Siddarth Dagadu Sonde vs The State Of Maharashtra on 28 August, 2017

APPEAL-195-2016-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.195 OF 2016

SIDDHARTH DAGADU SONDE )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Yashpal Thakur, Appointed Advocate for the Appellant.

Ms.N.S.Jain, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 24th AUGUST 2017
28th AUGUST 2017

ORAL JUDGMENT :

1 By this appeal, the appellant / accused is challenging

the judgment and order dated 20th May 2015 passed by the

learned Special Judge, Pune, in Special Child Sessions Case No.42

of 2013 thereby convicting him of offences punishable under

Section 376 and 354 of the Indian Penal Code (IPC). The

appellant / accused is also held guilty under Section 4 of the

Protection of Children from Sexual Offences Act (POCSO Act

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hereinafter). On each count for the offence punishable under

Section 376 of the IPC as well as that under Section 4 of the

POCSO Act, he has been sentenced to suffer rigorous

imprisonment for 10 years apart from payment of fine of

Rs.5,000/-, in default to undergo further rigorous imprisonment

of 1 year. For the offence punishable under Section 354 of the

IPC, the appellant / accused is sentenced to suffer rigorous

imprisonment for 1 year, apart from directing him to pay fine of

Rs.1,000/- and in default, to undergo further rigorous

imprisonment for 1 month. Substantive sentences imposed on

these three counts are directed to run concurrently by the learned

trial court.

2 Brief facts leading to the institution of the present

proceedings are thus :-

(a) Informant PW2 Suman Gaikwad is a widow. She was having

responsibility of maintaining four daughters. The PW1 /

prosecutrix is one amongst them. PW2 Suman Gaikwad used to

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reside at Dattawadi area of Pune along with her mother-in-law

PW3 Kamal Gaikwad as well as her daughters.

(b) PW3 Kamal Gaikwad is having a daughter named Vandana.

The appellant / accused is husband of said Vandana – daughter of

PW3 Kamal Gaikwad. Thus, the appellant / accused is husband of

paternal aunt of the PW1 / prosecutrix.

(c) According to prosecution case, as father of the PW1 /

prosecutrix died and her mother was suffering from penury, it was

decided to send the PW1 / prosecutrix to the house of the

appellant / accused at Yerwada area of Pune for further education.

Accordingly, the PW1 / prosecutrix started residing with her

paternal uncle i.e. the appellant / accused and her paternal aunt

Vandana as well as their children and took admission in 7 th

Standard at Netaji Subhashchandra Bose High School, Yerwada,

Pune.

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(d) The prosecution alleged that during her stay at the house of

the appellant / accused at Yerwada, Pune, the appellant / accused

used to take her to the terrace and used to outrage her modesty.

He used to attempt to commit sexual intercourse with her by

putting his penis in her vagina.

(e) After completion of academic session 2012-2013, on

9th April 2013, the PW1 / prosecutrix was brought back to her

mother’s house by her grandmother – PW3 Kamal Gaikwad. As

there was urus of God Mhasoba at Dattawadi, Pune, on 14 th May

2013, the appellant / accused along with his family members

visited house of PW1 prosecutrix and stayed there for one day. On

15th May 2013, when the appellant / accused along with his

family members was returning to his house at Yerwada, Pune, the

PW1 / prosecutrix did not accompany him. She was questioned

by her mother PW2 Suman Gaikwad. Thereafter, the PW1 /

prosecutrix disclosed her mother that the appellant / accused used

to call her at the terrace of the house and used to outrage her

modesty so also he used to attempt to penetrate her. She disclosed

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that he used to threaten her that if she dares to disclose the

incident to anybody, he would kill her mother.

(f) After hearing narrations of the PW1 / prosecutrix, PW2

Suman Gaikwad was frightened and therefore, immediately she

did not disclose the incident. Subsequently, she told the incident,

as narrated by the PW1 / prosecutrix, to her mother-in-law i.e.

PW3 Kamal Gaikwad. Then, PW2 Suman Gaikwad accompanied

by her mother as well as PW3 Kamal Gaikwad, went to the house

of the appellant / accused on 18 th May 2013 and questioned him.

At that time, the appellant / accused threatened them that if the

complaint is lodged, he would commit suicide. Ultimately, with

the aid of PW5 Lilatai Sonawane, PW2 Suman Gaikwad lodged

report of the incident with Police Station Yerwada on 20 th May

2013, which resulted in registration of Crime No.241 of 2013 for

offences punishable under Section 376 as well as Section 4 of the

POCSO Act.

