Rohan Harishchandra Shedge vs The State Of Maharashtra And Anr
2023 Latest Caselaw 3017 Bom

2023:BHC-AS:9250



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      rajshree


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION
                                            CRIMINAL APPEAL NO.41 OF 2019
                    Rohan Harishchandra Shedge                   ]       ..       Appellant
                                     vs.
                    State of Maharashtra & Anr.                  ]       ..       Respondents
                                                       WITH
                                           CRIMINAL APPEAL NO.214 OF 2019
                    Rajendra Laxman Shedge                       ]       ..       Appellant
                                     vs.
                    State of Maharashtra & Anr.                  ]       ..       Respondents


                    Mr.Saurabh Butala i/b Harshad Sathe for Appellant in Cr.Appeal
                    No.41/2019.
                    Mr.Niranjan Mundargi i/b Veerdhawal Deshmukh for Appellant in Cr.
                    Appeal No.214/2019.
                    Ms.P.N. Dabholkar, APP for State.
                    Ms.Janhavi Karnik, Appointed Adv. For Respondent No.2 in Cr. Appeal
                    No.41/2019.
                    Mr.Lokesh Zade for Respondent No.2 in Cr. Appeal No.214/2019.
                                                  CORAM : BHARATI DANGRE, J

                                                  RESERVED ON : 13th March, 2023

                                                  PRONOUNCED ON :        28th March, 2023

                    JUDGMENT

1] Two appeals are filed by the two accused, who came to be tried as Accused Nos.1 and 2 by the Additional Sessions Judge, Mangaon, District Raigad in Special POCSO Case No.2/2013, on being aggrieved by their conviction and imposition of sentences thereafter.

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The two Appeals, though raise distinct challenges arise out of the common Judgment and hence I have clubbed them and heard together.

I have heard the learned counsel Mr.Niranjan Mundargi for Accused No.1 and Mr.Butala for Accused No.2. I have also heard learned APP Ms. Dabholkar for the State in two appeals, whereas, the victim-Respondent no.2 in Cr. Appeal No.41/2019 is represented by Ms.Janhavi Karnik and in Cr.Appeal No.214/2019, is represented by Mr.Lokesh Zade.

2] The prosecution case presented before the Sessions Court is, that the victim residing with her family is persuading her education in 8 th Standard, in one of the Schools in the locality. It is alleged that on the date of the incident when she returned from school and was present in the house all by herself, and went to sleep, accused No.1, Rajendra, her cousin brother committed forcible sexual intercourse with her and left the place.

On account of the alleged sexual indulgence, she conceived and on noting that her stomach was growing, she was taken to a Doctor, who divulged that she is carrying pregnancy of six months. Thereafter, she was sent to Pune, after having telephonic conversation with her uncle and was left in the custody of Chaitanya Mahila Mandal on 22.04.2013. On being admitted there, she was taken under the wings of PW 5, the founder of the shelter home, who with the help of a counselor opened her up and she disclosed that her brother Rajendra had forced himself upon her and raped her.

The aforesaid fact was informed to Bhosari Police Station on 10.05.2013 on the letterhead of Chaitanya Mahila Mandal, with a request to register an offence under the POCSO Act. Thereafter, a lady

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PSI visited the shelter home and recorded the statement of the victim. Another statement of the victim came to be recorded on 08.06.2013, to corroborate the version in her earlier statement given to Mahad Police Station.

As per the prosecution, on 25.05.2013, the victim delivered a female child and she was discharged on 03.06.2013. The victim and child were subjected to DNA test and the Report received, failed to establish that the Accused No.1 is the father of the child.

3] Once again inquiry was made with the victim girl, when she disclosed that her brother, Accused No.2-Rohan had sexually assaulted her, somewhere in the month of September, when she was present in the house alongwith him and was watching Television and he suddenly latched the door, threw her on the cot and by undressing himself, committed rape on her.

After two days, again he sexually abused her, which scared her and she started avoiding to remain in the house in presence of Rohan, her own brother.

The Accused No.2 came to be arrested and his DNA samples were forwarded for analysis. The report of the forensic analysis established the Accused No.2 Rohan, to be the biological father of the child born to the victim.

