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Judgments of Supreme Court of India and High Courts

Ganesh S/O Bhagwan Khadse vs State Of Mah. Through P.S.O. P.S … on 8 January, 2019

1 APEAL296.18.odt

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

CRIMINAL APPEAL NO. 296 OF 2018

APPELLANT : Ganesh Bhagwan Khadse
Aged about 35 years, Occu. Service,
R/o Qtr. No.2, P.H.C. Bhisi, Tq. Chimur
District Chandrapur

VERSUS

RESPONDENTS : State of Maharashtra,
through Police Station Officer,
Police Station, Bhisi, Taq. Chimur
District Chandrapur.

—————————————————————————————————-
Mr. R. M. Daga with Mr. Mahesh Rai, Advocates for the appellant.
Mr. Nitin S. Rao, A. P. P. for respondent/State
—————————————————————————————————-

CORAM : V. M. DESHPANDE, J.

DATE : JANUARY 08, 2019.

ORAL JUDGMENT

1. The present appeal questions the correctness of the

judgment and order of conviction passed by the learned Special

Judge, Warora dated 29.12.2017 in Special (POCSO) Case No.

15/2016. By the impugned judgment, the Court below convicted the

appellant for the offence punishable under Section 376(2)(i) of the

Indian Penal Code and also under Section 3 punishable under

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Section 4 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as “the POCSO Act” for short).

Though, on two counts the appellant found to be guilty by the Court

below, the learned Judge of the Court below inflicted punishment

only for the offence punishable under Section 376(2)(1) of the

Indian Penal Code to suffer rigorous imprisonment for Ten years and

to pay a fine of Rs.5,000/- and in default of payment of fine to suffer

rigorous imprisonment for six months.

2. In short, the prosecution case is that API Siddhanand

Mandavkar (PW11) when was posted at Police Station, Bhisi,

recorded the oral report of victim (PW1). The oral report is dated

12.05.2016 and it is at Exh.20. On the basis of that, PW11

Mandavkar registered the offence against the appellant vide Crime

No. 110/2016. The printed first information report is at Exh.21. As

per the first information report, the victim used to visit Primary

Health Centre, Bhisi whenever she was not keeping good health.

Therefore, she was knowing the employees there. She was knowing

Ganesh Khadse, the appellant, by his name as also by his face. He is

also known to her brother. It is stated in the first information report

that prior to seven months when the first informant had been to the

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Primary Health Centre, Bhisi for taking medicine, that time the

appellant demanded Science book of 8 th standard and the said was

given by the first informant and since then it was with the appellant.

The first information report further states that on

09.5.2016 at about 11.00 O’clock, she received a phone call from the

appellant by which it was informed that the science book , which was

with him, should be collected from him. Therefore, she went to

Primary Health Centre. At that time, though, the appellant was

present there, he told her that the book is in his residential quarter.

Therefore, he called her at his quarter. In the quarter, according to

the first information report, when the victim told that she is not

feeling well, on the guise of checking her pulses, he forcibly

committed sexual intercourse with the victim.

3. After registration of the crime, PW11 Mandavkar visited

the spot of occurrence and the spot panchanama was drawn in

presence of panch PW3 Premanand Ramteke. The spot panchanama

is at Exh.30. He also sent the victim for her medical examination

under requisition (Exh.55). The Investigating Officer also seized the

medical documents as well as samples of blood, semen, pubic hairs

of the victim from WPC Jayashree Gurnule under seizure memo

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(Exh.33) in presence of PW5 Sanjay Choudhari. Under arrest

panchanama (Exh.56), the appellant was arrested. He was sent for

his medical examination. PW9 Dr. Sahas Bedale examined the

appellant and gave medical certificate (Exh.47) of the appellant. He

also seized the blood, public hairs of the appellant under seizure

memo (Exh.56). The under garments of the victim were seized

under seizure memo (Exh.24). Under seizure memo (Exh.59), the

Investigating Officer seized one bed sheet and one nicker from the

spot. By requisition (Exh.60), the seized properties were sent to the

Chemical Analyzer for chemical analysis through PC Dhanraj Kodape

under Duty Pass (Exh.61). Similarly, the clothes of the appellant as

well as the victim were also sent to the Chemical Analyser. After

completion of the investigation by PW10 Virsen Chahande, this

prosecution witness filed the charge-sheet in the Court of law.

