Gajanan S/O Kisan Meshram vs State Of Mah., Thr. P.S.O. Ps ...
2021 Latest Caselaw 1602 Bom

  apeal67.20.odt                            1



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH

                 CRIMINAL APPEAL NO. 67 OF 2020


  Gajanan s/o Kisan Meshram,
  aged about 48 years, occupation
  - Agriculturist, r/o Isapur, Tahsil
  Pauni, District - Bhandara (at
  present detained in Central Jail,
  Nagpur, Convict No. C-10499).                           ...
  APPELLANT

                    Versus

  The State of Maharashtra
  through its Police Station Officer,
  Police Station, Pauni,
  District - Bhandara.                            ... RESPONDENT


  Shri S.G. Joshi, Advocate (appointed) for the appellant.
  Shri M.J. Khan, APP for the respondent.
                  .....

                               CORAM : PUSHPA V. GANEDIWALA, J.

JANUARY 25, 2021.

ORAL JUDGMENT :

This Appeal is directed against the judgment and

order dated 26.09.2019 in Special Criminal (Child) Case No.

34 of 2017, passed by the learned Special Judge, Bhandara, by

which the appellant / accused is convicted under Section 6 of

the Prevention of Children from Sexual Offences Act, 2012

(hereinafter referred to as POCSO Act), and sentenced him to

undergo rigorous imprisonment for a period of 10 years and

also to pay a fine of Rs.2,000/-, in default of payment of fine,

Simple Imprisonment for two months.

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

i) The informant is the mother of the prosecutrix. The

age of the prosecutrix at the relevant time was five years. The

date of the incident is 05.06.2017. In her report, the informant

- PW-1 has stated that on 05.06.2017 she was alone in the

house with her minor children as her husband had gone for

agricultural operations in the field. In the afternoon, at around

3.00 PM, she was busy in her household work while

prosecutrix had gone out. At around 3.30 PM, the prosecutrix

came weeping and on inquiry from her, the prosecutrix

informed that she had gone to the maternal aunt's house to

watch TV and the accused was alone in the house and he

inserted his finger in her vagina. The informant examined her

knicker and noticed blood and also injury in her private parts.

The informant washed her daughter's clothes and body and

applied oil to her private parts. When her husband reached

home in the evening, they lodged a report. Accordingly, First

Information Report came to be registered against the

appellant/ accused for the offence punishable under Section

376(2)(i)(j) of the Indian Penal Code and Sections 4 & 6 of the

POCSO Act and the criminal law was set into motion. PSI -

Shri Gadade of Police Station Pauni carried out the

investigation.

(ii) In the presence of the panchas, he prepared a spot

panchanama (Ex 26). He referred the prosecutrix for her

medical examination. He arrested the accused and sent him

for his medical examination. After recording the statements of

the prosecutrix and the witnesses, as he found sufficient

material against the accused, he filed a charge-sheet before the

Special Court (POCSO), Bhandara, against the appellant /

accused.

iii) The Special Court, Bhandara framed a charge

against the appellant/ accused under Section 376(2)(i)(j) of

the IPC read with Sections 4 & 6 of the POCSO Act. The

charge was read over and explained to the appellant / accused

in his vernacular to which he pleaded not guilty and claimed to

be tried. His plea was recorded.

iv) In order to substantiate the charge against the

appellant/ accused, the prosecution examined inasmuch as 8

witnesses and also brought on record the relevant documents.

PW-1 is the informant - mother of the prosecutrix;

PW-2 is the prosecutrix;

PW-3 is the Medical Officer, who examined the accused and

also externally examined the prosecutrix and referred the

prosecutrix to the Government Hospital, Bhandara;

PW-4 is the Panch for the spot and the seizure panchanama;

PW-5 is the Medical Officer, who examined the victim

internally;

PW-6 is the Medical Officer on the point of the admission and

the discharge of the prosecutrix at the Government Hospital,

Bhandara and issuance of a discharge card;

PW-7 is the Police Patil to whom the appellant/ accused made

an extra-judicial confession; and

PW-8 is the Investigation Officer.

v) The learned Special Court examined the appellant/

accused under Section 313 of the Code of Criminal Procedure

and recorded his statement. His defence is of a false

implication. The appellant/ accused preferred not to examine

any witness. On appreciation of the evidence, the learned

Special Judge found the appellant/ accused guilty of the

offence under Section 6 of the POCSO Act and hence sentenced

him as above. The aforesaid judgment of conviction is

impugned in this Appeal by the appellant/ accused.

3. I have heard Shri Joshi, learned counsel

(appointed) for the appellant/ accused and Shri Khan, learned

APP for the respondent.

