Bombay High Court
Santosh S/O Shankar Yele vs State Of Mah. Thr. Pso Pinjar Tq. ... on 21 December, 2023
Author: Vinay Joshi
Bench: Vinay Joshi, M.W. Chandwani
2023:BHC-NAG:17605-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.301 OF 2022
Santosh s/o Shankar Yele, aged about 40
years, R/o Navsal Tq. Murtizapur,
District Akola.
... APPELLANT.
VERSUS
1. State of Maharashtra, through
P.S.O. Mana. Tq. Murtizapur, District
Akola
2. XYZ (Victim) through its
Complainant vide crime number
218/2019 Police Station Mana, Tq.
Murtizapur, District Akola.
... RESPONDENTS.
_____________________________________________________________
Shri A.S. Londhe, Advocate for the appellant.
Ms. Swati Kolhe, Addl.P.P. for the State.
Shri Inamul Haq, Advocate for respondent no.2.
______________________________________________________________
CORAM : VINAY JOSHI AND M.W. CHANDWANI, JJ.
RESERVED ON : 15.12.2023.
PRONOUNCED ON : 21.12.2023.
JUDGMENT :
(Per : Vinay Joshi, J.)
The appellant has been convicted in Sessions Case
No.22/2020 for the offences punishable under Section 354-A (1)(i),
376(2)(f)(1)(n), 506, 376(3) of the Indian Penal Code (for short 'IPC')
and for the offence punishable under Section 6, 10 of the Protection of
Children From Sexual Offences Act (for short 'the POCSO Act') vide
judgment and order dated 08.03.2022, which is the subject matter of
challenge. The Trial Court has imposed maximum sentence to suffer
imprisonment of life along with fine for the offence punishable under
Sections 376(2)(f)(1)(n) of the IPC and Section 6 of the POCSO Act.
2. It is the prosecution case in brief that the appellant
(accused) has committed repetitive sexual intercourse on his own
daughter. At the instance of the report lodged by the victim aged 14
years 2 months crime has been registered on 10.12.2019. It is the
victim's case that she was living with her mother, father, brother and
younger sister. Somewhere in the year 2017, in the afternoon, while
she was in sleep, the accused forcibly committed sexual intercourse.
The accused assured her to provide artificial limb as she was disabled.
The accused also threatened her for not to disclose the things. In the
year 2018, in presence of her younger sister, the accused has kissed the
victim. The victim has disclosed the things to her mother but she
neglected. It is the victim's case that on 08.12.2019, in the afternoon,
the accused again committed forcible sexual intercourse. She physically
suffered a lot and therefore, she disclosed the things to her female
friend. On her advice, after two days, she has lodged the report to
police in presence of village Sarpanch. The Police completed the
investigation and filed charge-sheet.
3. In order to establish the guilt of the accused, the
prosecution has examined in all 8 witnesses. The prosecution evidence
mainly consist of the victim (informant,) her mother and sister. Besides
that the prosecution has examined the Medical Officer, Panch Witness,
Gram Panchayat Secretary and Investigating Officer. Relying on the sole
testimony of the victim girl, the Trial Court returned the finding of guilt
and passed the aforementioned sentence.
4. The accused was arrested on 10.12.2019 and till date he is
in jail. Learned Counsel appearing for the accused has assailed the
impugned judgment and order by every possible mode. It is submitted
that the Trial Court erred in basing the conviction on the sole unreliable
testimony of the victim. The mother and sister of the victim girl did not
support the prosecution case. The Medical evidence also speaks against
the prosecution case. Chemical Analyzers report does not corroborate
the victim's version. Moreover, it is submitted that the victim herself has
filed a reply in the appeal stating that no such incident occurred. On
the basis of said material the learned Counsel for the appellant urged to
set aside the order of conviction.
5. Per contra, learned Addl.P.P. has supported the impugned
judgment and order of conviction. Our attention has been invited to the
statutory presumption under Section 114-A of the Evidence Act and
Section 29 of the POCSO Act. Learned Addl.P.P. would submit that the
victim has categorically stated about the repetitive sexual assault,
therefore, the appeal deserves to be dismissed.
6. At the inception, we have noted that it is a case of sexual
assault by the father against his own daughter. Certainly, the allegations
are serious, grave and a matter of indignation. However, we are not
inclined to dilute the standard of proof required under the criminal law
on account of gravity of the offence. We have carefully examined the
entire material, the reasoning assigned by the Trial Court and
considered the rival submissions.
