902-APPEAL-239-2017-APPA-1722-2017-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.239 OF 2017
WITH
CRIMINAL APPLICATION NO.1722 OF 2017
IN
CRIMINAL APPEAL NO.239 OF 2017
FAHAD MUSTAQ PATANKAR )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Aniket Vagal, Advocate for the Appellant.
Mr.V.V.Gangurde, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 6th FEBRUARY 2018
7th FEBRUARY 2018
ORAL JUDGMENT :
1 This appeal is taken up for final hearing while hearing
the application for suspension of sentence in view of directions of
this court contained in order dated 16 th August 2017 (Coram :
Smt.Anuja PrabhuDessai, J.) in the wake of the fact that the
appellant/accused is in custody since the year 2014.
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2 By this appeal, the appellant/accused is challenging
the judgment and order dated 24 th July 2015 passed by the
learned Special Judge, Ratnagiri, convicting the appellant/accused
of the offence punishable under Sections 4 of the Protection of
Children from Sexual Offences Act, 2012, (hereinafter referred to
as the POCSO Act for the sake of brevity) and for sentencing him
to suffer rigorous imprisonment for 7 years apart from directing
him to pay fine of Rs.5,000/-, and in default, to undergo further
rigorous imprisonment for 3 months. The appellant/accused was,
however, acquitted of the offence punishable under Section 363 of
the Indian Penal Code.
3 Facts in nutshell leading to the prosecution of the
appellant/accused can be summarized thus :
(a) The prosecutrix/PW2 is a resident of Village Nayari in
Sangameshwar Taluka, Ratnagiri District. She was residing
there along with her father PW1 Aslam Patankar and other
relatives including her mother. The prosecutrix/PW2 was
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taking education at the High School in 8th Standard, situated
at Kasba Village. On 5th August 2014, as usual, the
prosecutrix/PW2 left her home for attending the school at
Kasba Village by State Transport bus. The appellant/accused
was already present in the bus. He threatened the
prosecutrix/PW2 by uttering the words “तुझी वाट लािवन”
meaning thereby, that he will put her to perilous situation.
Because of the threat extended by the appellant/accused, the
prosecutrix/PW2 became scared and got down at
Sangameshwar along with the appellant/accused. At
Shastripool locality of town Sangameshwar, they had snacks
of Vada-pav. Then, accompanied with the appellant/accused,
the prosecutrix/PW2 went to Sangameshwar Railway Station.
In the vicinity, they passed time up to midnight, and in the
night intervening 5th August 2014 and 6 th August 2014, the
prosecutrix/PW2 along with the appellant/accused boarded
the train and reached Ratnagiri in the morning hours of 6 th
August 2014. By an autorickshaw, they then proceeded
towards the State Transport stand and spent the day in the
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vicinity of the State Transport stand of Ratnagiri. In the
evening hours of 6th August 2014, the appellant/accused had
taken the prosecutrix/PW2 to the house of PW3 Salwa
Shandar. PW3 Salwa Shandar in turn, sent the couple to the
house of PW4 Diba Solkar. In the night intervening 6 th
August 2014 and 7th August 2014, the prosecutrix/PW2 along
with the appellant/accused resided at the house of PW4 Diba
Solkar, where according to the prosecutrix/PW2, the
appellant/accused had committed forcible sexual intercourse
on her.
(b) Upon noticing the fact that his daughter is missing from the
house, PW1 Aslam Patankar lodged report with Police Station
Sangameshwar on 6th August 2014 pointing a finger of
suspicion against the appellant/accused and the said report
has resulted in registration of Crime No.60 of 2014 against
the appellant/accused for offences punishable under Sections
363 and 366A of the Indian Penal Code.
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(c) It is case of the prosecution that in the morning hours of 7 th
August 2014, the appellant/accused took the
prosecutrix/PW2 to the State Transport stand of Ratnagiri
and by the train took her to Chiplun. After a day out at
Chiplun, the appellant/accused took her back to Ratnagiri at
about 8.30 p.m. At the State Transport stand, Ratnagiri,
police accosted the couple and took them to Sangameshwar
Police Station.
(d) Routine investigation of Crime No.60 of 2014 followed. The
prosecutrix/PW2 was medically examined, so also the
appellant/accused. Seizures were effected. Spot panchnama
came to be recorded. On completion of investigation, the
appellant/accused came to be charge-sheeted.
