Sayyad Chand Agasapure vs The State Of Maharashtra And Anr
2021 Latest Caselaw 3189 Bom

                                                            Judgment-Appeal 1005-17 with IA 14-21.doc



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL APPEAL NO. 1005 OF 2017
                                               WITH
                                  INTERIM APPLICATION NO. 14 OF 2021

                Mr. Sayyad Chand Agasapure
                Aged about 28 years old,
                Occ: Student,
                R/o. A/P. Kazi Kanbas,
                Tal. Akkalkot, Dist. Solapur,
                At present R/o. New Paccha Peth,
                Solapur-413 005.                                    ...Appellant
                     Versus

                1.The State of Maharashtra
                  At the instance of Sr. PI and
                  then IO Mr. Tukaram Vitthal Chavan,
                  Jail Road Police Station, Solapur.

                2. Ms. X (minor)                                    ...Respondents


                Mr. Deepak Natu i/b N. Deepak & Co.                        Advocate        for     the
                Appellant/Applicant.
                Mr. S. V. Gavand, A.P.P for the Respondent-State.


                                                CORAM   : REVATI MOHITE DERE, J.
                                                DATE    : 18TH FEBRUARY 2021
                JUDGMENT

1. By this appeal, the appellant has impugned the judgment and order

dated 4th August 2017 passed by the Learned Additional Sessions Judge,

Solapur, in Sessions Case No. 185 of 2016, by which the appellant was

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convicted and sentenced as under:-

- for the offence punishable under Section 376 (2)(i)(n) of the Indian

Penal Code and under Section 4 of the Protection of Children from

Sexual Offences Act, 2012, to undergo rigorous imprisonment for 10

years and to pay a fine of Rs.10,000/-, in default of payment of fine,

to undergo further simple imprisonment for one year;

- out of the said amount of fine, an amount of Rs. 3,000/- was

directed to be paid to the victim as compensation.

2. The prosecution case in brief is as under:-

The prosecutrix, a minor girl, aged 13 years (hereinafter referred to as

'X'), was residing at Solapur with her mother in her maternal uncle's house,

at the relevant time. The complainant (PW-2), the father of 'X', was

residing at Osmanabad and would come to Solapur to meet his wife and

children including 'X'. According to the complainant (PW-2), when he

visited Solapur on 10th March 2016, to meet his wife and children, 'X'

complained of stomach ache, pursuant to which, he bought medicines from

a chemist and gave it to her. After taking medicines 'X's pain subsided.

However, again on 12th March 2016, 'X' complained of stomach ache,

pursuant to which, PW-2 (Complainant) and his wife took 'X' to the Civil

Hospital, at Solapur. On examination, 'X' was found to be pregnant. On

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inquiry with 'X', she disclosed that the appellant had sexually assaulted her

on 4-5 occasions, in her maternal uncle's house. PW-2 informed the said

fact, to his brother-in-law. The complainant (PW-2) also informed this to

the doctor, on the basis of which M.L.C. was registered.

Thereafter, the complainant lodged an FIR/Complaint with the Ashok

Chowk Police Chowki, Solapur, which was registered vide CR No. 117 of

2016, as against the appellant alleging offences punishable under Section

376 of the Indian Penal Code and under Sections 3 and 4 of the Protection

Of Children From Sexual Offences Act, 2012. After investigation

chargsheet was filed as against the appellant, in the Special Court. Charges

were framed against the accused, to which he pleaded not guilty and

claimed to be tried. The defence of the appellant was of denial and false

implication.

The prosecution in support of its case, examined four witnesses;

PW-1 - The prosecutrix ('X); PW-2 -Complainant (Father of 'X');

PW-3 Madhura Pundalik Bhaskar, PSI, attached to Ashok Chowk Police

Chowky, Solapur, at the relevant time; and PW-4 - Manmath Ramchandra

Ukarande, Head Master of School, where 'X' was studying.

The Trial Court after considering the evidence on record, convicted

and sentenced the appellant as stated aforesaid in paragraph 1.

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3. Mr. Natu, learned Counsel for the appellant submitted that the

allegations as against the appellant are false and baseless. He submitted that

the prosecution had failed to prove that 'X' was a minor, at the time of

alleged incident. He submitted that even the DNA report (Exh.47) cannot be

relied upon, as the same has not been proved by the prosecution. Learned

counsel submits that as PW-1 (Prosecutrix) and PW-2 (Complainant) have

turned hostile, the prosecution has failed to prove its case beyond

reasonable doubt as against the appellant and as such the appellant's

conviction cannot be sustained. Learned counsel has tendered written

submissions in support of his submissions.

4. Learned APP supported the impugned judgment and order of

conviction and sentence. He submitted that the evidence on record clearly

shows the complicity of the appellant in the alleged crime. He submitted

that the appellant had under Section 294 Cr. P. C. admitted the spot

panchanama and the map (Exh.13); the appellant's own medical reports

(Exh.14); the medical reports of 'X' (Exh.15) and CA reports (Exh.16), thus

clearly pointing to his complicity in the crime. As far as the DNA report is

concerned, learned APP submits that the same has been duly proved by the

prosecution and that the said report clearly establishes that the appellant

was the father of the child.

