Bombay High Court
Gajanan Maruti Killedar vs The State Of Maharashtra And Anr on 7 August, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:32037
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.966 OF 2023
Gajanan Maruti Killedar ....Appellant
Versus
The State of Maharashtra
and another ....Respondents
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Ms. Saima Ansari, Advocate (appointed) for the Appellant.
Mr. Swapnil V. Walve, APP for the Respondent No.1-State.
Mr. Harshad Sathe, Advocate (appointed) for the Respondent
No.2.
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CORAM : SARANG V. KOTWAL, J.
DATE : 07th AUGUST, 2024
ORAL JUDGMENT :
1. The Appellant has challenged the judgment and order
dated 31.8.2019 passed by the Special Judge (POCSO),
Gadhinglaj, District-Kolhapur in Special Case (POCSO)
No.9/2017. The Appellant was convicted and sentenced as
under :
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Deshmane(PS)
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[i] The Appellant was convicted for the offence punishable
under Sections 376(2)(f) of IPC and he was sentenced to
suffer RI for ten years and to pay fine of Rs.5,000/- and in
default of payment of fine to undergo SI for one month;
[ii] The Appellant was convicted for the offence punishable
under Section 5(n) read with Section 6 of the Protection
of Children From Sexual Offences Act, 2012 (for short,
'POCSO Act') and he was sentenced to suffer RI for ten
years and to pay fine of Rs.5,000/- and, in default of
payment of fine, to undergo SI for one month;
[iii] The Appellant was convicted for the offence punishable
under Section 506 of IPC and he was sentenced to suffer
RI for three years and to pay fine of Rs.2,000/- and, in
default of payment of fine, to undergo SI for fifteen days;
2. The substantive sentences were directed to run
concurrently. The Appellant was given set off under Section 428
of Cr.P.C. for the period undergone as under-trial prisoner.
3. Heard Ms. Saima Ansari, learned counsel for the
Appellant, Mr. Swapnil Walve, learned APP for the Respondent
No.1-State and Mr. Harshad Sathe, learned counsel for the
Respondent No.2.
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4. The prosecution case is that the Appellant is the
father of the victim. The date of birth of the victim was
24.5.2000. According to the prosecution case, on 5.3.2017, the
Appellant took the victim to a lodge on the pretext of visiting
temples at different places. It is alleged that the Appellant
committed rape on the victim in the room of that lodge. On
11.4.2017, the victim narrated the incident to her aunt. Both of
them approached Ajara Police Station. The victim gave her FIR.
It was registered as C.R. No.43/2017 at Ajara police station. The
investigation was carried out. The supplementary statements of
the victim were recorded on 12.4.2017 and 13.4.2017. The room
of that particular lodge was shown by the victim. The spot
panchnama was conducted. The registers from the lodge were
seized. The Appellant was arrested and at the conclusion of the
investigation, the charge-sheet was filed. The case was
committed before the Special Court under POCSO Act.
5. During trial, the prosecution examined six witnesses,
including the victim, her aunt, her mother, the lodge owner, the
investigating officer and the J.M.F.C., Ajara who had recorded the
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victim's statement under Section 164 of Cr.P.C. 1973. The victim,
her aunt and her mother turned hostile and did not support the
prosecution case at all. Apart from the ocular evidence, the
prosecution produced the medical certificate at Exhibit-40 which
is admitted by the defence. Her birth-certificate issued by the
Grampanchayat was produced by the investigating officer. The
defence of the Appellant was that he had argued with his sister-
in-law regarding money and land and, therefore, he was falsely
implicated.
6. Learned Judge considered the evidence on record and
the arguments of the parties. He referred to Section 29 of the
POCSO Act regarding the presumption. The learned Judge relied
on the medical report produced at Exhibit-40 showing that the
hymen was ruptured and there was possible penetration. The
learned Judge relied on the statements in the FIR given by the
victim regarding penetrative sexual assault. He also relied on the
spot panchnama. He further observed that there was total failure
on the part of the Appellant to successfully put forth his story. On
these reasons, the learned Judge convicted and sentenced the
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Appellant, as mentioned above.
