Bombay High Court

Sudhakar Maganrao Koli vs The State Of Maharashtra on 22 February, 2022

Bench: R. G. Avachat

                                                        Cri.Appeal No.935/2019
                                      :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.935 OF 2019


 Sudhakar Maganrao Koli,
 Age 40 years, Occu. Service,
 R/o Pimpri, Tq. & District Jalgaon                  ... APPELLANT

          VERSUS

 1)       The State of Maharashtra,
          (Copy served on the Public
          Prosecutor, High Court,
          Bench at Aurangabad)

 2)       X                                          ... RESPONDENTS


                               .......
 Shri Joydeep Chatterji, Advocate for appellant
 Shri S.P. Sonpawale, A.P.P. for respondent No.1 - State
 Mrs. Pratibha H. Suryawanshi, Advocate for respondent No.2.
                               .......

                                  CORAM :       R. G. AVACHAT, J.
                  Date of reserving judgment : 9th February, 2022
                  Date of pronouncing judgment : 22nd February, 2022


 JUDGMENT :

The challenge in this appeal is to the order of

conviction and sentence passed by Special Judge (Under

POCSO Act), Aurangabad, on 28/8/2019, in Special Child

Prot. Case No.130/2017. The details of the appellant's

conviction and resultant sentences are as under :

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  Sr. Sections                      Sentence       Fine         Default
  No.                                                           sentence
  1      Section 7 punishable       R.I. for 5     2000/-       R.I. for 3
         under Section 8 of the     years                       months
         POCSO Act, 2012
  2      Section 9 punishable       R.I. for 7     5000/-       R.I. for 5
         under Section 10 of the    years                       months
         POCSO Act, 2012
  3      Section 11 punishable      R.I. for 3     2000/-       R.I. for 3
         under Section 12 of the    years                       months
         POCSO Act

All the sentences have been directed to run

concurrently.

The amount of fine, if deposited by the appellant,

has been directed to be paid to the victim as compensation

under Section 357-A of the Code of Criminal Procedure.

The learned Judge has acquitted the appellant of

the offence punishable under Section 376(2)(a)(l) of the

Indian Penal Code and Sections 4 and 6 of the Protection of

Children from Sexual Offences Act, 2012 (the Act of 2012).

2. Facts giving rise to the present appeal are as

follows:-

P.W.1 (informant) was resident of a village in

Cri.Appeal No.935/2019 :: 3 ::

District Aurangabad. He has been serving as a Home Guard.

The appellant had been serving as a Police Head Constable.

Both, the informant and the appellant were residing in the

neighbourhood of each other. The informant has a mother,

wife and four children. The prosecutrix, a 14 year old girl at

the relevant time, is one of the daughters of the informant.

All the family members would reside together. Because of the

nature of job of the informant and the appellant, they had

close acquaintance with each other.

3. The incident took place on 17/5/2017. The

appellant asked the informant to remain at a particular place

awaiting arrival of a particular vehicle. The appellant had told

the informant that the vehicle was carrying Ganja and,

therefore, it should be intercepted. This was nothing but a

ploy to keep the informant busy late in the evening. As such,

the appellant kept the informant stationed at a particular

place from 10.30 p.m. onwards. The appellant went to his

house. He called the prosecutrix to his house and committed

sexual intercourse with her. The informant had a suspicion

over conduct of the appellant. He (informant), therefore,

instead of remaining stationed at a particular place, came his

home to find the prosecutrix absent. Wife and son of the

Cri.Appeal No.935/2019 :: 4 ::

informant had gone to the place of his in-laws. The informant

enquired with his mother about the prosecutrix. She told him

that the prosecutrix was sleeping by her side and might have

gone to answer nature's call. The informant took search for

the prosecutrix in the nearby. He had also been to the police

station to lodge a missing person's report. The Police Station

Officer, however, asked him to take search for her daughter

first. The prosecutrix came home by 4.00 a.m. She told the

informant to have had gone to answer nature's call. On the

way, she slipped. On the following morning, brothers of the

informant came. On their sustained questioning, the

prosecutrix told them that the appellant had called her his

residence. He removed her clothes and had sexual

intercourse with her. The informant and his brothers,

therefore, went to the police station and lodged the First

Information Report (F.I.R.) Exh.23.