4. Shri Joshi, learned counsel for the appellant/

accused read out the deposition of the material witnesses i.e.

the informant and the prosecutrix and submitted that the

learned trial court erred in appreciating the evidence on record

in the light of the settled position of law. The learned counsel

further submitted that there are material discrepancies in the

evidence of the prosecution witnesses which go to the root of

the matter. The learned counsel further submitted that the

prosecution could not establish the identity of the appellant/

accused beyond a reasonable doubt and, therefore, he is

entitled to have benefit of doubt in his favour. Lastly, it is

submitted that the accused has been falsely implicated in this

case in view of the previous animosity between the informant

and the accused. The learned counsel urged for acquittal of

the appellant/ accused.

5. As against this, the learned APP strongly supported

the impugned judgment and the order and submitted that all

the prosecution witnesses have supported the case of the

prosecution and the evidence of the material witnesses i.e. the

prosecutrix and her mother is consistent, clinching and

trustworthy. The learned APP also submits that the medical

report supports the case of the prosecution. The learned APP

urged for dismissal of the Appeal.

6. I have considered the submissions and perused the

record with the assistance of the learned counsel for the

parties.

7. The appellant/ accused is charged and convicted

for the offence of 'aggravated penetrative sexual assault'. The

offence of 'penetrative sexual assault' is defined under Section

3 of the POCSO Act while 'aggravated penetrative sexual

assault' is defined under Section 5 of the POCSO Act and is

made punishable under Section 6 of the POCSO Act. For ready

reference, the definitions of 'penetrative sexual assault' and

'aggravated penetrative sexual assault' are reproduced below:

"3. Penetrative Sexual Assault--A person is said to commit "penetrative sexual assault" if --

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."

***

"5. Aggravated Penetrative Sexual Assault -- ......

***

(m) whoever commits penetrative sexual assault on a child below twelve years;

***

is said to commit aggravated penetrative sexual assault."

8. For the purposes of this case, as per clause (b) of

the definition of penetrative sexual assault, a person is said to

commit 'penetrative sexual assault' if he inserts to any extent

any object or a part of the body, not being a penis, into the

vagina of the child. It turns into aggravated in form if the age

of the child is below 12 years.

9. In the light of the above definitions, it is necessary

to scrutinize the prosecution evidence on record. First and

foremost, the age of the prosecutrix at the relevant time being

five years is not disputed by the defence. The defence counsel

also admits the birth certificate (Exh. 40) of the prosecutrix

indicating her date of birth as 17.06.2012. Therefore, if the

penetrative sexual assault is proved, her case would fall under

its aggravated form.

10. In this case, the prosecutrix and her mother are the

star witnesses of the prosecution and, therefore, I propose to

scrutinize the testimonies of these witnesses first. The

prosecutrix was examined as PW-2. It is worthwhile to

mention here that before recording her evidence, it is borne out

from the record that the learned Special judge asked the

prosecutrix a few preliminary questions to test her competency

and to assess whether she understands the sanctity of oath.

The learned Special Judge recorded that the prosecutrix does

not understand the sanctity of oath, however, she gave proper

answers to the questions put to her and hence she is a

competent witness. The examination-in-chief of the

prosecutrix, being a short one, is reproduced below for better

appreciation of evidence:

"I reside with my mother at Isapur. I know Rani. She is my neighbour. I had gone to the house of accused to watch T.V. Gajanan is father of Rani. Accused inserted finger in my vagina. I returned back to my house and narrated the incident to my mother. I was taken to hospital. Police had come to my house."

11. A perusal of her testimony would at once reflect that

in a very limited words she has vividly described the whole

incident. She said when she had gone to the house of the

accused to watch T.V., he inserted his finger in her vagina. She

came back to her house and narrated the incident to her

mother.

12. In her cross examination, she has admitted that

there is no T.V. in her house and T.V. is in the house of Rakya

Mama and Monya Mama. She has further admitted that she

goes to the house of Monya Mama to watch T.V. and while

watching T.V. in the house of Monya Mama, she got bleeding

injury in her vagina. On this point, the learned defence

counsel Shri Joshi raised a doubt on the identity of the

appellant/ accused. According to him, the appellant -accused

is not the said Monya Mama. However, surprisingly, the

defence counsel could not point out any suggestion to the

witness during cross examination that Monya Mama is not the

accused. In the absence of any such evidence, all the

admissions by the prosecutrix in her cross examination, in fact,

proved against the appellant/ accused.

