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Abhijeet @ Babalu Avinash Kadam vs The State Of Maharashtra And Anr on 19 November, 2018

212-APPEAL-239-2015-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.239 OF 2015

ABHIJEET @ BABALU AVINASH KADAM )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA ANR. )…RESPONDENTS

Mr.Ujwal Agandsurve, Advocate for the Appellant.

Mr.P.H.Gaikwad-Patil, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 19th NOVEMBER 2018

ORAL JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 19th December 2014 passed by the

learned Special Judge, Solapur, in Sessions Case No.218 of 2013,

thereby convicting the appellant/accused of the offence

punishable under Section 6 of the Protection of Children from

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Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act

for the sake of brevity) and sentenced him to suffer rigorous

imprisonment for 10 years apart from payment of fine of

Rs.20,000/- and in default, to undergo further rigorous

imprisonment for 6 months.

2 Facts leading to the prosecution of the

appellant/accused can be summarized thus :

(a) PW3 Laxmi who is the First Informant in the instant case

used to reside at Damani Nagar, Solapur. PW1 is the victim

female child, who happens to be daughter of PW3 Laxmi. At

the time of alleged offence, the PW1/victim female child

was eight years old. She was taking education in 3rd

Standard. The appellant/accused used to reside in the

neighbourhood of the First Informant/PW3 Laxmi. The

alleged incident took place on 26 th March 2013. It was the

day of festival of Holi. At about 4.00 p.m. of that day, the

appellant/accused allured the PW1/victim female child by

offering some eatables and took her at the secluded place

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near his house. She was taken by the backside of a four

wheeler vehicle. The appellant/accused then committed

penetrative sexual assault on her.

(b) It is case of the prosecution that in the evening of that day,

the PW1/victim female child did not take food. In that night,

she woke up with a sense for urination. However, she found

it difficult to urinate. In the morning hours the PW1/victim

female child again suffered trouble while urinating. Her

mother PW3 Laxmi then found private part of the PW1/

victim female child in swollen condition. The PW1/victim

female child was then taken to the hospital of Dr.Urmila

Jagtap. PW3 Laxmi was then told by the hospital authorities

to take the PW1/victim female child to the Civil Hospital,

Solapur. Thereafter, PW3 Laxmi made enquiry from her

daughter by taking her into confidence. Thereupon, the

PW1/victim female child divulged the details of penetrative

sexual assault on her by the appellant/accused. That is how,

PW3 Laxmi lodged report Exhibit 23 of the incident to Police

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Station Foujdar Chawadi, Solapur, on 27th March 2013.

Accordingly, Crime No.70 of 2013 came to be registered

against the appellant/accused.

(c) The PW1/victim female child was sent for medical

examination to the Civil Hospital, Solapur, where she was

medically examined by PW5 Dr.Varsha Patil. During the

course of investigation clothes of the PW1/victim female

child as well as that of the appellant/accused came to be

seized by preparing Panchnamas Exhibits 34 and 35

respectively. The spot came to be inspected and Panchnama

Exhibit 32 came to be recorded. Seized articles were sent

for chemical analysis and on completion of routine

investigation, the appellant/accused came to be charge-

sheeted.

(d) The learned Special Judge, Solapur, then framed the Charge

for the offence punishable under Section 376(2)(f) of the

Indian Penal Code as well as under Section 6 of the POCSO

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Act against the appellant/accused. He pleaded not guilty

and claimed trial.

(e) 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. Her neighbour

Shivaji Bhosale is examined as PW2. However, this witness

failed to support the prosecution case. First Informant

Laxmi who happens to be mother of the PW1/victim female

child is examined as PW3. The report lodged by her is at

Exhibit 23. Sarojani Patil, Police Sub-Inspector, is examined

as PW4. Medical Officer, Civil Hospital, Solapur, Dr.Varsha

Patil is examined as PW5. Exhibits 27 and 29 are the

documents of medical examination of the PW1/victim

female child. Investigating Officer Abdul Karim Korbu,

Police Sub-Inspector is examined as PW6.

(f) Defence of the appellant/accused was that of total denial.

