Sunil Ramdas Salve vs The State Of Maharashtra on 1 September, 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.420 OF 2015

Sunil s/o. Ramdas Salve,
Age : 21 years, Occ. Nil,
r/o. Ramjan-Chincholi,
Tq. Karjat, Dist. Ahmednagar,
presently in Yerwada Central
Prison, Pune ..Appellant

Vs.

The State of Maharashtra,
Through Police Station Officer,
Karjat Police Station,
Dist. Ahmednagar ..Respondent

—-
Mr.N.V.Gaware, Advocate for appellant

Mr.G.O.Wattamwar, A.P.P. for respondent
—-

CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : AUGUST 23, 2017
PRONOUNCED ON : SEPTEMBER 01, 2017

JUDGMENT :

Heard

2. The appellant has assailed the legality and

correctness of the judgment and order dated

29.04.2014 passed in Sessions Case No.278 of 2013 by

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the learned Additional Sessions Judge, Ahmednagar,

whereby he has been convicted for the offences

punishable under Section 376(2)(i) of the Indian

Penal Code (“I.P.C.”, for short) and under Section 3

punishable under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 (“POCSO Act”,

for short), and sentenced for the offence punishable

under Section 376(2)(i) of the I.P.C. only, to suffer

rigorous imprisonment for ten years and to pay a fine

of Rs.10,000/- (Rs.Ten Thousand), in default to

suffer rigorous imprisonment of one year.

3. The victim girl is the daughter of the

informant namely, Intaj w/o. Shabbir Shaikh, r/o.

Village Chincholi-Ramjan, Tq. Karjat, District

Ahmednagar. The victim was aged about 14 years at

the time of the incident. She was studying in 5 th

standard at Parewadi, Tq. Karmala, Dist. Solapur.

She is hearing impaired and suffering from mild

mental retardation. She was not able to speak

fluently.

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4. On 25.06.2013 prior to about 8.00 p.m., the

victim had gone to purchase a stove-washer to the

shop of one Balasaheb Damodar Kale at village

Chincholi-Ranjan. As she did not come back even after

a considerable time, the informant went to the shop

of Balasaheb Damodhar Kale to see her. The said shop

was closed at that time. Balasaheb Kale was standing

near the shop. The informant asked Balasaheb Kale

about the victim, whereon he informed that she had

left his shop before about 15 minutes. The informant

then searched for the victim in the nearby places. At

that time, she heard the shouts of the victim ‘Mummi,

Mummi’ from the backside of a primary school

building. The informant then went to the backside of

the school building. At that time, the victim rushed

towards her. She was crying. On being asked, she

informed that the appellant took her in the dark

behind the school building, removed her Salwar and

knicker and committed rape on her. When she tried to

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raise shouts, the appellant pressed her mouth.

Thereafter, the informant along with the victim girl

and her nephew namely, Amin Shaikh, went to the house

of the appellant to question him about the incident.

At that time, the appellant admitted his mistake and

beg for pardon. Since it was a night time, the

informant did not immediately approach the Police

Station. On the next day, she lodged the F.I.R.

against the appellant in respect of the above-

mentioned incident.

5. On the basis of that FIR, Crime No.I-120 of

2013 came to be registered against the appellant for

the above-mentioned offence. The investigation

followed. The spot panchnama was prepared. The

victim and the appellant were medically examined.

The garments of the victim and that of the appellant

came to be seized and sent to the Chemical Analyst

for analysis and report. The statements of the

witnesses were recorded. The school record showing

the date of birth of the victim came to be collected.

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After completion of the investigation, the appellant

came to be charge-sheeted for the above-mentioned

offences.

6. The learned trial Judge framed charges

against the appellant for the above-mentioned

offences vide Exh.7 and explained the contents

thereof to him in vernacular. The appellant pleaded

not guilty and claimed to be tried. His defence is

that of total denial and false implication on the say

that he had demanded back the amount of hand-loan

from the informant, and therefore he was involved in

this case.

7. The prosecution examined eight witnesses to

bring home guilt of the appellant. The appellant also

examined three witnesses in his defence. After

scrutinizing the evidence on record, the learned

trial Judge held that the prosecution established the

above-mentioned offences against the appellant beyond

reasonable doubts. He, therefore, convicted and

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sentenced the appellant for the said offences, as

stated above.

