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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.366 OF 2016
Gopal Natthuji Shreenath,
Aged about 35 years,
Occ. Labour,
R/o. Khadi, Tq. Mangrulpir,
District Washim …APPELLANT
…V E R S U S…
The State of Maharashtra,
Through Police Station Officer,
Police Station, Mangrulpir,
Tahsil Mangrulpir,
District Washim, …RESPONDENT
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Mr., S.S. Jaiswal, Counsel for appellant.
Mr. A.V. Kadukar, Addl. Public Prosecutor for respondent.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
Date of reserving the Judgment : 28.11.2017
Date of pronouncing the judgment : 23.01.2018
JUDGMENT
The appellant (hereinafter referred to as “the
accused) is convicted for offence punishable under section 452 of
the Indian Penal Code (“IPC” for short) and sentenced to suffer
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rigorous imprisonment for a period of three years and to payment
of fine of Rs. 500/-, and is convicted for offence punishable under
section 376(2)(i) of IPC and is sentenced to suffer rigorous
imprisonment for a period of ten years and to payment of fine of
Rs. 1,000/-. The appellant is further convicted for offence
punishable under section 5 read with section 6 of the Protection of
Children from Sexual Offence Act (“POCSO” for short), for which
offence no separate sentence is imposed.
This judgment and order of conviction dated 15.3.2016
delivered by the learned the Additional Sessions Judge, Washim in
Special Session Trial 60 of 2014, is assailed in appeal.
2 Heard Shri S.S. Jaiswal, the learned counsel for the
accused and Shri A.V. Palshikar, the learned Additional Public
Prosecutor for the respondent.
3 Indubitably, the victim is mentally challenged. Her
mother Ashabai (PW 2) lodged oral report (Exh. 26) on
11.8.2014. The gist of the oral report is that the PW 2 is resident
of village Khadi and has three daughters, one daughter is married,
the elder daughter is suffering from some mental ailment and the
third daughter – victim is mentally challenged. PW 2 and her
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elder daughter used to go for labour work leaving the victim at
home. The victim used to spend time at the house of the nephew
of the informant Balu after having her lunch. The husband of PW
2 is employed at Pune.
4 PW 2 left her house at 9.00 to 9.30 a.m. on 10.8.2014
instructing the victim to have lunch and go to the house of Balu.
PW 2 and her elder daughter returned between 7 to 7.15 p.m.
The elder daughter was send to the house of Balu. A neighbor
Kamlabai ( PW 3) and her daughter Chhakuli informed PW 2 that
when the victim was alone in the house in the morning, the
accused entered the house and was molesting the victim, who
raised alarm. Chhakuli went to investigate and saw the accused
forcing himself on the victim. Chhakuli narrated the incident to
her mother Kamlabai. Kamlabai went to the house of victim and
on seeing her, the accused fled. PW 2 then went to the house of
nephew Balu to fetch the victim. At that time, the mother in law
(PW 4 Anjanabai) also narrated the said incident to PW 2. The
victim conveyed to PW 2 by signs that the accused subjected her to
sexual intercourse. Since there was no male member in the house
and due to fear and poverty, PW 2 lodged report on the next day.
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5 On the basis of the said report offence under section
376(2) (i)(l), 452 of IPC and under section 5 (k) read with section
6 of POCSO Act was registered against the accused. Investigation
ensued upon completion of which charge sheet was submitted
before the Special Court. The learned judge framed charge
against accused for offence punishable under section 452, 376,
2(i)(1) of IPC, 5(k) read with section 6 of POCSO Act and under
section 3(i) (xi), 3(i)(xii) of Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act. The accused abjured guilt.
His defence is of false implication due to a dispute with PW 2 on
the issue of payment of labour charges.
6 The learned counsel for the accused Shri. S.S. Jaiswal,
at the very outset, strenuously urged that since the prosecution
failed to establish that the victim was aged less than 18 years on
the date of the incident, the provisions of POCSO Act are not
attracted. The submission is, that the mother of the victim (PW 2)
has deposed that the age of the victim was 14 years
approximately. Ossification test would reveal that the age of the
victim was more than 18 years. I deem it appropriate to deal with
the said submission before discussing the other issues which fall
for determination.
