Bombay High Court
Siddharth Ashok Tupe vs The State Of Maharashtra And Another on 5 March, 2025
2025:BHC-AUG:6230
Cri.Appeal.999.2023
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.999 OF 2023
Siddharth Ashok Tupe,
Age : 28 years, Occu. : Agri.,
R/o. Malunja, Tq. Gangapur,
Dist. Aurangabad. ... Appellant
Versus
1. The State of Maharashtra
2. X.Y.Z. ... Respondents.
.....
Mr. Satej S. Jadhav, Advocate for Appellant.
Mr. S. B. Narwade, APP for Respondent - State.
Ms. Tejshree K. Nalawade, Advocate for Respondent (Appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 18th FEBRUARY, 2025
PRONOUNCED ON : 5th MARCH, 2025
JUDGMENT :
1. In this appeal, there is challenge to the judgment and
order of conviction passed by Sessions Judge, Vaijapur, Dist.
Aurangabad dated 04.10.2023 in Special Case Child Protection No.
01 of 2018 recording guilt of appellant for offence punishable under
sections 376(n) and 506 of Indian Penal Code (IPC).
FACTUAL MATRIX
2. Informant's cousin, alleged minor, went missing from the
house on the evening of 08.10.2017. After due search, report was
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lodged by PW1 cousin for kidnapping the minor by unknown person,
resulting into registration of Crime bearing No.394 of 2017 for
offence punishable under section 363 of IPC. Subsequently, police
parties succeeded in finding victim in the company of accused from
Wadala Shivar. On her statement, further crime was added for
commission of offence under sections 366A, 376(i)(n) of IPC and
under sections 4, 6 and 17 of POCSO Act.
3. PW11 PHC Karale, PW12 PSI Muthal and PW13 PSI
Ingale, who participated in the investigation at respective times and
gathered evidence and charge-sheeted accused before learned
Additional Sessions Judge, Vaijapur, who conducted Special Case
Child Protection No.1 of 2018 for commission of above offences.
Prosecution case rested on oral evidence of in all 13 witnesses and
panch of documentary evidence, primarily including school extract,
medical papers of both, victim and accused, and various
panchanamas and CA reports. Defence did not adduce any evidence.
4. On appreciating the above evidence, learned trial Judge
reached to a finding that present appellant i.e. accused no.1
Siddharth alone is held guilty for commission of offence under
sections 376(n) and 506 of IPC and thereby acquitted other accused.
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Precisely the above judgment is subject matter of present
appeal.
SUBMISSIONS
On behalf of Appellant :-
5. Learned counsel for appellant at the threshold pointed
out that, here, prosecution had miserably failed to prove victim to be
a minor, and therefore, learned trial court rightly acquitted accused
from the charges of POCSO Act. Thus, according to him, here, age of
victim, who was alleged to be a minor, has not been demonstrated
and further substantiated. According to him, there was acquaintance
between accused and victim. That, there was stay of victim with
accused for days together without any resistance or raising alarm or
registering any protest. That, testimony of victim carries material
omissions of forcible sexual intercourse. He further submitted that,
her version in the statement and that before the court are not
consistent. That, answers given by her in cross-examination renders
her testimony unworthy of credence.
6. He further criticized the medical evidence adduced by
prosecution and would specifically emphasized on the answers given
by medical expert, who allegedly examined victim, that opinion
reached is mere probability and it could be otherwise also. Thus,
according to him, essential ingredients of section 376 of IPC are not
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available. That, alleged bleeding is attributed to other natural
biological phenomena. Hence, learned counsel put-forth that there is
no convincing, cogent and reliable evidence on the charge of section
376 of IPC. Lastly, he would submit that, applicant a young boy and
24 years of age, is languishing in jail since October 2017 and is thus
behind bars for more than 7 years. According to him, going by alleged
date of occurrence to be of 2017 and the enhanced punishment by
virtue of amendment carried out in 2018, i.e. subsequently the
quantum of sentence pre-amendment would come into play and thus
now applicant has already undergone almost the entire sentence
inflicted upon him by trial court and considering the age, he prays for
reducing the sentence to already undergone.
