Bombay High Court

Eugeen Patrick C11150 vs State Of Mah. Thr. Pso, Ps Ajni Tq. And ... on 5 May, 2025

2025:BHC-NAG:4717




              Judgment

                                                         400 apeal689.23

                                         1

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                          NAGPUR BENCH, NAGPUR

                         CRIMINAL APPEAL NO.689 OF 2023

              Eugeen Patrick C-11150,
              aged - 58 years, occupation : private work,
              r/o c/o Parvatabai Halmare, behind
              Papamiya Floor Mill, Chunabhatti,
              district Nagpur.                   ..... Appellant.

                                 :: V E R S U S ::

              1. The State of Maharashtra,
              through Police Station Officer,
              Police Station Ajni,
              taluka and district Nagpur.

              2. XYZ Victim (Crime No.298/2021)
              through Police Station Officer,
              Police Station Ajni,
              taluka and district Nagpur.     ..... Respondents.

              Shri Shyam R.Jaiswal, Counsel Appointed for the
              Appellant.
              Shri C.A.Lokhande, Additional Public Prosecutor for
              the Respondent/State.
              Ms.Falguni Badani, Counsel Appointed for Respondent
              No.2/Victim.




                                                                  .....2/-
 Judgment

                                                  400 apeal689.23

                              2

CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 07/04/2025
PRONOUNCED ON : 05/05/2025

JUDGMENT

1. By this appeal, the appellant (accused) has

challenged judgment and order dated 15.10.2022

passed by learned Extra Joint Additional Sessions

Judge, (Special Judge POCSO Court, Nagpur

(learned Judge of the trial court) in Special Criminal

(Child) Case No.609/2021.

2. By the said judgment impugned in the appeal,

the accused is convicted for offence under Section 6

of the Protection of Children from Sexual Offences

Act, 2012 (the POCSO Act) and sentenced to

undergo rigorous imprisonment for 20 years and fine

Rs.10,000/-, in default, to undergo rigorous

imprisonment for 1 year.

.....3/-

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3. Brief facts of the prosecution case emerged

from the police papers and recorded evidence are as

under:

On 14.9.2021, at around 1:00 pm at

Chunabhatti area, the victim girl, aged about 7 years,

was subjected for forceful sexual assault by the

accused who is her neighbour and thereby committed

an offence punishable under Section 376 of the IPC

and under Section 6 of the POCSO Act.

4. After registration of the crime, wheels of

investigation started rotating. During investigation,

the investigating officer has collected birth certificate

of the victim and referred her for medical

examination. He has also visited the spot of the

incident, seized mobile phone of the accused, and

.....4/-

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after completion of investigation, submitted

chargesheet against the accused.

5. Learned Judge of the trial court framed charge

vide Exh.6 and contents of the charge are explained to

the accused to which he pleaded not guilty and

claimed to be tried.

6. In support of the prosecution case, the

prosecution has examined in all 6 witnesses, as under:

1.

     PW                   Names of Witnesses                     Exh.
     Nos.                                                        Nos.





                 and seizure memos
      6          Savita Ramteke,          the   Investigating     31
                 Officer

                                                                  .....5/-
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                                            400 apeal689.23

7. Besides the oral evidence, the prosecution

placed reliance on report and FIR Exh.13, birth

certificate of the victim Exh.14, seizure memo Exh.19,

medical certificate Exh.22, medical certificate of the

accused Exh.23, spot panchanama Exh.27, seizure

memos Exhs.28 and 29, seizure memo Exh.34, and

arrest memo Exh.35.

8. On the basis of the said oral as well as the

documentary evidence, the prosecution claimed that

the prosecution has proved its case beyond reasonable

doubt. All incriminating evidence is put to the accused

in order to obtain his explanation regarding the

evidence appearing against him by recording his

statement under Section 313 of the CrPC. The

.....6/-

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defence of the accused is of total denial and of false

implication.

9. Heard learned counsel Shri Shyam R.Jaiswal

appointed for the accused, learned Additional Public

Prosecutor Shri C.A.Lokhande for the State, and

learned counsel Ms.Falguni Badani appointed for the

victim.

