Sangram Vilas Jagtap vs The State Of Maharashtra And Anr
2023 Latest Caselaw 1442 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO.775 OF 2019

Sangram Vilas Jagtap                                 ....Appellant
            Versus
The State of Maharashtra & Anr.                      .... Respondents

                                 -----
Ms. Anjali Patil, Advocate a/w. Mallika Sharma for the Appellant.
Mr. S.R. Agarkar, APP, for the Respondent No.1-State.
Ms. Rebecca Gonsalvez, Advocate (appointed) for the Respondent
No.2.
                                 -----

                             CORAM : SARANG V. KOTWAL, J.

                             DATE      : 13th FEBRUARY, 2023

ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 23.4.2019 passed by the Special Judge under the POCSO

Act, Greater Mumbai in POCSO Special Case No.243/2017. The

applicant was convicted and sentenced as follows :

(i) He was convicted for commission of the offence punishable under Section 376(1) of IPC and he was sentenced to suffer RI for ten years and to pay fine of Rs.1,000/- and in default of payment of fine to suffer SI for seven days.

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(ii) He was convicted for commission of the offence punishable under Section 377 of IPC and was sentenced to suffer RI for five years and to pay fine of Rs.1,000/- and in default of payment of fine to suffer SI for seven days.

(iii) He was convicted for commission of the offence punishable under Section 323 of IPC and was sentenced to suffer RI for six months and to pay fine of Rs.500/- and in default of payment of fine to suffer SI for seven days.

(iv) He was convicted for commission of the offence punishable under Section 341 of IPC and was sentenced to suffer RI for one month and to pay fine of Rs.100/- and in default of payment of fine to suffer imprisonment for three days.

(v) And lastly, he was convicted for commission of the offence punishable under Section 354 of IPC and was sentenced to suffer RI for one year and to pay fine of Rs.500/- and in default of payment of fine to suffer SI for five days.

All the substantive sentences were directed to run concurrently. He was given set-off under Section 428 of Cr.P.C.

2. The prosecution case is that the appellant was residing

in the same vicinity as that of the victim. She was about ten years

of age at the time of incident. Her date of birth was 6.1.2007. The

incident took place on 1.3.2017. On that day, at around 12.30

p.m., the victim was playing outside the house of the appellant.

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He took her on the mezzanine floor of his house on the pretext of

showing some video for children. Taking advantage of the

situation, he committed rape on her. She came out of the house.

Her friends noticed that she was crying. One of the neighbours

informed her mother. The mother enquired with her. She narrated

the incident to her. The mother of the victim went to the house of

the appellant and thereafter went to the police station along with

the victim. The mother of the victim lodged her FIR. The

investigation was carried out. The appellant was arrested. The

spot panchnama was conducted. The victim and the appellant

were sent for medical examination. The statements of the

witnesses were recorded. The articles were sent for chemical

analysis. At the conclusion of the investigation, the charge-sheet

was filed and the case was tried before the Sessions Court.

3. During trial, the prosecution examined nine witnesses

including the victim, her mother, a neighbour, two friends, the

Medical Officer; and the police officers. The defence of the

appellant was of total denial. After hearing both the parties,

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learned Judge convicted and sentenced the appellant as

mentioned earlier.

4. The victim was examined as PW-1. She has deposed

as follows :

She was residing with her elder brothers and parents.

Her school timing was from 6.45 a.m. to 1.00 p.m. Her date of

birth was 6.1.2007. On the date of incident, she had a half-day

school. She reached home at around 10.00 a.m.. Then at around

12.00 p.m., she went out to play. She went to the house of the

appellant for playing with the appellant's niece. One of her

friends was with her. Therefore, in the house; the appellant, the

victim, her friend and two small boys were present. The victim's

friend's mother called her, so victim's friend went to her house.

Two small children were playing on the ground floor. The

appellant told the victim that he had a C.D. for children and that

he would show it to her. He took the victim on the mezzanine

floor. When they reached there, he removed his clothes and also

removed her clothes. Then he committed rape on her. He had put

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his private parts in her private parts. He did it for a long time.

She slapped him. He slapped her back. He pressed her chest. She

did not remember what he did on the backside but she had pain

there. She could not shout because of fear. She kicked him, took

her clothes hurriedly and came out. She started crying outside the

house. Her friend "S" came there and enquired with her as to

what had happened. The victim did not tell her anything. Two

other friends came there. They enquired with her. She did not

tell them anything. The appellant's mother came there. She did

not tell them the real reason why she was crying. Finally, she

narrated the incident to one Rinku Didi. She narrated the incident

to one Mami. Said Mami called the victim's mother. Her mother

came and went to the appellant's house and quarreled with him.

