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Ramdas Narayan Wagh vs The State Of Maharashtra Thr. … on 26 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL 163 OF 2017

Ramdas Narayan Wagh,
Aged about 63 years, Occ. Labour,
R/o. Peth Itbarpur,
Tahsil Daryapur, District Amravati …APPELLANT

…V E R S U S…

The State of Maharashtra,
through its Police Station Officer,
Police Station Daryapur,
District Amravati …RESPONDENT
——————————————————————————————
Shri R. Khemuka, counsel for appellant.
Shri N.B.Jawade, Additional Public Prosecutor for respondent
—————————————————————————————–
CORAM: ROHIT B. DEO, J.
DATE: th
26
April, 2018.

ORAL JUDGMENT

The appellant – accused is convicted for offence

punishable under section 6 of the Protection of Children from

Sexual Offences Act (“POCSO” Act for short) and section 376(2)(i)

of the Indian Penal Code (“IPC” for short) and is sentenced to

suffer rigorous imprisonment for ten years and to payment of fine

of rs. 500/-, by and under judgment and order dated 31.12.2014

rendered by the Additional Sessions Judge – 1, Achalpur in Special

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POCSO Case 20 of 2014, which judgment and order is impugned

herein.

2 Heard Shri R. Khemuka, the learned counsel for the

accused and Shri N.B. Jawade, the learned Additional Public

Prosecutor for the respondent / State.

3 The incident occurred on 25.1.2014. The victim, who was

then barely 13 years old was studying in Ratnabai Rathi Vidyalaya,

Daryapur in 9th standard. The case of the prosecution is that on

25.1.2014, the victim returned from school at 12.00 p.m., had

lunch and then went to the courtyard of the house of the accused

to play with his grand-daughter Poonam. The accused gave some

amount to Poonam to buy chocolate from the shop. After Poonam

left to buy the chocolate, the accused took the victim to his house,

bolted the door from inside, put on the fan and increased the

volume of the television and made the victim sleep on the cot.

The victim was subjected to sexual intercourse. The accused

inserted his penis in the private part of the victim and pressed and

kissed her breasts. The victim was in pain. The accused warned

the victim not to disclose the incident to anybody, opened the door

of the house and let the victim to go, the victim wore her clothes

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and went to her house. The mother of the victim returned from

the field at 7.00 p.m., to whom the victim disclosed the incident.

The mother of the victim Urmila Ingle (PW 2) went to the house of

the accused and confronted him. The victim and her mother went

to Daryapur Police Station where the mother lodged report

(Exh. 16). The victim was send to the hospital for medical

examination. Offence was registered under section 376(2)(i) of

the IPC and section 4 of the POCSO Act. The clothes of the victim

were seized and her statement was recorded. Upon completion of

investigation, chargesheet was filed in the Special Court

established for the POCSO Act. The learned Special Judge framed

charge (Exh. 7) for the offence punishable under section 4 and 6

of the POCSO Act and section 376 of the IPC. The accused

abjured guilt. The defence is of total denial and false implication.

In the statement recorded under section 313 of Criminal

Procedure Code all that the accused states in response to question

38 is that the prosecution is false. However, from the suggestions

given to the prosecution witnesses, it is discernible that the

defence is that the accused is falsely implicated since he demanded

return of amount lent to the father of the victim. It is also

suggested to Urmila Ingale – PW 2 that a false report is lodged to

claim compensation of Rs. 2 lacs from the Government. The

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prosecution examined 9 witnesses including the victim. The

learned Sessions Judge was pleased to convict the accused as afore

stated.

4 Shri R. Khemuka, the learned counsel for the accused

submits that the evidence on record is not sufficient to bring home

the charge. The medical evidence is inconsistent with the ocular

evidence, is the submission. Shri R. Khemuka would submit that

the prosecution has failed to prove that the victim was aged less

than 18 years. Finally, Shri R. Khemuka would submit that the

medical examination of the accused and the fact that he could not

give semen for chemical analysis belies the version of the

prosecutrix that she was raped. Shri N.B. Jawade, the learned

Additional Public Prosecutor, has relied on the following

observations in Kundan s/o.Nanaji Pendor Vs. The State of

Maharashtra, 2017 ALL MR (Cri) 1137:

