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Bablu Shoukat Kalal vs The State Of Maharashtra on 16 September, 2019

230-APPEAL-68-2018.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.68 OF 2018

BABLU SHOUKAT KALAL )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mrs.Nasreen Ayubi, Appointed Advocate for the Appellant.

Mr.Amit Palkar, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : RESERVED ON 29th AUGUST 2019
PRONOUNCED ON 16th SEPT.2019

JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 25 th August 2016 passed by the

learned Special Judge under the Protection of Children from

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

Act for the sake of brevity), Ichakaranji, District Kolhapur, in

Sessions (POCSO) Case No.21 of 2013, thereby convicting him of

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offences punishable under Sections 4, 5, 8 and 10 of the POCSO

Act. For the offence under Section 3 punishable under Section 4

of the POCSO Act, he is sentenced to suffer rigorous imprisonment

for 7 years apart from direction to pay fine of Rs.3,000/- and in

default, to undergo simple imprisonment for 3 months. For the

offence under Section 4 punishable under Section 5(1)(m)(n)(p)

of the POCSO Act, he is sentenced to suffer rigorous imprisonment

for 10 years apart from direction to pay fine of Rs.5,000/- and in

default, to undergo simple imprisonment for 6 months. For the

offence under Section 7 punishable under Section 8 of the POCSO

Act, the appellant/accused is sentenced to suffer rigorous

imprisonment for 5 years apart from direction to pay fine of

Rs.2,000/- and in default, to undergo simple imprisonment for 2

months. For the offence under Section 9(1)(m)(n)(p)

punishable under Section 10 of the POCSO Act, he is sentenced to

suffer rigorous imprisonment for 7 years apart from direction to

pay fine of Rs.3,000/- and in default, to undergo simple

imprisonment for 3 months.

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2 Though the appellant/accused is convicted of offences

punishable under Sections 376 and Section377 of the Indian Penal Code,

in view of provisions of Section 42 of the POCSO Act, no fresh

sentence came to be awarded to him on those counts. The

learned trial court directed that all sentences shall run

concurrently.

3 Facts, in brief, leading to the prosecution and the

resultant conviction of the appellant/accused, can be summarized

thus :

(a) The appellant/accused is father of the victim girl, who came

to be examined as PW4. She was six years old at the time of

commission of the alleged offence. First Informant/PW1 is

Farzana, who lodged report against the appellant/accused

with Police Station Karad City, Karad, on 22 nd February

2013 and accordingly, Crime No.0 of 2013 came to be

registered against the appellant/accused for the offence

punishable under Section 377 of the Indian Penal Code. The

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First Information Report (FIR) was then sent to

Hatkanangale Police Station, Hatkanangale in Kolhapur

District, alleging the offence being committed within the

territorial jurisdiction of that Police Station, where Crime

No.22 of 2013 came to be registered against the

appellant/accused.

(b) It is case of the prosecution that the appellant/accused and

his wife/ First Informant/PW1 Farzana were residing at

Daulat Colony, Karad. However, as the First Informant

/PW1 Farzana had lodged report against the

appellant/accused at Karad City Police Station, Karad, since

one year prior to lodging of the FIR, Exhibit 24, she started

residing separately from the appellant/accused, by keeping

her three children with her. Subsequently, the

appellant/accused shifted his residence to Hatkanangale

town in Kolhapur, where he started working in a mutton

shop.

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(c) It is case of the prosecution that on 23 rd December 2012, the

appellant/accused came to Karad and without seeking

permission of First Informant/PW1 Farzana, took their two

children with him including the PW4/victim female child.

(d) On 21st February 2013, some persons from the locality

reached the children to First Informant/PW1 Farzana by

informing her that those were seen at Gate No.1 of

Marketyard at Karad.

(e) First Informant/PW1 Farzana then questioned her children

and then the PW4/victim female child disclosed that in the

night hours, after closure of the mutton shop, her father i.e.

the appellant/accused, used to put his penis in her mouth.

