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Akshay S/O Dharampal Warghat (In … vs State Of Maharashtra, Thr. P.S.O. … on 15 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.273 OF 2016

Akshay s/o Dharampal Warghat (In Jail),
Aged about 20 years,
R/o Siddharth Nagar, Navasari,
Tah. Dist. Amravati. ……. APPELLANT

…V E R S U S…

State of Maharashtra through
Police Station Officer,
Gadge Nagar, Dist. Amravati. ……. RESPONDENT
——————————————————————————————-
Shri N.H. Samudre, Advocate for Appellant.
Shri V.P. Maldhure, APP for Respondent-State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: th
15 FEBRUARY, 2018.

ORAL JUDGMENT

1] Challenge is to the judgment and order dated

23.12.2015 rendered by the learned Additional Sessions Judge,

Amravati in Sessions Trial 251/2014, by and under which, the

appellant-accused is convicted for offence punishable under

Section 4 of the Protection of Children from Sexual Offences Act,

2012 (“POCSO” for short) and is sentenced to suffer rigorous

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imprisonment for ten years and to payment of fine of Rs.20,000/-.

2] Heard Shri N.H. Samudre, the learned counsel for the

appellant-accused and Shri V.P. Maldhure, the learned Additional

Public Prosecutor for the respondent-State.

3] The prosecution case as is unfolded in the course of

the trial is thus:

The child victim, who was then aged ten years is

residing with her parents, grand-mother and two siblings at

Siddharth Nagar, Navasari, Amravati. The accused is a neighbour.

The incident occurred on 19.05.2014. The parents of the child

victim had gone out of the village to attend a marriage with their

son. The child victim, her younger sister and grand-mother were

present in the house. The accused visited the house of the child

victim at 02:30 p.m. and after talking with the child victim and

her grand-mother left the house. The younger sister of the child

victim was playing out of the house and her grand-mother was

have a nap. The accused entered the house of the victim, lifted her

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and made her lie on diwan, removed her knicker and inserted his

penis in the vagina and anus. The younger sister of the child

victim saw the incident, raised an alarm, the grand-mother of the

child victim woke up and the accused fled from the house.

The parents of the victim returned at 06:30 p.m. to whom the

grand-mother disclosed the incident. The mother of the child

victim Sau. Bhagyashree Sirsat (P.W.1) inquired with the child

victim who narrated the incident and also disclosed that she was

experiencing pain in the anus. P.W.1 noticed that the anus was

reddish and appeared swollen. P.W.1 Bhagyashree along with her

husband and the child victim lodged the oral report (Exh.24) at

Police Station Gadge Nagar, Amravati.

4] On the basis of the oral report and printed F.I.R.

(Exh.25) offence punishable under Section 377 of the Indian

Penal Code (“IPC” for short) and Section 4 of the POCSO Act was

registered against the accused. The child victim was sent for

medical examination. The Medical Officer noticed severe anal

spasms and tenderness. The child victim was in severe pain due to

the anal spasms and internal examination without administering

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anesthesia was not possible. The child victim was admitted in the

hospital and was further examined on 22.05.2014. The Medical

Officer detected linear abrasion on the anal region. The Medical

Officer concluded that some object must have been forcible

inserted in the anus. The accused was arrested on 22.05.2014 and

medically examined. The clothes of the accused were seized, the

statement of the victim was recorded in the hospital on

27.05.2014. Statements of other witnesses were recorded.

The MLC report was obtained, the statements of the victim and

P.W.1 were recorded under Section 164 of the Criminal Procedure

Code. The completion of the investigation resulted in submission

of charge-sheet under Sections 376 and 377 of IPC read with

Section 4 of POCSO Act.

5] The learned Special Judge framed charge (Exh.2)

under Sections 376 and 377 of IPC read with Section 4 of POCSO

Act. The accused abjured guilt and claimed to be tried.

The defence, as is discernible from the trend and tenor of the

cross-examination and from the statement recorded under Section

313 of the Criminal Procedure Code is of total denial and false

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implication. In response to question 36 in the 313 Cr.P.C.

statement the accused states that he is not able to perform sexual

act.

6] The age of the victim is not in dispute. The birth

certificate evidencing the date of birth 02.07.2004 (Exh.48) is

admitted by the defence. Concededly, the victim was aged ten

years old and a child within the meaning of Section 2 (d) of the

POCSO Act. The victim (P.W.2) has deposed that on the day of the

incident at 02:30 p.m. the accused, whom she used to call “Akshay

Mama” came to her house. She was watching T.V.

Her grand-mother had gone out of the house and sister Khushi

was out of the house playing. The accused was also watching T.V.,

she offered Rs.40/- to the child victim which she refused.

The accused then left the house, locked the door outside and

entered the house from the rear door. He caught the victim to lie

down on the diwan, pressed her mouth, removed her knicker and

inserted his penis in the anus and also put his penis on the vagina.

