Rupesh Vijay Raut (In Jail) vs State Of Mah., Thr. Pso Ps Walgaon ...
2021 Latest Caselaw 12270 Bom

                                         1




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

                          CRIMINAL APPEAL NO. 647 OF 2019



               Rupesh Vijay Raut,
               Aged about 23 years,
               Occ.- Labour, Resident of Swalambi
               Nagar, Amravati, Taluka and District
               Amravati.
                                                           ... APPELLANT

                                      VERSUS

              State of Maharashtra,
              through Police Station Officer,
              Police Station, Walgaon,
              Tq. and Distt. Amravati.
                                                          ... RESPONDENT

  _____________________________________________________________
         Shri S.K. Bhandarkar, Advocate for the Appellant.
         Shri M.J. Khan, A.P.P. for respondent/State.
  ______________________________________________________________

                       CORAM                            : VINAY JOSHI, J.
                       CLOSED FOR JUDGMENT ON : 21/08/2021
                       JUDGMENT PRONOUNCED ON : 01/09/2021

  JUDGMENT            :

By consent of learned Counsel appearing for the parties, the

appeal is taken up for final hearing.

2. Failure of appellant/accused in securing acquittal in Atro.

Special Case No.6 of 2014 led him to approach this Court for

challenging the judgment and order of conviction dated 27.08.2019.

The Trial Court held the appellant/accused guilty for the offence

punishable under Sections 323, 377 of the Indian Penal Code, and

Section 4 of the Protection of Children from Sexual Offences Act,

(POCSO) 2012. The Trial Court has imposed sentence to suffer rigorous

imprisonment for seven years along with fine of Rs.10,000/- with a

default clause, for the offence punishable under Section 4 of the

POCSO Act. However, no separate punishment was imposed for the

offence punishable under Sections 323 and 377 of the Indian Penal

Code. The accused was also charged for the offence punishable under

Section 3(ii)(v) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities), Act (for short 'the SC and ST Act), however,

the Trial Court acquitted him from the said charge.

3. The accused has allegedly committed unnatural offence on

victim-boy aged 17 years. The said act also amount to 'penetrative

sexual assault' as defined under Section 3 read with Section 4 of the

POCSO Act.

4. It is the prosecution case that on 03.11.2013, around 2.20 to

2.40 pm., while the victim-boy went to fill petrol in his moped, the

accused Rupesh Raut met him. The accused took off goggle from the

victims' pocket and went away. The victim chased him and asked for

return of goggle. The accused by assaulting victim forcibly made him to

sit on the moped. The accused took victim-boy at secluded place i.e. in

the field on Chandur Bazar Road. By giving threats, accused compelled

the victim-boy to remove his undergarments. By giving life threats, the

accused put his penis into the mouth of the victim as well as inserted at

his anus. Thereafter, the accused took the victim back, gave threats

and left him. The victim returned to his house and informed the things

to his father. In turn, they went to the Walgaon Police Station and

lodged a report (Exhibit 18). The Police registered a crime vide Crime

No.126 of 2013 for the offence punishable under Sections 323 and 377

of the Indian Penal Code. Later on, Section 4 of the POCSO Act has

been added.

5. During the course of investigation, the victim-boy was got

medically examined. The Police have seized cloths and necessary

samples. Panchanama of the scene of offence was drawn. On

completion of investigation, final report came to be submitted in the

Special Court.

6. The Trial Court framed charges vide Exhibit 4. Since the

accused denied the guilt, the prosecution has examined as many as six

witnesses to bring home the guilt of accused. The statement of accused

was recorded in terms of Section 313 of the Code of Criminal

Procedure. The defence of the accused was of total denial and false

implication. The prosecution also banks upon certain documents

namely Spot Panchanama, Medical Examination Report, Birth

Certificate, School admission register, etc.. On assessment of oral and

documentary evidence, the Trial Court held accused guilty for the

offence punishable under Sections 323, 377 of the Indian Penal Code,

Section 4 of the POCSO Act and imposed sentence as aforesaid

mentioned.

7. Heard Shri S.K. Bhandarkar learned Advocate appearing for

accused. He would submit that the Trial Court failed in appreciating

the evidence in proper perspective. There was no eye-witness to the

occurrence. The prosecution has not examined the witness in whose

presence there was a quarrel in between them. It is submitted that

medical evidence does not support the victims' testimony. It is also

submitted that chemical analysis report does not support the

prosecution case. There were no signs of struggle on the person of the

victim. The time line stated by the victim does not matches in view of

distance between the Rangoli Lawn and place of the occurrence.

8. On the other hand, learned A.P.P. Shri M.J. Khan submitted

that the prosecution evidence is sufficient to establish charged

offences. The defence has not challenge that the victim was a minor on

the date of incident. The victims' evidence is fully corroborated by the

medical evidence. The Trial Court has correctly appreciate the

evidence and therefore, judgment and order of conviction calls no

interference.

9. It is the prosecution case that the accused took the victim-boy

to secluded place, put his penis into victims' mouth and also inserting

his penis into the anus of the victim. Since, the accused is charged for

the offence punishable under POCSO Act, it is incumbent on the

prosecution to establish that the victim-boy was minor i.e. child on the

date of occurrence. In order to establish victims' minority, the

prosecution has examined P.W.3 a Junior Clerk from St. Joseph English

Primary School. She has brought original admission register showing

the date of birth of the victim-boy as 14.08.1996, entered into the

register vide entry no.6601. A copy of relevant page of register (Exhibit

34) is produced in support of said contention. Besides that, the

prosecution has produced a birth certificate (Exhibit 55) of the victim-

boy showing his date of birth as 14.08.1996. The birth entry was taken

on 15.08.1996. In terms of Section 35 of the Evidence Act, the birth

certificate issued by the Competent Authority is having presumptive

value. The defence has not challenged the date of birth of the victim in

true sense. Besides that, the evidence of birth certificate and birth entry

in first school attended clearly establishes that the victims' date of birth

was '14.08.1996 meaning thereby he was 17 years and 2 months old on

the date of occurrence. In other words, the victim was a child within

the meaning of Section 2(d) of the POCSO Act.

