Bombay High Court
Gajanan S/O Dnyanba More vs State Of Mah. Thr. Ps Amdapur ... on 26 September, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:11104
218. cr.apeal.730.2022 .jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 730 OF 2022
Gajanan S/o. Dnyanba More,
Aged about 52 yrs, Occ: Labour,
R/o. Kavhala, Tah. Chikhli, and
Dist. Buldana (appellant In Jail) .... APPELLANT
// V E R S U S //
1. State of Maharashtra,
through Police Station Amdapur,
Tah. Chikhli and Dist. Buldana
2. XYZ (Victim),
Through Police Officers,
Police Station Amdapur,
Tah. Chikhli and Dist. Buldana
Crime No. 100 of 2020 ... RESPONDENTS
----------------------------------------------------------------------------------------------
Mr. P. H. Khobragade, Advocate (appointed) for the appellant
Mr Amit Chutke, APP for the respondent No.1/State
Ms Radha Mishra, Advocate (appointed) for respondent No.2
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 26/09/2024
ORAL JUDGMENT :
1 In this appeal, the challenge is to the judgment and
order, dated 30.08.2021, passed by the learned Additional
Sessions Judge, Buldhana, whereby the learned Judge,
218. cr.apeal.730.2022 .jud..odt
convicted the accused/appellant for the offence punishable
under Section 376-AB of the Indian Penal Code (for short 'the
IPC') and Sections 4, 6 and 8 of the Protection of Children
From Sexual Offences Act, 2012 (for short 'the POCSO Act')
and sentenced him to suffer rigorous imprisonment for twenty
(20) years and to pay a fine of Rs.2,000/- (Rupees Two
Thousand Only) and in default to suffer simple imprisonment
for one month. No separate sentence has been awarded for the
offence punishable under Sections 4, 6 & 8 of the POCSO Act.
2 Background facts:
The informant (PW-1) is the mother of the victim
girl, who on the date of the incident was 8 years old. The report
of the incident was lodged on 09.03.2020 by the informant.
The case of the prosecution, which can be gathered from the
report and other materials, is that on 07.03.2020, the informant
with her daughter had gone to the field of one Dattatray Jape
for doing labour work. The other women Smt. Alkabai
218. cr.apeal.730.2022 .jud..odt
Dalimkar, Kasabai Kakade, Ujjwala Sonune and Manjulabai
More were also with the informant for doing the work on the
field. The appellant is the neighbour of the informant. On the
date of the incident, the victim was playing with Dhanashri, the
granddaughter of the appellant, near one cattle shed of
Dattatray Jape.
3 It is stated that the accused/appellant called the
victim and requested her to help him in holding the pipes. The
victim accompanied the appellant in the field of maize. The
appellant, in the field of maize, removed his underwear and the
underwear of the victim. He committed sexual intercourse
with the victim. The victim started crying. The appellant
threatened the victim not to disclose the incident to anybody.
He promised to give Rs.15-20 to her after going back home.
4 When the victim came out of the maize field, the
informant noticed that her underwear was wet. She inquired
218. cr.apeal.730.2022 .jud..odt
with the victim about it. The victim told her that it was due to
urination. In the evening of 07.03.2020, at about 5:30 p.m.,
the victim returned to home with her mother. The victim at
that time complained to her mother that there was a severe pain
in her private part. The informant examined her private part.
She noticed that the portion of the private part had turned
reddish and there was swelling as well. The mother made an
inquiry with the victim. The victim at that time narrated the
incident that had occurred with her as above. The husband of
the informant was not at home. On the next day in the
morning, the informant disclosed this incident to her husband.
The informant and her husband on account of this serious
incident were mentally disturbed. On the next day i.e. on
09.03.2020, they went to the Police Station Amdapur and
lodged the report. On the basis of the report of mother, the
crime bearing No.100 of 2020 was registered against the
appellant.
218. cr.apeal.730.2022 .jud..odt
5 The investigation in the crime was carried out by
Pravin Sonawane (PW-9). PW-9 before recording the FIR
referred the victim for medical examination. During the course
of the investigation, the investigating officer seized the clothes
of the victim and the clothes of the appellant. The samples were
collected and forwarded to RFSL, Amravati. The investigating
officer recorded the statements of the witnesses. The statements
of the victim and the informant had been recorded under
Section 164 of the Code of Criminal Procedure (for short 'the
Cr.P.C.') by the Magistrate. The accused/appellant was arrested.