According to the defence, the prosecuting party was

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interested in removing him from the locality with the help of

a Corporator named Sunil Khatake, and therefore, he is

falsely implicated in the crime in question. After hearing the

parties, by the impugned judgment and order, the learned

trial court was pleased to convict the appellant/accused of

the offence punishable under Section 6 of the POCSO Act.

Accordingly, he was sentenced as indicated in the opening

paragraph of this judgment.

3 I have heard the learned counsel appearing for the

appellant/accused. By taking me through the evidence of

prosecution witnesses and particularly through the evidence of the

Investigating Officer PW6 Abdul Karim Korbu, it was argued that

the PW1/victim female child was initially taken to Dr.Urmila

Jagtap. However, this witness is not examined by the prosecution.

It is further argued that evidence of the Investigating Officer

shows that Dr.Urmila Jagtap was unable to give opinion regarding

sexual assault on the PW1/victim female child. It is further

argued that the PW1/victim female child was also taken to

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Dr.Halsurkar. However, this Medical Officer is also not examined

by the prosecution. Non-examination of the doctors who had

firstly attended the PW1/victim female child casts a shadow of

doubt on the case of the prosecution. The learned counsel for the

appellant/accused further argued that the appellant/accused at

the most could have been convicted for the offence punishable

under Section 376 of the Indian Penal Code and adequate

sentence could have been imposed on him instead of convicting

him under the stringent provisions of the POCSO Act.

4 The learned APP supported the impugned judgment

and order of conviction and the resultant sentence.

5 I have carefully considered the submissions so

advanced and also perused the record and proceedings including

oral as well as documentary evidence adduced by the prosecution.

As per provisions of Section 2(d) of the POCSO Act any person

below the age of 18 years is a child. The term “penetrative sexual

assault” is also defined by Section 3 of the said Act. It reads thus :

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“3. Penetrative sexual assault –

A person is said to commit “penetrative sexual
assault” if-

(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes
the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of
the body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do
so with him or any other person; or

(c) he manipulates any part of the body of the child
so as to cause penetration into the vagina, urethra,
anus or any part of body of the child or makes the
child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to
such person or any other person.”

Perusal of the definition of penetrative sexual assault, as such,

makes it clear that even penetration of penis to a slightest extent

into the vagina of a child is sufficient to make out the offence of

penetrative sexual assault. Similarly, as provided by Section 5 of

the said Act, commission of penetrative sexual assault on a child

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below 12 years of age amounts to the offence of aggravated

penetrative sexual assault which is made punishable under Section

6 of the said Act. Minimum sentence prescribed for this offence is

that of 10 years and it can extend up to imprisonment for life.

Section 42 of the POCSO Act provides for the alternate

punishment and if the act constitutes the offence punishable

under Section 376 of the Indian Penal Code, so also the offence

punishable under the POCSO Act, then the court is required to

impose punishment which is greater in degree on the accused

guilty of the offence punishable under the POCSO Act as well as

under the relevant provisions of the Indian Penal Code. Keeping in

mind these aspects, let us consider the case in hand.

6 The PW1/minor female child is the victim of the

offence alleged against the appellant/accused. Her deposition

reflects that at the time of entering in the witness box, she was 9

years of age. The incident took place on 26 th March 2013 and this

minor female child entered in the witness box on 18 th October

2014. Her evidence regarding her age is not even challenged by

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the defence in the cross-examination. As per version of the

PW1/victim female child, the appellant/accused offered her some

eatable and took her behind a white coloured four wheeler vehicle

where she was denuded by the appellant/accused. Then, as

deposed by the PW1/victim female child, the appellant/accused

laid on her person. This child witness did not disclose the incident

to her friends nor made any hue and cry about the incident.

However, in chief-examination itself she had disclosed that the

appellant/accused had threatened her by saying that if she

disclosed the incident to anybody, he will finish her entire family.

She denied the suggestion that she had deposed at the instance of

her mother.

7 So far as age of the PW1/victim female child is

concerned, her mother PW3 Laxmi categorically deposed that at

the time of the incident, the PW1/victim female child was just 8

years old. This evidence is also not challenged in cross-

examination. As such, I see no reason to disbelieve the evidence

regarding age of the PW1/victim female child adduced by the

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prosecution. It is, thus, clear that at the time of the incident in

question, the PW1/victim female child was about 8 years of age.