8. The learned Counsel for the appellant

submits that the age of the victim has not been duly

proved by positive and dependable evidence showing

that she was aged about 14 years at the time of the

incident. According to him, the extract of the

general register and the certificate produced by the

In-charge Headmaster of Zilla Parishad Primary

School, Parewadi are suspicious documents. Relying

on the judgments in the cases of Sandeep Janaji Konde

Vs. State of Maharashtra, All.M.R. (Cri.) 1433 and

Sindhu Sukhdeo Waghmare Vs. State of Maharashtra,

2005 All.M.R. (Cri.) 2240, he submits that the school

record produced by the In-charge Headmaster should

not have been relied on by the learned trial Judge.

He submits that no ossification test or radiological

examination was done in order to ascertain the age of

the victim. In the absence of such test, examination

and any reliable evidence showing age of the victim,

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it cannot be said that the victim was below 16 years

of age at the time of the incident. The learned

Counsel further submits that the victim is a mentally

retarded person. She is suffering from loss of

hearing. She was not in a position to speak fluently.

In the circumstances, as per the provisions of sub-

section (3) of Section 26 of the POCSO Act, the

learned trial Judge should have taken assistance of a

Translator or Interpreter, while recording the

evidence of the victim. According to him, the

evidence of the victim recorded by the learned trial

Judge, without seeking assistance of Translator or

Interpreter, is not at all admissible. In the absence

of proper recording of the evidence of the victim,

the appellant should not have been connected with the

alleged incident. He submits that the C.A. reports do

not incriminate the appellant. The finding of semen

stains on the clothes of the appellant by themselves

would not connect him with the alleged incident of

rape. In support of this contention, he relied on the

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judgments in the cases of State of Maharashtra Vs.

Dadarao s/o. Bapurao Jivtode and ors., 2006 All.M.R.

(Cri.) 735 and Ashok Premaji Nirbhawane Vs. The State

of Maharashtra, 2014 (4) Mh.L.J.(Cri.) 407. The

learned Counsel pointed to the evidence of the

defence witnesses namely, Nana Bobade and Rohidas

Salve, who specifically states that the amount of

Rs.50,000/- was lent by the appellant to the

informant in the month of January, 2013 in their

presence. Nana Bobade further states that on the day

of the incident at about 8.00 p.m., the appellant and

himself had gone to the house of the informant to

demand that amount. At that time, their had been

exchange of hot words between the informant and the

appellant. She did not return the amount of hand-loan

and on the next day, she lodged the FIR against the

appellant. He submits that the FIR has been lodged at

10.00 p.m. on 26.06.2013. No explanation has been

given for the delay of more than one day in filing

the FIR. He submits that a false FIR came to be

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lodged against the appellant, only because he

demanded back the amount of hand-loan from the

informant. The learned Counsel, therefore, submits

that the appellant may be acquitted of the above-

mentioned offences.

9. On the other hand, the learned APP submits

that the informant specifically states that the

victim was aged of 14 years at the time of the

incident. The victim also states that her age as 14

years when she was examined before the trial Court.

The Investigating Officer, A.P.I. Rakh (PW 7) also

states that on the basis of the school record of the

victim, it was confirmed that she was aged about 14

years at the time of the incident. The evidence of

these witnesses about the age of victim has not been

challenged in their cross-examination. Their evidence

is supported by the extract (Exh.26) from the general

register of the school, where the victim was

studying, wherein her date of birth is mentioned as

03.08.1999. The In-charge Headmaster had brought the

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original general register. The entry about admission

of the victim in that register was taken in the

ordinary course of business. There was no reason to

prepare false record when the victim was admitted in

that school much prior to the date of the incident,

when it was not even anticipated that the victim may

face such incident. Relying on the judgment in the

case of Arjun Singh Vs. State of H.P., AIR 2009 SC

1568, he submits that the entry in the school

register has evidenciary value and can be considered

for determination of age of the victim. In the

circumstances, according to him, it was not necessary

to subject the victim to ossification test or

radiological examination for ascertaining her age. He

submits that the defence of the appellant is not at

all natural, probable and acceptable. There is no

documentary evidence to show that the appellant lent

Rs.50,000/- to the informant at any point of time. A

suggestion was given to the informant on behalf of

the appellant that she had taken Rs.10,000/- from the

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appellant and when he insisted her to return that

amount, she lodged a false FIR against him. This

suggestion has been flatly denied by the informant.

