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Ramdas Santosh Bende (In Jail) vs State Of Maharashtra Thr. P.S.O., … on 20 December, 2019

1 apeal811.18

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

CRIMINAL APPEAL NO. 811 OF 2018

Ramdas Santosh Bende,
Aged about 42 years,
Occupation – Tailor,
R/o Bhishnur, Tahsil – Narkhed,
District – Nagpur. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Officer,
Police Station, Jalalkheda, District
Nagpur. …. RESPONDENT

__

Shri M.P. Kariya, Counsel for the appellant,
Ms. Ritu Kaliya, Addl.P.P. for the respondent-State.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 16-08-2019
DATE OF PRONOUNCING THE JUDGMENT : 20-12-2019

JUDGMENT :

The appellant is assailing the judgment dated 28-9-2018

rendered by the learned Special Judge, Nagpur in Special Child

Criminal Case 125/2013, whereby and whereunder the appellant is

convicted for offence punishable under Section 376(1) of the Indian

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2 apeal811.18Section

Penal Code and for offence punishable under Section 4 of the

Protection of Children from Sexual Offences Act (POCSO) and is

sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs.10,000/- and in default of payment of fine, to

suffer further rigorous imprisonment for three months. The accused is

acquitted of offence punishable under Section 506 of the Indian Penal

Code.

2. The genesis of the prosecution lies in oral report Exhibit

30 lodged by the minor victim at Jalalkheda Police Station on

12-8-2013. The gist of the report is that the victim returned home

from school at 9.30 a.m. She was alone in the house since 10.00 a.m.

since her parents left for work. The accused came to her house and

conveyed that since the wife of the accused left to work in the field in

the morning, she did not cook food and on the said pretext requested

the plaintiff to cook food for him. The victim went to the house of the

accused at 1.00 p.m. and cooked four to five chapatis for the accused.

When the victim told the accused that she was leaving, the accused

closed the front door and sought sexual favour. The victim declined

and tried to open the front door and also to raise alarm. The accused

bodily lifted the victim and made her lie on the cot. The accused

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forcibly removed the clothes of the victim and subjected her to sexual

intercourse. The victim started crying and the accused threatened her

that should the incident be disclosed, she would be physically harmed.

The victim again shouted loudly, in response to which Smt. Jyotsna

Dhote, Indira Daware and Seema Pote approached the house and

called out the victim from the window. The victim opened the door.

The accused who was present, then fled and the victim disclosed the

incident to the neighbourhood women. The parents of the accused

were summoned and alongwith them the victim approached the police

station and lodged the report at 2.25 p.m. or thereabout.

3. First Information Report Exhibit 31 was registered on the

basis of the victim’s complaint. She was sent for medical examination

and the medical certificate Exhibit 32 was obtained. The blood and

pubic hair samples and the vaginal swab of the victim were collected

and seized vide seizure panchanama Exhibit 40. The clothes of the

victim were seized vide seizure panchanama Exhibit 33. The statement

of the victim was recorded under Section 164 of the Criminal

Procedure Code and her birth certificate was collected from the Gram-

Panchayat, Bhishnur. The spot panchanama was drawn, incriminating

articles were seized and the accused was arrested. The accused was

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4 apeal811.18

sent for medical examination and the medical certificate Exhibit 58 was

obtained. The biological samples of the accused were collected and

seized and so were the clothes of the accused. The investigation

proceeded on the usual lines. The statements of witnesses were

recorded. The sketch map of the spot of incident was prepared and

during the course of the investigation the reports of the chemical

analysis were obtained. Completion of the investigation led to filing of

the charge-sheet in the special Court.

4. The learned Special Judge framed charge Exhibit 12 for

offences punishable under Sections 376 and Section506 of the Indian Penal

Code and Section 4 of the POCSO Act. The accused abjured guilt and

claimed to be tried in accordance with law. The prosecution examined

as many as seven witnesses. The statement of the accused was

recorded under Section 313 of the Criminal Procedure Code. The

defence of the accused was of total denial. The accused specifically

stated that on the day of the incident from 9.00 a.m. till 4.30 p.m. i.e.

till arrest he was working in his tailoring shop. The accused stated that

he and his wife used to leave his house unlocked and the victim has

lodged a false report taking advantage of the situation. The accused

examined himself as DW 1.