(e) The learned Special Judge at Ratnagiri framed Charge for
offences punishable under Sections 363 and 376(2)(i)(n) of
the Indian Penal Code. In the alternative, Charge for offences
punishable under Sections 7 read with 8 of the POCSO Act,
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so also under Section 4 thereof, came to be framed against
the appellant/accused. He abjured his guilt and claimed trial.
(f) In order to bring home the guilt to the appellant/accused, the
prosecution has examined in all eleven witnesses. The
defence of the appellant/accused was that of total denial.
He, however, did not enter in defence.
(g) After hearing the parties, by the impugned judgment and
order dated 24th July 2015, the learned trial court came to
the conclusion that the appellant/accused had committed
penetrative sexual assault on the prosecutrix/PW2, who, at
the relevant time, was below 18 years of age. The learned
trial Judge found that the prosecution had failed to prove
that the appellant/accused had kidnapped the prosecutrix/
PW2, and ultimately, the appellant/accused was convicted for
the offence punishable under Section 4 of the POCSO Act,
and he was accordingly sentenced, as indicated in the
opening paragraph of this judgment.
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4 I have heard the learned advocate appearing for the
appellant/accused. He vehemently argued that evidence of the
prosecutrix/PW2 reflects her conduct and the case made out by
the prosecution is, infact, a case of consensual sex between two
persons. The learned advocate argued that evidence of the
prosecutrix/PW2 coupled with the evidence of the Investigating
Officer shows that the prosecutrix/PW2 had left her house on the
pretext of going to attend her school, but at the relevant time, she
had taken her clothes in a bag and was found to be wearing a T-
Shirt. The learned advocate further argued that evidence of the
prosecutrix/PW2 shows that she was roaming with the
appellant/accused right from 5th August 2014 to 7th August 2014
by using public transport, such as State Transport bus and railway.
She had tons of opportunities to raise hue and cry, if really she
was kidnapped by the appellant/accused.
5 The learned advocate further argued that even
evidence of PW3 Salwa Shandar shows that the prosecutrix/PW2
accompanied the appellant/accused voluntarily and when the
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prosecutrix/PW2 came to know that her parents are coming to the
house of PW3 Salwa Shandar, she insisted the appellant/accused
to leave the house. The prosecutrix/PW2 was wearing
Mangalsutra when she was accompanying the appellant/accused.
Even PW4 Diba Solkar was also informed that the couple is
married and this fact was not disputed by the prosecutrix/PW2.
6 The learned advocate appearing for the
appellant/accused vehemently argued that case of alleged forcible
sexual intercourse by the appellant/accused in the night
intervening 6th August 2014 and 7th August 2014 is not proved by
the prosecution. This incident, allegedly, took place at the house
of PW4 Diba Solkar, but evidence of this witness goes to show that
in the night, the appellant/accused, the prosecutrix/PW2 as well
as inmates of house of PW4 Diba Solkar stayed and slept at the
common hall. To that extent, evidence of the prosecutrix/PW2 is
contrary to the version of PW4 Diba Solkar, and therefore, the
same cannot be accepted. The learned advocate further argued
that even if it is assumed for the sake of argument that such an
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incident of penetrative sexual assault took place in the night
intervening 6th August 2014 and 7th August 2014, the
prosecutrix/PW2 was having ample opportunity to make hue and
cry and to complain about this incident to all and sundry.
7 The learned advocate appearing for the
appellant/accused drew my attention to the evidence of PW10
Dr.Vaibhav Jadhav from Civil Hospital, Ratnagiri, and argued that,
this evidence shows that there was no recent sexual intercourse
with the prosecutrix/PW2. By drawing my attention to the cross-
examination of the prosecutrix/PW2, the learned advocate argued
that even as per say of the prosecutrix/PW2, the incident of
penetrative sexual assault on her, which took place in the night
intervening 6th August 2014 and 7th August 2014, was the very
first such incident which took place in her lifetime. With this, the
learned advocate for the appellant/accused argued that veracity of
this evidence coming from the mouth of the prosecutrix/PW2 is
under shadow of doubt as the same is totally unsupported by the
medical evidence. Hence, according to the learned advocate for
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the appellant/accused, the prosecution has failed to prove the
alleged incident of penetrative sexual assault in the night
intervening 6th August 2014 and 7th August 2014, thereby entitling
the appellant/accused for acquittal.
