Suresh Shalikrao Pawar vs State Of Mah., Thr. Pso P S ...
2021 Latest Caselaw 475 Bom

   Judgment                                                              apeal731.19
                                          1



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


                       CRIMINAL APPEAL NO. 731 OF 2019.


  Suresh Shalikrao Pawar,
  Aged about 21 years,
  Occupation - Education,
  resident of Bhoygaon, Tahsil
  Korpana, District Chandrapur.                              ... APPELLANT.


                                     VERSUS


  The State of Maharashtra,
  through Police Station Officer,
  Police Station Gadchandur,
  Tahsil Korpana, District Chandrapur.                   ...      RESPONDENT.



                                    -----------
                  Shri Y.P. Mandpe, Advocate for the Appellant.
                  Shri S.D. Sirpurkar, A.P.P. for the Respondent.
                                    -----------


                                 CORAM : VINAY JOSHI, J.


  CLOSED FOR JUDGMENT ON                      :     06.01.2021
  JUDGMENT PRONOUNCED ON                      :     09.01.2021


  JUDGMENT :

Every convict has legal right to test the legality and

correctness of the order of conviction by resorting the statutory

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remedy of filing an appeal. The appeal being continuation of the

proceedings, inherent presumption of innocence will remain until

the matter is finally concluded. The accused was convicted by

Special Court, Chandrapur in POCSO Case No. 47/2017 for the

offence punishable under Sections 376[2][i] of the Indian Penal

Code, along with Sections 4 and 6 of the Protection of Children from

Sexual Offences Act. He was sentenced to suffer rigorous

imprisonment for a term of 10 years, along with fine of Rs.2000/-

with default clause. The said order of conviction is the subject

matter of challenge in this appeal.

2. I have heard the learned Counsel for the parties.

3. Lodgment of report dated 25.04.2017 [Exh.29] led

concerned police of Gadchandur Police Station, to register Crime

No.203/2017 for the aforesaid offences. The victim of the crime

was a minor girl barely 5 years of age. Mother of victim lodged

report that on the date of incident the victim returned from her

school around 9 a.m. and was playing in the courtyard. The

neighboring lady P.W.2- Neha called the informant mother and said

that the accused a nearby resident was prone in showing indecent

pictures to the minor, took the victim at his house, and hence, asked

the informant mother to look into the matter. Immediately, the

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informant mother went to the house of the accused by crossing

backside compound, and saw that the accused in naked condition.

Accused made to stand the minor victim on a cot and her

undergarments were removed. The accused was inserting his penis

into the vagina and anus of the minor. After seeing the things,

informant screamed and got rescued her daughter from the clutches

of the accused. She had informed the things to the nearby residents.

After return to her house, she called her husband and then went to

the police and lodged report.

4. P.W. 8 - P.I. Rokde, undertook investigation. He visited

the place of occurrence and drew panchnama [Exh.47]. He has sent

the victim as well as the accused for medical examination. Clothes

of victim were seized. Necessary samples for chemical analyzation

were collected. On completion of investigation final report came to

be submitted in the Special Court. The accused denied the guilt.

The prosecution has examined in all 9 witnesses to establish the

leveled charges. The trial Court considered the evidence, heard

submissions and found that the offence was established beyond

reasonable doubt, and accordingly passed the judgment and order of

conviction.

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5. In order to convince the un-sustainability of the

impugned judgment, learned counsel for the appellant took me

through the evidence and certain documents. He has pointed out

certain inconsistencies and stated about improbabilities. He has

criticized the evidence of informant, and victim by every possible

angle. According to him, the medical evidence does not support the

prosecution case. He is particular in pointing out that the chemical

analyzers report does not corroborate the prosecution case.

Reminding the rigor of burden of proof on prosecution, he urged for

reversal of the judgment.

6. Per contra, learned A.P.P. has strongly supported the

judgment and order of conviction. He has made a point that the

victim's unshattered testimony itself is sufficient to fasten the guilt.

Besides that the victims' evidence is corroborated by her mother,

who was eye witness to the occurrence. He took me through the

evidence of medical officer to state that there were injuries at the

genitals of the victim which strongly supports the prosecution case.

He would submit that the defence of false implication is untenable.

It is his submission that on the date of occurrence itself the FIR has

been lodged, which eliminates the chances of concoction. In short

he would submit that the impugned judgment is flawless, hence,

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calls no interference.

7. To recapitulate the things, on 25.04.2017 in the

morning, the informant - mother was cautioned by her neighboring

lady that her daughter was taken away by the accused at his

residence. Moreover, it was stated that the accused was prone in

child abuse, hence, informant should take care. Immediately,

informant went to the house of accused and saw that the accused

has undressed himself, and was inserting his penis into the vagina of

the minor victim.