He was examined by the doctor. On completion of the
investigation, PW-9 filed the charge-sheet against the appellant.
6 Learned Judge framed the charge against the
appellant. The appellant pleaded not guilty. His defence is of
false implication on account of enmity with the mother of the
victim. There was a dispute between them on account of the
construction of a wall on the plot of the informant. In order to
218. cr.apeal.730.2022 .jud..odt
bring home the guilt of the appellant, the prosecution
examined nine witnesses. The learned Judge, on consideration
of the evidence, convicted and sentenced the appellant as
above. The appellant has come before this Court in appeal
against this judgment and order.
7 I have heard the learned Advocate Mr P. H.
Khobragade, appointed to represent the accused/appellant, the
learned APP Mr A. R. Chutke for the State and the learned
Advocate Ms Radha Mishra, appointed to represent respondent
No.2. Perused the record and proceedings.
8 Learned Advocate for the accused/appellant
submitted that the evidence adduced by the prosecution is not
cogent, concrete and reliable. There was inordinate delay in
lodging the report. The delay in lodging the report reflects
upon the credibility and trustworthiness of the evidence of the
informant and the victim. On account of the dispute between
218. cr.apeal.730.2022 .jud..odt
the appellant and the informant, after due deliberation, the
appellant was falsely implicated in this case. The incident
narrated in the report was afterthought and embellished. There
is no other independent corroborative evidence. There are
number of doubtful circumstances established on record and on
the basis of those circumstances, the case of the prosecution
cannot be believed. The conduct of the informant as well as
the conduct of her husband, who has been examined as a PW-3,
is not consistent. It is submitted that if the incident, as alleged,
had occurred, then immediately on the next day the informant
and her husband would have reported the same to the police.
The informant did not even inform her husband about the
alleged incident in the night of 07.03.2020. It is submitted that
this conduct is inconsistent and therefore creates a doubt.
Learned Advocate further submitted that the medical evidence
is hardly of any use to substantiate the case of the prosecution.
The evidence of the medical officer indicates that the age of the
218. cr.apeal.730.2022 .jud..odt
injury noticed by him was not correctly recorded. It is
submitted that such injury could be possible due to insertion of
a finger by any person. Learned Advocate submitted that the
learned Judge has failed to properly appreciate the evidence
adduced by the prosecution and has come to a wrong
conclusion. The evidence is not at all sufficient to prove the
charge.
9 Learned APP submitted that the delay in lodging
the report, per se could not be the ground to acquit the
appellant. It is submitted that the prosecution has satisfactorily
explained the delay. The parents of the victim are rustic
villagers. The serious offence was committed with their
daughter. The parents were therefore bound to give a second
thought to all the surrounding consequences before lodging the
report. Considering the fact that their 8 year old daughter was
ravished, they gave full thought to the surrounding
consequences and ultimately went to the police and lodged the
218. cr.apeal.730.2022 .jud..odt
report. Learned APP further submitted that if the informant
wanted to falsely implicate the appellant, then it was not
necessary for her to involve her daughter in such an incident.
She could have lodged any false report involving herself in such
a matter. Learned APP submitted that the medical evidence
fully corroborates the version of the victim, the informant and
the father of the victim. The evidence of the informant, the
victim and her father is natural. They have not exaggerated any
fact. Similarly, they have not concealed any fact from the
Court. Learned APP submitted that the learned Judge has
properly appreciated the entire evidence adduced by the
prosecution and convicted and sentenced the appellant.
10 Learned Advocate appointed to represent
respondent No. 2 has adopted the submissions advanced by the
learned APP.
11 I have gone through the record and proceedings.
218. cr.apeal.730.2022 .jud..odt
Learned Judge thoroughly appreciated the evidence on record
and recorded a finding against the appellant. The Advocate for
the appellant had admitted the birth certificate of the victim. It
is at Exh. 44. The birth date of the victim is 24.04.2011. The
mother of the victim has stated that the victim was 8 years old
on the date of the incident. The prosecution, on the basis of
this evidence, has proved that on the date of the incident, the
victim was below 12 years of age.
