Suresh Raju Mukane vs The State Of Maharashtra And Anr
2023 Latest Caselaw 5759 Bom

2023:BHC-AS:16576

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION
                                  CRIMINAL APPEAL NO.522 OF 2021
                                                   WITH
                                INTERIM APPLICATION NO.929 OF 2021


               Suresh Raju Mukane                             ..     Appellant
                                      Versus
               The State of Maharashtra & Anr.                ..     Respondents


                                          ...
               Mr.Amit Mane, Appointed Advocate for the Appellant.
               Mr.S.R.Agarkar, A.P.P. for the State.
               Ms.Farhana Shah, Appointed Advocate for the Respondent
               No.2.
                                                        ...

                                         CORAM      : BHARATI DANGRE, J.

RESERVED ON : 02nd MAY, 2023 PRONOUNCED ON : 19th JUNE, 2023

JUDGMENT:-

1. The appellant was tried by the Additional Sessions Judge, 2, Vasai in POCSO Spl. Case No.82 of 2016 for committing the offences punishable under Sections 4, 5(m) and 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "POCSO Act") and Sections 376(2)(i) and 366A of the Indian Penal Code (for short, "IPC"). On being convicted under Section 6 of the POCSO Act, he is sentenced to suffer R.I. for 20 years alongwith fne of Rs.15,000/- and in

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default to pay fne, to undergo S.I. for six months. The conviction under Section 366A has resulted in a sentence of R.I. for 10 years, being imposed upon him.

The sentences imposed as above, are directed to run concurrently.

2. The prosecution allege that it is the appellant/accused, aged 25 years, who committed sexual assault upon a girl child, aged three and half years, dwelling on footpath at R.J.Nagar, Virar, Taluka Vasai, with her parents and younger sister. It is alleged that on 28/08/2016, when the child's father went out of the station and the mother alongwith her children after having dinner went to sleep on the footpath, in front of a shop at around 9.30 p.m. and when she awoke to attend natures call, she did not fnd her daughter. She, therefore, took search in the vicinity and the appellant, residing in the neighbourhood near Ambamata Temple, on noticing the mother ran away from the spot, but at a later point, he asked her to stop and she heard the child whimpering and, thereafter, the appellant entered a dilapidated house located alongside the road and brought her child out, who was without any clothes on her body and blood was oozing from her private part. The mother noticed that the child was sexually abused and when she was about to question the appellant, he fed from the spot.

3. The above incident was reported to Virar Police Station by the mother, where she expressed her suspicion that it is the appellant, who is responsible for the said act and, therefore, on

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registering the FIR, the offences under Sections 376(2)(i) and 366A came to be invoked. Since the victim girl was minor, Sections 3, 4, 5(m), 6, 7 and 8 of the POCSO Act were also invoked.

The victim girl and the appellant were referred for medical examination and after collecting the necessary evidence, the charge-sheet was presented in the competent court.

4. The appellant was charged as under :-

"That, on 28.08.2016 between 21.30 and 23.30 you kidnapped victim girl namely Disha aged four years when she was sleeping with her mother i.e. frst informant, on footpath at R.J.Naka, Virar with interest t hat she may be forced or seduced to illicit intercourse with you and thereby committed an offence punishable under section 366A of Indian Penal Code, and within the cognizance of this Court.

That on the given date, time and place, after kidnapping the victim girl aged four years, youy took her in the dilapidated house of one Tarabai Vartak situated by the side of road in front of Bhumikanya Apartment at R J Naka, Virar, and had forceful intercourse with her and thereby committed an offence of rape punishable under section 376(2)

(i) of Indian Penal Code, and within the cognizance of this Court.

That, on the given date, time and place, you committed penetrative sexual assault on above-named victim- girl by penetrating your penis into her vagina and thereby committed an offence punishable under section 4 of Protection of Children from Sexual Offences Act (P.O.C.S.O. Act), and within the cognizance of this Court.

