Bombay High Court
Rajkumar @ Vikykumar Avadhkishor ... vs The State Of Maharashtra And Anr on 9 August, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:31779
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.977 OF 2022
WITH
INTERIM APPLICATION NO.2370 OF 2024
IN
CRIMINAL APPEAL NO.977 OF 2022
WITH
INTERIM APPLICATION NO.2367 OF 2024
IN
CRIMINAL APPEAL NO.977 OF 2022
Rajkumar @ Vikykumar Avadhkishor
Choudhary .... Appellant/
Applicant
versus
The State of Maharashtra & Anr. .... Respondents
.......
• Mr. Vaibhav V. Ugle, appointed advocate a/w Shubham Vasekar,
Advocate for Appellant/Applicant.
• Smt. Manisha R. Tidke, APP for the State/Respondent.
• Mr. Chaitanya A. Chavan, appointed advocate, for Respondent
No.2.
CORAM : SARANG V. KOTWAL, J.
RESERVED ON : 06th AUGUST, 2024
PRONOUNCED ON : 09th AUGUST, 2024
JUDGMENT :
Digitally
signed by
MANUSHREE
MANUSHREE NESARIKAR
NESARIKAR Date:
2024.08.09
1. The Appellant has challenged the Judgment and Order
14:27:26
+0530
Nesarikar
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dated 12/04/2022 passed by the Special Judge under POCSO
Act, in POCSO Case No.533 of 2019. By the impugned
Judgment and Order, the Appellant was convicted as follows ;
(a) He was convicted for commission of offence
punishable u/s 4 of the Protection of Children from
Sexual Offences Act, 2012 and was sentenced to
suffer rigorous imprisonment of 10 years and to pay
a fine of Rs.20,000/- and in default of payment of
fine to suffer rigorous imprisonment for six months.
(b) The Appellant was also convicted for commission of
offence punishable u/s 376(1) of the Indian Penal
Code. But considering the sentence imposed u/s 4 of
the Protection of Children from Sexual Offences Act,
2012 being greater in degree, no separate sentence
was imposed on him.
The Appellant was the original accused No.1. There
was another accused i.e. accused No.2 in this case. He was
acquitted from the case.
2. Heard Mr. Vaibhav V. Ugle, learned counsel for the
Applicant, Mr. Chaitanya A. Chavan, learned counsel for the
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Respondent No.2 and Smt. Manisha R. Tidke, learned APP for
the State.
3. The prosecution case is that the victim was around 14
years and 5 months old at the time of the incident. Her date of
birth was 01/01/2005. The incident occurred on 10/06/2019.
The victim and the Appellant were residing in the same vicinity.
On that day, in the afternoon, the victim went to the first floor
for throwing garbage in the creek. The Appellant was residing
on the first floor of that structure. He pulled the victim inside
the room. Accused No.2 was present inside the room. It is
alleged that the Appellant committed rape on the victim. The
accused No.2 put a bed-sheet over them and also took some
photographs of them. After some time, the victim's brother came
and called for her. The Appellant opened the door. The victim
came out crying. The victim and her brother went back to their
house. She told her mother about the incident. The victim's
family decided to lodge the FIR. Accordingly, on the next day
morning, they went to Cuffe Parade police station and lodged
their FIR on 11/06/2019 vide C.R.No.90/2019. The
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investigation was carried out and the Appellant was arrested on
16/06/2019. The charge-sheet was filed and the case was
committed to the Special Court.
4. During the trial, the prosecution had examined 12
witnesses including the victim, her mother, her brother, the
medical officers, the principal of her school, the Panchas and the
Investigating Officer. Besides the oral evidence, the prosecution
had led documentary evidence in the form of CA report. The
defence of the Appellant was that the victim's parents were
running a Mess and the Appellant used to eat there. They were
providing poor quality food. Therefore, the Appellant confronted
the victim's parents and asked about their license. There was a
quarrel and both of them had threatened the Appellant. Because
of this enmity, the Appellant was falsely implicated.
5. Learned Trial Judge considered the evidence on record
and the defence of the Appellant. She found that the Appellant
had committed the offence. As far as the accused No.2 was
concerned, the learned Judge observed that the victim had
named the accused No.2 for the first time only in her
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supplementary statement. There was no consistent evidence on
record about the accused No.2 and about his presence at the
spot, at the time of incident. Therefore, it was held that the
accused No.2 was entitled for acquittal. Consequently, only the
Appellant was convicted and sentenced as mentioned earlier.
