Bombay High Court
Kailash S/O Rama Dawar vs State Of Mah. Thr. Pso Hiwarkhed Tq. ... on 5 September, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:11066
207. cr.apeal.47.2022 .jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 47 OF 2022
Kailas S/o. Rama Dawar (Jail)
Aged about 22 yrs, Occ: Laborer,
R/o. Wasali, Tq. Sangrampur,
Dist. Buldhana .... APPELLANT
(Accused in Jail)
// V E R S U S //
1. State of Maharashtra,
through P.S.O., P.S. Hiwarkhed,
Tal. Telhara, District Akola
Amendment 2. XYZ (Minor),
carried out as per
courts order
Aged about 12 Yrs., Through her
dated 24.01.022 Natural Guardian
R/o. Wari, Hanuman, Taluka
Telhara, Dist. Akola ... RESPONDENTS
----------------------------------------------------------------------------------------------
Mr. A. S. Londhe, Advocate for the appellant
Ms Ritu Sharma, APP for the respondent/State
Ms Sonal Tripathi, Advocate for respondent No.2
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 05/09/2024
ORAL JUDGMENT :
1 In this appeal, the challenge is to the judgment and
order, dated 27.08.2021, passed by the learned Special Judge
and Additional Sessions Judge, Akot, Dist. Akola, whereby the
207. cr.apeal.47.2022 .jud..odt
learned Judge, convicted the accused for the offence punishable
under Sections 328 and 376(2)(i) of the Indian Penal Code (for
short 'the IPC') and Section 3 read with Section 4 of the
Protection of Children From Sexual Offences Act, 2012 (for
short 'the POCSO Act') and sentenced him to suffer rigorous
imprisonment for five years and to pay a fine of Rs.5,000/- and
in default of payment of fine to further suffer imprisonment
for six months for the offence punishable under Section 328 of
the IPC and further sentenced to suffer rigorous imprisonment
for ten years and to pay a fine of Rs.15,000/- and in default of
payment of fine to further suffer imprisonment for one year for
the offence punishable under Section 3 read with Section 4 of
the POCSO Act. No separate punishment has been awarded
for the offence punishable under Section 376(2)(i) of the IPC.
2 Background facts:
The informant is the mother of the victim girl, who
at the time of the incident was 7 years old. The case of the
207. cr.apeal.47.2022 .jud..odt
prosecution, which can be gathered from the First Information
Report and other record, is that the informant has four sons and
seven daughters. The victim is her youngest daughter. Her
eldest daughter is married and residing near her house. On the
date of the incident i.e. on 14.09.2018, the victim went to the
house of her sister by name Sundari. The children of Sundari
were at the house. They took meals together. The victim at
about 8:00 p.m. went to sleep at the house of Sundari. The son
of the informant went to the house of Sundari at about 10:00
p.m. He found that the victim was lying in an unconscious
condition. He came back to the house and informed her. The
informant went to the house of her eldest daughter. She found
that the victim was lying in an unconscious condition. She
regained consciousness on 15.09.2018 at about 7:00 a.m. The
victim at that time told her that the son-in-law of their
neighbour had come to the house of her eldest daughter. The
name of her neighbour is Pocha Chavhan. The name of his
207. cr.apeal.47.2022 .jud..odt
son-in-law, who is accused in this case, is Kailas Dawar R/o.
Wasali. Kailash Dawar administered pills to the victim. The
victim became unconscious. The accused Kailash also offered
pills to Sumitra, the daughter of Sundari, but she threw away
the pills. The victim tried to run away from the spot, but the
accused caught hold her. The victim told the informant that
the accused removed her clothes and committed sexual
intercourse with her. The informant took the victim to the
police station and lodged the report. The crime bearing No.
206 of 2018 was registered at Hiwarkhed Police station against
the accused.
3 The victim was referred for medical examination by
the police. The mother of the victim did not consent for the
medical examination of the victim. The investigating officer
went to the spot and drew the spot panchanama. He arrested
the accused. The accused was sent for medical examination.
