Rahul Rajendra Gondhali vs The State Of Maharashtra
2022 Latest Caselaw 9501 Bom

                                                    1 of 23                apeal-1281-18 (Judgment)


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                         CRIMINAL APPEAL NO. 1281 OF 2018

                     Rahul Rajendra Gondhali                                  ..Appellant
                          Versus
                     The State of Maharashtra & Anr.                          ..Respondents

                                                 __________
                     Mr. Aniket Vagal a/w. Kunal Pednekar for Appellant.
                     Smt. M. R. Tidke, APP for State/Respondent No.1.
                     Mr. Amit Mane (Appointed Advocate) for Respondent No.2.
                                                 __________

                                                 CORAM : SARANG V. KOTWAL, J.

DATE : 20th SEPTEMBER 2022

ORAL JUDGMENT :

1. The Appellant has challenged the Judgment and order

dated 22/12/2017 passed by Designated Judge under Protection

of Children from Sexual Offences Act, 2012 (for short 'POCSO')

Thane, passed in Special Case No.128 of 2015. By the impugned

Judgment and order the Appellant was convicted and sentenced as

follows:

i) The Appellant was convicted for commission of

offence punishable U/s.376(2)(i) of I.P.C. and was

Digitally signed by VINOD sentenced to suffer R.I. for 10 years and to pay a VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.09.23 17:08:28 +0530 Gokhale 2 of 23 apeal-1281-18 (Judgment)

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

fine to suffer S.I. for two months.

ii) The Appellant was convicted for commission of

offence punishable U/s.376D of I.P.C. and was

sentenced to suffer R.I. for 20 years and to pay a

fine of Rs.25,000/- and in default of payment of

fine to suffer S.I. for two months.

iii) The Appellant was convicted for commission of

offence punishable U/s.342 of I.P.C. and was

sentenced to suffer R.I. for 6 months and to pay a

fine of Rs.1,000/- and in default of payment of

fine to suffer S.I. for 5 days.

iv) The Appellant was convicted for commission of

offence punishable U/s.4 of POCSO, but in view of

Section 42 of POCSO no separate sentence was

imposed for this offence.

v) The Appellant was convicted for commission of

offence punishable U/s.8 of POCSO, but again in 3 of 23 apeal-1281-18 (Judgment)

view of Section 42 of POCSO no separate

sentence was imposed for this offence, as the

sentence was already imposed for commission of

offence punishable U/s.376(2)(i) of I.P.C.

vi) The Appellant was convicted for commission of

offence punishable U/s.12 of POCSO, but again

no separate sentence was imposed for this

offence.

All the substantive sentences were directed to run

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

The fine amount, if recovered, was directed to be paid to the

victim as compensation.

2. Heard Shri. Aniket Vagal, learned counsel for the

Appellant, Smt. Tidke, learned APP for State/Respondent No.1 and

Shri. Amit Mane, learned Appointed Advocate for the Respondent

No.2.

3. The prosecution case is that the victim who was about

10 years and 7 months of age at the time of incident dated 4 of 23 apeal-1281-18 (Judgment)

12/04/2015 was staying with her maternal grand parents and

Aunt. On 12/04/2015, in the evening she was taken to the house

of the appellant by other accused who was a minor at that time.

He is mentioned as 'R' in this case. There the Appellant committed

the act which would fall within the meaning of penetrative sexual

assault. Since two accused were involved in this case, it also falls

within the meaning of 'gang rape' as defined U/s.376D of I.P.C. The

victim was threatened, therefore, she did not disclose the incident

to anybody. In the evening her maternal aunt came to know about

some incident. She confronted the applicant, but she did not know

the exact seriousness of the incident. On the next day in the

morning the victim told the entire incident to her grand-mother

and mother. Her grand-mother confronted the Appellant. She

slapped him in front of many people and then lodged her F.I.R.

vide C.R.No.169 of 2015 at Kalwa police station. The investigation

was carried out. The victim was sent for medical examination. The

Appellant was arrested. The spot panchanama and panchanama of

seizure of clothes were carried out. At the conclusion of the

investigation the charge-sheet was filed. The case was committed 5 of 23 apeal-1281-18 (Judgment)

to the Special Court under POCSO.