That on the given date, time and place, you committed aggravated penetrative sexual assault on the minor victim-girl aged below twelve years and thereby committed an offence under section 5(m) punishable under section 6 of P.O.C.S.O. Act, and within the cognizance of this Court."

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5. In order to establish it's case, the prosecution examined seven witnesses, which include the victim and also her mother. The two Medical Offcers, who examined the victim and the accused came to be examined as PW 4 and PW 5 respectively. PW 6 and PW 7, who carried out part of the investigations were also examined apart from the recovery and spot panch-Sunil Shinde, being examined as pw 3.

The accused pleaded not guilty and he was examined under Section 313 of Cr.P.C.. He denied the case of the prosecution and refused to examine any defence witness.

6. In a criminal trial, the prosecution bears the burden of proving the guilt of a person, whom it has charged for committing an offence and it is the duty of the prosecution to establish his guilt beyond reasonable doubt. It is imperative for the prosecution to establish the guilt, by placing before the court cogent and reliable evidence, which shall leave no iota of doubt that the accused is guilty of committing the offence. If the prosecution lacks suffcient evidence, in that case the beneft must go to the accused, the cardinal principle of criminal law being the accused is presumed to be innocent, unless proved guilty. It is also very well settled that at the end of the criminal trial, if two views are possible, one pointing to the guilt and other towards innocence, the view in favour of the accused should be accepted.

In any case, at the end of the criminal trial, based on the case of the prosecution led before the Court, there should be no doubt, whether the accused is guilty or not, but the trial must

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conclusively lead to an inference of guilt of the accused, who deserve conviction as per law.

7. The above position of law being well settled, it is to be assessed, whether the evidence placed before the learned trial Judge was suffcient to infer a fnding of guilt of the accused and to make him liable for the punishment under the provisions of IPC as well as the POCSO Act, with which he was charged.

It is the case of the prosecution that the complainant /PW 1 was residing on the footpath alongwith her family and on 28/8/2016, when she went to sleep at around 9.30 p.m., she realized that her elder daughter is missing and she attempted a search to trace her. During the search operation, she came across the accused, who according to her, fed from the spot on noticing her, but ultimately, she found her daughter in a dilapidated structure and it is her version that accused brought her out, from the house in a naked position. She was bleeding from her private part, which led the complainant to believe that she was sexually assaulted and, since, she suspected that it is the accused, who has committed the act, she called him near her, but he fed from the spot.

The above incident was reported to the concerned police station and the subject FIR came to be registered. The accused came to be arrested on 29/08/2016 i.e. the date when the FIR was lodged and the victim girl, aged three and half hears, was referred for medical examination. PW 4 examined the girl after obtaining the consent of her mother and her age was

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determined as three plus (+) or minus (-) six months. The child was also referred to the Dental Department for assessing her age.

A Medical Panel was constituted for examining the child and after recording the history given by the mother of the child, upon local examination of the genitals , it was found that there was presence of internal injury on the genitals in the form of tears at 3, 6 and 9 o'clock position. The presence of the clotted blood in the hymenal region of the child lead to an opinion being expressed, that the child was subjected to sexual intercourse/assault and the Medical Report (Exh.24) came to be exhibited through PW 4.

The accused was also subjected to medical examination and PW 5 opined that he was capable of performing sexual intercourse.

8. During the course of investigation, the samples of the mud found on the spot was collected alongwith the clothes of the accused and the victim and it was forwarded for forensic examination, but except revealing that the blood group of the victim was 'A' and that of the accused, being 'AB', nothing could be deduced to establish the guilt of the accused. The spot panchnama was prepared during the course of investigation and through PW 3, it came to be exhibited as Exh.18.

9. The spot panchnama recorded the place of incident, as an old dilapidated, abandoned house with a big tamarind tree. The garbage was found lying nearby and the platform

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constructed in cement situated in the house had blood stains. A white baby frock with blue fower design was recovered from the spot alogwith pair of gents footwear and these articles came to be seized. The nicker of the child was also recovered from the spot and seized.

