Bombay High Court
Raju S/O. Vishwanath Sable vs The State Of Maharashtra on 24 January, 2024
2024:BHC-AUG:1509
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 619 OF 2021
WITH
CRIMINAL APPLICATION NO. 760 OF 2022
Raju S/o. Vishwanath Sable,
Age : 54 years, Occu. : Labour,
R/o. Near Ambedkar Statue,
Satara Village, Tq. Aurangabad,
District Aurangabad. ... Appellant
(Orig. Accused)
Versus
The State of Maharashtra,
Through Police Station Officer,
Police Station Satara,
Tq. and Dist. Aurangabad. ... Respondent.
(Orig. Complainant)
...
Mr. P. S. Paranjape, Advocate for Appellant (Appointed through
Legal Aid).
Mr. N. D. Batule, APP for Respondent - State.
Mr. Vivek M. Lomte, Advocate for Respondent No.2 (Appointed
through Legal Aid).
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 16th JANUARY, 2024
PRONOUNCED ON : 24th JANUARY, 2024
JUDGMENT :
1. A convict for offence under sections 376(1), 323 of
Indian Penal Code (IPC) and for offence under sections 4 and 8 of
the Protection of Children from Sexual Offences Act, 2012 (POCSO
Act), is hereby questioning the judgment and order passed by
learned Additional Sessions Judge, Aurangabad dated 25.10.2018
in Special Case (POCSO) No. 46 of 2015.
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2. In brief, prosecution was launched against present
appellant, alleging that, informant had granddaughter aged 4
years. On 09.03.2015, around 2:30 p.m., she had left her
granddaughter victim with neighbour and she went to railway
station. Around 3:45 p.m., she received phone call and she was
urgently called by another neighbour Kantabai. When informant
reached, she learnt that, accused took her in a wada, offered one
Rupee and on the pretext of playing some game, took her to a toilet,
removed her undergarment, he inserted his finger in her vagina
and thereafter, he inserted male organ. When the child cried, he
closed her mouth. On hearing the occurrence, police was
approached and grandmother set law into motion vide report at
Exh.38, on the strength of which FIR was drawn vide Exh.39.
After investigation carried out by PW9 API Pushpa
Patil, accused was challaned and charge-sheeted. On explanation of
charge, he denied and so trial was undertaken. During which,
prosecution has adduced oral and documentary evidence. After
appreciating the evidence and on hearing submissions advanced by
both sides, learned trial Judge recorded conviction for above
offence and awarded sentence accordingly as spelt out in the
operative order. Hence the appeal.
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SUBMISSIONS
On behalf of appellant :
3. Learned counsel for appellant would point out that at
the outset, there is no trustworthy, reliable account of any of the
witness so as to accept the case of prosecution as proved.
According to him, here prosecution has deliberately not examined
material and crucial witnesses, like the immediate neighbour
Chandrabhan, the person namely Janardhan who allegedly
telephoned and called complainant. Informant has apparently
lodged complaint on hearsay information. He further submitted
that, considering the age of the victim, it is difficult to believe that
she could knew the phraseology and words used regarding
commission of offence. Thus, he submits that it is a clear case of
tutoring. According to him, only immediate neighbours, who were
friends of informant are examined. Thus, except interested
witnesses, there is no other independent evidence regarding the
occurrence. Learned advocate submits that, there is false
implication and according to him medical evidence itself is
inconsistent. He questions the sustainability of the judgment as
according to him there is improper appreciation of evidence and
law.
On behalf of State :
4. In answer to above, learned APP would strenuously
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submit that, accused had ravished a minor of about four years of
age. He took her to the washroom on the pretext of playing some
game. But, in fact it was a dirty game. He has committed sexual
offence and victim has narrated the acts and he indulged into by
leveling her. Victim is examined. There is prompt reporting by the
informant - grandmother. Immediate neighbours, who had seen
accused, called informant and she rushed home. That, after
hearing from the victim, police authority has been promptly
approached and matter is reported. He pointed out that, medical
examination was got done. Examining Medical experts have
stepped into the witness box and has confirmed the assault and
rape. Therefore, there is convincing and reliable evidence. All
charges are proved through victim, informant, her grandmother,
immediate neighbours and they have all withstood extensive cross
without getting shaken and resultantly learned trial court has
rightly convicted the appellant. According to him, there is correct
appreciation of oral and documentary evidence and that no fault
could be found in the findings reached at and consequently he
prays to dismiss the appeal for want of merits.
