Bombay High Court
Sharad S/O Mahadev Mankar vs State Of Mah. Thr. Pso Ps Nandgaon Peth ... on 30 August, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:10810
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 457 OF 2022
APPELLANT : Sharad S/o. Mahadev Mankar, Aged
about 37 Years, Occ. Labour, R/o.
Fattepur, Shivangaon, Tq. Tiosa,
Dist. Amravati.
//VERSUS//
RESPONDENTS : 1. State of Maharashtra, through the
Police Station Officer, Police Station,
Nandgaon Peth, Dist. Amravati.
2. XYZ (Victim) in Crime
No.308/2020, Police Station -
Nandgaon Peth, Tq. & Dist.
Amravati.
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Mr. Mohd. Ateeque, Advocate for the Appellant.
Mrs. S.V. Kolhe, APP for Respondent No.1/State.
Ms. Falguni Badami, Advocate (appointed) for Respondent
No.2.
**************************************************************
CORAM : G. A. SANAP, J.
DATED : 30th AUGUST, 2024.
JUDGMENT
. In this appeal, challenge is to the judgment and order
dated 11.05.2022, passed by the learned Special Judge &
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Additional Sessions Judge-2, Amravati, whereby the learned Judge
convicted the appellant for the offences punishable under Section
376-AB of the Indian Penal Code, 1860 (for short, "IPC") and
under Sections 4 and 6 of the Protection of Children from Sexual
Offences Act, 2012 (for short, "POCSO Act"), and sentenced him
to suffer rigorous imprisonment for twenty years and to pay a fine
of Rs.10,000/- and in default to suffer rigorous imprisonment for
six months for the offence punishable under Sections 4 and 6 of
the POCSO Act. No separate sentence has been awarded for the
proved offence punishable under Section 376-AB of the IPC.
02] BACKGROUND FACTS:
PW-2 (informant) is the mother of the victim girl
(PW-1). The crime was registered against the appellant on the
report of PW-2. The case of prosecution against the appellant,
which can be gathered from the report and other materials
compiled in the charge-sheet, is that, on the date of the incident,
the victim was 9 years old and studying in 3 rd Standard. The
informant has three daughters. The informant and her husband are
doing labour work on the field. On 25 th November, 2020, the
informant, her husband, and her elder daughter had gone for work.
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The victim and younger daughter were at home. The informant
came back from the field at about 4:00 p.m. It is stated that the
victim told her that she had gone to play with her friend Sonakshi
at her house. Sonakshi is the daughter of the appellant. The
appellant was at home. The appellant called her in the kitchen and
removed her knickers. The appellant rolled over his hand on her
private part and inserted his finger into her vagina. The victim
came back to her house. The informant and her family belong to
the Buddhist community. The informant was mentally disturbed
after hearing the incident, and therefore, immediately they did not
go to the police station.
03] On 27th November, 2020, the informant, her husband,
and the victim went to the police station. The informant narrated
the incident to the police. The Police Officer (PW-4) Kavita Patil
recorded her oral report. On the basis of this report, a Crime
bearing No.308/2020 was registered against the appellant. The
victim was sent for medical examination. The doctor (PW-5)
examined the victim and issued the medical certificate. PW-4
carried out the initial investigation. She drew the spot panchanama.
The statement of the victim was recorded. Similarly, the victim was
sent to the Magistrate for recording her statement under Section
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164 of the Code of Criminal Procedure, 1973 (for short, "Cr.PC").
Further investigation was carried out by PW-6 Sohail Shaikh. He
collected the birth certificate and caste certificate of the victim. On
completion of the investigation, he filed the charge-sheet against
the accused in the Court of law.
04] The learned Special Judge framed the charge against the
accused. The accused pleaded not guilty. His defence is of false
implication on account of the enmity between him and the father
of the victim. The prosecution, in order to prove the charge against
the accused, examined six witnesses. The learned Judge, on
consideration of the evidence, found the said evidence sufficient to
prove the charge against the accused and accordingly convicted and
sentenced the accused as above. The appellant, being aggrieved by
the judgment and order, has come before this Court in appeal.