8 It is further argued that the version of the
prosecutrix/PW2 regarding the forcible sexual intercourse is
doubtful because even after her return, she has not disclosed such
incident to her father PW1 Aslam Patankar. The query regarding
age of the prosecutrix/PW2 was not replied by the Medical Officer.
The prosecution has failed to prove age of the prosecutrix/PW2.
With this, the learned advocate for the appellant/accused, argued
that the prosecution has failed to prove the offence punishable
under Section 4 of the POCSO Act against the appellant/accused.
9 The learned APP justified the impugned judgment and
order by contending that evidence of the prosecutrix/PW2 is
reliable and the same is supported by the medical evidence on
record. The learned APP further argued that the certificate
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regarding date of birth of the prosecutrix/PW2 is a public
document within the meaning of the term under Section 74 of the
Evidence Act.
10 I have carefully considered the rival submissions and
also perused the Record and Proceedings including copies of
deposition of prosecution witnesses as well as documentary
evidence placed on record.
11 According to the prosecution case, the appellant/
accused had committed penetrative sexual assault on a femaly
child, and therefore, has committed the offence punishable under
Section 4 of the POCSO Act. Section 2(d) of the said Act defines
the term “child”. As per this definition, the child is a person below
the age of 18 years. In order to make out the offence punishable
under Section 4 of the POCSO Act, the prosecution will have to
prove that the prosecutrix/PW2, at the relevant time of the
alleged penetrative sexual assault on her, was below 18 years of
age. Thus, age of the prosecutrix/PW2 and the proof thereof are
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the factors which are of vital importance for deciding the case in
hand. Let us, therefore, at the outset, decide whether the
prosecution has proved the fact that the prosecutrix/PW2 was
below 18 years of age in August 2014.
12 Evidence regarding age of the prosecutrix/PW2 is
coming on record from oral evidence of PW1 Aslam Patankar as
well as that of the prosecutrix/PW2. As per oral evidence of both
these witnesses, date of birth of the prosecutrix/PW2 is 6 th March
2000. By now, it is well settled that, oral evidence is hardly
sufficient to conclude and determine the age of a person.
Moreover, evidence regarding her date of birth given by the
prosecutrix/PW2 is coming on record by way of omission.
13 Now let us turn to the documentary evidence
produced on record by the prosecution in respect of age of the
prosecutrix/PW2. PW11 Manohar Chikhale, Police Inspector of
Sangameshwar Police Station, had conducted investigation of the
said crime. His evidence reveals that during the course of
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investigation, he collected the Birth Certificate of the
prosecutrix/PW2 through Gram Panchayat, Mabhale. This Birth
Certificate, during the course of evidence of PW11 Manohar
Chikhale, Police Inspector, is marked as Exhibit 50. It is needless
to mention that mere marking as Exhibit of a document does not
amount to proof of contents of such document, and therefore, by
formally marking any document as Exhibit, the contents thereof
cannot be read in evidence. However, in the case in hand, Birth
Certificate, which is at Exhibit 50, is issued by the Assistant Block
Development Officer of Panchayat Samiti, who at the relevant
time, was acting as Additional District Registrar of Birth and
Death, as per the provisions of the Registration of Births and
Deaths Act, 1969. This certificate at Exhibit 50 shows that the
prosecutrix/PW2 was born to PW1 Aslam Patankar on 6 th March
2000. The certificate at Exhibit 50 is issued by the Registrar
acting under the provision of Registration of Births and Deaths
Act, 1969. Section 7 of the said Act deals with appointment of
Registrar for each local area, comprising the area within the
jurisdiction of a Municipality, Panchayat or other local authority.
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It is the statutory duty of the Registrar to register every birth and
death which takes place within his jurisdiction. The provisions of
this Act mandates that the Registrar should discharge his duties
carefully. Section 8 thereof requires each head of the house to
report births and deaths in the family to the Registrar under the
said Act. Provisions of the Registration of Births and Deaths Act,
1969, provides for maintaining of records of births and deaths.