12 The submission with regard to the delay in lodging
the report has to be considered keeping in mind the evidence
adduced by the prosecution and the attending circumstances.
PW-1 informant is the mother of the victim. She has stated
that on the date of the incident, she had gone for labour work
on the field of one Mr Jape. The appellant had also come there
to do work on the field. Her daughter and the granddaughter
of the appellant were playing near the cattle shed of Mr Jape.
She has stated that after some time, the victim came to her. She
218. cr.apeal.730.2022 .jud..odt
asked her where she had gone ? She told her that the appellant
had taken her in the field of maize to help him in holding the
pipe. She has stated that she found that her underwear was wet
and on being questioned, the victim told her that she had
urinated. This shows that in the field immediately after the
incident, the victim did not narrate the incident to her mother.
It is pointed out that the victim later on stated to her mother
that when she cried after this incident, the appellant extended
threats to her. The appellant promised to pay her Rs.15-20 after
going back home. She has further stated that after going home,
the victim complained of pain in her private part. She
examined her private part. She found that there was a swelling
and it had turned reddish. She has stated that she inquired with
her about the same and at that time she narrated the incident of
penetrative sexual assault on her by the appellant. She has
stated that in the night her husband came back from the field
late and therefore, she did not narrate the incident to him. She
218. cr.apeal.730.2022 .jud..odt
has stated that in the morning she narrated the incident to him
and therefore, her husband was disturbed. She has stated that
thereafter they lodged the report on 09.03.2020.
13 Sau Shilabai Kadam (PW-1) has been subjected to
searching and gruelling cross-examination. It is apparent on
perusal of her cross-examination that no material has been
elicited in her cross-examination to cause a dent to the core of
her evidence vis-a-vis the incident with her daughter. Perusal of
her cross- examination would show that she is a simple rustic
villager. She has not even attempted to hide anything from the
Court. She has not given any evasive answers or avoided
answering any question. She has admitted that there was a
programme at Pandav Temple, which is adjoining to this field.
It has come on record that this field is adjacent to the village.
She has stated that 500-600 people had gathered for the
programme at the temple. She has stated that this field is at a
distance of 20 feet from the temple. She has stated that she did
218. cr.apeal.730.2022 .jud..odt
not hear the hue and cry made by the victim. She has admitted
that in the night she did not narrate the incident to her husband
but narrated it to him on the next day. She has admitted that
her relatives are residing in the same village, but she did not
narrate the incident to them. She has stated that on the next
day, after narrating the incident to her husband, they did not
take their daughter to the hospital. On the next day, as usual,
she and her husband went to the field for labour work. She has
stated that on the next day in the field, the appellant, his wife
and other women taken their lunch together. She has admitted
that she did not narrate this incident to the wife of the
appellant. She has stated that for two days without narrating
the incident to anybody, they and their relatives deliberated on
this incident and then they decided to lodge the report. As far
as the defence of the appellant is concerned, she has admitted
that there was a common wall between her house and the house
of the appellant. She has admitted that the appellant, without
218. cr.apeal.730.2022 .jud..odt
their permission, has constructed the common wall on their
property. She has stated that therefore they did not pay the
money for the construction of the wall. She has stated that
therefore they were hurt. It is to be noted that there is no
specific question as to the month and year of the construction
of the wall. It has not come on record whether it was
immediately prior to the occurrence of the incident or 2-3 years
prior to the occurrence of the incident. The informant has not
concealed anything from the Court.
14 PW-2 is the victim girl. In her evidence before the
Court she has narrated the first hand account of the occurrence
of the incident. It is to be noted that her statement under
Section 164 of the Cr.P.C. was recorded by the learned Judicial
Magistrate First Class, Chikhli, on 13.03.2020. The statement
is at Exh. 10. Perusal of her statement would show that she
narrated the entire incident before the learned Magistrate. The
incident narrated by her before the learned Magistrate and the
218. cr.apeal.730.2022 .jud..odt
narrated before the Court at the time of her evidence is
consistent. I do not see any inconsistency in her evidence
recorded before the Court as well as the statement recorded
before the Magistrate.