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5 apeal811.18

5. The learned Special Judge was pleased to convict the

accused as aforestated. The learned Special Judge held that the

accused proved that the date of birth of the victim was 09-4-1997 and

that the victim was, therefore, a minor as on the date of the incident.

The learned Special Judge relied on the birth certificate Exhibit 34.

The learned Special Judge noted that the victim was not cross-

examined on the point of the date of birth. Considering the evidence

on record holistically, the learned Special Judge rejected the

submission of the learned Counsel for the accused that the birth

certificate did not have evidentiary value since the prosecution did not

examine the person who issued the birth certificate nor did the

prosecution prove the primary material on the basis of which the date

of birth was recorded. The learned Special Judge then considered the

evidence of the victim and found the testimony to be trustworthy. The

learned Special Judge then considered the evidence of PW 3-Jyotsna

and PW 4-Indira and found the said evidence to be of corroborative

value notwithstanding certain variance in the testimony of the said

witnesses. The learned Special Judge further found that the testimony

of the victim is corroborated by the medical and chemical analysis

evidence. The learned Special Judge then considered whether the

accused was successful in rebutting the presumption under Section 29

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6 apeal811.18

of the POCSO Act and from the said perspective the learned Special

Judge considered the evidence of the accused. The learned Special

Judge held that the accused failed to rebut the statutory presumption.

6. Shri M.P. Kariya, learned Counsel for the appellant made a

valiant effort to persuade me to hold that the judgment of conviction is

flawed. Relying on the decision of the Hon’ble Supreme Court in SectionDudh

Nath Pandey vs. State of U.P., AIR 1981 SC 911, Shri M.P. Kariya would

submit that defence witnesses are entitled to equal treatment with the

prosecution witnesses and that in the facts of the case, the learned

Special Judge was clearly unmindful of the note of caution sounded by

the Hon’ble Supreme Court that the Courts ought to overcome their

traditional, instinctive disbelief in defence witnesses. Shri M.P. Kariya

would submit that by examining himself the accused established the

plea of alibi. Shri M.P. Kariya invited my attention to the decisions of

the Hon’ble Supreme Court in SectionTameezuddin @ Tammu vs. State of

(NCT) of Delhi, 2009(15) SCC 566, Md. Ali alias SectionGuddu vs. State of

U.P., AIR 2015 SC (Supp.) 838, SectionSham Singh vs. State of Haryana, AIR

2018 SC 3976, decision of the Division Bench of this Court in Deepak

s/Sectiono Jitendra Sawant vs. The State of Maharashtra, 2017 ALL MR (Cri.)

2058, decisions of the Single Bench of this Court in Motiram

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7 apeal811.18

SectionKrishnarao and others vs. State of M.P., AIR 1955 Nagpur 121, SectionAshok

Shamrao Thakare vs. State of Maharashtra, 2004(3) Crimes 664, SectionKailas

Madhukar Sandase vs. State of Maharashtra, 2009 All MR (Cri) 145 ,

Tukaram Govind Yadav Vs. State of Maharashtra, 2011(1) ALL MR

(Cri.) 157, SectionSujit Bhurandas Borkar vs. The State of Maharashtra, 2016

ALL MR (Cri) 2029, decision of the Division Bench of the Delhi High

Court in SectionMohd. Habib vs. State, 1989 CriLJ 137, decision of the Single

Bench of Delhi High Court in SectionAslam @ Akram vs. State (NCT of Delhi) ,

2015(3) JCC 1697, decision of the Single Bench of Punjab and Haryana

High Court in Rabbo alias Raban vs. State of Haryana, 2010(25) R.C.R.

(Criminal) 228, decision of the Division Bench of the Rajasthan High

Court in SectionRamji Lal vs. State of Rajasthan and SectionState of Rajasthan vs.

Ramji Lal, 2006(1) Cri.L.R.(Raj) 145, decision of the Single Bench of

the Rajasthan High Court in SectionShakoor vs. State of Rajasthan, 2001

Cri.L.R. (Raj.) 841 and decision of the Division Bench of the Calcutta

High Court in SectionSyed Sabuj Khandakar vs. The State of West Bengal and

Another, 2010(89) AIC 425.