Perusal of Exhibit 50 Birth Certificate shows that the same is
issued by the Registrar as per provisions of Sections 12 and 17 of
the said Act. At this juncture, it is apposite to quote provisions of
Section 17 of the said Act. It reads thus :
“17 Search of births and deaths register –
(1) Subject to any rules made in this behalf by the
State Government, including rules relating to the
payment of fees and postal charges, any person may
–
(a) cause a search to be made by the Registrar for
any entry in a register of births and deaths;
(b)obtain an extract from such register relating to
any birth or death:
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Provided that no extract relating to any death,
issued to any person, shall disclose the particulars
regarding the cause of death as entered in the
register.
(2) All extracts given under this section shall be
certified by the Registrar or any other officer
authorised by the State Government to give such
extracts as provided in section 76 of the Indian
Evidence Act, 1872 (1 of 1872), and shall be
admissible in evidence for the purpose of proving
the birth or death to which the entry relates.”
This makes it clear that the Birth Certificate issued under the
provisions of the Registration of Births and Deaths Act, 1969, is
admissible in evidence for the purpose of proving birth or death to
which the same relates. Therefore, it is crystal clear that the Birth
Certificate at Exhibit 50 is a document forming the record of the
Act of the Public Officer, and therefore, the same is a public
document within the meaning of the said term as provided by
Section 74 of the Indian Evidence Act, 1872. This being so, the
Birth Certificate at Exhibit 50 does not require any formal proof.
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14 At this juncture, it is apposite to look into the
provisions of Section 35 of the Indian Evidence Act, 1872. Bare
perusal of this provision makes it clear that if entry is made by a
public servant in the official book in discharge of his official duty,
then such entry becomes a relevant fact and admissible in
evidence. The extract of the Birth Register maintained by a Public
Officer in discharge of his public duty is, as such, admissible under
Section 35 of the Indian Evidence Act and it is not even necessary
to examine the Officer who records such an entry. Valuable
reference to this proposition can be had from the judgment of the
Hon’ble Apex Court in Harpal Singh Anr. v. State of Himachal
Pradesh 1. In this view of the matter, it needs to be held that date
of birth of the prosecutrix/PW2 recorded in the statutory register
as 6th March 2000 is relevant and the same is gaining
corroboration from the oral evidence of the prosecutrix/PW2 as
well as that of her father PW1 Aslam Patankar. With this
evidence, it needs to be concluded that the prosecutrix/PW2, who
was born on 6th March 2000, was below 18 years of age, at the
relevant time of commission of alleged offence in August 2014.
1 AIR 1981 SC 361
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15 Now let us examine whether the appellant/accused
has committed penetrative sexual assault on the prosecutrix/PW2,
who at the relevant time is proved to be a female child. By now, it
is settled that, the prosecutrix in a rape case is treated as a victim
of the offence, and finding of guilt in the case of rape can be
based on uncorroborated evidence of the victim of such crime, as
the very nature of the offence makes it difficult to get direct
corroborating evidence. Evidence of the victim of such crime is
not liable to be rejected on the basis of minor discrepancies and
contradictions and her statement is normally required to be
accepted, unless and until it is found that she is not a witness of
truth. The prosecutrix/PW2 in the instant case is the minor
female child, on whom, according to the prosecution case, the
appellant/accused committed penetrative sexual assault in the
night intervening 6th August 2014 and 7 th August 2014, at the
house of PW4 Diba Solkar at Ratnagiri. In view of this allegation
against the appellant/accused, evidence of the prosecutrix/PW2
assumes great importance, in order to determine whether the
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appellant/accused is guilty of the offence punishable under
Section 4 of the POCSO Act or not.
16 The prosecutrix/PW2, as seen from her evidence as
well as evidence of her father PW1 Aslam Patankar,was a school
going girl taking education in 8th Standard at the High School
situated at Village Kasba. She was resident of Nayari Village.