4. The Court below framed the Charge against the

appellant for the offence under Section 5(e) punishable under

Section 6 of the Protection of Children from Sexual Offences Act,

2012 and for the offence punishable under Section 376(2)(e) (i) of

the Indian Penal Code. The appellant denied the charge and claimed

for his trial. In order to bring home the guilt of the appellant, the

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prosecution has examined in all Eleven witnesses and also relied

upon various documents, which were duly proved during the course

of the trial. After appreciation of the prosecution case, the Court

below was of the opinion that the prosecution is successful in

bringing home the guilt of the appellant and accordingly convicted

him as observed in the opening paragraph of the judgment. Hence,

this appeal.

5. I have heard Mr. R. M. Daga with Mr. Mahesh Rai, the

learned counsel for the appellant and Mr. N. S. Rao, the learned

Additional Public Prosecutor for the State. With their able assistance,

I have perused the record and proceedings.

6. It is the submission of Mr. Daga, the learned counsel for

the appellant that the prosecution case comes under the clouds of

suspicion since there is a delay of three days, which according to the

learned counsel, is not properly explained. It is also his submission

that the prosecution has not proved the incident of forcible sexual

intercourse by the appellant. It is his submission that the learned

Court below has failed to admit a document in evidence, though it

was admissible under Section 58 of the Indian Evidence Act, 1872.

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He also submitted that in absence of any external injuries on the

person of the victim, when it is the case of the prosecution that the

appellant applied force, belied the prosecution version, which

according to the learned counsel, does not inspire confidence. He

also submitted that there is no final medical opinion on record to

show that the victim girl was subjected to sexual assault. He,

therefore, submitted that the appeal be allowed.

7. Per contra, Mr. Rao, the learned Additional Public

Prosecutor for the State would submit that by placing on record

Exh.66 and by examining PW12 Rajesh Yewle, Village Development

Officer, the prosecution has proved the date of birth of the victim i.e.

10.8.2000. The incident has occurred on 09.5.2016. Therefore, the

victim girl was a “Child” within the meaning of the provisions of the

POCSO Act. He also submitted that the delay is properly explained

by the victim in her report itself. He submitted that the Court below

has supplemented good reasons for convicting the appellant and

therefore, it is his submission that the appeal be dismissed.

8. During the course of the trial, the appellant was charged

for the offence under Section 5(e) punishable under Section 6 of the

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POCSO Act. Since, the said charge was framed, it was for the

prosecution to prove that the victim girl was a “Child” within the

meaning of clause (d) of sub-section 1 of Section 2 of the POCSO

Act. Exhibit 66 is the Birth Certificate issued by the Competent

Authority. It shows the date of birth of the victim as 10.8.2000. The

prosecution has examined Rajesh Yewale, Village Development

Officer of Bhisi as PW12. His evidence shows that he keeps record of

birth and death of village Bhisi. His attention was drawn to the birth

certificate (Exh.66). It is his evidence that it was issued by the Block

Development Officer Lata Salve and he identifies the signature of

Lata. What is important is that he deposed that Register of Birth and

Death was brought by him in the Court and in the said register at

Serial No.127, there is an entry of birth of the victim and it shows

that the date of birth is 10.8.2000 and the entry was taken on

12.8.2000. The extract of entry No.127 was verified by the learned

Judge of the Court below and thereafter it is exhibited and it is at

Exh.73. Though, the submission was advanced by Mr. Daga, the

learned counsel for the appellant that there is no seizure memo of

seizing birth certificate and therefore, the birth certificate should not

be relied upon, in my view, the said submission cannot be accepted

since there is nothing on record to dispute the authenticity of the

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entry made in the Birth Register. By not drawing the seizure

panchanama when the birth certificate was handed over by the

victim herself to the Investigating Officer, at the most it is a lapse on

the part of the Investigating Officer and for that the prosecution case

need not be doubted on that count. In view of documentary

evidence (Exh.66 and Exh.73) coupled with the fact that on oath the

victim disclosed her date of birth as mentioned in the aforesaid two

documents, there is no hesitation in my mind about the date of birth

of the victim and looking to the date of birth, it is clear that on the

day of the incident, the victim was a “child” within the meaning of

the provisions of the POCSO Act.

9. The incident has occurred on 09.5.2016. Thus, it has

occurred after the amendment to Section 375 of the Indian Penal

Code. Even otherwise it is not the case of the defence that the victim

girl was a consenting party. The case of the defence is that the

appellant/accused is falsely implicated in the crime and the case of

the prosecution is full of doubts, therefore, the benefit of doubt is

required to be extended in favour of the appellant.

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10. On the rival submissions advanced by the parties before

this Court, following is the point that falls for my determination :

1] Whether the prosecution has proved beyond
reasonable doubt that on 09.5.2016, the
appellant committed rape on the victim ?