On behalf of Respondents :-
7. Strongly opposing the above submissions, learned APP
submitted that, though appellant is acquitted of charges under the
provisions of POCSO Act, he submitted that guilt is proved beyond
reasonable doubt for commission of offence punishable under section
376 of IPC. According to him, though medical evidence in such cases
is merely corroborative, he emphasizes that, here, as required by law
victim's evidence itself being inspiring confidence, is rightly taken
into account by relied to by learned trial Judge. He also refuted the
submissions about pre-amendment sentence could be made
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applicable and on this count, he took this court through the
provisions itself. According to learned APP, charges are
substantiated and there being no merits in the appeal, he seeks
dismissal of the same.
8. Learned appointed counsel to espouse the cause and
interest of victim, too strongly opposed pointing out that, sole
evidence of prosecutrix is inspiring confidence. She pointed out that
victim has categorically stated that she was threatened and forced
upon. Thus, offence of rape is clearly made out, hence she opposes
the appeal and rather supports the impugned judgment.
EVIDENCE ON RECORD
9. Prosecution has adduced evidence of in all 13 witnesses
in support of its case. Role and status of prosecution witnesses are as
under :
PW1 is the informant.
PW2 is the victim;
PW3 Suresh, PW4 Pawan, PW5 Jaya, PW6 Sumer are the
panch witness.
PW7 Dr. Rawlani is the Medical Officer.
PW8 Borude is the panch witness.
PW9 Dr. Katrina is also a Medical Officer.
PW10 Gitabharti is the Headmistress of School of Victim.
PW11 PHC Karale, PW12 PSI Muthal and PW13 PSI Ingale are
the Investigating Officers.
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10. For proper appreciation and comprehension, it would
fruitful to reproduce the very testimonies of relevant witnesses i.e.
PW1 informant; PW2 victim; PW7 Dr. Rawlani and PW9 Dr. Katrina
11. PW1 informant is the cousin of victim. He deposed as
under:-
1. I am residing in a house constructed in Gat No.11 in
Ambewadi Shivar. My uncle Sanjay also resides adjacent to my
house. XYZ, Urmila, and Akash are children of my uncle Sanjay.
On 08.10.2017 I was at my house throughout the day. My cousin
XYZ was also at the house. At that time age of XYZ was 15 years.
Date of birth of XYZ is 02.01.2002.
2. On that day, we were taking our dinner at 07.15 p.m. and
XYZ was sitting on the platform. After finishing my dinner I came
out of the house and found XYZ was not present on the platform.
We searched for XYZ in the house as well as in the surrounding
area. We also searched XYZ in Ambewadi village but did not find
her. We also searched XYZ in Gangapur city but did not find her.
We inquired with our relatives but did not find XYZ.
3. Thereafter, at about 01.45 a.m. we went to Gangapur
Police Station and I lodged F.I.R. against unknown person that
he kidnapped XYZ. I have put my signature on the F.I.R. The
F.I.R. now shown to me. It bears my signature and its contents
are true and correct. It is marked at Exh.26.
4. On 13.10.2017 police have taken my supplementary
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statement. From 09.10.2017 till 13.10.2017 we were searching
XYZ. During that we learnt that Sidharth Ashok Tupe has taken
away my sister XYZ. Sidharth Tupe was taking small children to
school in Omni Car. I am knowing Sidharth Tupe. (Accused
Sidharth Tupe is under trial and till this time is not produced in
Court from Jail. His learned advocate has conducted the trial in
his absence by passing pursis at Exh.24 without challenging the
identity of Sidharth Tupe."
12. PW2 is the victim. In her testimony at Exh.33 she
deposed as under :-
"1. I reside at village Ambewadi along with my parents. The
incident was occurred when I was studying in 9th standard. My
birth date is 02.01.2002. At the time of incident, I was studying in
Dhoot Kanya School, Gangapur. I used to go to the school by a
bicycle. One Ahswini Dolas was my friend. On 02.01.2017 there
were sports competition of our school at Aurangabad. On
02.01.2017, I along with other students and madam had been to
Aurangabad to participate in the sports competition. The school
had provided a one vehicle to us to go to Aurangabad. The said
vehicle was from village Malunja. In the said vehicle myself,
other girls and Dhas Madam were proceeded to Aurangabad.
