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Devanand Govinda Gayakwad vs State Of Mah.Thr.Pso Bhisi on 29 June, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.

Criminal Appeal No.534 of 2005

Devanand Govinda Gayakwad,
Aged about 35 years, Occ. Cultivator,
R/o.-Shankarpur, Tah. Chimur, Distt. Chandrapur …. Appellant.

-Versus-

State of Maharashtra,
through Police Station Officer, Police Station, Bhisi. …. Respondent.

Shri S.D. Malke, Advocate for appellant.
Mrs. Geeta Tiwari, APP for State.

Coram : Manish Pitale, J.

Dated : 29
June, 2018.

th

ORAL JUDGMENT

By this appeal, the appellant has challenged the judgment and
order dated 05-09-2005, whereby the Court of Ad hoc Additional Sessions
Judge, Chandrapur (trial Court) convicted the appellant for offences under
Sections 354 and 448 of the Indian Penal Code (IPC), sentencing him to
suffer simple imprisonment for one year and six months respectively on the
two counts and also to pay fine of Rs. 500/- on each count. The trial Court
passed the impugned judgment and order in Sessions Case No.70 of 2004,
wherein the appellant had been charged with offences under Sections 376
read with Section 511 and 448 of the IPC.

2] The prosecution case was that on 01-03-2004, when the
prosecutrix (PW-3), a minor girl aged about 9 years, was alone in her

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house, the appellant who was a neighbour entered the house in the
afternoon and took the prosecutrix inside a room and closed the door. It
was alleged that the appellant made the prosecutrix to lie on a bed,
removed her nicker and after removing the clothes he slept on her. It
was alleged that thereafter, he made her to sit on his thighs and while
doing so he threatened her with a knife. It was also alleged that the
appellant gave a note of Rs. 10/- to the prosecutrix. But, when the mother
of the prosecutrix i.e (PW-2) arrived at the house, the appellant left the
house. On the mother of prosecutrix (PW-2) asking the prosecutrix
(PW-3) about the incident, she narrated the details to her, on the basis of
which, the mother of the prosecutrix (PW-2) along with the prosecutrix went
to the Police Station for registering the complaint. In the Police Station at
Bhisi, a preliminary report of occurrence was recorded, in which it was
stated that the appellant had removed the clothes of the prosecutrix with
an intention to commit sexual intercourse and that he had outraged her
modesty. On this basis, a First Information Report (FIR) was registered
against the appellant under Sections 354, 448 and 509 of the IPC.

3] The prosecutrix was sent for medical examination and she was
examined by the Doctor (PW-8). The report at Exhibit-38 recorded that
there was no injury to the body of prosecutrix or her genitals and that there
were no stains of blood or semen on the clothes. It was recorded in the
report that rape might not have taken place but the victim was likely to
have been molested. In support of the prosecution case, seven witnesses
were examined and defence examined two witnesses.

4] On the basis of the evidence and material on record, the trial

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Court found that a case of rape under Section 376 of the IPC was not
made out against the appellant. But, the trial Court found that there was
sufficient evidence to show that the appellant was guilty of offence under
Section 354 of the IPC i.e. assault or criminal force to woman with intent
to outrage her modesty and Section 448 of the IPC i.e. punishment for
house trespass. Aggrieved by the same, the present appeal has been
filed.

5] Shri S.D. Malke, learned Counsel appearing on behalf of the
appellant submitted in support of the appeal that the findings rendered by
the trial Court were based on erroneous appreciation of evidence and
material on record. It was submitted that the evidence of the two main
prosecution witnesses i.e. (PW-2) mother of the prosecutrix and prosecutrix
(PW-3), was full of omissions and contradictions. Moreover, prosecutrix
(PW-3) was a minor and her evidence was required to be appreciated with
circumspection and caution and that corroboration of the same was
necessary. It was pointed out that while the incident occurred on
01-03-2004, the statement of the prosecutrix was recorded on 09-03-2004
i.e. after a period of 8 days, which was fatal to the prosecution. It was
further submitted that the medical record and the evidence of the Doctor
(PW-8) did not support the prosecution case. It was further submitted that
defence witnesses have been examined to demonstrate that the appellant
had been falsely implicated because the mother of the prosecutrix (PW-2)
had a grudge against the appellant. It was submitted that the trial Court
did not properly appreciate this aspect of the matter while passing the
impugned judgment and order. The learned Counsel relied upon the
judgments of the Hon’ble Supreme Court in the case of Yogesh Singh vs