7. The victim was examined as PW-1. She has stated
that her date of birth was 24.5.2000. Her father-the Appellant
was a mason. At the relevant time, she was studying in the 11 th
standard. She has deposed that all of them stayed in a lodge at
Sawantwadi. There was a quarrel between her parents and,
therefore, on the next day they returned home. She denied that
on 12.4.2017, the Appellant had taken her alone to Sawantwadi
for visiting the temples. The victim did not support the
prosecution case and, therefore, she was declared hostile. She
was cross-examined by the learned Prosecutor. In the cross-
examination, she deposed that they had gone to Sawantwadi by a
bus from Ajara. They reached there at around 2.30 p.m.. Then
PW-1 and the Appellant visited a temple. After that they stayed
at a lodge. Then she denied that the Appellant committed rape
on her and that he had threatened her. She also denied that her
father used to talk with her in filthy language at home. She
accepted that her statement was recorded by the police on
11.4.2017. She denied that her supplementary statements were
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recorded on 12.4.2017 and 13.4.2017. She deposed that she had
not narrated the portions marked 'A', 'B' and 'C' in the statement
dated 11.4.2017 and the supplementary statements dated
12.4.2017 and 13.4.2017. She could not assign any reasons as to
why those portions appeared in her statements. However, she
admitted her signatures on all the three statements and that she
had signed after reading all the statements. She identified her
signatures and, therefore, only the signatures were marked as
Exhibits-19, 20 and 21. She further deposed that her medical
examination was conducted. She has further deposed that her
statement was not recorded in the Court; but, she was shown the
statement recorded by the learned Magistrate. She identified
her signature which was marked as Exhibit-22 and the statement
was marked as Exhibit-23 for identification. Her clothes were
seized during investigation. She denied the suggestion that she
wanted to help her father and, therefore, she was deposing
falsely. In the cross-examination conducted on behalf of the
Appellant, she deposed that she signed those documents at
Exhibits-19, 20 and 21 prepared by the police as per say of the
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police. She had not narrated those portions marked 'A', 'B' and 'C'
in those statements. The portion marked 'A' from the FIR was
shown to PSI Jadhav who was examined as PW-5 and that
portion is marked as Exhibit-55. In this portion, she had stated
that on a Sunday of the earlier month on the 12 th day they had
gone to a lodge at Sawantwadi and at that time the Appellant
had committed rape on her. However, significantly the portions
marked 'B' and 'C' in the supplementary statements dated
12.4.2017 and 13.4.2017 were not shown to the I.O. and those
portions were not proved.
8. PW-2 was the maternal aunt of PW-1. She turned
hostile and did not support the prosecution case at all. According
to her, PW-1 had came to her house on 8.4.2017 but she denied
that PW-1 had told her about the incident that her father had
committed rape on her. She denied that she had stated portion
marked 'A' from her statement. In any case, her information
about the actual incident can only be hear-say. She could at the
highest depose that the victim had complained to her about the
incident but, even that part, she had not deposed before the
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Court and she had not supported the prosecution case.
9. PW-3 is the mother of the victim. She has also not
supported the prosecution case. She was declared hostile. In the
cross-examination conducted by the learned Prosecutor she
denied that the victim had told her that her father had committed
rape on her in the lodge. She denied having stated portion
marked 'A' from her statement before the police. In her cross-
examination conducted by the Appellant she deposed that she
had signed on a blank paper.
10. PW-4 was the owner of the lodge. He produced the
register dated 5.3.2017 showing an entry in the name of the
Appellant. He deposed that he had given them room No.6 and
had taken entry in the register showing that the room was given
to two persons who were daughter and father. He produced the
extract of the register at Exhibit-47. He deposed that he could
identify the Appellant if shown to him. But, his deposition does
not show as to whether the Appellant was actually shown to him
so that he could identify the Appellant in the Court.
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11. PW-5 PSI Jadhav was the investigating officer. He has
stated that, on 11.4.2017, at about 11.12 p.m., PW-1 had
approached the Police Station and had informed that the
Appellant had sexually assaulted the informant. PW-1 & 2 both
had come to the police station to lodge a complaint. He deposed
that the portion marked 'A' from the complaint was recorded as
per say of PW-1. That portion marked 'A' was exhibited at
Exhibit-55. On 12.4.2017, the Appellant was arrested. He was
subjected to medical examination. The clothes of the Appellant
and the victim were seized on 13.4.2017. He visited the
concerned lodge with the panchas. PW-1 showed the spot of
incident. The spot panchnama was conducted. It was produced
at Exhibit-38. The video-shooting of the spot panchnama
procedure was made. It was produced on record at Exhibits-56 &
57. He made arrangement so that PW-1's statement could be
recorded under Section 164 of Cr.P.C.. He sought birth
certificate of the victim from the Grampanchayat of her village. It
was produced on record at Exhibit-66. In the cross-examination
conducted on behalf of the Appellant he was asked about the
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discrepancy in the date in the FIR and the victim's supplementary
statements.
12. PW-6 was the Judicial Magistrate First Class, who was
posted at Ajara on 12.4.2017. He had recorded the statement of
PW-1 under Section 164 of Cr.P.C. in the presence of PW-1's
mother. He identified that statement which was produced on
record for identification at Exhibit-23.
. This, in short, was the ocular evidence led by the
prosecution.
13. Learned counsel for the Appellant submitted that the
prosecution has failed to prove its case beyond reasonable doubt.
