Bombay High Court
Vikas Jalindar Chavan vs The State Of Maharashtra on 25 January, 2024
2024:BHC-AUG:1642
{1} CRI APPEAL 875 OF 2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 875 OF 2019
. Vikas Jalindar Chavan
Age: 25 years, Occu.: Nil,
R/o. Labde Vasti, Belapur Road,
Ward No.7, Shrirampur,
Tq.Shrirampur,
Dist.Ahmednagar ....Appellant
Versus
1. The State Of Maharashtra
2. X.Y.Z. .....Respondents
.....
Advocate for Appellant : Mr.K.B.Jadhav h/f. Mr.A.D.Sugdare
APP for Respondent no.1 : Mr.S.M.Ganachari
Advocate for Respondent no.2 : Mr.Nagarsoge Sahebrao A.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 18 JANUARY, 2024
PRONOUNCED ON : 25 JANUARY, 2024
JUDGMENT :
-
1. This appeal arises out of judgment and order of conviction
passed by learned Additional Sessions Judge, Shrirampur, Dist.
Ahmednagar in Special Sessions Case No.16 of 2018 on 01-04-2019
holding present appellant guilty for commission of offence under
Section 450 of the Indian Penal Code (IPC), Section 5(j) (ii) r/w
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Section 6 of the Protection of Children from Sexual Offences Act
(POCSO Act) and Section 376(1)(2)(n) of the IPC.
BRIEF CASE OF PROSECUTION
2. Shrirampur Police registered complaint and finally
chargesheeted accused Vikas alleging that in the month of February
2018 at around 10:30 a.m. while victim aged between 16 to 17 years
was alone in the house, accused entered the house and demanded
water, when victim went inside, he followed her, initially
embarrassed her and thereafter, on issuing threats to kill her parents,
bolted the door, made her lie down on cot, undressed her, himself got
undressed and had forcible sexual intercourse. Taking disadvantage,
he second time entered the house and this time threatened to create
obstruction in her marriage and again committed forcible sexual
intercourse. When her menses stopped, she was taken to the Doctor
and on examination, she was revealed to be pregnant and on being
questioned by her mother, she disclosed about forcible sexual
intercourse by accused and therefore, report to that extent was
lodged at Shrirampur Police Station, on the strength of which crime
no.264 of 2018 was registered and after investigation he was
chargesheeted and finally tried and also held guilty by the learned
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Additional Sessions Judge, Shrirampur.
This judgment and order of conviction is now assailed before
this Court by raising various grounds spelt out in the appeal memo.
SUBMISSIONS
On behalf of Appellant :
3. Learned Counsel for the appellant would submit that
apparently there is false implication. That there is no full-proof or
conclusive evidence in support of accusations. He pointed out that
there is no witness, who seen accused entering house of victim on
any of the two occasions. Learned Counsel also questioned regarding
age of the victim and about she to be a minor. According to him, age
of victim has not been proved and therefore, charges under POCSO
Act cannot be attributed. His specific defence is that once victim is
caught raid-handed in a lodge with one person and therefore, to save
herself, there is false implication. That though medical expert has
examined, examination is after almost six months. He further
submitted that there are several lapses and lacunas while conducting
DNA test and therefore, even DNA evidence and its report ought not
to have been relied. He submitted that there is no evidence
suggesting safe custody of DNA samples and possibility of tampering
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cannot be ruled out. According to him, samples were not shown to
be retained in proper condition, rather they are deposited at a later
stage thereby creating doubt about chain of custody. According to
him, it is a fit case for extension of benefit of doubt and so lastly, he
submitted that appellant has already undergone almost half of the
sentence and consequently, it is prayed that the appeal be allowed.
On behalf of State :
4. In answer to above, learned APP pointed out that prosecution
has cogently and firmly proved victim to be a minor. That there is
ample proof of her age. That mother of victim has given date of
birth. That Gram Panchayat record was brought before the Court. He
further pointed out that evidence shows that accused sexually
assaulted victim by entering in her house not once but twice. That
she was impregnated by accused. That medical examination confirms
sexual intercourse. He further pointed out that DNA results are
positive regarding accused and victim to be biological parents. That
defence raised has no foundation about false implication. Therefore,
he submits that findings reached at by the learned trial Judge being
in consonance with the evidence on record, conviction and guilt is
rightly recorded and therefore, he prays to dismiss the appeal.
{5} CRI APPEAL 875 OF 2019
Learned Counsel for the victim would point out that victim has
no grievance now. That mother of victim has no complaint
whatsoever against accused.
5. In support of its case, in the trial Court prosecution had
adduced evidence of 14 witnesses. After hearing submissions of
both the sides this Court proceeds to categorize the witnesses as
under :
PROSECUTION WITNESSES
FIRST SET
PW1 victim
PW2 mother of victim
SECOND SET
PW3 Ramesh Asaram Bokphode is Pancha to spot panchanama,
seizure of clothes of victim and accused exh.17, 18, 19.
