Bombay High Court
Kishor S/O. Kamlakar Patil vs The State Of Mah. Thr. Pso, Ps. ... on 29 January, 2025
2025:BHC-NAG:996
Judgment
349 apeal208.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.208 OF 2023
Kishor s/o Kamlakar Patil, aged
about 49 years, occupation service,
r/o 18, Sukhasagar Society, Dabha,
Nagpur (presently central jail at
Nagpur). ..... Appellant.
:: V E R S U S ::
1. The State of Maharashtra, through
Police Station Officer, P.S.
Gittikhadan, district Nagpur.
2. XYZ,
through complainant/informant in
crime No.39/2018, registered with
Police Station Gittikhadan, district
Nagpur. ..... Respondents.
===================================
Shri C.R.Thakur, Counsel for the Appellant.
Shri C.A.Lokhande, Additional Public Prosecutor for
Respondent No.1.
Mrs.Rekha Godbole, Counsel Appointed for Respondent
No.2.
===================================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 13/01/2025
PRONOUNCED ON : 29/01/2025
JUDGMENT
1. By this appeal, the appellant (accused) has
challenged judgment and order dated 31.1.2023 passed
.....2/-
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349 apeal208.23
by learned Additional Sessions Judge, Nagpur (learned
Judge of the trial court) in Special POCSO Case
No.93/2018.
2. By the said judgment impugned, the accused is
convicted for offence under Section 376(2)(f)(i)(j)(k) and
(n) of the Indian Penal Code read with Section 6 of the
Protection of Children from Sexual Offences Act (the
POCSO Act) and sentenced to undergo rigorous
imprisonment for fifteen years and to pay fine
Rs.15,000/-, in default, to undergo rigorous imprisonment
for five months. The accused is further convicted for
offence under Section 506 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for one
year and to pay fine Rs.1000/-, in default, to undergo
rigorous imprisonment for one month.
"A Common Quote from a father about his
daughter is, "A daughter may outgrow in her
father's lap, but she will never outgrow in his
heart", signifying that a father's love for his
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daughter remains constant and no matters
how old she gets.
Contrary to this Quote, in the present matter,
the accused, who is a father of the victim, is
facing charges for offences under Sections
376(2)(f)(i)(j)(k) and (n) and 506 of the Indian
Penal Code read with Section 6 of the POCSO
Act.
There can never be more shocking heinous
crime when a father is charged for committing
sexual assault on his own daughter."
3. Facts of the prosecution case necessary for
disposal of the appeal run as under:
In the year 2009, the victim complained her mother
that the accused, who is her father, inappropriately
touched her private part. The mother, who was serving as
"Nurse" in a private hospital, scolded and abused the
accused. After knowing, that the victim has disclosed the
fact of sexual harassment to her mother, on the next day,
.....4/-
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the accused came along with the victim and the victim
disclosed to her mother that no such incident had
happened. As per the allegations, the victim was 6-7
years old girl and was subjected for the sexual assault by
the accused by threatening her. As the victim was
threatened by the accused, she was forced to inform her
mother that no such incident had taken place. The victim
was restrained from disclosing continuous sexual assault
on her by the accused. However, she disclosed to her
friends about the said incident. She disclosed that the
accused has developed physical relationship with her. On
knowing this fact, the friends informed the same to their
Class Teacher and the Class Teacher informed to the
Principal. At the relevant time, the victim was studying in
"Saraswati Vidyalaya" at Shankar Nagar, Nagpur. In
December 2016, the mother of the victim received a
phone call from the Principal of the said school and,
therefore, she met the Principal who disclosed her that
whether she is aware that the accused had developed
physical relationship with the victim and also carried out
.....5/-
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her pregnancy test thrice. She made an enquiry with the
victim and the victim also disclosed her the similar
incident. On asking, why she has not disclosed her, the
victim informed that she would have scolded the accused
and she is scared of act the accused would do with her.
On hearing the same, on 17.12.2016, the mother of the
victim hid herself in the storeroom. In the evening, she
witnessed the accused subjecting the victim forceful
sexual assault. Therefore, she obtained video shooting.
The accused got scared and he was driven out of the
house. But, due to apprehension of defamation, she did
not lodge report. Subsequently, the victim was under
depression and also attempted to commit suicide and,
therefore, the mother took the victim to Dr.Bhave for
counselling. Dr.Bhave, asked her to lodge a report looking
to condition of the victim. Therefore, the mother has
lodged the report. On the basis of the said report, the
crime was registered against the accused.