The investigating officer recorded the statements of the
207. cr.apeal.47.2022 .jud..odt
witnesses. The statements of the victim and her mother were
recorded by the learned Magistrate under Section 164 of the
Code of Criminal Procedure, 1973 (For short 'the Cr.P.C.').
The samples collected during the course of the investigation
were sent for analysis. On completion of the investigation, the
investigating officer filed the chargesheet against the accused.
4 Learned Judge framed the charge against the
accused. The accused pleaded not guilty. His defence is of false
implication on account of the dispute between his father-in-law
and the family of the informant. The prosecution, in order to
bring home guilt against the accused, examined ten witnesses.
Learned Judge, on consideration of the evidence, found the
evidence sufficient to prove the charge against the accused and
accordingly convicted and sentenced him as above. The
appellant/accused has questioned the correctness of this
judgment and order by filing this appeal.
207. cr.apeal.47.2022 .jud..odt
5 I have heard learned Advocate Mr. A. S. Londhe
for the appellant, learned APP Ms Ritu Sharma for the State
and learned appointed Advocate Ms Sonal Tripathi for
respondent No.2. Perused the record and proceedings.
6 Learned Advocate for the appellant submitted that
the evidence on record is not cogent, concrete and reliable. The
charge has not been proved beyond reasonable doubt. There are
major inconsistencies and contradictions in the evidence of the
prosecution witnesses. There was a delay of 20 hours in
lodging the report. Learned Advocate submitted that the
evidence of the informant and the evidence of the victim
cannot be believed at all. Learned Advocate submitted that the
children of Sundari, by name Sumitra and Bharat, were
admittedly present in the house when the accused went there.
It is submitted that the case of the prosecution that, in the
presence of Sumitra and Bharat, the accused committed a sexual
intercourse with the victim, who was in an unconscious
207. cr.apeal.47.2022 .jud..odt
condition, is completely unbelievable. Learned Advocate
submitted that the medical examination of the victim was
carried out after two years. The evidence of the medical officer
is hardly of any use to take the case of the prosecution forward.
Learned Advocate submitted that the evidence, which is full of
inconsistencies and discrepancies, has been made the basis of
conviction. Learned Advocate further submitted that there is
also no evidence to prove that, on the date of the incident, the
victim was a child below 18 years of age.
7 Learned APP submitted that pursuant to the order
passed by the Court, the victim was examined, after two years,
by the medical officer. Learned APP took me through the
evidence of the medical officer and medical certificate to
buttress her submission that it is sufficient to corroborate the
evidence of the victim. Learned APP pointed out that even
after examination of the victim, after two years, the old healed
hymen tear was noticed by the medical officer. In the
207. cr.apeal.47.2022 .jud..odt
submission of the learned APP, the opinion of the medical
officer that the possibility of sexual intercourse with the victim
cannot be ruled out deserves acceptance. Learned APP
submitted that the learned Judge has thoroughly scrutinized the
evidence and on being satisfied that it inspires confidence, has
relied upon the same to convict and sentence the accused.
Learned APP submitted that in the ordinary circumstances, the
mother had no reason to involve her daughter in such an
incident to take revenge against the accused on account of so
called enmity. Learned APP, in short, submitted that the
evidence on record is sufficient to prove the charge against the
accused. Learned APP submitted that the learned Judge has
properly considered the evidence on record and has recorded
the cogent and concrete reasons in support of his findings.
8 Learned appointed Advocate who represent the
victim/respondent No.2 has adopted the submissions advanced
by the learned APP for the State.