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(g) Wheels of investigation were set in motion due to report

lodged by PW2 Suman Gaikwad. PW1 prosecutrix was sent for

medical examination to Sassoon hospital, Pune, where she came

to be examined by PW4 Dr.Swati Kagne. Statement of witnesses

came to be recorded and spot panchnama of the spot of the

incident came to be recorded. On completion of necessary

investigation, the appellant / accused came to be charge-sheeted.

(h) After committal of the case, charges for the offences

punishable under Sections 376 and 354 of the IPC as well as

under Section 4 of the POCSO Act came to be framed and

explained to the appellant / accused, who abjured guilt and

claimed trial.

(i) In order to bring home guilt to the appellant / accused, the

prosecution has examined in all six witnesses. The prosecutrix

came to be examined as PW1 whereas her mother came to be

examined as PW2. Report lodged by PW2 Suman Gaikwad is at

Exhibit 10. PW3 Kamal Gaikwad is grandmother of the PW1 /

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prosecutrix. Dr.Swati Kagne, gynecologist from Sassoon Hospital,

Pune, is examined as PW4. Lilatai Sonawane – social worker,

came to be examined as PW5 whereas, the Investigator Amol

Nandekar, A.PI., Yerwada Police Station, is examined as PW6.

(j) Defence of the appellant / accused, as gathered from the

line of cross-examination from the prosecution witnesses as well

as from his statement under Section 313 of the Code of Criminal

Procedure (Cr.P.C.) is that of false implication. According to the

defence, at the time of marriage ceremony, the appellant /

accused had a quarrel with one Ravi Gaikwad and PW2 Suman

Gaikwad had illicit relations with said Ravi Gaikwad. Hence, he

has been framed in the crime in question.

3 I have heard Shri Yashpal Thakur, the learned advocate

on the panel of Legal Aid of High Court and appointed by this

court to represent the appellant / accused at the cost of the State.

By taking me meticulously through the entire record, Shri Yashpal

Thakur, the learned advocate argued that case of the prosecution

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becomes suspect because of inordinate delay in lodging the First

Information Report (FIR). He argued that though according to the

prosecution case PW2 Suman Gaikwad – mother of the PW1 /

prosecutrix came to know about the alleged incident on 15 th May

2013, still no action came to be taken by the prosecuting party

and ultimately, the FIR came to be lodged belatedly on 20 th May

2013. This indicates false implication of the appellant / accused in

the crime in question by concocting against him. It is further

argued that the PW1 / prosecutrix had ample opportunity to

complain against the appellant / accused. Evidence on record

indicates that she was continuously in contact with her mother

PW2 Suman Gaikwad and her grandmother PW3 Kamal Gaikwad,

during the course of her stay at the house of the appellant /

accused. The learned advocate pointed out that the PW1 /

prosecutrix had a brief stay at her own house at Dattawadi, in

company of her mother and grandmother during Diwali vacation.

Still, she failed to make any grievance against the appellant /

accused. The learned advocate further drew my attention to

evidence of PW3 Kamal Gaikwad to point out that PW3 Kamal

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Gaikwad was continuously visiting the house of the appellant /

accused for meeting her daughter as well as grandchildren. At

that time, the PW1 / prosecutrix used to interact with PW3 Kamal

Gaikwad. Still, the prosecutrix did not complain about the alleged

act of the appellant / accused. This, according to the learned

advocate appearing for the appellant / accused, makes the

prosecution case doubtful and improbable.

4 Shri Thakur, the learned advocate further argued that

evidence of the prosecution suffers from several inconsistencies

and discrepancies making it unworthy of credit. Evidence of PW4

Dr.Swati Kagne shows that she had jotted down the history of the

alleged incident given jointly by PW1 prosecutrix as well as her

mother PW3 Kamal Gaikwad. Evidence of PW4 Dr.Swati Kagne

does not make it clear that as to which witness has stated which

history, and therefore, the contemporaneous medical record

cannot be used against the appellant / accused for inferring the

guilt. It is further argued that even if evidence of prosecution is

accepted as it is, then also, no offence either under Section 376 of

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the IPC or under Section 4 of the POCSO Act is made out. Shri

