Devidas Baban Sarode vs The State Of Maharashtra And Anr
2024 Latest Caselaw 2909 Bom

Bombay High Court

Devidas Baban Sarode vs The State Of Maharashtra And Anr on 31 January, 2024

2024:BHC-AUG:2041


                                                          {1}         CRI APPEAL652 OF 2020


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO. 652 OF 2020

                    .     Devidas Baban Sarode
                          Age: 32 years, Occu.: Labour,
                          R/o.Kukana, Tq.Newasa,
                          Dist.Ahmednagar.                            ....Appellant

                                       Versus

                    1.    The State Of Maharashtra
                          Through : The Police Inspector,
                          Newasa Police Station,
                          Tq.Newasa, Dist.Ahmednagar.

                    2.    XYZ                                         .....Respondents
                                                       .....
                    Advocate for Appellant : Mr. Sanjay D. Kotkar
                    APP for Respondent no.1 : Mr.N.D.Batule
                    Advocate for Respondent no.2 : Mr.Pradeep G. Tambade (appointed)
                                                       .....

                                         CORAM : ABHAY S. WAGHWASE, J.

                                         RESERVED ON   : 22 JANUARY, 2024
                                         PRONOUNCED ON : 31 JANUARY, 2024

                    JUDGMENT :

-

1. Appellant original accused hereby questions the legality and

maintainability of judgment dated 31-10-2020 passed by learned

Additional Sessions Judge, Newasa, Dist.Ahmednagar in Special

(POCSO) Case No.80 of 2018 recording guilt for offence under

Section 5(n) r/w 6 of the Protection of Children from Sexual {2} CRI APPEAL652 OF 2020

Offences Act (the POCSO Act) and sentencing appellant to suffer

rigorous imprisonment for 10 yeas and to pay fine.

CASE OF PROSECUTION IN BRIEF

2. Report was lodged with Newasa Police Station by PW1 brother

of the victim alleging that, 2-3 days prior to the incident, he and his

family members had been to a fair and they had returned to Kukana

on 06-04-2018. His sister i.e. victim stayed back with their

grandparents, whereas his other family members returned back to

home at village Kukana. It was informed that accused had taken

victim on the pretext that guests have arrived with marriage proposal

and he took her on motorcycle. While on way, he forcibly raped her.

Victim rushed back to her grandparents and informed them, who in

turn informed to the informant, who came alongwith his mother and

thereafter, report exh.18 was lodged, which was made basis for

registration of crime by Newasa Police Station and after

investigation, accused was made to face trial for offence under

Section 376(2)(f) of the Indian Penal Code (IPC) and Section 5(n)

r/w 6 of the POCSO Act.

                                   {3}             CRI APPEAL652 OF 2020


                           SUBMISSIONS


On behalf of appellant :

3. Learned Counsel for the appellant claimed of false implication.

According to him, story is fabricated and concocted. That even

alleged occurrence has taken place on 07-04-2018 but there is no

prompt reporting and rather FIR is lodged after delay of one day.

According to him, there are two distinct spots and as per prosecution

witnesses i.e. victim, who narrated about being raped in the field and

one Bhagwat but spot panchanama exh.30 does not show such spot.

According to him, FIR is on the basis of hearsay information. That

testimony of victim in witness box is contrary to what is reported in

the FIR. According to him, there are several material omissions apart

from contradictions. He pointed out that age of the victim is also not

conclusively proved. Moreover, according to him, even when mother

of victim claimed to have handed over birth certificate, investigation

machinery had not made it part of investigation papers. He also

questions the panchanama and seizure of clothes of both accused and

victim. He also questions panchanama of seizure of vehicle.

According to him, victim gave place of education as Kukana but

documents show it otherwise. He would submit that there is clear {4} CRI APPEAL652 OF 2020

possibility of fabricated story being narrated. For all above reasons,

learned Counsel for the appellant prays for setting aside the

impugned judgment by allowing the appeal.

On behalf of State :

4. In answer to above, learned APP pointed out that prosecution

case was full-proof in the trial Court. Victim, a minor, was taken by

accused, who happens to be her paternal uncle. However, he

misused the trust and raped her forcibly. Victim has deposed to that

extent. That she promptly reported occurrence to her grandparents.

According to the learned APP, brother and mother of victim resides at

other place and therefore, they reached at a later point of time and

hence, there is delay of one day in lodging FIR but according to him,

it is not fatal in view of nature of offence. He further submitted that

prosecution has established that victim is a minor. Evidence of victim

and medical expert confirms occurrence of rape. Medical expert has

issued positive opinion. Taking such evidence into consideration,

learned trial Judge has correctly appreciated evidence adduced by

prosecution and has correctly accepted the case. According to him,

there is no merit in the appeal and therefore, he prays to dismiss the

appeal.

{5} CRI APPEAL652 OF 2020

Learned Counsel for the victim, who was appointed, took

exception to the appeal pointing out that victim is a minor, her

testimony is categorical about she being forced upon. That her

evidence is corroborated by medical witness and therefore, offence

and charges are brought home and hence, he also prays to dismiss

the appeal.