4. During trial, the prosecution examined 10 witnesses

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

Officer, panchas and the Investigating Officers. The defence of the

appellant was of total denial. In addition, it was his case that, on

12/04/2015 a small scuffle took place between him and the victim

on account of badminton ground. The victim's Aunt confronted the

Appellant and slapped him. The matter was closed, but on the next

day the grand-mother of the victim came to his house and

assaulted him. She threatened him and told him that she would

teach him a lesson and then she lodged this false case against him.

Learned Judge believed the prosecution evidence and convicted

and sentenced the appellant as mentioned earlier.

5. The main evidence in this case is that of the victim. She

was examined as PW-3. She has deposed that, she was born on

05/09/2004. She produced her birth certificate on record at

Exhibit 28. She knew the appellant and 'R'. Both of them were

residing in her society. The Appellant was not produced before the 6 of 23 apeal-1281-18 (Judgment)

trial court at the time of her deposition, but his identity was not

disputed by the defence. She has deposed that the incident had

occurred on 12/04/2015. She was playing near her building from

5.30p.m. to 7.30p.m. At that time, 'R' came there and told her that

the Appellant's mother was calling her. She went to the Appellant's

house. The Appellant himself was standing on the staircase. She

entered his house. The Appellant then closed the door of his flat

and switched off the light. The Appellant forced her to sleep on the

sofa. He removed her clothes. The Appellant and 'R' then removed

their clothes. Thereafter, both of them slept over her. She has

further deposed that the Appellant forced her to drink white

coloured discharge. Thereafter, 'R' asked her to shake his private

part. The Appellant also asked her to shake his private part. (It is

mentioned in the original Marathi deposition). When the victim

was leaving, 'R' gagged her mouth and the Appellant caught her

hands. In the meantime, victim's friends came at the appellant's

flat and inquired about her with the Appellant. The Appellant told

them that the victim was not in the house. She told the Appellant

to leave her and told him that she would tell this to her mother. At 7 of 23 apeal-1281-18 (Judgment)

that time, the appellant told her to give some execuse that

something had happened to her brother and asked her to go from

the terrace.

6. The victim told all these facts to her friend. She was

frightened and, therefore, did not tell these facts to anybody

except her friend. When her mother returned on the next day in

afternoon she narrated this fact to her. The police recorded her

statement.

In the cross-examination, she deposed that she was in

the flat of the Appellant for about 30 minutes. She could tell about

her friends who had come to call her at the appellant's place. After

the incident when she went home, that time, her maternal aunt

was in the house. Her grand-mother was in her shop. She could

not tell this to her mother when her mother had returned home in

the night, because she had gone to sleep early. She did not tell

about this incident to anybody in the house on 12/04/2015. On

that day when she returned home, her Aunt spoke with her. She

had told her Aunt that there was some quarrel while playing 8 of 23 apeal-1281-18 (Judgment)

badminton. Then her Aunt went to the Appellant's house and

confronted him. The Appellant told her that, there was no quarrel

and that PW-3 was lying. She further deposed that, she told about

the actual incident first to her mother and then within a short time

to her grand-mother. After that, they went to the police station.

Her grand-mother first dragged the appellant to the ground floor.

People from the society gathered there. Her grandmother

questioned the Appellant about the incident as told by PW-3. On

13/04/2015 she was in the police station till 6.30p.m. from about

1.30p.m. Her statement was recorded. The police made inquiries

with her for 1 or 2 hours. The inquiries were made by a woman

police officer and it was taken down in writing by a male police

officer. There were some omissions from her statement. She was

asked whether she had stated before police that the appellant had

told her that his mother was in the kitchen. She had also told the

police that both of them slept over her. However, these facts were

not mentioned in her police statement. She had also told the police

in her statement that, while she was leaving, 'R' gagged her mouth

and the Appellant caught her hands. She could not assign any 9 of 23 apeal-1281-18 (Judgment)

reason as to why those facts were not mentioned in her police

statement. On 13/04/2015 she woke up at about 8.30a.m. Then

she went to her grandmother's shop and then to play. She wore the

same clothes from evening of 12/04/2015 to the morning of

13/04/2015. They were kept on a hanger in the bathroom. Later

on, those clothes were given to the police. On 13/04/2015, clothes

of all family members were washed early in the morning,

therefore, she had kept the clothes on the hanger of the bathroom.

She denied the suggestion that there was only a minor quarrel and

scuffle on 12/04/2015 and the incident of rape had not taken

place.

