Bombay High Court
Kunal @ Khandu S/O. Pandurang Gaikwad vs The State Of Maharashtra on 17 January, 2024
2024:BHC-AUG:915
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 925 OF 2019
WITH
CRIMINAL APPLICATION NO. 937 OF 2022
IN CRIMINAL APPEAL NO. 925 OF 2019
Ananda s/o Mahadu Sawant,
Age - 33 years, Occu - Agril.,
R/o Gortha, Taluka Umri,
District Nanded. ... Appellant
[Orig. Accused No.1]
Versus
1. The State of Maharashtra
Through Umri Police Station,
Taluka Umri, District Nanded.
2. XYZ ... Respondents
WITH
CRIMINAL APPEAL NO. 844 OF 2019
WITH
CRIMINAL APPLICATION NO. 375 OF 2021
IN CRIMINAL APPEAL NO. 844 OF 2019
Kunal @ Khandu s/o Pandurang Gaikwad,
Age : 21 years, Occ : Painter,
R/o Venkatesh Nagar, Umri,
Taluka Umri, District Nanded. ... Appellant
[Orig. Accused No.2]
Versus
1. The State of Maharashtra
Through the Police Station Officer,
Umri Police Station,
District Nanded.
2. XYZ ... Respondent
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.....
Mr. A. M. Gaikwad, Advocate for the Appellant in Criminal Appeal
No. 925 of 2019.
Ms. Rekha Choudhari h/f Mr. S. S. Choudhari, Advocate for the
Appellant in Criminal Appeal No. 844 of 2019.
Mr. S. M. Ganachari, Advocate for Respondent No.1-State in both
appeals.
Ms. Namita P. Thole, Advocate (appointed) for Respondent No.2 in
both appeals.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 12.01.2024
Pronounced on : 17.01.2024
JUDGMENT :
1. Feeling aggrieved by the judgment and order of conviction
passed by learned Additional Sessions Judge, Bhokar in Special Case
[POCSO] No. 3/2019 recording guilt for commission of offence
punishable under Sections 376(2)(i), 376-D, 452, 506 r/w 34 of the
Indian Penal Code [IPC], Section 6 of the Protection of Children from
Sexual Offences Ace, 2012 [POCSO Act], both convicts have preferred
above two separate appeals.
As both the appeals have been heard by this court and
answered by learned APP on the same day, they are decided by this
common judgment.
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2. Umri police station registered crime bearing no. 195/2018 on
the strength of report filed by victim PW1 alleging that she resides
with her mother. That, on 26.11.2018 when she and her mother were
sleeping in their house, around 1.00 a.m. there was knock on their
door. The door was forcibly pushed thereby breaking the chain. Three
persons entered the house, one of them placed knife on the neck of
her mother and took her in another room and accused no.1 Ananda
after making her fall on the bed, forcibly raped her. Then he went
towards her mother and other one i.e. accused no.2 came and after
him accused no.3 came and raped her. Around 4.00 a.m. those
persons went out of the house. Victim and her mother approached
police and victim lodged report Exhibit 15.
3. Investigation was entrusted to PW7 SDPO Deshpande who took
all steps like arresting accused, drawing various panchanamas; victim
was subjected to medical examination; medical papers were gathered
and made of part of chargesheet. After gathering sufficient evidence,
challan was filed and all three accused were tried by learned
Additional Sessions Judge, who held case of prosecution as proved as
against accused nos. 1 and 2, i.e. present appellants, and recorded
guilt as stated above.
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Said judgment is now taken exception to by filing instant
appeals by invoking Section 374 of the Code of Criminal Procedure
[Cr.P.C.].