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Mahabeer Singh and others, reported at (2017) 11 SCC 195,
Pandurang Sitaram Bhagwat vs State of Maharashtra, reported at
2005 ALL MR (Cri) 776 (S.C.) and judgments of this Court in the case of
Baban s/o Bakayya Attare vs The State of Maharashtra, reported at
2002 ALL MR (Cri) 384 and Hemant Tukaram Karande vs State of
Maharashtra, reported at 2016 ALL MR (Cri) 522.

6] Per contra, Mrs. Geeta Tiwari, learned APP appearing on
behalf of the State submitted that there might have been minor omissions
and contradictions in the evidence of the two material prosecution
witnesses, but they were not fatal to the case of the prosecution. It was
submitted that even if the prosecutrix in the present case was a child
witness her evidence inspired confidence and that therefore, corroboration
of the same was not mandatory. It was further submitted that even the
doctor (PW-8) had opined that the prosecutrix had suffered molestation
and on this basis it was submitted that the appeal deserved to be
dismissed. As regards the delay in recording the statement of the
prosecutrix (PW-3), it was submitted that the Investigating Officer had
recorded the statement on 09-03-2004, immediately after the investigation
was handed over to him on 07-03-2004. It was also pointed out that the
Head Constable (PW-4), who had investigated the matter earlier, had
specifically stated that on the date of incident i.e. on 01-03-2004, he made
enquiry with the prosecutrix (PW-3) but she was in a frightened condition
and therefore her statement could not be recorded. On this basis, it was
submitted that there was no error committed by the trial Court in passing
the impugned judgment and order.

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7] Heard learned Counsel for the parties. In the present case, the

material witnesses in support of the prosecution case are (PW-2) mother of
the prosecutrix, prosecutrix herself (PW-3), (PW-5) Head Constable,
(PW-7) Investigating Officer and (PW-8) the doctor. The defence
witnesses DW-1 and DW-2 were the wife and maternal uncle of the wife of
the appellant respectively and they deposed in support of the defence case
that the appellant was not present in the house of the prosecutrix at the
time of incident and that he was in fact at his own house.

8] In this case, on the basis of the material on record, particularly
the medical evidence on record, the trial Court has held that no case was
made out against the accused under Section 376 of the IPC. But, the trial
Court has convicted the appellant under Sections 354 and 448 of the IPC
by finding that the evidence of the prosecution witnesses was reliable. In
the present case the only direct evidence is that of the prosecutrix (PW-3).
As per the prosecution, the prosecutrix was a child of about 9 years when
the incident occurred and she was about 10 years old when her evidence
was recorded before the trial Court. The evidence of the mother of the
prosecutrix i.e. (PW-2) is indirect because she merely stated that she saw
the appellant leaving her house when she returned home in the afternoon.
The details of the alleged incident were told by the prosecutrix to her and
therefore, as regards the manner in which the incident occurred, her
evidence is necessarily hearsay in nature.

9] Therefore, it is evident that in the present case the evidence
of the prosecutrix (PW-3) assumes significance. It is the truthfulness of
her evidence upon which the prosecution case rests. Since the prosecutrix

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(PW-3) is a child witness, her testimony needs to be examined with caution
and circumspection. In the case of Radhey Shyam vs State of
Rajasthan, reported at (2014) 5 SCC 389, in the context of appreciation of
evidence of child witness, it has been held as follows :-

