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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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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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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. 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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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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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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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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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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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. 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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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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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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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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