421-APPEAL-339-2018-APPA-1768-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.339 OF 2018
WITH
CRIMINAL APPLICATION NO.1768 OF 2018
IN
CRIMINAL APPEAL NO.339 OF 2018
RAMESH MAIKU KANOJIYA )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Sushil Inamdar, Appointed Advocate for the Appellant.
Mr.A.R.Kapadnis, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 16th SEPTEMBER 2019
ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging
the judgment and order dated 30th March 2017 passed by the
learned Designated court under the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as the POCSO
Act for the sake of brevity), Mumbai, in POCSO Case No.432 of
2014, thereby convicting him of offences punishable under
Sections 376, Section506 and Section342 of the Indian Penal Code as well as
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under Sections 4, 8 and 12 of the POCSO Act. The learned trial
court was pleased to sentence the appellant/accused to suffer
rigorous imprisonment for 7 years apart from directing him to pay
fine of Rs.25,000/- and in default, to undergo rigorous
imprisonment for 6 months for the offence punishable under
Section 376 of the Indian Penal Code as well as under Section 4 of
the POCSO Act, but had not awarded any separate punishment
for offences punishable under Sections 506 and Section342 of the Indian
Penal Code as well as under Sections 8 and 12 of the POCSO Act
by holding that punishment for offences under Sections 376 of the
Indian Penal Code as well as under Section 4 of the POCSO Act is
greater in degree than offences punishable under Sections 506
and Section342 of the Indian Penal Code as well as under Sections 8 and
12 of the POCSO Act. It is reported that State has not challenged
this judgment and order of conviction and resultant sentence
despite the fact that instead of punishing the appellant/accused
for the offence punishable under Section 6 of the POCSO Act, he is
convicted and sentenced for the offence punishable under Section
4 of the POCSO Act, so also, no separate punishment was inflicted
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on the appellant/accused for offences of criminal intimidation and
wrongful confinement of the victim female child.
2 Facts, in brief, leading to the prosecution of the
appellant/accused and the resultant sentence, can be summarized
thus :
(a) The PW1/victim female child, at the relevant time, was
below 12 years of age. She was taking education in 6 th
Standard at the Municipal school at Mumbai and was
residing along with her parents and other relatives including
First Informant/PW2 Manda. The appellant/accused was
having a shop in the locality and he was doing the work of
ironing the clothes from that shop and the PW1/victim
female child used to visit the shop of the appellant/accused
for delivering clothes for ironing.
(b) The incident in question, allegedly, took place on 7 th July
2014. On that day, after returning from school, the
PW1/victim female child had been to house of her friend
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Radha. While she was returning to her own house, the
appellant/accused caller her inside his shop. He then put
down the shutter of his shop and asked her to remove her
knicker. When the PW1/victim female child refused, the
appellant/accused pulled down her pant and knicker and
committed penetrative sexual assault on her.
(c) PW3 Kartik Naidu, resident of the locality, was informed by
one boy that the appellant/accused had taken the
PW1/victim female child inside his shop and therefore, PW3
Kartik Naidu had been to the shop of the appellant/accused.
On finding that shutter of the shop of the appellant/accused
was down, he knocked it. The appellant/accused informed
him that the shop would be opened at 4 p.m., by partially
opening the shutter. PW3 Kartik Naidu waited in front of
the shop and after sometime, the PW1/victim female child
came out of the shop and disclosed the incident to PW3
Kartik Naidu. He, then, called PW2 Manda, grandmother of
the PW1/victim female child on the spot. The incident was
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also narrated to her. She, then, lodged report of the
incident Exhibit 13 on 7th July 2014 itself with Police Station
D.N.Nagar, Mumbai, and that is how Crime No.428 of 2014
came to be registered against the appellant/accused.
(d) The PW1/victim female child was sent for medical
examination to the Cooper Hospital where she was
examined by PW6 Dr.Nithya Iyer. Clothes of the
PW1/victim female child were taken to the police station by
her aunt Reshma and as they were found to be wet, after
effecting seizure thereof in presence of PW5 Anil Rale, those
were kept in the armoury of the police station, which was
then locked. On the next day i.e. on 8th July 2014, those
dried clothes came to be seized under Panchnama Exhibit 22
in presence of PW4 Vijaykumar Gupta. The
appellant/accused came to be arrested and his clothes were
also seized. Routine investigation followed and ultimately,
the appellant/accused came to be charge-sheeted.
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(e) The learned trial court framed Charge for offences
punishable under Sections 4, 8 and 12 of the POCSO Act as
well as under Sections 376, Section506 and Section342 of the Indian Penal
Code. The appellant/accused, upon being explained the
Charge, pleaded not guilty and claimed trial.