8. In order to discharge the burden of proving the offence

beyond shadow of doubt, the prosecution has led evidence of in all 9

witnesses. The prosecution evidence mainly consists of the

evidence of victim, her mother [informant and eye witness],

neighboring lady, medical officers, panch and investigating officer.

Having regard to the nature of accusation, always the evidence of

victim assumes significance. In that view of the matter, the evidence

of minor victim [P.W.3] was gone into. The victim being a child

witness of tender age, the Special Court has put preliminary

questions to understand the intellectual capacity of the victim. The

record indicates that the victim gave rational answers to all

preliminary questions demonstrating her understanding capacity.

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The Special Court on its own satisfaction has recorded the victims

evidence in question-answer form. While answering question no.5,

the victim girl narrated the occurrence that, at relevant time, the

accused made her to stand on the cot. The accused removed her

slacks and put his penis at her urinal place i.e. vagina. The Special

Court has recorded the demeanor of the witness in the form that

most of the time, after putting question, the minor remained silent.

Certainly, that was a natural conduct on the part of the minor who

was barely 7-8 years of age at the time of recording evidence. The

victim was subjected to lengthy cross examination, which infact

ought to have avoided. The defence tried to bring on record certain

omissions from her evidence. The endeavor was to show that the

victim was tutored witness, however, the victim faired in all

questions by denying the suggestion which negates tutoring or about

inimical terms.

9. The learned defence counsel took me to question no.42

where the victim answered in affirmative to the question that her

mother told her to depose against the accused. However, while

answering question no.41, the victim specifically denied that she is

deposing the things as stated by her mother. Moreover, while

answering question no.43, she answered in the negative that she is

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deposing as per instructions of her mother. Entire reading of her

evidence discloses that, the evidence about occurrence is categorical

and has not been shattered during cross examination.

10. True, the child witness is always prone to the tutoring,

however, there is no rule of law that conviction cannot be based on

the testimony of a child witness. As a rule of prudence, Court

always seeks corroboration to the evidence of child witness. In that

regard one can go through the evidence of P.W.1 informant [mother

of victim]. It is her evidence that on the date of occurrence the

neighbouring lady namely P.W.2 Sneha, cautioned her that the minor

victim was taken by accused at his house. She has also stated about

the antecedents of accused that in past the accused had shown

obscene pictures on mobile to her daughter. It is her evidence that

immediately she went to the house of the accused by jumping from

rare side wall, and saw that the accused made her daughter to stand

on a cot. Victims' nicker was removed, whilst the accused was

clothless. She saw that the accused put his penis at the victims'

urinal place.

11. Several suggestions were given during cross-

examination to impeach the worth of this witness. Endeavor was

also made to show that the informants' contention about jumping

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from rare side wall was improbable. In this regard, it is submitted

that the informant lady had worn a saree on the date of occurrence,

therefore, it was impossible to cross the wall by jumping. Infact the

height of wall has not come on record. Though the defence gave

suggestion to number of witnesses that height of wall was around 4

½ to 5 feet, but, everyone denied the same. It is to be understood

that in rural area the surrounding compound always exist for

namesake. At some place it may have certain height, whilst at other

place there happened to be a gap or cover by bushes, therefore,

merely because the informant had worn saree, it cannot be said that

her entire testimony was unbelievable on that count. Besides that

minor improvements are brought on record, but, they do not relate

to the core issue about sexual abuses. In short, the evidence of

informant fully corroborates the minors testimony regarding sexual

abuse. Generally in such type of cases it is hard to get the evidence

of direct witness on the occurrence, however, herein, the mother of

the victim has witnessed the things and had stated the same in

categorical terms.

12. Besides that the prosecution has examined P.W. 2 Sneha,

a neighboring lady. It is her evidence that on 25.04.2017, in the

morning she saw accused taking victim to his house. She deposed

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that after recounting her past experience of accused with her

children, she immediately called the informant and cautioned her.

Though there are certain improvements, however, in substance her

evidence corroborates the version of informant to the extent that she

had asked her to go to the house of the accused to see the things.

Moreover, neighboring person P.W.7 Shantaram has corroborated

the incident to the extent that at the relevant time he saw the

informant mother shouting that the accused had behaved badly with

her daughter. In short, each witness has to say a little bit, however,

it helps to strengthen the evidence of star witnesses of the

prosecution case.

13. The next batch of witness is of medical officers. After

registration of FIR victim was initially referred to Rural Hospital,

Gadchandur for medical examination. P.W.5 Dr. Raziya Parekh has

examined her on the same day. On examination she found abrasion

on the labia majora having size of 1.25 cm on right side. She noted

bleeding and spotting present at private part. Since the victim was

non-cooperative, she was referred to Government Medical College,

Chandrapur for further examination. P.W.9 Dr. Priti Priyadarshani

has examined the victim on the same day. On examination, she

found that there were superficial injuries on the genital area of the

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victim. Small superficial laceration skin deep and multiple punctate

haemorrhages under the skin were seen. She also noted petechial

small haemorrhages, however, they were bleeding. She found small

superficial lacerations on right side labia majora, along with

petechial haemorrhages. The evidence of Medical Officer was

supported by respective medical examination reports.