One man from village Malunja was driving the said vehicle.
Ashwini Dolas acquainted me with the said driver.
2. One a one day Ashwini Dolas gave me a one phone
number. The said number was 9604932143. Ashwini Dolas told
me that the said number is of her house. She told me to make a
phone call on the said number. On the next day, I made phone
call on the said number. There was voice of male person on the
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phone. I cut the said phone call. I received phone call from the
said number on my phone. I picked up the phone call. The person
from the other end told me that he is Siddharth. The said person
told me that he intends to have friendship with me. I again cut the
said phone call due to fear.
3. On the next day the said person met me in the school. He
told me that he is brother of Ashwini Dolas. Therefore, I
supposed that the said person is brother of Ashwini hence I
started talks with him. Thereafter, I and said person talked with
each other on phone calls many times.
4. On a one day he told me that he likes me. He asked me o
marry with him. Thereafter, we were talking with each other. On
08.10.2017, my father was out of house. My mother was cooking
food in the house. At that time, the said person made phone call
to me. We talked with each other on phone for long time. He told
me that he intends to meet me and I should come on a road.
There was none in the house, hence I came on the road.
Siddharth had brought one white omni on the road. There were
other two persons in the omni vehicle. Siddharth dragged me and
made me seat in the omni van. The persons sitting in the van
pressed my mouth and therefore, I could not raise shout. The
said persons threatened me that if I raise shout they will kill my
father. The said persons took the omni van towards Aurangabad.
At that time, Siddharth was driving the vehicle. The said persons
took vehicle towards Newasa via Bhendala Phata. From the talks
of the said persons I came to know their names as Sambha and
Anil. They were talking to keep the omni van at garage at
Newasa. The said persons stopped the omni van near a one
village across Ahmednagar Highway. The said persons dropped
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me and Siddharth at the said place. Thereafter, the said two
persons went with omni van. Siddharth took me by a Kaccha
road towards one house. There was one woman at the said
house.
(The witness is giving answers after taking time). I came to know
that the name of said woman was Ashwini Gawali. The said
woman took me in the house and made me seat in a one room. At
that time one unknown person came there. The said three
persons were talking with each other. From their talks, I came to
know the name of said person as Sonna Mote. Thereafter, the two
persons who were in omni van came at the said house. The
woman present at the said house cooked food. The said persons
eat food. They also provided food to me. We all stayed at the said
house.
5. On 09.10.2017, all the said persons confined me in the
said house and left the house. In the noon at about 03.00 p.m. the
said persons returned to the said place. We all stayed at the said
house.
6. On 10.10.2017, in the morning Anil left the said house.
Siddharth and Sambha were talking that they have no guarantee
of Anil and we should went to another place. Thereafter,
Siddharth and Sambha confined me in the house by putting lock
and went away. At about 04.00 p.m. Siddharth, Sambha and
Ashwini Gawali returned to the house. We all stayed at the said
house.
7. On 12.10.2017 also we stayed at the said house. On
11.10.2017 at about 07.00 a.m. Siddharth, Sambha and Ashwini
took me by walk to one village. They took me in a one house
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situate in a one field. We reached there at about 04.00 p.m. All
took a lunch at the said place. All persons from the said house
left the house and went somewhere. Siddharth was present in the
said house. Siddharth took me in the room and removed my all
clothes. Siddharth made forcible sexual intercourse with me.
Siddharth threatened me if I disclose the incident, he will kill my
father and sister. We stayed at the said house. On 12.10.2017 1,
Siddharth, Sambha and Ashwini stayed at the said house.
8. On 13.10.2017 at 07.00 a.m. Siddharth, Sambha and
Ashwini took me to a one temple. I came to know that the said
temple was of goddess Ghodeshwari. Sambha and Ashwini
threatened me that 1 should marry with Siddharth else they will
kill me. Siddharth forcibly put gol en string (mangalsutra) in my
neck. The said persons again took me at the said house situate in
field. Siddharth forcibly committed sexual intercourse with me on
two occasions.
