Rajendra Gangaram More vs The State Of Maharashtra
2022 Latest Caselaw 8092 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.562 OF 2018

Rajendra Gangaram More                        .... Appellant
            Versus
The State of Maharashtra & Anr.               ....Respondents
                               -----
Mr. Prakash V. Vare, Advocate for the Appellant.
Mr. R.M. Pethe, APP for the Respondent No.1-State.
Ms. Vilasini Balsubramanian, Advocate (appointed) for Respondent
No.2.
                               -----

                                  CORAM :SARANG V. KOTWAL, J.

                                  DATE     : 20th AUGUST, 2022

ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 13.3.2018 passed by the Special Judge under POCSO Act,

Greater Bombay passed in Special Case No.353/2016. By the

impugned judgment and order, the appellant was convicted for

commission of offence punishable under Section 4 of the

Protection of Children from Sexual Offences Act, 2012 (for short,

'POCSO Act') and was sentenced to suffer RI for ten years and to

pay fine of Rs.1000/- and in default of payment of fine to

undergo SI for 30 days. The appellant was also convicted for

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commission of the offence punishable under Section 8 of the

POCSO Act and was sentenced to suffer RI for three years and to

pay fine of Rs.1000/- and in default of payment of fine to undergo

SI for 30 days. The learned Judge in clause (3) of the operative

part of the impugned judgment and order observed that there was

no need to punish the appellant for the offence punishable under

Sections 376(2)(i),(n) of IPC as per the provisions of Section 42 of

the POCSO Act. He was acquitted from the charges of commission

of offence punishable under Section 506 of IPC. In addition, he

was directed to pay compensation of Rs.25,000/- to the victim as

per the provisions of Section 33(8) of the POCSO Act. The amount,

if deposited, was directed to be given to the victim. The amount

was directed to be deposited within one month from the date of

the impugned order. In default, he was directed to undergo SI for

one year. All the offences were directed to run concurrently. He

was given set off under Section 428 of Cr.P.C.

2. Heard Shri Prakash Vare, learned counsel for the

appellant, Shri R.M. Pethe, learned APP for the respondent No.1

and Ms. Vilasini Balsubramanian, learned appointed counsel for

respondent No.2.

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3. The prosecution case is that the victim was about

fifteen & half years of age at the time of incident. The appellant

was residing in the nearby room. The victim was residing with her

grand-parents as her mother had expired and her father was not

looking after her. The victim used to return from her school at

around 12.00 p.m. Her grand-parents used to go to attend their

work. Therefore, she used to be alone at home. It is the case of the

prosecution that the appellant used to take advantage of this

situation. He used to visit her house and commit all these offences

for which he is convicted. Ultimately on 12.5.2016, the grand-

mother came to know about it from a neighbour and she went to

the police station and lodged FIR vide C.R. No.212/2016 at

Dharavi police station, Mumbai under Section 354 of IPC and

under Sections 8 & 12 of POCSO Act.

4. The appellant was arrested on the same day i.e. on

12.5.2016 and since then he is in custody. The victim was sent for

medical examination and at that time it was noticed that the

hymen was torn. The Medical Officer, therefore, opined that there

was a possibility of commission of rape and, therefore, on

12.5.2016 itself Section 4 of POCSO Act and Section 376(2)(i),(n)

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of IPC were added.

5. The investigation was carried out. The statements of

the witnesses were recorded and the charge-sheet was filed. The

case was committed to the court of Special Judge. The appellant

faced the trial.

6. During trial, the prosecution examined seven witnesses

including the victim, her grand-mother, a neighbour, the Medical

Officer and the investigating officers. The defence of the appellant

was that he was doing the work of preparing sweetmeat boxes and

the children playing in the area used to cause damage and he used

to scold the children including the victim. Therefore, the victim

implicated him. She was instigated by another neighbour to do so.

He was falsely implicated. The appellant examined two defence

witnesses to support his case that because of the damage caused

by the children he used to scold the children and that is why he

was implicated.

