Bombay High Court

Sagar Rajendra Shahi vs The State Of Maharashtra on 5 August, 2024

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2024:BHC-AS:31643



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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION

                                                 CRIMINAL APPEAL NO.905 OF 2019

                              Sagar Rajendra Shahi                                  .... Appellant

                                        versus

                              The State of Maharashtra & Anr.                       .... Respondents
                                                           .......

                              •     Mr. Tohid Shaikh a/w Anjali Patil, Advocate for Appellant.
                              •     Smt. Manisha R. Tidke, APP for the State/Respondent.
                              •     Mr. Pramod B. Kulkarni, appointed advocate for Respondent
                                     No.2.

                                                         CORAM      : SARANG V. KOTWAL, J.
                                                         DATE       : 05th AUGUST, 2024

                              JUDGMENT :

1. The Appellant has challenged the Judgment and Order

dated 11/02/2019 passed by Additional Sessions Judge, in

Special Sessions Case No.386 of 2015. By the impugned

Judgment and Order, the Appellant was convicted as follows ;

(i) The Appellant was convicted for commission of offence punishable u/s 376(2)(i) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Digitally signed by MANUSHREE MANUSHREE NESARIKAR NESARIKAR Date:

2024.08.08 Rs.5,000/- and in default of payment of fine to 16:18:20 +0530

suffer rigorous imprisonment for six months. Nesarikar

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(ii) He was further convicted for commission of offence punishable u/s 354(A)(i) of the Indian Penal Code read with section 4 of the Protection of Children from Sexual Offences Act, 2012 and was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for one month.

(iii) He was also convicted for commission of offence punishable u/s 506(1) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for one month.

(iv) He was also convicted for commission of offence punishable u/s 12 of the Protection of Children from Sexual Offences Act, 2012 and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for one month.

(v) All the substantive sentences were directed to run concurrently.

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(vi) The Appellant was granted set off u/s 428 of Cr.P.C.

(vii) The deposited fine amount of Rs.8,000/- was directed to be paid to the mother of the victim.

(viii) The matter was further referred to DLSA, Pune, for making enquiry to award compensation to the victim under the Government scheme.

2. Heard Mr. Tohid Shaikh, learned counsel for the

Appellant, Mr. Pramod B. Kulkarni, learned counsel for the

Respondent No.2 and Smt. Manisha R. Tidke, learned APP for

the State.

3. The prosecution case is as follows :

The date of birth of the victim was 04/01/2002. The

Appellant was working as a driver with an NGO. That NGO had

taken an office on rent in the society, where the victim and her

mother were residing. The Appellant got friendly with the

victim. On 17/08/2015, in the afternoon when the victim was

alone in the house, the Appellant entered her house on some

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pretext. He dragged the victim in the bedroom and thereafter

committed the offence for which he was convicted. The victim

pushed him away. He went out of the house. The victim did not

immediately tell the incident to her mother. The victim's mother

got blank calls from a particular phone number. She made

enquiries with the victim. After taking the victim into

confidence, the victim told her mother about the incident. On

21/08/2015, the victim's mother lodged her FIR at the police

station. The investigation was carried out. The victim was sent

for medical examination. Her statement u/s 164 of Cr.P.C. was

recorded. The Appellant was arrested. The Spot Panchanama

was conducted. The statements of the witnesses were recorded.

After the completion of investigation, the charge-sheet was filed

and the Appellant faced the trial before the Special Judge.

4. During the trial, the prosecution examined 5 witnesses

including the victim, her mother, her maternal grandfather, the

Medical Officer who conducted her medical examination and the

Investigating Officer. The defence of the Appellant was of total

denial. After considering the evidence on record and the defence

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of the Appellant, the learned Trial Judge convicted and

sentenced the Appellant as mentioned hereinabove.

5. The prosecution case is based on the evidence of the

victim. She is examined as P.W.2. She has deposed that her

statement was recorded by the police on 31/08/2015. She was

residing with her mother. Her father worked on a ship. Her date

of birth was 04/01/2002. She deposed that she was filing her

birth certificate on record. In this context, it must be mentioned

that there is no challenge to the date of birth of the victim. The

incident had taken place on 17/08/2015. At that time, the

victim was 13 years and 7 months old. She was studying in the

8th standard. She has deposed that she used to go to the school

at 06.30 a.m. and used to return at 02.30 p.m.. From 04.00 p.m.

to 06.00 p.m., she used to attend the classes. She was knowing

one Manisha, who introduced P.W.2 to the present Appellant and

one Deepak. Manisha told the P.W.2 that the Appellant was a

good boy and that he would give her various gifts.

6. Manisha knew that the P.W.2 used to be alone in the

house between 02.30 p.m. to 04.00 p.m. She had given the

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Appellant's mobile number to P.W.2 and had encouraged the

victim to talk with the Appellant, who in turn used to meet P.W.2

near the lift of their society. He was working as a driver with an

NGO. He had come from outside the State of Maharashtra. On

17/08/2015, at 02.30 p.m., P.W.2 was alone in the house. On

that day, she had not gone to the school as she had some injury

to her right eye. She was watching TV. The Appellant came to

her house and pressed the doorbell. He told the P.W.2 that he

wanted to talk to her. He asked for water. P.W.2 opened the door

and let him inside in the house. She gave him water. The

Appellant grabbed her hands and dragged her to the bedroom.