9. On 14.10.2017, the said persons took me to one ghat by
rickshaw. They were searching a room on rent at the said place.
The said persons did not get room and hence they again brought
me to the one house of relative of Ashwini. The police came at
the said place. The police brought me, Siddharth, Sambha and
Ashwini at police station. The police recorded my statement on
15.10.2017. The police sent me for medical examination to Civil
Hospital, Aurangabad.
10. At the time of recording my statement, the police seized
my nicker. I can identify the said nicker if shown to me. (The
sealed envelope is opened in the presence of APP and advocate
for the accused). There is one nicker in the said envelope. The
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said nicker now shown to me is the same. It is marked as article
A. My statement was recorded before Judge in a Gangapur
court. (There is one envelope in the file having signature of
JMFC, Gangapur. It is opened in the presence of APP and
advocate for the accused). The said statement now shown to me
is the same. It bears my signature. The contents thereof are true
and correct. It is marked as Exh.42.
11. I can identify Siddharth, Sambha, Anil and Ashwini. The
witness has pointed out a finger to a person sitting in the dock
with police and said that he is Siddharth. (The said person has
been asked his name, he told that he is Siddharth). The witness
has pointed out a finger to a person with mask sitting in the dock
with police and said that he is Sambha. (The said person has
been as¹ d his name, he told that he is Sambha). Anil is not
present in the court. (The advocate for accused Anil has filed
application for exemption of Anil and it has been granted on the
condition and not to dispute the identity of Anil). I can identify
Ashwini Gawali."
13. PW7 Dr. Rawlani is the Medical Officer, who examined
PW2 victim. In his testimony, he deposed as under :-
"On 15.10.2017, I was resident Medical Officer at Government
Medical College, Aurangabad. On the said date the police gave
letter to Medical Officer, GMCH for medical examination of the
victim girl. (The witness has stated the name of the victim girl,
but it is not mentioned to maintain privacy). The said letter now
shown to me is the same. It is marked as Exh. 69. I called my
female colleague Dr. Ashwini Torage to assist me. I asked the
victim girl the history in vernacular language. The victim girl
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narrated the history to me in vernacular language. I noted down
the said history in the report in English language. The said
history as mentioned in the report now read over to me is the
same. The gist of the history was that the victim girl was
acquainted with assailant and they had talks with each other and
that on 13 & 14.10.2017 the assailant committed forcible sexual
intercourse with the victim girl.
2. Thereafter, I with the assistance of Dr. Ashwini Torage
medically examined the victim girl. On her general examination
no external injuries were found on her body. We have conducted
gentile examination of the victim girl. I found that there were
tears to hymen. There was spotting and presence of minimal
bleeding in the vagina. I did not perform her per speculum and
per vaginal examination of the victim girl. I have taken the
vagina sample of the victim girl. Upon medical examination of
the victim girl I formed the following opinion
- There are signs of forceful penetration of vagina
and possibility of sexual intercourse cannot be
ruled out.
3. I accordingly prepared the medical examination report.
The said report now shown to me is the same. It is in my
handwriting. It bears my signature and seal of GMC Hospital,
Aurangabad. The contents of the medical examination report are
true and correct. It is marked as Exh.70. The victim girl's consent
form is attached with the medical examination report. It bears
the signature of victim girl and mine signature."
14. PW9 Dr. Katrina is the Medical Officer, who examined
accused. In her testimony, she deposed as under :-
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"1. On 15.10.2017, I was working as Medical Officer, at sub
District Hospital, Gangapur. On the said date, the police had
referred Siddharth Ashok Tupe to Sub District Hospital
Gangapur for me lical examination. I medically examined him
with reference to allegation against him about sexual assault. In
the said examination I noticed the following aspect and injuries.
The patient was well nourished.
There was fresh abrasion 1 c.m., red in colour and age of
injury within 6 hours. The said injury was on neck. However, I
forgot to mention it in the register and certificate.
I had taken blood sample of the said person for blood
grouping.