Yashpal Thakur, the learned advocate, to buttress this contention

placed reliance on evidence of PW1 prosecutrix so also, evidence

of her mother PW2 Suman Gaikwad and the FIR lodged by her to

submit that, evidence on record shows that the appellant /

accused had only attempted to penetrate the PW1 / prosecutrix,

and therefore, offence punishable under Section 376 of the IPC as

well as offence punishable under Section 4 of the POCSO Act, is

not made out by the prosecution. According to him, considering

this quality of evidence, the appellant / accused is entitled for

benefit of doubt. He placed reliance on the judgment of the

Hon’ble Apex Court in the matter of Tarkeshwar Sahu vs. State

of Bihar1.

5 I have heard the learned APP who argued that

evidence of PW4 Dr.Swati Kagne duly corroborates version of the

PW1 / prosecutrix and therefore, offences as alleged against the

appellant / accused are proved by the prosecution.

1 2006 (8) SCC 560

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6 I have carefully perused the record and proceedings

including the deposition of witnesses, so also the documentary

evidence placed on record. I have also considered the rival

submissions.

7 At the outset, let us put on record the undisputed

position. It is not disputed by the defence that the date of birth of

the PW1 / prosecutrix is 11th February 2001, and as such, the

appellant / accused has not disputed the fact that at the time of

the alleged incident, the PW1 / prosecutrix was below 18 years of

age. Undisputedly, this female child was residing at the house of

the appellant / accused during the academic session 2012-2013

and she left his house on 9th April 2013 for joining company of her

mother. It is not in dispute that during the academic year 2012-

2013 by staying at the house of the appellant / accused, the

PW1 / prosecutrix was taking education at Netaji Subhashchandra

Bose High School, Yerwada, Pune. Similarly, it is not in dispute

that the appellant / accused is husband of paternal aunt of the

PW1 / prosecutrix and that PW3 Kamal Gaikwad is mother of his

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wife Vandana. The defence has also not disputed that PW2

Suman Gaikwad is daughter-in-law of PW3 Kamal Gaikwad and

mother of PW1 prosecutrix. With this undisputed position on

record, let us examine whether the prosecution is successful in

making out the offence punishable under Section 376 of the IPC,

as well as the one punishable under Section 4of the POCSO Act.

8 Undisputedly, the victim of the crime in question, at

the relevant time, was a minor female child, she being below 18

years of age. As such, the appellant / accused cannot put forth the

theory of consent. PW1 prosecutrix had not attained the

consenting age.

9 Evidence on record coming from cross-examination of

PW3 Kamal Gaikwad so also from evidence of the PW1 /

prosecutrix and her mother PW2 Suman Gaikwad reflects the

reason for the PW1 / prosecutrix joining the company of the

appellant / accused for residing in his house at Yerwada, Pune.

From cross-examination of PW3 Kamal Gaikwad it is brought on

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record by the defence that the father of PW1 prosecutrix passed

away and the responsibility of maintaining the PW1 / prosecutrix

and her three sisters thereafter rested on shoulders of their mother

i.e. PW2 Suman Gaikwad. Cross-examination of PW3 Kamal

Gaikwad further shows that it was the appellant / accused who

asked PW3 Kamal Gaikwad and PW2 Suman Gaikwad to send the

PW1 / prosecutrix to his house for further education. Evidence of

PW2 Suman Gaikwad shows that because of death of her husband

and as she was required to shoulder the responsibility of

maintaining all her four daughters, hoping that the PW1 /

prosecutrix would get good education while staying at the house

of the appellant / accused, she had consented for sending PW1

prosecutrix for residing at the house of the appellant / accused.

Evidence of PW2 Suman Gaikwad, which is unchallenged in the

cross-examination, goes to show that she was not in a position to

provide educational facilities to her daughters. As seen from the

cross-examination of PW3 Kamal Gaikwad, then PW1 prosecutrix

was admitted at Netaji Subhashchandra Bose High School, in

Yerwada area of Pune, and she started residing in the house of the

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appellant / accused, which is also located at Yerwada, Pune. This

evidence, which is brought on record mostly from cross-

examination of PW2 Suman Gaikwad and PW3 Kamal Gaikwad

needs to be accepted and this court will have to keep in mind the

situation in which the PW1 / prosecutrix was constrained to join

company of the appellant / accused by residing with him and his

family members at his house at Yerwada, Pune. This evidence

unerringly points out that the appellant / accused who himself

obtained custody of the minor female child (PW1) was in a

position of dominating her while she was in his custody. In these

established facts, now let us examine what PW1 prosecutrix says

about the incident, as considering the nature of allegations made

against the appellant / accused, fate of the prosecution case to a

large extent depends on her version about the incident.