4. Mr. A. M. Gaikwad, learned counsel representing accused no.1
Ananda would submit that at the outset prosecution had failed to
establish that victim was child as per the definition under the POCSO
Act. That, though it was claimed that victim was 16 years of age, he
would submit that the proof adduced by prosecution in support of age
was mere school extract which was prepared on the strength of
Transfer Certificate [TC] of earlier school. According to him, such
document has no evidentiary value. According to him, the Hon'ble
Apex Court in the case of P. Yuvaprakash v. State 2023 LiveLaw (SC)
538 held that prosecution has to establish the age by adducing, firstly,
'date of birth certificate from the school', or 'matriculation or
equivalent certificate from concerned examination board', if available,
and in absence of it, 'birth certificate issued by corporation, municipal
authority or Panchayat' and only in absence of above modes, age has
to be determined by subjecting victim to ossification test. Here,
according to him, none of the above requirements were fulfilled and
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therefore, it is his submission that, prosecution has utterly failed to
establish that victim was minor and hence it is his submission that
there cannot be conviction under the provisions of POCSO Act.
5 He next submitted that though prosecution examined in all 8
witnesses, evidence of victim, her mother and the school Headmaster
was relevant. He pointed out that both, victim and her mother, are
inconsistent and not corroborating each other. Further according to
him, there is no proper identification. Investigating machinery has
confronted photograph of arrested accused. He pointed out that
accusations are made that there was forced entry by breaking chain of
the door but there is no evidence to that extent and spot panchanama
is silent in that regard. He further pointed out that in spite of alleged
incident taking place between 1.00 a.m. to 4.00 a.m., complaint is
lodged after almost 5 to 6 hours and the so called delay is not
explained. He further pointed out that there is evidence suggesting
mother of victim to be involved in prostitution and therefore
possibility of false implication cannot be ruled out. Further he pointed
out that in spite of rape being committed by three persons, there are
no injuries and even medical expert has not issued final opinion.
Therefore, such crucial aspects were fatal for prosecution. CA report is
also negative and resultantly it is his submission that learned trial
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court ought not to have accepted the case of prosecution and further
convicted the appellants.
6. Learned counsel Mr. Rekha Choudhari h/f Mr. S. S. Choudhari
for appellant Kunal adopted the above submissions advanced by
learned counsel Mr. A. M. Gaikwad.
7. Per contra, learned APP for State pointed out that victim was a
minor. School authority was examined who had carried original
register and had placed on record its extract. Therefore victim was
proved to be a minor. Further according to him, after forced entry, by
use of knife, threats were issued to mother and in her presence her
daughter was raped by three men including present accused. That, it
was a serious and heinous crime committed on a minor. Both, victim
as well as her mother have deposed accordingly and they are
consistent and corroborating each other on material count. Their
evidence has remained unshaken on the actual act of rape. Learned
APP pointed out that there was no possibility of injury as rape was
committed on knife point and victim was made helpless. Further
according to him, mere absence of injuries on the person of victim
would not negate the fact of rape. He lastly submitted that available
evidence has been rightly appreciated by learned trial Judge and
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conviction has been correctly recorded. Hence, for want of merits, he
prays to dismiss the appeal.
8. Learned counsel appointed to represent the victim would also
resist the appeal by pointing out that there is cogent, reliable evidence
of victim to be minor; she was raped in the house and she named and
identified both appellants. Therefore, according to her, they are
rightly convicted and even she prays to dismiss the appeal.
9. It seems that prosecution in trial court has adduced evidence of
following 8 witnesses:
PW1 Victim.
PW2 Jagdish acted as pancha to spot panchanama Exhibit 21 and
seizure of clothes of accused vide panchanama Exhibits 22,
23 and 24. He also acted as pancha to memorandum of
disclosure and recovery of knife (Exhibits 25 and 26) at the
instance of accused no.1 Ananda
PW3 Mother of victim.
PW4 Dr. Chavan, who examined victim as well as all three
accused.
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PW5 Police Naik Wanole acted as carrier.
PW6 Bhimrao is pancha to seizure of clothes of victim vide Exhibit
43.
PW7 SDPO Deshpande is the Investigating Officer [IO].
PW8 Headmaster.