5. In support of its case, prosecution has examined
following witnesses:-
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PW1 Informant; PW2 Victim; PW3 Deepali, panch to
seizure of clothes of victim; PW4 Navnath, pancha to seizure of
clothes of accused; PW5 Dr. Daksha Bilagi, who examined noted
history and conducted medical examination and issued opinion/
report at Exh.61 and 62, respectively; PW6 and PW7 Kantabai,
neighbours of informant and victim; PW8 Santosh, panch to spot
panchanama (Exh.77); PW9 API Pushpa Patil, Investigating
Officer, who took victim to the hospital and in whose presence
statement of victim was recorded; PW10 Dr. Sushin Waghmare
another doctor, who examined victim, conducted ossification test
and issued opinion at Exh.102.
6. As this is first appellate court, which exercises powers
under section 374 of Cr.P.C., it is incumbent upon this court to re-
examine, re-appreciate and re-analyze the evidence adduced by the
prosecution in its entirety to ascertain whether prosecution
established its case beyond reasonable doubt and whether
judgment of trial court is legally maintainable and sustainable or
not.
7. Here, the record shows that, appellant was made to
face charge (Exh.8) for commission of offence under sections
376(1), 323 of IPC and for offence under sections 8 read with 7
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and section 4 read with 3 of POCSO Act. The provisions under
these sections are as under :-
"Section 376(1) of IPC :
376. Punishment for rape.
(1) Whoever, except in the cases provided for in sub-
section (2), commits rape, shall be punished with
rigorous imprisonment of either description for a term
which [shall not be less than ten years, but which may
extend to imprisonment for life, and shall also be liable
to fine].
Section 4 and 8 of POCSO Act :
4. Punishment for penetrative sexual assault
[(1)] Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than [ten years] but which
may extend to imprisonment for life, and shall also be
liable to fine.
[(2) Whoever commits penetrative sexual assault on a
child below sixteen years of age shall be punished with
imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of
natural life of that person, and shall also be liable to
fine.
(3) The fine imposed under sub-section (1) shall be just
and reasonable and paid to the victim to meet the medical
expenses and rehabilitation of such victim.]
8. Punishment for sexual assault.-
Whoever, commits sexual assault, shall be punished with
imprisonment of either description for a term which shall
not be less than three years but which may extend to five
years, and shall also be liable to fine."
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8. Going by the story of the prosecution, admittedly, it
revolves entirely around the evidence of informant-grandmother
(PW1) and victim (PW2), who was reported to be around 4 years of
age. Testimony of informant her grandmother shows that, victim
lost her father, who was her nephew. Wife of his nephew i.e. mother
of victim seems to have abandon victim barely at the age of 9
months and since then she was cared and looked after by PW1
grandmother.
9. This witness PW1 in her testimony, at Exh.26 in
paragraph 2 has stated that, on 09.03.2015 around 2:30 p.m. as
she was go to railway station, she handed over custody of the
victim to her neighbour Chandrabhan Salve. She claims that,
around 3:45 p.m., she received phone call from one Janardhan,
asking her to return urgently and also her immediate neighbour
Kantabai informed her on phone call that, victim granddaughter
was found in the company of accused in a toilet. Therefore, when
she returned home and interacted with victim, she found to be
scared and on being asked, victim allegedly told her "baba ala ani
vicharle tuzi aai kuthe geli". She replied "mazi aai kamala geli".
She further told this witness that accused offered her one rupee
and thereafter accused told her to enter the wada from beneath the
gate. He again offered her one rupee and said to her that they
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should play game of ***** and she told her that he took her to the
toilet, made her lie down, removed her undergarment and inserted
his finger in her vagina. Thereafter, he again inserted his penis.
When she cried out of pain, he closed her mouth causing injury to
her lips.
10. According to informant, one Alkabai, who was standing
on the terrace of the adjacent house had witnessed the incident
and has raised alarm and people gathered and assaulted accused.
She further deposed that, Chandrabhan is her neighbour and he
had kept a cot near the gate when accused had came there.