2] What order ?

11. In the present case, the wheels of criminal justice were

set into motion by the victim herself. The incident has occurred on

09.5.2016 in between 11.00 to 11.30 in the morning inside the house

of the appellant. The oral report (Exh.20) is lodged by the victim on

12.05.2016. The printed first information report (Exh.21) shows

that the information about commission of the offence was received in

the police station on 12.5.2016 at 13.15 hours. Mr. Daga, the

learned counsel for the appellant submitted therefore, that there is a

delay of about three days. It is his submission that in view of the

delay, the case of the prosecution requires to be rejected.

12. If there is a delay in lodging first information report that

by itself cannot be the ground to discard the prosecution case. If it is

found by the Court that the delay occurred in lodging the first

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information report is properly explained, then the delay cannot be

fatal for the prosecution case.

13. Since, after a period of three days the first information

report is lodged, this Court will have to examine the issue as to

whether any explanation is offered for reporting the matter belatedly

and if the explanation is offered, the same is acceptable and appeals

to the judicial mind.

14. In the first information report itself the victim has

offered the explanation, if the said document is perused. According

to the first information report, the delay occurred since the victim

was fearing defamation even if the matter is reported to her mother,

who was present in the house. However, she was disturbed and

therefore, on 11.5.2016 at about 11.00 O’clock in the morning, she

disclosed the incident to her brother Phulchand (PW2). However,

PW2 Phulchand went to his agricultural field and again the fact of

incident was disclosed to him in the night and thereafter, on

12.5.2016, the report is lodged. From the report itself, presence of

mother of the victim in the house on the day of the incident is

established. In the evidence also, PW1 victim has stated that only on

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11.5.2016, she narrated the incident in the morning to her brother

Phulchand. PW2 Phulchand was present in the house on 09.5.2016,

10.5.2016 and 11.5.2016, if his evidence is perused.

15. It is rather indigestible that a girl of aged about 15 years

would not narrate the atrocious act happened to her at the hands of

the appellant to her mother. There is nothing available on record

that for any reason the victim was not having good relation with her

mother. The bond between a daughter and mother is always a

special one. Therefore, not disclosing the fact of the incident on

09.5.2016 to her mother by the victim in spite of her presence, in my

opinion, looks very unnatural.

Further, on 11.5.2016, in the morning hours, the

incident was narrated by the victim to her brother Phulchand (PW2).

Evidence of PW2 Phulchand shows that while narrating the incident,

the victim was crying. It shows that if his evidence to that extend is

accepted that the victim was in a very disturbed condition, then in

such a situation, it is really hard to believe and/or digest the recitals

in the first information report that after narrating the incident to the

brother, in stead of taking any action immediately and timely, the

brother went to agricultural field. This conduct on the part of PW2

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Phulchand is also unnatural. Even after returning from agricultural

field in the evening, the matter was not reported to police. The

matter is reported on 12.5.2016 at 13.30 hours. From the evidence

of PW1 victim and the printed first information report (Exh.21), it is

clear that from the house of victim the location of Police Station,

Bhisi is just ½ kilometer away. In these circumstances, I really

myself finding unable to accept the explanation given by the

prosecution for lodging the report belatedly. However, merely

because there is a delay of three days, I am not discarding the entire

prosecution case. At the same time, the said fact brings the

prosecution case within the cloud of suspicion.

16. According to the victim herself and the version of the

Investigating Officer PW11 Mandavkar, the appellant used to reside

in an official quarter along with his wife. The incident has occurred

in between 11.00 to 11.30 am. It is not the prosecution case that the

wife of the appellant was working elsewhere. Normally, a housewife

will remain in the house during the period when the alleged incident

has occurred. Even otherwise it is not the victim’s version that the

incident has occurred in absence of the wife of the appellant. The

investigating machinery has not properly conducted the investigation

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about the presence of the wife of the appellant in the house.

17. The oral report (Exh.20) bears signature of Shakuntala

Chute (PW8), WPC Sonu Kosare and the victim. As per the version

of the victim from the witness box, at the time of lodging the report

along with her brother, PW8 Shakuntala Chute, WPC Kosare and IO

Mandavkar were present. The evidence of PW8 Shakuntala Chute

shows that she is changing the version frequently. Therefore, her

evidence is required to be discarded.

18. According to the victim, on the date of the incident, she

received a call on her mobile from the appellant and she was asked

to come to Primary Health Centre to collect the science book, which

was lying with him. Thus, a phone call from the appellant to the

victim was the cause for the victim to visit Primary Health Centre.

