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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.170 of 2017
Dharmendra s/o Keshav Nagdevte,
Aged 29 years,
Occupation – Labour,
R/o Ladbori, Tah. Sindewahi,
District – Chandrapur. … Appellant
(In Jail)
Versus
The State of Maharashtra,
through the Police Station Officer,
Police Station Sindewahi,
Chandrapur. … Respondent
None for Appellant.
Ms H.N. Jaipurkar, Additional Public Prosecutor for
Respondent.
Coram : R.K. Deshpande M.G. Giratkar, JJ.
Date of Reserving the Judgment : 4-1-2018
Date of Pronouncing the Judgment : 8
-1-2018
Judgment (Per R.K. Deshpande, J.) :
1. The challenge in this appeal is to the conviction of
appellant-accused Dharmendra s/o Keshav Nagdevte for the
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offence punishable under Section 376(2)(f)(i) of the Indian
Penal Code. The accused is also convicted for the offence
under Section 5(m)(n) punishable under Section 6 of the
Protection of Children from Sexual Offences Act, 2012. The
accused is sentenced to suffer rigorous imprisonment for life
and to pay a fine of Rs.50,000/- for conviction for each such
offence. The accused has preferred this appeal challenging the
judgment and order dated 25-11-2016 delivered in Special
(POCSO) Case No.59 of 2015.
2. The incident occurred on 23-3-2015 at about
10.00 p.m. at Mouza Ladbori, Tahsil Sindewahi, District
Chandrapur. The accused was charged for committing rape on
his niece Ku. Akanksha d/o Sandip Nagdevte, aged about seven
years. PW 4 Pournima is the mother of the victim, who lodged
a complaint on 26-3-2015 at Exhibit 25 in the Police Station in
respect of the offences. The FIR was registered on 26-3-2015
at 22.00 hours. She states in her deposition that on the day of
incident, the accused, who is the uncle of the victim, came to
her house in the night, and at that time, she herself, the victim,
and Sapna, the real sister of the victim, were present in the
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house. PW 4 Pournima went outside and sat with the
neighbouring women, whereas the victim-daughter and sister
Sapna were sleeping on the separate cots inside the house.
When she came to the house, daughter Sapna told her that the
accused slept on the person of the victim and when she went
inside, she found that the knicker of the victim was removed
upto her knee and she was covered with shawl. She saw the
semen on the frock of the victim as well as on the quilt and the
cot. She wiped out the same. The victim complained about
burning her vaginal portion. The husband of PW 4 and the
father of the victim was not in the house and he returned after
three days. Thereafter, a report was lodged in the Police
Station on 26-3-2015.
3. The victim was sent to Civil Hospital, Chandrapur, for
medical examination. The police seized white coloured lining
shirt, frock and knicker from the victim. The seizure
panchanama was drawn. The police also seized the quilt and
one torn shirt from PW 4. The prosecution examined the
prosecutrix as PW 1, the sister Sapna as PW 2, Pournima, the
mother of the victim, as PW 4, and Sandip, the father of the
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victim, as PW 5, to depose the theory of the prosecution.
Dr. Jaya Bhongle, PW 8, is the Medical Officer, who conducted
medical examination of the victim and submitted her report at
Exhibit 49, concluding that “hymen appeared torn so sexual
assault had occurred”.
4. The Sessions Court relies upon the evidence led by the
prosecution to record the finding that the accused being the
uncle of the victim, committed an offence of rape upon the
victim, who was minor. It holds that the medical evidence
produced is in corroboration of the testimony of the witnesses
examined by the prosecution. It holds that the sexual assault
has been proved. It considers the reports of the Chemical
Analyzer at Exhibits 72 to 74, and holds that though neither
the blood or the semen is detected on the quilt, full shirt, half
shirt, frock, underwear, barmuda, T-shirt and knicker (torn),
the same cannot be fatal to the prosecution, because the
incident took place on 23-3-2015 and the offence was
registered on 26-3-2015. It holds that the delay in lodging the
FIR was sufficiently explained, and when the prosecutrix was
sent for medical examination, it was found that she had already
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changed her clothes and there was no stain found over her
person or clothes. It holds that though the blood sample and
the pubic hair sample of the accused were also seized, the
inconclusiveness of the report of the Chemical Analyzer would
not be fatal, particularly when the sexual assault is established.