7. The first limb of the prosecution case is about the evidence
of the victim and her family members. The victim's mother (PW1) has
not supported the prosecution case. She has given several admissions in
the cross-examination to indicate that the victim's behaviour was
strange and she was of quarrelsome nature. The victim's younger sister
(PW3) also refused to buy the prosecution story. Then the prosecution
has examined the victim's schoolmate aged 16 years however she also
remained back footed in the Court. In substance, the evidence from
said quarter was not available. True, the victim's mother was not the
eye-witness but her evidence was laid on the point that the victim has
disclosed the things to her and she accompanied the victim while
lodgding the report. The evidence of victim's sister was on the point
that in her presence, the accused has outraged the victim's modesty.
The evidence of victim's friend was on the point that the victim has
disclosed the atrocities to her on which she has advised her to approach
to the Police. However, to the dismay of the prosecution, all these
witnesses turned hostile, meaning thereby their evidence is not
available to assist the prosecution.
8. In said background, the prosecution has examined the
victim (PW4), who was staying at Anand Ashram i.e. at shelter home at
relevant time. On the point of occurrence, the victim stated that her
father (accused) has committed rape on her. Particularly, she has stated
that the incident of rape has repetitively occurred. She deposed that
once in the field in presence of her younger sister, the accused kissed
her and on return she has disclosed the things to her mother. The
victim stated that the accused used to threaten her. She has disclosed
the things to her friend and on her advice she met with Village
Sarpanch and lodged the report.
9. The evidence of prosecutrix is criticized by pointing certain
admissions given by the victim during the cross-examination. The
defence tried to make out that the victim was a quarrelsome girl, she
was twice expelled from the school on account of her unruly behaviour.
The accused father scolded and beat her, and thus, out of anger false
report has been lodged. In order to built such defence, we have been
taken through the victim's evidence. She has admitted that after taking
initial education of two years at Murtizapur, she was expelled from the
said school. She admits that since there were complaints of the teachers
against her at Balaji Convent School, she was dismissed from the said
school. She stated that once without informing the School Authorites of
Women Military School, Nagpur, she ran away but brought back by the
Police. She stated that she has put grievance against the School
Administration about the hygienic food. She also admits that the School
Authorities have called her father (accused) and handed over the
School Leaving Certificate. Certainly, these admissions indicate that the
victim's behaviour was not proper, she was twice removed from the
School on account of behavioral aspect. True, that cannot be a reason
but it is one of the bit for consideration, while appreciating the defence
version.
10. Learned Defence Counsel took us through some vital
admissions to state that the report was lodged out of anger. The victim
admits that due to various complaints made against her, on two to
three occasion, her father (accused) beat and scolded her. She admits
that due to such beating she was angry on her father and having
revengeful attitude against him. Since the victim's admission made in
paragraph 9 of her evidence are vital, we wish to reproduce as below :
"9..... It is correct that due to such type of compliant
for 2-3 occasions my fahter beat and scolded me. It is
correct that due to such incidents I was angry with my
father. It is correct that due to such fact I was having
revengeful attitude against my father."
11. The victim has stated in her evidence that she has lodged
the report against her father alleging beating and scolding. On that
basis, it is argued that though the victim stated the incident of beating
only, however the Police have exaggerated the story. Notably the victim
admits that except the contents of beating and scolding by her father,
she has not lodged the report to the Police about any other incident.
Particularly, the victim was asked whether out of revenge she has
lodged the report against the father, to which she answered in the
affirmative however when the Court has repeated the question, she
replied in the negative. Certainly, it is a matter of appreciation whether
such evidence can be relied.
12. We deem it appropriate to refer the decision of the Supreme
Court in case of Santosh Prasad Alias Santosh Kumar vs. State of Bihar
(2020) 3 SCC 443 , wherein it is observed that no doubt, it is true, that
to hold accused guilty for the commission of offence of rape, solitary
evidence of prosecutrix is sufficient, provided the same inspires
confidence and appears to be absolutely trustworthy, unblemished and
is of sterling quality.
13. In case of Rai Sandeep Alias Deepu vs. State (NCT of Delhi)
(2012) 8 SCC 21 the Supreme Court had an occasion to consider, which
cannot be said to be a "sterling witness". In paragraph 22, it is
observed and held as under :
"22. In our considered opinion, the "sterling witness'"
should be of a very high quality and caliber whose
version should, therefore, be unassailable. The Court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from the
starting point till the end, namely, at the time when the
witness makes the initial statement and ultimately before
the Court. It should be natural and consistent with the
case of the prosecution qua the accused. There should
not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the
cross- examination of any length and howsoever
strenuous it may be and under no circumstance should
give room for any doubt as to the factum of the
occurrence, the persons involved, as well as, the
sequence of it. Such a version should have co-relation
with each and everyone of other supporting material
such as the recoveries made, the weapons used, the
manner of offence committed, the scientific evidence
and the expert opinion. The said version should
consistently match with the version of every other
witness. It can even be stated that it should be akin to
the test applied in the case of circumstantial evidence
where there should not be any missing link in the chain
of circumstances to hold the accused guilty of the
offence alleged against him. Only if the version of such a
witness qualifies the above test as well as all other such
similar tests to be applied, can it be held that such a
witness can be called as a "sterling witness" whose
version can be accepted by the Court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should remain
intact while all other attendant materials, namely, oral,
documentary and material objects should match the said
version in material particulars in order to enable the
Court trying the offence to rely on the core version to
sieve the other supporting materials for holding the
offender guilty of the charge alleged."