“12. In Panchhi, (1998 SCC (Cri) 1561) after reiterating the
same principles, this Court observed that the evidence of a
child witness must be evaluated more carefully and with
greater circumspection because a child is susceptible to
be swayed by what others tell him and, thus, a child
witness is an easy pray to tutoring. This Court further
observed that the courts have held that the evidence of a
child witness must find adequate corroboration before it is
relied upon. But, it is more a rule of practical wisdom than
of law. It is not necessary to refer to other judgments cited
by learned counsel because they reiterate the same
principles. The conclusion which can be deduced from the
relevant pronouncements of this Court is that the evidence
of a child witness must be subjected to close scrutiny to
rule out the possibility of tutoring. It can be relied upon if
the court finds that the child witness has sufficient
intelligence and understanding of the obligation of an oath.
As a matter of caution, the court must find adequate
corroboration to the child witness’s evidence. If found,
reliable and truthful and corroborated by other evidence on
record, it can be accepted without hesitation. We will
scrutinize PW-2 Banwari’s evidence in light of the above
principles”.

10] In the case of Yogesh Singh (supra), the Hon’ble Supreme
Court has held as follows :-

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“Testimony of Child Witnesses

22. It is well-settled that the evidence of a child
witness must find adequate corroboration, before it is
relied upon as the rule of corroboration is of practical
wisdom than of law. (See Prakash Vs. State of M.P.,
Baby Kandayanathi Vs. State of Kerala, Raja Ram
Yadav Vs. State of Bihar, Dattu Ramrao Sakhare Vs.
State of Maharashtra, State of U.P. Vs. Ashok Dixit and
Suryanarayana Vs. State Of Karnataka.)

23. However, it is not the law that if a witness is a
child, his evidence shall be rejected, even if it is found
reliable. The law is that evidence of a child witness
must be evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and thus a child witness
is an easy prey to tutoring. (Vide Panchhi v. State of
U.P.)”

11] Division Bench of this Court in the case of Baban (supra) has
held as follows :-

“13. A child witness is certainly a competent witness to
depose before the Court. The Court would be justified
in convicting an accused on the basis of the evidence
of a child witness. If the Court finds that the child
witness has the capacity of understanding and gives
truthful answers, a conviction could be based on the
evidence of such child witness. The rule of prudence,
now ripened into rule of law, is to seek corroboration to
the evidence of child witness before the evidence of
child witness is made a foundation for conviction. It is
to be always remembered that a child witness is

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susceptible to being tutored. Because of tutoring, the
child witness is so much impressed that he begins to
believe that what is tutored to him is the truth. The
Court has, therefore, to be extremely cautious while
accepting the evidence of the child witness.”

12] The aforesaid position of law regarding the appreciation of
evidence of child witness makes it clear that while the evidence of a child
witness is certainly admissible in Court but, the Court has to be extremely
cautious in accepting the evidence of the child witness because a child
witness is susceptible to being tutored. In this situation, corroboration of
the evidence of a child witness becomes necessary as a matter of caution
and practicality. In this backdrop, when the evidence of the prosecutrix
(PW-3) in the present case is examined, it is found that she has stated in
detail about the manner in which the appellant entered the house and
undertook actions referred to above. Her evidence shows that the claim of
the appellant having shown her a knife and that he had given her a note of
Rs. 10/-, were material improvements made in her evidence. It has also
been stated in her cross examination that the Police had recorded her
statement in the Police Chowki on the date of incident when her mother
was also present.

13] The evidence of the prosecutrix (PW-3), a child witness, when
appreciated in the context of the other evidence brought on record by the
prosecution shows that it is not entirely trustworthy. In fact, the trial Court
has discarded the theory of the appellant having threatened the
prosecutrix (PW-3) at the time of incident with knife and given note of
Rs. 10/- to her. Therefore, the evidence of the prosecutrix (PW-3) cannot

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be said to be wholly reliable. In this context, the law laid down by the
Hon’ble Supreme Court in the case of Lallu Manjhi and another vs
State of Jharkhand, reported at (2003) 2 SCC 401 becomes relevant,
which reads as follows :-

“10. The Law of Evidence does not require any particular
number of witnesses to be examined in proof of a given
fact. However, faced with the testimony of a single
witness, the Court may classify the oral testimony into
three categories, namely (i) wholly reliable, (ii) wholly
unreliable, and (iii) neither wholly reliable nor wholly
unreliable. In the first two categories there may be no
difficulty in accepting or discarding the testimony of the
single witness. The difficulty arises in the third category
of cases. The court has to be circumspect and has to
look for corroboration in material particulars by reliable
testimony, direct or circumstantial, before acting upon
testimony of a single witness. {See – Vadivelu Thevan
etc. v. State of Madras, AIR 1957 SC 614}.”

