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Fahad Mustaq Patankar vs The State Of Maharashtra on 7 February, 2018

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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