901-cri. appeal-538-2017.odt
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.538 OF 2017
Ganesh Kisan Navale ]
Age: 30, ]
Occupation : Driver, ]
Residing at Navlewadi, Pimpri ]
Pendhar, Tal. Junnar, Dist. Pune. ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
(At the instance of Otur Police ]
Police Station C.R. No.1/14) ] Respondent
…..
Mr. Shailesh Kharat, for the Appellant.
Mr. A.A. Palkar, Additional Public Prosecutor-State.
…..
CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 9TH JANUARY, 2020.
PRONOUNCED ON: 16TH JANUARY, 2020.
JUDGMENT:
Aggrieved with the impugned judgment of conviction
rendered by the Special Judge under the provisions of the
Protection of Children from the Sexual Offences Act, 2012 (for
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short ‘POCSO’) at Khed, Rajguru Nagar, District. Pune on 25 th
April, 2017, the appellant has preferred this appeal amongst
following facts and grounds.
2. It was the first day of the year 2014 when the
prosecutrix who was admittedly aged about 11 years and studying
in 5th standard had gone to attend the School at 9.30 a.m. Around
4.00 p.m, her teacher P.W.5 telephonically called mother of the
prosecutrix. When mother of the prosecutrix i.e P.W.1 reached the
School around 4.30 p.m, it was informed that the prosecutrix came
late on that day. On being asked the reason as to why she was late,
the prosecutrix stated that she was taken by the appellant to a place
and committed sexual assault on her. He thereafter dropped her at
the School. It is alleged that the appellant lured the prosecutrix
under the pretext of giving her sweet and took her to a secluded
place at Mangwada on his motorbike. He removed her clothes and
thereafter moved his hand on her person. He inserted his finger in
her vagina and then touched his penis to her vagina. As the
prosecutrix shouted, the appellant asked her not to get scared and
that he would drop her in the School. He asked her to put on the
clothes. The appellant thereafter dropped the prosecutrix at her
School. P.W.1-mother of the prosecutrix went to Otur Police
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Station and lodged a report against the appellant. A crime bearing
No.1 of 2014 came to be registered against the appellant.
3. P.W.7-Maruti Ghungurkar then P.S.I attached to Otur
Police Station held investigation into the crime. He arrested the
appellant. He referred the prosecutrix to Sassoon Hospital for
medical treatment and examination. He seized the clothes of the
appellant. He drew Panchanama in respect of seizure of clothes of
the appellant.
4. On 3rd January, 2014, Investigating Officer seized
clothes of the prosecutrix under a Panchanama. He visited the spot
of occurrence of crime on 4th January, 2014 and drew a spot
Panchanama in the presence of Pancha witnesses.
5. Pursuant to a statement voluntarily made by the
appellant in the presence of Panchas, motorbike alleged to have
been used in the commission of the offence came to be discovered
at the instance of the appellant. The said motorbike was seized
under a Panchanama. The Investigating Officer had collected
medical certificate of the prosecutrix from Sassoon Hospital, Pune.
He had also collected certificate from the School of the prosecutrix
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regarding proof of her age. Statement of the prosecutrix under
section 164 of the Code of Criminal procedure, 1973 (for short ‘Cr.
P.C’) came to be recorded by J.M.F.C, Junnar. Seized Muddemal
was sent for chemical analysis on 21st January, 2014. After
investigation, he laid a charge-sheet against the appellant.
6. The appellant appeared before the Special Judge on
17th November, 2014. The learned Special Judge framed a charge
in terms of Exhibit 4 under section 376 of the Indian Penal Code
as well as under sections 4,6,8 and 10 of the POCSO Act. It was
read over and explained to the appellant in vernacular to which he
pleaded not guilty and claimed a trial. The defence of the appellant
as emerged from the line of cross-examination as well as from his
statement under section 313 of the Cr. P.C is denial of commission
of the offence alleged as well as false implication on account of a
civil dispute, in the sense, despite request from father of the
prosecutrix, the appellant refused to cultivate the land of the
prosecutrix’s father by means of his tractor. It is contended that the
parents of the prosecutrix had a grudge against the appellant.
7. No defence evidence has been adduced on behalf of
the appellant.
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8. In order to substantiate the charge, prosecution
examined as many as eight witnesses and tendered a few
documents which have been duly proved and exhibited by the
Court.