14] Since the trial Court itself has found that parts of the evidence
of the prosecutrix (PW-3) were not reliable, the prosecutrix (PW-3) clearly
falls in the category of a witness who is neither wholly reliable nor wholly
unreliable. In this situation, as per the statement of law quoted above, the
Court must look for corroboration in material particulars about the evidence
of such a witness. Therefore, in the present case, it was necessary that
the evidence of the prosecutrix (PW-3) was corroborated by other evidence
placed on record by the prosecution as her sole testimony does not inspire
confidence.

15] The other material witness examined on behalf of the

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prosecution was mother of the prosecutrix i.e. (PW-2). As noted above,
her evidence in respect of the actual manner in which the incident took
place was necessarily hear say in nature. It shows that when she reached
home she saw the appellant going out of the house. She claimed in her
evidence that when she asked the appellant as to what he was doing, the
appellant allegedly said that he had gone inside the house for wandering.
This particular detail about her exchange with the appellant was not
stated by her to the Police. Thereafter, this witness simply stated what the
prosecutrix (PW-3) allegedly told her. Therefore, other than being a
witness to watch the present appellant at the place of incident, the
evidence of PW-2 does not take the case of the prosecution any further.

16] Therefore, the evidence of doctor (PW-8) and the Medical
Examination Report dated 01-03-2004 becomes important. A perusal of
Medical Examination Report at Exhibit-38 shows that there was no injury to
the body or genitals of the prosecutrix (PW-3). There were no stains of
blood or semen and no pubic hair were found on the clothes. The gait of
the prosecutrix was normal. In fact, it was recorded in the said report that
rape might not have taken place but the victim was likely to have been
molested. The evidence of doctor (PW-8) who had examined the
prosecutrix shows that he recorded the history of incident as it was told to
him. In the cross examination the said witness stated that the prosecutrix
was in a position to talk with him when she was brought for examination.
The evidence of the investigating Officer (PW-7) shows that the papers of
investigation were handed over to him on 07-03-2004. He recorded the
statement of the prosecutrix (PW-3) on 09-03-2004 which was 8 days after
the incident. This witness states that at the time of recording the statement

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of prosecutrix (PW-3), her mother (PW-2) was present. In cross
examination this witness concedes that he did not seize the clothes of the
appellant and the prosecutrix during investigation. Thus, the evidence on
record shows that while the statement of the mother of prosecutrix (PW-2)
was recorded on 02-03-2004 i.e. a day after the incident, the statement of
the prosecutrix (PW-3) was recorded on 09-03-2004, which was 8 days
after the incident. The prosecutrix (PW-3) has stated in her cross
examination that the Police had recorded her statement on the date of
incident in the Police Chowki but, no such statement of the prosecutrix
(PW-3) is on record. The medical evidence does not show any injury
either on the body or the genitals of the prosecutrix (PW-3) and only one
statement has been made in the Medical Examination Report to the effect
that the prosecutrix was likely to have been molested.

17] Thus, when the evidence of the prosecutrix (PW-3) does not
appear to be wholly reliable, requiring corroboration, absence of reliable
evidence of corroboration on the part of the prosecution witnesses,
renders the prosecution case weak and unreliable. In this backdrop, the
evidence of the defence witnesses needs to be appreciated in support of
the defence raised on behalf of the appellant. The appellant has claimed
that he has been falsely implicated because there had been strained
relations between him and the mother of the prosecutrix (PW-2) as she
owed a sum of Rs. 2500/- for grocery items which she had taken from the
shop of the appellant. It is the case case of the appellant that due to the
said strained relations and the insistence of the appellant that the mother of
the prosecutrix (PW-2) should pay the aforesaid amount, a false story had
been created to implicate the appellant in the present case. In support of