4. After registration of the crime, the victim was sent
for medical examination and her samples were collected.
.....6/-
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The accused was arrested and he was also referred for
medical examination and the samples were collected and
forwarded for Forensic Analysis. The Investigating Officer
has recorded relevant statements of witnesses and after
completion of the investigation, the Investigating Officer
submitted chargesheet against the accused.
5. Learned Judge of the trial court framed charge vide
Exh.5. The accused has not pleaded guilty and claimed to
be tried.
6. In support of the prosecution case, the prosecution
has examined as many as 11 witnesses namely PW1 the
mother of the victim Exh.14, PW2 the victim, PW3
Dr.Monisha Das Exh.39, PW4 Anjali Singh Exh.42 friend of
the victim, PW5 Rahul Ghode Exh.45 Class Teacher, PW6
Sheikh Rizwan Exh.48 pancha on spot and seizure
panchanama, PW7 S.Prabhuraman Exh.53 Principal, PW8
Dr.Sudhir Bhave Exh.55 Psychiatrist, PW9 Monali Pohankar
Exh.59 Member of NGO, PW10 Dr.Madhuri Patil Exh.60,
PW11 Shalini Kinake Exh.67 Investigating Officer.
.....7/-
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7. Besides the oral evidence, the prosecution placed
reliance on report Exh.29, FIR Exh.30, seizure memos
Exhs.31 and 32, medical treatment papers of Dr.Sudhir
Bhave Hospital Exh.40, spot panchanama Exh.49, seizure
panchanama Exhs.50 and 51, medical certificate Exh.61
and CA Reports Exh.84.
8. After appreciation of the evidence, the accused was
held guilty and convicted as the aforesaid.
9. Heard learned counsel Shri C.R.Thakur for the
accused, learned Additional Public Prosecutor Shri
C.A.Lokhande for the State, and learned counsel
Mrs.Rekha Godbole appointed for the victim.
10. Learned counsel for the accused submitted that due
to matrimonial dispute, on the say of the mother of the
victim, the accused is implicated by the victim with a false
allegation. There is inordinate delay in lodging the FIR.
The evidence of the victim is not inspiring confidence and
is not corroborated by the medical evidence.
.....8/-
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11. As far as the evidence of PW3 Dr.Monisha Das and
PW8 Dr.Sudhir Bhave is concerned, they are interested
witnesses.
12. Class Teacher PW5 Rahul Ghode and Principal PW7
S.Prabhuraman are also deposing on the say of the
mother of the victim. Except hymenal tear, there is no
evidence to prove that it was the accused who subjected
the victim for forceful sexual assault.
13. As per the prosecution case, the victim was minor
at the relevant time and to prove the age of the victim,
the prosecution mainly placed reliance on the evidence of
mother of the victim who narrated the age of the victim as
twelve years at the time of lodging of the report and birth
date narrated is 17.6.2004. The birth certificate of the
victim is not produced on record Moreover, the birth date
of the victim is not challenged by the defence during the
cross examination. The victim has also narrated her birth
date as 17.6.2004. The victim is also not cross examined
on the aspect of her birth date. The evidence of Class
Teacher PW5 Rahul Ghode and Principal PW7
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S.Prabhuraman also shows that when the incident was
reported by the victim to her friends, she was studying in
8th Std.. The evidence of Principal PW7 S.Prabhuraman
also shows that the victim was studying in 8th std. and
PW5 Rahul Ghode was class teacher of Std.8.
14. Thus, as far as the evidence of the victim as to the
birth date is concerned, the same remained unchallenged
and, therefore, it is to be accepted.
15. So far as charge under Section 376(2)(f)(i)(j)(k)
and (n) of the Indian Penal Code is concerned, the implicit
reliance placed on record by the prosecution is on the
evidence of PW2 the victim who testified on oath that she
was residing at Sukhasagar Society, Dabha, Nagpur along
with her mother, father, and sister. Her mother is working
as "Nurse" with "Midas Hospital" and father was working
with Centre Point School as "Peon". She with her sister
was taking education at "Saraswati Vidyalaya". The duty
time of her mother was 3:00 pm to 9:00-9:30 pm.
Whereas, working time of her father was 7:00 am to 5:00
pm and her school timing was 11:00 am to 5:00 pm. After
.....10/-
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her school, she used to stay with her father at the house.