05] I have heard Mr. Mohd. Ateeque, learned advocate for
the appellant/accused, Mrs. S.V. Kolhe, learned APP for respondent
No.1/State, and Ms. Falguni Badami, learned advocate for
respondent No.2. Perused the record and proceedings.
06] Learned advocate for the appellant/accused submitted
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that there was two days delay in lodging the report of the incident.
The delay has not been satisfactorily explained. The facts stated in
the report as well as in the cross-examination by the informant
clearly show that this report was the result of deliberation and, as
such, totally embellished. Learned advocate submitted that the
explanation putforth for delay in lodging the report is not sufficient
to satisfactorily explain the delay. It is fatal to the case of the
prosecution. It leaves scope to doubt the false implication of the
accused. Learned advocate submitted that the evidence of the
victim is vague. It is not sufficient to prove the charge against the
accused. Learned advocate took me through the evidence of the
informant and pointed out that, in her cross-examination, she has
admitted certain vital facts, and therefore, the very edifice of the
case of the prosecution has been shaken. Learned advocate
submitted that the evidence of the victim and the informant is not
sufficient to prove the charge against the accused. Learned advocate
submitted that the evidence of the Medical Officer is not sufficient
to corroborate the version of the informant and the victim. Learned
advocate submitted that the facts deposed before the Court by the
informant and the victim coupled with the delay in lodging the
report, are sufficient to create a grave suspicion about the case of
prosecution. Learned advocate submitted that the minimum
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sentence prescribed under Section 376-AB of the IPC and Section
6 of the POCSO Act is 20 years imprisonment. Learned advocate
submitted that such a severe punishment cannot be handed down
on the basis of such a vague and uncorroborated testimony of the
victim. Learned advocate submitted that the learned Special Judge
has failed to consider the relevant material, which supports the
defence of the appellant. Learned advocate submitted that the
evidence on record is not sufficient to prove the charge. Learned
advocate submitted that the evidence of the victim and her mother
(PW-2) does not inspire confidence.
07] Learned APP submitted that the victim was examined by
the doctor and the injury was found to her labia minora. It is
sufficient to prove that the accused had inserted his finger into the
vagina of the victim. Learned APP submitted that the parents of
the victim had no reason to involve their daughter in such an
incident, which invites stigmatic consequences for the future of the
victim as well as for the family. Learned APP submitted that the
delay in lodging the FIR has been properly explained. The
explanation is reasonable and, as such, it was accepted by the
learned Judge. Learned APP submitted that the incident, as
narrated by the victim, was reported to the police by the informant.
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Learned APP, in short, supported the judgment and order passed
by the learned Special Judge.
08] Learned advocate Ms. Falguni Badami appointed for
respondent No.2 has adopted the arguments advanced by the
learned APP.
09] In this case, the mother of the victim has stated that, on
the date of the incident, the victim was 9 years old. She was
studying in 3rd Standard. In her report, she has not stated the birth
date of the victim. The victim (PW-1), in her evidence, has stated
that she was studying in 3 rd Standard, and her birth date is
1st August, 2012. The Investigating Officer, during the course of
the investigation, obtained the birth certificate of the victim from
the Gram Panchayat, Gurudeonagar, Tq. Teosa, Dist. Amravati, on
1st December, 2020. The certified copy of the birth certificate was
issued from the Gram Panchayat on the basis of the record
maintained by the Gram Panchayat. The registration number of
the birth entry of the victim is '108'. It was registered on 31 st
August, 2012. In this certificate, the birth date of the victim is
recorded as '1st August, 2012'. It is seen that this evidence has not
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been challenged by the accused.
10] Perusal of the cross-examination of the witnesses on
behalf of the accused would show that neither the birth date of the
victim stated by the victim nor the birth certificate has been
challenged. The birth certificate produced on record is a public
document. The certified copy was prepared on the basis of the
record maintained by the Gram Panchayat. It was signed by the
Secretary of the Gram Panchayat, who is the public servant. This
public record attracts a presumption. It is also relevant and can be
considered in view of the provisions of Section 35 of the Indian
Evidence Act. This evidence, in my view, is sufficient to prove that,
on the date of the incident, the victim was 9 years old and, as such,
a child as defined under Section 2(1)(d) of the POCSO Act.