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his claim the appellant examined DW-1, his wife and DW-2, maternal uncle
of his wife. Both these witnesses have claimed that on the date and time
of incident the appellant was at his own house. DW-1 has also testified
to the fact that the mother of the prosecutrix i.e. (PW-2) owed the aforesaid
amount for grocery articles to her husband. Although the said defence
witnesses are close relations of the appellant, only for that reason their
evidence cannot be discarded. If their being close relations of the
appellant is the only ground for disbelieving them, the mother of the
prosecutrix (PW-2) can equally be said to be an extremely interested
witness for the prosecution in the present case. The Hon'ble Supreme
Court in the case of Munishi Prasad vs State of Bihar, reported at (2002)
1 SCC 351, while holding that the defence witnesses ought to be given
the same treatment as that of the prosecution witnesses, has held as
follows :-

"3. ..............Before drawing the curtain on this
score, however, we wish to clarify that the evidence
tendered by the defence witnesses cannot always be
termed to be a tainted one by reason of the factum of
the witnesses being examined by the defence. The
defence witnesses are entitled to equal respect and
treatment as that of the prosecution. The issue of
credibility and trustworthiness ought also to be
attributed to the defence witnesses on a par with that of
the prosecution--- a lapse on the part of the defence
witnesses cannot be differentiated and be treated
differently than that of the prosecutors' witnesses."

18] Thus, if the position of law is that the defence witnesses are
to be treated with the same respect as that of the prosecution witnesses,

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the evidence of DW-1 and DW-2 in the present case cannot be ignored.
Their evidence becomes relevant particularly when the evidence of the
prosecution witnesses does not appear to be wholly trustworthy and when
it does not inspire confidence. The fact that the statement of the
prosecutrix (PW-3) was recorded 8 days after the incident, itself creates a
serious doubt about the entire prosecution case. The said witness also
stated in the cross examination that her statement was recorded on the
very date of the incident in the Police Chowki, but no such statement is on
record. This deserves an adverse inference to be drawn against the
prosecution. In fact, all these factors indicate that the prosecutrix (PW-3),
being a child witness, was tutored. It lends credence to the contentions
raised on behalf of the appellant that he was falsely implicated in the
present case due to strained relations between him and the mother of the
prosecutrix (PW-2).

19] In any case, the prosecution case must stand on its own legs
and it has to prove the case against the appellant (accused) beyond
reasonable doubt. In the present case, the evidence of the child
witness/prosecutrix (PW-3) does not inspire confidence. It is not at all
supported by the medical evidence on record. The clothes of the
prosecutrix were not seized during investigation. This was significant
because analysis of the clothes, particularly the undergarment of the
prosecutrix (PW-3) could have thrown some light on the case of the
prosecution. The evidence of the mother of prosecutrix i.e. (PW-2) as
regards the details of the incident was of no help and even in respect of
the presence of appellant on the date, time and place of the incident, the
evidence of the said witness is not clinching. The explanation offered by

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(PW-5) Head Constable that he did not record statement of the prosecutrix
(PW-3) on the date of incident because she was frightened, is not
palatable. This statement stands contradicted by the prosecutrix (PW-3)
herself as she stated in her evidence that her statement was indeed
recorded on the date of incident in the Police Chowki. An overall analysis
of the evidence and material on record shows that the trial Court erred in
holding that the prosecution had been able to prove that the appellant
could be held guilty for offences under Sections 354 and 448 of the IPC.
The judgments on which reliance has been placed by the learned APP in
the present case would not be of much help to sustain the judgment of the
trial Court, because, it has been laid down in those judgments that if the
evidence of prosecutrix inspires confidence, no corroboration would be
required. In the present case, the evidence of the prosecutrix (PW-3) does
not inspire confidence and therefore, corroboration was necessary, which
is missing in the present case. Hence, the contentions raised on behalf of
the respondent cannot be accepted.

20] In the light of the above, it is found that the impugned judgment
and order passed by the trial Court is unsustainable. Accordingly, this
appeal is allowed. The impugned judgment and order of the trial Court is
set aside and the appellant is acquitted of the offences under Sections 354
and 448 of the IPC. The bail bond of the appellant stands cancelled.

JUDGE

Deshmukh

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