5. The Court relies upon the oral evidence of PW 1, the
victim, PW 2 Sapna, the sister, PW 4 Pournima, the mother,
and PW 5 Sandip, the father of the victim, to hold that the
accused has committed the act of rape on the minor child
Ku. Akanksha. The Court further relies upon the oral evidence
of PW 8 Dr. Jaya and the medical report at Exhibit 49 to hold
that there was a sexual assault on the victim. Though the
reports of the Chemical Analyzer at Exhibits 72 to 74 do not
corroborate the theory of the prosecution, the Court holds that
the delay in lodging the FIR has to be taken into consideration
to ignore the said reports.
6. In our view, only two questions need to be considered
in the present case – (i) whether the evidence of the witnesses
is reliable and worthy of credence, and (ii) whether there is
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any evidence on record to connect the accused with the crime.
7. None appears for the appellant-accused. With the
assistance of the learned Additional Public Prosecutor
appearing for the respondent-State, we have gone through the
evidence of witnesses relied upon by the Sessions Court. The
incident occurred on 23-3-2015 at about 10 p.m., when the
victim was present in the house along with her sister
PW 2 Sapna and mother PW 4 Pournima, who is the
complainant. PW 4 in her evidence states that when both the
daughters were sleeping in the house, the accused was there in
the house. When the incident took place, PW 4 was sitting
with the neighbouring women outside the house. PW 4 does
not depose to have actually seen the incident, but she learnt
about the incident from her daughter PW 2 Sapna, who
claimed to be sleeping on the another cot in the same room
besides the cot on which the victim slept. PW 2 narrated the
incident to PW 4.
8. The victim PW 1 was examined. She states in her
examination-in-chief as under :
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“1) … At the time of incident my mother was sitting
on road. I was sleeping on bed at home. At that time
accused was there. Uncle Dharmendra took out my
nicker upto my knee. Thereafter he slept on my person.
Therefore, there was burning at my urine place.
Dharmendra uncle put his place of urine in my place of
urine therefore there was burning. Thereafter he went
towards road. Then my mother arrived. I narrated
about incident to my mother. My mother took me to
police station. Thereafter police brought me to hospital
at Chandrapur. There doctor examined me. Police
recorded my statement. I had shown the spot to
police. …”
In paras 5 to 7 of her cross-examination, she states as
under :
“5. I had stated to police aunt that Dharmendra
uncle took out my nicker upto my knee. I had also
stated to police aunt that Dharmendra uncle put his
urine place at my urine place and therefore there was
burning. I had stated to police aunt that thereafter
Dharmendra uncle went towards road. I had stated to
police aunt that I had stated about incident to my::: Uploaded on – 08/01/2018 09/01/2018 02:15:57 :::
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apeal170.17.odtmother. I cannot assign any reason why above facts are
not mentioned in my statement.”
“6. While giving statement to Judge uncle I had not
stated that Dharmendra uncle had put his urine place at
my urine place.”
“7. My mother told me to depose in court today that
Dharmendra uncle had put his place of urine at my
place of urine. My mother also told me to depose in
court that Dharmendra uncle took out my nicker upto
my knee. My mother told me to depose in court that
Dharmendra uncle slept on my person. As my mother
stated me all these facts therefore I am stating the same
in court. It is correct to say that I am deposing in court
today as per say of my mother.”
9. PW 11 Panjabrao, the Investigating Officer, who
recorded the statement of the victim in presence of lady police
officer Rina Janbandhu, states in his cross-examination as
under :
“2) It is correct to say that I recorded statement of
victim. She had not narrated to me that Dharmendra
uncle took out her nicker upto her knee. She had also::: Uploaded on – 08/01/2018 09/01/2018 02:15:57 :::
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apeal170.17.odtnot stated to me that Dharmendra uncle put his urine
place at her urine place and therefore there was
burning. She had also not stated to me that thereafter
Dharmendra uncle went towards road. She had also
not stated to me that she had stated about incident to
her mother. It is not correct to say that without there
being any substantial evidence against accused I have
filed false charge sheet against accused and I am
deposing false.”