During cross-examination she voluntarily stated that

the appellant touched his penis to her private part and tried to

insert it. The appellant pressed her neck and therefore, there was a

mark on her neck. The Appellant also told her to drink white

discharge.

7. The other two important witnesses are PW-1 victim's

grandmother and PW-2-victim's mother. PW-1-victim's 10 of 23 apeal-1281-18 (Judgment)

grandmother has deposed that, at the relevant time, she was

residing with her husband, her daughter, son and with the victim

who was daughter of her elder daughter. Both the accused were

residing in the same building. One of PW-1's friend told her on

13/04/2015 that on the previous day i.e. on 12/04/2015 the

victim had gone to the house of the Appellant to take badminton

racket. The victim's friend then went to the Appellant's house. At

that time, victim's chappal were outside of the appellant's flat. The

victim's friend then told this to her mother who was PW-1's friend.

PW-1 suspected something. She inquired with her other daughter

who was victim's Aunt. She told PW-1 that she had already

confronted the Appellant regarding the incident. At that time, he

had told her that nothing had happened. Then PW-1 inquired with

the victim-PW-3 by taking her in confidence. Then victim-PW-3

told her the incident. She told her that, when she went to the

appellant's house, he removed his clothes. He told the victim to

hold his private part and shake it. He slept on her. He tried to

insert his private part. At that time, other accused was also there

and he had caught the victim. After hearing this, PW-1 went to the 11 of 23 apeal-1281-18 (Judgment)

appellant's house and beat him. She took him to the ground floor

and inquired with him in front of other residents. But he denied

the incident. Then she went to Kalwa police station and lodged her

F.I.R. The F.I.R. is produced on record at Exhibit 19. The F.I.R. was

registered at 4.30p.m. In the F.I.R. the incident was described in

the same manner as it is described by the victim in her deposition.

In the cross-examination of PW-1 she deposed that her

younger daughter i.e. victim's aunt did not tell anything on her

own. She was asked about the omission from the F.I.R. regarding

the victim's friend going to the Appellant's house to inquire about

the victim. She deposed that, when she was beating the appellant,

at that time, 15 to 20 persons were watching from their balconies

and 10 to 15 people had gathered on the ground. That was going

on for 10 to 15 minutes in front of all those people. Thereafter, at

about 1.00 to 1.30p.m. she along with her husband went to the

police station. Before that, the victim's mother had returned home

at about 12.30p.m. on 13/04/2015.

8. PW-2 was mother of the victim. She deposed that, she 12 of 23 apeal-1281-18 (Judgment)

returned to her mother's place at 12.30p.m. to 1.00p.m. on

13/04/2015. Her daughter-victim complained her about pain in

her abdomen. When PW-2 inquired with her she started crying and

then narrated the incident to her. The victim had told her that the

Appellant tried to insert his private part in her private part but he

was unsuccessful. Even he inserted his private part in her mouth

and discharged in her mouth. She was asked to drink that

discharge. When PW-2's mother (PW-1) returned home from her

shop, PW-2 told her about the incident. Then she told PW-1 to go

to the police station with the victim and PW-2's father and that she

would follow with her brother on a two wheeler.

In the cross-examination, she deposed that the victim

told her about the incident on 13/04/2015 when PW-1 was not in

the house. She further deposed that, PW-3 first disclosed that

incident to her and then again narrated the incident to PW-1. She

deposed that, she had told the police that her daughter had

mentioned that the Appellant had inserted his penis in her mouth

and discharged in her mouth. She could not assign any reason as

to why this particular part was not appearing in her police 13 of 23 apeal-1281-18 (Judgment)

statement. Her sister did not tell her about any incident till

13/04/2015.

9. PW-4 Rohan Sawant was a pancha for spot panchanama.

But he did not support the prosecution case and he was declared

hostile.

10. PW-6 Sangeet Desai was a pancha for panchanama

regarding seizure of clothes of both the accused. The panchanama

is produced on record at Exhibit 39.

11. PW-8 Nazim Shaikh was a pancha in whose presence the

clothes of the victim were seized. That panchanama is produced on

record at Exhibit 50.

12. The spot panchanama is produced on record through the

evidence of PW-9 Dilip Randive, P.S.I.. He carried out major part of

the investigation. He has deposed that, he had carried out the spot

panchanama. He seized clothes. He had arranged to conduct the

medical examination.