10. Learned counsel for the accused submitted that

as per the allegations, the accused has touched private

part of the victim. Thus, there is no allegation as to

the penetrative sexual assault. The cross examination

of the victim shows that there was previous enmity

between the grandmother of the victim and the

accused. It further reveals from her evidence that she

was tutored by her grandmother and, therefore, her

evidence is not worthy of credence and is liable to be .....7/-

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discarded. As per the prosecution case, PW2 the

grandmother of the victim is the eyewitness of the

incident. Her evidence is to be appreciated in the light

of the fact that there was previous enmity between

family members of the victim and the accused.

Though the victim and the accused are residing in the

same vicinity, no independent witness is examined to

corroborate the version of PW1 the victim and PW2

grandmother of the victim. The medical evidence also

nowhere shows any injury on the person of the victim.

Thus, the evidence on record sufficiently shows the

false implication of the accused and, therefore, the

judgment impugned in the appeal deserves to be

quashed and set aside.

11. Learned Additional Public Prosecutor for the

State and learned counsel for the victim strongly

.....8/-

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opposed the said contentions and submitted that

though the victim has given some admissions during

her cross examination, PW2 grandmother of the victim

witnessed the applicant and the victim in a condition

that the accused was only found wrapping towel

around his waist and putting the nicker on the person

of the victim. The medical examination of the victim

discloses edema present in labia minora. The oral

finding is consistent with sexual assault. The evidence

of the investigating officer also corroborated the

prosecution case. In the light of the above evidence,

the judgment impugned in the appeal calls no

interference. The appeal being devoid of merits is

liable to be dismissed. They also taken me through

the entire evidence adduced on record.

.....9/-

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12. As per the prosecution case, PW1 the victim was

of very tender age at the time of the incident. The

victim has narrated her age as 7 years. PW2 the

grandmother of the victim has also narrated the birth

year of the victim as 2014. Her evidence shows that

1.6.2014 is the birth date of the victim. The

investigating officer has collected the birth certificate

of the the victim which shows her birth date as

1.6.2014. Admittedly, the age of the the victim is not

challenged by the defence. The birth certificate is

issued by the Municipal Authority under Sections 12

and 17 of the Registration of Births and Deaths Act,

1969. As per Rule 9 of the Maharashtra Births and

Deaths Registration Rules 1976, this certificate is

issued by the Sub Registrar acting under the

provisions of the Registration of Births and Deaths

.....10/-

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Act, 1969. The Act mandates that the Registrar

should discharge his duties carefully in view of

Section 7 of the said Act. Section 8 of the said Act

mandates that each head of the house to report birth

in the family to the Registrar. The Act provides for

maintenance of recording births and deaths within

local area. That is how, certificate came to be issued

by the Sub Registrar as per the provisions of Section

12 of the Registration of Births and Deaths Act, 1969.

The birth certificate as such is issued by the public

officer and it is a document forming record of the acts

of the public officer and, therefore, the same is a

public document within the meaning of Section 74 of

the Indian Evidence Act and the same is admissible in

evidence in view of Section 77 of the Indian Evidence

Act. Section 17 of the said Act provides for search of

.....11/-

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Birth Register and supply of extract thereof by

certifying the same by the Registrar or other

authorized Officer. Section 17 of the said Act provides

that such extract shall be admissible in evidence for

the purpose of proving birth or death to which the

entry relates. The birth certificate is in fact the extract

of Birth Register in respect of entry of birth of the

victim child and as such, admissible in evidence.

Section 35 of the Evidence Act makes it clear that if

entry is made by public servant in the official book in

discharge of his official duty, such entry becomes the

relevant fact and admissible in evidence. Section 35

of the Act lays down that entry in any public, official

book, register, record stating a fact in issue or relevant

fact and made by a public servant in the discharge of

.....12/-

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his official duty specially enjoined by the law of the

country is itself the relevant fact.

13. It is thus clear that it is an entry taken by the

public servant in discharge of his official duty while

performing official duty enjoined by law. It is thus

clear that the birth certificate issued by the statutorily

appointed authority or competent authority is

relevant and admissible.