Evidence of PW10 Virsen Chahande, who conducted the part of the

investigation, shows that he issued a letter (Exh.53) to Police

Superintendent, Cyber Cell, Chandrapur to obtain call details of

mobile No.7350857333 and 9923823839. In the cross-examination,

this prosecution witness has admitted that the victim told him that

she received phone call from mobile no.9923823839 on her mobile

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no. 7350857333 on 09.5.2016. Though, letter (Exh.53) was given

by PW10 Virsen to the Superintendent of Cyber Cell so as to

ascertain whether really there was a phone call from the appellant to

the victim, for the reasons best known to the prosecution, the call

details report (CDR) is not filed on record. Therefore, the starting

point of the prosecution case, in my view, comes under the cloud of

suspicion. Had the prosecution was successful in establishing the

receipt of telephone call from the appellant, then it would have been

the corroboration to the version of the victim that she visited the

Primary Health Centre, Bhisi on the said date because she received

phone call from the appellant. This is important because otherwise

there was no occasion for the victim to visit the Primary Health

Centre.

Further, according to the victim, the phone call was

given to her by the appellant for collecting the book. It is not the

version of the victim girl that after the incident, she returned to her

house along with the book. If the prosecution wants that the Court

should believe that the victim visited the place of the incident for

collecting the book, which was not taken by the victim, the

prosecution ought to have brought the said book on record by

executing proper seizure panchanama. Nothing of that sort is done

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by the prosecution. This is another factor that the prosecution case is

gasping for fresh air after clearing the clouds of suspicion.

19. PW1 victim was examined by Dr.Priyanka Paliwal

(PW6). She was examined on 13.5.2016. She has proved the

medical report (Exh.23). Evidence of this prosecution witness would

reveal that on local examination, she noted that hymen was torn at

2 O’clock position. As per her evidence, the overall findings of her

were consistent with sexual intercourse/assault, however she

reserved her final opinion till receipt of FSL reports.

In the cross-examination, it is specifically admitted by

PW6 Dr. Paliwal that she gave opinion about sexual intercourse with

the prosecutrix only because she found hymen of the victim torn.

She admits that at the time of examination, she found no bleeding or

injury on the hymen of the prosecutrix. She also admitted that she

was unable to opine as to whether the hymen torn was fresh or old.

This prosecution witness through her cross-examination deposed

before the Court that there are several reasons for hymen torn.

Thus, it is clear that it is not only because there occurred sexual

intercourse, the hymen gets torn. It is also admitted by her that she

did not notice any injury on the victim indicating towards force used

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on her. She admitted that prior to giving opinion, she read

requisition letter sent by the police and in the said requisition letter,

it was mentioned by the police that the appellant has committed

sexual intercourse with the prosecutrix.

20. In the light of the aforesaid evidence of PW6 Dr. Paliwal,

it was obligatory on the part of the prosecution to place on record

the final opinion of the doctor after receipt FSL reports. The

Chemical Analyser reports are placed on record and those are at

Exhs.17 and 18. Those reports were not brought to the notice of the

doctor and thus, the final opinion of doctor remains in the present

prosecution case.

21. The Chemical Analyzer’s report (Exh.18) shows that

blood group of the appellant is of group ‘A’ and blood group of the

victim is of group ‘B’. The report (Exh.17) also shows that no semen

was detected on nicker of the victim, bed sheet which was seized

from the spot and nicker of the appellant. However, Exh.17 shows

that on the nicker of the victim human blood was detected.

However, in my opinion, presence of human blood on the nicker of

the victim can be natural since in the cross-examination, the victim

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has admitted that 3-4 days prior to the incident, her mensuration

period had commenced. Therefore, noticing the human blood on the

nicker of the victim and when its group is not determined, in my

view, it cannot be used as an incriminating material against the

appellant. In addition to that, the said was not also brought to the

notice of the appellant when he was examined under Section 313 of

the Code of Criminal Procedure.

22. Here, I would like to reproduce the relevant portion of

the cross-examination of the victim, which in my view, was not

properly considered by the learned Judge of the Court below by

branding it that it is inadmissible.

