Yogesh Bhagwan Salunkhe ... vs The State Of Maharashtra
2021 Latest Caselaw 9547 Bom

                                                                         917.Crl.Apeal.497.17.odt



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO.497 OF 2017
                                  WITH
                CRIMINAL APPLN/1385/2021 IN APPEAL/497/2021

Yogesh Bhagwan Saunkhe (Salunke)
Age : 29 years, Occu.: Education,
R/o. New Raj Nagar,
Behind Kalyani Bunglow, Deopur
Tal & Dist. Dhule.                                               APPELLANT

                          VERSUS

1.       The State of Maharashtra
         through, Deopur Police Station,
         Dule, Dist. Dhule.

2.       Gayatri Kailas Jadhav
         Age : 18 years, Occ: Student
         R/o. Plot No. 5 Survey No.131
         Shriraj Nagar Nagesh Bari Road
         Behind Kalyani Bungalows
         Near Swastik Kirana
         Deopur Dhule.                                           RESPONDENTS

                                         ...
                     Advocate for Appellant : Mr. N.L. Chaudhari
                     APP for Respondent / State : Mr. R.B. Bagul
                   Advocate for Respondent No.2 : Mr. D.G. Nagode
                                         ...

                                    CORAM         :    MANGESH S. PATIL, J.
                                    Reserved on   : 15.07.2021
                                    Pronounced on : 20.07.2021
JUDGMENT :

This is an appeal under Section 374 (2) of the Code of Criminal

Procedure being aggrieved and dissatisfied by the judgment and order

convicting the appellant for the offences punishable under Section 4 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter the

917.Crl.Apeal.497.17.odt

POCSO Act) and under Sections 376, 342 and 504 of the Indian Penal Code

and sentencing him to various substantive sentences and fine maximum of

which being rigorous imprisonment for 8 years and fine of Rs.500/- for the

offences punishable under Section 376 of the Indian Penal Code.

2. The FIR has been lodged by a girl stated to be aged 16 years

and odd on the date of the incident. She alleges that the incident occurred

on 24.11.2015 at about 2:00 pm. When she was studying in the platform in

front of her house the appellant who resides across the road called her. He

pulled her inside the house, closed the door, gagged her mouth and

committed rape on her. He also threatened her of dire consequences. In the

meanwhile her sister Namrata (PW-3) knocked at the door. He threatened

the victim (PW-1) not to disclose the incident to anybody. When the door

was opened Namrata (PW-3) was there and the victim (PW-1) just left

without disclosing the incident. She further alleges that since she was

frightened she did not disclose the incident to anybody. She could gather

courage and narrated the incident to her mother Nirmala (PW-2) on

01.12.2015. Even her mother got confused as to what was to be done. She

narrated the incident to victim's father and it is thereafter that on

04.12.2015 the FIR (Exhibit-44) was lodged. The offence was registered.

The appellant was arrested on the same day i.e. 04.12.2015. Medical

examination of the victim (PW-1) was conducted by Dr. Chaudhari (PW-6)

and that of the appellant was conducted by Dr. Gadhari (PW-7). Their

clothes were seized, samples were drawn those were sent for Chemical

917.Crl.Apeal.497.17.odt

Analysis and in due course of time the charge sheet filed. The matter was

committed to the Special Court. The charge was framed. The appellant

pleaded not guilty and the prosecution led its evidence. The appellant was

then examined under Section 313 of the Code of Criminal Procedure and

was convicted and sentenced as mentioned herein above.

3. The appellant's defence, as can be gathered from the tenor of

the cross-examination of the prosecution witnesses and the reply given

during his examination under Section 313 of the Code of Criminal

Procedure, is to the effect that there was an affair between him and the

victim (PW-1). But since they belong to different castes the relation was not

acceptable to her family members and he has been falsely implicated after

their affair was revealed.

4. The learned advocate Mr. Chaudhari for the appellant would

submit that the appellant has been convicted without their being sufficient

and cogent evidence of commission of the crime. There is an enormous

delay in lodging the FIR of about 10 days. No plausible explanation is

coming forth. This circumstance substantiates the appellant's defence of

false implication. The testimony of the material prosecution witnesses is not

convincing and reliable. The medical evidence also does not concretely

reveal commission of rape. There is serious doubt as to the exact age of the

victim (PW-1). Her date of birth has also not been duly proved and in the

absence of concrete evidence and the unreliable testimonies of the

prosecution witnesses particularly the victim (PW-1), the appellant ought to

917.Crl.Apeal.497.17.odt

have been given benefit of doubt. In the alternative, the learned advocate

would submit that the appellant has been in jail for almost six years. The

maximum punishment meted out to him is eight years of rigorous

imprisonment. He is an unmarried man in thirties and at least may be set at

large by limiting the sentence to the period he has already undergone in jail.

5. Per contra, the learned APP would submit that no importance

can be attached to the delay of 10 days in reporting the matter to police.