Evidence of PW1 Aslam Patankar and that of the prosecutrix/PW2
also shows that the prosecutrix/PW2 was attending her school at
Kasba by undertaking to and fro journey by the State Transport
bus. PW1 Aslam Patankar has stated that though his daughter i.e.
the prosecutrix/PW2 had left the house at 7.00 a.m. on 5 th August
2014 for attending the school at Kasba, she did not return, and
therefore, after making inquiry on 6th August 2014 itself, he
lodged the First Information Report (FIR) Exhibit 13 with Police
Station Sangameshwar, by suspecting the appellant/accused. The
FIR at Exhibit 13 lodged by PW1 Aslam Patankar duly
corroborates his version to the effect that on 5 th August 2014, his
daughter i.e. the prosecutrix/PW2 went missing.
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17 It is in evidence of the prosecutrix/PW2 that she
boarded the State Transport bus on 5 th August 2014 at Village
Nayari for going to her school at Kasba, and at that time, the
appellant/accused was present in the bus. He threatened her with
dire consequences by uttering “तुझी वाट लािवन” and therefore, she
got scared. She, therefore, alighted the State Transport bus along
with the appellant/accused at Sangameshwar and had snacks
“Vada-pav” at Shastripool area, by going there in an autorickshaw
with the appellant/accused. Version of the prosecutrix/PW2
reveals that then by hiring another autorickshaw, she along with
the appellant/accused went to Sangameshwar Railway Station
and passed time till midnight as the train proceeding to Ratnagiri
was to arrive at midnight. The prosecutrix/PW2 further deposed
that then in the company of the appellant/accused, she boarded
the train from Sangameshwar at 2.30 a.m. of 6 th August 2014 to
reach Ratnagiri in the morning hours. Thereafter, by hiring an
autorickshaw, the couple went to the State Transport stand of
Ratnagiri and again indulged in passing time in company of each
other till evening of that day. Then, as stated by the
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prosecutrix/PW2, in the evening accompanied by the
appellant/accused, she went to the house of PW3 Salwa Shandar.
18 Evidence of PW3 Salwa Shandar shows that as mother
of the appellant/accused is her neighbour, she is acquainted with
the appellant/accused. As seen from evidence of PW3 Salwa
Shandar, on 6th August 2014, the appellant/accused came to her
house along with the girl, and therefore, she contacted the mother
of the appellant/accused, who requested her to allow the
appellant/accused to stay at her house.
19 The prosecutrix/PW2 as well as PW3 Salwa Shandar
are unanimous in stating that PW3 Salwa Shandar then requested
PW4 Diba Solkar to give shelter to the appellant/accused and the
prosecutrix/PW2 for that night. Evidence of PW3 Salwa Shandar
further shows that the prosecutrix/PW2 accompanied the
appellant/accused voluntarily to her house and despite trying to
convince her to go back, she refused. At that time, the
prosecutrix/PW2 was wearing a Mangalsutra and when she came
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to know that her parents were coming to the house of PW3 Salwa
Shandar, she insisted the appellant/accused to leave the house of
PW3 Salwa Shandar.
20 Evidence on record shows that in the night of 6 th
August 2014, the appellant/accused and the prosecutrix/PW2
took shelter at the house of PW4 Diba Solkar, who deposed that at
about 11.00 p.m. of 6th August 2014, the appellant/accused along
with the girl wearing Mangalsutra came to her house, and in the
night, they all slept in a hall together.
21 As against this, version of the prosecutrix/PW2 is to
the effect that in the night of 6 th August 2014, she along with the
appellant/accused slept in a separate room in the house of PW4
Diba Solkar, and in that night, the appellant/accused committed
penetrative sexual assault on her forcibly. The prosecutrix/PW2
further deposed that then at about 5.30 a.m. of 7 th August 2014,
she along with the appellant/accused came to the State Transport
stand of Ratnagiri, from where by boarding a train they went to
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Chiplun and stayed for the day at the State Transport stand of
Chiplun. Thereafter, they came back to Ratnagiri at 8.30 p.m. of
7th August 2014, when police accosted them and they were taken
to Sangameshwar Police Station. The prosecutrix/PW2 candidly
accepted the fact that at the time of penetrative sexual assault on
her by the appellant/accused, she did not raise any hue or cry and
it was the first time when there was penetrative sexual assault on
her. She did not call family members of PW4 Diba Solkar when
she was being molested. On the contrary, in the morning hours of
7th August 2014, by taking tea at the house of PW4 Diba Solkar,
she left it in the company of the appellant/accused.