6. The important witness in this case is the victim herself.
She has stated that her date of birth was 01/01/2005. She was
residing with her parents and two brothers. On 10/06/2019, at
about 03.00 p.m., she cleaned her house and went to the first
floor of a structure near the creek for throwing garbage. The
Appellant was residing in a room of that first floor. He called the
P.W.2/victim to his room. He caught her and pulled her inside
the room. He closed the door. She has deposed that accused
No.2 was also present in the room. The Appellant then
committed rape on her. He threatened P.W.2. She further
deposed that the accused No.2 did not do anything. She added
that the accused No.2 put a bed-sheet on her and the Appellant.
She further deposed that the Appellant asked the accused No.2
to take their photographs. Her brother came looking for her to
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the Appellant's house. He knocked at the door. The Appellant
opened the door. She returned home crying. Her mother
enquired with her. Initially, she did not tell her. But around
09.00 p.m., she told her mother about the incident. Her mother
told about it to her father and then they went to the police
station. She was taken for medical examination. Her statement
was recorded. Her clothes were seized. She identified the bed-
sheet as Article 4. She identified the Appellant. She identified
the accused No.2 present before the Court.
In the cross-examination, P.W.2 deposed that she went
to the police station on 10/06/2019 at about 10.00 p.m. The
police recorded her statement at that time. She admitted that
her father used to go to the Appellant's house to give him tiffin.
She used to go for throwing the garbage after the tiffins were
prepared. It was a slum area. There were people present on the
road, when she used to go for throwing garbage. There were
four rooms on the ground floor and four rooms on the first
floor and people were residing in all these rooms. She admitted
that she had not stated in the statement recorded u/s 164 of
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Cr.P.C. that the Appellant had called her to his house. There was
some improvements in her deposition compared to her police
statement. Those improvements were put to her in the cross-
examination. She could not assign any reason as to why it was
not mentioned in her police statement that the Appellant had
asked the accused No.2 to take photographs or that the accused
No.2 put the bed-sheet on them. She was not knowing the friend
of the Appellant, who was inside the room. But she gave his
name as the Appellant had called the accused No.2 by his name.
This is her explanation so far as the accused No.2 is concerned.
She produced her clothes before the police. She showed the spot
to the police.
7. P.W.1 was the mother of the victim. She had lodged the
FIR. She has deposed that on 10/06/2019, at about 03.00 p.m.,
P.W.2 had gone out to throw garbage. The Appellant used to
reside 2 to 3 houses away from their house. When the victim
returned home, she narrated the incident to her. P.W.1 went to
the police station and lodged her report. The FIR is produced on
record at Ex.18, which shows that the incident was reported to
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the police at 08.45 a.m. on 11/06/2019 and the FIR was lodged
at about 09.00 a.m. on 11/06/2019.
In the cross-examination, she deposed that she used to
prepare tiffins and her husband carried them to different
persons. She denied that the Appellant was taking tiffins from
them. The victim returned home at around 04.00 p.m. She was
crying. The tiffins were given in the morning and evening. The
victim narrated the incident at about 09.00 p.m. P.W.1 had not
sought help from her neighbours.
8. P.W.3 is another important witness. He was the brother
of P.W.2. He has deposed that in the afternoon since the victim
did not return, their mother told him to search for the victim in
the chawl. P.W.3 could not find her. Then he went to the
Appellant's room. The door was closed. He knocked on the door.
The Appellant opened the door. The Appellant tried to hide
behind the door. But the victim came outside the room crying.
According to P.W.3, there was one more person in the room. He
identified the Appellant, but he could not identify the accused
No.2.
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In the cross-examination, he deposed that he had
visited the Appellant's home on many occasions. The victim was
not always going there. He deposed that he did not know that
the victim was in that room. But he knocked at that door
because all the others rooms were locked. When he was asked a
specific question, as to when he knocked at the door of the
Appellant, whether other people were sleeping in that room,
P.W.3 did not answer that question. He deposed that the
Appellant used to take tiffin to his house from his father and
hence they knew the Appellant.
9. P.W.4 WPSI Madhuri Patil had taken down the FIR and
the supplementary statement of the P.W.2. She recorded the
statement of P.W.3 as well.