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7 Concededly, there is no documentary evidence placed
on record to prove the age of the victim. The oral evidence of PW
2, which is an approximation, is seriously challenged by the
defence. The radiological report Exh. 64 is the only evidence
adduced by the prosecution to prove the age of the victim. The
radiological report is exhibited on admission. The probable age of
the victim is opined as above 14 years and below 17 years.
However, the opinion is inconsistent with the findings recorded in
Exh. 64. The findings recorded read thus:-
“X-ray wrist anterior posterior elbow anterior posterior.
Distal end of radius fused. (seen above 16-18 years)
Head of radius fused (Seen above 19 years)X-ray pelvis
Vertebral crest not fused (seen below 17-19 years)”
8 In the teeth of the said findings, the opinion that the
age of the prosecutrix was between 14 to 17 years is of no
assistance to the prosecution.
It would be apposite to refer to the following observations of
the Apex Court in Jaya Mala v. Home Secretary, Government of
Jammu and Kashmir and others reported in AIR 1982 SC 1297.
“9. ….. However, it is notorious and one can take
judicial notice that the margin of error in age ascertained
by radiological examination is two years on either side.”
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The submission of the learned counsel for the accused that
the prosecution has not proved that the age of the victim was less
than 18 years, is well founded. The provisions of the POCSO Act
could not have been invoked.
9 The victim, who is mentally challenged, is examined
as PW 7. The learned judge did record that the victim is unable to
speak and understand the questions put by the learned Additional
Public Prosecutor. The learned Judge permitted the learned APP
to question the victim with the assistance of PW 2. The
examination in chief and the cross examination reveal that the
victim responded with “gks” (yes) to every question put to her.
This is recorded by the learned Sessions Judge and it would be
pertinent to reproduce the cross examination of the victim –
“learned counsel for accused put question of cross
examination through her mother and ask whether your
mother quarreled with accused, she replied ” gks”. On
asking her that, whether accused taken out labour money
from her mother, she replied “gks”. On asking her that,
her mother tutored and teach her to touch her body here
and there, she replied “gks”. On asking her today she
indicated her finger towards accused as per her mother’s
say, she replied “gks”. On asking her, her mother dropped
her in the house of her grandmother whenever she went to
field for work, she replied “gks”.
The mother of victim girl during the course of evidence
mentioned that, in the usual manner victim replied as::: Uploaded on – 23/01/2018 25/01/2018 02:12:26 :::
7“gks” for everything”
The learned Sessions Judge has recorded a finding that the
evidence of PW 7 victim must be kept out of consideration which
finding is unexceptionable. The observations of the learned
Sessions Judge read thus:-
“P.W. 7 is the prosecutrix. Her evidence shows that my
learned predecessor recorded her evidence without any
oath, without assistance of any social worker, Medical
Officer or interpreter. The record shows that the evidence
of prosecutrix came to be recorded as per the signs shown
by her and with the aid of P.W. 2 Asha. The record shows
that the prosecutrix used to reply in words i.e. “hay and
Ho”. It is also not disputed by both the parties that
during investigation the statement of prosecutrix was not
recorded as she was unable to give statement properly. In
such situation I found that the evidence of P.W. 7
prosecutrix is not considerable”.
10 I may now proceed to analyze the other evidence on
which the prosecution is relying.
PW 2 Ashabai is the mother of the victim and the informant.
Her deposition is that it was conveyed to her by Kamalabai that
her daughter had gone to the tap and saw the victim shouting
since one man was in the house. PW 2 then states that Kamlabai
disclosed that when she went to the house of PW 2, the person
who was in the house fled. Kamlabai escorted the victim to the
house of Ashabai’s mother in law (PW 4). PW 2 went to the house
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of PW 4 to fetch the victim. She was told by PW 4 that the victim
took PW 4 to the house of the accused and she was weeping . PW
2 asked the victim as to what was done by the accused with her
and the victim replied by gestures that the accused pressed her
mouth, neck, breast and committed forcible sexual intercourse.