10. On hearing above submissions, at the threshold this court is
required to deal with the issue of age raised before this court. It seems
that such issue was not at all raised in the trial court and there is no
suggestion even for the namesake regarding minority of the victim. Be
it so. Here, admittedly school authority i.e. the Headmaster has been
examined as PW8. He claimed that on request from police, he was
carrying admission register and its extract in the court. He stated that
as per the register of admission, date of birth of victim is 08.01.2014.
He further stated that date of birth of victim on admission register
extract and the copy of school admission extract reflects the same age.
In cross, to a suggestion he has answered and admitted that
they use to take entry of date of birth of any child after perusing the
date of birth recorded by Grampanchayat or Nagar Parishad. He
further deposed that date of birth of victim is mentioned in their
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register on the basis of date of birth mentioned in the TC of other
school.
11. On analyzing above testimony, it is emerging that this witness
has brought only original admission register wherein date of birth was
noted as 08.01.2014. His testimony shows that he was not called
upon to produce birth certificate tendered in the school. Investigating
machinery is therefore to be blamed for not asking this witness to
bring the birth certificate. Even Investigating Officer himself, on he
own, does not seem to have gathered the birth certificate issued by
Grampanchayat. It is to be noted that in cross on being questioned by
accused, PW8 Headmaster has admitted that there is practice of
taking entry of date of birth on perusing date of birth recorded by the
Grampanchayat. Therefore, with such answer, it can safely be inferred
that date of birth was noted on the basis of certificate issued by
Grampanchayat. However, the same has not been brought because
this witness has carried only school register as requested by police
machinery. Therefore, above submission by learned counsel for the
appellants cannot be straightway accepted that there is no evidence
about date of birth and that documents as spelt out by Hon'ble Apex
Court in the above ruling P. Yuvaprakash (supra) not being available,
it cannot be said that age of victim has been proved.
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12. On carefully going through the evidence of victim PW1 at
Exhibit 14, it is emerging that on the night when she was sleeping
with her mother, around 1.00 a.m., on hearing knock on the door she
and her mother woke up. She speaks about door being pushed open
by breaking the chain. She has categorically stated that three persons
entered. That, when she and her mother made attempt to shout, at
that time accused kept knife on the throat of her mother and was
taken in another room and thereafter accused Ananda pushed her on
the cot, disrobed her and committed rape on her. Thereafter accused
Kunal and third accused took turns to rape her. She identified the
accused Ananda and Kunal in court.
In initial cross, she is questioned about her father, maternal
uncles and that they were insisting them to come and stay at their
village Narwat after she lost her father. Then she is questioned about
locality and surrounding houses. There are questions about railway
track passing near their house. She flatly denied that if one talks in
her house then the talk is easily heard in the neighbourhood.
Omission is brought only to the extent that accused Ananda slept on
her person and committed rape; that thereafter Kunal had come; and
lastly, Ananda had gone out of the house.
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13. PW3 mother has also stated that at mid night around 1.00 a.m.
there was knock on the door and they woke up. That, their house
door was broke open by applying pressure and entry was forced by
three persons. Further she stated that accused Ananda kept knife on
her neck and took her to another room; thereafter accused Kunal
came and kept knife on on her throad and thereafter Ananda, by
removing clothes of her daughter, committed sexual intercourse; then
Ananda came to her room and accused Kunal went in the adjoining
room and he also committed sexual intercourse; thereafter third
person also committed sexual intercourse with her daughter; accused
threatened to kill them if they report it to anyone; and those three
persons left their house around 04.00 a.m. She further stated that she
contacted her brother on phone. Thereafter they approached police.
Even she identified accused Ananda and Kunal sitting in the court.
