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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.
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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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