4] The learned counsel Mr.Mundargi, who represent Accused No.1, would vehemently submit that the key witness in the prosecution case is not trustworthy and the material placed before the Court would clearly reveal that she is attempting to save someone and obviously it is Accused No.2, who happens to be her brother. As far as Accused No.1 is concerned, it is the submission of Mr.Mundargi that only one act

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of sexual assault has been attributed to him and that too with all vagueness, without any date, time and place being specifically narrated.

It is argued by Mr.Mundargi that, the prosecution has relied upon the statement of the victim girl given to the Police for involving accused No.2, her own brother and in her statement she has candidly admitted that her brother committed sexual intercourse with her against her will, but despite this, when she stepped into the witness box, she put blame only on Accused No.1 and deny the contents of her statement recorded by Police on 23.08.2013 where she has specifically disclosed to the police that Rohan had established physical relationship with her.

Apart from this, he would invite my attention to her cross- examination where she has deposed that, at the time of incident, her age was more than 18 years and she specifically deny the suggestion on behalf of Accused No.1 that with an intent to save Accused No.2, she is involving Accused No.1.

5] Mr.Mundargi would submit that the prosecution case itself is doubtful and moreso, the learned Judge has adopted a strange procedure of exhibiting statement of the victim girl given to the police, under Section 161 of the Cr.P.C. and he is extremely critical of the conduct of the victim who, on knowing that the DNA report of accused No.1 is negative, immediately roped in her own brother by alleging that he is responsible for the said act and in fact upon analysis of the DNA samples of her brother, it matched, with that of the child, born on 25.05.2013.

6] Mr.Mundargi would also vehemently submit that the provisions of POCSO Act are wrongly invoked and conviction is wrongly awarded,

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though POCSO Act came into effect on 14.11.2012 and the alleged incident as per the prosecution itself occurred somewhere in September, 2012.

In these circumstances, he would pray for setting aside the conviction and sentence imposed under the provisions of the POCSO Act.

As far as prosecution case under Section 376(2)(i) of the IPC is concerned, the submission is that the prosecution has failed to prove the said charge, particularly when the evidence of victim girl itself do not inspire confidence.

7] The learned counsel Mr.Butala appearing for Accused No.2 Rohan, would submit that he faced the charge under Section 376(2)(i)

(n) of the IPC, but the said Section did not exist when the incident is alleged to have taken place i.e. in the month of September, 2012, as per the charge levelled against him and thereafter repeating the act 3 to 4 times in the same month.

He would submit that the relevant provision has came into effect subsequent to its insertion by the 2013 Amendment Act. Apart from this, he would also adopt argument of Mr.Mundargi that the provisions of POCSO Act are not attracted, to the act complained of.

Another important argument advanced on behalf of Accused No.2 is to the effect that the DNA Report which is exhibited at Exhibit 48 has concluded that the Accused No.2 Rohan and the victim are the biological parents of the baby, but this examination report was never put to him, when he was examined under Section 313 of the Cr.P.C. It is sought to be canvassed that the learned Judge proceeded with the finding that the said report has been admitted by the accused persons and as per Mr.Butala, the most important incriminating factor has not

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been put to him under Section 313, resulting into grave prejudice and which must necessarily vitiate trial and warrant setting aside the conviction as well as punishment imposed upon him, for committing sexual assault upon the victim girl.

Apart from this, Mr.Butala would submit that the DNA Expert has not been examined and his submission is, the manner adopted in exhibiting the DNA Report is not as per the procedure prescribed under the Code of Criminal Procedure and therefore, he deserve a clear acquittal by conferring benefit of doubt upon him.

The learned counsel Mr.Butala and Mr.Mundargi would submit that the grave flaw has occurred since the incriminating circumstances were not put to the accused persons and in case of Accused No.2, the report of his DNA analysis, which was recorded to be positive and as such, which formed the basis of his conviction, was not put to him, by giving an opportunity to establish the said circumstance.

8] The learned APP Ms.Dabholkar do not dispute the contention advanced on behalf of the respective counsel, to the effect that the act complained of would definitely not attract the provisions of POCSO Act, which has come into effect on 14.11.2012.