10. P.W.5 Dr. Nidhi Kurkal had examined P.W.2 on
11/06/2019. On examination of P.W.2, P.W.5 found that there
was no fresh injury. However, there was old healed complete
hymenal tear. After examination, the opinion was given that the
evidence of sexual assault cannot be ruled out and the final
opinion was kept pending for FSL report.
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In the cross-examination, she deposed that there were
no fresh tears. The hymenal tear could be due to other reasons
and hymenal injuries may heal within 24 hours.
11. P.W.6 was the Principal of P.W.2's school. P.W.2 had
taken admission in that school in the year 2018. For age proof
she had given Aadhar card and certificate of a Doctor. The date
of birth was mentioned as 01/01/2005.
In the cross-examination, he deposed that the victim
had not gone to school earlier and therefore under RTE Act, she
was given admission directly in the 5th standard. He also
admitted that the date of birth i.e. 01/01/2005 was written in
different ink on the admission form, which was filled by the
victim's father.
12. Thus, there was some doubt about the victim's date of
birth. But then, the investigation agency got her ossification test
done.
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13. P.W.7 Sunil Jawale was the Assistant Professor of J.J.
Hospital. On 11/06/2019, he conducted ossification test and
according to that examination, her age was opined to be
between 14 to 15 taking into account margin of error. The
report is produced on record at Ex.36.
14. P.W.8 Nitin Bangera was a Pancha under the arrest
Panchanma, when the Appellant was arrested and his clothes
were seized.
15. P.W.10 Vijay More was a Pancha in whose presence, the
victim's clothes were seized.
16. P.W.9 PSI Lahu Pawar had registered the FIR and had
conducted the Spot Panchanama. The victim had pointed out the
bed-sheet and it was seized from the spot.
In the cross-examination, he deposed that when they
went to the spot, the room was not locked. The same bed-sheet
was forwarded to FSL.
17. P.W.11 Caroline Shaikh was the Pancha for the spot
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Panchanama. The Spot Panchanama is produced on record at
Ex.42.
18. P.W.12 API Shashikant Jadhav was the Investigating
Officer. He had conducted the major part of the investigation.
He had arrested both the accused.
19. Apart from the ocular evidence, the prosecution has
brought C.A. reports on record. However, there is nothing
significant in those C.A. Reports except the finding of semen on
the bed-sheet seized from the spot. There was blood found on
the clothes of the victim, but except for mentioning that it was
of human origin, its grouping was inconclusive. Human blood
and semen stains were found on the bed-sheet, but the blood
group was inconclusive. The other C.A. reports are not
incriminating in any manner.
20. Learned counsel for the Appellant submitted that the
story given by the victim is unbelievable. She had not raised any
shouts when she was dragged inside. There was no reason for
the P.W.3 to knock only at the door of the Appellant because it
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was their case that the victim had gone to that room without the
knowledge of her brother and mother. He further submitted that
the version is not the complete truth because the learned Judge
has disbelieved her version regarding the presence of the
accused No.2 inside the room. The Appellant was convicted u/s
4 and not u/s 6 of the POCSO Act. Therefore, benefit of doubt
should also be given to the present Appellant because the
victim's story was not held to be completely true. He further
submitted that there is no other corroborating circumstance. The
bed-sheet was found on the spot. But when the Spot
Panchanama was conducted, the room was open. He further
submitted that the finding of semen on the bed-sheet is not an
incriminating circumstance against the Appellant. The bed-sheet
was allegedly found in his own room. It does not have any
connection with the alleged offence of rape. He further
submitted that the medical examination does not show that the
victim had suffered any injuries. Therefore, the medical evidence
cannot be used by the prosecution against the Appellant. He
submitted that there was doubt about the date of birth of the
victim as the evidence of the Principal of the school i.e. P.W.6,
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shows that the documentary evidence about the date of birth
was not made available.
21. Learned counsel for the Respondent No.2 as well as
learned APP submitted that the date of birth of the victim was
not really in doubt. The ossification test shows that the victim
was between 14 to 15 years of age at the time of incident. They
further submitted that the victim in usual course had gone on
the first floor to throw garbage in the sea. It was not possible to
throw garbage from the ground floor. The Appellant took
advantage of this fact. The Appellant dragged her inside and
committed rape on her. Therefore, there is no reason to
disbelieve the version of the P.W.2/victim. They further
submitted that the brother had given explanation as to why he
knocked only on the room of the Appellant. According to P.W.3,
the other rooms were locked and therefore he did not knock on
those doors. They further submitted that though some part of
the victim's evidence is disbelieved by the learned Judge, that
does not mean that her entire evidence should be discarded. The
rest of her deposition is believable and reliable. Therefore, the
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Appellant may not be acquitted in this case. They further relied
on the finding of blood and semen stains on the bed-sheet found
at the spot.