13. The testimony of the prosecutrix (P. W. 2) is also

challenged on the ground that she is a tutored witness. No

doubt, the testimony of a child witness is to be scrutinized

carefully with due caution. In the instant case,

the prosecutrix had developed sufficient understanding. The

learned trial Court has satisfied itself in this connection before

recording her deposition. Considering the quality of the

evidence rendered by the child witness, aged 6 years, it is

difficult to call her a tutored witness. Her answers during her

cross examination were spontaneous. Although, the prosecutrix

has admitted that she has deposed before the Court as told to

her by her mother, I do not find any bizarre conduct in her

mother asking the child to tell as to what had happened with

her. For the said reason, in this case, the child cannot be

branded as a tutored witness unless something more is brought

on record to doubt her testimony or to call the child as a

tutored witness. No doubt, the children are prone to tutoring

but if ultimately evidence of a child witness is found truthful

and reliable, then it can be acted upon. There are catena of

pronouncements of the Hon'ble Apex Court and this court that

the conviction can be accorded to the accused on the sole

testimony of the child witness, provided it inspires the

confidence of the court and the evidence of the victim of sexual

assault stands on a higher pedestal than the evidence of an

injured witness and to an extent, it is more reliable than

evidence of an injured witness.

14. In Mangoo & Anr. v. State of Madhya Pradesh, AIR

1995 SC 959, the Hon'ble Apex Court while dealing with the

evidence of a child witness observed that there was always a

scope to tutor the child, however, it cannot alone be a ground

to come to the conclusion that the child witness must have

been tutored. The Court must determine as to whether the

child has been tutored or not. It can be ascertained by

examining the evidence and from the contents thereof as to

whether there are any traces of tutoring.

15. In the present case, the tiny girl herself is the victim

of the crime. It is not the case that she is testified as a witness

of the incident. In clear and unequivocal terms, she narrated

the incident. There is no reason to doubt her testimony. Her

testimony found further backing from the testimony of her

mother - PW1. The relevant portion of testimony of PW-1 is

reproduced below:

"Accused resides behind my house at Isapur. My daughter '***' had gone to watch T.V. in the house of the accused. Around 10.30.a.m. '***' returned back to home. She was crying. She narrated that the accused had inserted finger in her vagina. I saw her private part and noticed bleeding. Her clothes were stained with blood. I washed her clothes. I also washed her private

part and applied oil."

('***' name of the prosecutrix kept undisclosed)

16. With regard to the time, i.e. 10.30 AM, she has

clarified in her evidence that the time 3.30 PM was wrongly

mentioned in her report, as she got scared. A perusal of her

testimony would reflect a natural conduct on her part, what a

mother in a similar circumstance would do. As the prosecutrix

came weeping and narrated the incident to her, she

immediately checked her nicker and private organs and when

she noticed blood, she washed her clothes and body parts and

applied oil to her private organs. There is no reason to doubt

her testimony. Considering the immediate narration of the

incident to this witness by the prosecutrix and her immediate

conduct thereafter, her testimony can be rated as substantive as

well as corroborative piece of evidence under sections 6, 7 and

8 of the Evidence Act. There was no scope to concoct a story

against the appellant/accused, as there was no time gap

between the incident and coming of the prosecutrix crying to

this witness and disclosure of the incident. There was no

reason for these witnesses to depose falsely against the

appellant/ accused by leaving the main culprit set free.

17. On a perusal of the cross examination of this

witness, it appears, she denied all the suggestions with regard

to animosity between the accused and her family. Nothing

adverse could be elicited from her cross examination muchless

to raise a probable doubt to the prosecution story. With regard

to the identity of the appellant/ accused, admittedly, he being

the neighbour, there is no reason to question his identity. The

learned defence counsel failed to put a single suggestion to this

witness or to the prosecutrix that ' Monya Mama' as referred to

by the prosecutrix in her cross examination, is not the accused.

18. The testimony of these witnesses further found

support from the oral and documentary medical evidence i.e.

Exhs. 34 and 37. PW-5 - Dr. Anumu Bagade, the Medical

Officer at Government Hospital, Bhandara, testified that on

06.06.2017, she examined the prosecutrix with the consent of

her parents and there was no evidence regarding any external

injury on the outer part of her body. However, on local

examination of her private parts, there was minute abrasion on

labia majora and labia minora. PW-5 also found tear having

size 0.5 cm. x 0.2 cm. on fourchette and noticed congested

and edema on vulva, tear present at 1 O' clock and 6 O' clock

in position on hymen. PW 5 - the Medical Officer noticed that

vagina was congested, cervix was normal. After examination,

PW 5 - the Medical Officer opined that as the injuries were

present on the internal and external genital area of the victim,

possibility of sexual assault cannot be ruled out and these

injuries might be possible due to the act stated in the history.

Accordingly, she issued her confidential report Exh. 34. There

was a very limited cross examination to this witness and

nothing adverse could be elicited from her cross examination

except that aforesaid injuries can be possible due to itching.

