Bombay High Court
Ramesh Krishna Gopnur vs The State Of Maharashtra on 11 September, 2024
Author: Revati Mohite Dere
Bench: Revati Mohite Dere, Prithviraj K. Chavan
Digitally
signed by
SHAGUFTA
2024:BHC-AS:36723-DB
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date:
2024.09.12 202-APEAL-595-2014.doc
17:26:32
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 595 OF 2014
Ramesh Krishna Gopnur,
Age : 40 years, Occ : Agriculturist,
Indian Inhabitant, Residing at : Ranshet
Pada, Po. Pelhar, Tal. Vasai, ... Appellant
Dist. Thane (Ori. Accused)
(At present in Central Jail, Thane)
Versus
The State of Maharashtra,
(Through Valiv Police Station, Vasai) ... Respondent
Ms. Laxmi Raman, Appointed Advocate for the Appellant
Ms. Gauri S. Rao, A.P.P for the Respondent No.1-State
Mr. A. R. Kapadnis, as amicus curiae for the Original
Complainant
CORAM : REVATI MOHITE DERE &
PRITHVIRAJ K. CHAVAN, JJ.
RESERVED ON : 13/08/2024
PRONOUNCED ON : 11/09/2024
JUDGMENT (Per Revati Mohite Dere, J.) :
1 By this appeal, the appellant has impugned the
judgment and order of conviction and sentence dated 29 th March
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2014 passed by the learned Additional Sessions Judge, Vasai,
Thane in Session Case No. 33/2013 as under :
- for the offence punishable under Section 376(f) of the
Indian Penal Code (`IPC'), to suffer life imprisonment and to pay
a fine of Rs.50,000/-, in default, to suffer rigorous imprisonment
for 2 years;
- for the offence punishable under Section 8 of the
Prevention of Children from Sexual Offences Act (`POCSO Act'),
to suffer rigorous imprisonment for 3 years and to pay a fine of
Rs. 15,000/-, in default, to suffer rigorous imprisonment for 6
months;
- for the offence punishable under Section 506 of the
IPC, to suffer rigorous imprisonment for 2 years and to pay a fine
of Rs.5,000/-, in default, to suffer rigorous imprisonment for 6
months;
- All the substantive sentences were directed to run
concurrently.
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- The appellant, in addition to the fine amount, was
directed to pay compensation of Rs.1,00,000/- each to the
survivers A, B, C and E.
- The appellant was directed to pay compensation of
Rs.10,000/- to surviver D.
- On deposit, the compensation amount was directed to
be kept in Fixed Deposit in any Nationalised Bank in the joint
names of survivers and their respective mothers and on attaining
the age of majority, the amount along with interest was directed
to be paid to the survivers.
Since, it is a POCSO case, the identity of the victim
girls is concealed.
2 The prosecution case in brief is as under:
The appellant and the complainant (PW7) are close
relatives, inasmuch as, PW7 is the wife of the brother-in-law of
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the appellant. It is the prosecution case that the appellant sexually
assaulted five girls. All the victim girls were between the age
group 8 years to 13 years and living in the same village as the
appellant. The said incident of sexual assault by the appellant on
the victim girls went on for about 2 years. It is only when PW6
saw the appellant sexually assaulting one of the victim girls, the
complainant (PW7) was informed of the same, pursuant to which,
PW7 lodged an FIR against the appellant alleging offences
punishable under Sections 376(f), 354, 323 and 506 of the Indian
Penal Code and Sections 4 and 8 of the Prevention of Children
from Sexual Offences Act. The victim girls were sent for medical
examination and after investigation, charge-sheet was filed in the
said case in the Court of the Judicial Magistrate First Class, Vasai.
Since the offences were triable by the Court of Sessions, the case
came to be committed to the Court of Sessions, for trial.
The trial Court framed charge against the appellant,
to which, the appellant pleaded not guilty and claimed to be
tried.
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The prosecution in support of its case, examined 12
witnesses i.e the victim girls PW1 (Survivor A); PW2 (Survivor B);
PW3 (Survivor C); PW4 (Survivor D); PW5 (Survivor E); PW7,
the complainant (mother of one of the survivor-PW2); PW6, (eye-
witness), who witnessed sexual assault by the appellant on one of
the victim girls; two medical officers i.e. PW8-Dr. Sheela Chakre
and PW 10-Dr. Ravindra Deokar; PW9-Nancy Pareira, panch to
the spot panchnama; PW11-Amol Ghag (photographer) and PW
12-Mrs. Muthe (the Investigating Officer).
Thereafter, the 313 statement of the appellant was
recorded. His defence was of denial and false implication. The
appellant did not examine any witness in support of his case.
The learned Judge, after hearing the parties, was
pleased to convict the appellant as stated aforesaid, in
paragraph 1.