“11. Since the appellant has been charged with having
committed offence under Sections 3 (a), 5 (j) (ii) and 5 (l)
of the Act of 2002, as per Charge at Exh.4, it would be
necessary to first record a finding as to the age of “S”. As
per provisions of Section 2 (1) (d) of the said Act, a child
means a person below the age of eighteen years. As noted
above, the prosecutrix had stated on oath that her date of
birth was 5th January, 1997. There is no cross-

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examination, whatsoever, to this specific assertion made by
the prosecutrix in her Examination-in-Chief. Her said
statement has gone totally unchallenged. It is a settled
position of law that if a witness is not cross-examined on a
particular portion of her deposition in her Examination-in-
Chief, said statement is required to be accepted as the same
is not challenged by the defence. Reference in this regard
can be made to the observations of the Hon’ble Supreme
Court in paragraphs 13 and 14 of its decision in State of
U.P. Vs. Nahar Singh (dead) others [(1998) 3 SCC
561]: [1998 All MR (Cri) 1308 (SC)] which are quoted
below:-

“13. It may be noted here that that part of the statement
of PW-1 was not cross-examined by the accused. In the
absence of cross-examination on the explanation of delay,
the evidence PW-1 remained unchallenged and ought to
have been believed by the High Court. Section 138 of the
Evidence Act confers a valuable right of cross-examining
the witness tendered in evidence by the opposite party.
The scope of that provision is enlarged by Section 146 of
the Evidence Act by a allowing a witness to be
questioned:

(1) to test his veracity,
(2) to discover who he is and what is his
position in life, or
(3) to shake his credit, by injuring his
character,although the answer to such questions
might tend directly or indirectly to incriminate
him or might expose or tend directly or indirectly
to expose him to a penalty or forfeiture.

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14 The oft-quoted observation of Lord Herschell, L.C.
In Browne vs. Dunn clearly elucidates the principle
underlying those provisions. It reads thus:

“I cannot help saying, that it seems to me to be
absolutely essential to the proper conduct of a
cause, where it is intended to suggest that a
witness is not speaking the truth on a particular
point, to direct his attention to the fact by some
questions put in cross-examination showing that
that imputation is intended to be made, and not to
take his evidence and pass it by as a matter
altogether unchallenged, and then, when it is
impossible for him to explain, as perhaps he might
have been able to do if such questions had been put
to him, the circumstances which, it is suggested,
indicate that story he tells ought not to be believed,
to argue that he is a witness unworthy of credit.
My Lords, I have always understood that if you
intend to impeach a witness, you are bound, whilst
he is in the box, to give an opportunity of making
any explanation which is open to him; and, as it
seems to me, that is not only a rule of professional
practice in the conduct of a case, but it is essential
to fair play and fair dealing with witnesses.”

Similarly, in Sarwan Singh Vs. State of Punjab [ (2003)
1 SCC 240] : [2003 ALL MR (CRI)156 (S.C.)], the
Hon’ble Supreme Court reiterated this position by
observing in Paragraph 9 of its judgment as under:-

“9. ………………………………………………………………
……It is a rule of essential justice that whenever
the opponent has declined to avail himself of the
opportunity to put his case in cross-examination it
must follow that the evidence tendered on that
issue ought to be accepted. …..”

Hence, following aforesaid position of law, there

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would be no difficulty in accepting the unchallenged
version of the prosecutrix that her date of birth was 5th
January, 1997. Though it is true, as urged by the learned
counsel for the appellant, that the initial burden to prove
the age of the prosecutrix lies on the prosecution, it is also
true that if the relevant version of the prosecutrix as
regards her date of birth has gone unchallenged, it means
that the defence has accepted said statement made on oath
by the witness. Hence, there is no reason to discard the
unchallenged version of “S” that her date of birth was 5th
January, 1997.”

The learned APP contends that the date of birth is not

challenged in the cross-examination. Shri N.B. Jawade would

submit that the defence of false implication must be noted only for

rejection. No material is placed on record to show that the

accused lent any money to the father of the victim and that there

was a strained relationship. Shri N.B. Jawade, the learned APP

submits that it would be rare, if at all, that a 13 year old child

would be used as a tool to wreak vengeance. The testimony of the

victim is more than amply corroborated by the medical evidence,

is the submission. Shri N.B. Jawade, the learned APP submits that

the fact that the accused could not give semen is not decisive. The

judgment and order of conviction is unexceptionable, is the

submission.

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5 The victim has deposed that her date of birth is

5.3.2001, the defence did not challenge the said statement.