Reasonable explanation has been extended by the prosecution for the delay.

It is a matter of rape of a minor girl and not only the girl but even her

parents must have been required to give it a serious thought before

disclosing the incident to the society at large. There is an element of social

stigma attached to it. All these circumstances including the psyche of the

victim and her parents has been taken note of by the learned Special Judge.

The learned APP would further submit that there is a concrete evidence in

the form of extract of Birth Register (Exhibit - 56) to prove the date of birth

of the victim (PW-1) since the record is forthcoming from an official sources.

The conclusion of the learned Special Judge cannot be faulted with as

regard her age.

6. The learned APP would further submit that though the medical

evidence is not concrete, it was bound to be so in as much as the matter

itself was reported belatedly. Therefore not much importance can be

attached for absence of medical evidence regarding rape. Besides, there is a

circumstance noted by Dr. Chaudhari (PW-6) who had noticed an old tear of

917.Crl.Apeal.497.17.odt

hymen at 3 O'clock place which according to him was 5 to 6 days old. No

plausible explanation has been sought to be elicited by the defence to wash

out this circumstance. Therefore this piece of medical evidence clearly

substantiates the allegations of rape.

7. The learned APP would further submit that since it is a matter

of commission of an offence under the POCSO Act, the learned Special

Judge has rightly drawn a presumption under Section 29 of the Act and

expected the appellant to have dislodged the presumption which he has

miserably failed to do. She therefore submits that the learned Special

Judge has rightly appreciated all the aforementioned facts and

circumstances and evidence while reaching the conclusion which cannot be

faulted with.

8. Lastly, the learned APP would submit that since it is a matter of

penetrative sexual assault which is an offence punishable under the POCSO

Act, taking into account the fact that the appellant who is at least 12 or

more years older than the victim having taken advantage of his such

position has sexually exploited the girl. Since the offences of the kind are on

the rise in the society, it would send a wrong signal if he is allowed to let go

without suffering the complete sentence.

9. I have carefully considered the rival submissions and perused

the record and proceeding.

10. Since the incident itself was reported belatedly, after 10 days of

its occurrence, it was bound to result in absence of medical evidence.

917.Crl.Apeal.497.17.odt

Obviously, the medical examination of the victim and the appellant and the

corresponding Chemical Analysis Report do not clinchingly support the

theory of rape.

11. However there is one observation noted by Dr. Chaudhari (PW-

6) regarding presence of a 5 to 6 days old hymen tear at 3 O'clock place. As

has been rightly noted by the learned Special Judge, though suggestions

were put to Dr. Chaudhari (PW-6) to the effect that such tear can occur for

variety of reasons as suggested in the question, there is no corresponding

cross-examination of the victim (PW-1). It is therefore a circumstance which

though in itself may not be insufficient to draw a conclusion regarding

sexual intercourse, can certainly be relied upon as a corroborative piece of

evidence. This is what has been precisely done by the learned Special Judge

while referring to this circumstance in juxtaposition to the ocular evidence.

12. Needless to state that in the absence of concrete medical

evidence the fate of matter hinges on veracity or otherwise of the material

prosecution witnesses. As far as victim (PW-1) is concerned, she has

narrated the incident in accordance with her version in the FIR (Exhibit-44).

Though there is some kind of improvement while describing the actual act in

as much as in the deposition she states about insertion of penis into the

vagina which is conspicuously absent in the FIR, she has specifically stated

about having described the incident in the same fashion even while lodging

the FIR. For that matter the Investigating Officer Mrs. Jadahv (PW-8)

admitted about the victim (PW-1) having narrated the incident in such

917.Crl.Apeal.497.17.odt

manner but has come out with an explanation that she thought it fit to

describe it in vernacular saying that appellant indulged in dirty thing. The

learned Judge has rightly considered the inhibition of persons describing

such acts and has rightly believed the victim (PW-1) ignoring this

circumstance.

13. True it is that the incident is stated to have occurred in the

house of the appellant situated just across the road of the house of the

victim (PW-1). There is also some contradiction in the evidence of victim

(PW-1), her mother Nirmala (PW-2) and her sister Namrata (PW-3) in

respect of the manner in which Namrata (PW-3) had reached the appellant's

house and had knocked at the door. Though the victim (PW-1) is silent

about it, Nirmala (PW-2) and Namrata (PW-3) have stated that it was at the

former's direction that the latter had gone there to call the victim meaning

thereby that perhaps they were aware that she would be found there.

14. In my considered view, this circumstance can be looked at from

a different angle as well. As is noted herein above, the appellant has come

with a tentative defence of consent. Though he does not admit of having

indulged in sexual intercourse, he states that he was having an affair with

the victim (PW-1). The aforementioned circumstance is indicative of the

fact that perhaps, even going by the preponderance of probabilities, the

victim (PW-1) could have voluntarily indulged in sex and perhaps that could

be the reason for delay in disclosing the incident and the delay in lodging

the FIR. However, this is a special case under the POCSO Act and if it can be

917.Crl.Apeal.497.17.odt

established that the victim (PW-1) was still a child as defined under that Act

being below 18 years of age, she was certainly incapable of giving consent

and consequently, the appellant would not be entitled to seek any benefit

from this circumstance. Consequently it would be a matter of the age of the

victim (PW-1) on the date of the incident which would be decisive of the

matter, to which I shall advert a little later.