15 The victim at the time of the incident was 8 years
old. The victim and the granddaughter of the appellant, before
the occurrence of the incident, were playing near the cattle shed
of Mr. Jape. In her evidence, she has stated that the appellant
took Dhanashri towards the women and took her alone with
him under the pretext of holding the pipes. He took her in the
field of maize and committed intercourse with her. She has
stated that after this incident, he threatened her. He promised
to give her Rs.15-20 after going back home. She has stated that
her mother made an inquiry with her as to where she had gone.
She told her that she had accompanied the appellant to help
him lift the pipes. She has further stated that her mother found
that her underwear was wet and on being questioned by the
218. cr.apeal.730.2022 .jud..odt
mother, she told her that she has urinated. She has stated that
after coming back home she narrated the incident to her
mother. She has been cross-examined. She has stated that
while plucking the tomatoes in the field, the women could not
see them. She has stated that in the field she did not narrate the
incident to her mother. She has stated that in the night when
her father came from the field, they did not narrate the
incident to him. It was narrated to him in the morning. Perusal
of her cross-examination would show that she has given rational
answers to all the questions put to her in the cross-examination.
Her conduct at the time of her evidence is also very material. It
is to be noted that a child witness is prone to tutoring. I have
already observed that the parents of the victim are rustic
villagers. The victim has been raised in a company of the rustic
parents. The firmness while answering the questions in the
cross examination by the victim indicates that there is a ring of
truth to her version. It does not remotely suggest the ring of
218. cr.apeal.730.2022 .jud..odt
falsehood. She has stated that except for her parents, she did
not narrate this incident to any third person. She has stated that
she has not even narrated this incident to her sister Durga. It is
to be noted that if the victim was tutored to make a concrete
statement against the appellant before the Court, in my view,
she could have been easily caught in the cross-examination.
The tutored witness, narrating the incident before the Court on
tutoring and with sheer imagination, is bound to commit a
mistake on certain material facts. Perusal of her evidence in
entirety would show that her evidence has no ring of falsehood.
The statement made by her before the Magistrate with regard to
the incident is consistent with what she has stated about the
incident at the time of her evidence. The evidence of the victim
as to the occurrence of the incident and involvement of the
appellant in the incident has not at all been shaken. The
evidence on minute scrutiny is found to be credible and
trustworthy. I do not see any reason to discard and disbelieve
218. cr.apeal.730.2022 .jud..odt
the evidence of the victim. The evidence is natural. The victim
has narrated the first hand account of the incident before the
Court as well as before the Magistrate, when her statement
under Section 164 was recorded. The evidence of the victim,
therefore, fully corroborates the evidence of her mother PW-1.
16 It is to be noted that there is no dispute with regard
to the presence of the appellant in the field. Similarly, there is
no dispute with regard to the presence of the informant, the
victim and the granddaughter and other women in the field on
the given date. The victim had no reason to falsely implicate
the appellant. The appellant on the date of the incident was 52
years old. He was doing labour work on the field of Mr Jape.
There is one important fact which in my view, reflects upon the
credibility and truthfulness of the evidence of the victim. The
victim did not narrate the incident to her mother in the field.
The victim has stated that the appellant told her not to disclose
the incident to anyone and threatened her. She has also stated
218. cr.apeal.730.2022 .jud..odt
that the appellant had promised to give Rs.15-20 to her after
going back to the house. The victim at the time of the incident
was 8 years old. She was subjected to a very serious incident of
sexual assault. She must be horribly terrified. She would have
taken a long time to come out of this shock and trauma. The
child is bound to get lured by such a promise. Similarly, a threat
given by elderly person is bound to make an impact on the
psyche of a child. In my view, therefore, the failure on the part
of the victim to disclose the incident to her mother immediately
will not reflect on the credibility of her evidence.