9. The learned Special Judge having considered the
evidence of the prosecution and after hearing the respective sides,
by the impugned judgment and order convicted and sentenced the
appellant. The learned Special Judge accepted the testimony of the
prosecutrix which has been duly corroborated from other
circumstantial evidence on record coupled with the medical
evidence adduced by the prosecution. The learned Special Judge
disbelieved the defence of the appellant. After considering the
evidence on record as well as case law pressed into service on
behalf of the appellant, the learned Special Judge, by the impugned
judgment and order convicted the appellant.
10. I heard Mr. Shailesh Kharat, learned Counsel for the
appellant. With the assistance of the learned Counsel for the
appellant, I have gone through the evidence of prosecution
witnesses as well as the impugned judgment. It is submitted by the
learned Counsel for the appellant that there is variance inasmuch as
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the statement of the prosecutrix recorded under section 164 of the
Cr. P.C and her testimony in the box is concerned. The learned
Counsel for the appellant, while assailing the impugned judgment,
vehemently argued that this is the case which is totally based on
falsehood and there is absolutely no convincing evidence to place
reliance upon the testimony of the prosecutrix as, according to the
learned Counsel, if she had gone to the house of her friend, which
she deposed in her examination-in-chief, then there is neither any
statement nor her friend has been examined as a witness by the
prosecution. Evidence of the prosecutrix that she had been to her
friend’s house is absolutely false. It is submitted that the appellant
was shown to have been arrested on 2nd January, 2014 as per the
version of P.W.7. If that being so, why he was not arrested when
he had been to the Police Station along with prosecutrix and her
mother-P.W.1? This according to the learned Counsel indicates the
innocence of the appellant. Had he been guilty, he would have
absconded from the Village. Learned Counsel has also questioned
the alleged recovery of the motorbike, as according to him, the
prosecution has failed to establish that the said bike in fact belongs
to the appellant. There is no evidence of the Road Transport
Department to establish the ownership of the said bike qua the
appellant.
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11. The learned Counsel has drawn my attention to the
cross-examination of P.W.1 which indicates that the appellant
refused cultivation of their land and, therefore, it can be safely
inferred that due to such dispute, he had been falsely implicated.
12. On the aspect of injuries to the victim, the learned
Counsel contends that if it is the case of forcible sexual assault by
30 years old male upon an eleven years old girl, there ought to
have been serious injuries to the private part or to the other parts of
her body. There is even absence of traces of semen on the private
part of the prosecutrix. The learned Counsel drew my attention to
the fact that there were no injuries over the labia majora and labia
minora of the prosecutrix. Hymen was torn completely and old
healed tears were present. Had there been a full-fledged sexual
intercourse, there would have been stains of semen on the clothes
or private parts of the prosecutrix and, therefore, in the absence of
such evidence, it is doubtful whether there was any such act
alleged to have been committed by the appellant.
13. Learned Counsel for the appellant questioned the
veracity of the evidence of P.W.3-Jayasing Pote who acted as a
Panch witness. It is contended that he is an interested witness for
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the reasons that on the date of reporting the matter to the Police
itself the Panchanama could have been drawn but it was delayed by
four days.
14. As such, the learned Counsel has prayed for quashing
the impugned judgment and order of conviction and acquitting the
appellant of all the charges under which he came to be convicted.
15. Per contra, the learned Additional Public Prosecutor
also took me through the evidence of the prosecutrix and other
witnesses, more particularly, through the evidence of P.W.6-Dr.
Uma Wankhde. It is submitted that P.W.6-Dr. Uma Wankhde being
an independent witness has rightly opined that the hymen of
prosecutrix was completely torn. There were old healed tears
present. The final opinion of Dr. Saumya B.G was that there was
evidence of penetrative vaginal sexual intercourse. The learned
Additional Public Prosecutor has supported the impugned
judgment.
16. P.W.1 is the mother of prosecutrix. She testified that
on 1st January, 2014, the prosecutrix had gone to School at about
9.30 a.m. Around 4.00 p.m, P.W.1 received a call from P.W.5 who
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is the prosecutrix’s teacher. When P.W.1 visited the School around
4.30 p.m, she came to know about the incident from P.W.5 and the
prosecutrix. The prosecutrix narrated the incident that around 3.00
p.m, the appellant took her on his motorbike under the pretext of
offering her sweet. He took her to a sugarcane field at Mangwada.