7. Ms. Ritu Kaliya, learned Additional Public Prosecutor

would submit that the judgment of conviction is unexceptionable. The

learned Additional Public Prosecutor would submit that the decisions

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8 apeal811.18

on which reliance is placed on behalf of the accused are rendered on

facts. Illustratively, in SectionShyam Singh vs. State of Haryana, the material

witnesses were not examined nor did the medical evidence corroborate

the prosecution version that the victim was raped after tying her hands

with rope. The Hon’ble Apex Court further noted that the offence

could not have been committed without attracting the attention of the

inmates. SectionIn Tameezuddin @ Tammu vs. State of (NCT) of Delhi , the

victim was married woman and the medical evidence did not support

the prosecution version. In Md. Ali alias SectionGuddu vs. State of U.P., the

first information report was delayed and the victim was with the

accused for almost two months without any demur. The Division

Bench decision of this Court in Deepak s/Sectiono Jitendra Sawant vs. The

State of Maharashtra, turned on the evidence adduced on the age of

the victim. SectionIn Tukaram Govind Yadav vs. State of Maharashtra, the

learned Single Judge of this Court scaled-down the offence to 354 after

recording a finding that the medical evidence did not establish either

rape or attempt to rape. SectionIn Sujit Bhurandas Borkar vs. The State of

Maharashtra, the learned Single Judge of this Court found that there

was no medical evidence as would corroborate the prosecution case of

forcible sexual intercourse. SectionIn Aslam @ Akram vs. State (NCT of

Delhi), the Delhi High Court noted that the evidence of the witnesses

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9 apeal811.18

was marred by inconsistencies and contradictions. In Rabbo alias

Raban vs. State of Haryana, the learned Single Judge of Punjab and

Haryana High Court noted that there was no injury on any private part

and the hymen was intact and that considering that the victim was

aged 9 years, the prosecution did not establish offence punishable

under Section 376 of the Indian Penal Code and the accused was

convicted for offence punishable under Section 354 of the Indian Penal

Code. The other decisions also turned on the facts of the case and the

benefit of doubt was given to the accused for several reasons including

that the medical evidence did not support the prosecution case.

8. The first issue which will have to be addressed is whether

the prosecution established that the victim was aged less than 18 years

as would attract the provisions of the POCSO Act. Be it noted that

apart from the birth certificate Exhibit 34, the prosecutrix disclosed her

age as 17 at the first available opportunity, that is while lodging the

oral report Exhibit 30. The victim, who was examined as PW 1,

deposed on oath that she was born on 09-4-1997. The victim has not

been cross-examined on the point of the date of birth. In the entire

cross-examination, there is no reference to the date of birth muchless a

suggestion that the victim was not a minor or that she was not

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10 apeal811.18

disclosing the correct date of birth. Considering that the testimony of

the victim on the point of the date of birth has gone unchallenged, I do

not see any reason to take a view different from that taken by the

learned Special Judge. I am satisfied that the prosecution successfully

proved that the victim was a minor as on the date of the incident.

9. Section 29 of the POCSO Act reads thus :

“Presumption as to certain offences – Where a person is
prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9 of
this Act, the Special Court shall presume, that such person
has committed or abetted or attempted to commit the
offence, as the case may be unless the contrary is proved.”

10. This Court has taken a consistent view that the

presumption under Section 29 of the POCSO Act is triggered only if the

prosecution establishes certain foundational facts. If the foundational

facts are established, the presumption is triggered. It is of course open

for the accused to rebut the presumption by bringing on record such

evidence, either in the cross-examination of the prosecution witnesses

or in the form of defence witnesses, as would render the prosecution

case either unbelievable or create such doubt as would lead the Court

to infer that in every probability the incident did not occur or that the

incident did not occur in the manner suggested by the prosecution.

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11 apeal811.18

11. The victim-PW 1 has deposed broadly consistent with the

oral report. If the cross-examination is perused, the victim is suggested

that she and her family was on visiting terms with the accused.

Notably, it is not the case of the accused either suggested in the cross-

examination of the victim or spoken of in the statement under Section

313 of the Criminal Procedure Code that there was any reason for the

victim to falsely implicate the accused. The only suggestion is that

when the victim demanded money in the morning, the accused refused

and, therefore, he is falsely implicated. The victim candidly admits

that there is a custom in the village that food is not prepared during

the menstrual period and that on the date of the incident she was

undergoing menstrual period. I have given my anxious consideration

to the evidence of the victim and have found the evidence natural and

truthful.

12. It is well settled that if the testimony of the victim of

sexual offence is of sterling quality, corroboration is not necessary. At

the most some assurance may be sought from medical and scientific

evidence. In the present case, the testimony of the victim is more than

amply corroborated by the testimony of PW 3-Jyotsna and PW 4-Indira.

