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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