He made her lie on the ground. He removed his clothes as well as
her clothes and raped her. Thereafter, the appellant left her near the
School. P.W.1, therefore, immediately approached Otur Police
Station along with P.W.5 and others and lodged a report against the
appellant which is proved at Exhibit 16. The prosecutrix was
referred to Sassoon Hospital, Pune for medical examination. P.W.1
had duly identified a shirt, frock-cum-slip and nicker of the
prosecutrix which was shown to her during the trial as Articles-1,
2 and 3.
17. Nothing could be elicited in her cross-examination
which would render her testimony unworthy of the credit.
Undisputedly, the prosecutrix’s father is a cousin of maternal uncle
of the appellant. As such, the prosecutrix is appellant’s cousin. It
is also not in dispute that the appellant is a Tractor Driver who used
to plough fields. It is sought to be suggested to P.W.1 that as the
appellant refused to plough the field of the prosecutrix’s father,
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they were on cross terms which the witness has categorically
denied. Merely because P.W.1 admits that the appellant refused to
cultivate their field despite request of her husband, it cannot be
inferred that they had wrath against the appellant. The defence, as
already stated hereinabove, is of false implication due to the
refusal on the part of the appellant to cultivate the land of the
prosecutrix’s father. I shall deal with the so-called defence of the
appellant in the subsequent paragraphs.
18. Suffice it to say that even though the testimony of
P.W.1 is hearsay, yet it is relevant in view of section 6 of the Indian
Evidence Act, 1872 (for short ‘Evidence Act’).
19. The testimony of P.W.2-(prosecutrix) indicates that her
date of birth is 19th February, 2013 and she was studying in 5th
standard in a School-X. P.W.5 was her class teacher. The
prosecutrix used to attend the School from 10.00 a.m to 5.00 p.m.
There were recess between 2.00 p.m and 3.00 p.m. On the day of
the incident, she testified that she went to the house of her friend.
The appellant came near the temple of Muktabai on a motorbike
and asked her to occupy pillion seat as he promised her to offer
some sweet. He then took her in the field of sugarcane at
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Mangwada and committed sexual assault upon her. Thereafter, she
returned to School and narrated the incident to P.W.5. P.W.5
thereafter informed P.W.8-Headmaster of the School who
immediately called the Police and her parents at the School. This
is the evidence of the prosecutrix. She had identified her frock-
cum-slip and nicker which are at Article-1,2 and 3, which were on
her person at the time of the incident. She has also testified as
regards recording her statement by the Judicial Magistrate First
Class, Junnar in the month of March, 2014. She was examined at
Sassoon Hospital, Pune.
20. A very searching cross-examination of the prosecutrix
came to be conducted on behalf of the appellant. In the light of the
fact that the appellant is the cousin of the prosecutrix, it was
obvious that she would trust and would accompany him as he had
promised her to offer some sweets. It is sought to be suggested
that on the date of the incident at about 3.00 p.m, she had gone to
the School without school bag with her classmate “P” (girl) to meet
one Vaibhav Pote. One thing is clear that the prosecutrix was not
at School after the recess and was outside. It is not the case of the
defence that the prosecutrix was at the School from 10.00 a.m to
5.00 p.m. She has denied the suggestion that there was a quarrel
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between the appellant and her father, four to five days prior to the
incident on account of refusal by the appellant to cultivate their
field. She had also denied the suggestion that spot panch-Jayasingh
Pote assaulted the appellant at the Police Station. Her cross-
examination reveals that when she returned to School, she was
scolded by P.W.5 as she arrived late. This also substantiates the
fact of her absence from the School after recess. The defence has
tried to bring out on record certain omissions in respect of her
statement recorded by the J.M.F.C under section 164 of the Cr. P.C,
which, cannot, per say, be called as omissions.