The map of the spot came to be exhibited through PW 8 and the dilapidated house is shown in the map as the spot situated on the right side of the road, coming towards Phulpada. The house of the accused is shown on the left side of the road, barely at a distance from the spot and the spot panchnbama record that the house is situated at a distance of 50 meters from the spot, which indicate that he is a resident of the very same area, where the spot of incident is situated.

10. In the wake of the material collected during the investigation and placed before the learned Judged, in order to ascertain the involvement of the applicant, the evidence of the two witnesses i.e. mother of the victim and the victim herself need to be carefully appreciated.

PW 1 in her FIR had expressed a suspicion that it is the accused, who had sexually ravished her daughter and she narrated to the police that he fed from the spot, when he faced her.

In her evidence before the Court, she deposed that when she took search of the child in the nearby vicinity, she could not fnd her and then she saw the accused with whom she inquired about her child, but he answered that he had not seen her. Then she went to the temple of Ambamata, when the

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accused called her and pointed out towards the dilapidated room in front of the temple and told her that child was crying there. When she gave call to the child by going near the room, the child responded back and then the accused brought the child out of the room, when she noticed blood on her mouth and on her urinating part and she found her naked.

There is no reason given by PW 1 as to why she suspected that it is the accused, who had committed sexual assault on her daughter, as there is no mention about any such circumstance in her complaint. However, when PW 1 deposed before the Court, she has stated that when she asked the child about what had happened, she did not reply, but on the next day, she disclosed that the accused inserted his fnger into her urinating part, by pressing his one hand on her mouth.

The said circumstance does not fnd place in the report, which she lodged with the police station.

11. On reading the deposition of PW 1, it is evident that when PW 1 was in search of her child, she came across the accused and she asked, whether he had seen the child and received an answer in the negative, but when she proceeded ahead near the temple of Ambamata, which is situated in the vicinity itself, the accused called her, as the child was found and it is the accused, who brought the child out of the room, but the aforesaid narration do not, in any way, lead to a conclusion that it is the accused, who led her to the spot and what has surfaced on record is that he joined PW 1 in search of the child

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and when the cries of the child could be heard, he pointed out the presence of the child in the dilapidated building.

In the cross-examination, PW 1 admit that the spot was situated in the residential area and in the night, there is presence of the commuters in the area. She also admit that at the time of incident, except the streetlight, other lights were switched off and she could not give the exact time, as no clock was installed near the spot. PW 1 clearly admit that as it was dark, she was unable to identify the person coming in front of her and when she state that when she saw the accused for the frst time, he ran away and she could not notice his face due to darkness.

12. Surprisingly, PW 1 state that she did not fnd the apparels of the child in the house, whereas the entire case of the prosecution, which refer to the discovery and seizure of the clothes of the victim girl i.e. a frock and nicker from the spot and these apparels, being forwarded for forensic analysis. She also admit that in her report, it is not recorded that there was blood on the mouth of the child and that the child had told her about the insertion of fnger by the accused into her urinating part.

In re-examination, PW 1 improves her version and state that the short frock in white colour, having purple fower prints, shown to her, was found in the room and it was worn by her daughter earlier and it was marked as Article E, whereas frock marked as Article A was given to her by another lady.

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13. As far as the identity of the accused is concerned, she categorically admit in the cross-examination that she identifed the accused only because the police showed him to her in the court.

Admittedly, during the course of investigation, no test identifcation parade was conducted to reaffrm the version of PW 1 about the identity of the accused.

14. The child stepped into the witness box as PW 2 and she deposed that while she was sleeping with her mother and sister, she was gripped and her mouth was pressed by a black complexion boy, residing at Phulpada, who took her in the dilapidated building and who caused her to bleed from her urinating part. She further deposed that he inserted his fnger in her urinating part and before that, he removed her frock and underwear and she raised an alarm. She also deposed that 2-3 persons had come there, who called the said boy and one lady gave her a frock, as the frock which she had worn earlier was stained with blood.