Considering her tender age, it is explicit that she was not in a

position to narrate in detail the act committed by the

appellant/accused on her by taking her to the secluded place.

Evidence regarding the penetrative sexual assault coming from the

mouth of the prosecutrix will have to be appreciated by keeping in

mind tender age of the victim child. Perusal of cross-examination

of the PW1/victim female child does not reflect that she is a

tutored witness. Her cross-examination does not reflect any

reason for false implication of the appellant/accused in the crime

in question.

8 It is well settled that while deciding the cases of sexual

assault on minor children, the court is bound to show a great

responsibility and such cases are required to be dealt with utmost

sensitivity. The court is required to keep in mind broader

probabilities of the prosecution case. Minor discrepancies and

contradictions which are not fatal in nature cannot be used to

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jettison otherwise reliable prosecution case. Similarly, if evidence

of the victim of the sexual assault is found reliable and

trustworthy, then there is no need to corroborate the same with

other evidence. However, in the case in hand, version of the

PW1/victim female child is gaining corroboration from evidence

of PW5 Dr.Varsha Patil, Medical Officer, working in Civil Hospital,

Solapur, who examined her on the very next day i.e. on 27 th

March 2013. Evidence of PW5 Dr.Varsha Patil which is

corroborated by the contemporaneous medico legal documents

goes to show that on clinical examination of the PW1/victim

female child, this witness had found severe pain and inflammation

at vagina of the PW1/victim female child. This witness deposed

that skin all over the pubis, labia majora, labia minora, fourchette

and around anal canal of the PW1/victim female child was found

inflammed and the PW1/victim female child was suffering severe

pain on even touch to that part of her body. Thus, this finding,

upon examination of private part of the PW1/victim female child

indicates penetration, which is sufficient to make out the offence

punishable under Section 6 of the POCSO Act. In cross-

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examination, PW5 Dr.Varsha Patil had rightly denied the

suggestion that such type of injuries can be suffered by a person

by a fall on rough surface. Thus, medical evidence also supports

the version of the PW1/victim female child regarding penetrative

sexual assault on her by the appellant/accused.

9 PW3 Laxmi – mother of the PW1/victim female child

has narrated the narrations of the PW1/victim female child to her

in the morning hours of the next day of the incident in question.

PW3 Laxmi deposed that after taking the PW1/victim female child

to the hospital of Dr.Smt.Jagtap, she took the PW1/victim female

child in confidence and enquired from her as to what happened.

Thereupon, the PW1/victim female child disclosed her that the

appellant/accused took her behind the car and committed

penetrative sexual assault on her. These recitals of the PW1/

victim female child made to her mother are admissible under

Section 157 of the Evidence Act. Therefore, evidence of the

PW1/victim female child is gaining corroboration from the

evidence of PW3 Laxmi.

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10 It is seen that the mother of the PW1/victim female

child had taken her initially to a private hospital of Dr.Urmila

Jagtap. However, Dr.Urmila Jagtap had referred the PW1/victim

female child to the Civil Hospital. The prosecution has not

examined Dr.Urmila Jagtap though Dr.Urmila Jagtap was cited as

a prosecution witness. Similarly, it is seen that the PW1/victim

female child was also taken to Dr.Halsurkar, who is also not

examined by the prosecution. However, non-examination of these

Medical Officers would have been of some consequence, if the

defence could have shown that available evidence is lacunic or

insufficient. Such is not the case in hand. Therefore, non-

examination of these two witnesses by the prosecution is of no

consequence.

11 As the prosecution has established penetrative sexual

assault on the PW1/victim female child, who at the relevant time

was 8 years of age, it cannot be said that the learned Special

Judge erred in convicting the appellant/accused of the offence

punishable under Section 6 of the POCSO Act. Minimum sentence

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prescribed for this offence is that of 10 years. Therefore, I find no

merit in submission of the learned counsel for the

appellant/accused that as the appellant/accused has already

undergone 5 years of jail sentence, he deserves leniency.

12 In the result, the appeal is devoid of merit, and hence

the order :

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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