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Ramesh Maiku Kanojiya vs The State Of Maharashtra And Anr on 16 September, 2019

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
prosecutrix, which are not of a fatal nature, to throw

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out an otherwise reliable prosecution case. If
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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