THIRD SET - MEDICAL EVIDENCE
PW6 Ramchandra Pandurang Vaidhya, who is a carrier of muddemal
for DNA to Forensic Science Laboratory (FSL) and deposited it in FSL
PW7 Dr.Yogesh Kisanrao Band, is Medical Officer, who examined
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accused.
PW8 Dr.Harshada Vitthal Pawar is the Medical Officer, who examined
victim and issued report about pregnancy.
PW9 Dr.Pushpa Trimbak Narote is Medicao Officer, who extracted
blood samples of victim for DNA test
PW10 Dr.Akshay Manoj Jain, is also a Medical Officer and
Radiologist, who conducted Sonography and certified duration of
pregnancy of victim.
PW11 Dr.Kruti Ghanshyam Malviya, is the Doctor, who performed
delivery of victim at Sasoon Hospital.
PW12 Dr.Vaishwani Walmik Bhagat, is the Doctor, who collected
blood samples of new born child for DNA analysis
FOURTH SET - FORENSIC EVIDENCE
PW13 Dipak Yadav Kudekar is forensic expert, who conducted DNA
analysis and issued report exh.61.
FIFTH SET
PW4 Rajendra Dagdu Patare is Profession of the Institution, who
carried documents about victim's admission and bonafide certificate
exh.22.
{7} CRI APPEAL 875 OF 2019
PW5 Surekha Jagannath Girigosavi, Senior Assistant of Panchayat
Samiti, who carried original record of birth and death register
(exh.15) of village Nimgaon Khairi.
SIXTH SET
PW14 Shriram Vishnu Shinde is the Investigating Officer, who carried
out investigation and filed chargesheet.
Defence denied to lead any evidence.
6. While exercising powers under Section 374 of the Code of
Criminal Procedure, this Court is called upon to re-examine, re-
appreciate, re-analysis the entire evidence adduce by prosecution in
the trial Court.
ANALYSIS
7. At the threshold, let us deal with fundamental objection raised
by learned Counsel for appellant regarding age of victim. It is
submitted that prosecution failed to prove age of victim. He submits
that there is no conclusive proof of her age or date of birth and
according to him, certificate like bonafide certificate is not standard
proof for consideration of age. Thus he submits that prosecution had
{8} CRI APPEAL 875 OF 2019
failed in the trial Court to show that victim is a minor so as to attract
provisions of the POCSO Act.
In the light of above objection, if the evidence of victim is
visited, she is found to be giving her age as 17 years. In her
testimony at exh.10, she gave her date of birth as 27-06-2001.
Alleged occurrence has taken place in February 2018.
In her cross-examination of PW1 victim, except suggestions
that date given by her is not her date of birth and that she is more
than 19 years of age, which are virtually denied, there is no effective
cross on the age of the victim. Even before the learned JMFC, while
giving statement under Section 164 of the Cr.P.C., she seems to have
given her age as 17 years 6 months old.
PW2 mother of victim has given date of birth of victim as
27-06-2001. According to her, pregnancy was revealed during the
medical examination done on 06-08-2018 and at that time, she was
carrying 18 to 20 weeks pregnancy.
PW4 Patare stepped in the witness box and stated that victim
was admitted in the College for academic year 2018-2019 in first
year and as per College record, her date of birth of victim is
27-06-2001 and therefore, College has issued bonafide certificate
exh.22.
{9} CRI APPEAL 875 OF 2019
However, bonafide certificate is not a document for
consideration of date of birth.
8. PW5 Surekha Girigosavi, who was working as Assistant in
Panchayat Samiti has deposed at exh.23 regarding carrying original
record of date of birth of Nimgaon Khairi and as per register, there is
a entry at Sr.No.71 pertaining to victim and her date of birth is 27-
06-2001 and she has placed certified copy of the same exh.15 on
record.
In her cross, she is unable to state who took the entry and in
whose handwriting extract was drawn.
9. Therefore, taking into consideration evidence given by the
victim, her mother, and the Officer of the Panchayat Samiti, it is clear
that there is evidence establishing date of birth of victim as 27-06-
2001. On the date of alleged occurrence, which allegedly took place
in February 2018, victim was 16 years 7 months of age and hence, a
minor.
10. Now, to ascertain whether offence of sexual assault / rape has
at all been committed and whether prosecution has established the
{10} CRI APPEAL 875 OF 2019
same, again on this aspect, we have to visit the testimony of PW1
victim, who is crucial witness.