10 The PW1 / prosecutrix deposed that during her stay at

the house of the appellant / accused, he used to take her to the

terrace and he used to ask her to massage his private part by oil.

The PW1 / prosecutrix further stated that the appellant / accused,

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at that time, used to press her breast and he also was trying to

insert his penis into her vagina. The PW1 / prosecutrix further

deposed that the appellant / accused was sleeping on her body. At

that time, wife of the appellant / accused used to be in the kitchen

of the house and there used to be nobody at the terrace. The PW1

/ prosecutrix further deposed that the appellant / accused used to

give threats to her that if his acts were disclosed to anybody, then

he would kill her mother and due to this fear, she had not

disclosed the incident to anybody else.

11 PW2 Suman Gaikwad in her deposition before the

court has stated that while studying in 7 th Standard, her daughter

i.e. the PW1 / prosecutrix used to reside with the appellant /

accused and his family. After completion of examination, her

daughter was brought back by her mother-in-law PW3 Kamal

Gaikwad to her own house on 9th April 2013. On this aspect,

evidence of PW3 Kamal Gaikwad is also in tune with evidence of

PW2 Suman Gaikwad.

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12 PW2 Suman Gaikwad and PW3 Kamal Gaikwad in

their statements have disclosed narrations made to them by the

PW1 / prosecutrix after the appellant / accused left their house,

after attending urus of God Mhasoba, on 15th May 2013. As per

version of both these witnesses, at the time of visit of the

appellant / accused to their house, the PW1 / prosecutrix showed

disinclination to go back to the house of the appellant / accused.

She was questioned by both of them. Then, as per version of PW2

Suman Gaikwad, the PW1 / prosecutrix disclosed her that the

appellant / accused was sexually harassing her by asking her to

massage his private part, by touching her breast as well as her

private part, at the terrace of the house. In words of PW3 Kamal

Gaikwad, the PW1 / prosecutrix disclosed her that the appellant /

accused used to ask her to massage his private part, he used to

pull the PW1 / prosecutrix near him and used to kiss her.

13 It is, thus, clear from version of both these witnesses

that though the PW1 / prosecutrix had disclosed that the

appellant / accused was trying to insert his penis in her vagina,

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PW2 Suman Gaikwad and PW3 Kamal Gaikwad are not stating

that this fact was disclosed by the PW1 / prosecutrix to them.

PW2 Suman Gaikwad has stated that her daughter had disclosed

to her each and every thing about misbehavior of the appellant /

accused with her. However, nothing more than giving massage to

the private part of the appellant / accused and touching breast

and private part of the PW1 / prosecutrix, is stated by her before

the court.

14 Now let us examine whether an element of

improbability creeps in the prosecution case because of non-

disclosure of alleged sexual harassment to her by the PW1 /

prosecutrix to her mother PW2 Suman Gaikwad and her

grandmother PW3 Kamal Gaikwad. No doubt, during the period

of about one academic session, the PW1 / prosecutrix resided at

the house of the appellant / accused, but in the foregoing

paragraphs of this judgment, I have also disclosed circumstances

in which she was required to take shelter of the house of the

appellant / accused. Evidence on record disclosed that the PW1 /

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prosecutrix was hailing from a penury sticken family, after passing

away of her father. She was the victim of circumstances after

death of her father and as such helpless. From cross-examination

of PW2 Suman Gaikwad, it is elicited by the defence that the

PW1 / prosecutrix was required to do work of washing utensils,

clothes, as well as other work allotted to her at the house of the

appellant / accused. The PW1 / prosecutrix was hardly 13 years

of age at that time. Apart from taking school education, she was

also required to do household work at the house of the appellant /

accused. Considering poverty of the family of PW1 prosecutrix, so

also the fact that she was virtually in custody of the appellant /

accused for all practical purposes, coupled with the fact that her

evidence shows that the appellant / accused had threatened her

not to disclose anything to anybody or else her mother would be

killed, conduct of the PW1 / prosecutrix in keeping mum and to

shut her mouth during her entire stay with the appellant / accused

is not abnormal. A girl of tender years, who was virtually left at

the mercy of the appellant / accused, is not expected to speak

against the appellant / accused, particularly when she had lost her

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father and there was no male member at her house. Hence, even