4. A crime vide C.R. No.193/2017 came to be

registered and investigated as well. Statements of the

prosecutrix and persons acquainted with the facts and

circumstances of the case were recorded. Scene of offence

panchanama was drawn. The prosecutrix was medically

screened. The appellant came to be arrested. He too was

Cri.Appeal No.935/2019 :: 5 ::

medically examined. On completion of the investigation, the

appellant came to be proceeded against by filing charge

sheet.

5. The learned Judge framed the charge (Exh.15).

The appellant pleaded not guilty. His defence is of false

implication. The prosecution examined 8 witnesses to

establish the charge. It also produced in evidence certain

documents. The witnesses examined by the prosecution are-

P.W.1 informant, P.W.2 prosecutrix, P.W.3 Manisha, aunt of the

prosecutrix, a panch of clothes seizure panchanama (Exh.31),

P.W.4 Santosh, handwriting expert in the office of C.I.D.,

Aurangabad, P.W.5 Dr. Vidula, in whose presence the

prosecutrix was medically screened. The medical

examination reports of the prosecutrix are at Exhs.51 and 52.

P.W.6 Sunil is panch witness to the panchanama of seizure of

SIM Card (Exh.54). P.W.7 Kausalya was a member of Mahila

Dakshata Samiti. In her presence, the police had recorded

statement of the prosecutrix. P.W.8 Kalpana did the

investigation of the crime. On appreciation of the evidence,

the learned Judge convicted the appellant and sentenced as

stated hereinabove.

6. Learned counsel for the appellant would submit

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that, the appellant had not been charged for the offence

punishable under Sections 10 and 12 of the Act of 2012. Still

he has been convicted thereunder. Turning to the merits of

the case, he would submit that, there is no witness claiming

to have had seen the prosecutrix entered the appellant's

residence or exited therefrom. The evidence of the informant

and the prosecutrix is replete with contradictions and

omissions. The uncle of the prosecutrix had beaten her up.

Whatever evidence was given by her was necessarily under

duress. According to learned counsel, the medical

examination report also runs counter to prosecution case.

According to him, moral conviction has no sanction in law.

The learned counsel took this Court through the entire

evidence in the case to ultimately submit that the testimony

of the prosecutrix ought not to have been relied on by the

learned Judge for convicting the appellant. He, therefore

urged for allowing the appeal.

7. Both the learned A.P.P. and the learned counsel

representing the prosecutrix would submit that, the

prosecutrix was 14 years of age at the relevant time. Her age

was not in dispute. Principle- falsus in uno falsus in omnibus

has no application. The Court is under obligation to sift the

Cri.Appeal No.935/2019 :: 7 ::

truth from falsehood, if any. According to them, close reading

of the evidence of the prosecutrix would entail the appellant's

conviction. The trial Court has rightly convicted the

appellant. There is, therefore, no reason for interfering with

the impugned judgment and order.

8. Considered the submissions advanced. Perused

the evidence in the case. Gone through the documents relied

on. Let us appreciate the same.

9. Admittedly, both the informant and the appellant

were serving as Home Guard and Police Head Constable

respectively. Both of them were residing in the

neighbourhood of each other. They have, therefore, close

acquaintance between them. Although the informant has

stated in his examination-in-chief that both of them were

attached to a particular police station, in the cross-

examination, he admitted that, both of them were serving

with two different police stations.