On visiting her evidence and carefully re-assessing the same,
this Court found depositing her that while she was alone in the
house, accused entered in the house, asked her about her parents and
when she told that they had been to work, he asked for water and
when she went inside, he bolted door of house. She deposed that she
questioned accused what he is doing. According to her, accused
threatened to kill her brother and parents, removed her clothes and
had sexual intercourse with her. She further deposed that he also
threatened her, if she discloses the act to anyone. She further
deposed that as she has not disclosed incident to anyone, again after
15 days, he visited her house and finding her alone, he told her that
if she did not allow him to have sexual intercourse, he will disclose
earlier incident and she will not get married and again committed
sexual intercourse with her. But even she had not disclosed second
incident to her parents. In August, she had vomiting sensations and
her menses also stopped and therefore, she was taken to
Dr.Tribhuvan, who examined her and opined regarding pregnancy
and so report was lodged. Her mother asked as to from whom she
conceived and she named accused. She further deposed about
{11} CRI APPEAL 875 OF 2019
delivering a baby girl and her statement being recorded by the
Magistrate.
On visiting her cross-examination, it is seen that she is asked
standard in which she is studying, standard of her brother, her
residence, its surroundings, names of neighbours, College timings,
details of her friends, their visits to her house, occupation of her
parents, circumstances of the house, its doors, windows, distance of
cot from main door, timings at which her parents return from work,
year of appearance of SSC examination, name of school. She
admitted that she was on visiting terms with accused. She used to
talk with him on mobile phone of her father but she is unable to give
number of accused. She admitted that no previous complaint was
made against accused. She is questioned as to how many times she
being visited to Police Station. She is questioned about friend of her
brother namely Vishal and regarding some matter which had taken
place at Panchashil Lodge while she had accompanied Sonu Kamble.
She admitted that Sonu Kamble was nabbed by Police. She admitted
that Vikas instigated Yogesh to go to Lodge and thereafter, they all
going to Police Station. Omission is brought about sensation of
vomiting in the month of August. Rest is all denial.
{12} CRI APPEAL 875 OF 2019
11. Therefore, what is culled out from the testimony of PW1 victim
i.e. on considering her substantive evidence, is that when she was
alone, accused visited her house due to acquaintance and according
to her, he bolted the door, undressed her, himself got undressed and
had sexual intercourse with her. She deposed about threats being
issued to kill her brother and parents. He allegedly again had sexual
intercourse with her when she was alone. Admittedly, it is only on
detection of pregnancy, report has been lodged. But as stated above,
at the time of incident, she was admittedly below 18 years of age.
Therefore, even if as pointed out by learned Counsel for the appellant
that there was no forcible sexual intercourse, her consent is
immaterial. Above all, she is very categorical about he threatening to
kill her near and dear ones and threatening to cause disruption for
her marriage.
12. PW8 Dr.Harshada Vitthal Pawar, Medical Officer, who
examined her, also deposed about examining victim, who gave
history of sexual assault. Examination was apparently done on 15-
08-2018. That nothing was revealed during physical examination
and there were no injuries on libia majora and private part.
Therefore, much hue and cry is made by learned Counsel for the
{13} CRI APPEAL 875 OF 2019
appellant that apart from being no evidence of forcible intercourse,
there to be no injuries, still in cases of such nature, even if no injuries
are noticed on the person or private parts.
13. Still if the evidence of victim inspires confidence, the sole
testimony of victim can be taken into account to ascertain the guilt.
Law to that extent is very clear in numerous cases and few could be
named as under:
State of Maharashtra v. Chandrapraksh Kewalchand Jain, AIR 1990
SC 658;
State of U.P. v. Pappu alias Yunus and another,, AIR 2005 SC 1248,
State of Punjab v. Gurmit Singh and others, AIR 1996 SC 1393
14. In the above cases, it has been reiterated that there is no need
or legal compulsion to look for corroboration or other evidence to
accept the case of prosecutrix for recording conviction. Only
condition is that the testimony of the victim should be worthy of
credence and further reliable. Here also evidence of victim does
inspire confidence. There is nothing to suggest false implication.
Moreover, accused has impregnated victim. She has further delivered
a a girl child. DNA report confirms victim and appellant to be
{14} CRI APPEAL 875 OF 2019
biological parents. With such quality of evidence, there is no further
requirement of independent evidence or corroboration to the
testimony of victim. PW1 victim, being below 18 years of age and
she having deposed about he entering her house and having sexual
intercourse after threatening her not once but twice, there is no
hesitation to hold that charges for which appellant was booked are
successfully brought home by the prosecution.
SUMMATION
15. To sum up, evidence of victim, mother of victim, medical
experts, who examined victim, detected pregnancy, performed her
delivery and further CA, who conducted DNA and confirmed
paternity, amounts to overwhelming and clinching evidence.
Testimony of above witnesses have remained intact and unshaken.
Therefore, guilt of accused is established beyond reasonable doubt.
16. Perused the judgment under challenge. The findings and
conclusion reached at by the trial Court is the only view that could
emerge on re-appreciation and re-analysis of evidence. No perversity
is brought to the notice of this Court. There being no merits in the
appeal, it deserves to be dismissed. According, I proceed to pass
following order :
{15} CRI APPEAL 875 OF 2019
ORDER
Criminal Appeal No.875 of 2019 stands dismissed
( ABHAY S. WAGHWASE )
JUDGE
SPT