10. PW 2 Sapna, the sister of the victim, deposed as an
eye-witness to the incident. She claimed to be sleeping on a
cot in the same room where the incident occurred. She states
that the accused was sleeping over the victim sister and his
body was in motion. He inserted in the urinal place of her
sister. She further states in her examination-in-chief as under :
“1) … Dharmendra Kaka had come to our home
for charging his mobile. My mother told him to fix his
mobile for charging and asked him to go out and she
went out of the house. I cannot state what was inserted.
My victim sister told to my mother that she was having
burning in her urinal place. At that time I was present
there. Thereafter I went to call my mother. I narrated::: Uploaded on – 08/01/2018 09/01/2018 02:15:57 :::
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apeal170.17.odtmy mother about what the Dharmendra Kaka had done
with my victim sister. The nicker of Akansha was upto
her knee. Dharmendra Kaka had removed nicker of my
victim sister upto her knee. When I called my mother,
Dharmendra Kaka fled away. Thereafter my mother
narrated about the incident to the mother of
Dharmendra Kaka. Police made enquiry from me.
Police had recorded my statement.”
In her cross-examination, she states as under :
“3) … It is correct to say that as the battery of the
mobile of Dharmendra Kaka was totally discharged,
therefore, he came for charging the same. It is correct to
say that he has not connected the mobile for charging. It
is correct to say that victim was sleeping on cot. It is not
correct to say that I was in sleep. It is correct to say that
I was sleeping on the cot and my eyes were closed. While
my mother was going out, she asked us to switch off the
light. Dharmendra Kaka switched off the light. As the
light was off there was dark in the room and nothing
could be seen there on the cot of victim, I saw a figure of
a person sitting there. It is correct to say that after
seeing that I got frightened, therefore, I got up and ran
out to search for my mother. I saw my mother sitting in
front of the house of Mainabai. I told my mother that
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apeal170.17.odtthe cot of victim. Thereafter I and my mother returned
back to home. My mother switch on the light. It is
correct to say that at that time victim was sleeping by
covering with chadar. My mother woke up the victim.
My mother asked victim as to what had happened. It is
not correct to say that she told my mother that nothing
has happened (witness volunteers that she told my
mother that she was having burning in her urinal
place). It is correct to say that Dharmendra kaka after
switching the light off went away. …”
She further states in her cross-examination that “It is
correct to say that today when I came to the Court police kaka
met me. Police kaka enquired me about my name.” She
further denies that police kaka tutored her or that she was
deposing false at the instance of police.
11. PW 4 Pournima, the mother of the victim, is not an
eye-witness to the incident. She claims to have acquired the
knowledge of the incident from PW 1, the victim, and
PW 2 Sapna, the another daughter. PWs 1 and 4 claim to have
narrated the entire incident to their mother PW 4. We have
gone through the entire evidence of PW 4 and we do not find
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any corroboration by her to the testimony of PWs 1 and 2.
PW 4 only states that in the night of the date of incident, the
accused came in the house. At that time, she went outside to
sit with the neighbouring women, and the two daughters,
viz. PWs 1 and 2 were sitting on the separate cot inside the
house. PW 4 does not state in her evidence that either PW 1
or PW 2 told her that the accused put his urine place in the
urine place of the victim and, therefore, there was burning.
She only states that the daughter Sapna told her that the
accused had slept on the person of the victim. In fact, PW 2
states in her cross-examination that “It is correct to say that I
was sleeping on the cot and my eyes were closed.”
PW 4 Pournima in her cross-examination states that she had
gone to the house of the neighbourers to sit, which is at the
distance of 30 feet. She does not depose to have heard hue
and cry either by the victim or by PW 2 Sapna, the real sister,
who was present at the time of occurrence of incident.
Undoubtedly, PW 5 Sandip, the father of the victim, was not in
the house when the incident occurred and he came back after
three days.
