the Victim,

which amounts to sexual assault and punishable under Section 10 of the Act

of 2012. There is convincing evidence that the appellant had inserted his

private part into the private part of the Victim. This evidence in this regard

remained unshattered and intact. The evidence of the Victim (PW 13) is

sufficient to establish that the appellant had inserted his private part into the

private part of the girl child of 4½ years, which amounts to "aggravated

penetrative sexual assault" as defined under Section 5(m) and punishable

under Section 6 of the Act of 2012 .

19. While ordinarily there is a "presumption of innocence" in

relation to an accused, Section 29 of the Act of 2012 reverses this position.

Section 29 of the Act of 2012 creates a presumption of guilt on the part of

the accused, if he is prosecuted for committing, abetting or attempting

certain offences. The position of law crystallized by interpretation adopted by

the Court is that to rebut a presumption:

(i) The presumptive proposition must itself be formulated based on relevant and credible material and

(ii) The accused must know what presumption, he has to rebut.

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In our opinion, the prosecution has proved beyond doubt the

foundational facts for raising presumption under Section 29 of the Act of

2012.

20. We find that the appellant has miserably failed to prove

defence taken by him. There is absolutely no evidence on record to prove

defence of the accused.

21. Shri R.M. Daga, learned Advocate for the appellant,

submitted that the DNA report and testimony of the Medical Officer (PW 8)

shows that there is no conclusive proof about aggravated penetrative assault.

At the most, it can be said that there was attempt to commit aggravated

penetrative assault. He submitted that the Medical Officer (PW 8) in her

evidence has opined that there was attempt to commit aggravated

penetrative assault. It is well settled that even in absence of any

corroboration by the medical evidence, oral testimony of the Victim can be

accepted, if it is found cogent, reliable, convincing and trustworthy. In the

case in hand, there is absolutely no reason brought on record for false

implication of the appellant in the crime in question. There is absolutely no

reason as to why minor girl of 5 years age and her parents will falsely

implicate the appellant in such heinous offence. It has been held by the

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Hon'ble Supreme Court that the testimony of the Victim in rape cases is vital

and unless there are compelling reasons which necessitated looking for

corroboration to her statement, the Court should not find any difficulty to

act on the testimony of the Victim of sexual assault alone to convict an

accused where her testimony inspires confidence and is found to be reliable.

Seeking corroboration of her statement before relying on the same, as a rule,

in such cases amounts to adding insult to the injury. (See Sham Singh Vs.

State of Haryana 2018 (18) SCC 34). We therefore cannot accept submission

of learned advocate for appellant.

22. It is next submitted by the learned Advocate for the appellant

that it was impossible for the appellant to commit such act when the parents

of the appellant were present in the house. We do not agree with the said

submission, as there is no evidence that the parents of the appellant were

present in the same room. It is quite possible that the parents of the appellant

or the sister of the appellant were busy in their daily activities and the

appellant committed such heinous act in other room. The evidence on record

shows that the appellant had called the Victim twice to his house. There is

direct evidence of the Victim, which is of convincing and unimpeachable

nature. Therefore we cannot accept the submission of the appellant that the

appellant could not have done such heinous act when his parents were

15 1702 Cr. Appeal 456.20

present at the house. The appellant has failed to explain as to how semen of

the appellant was found on the nicker of the Victim. The appellant has failed

to examine his parents in support of his contention that at the time of

incident, his parents were present in the room where the incident occurred.

We, therefore, have no hesitation to reject the submission of the appellant

that in presence of parents of the appellant, the appellant could not have

committed such act.

23. The next submission of the appellant was to the effect that the

evidence of the Medical Officer (PW 8) and the DNA report shows that there

was only attempt to commit aggravated penetrative assault. In our opinion,

as stated above, it is well settled that even in absence of any corroboration by

medical evidence, oral evidence of the Victim can be accepted if it is found to

be cogent, reliable, convincing and trustworthy. In the present case, there is

absolutely no reason brought on record to falsely implicate the appellant in

the crime in question.

24. The learned Trial Judge has considered entire material on

record in threadbare manner. The learned Trial Judge has scrutinized the

testimony of each and every witness in detailed manner and has held the

appellant guilty for offences alleged against him. The learned Trial Judge in

paragraph no.55 has summed up his conclusions as under:-

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"There is no reason to discard the evidence of PW 3 who is independent witness and has observed that Victim came crying from the house of accused. The evidence of PW 9, PW 12 is also acceptable and genuine. The evidence of other witnesses except witness no.1,8,9 12 and 13 is not direct evidence on the point involved in the case. I rely upon the evidence of PW 1, PW9, PW 12 and PW 13 and hold that prosecution has proved beyond reasonable doubt that accused has committed penetrative sexual assault on minor girl of 4½ years. The prosecution has proved the offence under Section 375 of the Indian Penal Code which is punishable under Section 376 of the Indian Penal Code in which case the penetration is sufficient. The consent is not material as the Victim is below 12 years of age. Therefore, in my opinion, the prosecution has proved the offence under Section 376- AB of the Indian Penal Code. By the direct evidence of the PW 13, it is proved that there was penetrative sexual assault as accused has inserted his private part into the private part of victim. As per section 3(a) of the Protection of Children from Sexual Offences Act, there is ample evidence about penetrative sexual assault. The age of the Victim is not disputed. She is below 12 years of age. Here date of birth is not challenged. Therefore, offence against Victim is aggravated penetrative assault as defined in Section

17 1702 Cr. Appeal 456.20

5(m) i.e. whoever commits penetrative sexual assault on a child below 12 years. The arguments of accused that the offence is not in the nature of penetrative sexual assault. But it is merely sexual assault as defined in Section 7 of the Protection of Children from Sexual Offences Act cannot be accepted because there is direct evidence of PW 13 that accused has inserted his penis into her private part and it has caused penetration. Therefore there was swelling and redness. Prosecution has proved the guilt of accused under Section 6 and 10 of the Protection of Children from Sexual Offences Act. I, therefore held accused guilty for the offences punishable under Section 376-AB of the Indian Penal Code and Section 6 and 10 of the Protection of Children from Sexual Offences Act."

25. For the said reasons, in our view, the Trial Judge is perfectly

justified in believing the involvement of the appellant in the incident of

crime. In our view, the act of the appellant falls squarely within the ambit of

Section 376 (AB) and Sections 6 and 10 of the Protection of Children from

Sexual Offences Act 2012. After utmost circumspection, we have reached

the conclusion that the prosecution has proved beyond shadow of doubt,

commission of offence under Sections 6 and 10 of the Act of 2012 and

Section 376 (AB) of the Indian Penal Code. Once we are satisfied that the act

of the appellant is covered by Sections 6 and 10 of the Protection of Children

18 1702 Cr. Appeal 456.20

from Sexual Offences Act 2012 and Section 376 (AB) of the Indian Penal

Code, we find that considering the heinous crime committed by the appellant

with the Victim of 4½ years old, we have no hesitation in confirming the

sentence of 21 years imposed by the learned Trial Judge. In the result, we

find no merit in the appeal. The appellant is in jail and shall undergo the

sentence awarded to him.

The appeal stands dismissed.

               JUDGE                               JUDGE




Ambulkar