It is in the evidence of the informant that, on the

given date (17/5/2017), the appellant met him by 4.00/ 5.00

p.m. He told the informant to have received a tip off that one

vehicle carrying Ganja was to arrive from Dhule by 12.00

Cri.Appeal No.935/2019 :: 8 ::

midnight. He, therefore, asked the informant to stay at

Kagzipura and to remain at a particular place awaiting arrival

of a particular vehicle. The appellant then went to his police

station. Both of them again met by 10.30 p.m. They took

wine and dinner at Nisarg Dhaba. Then the appellant took

the informant to Kagzipura, left him there and went to his

residence. It is further in the evidence of the informant that

he had suspected conduct of the appellant. He, therefore,

instead of remaining at Kagzipura, came to his home by little

past 11.00 p.m. He noticed the prosecutrix was not home.

His wife and son had been to the house of his parents-in-law.

He, therefore, enquired with his mother about the

prosecutrix. He learnt from her that the prosecutrix was

sleeping by her side and might have gone to answer nature's

call. Since the prosecutrix did not return in a while, the

informant took search for her. He had even been to the police

station to lodge a missing person's report. The Police Station

Officer asked him to take search for the prosecutrix first. He,

therefore, came home. The prosecutrix returned by 4.00

a.m. She told the informant to have had gone to answer the

nature's call. On the way she slipped and felt giddiness.

It is further in his evidence that, on the following

Cri.Appeal No.935/2019 :: 9 ::

morning, his brothers Sanjay and Suresh came. All of them

enquired with the prosecutrix as to where had she been the

previous night. She informed them that the appellant had

called her to his residence and he committed rape of her. The

informant and his both brothers, therefore, lodged the F.I.R.

Exh.23.

10. The learned A.P.P. would submit that, a chit

bearing a particular vehicle number was seized from the

house of the informant. Specimen handwriting of the

appellant was obtained. Both, the chit and the specimen

handwriting were examined by handwriting expert. The

report of the handwriting expert concludes that the sample

handwriting of the appellant matched with the handwriting in

the chit. The learned A.P.P. meant to say that, the appellant,

with a view to keep the informant engaged for 3 - 4 hours on

the fateful night and have a smooth meeting with the

prosecutrix, had given the said chit. The evidence of the

informant is, however, conspicuously silent in this regard. He

did not state anything about having any chit containing the

vehicle number. For want of evidence in this regard, the

handwriting expert's report, which has been duly proved by

the evidence of the expert himself, would in no way bolster

Cri.Appeal No.935/2019 :: 10 ::

the prosecution case.

11. Close examination of the F.I.R. does indicate that,

both the brothers of the informant have also signed the F.I.R.

to show their presence at the police station. Be that as it

may. The informant was subjected to a searching cross-

examination. It is in his evidence that the appellant would

reside along with his wife and their 3 year old child. The

family members of both of them were not on visiting terms

with each other. From his cross-examination, it has come on

record that the following matter had been stated by him for

being recorded in the F.I.R., but the same does not find place

therein.

"The appellant met by 5.00 p.m. and told him to have received a tip off that a truck carrying Ganja was to arrive from Dhule. The appellant had asked him to remain at Kagzipura until 12.00 midnight. He and the appellant had drinks before meal (dinner)."

There is also some material that indicates the

informant to have had not narrated it for being recorded on

the F.I.R.

12. The F.I.R. is not an Encyclopaedia. What has not

been appearing in the F.I.R. appears to have not been on the

Cri.Appeal No.935/2019 :: 11 ::

mind of the informant while he lodged the report. The

omissions amounting to contradiction do not go to the root of

the matter to disbelieve the informant's case that the

appellant had asked him to remain at a particular place

awaiting arrival of a particular vehicle carrying Ganja. From

the evidence of the informant, what has come on record is

that, he returned his home by little past 11.30 p.m. The

prosecutrix was not home. He, therefore, took search for her.

She came home by 4.00 a.m. in the following morning. She

related him and his brothers what had happened with her.

The informant's evidence is not directly on the offences in

question.

13. It is in the evidence of the prosecutrix (P.W.2)

that, there was an acquaintance developed between her and

the appellant for little over a month next before the incident.