14. Rule 12(3) of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 also states that in

every case concerning a child or juvenile in conflict

with law, the age determination inquiry shall be

conducted by the Court or the Board or, as the case

may be, the Committee by seeking evidence by

obtaining- (a) (i)the matriculation or equivalent

certificates, if available; and in the absence whereof;

.....13/-

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(ii) the date of birth certificate from the school (other

than a play school) first attended; and in the absence

whereof; (iii) the birth certificate given by a

corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of

clause (a) above, the medical opinion will be sought

from a duly constituted Medical Board, which will

declare the age of the juvenile or child. In case exact

assessment of the age cannot be done, the Court or

the Board or, as the case may be, the Committee, for

the reasons to be recorded by them, may, if

considered necessary, give benefit to the child or

juvenile by considering his/her age on lower side

within the margin of one year, and, while passing

orders in such case shall, after taking into

consideration such evidence as may be available, or

.....14/-

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the medical opinion, as the case may be, record a

finding in respect of his age and either of the evidence

specified in any of the clauses (a)(i), (ii), (iii) or in

the absence whereof, clause (b) shall be the

conclusive proof of the age as regards such child or

the juvenile in conflict with law.

15. In the light of the above legal position, the birth

entry taken by the Municipal Corporation sufficiently

proves the age of the victim and and is admissible in

evidence in view of Section 35 of the Indian Evidence

Act.

16. Now, let us examine the evidence of PW1 the

victim and PW2 the grandmother of the victim.

17. As per the prosecution case, the victim is

residing along with her parents, brother, and

.....15/-

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grandmother. The alleged incident has taken place

14.9.2021 at about 1:00 pm. when the mother of the

victim was not in the house. As per the allegations,

sister-in-law of the informant, who is PW2

grandmother of the victim, informed her that tenant,

i.e. the accused, has called the victim to his house.

The grandmother of the victim immediately rushed to

the house of the accused on upper floor. She pushed

the door and saw the accused and the victim nude.

The accused wrapped towel around his waist and also

put nicker on the person of the victim. The informant

got annoyed and told the accused that he has to face

the consequences. The victim disclosed that the

accused showing chiwda-packet invited her to his

house, removed her clothes, and touched her private

part and took kiss of it.

.....16/-

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18. To prove the said allegations, the prosecution

examined PW1 victim. She reiterated the entire

incident. She testified that the accused took her to his

house on upper floor, removed her clothes, and

touched her private part by hand and licked. The

accused was wrapping towel at the relevant time. Her

grandmother came and beat the accused. Thereafter,

her grandmother taken her to the doctor. The police

also made enquiry with her. Her statement was

recorded before the Magistrate also. Her cross

examination shows that one Dipak Halmare resides

near her house. There is a dispute between her

parents and parents of said Dipak. She further

admitted that children in the area used to play with

accused. Her mother used to scold her if she visits the

house of the accused to play. There was quarrel

.....17/-

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between her grandmother and the accused. She was

taken to the police station. The contents of the report

are narrated to the police by her mother and

grandmother. She further admitted that when she was

questioned by the police, her mother answered. When

she was brought to the court, her mother and

grandmother were present with her. In the court also,

she was questioned and her mother gave answers.

She further admitted that she was not on visiting

terms at the house of the accused. On the day of the

incident also, she did not visit the house of the

accused. Her grandmother told as to how the

evidence is to be given. She deposed in her

examination-in-thief, that the accused held her hand

and on upper floor touched her vagina and licked it, at

the say of her grandmother. She further admitted that

.....18/-

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she was taken to the police station, she had changed

her clothes and also passed urine. She specifically

admitted that on the day of the incident, no such

incident took place and the accused did not lick on her

private part.

19. Thus, during cross examination, the victim has

not supported the prosecution case. From her cross

examination, it reveals that the alleged incident has

not taken place, but as there was enmity between her

parents and the accused, the report is lodged and her

statements are recorded as narrated by her mother

and grandmother.

20. To corroborate the version of PW1 the victim,

PW2 grandmother vide Exh.12 is examined. She also

narrated about the incident that on receipt of the

message from her sister-in-law, she immediately .....19/-

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rushed to the house of the accused and saw the

accused wrapping towel around his waist and putting

the nicker on the person of the victim. She shown her

displeasure to the accused that he has to face

consequences of the said incident and brought the

victim at her house. Her daughter-in-law returned

home and, thereafter, the incident was reported to the

police by her. Her cross examination also shows that

the area whereat she is residing is densely populated.

In her neighbour, her sister-in-law resides. She also

admitted that there are no cordial terms between her

and the accused. She denied that her sister-in-law was

on rival terms with the accused. It also came in the

cross examination that the accused resides on 2nd floor

after leaving the ground floor.