The victim, her mother and her aunt have not supported the
prosecution case at all. They have turned hostile. The deposition
before the trial Court is important and when these witnesses have
not supported the prosecution case, the benefit has to go to the
present Appellant. She submitted that the alleged contradictory
portions from PW-1's earlier supplementary statements were not
proved by the prosecution and no explanation is sought from her
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specifically in respect of the statement recorded under Section
164 of Cr.P.C.. There is discrepancy in the date of incident and the
entry in the lodge. The Appellant was falsely implicated because
of the dispute. It appears from the evidence that there was
quarrel between the parents of the victim.
14. Learned counsel appearing for the Respondent No.2
in consonance with the deposition given by PW-1, supported the
Appellant's counsel. He also submitted that considering that PW-1
has turned hostile in this case, the order of conviction cannot be
sustained.
15. Learned APP, however, opposed these submissions.
According to him, the portion marked 'A' from the FIR is proved
through the evidence of the I.O. and, therefore, that portion can
be relied on. He further submitted that the statement of PW-1
recorded under Section 164 of Cr.P.C. is also produced on record
which can also be taken into consideration. He further submitted
that the entry in the register of the lodge is a corroborative piece
of evidence, which supports the prosecution case. He, therefore,
submitted that the learned Judge has recorded the conviction
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based on the correct reasoning and, therefore, the Appeal be
dismissed.
16. I have considered these submissions. As mentioned
earlier, the documentary evidence consists of the birth-certificate
produced at Exhibit-66 and the medical report of the victim's
examination, which is produced at Exhibit-40. The medical
evidence is admitted by the defence, which showed that the
hymen was ruptured and that there was penetration in the
private parts of the victim in the past. The question is whether
the Appellant has committed this offence. To answer that
question, the deposition of PW-1 would be the most important
piece of evidence. As discussed earlier, PW-1 has not supported
the prosecution case at all. The prosecution has not proved the
portions marked 'B' & 'C' from her supplementary statements
through the police officer who had recorded those supplementary
statements. In portion marked 'A' from her FIR, her case was
that she and the Appellant had gone to Sawantwadi on 12 th of the
earlier month, that would be 12.3.2017 because the FIR is lodged
on 11.4.2017. The prosecution has produced the entry in the
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register of the lodge and has also examined the lodge owner.
That entry is in respect of the visit dated 5.3.2017. No entry is
produced regarding the date 12.3.2017. That was important
because according to the FIR, the Appellant and the victim had
gone to that lodge on 12th of earlier month. This discrepancy is
important but the prosecution has not explained this discrepancy.
17. As discussed earlier, the prosecution has not proved
the portions marked 'B' & 'C' from her supplementary statements
dated 12.4.2017 and 13.4.2017. Apart from that, importantly no
question was asked to PW-1 regarding the contrary statements
given by her in the statement recorded by J.M.F.C., Ajara, under
Section 164 of Cr.P.C. PW-1 was not given any opportunity to
explain as to why her narration was contradictory in that
statement recorded under Section 164 of Cr.P.C.. She was only
made to identify her signature on that statement.
18. Therefore, though, PW-6 has stated that PW-1 had
narrated the incident supporting the prosecution case in the
statement recorded under Section 164 of Cr.P.C., since the
prosecution has failed to ask any question regarding truthfulness
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of that statement when her deposition was recorded before the
trial Court, the prosecution cannot rely on her statement
recorded by the learned J.M.F.C., Ajara.
19. There is no corroborative evidence in the form of C.A.
certificate which could be termed as incriminating in respect of
seizure of the clothes of the victim or the Appellant.
20. As far as the allegations of using filthy language at
home against PW-1 are concerned, even those allegations are not
supported by PW-1 or her mother who is examined as PW-3. The
learned trial Judge has not considered that the prosecution has
not put the important relevant questions in respect of PW-1's
statement recorded under Section 164 of Cr.P.C. to her when her
deposition was recorded by the trial Court. He has also not
considered that the portions marked 'B' & 'C' are not proved by
the prosecution.
21. As a result of this discussion, it is clear that the
prosecution has not proved its case beyond reasonable doubt
and, therefore, the Appellant could not have been convicted in
this case.
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22. Hence, the following order :
:: O R D E R ::
i. The Appeal is allowed.
ii. The judgment and order dated 31.8.2019 passed by the
Special Judge (POCSO), Gadhinglaj, District-Kolhapur in
Special Case (POCSO) No.9/2017 convicting and
sentencing the Appellant, is set aside.
iii. The Appellant is acquitted from all the charges.
iv. The Appellant is in custody. He shall execute a bond in the
sum of Rs.30,000/- for his appearance in case an Appeal is
preferred against his acquittal, for ensuring his presence.
After such a bond is executed, the Appellant be released
forthwith if not required in any other case.
v. Criminal Appeal is disposed of accordingly.
(SARANG V. KOTWAL, J.)
Deshmane(PS)
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2024.08.12
15:50:41
+0530
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