PW 3-Jyotsna has deposed that she heard the victim saying in loud

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12 apeal811.18

voice ‘dkdk eh rqeP;k eqyh lkj[kh vkgs vls udk d# ‘ (Uncle please do not

do this I am like your daughter). Jyotsna states that she knocked the

door of the house of the accused. This version does appear to be

embellished. However, to the extent that she heard some shouts/noise

and approached the house of the accused does corroborate the

evidence of the victim. Jyotsna then deposes that since nobody opened

the door, she called out Smt. Indira and Smt. Seema and all three again

knocked the door of the accused. After sometime the victim opened the

door. Jyotsna states that the accused after wearing his clothes ran

away from the backside door. This version of Jyotsna is corroborated

by PW 4-Indira. Jyotsna has further deposed that the victim

immediately disclosed the incident.

13. The victim was examined by PW 6-Dr. Mansi Shrigiriwar

who issued certificate Exhibit 32. Dr. Mansi Shrigiriwar noticed injury

on fourchette and an abrasion which was tender and red in colour. Dr.

Mansi Shrigiriwar opined that the hymen was intact, there was no

oedema or any other perennial injury and that attempt to sexual

assault cannot be ruled out.

14. To constitute rape, even the slightest penetration of the

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penis in the private parts is sufficient. That hymen was intact is not

decisive and considering the legal definition of rape, offence of rape is

not excluded. The learned Special Judge has rightly appreciated the

evidence of the victim alongwith the medical and scientific evidence

and has concluded that since even the slightest penetration of the male

organ in the private parts of the victim would constitute rape, the fact

that hymen was intact would not exclude the commission of the

offence. I see no reason to differ. Exhibit 39 is the seizure memo of

the bedsheet which was seized from the cot in the house of the

accused. Chemical analysis report Exhibit 60 is that blood detected on

the bedsheet was of blood group AB which is the blood group of the

victim. While dealing with the chemical analysis report, Shri M.P.

Kariya would strongly urge that the absence of semen on the clothes of

the victim or the accused would rule out the commission of the

offence. It is difficult to agree with the said submission. Ejaculation or

discharge of semen is not decisive. Slightest penetration with or

without discharge of semen would suffice to constitute the offence of

rape. Considering the evidence of the chemical alanyser, the fact that

the blood found on the bedsheet which was seized from the house of

the accused, is of the blood group of the victim corroborates the

version of the victim.

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14 apeal811.18

15. The accused examined himself and set up plea of alibi.

The accused deposed that he was in his tailoring shop from 9.00 a.m.

to 4.30 p.m. till he was arrested. Pertinently, the accused did not

examine either his wife or any other person who could have vouched

for the presence of the accused in the tailoring shop from 9.00 a.m. till

the time of arrest. The accused deposed that he was not on talking

terms with the family members of the father of the victim. Notably,

this assertion is in sharp contrast with the suggestion given to the

victim that the victim and her family was on visiting terms with the

accused. The accused has deposed that he learnt that the victim was

having a relationship with a boy and both were misusing the house of

the accused in his absence. In the cross-examination, the accused

admitted the photographs Exhibits 84 to 87. He further admitted that

he left his house without lunch box. He admitted that he did not have

strained relationship with the victim and her family.

16. The plea of alibi postulates the physical impossibility of the

presence of the accused at the scene of the crime. In view of the

statutory presumption under Section 29 of the POCSO Act, the burden

to prove the plea of alibi was onerous. The accused could have

examined his wife or any other person who could have vouched for his

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15 apeal811.18

continuous presence in his tailoring shop during the relevant period.

The accused chose not to examine either his wife or any other

independent witness in support of the plea of alibi. I am not inclined

to accept the plea of alibi.

17. The evidence of the victim is natural and truthful and

there is nothing on record to suggest that she had any reason to

implicate the accused falsely. The evidence of PW 3-Jyotsna and PW 4-

Indira, though at times embellished lends sufficient corroboration to

the prosecution of the victim, although such corroboration is not

strictly required. The medical and scientific evidence lends assurance

to the prosecution version. Considering the evidence holistically, I do

not find any reason to hold that the judgment of conviction suffers

from any infirmity. The appeal is without substance and is dismissed.

JUDGE

adgokar

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