The appellant had given her a cell phone. On the given day,

he had asked the prosecutrix to come his home by 11.00

p.m. She refused, fearing her father. The appellant,

therefore, told her that, he would ensure that her father

would remain busy in duty for 2 - 3 hours so as to ensure

their smooth meeting. It is further in her evidence that, little

past 11.00 p.m., the appellant took her to his residence.

Cri.Appeal No.935/2019 :: 12 ::

Closed the door from inside. Laid her on the cot. Asked her

to remove clothes from her person. He slept by her side.

Removed clothes from his person. Kissed her and moved his

hand all over her body. She got frightened. She requested

the appellant to let her go. She heard father giving her loud

calls. She, therefore, asked the appellant to hide her

somewhere. Accordingly, he hid her in bathroom of his

residence. The appellant then latched the bath room and

even the entrance door of his residence from outside and

went away. By 3.00 a.m. he returned. Opened the latch of

the bathroom. He asked her to tell her father that she had

gone to bathroom and on way fell due to giddiness. It is

further in her evidence that, thereafter she went home. She

told her father accordingly. She then went to sleep. In the

following morning, her uncles Devidas, Sanjay and Suresh

came home. All of them questioned her about her

whereabouts on the preceding night. She related them what

the appellant did with her.

14. During her searching cross-examination, it has

come in her evidence that she did not find her father in

drunken state on the fateful night. Her father did not knock

on the door of the residence of the appellant or that of the

Cri.Appeal No.935/2019 :: 13 ::

appellant's landlord in search for her. She did not tell her

grandmother that the appellant had called her to his

residence. Her uncle Devidas beat her up. He, however, did

not beat with a wood or a blowing pipe. She did not make

any complaint about the appellant to anybody until Devidas

beat her up. Devidas asked her to lodge report against the

appellant. She had not accompanied her father to lodge the

F.I.R. She later on went to the police station. P.W.8 Kalpana

Rathod, investigating officer, had recorded her statement

twice. She denied to have had stated in her statement that

the appellant did nothing with her and he shall therefore not

be punished. She also did not state of having afraid of her

family members and she did not want to go back home. She

did not sustain injury due to beating by Devidas. She denied

to have had stated in her statement to have suffered injuries

as a result of beating by Devidas.

15. The prosecutrix was duly confronted with her

statement under Section 164 of the Criminal Procedure Code

and two other statements recorded during investigation.

Omissions and contradictions have been duly proved.

Whatever she has stated in her statement under Section 164

and statements under Section 161 has been categorically

Cri.Appeal No.935/2019 :: 14 ::

denied by her in her evidence before the Court and vice

versa. I propose to marshal her evidence a little later.

Although statement under Section 164 of the Code of

Criminal Procedure has not been specifically marked Exhibit

Number, the prosecutrix was duly confronted therewith. The

investigating officer was also shown the said statement. He

admitted the same as a statement of the prosecutrix recorded

by Judicial Magistrate under Section 164 of the Code of

Criminal Procedure. The learned A.P.P., therefore, could not

be heard to contend that the prosecutrix had not been duly

confronted with her statement under Section 164 of the Code

of Criminal Procedure.

16. P.W.3 Manisha is aunt of the prosecutrix. She is

panch witness to the panchanama of the seizure of the

clothes of the prosecutrix. It is in her examination-in-chief

itself that she had been to the house of the prosecutrix on the

following morning. Devidas beat her up with stick. She took

the prosecutrix aside and enquired with her. She learnt from

the prosecutrix that the appellant had taken her to his house

and committed rape of her. In the cross-examination, P.W.3

Manisha testified that the prosecutrix had suffered injuries as

a result of the beating by Devidas. She had even asked

Cri.Appeal No.935/2019 :: 15 ::

Devidas as to why he was beating her. He did not respond.

He was very much annoyed with the prosecutrix.

17. The medical examination reports (Exhs.51 and

52), proved by the evidence of P.W.5 Dr. Vidula suggest that

the prosecutrix had given history that the appellant had taken

her to his residence. The appellant was alone home. He

kissed her on lips and touched her breasts. She, however, did

not remove her clothes. The medical examination report of

the prosecutrix suggests the following :-

(1) Crush injury on the middle finger nail of right hand.