In the night hours of 21 st February 2013 itself, First

Informant/PW1 Farzana then went to Police Station Karad

City, Karad, and lodged the FIR.

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(f) On 22nd February 2013, the PW4/victim female child came

to be examined by PW5 Dr.Dhondiram Jadhav, Medical

Officer working with the Sub-District Hospital, Karad, along

with another Medical Officer named Dr.Tejas Jadhav. Both

these Medical Officers noted ruptured hymen and minor

abrasion and redness at anal area of the PW4/victim female

child and accordingly, they recorded his fact in Medico Legal

Case Papers Exhibit 44.

(g) On the next day of lodging the report i.e. on 22 nd February

2013, the PW4/victim female child disclosed to her mother

that the appellant/accused used to commit penetrative

sexual assault on her. She, therefore, again took the

PW4/victim female child to the Police Station Karad City,

Karad. That is how, the PW4/victim female child was got

examined by the police from PW5 Dr.Dhondiram Jadhav

and his colleague, Dr.Tejas Jadhav at Sub-District Hospital,

Karad.

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(h) PW7 Anil Sankpal, Police Inspector of Hatkanangale Police

Station, on registering Crime No.22 of 2013 proceeded to

investigate the same. Spot of the incident came to be visited

along with panch witnesses PW2 Sunil More and PW3 Anant

Jadhav. The Spot Panchnama came to be prepared.

Statement of witnesses came to be recorded. The

appellant/accused came to be arrested. The PW4/victim

female child was again got examined at the CPR Hospital,

Kolhapur and DW1 Dr.Sandesh Admuthe examined her. On

conclusion of investigation, the appellant/accused came to

be charge-sheeted.

(i) The Charge as well as Additional Charge Exhibit 3 came to

be framed and explained to the appellant/accused. He

pleaded not guilty and claimed trial.

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

the prosecution has examined in all seven witnesses whereas

the appellant/accused has examined Dr.Sandesh Admuthe

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of CPR Hospital, Kolhapur, as the defence witness. The

defence of the appellant/accused is that of false implication

by his wife i.e. First Informant/PW1 Farzana.

(k) After hearing the parties, the learned Special court, was

pleased to convict the appellant/accused and sentenced him

accordingly, as indicated in the opening paragraph of this

judgment.

4 I have heard Mrs.Nasreen Ayubi, the learned advocate

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

State. She vehemently argued that the appellant/accused, who

happens to be the husband of First Informant/PW1 Farzana, came

to be falsely implicated in the crime in question because of

matrimonial dispute between the parties. Cross-examination of

this witness shows that she had lodged the FIR for the offence

punishable under Section 498A of the Indian Penal Code against

the appellant/accused and had roped in her in-laws, in the year

2012 itself. She further argued that, she had agreed to settle that

case by accepting an amount of Rs.30,000/- but the appellant/

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accused refused to give that amount and that is how, he has been

falsely implicated. The learned advocate further argued that,

evidence of the child witness is not believable, in the wake of

evidence of defence witness Dr.Sandesh Admuthe, who had not

noticed any injuries on person of the PW4/victim female child on

23rd February 2013.

5 The learned APP supported the impugned judgment

and order of conviction and the resultant sentence.

6 I have considered the submissions so advanced and

also perused the record and proceedings including oral as well as

documentary evidence.