though evidence on record shows that the PW1 / prosecutrix had

ample opportunity to disclose her woes and sufferings to her

mother as well as her grandmother during telephonic talks, during

her brief stay at her mother's house, as well as during visits of her

grandmother to the house of the appellant / accused, non-

disclosure of the same cannot be said to be a factor which creates

doubts in version of PW1 prosecutrix. Her conduct appears to be

normal conduct of a helpless girl of tender age enmeshed in

cobweb of adverse circumstances and as such, this fact does not

cast shadow of doubt on version of the PW1 / prosecutrix.

Because of fear and terror of the appellant / accused, she was

virtually prohibited from disclosing anything to her other relatives.

15 Now let us examine, whether there is delay in lodging

the FIR and whether that delay is fatal to the case of the

prosecution. The case in hand is a case of sexual assault on minor

female child by her paternal uncle, and that too, when the minor

female child was in his custody for a period of one year. Sexual

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offences are not reported to police because of tradition bound

Indian society. There are several reasons for such non-disclosure

of sexual offences, either to the relatives or to the law enforcing

agencies. The Hon'ble Apex Court, in the matter of Bharwada

Bhoginbhai Hirjibhai vs. State of Gujarat 2 has categorized

reasons for non-reporting sexual offences in Indian settings and

those are as under :

(1) A girl or a woman in the tradition bound non-
permissive Society of India would be extremely
reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred;
(2) She would be conscious of the danger of being
ostracised by the Society or being looked down by the
society including by her own family members,
relatives,friends, and neighbours;
(3) She would have to brave the whole world;
(4) She would face the risk of losing the love and
respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered;
(5) If she is unmarried, she would apprehend that it
would be, difficult to secure an alliance with a suitable
match from a respectable or an acceptable family;

2 1983 AIR 753

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(6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself;
(7) The fear of being taunted by others will always
haunt her;

(8) She would feel extremely embarrassed in relating
the incident to others being over powered by feeling of
shame on account of the upbringing in a tradition
bound society where by and large sex is taboo;
(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy;
(10) The parents of an unmarried girl as also the
husband and members of the husband's family of a
married woman, would also more often than not, want
to avoid publicity on account of the fear of social stigma
on the family name and family honour;

(11) The fear of the victim herself being considered to be
promiscuous or in some way responsible for the
incident regardless of her innocence;

(12) The reluctance to face interrogation by the
investigating agency, to face the court, to face
the cross examination by Counsel for the culprit, and
the risk of being disbelieved, acts as a deterrent.

16 One will have to appreciate the evidence of the

prosecution in the backdrop of this position of law, keeping in

mind the fact that the prosecuting party and the appellant /

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accused are closest relatives. PW2 Suman Gaikwad is the First

Informant. Her evidence indicates that she came to know about

the incident of sexual assault of her daughter i.e. the PW1 /

prosecutrix on 15th May 2013. Her evidence further shows that

then accompanied by her other relatives, she had been to the

house of the appellant / accused to question him on 18 th May

2013 and then with the help of PW5 Lilatai Sonawane, she lodged

report of the incident with police on 20 th May 2013. This witness

deposed that she was thinking about the matter and about the

further course of action to be taken in the matter. She further

deposed that the fact that close relative was involved in the matter

is one of the consideration before her. PW3 Kamal Gaikwad, who

is mother-in-law of the appellant / accused indicated in her

evidence that mental condition of PW2 Suman Gaikwad was

disturbed after getting knowledge of the incident and ultimately,

PW2 Suman Gaikwad was required to threaten her to take action

in the matter. In words of PW3 Kamal Gaikwad, PW2 Suman

Gaikwad has questioned her that though life of a granddaughter is

ruined, she (PW3 Kamal Gaikwad) is not taking any action in the

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matter. It was in these circumstances, ultimately, PW2 Suman

Gaikwad was required to take help of PW5 Lilatai Sonawane to

lodge report against the appellant / accused.