7. After considering the submissions made by both the

parties in the background of the evidence led by both sides, the

learned Judge convicted and sentenced the appellant, as

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mentioned earlier. Learned Judge relied on the evidence of the

victim herself in reaching her conclusions. She observed that there

was no reason for the doctor to give false evidence. Even the

history given by the victim to the doctor was important. Learned

Judge, however, erroneously relied on the history given by the

appellant to the Medical Officer ignoring Section 26 of the

Evidence Act. At that time the appellant was in police custody

and, therefore, such history amounting to confession was

inadmissible under Section 26 of the Evidence Act.

8. The prosecution case is based on the evidence of PW-1.

She has deposed that she was residing with her grand parents. Her

date of birth was 26.11.2000. A copy of the birth certificate was

given by her grand-father to the police. It is produced on record at

Exhibit-14. The date of birth mentioned in the birth certificate was

26.11.2000. It was issued by the Registrar working with Municipal

Corporation of Greater Bombay. She has deposed further that the

appellant used to come to her house. He used to give her Rs.50/-

and he used to remove her clothes and used to touch her chest and

her private parts. She narrated that incident to her grand-mother

and her neighbour PW-3. The grand-mother then took PW-1 to the

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police station. The police enquired with her and recorded her

statement and also recorded her supplementary statement. It is

her case that she narrated before the police that the appellant had

committed rape on her. She deposed that when he committed

rape, she shouted but he used to ask her to keep quiet. She has

told this incident to PW-3 as well. The police took her to hospital.

She narrated the incident to the Medical Officer. He examined her.

PW-1 identified the appellant in the Court. She further deposed

that her statement was recorded under Section 164 of Cr.P.C.

In her cross-examination, she deposed that her grand-

mother had filed a complaint against the appellant with Dharavi

police station on 2.2.2016. She has mentioned that pursuant to

that complaint the police did not arrest him in that connection.

The allegations in that complaint were that the appellant used to

visit her house and used to touch her inappropriately. Her grand-

mother had questioned the police as to why the appellant was not

arrested. After that he was arrested in that police case. According

to her, she narrated that particular incident to the doctor when she

went to the doctor for the first time.

It is very important to note that no such record is

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brought forth by the investigating officer or by any other witness.

There is no record to show that any such complaint was ever filed

by PW-1's grand-mother on 2.2.2016 or that the appellant was

arrested in that connection.

In her cross-examination, she admitted that the

appellant used to prepare sweetmeat boxes in the open space in

front of his house. The children used to play in that area. Because

of that his work used to be obstructed and the appellant used to

warn or beat the children playing there. Significantly she has

stated that she went to the police station for the first time on

30.5.2016. She has then categorically stated that she had not gone

to the police station prior to that date. The police had recorded

her statement on 30.5.2016. On that date, she narrated to the

police that the appellant used to come to her house and used to

switch off the light and used to move his hand all over her body.

After that statement, she was sent to a doctor for medical

examination. She has specifically stated that prior to 30.5.2016

she had no occasion to go to the hospital.

9. PW-2 is the grand-mother of the victim. She has

deposed that during the day time, she and her husband used to go

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to attend their work. Her husband was a gardener. They used to

return only in the late evening. The victim used to be alone at

home. The victim had told her that there was pain in her private

parts. She told PW-2 that the appellant used to visit her house,

used to give Rs.50/- and used to move his hand over her chest and

private parts. He used to tell PW-1 not to disclose this fact to

anybody else. She further told this witness that this was going on

for many days. PW-2 did not believe her. Therefore, PW-3 a

neighbour asked the victim about the same. According to PW-3-

the neighbour, there appeared to be some substance in what PW-1

was telling them. And, therefore, they went to the police station

and lodged the report. The FIR is lodged by PW-2. It is produced

on record at Exhibit-15. After that the victim was taken to Sion

Hospital. In the hospital, the doctor told her that there were

physical relations kept with the victim. The grand-mother

thereafter asked the victim about it. At that time, the victim told

her that the appellant had kept physical relations on four to five

occasions. After that the police recorded supplementary statement

of PW-1. She took the victim to Mazgaon Court where her

statement under Section 164 of Cr.P.C. was recorded.