7 In the case in hand, undisputedly, the PW4/victim

female child, at the time of the alleged commission of the offence,

was just six years old. She, being a child witness, her testimony

needs to be examined carefully as well as cautiously, as children

are generally prone to tutoring. However, if ultimately it is found

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that the child is deposing the truth, then such evidence can be

accepted without seeking any corroboration. In the case in hand,

the PW4/victim female child, who happens to be the victim of the

crime in question, was specifically questioned on the point of

tutoring by the learned defence counsel. She was very firm and

categoric in stating that she is not deposing at the instance of

anybody and nobody has told her as to what she should depose

before the court. She denied the suggestion that she was tutored

by her mother at her residence as to what she should speak

against her father in the court. It needs to be noted that the

learned Special Judge had put some elementary questions to this

child witness in order to understand her intelligence and

competency to testify. The learned Special Judge came to the

conclusion that the PW4/victim female child is understanding the

nature of questions and she is answering the same. However,

considering her young age, it was chosen not to administer oath to

her. In the light of this fact situation, if one peruses the chief-

examination of the PW4/victim female child, then it is seen that

she has deposed about the happenings in a very natural way

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without hiding anything. She has stated that when her father

tried to take them, her one sister managed to run away, but she as

well as her brother were taken by her father i.e. the

appellant/accused to Hatkanangale town and they both then

started residing with him, at the mutton shop itself. It is in her

evidence that in the night hours, her father i.e. the

appellant/accused, used to remove her clothes and used to touch

her vagina and also used to insert his finger therein. The

PW4/victim female child deposed that the appellant/accused used

to put his penis on her vagina. When she used to protest, her

father used to beat her. She further deposed that, then her father

left her as well as her brother at Karad and went away.

Subsequently, driver of the auto rickshaw reached them to their

home and she disclosed the incident to her mother. There is

nothing in cross-examination of this child witness to disbelieve her

testimony. She candidly accepted the fact that apart from her

father, other persons used to work in the mutton shop. However,

no further question is put to her that those other persons also used

to stay at that mutton shop. Hence, this halfhearted cross-

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examination is not of any assistance to the defence. She accepted

that other shops were also situated in the vicinity of the shop,

where her father was working. Existence of other shops in the

vicinity cannot create any dent in version of the PW4/victim

female child.

8 Evidence of the PW4/victim female child is duly

corroborated by evidence of her mother i.e. First Informant/PW1

Farzana. She has deposed about taking away her children i.e. the

PW4/victim female child and five year old son by the

appellant/accused on 23rd December 2012 and their return to the

house on 21st February 2013. Initially, the PW4/victim female

child, as stated by her, had disclosed about the appellant/accused

putting his penis in the mouth of the PW4/victim female child and

that is how, this mother lodged the FIR Exhibit 24. The FIR,

therefore, is to the extent of disclosure of the PW4/victim female

child to that effect only. First Informant/PW1 Farzana stated that

on the next day i.e. on 22nd December 2013, her minor daughter

disclosed about penetrative sexual assault by the appellant/

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accused and therefore, she inspected private part of the

PW4/victim female child. She found some injuries in the form of

abrasion and also noticed that the private part of her daughter

had turned reddish in colour. Therefore, the PW4/victim female

child was again taken to the Police Station Karad City, Karad,

from where she was sent to the Sub-District Hospital for medical

examination. Theory of false implication suggested by the defence

in her cross-examination is not worthy of acceptance because if

really this mother wanted to implicate her husband falsely in the

case in hand, then she would have added spice to her FIR by

concocting the case against the appellant/accused. However, this

is not done by her. Initially, she lodged the report about

penetrative sexual assault in the form of putting penis in the

mouth of the PW4/victim female child. The FIR is registered with

that allegation only. On the next day, there was disclosure about

other details of the incident. In this view of the matter,

suggestions to First Informant/PW1 Farzana to the effect that she

lodged the FIR of the offence punishable under Section 498A of

the Indian Penal Code against her husband and in-laws and that

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she had demanded Rs.30,000/- for settling that case, are not

useful for holding that the appellant/accused is falsely implicated.

In Indian setting, a mother would not put future of her tiny tot in

peril with such allegations, and that too, against her own

husband.