21. Now, it would be essential to go through the evidence
of P.W.5- the class teacher of the prosecutrix. Her evidence
indicates that on 1st January, 2014, the prosecutrix had attended the
School. There were recess at about 2.50 p.m. During recess, the
students had left their classrooms. However, after recess, the
prosecutrix was not found in the School. After recess, when
another teacher was teaching Science subject to ‘B’ Division of 5 th
standard and P.W.5 was teaching Mathematics to ‘A’ Division of
5th standard, the prosecutrix came running to the School from
outside. On being asked as to where she had been, she started
crying. On hearing her cry, another lady teacher came to the
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ground and asked the prosecutrix as to why she came late.
However, the prosecutrix continued crying and then after some
time, she told that she was lured by the appellant by saying that he
will give her sweet. He took her to Mangwada on his motorbike
and committed sexual assault upon her.
22. P.W.5 immediately took the prosecutrix to P.W.8- the
Headmaster. The incident was narrated to the Headmaster also by
the prosecutrix and thereafter P.W.8-Headmaster telephonically
called the parents of the prosecutrix and also the appellant. All of
them came to the School. It is important to note that the appellant
had left his motorbike-Bajaj M-80 in the School and ran away.
P.W.5 further testified that the appellant was frightened. The
Headmaster, therefore, immediately called the Police on phone.
The Police Personnel of Otur Police Station came to the School
and inquired the prosecutrix. The Police took the prosecutrix and
her parents to the Police Station. On the following day, statement
of P.W.5 was recorded.
23. This is what is the evidence of P.W5 which
corroborates the testimony of the prosecutrix in material
particulars. The defence has made an unsuccessful attempt to rebut
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the testimony of P.W.5. Interestingly, in the cross-examination, it
has been surfaced that there were scratches on the hands of the
prosecutrix and leaves of Tamarind tree were found on her hair
which substantiates the fact to a considerable extent that during
recess she had been to a place where there was a chance of getting
scratches over her hand and also leaves of Tamarind tree which
were found in her hair.
24. Astonishingly, the appellant very cleverly
accompanied P.W.1 to the School as if to show that he is an
innocent person, however, when the prosecutrix named him, he
escaped from the School. The appellant, perhaps, had not expected
that the prosecutrix would expose him before her mother and the
School Authorities. This conduct on the part of the appellant, in
the given circumstances, is quite relevant as per section 8 of the
Evidence Act. Otherwise, there was no reason for him to escape by
leaving his motorbike behind.
25. It is pertinent to note that when the appellant was
asked a specific question i.e question No.25 in his statement under
section 313 of the Cr.P.C that he left his Bajaj M-80 motorbike in
the School premises and ran away as he was frightened, he
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answered that it is false. Despite an opportunity to deny the
ownership of the bike, the appellant failed to give any plausible
explanation which is also a strong circumstance which can be
pitted against him.
26. P.W.8 is the Headmaster of the School and had
produced the original general register maintained by the School in
order to prove the factum of date of birth of the prosecutrix as 19 th
February, 2013 which is proved at Exhibit 50.
27. The next important witness is P.W.6-Uma Wankhde,
who was working as a Professor in Sassoon Hospital, Pune. She
testified that post graduate students studying in B.J. Medical
College used to examine the victims of rape and sexual assault
cases under her supervision. Dr. Saumya was a student of the said
College doing post graduation in Gynecology and was a student of
Dr. Wankhde. Dr. B.G. Saumya examined the prosecutrix on 2 nd
January, 2014 at 10.00 p.m. The prosecutrix was accompanied
with her mother. The prosecutrix’s case history was that on 1st
January, 2014 around 3.00 p.m, the appellant took her to a farm
and attempted vaginal intercourse. Thereafter, her parents lodged a
report. It reveals from the evidence of Dr. Uma Wankhde that on
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examination of the prosecutrix by Dr. Saumya, it was noticed that
the hymen was torn completely, old healed tears were present. The
final opinion rendered by Dr. Saumya was that there was evidence
of penetrative vaginal sexual intercourse. A medical certificate
issued by the said Doctor is proved at Exhibit 35.
28. I have meticulously perused the medical certificate
(Exhibit 35) which is signed by Dr. Saumya and is in her
handwriting. It depicts the name of P.W.1 as well as her left hand
thumb impression. It also bears left hand thumb impression of the
prosecutrix. After narrating the history, as stated hereinabove, the
certificate indicates that after taking her to the nearby farm, the
appellant had removed his pant, removed her under garments, slept
over her and licked her external genitals and attempted forceful
vaginal sexual intercourse. When she cried for help, he forcibly
covered her mouth and threatened her not to tell anyone. The
certificate further reveals that the hymen was torn completely and
old healed tears were present. The final opinion rendered by Dr.
