Sachin Suresh Patole vs The State Of Maharashtra And Anr
2022 Latest Caselaw 9221 Bom

                                              1 of 16              211-apeal-1240-18 (Judgment)


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO. 1240 OF 2018

                     Sachin Suresh Patole
                     Age 22 years, residing at Kundal,
                     Ramoshi Vasti, Tal. - Palus,
                     District - Sangli.                                   ..Appellant

                            Versus

                     The State of Maharashtra & Anr.                      ..Respondents

                                                    __________

                     Ms. Jayshree Tripathi for Appellant.

                     Smt. J. S. Lohokare, APP for State/Respondent No.1.

                     Mr. Veerdhawal Deshmukh, (Appointed Advocate) for Respondent
                     No.2.
                                             __________

                                             CORAM : SARANG V. KOTWAL, J.

DATE : 14th SEPTEMBER 2022

ORAL JUDGMENT :

1. The Appellant has challenged the Judgment and order

dated 03/09/2018 passed by learned Additional Sessions Judge,

Sangli in Special Case (POCSO) No.56 of 2016. The Appellant was

convicted and sentenced as follows:

Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

        2022.09.16    Gokhale
        14:31:00
        +0530
                          2 of 16                211-apeal-1240-18 (Judgment)

i) The Appellant was convicted for commission of

offence punishable U/s.377 of I.P.C. but no

separate sentence was imposed on him in view of

rider of Section 42 of the Protection of Children

from Sexual Offences Act (for short 'POCSO').

ii) He was convicted for commission of offence

punishable U/s.6 of POCSO and was sentenced to

suffer R.I. for 10 years and to pay a fine of

Rs.25000/- and in default of payment of fine to

suffer S.I. for one month.

iii)He was convicted for commission of offence

punishable U/s.506 of I.P.C. and was sentenced to

suffer R.I. for 6 months.

Substantive sentences were directed to run

concurrently. The Appellant was granted set off U/s.428 of Cr.p.c.

2. Heard Ms. Jayshree Tripathi, learned counsel for the

Appellant, Smt. J. S. Lohokare, learned APP for State/Respondent

No.1 and Mr. Veerdhawal Deshmukh, learned Appointed Advocate 3 of 16 211-apeal-1240-18 (Judgment)

for the Respondent No.2.

3. The prosecution case is that the incident took place on

09/09/2016. On that day the victim boy was 9 years of age. His

date of birth was 13/04/2007. The appellant took him to

sugarcane crop field and committed the offence which would fall

within the meaning of Section 377 of I.P.C. and Section 3 of

POCSO defining penetrative sexual assault. The boy was below 12

years of age, therefore, the offence was of aggravated penetrative

sexual assault as defined U/s.5 of POCSO. The F.I.R. was lodged by

the victim's mother on 12/09/2016 at 2.05p.m. at Kundal police

station vide C.R.No.20 of 2016. The Appellant was arrested on

13/09/2016. The victim, as well as, the Appellant were subject to

medical examination. The victim was examined at Kundal, as well

as, at Sangli Civil Hospital. The injuries were found near anus

region. The statements of the witnesses were recorded. The spot of

incident was shown by the victim. The investigation was carried

out and at the conclusion of investigation, charge-sheet was filed

and the case was committed to the Special Court.

4. During trial, the prosecution examined 7 witnesses 4 of 16 211-apeal-1240-18 (Judgment)

including the victim, his mother, the Medical Officers, a pancha

and the Investigating Officer. The defence of the Appellant was of

total denial. Learned trial Judge, after hearing the parties, believed

the story of the prosecution projected through the evidence of PW-

1 and PW-2 and supported by Medical Officers. Based on this

evidence, he recorded his order of conviction and sentence.

