Bombay High Court
Balasaheb Paraji Jevnar vs The State Of Maharashtra on 21 September, 2023
Bench: S. G. Mehare
2023:BHC-AUG:20552
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 302 OF 2022
WITH
CRIMINAL APPLICATION NO. 1377 OF 2022
Balasaheb S/o Paraji Jevnar,
Age : 39 Years, Occ. Agricultur,
R/o. Pedgaon, Tq and District Parbhani,
At present C-9478 Aurangabad Central Prison,
Aurangabad. .. Appellant
(Original Accused)
VERSUS
The State of Maharashtra,
Through P.S.O. Police Station,
Pathri, District Parbhani. .. Respondent
Ms. Manjusha S Jagtap-Ware, Advocate for Appellant;
Mr. K. S. Patil, APP for Respondent No.1;
Ms. Harsha R. Lomate, Advocate for respondent No.2 (appointed)
CORAM : S. G. MEHARE, J.
Reserved on : 11.07.2023
Pronounced on : 21.09.2023
JUDGMENT:
1. The present appellant-convict has impugned judgment and order
of conviction of the learned Special Judge (POCSO) Parbhani, passed
in Special Case No. 39 of 2019 dated 29.12.2021.
2. The appellant will be referred to as 'the accused', and the
respondent will be referred to as "victim", from now on.
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3. The brief facts of the case were that the accused is the father of
the victim. The incident happened on 09.06.2019 in his house at about
8.00 p.m. The accused and victim were playing the Ludo game on the
mobile phone. Her mother and one Renukabai were chanting Haripath
in front of her house. Suddenly, they heard the screaming of the victim.
They went inside the room and saw the accused and the victim were
nude. The accused was having forceful sexual intercourse with the
victim and was lying over her person. Then accused went to the
courtyard. Her mother bet him by wood. The victim informed the
mother that the accused removed his pants and her knickers and
penetrated his penis into her vagina. She had suffered pain; hence, she
screamed. On that night, she resided with the victim at the house of
her relatives. In the morning, the accused disappeared with Rs.
35,000/- and the gold ornaments worth Rs. 30,000/- from the house.
Then, she went to reside at the paternal house of her mother. Some
days later, her cousin brother-in-law called her mother and assured her
that the accused would not cause harm to them. Her mother returned
with her young sister and left the victim at her paternal village. On
22.06.2019, the accused assaulted his wife, blaming her for defaming
him. One Renuka rescued her. Then, on 24.06.2019, she lodged a
report at about 2.00 p.m.
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4. Based on the report of the victim, crime bearing No. 156 of 2019
was registered against the accused for the offences punishable under
sections 376-AB, 323 and 506 of the Indian Penal Code and Sections
6,10 of the Protection of Children from Sexual Offences Act. ("POCSO
Act", for short) and Section 75 of the Juvenile Justice ( Protection and
Care of Children) Act.
5. The charges were framed against the accused for the offences
punishable under Sections 376AB, 324 and 506 of the Indian Penal
Code, Sections 5(m) and 9(n) punishable under Sections 6 and 10 of
the POSCO Act and read over to him. The accused denied the charges
and claimed the trial. The prosecution examined nine witnesses in all.
The statement of the accused under Section 313 of the Code of
Criminal Procedure was recorded. The accused did not enter the
witness box nor examine any witness supporting his defence. The
accused had a defence that he did not allow his wife to talk to one
Manik Jevnar, but she did not listen. Hence, they implicated him in the
crime falsely.
6. Heard the learned counsel for the accused, the learned A.P.P. for
the state and the learned counsel for the victim at length.
7. The following points arise for the determination of this Court,
and findings thereon are recorded for the reasons to follow:-
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Sr.No. Points Findings
(I) Does the prosecution prove that on
9.6.2019, the victim was a child below Proved
12 years?
(II) Does the prosecution prove that on
09.06.2019 at about 8 p.m., the
accused committed rape and Proved
penetrative sexual assault on the
victim in his house?
(III) Does the prosecution prove that the
accused on the above date, time and
Proved
place committed aggravated sexual
assault on the victim?
(IV) Does the prosecution prove that on
22.06.2019 at about 1.20 p.m. in the
field Gat No. 218 of village Pedgaon,
the accused voluntarily hurt his wife
by means of an axe as a weapon likely
to cause death?
(V) Does the prosecution prove that on the
above date, time and place, the
In the affirmative
accused threatened to kill the mother
of the victim?
(VI) What order? Appeal dismissed
REASONS
As to Point No. 1 :-
8. P.W. No.1 victim testified that at the time of the incident, she was
in 6th standard. Her date of birth was 22.11.2008.
9. P.W. No.7 Chandrabhaga Bobade testified that she served as
Arogya Sevika in Primary Health Center, Zari, from November 2016.