Saumya is that after taking into consideration history and medical
examination, there was evidence of penetrative vaginal sexual
intercourse. However, there was no evidence of any injury on any
part of the body. It can thus be seen that since hymen was
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completely torn and there were old healed tears, there was no
question of any evidence of injury, nevertheless, it is quite clear
that there was a penetrative vaginal sexual intercourse.
29. While cross-examining the expert, defence has
elicited on record the precautions to be taken while examining a
victim of rape about which there can be no dispute. Dr. Uma
Wankhde has candidly admitted that it is necessary to mention the
intercourse habits, vaginal discharge, infection, pregnancy,
operation and menstruation history of the prosecutrix. Merely
because there is no such mention in Exhibit 35, would not render
the otherwise cogent and trustworthy evidence of this witness
unbelievable. I fail to understand as to why defence has put a
question as to whether during intercourse labia majora may touch
with male organ which is quite obvious. It has further been
substantiated that labia majora and labia minora of the victim were
found healthy with no marks of injury about which I had already
stated that since the hymen was already found torn with old healed
tears, there was no question of injury marks or active bleeding.
30. The testimony of the prosecutrix is fully corroborated
by the evidence of this witness which inspires confidence. There is
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absolutely no reason to disbelieve the evidence of both the
prosecutrix and the expert on the aspect of penetrative vaginal
sexual intercourse with the prosecutrix. In view of section 114 (A)
of the Evidence Act, there is no question of presumption of absence
of consent. Nevertheless, in the case at hand, since the prosecturix
was a child within the meaning of section 2 (d) of the POCSO Act
coupled with section 29 of the said Act, it has to be presumed that
the appellant had committed or attempted to commit the offence of
penetrative sexual assault upon her. In view of clause (a) of
section 3, penetration of the penis to any extent into the vagina,
mouth, urethra or anus of a child is sufficient to constitute an
offence under the said section. Though the prosecutrix had not
testified that the appellant licked her external genitalia while
narrating the history to P.W.6-Dr. Uma Wankhde, she did state
before the Doctor that the appellant licked her external genitalia,
which otherwise would have attracted clause (d) of section 3 which
contemplates that if a person applies his mouth to the
penis/vagina/anus or urethra of the child or makes the child to do
so then it also constitutes the offence of penetrative sexual assault.
In the absence of specific evidence to that effect, it would not be
proper to hold that the appellant had also committed an offence as
contemplated in clause (d) of section 3. Be that as it may.
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31. Another important witness is P.W.3-Jayasing Pote who
acted as a Panch witness qua the spot Panchanama-Exhibit 23 and
the memorandum Panchnama under section 27 of the Evidence Act
Exhibit 24. In substance, it is the evidence of this witness that on
4th January, 2014, he was called at Otur Police Station and,
therefore, he had been to the Police Station around 12.30 p.m.
Another Panch Rohidas Kute accompanied him. Some members of
Dakshta Committee along with the prosecutrix and her mother
were present. The prosecutrix had shown the spot which was in
the sugarcane field. It was a vicinity of Matang Community.
Accordingly, panchanama of the spot was drawn by the Police
which is at Exhibit 23. P.W.3- Jayasingh Pote has identified his
signature as well as contents thereof.
32. His evidence further reveals that on the same day
around 3.00 p.m to 3.15 p.m, when he was present at the Police
Station along with Rohit Kute, the appellant voluntarily made a
statement that he would show the place where he had parked his
motorbike. Accordingly, a memorandum was drawn which is
proved at Exhibit 24. The appellant thereafter led the Police team
and panch witness in a government vehicle to Village Pimprai-
Pendhar on the playground of the School of the prosecutrix. They
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alighted from the vehicle. The appellant had shown the red
coloured motorbike. The said bike was duly seized under a
panchanama by the Police and affixed signed labels thereon. The
said Panchanama is at Exhibit 25. A futile attempt has been made
in the cross by the defence. It has been reiterated that P.W.5-
Jayasing Pote had learnt about incident on 1st January, 2014 itself.