5. PW-1 was mother of the victim. In the initial part of the

deposition, she only accepted the fact that on 11/09/2016, at

about 5.00p.m. the victim had informed her that his anus was

paining. She inquired with him as to what had happened. He told

her that, he had gone to S.T. stand and then to the field of

sugarcane crop. His two friends went away and he came back

home after collecting Durva for pooja. Initially, PW-1 refused to

state what the victim had told her. She resiled from her F.I.R.,

therefore, the trial Court permitted learned APP to cross-examine

her. During her cross-examination, she admitted that, she had

lodged the F.I.R. mentioning the incident as narrated by her son. In

her cross-examination she fully supported the prosecution case.

She deposed that the Appellant belonged to a different community 5 of 16 211-apeal-1240-18 (Judgment)

and her village had more number of people belonging to that

community. They had committed riot in the village and, therefore,

she was afraid of them. This admission is important and this

explains why she had resiled from her F.I.R. After this admission,

she deposed that her son had told her what the Appellant did with

him on 09/09/2016. She then narrated the incident in detail as

told to her by her son. The victim also told her that the Appellant

had threatened to kill him if the incident was disclosed to anybody.

It was only because of that act the victim was suffering from pains

and there was bleeding from that part. After some discussion with

her husband they decided to lodge the F.I.R. She admitted the

contents of the F.I.R. as true and correct. The F.I.R. is produced on

record at Exhibit 25. After that, she along with the victim went to

the spot and showed the spot to the police. The photographs were

taken when the victim was showing the spot. After that the victim

was sent for medical examination, initially to Kundal Government

hospital and then to the Civil Hospital, Sangli. However, after

deposing this, she did not identify the Appellant in the Court, but

she mentioned that there was riot in the village by way of agitation 6 of 16 211-apeal-1240-18 (Judgment)

for arrest of the Appellant. There was tense situation in the village

and the village was under fear for about 2 to 3 days. She was

asked whether the matter was settled at Gram Panchayat by the

local politician. To this question the witness kept quite and did not

answer. She denied the suggestion that, she was under pressure

and, therefore, she had not identified the accused.

In the cross-examination conducted on behalf of the

Appellant, she deposed that there were only 8 to 10 families of the

Appellant's community and there was no dispute between her

community and the community of the Appellant. In this cross-

examination, again she gave answers helping the accused. She

deposed that, her son did not show the spot to the police. She

deposed that the police had instructed her to give statement in the

Court as per something written on a paper which was given to her

before recording her statement. Then she deposed that the victim

had suffered the injury while playing and no incident as alleged

against the Appellant had taken place. The F.I.R. which is produced

at Exhibit 25 mentions the incident in detail specifying the

Appellant's role in committing this offence. In the cross-

7 of 16 211-apeal-1240-18 (Judgment)

examination conducted by learned APP she had admitted the

contents of that F.I.R.

6. Same was the case of PW-2 victim. In the first part of his

examination in chief, he deposed that, he did not remember as to

what happened when they went to S.T. stand on 09/09/2016. But

he admitted that the Appellant had taken him towards sugarcane

crop field. He did not narrate the relevant part of the incident. But

when he was declared hostile and when learned APP cross-

examined him, at that time, he narrated the the entire incident

showing the involvement of the appellant. Again he initially

deposed that he did not remember whether the Appellant had

carnal intercourse with him. Then he deposed that he told his

mother the correct facts and that he had told his mother that the

Appellant had committed penetrative sexual assault which would

attract Section 377 of IPC. He admitted that, because of that act,

his pant was stained with blood; because of bleeding from that

part. The victim-PW-2 also identified the Appellant in the Court.

He deposed that, he told about the incident in the Court of Palus in

his deposition before the trial court in the trial. After the PW-2 had 8 of 16 211-apeal-1240-18 (Judgment)

given all the answers supporting the case of the prosecution, he

was cross-examined on behalf of the Appellant and at that time, he

gave some answers in support of the defence. He deposed that he

had never seen the Appellant before and for the first time he had

seen him in the court. He deposed that the Appellant had not done

any bad thing to him. He then admitted that he did not tell his

mother that something bad had happened in the sugarcane field.

