Bombay High Court
[email protected] S/O. ... vs State Of Maharashtra Thr. P.S.O., ... on 12 July, 2022
Bench: S.B. Shukre, G. A. Sanap
901.apeal.593.2018 judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 593 OF 2018
Siddharth @ Bollywood S/o. Bapurao Meshram
Convict No.C-9471 detained in Central Prison,
Nagpur, Aged about 40 yrs, Occ. Labourer,
R/o. Masters Colony, Wardha, Tahsil &
District Wardha .. APPELLANT
...VERSUS...
1. State of Maharashtra,
Through P.S.O., Wardha,
Tah. & Distt. Wardha
2. XYZ (Victim) Complainant /
Informant, In Crime 44/2013,
Registered in Police Station,
Wardha City, Wardha. .. RESPONDENTS
-----------------------------------------------------------------------------------------------
Shri R. R. Vyas, Advocate (Appt.) for the appellant
Shri S. S. Doifode, APP for the respondent No.1
-----------------------------------------------------------------------------------------------
CORAM : SUNIL B. SHUKRE AND G. A. SANAP, JJ.
RESERVED ON : 22/06/2022
PRONOUNCED ON : 12/07/2022
JUDGMENT : (PER : G. A. SANAP, J)
1] In this appeal, challenge is to the Judgment and order, dated
15.11.2016, passed by the learned Special Judge, Wardha whereby the
appellant came to be convicted for the offences punishable under Section
376 (2)(i), Section 506 of the Indian Penal Code [for short 'IPC'] and
under Section 4 of the Protection of Children from Sexual Offences Act,
901.apeal.593.2018 judge.odt
2012 [for short 'POCSO Act'] and sentenced to suffer rigorous
imprisonment for life and to pay fine of Rs.5,000/- and in default of
payment of fine to suffer rigorous imprisonment for six months under
Section 376(2)(i) of the IPC and rigorous imprisonment for two years and
to pay a fine of Rs.1000/- and in default of payment of fine to suffer
rigorous imprisonment for three months under Section 506 of the Indian
Penal Code. No separate sentence has been awarded for the offence
punishable under Section 4 of the POCSO Act.
2] The facts leading to this appeal are as follows:
In order to hide the identity of the minor girl in this
Judgment she is referred as 'victim'.
PW-5- Jyoti is the mother of the victim. First Information
Report was registered on her oral report dated 18.01.2013. PW-5,
mother of the victim, had reported to the police that the appellant
Sidharth @ Bollywood Meshram was residing at his sister's house in the
same locality. The victim was born on 16.08.2005. At the time of
incident the victim was studying in 2nd standard. She has stated in her
report that on 18.01.2013 in the evening she came to know about the
incident. She is doing work as a Maid Servant. When she came back
901.apeal.593.2018 judge.odt
from her work at 19:00 hours, the women from her locality namely Jangle
Madam, Kale bai and mother of one Jugal were standing near her house.
The victim was with them. At that time, Jangle Madam informed her that
the appellant had committed outrageous act with the victim. Jangle
Madam in brief narrated the incident to her. The informant took the
victim to her house. On her inquiry the victim disclosed that 7 days
before, the appellant on the pretext of giving chocolate took her in his
house. The appellant shut the door of his house. The appellant told her
that she had worn her undergarments on a wrong side. The appellant
removed her undergarment as well as removed his clothes. The appellant
slept on her body. The appellant touched his private part to the private
part of the victim. The victim started shouting. The appellant gagged her
mouth and threatened her not to shout. It is stated that the victim further
informed PW-5 that the appellant threatened her to repeat the said act if
the incident was disclosed by the victim to anybody. On the next day in
the morning i.e. on 19.01.2013 PW-5 with the victim went to the Police
Station and reported the matter to the police. On the basis of her report,
crime bearing No. 44 of 2013, for the above offences, came to be
registered against the appellant. PW-7 Vanmala Pardhi, API, attached to
Wardha City Police Station conducted the investigation. She sent the
901.apeal.593.2018 judge.odt
victim for medical examination. She also sent the appellant, on arrest, for
medical examination. PW-7 drew the spot panchnama. Various articles
and blood samples were seized during the investigation. PW-7 recorded
the statements of the witnesses and on completion of the investigation
filed the charge-sheet against the appellant in Special Court.