He denied a suggestion that he had slapped the accused at the
Police Station on that day. Even if it is presumed for a moment
that this witness knew about incident on the very day it occurred
and that even he had slapped the appellant, it would not render his
evidence unbelievable, for, he acted as a panch witness at the
request of the Police and also in view of the fact that he was not
related to the prosecutrix or her family. It has been categorically
brought out that he was summoned at the Police Station by the
Police through the Village Kotwal-Sunit Tapase.
33. Interestingly, the defence has not suggested either to
this witness or to the Investigating Officer P.W.7 that the motorbike
in question does not belong to the appellant. The voluntary
statement of the appellant that he discovered the fact of his
motorbike being parked at a particular place is relevant in the given
circumstances. Indeed, the said fact as to where the motorbike was
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kept was within the exclusive knowledge of the appellant as it has
already been discussed that when his misdeed was exposed, he ran
away from the School by leaving it behind. The prosecution has
succeeded in connecting the motorbike discovered by the
appellant, voluntarily, to the fact that it was used by him while
enticing the prosecutrix under the pretext of offering sweet and
then exploiting her sexually. Connection between the offence and
the motorbike discovered is established by the evidence other than
the discovery statement made by the appellant leading to the
discovery of the said fact. The prosecution has succinctly
established and proved the source of information which is related
distinctly to the fact which was discovered at the instance of the
appellant. It is not the suggestion of the defence that the statement
of the appellant was obtained under compulsion, duress or some
influence. Once the fact that the vehicle was used by the appellant
in connection with the crime, it was incumbent on his part to
discharge onus of showing that neither the said bike belongs to him
nor was it used for carrying the prosecutrix to the spot of the
incident.
34. The evidence as regards discovery of fact by the
appellant has also been reiterated by P.W.7- Maruti Ghungurkar.
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P.W.7 did not know whether there was any dispute between the
appellant and the prosecutrix’s father on account of cultivation of
land. He had also denied a suggestion that there was an incident of
quarrel between the appellant and father of the prosecutrix five to
six days prior to the incident. Merely because this witness did not
inquire with the Registration Authority about ownership of the
motorbike (Bajaj M-80) bearing Registration No. MH-14/U/8715,
it does not mean that no such vehicle was used by the appellant and
seized by the Police. As a matter of fact, the Investigating Officer
ought to have collected the documentary evidence from registration
office qua ownership of the bike. This flaw in the investigation
would not be a blessing in disguise to the appellant in view of what
has been discussed hereinabove as regards discovery of fact at his
instance.
35. Anand Bhimaji Vethekar has been examined as P.W..4
by the prosecution in whose presence the Police had seized
underwear of the appellant and wrapped in a brown paper which he
identified as Article-4 during the trial. It’s panchanama is proved
at Exhibit 27. Similarly, he acted as a panch witness in so far as
clothes of the prosecutrix are concerned which are at Articles-1,2
and 3 and proved at Exhibit 28.
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36. The report issued by Regional Forensic Science
Laboratory Pune is at Exhibit 41 to 43. Exhibit 41 pertains to a
sealed envelope received intact by the laboratory containing blood
and semen samples of the appellant. The result of the analysis is
that the blood of the appellant in Exhibit 1 and 2 is haemolysed,
hence was inconsiderable for grouping. The blood group in
Exhibit 3 could not be determined as the results were inconclusive.
37. Exhibit 42 is in respect of clothes of the prosecutrix.
The chemical analyzer could notice neither semen nor blood over
the clothes. Exhibit 43 is in respect of examination of vaginal
swab, nail clipping and the blood of the prosecutrix. No blood was
detected on Exhibits 1 and 2 i.e vaginal swab and vaginal smear
which is quite obvious in view of the fact that it is not the case of
the prosecution or the evidence of the prosecutrix that while
committing penetrative sexual assault, the appellant had
discharged. It is quite clear from the evidence, more particularly
from the evidence of P.W.6- Dr. Uma Wankhde that there was a
penetrative vaginal sexual intercourse as the appellant had, to some
extent, penetrated the penis.