7. PW-3 Walmik Koli was the Circle Officer and he was a

pancha for spot panchanama, as well as, for seizure of clothes of

the victim. He has narrated that the spot was shown by the victim

himself.

8. PW-4 Dr. Priya Gupta, PW-5 Dr. Chhaya Patil and PW-6

Dr. Akash Dolase are the Medical Officers.

9. PW-4 Dr. Gupta was attached to Sangli Civil Hospital.

She had examined the victim. The history was given by the victim

about sexual assault by unknown person by unnatural method on

09/09/2016 at 9.00a.m. He complained of pain over anal region.

On examination it was found that there was tenderness present.

9 of 16 211-apeal-1240-18 (Judgment)

There was evidence of skin excoriation abrasion at 2 O'clock and

11 O'clock position. She opined that the injury was caused because

of anal penetration by unnatural method. The case papers are

produced on record at Exhibit 51 and 52.

10. On 14/09/2016, she examined the Appellant. His private

parts were normal and in her opinion the patient was not

incapable of performing sexual intercourse.

In the cross-examination, she deposed that sphincter of

the victim was intact. She deposed that for full penetration

opening of sphincter, anal canal was necessary. She deposed that,

in case of forceful anal sex, grievous injuries were possible and

profuse bleeding was also possible.

11. PW-6 Dr. Akash Dolase was attached to Sangli Civil

Hospital as C.M.O. He has given the deposition in the same

manner as is deposed by PW-4 Dr. Gupta. He admitted in the cross-

examination that, name of the accused was not mentioned in the

history.

12. PW-5 Dr. Chhaya Patil was attached to Primary Health 10 of 16 211-apeal-1240-18 (Judgment)

Center, Kundal. The victim was brought there at about 2.30p.m. on

12/09/2016. The victim and his mother refused for internal

examination, therefore, she carried out only local examination in

the region where there was tenderness. She found redness all over

anal region at 12 O'Clock and 3 O'Clock position. She prepared the

case papers. They are produced on record at Exhibit 61. The victim

was referred to Sangli Civil Hospital by her. In her opinion the

victim had suffered sexual intercourse by unnatural method. The

victim had injury over anal region at 2 O'Clock and 11 O'Clock

position. Though, she had not opined about the age of injury,

however, according to her tenderness could persist from 2 to 3

days.

In the cross-examination, she deposed that the medical

history was silent about the name of the culprit. She also deposed

that the mother had told the name but this witness had not

mentioned it in the history.

13. PW-7 Shivshankar Bondar, P.I. was the investigating

officer. He has deposed about the investigation carried out by him 11 of 16 211-apeal-1240-18 (Judgment)

after registration of F.I.R. On 12/09/2016 he was present at

Kundal police station when PW-1 and 2 came there and gave

intimation of the incident. He registered the F.I.R. vide C.R.No.20

of 2016. He conducted the spot panchanama. The statements of

the victim and his mother were recorded U/s.164 of Cr.p.c. The

victim was sent for medical examination. The articles were sent for

chemical analysis. The statements of the witnesses were recorded

and at the conclusion of the investigation, the charge-sheet was

filed by him.

In the cross-examination nothing much was elicited of

any significance. However, he deposed that, in respect of this

offence some persons had tried to set the house of the appellant on

fire. Those persons also set on fire some vehicles belonging to

appellant's community and pelted stones on the Appellant's house.

He denied the suggestion that he had prepared false statements of

the victim and his mother under pressure and no such incident had

taken place.

14. Learned counsel for the Appellant submitted that the 12 of 16 211-apeal-1240-18 (Judgment)

medical officers did not give their own opinion. They depended on

the examination conducted by the other medical officers. The

medical history given at both places i.e. at Kundal and Sangli did

not name the appellant. The friends who were with the victim

were not examined. There is delay in lodging of F.I.R. The incident

had taken place on 09/09/2016, the mother was told on

11/09/2016 and yet the F.I.R. was lodged on 12/09/2016. There is

no explanation for that. She further submitted that, both the victim

and his mother are not reliable witnesses because they had not

supported the prosecution case in their examination in chief.

