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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

——————————————————————————————-
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

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“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,

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Pramila 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

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Special 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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