She further testified that when she was in KG, the accused
sexually harassed her by touching his penis to her vagina.
She disclosed the said act to her mother. Her mother
scolded her father and on the next day, her father beat
her and took her to the hospital and forced her to tell
whatever she informed was false. When she was in 6 th
Std., the father started developing physical relationship
with her. On her refusal, he used to beat her, but she has
not informed about the same to anybody as he used to
threaten her that he would kill her if she discloses the
incident. Even, whenever she used to demand money
from her father for purchasing stationery for school
purpose, he used to ask sexual favour from her. She
further alleged that even whenever she had been to
bathroom for having bath, the accused was impatiently
touching her. The said act was continued for the period of
two years. She had her menstrual when she was in 8 th
Std.. The accused carried out her pregnancy test for three
occasions, but she has not disclosed the incident to her
.....11/-
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mother as she was scared that the accused would beat
her. But, when she was in 8th Std., she informed the
incident to her friends and her friends informed to Class
Teacher PW5 Rahul Ghode who informed the same to
Principal PW7 S.Prabhuraman. Thereafter, the Principal
made a phone call to her mother and disclosed the entire
incident. Her mother decided to catch the accused red-
handed. She sent her sister with grandmother to village
and hid herself in storeroom. On the day of the incident,
her father came to home, put blanket over her person,
removed her clothes, and developed physical relationship
with her. At the relevant time, her mother entered in the
bedroom and caught him. Her mother beat him and drove
him out of the house. Thereafter, she attempted to
commit suicide. Hence, her mother took her to
Psychiatrist and she has undergone the treatment.
Thereafter, the mother has lodged report.
From her cross examination, it is brought on record
that she accompanied her mother to lodge report to which
she denied. The cross examination shows that the
.....12/-
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accused is implicated as there was matrimonial dispute,
which is denied by her. Some omissions are brought on
record that she has not stated to the police about the
incident when she was in KG. She has also not stated to
the Investigating Officer while recording her statement
that work means physical relationship. She has not stated
before the Investigating Officer that the accused has
carried out her pregnancy test. Thus, some omissions are
brought on record. During further cross examination, the
topography of her house is also brought on record. As far
as the incident is concerned, except denial, nothing is
brought on record. However, she has denied the
suggestion that to grab property of her father, the mother
insisted her to lodge the report.
16. To corroborate the version of PW2 the victim, the
prosecution has examined PW1 the mother of the victim
who supported the version of the victim as far as
disclosure by the victim is concerned. She stated that
initially the victim has narrated the incident and on that
count she scolded the accused. But, the subsequent
.....13/-
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incidents are not narrated by the victim and she came to
know from the Principle of the school of the victim.
Thereafter, she hid herself to ascertain genuineness of the
facts and on 17.12.2016 she sent her younger daughter
with her mother. She was having night shift, but she
informed her husband that her shift is from 3:00 pm to
9:00 pm. The accused came home. At the relevant time,
she hid herself in storeroom and only the victim was in the
house. The accused has taken the advantage and carried
the victim in bedroom. He undressed himself as well as
the victim and subjected her for sexual assault. She
witnessed and also took video shoot of the incident and
caught the accused. Her evidence shows that when she
witnessed the accused, he was in undressed condition.
She got annoyed and drove out the accused from the
house. The accused was not residing with them thereafter
and she was staying along with her daughters.
Her evidence further shows that the victim was
under depression and attempted to commit suicide and,
therefore, she took the victim to Psychiatrist Dr.Bhave and
.....14/-
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on consultation with the same doctor, she lodged the
report.
17. The cross of PW1 the mother of the victim shows
that she has not narrated before the police that the
accused was undressed. She has also not narrated that
she assaulted the accused. Thus, the defence relied upon
the omissions which are brought on record. It specifically
brought on record that Exh.29 is based upon the incident
dated 17.12.2016. She further admitted that the accused
had executed Power of Attorney in respect of house in her
favour on 16.1.2016. She also admitted that she lodged
the complaint on 20.1.2018 and 24.1.2018. She further
admitted that they have also filed a petition for mutual
divorce on 17.1.2018. She also admitted that she has
mentioned in the divorce petition that she and the
accused were residing separately since 1.12.2016. She
denied the contention that due to matrimonial dispute, the
said complaint is lodged. Her cross examination further
shows that she agreed to sale house for consideration of
Rs.9,29,000/- and she received part consideration of
.....15/-
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Rs.51,000/-. The accused executed possession receipt on
17.1.2018. But, she denied that on 19.1.2018 she told
Shri Mandpe that if the accused fails to hand over the
Power of Attorney, she will lodge the complaint. She
admitted that a complaint is registered with Saoner Police
Station against her by the brother of the accused.