207. cr.apeal.47.2022 .jud..odt
9 I have minutely scrutinized the evidence adduced
by the prosecution. I have also perused the judgment and order
passed by the learned Judge. It is the case of prosecution that,
on the date of the incident, the victim was 7 years old. It is seen
that the mother of the victim as well as the victim are silent
about the birth date of the victim. The informant, the mother
of the victim, has stated that the victim was 7 years old on the
date of the incident. The victim at the time of her evidence has
stated that she was studying in 1st standard. In a case, which is
registered under the POCSO Act, it is the primary duty of the
investigating officer to collect the legally admissible evidence
with regard to the birth date of the victim. PW-10, the
investigating officer, has deposed in his evidence that at the
time of the investigation he had written a letter to the
Headmaster of the School and obtained the birth certificate of
the victim. The requisition letter sent to the Headmaster is at
Exh. 60. The certificate obtained is dated 17.09.2018. Perusal
207. cr.apeal.47.2022 .jud..odt
of the record would show that this certificate was not exhibited.
However, perusal of this certificate would show that it was
issued by the Headmaster of Zilla Parishad Primary School,
Wari, Bhairavgad Panchayat Samiti, Telara, Dist. Akola.
10 In order to prove the age of the victim, on the date
of the incident, the prosecution has examined PW-6, a
Headmistress of the Zilla Parishad Primary School, Wari,
Bhairavgad. The Headmistress has produced on record the
school admission register. She has deposed that on 13.07.2018
the victim was admitted in 1st standard. The date of birth
recorded in the school register is 30.05.2011. The photocopy
of the school register is at Exh. 41. The relevant entry is at Sr.
No. 1078. She has stated that the date of birth of the victim
was recorded as per the certificate issued by the Anganwadi.
The original certificate issued by Anganwadi is at Exh. 42.
The school register is the primary evidence. A certified extract
of the said register is on record. It was produced by PW-6.
207. cr.apeal.47.2022 .jud..odt
Perusal of this record would show that the birth date of the
victim is 30.05.2011. The prosecution on the basis of this
evidence has proved that on the date of the incident, she was
about 7 years old. She was a child as defined under Section
2(1)(d) of the POCSO Act.
11 Before parting with this aspect, I must place on
record that the Judge has committed a procedural error while
recording the evidence of PW-6. The witness had produced the
original school register. The entry from the school register with
regard to the admission of the victim is the primary evidence.
Learned Judge on production of the admission register was
required to give exhibit number to the relevant entry from the
original register. After giving exhibit number to the entry from
the register, the learned Judge on the request of the witness
would have returned the same to the witness on furnishing
usual undertaking. It is to be noted that in a given case on account
of such a procedural mistake miscarriage of justice can occur.
207. cr.apeal.47.2022 .jud..odt
It is to be noted that in a crime, the stage of investigation and
the stage of recording of evidence are very important. The
learned Judge did not even look into the birth certificate of the
victim obtained from the school by investigating officer. It was
not exhibited. The entire copy of the page of the register has
been given exhibit number. It needs to be stated at this stage
that a mistake committed while recording the evidence cannot
be corrected in a subsequent proceeding.
12 It is seen that the accused has not seriously disputed
this certificate. The evidence of the Headmistress, on that
count, has gone unchallenged. The original register was
produced before the Court. There was a procedural mistake on
the part of the Judge. The certified copy of the relevant page is
on record. It can be made use of by the prosecution to prove
the age of the victim. It is therefore evident that on the date of
the incident the victim was 7 years old and as such a child as
207. cr.apeal.47.2022 .jud..odt
understood by Section 2(1)(d) of the POCSO Act.
13 The next important issue is with regard to the
medical evidence. Initially, the mother of the victim did not
consent for her medical examination. No reason was stated by
the mother of the victim for not subjecting the victim for
medical examination in such a serious crime. The record shows
that, at the stage of the trial, the learned Judge passed the order
and directed the doctor to medically examine the victim. She
was examined after two years from the date of the incident. It
needs to be observed that by that time much water had already
flown under the bridge. The evidence of PW-8, who had
examined the victim, needs consideration in this background.