In the cross-examination, he accepted that he did not 14 of 23 apeal-1281-18 (Judgment)

record the statement of any of children who were playing in the

society on 12/04/2015. He proved the omission from the F.I.R.

regarding victim's friend making inquiry about the victim with the

appellant at the time of incident. He also proved the omission from

the police statement of PW-2 that her daughter had told her that

the appellant had inserted his private part in her mouth and had

discharged in her mouth.

13. The statement of the victim was recorded by P.S.I.

Ghadge. She was examined as PW-10. She had recorded the

statement of the victim in question answer form. She has deposed

that the victim had not mentioned that she had told her Aunt

about the incident on 12/04/2015, or that her two friends had

come to the appellant's flat searching for her. She did not see any

injury mark over the person of the victim. The victim had not told

her that she had suffered any abrasion over her neck and wrist.

14. PW-7 Ajmuddin Mulla, P.I. had filed the charge-sheet

after completion of the investigation.

15. The other important witness was PW-5 Dr. Nafisa Shaikh 15 of 23 apeal-1281-18 (Judgment)

who had examined the victim. She was attached to the hospital at

Kalwa as Medical Officer. She had examined the victim. At the time

of examination, the victim had told the history to her. On

examination, PW-5 found abrasion over right wrist and over neck

of the victim. Nothing abnormal was found. Her private parts were

normal. Accordingly, she issued the certificate which is produced

on record at Exhibit 34.

In the cross-examination, she admitted that the injury

over wrist was possible while playing and that both these injuries

could be self inflicted. The victim had not stated about these

injuries in the history given by her. However, she denied the

suggestion that she had not found any medical observation

showing sexual abuse of the child. The medical certificate is

produced on record at Exhibit 34. This certificate is important

because it records history given by the victim in her own words as

follows:

"The victim was called by 'R' to the Appellant's residence and was compelled to perform oral sex and attempt of penetrative sexual intercourse was 16 of 23 apeal-1281-18 (Judgment)

made."

The impression was 'no evidence of penetrative sexual

intercourse'. The articles were sent for chemical analysis. Except

semen stains on the underwear of the appellant nothing much was

of any significance was found. Even that particular aspect cannot

be held against the appellant. Therefore, C.A. Certificates can be

excluded from consideration.

16. Learned counsel for the Appellant submitted that the

prosecution case is not true; it is not even probable. The important

witness i.e. victim's friend who had gone to the appellant's flat

searching for the victim was not examined. The victim's maternal

Aunt was not examined. The friend of PW-1 through whom she

came to know about the incident is not examined. All the persons

who had gathered when PW-1 was allegedly beating the appellant

are not examined. Non examination of all these witnesses is

material and adverse inference should be drawn. The victim was

silent on 12/04/2015 and only on the next day she narrated the

incident. This was unnatural. Her statement appears to be tutored.

Her statement U/s.164 of Cr.p.c. was not recorded. The victim's 17 of 23 apeal-1281-18 (Judgment)

conduct does not show that she had suffered from any such

offence. There are important omissions in the evidence of PW-1

and 2. There are indications that, during recording of her

evidence, after recess, suddenly some important statements were

made by the victim in her deposition indicating that her deposition

was based on her tutoring by her grandmother and mother. From

the evidence, it appears that, at the highest there was some scuffle

between the victim and the appellant and, therefore, the victim's

Aunt did not take this matter any further. He submitted that,

assuming some part of the deposition of the victim was true, still

the offence of penetrative sexual assault as defined U/s.3 of

POCSO, as well as, offence of rape as defined U/s.375 of IPC is not

made out and, therefore, conviction and sentence U/s.376D of IPC

is not proper. Shri. Vagal further submitted that the deposition of

the victim does not show that there was any penetration or any act

which would fall within the meaning of Section 3 of POCSO and

U/s.375 of I.P.C.

17. Learned counsel for the Respondent No.2, as well as,

learned APP opposed these submissions. According to them, 18 of 23 apeal-1281-18 (Judgment)

conduct of the victim was natural. She had informed her mother

before anyone else. Her grandmother was also informed. The

victim's case was immediately put on record through the F.I.R. and

it is not an afterthought. Importantly, there are no major omissions

from the evidence of PW-3-victim. The medical history was also

consistent with her case.