She maintained the official birth register. On 22.11.2008, the mother
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of the victim delivered a baby girl in their sub-centre. Another Argoya
Sevika took the entry of the baby in the official register. The birth
certificate was issued below Exh.53.
10. P.W. No. 8 Sayyeda Mehmood, the Head Mistress in Zilla
Parishad Central Girls Primary School, Pedgaon, deposed that as per
the entry at Sr. No. 1285 of the School admission register and School
leaving certificate, the victim was a student of their High School. She
was admitted to the 1st standard on 17.05.2013. She studied there up
to 4th standard. As per the entry in the register, her date of birth was
22.12.2007. She had produced the extract of the admission register
and School leaving register below Exh. 55. She also produced the
original application of admission, which reflects the same date of birth.
The accused cross-examined both witnesses, but nothing adverse has
been extracted from their cross-examination to disbelieve them.
11. In his statement under Section 313 of the Code of Criminal
Procedure, the accused also admitted that the date of birth of the
victim was 22.11.2008. The victim and P.W. No.7 testified on her date
of birth. However, P.W. No.7 testified that, as per the School record, her
date of birth was 22.12.2007.
12. The learned counsel for the accused would argue that there was
a variance in the dates of birth of the victim. The learned counsel for
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the victim would submit that if the date of birth as deposed by P.W.
No.9 is believed, on the date of the incident, she was not below 12
years.
13. The learned A.P.P would submit that the date of birth recorded in
the School record will prevail over the other record.
14. Section 94 of the Juvenile Justice (Care and Protection of the
Children) Act provides that the School leaving certificate shall prevail
over the birth certificate issued by the birth and death officer and the
ossification test. Therefore, the date of birth mentioned in her school
record would prevail. As per the School record, her date of birth was
22.12.2007. Believing her date of birth as recorded in the School, she
was 11 Years, 5 months and 15 days old on the date of the incident.
Evaluating the evidence of P.W. No.7 and 8 on the age of the victim, the
Court believes that the prosecution has proved that on the date of the
incident, the victim was below 12 years. Hence, this point is answered
as proved.
As to points No.2 and 3 together:-
15. The evidence of the victim is that on the date of the incident, she
was living with her parents. After selling the onion of their master, they
returned home in the evening. She and the accused were playing a
Ludo game, and her mother/P.W. No.2, was chanting Haripath with
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one lady in front of her house. The accused removed his pants and
underwear and also removed her pants and knickers. The accused
inserted his private organ in her urine organ. Due to pain, she
screamed. Hearing her screams, her mother and one Renuka entered
the home. Her mother beat the accused with a stick. Then, the accused
came to the courtyard. She stayed that night in the house of one
Jijabai, and on the next day they went to her maternal uncle's village.
16. P.W. No.2, the mother of the victim, deposed that on the date of
the incident, she and Renukabai were chanting Hari Path in front of
her house. Then they heard the screaming and went inside the room.
She saw that the victim and the accused were covered with a blanket.
She removed it. They were nude. The accused was lying on her person.
The accused had committed penetrative sexual intercourse with the
victim. He came out of the house and slept in the courtyard. The victim
told her that the accused had forceful penetrative sex. Hence, she
suffered pain. She then beat the accused.
17. P.W. No.6 Dr. Kazi Jaweria Nazmin Razioddin testified that on
24.06.2019, the police referred the victim for medical examination and
brought her at about 10.55 p.m. In the examination, she did not find
any physical injury on her person. However, her hymen was torn at 12'
O clock position with a healed margin. She did not notice any redness
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or fresh bleeding. Since the incident happened 15 days before the
examination, she did not collect the samples. She opined that sexual
violence can not be ruled out. She has confirmed her opinion, referring
to the Chemical Analyzer reports Exh. 48 and 49. She proved the
medical examination report below Exh. 47 and final opinion below
Exh.50. The accused made a single-question cross-examination of this
witness.
18. The Medical Examination Report of the victim reveals that she
had narrated the same incident to the Medical Officer. However, there
were no injuries on her person, except tearing of the hymen at 12' O
clock position with a healed margin.
19. Blood was detected on the knicker of the victim as per the
Chemical Analyzer Report Exh. 48. However, no blood was found on
her top, Leggings of the victim, and Full open shirt, Jeans pants and
underwear of the accused. No hair were found on their clothes. The
blood group of the accused was 'O'.
20. Munja Zumade (P.W. No.3) has proved the crime details
form/spot panchnama (Exh.6). The victim and her mother testified
that the incident happened in their house. The police seized one axe
with a wooden handle and bangle pieces from the spot of the incident.
Nothing material is extracted from the cross-examination of this
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witness. The same witness proved the recovery panchnama of the
clothes of the victim recovered from her mother below (Exh.27). The
police seized a top of the victim having red and black checks, one
almond colour pant and one red colour knicker. Again, the credibility
of the witnesses was not shattered in his cross-examination.