In the cross-examination, the victim categorically admit that she was deposing as per the say of her mother and the APP. She also admit that there was darkness in the dilapidated house, but it is not true that she was not aware about who had taken her into that house. She clearly admit that the boy who carried her, was not familiar. It is further admitted by PW 2 that her mother told her that she had bleeded, but on a question being put, whether she had seen the blood oozing from her private part, she state that she had seen

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it. A categorical admission comes from PW 2 to the following effect :-

"It is true that I was told by my mother that said boy has inserted his fnger into my urinating organ".

15. From the deposition of PW 1 and PW 2, there appear to be a serious doubt about the accused/appellant having committed the act of sexual assault for more than one reason. The frst reason, being the scenario on the spot i.e. the darkness. PW 1 had clearly admitted that it was dark and she was unable to identify the person and at the frst time when she stated that the accused ran away, she could not see his entire face. Even PW 2, has deposed that it was dark inside the house and according to her, she was gripped by black complexion boy, whom she was not acquainted with. She clearly admitted that the boy, who carried her away, was not familiar to her.

Thus the identity of the accused, being the person who had committed sexual assault on the victim girl, is not established by the prosecution beyond reasonable doubt. The Investigating Offcer never carried the test identifcation parade during the course of investigation to affrm the version of PW 1 that it was the accused, who was responsible for the sexual assault on her daughter.

PW 1 categorically admit that she identifed the accused only on account of the police showing him to her in the Court.

PW 2, a little girl over above three, also give a clear admission that she was told by her mother and the APP about what to depose and though she identifed the accused in the

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court by nodding her head in the assertive, but she had no opportunity to see him committing the incident, as according to her own version, it was dark in the dilapidated house.

16. It is no doubt true that a serious offence has occurred and, since the medical evidence has established that the victim girl barely three and half years was subjected to sexual assault, but the prosecution has miserably failed to establish that it is the accused, who had committed the said act.

The incident having taken place in the year 2016, PW 1 deposed before the Court almost after a period of two years i.e. in the year 2019, whereas the victim girl has also identifed him in the Court on 08/03/2019. It is highly impossible for a minor girl, aged three and half years, to identify a person as the memory of a child may be short lived and, particularly, when she had admitted that she had no opportunity to see the face of the person in the dilapidated room, as it was dark and, therefore, the prosecution has failed to establish that it the accused/appellant, who has committed the sexual assault upon her.

Despite the seriousness of the offence and the plight of a minor girl and a helpless mother, without the prosecution establishing the guilt of the accused beyond reasonable doubt, he cannot be held guilty of committing the offence of kidnapping the victim girl and for committing sexual assault upon her.

The learned Special Judge has failed to appreciate the gross lacuna in the case of the prosecution and has failed to

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consider that there is no material brought on record, which is suffcient to hold the accused guilty of committing sexual assault upon the victim girl, as the evidence produced by the prosecution was not at all convincing and reliable, so as to lead to an conclusive inference that it is only the accused, who has committed the offence.

The impugned judgment, therefore, suffers from grave error, as it has failed to appreciate the cardinal principle in criminal jurisprudence that it is the duty of the prosecution to establish the guilt of an accused beyond reasonable doubt and if there remains any doubt, the beneft must yield in favour of the accused.

17. As a result, the impugned judgment dated 15/05/2019 in POCSO Special Case No.82 of 2016 is quashed and set aside.

As the conviction is set aside, the appellant stand acquitted of the charges, for which he was tried. He is directed to be set at liberty, if not required in any other case.

18. In view of the disposal of the Appeal, nothing survives in the interim application and it also stands disposed off.

19. Before I part with the judgment, I would like to place the words of appreciation for Advocate Amit Mane and Advocate Farhana Shah, who have represented the cause of the appellant and respondent No.2 before this Court effectively. The Legal Service Authority is directed to pay their legal

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remuneration, as per rules, within a period of six weeks from today.

( SMT. BHARATI DANGRE, J.)

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