14 PW-8 Dr. Nilopher Sheikh is the medical
officer who had examined the victim on 03.03.2020. She has
stated that the history of assault was narrated by the mother of
the victim. She has stated that the victim, at that time, was
207. cr.apeal.47.2022 .jud..odt
conscious and was able to speak. She has stated that she made
an attempt to talk to her, but she was unable to give details. She
has stated that, on local examination of the victim, she noticed
that there was evidence of an old hymenal tag tear as well as
evidence of an old healed hymenal edge. There was no fresh
injury. The doctor has opined that the possibility of sexual
intercourse or assault could not be ruled out. It is necessary to
state at this stage that the doctor did not mention the age of the
hymen tear. The victim was examined after two years from the
date of the alleged incident. The doctor was therefore required
to categorically state the age of the hymen tear. The doctor, in
her cross-examination, has stated that the hymen tear injuries
noticed by her could be caused by a variety of reasons, such as
horse riding, cycling and fingering etc. She has stated that fresh
injuries of the hymenal edge take 7-8 days to heal. She has
stated that, however, the scar remains there. The doctor, in this
factual background, was required to give a candid opinion.
207. cr.apeal.47.2022 .jud..odt
The doctor has only stated that the possibility of sexual assault
can not be ruled out. In order to attribute these injuries to the
accused/appellant it was necessary for the doctor to state the age
of the injury. The age of the injury can be decided on the basis
of a clinical examination. The doctor did not take trouble to
ascertain the age of the injury. It is the case of the accused that
there is enmity between him and the family members of the
victim and therefore to take revenge he has been falsely
implicated in this case. In order to dispel the possibility of false
implication it was necessary on the part of the medical officer to
give a candid and categorical opinion. The requisition for
medical examination of the victim categorically stated the date
of the occurrence of the incident. The possibility of causing
such injury after the alleged incident can not be ruled out. The
injury could be possible due to various reasons mentioned in
the cross-examination by the doctor. Similarly, the possibility of
the sexual assault on the girl after the alleged incident also
207. cr.apeal.47.2022 .jud..odt
cannot be ruled out. The evidence of the medical officer, as
discussed above, needs to be born in mind while appreciating
the evidence of the victim, her mother and other witnesses.
15 PW-1 is the mother of the victim. The mother of
the victim is not an eyewitness to any incident. She has stated
that the victim had gone to the house of her daughter Sundari
for sleeping. She has stated that her son Sunil came to her and
informed that the victim was lying unconscious in the house of
the Sundari. She has stated that therefore she went there in the
night at 10:00 p.m. and found that the victim was lying
unconscious. She has stated that the clothes were not on her
body. She brought her back to house in the same condition.
She has stated that the victim regained consciousness on
15.09.2018, in the morning at 8:00 a.m. She has stated that,
after regaining consciousness, the victim narrated the incident
to her. In my view, the evidence of this witness cannot be
207. cr.apeal.47.2022 .jud..odt
believed for more than one reason. Her conduct prima facie
appears to be inconsistent and unnatural. If the incident, as
stated, had occurred, then she would have immediately taken
her daughter to the doctor. She did nothing till next morning.
Her evidence is silent about the presence of the children of her
daughter Sundari in the house where the alleged incident took
place. In her evidence, she has stated that she made an inquiry
with Bharat and Sumitra, the children of her daughter Sundari.
They told her that the accused had given one pill to Sumitra,
but she threw away the said pill. She did not consume it. She
has stated that Sumitra told her that the accused gave four pills
to the victim forcibly. She has further stated that Sumitra told
her that the victim had tried to run away, but the accused
caught hold her and pulled her in the room and forcibly
administered pills to her. It is to be noted that all these facts
had not been stated in the report. Even if it is assumed that this
is a correct statement of a fact, even then it creates doubt about
207. cr.apeal.47.2022 .jud..odt
the occurrence of the incident. If such an act had been
committed by the accused with the victim, then the children
would have run towards the informant and apprised her about
the incident. It has come on record that the victim went to the
house of Sundari at about 6:00 p.m. It has come on record that
Sumitra had prepared the meal and they took the meal together.
It therefore shows that Sumitra and Bharat were not too small
to ignore such an assault on the victim by the accused. It is to
be noted that if such an incident had occurred, then
immediately after noticing the victim in an unconscious
condition she would have inquired with Sumitra and Bharat.