The victim's mother brought the victim to their house. She told

the victim's brother to call the victim's father, who in turn

informed the police. They came to the house of the appellant and

arrested the appellant. After that, her father came home. She

along with her parents went to the police station and narrated the

incident to the police. She identified her clothes in the Court.

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After recording her statement, the police sent her for medical

examination. She narrated the history to the Medical Officer. Her

statement was recorded in the Court under Section 164 of Cr.P.C.

The statement is produced on record at Exhibit-12. She identified

the appellant on Video-Conferencing facility.

In the cross-examination, she stated that PW-4 Nalini

was residing opposite her house and she was her mother's friend.

The appellant's house was at one minute walking distance from

the victim's house. One of the children, who was in the house at

the time of the incident was less than five years of age. She was

then cross-examined regarding her knowledge of anatomy of her

private parts. She was asked about the omissions from her police

statement where she had not stated that the incident occurred for

a long period. She further deposed that she did not remember

whether her private parts had become reddish. According to her,

there was some white sticky liquid on her private parts. After

recording this answer, the learned Judge had recorded that the

victim - PW-1 had requested the defence counsel to ask questions

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point by point so that she could understand them. She further

added that she was not sure about whether her private parts was

reddish but there was some white sticky liquid on her private parts

and on her clothes. She admitted that, before going to the police

station her mother had slapped the appellant. She added that the

other young boy present in the appellant's house was even

younger than the five year old boy. Her statement recorded under

Section 164 Cr.P.C. sufficiently corroborates her evidence.

5. PW-2 was the mother of the victim. She has deposed

that the victim's date of birth was 6.1.2007. The incident

occurred on 1.3.2017. PW-2's husband had brought her home

from the school and had gone to attend his job. She went out for

playing at around 12.30 p.m. After that PW-2's friend Nalini

called her. She went to her house. She saw that PW-1 was there

and she was frightened. Nalini told her that the appellant had

done something with the victim. PW-2 then asked PW-1. She

narrated the entire incident to PW-2. Both of them came back to

their house. She narrated the facts in detail. PW-2 contacted her

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husband. He, in turn, contacted the police control room. The

police came near the spot. PW-2 went to the appellant's house

with the police. The appellant was about to leave his house. The

police apprehended him. They took him to the police station.

PW-2, her husband and PW-1 went to the police station. PW-2

lodged her FIR. It is produced on record at Exhibit-16. She

handed over the victim's clothes to the police. She deposed that

the victim was sent for medical examination. The victim's

statement was recorded under Section 164 of Cr.P.C. PW-1

produced the victim's clothes before the police. They were seized.

PW-2 produced the original birth certificate before the Court. It is

taken on record at Exhibit-17. In that birth certificate, the victim's

date of birth was shown as '6.1.2007'.

In the cross-examination, she stated that she checked

the private parts of the victim and found that it was reddish in

colour and there was slight swelling. The record shows that the

FIR was lodged at 4.15 p.m. but the police station was informed at

2.10 p.m. regarding the incident which had taken place between

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12.30 p.m. to 1.15 p.m.. The FIR substantially corroborates the

evidence of PW-2.

The spot panchnama is produced on record at Exhibit-

18. The seizure of the victim's clothes panchnama is produced on

record at Exhibit-19 and the seizure of the appellant's clothes

panchnama is taken on record at Exhibit-20. The accused clothes

were seized on 4.3.2017.

6. PW-4 Nalini was a neighbour. She deposed that, on

1.3.2017 at about 1.00 p.m., the victim knocked her door. The

victim and one girl "T" were standing there. The victim was

crying but she did not tell anything out of fear. She narrated part

of the incident. Therefore, PW-4 called the victim's mother from

her window. She came there. Then she took the victim with her

to their house.

In the cross-examination, she stated that the

appellant's mother was a house-wife and used to always remain in

the house. The appellant was studying in the Engineering

College. In the cross-examination, she admitted that the part of

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the incident, which the victim had narrated to her, was not told by

her to the police in her police statement.

7. PW-5 "S" was the victim's friend. She saw the victim

standing outside the appellant's house and crying. She along with

other friends went to the victim and asked about the reason for

her crying. She did not narrate the incident to them. She took

her to a neighbour's house. At that time, she narrated the incident.

All of them went to the house of PW-4. The victim narrated the

incident to PW-4, who in turn called the victim's mother. PW-2

called the police. This witness identified the appellant before the

Court.

8. PW-6 "T" was another friend. She has narrated the

incident in the same manner as is narrated by PW-5. She also

identified the appellant before the Court.