18. I have considered these submissions. So far as, C.A.

reports and other corroborative pieces of evidence are concerned,

they are not really incriminating. They did not support either the

prosecution or the defence and, therefore, those circumstances can

safely be ignored. The prosecution case depends on the evidence of

PW-1, 2, 3 and 5. There is no dispute about the victim's age. Her

birth certificate is produced on record showing her date of birth as

05/09/2004. The incident had occurred on 12/04/2015, hence,

she was about 10 years and 7 months of age. This particular

evidence is not seriously challenged. The main thrust of argument

of Shri. Vagal is that there was no penetrative sexual assault and

there was no penetration as required under the aforementioned

sections. For that purpose, it is necessary to reproduce those 19 of 23 apeal-1281-18 (Judgment)

sections. Section 3 of POCSO reads thus:

3. Penetrative sexual assault. - A person is said to commit "penetrative sexual assault" if

-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

19. This definition is almost similar to the definition of 'rape'

mentioned U/s.375 of I.P.C.

Section 376D of IPC defines 'gang rape' as under:

20 of 23 apeal-1281-18 (Judgment)

"376D. Gang rape. - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that persons's natural life, and with fine."

20. In the present case, the argument was that there is

nothing to show that there was any penetration. In this context,

the evidence of the victim is important. Her words are quoted

herein above while discussing her evidence. There are specific

allegations that the appellant had asked her to shake his private

part and had forced her to drink his white discharge. There cannot

be any other interpretation of this act, but the fact that he had

committed an offence as defined U/s.3 of POCSO, particularly,

attracting clause (d) of Section 3 of POCSO and Clause D of

Section 376 of IPC. The medical history given by the victim herself

to the doctor mentions that she was compelled to perform oral sex

and there was an attempt of penetrative sexual intercourse with 21 of 23 apeal-1281-18 (Judgment)

the victim. Learned trial Judge has observed that the penetration

even to small extent would still constitute 'rape' and the learned

Judge has given his reasoning in paragraph 47. He has referred to

Explanation - 1 of Section 375 and has held that, even slight

insertion in outer part of labia majora would constitute an offence

of rape within the meaning of Section 375 of I.P.C. He has rightly

observed in paragraph 48 that, since the appellant forced the

victim to drink white coloured discharge from his private part, it

was sufficient to draw an inference that he had penetrated his

private part in her mouth. Even the victim had told her mother-

PW-2 that the Appellant had tried to insert his private part in her

private part, but he was unsuccessful and there is no omission

from the evidence of PW-2 in respect of this statement. The victim

had disclosed this fact to her mother. This evidence of PW-3

sufficiently establishes the offence of rape as defined U/s.375 of

IPC and the offence of penetrative sexual assault U/s.3 of POCSO.

Her version is not an afterthought. All these facts are mentioned in

the F.I.R. which was lodged immediately after the disclosure.

Therefore, some omissions from the evidence of PW-2 who is 22 of 23 apeal-1281-18 (Judgment)

mother of the victim will not help the defence because the victim's

own evidence is sufficiently strong enough to attract all the

ingredients of the offence for which the appellant was convicted

and sentenced. There is no omission as far as, the main incident is

concerned and the I.O. has not proved any such omission in his

evidence in respect of statement given by the victim to the police

during investigation. There is also no substance in the submission

that the victim improved her version after recess during her

deposition. Because, in her first part of deposition itself she had

narrated the incident with sufficient details. Her injuries on neck

and wrist and her omission to depose about those injuries will not

make any difference to the case. The victim was merely 10 years of

age at the time of incident. Nothing further could be expected

from her regarding disclosure of the incident. The Appellant has

not discharged his burden to disprove the case as required U/s.29

of POCSO which reads thus:

29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or 23 of 23 apeal-1281-18 (Judgment)

abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

21. Therefore, I am of the opinion that the prosecution has

proved the case against the Appellant beyond reasonable doubt.

Since there were two accused who had actively participated in the

incident, therefore, the offence would fall within the meaning of

'gang rape' as defined U/s.376D of I.P.C. and the minimum

sentence prescribed under that section is for 20 years. The trial

Judge has imposed minimum sentence on the Appellant and,

therefore, there is no scope to reduce it.

22. Considering this discussion, I do not find any merit in

the Appeal. The Appeal is dismissed.

(SARANG V. KOTWAL, J.)