However, this admission itself is not sufficient to dent the

otherwise cogent, consistent and trustworthy ocular evidence

brought on record by the prosecution with regard to sexual

abuse at the hands of the accused. Furthermore, the nature of

injury i.e tear having size 0.5 cm. x 0.2 cm. on fourchette and

noticed congested and edema on vulva, tear present at 1 O'

clock and 6 O' clock in position on hymen, would reveal the

severity and seriousness of the act of fingering by the accused,

age 48 years inside the private organs of the child age 5 years.

19. The testimony of PW-5- Dr. Anumu Bagade, Medical

Officer got further support from testimony of PW-6 - Dr. Sarla

Dipak Agrawal, a Medical Officer at Government Hospital

Bhandara, who deposed about the admission of the prosecutrix

at the Government Hospital, Bhandara on 06.06.2017 at Ward

No 8 and was examined by Dr. Bagade and was discharged on

07.06.2017. This witness issued a discharge card which is at

Exh. 37. The learned defence counsel could not point out any

discrepancy in the testimony of this witness.

20. PW-7 - Ashok Pundalik Wani is the Police Patil. This

witness is examined on the point of extra-judicial confession

made by the accused before him. He was the first person to

whom the incident was reported by the parents of the victim

and on his advice, the report came to be lodged. He deposed

that he inquired with the accused about the incident and he

accepted that he has committed the alleged act with the victim.

The learned defence counsel questioned the admissibility of the

alleged extra-judicial confession by the appellant/ accused

before this witness, he being a police Patil and hit by Section

25 of the Evidence Act. It is difficult to accept this submission.

This question is no longer res integra and has been settled

through the decision of the Larger Bench of this court in the

case of Rajeshwar S/O Hiraman Mohurle vs State of

Maharashtra, reported at 2009 SCC OnLine Bom 759. While

answering the question referred to it, the Larger Bench of this

court held that the Police Patil appointed under the

Maharashtra Village Police Act, 1967, is not a 'Police Officer' for

the purposes of Section 25 of the Indian Evidence Act, 1872.

In view of this, the extra-judicial confession made by the

appellant/ accused before the Police Patil is the additional

circumstance against the appellant/ accused to found him

guilty for the alleged offence. There is no reason to doubt the

credibility of the testimony of this witness.

21. The prosecution evidence further found link with

the evidence of panch witness PW-4 - Ranjit Jagdish

Sawwalakhe in whose presence the investigation officer

prepared a spot panchnama of the spot i.e. the house of the

appellant/ accused and PW-3 - Dr. Prakash Kumare, attached to

Rural Hospital, Pauni, who examined the accused and issued

certificate Ex.-21 opining that the accused is physically and

medically fit. He also externally examined the victim and

found no external injury. He issued certificate accordingly

(Exh. 19). He referred the victim to the Gynecologist at

General Hospital, Bhandara. PW-8 Sachin Gadade is the

investigation officer who deposed about the investigation

undertaken by him in this case. His testimony is formal in

nature. There is no effective cross examinations to these

witnesses.

22. In addition to the above, a perusal of the statement

of the appellant/ accused recorded under Section 313 of the

Criminal Procedure Code would reflect that apart from denying

the truthfulness of the prosecution evidence and his false

implication, he does not say anything more.

23. Considering the overwhelming evidence in support

of the prosecution case and considering the presumption that

the accused had committed the crime, as provided in Section

29 of the POCSO Act and in the absence of any rebuttal to this

presumption, the prosecution has conclusively proved that it

was this accused, who committed the offence punishable under

Section 6 of the POCSO Act.

24. In view of the foregoing discussion, the prosecution

could prove beyond reasonable doubt that the appellant/

accused has committed aggravated penetrative sexual assault

on the child aged five years by inserting his finger into the

vagina of the child. Therefore, there is no error in the

judgment of the learned Special Judge in convicting the

accused under Section 6 of the POCSO Act and sentencing him

to undergo rigorous imprisonment for ten years (i.e. minimum

sentence at the relevant time in the year 2017, before amend-

ment with effect from 16.09.2019). I do not find any infirmity

in the impugned judgment, warranting any interference at the

hands of this Court. Criminal Appeal is bereft of any merit.

Criminal Appeal is dismissed.

25. Fees quantified for the learned counsel appointed

for the appellant is Rs.5,000/- (Rs. Five thousand only).

However, the learned counsel for the appellant requests this

Court that the said amount of Rs.5,000/- be diverted to the

Library Account of the High Court Bar Association, Nagpur.

Accordingly, the Legal Services Sub-Committee, Nagpur, is

directed to remit the said amount to the Library Account of the

High Court Bar Association, Nagpur.

26. A copy of this judgment be sent to the accused in

the concerned Jail immediately through the Superintendent of

Jail, as per Section 363 of the Code of Criminal Procedure.

JUDGE

******* *GS.