21. He also proved the recovery panchnama of the clothes of the
accused below (Exh.28), under which a white used shirt, blue colour
jeans pant and sky blue colour underwear were seized. The seized
clothes were not stained with blood or semen. However, nothing
beneficial to the accused has been extracted in the cross-examination.
22. The evidence of the investigating Officer Shailesh Jadhav (P.W.9)
is in pursuance of his investigation. He has reiterated the evidence of a
crime, panchnamas and the investigation.
23. The learned counsel for the accused has vehemently argued that
there was an inordinate delay in lodging the first information report,
and there was no satisfactory explanation for the delay.
24. Per contra, the learned A.P.P and the counsel for the victim
would submit that the mother of the victim P.W. No.2 had testified that
when she asked the victim why she did not tell the earlier incident to
her, the victim explained to her that the accused had threatened her to
kill if she would disclose the incident to anybody. She has also
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deposed that on the next day morning of the incident, she went to the
village Takali Kumbkarn to her paternal home with her daughters. She
did not lodge the report at that time due to fear of the defamation of
her husband, herself and daughter. Therefore, her explanation was
satisfactory and acceptable.
25. The cross-examination on the explanation for the delay in
lodging the report is totally silent. Her explanation for the delay has
gone unchallenged.
26. The law is well settled that a mere delay in lodging the first
information report is not fatal, but the delay must be explained
satisfactorily and accounted for by the prosecution. The Court has to
examine whether a plausible explanation is offered and if offered,
whether it is satisfactory. The sequence of events till reaching the
police station should also be considered.
27. The mother of the victim has given a candid explanation that on
the next day of the incident, she immediately went to her parental
home with the victim. She had apprehension of defamation of the
accused (her husband) herself, and th. Hence, she kept silent. As far as
the similar incident of the accused with the victim, the victim told her
that the accused had threatened her to kill if she would disclose the
incident to anybody. The delay in such cases happens typically due to
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apprehension of defamation. The future of the victim is another
consideration. She may have difficulties getting married. Society may
look at her with suspicion and ill eyes, which is a continuous trauma
throughout her life. Hence, normally, the women did not prefer to
come forward forthwith. In such cases, the delay is natural. The delay
explained by the mother of the victim, P.W. No.2 is plausible and
satisfactory. Hence, the Court does not find force in the objection that
the delay was not properly explained.
28. The learned counsel for the accused would submit that the
medical evidence was not complete on the penetrative sexual assault.
The opinion of Kazi Jaweria (P.W. No.6) was based on the material.
The medical examination report Exh.47 of the victim does not disclose
injury on her body, except for tearing of the hymen at 12'O clock, and
margins were healed. Since she was not immediately examined,
redness and bleeding could not be noted on her private part. The
hymen is described with reference to a clock face, 12 O' clock being
the most anterior aspect near the urethra and 6 o'clock being the most
posterior aspect nearest the anus. The hymen crudely tears or reaps
due to physical activity, hormones, using tampons or having sex.
Tearing of the hymen can be caused by intercourse or other sexual
activity, sports, and physical activities (like falling on the middle bar or
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the bike head). The bleeding or due to any other hymen normally
resolves after 24 hours, and tears appear at their heal. However, if
someone has penetrative sex again before the tissue has completely
healed, there may be a possibility of bleeding again.
29. The signs of tearing off the hymen clockwise indicate the sex. In
the cross-examination of Dr. Kazi Jaweria P.W. No.6) no other
possibilities of tearing the hymen were suggested. Due to a fifteen-day
delay in the examination, the absence of redness and swelling on her
private part and the healing of the margin was natural. However, the
healing of margins means she had sex. Based on tearing the hymen at
12' O clock position and noticing the margin healed. P.W. No.6 appears
to have formed an opinion that the possibility of sexual violence could
not be ruled out.
30. Section 45 of the Indian Evidence Act 1872 speaks of the opinion
of experts. Expert testimony aims to provide the trier of the fact with
useful, relevant information. The function of the expert is to put before
the Court all the materials, together with reasons that induce him to
come to a conclusion so that the Court, although not an expert, may
form its own judgment by its own observation of those materials. The
related material shall be produced when the opinion is based on
science.
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31. As discussed above, Dr. Kazi Jaweria (P.W. No.6) has formed her
opinion based upon the physical and clinical examination of the victim
and noticed tearing of the hymen at 12' O clock position, and margins
were healed. Medical science accepts that the tearing of the hymen is
possible by sex.
32. The victim and her mother were consistent as regards the
forceful sexual assault by the accused. When the accused penetrated
the vagina of the victim, she screamed and on hearing her screaming,
her mother and another lady sitting in front of the house entered the
house and saw that the accused was having sex with the victim. The
medical examination report corroborates their oral testimony.