(f) In order to bring home the guilt to the appellant/accused,
the prosecution has examined in all nine witnesses. It is
seen that the learned trial court had also appointed a Court
Commissioner, who has furnished his report Exhibit 48,
after examining panch witness Shamsuddin Habib Khan.
After hearing the parties, by the impugned judgment and
order, the learned trial court was pleased to convict the
appellant/accused and sentenced him accordingly, as
indicated in the opening paragraph of this judgment.
3 I have heard the learned advocate appointed to
represent the appellant/accused at the costs of the State. He
argued that evidence of the PW1/victim female child is not worth
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relying. Though in the Seizure Panchnama, white stains were
seen on seized pants of the PW1/victim female child, the Chemical
Analyser’s Report shows that semen was found on T-Shirt of the
PW1/victim female child and therefore, evidence of the
prosecution is unreliable. According to the learned advocate for
the appellant/accused, there is no other evidence to connect the
appellant/accused with the crime in question. He argued that
medical evidence is also not supporting the case of the
prosecution.
4 The learned APP supported the impugned judgment
and order of conviction as well as the resultant sentence.
5 I have carefully considered the submissions so
advanced and also perused the record and proceedings including
oral as well as documentary evidence.
6 Considering the nature of offence, case of the
prosecution hinges on the testimony of the PW1/victim female
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child, who happened to be 11 years of age, at the time of the
alleged incident in question. The defence has not disputed the age
of the PW1/victim female child. The PW1/victim female child has
categorically deposed that she was 11 years old and was taking
education in the Municipal school at D.N.Nagar. This part of her
testimony is not challenged by the defence. In cross-examination
of PW6 Dr.Nithya Iyer, the defence has elicited the fact that when
the PW1/victim female child was brought before her, the
PW1/victim female child was 10 years of age. Apart from this,
PW9 Kishor Sawant, the Investigating Officer, had also collected
bonafide certificate of the PW1/victim female child from the
Municipal school, which is marked as Exhibit 42 by the learned
trial court. This bonafide certificate shows that the PW1/victim
female child was born on 5th August 2004. With this evidence, it
needs to be held that the prosecution has established the fact that
the PW1/victim female child was below 12 years of age, at the
time of the alleged incident.
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7 Now let us examine whether the prosecution has
established that after wrongfully confining the PW1/victim female
child and by criminally intimidating her, the appellant/accused
had committed penetrative sexual assault on her on 7th July 2014.
8 The PW1/victim female child, in her chief-
examination, has categorically deposed that when she was
returning to her house, the appellant/accused called her in his
shop. After pulling down the shutter of his shop, he asked her to
take out her knicker, but she refused, and therefore, by forcibly
taking out her knicker, the appellant/accused had committed
penetrative sexual assault, which resulted in discharge of semen
on her pant.
9 It is evidence of the PW1/victim female child that she
was knowing the appellant/accused as he was running a shop,
where he was doing business of ironing clothes and she was
visiting that shop for delivering clothes for ironing. She had duly
identified the appellant/accused before the court. She further
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deposed that, when she came out of the shop, she disclosed the
incident to PW3 Kartik Naidu and thereafter, to her grandmother
PW2 Manda and to her aunt.
10 It is well settled that evidence of child witness is
required to be scrutinized with due care and caution as a child
witness is prone to tutoring. However, if on deep scrutiny of
evidence of such witness, the same is found to be truthful, then
the same can be acted upon. Let us, therefore, test evidence of
this child witness on the touchstone of material brought on record
from her cross-examination. It is revealed from her cross-
examination that when she was called inside the small shop, there
were no customers thereat. She accepted the fact that shop of the
appellant/accused always used to be full of clothes and on the day
of the incident also, there were lot of clothes lying in the shop.
Her cross-examination further reveals that there was nobody on
the road when she was called inside the shop by the
appellant/accused. Similarly, there were no shops adjacent to the
shop of the appellant/accused, which was at the end of the
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locality. Similarly, the PW1/victim female child admitted in her
cross-examination that she raised shouts but neither PW3 Kartik
Naidu nor her parents came inside the shop to rescue her. In
cross-examination, she further stated that her pant was not totally
removed but it was partially removed, so also her knicker was not
fully removed.