18. Thus, the nature of the defence is that due to
matrimonial dispute and dispute over property, the
accused is implicated.
19. To prove the charge against the accused, the
prosecution also examined friend of the victim PW4 Anjali
Singh studying in the class of the victim who testified that
she and one Sejal and the victim were best friends. The
victim was calm and composed. In the year 2017, when
she was in 8th Std, she witnessed the victim crying in the
school and, therefore, they enquired with her and she told
that her father does indecent acts with her. Therefore,
they took her to Class Teacher PW5 Rahul Ghode. Her
cross shows that the police had been to school and
enquired with her and Sejal. The victim never disclosed to
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her that she was having boy friend by name Om. She has
not stated to the police that the victim told them that her
father saw her talking with her boyfriend and he was
having suspicion.
Thus, the cross examination shows that an attempt
was made to bring on record that the victim was having
relationship with one boy and her father was having
suspicion.
20. Class Teacher PW5 Rahul Ghode and Principal PW7
S.Prabhuraman, have also corroborated the same version.
Their evidence shows that the victim used to remain silent
in the class and, therefore, her Class Teacher asked her
and she disclosed that her father sexually assaulted her.
She has also not disclosed the incident that she was
having apprehension of assault at the hands of her father.
21. Friend of the victim PW4 Anjali Singh narrated the
said incident to the Principal and the Principal called her
mother. The evidence of the Principal is on the same line.
.....17/-
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Though both these witnesses are cross examined, nothing
incriminating is brought on record.
22. As per the prosecution case, due to the incident,
the victim was under depression and she was treated by
the Psychiatrist. To establish the same fact, the
prosecution examined PW3 Dr.Monisha Das, who testified
that she is practising as consultant Psychiatrist. The
mother of the victim is serving with "Midas Hospital"
which is owned by Dr.Sudhir Bhave. In November 2017,
the mother of the victim approached her and disclosed
that her daughter has been sexually assaulted by her
husband. She further informed that the victim developed
suicidal tendency and refusing to go to school. PW3
Dr.Monisha Das discussed this issue with Counsellor
Mrs.Anagha Bhave as well Dr.Sudhir Bhave. On the say of
Dr.Sudhir Bhave the victim was brought. On clinical
examination of the victim, they observed that she is
weeping and continuously blaming herself that she is a
bad girl. On enquiry with her, the victim disclosed that
her father has been sexually abusing her from last 2-3
.....18/-
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years. On her refusal, he used to bash her up and also
threaten to kill her. She disclosed about her suffering to
her teacher and her teacher disclosed the said fact to her
mother. Thereafter, her mother expelled her husband
from the house and, therefore, the victim was thinking
that all that happened due to her and she is a bad girl.
PW3 Dr.Monisha Das has also noticed scratch marks on
her left forearm. The victim has undergone therapy for 2-
3 years. The medical papers are filed on record at
Exh.40. The cross examination of this witness shows that
she examined the witness first time on 4.11.2017. She
noticed that child undergoes trauma and abnormal
behaviour. She admitted that when there is stress, a
person may reflect behaviour of silence or violent. She
further admitted that the victim was brought before her
after 11 months of the incident. It further came on record
that since 17.12.2016 to 4.11.2017 condition of the victim
was deteriorated as she was academically performing
poor and was remaining aloof. She was not
.....19/-
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communicating with her friends and was going under
emotional turbulence.
To show the witness is interested witness, it is
brought on record that the mother of the victim was
having good bonding with Dr.Bhave and Mrs.Bhave.
Thus, attempt was made to show that that PW3
Dr.Monisha Das is interested witness.
23. Exh.40 is the medical examination report of the
victim which also shows that on examination, it revealed
that the victim blames herself for the sexual abuse. Her
academic performance is also deteriorating. She is having
feeling of guilty and worthlessness. She is treating herself
sad and intermittent. Observation of the medical officer
was adjustment disorder.