14. The defence has cross examined both the medical

officers at length. Certain procedural lapses were brought on

record, but, they were insignificant. It was suggested that if the

minor remains un-hygenic or plays in dirt, then she would suffer

itching and there may be abrasion at her private part by scratching.

Moreover, it is brought on record that if a well grown male of 20

years had a sexual intercourse on minor of 5 years of age, then there

would be significant trauma, tear injuries at her genitals. However,

the medical officer was quick enough to add that hygiene condition

of minor was sound. It was also explained that in case of

scratching, there must be old injuries, but, they were absent.

Pertinent to not that at the time occurrence due to intervention by

mother, the accused could not succeed in his object. In order to

constitute an offence of rape or penetrative sexual assault, partial or

slightest penetration of the male organ is sufficient. The possibility

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of causing significant trauma and genital injury may not be present

when there was slight penetration. Therefore, the suggestion given

to discredit minors evidence would not assist. On the other hand,

the medical evidence strongly corroborates the victims evidence that

on the date of occurrence, the accused has inserted his penis, may

be to some extent, in her private part.

15. It is prosecution case that the accused used to show

obscene material on his mobile to small children. The defence has

straneously argued that the prosecution has not proved that there

was obscene material in the mobile of the accused, though it was

seized. True there is no such evidence, but, that by itself would not

falsify the entire prosecution case. The act of showing obscene

pictures to minor was a separate affair, then the actual act of sexual

assault. In absence of evidence about showing obscene pictures, the

rest of the evidence about actual occurrence can be well accepted.

16. The learned counsel for the defence has pointed out

that the chemical analyzer report [Exh.68] discloses that neither

blood nor semen was found on the clothes of the victim. However,

that cannot be a decisive factor in each case, nor it is a requirement

of law. The direct evidence of minor victim and her mother, coupled

with medical report can be safely acted upon without corroboration

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from the chemical analyzers' report. In some cases there may not be

evidence from forensic expert, however, it depends on the facts and

circumstances of each case.

17. Herein it is to be remembered that the act was not

complete, but, the accused was inserting his penis into the vagina of

minor, however, due to intervention, act remained incomplete. In

such a peculiar facts, since there was no complete penetration, there

may not be blood or semen stains on the clothes of the victim,

therefore, the defence cannot muster any strength on the same.

18. It has come in the evidence that the incident took place

on 25.04.2017 around 10 a.m. After incident, the mother called her

husband from his work and then they approached to police and

lodged report at 5 p.m. One has to visualize the actual scenario,

that no sooner there was occurrence, no one would rush to police

station within few minutes. It is a matter of sexual abuse on a child.

Certainly the mother has waited for her husband and on giving

thoughtful consideration went to police station. In view of the

nature of allegations few hours delay cannot be termed as an

inordinate delay, rather it is a case where the FIR has been lodged

assiduously. The quick lodgment of FIR also shows genuineness of

the prosecution case.

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19. On re-appreciation of the entire material it is evident

that the prosecution evidence is cogent, reliable and it fairly

establishes that the accused has inserted his penis into the vagina of

minor. There is no manner of doubt that it is a case of penetrative

sexual assault and the victim being below 12 years of age, the act

amounts to aggrieved form of penetrative sexual assault. The

Special Court in its elaborate discussion has considered the core

issue as well as properly dealt with all submissions.

20. The last alternative submission of the defence is that

having regard to the young age of the accused, leniency be shown.

The prosecution has proved that the accused has committed an

offence of aggravated penetrative sexual assault punishable under

Section 6 of the POCSO Act. The offence was committed on

25.04.2017, at the relevant time the prescribed punishment for the

offence was of rigorous imprisonment for a term which would not be

less then 10 years, but, which may extent the imprisonment for life

along with fine. The Special Court has imposed the minimum

sentence for rigorous imprisonment for 10 years which was

permissible in law. The statute has left judicial discretion to the

Court only to the extent to impose punishment in between the term

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of imprisonment of at least 10 years, which may extend to life

imprisonment. Though the accused is a young fellow, however, the

punishment less than 10 years cannot be imposed due to statutory

mandate. Hence, the submission in this regard though appears to be

convincing, however, cannot be accepted due to statutory rigor.

21. In the result, the judgment and order of conviction is

well maintainable in the eyes of law, hence, the appeal being devoid

of merit, stands dismissed.

JUDGE

Rgd.