17 Delay in lodging the FIR cannot be used as ritualistic

formula to suspect or discard case of the prosecution. The court is

required to search for explanation, if any, given by the First

Informant for lodging the FIR belatedly. If explanation is found to

be satisfactory, then the prosecution case cannot be discarded on

this ground. The court is also required to consider whether the

evidence on record indicates adding of embellishments or

exaggeration because of the delay in lodging the FIR, or whether

the prosecuting party was attempting to bolster up its case by

deliberately delaying the lodging of the FIR. Unless and until such

factors are established, even by preponderance of probability,

mere delay in lodging the FIR cannot render the case of the

prosecution brittle. The appellant / accused has not made out any

such contingency from cross-examination of witnesses of the

prosecution and evidence of the First Informant / PW2 Suman

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Gaikwad coupled with evidence of her mother-in-law PW3 Kamal

Gaikwad gives satisfactory explanation of this short delay in a case

where serious allegations are leveled against their own relative.

Hence, I hold that the case of the prosecution is not suffering from

any delay in lodging the FIR.

18 Now let us examine whether evidence of the

prosecution establishes that the appellant / accused had committed

penetrative sexual intercourse on the PW1 / prosecutrix by

indulging in atleast slightest penetration. In this regard, submission

of the learned advocate appearing for the appellant / accused, as

reiterated earlier, is to the effect that the offence cannot travel upto

the one punishable under Section 376 of the IPC or under Section 4

of the POCSO Act, as there is no evidence of penetration. He relied

on chief examination of the victim of the crime in question to the

effect that the appellant / accused was trying to insert his penis in

her vagina. Therefore, according to the learned advocate for the

appellant / accused, there is no evidence of penetration.

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19 Section 375 of the IPC prescribes six categories which

constitute basic ingredients for the offence of rape punishable

under Section 376 of the IPC. In the case in hand, undisputedly,

the victim of the crime in question is a minor female child, who at

the relevant time, was of tender years. She was taking school

education in 7th Standard by residing at the house of the appellant

/ accused. On this backdrop, it needs to be kept in mind that

Section 375 of the IPC or explanation attached thereto does not

require that there should be complete penetration in order to

constitute offence of rape. Even partial or slightest penetration

into the private part of the victim would be quite enough to

sustain conviction under Section 376 of the IPC. The offence

punishable under Section 376 of the IPC postulates sexual

intercourse by a man with a woman. The word "intercourse"

means sexual connection. It can be slightest and not necessarily

complete. What is sine-qua-non for constitution of this offence is

penetration and to convict the accused for this offence the

requirement is that of clear and cogent evidence to establish that

some part of the virile member of the accused was within the labia

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of the victim of the crime in question. No matter how little. In

the wake of this legal position, one will have to assess the

evidence adduced by the prosecution in order to prove the guilt of

the appellant / accused on this count. No doubt, the victim of the

crime in question, who is a minor female child of tender years had

explained the act of the appellant / accused as that of 'trying to

insert his penis into her vagina', but the victim was subjected to

medical examination after lodging the FIR. The offence alleged

against the appellant / accused continued for entire academic

session 2012-2013 when the victim was residing at his house.

Because of her tender age, the victim of the crime in question i.e.

the PW1 / prosecutrix is not aware about the meaning of sexual

intercourse or sexual acts. Therefore, in her words, she deposed

what happened to her at the hands of the appellant / accused.

Considering the fact that the victim was of tender years, she is not

expected to have knowledge of sex and meaning of sexual

intercourse. Description of the act in detail cannot be expected

from her. However, result of such acts committed on her by the

appellant / accused are reflected on her body and those

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constitutes evidence against the appellant / accused. In this

backdrop, it is in the evidence of PW4 Dr.Swati Kagne, a

gynecologist, resident doctor working with Sassoon hospital, that

she examined the PW1 / prosecutrix at about 2.00 a.m. of 21 st

May 2013. In medical examination of the PW1 / prosecutrix, PW4

Dr.Swati Kagne found that hymen of the PW1 / prosecutrix was

completely torn and it was having old healed tears at 8 O'Clock

and 10 O'clock position. On clinical examination of the PW1 /

prosecutrix, PW4 Dr.Swati Kagne came to the conclusion that

there was possibility of sexual vaginal intercourse with the PW1 /

prosecutrix. She further stated that tearing of the hymen,

presence of old healed tears at 8 O'Clock and 10 O'clock positions

reflects the case of sexual vaginal intercourse. The defence has

attempted to demonstrate that there are several other reasons for

tearing of hymen and it can be caused by cycling, athletic running

and sports. However, halfhearted cross-examination of PW4

Dr.Swati Kagne does not go beyond these suggestions which are

answered in affirmative by her. Moreover, there is no cross-

examination of the PW1 / prosecutrix to the effect that she was

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involved in vigorous sport activities such as cycling, athletic