22 The sequence of events unfolded from the evidence of
the prosecutrix/PW2, PW3 Salwa Shandar and PW4 Diba Solkar,
as such, goes to show that the appellant/accused and the
prosecutrix/PW2 were roaming at various places by using the
public transport system. They were spending the day time at
public places such as State Transport stand of Ratnagiri and
Chiplun and then in the night hours, both of them were either in
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the train or at the house of PW4 Diba Solkar, during this period, in
the company of each other. Even while proceeding from
Sangameshwar Railway Station to Ratnagiri on 5 th August 2014,
at Sangameshwar itself, the couple had snacks at the Vada-pav
stall of PW6 Ramesh Rahate and then they left for the Railway
Station of Sangameshwar, where they spent time till late night for
boarding the train. Thus, right from 5 th August 2014 till the
couple was accosted by the police at about 8.30 p.m. of 7 th August
2014, the prosecutrix/PW2 was having tons of opportunity to
make a hue and cry to extricate herself from the clutches of the
appellant/accused. She had ample opportunity to get herself
rescued by taking aid of the public at large available at the public
places, so also the police personnel available at the State
Transport stand as well as Railway station, during this period.
However, this did not happen. The prosecutrix/PW2 had not
disclosed the penetrative sexual assault on her either to PW4 Diba
Solkar or other members of her family, nor had disclosed the same
to her father PW1 Aslam Patankar, on return. Thus, this evidence
indicates that the prosecutrix/PW2 was deeply in love with the
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appellant/accused and as such, had joined his company and
indulged in roaming with him for three days, by eloping from her
house with her clothes on the pretext of going to school.
23 Now let us examine whether there is evidence to
conclude that there was penetrative sexual assault on the
prosecutrix/PW2 in the night intervening 6th August 2014 and 7th
August 2014. Though PW4 Diba Solkar has spoken that after
arrival of the couple in late night hours of 6 th August 2014, they
all slept in the hall of her house, the prosecutrix/PW2 has
candidly deposed that she along with the appellant/accused slept
in a separate room in the house of PW4 Diba Solkar. Nothing
could be elicited in cross-examination of the prosecutrix/PW2 to
disbelieve this version. Version of PW4 Diba Solkar regarding
sleeping in the common hall appears to be out of instinct of self-
reservation, as she had given shelter to the appellant/accused,
who was in company of a minor female child. Hence, no
overbearing importance can be given to such a statement of PW4
Diba Solkar. The prosecutrix/PW2 is very candid in stating that in
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the night intervening 6th August 2014 and 7th August 2014, at the
house of PW4 Diba Solkar, the appellant/accused had committed
penetrative sexual assault on her and it was the first such incident
in her life. As against this, evidence of PW10 Dr.Vaibhav Jadhav,
who examined the prosecutrix/PW2 on 8 th August 2014, is to the
effect that upon gynecological examination of the
prosecutrix/PW2, he found her hymen already ruptured and
perineum without injury. With this observation, PW10 Dr.Vaibhav
Jadhav had opined that the prosecutrix/PW2 had sexual
intercourse, but at present there were no injuries at her genital or
other body surface area, and that, no signs of forcible sexual
intercourse were found on person of the prosecutrix/PW2. This
evidence will have to be appreciated in the wake of history
narrated to PW10 Dr.Vaibhav Jadhav by the prosecutrix/PW2.
Evidence of PW10 Dr.Vaibhav Jadhav, on this aspect, is to the
effect that the prosecutrix/PW2 has disclosed to him that she was
having an affair with the appellant/accused since last one year
and they had first sexual intercourse two to three months prior to
the incident and then they had last sexual contact on 6 th August
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2014. This evidence of PW10 Dr.Vaibhav Jadhav went
unchallenged in the cross-examination and the same constitutes
proof of former statement made by the prosecutrix/PW2 to him,
which is admissible under Section 157 of the Evidence Act. The
cumulative effect of the evidence of the prosecutrix/PW2 and that
of PW10 Dr.Vaibhav Jadhav, as such, is to the effect that the
prosecutrix/PW2 was accustomed to sexual intercourse, as
reflected from the ruptured hymen as well as narrations of the
prosecutrix/PW2 to PW10 Dr.Vaibhav Jadhav. This explains
absence of signs of forcible sexual intercourse on her body.