10. In order to establish the alleged offence, the prosecution is

heavily banking upon the evidence of P.W.1 victim and P.W.6 Dr. Anil

Meshram, who has examined the victim soon-after the occurrence. It is

the victim's evidence that on 03.11.2013, around 2.20 pm, when he

went to fill petrol, the accused met and took off his goggle. The accused

slapped him and made to sit on the moped. The accused took him to

the road side field by putting him under threat. The accused caused

him to remove cloths and also removed his own cloths, put his penis

into the victims' mouth and then also had carnal intercourse. The

victims' testimony was tested by way of cross-examination. Some

omissions are brought on record, but they are of no significance.

11. True, it has come in the evidence that, during meantime, the

accused took victim to one hut and then had a cigarette near Panshop.

According to the defence, the prosecution ought to have examined

witnesses from said place. The prosecution could have made such

exercise, but non-examination of those persons, does not falsifies the

prosecution case, if otherwise, found credible. By placing reliance on

the decision of Supreme Court in case of Phool Singh vs. State (Govt. of

NCT of Delhi) 2011 SCC OnLine Del 3012. It has been argued by

defence that the prosecution has to establish all the circumstances,

leading only to the inference about the guilt of the accused.

Particularly, my attention has been invited to paragraph 13 of the

judgment. In said case, the Supreme Court has reiterated the well-

known principles about appreciation of evidence, in cases based on the

circumstantial evidence. The case in hand is quite distinct since it is not

solely based on circumstantial evidence, but the prosecution has led

evidence of victim. Therefore, defence cannot muster any strength from

the above decision.

12. In order to support the victims' evidence, the prosecution has

examined P.W.6 Dr. Anil Meshram, who was working as a Medical

Officer. It has come in his evidence that on 04.11.2013, around 1.50

am, the victim-boy was brought for medical examination. Upon

examination, he found superficial abrasion over anal region and

superficial injury over the middle finger of the left hand. He opined

about the possibility of unnatural sex. The age of both injuries was

about 10 to 12 hours. Accordingly, P.W.6 Dr. Anil Meshram has issued

medico-legal injury certificate (Exhibit 48). During cross-examination,

the Medical Officer has admitted that he is not sure as to whether

carnal intercourse is taken place with the victim. Admissions given by

the Medical Officer cannot be read in isolation, but requires

consideration along with the victims' direct evidence.

13. It requires to be noted that the alleged occurrence took place

on 03.11.2013 in between 2.20 to 2.40 pm whilst in the late-night,

around 1.50 am, on 04.11.2013, victim was examined by the Medical

Officer. Pertinent to note that the Medical Officer has found superficial

abrasion over anal region and the age of injury was within 10 to 12

hours. Likewise, there was superficial injury over the middle finger of

the left hand of the victim, which was also recent one. The time of

injury matches with the prosecution case regarding the occurrence.

Recent abrasion on the anal region supports the victims' evidence about

unnatural act. It requires to be noted that insertion of genital to any

extent renders completion of the offence. So also, finger injury suggests

the mark of struggle.

14. Learned Counsel appearing for the accused by relying on the

decision of Delhi High Court in case of State (Govt. of NCT of Delhi) vs.

Mullah Muzib 2015 SCC OnLine Del 7228 has submitted that in

absence of medical evidence, the case of carnal intercourse cannot be

established. In said case, the Court noted that the contradictions in

testimony were material, coupled with total absence of medical

evidence. Moreover, the victim was 15 years of age whilst the accused

was adult aged 55 years.. The said decision was totally based on the

facts of said case. Needless to say that, two criminal cases cannot be

identical on facts. Each case bears its' own distinct features, therefore,

evidence is to be appreciated on the basis of given facts.

15. The victims' testimony remained un-shattered on the point of

actual occurrence. Finding of fresh superficial abrasion over anal region

strongly supports the case of unnatural sexual assault. Negative

chemical analysis report on the canvass of direct evidence, does not

make any difference. Moreover, the act of putting penis into the mouth

amounts to penetrative sexual assault within the meaning of Section 3

of the POCSO Act.

16. As per the prosecution case, the incident took place in

between 2.20 to 3.30 pm. The victim stated that after the incident, he

returned to his house in the late afternoon and informed the things to

his father. Thereafter, the victim along with his father, initially went to

Gadgenagar Police Station, then Walgaon Police Station and lodged a

report around 11.00 pm on the same day. Therefore, it is evident that

within few hours from the occurrence, First Information Report was

lodged. Always quick lodgement of report, eliminates the chances of

concoction. In other words, immediate disclosure of occurrence to the

Police, vouches about the credibility of the information. Moreover, no

potential reason surfaced for false implication. Though, there are minor

improvements and inconsistencies, they does not affect the material

evidence on the core issue of sexual assault. The evidence of victim-boy

inspires full confidence, hence conviction can be safely based on his

evidence.

17. In view of the above discussion, on careful examination of

entire material, I have come to the conclusion that impugned judgment

and order of conviction passed by the Trial Court is correct, proper and

legal. Therefore, no interference is called for.

18. Accordingly, the criminal appeal is dismissed.

JUDGE

Trupti