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In her cross-examination, she admitted that the

children playing in front of his house caused inconvenience and

disturbance to the appellant. Before May, 2016 PW-1 had never

disclosed about any incident to her. During that period, PW-2 had

gone to her native place on four to five occasions and on all these

occasions, the neighbour PW-3 used to take care of the victim. She

further deposed that the victim told her on the same day when the

medical examination was conducted that there were physical

relations between her and the appellant.

10. PW-3 is the neighbour who is referred to by PW-2 in

her deposition. She used to reside in the neighbourhood but she

had shifted from that place and had gone to reside at Dombivali

from 30.4.2016. She has deposed that the victim used to be alone

in her house during the day time and the appellant used to visit

the victim's house regularly. She questioned the victim. At that

time, the victim had told her that the appellant used to touch her

breasts and private parts. She further told that he put something

on her private parts.

In her cross-examination, she deposed that she told the

victim's grand-mother to take her care because the appellant used

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to visit her house. In her cross-examination she denied having

stated before the police that the victim had told her that the

appellant had committed rape on her. She could not assign as to

why that fact was not mentioned in the police statement.

11. PW-4 was the Chairman of the Society where PW-2 was

residing. He had advised PW-2 to approach the police.

12. PW-5 Dr. Hemant Kukde had examined the victim.

According to him, on 12.5.2016 the victim was brought to Sion

Hospital. As per the history given by the victim, the appellant had

sexually assaulted her by touching and hugging her. He used to

touch her breasts. He used to give Rs.50/-. This witness has

deposed that the victim was not sure about the penile penetration

but she used to feel pain in her abdomen. There was reference to

the victim suffering from bleeding but the date mentioned was

August 2016. It appears that it was a typographical error. In any

case, this particular allegation and this particular date does not

match with the prosecution case. On the examination of the victim

he did not find any external injury. The hymen showed old tear at

2 O'Clock position. There was no perineal tear present. There was

no external injury anywhere. On the basis of this examination, he

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opined that overall finding was consistent with old sexual

intercourse/ assault.

He also examined the appellant and recorded the

history given by the appellant. There was nothing to suggest that

the appellant was not capable to perform sexual intercourse,

according to his opinion. He denied the suggestion that the injury

to hymen was possible due to cycling or running.

13. PW-6 PSI Anand Maneshwar was the investigating

officer. He has deposed that initially FIR was registered under

Section 354 of IPC read with Sections 8 & 10 of the POCSO Act.

Then the victim was sent for medical examination on 12.5.2016.

After the medical examination, Section 376 of IPC read with

Section 4 of the POCSO Act was added on 12.5.2016 itself. He

conducted the spot panchnama. It is produced on record at

Exhibit-23.

In the cross-examination, he categorically admitted

that it did not happen that on 2.2.2016 the victim had lodged a

report against the appellant, or that she was taken for medical

examination on 2.2.2016. He denied any knowledge of the

victim's statement being recorded on 30.5.2016 or whether she

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was referred for medical examination on that date. He admitted

that initially the victim had not stated about the rape even the

grand-mother of the victim had not stated about the rape.

14. PW-7 PI Madhukar Sanap has deposed that he had

recorded the supplementary statement of the grand-mother. The

record shows that it was recorded on 16.5.2016. The victim's

supplementary statement was recorded on 30.5.2016 by a woman

police constable. This witness had then filed the charge-sheet. He

also admitted that in the first statement dated 12.5.2016 the

victim did not make any accusation about the offence of rape.

15. After the evidence of prosecution was over, the

statement of the accused-appellant was recorded under Section

313 of Cr.P.C. in which he has taken a defence that he was falsely

implicated because he used to scold the victim as his boxes used to

be damaged. There were quarrels between him and PW-3 who

instigated PW-2 to lodge a false case against him. According to

him, his life was spoiled due to this false case. He also examined

two defence witnesses. The first defence witness DW-1 Madhukar

Mali was residing in the same locality. He has deposed that the

victim and other children used to play in front of the appellant's 12 of 20 : 13 : 210.APEAL-562-18.odt

house. His boxes used to get damaged. Because of that, the

appellant used to shout at them including the victim, who

complained to her grand-parents. The grand-parents had

threatened the appellant.