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38. It would be apposite to refer the judgment of the
Supreme Court in the case of Santosh Moolya Vs. State of
Karnataka, 2010 (2) Bombay Criminal Cases 718 (SC) wherein
it is observed as under:
“Any statement of rape is an extremely
humiliating experience for a woman and until
she is a victim of sex crime, she would not
blame anyone but the real culprit. While
appreciating the evidence of the prosecutrix,
the Courts must always keep in mind that no
self-respecting woman would put her honour at
stake by falsely alleging commission of rape
on her and, therefore, ordinarily a look for
corroboration of her testimony is unnecessary
and uncalled for”.
Here, in the case at hand, not only the prosecutrix who came cried
before the teachers, narrated about a horrific incident but it was
also stated by her mother before the Police while lodging the
report. The prosecutrix and P.W.1 had no reason to falsely
implicate the appellant in this case.
39. The learned trial Judge has, therefore, placed reliance
on a judgment of the Hon’ble Supreme Court in the case of State
of Maharashtra Vs. Chandraprakash Kewalchand Jain, 1990
(1) Supreme Court Cases 550 wherein the Supreme Court
observed thus;
“A prosecutrix of a sex offence cannot be put on
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901-cri. appeal-538-2017.odtof the crime. The evidence Act nowhere says
that her evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under section
118 and her evidence must receive the same
weight as is attached to an injured in cases of
physical violence. The same decree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured
complainant or witness and no more. What is
necessary is that the court must be alive to and
conscious of the fact that it is dealing with the
evidence of a person who is interested in the
outcome of the charge levelled by her. If the
Court keeps this in mind and feels satisfied that
it can act on the evidence of the prosecutrix,
there is no rule of law or practice incorporated
in the Evidence Act similar to illustration (b) to
Section 114 which requires it to look for
corroboration. If for some reason the court is
hesitant to place implicit reliance on the
testimony of the prosecutrix it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of
the prosecutrix must necessarily depend on the
facts and circumstances of each case. But if a
prosecutrix is an adult and of full understanding
the court is entitled to base a conviction of her
evidence unless the same is shown to the infirm
and not trustworthy. If the totality of the
circumstances appearing on the record of the
case disclose that the prosecutrix does not have
a strong motive to falsely involve the person
charged. The Court should ordinarily have no
hesitation in accepting her evidence”.
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40. Upon considering the evidence on record and the
findings arrived at by the trial Court, I am of the view that the
impugned judgment and order of conviction does not warrant
interference in appeal except conviction of the appellant under
section 376 (f) (i) of the Indian Penal Code by which he has
been sentenced to undergo rigorous imprisonment for ten years
and fine of Rs.1,000/-, in default, rigorous imprisonment for
two months in view of section 42. Section 42 and 42-A of the
POCSO Act read as follow;
42. Alternate punishment.- Where an act or
omission constitutes an offence punishable under
this Act and also under sections 166-A, 354-A, 354-
B, 354-C, 354-D, 370, 370-A, 375, 376, [376-A,
376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB]
[376-E], section 509 of the Indian Penal Code (45
of 1860) or section 67-B of the Information
Technology Act, 2000 (21 of 2000) then,
notwithstanding anything contained in any law for
the time being in force, the offender found guilty of
such offence shall be liable to punishment under
this Act or under the Indian Penal Code as provides
for punishment which is greater in degree”.
“42-A. Act not in derogation of any other law.-
The provisions of this Act shall be in addition to
and not in derogation of the provisions of any other
law for the time being in force and, in case of any
inconsistency, the provisions of this Act shall have
overriding effect on the provisions of any such law
to the extent of the inconsistency”.
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The trial Court has convicted the appellant under section 3 of the
POCSO Act punishable under section 4 of the said Act. The
appellant has also been convicted and sentenced of an offence
punishable under sections 6 and 10 of the said Act.
41. The punishment under the POCSO Act is not greater
than what has been provided under section 376 but the sentence is
of the same description i.e 10 years. The provisions of the said Act
are in addition to and not in derogation of the provisions of any
other law in case there is any inconsistency between the two Acts.
Thus, the sentence awarded to the appellant under section 376 (f)
(i) is set aside. The fine amount of Rs.1,000/- be refunded to the
appellant, if already paid.
42. Consequently, the appeal is dismissed in the aforesaid
terms. Order as regards disposal of Muddemal property is
maintained.
[PRITHVIRAJ K. CHAVAN, J.]
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