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5. With the assistance of learned counsel for the parties, perused the

papers. As noted earlier, the prosecution has examined four witnesses in

support of its case. Both, PW-1 'X' and PW-2-father of 'X' resiled from

their statements and were declared hostile by the prosecution.

6. PW-1 'X' in her examination-in-chief has stated that she was residing

with her maternal uncle and aunt and was 13 years of age, at the relevant

time. She has stated that she knew the appellant as he was her cousin

brother. According to 'X', he had not done anything to her. As the said

witness-'X' did not support her oral statement made before the police,

learned APP declared her hostile. Accordingly, the prosecutor was permitted

to put questions to the said witness in the nature of cross-examination. In

her cross-examination by the learned APP, 'X' denied stating before the

police, that the appellant had forced her on 4-5 occasions; that she had

disclosed to her mother about the pain in her abdomen; and, that she was

taken for medical examination by the police. When portion marked in

Article 'A' in her statement was read over to her, PW-1'X', denied having

stated so before the police. As far as her statement under Section 164 of Cr.

P. C., recorded by the Magistrate is concerned, 'X' was shown her

statement. Although 'X' admitted her signature on it, she has stated that it

was not recorded as per her say. PW-1 in her cross-examination by the

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appellant's counsel, has admitted that she was 18 years at the relevant time

and that it was true, that the relations with the appellant were consensual.

No doubt, 'X' turned hostile, however, there is no suggestion to 'X' s

evidence in her chief, that she was not 13 years of age at the relevant time,

by the advocate for the appellant. Hence, the said evidence has gone

unchallenged. Infact, the defence of the appellant seems to be that PW-

1-'X' was a major i.e. 18 years at the relevant time and that the relations

between them were consensual.

7. PW-2 - 'X's father (complainant) also turned hostile. PW-2 in his

examination-in-chief has stated that he was residing at Osmanabad and that

'X' is his daughter. He has stated that at the time of the incident 'X' was 10

years old and was studying. He has stated that he cannot tell her date of

birth. He has further stated that his wife informed him that 'X' was having

stomach pain and hence, he asked her to take 'X' to the doctor. He has

stated that on examination, the doctor revealed that 'X' was pregnant; that

on inquiry from her, as to who was responsible for the same, she did not

disclose the name. PW-2 denied that 'X' told him that the appellant had

sexually assaulted her. As PW-2 resiled from his statement given to the

police, he was declared hostile and was permitted to put questions in the

nature of cross-examination to the said witness. In the cross-examination by

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the prosecutor, PW-2 admitted of having lodged a complaint before the

police on 12th March 2016 and also admitted his signature on the said

complaint/FIR, PW-2, however, denied knowing anything about its

contents. PW-2 denied knowing anything about the portion marked Article

'A' in his complaint. PW-2 although has admitted that his statement was

recorded by the Magistrate and that it bears his signature, has stated, that he

did not know anything about it. There is no cross-examination of the said

witness, by the appellant's advocate, much less, any cross-examination with

respect to the age deposed to by PW-2 in his examination-in-chief i.e. that

'X' was 10 years, at the relevant time.

8. The contradiction in the evidence of these witnesses has been proved

by PW-3 PSI Madhura Bhaskar, the Investigating Officer.

9. The moot question that, therefore arises is, whether despite the two

key witnesses having turned hostile, can their evidence, to the extent, that it

supports the prosecution, be relied upon?

10. The Apex Court in the case of Koli Lakhmanbhai Chanabhai Vs.

State of Gujarat reported in (1999) 8 SCC 624 has in paragraph 5

observed as under :-

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"5. From the aforesaid evidence on record, in our view, it cannot be said that the High Court erred in relying upon some portion of the evidence of PW 7 who was cross-

examined by the prosecution. It is settled law that evidence of a hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence (Bhagwan Singh v. State of Haryana and Sat Paul v. Delhi Admn.)...... ". (emphasis supplied)

11. Thus, there is no legal impediment, in relying on the evidence of

witness, to the extent that it supports the prosecution case. Merely because a

witness turns hostile, his/her entire evidence does not get effaced. The

evidentiary value of a witness who has turned hostile will have to be

weighed and assessed depending on the fact situation in every case and the

nature of evidence adduced on record. As far as the evidence of PW-1 and

PW-2 is concerned, although the said witnesses were declared hostile, their

evidence with respect to the age of PW-1 'X', that she was 10/13 years, has

gone unchallenged and that 'X' was pregnant has not been disputed. PW-1

'X' and PW-2 'X's father did not support the prosecution case for obvious

reasons i.e. to save the appellant as he was 'X's cousin. However, the fact

remains, that despite PW-1 and PW-2 having turned hostile, their evidence

with respect to 'X's age at the relevant time has gone unchallenged. There

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is absolutely no cross-examination on this aspect by the appellant. The fact

that the said two witnesses have resiled from their statements or have turned

hostile, by itself would not efface the cogent evidence that has come on

record to show that 'X' was a minor at the relevant time. A criminal trial is

but a quest for truth and dispensation of justice in a criminal trial is a

serious matter. Presumption of innocence will have to be balanced with the

rights of the victim and above all the societal interest for preservation of the

rule of law.