16. DW-2 Geeta Kamble was another resident of the

locality. She has also deposed that the children used to damage

the appellant's boxes and on one occasion she had seen the quarrel

between the appellant and PW-2. She saw that the appellant was

threatened by PW-2.

17. Learned counsel for the appellant submitted that the

narration of the victim is not believable. She did not inform about

those incidents to anybody. According to her, it was going on for a

long period and her silence was important. When PW-2 had gone

to her native place, at that time PW-3 was looking after her. Even

then PW-1 had not told anything to PW-3. In any case, PW-3's

evidence does not inspire confidence.

18. Learned counsel further submitted that the victim has

not given any details or has not given even any approximate date

and month when the incident of rape had taken place. He further

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submitted that her cross-examination shows that there was an

attempt made by her to implicate the appellant in the month of

February itself but at that time the police had not paid any

attention which shows that the victim's family and the victim were

interested in implicating the appellant falsely. He relied on the

evidence of the defence witnesses to show that there was a reason

as to why the victim was deposing against him.

19. Learned counsel for respondent No.2 as well as learned

APP opposed these submissions. They submitted that there is no

reason to disbelieve the victim who was barely 15 & ½ years of age

at the time of incident. The appellant used to pay her money and

she had kept quiet. In such cases, delay in lodging the FIR can be

accepted. There was no reason for her to implicate the appellant

falsely. Her evidence is sufficiently corroborated by PW-2 & PW-3.

Her evidence is further corroborated by the medical evidence.

The Medical Officer was an independent witness and he had no

reason to implicate the appellant falsely.

20. I have considered these submissions in the backdrop of

the evidence led in the trial Court by both the parties. The FIR at

the first instance was lodged only under Section 354 of IPC and 14 of 20 : 15 : 210.APEAL-562-18.odt

under Sections 8 & 12 of the POCSO Act. As far as those

allegations are concerned, there is no reason to disbelieve the

prosecution case based on the victim's deposition to that extent.

She has deposed that the appellant used to visit her house and

used to touch her inappropriately. The allegations would squarely

fall within the meaning of Section 7 of the POCSO Act for which

punishment is provided under Section 8 but since it was repeated

on more than one occasion, on the basis of Section 9(l), the sexual

assault becomes aggravated sexual assault and it is made

punishable under Section 10 of the POCSO Act which provides for

imprisonment for the term which shall not be less than five years

but which may extend to seven years and also for fine. From the

record of this case, the offence under Section 9 punishable under

Section 10 is made out. Her evidence to that extent is supported

by PW-2. After PW-2 came to know about the incident, she has

lodged the F.I.R.. To that extent, PW-1 and PW-2 support each

other. There is no reason to disbelieve that part of the evidence.

21. However, other serious allegations need serious

consideration. The allegation of commission of rape or penetrative

sexual assault was not made in the FIR. The victim had told her

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grand-mother PW-2 about the acts committed by the appellant and

even on that occasion there was absolutely no reference to offence

of rape or penetrative sexual assault. The allegations were

restricted only to the offence described under Section 7 of the

POCSO Act and under Section 354 of IPC. It was only after the

medical examination that the doctor opined about the possibility

of rape. These allegations are made by the grand-mother i.e. PW-2

in her statement recorded on 16.5.2016. She had not immediately

made allegations of rape on 12.5.2016 though those serious

sections were added on that date itself. Apart from that it is also

important to note that the victim had made a reference to the fact

that she had gone to the police for the first time on 30.5.2016.

She has not supported the prosecution case that she had gone on

12.5.2016 to the police station and had made any allegations. She

has also deposed that she was taken for the medical examination

for the first time on 30.5.2016. Therefore, there is a serious

discrepancy about the prosecution case in respect of these aspects

and a serious doubt is created regarding allegations of penetrative

sexual assault.