15. Learned APP, as well as, learned counsel for the

Respondent No.2 submitted that, in the cross-examination, PW-1

and PW-2 have stuck to the true story. Their examination in chief

shows that both of them were under pressure from the Appellant

and local politician and for the said reason the name of the

Appellant was not mentioned in the medical history. The victim

had identified the Appellant in the Court.

16. I have considered these submissions in the light of 13 of 16 211-apeal-1240-18 (Judgment)

evidence led by the prosecution. So far as age of the victim is

concerned, the prosecution has produced his birth certificate

issued by Kundal Gram Panchayat. It is produced on record at

Exhibit 40. His date of birth is written as 13/04/2007. It was

registered on 30/04/2007. Thus, there is no serious dispute about

the age of the victim, who on the date of incident i.e. on

09/09/2016 was 9 years of age. Therefore, if the incident is held

to be true, the offences, for which the appellant is convicted, are

made out. To consider whether the prosecution has proved its case,

the evidence of the victim, his mother and the medical officers is

important. Though it is true that PW-1 and PW-2 in their

examination in chief had refused to give answers supporting the

prosecution case, but in the cross-examination conducted by

learned APP they have narrated the incident in detail. The victim's

case was told by the victim in the cross-examination. He has

described the incident as to how he was taken by the Appellant to

the sugarcane crop field and how he had committed the offence.

He had told this fact to his mother. He was suffering from pain.

The mother of the victim-PW-1 has admitted in her cross-

14 of 16 211-apeal-1240-18 (Judgment)

examination that PW-2-victim had narrated the entire incident to

her. Their cross-examination also shows that they were under

pressure. The cross-examination of the victim's mother mentions

that there was some local pressure. Even a meeting was held in the

village and even some riot had taken place. She has deposed that

the people from Appellant's community had caused riot in the

village and, therefore, she was afraid of him. This deposition

explains why she was reluctant to depose against the appellant.

This particular deposition is not dislodged by the Appellant

through cross-examination of PW-1.

17. Though, PW-1 had not identified the appellant in the

Court, the PW-2-victim himself had identified the Appellant in the

Court. He was merely 9 years of age at the time of incident. It is

important to note that, PW-1 had accepted the contents of the

F.I.R. lodged by her. The F.I.R. describes the incident in detail as

told by the victim to her mother. The victim, in the cross-

examination conducted by learned APP has narrated the incident,

as well. He also accepted that, he had told these correct facts to his

mother. His evidence is supported by the medical evidence. The 15 of 16 211-apeal-1240-18 (Judgment)

victim had no reason to name the appellant before his own mother

as the offender who had committed that offence. The name of the

appellant is immediately disclosed in the F.I.R. Though, the F.I.R.

was lodged on 12/09/2016, the mother was told about the

incident only on 11/09/2016 after the pain became unbearable to

the victim. The medical evidence in this case is very important.

Three doctors have unanimously supported the prosecution case

and the victim's version that he was subjected to penetrative

sexual assault. The injuries matched with the description of the

incident given by the victim which is reflected in the F.I.R.

Therefore, subsequent reluctance to depose in Court on the part of

victim and his mother does not really help the appellant in this

case. The reason for reluctance to depose against the appellant has

also come in their own depositions. As mentioned earlier, both of

them have stuck to the prosecution story in the cross-examination

conducted on behalf of the State. Thus, there is sufficient material

against the Appellant justifying finding of conviction and recording

of sentence. Learned Sessions Judge has rightly appreciated all

these aspects. I do not find any reason in this case to interfere with 16 of 16 211-apeal-1240-18 (Judgment)

the trial Court's Judgment and order.

18. With these observations, the Appeal is dismissed.

(SARANG V. KOTWAL, J.)