3] The learned Special Judge vide Exh. 3 framed the charge
against the appellant. The appellant on being explained the contents of
the Charge pleaded not guilty to the charge. His defence is of total denial.
In order to bring home guilt of the appellant, the prosecution examined 8
witnesses. The prosecution tendered documentary evidence. The learned
Special Judge on consideration of the material on record, found the
appellant guilty of the above offences and convicted the appellant and
sentenced him as above. Being aggrieved by this Judgment and order, the
appellant has come before this Court in appeal.
4] We have heard the learned Advocate for the appellant and
learned APP for the State. We have perused the record and proceedings.
5] The learned Advocate appearing for the appellant submitted
that the delay initially in reporting the incident by victim to PW-5 and
901.apeal.593.2018 judge.odt
PW-6 and the delay of one day in lodging the actual report has not been
explained. In the submission of the learned Advocate, considering
seriousness of the charges, the delay ought to have been explained and in
the absence of explanation the learned Judge ought to have granted the
benefit of doubt to the appellant. The learned Advocate further
submitted that there are material omissions and inconsistencies in the
evidence of the victim as well as in the evidence of PW-5 mother of the
victim and PW-6 Mrs Jangle. The learned Advocate submitted that as
such there is a scope to doubt the credibility of these witnesses. The
learned Advocate submitted that the evidence of the victim does not
inspire confidence and therefore, the version of the victim on the point of
the incident is required to be discarded. The learned Advocate submitted
that the medical evidence of the examination of the victim does not
corroborate the evidence of the victim as well as the evidence of PW-5
and PW-6. In the submission of the learned Advocate for the appellant,
therefore, in the teeth of such a shaky evidence, the defence of the
appellant of the false implication becomes probable.
6] The learned APP submitted that the evidence of Medical
Officer PW-3 Dr. Krushna Shende, who had examined the victim, is
cogent and reliable. The oral evidence of the medical officer has been
901.apeal.593.2018 judge.odt
corroborated by his medical examination report at Exh. 19. The learned
APP submitted that the history of assault was narrated by victim girl to
the medical officer PW-3 and it was recorded by PW-3 in Exh. 19. It is
submitted that the history of assault narrated to an independent witness
makes the evidence of the victim credible. The learned APP submitted
that the opinion of the medical officer that the hymen was partially
ruptured and which indicated the attempt of the intercourse with the
victim has not at all been shaken. The learned APP submitted that the
learned Special Judge found the evidence of the victim, as well as the
evidence of PW-5 and PW-6, on the point of actual occurrence credible.
In the submission of the learned APP there is no reason to disbelieve and
discard the evidence of victim and the evidence of PW-5 and PW-6. The
learned APP submitted that in fact there was no delay, in as much as, the
victim narrated the incident which had occurred 7 days prior to
18.01.2013. The learned APP submitted that the PW-5 has placed on
record the explanation for lodging the report on the next day morning.
The learned APP submitted that the Judgment and Order passed by the
learned Special Judge is well reasoned and does not warrant interference.
7] We have minutely perused the evidence of the prosecution
witnesses. As per the case of prosecution, on the date of the incident, the
901.apeal.593.2018 judge.odt
victim was about 7 years old. Exh. 103 is the birth registration certificate
of the victim. The same has been admitted by the defence Advocate
before the trial Court. The date of birth mentioned in this certificate is
16.08.2005. In our view, therefore, this undisputed evidence proves that
on the date of the incident the victim was 7 yrs 4 months 26 days old. It
is also not disputed that the appellant was residing at the house of his
sister in the same locality. It has come in the evidence that there are 5-7
houses in between the house of the PW-5 and the house of the sister of
the appellant, where he was resided. There is no dispute about the
identification of the appellant inasmuch as he was known to the victim
and to the witnesses before the incident.