 (2)      Hymen ruptured.

 (3)      No evidence of fresh injury.

 (4)      No signs of use of force.

 (5)      Sexual intercourse cannot be ruled out.

 (6)      Final opinion reserved pending receipt of Forensic

 Science Laboratory report.

 (7)      The injuries on the person of the prosecutrix were

probably caused by hard and blunt weapon.

18. There is no witness claiming to have had seen the

prosecutrix entered the residence of the appellant or exiting

therefrom on the night of 17/5/2017. The averments in the

Cri.Appeal No.935/2019 :: 16 ::

F.I.R. and the oral evidence of the informant is hear-say. What

has been noted in the medical examination report as history

has not been reiterated by the prosecutrix in her substantive

evidence. The same would, therefore, not reinforce her case

as her previous statement. It is not that the prosecutrix is

branded a lier.

The fact is, however, that, she changed her

version many a times. In her substantive evidence before the

Court, she testified that the appellant had called her to his

residence. She went there. He laid her on the cot. Kissed

her. She, however, did not remove clothes from her person.

On return home, she informed her father and other relations

that she had been out to answer nature's call. On the way,

she fell due to giddiness. Her uncle Devidas beat her up.

Although she denied to have been beaten up with a wooden

log or a blowing pipe, it is in her statement to the Magistrate

(Exh.73) that Devidas beat her up with wooden log and

blowing pipe as well. She has also stated in her very

statement to have had informed her uncle that the appellant

did nothing with her. He left his house bolting the entrance

door from outside by 11.00 p.m. and came back by 3.00 a.m.

She reiterated in the very statement that the appellant did

Cri.Appeal No.935/2019 :: 17 ::

nothing with her. He be not punished. She had fear to her

family members. She did not want to stay her home. She

had a fear to her life at the instance of her family members.

This was the statement recorded by the Judicial Magistrate,

First Class. It was only on her hearing father's loud calls, she

had asked the appellant to hide her. He, therefore, hid her in

the bathroom.

The statement of the prosecutrix recorded under

Section 164 of the Criminal procedure Code does not attribute

anything incriminating to the appellant. The statement was

recorded by none other than a Judicial Magistrate, First Class.

While she gave evidence before the Court, she had come from

her father's residence, meaning thereby, her father and other

relations might have prevailed upon her to give evidence as

they desired her to give. Admittedly, the prosecutrix was

thrashed by her uncle only some time before she gave her

statement to the police, attributing incriminating role to the

appellant herein. What she has stated incriminating against

the appellant before the Court did not find place in her

statement under Section 164 of the Criminal Procedure Code.

While police recorded her statement twice, she was under

influence of her father and other relations. She had even

Cri.Appeal No.935/2019 :: 18 ::

been beaten up immediately therebefore. There is nothing in

the substantive evidence to suggest that the wife and the

minor child of the appellant were not home during the

relevant night. Gaps in the evidence could not be filled in

with surmises and conjectures.

19. None had seen the prosecutrix in the house of the

appellant at any time on the fateful night. According to the

informant, the prosecutrix had told him to have been

subjected to sexual intercourse by the appellant. The same is

hear-say. Immediately before she told the informant and her

uncles what had happened with her the previous night, she

had been thrashed by her uncle with a wooden log and iron

pipe as well to such an extent that injuries were visible on her

person. Under such pressure of the uncle, the prosecutrix

gave her statement to the police, attributing the appellant to

have been physical with her though no sexual intercourse has

been attributed. Again her statement was recorded in the

presence of a member of Mahila Dakshata Samiti, wherein she

stated that the appellant never had sexual intercourse with

her. He only touched her body. While in her statement on

oath recorded by the Judicial Magistrate, she has stated as

under :

Cri.Appeal No.935/2019 :: 19 ::