Moreover, this suggestion is not consistent with the

evidence of Nana Bobade (DW 2) and Rohidas Salve

(DW3) that the appellant had lent Rs.50,000/- to the

informant. He submits that the victim was quite

competent to depose before the Court. The learned

trial Judge got it confirmed before recording her

evidence, about her competency to depose as a

witness. She has faced the cross-examination

effectively. In such circumstances, it was not

necessary to take assistance of a Translator or

Interpreter for recording her evidence, as prescribed

under sub-section (3) of Section 26 of the POCSO Act.

He submits that there was no reason for the informant

and the victim to state false against the appellant.

The informant has given explanation that due to night

time, she did not approach the police station

immediately after the incident. He submits that the

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evidence on record sufficiently proves beyond the

reasonable doubts that the appellant committed rape

on the victim. He supports the impugned judgment and

order and prays that the appeal may be dismissed.

AGE OF THE VICTIM GIRL

10. The victim girl states at Exh.33 as PW 6 on

solemn affirmation her age as 14 years. The informant

(PW 1) (Exh.13) also states that the victim was 14

years old. In the FIR (Exh.14) also, the age of the

victim is mentioned as 14 years. Dr.Pushpa Narote

(PW3) (Exh.17), who examined the victim on 26.06.2013

also mentions the age of the victim as 14 years in

her deposition as well as in the Certificate

(Exh.18). A.P.I. Rakh (PW 7)(Exh.34) states that on

the basis of the school record of the victim, he got

it confirmed that she was aged about 14 years at the

time of the incident. The evidence of these witnesses

about the age of the victim has not at all been

challenged in their cross-examination. It is not even

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suggested to them that the victim was more than 16

years of age. Shahaji Deokate (PW 5)(Exh.25), who

happened to be the In-charge Headmaster of the Zilla

Parishad Primary School, Parewadi, deposes that the

victim was admitted in his school as a fresher in

the first standard on 30.08.2007 by her mother and

her date of birth is 03.08.1999. He had brought the

original general register of the school with the

extract (Exh.26) thereof in respect of the entry of

the victim in that school. On that basis of that

record, he issued the Certificate (Exh.27) showing

the date of birth of the victim as 03.08.1999.

11. The learned Counsel for the appellant points

out to Entry No.1215 in respect of the victim from

the extract (Exh.26), wherein the name of her mother

is shown as “Lintaj”. He submits that the name of the

informant is “Intaj”. Therefore, according to him,

the said entry cannot be said to be that of the

victim. He further submits that in column no.6 of the

extract (Exh.26), there has been interpolation and

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the student concerned is shown to have been admitted

for the first time in that school. Therefore,

according to him, the extract (Exh.26) from the

admission register cannot be believed.

12. I am not inclined to accept this contention.

There may be some difference in recording the name of

the informant because of clerical mistake in the said

column of the extract (Exh.26) showing it as ‘Lintaj’

instead of ‘Intaj’ being the mother of the victim.

However, the name of the father of the victim has

been correctly recorded as Shabbir Shaikh. There is

no dispute that the name of the father of victim is

Shabbir Shaikh. The original general register was

also produced by Deokate (PW 5) when he was examined

before the Court. Entry no.1215 in respect of the

victim has been taken in the ordinary course of

business by the school authorities. The said entry

has been taken on 30.08.2007 i.e. prior to six years

of the date of the incident. It was not even

anticipated at that time that such entry would be

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required to be produced before the Court to prove the

age of the victim. The said entry would certainly be

admissible under Section 35 of the Indian Evidence

Act in proof of the age of the victim. On the basis

of the date of birth of the victim recorded in the

general register of the school, her age would be 13

years and 10 months at the time of the incident. In

view of this documentary evidence coupled with the

unchallenged above-referred oral evidence of the

victim and other three witnesses, I have no

hesitation to hold that the victim was 14 years of

age or even less than 14 years of age at the time of

the incident.