There was no evidence suggestive of that the person is not
capable of doing sexual intercourse. He can very well perform
the sexual intercourse.
2. I accordingly prepared the medical certificate. It is no
shown to me is the same. It bears my signature. The contents are
true and correct. It is marked as Exh.84."
ANALYSIS
15. Before adverting to the evidence on the point of charges
which are said to be proved, it is also required to be ascertain this
court being first appellate court, whether prosecution is indeed at all
failed to prove that victim was minor in view of definition provided
under section 2(d) of POCSO Act. On re-appreciating the evidence of
informant, it is emerging that, he is a cousin. Biological parents of
victim are not examined on the point of date of birth of victim.
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Though victim and her cousin i.e. informant have given date of birth
and evidence of PW10 Headmistress, is of no avail to the prosecution,
because firstly she is not carrying the original record, on the strength
of which entry is taken in the extract Exh.86 tendered by her in the
court. Her cross goes to show that, he is not in a position to satisfy on
the point of source of said date incorporated in the record. It is
imperative for the prosecution to substantiate the date of birth when
provisions of POCSO Act are attracted. Here, the manner of cross of
PW10 Headmistress gives scope for doubt about the exact date of
birth appearing in the school record. Therefore, learned trial court
has correctly discarded such evidence on the point of age and
answered point to that extent in negative.
On the aspect of sexual assault, after appreciating the
substantive evidence reproduced above and also on meticulously
going through the cross of above witnesses, it is noticed that,
evidence of victim, more particularly has remained unshaken. Her
evidence shows that she did get acquainted with accused through her
friend and acquaintance grew further. She has deposed that he
expressed his desire to marry her. On 08.10.2017, she claims that,
he called her, asking her to meet outside and then claims that she
forced into a vehicle by associates of accused and taken to
Aurangabad while appellant was behind the wheels. She deposed of
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being threatened, if she raises voice. She has given the route of
vehicle being taken from Newasa to Ahmednagar, taken to house of a
lady, then confined in the house. Again further taken to one village
and there she claims that on 11.10.2017, applicant disrobed her and
had sexually intercourse with her. She also deposed being taken to a
temple and golden string tied to her neck and again committing
sexual intercourse on two to three occasions.
16. Learned counsel for appellant would hotly contest the
above testimony on the ground that there was no resistance,
objection or raising alarm during almost a week stay and in spite of
moving to various places. That, there are no injuries of struggle on
her person and that there was rather active submission. Learned
counsel also invited attention of this court through the evidence of
both medical experts and would submit that, answers given by them
in cross renders the act of forceful sexual intercourse itself doubtful.
This court finds no substance in the above submissions. Once, the
victim testifies or deposes the act to be forceful, no contrary stand
like passive submission about not raising alarm, not resisting is open
for a person, who is accused of committing rape. Here, victim has
categorically and repeatedly testified about being forced upon.
Therefore, it is not open for anyone to give a different complexion to
the story narrated by the victim. Here, medical expert has deposed
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about receiving history from the mouth of victim herself. Thus, there
is no further need for other independent corroboration. There is no
reason for medical experts to issue false opinion. It is to be noted
that, it is fairly accepted position that, medical evidence is opinion
evidence, but when it is consistent with witness account, accusations
get reinforced and fortified.
17. Perused the judgment under challenge. Learned trial
Judge has apparently entertained each and every defence raised by
accused. Evidence on record adduced by prosecution has been put to
minute scrutiny. Answers given by victim and doctor while under
cross are also correctly appreciated. Judgment rendered is well
reasoned and after taking recourse to settled legal precedents.
Consequently, there is no reason to over turn the judgment or find
any fault or infirmity in the judgment.
18. Contention put-forth at the end that appellant had
suffered almost 7 years out of 10 years and that he is of young age, he
be let off on already undergone sentence also cannot be considered in
the light of gravity of the offence.
19. There being no merits, appeal stands dismissed.
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20. Fees of learned Advocate, who is appointed to represent
the cause of respondent No.2 is to be paid by the High Court Legal
Services Sub-Committee, Aurangabad as per rules.
(ABHAY S. WAGHWASE, J.)
Tandale