33. The law is well settled that if the solitary evidence of the victim
of a rape inspires confidence, it is sufficient to convict the accused.
Here, in this case, the mother had witnessed the incident. The victim
narrated her mother the alleged incident. Her hymen was torn, and her
margins were healed. The victim is the daughter of the accused, and
his wife witnessed the incident. The daughter and the wife had no
reason to lie against the father and husband unless there was truth.
34. Evaluating the evidence as regards the penetrative sexual
assault, the Court does not find any reason to disbelieve the victim and
her mother. The prosecution has categorically proved that on the day
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of the incident in the house of the accused, he did rape penetrative and
aggravated sexual assault on his daughter; hence, points Nos.2 and 3
are answered as proved.
As to Point No. 4:-
35. Another incident happened on 22.06.2019 in the field. On that
day, the mother of the victim assaulted with the axe deposed that after
the incident of penetrative sexual assault, she went to her parents and
again returned home. On 22.06.2019, when she went to the field of
one Baba Deshmukh with the accused in the afternoon at about 1.30
p.m., the accused told her he would kill her as she had defamed him.
He beat and injured her by the blunt side of the axe. She has received
injuries to her right hand and right cheek due to an axe. One Renuka
Jevnar saved her from the clutches of the accused. Then, she lodged
the report.
36. The prosecution sent Rukhminibai (P.W. No.2) for a medical
examination. Dr. Akanksha (P.W. No.4) examined her on 23 rd June
2023 at 4.30 p.m. She noticed C.L.W. 2x0.1 cm x0.1 cm on the right
forearm and an abrasion measuring 4x0.1 cm on her right cheek. The
injuries were caused within 24 hours. She had opined that the injuries
were possible by hard and blunt objects like the wooden handle of an
axe. She proved the medical examination report Exh.35. A single
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suggestion was put to her that the injuries may be possible by falling
on a hard substance.
37. The learned counsel for the accused would submit that the
prosecution deliberately did not examine Renuka Jivnar, who
witnessed the incident and rescued the injured. Therefore, the
prosecution case falls under the shadow of doubt.
36. Per contra, the learned A.P.P and counsel for the victim would
submit that the injured is the best witness. The injured have to see the
assailant. The assailant was her husband. The medical examination
report corroborates her evidence. The weapon allegedly used in the
crime was also recovered.
38. In the cross-examination of the injured P.W. No.2, it has been
brought on record that when the incident of assault happened, she was
sitting under the blueberry tree, and her husband was working in the
turmeric field. Her husband and other women had lunch under that
tree. Her cross-examination indicates that the incident happened in the
field of Baba Deshmukh. She further denied that the accused did not
assault her. There was no suggestion that the place where the incident
happened was rough and stony. It has been suggested to her that while
bringing water, she fell down and sustained the injuries. Again, it was
not suggested that the place where she went to bring the water was
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hard surface, stony and slippery. In the absence of material to believe
the possibility of sustaining injury by fall, the bare suggestion does not
make the defence probable. The medical evidence and recovery of the
weapon support the testimony of the injured. Therefore, there is no
reason to disbelieve her. Accordingly, this point is answered as proved.
As to point No.5:-
39. The victim narrated to her mother/P.W. No.2, that after the first
incident, the accused had threatened to kill her if she would disclose
the incident to anybody. Hence, she kept mum for a long period. In
such offences, threats to kill are possible, particularly by a person who
influences the other. The father, naturally, had influence over the
victim, who is his daughter. There was nothing adverse to disbelieving
the victim and the witness. Hence, this point is answered as proved.
40. So far as the appreciation of the evidence by the learned trial
Court, there appears to be no error or illegality that requires
interference at the hands of this Court. Regarding the quantum of the
sentence, the learned trial Court has correctly imposed the term of the
sentence as provided under the law.
41. The discussion made above leads this Court to conclude that the
prosecution has proved the charges against the accused beyond the
reasonable doubt. There was nothing to disbelieve the witnesses and
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no grounds to interfere with the impugned judgment of the conviction
passed by the learned Sessions Judge (POCSO). As a result, the appeal
fails. Hence, the following order :-
ORDER
(i) The appeal stands dismissed.
(ii) The judgment and order of conviction of the learned Special
Judge (POCSO) Parbhani, passed in Special Case No. 39 of 2019
dated 29.12.2021 is confirmed.
(iii) Record and proceeding be returned to the learned trial Court.
(iv) Pending Criminal Application No. 1377 of 2022 stands disposed
of.
(v) The Secretary, High Court Legal Services Sub-Committee
Aurangabad, do pay the fees of the learned counsel appointed
for the accused and the victim as per the schedule.
(vi) Rule stands discharged.
( S. G. MEHARE )
JUDGE
ysk