She did not do that. In my view, this evidence as to the
occurrence of the incident by the informant is highly
improbable and as such, cannot be accepted.
16 The statement of the informant under Section 164
of the Cr.P.C. was recorded by the learned Judicial Magistrate
207. cr.apeal.47.2022 .jud..odt
First Class, Telara on 13.10.2018. In her statement, recorded by
the Magistrate, she has nowhere stated that the accused
committed penetrative sexual assault on the victim. She has
only stated that the accused administered pills to the victim and
thereafter, the victim felt dizziness. The accused removed her
clothes. She has further stated that after eating the pills the
victim had pain in her stomach and thereafter, she went to the
police station and lodged the report. Her statement under
Section 164 recorded by the Magistrate is conspicuously silent
about the sexual assault on her daughter by the accused. In my
view, this is a very relevant circumstance to create a doubt about
her evidence and as such, the occurrence of the incident as
stated by her.
17 PW- 2 is the victim. In her evidence, she has
stated that on the date of the incident she had gone to the house
of Sundari to play with Bharat and Sumitra. She has stated that
207. cr.apeal.47.2022 .jud..odt
Bharat had gone to attend the Ganpati festival. She has further
stated that Sumitra and she were present in the house. They
prepared the vegetable (sabji). She has stated that at that time
the accused came there. He questioned her whether she would
eat a tablet. He gave her a tablet. She consumed the tablet. She
has stated that thereafter she felt dizziness. She has not stated
that the accused forcibly administered pills to her. She has
stated that thereafter the accused sat on her thighs and
committed intercourse with her. She has stated that thereafter
she became unconscious. She has further stated that thereafter
Bharat went to call her mother. She has nowhere stated that the
accused drove out either Bharat or Sumitra from the house.
This fact would show that while all this incident was going on
Bharat and Sumitra were all along present in the house. She has
stated that next morning she narrated the incident to her
mother. The evidence of the victim, if considered in a proper
perspective, would show that the case of the prosecution
207. cr.apeal.47.2022 .jud..odt
appears doubtful. Bharat and Sumitra were present in the
house. Bharat has been examined before the Court. He is 14
years old. Sumitra has not been examined. Bharat and Sumitra,
as can be seen from the evidence, were expected to raise hue
and cry when such an act was committed by the accused. They
were expected to go to the house of the informant and narrate
the incident to her. It is stated that the accused had tried to
administer pill to Sumitra, but she ran away from the house.
18 The statement of the victim under Section 164 of
the Cr.P.C. was recorded by the Judicial Magistrate First Class,
Telara on 03.10.2018. It is at Exh. 23. Perusal of this statement
would show that she is silent about the act of sexual assault on
her by the accused. She has stated before the Magistrate that
the accused administered pills to her and sat on her legs. She
has stated that after eating pills she became unconscious. In her
cross-examination, she has stated that apart from Sumitra and
207. cr.apeal.47.2022 .jud..odt
Bharat, Sharda was also present in the house of Sundari. She
has stated that on that day Sumitra had prepared the meal and
they together took the meal. She has stated that she, Sumitra
and Sharda slept in the house together. She has stated that,
after taking the meal, within ten minutes they went to sleep.
She has further stated that when she woke up next morning, her
clothes were as it is. In my view, the evidence of the victim is
also doubtful. It is not sufficient to take the case of the
prosecution forward.
19 The next important witness is Bharat. PW-4 Bharat
on the date of the incident was 14 years old. He has stated that,
on the date of the incident, his parents had gone out of the
village. He has stated that, on the date of the incident, the
victim had come to their house at 6:00 p.m. He has stated that
he asked the victim and his sister Sumitra to prepare the meal.
He has stated that he came back to the house after attending a
207. cr.apeal.47.2022 .jud..odt
festival at 9:30 p.m. He has stated that the door was closed.