22. Apart from that the victim has also admitted that there

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was some previous complaint made to the police station on

2.2.2016, for which the appellant was arrested at her behest. The

investigating officer has denied these allegations. Those

allegations were also pertaining to the offence of outraging

modesty under Section 354 of IPC. There is no further reference

or record in respect of those allegations. Thus, it is clear that from

February, 2016 itself the victim had tried to make allegations

against the appellant. But even then there were no allegations of

commission of rape. Thus, there is a gap between February and

May, 2016. During this period, there were no allegations of

penetrative sexual assault against the appellant. All these factors

have remained unexplained. The date of medical examination is

in doubt. PW-1 has deposed that she was examined on 30.5.2016

and not on 12.5.2016.

23. The evidence of the defence witness has proved the

defence of the appellant to some extent within the parameters of

preponderance of probability and, therefore, there is a possibility

of exaggeration on the part of the victim to implicate the appellant

in a more serious offence. By examining defence witness, the

appellant has rebutted presumption under Section 29 of the

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POCSO Act. Therefore, the appellant deserves benefit of doubt to

that extent. Thus, based on this consideration, I am of the opinion

that the prosecution has proved its case beyond reasonable doubt

only to the extent of commission of the offence under Section 9 of

POCSO Act punishable under Section 10 of the POCSO Act. The

rest of the offences are not proved and the appellant deserves to be

acquitted from those charges. The judgment and order needs to be

modified in that behalf to that extent. As far as the compensation

part is concerned, since I am holding that the offence under

Section 9 read with 10 of POCSO Act is proved, the compensation

as awarded by trial Court will have to be paid by the appellant.

However, I am inclined to grant further time to pay the

compensation. Learned counsel for the appellant states that he has

not paid the fine amount as of today.

24. Hence, the following order :

:: O R D E R ::

i.         The appeal is partly allowed.
ii.        The appellant is acquitted from the charges of commission of

the offence punishable under Section 4 of the Protection of

Children from Sexual Offences Act, 2012, and also from the

charges of commission of offences punishable under Section

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376(2)(i) and 376(2)(n) of the Indian Penal Code.

iii. The appellant is convicted for commission of the offence

punishable under Section 9 read with 10 of the POCSO Act.

iv. The appellant is in custody since 12.5.2016. Therefore he is

sentenced to suffer RI for the period which he has already

undergone which is more than the minimum sentence of five

years. The appellant shall pay the fine of Rs.5,000/- for this

offence and in default of payment of fine he shall undergo SI

for three months.

v. In view of the conviction and sentence under Section 9 read

with Section 10 of the POCSO Act, the conviction and

sentence under Section 8 of the POCSO Act does not survive

as mentioned in clause (3) of the impugned judgment and

order.

vi. The appellant was directed to pay compensation of

Rs.25,000/- to the victim as per Section 33(8) of the POCSO

Act. The amount if deposited was directed to be paid to the

victim. That part of the operative part of the impugned

judgment is maintained. However, the appellant is permitted

to deposit that amount before the actual release of the

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appellant from prison. If he does not deposit that amount

before his release then he shall undergo further SI for one

year from today.

vii. If the appellant deposits the compensation and fine amount

within a period of next one year and three months from

today, then he shall be released on that date. Otherwise, the

maximum remaining sentence including the in default

sentence would be one year and three months from today.

The amount shall be deposited in the trial Court.

viii. On deposit of such compensation amount, the amount shall

be paid to the victim at the earliest.

ix. The other clauses from the impugned order are retained as

they are.

x. He is also granted set off under Section 428 of Cr.P.C..

xi. Criminal Appeal is disposed of in the aforesaid terms.

. Advocate Ms. Vilasini Balsubramanian who is appointed

to represent respondent No.2 shall be paid professional charges in

accordance with the rules.

                                                                                      (SARANG V. KOTWAL, J.)

            Digitally signed
            by
            PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO             Deshmane (PS)
PRAKASHRAO DESHMANE
DESHMANE    Date:
            2022.08.23
            18:17:41
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