Sambhaji Anandrao Jadhav vs State Of Maharashtra And Anr
2023 Latest Caselaw 9724 Bom

                                                                       IA-3280-2022.doc
2023:BHC-AS:27332

                    Shailaja


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CRIMINAL APPELLATE JURISDICTION
                               INTERIM APPLICATION NO.3280 OF 2022
                                               IN
                                  CRIMINAL APPEAL NO.807 OF 2022

                    Sambhaji Anandrao Jadhav           ]     Applicant
                          Vs.
                    State of Maharashtra and another ]       Respondents
                                                    .....
                    Mr. Ashish Vernekar i/b Mr. Satyavrat Joshi, for Applicant.

                    Ms. G.P. Mulekar, A.P.P, for Respondent No.1-State.

                    Mr. Sachin Gite, for Respondent No.2.
                                                   .....
                                 CORAM                 : PRITHVIRAJ K. CHAVAN, J.
                                 RESERVED ON           : 13th SEPTEMBER, 2023.
                                 PRONOUNCED ON : 15th SEPTEMBER, 2023.


                    ORDER:

1. The applicant has prayed for his release on bail pending the

appeal who has been convicted on 24th June, 2022 by the Special

Judge, POCSO in Special Case (POCSO) No.77 of 2019 of an

offence punishable under section 376 (3) of the Indian Penal Code,

1860 (for short "I.P.C") and under section 6 of the Protection of

Children from Sexual Offences Act, 2012 (for short 'POCSO"). He

has been sentenced to undergo rigorous imprisonment for 20 years

with fine of Rs.10,000/-, in default to pay fine, to undergo rigorous

imprisonment for one year.

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2. Briefly stated, facts are as follows.

3. Complainant is the real sister of the victim. Applicant is the

step brother of the victim and the complainant. At the time of the

incident, victim was aged about 14 years and the applicant was 29

years of age. Parents of the victim were died 9 years ago. The

victim, complainant and the applicant were residing together.

Victim was in 8th standard at the relevant time. The complainant

was in 12th standard.

4. On 3rd May, 2019, the complainant had been to her maternal

uncle's house as his wife had delivered a premature baby and was

admitted in the Hospital at Sangli. Only victim and the applicant

remained in the house at Dahiwadi, Taluka Tasgaon, District -

Sangli. On 30th May, 2019, the complainant received a phone call

of the victim complaining of pain in her abdomen. She told the

complainant that the applicant had committed forcible intercourse

with her on the earlier night, due to which, she had pain. The

complainant came to Dahiwadi. The victim was taken to

Amrutwadi by the complainant at the house of her maternal uncle.

Maternal aunt of the victim was also confided about the incident.

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Since the husband of maternal aunt was admitted in the hospital due

to the accident and thereafter the complainant, victim and maternal

uncle had been to Chennai for some work, report could not be

lodged with the Police. The same was lodged on 11th June, 2019.

5. An F.I.R bearing No.332 of 2019 came to be registered with

Tasgaon Police Station. Investigating Officer had recorded

statements of the witnesses, collected evidence and filed a charge-

sheet.

6. After framing a charge and recording evidence of the

prosecution witnesses, the Special Court by the impugned judgment

and order convicted and sentenced the applicant.

7. I heard Mr. Joshi, learned Counsel for the applicant at a

considerable length, Ms. Mulekar, A.P.P on behalf of respondent

No.1-State and Mr. Gite, appointed Counsel for respondent No.2.

8. Mr. Joshi would argue that this is a fit case in which the

applicant needs to be released on bail, pending the appeal in view of

the fact that the victim had turned hostile. Even during her re-

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examination by the learned A.P.P, nothing could be brought out and,

therefore, cross-examination was intact. He invited my attention to

the testimony of P.W.2-complainant-sister of the victim. According

to him, even F.I.R does not support the prosecution story. The

incident alleged to have occurred on 30 th May, 2019, whereas the

victim was examined by the Doctor on 11 th June, 2019. Admittedly,

the applicant was not on bail during trial. Mr. Joshi has invited my

attention that there was a huge gap in recording examination-in-

chief and cross-examination of the victim. Examination-in-chief of

the victim was recorded on 6th February, 2021, while cross-

examination was recorded on 18th November, 2021. The Counsel

has tendered copies of Roznama of the trial Court to that end.

9. On the other hand, the learned A.P.P strongly opposed the

application by contending that several adjournments were sought by

the applicant between the date when the examination-in-chief of the

victim was recorded and the date of cross-examination only to

pressurize and win over the victim. Learned A.P.P has invited my

attention to the observations made by the Special Court in the

impugned judgment that the accused had tampered the evidence of

the victim by seeking adjournments. The learned A.P.P has further

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invited my attention to the statement of the victim recorded under

section 164 of the Code of Criminal Procedure.

10. Counsel appointed to represent respondent No.2 argued in

tune with the learned A.P.P by contending that the victim was

pressurized by the applicant during trial by literally forcing her to

change her version during cross-examination after nine months.

11. I have meticulously gone through the record as well as the

impugned judgment. There is no dispute that the victim was below

18 years of age at the time of the incident. Her date of birth is

proved to be 10th April, 2005. The said facts have been

substantiated on the basis of extract of school general register as

well as the bona fide certificate which are at Exhibit 65, Exhibit 66

and Exhibit-67.