9 On 22nd February 2013 itself, PW5 Dr.Dhondiram

Jadhav along with Dr.Tejas Jadhav examined the PW4/victim

female child. They both noticed that hymen of the PW4/victim

female child was ruptured. However, there was no vaginal

bleeding. As per observations of both these Medical Officers, at

the material time, there was tenderness and redness over labia

majora. In per anal examination of the PW4/victim female child,

both these doctors noticed presence of minor abrasion with

redness perennially present and tenderness. PW5 Dr.Dhondiram

Jadhav has spoken about these facts and proved Medico Legal

Case Papers Exhibit 44 reflecting these facts. In cross-examination

it was brought on record that he had not brought Medico Legal

Register in the court in which they used to note down the injuries

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noticed on the victim. It was suggested and he accepted that

except injuries on vagina and anal region, there were no injuries

on the PW4/victim female child. It was also suggested to him that

such injuries might be possible due to thrusting of a thumb.

10 Non-bringing of the Medico Legal Register is of no

consequence because the document at Exhibit 44 is a

contemporaneous document in which findings are recorded at the

time of medical examination of the PW4/victim female child,

apart from condition of the private part of the victim of the sexual

assault. Document at Exhibit 44 is not a document prepared on

the basis of Medico Legal Case Register. The observations and

findings recorded in the Medico Legal Case Papers are

corroborating the version of PW5 Dr.Dhondiram Jadhav.

11 The defence has examined Dr.Sandesh Admuthe of the

CPR Hospital, Kolhapur. This witness examined the PW4/victim

female child on 23rd February 2013 and had not noticed any

injuries on her private part. This Medical Officer has deposed that

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he did not notice any fresh injury, swelling or redness on private

part of the PW4/victim female child. Her hymen was intact.

12 DW1 Dr.Sandesh Admuthe had examined the

PW4/victim female child on 23rd February 2013. The PW4/victim

female child had returned to her house on 21 st February 2013.

The injuries in the nature of abrasion and swelling can be healed

within this period. PW5 Dr.Dhondiram Jadhav could notice those

injuries because the PW4/victim female child was examined by

him immediately. Even otherwise, when evidence of the victim of

sexual assault is found to be cogent and trustworthy, no

corroboration by medical evidence is required.

13 In the case of SectionState of Punjab vs. Gurmeet Singh1 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 :

1 1996 Cri.L.J. 172

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“….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
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

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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.

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.”

14 It is a settled legal position that the medical evidence

is also a corroborative piece of evidence but where the medical

evidence does not support the otherwise clinching and

trustworthy ocular evidence of any material witness then, the

testimony of such ocular evidence will prevail on the medical

opinion and not vice versa. In the case of SectionRanjit Hazarika v. State

of Assam2, the opinion of the doctor was that no rape appeared to

have committed because of the absence of rupture of hymen and

injuries on the private part of the prosecutrix, the Apex Court took

a view that the medical opinion cannot throw over board an

otherwise cogent and trustworthy evidence of the prosecutrix.

2 (1998) 8 SCC 635

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15 The Honourable Apex Court in B.C.Deva v. State of

Karnataka3, inspite of the fact that no injuries were found on

person of the prosecutrix, yet finding her version to be reliable

and trustworthy, the Honourable Apex Court upheld the

conviction of the accused. The Court observed that :

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

16 With this, I conclude that the appellant/accused was

touching and fingering the vagina of his daughter i.e. the

PW4/victim female child and was committing penetrative sexual

assault on her by putting his penis on her vagina. This was used to
3 (2007) 12 SCC 122

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be done regularly by the appellant/accused during the stay of the

PW4/victim female child at his house from 23 rd December 2012 to

21st February 2013. At the time of penetrative sexual assault on

her, the PW4/victim female child was below 12 years of age and

the appellant/accused was her father, and as such, a person in

possession of trust and authority over her. The penetrative sexual

assault on the PW4/victim female child by the appellant/accused

was more than once. Thus, the appellant/accused is certainly

guilty of aggravated penetrative sexual assault made punishable

by Section 5 of the POCSO Act. The appellant/accused is also

punished for causing penetrative sexual assault on the PW4/victim

female child under Section 4 of the POCSO Act as well as for

causing sexual assault on her punishable under Section 8 of the

POCSO Act and for aggravated sexual assault punishable under

Section 9 thereof.

