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
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18 APEAL296.18.odtChandrapur 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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