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. 172avk 9/15
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203-APPEAL-156-2015-J.docattitude 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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203-APPEAL-156-2015-J.docexamination, 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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203-APPEAL-156-2015-J.doc12 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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