Dealing with the argument of Mr.Butala that the DNA Report has not been put to Accused No.2 when his statement under Section 313 was being recorded, she would invite my attention to Question 48 and 52 and would submit that there is some typographical error and in fact the circumstance of DNA report having obtained was put to him. She would submit that the DNA report which is exhibited is not challenged by Accused No.2 during the course of trial. She would invite my attention to the Roznama dated 24.03.2014, where, the application was filed for taking DNA Report on record, upon which the order was

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passed and her submission is, pursuant to this document being brought before the Court, it has been exhibited and since there is no challenge to the same, and no prejudice being established, the Sessions Court relied upon it and convicted Accused No.2, on an important and relevant circumstance, that his DNA matches with the DNA of the child born out the alleged sexual intercourse, attributed to him by the victim.

The learned APP has argued that since this point was not raised at the time of trial, it cannot be raised at the stage of the appeal and unless the prejudice is specifically established, the alleged violation of not putting the incriminating material under Section 313 of the Cr.P.C, will not affect the finding recorded by the trial Court.

9] There cannot be any dispute on the proposition of law that the statement of an accused is recorded under Section 313 of the Cr.P.C. to meet requirement of principles of natural justice, as it requires that an accused may be given an opportunity to furnish explanation of the incriminatory material, which had come against him during the course of trial. Though the answers solicited, cannot be used to fill up the gaps left by the prosecution witnesses in their deposition and the statement recorded under Section 313 of the Cr.P.C. without the accused being examined on oath, is not a substantive piece of evidence, but nonetheless the answers given by an accused are of relevance for ascertaining the truthfulness of the prosecution case.

10] In Sanatan Naskar & Anr. vs. State of West Bengal1, (2010) 8 SSC 249, the Supreme Court has held as under :-

"The answers by accused under Section 313 of

1(2010) 8 SSC 249

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Cr.P.C. are of relevance for finding of the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of Cr.P.C. is wide and is not a mere formality. Let us examine essential features of this Section and the principles of law as enunciated by the judgments which are the guiding factors have proper application and the consequences which shall flow from Section 313 Cr.P.C.. As already noticed, the object of recording statement of the accused under Section 313 of Cr.P.C. is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the society crime. The Court has been empowered to examine the accused, but only after the prosecution evidence has been concluded. It is mandatory obligation upon the Court and besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons for his alleged involvement in their party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inference and pass consequential orders, as may be called for in accordance with law."

In Kalicharan & Ors. vs. State of Uttar Pradesh2, the Supreme Court dealing with the situation where contentions of Postmortem Report were not put to the accused, held that the requirement of Section 313 of the Cr.P.C., is that the accused must be explained the circumstances appearing in the evidence against him, so that he can offer an explanation. After the accused is questioned under Section 313 of the Cr.P.C., he is entitled to take a call, on the question of examining defence witnesses and leading other evidence. The Court held that if the accused is not made aware of the circumstances

2 (2023)2SCC 583

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appearing against him in the evidence, on which conviction is sought to be based, the accused will not be in a position to explain the circumstances brought on record against him. He may not be able to properly defend himself.

11] In case of Nar Singh vs. State of Haryana 3, the Hon'ble Supreme Court has recognized Section 313 as procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and considering this opportunity being a valuable one from the stand point of the accused. It is thus held that the real importance of Section 313 of Cr.P.C. lies in that, it imposes the duty on the Court to question the accused properly and fairly, so as to bring home to him the exact case he will have to meet and thereby an opportunity is given to him to explain any such point.

While dealing with the issue whether an omission to put any material circumstance to an accused, ipsofacto, would vitiate the trial, the Hon'ble Apex Court held as under :-

"17. So far as Section 313 CrPC is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so. A three-Judge Bench of this Court in Wasim Khan v. State of U.P. and Bhoor Singh v. State of Punjab held that every error or omission in compliance with the provisions of Section 342 of the old CrPC does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.

18 Observing that omission to put any material circumstance to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him, this Court in Santosh Kumar v. State, has held as under.

92. ...The facts of each case have to be examined but the

3 2015(1)SCC 496

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broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him."

19 In Paramjeet Singh v. State of Uttarakhand, this Court has held as under :

"30. Thus, it is evident from the above that the provisions of Section 313 CrPC make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead he must show that such non- examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court."