Chandrabhan asked the accused, who disclosed his name as Raju
Sable. There was conversation between Chandrabhan and accused,
who sat on the cot and this witness left victim with Chandrabhan.
Thereafter she took the victim to hospital along with the Gaikwad
madam. Doctor conducted medical examination and thereafter she
approached police station lodged report (Exh.38) and caused
signature on FIR at Exh.39.
11. Thereafter, she handed over clothes of victim to the
police on 10.03.2015. She again gave supplementary statement on
11.03.2015, handed over death certificate of father and family
photo. According to her, at the time of incident, victim was four
years of age. Her statement was recorded in the court. Witness has
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identified accused in the court.
12. While under cross, initially there are questions about
her native, legal heirs. Relevant cross in para 2, wherein she was
asked at what time she proceeded towards railway station and how
much time to reach back and at what time she went to police. She
flatly denied that, Chandrabhan narrated the incident to police.
Suggestions to her that accused had brought her to Aurangabad,
25 years back, accused conducting Jagaran for his livelihood, she
borrowing loan of Rs 10,000/- for construction and on second time
there was demanding further loan of Rs.5,000/- and about accused
a victim of cancer and having no source of income, are all denied by
her.
13. The crucial witness victim is also examined at Exh.45.
After preliminary verification about competence to be deposed,
learned trial court seems to have recorded testimony. On going
through the same, she is found to have deposed that, accused Baba
is present in the court. When she was playing with brother
Langada baba was sitting on the cot. He had inquired about her
mother and according to her, she told him that her mother is out of
station. He told her that he would give her money, took her to their
toilet, took out his penis and her pantee and inserted his finger in
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her genitals. When she cried he pressed her mouth, as a result of
which she suffered injury on her lips. Hearing her cries, people
gathered there. She narrated incident to her mother (informant)
and police made inquiry with her.
In her cross, she answered that, she was studying in
Balwadi and she attended school on the day of incident. She
replied that, she was taught counting and Marathi alphabets. She
also counted from 1 to 10. She answered that, there are in all 10
children and that she is the most intelligent amongst them and to
learn whatever is taught. She denied being taught by police aunty.
She answered that whatever had taken place, she has been
narrated accordingly. She further flatly denied that she was
tutored by mother and APP. In further cross she answered that,
accused baba was residing behind her house and she had seen him
many times, but she cannot named him. She is also unable to give
the name of the lady, who took her after the incident. Rest are all
denial.
14. Now, it is necessary to be seen as to whether as claimed
by prosecution in the trial court and learned APP before this court
that, there is medical evidence also lending support to the version
of victim.
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15. PW5 Dr. Daksha Bilagi seems to be the doctor, who is
examined at Exh.59, who had occasion to examine victim on being
brought by Gaikwad. After completing the formalities of getting
consent from grandmother, this medical expert deposed that, she
noted the history narrated by the victim herself, whereas time and
place told by grandmother. Doctor deposed about reducing history
in writing and conducted medical examination of the victim, during
which she claims to have noticed mucosal injury on lower lip
admeasuring 3 mm and on examination of genitals, she noticed old
healed tear at 6:00 'O' clock position. Dr. further deposed that from
the history and clinical examinations, findings are suggestive of
vaginal penetration. She collected samples and issued a report and
certificate (Exh.61 and 62).
16. Medical expert is also subjected to cross examination,
wherein she given the timing of examination of victim and named
the staff accompanying her. She flatly denied history to be given
and narrated by grandmother. She answered that, such type of
injuries are possible on account of fall on stone and injuries on the
person of the victim like abrasions are also possible on account of
fall on stone. She denied having issued report and opinion on the
basis of history and false report being prepared.
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17. Prosecution also seems to have come with a case of
availability of direct eye witness i.e. immediate neighbour. Said
witness is PW6, who in her evidence at Exh.74 testified that
informant resides behind her house and that victim was her
granddaughter. According to her, on that day, she had been to the
terrace to collect wheat and that time she saw accused taking
victim by bending below the gate and he himself entered the house
of informant by climbing over the gate. He took her to the toilet.
Witness claims that, she went ahead and saw accused sexually
assaulted victim and therefore, she raised alarm. That time,
Kantabai, Janardhan, Manisha and public gathered there and
accused and victim were taken out of the toilet. Accused was
beaten, but he managed to escape. She further deposed that,
informant was not present. Kantabai called and informed her
about the incident.