5. In support of its case, prosecution has examined in all nine

witnesses and has also sought reliance on documentary evidence.

PROSECUTION WITNESSES

PW1 is brother of victim.

PW2 is mother of victim.

PW3 is victim.

PW4 Bhalbhim Arjun Gavhane is Pancha to spot panchanama.

PW5 Mohan Dayanand Chauhan is Kotwal of village Newasa Kh. He

is Pancha to seizure panchanama of apparels of victim exh.26 and

seizure panchanama of apparels of accused exh.34.

PW6 Santosh Bhagirath Ghungase is pancha to seizure of Motorcycle

exh.37.

PW7 Dr.Bhagwan Mohammad is the Medical Officer, who examined {6} CRI APPEAL652 OF 2020

accused.

PW8 Pramod Rangnath Bhingare is the Investigating Officer.

PW9 Dr.Supriya Shankarrao Jagtap is the Medical Officer, who

examined victim.

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 adduced by prosecution in

the trial Court to ascertain the legality of the impugned judgment.

ANALYSIS

7. After considering the submissions advanced by each of the

side, this Court is, at the threshold, required to deal with objection of

learned Counsel for the appellant. According to him, prosecution has

not established that victim is a minor.

In the light of such objection, it is required to be seen whether

it is so.

PW1 Informant / brother of victim in FIR reported age of his

sister as 16 years.

PW2 mother of victim in her testimony at exh.21 addressed her

as child daughter but she has not given her date of birth.

{7} CRI APPEAL652 OF 2020

It is to be noted that mother of victim is a labourer, but in

cross-examination of mother, she is questioned about age of victim,

wherein she has answered that birth of children took place at

Erandgaon and that victim was admitted in School at Erandgaon for

education and at that time her birth certificate was availed. She

claims that she has supplied birth certificate to Police. She further

deposed that her daughter studied up to 3 rd standard at Erandgaon

but further education was completed in village Kukana. She flatly

denied that at the time of admissions date was given as July 1998. In

further cross, it has come on record by way of answer of mother of

victim that at the time of incident, victim child was studied up to 6 th

standard and thereafter, she did not complete the education.

PW3 victim, who is examined at exh.24 is unable to give date

of birth but she answered that she was studied up to 5 th standard.

She has given her age as 16 years i.e. on 10-04-2018 when her

statement under Section 164 was recorded.

While under cross-examination, victim has answered that she

took admission in 1st standard in the School at village Kukana and

she studied there till 3rd standard, thereafter she took admission in

the School at Erandgaon and there she studied up to 4 th Standard.

She took gap in education i.e. between School at Kukana and {8} CRI APPEAL652 OF 2020

Erandgaon. The gap was of two years.

Prosecution in the trial Court seems to have relied on the

evidence of medical expert as well as Investigating Officer on the

aspect of age of victim.

PW9 Dr.Supriya Shankarrao Jagtap, in her evidence at exh.78

para 3, deposed that all necessary tests were conducted. That in

view of age determination of victim, radiological test was done and

further, the dentist opinion in view of age determination was also

obtained. The conclusion reached at by dentist is that dental age of

victim is approximately below 17 years. However, neither the Doctor,

who conducted ossification test nor the dentist, who opined about

dental age, have been examined by the prosecution for the reasons

best known to them.

8. However, on record there is School Leaving Certificate and that

is got proved through Investigating Officer and is marked as exh.67.

In the said Leave Certificate, the date of birth of victim is reported as

03-07-2001.

In the case of P. Yuvaprakash v. State Rep. By Inspector of

Police, AIR 2023 Supreme Court 3525, as regards to computation of

age, Section 34 of the POCSO Act is discussed and following nature {9} CRI APPEAL652 OF 2020

of evidence is considered relevant for determination of age.

"13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents:

"(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board"."

Here, therefore, going by leaving certificate, which is gathered

by the Investigating Officer, date of birth of victim is 03-07-2001.

Alleged occurrence of sexual assault had taken place on 07-04-2018.

Resultantly, on such date age of victim was 16 years and 8 months.

9. Now, it is to be seen whether offence as alleged has been

committed by the appellant. Again we have to fallback on the

testimony of PW1 brother of victim, PW2 mother of victim, PW {10} CRI APPEAL652 OF 2020

victim herself and PW9 Dr.Supriya medical expert.

Admittedly PW1 brother and PW2 mother of the victim were

residing at a distinct village and on getting message from grandfather

they had returned back to the village where incident took place and

interacted with the victim and learnt about occurrence from her.

10. In her testimony, PW3 victim has categorically stated that on

07-04-2018, present appellant came and told that guests of Sainath

Nagar has come and therefore, her mother had called her and took

her on his Motorcycle. She stated that while travelling on

Motorcycle, when they reached near the canal, he halted Motorcycle

near the field on the pretext of urination, there he came back, gagged

her mouth, lifted her, took her to sugarcane field and committed

sexual assault. She stated that she attempted to raise hue and cry but

her mouth was gagged and therefore she could not raise shouts. She

stated that the said place was muddy and therefore her clothes got

soaked in mud. She stated that he threatened her that if she narrates

it to anyone, he would obstruct her marriage and further suggested

to her that if anyone asked her about mud soaked clothes, she should

inform that she fallen from Motorcycle near the canal. He left her at

Bus Stand. She further deposed in paragraph no.3 that out of fright, {11} CRI APPEAL652 OF 2020

she directly ran to house and narrated occurrence to grandparents.