11] It is necessary to minutely appreciate the oral and
documentary evidence adduced by the prosecution to prove the
charge against the accused. There was two days delay in lodging the
report. The explanation has been placed on record for lodging the
report. It is, therefore, necessary to see whether the delay has been
satisfactorily explained on the basis of the said reason. PW-1 is the
victim. She has stated that Sonakshi, the daughter of the appellant,
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is her friend. She has stated that the name of Sonakshi's father is
Sharad. She calls him Sharad Kaka. She has stated that Sharad Kaka
removed her knickers. She has further stated that he put his hand
in the place of her urine. She has stated that thereafter she told this
incident to her mother. This is the only statement made by her in
her examination-in-chief. She has not stated that the accused had
inserted finger into her vagina. She has stated that the accused has
put his hand in the place of her urine. Her statement was recorded
under Section 164 of the Cr.PC. It is at Exh.40. The victim had
narrated the incident before the learned Magistrate. The incident
narrated by her while recording her statement is contrary to the
one narrated by her mother before the police. She has stated that
when she went to play at the house of Sonakshi, Sonakshi went to
drink water from the fridge. She has stated that, at that time, the
appellant took her towards the gas. The appellant put his hand in
her knickers and inserted his finger into her vagina. She has stated
that the appellant had repeatedly done such act with her. All these
facts have not been stated by her in her evidence before the Court.
She has also not stated that she was having pain. She has also not
stated about further enquiry made by her mother with her. She has
also not stated that her mother, on being apprised of the incident,
checked her private part. In her cross-examination, she has stated
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that she is not able to understand date, month, and year. In her
cross-examination, she has admitted that when the police aunty
recorded her statement, her relatives were present. She has stated
that while going to the Court for recording her statement, her
mother and police accompanied her. She has denied the suggestion
that she was tutored, and therefore, she made the statement against
the accused.
12] PW-2 is the informant. The oral report was lodged by
her on 27th November, 2020, at 19:10 hrs. The incident allegedly
occurred on 25th November, 2020, at 4:00 to 5:00 p.m. In her
report, the informant has stated that since she was in a disturbed
state of mind after hearing the incident from the victim and
therefore, on that day, they did not go to the police for lodging the
report. In her report, she has stated that after coming back to the
house from work, the victim complained that she had stomach ache
and was feeling pain while urinating. She has stated that on
enquiry, the victim narrated the incident to her. The victim is silent
in her evidence about any stomach pain or pain while urinating.
PW-2 informant, in her substantive evidence before the Court, has
stated that the victim told her that the appellant Sharad Kaka, had
tried to put his finger in the place of her urine. In her substantive
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evidence, she has not stated that the victim told her that the
accused inserted his finger into her vagina. She has stated that the
victim told her that she had pain at the place of her urine. She has
stated that, on that day, she was not feeling well, and therefore, the
report was not lodged. This statement is contradictory to the one
made in the report. In the report, she has stated that, on account of
the incident, she was in a disturbed state of mind and therefore, she
did not go to the police station. This witness was subjected to the
searching cross-examination.
13] Perusal of her cross-examination would show that the
answers given by her have caused more than enough damage to the
case of prosecution. It is evident, on perusal of her cross-
examination, that the informant has not only made the case of the
prosecution doubtful but also created a grave suspicion about the
implication of the accused in this crime. It is stated by the
informant that her daughter had complained of stomach pain and
the pain at the place of urine. She has stated that she did not take
the daughter to the doctor. She has stated that since the daughter
did not tell her anything about the stomach ache or pain in the
place of her urine, and therefore, she did not take her to the doctor.
She has further admitted that her daughter did not tell anything to
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her on that day and therefore, she did not go to the police station.