The child victim has deposed that she suffered severe pain and

shouted. Her sister Khushi arrived at the scene and called her

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grand-mother. The accused then fled.

The child victim was subjected to intensive

cross-examination, to no avail from the perspective of the

evidence. Not a single contradiction is brought on record in the

cross-examination. The child victim denies the suggestion that she

is falsely implicating the accused at the instance of her mother.

The trend of the cross-examination would suggest when the

defence did not dispute that the child victim was sexually

ravished. The suggestion of the defence appears to be that the

perpetrator of the heinous crime is not the accused.

7] P.W.1, the mother of the child victim is the informant.

P.W.1 is not a witness to the incident. However, the disclosures

made to her by the child victim are admissible in evidence. P.W.1

has deposed that she returned at 06:30 p.m., the child victim was

sleeping and when she made inquiries with her mother-in-law, she

was told that the accused subjected the child victim to unnatural

sexual intercourse. The incident was confirmed by the child

victim. P.W.1 noticed redness and swelling on the vagina and

anus of the child victim. The child victim conveyed that she was

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suffering pain in the vagina and anus. In the cross-examination,

minor and insignificant omissions, which do not detract from the

reliability of the testimony, are brought on record.

Illustratively, the omission that P.W.1 did not state in the 161 or

164 statement that she touched the vagina and at that time the

child victim complained about having pain, is of no significance.

The suggestion was given to P.W.1 that she is falsely implicating

the accused since the accused supported one Urmila Shankar

Sirsat with whom P.W.1 is not on good terms. Urmila is the wife

of the elder brother-in-law of P.W.1. Urmila is also the

sister-in-law of the mother of the accused. P.W.1 has denied the

suggestion that there was a dispute between P.W.1 and Urmila a

week prior to lodging the F.I.R. and that since the mother of the

accused supported Urmila, the accused is falsely implicated.

The defence needs consideration only for rejection. It is

inconceivable that a mother would use her ten years old daughter

as a tool to falsely implicate accused only because the mother of

the accused supported one Urmila with whom P.W.1 has some

dispute. The medical evidence on record, to which I shall make a

reference at a later stage in the judgment, clinchingly proves that

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the victim was subjected to an unnatural act. The suggestion of

the defence that a mother would let the guilty scot-free and

implicate the accused only because the mother of the accused did

not support her or supported some other person in a dispute, the

nature of which dispute is left to speculation, dangerously borders

on the irrational.

8] P.W.4 Dr. Amit Bhasme was then attached to the Civil

Hospital, Amravati. He examined the child victim on 20.05.2014

and noticed severe anal spasms with tenderness. The victim was

experiencing pain. Further examination was not possible without

administering anesthesia. The victim was admitted in the hospital,

anesthesia could not be administered on 20.05.2014 and

21.05.2014 due to medical reason (N.B.M.). The victim was

administered anesthesia on 22.05.2014 and the perianal

examination was conducted. On examination, linear abrasion

from 9 O’ clock and 11 O’clock on the anal region was detected.

The child victim was examined by the Gynecologist on

27.05.2014. No injury was found in the vaginal region. P.W.4 on

the basis of the medical examination opined that the anal injury

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was possible due to forcible anal sex. P.W.4 has proved the

medical examination report Exh.43.

In the cross-examination it is elicited that anal spasms

can be caused due to severe reasons.

9] The evidence of Dr. Amit Bhasme corroborates the

evidence of the child victim. The fact that anal spasms could be

caused due to severe reasons other than forcible sexual act is of no

assistance to the defence. No suggestion is given to P.W.1 or

P.W.2 that the anal spasms suffered by the child victim were not

due to sexual ravishment but were due to some other reason.

The possibility of the existence of several reasons due to which the

injury may be caused is not sufficient to detract from the probative

value of the positive and reliable testimony of the prosecutrix.

10] The learned counsel Shri Samudre is vehement in

submitting that the failure of the prosecution to examine the

grand-mother of the victim is fatal. The prosecution ought to have

examined the grand-mother of the victim. However, in view of the

implicitly reliable and confidence inspiring testimony of the

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prosecutrix which is corroborated by P.W.1 and the medical

evidence on record, I am not inclined to agree with the submission

of the learned counsel that failure to examine the grand-mother of

the victim is fatal to the prosecution case. The societal interest

mandates that the rights and aspirations of the victim are not

buried under unfair or incompetent investigation. The conscious

of the court is satisfied that the version of the prosecution is

sufficiently unfolded and the failure to examine the grand-mother

of the child victim is not fatal to the prosecution case.

11. On a holistic appreciation of evidence on record, I am

of the view, that the prosecution has established the offence

punishable under Sections 376 and 377 of the IPC read with

Section 4 of POCSO Act beyond reasonable doubt.

The appeal is substance-less and is rejected.

JUDGE

NSN

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