"माझी आणण पो. सटे. खुलताबाद येथे काम करत असलेले पोलीस कोळी यांचयासोबत माझी एक महहनयापासून ओळख आहे. तयाने मला एकदा हवचारले होते की, मी तुला आवडतो का, मी होय महणून सांहगतले होते. आमही दोघे एकमेकांसोबत बोलत होतो. तयानंतर मला कोळी यांनी हद. १७/७/२०१७ रोजी राती ११.00 वाजता तयाचया घरी बोलहवले होते. तयाचे घर आमचया घरासमोरच आहे. तयांची चांगली ओळख आहे महणून मी तयांचया घरी गेले. तेवहा रातीचे ११.00 वाजत होते. तेवहा कोळीने मला कपडे काढणयासाठी सांहगतले होते. परंतु मी कपडे काढणयास नकार हदला. तेवहा तयाने मला सांहगतले की ठीक आहे , तुझी मजर काढू नकोस. तेवढात माझया पपपांचा आवाज आला. तयांचा आवाज ऐकून मी खूप घाबरले होते व मी कोळीला सांहगतले की मला लपव, नाहीतर माझे पपपा मला मारतील. असे महटलयावर तयाने बाहेर जाऊन घराचया दाराची बाहेरन कडी लावली व तो पो.सटे. जातो महणून गेला. तयानंतर तो राती ३ वाजता आला व तयाने कडी लावलेली उघडली. मी लगेच बाहेर माझया घरी गेले. तेवहा माझया पपपांनी मला हवचारले की, तू कुठे गेली होतीस, मी तयांना तयावेळेस खोटे सांहगतले की मी बाहेर बाथरमला गेले होते . तयानंतर सकाळी ७ वाजता माझे काका देहवदास रंगनाथ मरकड तेथे आले आणण तयांनी मला काहीच न हवचारता लगेच मारायला सुरवात केली. तयांनी मला लाकडांनी फुकणीने मारायला सुरवात केली. तेवहा मी तयांना सांहगतले की मी कोळी यांचया घरी गेले होते. तेवहा मला काकांनी हवचारले की कशासाठी गेली होते . तेवहा मी तयांना सांहगतले की तयाने मला ततथे बोलहवले होते. महणून मी असच गेले होते.

तयानंतर काकांनी हवचारले की तयाने काय केले तुझयासोबत. मी तयांना सांहगतले की तयाने काहीच केले नाही. तो राती ११ वाजता बाहेरन काडी लावून गेला होता. नंतर राती ३ वाजता येऊन तयाने कडी उघडली होती. असे संगीतयलयानंतर माझया काकांनी मला हवचारले की तू ततथे ३ तास होतीस, तयाने काहीना काही केलच असेल तुझयासोबत, मी काकांना सांहगतले की, काहीच नाही केले तयाने, तो बाहेर गेलेला होता. मग तयानंतर माझे पपपा, माझे दोन चुलत काका (१) संजय मरकड (२) सुरश े मरकड हे सवर हमळू न पो.सटे. ला गेले तेथे तयांनी काय केले माहीत नाही.

Cri.Appeal No.935/2019 :: 20 ::

कोळीने काहीच केले नाही, तयाला णशका कर नका. तसेच आता मला घरचयांची भीती वाटत आहे . मला घरी राहायचे नाही, मला माझया घरचया लोकांकडू न जीवाला धोका वाटत आहे. माझे हे बयान तयांना माहहत झालयावर ते मला मारतील. मला इतरत योगय हठकाणी पाठवा. मला खूप णशकायचे आहे. एवढंच सांगायचे आहे."

20. The aforesaid facts have all been duly proved.

What has been stated to the doctor as a history before

examination of the prosecutrix has not been reiterated by her

in her examination-in-chief. The same is, therefore, not

admissible in evidence. In the aforesaid premise, it is just

difficult to disengage truth from falsehood. The appellant

deserves grant of benefit of doubt since the sole evidence of

prosecutrix fell short to inspire confidence. Based on such

evidence, the learned Judge ought not to have convicted the

appellant. Interference is, therefore, warranted with the

impugned order.

21. In the result, the appeal succeeds. Hence the