8] The perusal of the Judgment of the learned Special Judge
would show that on minute scrutiny and appreciation of the evidence, the
learned Judge found the evidence of PW-5 & PW-6 and victim worthy of
credence. In order to satisfy ourselves about the credibility and reliability
of the said evidence we have minutely perused the same. The victim has
categorically stated before the Court about the incident. Her evidence on
the point of occurrence of the incident is consistent with the one reported
to the police by PW-5. She has stated that on the date of incident, which
901.apeal.593.2018 judge.odt
occurred seven days prior to 18.01.2013, she alongwith other children
from her neighborhood was playing the game of hide and seek, in front of
the house of the appellant. She has stated that the appellant came there.
She has further stated that the appellant called her to his house on the
pretext of giving chocolate. She went there. The appellant, thereafter,
closed the door. The appellant told her that she had worn her knickers on
wrong side. On this pretext, the appellant removed her knickers and slept
on her person. In her further evidence she has stated that when she cried,
the appellant gagged her mouth. The appellant after her cries set her free.
She has stated that the appellant threatened her to repeat the same act, if
the incident was disclosed to anybody. She has stated that she went to the
house of PW-6 Jangle Madam and narrated the incident to her. She has
also deposed that when her mother returned home from work she
narrated the incident to her.
9] PW-8 is the child witness. Her competence to depose before
the Court was verified by the learned Judge before recording her
evidence. On the basis of the some of the admissions given by her, on the
point of her visits to the Court on 8-10 occasions, it is pointed out that
PW-8 is the tutored witness and therefore, it would not be safe to rely on
901.apeal.593.2018 judge.odt
her testimony. Save and except this material, despite searching cross
examination, the core of her evidence has not been shaken. She has
admitted in her cross examination that Jangle Madam is not her class
teacher or teacher in the School, where she is studying. It has come on
record in her cross examination that Jangle Madam is residing near to
their house. She has further stated in her cross examination that on the
date of incident, her elder sister was also playing with her. In further part
of her cross examination she has admitted that the appellant often used to
come to her house. She has denied the suggestion that the quarrel had
taken place between her father and the appellant. She has denied the
other suggestions put to her on the point of the incident. As far as the
aspect of the penetration or intercourse is concerned, this witness has not
specifically stated about it. She has stated that after removing her knickers
the appellant slept on her body. In our opinion, the understanding of a
child of 7 years about such an act needs to be borne in mind. The age of
the victim at the time of incident was such that she was easily lured by the
appellant to accompany him on the pretext of giving chocolate to her. In
her evidence she has categorically stated that after removing her knickers,
the appellant had removed all his clothes. In our opinion, this is very vital
aspect, deposed by PW-8. The evidence of PW-8, in our opinion, is
901.apeal.593.2018 judge.odt
sufficient to establish the incident as narrated by the victim. The minute
scrutiny of the evidence of the victim would show that she has narrated
the incident occurred with her without any exaggeration. If the appellant
was falsely implicated, as suggested on his behalf, then in that event the
child witness would have been easily caught unaware on certain relevant
aspects in her cross examination. Perusal of her cross examination would
show that she could not be slightly deviated from the core and crux of
her evidence touching the incident. On minute scrutiny and appreciation
of her evidence we are satisfied that the possibility of tutoring the child
witness has been completely ruled out. It is further pertinent to note that
the parents of the victim girl would have other ways and means to take
revenge of enmity, if any, they had with the appellant. The parents of the
victim would not have put the future life and dignity of the victim at stake
just for the sake of taking revenge.
10] It is to be noted that the PW-6 Sarla Jangle is an independent
witness. No material has been brought on record in her cross
examination even to suggest that PW-6 was on inimical terms with the
appellant or had grudge against the appellant for one reason or the other.
PW-5 is the mother of the victim. As per the evidence of the victim for
901.apeal.593.2018 judge.odt
the first time she narrated the incident to PW-6 Jangle Madam. It would,
therefore, be necessary to minutely scrutinize her evidence. She has
stated that the incident took place in January 2013. She has stated that in
the evening at about 7:00 p.m. when she was standing in front of her
house with Smt Kale, Smt. Burkunde and Smt. Waghmare, who are also
residing in the same locality, the victim came there. She has further
stated that the victim told her the act committed by the appellant. In her
evidence, PW-6 has specifically stated that victim told her that after
removing her clothes, the appellant undressed himself and slept over her.