15. The fact remains that the testimonies of victim (PW-1), her

mother Nirmala (PW-2) and sister Namrata (PW-3) do inspire confidence. It

is trite that minor contradictions here and there are not sufficient to discard

the entire testimonies of the prosecution witnesses. The principle of falsus

in uno, falsus in omnibus is not applicable in India. To the extent the

incident has been described by these witnesses they are entitled to be

believed and have been rightly believed by the learned Special Judge.

Coupled with the oral account, the circumstance regarding a tear of hymen

at 3 O'clock being an old tear of 5 to 6 days certainly would come in aid of

the prosecution to corroborate the version of the victim (PW-1). The

learned Special Judge has correctly appreciated the evidence and has

reached a correct conclusion while holding that there was rape and

penetrative sexual assault.

16. As far as the age of the victim (PW-1) is concerned, the

prosecution examined one Mr. Deepak Bhangale (PW-5) who works as a

Sanitary Inspector with the concerned Grampanchayat where she was born.

He had brought the original Birth Register on the basis of which he testified

917.Crl.Apeal.497.17.odt

that the date of birth of the victim recorded in the official record. He further

identified the signature of one Mr. D.K. Sapdhare under whose signature the

Birth Certificate (Exhibit - 57) was issued. Though this witness was not

having any personal knowledge, he was called upon to testify from the

official record of the village and his personal knowledge was indeed

inconsequential. He specifically stated and identified signature of the then

Village Development Officer Mr. Sapdhare on the Birth Certificate (Exhibit-

57). Though it was elicited during his testimony that there was some over

writing/scratching in the entry in the original Birth Register, when the

victim's mother Nirmala (PW-2) specifically stated victim's date of birth, one

could easily overlook this circumstance of presence of over

writing/scratching in the original Birth Certificate. True it is that the

learned Special Judge has overlooked this aspect. But even on an

independent scrutiny, I do not find it to be a material circumstance to

disprove the age of the victim (PW-1). Consequently no fault can be found

with the conclusion of the learned Special Judge that the victim was aged 16

years 3 months and 10 days on the date of the incident.

17. Apart from the above state of affairs, it is equally important to

note that deviating from the settled norms recognized in criminal

jurisprudence, POCSO Act requires a presumption to be drawn in favour of

commission of the offence and casts the burden on the defence to prove the

contrary. Section 29 of the POCSO Act read thus :

Sec.29 : Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit

917.Crl.Apeal.497.17.odt

any offence under Section 3,5,7 and section 9 of this Act, the Special 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.

As the wording suggests the Special Court is mandated to draw

the presumption and seek the contrary to be proved. Bearing in mind this

provision, it was expected of the appellant to have disproved the allegation

of penetrative sexual assault. Though such a presumption cannot take a

place of substantive proof it can certainly be read in conjunction with the

evidence on the record. If it is so read, the learned Special Judge has clearly

scanned the evidence and has taken aid of this presumption while rightly

concluding about the appellant having failed to dislodged the presumption.

18. Though some tentative attempt was made on behalf of the

appellant to show that he has been falsely implicated due to some political

reasons, the cross-examination of the prosecution witnesses is not concrete

in this respect. Nothing was put by way of concrete suggestion to reveal

either any political motive or some ulterior motive on the part of the

prosecution to falsely implicate him. Pertinently even during his

examination under Section 313 of the Code of Criminal Procedure he has

completely ignored his such defence.

19. Precisely for this reason, the appellant is not entitled to seek

any benefit from the decision of the Supreme Court in the case of Santosh

Prasad @ Santosh Kumar Vs. The State of Bihar ; Criminal Appeal

No.264/2020 (Arising out of SLP (Crl) No.3780/2018). As can be noticed,

917.Crl.Apeal.497.17.odt

in the matter before the Supreme Court there was sufficient evidence which

revealed that the prosecutrix therein was having some animosity with the

accused which is not the fact situation in the matter in hand.

20. In the result, the learned Special Judge has rightly considered

the evidence and has reached a correct conclusion while convicting and

sentencing the appellant.

21. So far as the request for showing some lenience is concerned,

the offence is indeed serious and it would send a wrong signal if the persons

like the appellant are allowed to let go by reducing the sentence. The very

purpose of promulgating the special enactment like the POCSO Act would

be defeated if one decides to take some lenient view. Therefore the request

cannot be considered.

22. The Appeal is dismissed. The Criminal Application

No.1385/2021 is disposed of.

(MANGESH S. PATIL, J.)

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