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3 At the outset, we may note that as soon as the appeal
was called out for hearing, Advocate Mr. Aniket Vagal stated that
he has given his no objection to the appellant and as such stated
that he has no instructions to appear in the aforesaid appeal.
Hence, we appointed Ms. Laxmi Raman, who is on the Legal Aid
Panel to espouse the cause of the appellant. We also appointed
Mr. A. R. Kapadnis as amicus curiae to espouse the cause of the
original complainant.
4 Mrs. Raman, learned appointed advocate submitted
that the evidence of the victim girls does not inspire confidence,
inasmuch as, they have not disclosed the sexual assault on them
by the appellant, for almost 2 years. She submitted that the
appellant has been implicated because of the dispute between the
appellant and his brother-in-law on account of agricultural land
situated at Vasai, Thane. She submitted that having regard to the
evidence on record, the conviction of the appellant cannot be
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sustained and as such, the appellant be acquitted of the offences,
for which he is convicted.
5 Mrs. Rao, learned A.P.P submitted that no
interference was warranted in the impugned judgment and order
of conviction and sentence. She submitted that the evidence of
the victims, is corroborated by medical evidence and that mere
delay would not render the evidence of the prosecutrix,
suspicious. She further submitted that the evidence of each of the
victim girls inspires confidence and as such, will show the manner
in which the appellant sexually assaulted them. She further
submitted that PW6, an eye-witness has also duly corroborated
the evidence of the victim girls.
6 Mr. Kapadnis learned appointed advocate for the
original complainant supported the submissions advanced by the
learned A.P.P. Mr. Kapadnis further submitted that the appellant
has not even rebutted the presumption under Section 29 of
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POCSO Act. Mr. Kapadnis relied on the judgment of the Apex
Court in the case of Nawabuddin vs. State of Uttarakhand 1, to
show how crimes against women and children, in particular,
under the POCSO Act are to be dealt with.
7 Heard learned counsel for the parties and perused the
evidence. We will first deal with the evidence of the victim girls
i.e. PW1 (Survivor A); PW2 (Survivor B); PW3 (Survivor C);
PW4 (Survivor D) and PW5 (Survivor E).
8 PW1-Survivor A, at the time of the incident, was
aged 11 years. Her date of birth being 25th May 2000. According
to PW1, she knew the appellant, as he was the husband of her
paternal aunt and hence, would call him Mama. She has stated
that the appellant was living behind their house and that he
would call her for cleaning utensils. PW1 has further stated that
the appellant would hold her hand, remove her underwear, gag
her mouth and thereafter, would sexually assault her after
1 (2022) 5 SCC 419
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applying oil to her private part; that the appellant would threaten
her not to disclose the same or else he would beat her, and that
after the sexual assault, the appellant used to tell her to go home.
According to PW1, the first incident took place about 2 years
prior (to recording of her evidence) and although, she had pain,
she did not disclose the said incident to anyone. She has stated
that the said incident took place at the appellant's house at `R'.
She has stated that again when she had gone to her paternal
aunt's place at `P, when her aunt had gone to the agricultural
field, the appellant sexually assaulted her. PW1 has further
deposed that the appellant had called PW5 to perform dance and
that he had done the same thing with her, as he had done with
her and that the said incident was witnessed by PW6 and one `J'
and that PW6 and `J' disclosed the same to PW2's mother, after
which, she too disclosed the incident to her mother. PW1 has
identified the appellant in Court.
A perusal of the cross-examination would show that
there is no cross to the date of birth of PW1 and as such, the same
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has gone unchallenged. Thus, the prosecution has proved that
PW1 was 11 years old when the said incident of sexual assault
started. It is pertinent to note that there is absolutely no cross
also on the actual incident as deposed to by PW1 with respect to
sexual assault on her, as stated hereinabove. The only cross
conducted is on the activities of PW1 in school i.e. playing Kho-
Kho, Kabaddi, etc. and with respect to the house. There is also
no suggestion with respect to any dispute over any agricultural
land. Thus, the evidence of PW1 vis-à-vis the actual incident of
sexual assault as well as her date of birth, has gone unchallenged.
9 PW2-Survivor B was also a minor, studying in
standard V at the relevant time. She has stated that after coming
from school, she would clean utensils in the house, do sweeping
and also study. She has stated that the appellant was called,
Mama and would live at a short distance from their house; that,
whereas Mama lived at `R', his wife and children would live at
`P'. PW2 has deposed that Mama used to call her and send her
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to a shop to bring bidi for him and thereafter, he would close the
door and sexually assault her; and that he did the same with her,
about four times. PW2 has further stated that she disclosed the
sexual assault to her mother, by the appellant, only in March
2013; as the appellant had extended threats to her that he would
assault her. She has further stated that PW6 and `J' had seen the
appellant doing the said act with PW5 in the appellant's house at
`R', pursuant to which she also disclosed the incident to her
mother.