24. To corroborate the version of PW3 Dr.Monisha Das,
the prosecution further examined PW8 Dr.Sudhir Bhave
who specifically stated that PW3 Dr.Monisha Das and
Mrs.Anagha Bhave informed him that their patient was
subjected for sexual harassment by her father and,
.....20/-
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therefore, he called her mother and asked her to lodge a
report. The mother was scared to lodge the report as she
was apprehending about defamation.
Though this witness is cross examined, nothing
fruitful came for the help of the defence.
25. As far as disclosure is concerned, the prosecution
also examined PW9 Monali Pohankar who was team
member of the Child Line. The evidence of the said
witness shows that on 26.12.2017 Dr.Bhave telephonically
informed her that a minor child is subjected for sexual
assault by her own father and the child is under
depression and undergoing treatment and, therefore, she
visited the house of the victim and met the mother of the
victim. Thereafter, she along with the mother of the victim
and the victim went to the Gittikhadan Police Station. The
mother of the victim was reluctant to lodge report due to
fear of being defamed.
The evidence of this witness also remained
unchallenged.
.....21/-
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26. To corroborate the version of the victim, that she
was subjected for sexual assault by her father, the
prosecution has examined PW10 Dr.Madhuri Patil. As per
the evidence of this witness, she was Assistant Professor
at IGGMC, Nagpur. On 21.1.2018, the victim was brought
to the hospital who had narrated the history of sexual
assault by father at the age of five and repeated for two
years since she was ten years of her age. She further
narrated in a history that the victim disclosed the facts to
her teacher. On her examination of her genital part,
hymen was found old ruptured. She collected samples
and opined that hymen was old ruptured and, therefore,
sexual intercourse might have occurred.
27. The evidence of PW6 Sheikh Rizwan is formal in
nature who acted as a pancha on the seizure panchanama
as well as on spot panchanama.
28. PW11 Shalini Kinake is the Investigating Officer who
narrated about the investigation which is carried out by
her.
.....22/-
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29. On appreciation of the evidence on record, the
entire prosecution case revolves around the evidence of
the victim and the medical evidence.
30. PW2 the victim has categorically stated that she
was residing along with her parents and sister. Her
mother was serving as "Nurse" and required to perform
night shift also. When she used to be in the house along
with her father, her father subjected her for sexual
assault. This fact, is also corroborated by her mother. The
evidence of PW1 the mother of the victim shows that
initially the victim has narrated the incident of indecent
behaviour by the accused and she scolded him but the
accused on the next date, came along with the victim in
the hospital where she is serving and the victim disclosed
that she has narrated the false incident. Subsequently,
she came to know that the accused assaulted the victim
and, therefore, the victim retracted from her earlier
statement. As far as the incident of sexual assault on the
victim is concerned, it was brought to the notice by the
principal of the school PW7 S.Prabhuraman who came to
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know about the incident from PW5 Rahul Ghode who is
Class Teacher of the victim. The disclosure of the sexual
assault is by PW4 Anjali Singh who is friend of the victim
studying in the same class.
31. Thus, the evidence reveals that due to
apprehension of assault at the hands of the father, the
victim has not narrated the incident to her mother, but
when she was in 8th Std., she disclosed the said fact to her
friend PW4 Anjali Singh. PW4 Anjali Singh took the victim
to Class Teacher PW5 Rahul Ghode and disclosed the said
incident. Class Teacher PW5 Rahul Ghode disclosed it to
PW7 S.Prabhuraman who is Principal of the School.
Principal PW7 S.Prabhuraman called PW1 the mother of
the victim and narrated the incident. PW1 the mother of
the victim decided to ascertain the said fact and,
therefore, on 17.12.2016 she hid herself and informed the
accused that she is attending the duty from 3:00 pm to
9:00 pm, but she was in a storeroom. She witnessed that
the accused came and subjected the victim for sexual
assault. She has produced the video clip before the
.....24/-
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Investigating Officer. The evidence of the Investigating
Officer shows that the mother of the victim produced the
video clip and, therefore, he seized memory card and C.D.
from the mother of the victim in presence of the panchas
and also prepared seizure memos Exhs.31 and 32. The
said memory card was sent for analysis. The Forensic
Analysis Report which is at Exh.84 shows capacity of C.D.
in Exh.1 and memory card Exh.2 are 16 MB and 7.4 per
GB respectively. The hash value present in C.D. is also
described in the Analysis Report. The Analysis Report
shows that person present in obscene video found in
Exhs.1 and 2 appears to be similar with the reference
photographs provided in Exhs.3 and 4 i.e. of the victim
and Exh.5 i.e. of the accused.