She has admitted that Mahadevrao Khadse is her relative, and he
knows about the police station and Court. She has stated that her
husband gave the information about the incident to the police, and
the police recorded the same. She has stated that her husband did
not read over her report to her and took her signature on it. She has
further admitted that the police did not make enquiry with her
daughter. She has stated that there is a police Patil in her village.
She has categorically admitted that there was discussion in her
house about the report given by her husband. She has stated that
the police did not record her statement on the day of lodging the
report. She has candidly admitted that she and her daughter gave a
statement consistent with the report given by her husband. She has
also stated that, as per the say of her husband, she gave the
evidence in Court. She has admitted that, as per the say of her
relatives, she gave evidence in Court. She has categorically
admitted that, on the date of the report in the police station, the
police did not confront the accused with her daughter. She has
stated that her entire deposition and her examination-in-chief is on
the say of her husband.
14] It is to be noted that this witness has given multiple
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admissions. The admissions given by her are the relevant facts. If
the witness gives solitary admission here and there, then it cannot
be read out of context. However, if the witness gives such vital
admissions, which have bearing on the issue before Court, then the
Court has to be very cautious and careful while appreciating the
evidence. In my view, perusal of the cross-examination of the
informant, the mother of the victim, is sufficient to create a grave
suspicion about the occurrence of the incident. There is major
inconsistency between the evidence of the victim and the evidence
of the informant. It has to be presumed that, on the date of the
report, the victim, though present with them, could not narrate the
incident to the police, and therefore, it was narrated by her mother.
The victim was referred to the doctor for medical examination. The
doctor has stated that the history of assault was narrated by the
victim. In my view, this further aggravates the problem of the
prosecution. The evidence of PW-2 (informant) is sufficient to
create a doubt about the occurrence of the incident. The
substantive evidence of the victim before Court is very vague. The
victim has not narrated all the facts, which have been narrated
relating to the incident by the informant before the Court. In my
view, in this background, the delay in lodging the report assumes
significance in this case.
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15] It is to be noted that the delay per se cannot be the
ground to reject the case of prosecution. However, if there is a
delay in lodging the report, then the delay must be satisfactorily
explained. The reason or explanation for delay putforth on the
scrutiny by the Court must be found to be sufficient. The prompt
lodging of the report in such a case may not be expected in all
cases. However, a long delay creates a doubt. The Hon'ble Apex
Court in the case of State of Rajasthan Vs. Om Prakash (2002) 5
SCC 745 has dealt with this point in great detail. The Hon'ble
Apex Court has observed that delay in lodging the first information
report quite often results in embellishment which is a creature of an
afterthought. On account of delay, the report not only gets bereft of
the advantage of spontaneity, danger creeps in of the introduction
of coloured version, exaggerated account or concocted story as a
result of deliberation and consultation.
16] In my view, in this case, the vital admissions given by the
informant in her cross-examination create a doubt about the
occurrence of the incident. The admissions given by the informant
in her cross-examination would show that she did not lodge the
report, but the report was lodged by her husband. The report was
not read over to her, and her signature was obtained on the same
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report by her husband. The husband of the informant has not been
examined in this case. In my view, therefore, in this case, the delay
is fatal to the case of prosecution.
17] The prosecution has relied upon the evidence of the
Medical Officer (PW-5), who had examined the victim on 28 th
November, 2020. The doctor has deposed that the history of
assault was narrated by the victim. The history of assault narrated
by the victim and recorded by the doctor would show that the
victim was comfortable in narrating the incident to the doctor. In
my view, in this context, the delay in lodging the report assumes
significance. From the date of the alleged incident, near about 48
hours had passed when the victim was examined by the doctor. By
that time, the victim was sufficiently tutored by the parents. The
doctor has stated that, on examination, he found the following
injury:
A] Linear laceration on labia minora on right side
near vulval oriface measuring 1 cm in length and pinkish
red in colour.