Therefore, merely because there was absence of abrasion, bruises,
inflammation and swelling on the private part of the
prosecutrix/PW2 during the course of her medical examination
conducted after more than one and half day, it cannot be said that
she is deposing a lie about the penetrative sexual assault on her.
In every probability, the act of sexual intercourse must be
consensual, and resultantly, there were no signs of application of
force such as abrasion, inflammation, swelling etc. However, even
if the sexual intercourse between the appellant/accused and the
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prosecutrix/PW2, which took place in the night intervening 6 th
August 2014 and 7th August 2014, was with consent of the
prosecutrix/PW2, the same shall amount to penetrative sexual
assault, as the prosecutrix/PW2 was below 18 years of age and
was a child at the relevant time.
24 At this juncture, it is apposite to note that in the
matter of Bharwada Bhoginbhai Hirjibhai v
2
/s. State of Gujarat
the Hon’ble Apex Court has observed that rarely will a girl or a
woman in India make false allegations of sexual assault. The
Hon’ble Apex Court has given reasons for this observation and it is
apposite to quote few such reasons stated in the said judgment.
Those are –
(a) A girl or a woman in the tradition bound
non-permissive society of India would be
extremely reluctant even to admit that any
incident which is likely to reflect on her
chastity had ever occurred.
(b) The fear of being taunted by others will
always haunt her.
2 AIR 1983 Supreme Court 753(1)
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(c) She would feel extremely embarrassed in
relating the incident to others being
overpowered by a feeling of shame on account
of the upbringing in a tradition bound society
where by and large sex is taboo.
If these observations are kept in mind, then, version of the
prosecutrix/PW2 in cross-examination to the effect that the act of
penetrative sexual assault on her in the night intervening 6th
August 2014 and 7th August 2014 by the appellant/accused was
the first act, gets explained. Hence, no overbearing importance
can be given to this admission, given by the prosecutrix/PW2 in
her cross-examination.
25 In the result, it needs to be held that the prosecution
has successfully established that the appellant/accused had
committed the penetrative sexual assault of the prosecutrix/PW2
in the night intervening 6th August 2014 and 7th August 2014.
26 So far as quantum of sentence is concerned, the
learned advocate for the appellant/accused has placed reliance on
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the judgments of the Hon’ble Apex Court in the matters of –
(i) State of Madhya Pradesh vs. Basodi 3, (ii)State of Himachal
Pradesh vs. Mange Ram4, (iii) Satinath s/o. Maniknath Raut
vs. State of Maharashtra5, (iv) Zindar Ali SK vs. State of West
Bengal Anr.6, (v) Raju vs. State of Karnataka 7, (vi) Phul
Singh vs. State of Haryana8, (vii)Padam Bahadur Darjee vs.
State of Sikkim9, (viii) State of Rajasthan vs. N.K.10 and
submitted that considering the fact that the act was consensual,
sentence imposed on the appellant/accused be reduced.
27 Section 4 of the POCSO Act provides for punishment
for penetrative sexual assault. The minimum sentence is that of 7
years and the same can extend up to imprisonment for life. In the
case in hand, the learned trial court had sentenced the
appellant/accused for rigorous imprisonment for 7 years. Section
4 of the POCSO Act does not provide for reducing the minimum
3 2009 ALL MR (Cri) 3470 (S.C.)
4 2000 CRI.L.J. 4027
5 2010 ALL MR (Cri) 3484
6 2009 CRI.L.J.1324
7 1994 CRI.L.J. 248
8 1980 CRI.L.J. 8
9 1981 CRI.L.J. 1317
10 2000 CRI.L.J. 2205
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sentence prescribed therein, even if there are special reasons.
Therefore, I am unable to accept the contention of the learned
advocate for the appellant/accused that taking aid of the rulings
cited by him, which relates to the provisions of Section 376 of the
Indian Penal Code for awarding lesser sentence for adequate and
special reasons, sentence imposed on the appellant/accused needs
to be reduced further. The learned trial court has awarded bare
minimum sentence to the appellant/accused, which cannot be
interfered with.
28 In the result, the appeal fails and the same is
dismissed.
29 Consequently, the criminal application also stands
rejected.
(A. M. BADAR, J.)
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