32. Thus, not only the oral evidence but also the
Analysis Report substantiates the allegations.
33. Thus, the oral evidence of PW2 the victim is not
only corroborated by the medical evidence but also
corroborated by the Analysis Exh.84.
.....25/-
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34. The defence of the accused is of total denial and of
a false implication on the ground that due to matrimonial
dispute between him and his wife, he is implicated falsely.
During cross examination of PW1 the mother of the victim
it is brought on record that the accused and PW1 the
mother of the victim were residing separately. The cross
examination further shows that she filed divorce petition
on 17.1.2018. She further admitted that she mentioned
in the divorce petition that she and the accused are
residing separately since 1.12.2016. Thus, even
considering the defence, it reveals that the dispute
between PW1 the mother of the victim and the accused
appears to be after the incident was disclosed to her and
not prior to the incident. Thus, it is apparent that the
dispute arose between them due to this incident. The
evidence specifically shows that after she came to know
about the incident in the year 2016, she drove the
accused out of the house and, thereafter, the dispute
started between them. Therefore, contention of the
.....26/-
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defence, that due to the dispute he was implicated in the
alleged incident, is not sustainable.
35. The sum and substance of the entire evidence on
record goes to show that the victim who is daughter of the
accused was subjected for sexual assault by him at a very
tender age. She has not disclosed the said fact to her
mother that she was assaulted sexually as she was scared
that the accused would beat her. But, when she was in 8 th
Std., she informed the incident to her friends and her
friends informed to Class Teacher PW5 Rahul Ghode who
informed the same to Principal PW7 S.Prabhuraman. She
was sufferer at the hands of the accused. It was the
headmaster who disclosed the said incident to her mother.
The mother of the victim attempted to ascertain the said
fact and recorded the incident in her mobile phone. The
memory card of the mobile phone of the mother of the
victim was seized by the Investigating Officer by drawing
seizure memo Exhs.31 and 32. The said memory card,
which was seized, as well as one C.D. which was prepared,
was forwarded for analysis wherein the obscene videos
.....27/-
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are seen and analyzed. On analysis, the persons seen in
the videos are the victim and the accused.
36. Thus, the evidence of the victim is not only
supported by the oral evidence but also it is supported by
the scientific evidence. The medical evidence sufficiently
shows that the victim was subjected for sexual assault.
Thus, the evidence of the victim is corroborated by the
scientific evidence as well as by the medical evidence.
37. The sexual activities with the victim of an immature
age having a traumatic effect is also established by the
prosecution by examining PW3 Dr.Monisha Das and PW8
Dr.Sudhir Bhave. The evidence PW1 the mother of the
victim and PW2 the victim shows that the victim has
attempted to commit suicide. The evidence of PW3
Dr.Monisha Das shows that the victim has developed
tendency of committing suicide as she was treating herself
guilty due to the incident. The behaviour of the victim is
also not normal. Exh.40 shows that the victim, on her
examination, found blaming herself for the sexual abuse.
Her academic performance was deteriorating. She was
.....28/-
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found sad feeling herself worthlessness and guilty. Thus,
due to the incident, not only her physic was affected but
also there was traumatic effect which affected her daily
life as she attempted to end her life.
38. Learned counsel for the accused vehemently
submitted that there is inordinate delay in lodging of the
FIR. He submitted that as per the prosecution, the alleged
incident has occurred in 2016 when the victim was ten
years old, but the FIR is lodged on 20.1.2018. As per the
report, the period of the incident is from 20.1.2013 to
17.12.2016. However, the FIR is lodged on 20.1.2018 and
no explanation is put forth for the delayed FIR. In support
of his submissions, he placed reliance on the decision of
the Hon'ble Apex Court in the case of State of Himachal
Pradesh vs. Prem Singh, reported in AIR 2009 SC
1010 and wherein it is held that it would be quite unsafe
to rely upon the prosecution when delay is not properly
explained.
39. On the contrary, learned Additional Public
Prosecutor for the State placed reliance on the decision of
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349 apeal208.23
the Hon'ble Apex Court in the case State of Punjab vs.
Ramdev Singh, reported in (2004)1 SCC 421; State
of Punjab vs. Gurmit Singh and ors, reported in
(1996)2 SCC 384; and State of H.P. vs. Gian Chand,
reported in (2001)6 SCC 71.