13. In the case of Sandeep Janaji Konde (supra),

the age of the victim was sought to be proved on the

basis of her own statement and the school leaving

certificate. The entries in the school register were

not at all produced. There was no material to prove

that the school leaving certificate contained

accurate record of entries in the general register

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maintained by the school. The headmaster, who issued

the certificate, also was not examined. In the

circumstances, it was held that the prosecution

failed to prove that the victim was below 16 years of

age at the time of the incident. In the present case,

the extract (Exh.26) has been duly proved by

producing the original general register before the

Court. The In-charge Headmaster himself appeared as a

witness to prove the entry in the extract (Exh.26).

Moreover, there is unchallenged oral evidence of the

above-named witnesses about the age of the victim.

In the circumstances, the judgment in the case of

Sandeep Janaji Konde (supra) would be of no help to

the appellant to discard the evidence of the

prosecution that has been produced to prove the age

of the victim.

14. In the case of Sindhu Sukhdeo Waghmare

(supra), the prosecution examined the Headmaster of

the school, where the prosecutrix was studying. He

produced the original register and on the basis of

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the said register, he produced the school leaving

certificate of the prosecutrix showing her date of

birth. In the cross-examination, he admitted that

the police did not record his statement and did not

collect copy of the school leaving certificate. He

further admitted that the name of the school was not

mentioned in the register. He then admitted that it

was not the first entry of the prosecutrix when she

took admission to the school. He states that

initially, the prosecutrix has taken admission in

Zilla Parishad Marathi School and thereafter, she

took admission in English school. In the

circumstances, his evidence was disbelieved. It was

held that the Headmaster was examined to fill-up the

lacunae in the prosecution case, though his name did

not figure in the list of the witnesses and though

his statement was not recorded. It was further

observed that neither the mother nor the prosecutrix

state that she was minor below 16 years of age at the

time of the incident.

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15. The facts in the present case are totally

distinguishable. In the present case, the victim and

her mother have specifically stated about the age of

the victim, which evidence has remained unchallenged.

It is not that Deokate (PW 5) was not examined by the

Investigating Officer as witness during the course of

investigation. The original general register showing

the name of the school of the victim was produced

before the Court. The Certificate (Exh.27) also has

been produced showing the name of the school and the

date of birth of the victim. In the circumstances,

the judgment in the case of Sindhu Sukhdeo Waghmare

(supra) would not assist the appellant to through

suspicion on the evidence produced by the prosecution

about the age of the victim.

16. In view of the above evidence, I have no

hesitation to hold that the victim was below 16 years

of age at the time of the incident.

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APPLICABILITY OF SECTION 26(3) OF THE POCSO ACT

17. As per sub-section (3) of Section 26 of the

POCSO Act, the Magistrate or the police officer, as

the case may be, may, in the case of a child having a

mental or physical disability, seek the assistance of

a special educator or any person familiar with the

manner of communication of the child or an expert in

that field, having such qualifications, experience

and on payment of such fees as may be prescribed, to

record the statement of the child.

18. In the present case, the informant states

that the victim is hearing impaired to some extent.

She cannot speak fluently. The informant does not

state that the victim is mentally challenged. The

victim has been examined by the learned trial Judge

at Exh.33. In the preliminary examination, the

learned trial Judge made following observations :-

” Witness sought to be examined

is 14 years old, minor girl. As per

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the report of Medical experts, her

hearing is impaired since childhood and

as per the report of Psychologist, she

is having mild mental retardation. On

this background, I put some questions

to ascertain her capability to give

evidence and to know her views about

sanctity of oath. No doubt, she has

replied the questions put to her about

name, place where she resides, the

standard in which she is studying,

Quran and its importance, but replied

all these questions in cryptic manner,

that too after asking those questions

repeatedly. That itself would not make

her incompetent witness. Thus, it is

necessary to record her evidence after

administering oath.”