Above witness is also subjected to cross, wherein she
answered that, there is wall between house of complainant and her
sister. That, house were adjacent to each other. House of informant
is constructed with slab and mud. There is slab over the toilet of
informant, but there is no door and the toilet was facing towards
south. Rest are all denials.
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18. Similarly PW7 Kantabai also a neighbour deposed
about hearing shouts of PW6 and they all going to the house of
informant. Accused had sexually assaulted victim in the toilet and
they were taken out from the toilet. People assaulted accused.
According to her she told one Kiran More to inform informant and
he connected phone call and she herself talked, narrated the
incident, when she reached she also identified accused.
In cross, she is also questioned about her literacy,
residence, its geographical direction of house of informant, toilet,
age of victim. She answered that accused was residing 1 to 2 lane
from her house. Rest is all denial.
19. PW3 Deepali and PW4 Navnath are panchas to seizure
of clothes of victim and accused respectively; PW8 Santosh is
panch to spot panchanama; PW9 API Pushpa Patil is the
Investigating Officer; PW10 Dr. Sushin Waghmare is the forensic
expert, who conducted ossification test and issued report
(Exh.101), opined that, victim was between 2 to 4 years of age
including margin.
ANALYSIS
20. On re-examination, re-appreciation and on critical
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analysis of above discussed evidence, victim is reported to be four
and half years of age at the time of incident. Victim is a student and
she herself in her evidence stated about studying in Balwadi.
Admittedly, having lost her parents and being looked after by
grandmother, there are reasons for non availability of information
about date of birth of victim. However, by examining PW10
Dr.Sushin Waghmare, who conducted ossification test, age of
victim is in the range of 2 to 4 years including margin permissible
under law. Trial court, who recorded evidence also got itself
satisfied and recorded her version. There is absolutely no serious
cross regarding age and not attempts are made to render it
doubtful.
On the contrary, submissions advanced before this
court by learned counsel for appellant that considering the age of
the victim, it is difficult to accept that she could use the words
regarding sexual act to which she was subjected to by accused.
Suggestions are also given in the trial court about she being
tutored. Therefore, taking such material into consideration, there
does not seem to be any challenge that victim was not around 4
years of age and hence, it can safely be held that at the time of
incident, victim was a child below 12 years of age.
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21. As regards to occurrence is concerned, here,
prosecution has adduced evidence of informant, who is
grandmother of victim. Her evidence is about she leaving house to
go to the railway station on that day, by handing over custody of
her granddaughter victim to one Chandrabhan i.e. her neighbour.
No doubt, Chandrabhan has not been examined, but in the light of
evidence of grandmother, very victim herself, non examination of
Chandrabhan cannot be termed as fatal. PW6 and PW7 Kantabai,
who are immediate neighbours are also lending support about
informant PW1 to be out of the house.
Victim has in her testimony categorically narrated the
acts indulged into by accused, who took her in her own toilet,
removed his male organ, removed her undergarment, made her lie
down and inserted both finger as well as his male organ.
PW6 immediate neighbour has deposed about seeing
accused taking victim towards the toilet and indulging into
committing sexual assault and she has raised alarm attracting
others. PW7 Kantabai also claims about hearing shouts of PW6 and
then going out and seeing accused with the victim in the toilet and
they being taken out and accused being beaten by public. Accused
after giving thrashing was required to be admitted and there is
medical evidence to that extent also.
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22. Therefore, taking above discussed evidence of PW1
informant, PW2 victim, PW5 doctor, who examined victim and
issued report and injury certificate giving clearly deposing about
history being narrated by victim herself, and on examination
issuing opinion about accused putting his finger inside vagina and
took his penis towards her vagina and therefore, she has deposed
about clinical examination finding suggestive of vaginal
penetration, clearly suggests that offence as alleged has been
committed.
23. Criticism made before this court that, material
witnesses like Chandrabhan and Janardhan, who are named by
informant are not examined. There is no force in above
submission. In the opinion of this court, prosecution is entitled to
adduce evidence of only those witnesses, to whom prosecution feels
to be necessary. It is the discretion of the prosecution to lead only
as much evidence as is necessary in proving the charge. When
occurrence is getting unfolded from examined witnesses,
prosecution is not bound to examine all witnesses, whose names
are appearing in statements and testimonies of witnesses. It is the
quality that matters and not quantity. Law is fairly settled that,
the time honoured principle is that evidence has to be weighed and
not counted. Law to that extent has been expounded in the case of
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Amar Singh v. The State (NCT of Delhi) and Inderjeet Singh v. The
State (NCT of Delhi), (2020) 19 SCC 165.