11 From material elicited from cross-examination of the
PW1/victim female child, it is clear that at the time of the
incident, there was nobody in the vicinity to render help to the
PW1/victim female child. No doubt, she claimed to have shouted
and stated that PW3 Kartik Naidu did not come to her rescue, but
it is not in her evidence that she was called inside the shop in
presence of PW3 Kartik Naidu. As such, PW3 Kartik Naidu
rushing to the shop for rescuing the PW1/victim female child is
out of question.
12 So far as evidence of PW3 Kartik Naidu is concerned,
the learned trial court had not granted opportunity of cross-
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examining him to the defence, and as such, his evidence cannot be
used against the appellant/accused. By noting down absence of
the advocate of the appellant/accused, the learned trial court
asked whether the appellant/accused was willing to cross-examine
PW3 Kartik Naidu. By noting down that he declined to cross-
examine the witness, evidence of PW3 Kartik Naidu was closed by
the learned trial court. This approach of the learned trial court is
not in consonance with law, and more particularly, in view of
provisions of Sections 303 and Section304 of the Cr.P.C. which provides
that an accused is entitled for legal aid in absence of his counsel, it
becomes the duty of the court to provide legal aid to the accused
in such eventuality. Mandate of SectionArticle 21 of the Constitution is
ignored by the learned trial court while adopting such course of
action. Therefore, evidence of PW3 Kartik Naidu cannot be used
to further the case of the prosecution. (See (a) SectionBaliram
Madhukar Dalvi vs. State of Maharashtra1, (b) SectionHussainara
Khatoon and Others (IV) vs. Home Secretary, State of Bihar,
Patna2, (c) SectionSuk Das and another vs. Union Territory of
1 2008 ALL MR (Cri) 2042
2 (1980) 1 Supreme Court Cases 98
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Arunachal Pradesh3, (d)Khatri and Others (II) vs. State of
Bihar and Others4, (e) SectionMadhav Hayawadanrao Hoskot vs.
State of Maharashtra5 and (f) Sagri vs. State of Madhya
Pradesh6).
13 Thus, scrutiny of evidence of the PW1/victim female
child shows that there is nothing in her cross-examination to
doubt her version in respect of the incident. This child witness
has candidly stated that she had personally given history of the
incident to the doctor, who has written the same in English
language. Evidence of this witness does not reflect that she was
tutored and had deposed something which had not actually
happened. Similarly, her evidence does not reflect that this child
witness had an axe to grind against the appellant/accused. In this
view of the matter, I see no reason to doubt testimony of the
PW1/victim female child.
3 AIR 1986 Supreme Court 991
4 (1981) 1 Supreme Court Cases 627
5 (1978) 3 Supreme Court Cases 544
6 (1991) 1 Crimes (HC) 580
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14 PW2 Manda is grandmother of the PW1/victim female
child. She is the First Informant, who lodged report Exhibit 13 on
the basis of disclosure made to her by the PW1/victim female
child. It is in her evidence that PW3 Kartik Naidu had informed
her about the incident and therefore, she went to the spot of the
incident. Upon being asked, her granddaughter i.e. the
PW1/victim female child, had disclosed the incident to her. From
cross-examination of this witness, it is brought on record that the
PW1/victim female child was sitting on the chair at the spot of the
incident as the people, who gathered on the spot of the incident,
had made her to sit there. It was attempted to show that PW3
Kartik Naidu and the appellant/accused were not having cordial
relations but this witness has stated that she is not aware about
this fact. It is, thus, clear from evidence of PW2 Manda as well as
that of the PW1/victim female child that soon after the incident,
the PW1/victim female child had disclosed the incident to her
grandmother. Thus, evidence of PW2 Manda is corroborating
version of the PW1/victim female child.
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15 PW6 Dr.Nithya Iyer had medically examined the
PW1/victim female child on the day of the incident i.e. on 7 th July
2014 itself, after taking the history from the PW1/victim female
child. The same was recorded by her in the Medico Legal Case
papers. Perusal of the Medico Legal Case papers proved by PW6
Dr.Nithya Iyer, shows that the PW1/victim female child had
immediately disclosed the attending Medical Officer that it was
the appellant/accused, who had committed penetrative sexual
assault on her. Thus, the papers of Medico Legal Case proved by
PW6 Dr.Nithya Iyer also corroborate the version of the
PW1/victim female child.
16 Evidence of PW6 Dr.Nithya Iyer shows that there were
no signs of force or forcible penetration on person of the
PW1/victim female child. This Medical Officer concluded that as
per history narrated by the victim, there was a partial penetration.