The victim showed her private part from which blood was oozing.
PW 2 proves the oral report Exh. 26 and the printed First
Information Report Exh. 27. It is extracted in cross examination
that her house and the house of the accused are situated in front
of each other and anybody entering in the house of PW 2 would be
noticed easily. PW 2 admits that accused is residing with aged
mother, wife and two children. She admits that besides farming,
the accused was engaged in selling fish and normally the accused
would leave early morning and return in the evening. She
volunteers that on the day of the incident, the accused was at his
house. In response to a suggestion, she denies that she went to
jail to meet the accused. However, PW 2 volunteers that under a
false pretext, the sister of the accused took her to the jail. Few
omissions are brought on record. One of the omissions is the
statement that the victim conveyed to her by gestures that the
accused pressed her mouth, breast, chest and showed her knickers
and private part smeared with blood. She denies the suggestion
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that her daughter was aged more than 18 years on the date of the
incident while admitting that the age stated to police is
approximate. She denies the suggestion that the accused is falsely
implicated due to a dispute on the issue of payment of wages.
11 Kamlabai who is examined as PW 3 did not support
the prosecution, and was cross examined by the learned APP
pursuant to permission granted under section 154 of the Indian
Evidence Act. Nothing is elicited in her cross examination to assist
the prosecution.
12 The evidence of PW 2 Ashabai is not corroborated by
PW 3 Kamlabai and the daughter of Kamlabai – Chhakuli is not
examined, with the result that there is no ocular evidence on
record to prove the presence of the accused in the house of PW 2
Ashabai.
13 The evidence of PW 2 is substantially hearsay. She
has deposed on the basis of information received from her mother
in law PW 4 Anjanabai. The evidence that victim disclosed to her
that she was subjected to sexual intercourse would have been
relevant as corroborating the evidence of the victim, which
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however, is rightly kept out of consideration.
14 The most important witness from the perspective of
the prosecution is PW 4 Anjanabai. She has deposed that on the
day of the incident, the victim took her to the house of the
accused. The victim came to her house weeping at 10.00 a.m. and
took her to the house of the accused by catching hold of her saree.
The victim pointed her finger towards accused saying ” iksVkM;k”.
She confronted accused and then returned to her house with the
victim. PW 2 states that when PW 2 came home, a quarrel took
place between accused and PW 2. She admits that after lodging
the report, the police visited her village on 2 to 3 occasions. She
denies the suggestion that accused is falsely implicated due to a
dispute on the issue of wages. She admits that after lodging the
report, she was in the village for a month.
15 PW 4 Anjanabai has deposed that the victim came to
her weeping at 10.00 a.m. She has not made any reference to
Kamlabai. The version of PW 2 is that Chhakuli saw the victim
shouting due to the presence of one man in the house and when
Kamlabai went to investigate, the person who was in the house
fled and it was Kamlabai who escorted the victim to the house of
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PW 4 Anjanabai.
The First Information Report dated 11.8.2014 is elaborate.
The First Information Report makes no reference whatsoever to
the victim having taken PW 4 Anjanabai to the house of the
accused. The narrative that victim came weeping to PW 4
Anjanabai and catching hold of her saree took her to the house of
the accused has come on record for the first time in the 161
statement of PW 4 Anjanabai. Be it noted that the 161 statement
of PW 4 Anjanabai is recorded belatedly on 30.8.2014. No
explanation is forthcoming from the prosecution justifying the
delay in recording the statement. PW 4 admits that she was
present in the village for a month after the incident and the police
visited the village on 2 or 3 days. The delay of 20 days in
recording the statement of PW 4 Anjanabai assumes significance
particularly since her version recorded in 161 statement is
conspicuously absent in the First Information Report lodged on
11.8.2014. In the context of unexplained delay in recording the
statement, it would be apposite to refer to the following
observations of the Apex Court in Ganesh Bhawan Patel Vs. State
of Maharashtra, (1978) 4 SCC 371:
“15. As noted by the trial Court, one unusual feature
which projects its shadow on the evidence of Pws Welji,::: Uploaded on – 23/01/2018 25/01/2018 02:12:26 :::
12Pramila and Kuvarbai and casts a serious doubt about
their being eyewitnesses of the occurrence, is the undue
delay on the part of the investigating officer in recording
their statements. Although these witnesses were or could
be available for examination when the investigating
officer visited the scene of occurrence or soon thereafter,
their statements under Section 161, Cr. P.C. were
recorded on the following day. Welji (PW 3) was
examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and
Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in
recording the statements of eye-witnesses may not, be
itself, amount to a serious infirmity in the prosecution
case. But it may assume such a character if there are
concomitant circumstances to suggest that the investigator
was deliberately marking time with a view to decide about
the shape to be given to the case and the eye-witnesses to
be introduced. A catena of circumstances which lend such
significance to this delay, exists in the instant case.”