12. The aforesaid evidence of the two witnesses, with respect to 'X's age

is duly corroborated by other cogent and reliable evidence on record. It is

pertinent to note that the appellant has admitted the medical report of the

victim (Exh.15) under Section 294 of the Cr. P. C. Having admitted the said

medical report (Exh.15), there can be no impediment to read the contents

therein, as evidence. In column (II) of the medical report of 'X' (Exh.15)

History/Details of alleged sexual assault are stated as under:-

"As per history narrated by her mother, victim is 12 years.

'X' (name withhold) studying in seventh, knows the accused who is 25 years student Sayyad Chand Aksapure, who has abused to her. Victim had 2-3 episodes of sexual intercourse. Last was 2 months back. No use of contraception, victim voided changed clothes and bathed

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and was not under influence of alcohol/sedation. Sexual intercourse were forcefully, against will of victim".

In Column (III) (a) History of menarche/menopause, it is mentioned

as 11 years. In Column (VI) (f) Hymen injury is shown to be present and

position of tears is stated to be at 6x11x12 O'Clock.

13. The appellant having admitted the medical certificate of 'X' under

Section 294 of Cr. P. C., offers corroboration to PW-1 and PW-2's evidence

that 'X' was a minor. It may be noted, that the object of Section 294 of Cr.

P. C. is to accelerate pace of trial by avoiding waste of time by the parties in

recording unnecessary evidence. Where genuineness of any document is

admitted or its factual proof is dispensed with, the same may be read in

evidence. It is well settled that the endorsement of admission or denial

made by the counsel for defence, on the document filed by the prosecution

or on the application with which same is filed, is sufficient compliance of

Section 294 of Cr. P. C. and that in case it is admitted, it need not be

formally proved, and can be read in evidence. In the present case, the

prosecution filed an application setting out the list of documents, from

serial no. 1 to serial no.8 on 16th August 2016. On the said application

(Exh.9) the defence counsel made the said endorsement "Documents at

serial Nos. 1,2,3,4, only are admitted and may be exhibited". The document

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at serial no.1 is the spot panchanama and map; at serial no. 2-medical

reports of the accused; at serial no. 3- medical reports of the victim and at

serial no. 4-CA letter.

14. Thus, the medical report of the victim, which is admitted by the

appellant also shows that 'X' was 11 years of age at the relevant time i.e. a

minor and that she was sexually assaulted by the appellant. As 'X' was

pregnant, her fetus was aborted. The DNA report (Exh.47 Colly) shows that

the appellant was the father of the fetus.

15. The DNA profiles of the appellant and PW-1 matched the product of

conception i.e. fetus which was aborted. The opinion given in the DNA

Report (Exh.47) shows that 'X' and the appellant are concluded to be

biological parents of product of conception of 'X'. The DNA report

(Exh.47) was tendered by the prosecution under an application, pursuant to

which it was exhibited. Under Section 293 (4) of Cr. P. C, the Court can

accept the documents issued by any of the six officers enumerated therein

as valid evidence without examining the author of the documents. The said

DNA report is issued by the Assistant Chemical Analyzer, Regional

Forensic Science Laboratory, Pune. The said report is covered under sub-

Section (4) to Section 293 of Cr. P.C. (Reference-State of H.P. Vs. Mast

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Ram (2004) 8 SCC 660). There is also no cross of PW-3-PSI Madhura

Bhaskar, who had sent the products to FSL for DNA analysis after MTP

was done, to show that there was any possibility of the articles/products

being tampered with.

16. It is also pertinent to note that the defence of the appellant in his 313

statement is that a false case was lodged to harass him, which defence is

contrary to what was suggested to PW-1 'X' in her cross i.e. that 'X' was 18

years and the relations between them were consensual. Thus, the false

explanation is an additional circumstance as against the appellant.

17. In conclusion, part evidence of PW-1 and PW-2 can be relied upon

with respect to 'X's age, as the same has gone unchallenged, despite the

said witnesses having turned hostile, coupled with the admission of medical

certificate of 'X', under Section 294 of Cr.P.C. and the DNA Report. Thus,

the conviction of the appellant cannot be faulted.

18. Accordingly, the Appeal stands dismissed.

19. In view the disposal of the appeal, interim application no. 14 of 2021

does not survive. Hence, the same is also disposed of.

REVATI MOHITE DERE, J.

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