She has further stated that the victim told her that, thereafter, the
appellant did something to her private part. She has further stated that
the victim told her that when she shouted, the appellant gagged her
mouth and told her not to shout. She has stated after some time the
mother of the victim PW-5 came there and thereafter, she narrated the
incident told to her by victim to PW-5. In her cross examination she has
admitted that the victim was not studying in her school. The victim was
studying in different primary school. She has stated in her cross
examination that the appellant is also known as Bollywood kaka. In her
cross examination, her statement that she is residing near to the house of
the victim and the house of the appellant is not at all disputed. Perusal of
901.apeal.593.2018 judge.odt
her cross examination would show that the mother of the victim used to
visit her house during her working hours. Her statement was recorded by
the police. She had narrated all the facts to the police at the time of
recording of her statement. The perusal of her evidence in entirety would
show that she is an independent witness. She had no reason to falsely
implicate the appellant. Perusal of her evidence would show that, being a
teacher, the victim was knowing her. The victim had trust and faith in
her. As stated by PW-6, she alongwith other women from the locality was
standing in front of her house and at that time the victim came there and
narrated the incident to her in presence of the other women. This fact
would further indicate that the victim found the PW-6 a reliable and
trustworthy person to disclose the incident. The learned Judge on
appreciation of the evidence has accepted the evidence of PW-6, as
trustworthy and reliable. We do not see any reason to take different view
on the credibility and reliability of evidence of PW-6 Jangle Madam.
11] PW-5, as stated above, is the mother of the victim. The
father of the victim is Attorney of one Advocate Mr. Bade at Wardha. An
attempt has been made in the cross examination of PW-5 to bring on
record that on the point of consuming liquor there was quarrel between
901.apeal.593.2018 judge.odt
the father of the victim and appellant and therefore, to take revenge the
appellant was falsely implicated. It would be necessary to bear this line of
cross examination in the mind while appreciating the evidence of PW-5.
She has stated that the appellant is friend of her husband and therefore, he
used to come to their house. While narrating her daily routine she has
stated that she does work as a maid servant at 7-8 houses and comes back
to her house in the evening after work. She has stated that when she came
back at 7:00 p.m., she found Jangle Madam, Kale bai and mother of one
Jugal standing near her house. The victim was also with them. She has
stated that at that time PW-6 Jangle Madam informed her the outrageous
act committed by the appellant with the victim. In her evidence she has
narrated the incident as stated by PW-6. She has further stated that the
victim informed her that the appellant had touched his private part with
her private part and when she started shouting the appellant gagged her
mouth. She has stated that the victim told her that the incident had
occurred 8 days prior. In her cross examination an attempt has been
made to point out that on the point of penetration there was a material
omission in her report as well as in her statement. The omission as can be
seen from the report at Exh. 33 is on the point of actual use of a word
'private part'. However, the sum and substance of her report is that there
901.apeal.593.2018 judge.odt
was an attempt by the appellant to do some act at her private part on 2-3
occasions.
12] This witness was subjected to searching cross examination,
but the same has not made her evidence shaky. In her cross examination
she has admitted that her husband works as an Attorney with an Advocate
Mr. Bade and the said Advocate had come to their house on that day.
The omission as to the private part has been properly recorded by the
learned Judge. The remaining cross examination would show that she has
not exaggerated the incident or facts related to incident. Perusal of her
cross examination would also show that no material has been elicited in
her cross examination to make the defence of the appellant probable. On
the contrary, the perusal of her cross examination would show that the
appellant would come to her house with her husband. This would
indicate that they were on good terms. In our opinion, this could be one
of the reasons for the victim to trust the appellant when he lured her to
his house on the pretext of giving chocolate.
13] The evidence of victim girl, PW-5 Jyoti and the evidence
independent witness PW-6 Sarla Jangle has not been shaken in the cross
examination. On minute scrutiny and appreciation of the evidence we
901.apeal.593.2018 judge.odt
have not come across any material to discard or disbelieve the said
evidence. The searching cross examination has not made the said
evidence shaky and unbelievable. No dent has been caused to the core of
their evidence on the point of the incident. The evidence is sufficient to
prove that the appellant indulged in the act narrated by them.