Shri N.B. Jawade, the learned APP is justified in placing reliance

on the Division Bench Judgment in Kundan s/o.Nanaji Pendor

Vs. The State of Maharashtra, 2017 ALL MR (Cri) 1137 and in

contending that in the absence of a challenge to the assertion of

the victim that her date of birth is 5.3.2001, it must be held that

the prosecution proved that the victim is a child within the

meaning of section 2(d) of the POCSO Act. The testimony of the

victim is confidence inspiring. She has deposed that on 25.1.2014

after returning from school, she went to play with the grand-

daughter of the accused. The accused gave some amount to his

grand-daughter Poonam to buy chocolate and after Poonam left,

the accused took the victim in the house, bolted the door of the

house from inside, increased the volume of television and

subjected the victim to sexual intercourse. In the cross-

examination, the testimony of the victim is not shaken. Minor and

inconsequential omissions are brought on record. The omissions

do not touch the core of the testimony and the credibility of the

testimony is not dented. Illustratively, that the victim did not state

before the police that she accompanied her mother to the house of

the accused is an omission. The statement that the mother of the

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victim told the accused that he did bad act, is an omission and that

the accused asked the victim to go in the house is an omission.

These omissions do not take the case of the defence any further.

The substratum of the testimony is not affected. The suggestion

that the accused demanded return of the hand loan extended to

the father of the victim, is denied.

6 The evidence of the victim is more than amply

corroborated by the medical evidence. The victim was examined

on 26.1.2014 by PW 6 – Dr. Sharayu Bijwe. PW 6 has deposed

that she found the labia slightly oedematous and the hymen torn.

The labia was inflamed and the hymen was torn which led PW 6

to opine that the victim may have been subjected to intercourse.

PW 6 has proved the medical examination certificate Exh. 26. The

evidence of PW 6 has gone virtually unchallenged and the only

suggestion given is that due to fingering redness can be caused on

labia majora, with which suggestion PW 6 agrees.

7 The victim is corroborated by her mother PW 2 who

has deposed that when she returned home at 7.00 p.m. on

25.1.2014, the victim was weeping and upon inquiry, she

disclosed that the accused subjected her to sexual intercourse in

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his house. PW 2 states that she went to the house of the accused

and confronted him, the accused left his house and then PW 2

went to the house of the Police Patil who asked her to lodge

report. PW 2 accompanied by the Police Patil and others and went

to the Police Station where PW 2 lodged report Exh. 16. PW 2 has

denied the suggestion that false report was lodged to claim Rs. 2

lacs from the Government. PW 2 has further denied the

suggestion that her husband had financial transactions with the

accused.

8 Exh. 46 is the Chemical Analysis Report which opines

that the knicker of the victim is stained with blood and semen is

detected at the middle portion. Be it noted that the defence

admitted seizure panchanama Exh. 31 vide which the clothes of

the accused were seized. Shri R. Khemuka, the learned counsel

submits, with some vehemence, that the forensic evidence is belied

by the inability of the accused to give sample of semen. The

learned counsel Shri R. Khemuka invites my attention to Exh. 34

and Exh. 35 to buttress the said submission. Exh. 34 is a

communication addressed by the Medical Officer to the Police

Station Officer, Daryapur in which the Medical Officer records that

the semen of the accused is not given and the bracketed portion is

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“tried”. Exh. 35 also records, “seen and tried for ejaculation but

not possible”. The submission of Shri R. Khemuka that the

forensic evidence is belied by the inability of the accused to give

semen for sampling and analysis ignores the known medical

condition or phenomenon of situational inability to ejaculate

(situational anejaculation). In this condition a person is able to

ejaculate in some situations but not in other. The inability could

be stress induced. A person may be conscious and anxious and

therefore unable to ejaculate. The learned Additional Public

Prosecutor Shri N.B. Jawade, is right in submitting that the

inability of the accused to give semen for sampling and analysis is

of scant relevance. It is not even argued that the accused was not

capable of sexual intercourse or was suffering from erectile

dysfunction. The evidence of the victim, which is corroborated by

the evidence of her mother PW 2 and the chemical analyzer’s

report Exh. 46 clinchingly establishes the complicity of the

accused. The prosecution has proved the offence under section 6

of the POCSO Act and section 376(2)(i) of the IPC beyond

reasonable doubt.

9 The appeal is sans merit and is rejected.

JUDGE

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RS Belkhede, PA

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