“9. It did not happen that on 09.5.2016 my
health was not good hence I went to PHC Bhisi and
then to the quarter of accused to demand medicine.
It is not true to say that at that time wife of the
accused was present at quarter and my exchange of
word took place with accused. It is not true to say
that hence out of anger I went with my brother
and lodged false report. It is not true to say that
after incident it talk took place in PHC Bhisi and
then my brother and myself consulted with Dr.
Gedam. It is not true to say that I have told to Dr.
Gedam that about report lodged by me. I gave
written explanation to the police and such
explanation was given to Police Station Officer,
Bhisi. It is not true to say that I gave copy of said
explanation to Superintendent of Police,

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Chandrapur and Divisional Police Commissioner,
Nagpur. I am able to identify myself and my
brother’s signatures. Now I am shown xerox copy
of explanation and it bears myself and my
brother’s signatures. It is not true to say that such
xerox copy of explanation was also given by me to
Dr. Gedam. It is true to say that the contents of
said xerox copy is in my own handwriting. (The
learned counsel for the accused insisted for
exhibiting the document of explanation as the
witness admitted her signature and her
handwriting regarding contents. The learned APP
raised objection that it is a xerox copy and likely to
be manipulated hence may not be exhibited. The
objection shall be decided at the time of final
argument.) It is not true to say that I deliberately
lodged false report.” (emphasis supplied)

23. The document, which was referred by the learned cross-

examiner during the course of the cross-examination, is on record at

page 99 of file ‘D’ of the record and proceedings of the Court below.

I am marking this document as ‘Document-X’ for the purposes of

identification. After referring this ‘Document-X in the cross-

examination and after getting the answer from the victim that

Document-X bears her and her brother’s signatures and the contents

of the said are in her own handwriting, the learned defence counsel

filed an application (Exh.76) before the Court below for exhibiting

the document referred by the defence counsel during the cross-

examination of PW1 victim. The said application was opposed by

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the learned Additional Public Prosecutor in-charge of the brief. The

learned Judge of the Court below on 05.10.2017 rejected the

application. The said order was questioned before this Court by the

appellant by filing Criminal Writ Petition No. 1063/2017 and this

Court on 15.11.2017, quashed the order dated 05.10.2017 and

directed the Sessions Court to decide the objection of the learned

APP viz. exhibiting of the document on its own merits again at the

time of final arguments. The record and the impugned judgment

show that the said point is decided by the Court below and the

relevant observations as to why the Court is not admitting the said

document, could be noticed in paragraphs 31 and 32 of the

impugned judgment. In paragraph 32 of the impugned judgment,

the learned Judge has observed that ‘However, it is not the case that

the prosecutrix admitted the contents of said document as correct”.

24. In my view, here the learned Judge of the Court below

has committed an error, since, in paragraph 9 of the cross-

examination, which is reproduced herein above, the victim has

admitted that “it is true to say that the contents of said xerox copy is in

my own handwriting.” In view of this, in my view, Document-X was

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admissible in evidence in view of the provisions of Section 58 of the

Evidence Act and the Court below has committed an error in not

admitting the otherwise admissible document in evidence.

25. On re-appreciation of the entire prosecution case, as

discussed herein above, there is no doubt in my mind that there was

delay of three days, which was not properly explained by the

prosecution. Therefore, the embellishment is not ruled out.

Secondly, the very cause for which the victim visited the house of the

appellant was not proved by the prosecution by placing CDR reports

on record. Thirdly, final opinion of the doctor was not brought on

record, especially when during the course of the evidence of PW6 Dr.

Paliwal deposed that only because there was torn in hymen, she

opined that it is consistent with the sexual intercourse. The FSL

reports are absolving the appellant and the blood noticed on the

nicker of the victim, can very well be of herself.

26. In view of the aforesaid, I am of the opinion that in the

present case, there is unexplained delay. The testimony of the

victim, the associated circumstances and the medical evidence leave

a mark of doubt to treat her testimony so as to be natural and

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truthful to inspire confidence. In my view, her evidence is not of

such quality which can be placed reliance upon. Thus, the

prosecution has not proved its case beyond reasonable doubt against

the appellant warranting this Court to extend benefit of doubt in

favour of the appellant. Hence, I pass the following order :

ORDER

1. The Criminal Appeal is allowed

2. The judgment and order of conviction passed by the learned

Special Judge, Warora dated 29.12.2017 in Special (POCSO) Case

No. 15/2016 convicting the appellant for the offence punishable

under Section 376(2)(i) of the Indian Penal Code and also under

Section 3 punishable under Section 4 of the Protection of Children

from Sexual Offences Act, 2012, is hereby quashed and set aside.

3. The appellant, who is in jail, be released forthwith, if not

required in any other case.

4. The fine amount, if any, paid by the appellant be refunded to

the appellant.

5. With this, the criminal appeal is allowed and disposed of.

V.M. Deshpande, J.

Diwale

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