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Uman @ Kumansingh Chotelal … vs The State Of Maharashtra Thr. … on 5 April, 2018

1 apeal357.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.357 OF 2017

Uman @ Kumansingh Chotelal
Jabekar (Jawarkar),
C-4953 (Convicted Offender)
Aged about 22 years,
Occupation – Labour,
R/o Berda Balda, Tahsil – Dharni,
District – Amravati. …. APPELLANT

VERSUS

The State of Maharashtra,
through P.S.O. Dharni, Police Station
Dharni, District – Amravati. …. RESPONDENT

__

Shri R.D. Hazare, Counsel for the appellant,
Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 5
APRIL, 2018.

th

ORAL JUDGMENT :

The appellant is challenging the judgment and order dated

25-11-2016 rendered by the learned Additional Sessions Judge,

Achalpur in Special (P) Case 123/2015, by and under which the

appellant-accused is convicted for offence punishable under Section

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366-A of the Indian Penal Code (“IPC” for short) and is sentenced to

suffer rigorous imprisonment for five years and to payment of fine of

Rs.1,000/- and is further convicted for offence punishable under

Section 343 of the IPC and is sentenced to suffer rigorous

imprisonment for one year and to payment of fine of Rs.500/- and is

further convicted for offence punishable under Section 376(n) of the

IPC and is sentenced to suffer rigorous imprisonment for ten years and

to payment of fine of Rs.2,000/- and is further convicted for offence

punishable under Section 6 of the Protection of Children from Sexual

Offences Act (“POCSO Act” for short) and is sentenced to suffer

rigorous imprisonment for ten years and to payment of fine of

Rs.2,000/-. The accused is acquitted of offence punishable under

Section 363-A and Section 506 of the IPC.

2. The genesis of the prosecution lies in report lodged by the

prosecutrix on 25-8-2015 at Dharni Police Station, alleging that the

accused kidnapped her, confined her for fifteen days at his house and

subjected her to forcible sexual intercourse every day of the

confinement. On the basis of the said report (Exhibit 7) and printed

first information report (Exhibit 8) offence punishable under Sections

363, 366-A, 343, 376(n), 506 of the IPC and Section 6 of the POCSO

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Act was registered against the accused. The investigation was

conducted by P.W.6 API Prity Tathe and charge-sheet was submitted to

the Special Court.

The learned Special Judge framed charge (Exhibit 3). The

accused abjured guilt and claimed to be tried. The defence is of total

denial.

3. Shri R.D. Hazare submits that the prosecution has not

established that the prosecutrix was aged less than eighteen years and

the provisions of the POCSO Act are not attracted. The next

submission is that the prosecution case is inherently improbable and

unbelievable and the evidence of the prosecutrix (P.W.1) is falsified by

the medical evidence. Per contra, Shri N.B. Jawade, learned Additional

Public Prosecutor would submit that the judgment and order impugned

is unexceptionable.

4. Shri R.D. Hazare is justified in the submission that the

prosecution has not proved that the prosecutrix was aged less than

eighteen years as on the day of the incident. P.W.1 prosecutrix has not

disclosed her date of birth and in the cross-examination, she admits

that she is not aware of her date of birth. P.W.3 Ramsu Jawalkar

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working as Assistant Teacher in Belda Barda School is examined to

prove (Dakhal Kharij) admission register which records the date of

birth of the prosecutrix as 25-4-1999. In the cross-examination, it is

elicited that the prosecutrix was admitted by the Headmaster Shri

Ghorpade and the entry of the date of birth is taken on the basis of

Anganwadi Certificate. P.W.3 admits that the school is not in

possession of the birth certificate of the prosecutrix nor can the witness

say who submitted the documents at the time of the admission. P.W.3

admits that he did not maintain the Dakhal Kharij Register at the

relevant time. Concededly, the prosecutrix is not subjected to

radiological/ossification test to determine the age. The school record

does not take the case of the prosecution any further since the primary

document or the source of information is not proved. The first

submission of Shri Hazare that the prosecution failed to prove the age

of the prosecutrix must be accepted.