Very recently also, law to that extent is propounded in
the judgment of Ajai @ Ajju v. State of U.P., (Criminal Appeal 598-
600 of 2013), MANU/SC/0127/2023.
Here, in the light of nature of accusations, evidence of
PW1 informant, PW2 victim, PW5 medical expert is of significance.
Moreover, PW6 and PW7 independent witnesses, who are
neighbours have lend support to the prosecution story. Therefore,
there is corroboration from independent corners. There is no
reason for false implication as both informant as well as victim
have flatly denied suggestions regarding annoyance of informant
for loan amount not being extended and victim too flatly denied
that she was tutored by informant and APP. Therefore, no
substance in above submissions.
24. Another criticism made before this court is that, there
is old tear of hymen as per doctor. Even such submission would not
come to the rescue of accused to get himself exonerated as medical
expert has noticed fresh injury to the lip. Victim categorically
stated that when she raised cries, accused forcibly shut her mouth.
The injury is within 24 hours. Doctor has noticed abrasions. Such
injuries are relatable to the occurrence. Victim categorically stated
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about he inserting finger in her vagina and even penetrating his
penis. Law is fairly settled that even partial penetration amounts
to commission of rape. There is insertion of finger as well as male
organ and therefore, offence is complete in legal parlance.
25. Learned counsel also questioned the credibility of PW6
by pointing out that, it is doubtful whether she had any visibility to
see the occurrence. This witness has categorically stated about she
too be on the terrace and he has narrated the sequence about
accused taking victim and asking her to bend beneath the gate and
he himself climbing over the gate and taking victim to the toilet
and seeing his acts, she has raised alarm. In cross, she has
categorically given the exact location of her house, distance of
house of informant, its geographical direction and geographical
directions of the toilet, which is a spot. Witness speaks about toilet
having no door and there is no serious challenge. Taking all such
circumstances into consideration, there should not be any issue
about visibility or doubt about any occasion for witness to see
accused taking victim to the toilet.
26. Learned counsel for victim raised a concern about
quantum of sentence awarded by trial Judge, according to him,
once offence was made out, higher sentence ought to have been
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inflicted. Such submissions were objected by learned counsel for
the appellant by pointing out that neither State nor victim has
preferred distinct proceedings for enhancing sentence. Therefore
there is no force in such submission. No such distinct proceedings
are apparently initiated, and therefore, it is not open for this court
to deal with such submission.
27. Learned counsel for victim also impressed upon this
court that, the learned trial Judge has not granted any
compensation under section 357-A of Cr.P.C. On going through the
impugned judgment under change, more particularity the
operative part as pointed out, apparently there are no directions or
order to compensate victim by invoking section 357-A of Cr.P.C.
28. In a case Suresh and another v. State of Haryana ;
(2015) 2 SCC 227, the Hon'ble Apex Court has expected
scrupulous compliance of granting compensation under Section
357-A of Cr.P.C. in deserving cases, even including in cases of
acquittal.
29. For above reasons, we find it a fit case to compensate
victim herein as she has been deprived from the compensation.
Therefore, directions to that extent are required to be issued to the
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District Legal Services Authority (DLSA), Aurangabad to conduct
thorough enquiry of the current status of the victim, her family
background and on due satisfaction take steps to grant adequate
compensation as permissible under the rules. Hence, I proceed to
pass the following order:-
ORDER
(i) The criminal appeal is dismissed.
(ii) The District Legal Services Authority, Aurangabad to
undertake enquiry as directed in para 29 and take effective steps
to grant adequate compensation to victim as permissible under the
rules and law.
(iii) Registrar (Judicial) to send copy of this judgment and
record and proceeding immediately to District Legal Services
Authority, Aurangabad.
(iv) In view of disposal of the appeal itself, Criminal
Application No.760 of 2022 does not survive and it is accordingly
disposed of.
(ABHAY S. WAGHWASE, J.)
Tandale