14] In this context, it would be necessary to appreciate the
evidence of the medical officer. PW-3 Dr. Krushna Shende had examined
the victim. On examination PW-3 has opined that the hymen of the
victim was partially ruptured indicating an attempt of intercourse with the
victim. Exh. 19 is the medical examination report of the victim. A
perusal of the report would show that the history of the assault or incident
was recorded by the medical officer, as narrated by the father and victim.
In cross examination the medical officer has stated that the history of the
assault or incident was narrated by the victim first and later on by her
father. He has further admitted that while playing cycle or while playing,
the hymen can be ruptured. Relying upon this admission, it is submitted
that the opinion of the medical officer that the victim was subjected to
attempt of sexual intercourse based on the partially ruptured hymen,
cannot be relied upon. It is to be noted that the incident of sexual assault
took place 8 days prior to the examination of the victim. The victim in
901.apeal.593.2018 judge.odt
her evidence narrated the actual incident. In our opinion, the evidence of
the medical officer is a very vital piece of evidence. The same
corroborates the oral evidence of the victim PW-8, PW-5 & PW-6. The
victim girl at the time of incident was 7 years old. It is not the defence of
the appellant that while playing a cycle or due to fall while playing, the
hymen of the victim got ruptured. The evidence of the medical officer is
independent. The opinion of the medical officer is based on the
examination of the victim and the symptoms found by him. Therefore,
we do not see any reason to discard and disbelieve his evidence.
15] The learned Advocate took us through the evidence of PW-2
Dr. Jaichand Moon, who had examined the appellant. The report of the
examination of the appellant given by the PW-2 is at Exh. 16. One of the
objects behind his medical examination was to get a concrete opinion
about the capability of the appellant to perform sexual act. PW-2 has
stated that no opinion was given by him as to whether the appellant could
perform sexual intercourse or not. He has further stated that he had not
applied any test on the appellant to come to the conclusion that he is able
to perform sexual intercourse or not. In our view, this opinion given by
PW-2 medical officer seems to be without conducting any test on the
appellant. It is further pertinent to note that the medical officer has not
901.apeal.593.2018 judge.odt
given a negative opinion stating that he is not at all capable to perform
sexual act. If the opinion had been negative then the same would have
carried some weight. PW-2 had collected his blood as well as his semen
samples. The perusal of his evidence would show that without
conducting the proper test the opinion was given. The manner of
examination of the appellant and the opinion indicate that the PW-2 did
not take proper care. Be that as it may, since the opinion is not negative,
the same could not extend any help to the appellant.
16] The other evidence relied upon by the prosecution is of the
panch witness about the spot panchanama and collection of samples. The
evidence of the Investigating Officer would show that during the course
of investigation the seized articles and the samples collected by the
medical officer PW-2 and PW-3 were forwarded to the CA for analysis.
The reports of CA have been admitted by the appellant. The CA did not
detect the semen or blood on the articles seized from the house of the
appellant. The investigating officer PW-7 has deposed that she drew the
spot panchnama in presence of the panch witness. The panch witness
PW-1 to the spot has turned hostile. However, the evidence of the
investigating officer is sufficient to accept the case of the prosecution that
after lodging the report, PW-7 paid visit to the spot and on examination
901.apeal.593.2018 judge.odt
of the spot drew the spot panchanama. The occurrence of the incident in
the house of the appellant has been stated by eye witnesses PW-5, PW-6
and victim PW-8. The investigating officer in her evidence has described
the spot in great detail. The investigating officer is an independent
witness. No material has been brought on record in her cross
examination to suggest the possibility of false implication of the appellant
in this case.
17] On minute scrutiny and appreciation of the evidence, we
found that the evidence adduced by the prosecution is sufficient to prove
the charge. The learned Special Judge has recorded the reasons for
accepting the evidence adduced by the prosecution. On re-appreciation
of evidence, we do not see any reason to discard and disbelieve the
evidence and take a view different from the one taken by the learned
Special Judge in this case.