running or other sports. In absence of such suggestions to the

PW1 / prosecutrix, one cannot infer that tearing of hymen of the

PW1 / prosecutrix can be attributable not to the activities of the

appellant / accused but to the other activities in sports

undertaken by the PW1 / prosecutrix. Hence, evidence of the

PW1 / prosecutrix to the effect that the appellant / accused was

trying to insert his male organ in her private part, coupled with

the fact that upon medical examination of PW1 prosecutrix, her

hymen was found to be torn and presence of old healed tears, is

definitely suggestive of penetrative sexual intercourse with her

constituting the offence punishable under Section 376 of the IPC

as well as the one under section 4 of the POCSO Act. Ultimately,

it is trite that evidence in the case of sexual offence against minor

female child is required to be considered in broader probabilities

of the prosecution case. Hence, non-description of the specific act

in its entirety by PW1 prosecutrix, who happens to be a minor

female child, is of no consequence as the prosecution has

established that there was penetration constituting the offence of

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rape and penetrative sexual intercourse. Ultimately, what is

required in the case of rape is not rigid proof of mathematical

precision, but proof beyond reasonable doubt considering broad

probabilities of the prosecution case. In this view of the matter, it

cannot be said that the learned trial court erred in holding the

appellant / accused guilty of offence alleged against him.

20 It needs to be mentioned here that evidence of the

PW1 / prosecutrix in respect of sexual assault on her by the

appellant / accused is well corroborated by evidence of her

mother PW2 Suman Gaikwad and grand mother PW3 Kamal

Gaikwad. These two witnesses proved previous statement made

to them by the PW1 / prosecutrix about the sexual assault on her

by the appellant / accused and such evidence is admissible under

Section 157 of the Evidence Act to corroborate version of the PW1

/ prosecutrix. PW3 Kamal Gaikwad is mother-in-law of the

appellant / accused and grandmother of the PW1 / prosecutrix.

She being close relative of both of them would be the last to

screen the real culprit and falsely implicate an innocent person.

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21 However, as rightly pointed out by the learned

advocate for the appellant / accused, in the wake of conviction of

the appellant / accused for the offence punishable under Section

4 of the POCSO Act and consequent sentence, the learned trial

court ought not to have sentenced him again for the offence

punishable under Section 376 of the IPC. He argued that sentence

imposed upon the appellant / accused for the offence punishable

under Section 376 of the IPC is not warranted. It needs to be

noted that Section 42 of the POCSO Act provides that where an

act or omission constitutes an offence punishable under the said

Act, so also the offence punishable under Section 376 of the IPC,

then, notwithstanding anything contained in any law for the time

being in force, the offender found guilty of such offence shall be

liable to punishment under the POCSO Act or under the IPC, as

provided for punishment which is greater in degree. In the case in

hand, the appellant / accused is sentenced to suffer rigorous

imprisonment for 10 years apart from directing him to pay fine of

Rs.5,000/-, in default, to undergo further rigorous imprisonment

for 1 year, for the offence punishable under Section 376 of the

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IPC. Similar sentence is imposed upon him separately for the

offence punishable under Section 4 of the POCSO Act. The

appellant / accused, in the light of provisions of Section 42 of the

POCSO Act, cannot be awarded separate sentence for the offence

punishable under Section 376 of the IPC. In the result, the

following order :

ORDER

i) The appeal is partly allowed.

ii) Maintaining the conviction of the appellant /

accused for the offence punishable under

Section 376, in the wake of his conviction and

sentence for the offence punishable under

Section 4 of the POCSO Act, sentence of rigorous

imprisonment for 10 years as well as direction to

pay fine of Rs.5,000/- and in default, to undergo

further rigorous imprisonment for 1 year, for the

offence punishable under Section 376 of the IPC,

is quashed and set aside.

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iii)Conviction and resultant sentence on rest of the

counts is maintained. Needless to mention that

sentence imposed on the appellant / accused for

the offence punishable under Section 4 of the

POCSO Act is maintained.

iv)The appeal is disposed of accordingly.

(A. M. BADAR, J.)

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