40. As far as delay is concerned, it is now settled law
that the delay is not fatal to the prosecution case when it
is properly explained.
41. The evidence of PW1 the mother of the victim, PW3
Dr.Monisha Das, and PW8 Dr.Sudhir Bhave discloses that
the mother of the victim was reluctant to lodge the report
as she was apprehending that her daughter will be
defamed. It was PW8 Dr.Sudhir Bhave who asked her to
lodge the report and, thereafter, also she was not ready to
lodge report and, therefore, Dr.Bhave called member of
NGO PW9 Monali Pohankar and, thereafter, the report was
lodged.
42. The Hon'ble Apex Court in the case of State of
H.P. vs. Gian Chand supra held that delay in lodging the
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349 apeal208.23
FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same. Delay has the
effect of putting the Court in its guard to search if any
explanation has been offered for the delay, and if offered,
whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is possibility of
embellishment in prosecution version on account of such
delay, the delay would be fatal to the prosecution.
However, if the delay is explained to the satisfaction of the
court, the delay cannot by itself be a ground for
disbelieving and discarding the entire prosecution case.
43. The accused in the present case is close relative of
the victim i.e. father. The mother of the victim, obviously,
was not having support of anybody. She was
apprehending that her daughter would be defamed and,
therefore, was reluctant to lodge the report. But, when
her daughter attempted to commit suicide and there was
a traumatic effect on the victim, she took the victim to the
Psychiatrist and he suggested to lodge report and
provided her help by calling member of the NGO PW9
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349 apeal208.23
Monali Pohankar and, thereafter, she lodged the report.
This fact is not only stated by the mother of the victim but
also by PW3 Dr.Monisha Das and PW8 Dr.Sudhir Bhave and
PW9 Monali Pohankar who is member off the NGO.
44. As far as the delay in lodging of the FIR in sexual
offence is concerned, the Hon'ble Apex Court in the case
of State of Punjab vs. Gurmit Singh and ors supra
held that the grounds on which the trial court disbelieved
the version of the prosecutrix are not at all sound. The
findings recorded by the trial court rebel against realism
and lose their sanctity and credibility. The court lost sight
of the fact that the prosecutrix is a village girl. She was a
student of Xth Class. It is further held that the trial court
fell in error for discrediting the testimony of the
prosecutrix on that account. If there was some delay, the
same has not only been properly explained by the
prosecution but in the facts and circumstances of the case
was also natural.
45. If the facts and circumstances of the present case
and sequence of the events are taken into consideration, it
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349 apeal208.23
properly explains the delay. It is common knowledge that
the incident like rape, more so when the perpetrator of the
crime happens to be member of family or related
therewith, which involves honour of the family and,
therefore, there is reluctance on the part of the victim's
family to report the matter to the police and carry it to the
court and, therefore, there is delay in the present case. It
is an obvious on the part of the mother of the victim that
she was reluctant to lodge report due to apprehension of
defamation or stigma to her family as well as to the
victim.
46. A careful analysis of the evidence of witnesses on
record shows that their evidence corroborates to the
evidence of each other. The evidence of PW1 the victim is
corroborated by the evidence of PW2 the mother of the
victim, friend of the victim PW4 Anjali Singh, Class Teacher
PW5 Rahul Ghode, Principal PW7 S.Prabhuraman. The
evidence is further corroborated by PW3 Dr.Monisha Das
and PW8 Dr.Sudhir Bhave. The testimony of the victim
inspires confidence. There are some omissions, but it is
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349 apeal208.23
well settled that FIR is not an encyclopedia and, therefore,
few omissions would not render the FIR suspect. The
testimony of the victim has ring of truth which is also
corroborated by the medical evidence and the scientific
evidence. The delay in lodging of the FIR is sufficiently
explained by the mother of the victim. No appropriate
reason came before the court if totality of the
circumstances are considered disclosing that the victim
has any other motive to falsely implicate the accused.
47. After giving a thoughtful consideration to the
submissions made by learned counsel for the accused and
learned Addition Public Prosecutor for the State, the
evidence on record sufficiently shows the involvement of
the accused. Though defence of the accused is that he is
falsely implicated due to the matrimonial dispute, the
evidence on record shows that when the incident was
disclosed by the victim to her friends and teachers, her
parents were living together. The evidence consistently
shows that she has not disclosed the incident to her
mother as she was having apprehension that her father
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349 apeal208.23
would be scolded by her mother and after that she would
be assaulted by her father. Her state of mind, that she
was feeling guilty and treating herself bad, is disclosed
from the evidence PW3 Dr.Monisha Das, PW8 Dr.Sudhir
Bhave, and the medical certificate issued by Dr.Monisha
Das which at Exhibit-40.