12. The victim in her evidence, in unequivocal terms, deposed

about the incident before the Special Court. According to her,

when she was in sleep on the night of 29 th May, 2019, the applicant

came and slept by her side. She awoke only to notice that the

applicant was lying on her body. She tried to shout but he gauged

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her mouth. Thereafter, he removed her leggings and pant as well as

his pant. He thereafter spread her legs. Initially, he put his fingers in

her private part. Thereafter, he inserted his penis in her vagina. She

suffered severe pain. She tried to shout, however, the applicant

again spread her legs and inserted penis by force into her vagina. He

continued with the said act. She suffered abdominal pain and there

was profused bleeding from her private part. She had informed

about the incident to her elder sister on the next date. The said

evidence is corroborated by P.W-2- complainant-sister of the victim

to whom the victim narrated the incident immediately on the next

morning. The applicant did not deny that since 3 rd May, 2019 till

29th May, 2019, only he and victim were staying in the house at

Dahiwadi. Nothing could be elicited from the cross-examination

of P.W.2 by the defence. Spot of incident has been admitted by the

applicant vide panchanama Exhibit - 46.

13. Prosecution examined three Doctors. P.W.5-Dr. Nilesh Mohan

Mahabare examined the victim on 11th June, 2019. After recording

history, he collected pubic hair, nail clipping and blood samples of

the victim. He referred the victim to Civil Hospital, Sangli for an

experts opinion.

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14. P.W.4 - Dr. Sunil Tukaram Patil, who was a Casualty Medical

officer at Civil Hospital at Sangli at the relevant time, examined the

victim. P.W.4- Dr. Sunil Patil referred the victim to Gynecology

Department. He received reports of Gynecologist, dental opinion,

radiological opinion, USD abdomen, pelvis and blood report. P.W.

4 - Dr. Patil was not cross-examined by the defence. Only question

asked to P.W.3 - Dr. Vikas Harishchandra Devakare in cross is that

there was old healed hymen tear which was denied by the said

witness. Learned Special Court while accepting evidence of Dr.

Vikas Devakare and Dr. Sunil Patil in view of section 29 of the

POCSO Act observed that hymen tear of the victim could be by

forcible sexual assault. None of the medical officers were suggested

that hymen tear could be due to some other reasons than a rape.

Since there is no suggestion by the defence, it can be, prima facie,

held that it was due to the act of the applicant.

15. It is argued by Mr. Joshi that the victim and the complainant

were demanding accounts of the income from the agricultural land

and, therefore, there was a dispute between them. Victim and the

complainant were demanding equal share in the properties to which

the applicant was not ready. It is, therefore, submitted that due to

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the property dispute, a false case has been filed against the applicant

by the complainant.

16. Mr. Joshi tried to impress upon me that since the victim had

turned hostile during her cross-examination wherein she did not

utter a single word against the applicant and, therefore, the

applicant ought to have been acquitted by the special Court. By no

stretch of imagination, the victim is said to have turned hostile.

Rather, the victim had categorically testified about alleged incident

in her examination-in-chief recorded in the first week of February,

2021. Thereafter, the case was adjourned for more than nine

months which is something unusual and then the victim was cross-

examined on behalf of the applicant on 18 th November, 2021.

Statement of the victim under section 164 of the Cr. P.C by J.M.F.C,

Tasgaon on 11th June, 2019 substantiates the case of the prosecution

and is in consonance with the evidence of the victim recorded on 6 th

February, 2021.

17. The Special Court has placed reliance on a judgment in the

case of Khujji @ Surandra Tiwari Vs. State of Madhya Pradesh, AIR

1991 SC 1853. The law is well settled that the part of the evidence

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of hostile witnesses which is reliable and acceptable as an evidence

can be utilized as an evidence.

18. It is pertinent to note that the learned Special Court in the

impugned judgment has rightly considered as to how the victim was

not cross-examined by the defence from 6 th February, 2021 till 18th

November, 2021 by putting forth one or the other reason for

seeking adjournments after adjournments. It can definitely be

inferred that the defence had made all efforts to ensure that the

victim during her cross-examination takes "U" turn and deposes

what was expected of her by the defence. It has been observed by

the Special Judge that subsequent tutoring of the victim by the

defence has resulted in stating an altogether different story than

what has been stated by her in her examination-in-chief. It is

observed by the Special Judge that the victim might have been

pressurized and coerced by the other side. Of course, without

considering the merits and demerits of the case, as already stated,

even prima facie, findings of the Special Judge cannot be said to be

incorrect or perverse in the given set of facts and circumstances of

the case. The learned Special Judge has, therefore, rightly accepted

the evidence of the victim in her examination-in-chief to be reliable,

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trustworthy and acceptable. It is also noteworthy that spot

panchanama, seizure of clothes of victim, as well as ossification test

and dental age etc have already been admitted on behalf of the

applicant. Once the aforesaid facts have been admitted, defence

cannot subsequently dispute the aforesaid documentary evidence

which has already been admitted. Secondly, if the victim testified

about her cordial relations with the applicant and that she and the

complainant were being looked after by him in her cross-

examination then why there should be any dispute on account of

agricultural land or the property?

19. Taking into account the aforesaid facts on record, it would

not at all be just and proper or even safe to release the applicant on

bail pending the appeal by suspending execution of the sentence,

more so, in light of the fact that in case of his release, the victim

might suffer a trauma in view of the fact that the applicant would

stay in the same village. Possibility of an untoward incident or

repeating the same offence cannot be ruled out.

20. As such, application stands rejected.

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21. Application stands disposed of

[PRITHVIRAJ K. CHAVAN, J.]

Signed by: Shailaja Halkude Designation: PA To Honourable Judge 11 of 11 Date: 15/09/2023 18:19:01