5. The submission that the prosecution case is of doubtful

veracity is equally well merited. The version of the prosecutrix is that

she was abducted and forcibly confined in the house of the accused for

fifteen days and that she was subjected to forcible sexual intercourse

every day. She then states that her grandmother brought her home on

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5 apeal357.17

the day of the Jiroti Festival and since the accused and his parents used

to threaten the prosecutrix, her mother and grandmother, she lodged

the police report. The prosecutrix has also deposed that prior to the

abduction and illegal confinement she was harassed and threatened by

the accused as and when she used to go to the river for washing

clothes. The prosecution has not examined either the mother or the

grandmother of the prosecutrix to unfold the narrative. The testimony

of the prosecutrix is inherently improbable and not at all confidence

inspiring. The report is lodged on 25-8-2015, and the recital in the oral

report is that the prosecutrix was abducted and confined in the house

of the accused fifteen days prior to 16-8-2015. The report is obviously

lodged belatedly and no endeavour is made by the prosecution to

explain the delay.

6. The evidence of the prosecutrix is not corroborated by the

medical evidence. P.W.4 Dr. Kanchan Jawanjal examined prosecutrix

on 25-8-2015. The hymen was intact. The prosecutrix was subjected

to USG vagina test and UTP test. No injury on the genitalia or the

person of the prosecutrix was detected. P.W.4 has proved the medical

certificate (Exhibit 18). The learned Sessions Judge has referred to

Lyon’s Medical Jurisprudence and Toxicology, in paragraph 19 of the

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6 apeal357.17

judgment and order impugned. The learned Sessions Judge has

referred to and rely upon the following passage in the said treaties :

The anatomy of hymen varies from individual to individual.

It may be thick, thin rigid or elastic and varies in shape but is

usually circular or cresentic in virgins. Rupture of hymen

usually occurs on first penetration, but it is not inevitable.

Hymen may not rupture if the membrane is thin and elastic

or think of fleshy. In cases of sexual assault on young

children hymen usually does not rupture due to deeper

placement. Cases are on record where the married women

having regular intercourse, have intact hymen. Contrary to

this, hymen may be ruptured due to trauma, surgical

procedures foreign body insertion, chronic irritation due to

lack of cleanliness and worm infestation and occasionally by

the regular use of tampons.

7. It must be noted, that the prosecution made no effort to

elicit from P.W.4 the nature of the anatomy of hymen and to bring on

record that the membrane of the hymen of the prosecutrix is thin and

elastic or thick of fleshy. In the absence of medical evidence on record

that despite the forcible sexual intercourse every day for fifteen days

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7 apeal357.17

the hymen of the prosecutrix may not have ruptured, it must be held

that the evidence of the prosecutrix is not corroborated by medical

evidence.

8. This Court is alive to the settled position of law that the

conviction can rest on the sole uncorroborated testimony of the

prosecutrix. However, the rider is that the testimony must be of

sterling quality, implicitly reliable and confidence inspiring. In the

present case, I am of the opinion that the version of the prosecutrix is

of doubtful veracity and not at all confidence inspiring. Relatives who

were material witnesses are not examined. The version of the

prosecutrix that she was abducted and confined in the house of the

accused, in the same village for fifteen days and was subjected to

forcible sexual intercourse every day is inherently improbable and

indeed incredible. If there were to be a single grain of truth in the

version of the prosecutrix, immediately after she was abducted, her

mother or grandmother would have lodged a police report. That she

was confined in the house of the accused in the same village for fifteen

days, that she did not make any effort to rescue herself or leave the

company of the accused and that her family members took no steps

against the accused renders the version of the prosecutrix unbelievable.

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8 apeal357.17

9. The judgment and order impugned is manifestly erroneous

and unsustainable in law. The judgment and order impugned is set

aside and the accused is acquitted of offence punishable under Sections

366-A, 343, 376(n) of the IPC and Section 6 of the POCSO Act.

10. The accused is in jail. He be released from custody

forthwith unless his custody is required in any other offence.

JUDGE
adgokar

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