18] The doctor, in his examination-in-chief, has stated that
the injury to the victim could be possible due to fingering by the
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accused. He has stated that his findings persuaded him to opine
that the sexual violence on the victim could not be ruled out. The
cross-examination of the doctor needs careful perusal. He has
stated that the hymen of the victim was found intact. He has stated
that, in his certificate Exh.36, the injury to labia majora is not
mentioned. He has categorically admitted that, if there is any urinal
infection or any infection to the private part and if the patient
scratches the said part, then the injury stated in Exhs.35 and 36
could be possible. He has admitted that in Exhs.35 and 36, he has
not given a candid opinion. The doctor has not stated the age of
the injury. The victim has stated that she was having pain while
urinating. If this statement of the victim is believed, then it would
indicate that the fingering was deep. If there was a deep fingering,
then the hymen could have torn. There could have been injury to
labia majora as well.
19] The victim was examined on 28th November, 2020.
Whereas, the alleged incident occurred on 25 th November, 2020.
The doctor did not mention the age of the injury. Similarly, the
doctor has not stated that the pinkish red colour of the injury
noticed by him was suggestive of the fact that the injury was caused
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on 25th November, 2020. In my view, therefore, the evidence of
the doctor is also not sufficient to lend an assurance to the
testimony of the victim and her mother. The doctor has
categorically admitted that, in case of infection and scratching of
the private part, such injury is possible. I am of the view that the
evidence of the doctor is not per se sufficient to conclude that the
injury was caused due to insertion of finger.
20] It is to be noted that, in such a crime, the sympathy of
the Court is bound to be with the victim of a crime. However, the
conviction and sentence, in such a crime, cannot be based on a
sympathetic and moral consideration. The evidence adduced on
record must be sufficient to satisfy the occurrence of the incident
and the involvement of the accused in the incident. The law
provides a stringent punishment for an offence against the child.
The minimum punishment provided for such a proved offence is
20 years. It is to be noted that, considering the stringent provisions,
the prosecution has to prove the guilt of the accused beyond
reasonable doubt. The provisions of Sections 29 and 30 of the
POCSO Act have not diluted the fundamental principle of
criminal jurisprudence. The burden to prove the guilt of the
accused beyond reasonable doubt is on the prosecution. The
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prosecution must prove the guilt of the accused beyond reasonable
doubt. The principle further postulates that, if there is any doubt or
suspicion about the case of prosecution, then the benefit of the
same deserves to be given to the accused.
21] In order to invoke the presumption under Section 29 of
the POCSO Act, the prosecution, on the basis of the cogent,
concrete, and trustworthy evidence, has to establish the
foundational facts viz-a-viz the charge against the accused. The
presumption is not absolute. Even by this presumption, the
negative burden cannot be cast on the accused. The presumption is
rebuttable. The accused can be called upon to rebut the
presumption if the same presumption is triggered against him on
proof of the foundational facts.
22] In this case, the prosecution has miserably failed to prove
the guilt of the accused. The evidence of the victim and her mother
is not sufficient to prove the charge against the accused. The
evidence, on minute scrutiny and appreciation, is found to be
shaky and doubtful. Their evidence is not credible and trustworthy.
The accused has been sentenced to suffer 20 years rigorous
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imprisonment on two counts. In my view, in the teeth of the
evidence on record, it is not possible to sustain the conviction and
sentence of the appellant. Accordingly, the appeal deserves to be
allowed. Hence, the following order:
ORDER
i] The Criminal Appeal is allowed.
ii] The judgment and order of conviction and sentence of
the appellant/accused dated 11.05.2022, passed by the learned
Special Judge & Additional Sessions Judge-2, Amravati, in Special
Case No.05/2021, for the offences punishable under Section 376-
AB of the IPC and under Sections 4 and 6 of the POCSO Act, is
quashed and set aside.
iii] The appellant/accused - Sharad Mahadev Mankar is
acquitted of the offences punishable under Sections 376-AB of the
IPC and under Sections 4 and 6 of the POCSO Act.
iv] The appellant/accused is in jail. He be released
forthwith, if not required in any other case/crime.
v] The High Court Legal Services Sub-Committee, Nagpur,
shall pay the fees to the learned advocate appointed for respondent
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No.2, as per Rules.
vi] The Criminal Appeal stands disposed of in the above
terms.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 27/09/2024 18:32:37
