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Aarif Mahamadkhan Maldar vs The State Of Maharashtra on 3 January, 2019

203-APPEAL-156-2015-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.156 OF 2015

AARIF MAHAMADKHAN MALDAR )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Ganesh Bhujbal, Advocate for the Appellant.
Mr.P.H.Gaikwad-Patil, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 3rd JANUARY 2019

ORAL JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 29 th November 2014 passed by the

learned Additional Sessions Judge and Designated court under

Protection of Children from Sexual Offences Act (hereinafter

referred to as POCSO Act for the sake of brevity), Ratnagiri, in

Sessions Case No.16 of 2013, thereby convicting the

appellant/accused of offences punishable under Sections 10 read

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with 9(i) of the POCSO Act as well as under Section 323 of the

Indian Penal Code. He was, however, acquitted of offences

punishable under Sections 376, 504 and 506 of the Indian Penal

Code as well as of offences punishable under Sections 5(h) read

with 6 of the POCSO Act. For offences punishable under Sections

10 read with 9(i) of the POCSO Act, the appellant/accused is

sentenced to suffer rigorous imprisonment for 5 years apart from

imposition of fine of Rs.5,000/- and default sentence of simple

imprisonment for 6 months. For the offence punishable under

Section 323 of the Indian Penal Code, he is sentenced to suffer

simple imprisonment for 6 months apart from direction to pay fine

of Rs.500/- and in default, to undergo further simple

imprisonment for 1 month.

2 Facts in nutshell, leading to the prosecution of the

appellant/accused, can be summarized thus :

(a) First Informant is the victim female child. She was residing

at Village Talavade in Lanja Taluka of Ratnagiri District.

The appellant/accused was also residing in the same village.

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He was insisting the victim female child/PW1 to marry him.

The incident in question allegedly took place on 1 st February

2013. On that day, at about 10.00 a.m., the victim female

child/PW1 was proceeding to attend Jagannath Pednekar

Middle School where she was taking education in 10 th

Standard. On the way to school, the appellant/accused

accosted her. He took her in the adjoining nala and pressed

her mouth, after showing a knife to her. The victim female

child/PW1 became unconscious. When she regained

consciousness after half an hour, she saw the

appellant/accused sitting near her legs. The victim female

child/PW1 found herself in half nude condition. Her salwar

as well as knicker was found to be removed and her top was

found lifted upward. She was in her menses and she felt

pain in her private part. She sensed that the

appellant/accused had committed forcible sexual

intercourse with her. He threatened her that if the incident

is disclosed to anybody else, he would kill her. The victim

female child/PW1 then went to her house after wearing

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clothes. For the whole night, she suffered pain as well as

bleeding. She, therefore, disclosed the incident to her

maternal aunt and then went to Police Station Lanja and

lodged report Exhibit 21, which ultimately resulted in

registration of Crime No.6 of 2013 for offences punishable

under Sections 376, 323, 504 and 506 of the Indian Penal

Code.

(b) Routine investigation followed. During the course of

investigation, the victim female child/PW1 was referred to

the Civil Hospital, Ratnagiri, for medical examination. The

spot was inspected and panchnama was prepared. Clothes

of the victim female child/PW1 came to be seized. Clothes

of the appellant/accused were also seized. On the basis of

voluntary disclosure statement of the appellant/accused, a

knife came to be seized. The appellant/accused was got

medically examined and sample of his blood was also

collected. On completion of routine investigation, the

appellant/accused came to be charge-sheeted. The learned

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trial court framed Charge for offences punishable under

Sections 376, 323, 504 and 506 of the Indian Penal Code as

well as under Section 5(h) read with Section 6 of the

POCSO Act. The appellant/accused pleaded not guilty and

claimed trial.

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

the prosecution has examined in all six witnesses. The

victim female child is examined as PW1. The First

Information Report (FIR) lodged by her is at Exhibit 21.