She has further deposed that the Appellant pushed her on the

bed. When she tried to get up, he sat on her. He removed his

clothes. He used Condom. He touched his private parts with the

victim's private parts. She suffered pain. She somehow pushed

him and shouted. The Appellant then threatened that if she

disclosed that incident to anybody, he would kill her. He then

went away. P.W.2 did not disclose that incident to anybody.

However, on 21/08/2015, in the midnight, at around 01.00

a.m., she narrated the incident to her mother. Then, the mother

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lodged the complaint with the police. P.W.2's statement was

recorded by the police on 31/08/2015. On 05/10/2015, her

statement was recorded by the Magistrate u/s 164 of Cr.P.C. That

statement is produced on record at Ex.25. In the meantime, on

22/08/2015, the police had sent her for medical examination.

She identified the Appellant before the Court.

In the cross-examination, she stated that after the

incident, she did not go to attend the classes for about one

month. On the date of incident, her mother had returned home

at 07.30 p.m. Till then, P.W.2 was sleeping and was crying,

because of which, her eyes were swollen. Her mother took her to

the hospital for treating her eyes. At that time also, P.W.2 did not

disclose about the incident to the Doctor. Their flat was on the

first floor. There were other flats on the first floor. She explained

that one of the flats used to remain closed and in another flat

the residents used to reside only on few days.

In the cross-examination, certain questions were put to

bring on record certain omissions from her statements given

before the Magistrate and the police. According to her, she had

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stated the following facts in those statements, but she could not

explain as to why those facts were not part of her statements

before the police or before the Magistrate :

(a) She had sustained injury to her right eye and therefore she had not gone to the school.

(b) The Appellant asked for water and that she had given him water and when she was keeping the glass on the table, the Appellant entered the room and closed the door.

(c) The Appellant pushed her on the bed and when she tried to get up, he sat on her body.

(d) The accused touched his private parts with her private parts.

(e) She had told her mother that when she pushed the Appellant, he threatened to kill her.

The cross-examination was conducted in the direction

to bring these omissions on record. However, the Investigating

Officer was not asked a single question as to whether, these

statements were made by the P.W.2 to the Investigating Officer

who had recorded her police statement. Therefore, these

omissions and improvements from her police statement are not

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properly brought on record and therefore, the defence cannot

take advantage of these alleged omissions from her statement

before the police.

7. So far as the statement before the Magistrate is

concerned, she had stated that the Appellant had used a

Condom and had tried to force himself on her. At that time, she

had pushed him. Therefore, to that extent, she has narrated the

incident in her statement before the learned Magistrate.

In her further cross-examination, she had mentioned

her own mobile phone number, but did not tell the phone

number used by the Appellant. She had also mentioned the

mobile number of her mother. She had deposed that on

21/08/2015, two missed calls were received on her mother's

mobile phone in the night. On 21/08/2015, her mother called

the Appellant and slapped him. After that, P.W.2, her mother, her

maternal uncle and grandfather took the Appellant to the police

station. After about 10 days, the police came to her house for

making enquiry and at that time her statement was recorded.

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8. P.W.1 was the mother of the victim, who had lodged the

FIR. She has deposed that she knew the Appellant as he was

working with one NGO as a driver. The said NGO had taken two

row houses in their society. On 21/08/2015, at about 01.00 a.m.

her daughter's phone received a missed call. P.W.1 then dialed

the same number, but nobody spoke from other end. P.W.1 then

made enquiries with P.W.2. Initially she did not give answers.

After P.W.1 took P.W.2 in confidence, P.W.2 narrated the incident

to her. In the morning, P.W.1 went to Kondhava Police Station

and lodged her FIR. It is produced on record at Ex.21. Her

supplementary statement was recorded on 05/09/2015.

Her cross-examination was largely on the point as to

what P.W.2 had told her. In any case, that would be hearsay

evidence. As far as P.W.1 is concerned, she has deposed what

steps she had taken, which would be admissible part of her

evidence. P.W.1 stated in the cross-examination that after the

incident, she made complaint to the society against the NGO.

P.W.2 had not narrated the incident to the maid servant. P.W.2

had not informed about the incident to anybody till 21/08/2015

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in the night. She further deposed that shouts from the house

cannot be heard outside. She had taken the Appellant with her

when she had gone to the police station. Before that, she had

called the Appellant to her house and had slapped him 2-3

times. She denied the suggestion that she had lodged the FIR to

remove the NGO from the society.

9. P.W.3 is the grandfather of the victim and the father of

the P.W.1. He has narrated as to how the victim told the incident

to them. His own statement was recorded by the police on

23/08/2015. He had gone to the police station along with P.W.1

to lodge the report on 21/08/2015. P.W.3's evidence serves only

a limited purpose.