18] The learned Advocate for the appellant to substantiate his
submission placed reliance on the decision in the case of Hari Om @
Hero .v/s. State of Uttar Pradesh, reported in (2021) 4 SCC 345 and the
decision of the Division Bench of this Court at Principal Seat Bombay in
Criminal Appeal No. 1006 of 2019, in the case of Ali Mohammed Shaikh
901.apeal.593.2018 judge.odt
.v/s. State of Maharashtra, decided on 14.12.2020, that no reliance can be
placed on the evidence of PW-8 victim being a child witness, in view of
the discrepancies on material aspect noticed in her evidence. In the case of
Hari Om @ Hero (supra) Hon'ble Apex Court has held that in the
absence of corroboration to the child witness, the evidence of a child
witness with discrepancies on material aspect cannot be made the basis to
convict the accused. Same is the view of the Division Bench in the case of
Ali Mohammed Shaikh (supra). In our opinion, for the reasons recorded
herein above on the point of credibility of the evidence of child witness
and the credibility of independent witnesses PW-5 and PW-6 to
corroborate the evidence of child witness on material aspect, the
proposition would be of no help and assistance to the case of the
appellant. In the case before Hon'ble Supreme Court as well as the
Division bench of this Court there was no corroboration at all to the
evidence of a child witness. The facts brought on record and the evidence
of a child witness in those cases was found unreliable. In our opinion, in
the case in hand, the evidence has been found fully reliable. The
corroborative evidence available on record lends an assurance to the
evidence of victim.
19] We, therefore, conclude that on merits there is no substance
901.apeal.593.2018 judge.odt
in the appeal. The appeal, therefore, deserves to be dismissed.
20] On the quantum of a sentence, the learned Advocate for the
appellant pointed out that the incident occurred in January 2013. The
offence proved against the appellant is under Section 4 of the POCSO Act
and under Section 376(2)(i) of the IPC. The learned Advocate submitted
that considering the punishment provided for this offence before
amendment of Section 4 of the POCSO Act, with effect from
16.08.2019, the learned Judge was not right in awarding sentence of life
imprisonment to the appellant. The learned Advocate submitted that the
appellant was 40 years old at the time of the incident. It is submitted that
considering his age and other circumstances, the learned Judge ought to
have taken a lenient view while awarding the sentence. It is seen that no
separate sentence has been awarded under Section 4 of the POCSO Act.
Before amendment to Section 4 of the POCSO Act, the punishment
provided for committing penetrative sexual assault, shall not be less than
7 years but which may extend to imprisonment for life and shall also be
liable to fine. Before amendment to Section 376(2)(i) of the IPC, with
effect from 21.04.2018, the punishment provided for committing
penetrative sexual assault, on a child below 16 years of age, shall not be
less than 10 years but which may extend to imprisonment for life, which
901.apeal.593.2018 judge.odt
shall mean imprisonment for the remainder of that person's natural life.
Section 376-AB has been inserted in the IPC with effect from 21.04.2018
which provides punishment for rape on a woman under 12 years of age.
The punishment prescribed is similar to the one prescribed under Section
4 (2) of the POCSO Act namely imprisonment for a term which shall not
be less than 20 years, but which may extend to imprisonment for life,
which shall mean imprisonment for remainder of that person's natural
life.
21] In this case, considering the mitigating and aggravating
circumstances placed on record, in our view, the sentence awarded by the
learned Judge would be dis-proportionate in the peculiar facts and
circumstances. In our considered opinion, the rigorous imprisonment for
a period of 12 years would meet the ends of justice. We, therefore,
conclude that on the quantum of sentence, the order passed by learned
Special Judge would be required to be modified.
22] We appreciate the able assistance extended by the learned
APP Shri S. S. Doifode and learned Advocate Shri R. R. Vyas, at the
request of this Court.
901.apeal.593.2018 judge.odt
ORDER
i] Appeal is dismissed with the following modification in the
substantive sentence.
ii] The sentence of imprisonment for life awarded by the learned
Special Judge is modified. The appellant is sentenced to suffer rigorous
imprisonment for 12 years, for the offence punishable under Section
376(2)(i) of the Indian Penal Code with a benefit of set-off as provided by
the trial Court.
iii] The fees payable to Shri R. R. Vyas, learned Advocate appointed
for the appellant from the High Court Legal Services Sub Committee,
Nagpur, is quantified at Rs.15,000/-.
The criminal appeal stands disposed of.
(G. A. SANAP, J.) (SUNIL B. SHUKRE, J.)
Namrata
Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:12.07.2022 16:40