17 The appellant/accused, as seen from the impugned

judgment and order, is convicted for causing penetrative sexual

assault, aggravated penetrative sexual assault, sexual assault as

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well as aggravated sexual assault and consequently, he is

punished separately for offences punishable under Sections 4, 6, 8

and 10 of the POCSO Act. At this juncture, Section 71 of the

Indian Penal Code needs to be look into and it reads thus :

“71 Limit of punishment of offence made up
of several offences –

Where anything which is an offence is made up of
parts, any of which parts is itself an offence, the
offender shall not be punished with the punishment
of more than one of such his offences, unless it be
so expressly provided.

Where anything is an offence falling within two or
more separate definitions of any law in force for the
time being by which offences are defined or
punished, or
where several acts, of which one or more than one
would by itself or themselves constitute an offence,
constitute, when combined, a different offence,
the offender shall not be punished with a more
severe punishment than the Court which tries him
could award for any one of such offences.”

Perusal of Section 71 of the Indian Penal Code makes it clear that

where several acts, of which one or more than one would by itself

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or themselves constitute an offence, when combined also

constitute a different offence, then in that situation, though the

accused can be convicted for all those offences, but he needs to be

punished with a more severe punishment prescribed for one of

such offences and he need not be punished for such several acts,

which are also, independently, an act of offence. In the case in

hand, the appellant/accused used to remove clothes of the

PW4/victim female child, used to touch her vagina and also used

to insert his finger therein, apart from inserting his penis in her

vagina. Thus, in this process, the appellant/accused used to

commit sexual assault and penetrative sexual assault on the

PW4/victim female child and these offences turns to take

aggravated form because the appellant/accused, who happens to

be the father, was holding position of trust and authority over the

PW4/victim female child, who was below 12 years of age. As

such, the appellant/accused ought to have been sentenced only

for the offence punishable under Section 6 of the POCSO Act i.e.

for aggravated penetrative sexual assault. This is the offence for

which most severe punishment is prescribed. However, apart from

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separately punishing the appellant/accused for offences of

penetrative sexual assault, aggravated penetrative sexual assault,

sexual assault and aggravated sexual assault, the learned trial

court has failed to convict him for the offence punishable under

Section 6 of the POCSO Act i.e. for the aggravated penetrative

sexual assault. Rather, with some confusion, as seen from the

operative portion of the order, the learned trial court inflicted

punishment prescribed by Section 4 of the POCSO Act i.e.

punishment for penetrative sexual assault for the offence defined

in Section 5 of the said Act i.e. offence of penetrative sexual

assault, which is, infact, punishable vide Section 6 of the POCSO

Act.

18 In the light of the foregoing discussion, the appeal

deserves to be partly allowed. Therefore, the following order :

ORDER

i) Conviction of the appellant/accused for offences punishable

under Sections 376 and Section377 of the Indian Penal Code as

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well as for offences punishable under Sections 4, 6, 8 and 10

of the POCSO Act is maintained.

ii) However, the sentences imposed on the appellant/accused

for offences punishable under Section 4 (twice) as well as

for offences punishable under Sections 8 and 10 of the

POCSO Act, are quashed and set aside.

iii) Instead, for the offence punishable under Section 6 of the

POCSO Act, the appellant/accused is sentenced to suffer

rigorous imprisonment for 10 years apart from direction to

pay fine of Rs.5,000/- and in default, to undergo further

rigorous imprisonment for 6 months.

iv) With this modification in the impugned judgment and order,

the appeal stands disposed off.

(A. M. BADAR, J.)

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