On carefully going through the above cross faced by this
witness, omission is brought to the extent that accused Ananda, Kunal
and Shubham committed forceful sexual intercourse with victim one
after the other. Then she is questioned about locality, her
acquaintances and she flatly denied about complaint being made to
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the Collector that she is running prostitution business. She admitted
that since 4.00 a.m. to 9.00 a.m., she did not disclose the incident to
anybody. In cross at the hands of learned counsel for accused no.2,
she has answered that there is police colony in front of her house and
Tahsil office and Court are situated at a short distance. That, there
use to be traffic on the road. That, all the families in the vicinity were
having visiting terms with her house. Further, omissions are brought
regarding accused breaking chain of the door, Kunal keeping knife on
her throat and accused Ananda coming and accused Kunal going to
commit sexual intercourse. She admitted that alleged incident of rape
was committed in another room and she was present in different
room and that she had not actually seen the incident with her own
eyes.
14. Medical expert who had occasion to examine the victim is PW4
(Dr. Dhavan) and this doctor has stated that history was given about
three persons entering the house around 01.00 a.m. on 26.11.2018
and by issuing threat to life with sharp object, there was demand of
sexual intercourse. This witness stated that after examination of
victim, his overall findings are consistent with sexual
intercourse/assault. He further deposed that final report was kept
pending for receipt of CA report. He also examined three accused on
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27.11.2018 and opined that it cannot be refuted nor confirmed that
accused persons were unable to perform sexual intercourse.
In cross, medical expert has admitted that ossification test of
victim was not done. That, names of accused were not disclosed
during recording history and that he did not notice injury on the body
of victim. He admitted that final report was kept pending till receipt
of CA report and after receiving CA report, final report has not been
obtained by IO till date and he has not issued the final report.
15. On re-analyzing the above evidence of victim and her mother,
it is noticed that both, victim and her mother, are lending support to
each other. They were together sleeping when entry was forced by
accused. They both are consistent about knife being used to threaten
them. PW3 mother seems to have been taken in another room and
victim was raped by all three whom she has named. Both, victim and
her mother have identified accused-appellants in the court for taking
turns in raping victim. Though they are subjected to cross, their
evidence to the extent of commission of rape has remained untouched
and unshaken.
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16. No doubt medical expert has not noticed any injuries, but it is
fairly settled legal position that in case of rape, non-appearance of
injury is insignificant. Law to this extent has been dealt and discussed
in numerous judgments including Gurucharan Singh v. State of
Haryana, AIR 1972 SC 2661 ; Krishan Lal v. State of Haryana, AIR
1980 SC 1252 ; State of Rajasthan v. N.K., (2000) 5 SCC 30 ;
Narayanamma (Kum) v. State of Karnataka and Others,1994 (5) SCC
728 ; State of Rajasthan v. Shri Narayan, (1992) 3 SCC 615 and
Devinder Singh and others v. State of Himachal Pradesh, (2003) 11
SCC 488. In Gurucharan Singh (supra) the Hon'ble Apex Court has
observed that "absence of injury or mark of violence on the private
parts or elsewhere on the person of the prosecutrix is of no
consequence when the prosecutrix is minor and would merely
suggest want of violent resistance on the part of the prosecutrix."
Moreover, in the instant case when victim and her mother both
are categorical about knife being used to threaten and terrorize, there
is least possibility of resistance being put. Further, it is pertinent to
note that medical expert has very categorically stated in his
examination-in-chief itself that on examination of the victim his
overall findings were consistent with sexual intercourse/assault.
Therefore, taking into consideration such evidence of medical expert
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coupled with evidence of victim and her mother as discussed above,
there is no hesitation to hold that prosecution has established that
victim was a minor and was sexually ravished.
17. Therefore there is overwhelming evidence against appellants.
Such evidence has been rightly appreciated and guilt has been
correctly recorded. No case is made out on merits. No perversity is
brought to the notice of this court so as to interfere. Hence, I proceed
to pass the following order:
ORDER
I. Both the appeals are hereby dismissed.
II. Pending applications does not survive and the same also stand
disposed off.
III. Fees of the counsel appointed to represent respondent no.2 is
quantified at Rs.10,000/- to be paid by the High Court Legal
Services Sub-Committee, Aurangabad.
[ABHAY S. WAGHWASE, J.]
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