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12. In view of above, we do not find the oral evidence of
PW 1, the victim, PW 2 Sapna, PW 4 Pournima and PW 5
Sandip to be reliable and trustworthy because of the omissions
in the statements of the victim recorded under Section 164 of
the Code of Criminal Procedure by the Magistrate and also by
the police authorities in presence of a lady police constable
which are proved. There are also inconsistencies and variance
in the testimony of the witnesses and there is a delay in lodging
the FIR. In the absence of corroboration of the testimony of
PWs 1 and 2 on material aspects, the oral evidence of these
witnesses do not inspire confidence so as to base the conviction
of the accused on it. In our view, the Sessions Court has
committed an error in accepting the evidence of these
witnesses as reliable and trustworthy.
13. PW 8 Dr. Jaya, who medically examined the victim,
submitted her report stating that “On examination hymen
appeared torn so sexual assault had occurred.” In answer to
Query No.(2) contained in Exhibit 47, PW 8 states that the
victim is capable of sexual intercourse. In her
cross-examination, she states as under :
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“2) It is correct to say that I have not mentioned the
age of injury whether it was fresh or old. It is true that
if the injury is older than one year, then it is treated as
old injury. Whether the injuries were painful or not at
the time of examining the victim, I cannot state it. It is
true that there may be other reasons for hymen tearing.
The tearing of hymen is not possible if a girl is playing
Pitu (Lagori) and falls down and sustained injury over
her vaginal part.
Que. In which type of game here is possibility
of tearing of hymen ?
Ans If the child is involved in sports activities
only in these cases there is possibility of tearing of
hymen.
The tearing of hymen is possible if a girl child is living in
unhygienic condition and there is itching to her private
part and if she scratches it by her own finger.”
14. No doubt, the medical report suggests that hymen of
the victim was torn and that sexual assault had occurred. The
victim was aged seven years. PW 8 Dr. Jaya states that it
cannot be stated whether the injuries were painful or not at the
time of examining the victim. She states that there may be
other reasons for hymen tearing and tearing of hymen is
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possible if a child is involved in the sports activities. She states
that tearing of hymen is possible if a girl child is living in
unhygienic condition and there is itching to her private part
and if she scratches it by her own finger. She states in response
to the query that the minor girl of seven years is capable of
sexual intercourse. In view of this, it is not possible to confirm
the finding of the Sessions Court that there was a sexual assault
on the victim.
15. In view of above, we are of the view that the oral
evidence of the witnesses relied upon by the Sessions Court is
untrustworthy and not of credence to hold that the offence
against the accused is established. Neither the oral evidence
and the medical examination report by PW 8 Dr. Jaya nor the
report of the Chemical Analyzer can be relied upon to hold that
the accused committed sexual assault on the minor child. The
evidence on record is short of connecting the accused with the
crime alleged and the possibility of falsely implicating the
accused cannot be ruled out. It is, therefore, not possible for us
to sustain the findings recorded by the Sessions Court holding
the appellant-accused guilty of the offences charged and he is
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required to be acquitted for want of reliable evidence of
committing an act of rape on the minor child, being in relation
as niece.
16. In the result, the appeal is allowed and the following
order is passed :
: O R D E R :
(1) The judgment and order dated 25-11-2016
delivered by the Additional Sessions Judge,
Chandrapur, in Special (POCSO) Case No.59 of 2015
to the extent it holds appellant-accused Dharmendra
s/o Keshav Nagdevte guilty of the offences punishable
under Section 376(2)(f)(i) of the Indian Penal Code
and the offence under Section 5(m)(n) punishable
under Section 6 of the Protection of Children from
sexual Offences Act, 2012, is hereby quashed and set
aside.
(2) Appellant-accused Dharmendra s/o Keshav
Nagdevte is acquitted of the charge levelled against
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he is not required in any other offence.
(3) The fine, if any paid, be refunded to the
appellant.
(4) Record and proceedings be sent back.
(M.G. Giratkar, J.) (R.K. Deshpande, J.)
Lanjewar
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