Then her grandfather contacted her brother and mother on phone

and after their arrival, she narrated occurrence to them and

thereafter Police and medical authorities were approached.

In cross-examination, she narrated that prior to occurrence,

they used to visit each others house. In paragraph no.9, there are

questions about occurrence wherein she has answered that it takes

10 minutes to remove and wear apparels. She stated that her entire

body was soaked with mud. She answered that her apparels were

kept at a distance of 10 to 15 feet from the alleged spot of incident.

She stated that there was traffic on the road. She answered that

when she returned home, after the incident, at that time, she was not

wearing footwear and she further answered that she had lost it at the

spot. She is questioned about exact distance between the place

where motorcycle was parked and the place where her clothes were

kept. Thereafter, she is questioned about information being passed to

family members after reaching home and then informing Police. Then

she is questioned as to when she took bath to which she answered

that she had not taken bath for three days. Then she is questioned

about taking dinner, having tea and snacks and whether she served

meal to all. She is asked when she changed her apparels to which {12} CRI APPEAL652 OF 2020

she answered that the same were changed after two days. To a

question, she answered that she is unable to give ownership of the

spot and that Motorcycle was also soaked with mud. Omission is

brought to the extent that her mouth being gagged. Rest all is denial.

11. PW9 Dr.Supriya, who had occasion to conduct medical

examination of victim on 09-04-2018, deposed about noting history

and conducting medical examination of the victim. According to her,

hymen was torn but there was no redness or discharge. Clothes were

found to be changed. On physical examination, she noticed scab

injury over right elbow, abrasion over right side of neck and multiple

linear abrasions over left fore arm on bolar posterior aspect and

according to her, age of injuries were more than 24 hours. In

paragraph no.5, Doctor deposed that conclusion was made on the

basis of history and recent injuries on the person of the victim.

Doctor concluded that on clinical examination, there were signs of

recent forced sexual violence and about possibility of sexual

intercourse.

Above witness is initially cross-examined about conclusion of

ossification test and age differences. She answered that in the case in

hand, observed injuries were not caused within 24 hours and that {13} CRI APPEAL652 OF 2020

scab can remains for 5 to 7 days. She admitted that abrasion injuries

are simple injuries and same can be sustained by etching and nail

scratches and that such injuries can also be self inflicted. She

admitted that hymen can be torn due to long jumping, horse riding,

bicycle riding etc. She denied that after wash, commission of sexual

intercourse cannot be formulated. Then she is questioned about

types of abrasions. She admitted that in case of recent sexual

intercourse, there could be redness and swelling. She admitted that

in the report exh.80, colour of injuries is not reflected. She flatly

denied that there were no marks of sexual violence.

12. On analyzing evidence of PW3 victim,, who is shown to be

below 18 years of age, it appears that she has categorically narrated

about accused taking her away from her grandparents house on

Motorcycle and while on the way, he halted the Motorcycle under

the garb of urination and thereafter, he lifted her and had forcible

sexual intercourse with her. Inspite of being cross-examined, there is

no serious cross about actual forcible sexual act and that much act

has not been rendered doubtful. Victim has promptly rushed home

and reported it to her grandparents and thereafter, to her brother,

who was at Kukana, who then came to Warkhad and thereafter, they {14} CRI APPEAL652 OF 2020

had approached Police.

Therefore, taking such circumstances into consideration,

though there is some delay in lodging FIR, however, considering the

nature of offence and above circumstances, it cannot be said that

there is inordinate delay and same to be fatal for prosecution.

As discussed above, medical evidence is categorical and

conclusion given by medical expert is about coming across signs of

forcible sexual assault and possibility of sexual intercourse. Doctor

has also noted history and narrated that the name of appellant was

provided. Therefore, taking into consideration the testimony of PW3

victim and PW9 Dr.Supriya Jagtap, medical expert, offence is

established.

CONCLUSION

13. After considering the submissions advanced by learned Counsel

for appellant, this Court has not come across any point so worthy so

as to doubt the prosecution evidence. No convincing ground is raised

to doubt the prosecution version.

14. After going through the impugned judgment, it is noticed that

learned trial Judge has correctly appreciated both evidence as well

as law. Findings reached at are supported by sound reasons. It is the {15} CRI APPEAL652 OF 2020

only view and conclusion that could emerge even on re-appreciation

of evidence. No case being made out on merits, appeal deserves to

be dismissed. Accordingly, I proceed to pass following order :

ORDER

(i) Criminal Appeal No.652 of 2020 is dismissed.

(ii) Fees of the learned Counsel appointed to represent respondent no.2 is quantified at Rs.10,000/- (Rs.Ten thousand only) to be paid through High Court Legal Services Sub-Committee, Aurangabad.

( ABHAY S. WAGHWASE ) JUDGE

SPT