17 Rameshwar Kadam (PW-3) is the father of the
victim. He has stated that his wife narrated this incident to him
in the morning of 08.03.2020. He has stated in his evidence
the incident narrated to him by his wife. It is consistent with the
incident narrated by the informant and the victim. He has
stated that on being apprised of this incident, he was mentally
disturbed. He therefore sent his wife on the field for work on
218. cr.apeal.730.2022 .jud..odt
08.03.2020. He has stated that in the evening, after coming
back from the field, they deliberated upon this serious crime
committed with their 8 year old daughter and then decided to
take it seriously and lodged the report against the appellant. I
have gone through his cross-examination. No admission of any
significance has been elicited in his cross-examination to doubt
his veracity. His evidence is not direct evidence on the
occurrence of the incident or some of the events that occurred
on the field. In the evidence of the informant as well as in the
evidence of the father PW-3, they have categorically stated the
reason for not lodging the report on 08.03.2020. The reason
for the delay therefore deserves appreciation, keeping in mind
the fact stated by them and the attending circumstance.
18 I have already observed that the defence is silent
about the construction of the common wall between the house
of the informant and the house of the appellant. The informant
has admitted that on that count there was a dispute between
218. cr.apeal.730.2022 .jud..odt
them. The question is, when did the dispute arise ? Whether it
was immediately prior to the occurrence of the incident or 2-3
years prior to the occurrence of the incident ? Even if it is
assumed for the sake of argument that there was a dispute on
this count between the informant and the appellant, the
informant would not have involved her daughter in such an
incident. It is not out of place to mention that the reporting of
such a crime to the police invites stigmatic consequences not
only for the victim but for the family. The reporting of such a
matter to the police and placing the same in the public domain
can cause irreparable damage to the future of the victim as well
as to the reputation of the family. Reporting of such a crime has
a tendency to harm the reputation of the family as well as
prejudicially affect the future of the victim. If the informant
wanted to take revenge on account of the dispute she could
have lodged a false report by creating some imaginary story.
The conduct of the mother and father is consistent with this
218. cr.apeal.730.2022 .jud..odt
position. They did not go to the police on 8.03.2020. They
were bound to get mentally disturbed after this incident. There
is no reason to discard and disbelieve the statement made by
them. Such an incident affects the psyche of the person. Person
would take time to come out of a shock and trauma of such an
incident. The victim would have obviously been traumatized.
The incident would have caused shock and mental stress to the
informant and the father. Due to the shock and trauma
suffered by them, they would have taken some time to settle.
They deliberated upon it and lodged the report. It is to be
noted that delay per se can't be a ground to discard the
otherwise cogent, concrete and reliable evidence. The delay can
create a suspicion in the mind of a Court if it is not properly
explained. The Apex Court in the case of State of Rajasthan
Vs. Om Prakash1 has observed that the object of insisting upon
prompt lodging of a report to the police in respect of the
commission of an offence is to obtain early information
1 (2002) 5 SCC 745
218. cr.apeal.730.2022 .jud..odt
regarding the circumstances in which the crime was committed,
the names of the actual culprits and the part played by them as
well as the names of eye-witnesses present at the scene of
occurrence. It is observed that the delay in lodging FIR quite
often results in embellishment, which is a creature of an
afterthought. It is further observed that on account of delay, the
report not only gets bereft of the advantage of spontaneity,
danger creeps in of the introduction of coloured version,
exaggerated account or concocted story as a result of
deliberation and consultation. It is settled legal position that
delay per se is not the ground to throw the case of the
prosecution over board.
19 In this case, the parents are rustic villagers. They
are illiterate. Their evidence shows that they had no backing
from the village. Their daughter was subjected to penetrative
sexual assault. It was therefore natural for them to give a second
thought to the idea of lodging the report with the police. They
218. cr.apeal.730.2022 .jud..odt
ultimately went to the police on 09.03.2020 and reported the
matter to the police. In my view, in this case, the delay has been
satisfactorily explained.
20 Minute scrutiny of the evidence of the informant
(PW-1), the victim (PW-2) and father of the victim (PW-3)
would show that their evidence can't be discarded. Their
credibility in their cross-examination has not been shaken. The
attending circumstances are sufficient to conclude that there is
no ring of a falsehood to their evidence. Their evidence is
credible and trustworthy, The evidence, which is credible,
cogent, reliable and trustworthy cannot be discarded and
disbelieved only on the ground of delay in lodging the report. I
do not see any reason to discard and disbelieve the evidence of
these witnesses.