Again, there is no challenge to the evidence of this
witness with respect to PW2-Survivor B's age. Although, certain
omissions have come on record, the said omissions are not
material omissions and as such, do not in anyway discredit PW2's
testimony, vis-a-vis sexual assault on her. Infact, some of the
omissions are not omissions.
10 PW3-Survivor C, was also studying in standard V. She
too was studying in the same school as PW2, PW4 and PW5. She
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has stated that the appellant was known as Mama and would stay
near their house, alone. PW3 has stated that the appellant used
to call her to get bidi and matchstick from a shop; that after
bringing the same, he would close the door and sexually assault
her by gagging her mouth. She has stated that the incident
occurred only once. She has stated that she did not disclose the
said incident to any one, as the appellant had threatened her that
if she disclosed the same, he would burry her. She has further
deposed that the appellant would take her, PW4, PW2 and PW5
to a plot for eating cucumber and thereafter, he used to take them
to a hut and thereafter, the appellant would make her lie down
and would sleep on her. She has stated that on one day the
appellant caught PW4 and PW5, however, as PW4 started
shouting, he left her and caught hold of PW5 and did the same
thing with PW5. She has stated that the said incident was
witnessed by PW6 and `J' through the window and they disclosed
the said incident to PW5's mother, after which everybody learnt
about the sexual assault on the girls by the appellant.
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Although, the said witness PW3 was cross-examined
at length, nothing material was elicited in her cross-examination,
so as to discredit her testimony, nor is there any challenge to the
age of the said witness.
11 PW4-Survivor D, was at the relevant time in standard
IV. She has stated that the appellant was called as Mama and that
he was residing in front of her house, alone. She has stated that
the appellant used to ask her to bring matchbox from the shop
for him and after bringing the same, he would catch her and
thereafter sexually assault her; that he did the said act for about 5
to 6 times. She has stated that the said act was done in his house
as well as in a hut on a plot, when she and others had gone for
eating cucumber. She has further deposed that she did not
disclose the incident to anyone, as the appellant had abused her
and told her that he would burry her, `Gadun Takin'. PW4 has
stated that she had pains in her private part and that she had
informed her mother about the pains at the time of taking a bath.
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She has deposed that her mother learnt of the incident from
PW2's mother, after PW6 and `J' saw the incident. She also
disclosed about the incident, which took place on PW5.
Again, the cross examination of this witness is not on
the actual incident of sexual assault. Infact, in para 7 of the cross-
examination, witness has stated that "it has happened that Mama
took all of us inside the hut and removed our nickers" . The
suggestions given to PW4, have been denied by the said witness.
It may also be noted that there is no challenge to the age of the
said witness.
12 PW5-Survivor E was aged around 9 years at the
relevant time. She too has disclosed that the appellant was known
as Mama and that he would stay alone in the house near theirs;
that he would ask her to bring matchbox for him and thereafter
would sexually assault her by gagging her mouth. She has stated
that the said act was not only done in his house but also in a hut
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on a plot. She has further stated that PW6 and `J' had witnessed
the incident in the hut in the house of Mama and had disclosed
the incident to PW2's mother, after which, PW2's mother
approached the police.
Again, there is no cross with respect to the incident of
sexual assault on PW5 nor any challenge with respect to her age.
There is nothing material in the cross-examination, so as so
discredit the evidence of this witness.
13 PW6 was also studying in standard IV in the same
school alongwith other prosecutrix at the relevant time. He has
stated that the appellant was called as Mama and that he would
ask the children to bring bidi, match box and sugar and that he
would tell PW1 and PW2 to clean utensils. According to PW6, on
the day of incident, he, PW4 and PW5 were playing near the
house of the appellant and he called them. He has stated that on
one such occasion, he had followed the appellant to see what he
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was doing. He has stated that he saw the appellant sexually
assaulting PW2, PW4 and PW5. He has stated that the appellant
used to threaten all the children not to disclose the incident or he
would burry them. He has further stated that he and `J' disclosed
the incident to everyone.
Again, in the cross-examination, there is nothing
which has come on record to disbelieve or discredit the evidence
of the said witness. Infact, there is no cross-examination to what
was deposed by the said witness with respect to him having
witnessed sexual assault on the victim girls.
14 The complainant/first informant was examined as
PW7. She has stated that on 17 th March 2013, she learnt from
PW6 that the appellant sexually assaulted PW5; that he had seen
the incident from the gap of a hole. She has stated that thereafter
PW1 disclosed that the appellant was doing the same thing with
her, when he would call her to clean the utensils and that he did
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the said act about 10 to 12 times. Pursuant thereto, PW7 lodged
an FIR with Valiv Police Station, Vasai, Thane, against the
appellant. The said FIR is exhibited as Exhibit 23.