19. As per Section 118 of the Indian Evidence

Act All persons shall be competent to testify unless

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the Court considers that they are prevented from

understanding the questions put to them, or from

giving rational answers to those questions, by tender

years, extreme old age, disease, whether of body or

mind, or any other cause of the same kind. The

explanation under Section 118 of the Indian Evidence

Act makes it clear that even a lunatic is not

incompetent to testify, unless he is prevented by his

lunacy from understanding the questions put to him

and giving rational answers to them.

20. Though it is observed by the learned trial

Judge that the victim was having mild retardation, he

found in preliminary examination of the victim, that

she was capable to give the evidence. As seen from

the examination-in-chief, the victim has deposed

verbally as well as by making signs/gestures,

whenever necessary. From the manner in which the

victim deposed before the Court, as exhibited from

her examination-in-chief as well as the cross-

examination, it is quite clear that she was able to

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understand the questions put to her and give rational

answers thereto. She has effectively faced the cross-

examination. The learned Counsel for the appellant

did not raise any objection before the trial Court on

the ground that the victim was not able to answer or

understand the questions that were being put to her.

In the circumstances, in my view, it was not

necessary to resort to the provisions of sub-section

(3) of Section 26 of the POCSO Act for recording the

evidence of the victim.

OCCULAR EVIDENCE

21. The victim deposes that after purchasing the

washer from the shop she was going back to her house.

At that time, the appellant approached her, took her

kiss and pressed her chest. Thereafter, he removed

her knicker and that of himself and committed sexual

intercourse with her. She used a Marathi word ” केल”

for the act of sexual intercourse. On hearing her

shouts, her mother came and took her to home. She

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informed her mother about the aforesaid act committed

by the appellant with her. The victim could not give

the exact date, day and time of proceeding to the

grocery shop for purchasing the washer. She denied

the suggestions put to her by the learned Counsel for

the appellant in her cross-examination. Considering

the disability suffered by the victim and her age, it

was not expected of her to give all the details about

the date, day and time as well as the description of

the clothes of the appellant and that of herself. She

denied that she was tutored by the informant to speak

against the appellant. The evidence of the informant

appears to be quite natural. She would not have

thought of making any false allegations against the

appellant had he not been involved in the incident in

question.

22. The informant specifically states that the

victim had gone to the shop of Balasaheb Kale (DW 1)

for purchasing washer of stove. Since the victim did

not come back home for a considerable time, she went

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to the shop of Balasaheb Kale (DW 1) to inquire about

the victim. The shop was closed. Balasaheb Kale (DW1)

was standing near his shop. On inquiry, he informed

that the victim had left his shop just prior to 15

minutes. Then the informant started searching for the

victim. At that time, she heard shouts ‘Mummi Mummi’

from behind a Marathi school building. Then, the

victim also came towards her. She was weeping. On

being asked by her, the victim told that the

appellant took her to the backside of the school

building, removed her knicker, salwar, gagged her

mouth and committed rape on her. Thus, the evidence

of the informant about the conduct of the victim,

subsequent to the incident of rape, is quite relevant

and admissible in view of the illustration (j) under

Section 8 of the Indian Evidence Act. Furthermore,

the informant states that after the incident, she

went to the house of the appellant with the victim

and her nephew Amin Shaikh. On being asked, the

appellant tendered apology saying that he committed

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mistake. This reaction of the informant also

fortifies the version of the victim in respect of the

misdeeds of the appellant. Thus, the evidence of the

informant corroborates the version of the victim in

respect of occurrence of the incident in question.

MEDICAL EVIDENCE

23. Dr.Pushpa Narote (PW 3)(Exh.17) states that

on 26.06.2013 at about 10.05 p.m., she examined the

victim in the sub-District Hospital at Karjat and

found that her hymen was absent and there was

evidence of vaginal penetration. According to her,

she issued Certificate (Exh.18). She collected the

samples of vaginal swab, parineal swab, blood in

plain bulb, blood in citrate bulb, nails pubic hairs

etc. and sent them to the Chemical Analyst. After

perusal of the C.A. reports in respect of those

samples, she gave final opinion (Exh.20) that there

was evidence of vaginal penetration. It has come in

her cross-examination that the hymen may be absent

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because of various reasons i.e. cycling, swimming,

fast running, long jump, high jump, etc. and that

absence of hymen cannot be a decisive factor to

decide rape or sexual intercourse. She further states

that she gave opinion as to vaginal penetration and

that it may be due to sexual intercourse or by

climbing and swimming etc. According to the learned

Counsel for the appellant, the medical evidence does

not establish positively that sexual intercourse was

committed with the victim girl. This statement cannot

be accepted. There is absolutely no evidence to show

that on the day of the incident, the victim had

indulged in cycling, swimming, fast running, long

jumping, high jumping, etc. Therefore, alternative

possibilities of absence of hymen or opinion as to

vaginal penetration suggested on behalf of the

appellant, would not come in the way of the

prosecution to establish that the victim was

subjected to sexual intercourse only.