21 The next important piece of evidence is of the
medical officer, who had examined the victim. Dr. Rudhira
218. cr.apeal.730.2022 .jud..odt
Jadhav (PW-7) is the medical officer. It is seen that when the
informant went to the police with the victim and reported the
matter orally to the police before recording the FIR, the
investigating officer sent the victim to the medical officer for
examination. The victim was examined by the medical officer
on 09.03.2020 at about 5:30 p.m. The report was lodged on
09.03.2020. But the FIR was registered on 10.03.2020 at
about 1:27 a.m. The medical officer, on examination of the
victim, found injury to her hymen. The doctor has stated that
the hymen was torn at 7:00 o'clock and 2:00 o'clock positions.
The age of the said injury was between 24 and 36 hours. It is
true that the victim was examined after about 45 hours. It is
submitted that the age of injury mentioned by the medical
officer therefore creates a doubt about the age of the injury. It is
to be noted that the doctor has nowhere stated that the injury
was fresh. The submission made on behalf of the appellant
would have substance if the doctor had stated that the injury
218. cr.apeal.730.2022 .jud..odt
was fresh or it was 50 hours old at the time of examination. It
was suggested to the doctor that such an injury could be
possible while playing, cycling or by inserting the finger. The
doctor has denied this suggestion. The doctor has stated that
such an injury could not be possible in the case of a small girl.
The doctor has stated that if the intercourse is committed with
8 year old girl, then two injuries namely perineal and oedema
(edema) are possible. The evidence of the doctor with regard to
the injury to her genitals has not at all been shaken. In my view,
therefore, this evidence fully corroborates the evidence of the
victim, the informant and the father of the victim. I do not see
any reason to discard and disbelieve this evidence.
22 As far as the CA reports and DNA reports are
concerned, nothing material has been noticed in the same. The
statement of the informant was recorded by the learned
Magistrate under Section 164 of the Cr.P.C. The record shows
that this statement was not exhibited. It was a procedural error
218. cr.apeal.730.2022 .jud..odt
on the part of the learned Judge. This statement is a part of the
record. Perusal of this statement would show that the incident
narrated by her before the Magistrate is consistent with the one
narrated before the police at the time of lodging the report. On
going through the record, I am satisfied that there is no mistake
or error committed by the learned Judge. The learned Judge,
on the basis of the evidence, has observed that in this case the
presumption provided under Section 29 of the POCSO Act
would get triggered against the appellant. The learned Judge
has observed that thse appellant has not adduced any evidence
in rebuttal to dispel this presumption. It is to be noted that in
order to invoke the presumption under Section 29 of the
POCSO Act, the prosecution is duty bound to establish the
foundational facts vis-a-vis the charge framed against the
appellant. In this case, the evidence adduced by the
prosecution is sufficient to prove the foundational facts as to the
charge framed against the appellant. The presumption under
218. cr.apeal.730.2022 .jud..odt
Section 29 of the POCSO Act would trigger with full force.
There is no evidence in rebuttal adduced by the appellant. I do
not see any reason to discard and disbelieve the evidence of the
prosecution. Similarly, I do not see any mistake or error on the
part of the learned Judge so as to set aside the well reasoned
judgment and order. The appeal, therefore, deserves to be
dismissed. Accordingly, the criminal appeal is dismissed
23 Before parting with the matter, I must acknowledge
the efforts put in by the learned Advocate Mr. P. H.
Khobragade, appointed to represent the accused/appellant, the
learned APP Mr Amit Chutke, for the State and the learned
Advocate Ms Radha Mishra, appointed to represent respondent
No.2. The learned Advocates extended the able assistance to
this Court. I therefore put my appreciation on record for the
advocates.
24 Mr P. H. Khobragade, learned Advocate appointed
218. cr.apeal.730.2022 .jud..odt
to represent accused/appellant and Ms Radha Mishra, learned
advocate appointed to represent respondent No.2 in this appeal,
are entitled to receive the fee. The High Court Legal Services
Sub Committee, Nagpur is directed to pay the fee of the learned
appointed Advocates, as per the rules.
25 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: 05/10/2024 10:33:46