10. P.W.5 Dr. Namita Raut is an important witness. She has

stated that on 22/08/2015 at 03.40 p.m., P.W.2 was brought to

her for medical examination. P.W.2 had given the history of the

incident naming the Appellant. She had in fact told this witness

that the Appellant used to frequently visit the victim's house and

had physical relations. On 17/08/2015, he had forceful physical

relations with her. He had used a Condom. Her clinical

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examination showed that there was no external physical injury.

There was no injury or no inflammation of labia major and labia

minora. Her hymen was intact. But there was perihymenal

redness at 7 O'clock position. There was no evidence of perineal

tear or injury. From the history and clinical examination, opinion

was expressed by this witness that possibility of vaginal

penetration could not be ruled out.

In the cross-examination, she deposed that at the time

of obtaining history from the victim, her mother was also

present and her consent was also obtained. She denied the

suggestion that the history was narrated by the victim's mother.

She further deposed that the date of examination was the 5 th day

of the menses of the victim and that redness, swelling and

tenderness were common symptoms of vaginal inflammation.

The medical examination report is produced on record at Ex.34.

11. P.W.4 PSI Sutar was the Investigating Officer. She was

attached to Kondhava police station. She had recorded the FIR.

She had sent the victim for medical examination. She had

recorded the statements of the witnesses as well as that of the

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victim. She had collected the articles for chemical analysis. After

completion of the investigation, she had filed the charge-sheet.

In the cross-examination, she admitted that initially on

21/08/2015, the offence was registered u/s 354 of the Indian

Penal Code. She recorded the victim's statement on 31/08/2015

and after recording that statement, further sections were added.

She did not place CDR reports of the mobile number of the

Appellant and the victim or any other evidence on record to

show that the said mobile number was used by the Appellant.

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

13. Learned counsel for the Appellant submitted that the

victim's statement was recorded belatedly after about 10 days of

lodging of the FIR. Initially, the offence u/s 354 of the IPC was

lodged. Her deposition also indicates that there was no actual

penetration and at the highest it could be an attempt to commit

the offence of penetrative sexual assault. He submitted that the

age of the victim is not properly proved. The medical evidence

shows that the redness found by the Medical Officer could be

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due to some other reasons and not because of the acts attributed

to the present Appellant. The Appellant is falsely implicated

because the victim's mother wanted to get the NGO out of the

society.

14. Learned APP as well as learned counsel for the

Respondent No.2 opposed these submissions. According to them,

the FIR was lodged by the victim's mother. However, the incident

was narrated only by the victim and she was specific about the

narration. Therefore, the offence is made out. Both of them have

submitted that from the definition of the penetrative sexual

assault under section 3 of the POCSO Act and section 375 of the

IPC, even a very small penetration would still constitute the

offence of rape and penetrative sexual assault. The victim's age

was not in dispute. She was a minor at that time. Therefore, the

offence is proved by the prosecution. The learned Judge has

given sufficiently strong reasons for convicting and sentencing

the Appellant and therefore there was no necessity to interfere

with the finding of sentence imposed on the Appellant.

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15. I have considered these submissions. As far as the age

of the victim is concerned, she has deposed that her date of birth

was 04/01/2002 and that she had produced the birth certificate

on record. Significantly, in the statement of the Appellant

recorded u/s 313 of Cr.P.C., a specific question was put to the

Appellant that her date of birth was 04/01/2002. To that, the

Applicant had replied that it was true. At the time of recording

of deposition also, the age of the victim was never challenged.

Therefore, it is proved that the age of the victim, on the date of

incident i.e. on 17/08/2015, was 13 years and 7 months.

16. As far as the main question is concerned, P.W.2 has

described as to how she got in contact with the Appellant and as

to how he tried to develop intimacy. The main incident occurred

on 17/08/2015, when she was alone in the house. In the cross-

examination, the description of the incident is not shattered. As

mentioned earlier, the defence tried to bring on record certain

improvements from her police statement, but no such questions

were put to the Investigating Officer and therefore those alleged

improvements cannot be used by the defence in its favour. Not a

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single question was asked to the Investigating Officer about

those alleged improvements or her police statement. As

mentioned earlier, in the statement recorded u/s 164 of Cr.P.C.,

she had told the Magistrate that the Appellant tried to force

himself on her by using condom. In this background, the

deposition given by her before the Trial Court, assumes

importance. She had described the incident. She had described

as to how she was overpowered. He had used a condom and had

touched his private parts with her private parts. She had

suffered pain. There is no improvement as far as that part of

suffering from pain is concerned. Therefore, the act of the

Appellant would fall within the definition of penetrative sexual

assault as the pain would indicate that he had penetrated even

though to a small extent. The relevant part of the definition of

the penetrative sexual assault reads thus :

Section 3 of the POCSO Act - :

A person is said to commit "penetrative sexual assault" if --

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

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(b) -----

(d) -----

17. Though the victim's statement is recorded by the police

on 31/08/2015 i.e. after about 10 days from lodging of the FIR,

the victim was immediately sent for medical examination on

22/08/2015, when she had narrated the incident and had given

more details indicating penetrative sexual assault which would

attract the provisions of section 3 of POCSO Act regarding

penetrative sexual assault. Therefore, the allegations made were

not made as an afterthought, but those allegations were made

immediately. In any case, the victim was under pressure and