Her aunt Khairun Maldar is examined as PW2 . Mohamad

Ali – panch witness to the voluntary disclosure statement of

the appellant/accused is examined as PW3. Exhibit 30 is the

voluntary disclosure statement whereas Exhibit 31 is the

resultant Recovery Panchnama of the knife. Investigating

Officer Dipika Jounjal, Police Sub-Inspector with Police

Station Lanja is examined as PW4. Ramchandra Jadhav,

Head Master of Jagannath Pednekar Madhyamik VVidyalay

at Talavade is examined as PW5. Exhibit 71 is the copy of

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the General Register of the school whereas Exhibit 8 if the

bonafide certificate of the victim female child/PW1.

Shashikant Kambale, Extension Officer with Panchayat

Samiti Lanja is examined as PW6. Exhibit 77 is the extract

of the Birth Register whereas Exhibit 81 is the Birth

Certificate of the victim female child/PW1 issued under

Sections 12 and 17 of the Registration of Births and Deaths

Act, 1969. The defence of the appellant/accused was that of

total denial. However, he did not enter in the defence.

(d) After hearing the parties, by the impugned judgment and

order, the learned trial court came to the conclusion that the

victim of the crime in question is a child aged about 17 years

and the prosecution has failed to establish penetrative

sexual assault on her because the medical certificate does

not reflect any injury to her private part and being a virgin

girl, such injuries are must in order to establish the case of

penetrative sexual assault. The learned trial court

concluded that the prosecution has, however, proved the

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offence of aggravated sexual assault on the victim female

child/PW1 by the appellant/accused. Accordingly, he came

to be convicted and sentenced, as indicated in the opening

paragraph of this judgment.

3 I have heard Mr.Ganesh Bhujbal, the learned advocate

appointed to represent the appellant/accused at the costs of the

State. He argued that it was incumbent on the part of the

prosecution to examine the Medical Officer in order to prove the

fact that there was assault on the victim female child/PW1 and

that sexual assault was caused by causing either grievous hurt or

bodily harm and injury to the victim female child/PW1. Such

evidence is absent. The learned advocate further argued that

evidence of the victim female child/PW1 is artificial and she has

not deposed anything to make out any offence against the

appellant/accused. Her evidence shows that she was unconscious

and therefore, it cannot be said that the prosecution has proved

the offence of aggravated sexual assault against the

appellant/accused.

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4 As against this, the learned APP supported the

impugned judgment and order of conviction and resultant

sentence.

5 I have considered the rival submissions and also

perused the record and proceedings including deposition of

prosecution witnesses as well as documentary evidence adduced

by the prosecution.

6 Considering the nature of the Charge, fate of the

prosecution case, to a large extent, hinges on the testimony of the

victim of the crime in question. By now, it is well settled that for

making out the offence of penetrative sexual assault or rape, it is

not necessary that the victim should suffer any external or internal

injury. Valuable reference to this proposition can be had from the

judgment of the Honourable Apex Court in the matter of B.C.Deva

vs. State of Karnataka1 wherein it is observed as under :

“18 The plea that no marks of injuries were
found either on the person of the accused or the

1 (2007) 12 SCC 122

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person of the prosecutrix, does not lead to any
inference that the accused has not committed
forcible sexual intercourse on the prosecutrix.
Though the report of the gynaecologist pertaining to
the medical examination of the prosecutrix does not
disclose any evidence of sexual intercourse, yet even
in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix,
which is found to be cogent, reliable, convincing and
trustworthy has to be accepted.”

7 Similarly, it is also settled that if evidence of the victim

of the sexual offence is found trustworthy and reliable, then the

court is not required to seek any corroboration to such evidence.

In the matter of State of Punjab vs. Gurmeet Singh2 the

Honourable Apex Court took a view that the Courts dealing with

the rape cases shoulder a greater responsibility and they must deal

with such cases with utmost sincerity. Relevant paragraph of the

said judgment is reproduced as under :

“….It is an irony that while we are celebrating
women’s rights in all spheres, we show little or no
concern for her honour. It is a sad reflection on the
2 1996 Cri.L.J. 172

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attitude of indifference of the society towards the
violation of human dignity of the victims of sex
crimes. We must remember that a rapist not only
violates the victim’s privacy and personal integrity,
but inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a
physical assault – it is often destructive of the whole
personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the
very soul of the helpless female. The Courts,
therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The
Courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw
out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration
of her statement in material particulars. If for some
reason the Court finds it difficult to place implicit
reliance on her testimony, it may look for evidence
which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice.