In the cross-examination, she stated that she had

complained to her mother that the appellant had misbehaved with

her about eight days prior to this incident. The appellant used to

make objectionable gestures towards her.

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9. PW-3 WPSI Surwanshi was attached to Bhandup

police station. On 1.3.2017 at about 2.15 p.m., PW-2 came to the

police station with the appellant and the victim. They were

accompanied by Beat Marshal-4. She recorded the statement of

the first informant. She identified the FIR at Exhibit-16. She

registered the offence vide C.R. No.84/2017. She went to the spot

and conducted the spot panchnama. She seized the bed-sheets

from the spot.

In the cross-examination, some minor contradictions

from the FIR were proved by her.

10. PW-7 API Randhwa had recorded the statement of the

victim on 1.3.2017. This witness was in the civil dress at that

time. She was cross-examined on the point whether she had

inquired with the victim about what she meant by private parts.

She proved some omissions from the victim's statement but they

do not really destroy the victim's evidence.

The defence admitted the medical examination report

of the appellant. It is produced on record at Exhibit-28. In that

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report, it was mentioned that there was nothing to suggest that he

was not capable of performing sexual intercourse.

11. PW-8 Dr. Narendra Kumar had examined the victim

medically. He has deposed that he had examined the victim on

1.3.2017. The history was narrated by the victim's mother. The

victim was examined at 10.45 p.m. on 1.3.2017. On examination,

he did not find any injury on her body. On local examination, he

did not find evidence of any injury or redness. Her hymen was

intact. There was no bleeding, no odema, no perineal tear. Her

swab was preserved for Forensic examination. He gave the opinion

that the evidence of sexual intercourse / assault could not be

ruled out. He had kept his final opinion pending till receipt of FSL

report. The report is produced on record at Exhibit-31. He was

shown CA report at Exhibit-32. He deposed that even after

reading the CA report, his opinion was the same. The C.A. report

mentions that neither blood nor semen was detected on the bed-

sheets, clothes of the victim and the clothes of the appellant.

In the cross-examination, he deposed that the victim

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was brought for examination after eight to ten hours. According

to him, if there was redness on private parts or bleeding; it could

not be cured within eight to ten hours. He had not noticed any

redness or injury on her private parts. He reiterated that he was

firm on his opinion that sexual assault or intercourse could not be

ruled out even if the CA report was nil. He agreed that if the

medical history and other papers were excluded, he would not be

in a position to give positive finding in this case.

12. PW-9 PI Chavan had conducted the investigation in

C.R. No.84/2017 of Bhandup police station. He had sent the

clothes and the samples for Chemical analysis. He had filed the

charge-sheet. On 18.3.2017 he had sent the victim for recording

statement under Section 164 of Cr.P.C.

. This, in short, was the evidence led by the prosecution.

13. The learned Judge observed that the prosecution had

not proved the source of the birth certificate at Exhibit-17 and,

therefore, the prosecution has failed to prove that the victim was a

child within the meaning of Protection of Children from Sexual

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Offences Act. On this ground, the learned Judge acquitted the

appellant from the offences punishable under POCSO Act.

However, he accepted that the victim was telling the truth and

based on the sole testimony which inspired confidence according

to him; he convicted the appellant under various sections of IPC.

Though the observations of the learned Judge regarding acquittal

under POCSO Act do not appear to be correct in law and on facts;

the State has not challenged that finding. There is no appeal

against acquittal as far as those charges are concerned.

14. Learned counsel for the appellant submitted that the

evidence of the victim does not inspire confidence. This is not a

case where her sole testimony can lead to the only conclusion of

the guilt of the appellant. She strongly relied on the medical

evidence and the CA report to contend that these two factors do

not corroborate the victim's evidence at all. According to learned

counsel, the incident was going on for a long time as was deposed

by the victim and, therefore, at least some signs should have

appeared on the person of the victim. The victim had narrated

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that there was white liquid in her private parts and yet the CA

report does not indicate anything of that nature which falsifies her

story.

15. She further submitted that the incident could not have

been possible because there were two small boys in the house and

the appellant could not have committed this offence in their

presence. There are important omissions from the evidence of not

only the victim and her mother but even from the evidence of the

neighbour.

16. Learned counsel for the respondent No.2 as well as

learned APP opposed these submissions. They submitted that

there is no reason to hold that the evidence of the victim was not

sufficient in this particular case. There was no reason for her to

implicate the appellant falsely. There is nothing to show that there

was any previous reason of such a grave nature to drive the victim

to make such serious allegations against the appellant. The

evidence shows that the victim had full faith in the appellant and

she innocently went to his house. The appellant had called her

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on the pretext of showing some C.D. for children. He took

advantage of this situation and then committed this offence.