.....20/-

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21. Admittedly, sister-in-law of PW2 grandmother of

the victim is not examined who gave message to PW2

grandmother of the victim.

22. PW3 is the mother of the victim, who came to

know about the incident after she returned home. As

per her evidence, her mother-in-law informed her that

the accused subjected her daughter for the sexual

assault by touching her vagina and giving penis in

hand. The cross examination of this witness also

shows that there was no complaint of neighbours

against the accused. She admitted that her mother-in-

law did not visit the house of her tenant. She also

admitted that there are small children in the house of

Shri Halmare.

23. PW4 Dr.Shubham Gattani, the Medical Officer,

testified that the victim was referred to him for .....21/-

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medical examination. On examination, he witnessed

edema present in labia minora. He opined that oral

finding is consistent with sexual assault and issued

certificate Exh.22. He also examined the accused and

issued certificate Exh.23. His cross examination shows

that he did not notice any injury on the body of the

victim during medical examination.

24. PW5 Prem Samudre, in whose presence spot

panchanama was drawn, testified that he visited the

spot of the incident and in his presence spot

panchanama was drawn, which is at Exh.27. The

police seized clothes of the accused by seizure memo

Exh.28 and also obtained samples by seizure memo

Exh.29. He admitted that the clothes of the accused

were kept in a bag and he is unable to remember exact

time of the panchanama.

.....22/-

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25. Perusal of the panchanama shows that the

alleged spot of incident is a room 8x8 and adjacent to

the said room there is house of brother of Halmare.

26. Investigating Officer PW6 Savita Ramteke, has

narrated about the investigation carried out by her.

During cross examination, she admitted that the area

whereat the alleged incident has occurred is slum

area. The house of the accused is near to the house of

the victim. There is a small house between the houses

of the victim and the accused. It is thickly populated

area and houses of each other are visible. The owner

of the building was not present on the day of the

incident. Thus, cross examination shows that the

alleged incident has occurred in a thickly populated

area.

.....23/-

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27. On appreciation of the evidence, the question is,

what is evidentiary value of the child witness. The

law laid down as regards appreciation of evidence of

child witness is well settled.

28. The Hon'ble Apex Court in the case of Radhey

Shyam vs. State of Rajasthan, reported in (2014)5

SCC 389 has laid down the law regarding

appreciation of evidence of child witness. Paragraph

No.12 of the said judgment reads as under:

"12. In Panchhi and ors, National Commission for Women vs. State of UP and ors, AIR 1998 SUPREME COURT 2726, after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child .....24/-

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witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other

.....25/-

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evidence on record, it can be accepted without hesitation. We will scrutinize PW-2 Banwari's evidence in light of the above principles.

29. Here, in the present case, from the evidence of

the victim, it is clear that she has admitted about the

enmity between her grandmother and the accused.

She further admitted that she has not visited the house

of the accused and no such incident has occurred. She

further stated that her mother and grandmother

quarreled with the accused and she was taken to the

police station. The contents of statement were stated

by her mother and grandmother before the police as

well as before the court. Her grandmother also told

her as to how the evidence is to be given and

accordingly, she has stated that the accused held her

.....26/-

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hand and on upper floor touched her vagina and

licked it. Thus, her evidence shows that no such

incident has taken place.

30. To corroborate the version of the victim, though

the prosecution has examined PW2 grandmother of

the victim, the material witness, who gave message to

PW2 grandmother of the victim, is not examined.

Cross examination of PW2 grandmother of the victim

shows that her sister-in-law is also residing in the

same area. The area is densely populated. The brother

of Halmare as per the spot panchanama is residing

towards the West of the room of the accused. Though

the alleged incident took place in a densely populated

area and the grandmother of the victim brought the

victim from the house of the accused and has not

made hue and cry and no independent witness is

.....27/-

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examined to corroborate the fact, it creates doubt

about credibility of evidence of PW2 grandmother of

the victim. As per the evidence of the victim, there

was previous enmity which is double edged weapon.

The false implication of the accused due to the

previous enmity cannot be ruled out especially when

the victim admitted that after the quarrel, her mother

and the grandmother took her to the police and they

narrated the incident to the police. Even, the

statement before the court is recorded in presence of

her mother and her mother has answered the

questions.

31. Thus, considering the nature of the evidence,

admittedly, credibility of the evidence of the witnesses

is shattered.