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The testimony of the prosecutrix must be

appreciated in the background of the entire case and
the trial court must be alive to its responsibility and
be sensitive while dealing with cases involving
sexual molestations.”

8 At the outset, let us examine whether the prosecution

has established that the victim female child/PW1, at the relevant

time, was a child as defined by Section 2(d) of the POCSO Act. A

person below age of 18 years is termed as a “child”. The victim

female child/PW1 has categorically deposed about her date of

birth as 16th July 1995. This evidence has virtually remained

unchallenged. In addition to this evidence, the prosecution has

examined PW6 Shashikant Kambale, Extension Officer, working

with Panchayat Samiti Lanja. He appears to be the Sub-Registrar

under the provisions of Registration of Births and Deaths Act,

1969. Evidence of this witness shows that the recorded date of

birth of the victim female child/PW1 in the Birth Register

maintained under the Registration of Births and Deaths Act, 1969,

is 16th July 1995. This witness has proved extract of Birth Register

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Exhibit 77 disclosing this date of birth of the victim female

child/PW1 and has also proved the Birth Certificate Exhibit 81

issued by the Sub-Registrar under the provisions of the

Registration of Births and Deaths Act, 1969. This Birth Certificate

is also reflecting the date of birth of the victim female child/PW1

as 16th July 1995. The incident in question allegedly took place on

1st February 2013. As such, on the date of the incident, the victim

female child/PW1 was certainly below 18 years of age.

9 Now let us examine what is deposed by the victim

female child/PW1 in respect of the incident in question. Evidence

of the victim female child/PW1 shows that the appellant/accused

was having one sided love on her and he was insisting her to

marry him. As per version of the victim female child/PW1, on 1 st

February 2013 when she was proceeding to attend her school at

about 10.15 a.m., the appellant/accused accosted her at a place

locally known as ‘Piracha Mala’ and dragged her to a stream-let.

He laid her on ground, gagged her mouth and showed a knife to

her. The victim female child/PW1 further deposed that then she

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became unconscious and when she regained consciousness after

half an hour, she found the appellant/accused sitting near her

legs. Her odni was found to be removed from her person. Her

knicker was found to be removed. The top of her dress was found

to be pulled upward. She was in her menses and her sanitary

napkin was also found to be removed. With this condition, she

inferred that the appellant/accused might have committed sexual

intercourse with her. She, then, returned to her house after

receiving threats from the appellant/accused. As per version of

the victim female child/PW1, she then tried to sleep but she could

not sleep as she was suffering from bodily pain. As per her

version, because of the incident, she had sustained injuries on her

person. She, therefore, disclosed the incident to her maternal

aunt and then went to Police Station Lanja and lodged the FIR

Exhibit 21.

10 Cross-examination of the victim female child/PW1

could not bring on record anything which could have doubted her

version in respect of the incident. On the contrary, from her cross-

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examination, it is brought on record that the victim female

child/PW1 was unconscious for a period of about thirty minutes.

Similarly, it is brought on record that she was on the spot of the

incident up to 12 noon.

11 Evidence of the victim female child/PW1 is gaining

corroboration from the undisputed medical certificate which is at

Exhibit 9. The victim female child/PW1 was medically examined

by the Medical Officer of the Civil Hospital on the very next day

i.e. on 2nd February 2013. The Medical Officer found abrasions

over left elbow joint, right knee, right elbow joint and left side of

cheek of the victim female child/PW1. This medical evidence

coupled with the version of the victim female child/PW1 to the

effect that the appellant/accused pressed her mouth and dragged

her near the stream-let clinches the issue. Version of the victim

female child/PW1 that after regaining consciousness, she found

herself in half nude condition makes out the case of sexual assault

on her by inflicting injuries to her.

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12 In this view of the matter, no case for interference in

the impugned judgment and order of conviction and the resultant

sentence is made out. Therefore, the order :

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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