17. They submitted that, as per the definition provided

under Section 375 of IPC, even a small penetration is enough to

constitute the offence. Therefore, if there was no visible

indication on the private parts of the victim that does not mean

that the penetration did not take place. They submitted that the

victim's age is very important in this case. Nothing further could

be expected from a ten year old child. She was not in a position

to explain in detail about the factors on which the defence is

harping. They submitted that the learned Judge has recorded

time and again as to how disturbed the victim was during her

cross-examination and, therefore, her evidence will have to be

tested in that background.

18. Learned counsel for the respondent No.2 relied on the

observations of the Hon'ble Supreme Court in the case of State of

Himachal Pradesh Vs. Manga Singh as reported in (2019) 16 SCC

759 to contend that absence of injuries on the private parts of the

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victim by itself is no reason to doubt the evidence of the

prosecutrix.

19. I have considered these submissions. While it is true

that the medical examination does not show any visible injuries on

the person or the private parts of the victim, but, it also must be

kept in mind that her medical examination was conducted at

10.45 p.m. on 1.3.2017 whereas the incident had taken place at

around 1.00 p.m.. There was considerable time gap. The victim

or her mother PW-2 in their examination-in-chief have not

deposed that there was redness or injury to the victim's private

parts. PW-2 was asked in her cross-examination about such

redness. Therefore, absence of redness will not falsify the

prosecution story. As rightly submitted by learned counsel for the

respondent No.2 and the learned APP that even small penetration

was enough to constitute this offence as is provided in the

definition under Section 375 of IPC. Considering the tender age

of the victim, it is also understandable that she may not exactly

know anything about the liquid. Her cross-examination shows that

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after she gave that particular answer, she had complained that the

questions were put to her which she was not able to understand

easily. Therefore, absence of any indication in the CA report about

such liquid will not help the defence in this case. The clothes of

the accused were seized on 4.3.2017 and the incident had taken

place on 1.3.2017. The CA report regarding these clothes is

therefore not indicating anything of importance.

20. Therefore, everything depends on the testimony of the

victim herself. After scrutinizing her deposition carefully, I do not

find any infirmity in her deposition raising a reasonable doubt

about the prosecution case. The sequence of events shows that

she had immediately come out of the house of the appellant after

the incident. She was seen crying. She met her friends. She was

in a frightened state. All this is deposed by her two friends and

the neighbour. To that extent, they have corroborated her

depositions showing her frame of mind. Immediately after that,

her mother was informed. She narrated the incident to her

mother. The police were informed immediately. They came at the

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spot and the appellant was arrested immediately. There is

absolutely no time gaps between these events. Therefore, it

cannot be said that PW-1's story is concocted. Any pre-planning or

concoction of story is totally ruled out. I, therefore, see absolutely

no reason to disbelieve her case. In this regard, reliance can be

placed on the case of Manga Singh (supra). The relevant

paragraphs i.e. paragraphs-10 and 15 are relevant, which are as

follows :

"10. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law, but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.

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15. Insofar as the second ground on which the High Court gave the benefit of doubt to the respondent-

accused that the medical evidence was inconclusive, it is to be pointed out that Dr. Neerja Gupta (PW 6) in her evidence has categorically stated that merely because there was no injury marks it cannot be said that there was no question of sexual intercourse. In her chief-examination Dr. Neerja Gupta (PW 6) has further stated that in case of small/slightest penetration the hymen will not rupture; the hymen will rupture only in case of complete penetration with force. As discussed earlier, the respondent-accused made the prosecutrix (PW-4) to sleep with him and inserted his private part in the private part of the prosecutrix which constitutes rape. This may not have ruptured the hymen. In the absence of injury on the private part of the prosecutrix, it cannot be concluded that the incident had not taken place or the sexual intercourse was committed with the consent of the prosecutrix. The prosecutrix being a small child of about nine years of age, there could be no question of her giving consent to sexual intercourse. The absence of injuries on the private part of the prosecutrix can be of no consequence in the facts and circumstances of the present case."

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In the facts of the present case, the observations of the

Hon'ble Supreme Court are squarely applicable.

21. There is no force in the submission that the incident

could not have taken place in the house in the presence of two

boys. The evidence shows that one of them was five years of age

and the other one was even younger. They were on the ground

floor. Their presence does not make any difference in the facts of

this case.

22. Considering all this discussion, I am of the opinion

that the prosecution has proved its case beyond reasonable doubt.

There is no reason to interfere with the conviction and sentence

recorded by the trial Court. With the result, the appeal is

dismissed.

Digitally signed (SARANG V. KOTWAL, J.) by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2023.02.17 11:27:20 +0530 Deshmane (PS)

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