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24. The learned Counsel for the appellant tried

to challenge the evidence of Dr.Pushpa Narote (PW 3)

on the ground that while obtaining consent for

physical examination of the victim, thumb mark of the

informant has not been attested. It has come in the

evidence of Dr.Pushpa Narote (PW 3) that the victim

was produced in the Sub-District Hospital, Karjat by

A.P.I. Rakh (PW 7) with a requisition letter. She

further states that she examined the victim

clinically and gynecologically after obtaining the

written consent of her mother Intaj Shaikh. The

letter (Exh.45) is the office copy of the letter

received by Dr.Pushpa Narote (PW 3), whereby she was

requested to conduct the medical examination of the

victim. The said office copy bears her signature.

With this strong evidence on record, there is no room

to raise doubt about production of the victim before

Dr.Pushpa Narote (PW 3) for medical examination on

26.06.2013, as mentioned in the Certificate (Exh.18).

Only because the thumb mark of the informant in the

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consent form is not attested, the evidence of

Dr.Pushpa Narote (PW 3) cannot be seen with

suspicion. This medical evidence fully supports the

version of the victim that she was subjected to

penetrative sexual assault at the time of the

incident.

25. As per Section 29 of the POCSO Act, where a

person is prosecuted for committing or abetting or

attempting to commit any offence under sections 3, 5,

7 and section 9 of this Act, the Special Court shall

presume, that such person has committed or abetted or

attempted to commit the offence, as the case may be

unless the contrary is proved. It is true that the

appellant was under an obligation to disprove the

case of the prosecution beyond doubt. He was expected

to bring some evidence on record to make his evidence

probable and acceptable.

26. The appellant examined Balasaheb Kale (DW 1)

(Exh.48), the shop-owner, to whom the victim had gone

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29 cri.appeal.420-15

to purchase washer of stove on the day of the

incident. He simply states that his shop was closed

from 24.06.2013 to 26.06.2013 as he had gone to

Pandharpur for darshan of Lord Pandurang. It seems

that this is a got-up witness coming forward to

support the appellant. This witness must be keeping

accounts of his shop. The said accounts would have

disclosed, whether that shop was closed on the above-

mentioned dates. He has not produced those accounts.

His bare version that his shop was closed on those

dates does not inspire confidence. The informant

specifically states that this witness met her on the

day of the incident, when she went to his shop to

inquire about the victim and that he had told that

the victim had left just prior to 15 minutes from his

shop. There was no reason for the informant to state

false about her visit to the shop of this witness and

interaction made with him on the day of the incident.

27. Nana Bobade (DW 2) and Rohidas Salve (DW 3)

states that in the month of January, 2013, the

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30 cri.appeal.420-15

appellant had lent Rs.50,000/- to the informant as

hand-loan. There is absolutely no documentary

evidence in proof of this hand-loan translation. The

appellant was aged 19 years at the time of the

incident. Nana Bobade (DW 2) admits that the

appellant was not in any private service. There is

nothing on record to show that the appellant was

having sufficient income, from which he could have

lent Rs.50,000/- to the informant. The learned

Advocate for the appellant, on the instructions of

the appellant, cross-examined the informant, wherein

he suggested that she had taken Rs.10,000/- from him.

This discrepancy in the amount of hand-loan itself

falsifies the defence of the appellant that he had

lent Rs.50,000/- to the appellant and when he

demanded that amount, the informant lodged a false

report against him. This defence is not at all

plausible because the informant would not have

thought of lodging a false report against the

appellant at the cost of dignity of her daughter and

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31 cri.appeal.420-15

herself. The appellant, thus, has totally failed to

prove anything contrary to what has been alleged

against him by the victim and the informant. The

presumption under Section 29 of the POCSO Act, thus,

strengthens the case of the prosecution.