15 The aforesaid evidence i.e. of the survivors as well as
PW6 and PW7 is consistent and corroborates each other. The
said evidence is also duly corroborated by the medical evidence
and Chemical Analyser's report, which has come on record.
16 PW8-Dr. Sheela Chakre was attached to G.S. Medical
College and K.E.M. Hospital, at the relevant time. She has stated
that on 21st March 2013, five minor girls were referred for
medical examination and that she and two other doctors from the
Gynaecological Department examined the said girls.
PW8 has deposed that the date of birth of PW1 was
given as 25th May 2000 and that she was about 13 years of age at
the time of examination. She has stated that PW1 disclosed to her
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that she was sexually abused by her Mama i.e. her aunt's husband
for 2 years; that the said act was done at his home and in the
farm. She has further deposed that PW1 gave history of sexual
assault of penis penetration and feeding of breast; of wiping of
genitals by cloth (towel/bed sheet) by the appellant; and of using
oil at the time of the act. PW8, on examination, found that the
hymen was ruptured and there was cornuculae formation seen.
On physical examination, it was found that there was
penetration. PW8 has deposed that the age of PW1 was around
13 to 14 years.
According to PW8, she also examined PW2 on the
same day i.e. on 21st March 2013; that the date of birth of PW2
was 11th June 2004 and as such, she was 9 years of age at the time
of her examination; that the history given by PW2 was that the
sexual assault, one month prior to her examination; that there
was an attempt of penetration but as she screamed, the appellant
gagged her and thereafter stopped the act. On physical
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examination, PW8 found a small tear of 4 O'clock position over
the hymen and that the hymen was not totally ruptured and as
such, opined that there was evidence of chronic vaginal
penetration but no evidence of any pysical abuse. She has stated
that the age of the survivor was 9 years and as her vagina was not
fully developed, inspite of chronic penetration, it has not gone
inside and as such, there was only a tear at 4 O'clock position.
PW8 thereafter examined PW3, who gave her date of
birth to be 9 years. According to PW8-Dr.Chakre, PW3 also gave
history of penile penetration, which she resisted; that she was
threatened not to reveal the act to any person. On examination,
PW8 found that there was an old multiple tear to hymen from 7
O'clock to 9 O'clock position; that the hymen was not totally
ruptured, however, on examination, evidence was found of
chronic vaginal penetration. She has stated that as PW3 was aged
9 years, her vagina was not fully developed, inspite of chronic
penetration, it has not gone inside and hence, a tear at 7 O'clock
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to 9 O'clock position was seen. She has stated that on hitting of
penis on vagina, such tear can be caused.
PW5 was also examined on 21st March 2013 by PW8.
PW8 has given PW5's date of birth as 15 th July 2003. She has
further deposed that the history given by PW5 was attempted
penial penetration along with holding hands and history of
showing porn video. On examination, it was found that there
was a small tear at 4 O'clock position with presence of slight
inflammation around the opening of hymen. The inflammation
indicated recent sexual assault. PW8 also found that the hymen
was not totally ruptured and as such, opined that there was
evidence of recent vaginal penetration.
The said evidence of PW8 is duly supported by
medical case papers, which have been exhibited as Exhibits 26,
28, 30, 33 and 37.
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17 Although PW10-Dr. Ravindra Deokar, who gave the
report with respect to the ages of the survivors, was examined to
prove the ages of the survivors, since there is no challenge by the
appellant to the ages of the survivors, it is not necessary to deal
with the said evidence, since the said evidence also show that the
victim girls were all minors at the relevant time.
18 Considering the aforesaid evidence, it is evident that
all the five victim survivors were sexually assaulted by the
appellant. Not only the evidence of the survivors inspires
confidence but the same stands duly corroborated by the medical
evidence and the evidence of PW6 who had witnessed the
incident of sexual assault. All the survivors were minors, between
the age group of 8 to 13 years. Under Section 29 of the POCSO
Act there is a presumption. The said presumption has not been
rebutted by the appellant.
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19 Considering the aforesaid evidence on record, we do
not find any infirmity in the impuguned judgment and order of
conviction and sentence and as such, uphold the conviction and
sentence imposed by the trial court. Accordingly, the Appeal
stands dismissed.
20 We would like to record a word of appreciation for
the able assistance provided and the efforts taken by Ms. Laxmi
Raman, as an appointed advocate for the appellant, in conducting
the appeal and Mr. A. R. Kapadnis, as an amicus curiae. High
Court Legal Services Committee to award fees to both the learned
counsel, as per Rules.
PRITHVIRAJ K. CHAVAN, J. REVATI MOHITE DERE, J.