It is not always necessary that version of the victim of the sexual
assault should be corroborated by the medical evidence. In the
case of SectionState of Punjab vs. Gurmeet Singh 7 the Honourable Apex
7 1996 Cri.L.J. 172
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Court took a view that the Courts dealing with the rape cases
shoulder a greater responsibility and they must deal with such
cases with utmost sincerity. Relevant paragraph of the said
judgment is reproduced as under :
“….It is an irony that while we are celebrating
women’s rights in all spheres, we show little or no
concern for her honour. It is a sad reflection on the
attitude of indifference of the society towards the
violation of human dignity of the victims of sex
crimes. We must remember that a rapist not only
violates the victim’s privacy and personal integrity,
but inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a
physical assault – it is often destructive of the whole
personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the
very soul of the helpless female. The Courts,
therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The
Courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
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evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration
of her statement in material particulars. If for some
reason the Court finds it difficult to place implicit
reliance on her testimony, it may look for evidence
which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be
appreciated in the background of the entire case and
the trial court must be alive to its responsibility and
be sensitive while dealing with cases involving
sexual molestations.”
17 It is a settled legal position that the medical evidence
is also a corroborative piece of evidence but where the medical
evidence does not support the otherwise clinching and
trustworthy ocular evidence of any material witness then, the
testimony of such ocular evidence will prevail on the medical
opinion and not vice versa. In the case of SectionRanjit Hazarika v. State
of Assam8, the opinion of the doctor was that no rape appeared to
have committed because of the absence of rupture of hymen and
8 (1998) 8 SCC 635
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injuries on the private part of the prosecutrix, the Apex Court took
a view that the medical opinion cannot throw over board an
otherwise cogent and trustworthy evidence of the prosecutrix.
18 The Honourable Apex Court in SectionB.C.Deva v. State of
Karnataka9, inspite of the fact that no injuries were found on
person of the prosecutrix, yet finding her version to be reliable
and trustworthy, the Honourable Apex Court upheld the
conviction of the accused. The Court observed that :
“18 The plea that no marks of injuries were
found either on the person of the accused or the
person of the prosecutrix, does not lead to any
inference that the accused has not committed
forcible sexual intercourse on the prosecutrix.
Though the report of the gynaecologist pertaining to
the medical examination of the prosecutrix does not
disclose any evidence of sexual intercourse, yet even
in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix,
which is found to be cogent, reliable, convincing and
trustworthy has to be accepted.”
9 (2007) 12 SCC 122
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19 As version of the PW1/victim female child is found to
be trustworthy and reliable, absence of positive evidence
regarding injuries on the PW1/victim female child is of no
consequence. Section 3 of the POCSO Act makes it clear that even
slightest penetration is sufficient to constitute the offence of
penetrative sexual assault on a child.
20 The clothes of the PW1/victim female child were
produced before the police on 7th July 2014 itself and as seen from
evidence of the Investigating Officer, they came to be seized vide
Panchnama Exhibit 27. This fact is also vouched by PW5 Anil
Rale. Those wet clothes were then kept for drying in the armoury
of the police station in locked condition. Evidence of PW4
Vijaykumar Gupta shows that those clothes were then seized on
8th July 2014 vide Panchanama Exhibit 22, as by that time, those
clothes had dried. Seizure Panchnama at Exhibit 22 shows stains
on the pant of the PW1/victim female child. Those clothes were
sent for chemical analysis and the Chemical Analyser’s Report
Exhibit 51 shows that there was stain of semen on half T-Shirt of
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the PW1/victim female child, which was seized vide Panchnama
Exhibit 22. Stain on the pant, seen by the Investigating Officer
and panchas, does not necessarily mean that it was the stain of
semen. Forensic examination of the PW1/victim female child
reflected presence of semen on her T-Shirt and this aspect
certainly corroborates the version of the PW1/victim female child.
21 Defence of false implication because of quarrel over
the issue of drinking water between the appellant/accused and
PW2 Manda reflected in statement under Section 313 of the Code
of Criminal Procedure of the appellant/accused is also not useful
for furthering the defence of the appellant/accused for the simple
reason that this theory was not put up to PW2 Manda.
22 It is, thus, clear that, by adducing cogent and
trustworthy evidence, the prosecution has certainly established
that after wrongfully confining the PW1/victim female child in his
shop and by criminally intimidating her, the appellant/accused
had committed penetrative sexual assault on her. In this view of
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the matter, no case for interference in conviction of the
appellant/accused is made out. The appeal, as such, is devoid of
merits, and therefore the order :
ORDER
i) The appeal is dismissed.
ii) Consequently, Criminal Application bearing No.1768 of
2018 also stands disposed off.
(A. M. BADAR, J.)
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