14. With this we may advert to some other circumstances. We
have no doubt in our mind that in sexual offences corroborative
evidence is not a must. We are also aware about the statutory
presumptions. However unless the victims evidence inspires full
confidence, it is not safe to base conviction. In view of the nature of the
victim's evidence, we are bent upon to look for corroborative material
to lent assurance.
15. After lodging of the report, the victim was examined by the
Medical Officer Dr. Sujata Chavan (PW5) on the very day. The victim
did not allow the Medical Officer to conduct genital examination. The
Medical Officer has made a general examination and collected samples.
Medical Examination Report (Medico-Legal Examination Report) is
tendered on record at Exhibit 26. It reveals that the Medical Officer did
not find external injuries including side of vagina. The Medical Officer
stated that she cannot say whether hymen was ruptured or intact. The
Medical Officer stated that she cannot opine whether sexual intercourse
was occurred or not. In substance, the medical evidence does not
provide any sort of corroboration to the sole testimony of the victim.
16. It take us to consider the Expert's evidence. It is the victim's
case that she was subjected to sexual intercourse on 08.12.2019 for
which police report was lodged on 10.12.2019. The police visited the
place of occurrence on 10.12.2019 and seized several articles including
a mattress. On the very day, the clothes of the victim as well as the
accused have been seized. During the course of investigation, seized
articles have been sent for chemical analyzation. The Regional Forensic
Laboratory on analyzation submitted the examination report, which
indicates that neither blood stains or semen was found on either of the
bed-sheet, clothes or the samples collected from both. Resultantly,
though within two days, the samples were collected and the victim was
medically examined, the said material does not support the case of
sexual assault. True, the said material relates to the extent of incident
dated 08.12.2019 however it is a matter of appreciation whether a ring
of truth lies to rely on the victim's evidence about earlier occurrence.
17. At the cost of repetition, we may say that there is no
difficulty in basing the conviction on the sole testimony of the
prosecutrix. The conviction can be based on her sole testimony subject
to inspiring full confidence of the Court. It is well settled that the
victim's evidence is to be tested like the evidence of other witnesses.
Though the statutes provide presumption however foundational facts
are to be established. When the Court is confronted with the sole
testimony of the victim, the Court must be cautious and careful while
accepting her version. Certainly, law does not require that the
prosecution shall establish the guilt with 100% certainty but it should
establish the guilt beyond reasonable doubt. If the circumstances gave
rise to the reasonable possibility of innocence then benefit of doubt
belongs to the accused. The Trial Court while relying on the victim's
sole testimony has expressed that, the victim who must have proud of
her beloved father has no reason to depose falsely. The Trial Court has
also taken aid of the marked portion of the hostile witnesses, which
was established through the evidence of the Investigating Officer. The
Trial Court appears to have much swayed against the accused on
account of relationship.
18. Considering the entire material, we find it difficult to place
implicit faith on the sole testimony of the victim to base the conviction.
It emerges that the victim was rebellant girl attracted expulsion from
the School. Admittedly, she was beaten by her father and she accepted
that, she was having revengeful attitude against her father (accused).
Besides that in duel mind she admitted that out of revenge she has filed
the report.
19. In view of such a nature of evidence, we thought it
necessary to seek corroborative material. However neither medical
evidence nor the chemical analyzer's report support the prosecution
case. Besides that the victim's mother who must be more concerned
with her innocent child has not supported the prosecution case. In our
considered opinion, a reasonable and entertainable doubt arose.
Certainly in such a situation the law prefers to accord benefit of doubt
to the accused.
20. In view of the above, the impugned judgment and order is
unsustainable in the eye of law. We therefore by allowing this appeal
set aside the judgment and order of conviction dated 08.03.2022
passed by the Extra Joint District Judge and Addl. Sessions Judge,
Akola in Sessions Trial No.22 of 2020. The appellant/accused Santosh
s/o Shankar Yele is acquitted from all the charges levelled against him
and he be set at liberty forthwith, if not required in any other case. Fine
amount, if deposited, shall be refunded to the appellant/accused.
(M.W. CHANDWANI, J.) (VINAY JOSHI, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 22/12/2023 18:07:08