22. I have considered these submissions. As far as the age
of the victim is concerned, the evidence led by the Principal of
the school is not very reliable. However, the prosecution has
proved the ossification test reports through evidence of P.W.7.
Therefore, even accepting the margin of error, still the victim
would be below 18 years of age and hence the provisions of
POCSO Act would be attracted if the offence committed by the
Appellant was proved.
23. So far as the evidence regarding the actual incident is
concerned, the P.W.2 has described the incident. She had gone to
the first floor to throw garbage. She was dragged inside the
room by the Appellant and he had committed rape on her.
Though her evidence is not very clear about presence of the
second person and the learned Judge had acquitted the accused
No.2, her evidence against the Appellant, in particular, is cogent
and reliable. Moreover, her version against the Appellant is
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supported by the P.W.3 who had come to look for her. The
learned Judge has observed that the prosecution has failed to
prove that the offence is committed by the second person as
observed in paragraph No.31 of his judgment. That finding is
not challenged by the State. But the offence is proved beyond a
reasonable doubt against the Appellant only.
24. P.W.3 has deposed that when he knocked at the room of
the Appellant, the victim was inside the room. The Appellant
was trying to hide himself. P.W.3 referred to the presence of
another person but he had not identified the accused No.2. The
prosecution has not proved beyond reasonable doubt that there
was any other person in the room. Leaving that part aside, the
prosecution through the evidence of P.W.3 has proved that the
victim was found in the room of the Appellant who was also
present inside the room. To that extent, P.W.2's version is
corroborated by the evidence of the P.W.3. There is hardly any
delay in lodging the FIR. The victim/P.W.2 narrated the incident
to her mother at 09.00 p.m. and immediately on the next
morning they had approached the police to lodge their FIR. In
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the fact of the present case, lodging of the FIR on the next day
morning cannot be termed as delayed reporting. Thus, it can be
seen that the victim and her family had taken recourse to
approach the police as soon as possible. There was no reason for
P.W.2 to implicate the Appellant falsely. Explanation given by the
Appellant in his statement recorded u/s 313 of Cr.P.C. does not
appear to be probable. There are no details of quarrel between
the Appellant and the victim's family in respect of the quality of
food served to the Appellant.
25. The medical evidence also supports the prosecution
case, as P.W.5 has deposed that, after the examination it was
concluded that the evidence of sexual assault could not be ruled
out. There was recovery of bed-sheet, soon after the incident,
from the spot showing the presence of blood and semen stains.
This is an additional circumstance against the Appellant. It was
recovered from his own room. In this view of the matter, though
the prosecution has failed to prove the presence of another
person inside the room beyond a reasonable doubt, the
prosecution has proved its case beyond reasonable doubt against
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the present Appellant. The Appellant was rightly convicted for
the commission of offence punishable u/s 4 of POCSO and 376
(1) of the Indian Penal Code.
26. The next question is about the sentence imposed on the
Appellant. Learned counsel for the Appellant submitted that the
Appellant was 24 years of age at the time of the incident. He is
continuously in custody since 16/06/2019. He was never
released on temporary period for any reason. He was in custody
throughout, even during the period of pandemic. All this has
already caused immense mental hardship to him. He submitted
that in these circumstances, some leniency be shown to the
Appellant. His sentence be reduced from 10 years to 7 years
rigorous imprisonment.
27. Learned APP as well as learned counsel for the
Respondent No.2 opposed these submissions. According to them,
considering the age of the victim and also the nature of the
incident, leniency may not be shown to the Appellant. The
sentence of 10 years is justifiable in this case. It is the minimum
sentence u/s 376(1) of the Indian Penal Code.
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28. The minimum sentence u/s 376(1) of the Indian Penal
Code at the relevant period was 10 years. Therefore, considering
the provisions of section 42 of the Protection of Children from
Sexual Offences Act, there is no scope to reduce it below the
minimum period of 10 years. Therefore, even the sentence
cannot be reduced.
29. With the result, the Appeal is dismissed.
30. With dismissal of the Appeal, the companion Interim
Applications are also disposed of.
(SARANG V. KOTWAL, J.)