28. The garments of the victim and that of the

appellant were sent to the Chemical Analyst for

analysis and report. There were few semen stains on

the middle portion of underwear of the appellant,

however, no semen stains were found on the underwear

of the victim. The blood of the victim also was not

found on the underwear of the appellant. The C.A.

report would be of no help to the prosecution to

incriminate the appellant. The learned Counsel for

the appellant rightly relied on the judgment of

Ashok Premaji Nirbhawane (supra), wherein it is

observed that the finding of semen stains on the

clothes of the accused, by itself, would not

incriminate him.

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32 cri.appeal.420-15

29. Considering the evidence of the victim and

the informant supported by the medical evidence, in

my view, the absence of semen stains on the

undergarments of the victim and the appellant, by

themselves, would not be helpful to the appellant to

disprove the case of the prosecution. The learned

Counsel for the appellant cited the judgment in the

case of State of Maharashtra Vs. Dadarao s/o. Bapurao

Jivtode and ors. (supra), wherein the C.A. report

disclosed no semen stains on the garments and vaginal

swab of the victim and also on the garments of the

accused. It was an additional circumstance found by

this Court while upholding the judgment of acquittal.

In that case, the incident took place at night when,

admittedly, there was no electricity supply. The

identity of the miscreants could not be proved.

Therefore, the accused were acquitted. In the present

case, identity of the appellant is not in question.

Therefore, the above-cited judgment would be of no

help to the appellant.

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33 cri.appeal.420-15

DELAY IN LODGING THE REPORT

30. It is true that the FIR (Exh.14) has been

lodged on 26.06.2013 at about 10.00 p.m. i.e. after

about one day of the incident. There is no dispute

that the husband of the informant is no more. After

the incident, she did not go to the police station

immediately since it was a night time. She states

that on the next day at about 11.00 a.m., she went to

village Mirajgaon and then, to Karjat Police Station.

It is quite natural on her part to inform her

relatives and seek their advise as to what should be

done in respect of the incident. It is a common

knowledge that in respect of such incidents,

generally, the reports are lodged with reluctance,

because lodging of the report may have adverse effect

on the dignity of the family of the victim and that

of herself. In the circumstances, if the informant

takes some time in thinking over lodging of the

report, it cannot be said that it was an outcome or

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34 cri.appeal.420-15

afterthought or result of due deliberation. In the

circumstances, the delay in lodging the report would

not have any adverse effect on the case of the

prosecution.

31. The learned trial Judge rightly considered

the facts of the case as well as the evidence on

record and rightly held the appellant guilty of the

above-mentioned offence. The offence under Section

376(2)(i) of the I.P.C. is punishable with rigorous

imprisonment for a term, which shall not be less than

10 years and, but which may extend to imprisonment

for life, which shall mean imprisonment for the

remainder of that person’s natural life and shall

also be liable to fine. The offence under Section 3

punishable under Section 4 of the POCSO Act, shall be

punishable with imprisonment of either description

for a term, which shall not be less than seven years

but which may extend to imprisonment for life, and

shall also be liable to fine. Section 42 of the

POCSO Act reads as under :-

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35 cri.appeal.420-15

“42. Alternate punishment.- Where an

act or omission constitutes an offence

punishable under this Act and also

under Sections 166-A, 354-A, 354-B,

354-C, 354-D, 370, 370-A, 375, 376,

376-A, 376-C, 376-D, 376-E or Section

509 of the Indian Penal Code, 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 this Act or under the Indian

Penal Code as provides for punishment

which is greater in degree.”

32. The punishment for the offence punishable

under Section 376(2)(i) of the I.P.C. being greater,

was liable to be imposed against the appellant. The

learned trial Judge has rightly imposed the said

punishment on the appellant. The impugned judgment

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36 cri.appeal.420-15

and order are quite legal, proper and correct. They

do not call for any interference.

33. Hence, the order :-

The appeal is dismissed.

[SANGITRAO S. PATIL]
JUDGE
kbp

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