I am not satisfied that there is any justification for delay in
recording 161 statement of PW 4 Anjanabai. Her evidence is
rendered suspect and must be kept out of consideration.
16 Dr. Isha Kulkarni who examined the victim and issued
report Exh. 56 is examined as PW 6. Report (Exh. 56) does not
record signs of any physical injuries on the person of the victim.
The labia majora and minora are normal and so are fourchette and
introitus / vagina. The edges of hymen are smooth, is the report.
The report does notes injury to the hymen. PW 6 admits that
hymen can be ruptured either due to sexual assault or due to
rubbing on any rough surface. She however, volunteers that the
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possibility of rubbing on rough surface is less in the case of the
victim. She admits that she has not mentioned the age of the
hymen injury in the report as the age cannot be ascertained. The
report opines that evidence of sexual intercourse / assault cannot
be ruled out hence final opinion is kept pending till receipt of FSL
reports.
The medical evidence is that the victim suffered injury to
hymen. However, the age of the injury is not stated and the
deposition of PW 6 is that the same cannot be ascertained.
17 Report of the chemical analyzer Exh. 31 does not take
the case of the prosecution any further. No semen is detected on
the vaginal swab or pubic hair. Neither blood nor tissue matter is
detected on the nail clippings of the victim. The Chemical Analysis
report Exh. 32 is again of no assistance to the prosecution.
Neither blood nor semen is detected on the knicker, salwar, slip,
underwear of the victim or on the full pant and full shirt seized
from the accused.
18 The medical and forensic evidence on record is not
consistent with the prosecution version that the victim was
subjected to sexual intercourse. The learned APP is justified in the
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submission that neither medical nor forensic evidence is decisive.
The absence of visible signs of violence is not decisive. If the
ocular and direct evidence is reliable and confidence inspiring, the
conviction on the basis of such evidence would be perfectly legal
notwithstanding that the ocular evidence is not corroborated by
medical or forensic evidence. However, since the evidence of the
child victim and that of PW 4 Anjanabai must be kept out of
consideration, for reasons recorded supra, and the conviction
cannot rest on the sole testimony of PW 2 Ashabai whose evidence
is either hearsay or is based on what is conveyed to her by the
victim by gestures. Since the ocular evidence is not implicitly
reliable and unimpeachable, this Court was compelled to search
for corroboration. No corroboration could be found either by way
of medical evidence or forensic evidence. Injury to hymen, the age
of the injury being unascertainable is not sufficient to prove sexual
assault.
19 On a holistic appreciation of evidence, I am not
persuaded to hold that the prosecution has proved the offence
beyond reasonable doubt. In the result, I pass following order :
i) The judgment and order dated 15.3.2016 passed by
the learned the Additional Sessions Judge, Washim in::: Uploaded on – 23/01/2018 25/01/2018 02:12:26 :::
15Special Session Trial 60 of 2014, is set aside.
ii) The accused is acquitted of offence punishable under
section 452, 376(2)(i) of IPC and under section 5 read with
section 6 of POCSO Act.
iii) The accused is in jail. He be released forthwith unless
required in any other case.
iv) The appeal is allowed.
JUDGE
Belkhede, PA
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