.....28/-

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32. PW3 is the mother of the victim, who, as per the

evidence of the victim and grandmother of the victim,

was not present at the time of the incident. There is

inconsistent evidence of PW2 grandmother of the

victim and PW3 mother of the victim as to the actual

act by the accused. As per the evidence of PW2

grandmother of the victim, the victim disclosed that

the accused removed her clothes and touched her

private part and took kiss of it. Whereas, as per the

evidence of PW3 mother of the victim, the accused

removed her clothes, kissed her vagina and gave penis

in her hand. On the contrary, the victim stated that

the accused touched her private part by hand and

licked it. The said fact is not admitted by her during

cross examination and she specifically admitted that

.....29/-

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she has not visited the house of the accused and no

such incident has taken place.

33. As per the prosecution case, there is a

corroboration to the evidence of the victim by the

medical officer.

34. Coming to the aspect of the medical evidence,

admittedly, it is only a case of "touch". The victim has

nowhere stated that there was fingering or insertion of

the object in her private part. PW2 grandmother of

the victim and PW3 mother of the victim also not

stated that the accused inserted finger or any object in

the private part of the victim. As per the evidence of

medical officer, he found edema in labia minora and

opined that oral finding is consistent with sexual

assault.

.....30/-

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35. As per the Medical Jurisprudence, there are

several reasons for having edema especially of the

labia minora which is also known as labia edema

which can have various causes. It can be caused due to

minor infection or even more serious condition. Even,

inflammation of the vulva can cause swelling, redness

and itching. Bacterial infections also can lead to labia

swelling. Irritants like soaps, detergents, or

unhygienic condition can cause swelling.

36. Thus, finding on edema in the labia minora is

not sufficient to infer that the victim was subjected for

sexual assault. The investigating officer has also

admitted that the spot of the incident was situated in a

dense area. Thus, the evidence adduced by the

prosecution falls short to inspire the confidence.

.....31/-

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37. It is well settled that the evidence of the victim,

which inspires confidence, is sufficient to warrant

conviction and no independent corroboration is

required. However, considering the cross of the

victim, it requires the corroboration and no

independent witness is examined by the prosecution.

38. Learned counsel for the accused placed reliance

on Criminal Appeal No.301/2022 (Santosh vs. State of

Maharashtra) decided by the Division Bench of this

Court on 21.12.2023 wherein it is held that conviction

in sexual assault cases can be based on sole testimony

of the victim, provided it inspires confidence and is of

a sterling quality. Benefit of doubt must be given if the

evidence does not meet the requisite standard or lacks

corroboration.

.....32/-

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39. At the cost of repetition, there is no difficulty in

basing the conviction on the sole testimony of the

victim if it inspires confidence of the court.

40. It is well settled that victim's evidence is to be

tested like the evidence of the witnesses though the

statute provides presumption, however foundational

facts are to be established. If the circumstances arise

of possibility of innocence, benefit of doubt goes to the

accused.

41. Considering the entire material on record, I find

it difficult to place implicit faith on the testimony of

PW1 victim, PW2 grandmother of the victim, and PW3

mother of the victim. Though the prosecution placed

reliance on the DNA Report, it is also not helpful to

the prosecution as DNA profiles obtained from swab

from labia majora, labia minora, vaginal swab, and on .....33/-

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analysis of the same, it found identical and from one

and the same source of female origin matched with

the DNA profile obtained from blood samples of the

victim. It nowhere connects the accused with the

offence in question.

42. In view of such nature of the evidence, benefit

of doubt goes in favour of the accused and,

therefore, the judgment impugned in the appeal is

unsustainable in the eyes of law. Hence, I proceed to

pass following order:

ORDER

(1) The Criminal Appeal is allowed.

(2) The judgment and order dated 15.10.2022

passed by learned Extra Joint Additional Sessions

Judge, (Special Judge POCSO Court, Nagpur in

.....34/-

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Special Criminal (Child) Case No.609/2021 is hereby

quashed and set aside.

(3) The accused is acquitted of offence for which he

was charged.

(4) The accused be set at liberty forthwith, if he is

not required in any other case.

(5) Fine amount, if any, be refunded to the accused.

(6) Fees of learned counsel Shri Shyam R.Jaiswal

appointed for the accused and learned counsel

Ms.Falguni Badani appointed for the victim be