20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance with Section 313 CrPC has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 CrPC, it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that the accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 CrPC. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. The facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused."

12] The safeguard contained in Section 313 of Cr.P.C. is accepted as a principle of fairness, with an opportunity being afforded to the

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accused to explain the inculpatory pieces of evidence, to which his attention is invited, by affording him an opportunity to offer an explanation, if he chooses to do so. The Court is under legal obligation to put incriminating circumstances before the accused and solicit his response. This duty cast on the Court is held to be mandatory in nature and it confers a corresponding right in the accused to avail the opportunity to offer an explanation for such incriminatory material appearing against him. The circumstances which are not put to the accused in his examination under Section 313 of Cr.P.C., cannot be used against him and will necessary will have to be excluded from consideration. Though it is well settled that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem.

13] The importance of Section 313 of the Cr.P.C. has found its way into the law books through various authoritative pronouncements and if an objection about infraction of Section 313 of the Cr.P.C. is taken at the earlier stage, the Courts can make good the defect and record additional statement of the accused as that would serve his interest, but if this is not done, it definitely would not preclude the accused from raising such objection before the Appellate Court, whereupon, the Appellate Court, shall examine the prejudice by not putting vital circumstance appearing against him, to him, with an opportunity being afforded to explain the said circumstance, or else the Court would be accused of not putting the incriminating circumstances to him and the manner in which the situation has to be tackled, has been set out by the Apex Court in case of Shivaji Bobade vs. State of Maharashtra4,

4 (1973) 2 SCC 793

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(1973) 2 SCC 793, it was held as under :

"It is trite law, nevertheless fundamental that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area many gravely' imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and- prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration."

It is open to the Appellate Court to call upon the counsel for the accused to show what explanation the accused has to offer, as regards the circumstance not put to him and if the accused offer before the Applllate Court any plausible or reasonable explanation, the court may assume that any acceptable answer exist and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good argument to be set out of the circumstances on which the trial Court had relied for his conviction, in such cases, the Court shall proceeds on the footing that, though grave irregularity has occurred, omission has not been shown to have caused prejudice.

In case of Nar Singh (supra), this situation was dealt and is summarized in Para 30 which is read as under :-

"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:

30.1. Whenever a plea of non-compliance with Section 313 CrPC is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer.

30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear

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and decide the matter upon merits.

30.3. If the appellate court is of the opinion that non-

compliance with the provisions of Section 313 CrPC has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness, if any, and dispose of the matter afresh

14] In the circumstances of this case, appreciated in the light of principle, which has been laid down to the above effect, since the very said circumstance of DNA Report being not put to the Accused No.2, has resulted into the prejudice and since involvement of Accused No.1 is also dependent upon this circumstance, even he has been prejudiced. Though the Sessions Court has convicted both the accused persons for committing an offence of rape as merely because the DNA profile of accused No.1 gave a negative report as regards his paternity, it has been held that he cannot be absolved of the offence, charged of.

15] With this legal scenario being prevalent, I have examined the statement of the accused recorded under Section 313 of the Cr.P.C. and from its perusal, I could notice the glaring discrepancies and it appears that the prosecution was confused between the two accused and have put questions to both the accused by pre-suppossing that he is accused No.1.

For instance, in the 313 statement of Rajendra (Accused No.1) Question Nos.34 and 35 are about Accused No.2 Rohan, but what is put to Accused No.1 Rajendra, are the following two questions :

Q.34 Further it has come in her evidence that, suddenly you accused No.2 Rohan got up, closed the door and latched it. You lifted her from the chair and thrown her on the cot, then you were undressed and committed rape on her. What you have to say about it ?

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Q.35 Further it has come in her evidence that, further after two days and thereafter two to three times again you accused No.2 sexually assaulted her. What you have to say about it ?

Another misleading question put to accused No.1 which ought to have been put to Accused No.2 is Question No.52, which is as under :

Q.52 Further it has come in his evidence that, she gave statement that on 12/9/2012 her own brot her committed rape on her. What you have to say about it ?

From the above, it is apparent that the prosecution has put the case against Accused No.2 to Accused No.1 and solicited answers from him by specifically referring to him as "you" which reflect complete non-application of mind.