He knocked on the door. He has further stated that in the lamp
he saw that the accused was sleeping on the body of the victim
without wearing a pant. He has stated that he knocked on the
door and at that time the accused put on his pant and went out
of the house. He has stated that he narrated this incident to his
maternal uncle Sunil. He has further stated that he called his
grandmother. His grandmother Chunkibai came there and took
the victim with her. He has not stated that the victim was
unconscious at that time. He has not stated that her mother
came there and took her away in an unconscious condition. In
his cross-examination, he has stated that the family members of
the victim and father-in-law of the accused are not on visiting
terms. He has stated that he tried to wake up Sumitra, but she
did not wake up. The victim has stated that the Bharat was also
present in the house. In my view, the evidence of three
witnesses PW-1, 2 and 4 is not sufficient to prove the incident.
207. cr.apeal.47.2022 .jud..odt
20 It is pertinent to note at this stage that no reason
was stated by the mother of the victim for not allowing the
medical examination of the victim after lodging of the report.
The reluctance on the part of the mother of the victim to allow
the medical examination of the victim creates a doubt. This
doubt is further fortified on the basis of the inconsistent and
self-contradictory evidence of the witnesses. The conduct of all
the witnesses is not consistent. If the incident as narrated had
occurred, then the natural reaction of the mother would have
been totally different. Similarly, Bharat and Sumitra, who are of
the age of understanding, would have raised hue and cry. The
house of the informant is adjacent to the house of her daughter
Sundari, where the alleged incident occurred. The informant
was present in the house. After noticing such an incident, the
children would have run crying for help towards the mother of
the victim. The medical evidence, therefore, does not
corroborate the oral evidence of the victim and her mother.
207. cr.apeal.47.2022 .jud..odt
The biological samples were sent for analysis to CA. In the
biological samples, neither the blood nor the semen was
detected. The evidence is, therefore, not sufficient to prove the
guilt of the accused beyond reasonable doubt. On the basis of
the available evidence sufficient doubt is created in the mind of
the Court about the case of the prosecution. The accused is
therefore entitled to get benefit of the same.
21 In view of the above, I conclude that the
prosecution has failed to prove the charge against the accused.
Learned Judge has failed to properly appreciate the evidence. It
needs to be stated that presumption under Section 29 of the
POCSO Act which has been invoked in this case by the learned
Judge was not in accordance with law. As far as Section 29 of
the POCSO Act is concerned, the presumption under Section
29 of the POCSO Act is not an absolute presumption. It is a
rebuttal presumption. The presumption gets triggered only
207. cr.apeal.47.2022 .jud..odt
when the foundational facts are established by the prosecution
beyond reasonable doubt. The evidence on record must be
sufficient to believe the case of the prosecution and thereby
support the very foundation of the case of the prosecution. In
this case, the very foundation of the case of prosecution vis-a-
vis the charge against the accused is shaken. Therefore, in my
view, the presumption under Section 29 of the POCSO Act
would not automatically get attracted to base the conviction of
the accused.
22 In view of the above, I conclude that there is
sufficient doubt about the involvement of the accused in this
crime. The accused is entitled to the benefit of doubt.
Accordingly, the appeal deserves to be allowed.
23 The criminal appeal is allowed.
24 The judgment and order of conviction and
sentence of the appellant/accused dated 27.08.2021 passed by
207. cr.apeal.47.2022 .jud..odt
the learned Special Judge and Additional Sessions Judge, Akot,
Distt. Akola for the offences punishable under Section 328,
376(2)(i) of the Indian Penal Code and Section 3 read with
Section 4 of the Protection of Children From Sexual Offences
Act, 2012 is quashed and set aside.
25 The appellant/accused- Kailas Rama Dawar is
acquitted of the offences punishable under Sections 328 and
376(2)(i) of the Indian Penal Code and Section 3 read with
Section 4 of the Protection of Children From Sexual Offences
Act, 2012.
26 The appellant, who is in jail, shall be released
forthwith, if not required in any other case.
27 The criminal appeal stands disposed of accordingly.
Pending applications, if any, also stand disposed of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 04/10/2024 11:14:24