48. Thus, totality of circumstances emerging from
record discloses that PW2 is a victim of sexual assault at
the hands of her father. The POCSO Act is enacted with a
specific object that the law should operate in a manner
that the best interest and well being of the child are
regarded as being of paramount importance at every
stage to ensure the healthy, physical, emotional,
intellectual, and social development of the child. The
object is also that the person of culpable state of mind
should be punished for harassing the child and keeping
the society child friendly. From the evidence on record, it
reveals that the accused who is father of the victim
subjected her for the sexual assault at her tender age and
continued for years together. The evidence further
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349 apeal208.23
discloses that the victim has undergone mental trauma
and disclosed the incident to her friends as well as the
teachers. It was the Principal of the school from whom the
incident was disclosed to the mother of the victim. The
victim's state of mind and agony is revealed from the
evidence of PW3 Dr.Monisha Das and PW8 Dr.Sudhir
Bhave. The fact that she has attempted to commit suicide
also discloses her state of mind. This evidence shows that
the trust which a child carries about his or her father itself
is betrayed by the accused. The accused who was
protector has ruined the physic as well as state of mind of
the victim who is his own daughter and destroyed her
future life. He had degraded the very soul of helpless girl.
49. It is to be borne in mind that the accused is the
person who has violated the victim's privacy and personal
integrity and also caused serious psychological as well as
physical harm to the victim. Rape is not merely a physical
assault but it is often destructive to whole personality of
the victim and, therefore, the matters of such allegations
must be dealt with utmost sensitivity.
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349 apeal208.23
50. As far as quantum of punishment is concerned, the
object and purpose of determining quantum of sentence
have to be "society centric" without being influenced by a
judge's' own views as society is the biggest stake holder
in the administration of criminal justice system.
51. The Hon'ble Apex Court, in the case of Ravi Ashok
Ghumare vs. The State of Maharashtra, reported in
ALL MR (Cri) 4873 held that a civic society has a
'fundamental' and 'human' right to live free from any kind
of psycho fear, threat, danger or insecurity at the hands of
anti-social elements. The society legitimately expects the
Courts to apply doctrine of proportionality and impose
suitable and deterrent punishment that commensurate(s)
with the gravity of offence. It is further held that the
sentencing Policy, therefore, needs to strike a balance
between the two sides and count upon the twin test of (i)
deterrent effect, or (ii) complete reformation for
integration of the offender in civil society. The criminal
law had been viewed on a dimensional plane wherein the
Courts were required to adjudicate between the accused
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349 apeal208.23
and the State. The 'victim'- the de facto sufferer of a
crime had no say in the adjudicatory process and was
made to sit outside the court as a mute spectator. The
ethos of criminal justice dispensation to prevent and
punish 'crime' would surreptitiously turn its back on the
'victim' of such crime whose cries went unheard for
centuries in the long corridors of the conventional
apparatus. A few limited rights, including to participate in
the trial have now been bestowed on a 'victim' in India by
the Act No. 5 of 2009 whereby some pragmatic changes in
the Code of Criminal Procedure have been made.
52. Considering the above observations of the Hon'ble
Apex Court, if the facts of the present care are examined,
it reveals that a small girl was subjected for sexual assault
by the grown man who is father in a very tender age and
the victim has undergone the mental trauma. The
accused, being in a position of trust and dominance over
the victim, took undue advantage of these circumstances
and committed heinous crime to fulfill his lust. The
evidence on record sufficiently shows sufferings and
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349 apeal208.23
tremendous mental trauma which she has undergone. She
has to lead remaining life with permanent scar as well as
psychological impact on her life. The condition of the
victim, who has to lead the life with the said scar which
jeopardize future prospects of enjoying life. By considering
all these facts, punishment is awarded by the trial court.
The trial court has assigned the reasons while awarding
the maximum punishment.
53. In this view of the matter, I do not find any reason
to interfere with the judgment impugned in the appeal
even on the point of quantum of sentence. Hence, the
appeal deserves to be dismissed and the same is
dismissed.
The Criminal Appeal stands disposed of.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 01/02/2025 13:48:04