Further, when the statement of Accused No.2, Rohan who happen to be her real brother, recorded under Section 313 is perused, the circumstance against Accused No.1 Rajendra has been put to Accused No.2 Rohan in form of Question No.16, which was posed in the following manner :

Q.16 Further it has come in her evidence that, at that time you accused No.1 came there and forcibly had sexual assault upon her. Thereafter he came out of the house and you accused No.1 went away. What you have to say about it ?

In fact the aforesaid circumstance is the case of prosecution against Accused No.1 who is alleged to have entered into the house of the victim and committed sexual assault upon her.

Another misleading question is in form of Question No.32. Another instance of utter casual approach on behalf of the prosecution is Question No.48, which is put to Accused No.2 as an incriminating circumstance and this is in respect of Exhibit 49 which in fact is the report of DNA Analysis of Accused No.1 Rajendra and Accused No.2 Rohan ought to have been confronted with the DNA Report at Exhibit

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48, which established him alongwith the victim, to be the biological parents of the baby of victim.

This important incriminating circumstance is not put to Accused No.2 at all. The presumption that since Accused No.2 was subjected to DNA and therefore report must have been exhibited as sought to be argued by the learned APP, is a classic example of perfunctory approach adopted by the prosecution in sensitive trials like the present one, where life of young victim and two accused persons, equally young, is at stake.

16] In the wake of factual situation emerging above and considering the legal position revolving around the importance of Section 313 of Cr.P.C. in a criminal trial, it is necessary that every circumstance appearing against the accused must be put to him specifically and separately. The circumstances put to the accused in examination under Section 313 are completely different from those relied by the trial Court for finding the accused guilty. Since recording of statement under Section 313 is not a mere empty formality, but most imperative mandate to afford an opportunity to the accused to explain the inculpatory material being used against him to sustain his conviction, not inviting his attention to such inculpable piece of evidence would result in miscarriage of justice as it has prejudiced both the accused persons and to avoid this, I deem it appropriate to remit the matter to the learned Additional Sessions Judge, Mangaon, District Raigad.

17] Needless to state that I have not expressed any opinion on the merits of the matter and have restricted myself to the prejudice being pointed out on account of omission to put the incriminating circumstance to the accused persons/Appellants.

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Hence, the following order : -

ORDER

(a) For the reasons recorded above, the conviction and sentence imposed upon the Appellants by the impugned Judgment dated 04.01.2019 is set aside. The Accused No.1 Rajendra who is on bail shall continue to remain so. As far as Accused No.2 Rohan is concerned, he shall be produced before the Court for recording of his statement under Section 313 of the Cr.P.C. on the date which shall be fixed by the trial Court, either in person or through video conferencing.

(b) Special POCSO Case No.2/2013 is remitted to the Sessions Court Mangaon, District-Raigad, who has delivered the Judgment on 04.01.2019, for proceeding afresh from the stage of recording of the statement of accused Nos.1 and 2 under Section 313 of the Cr.P.C. in the light of above observations and in accordance with law, so as to give meaningful effect to the procedural aspect of recording of the statement under Section 313 of the Cr.P.C.

It shall be open for the court to fix a date or fix distinct dates for recording of statements of the Accused as directed above.

Since the incident which has resulted in conviction of the accused is almost a decade ago, I deem it appropriate to direct the Sessions Court to conclude the trial after recording the statement as directed above, preferably within a period of 8 weeks from the date of receipt of this order.

(c) The Sessions Court is directed to martial the evidence on record and put specific and separate questions to each of the accused with regard to incriminating evidence

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brought on record against each of them, with intent to afford an opportunity to the accused to examine the defence witness, if any, and proceed with the matter.

(d) For the abovesaid purpose, the Record and Proceedings which are received by this Court, shall be sent back to the Court of Additional Sessions Judge, Mangaon, District Raigad, forthwith.

(e) After recording the statement as directed above, the Record and Proceedings shall be transmitted to this Court alongwith statements so recorded, forthwith.

(f) The above order shall be communicated to the learned Judge through the Registry and also by the learned APP, so that entire procedure as directed above, can be completed at the earliest.

Appeals stand disposed off.

[BHARATI DANGRE, J]