1 apeal48.19

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

CRIMINAL APPEAL NO.48 OF 2019

Roshan Krishnaji Dhurve,
Aged about 27 years,
R/o Sonpur, Tahsil – Katol,
District Nagpur (In Jail)
C-9720 at Central Prison, Nagpur. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Officer,
Police Station, Kondhali, Tahsil-Katol,
District – Nagpur. …. RESPONDENT

__

Shri N.P. Mohod, Counsel for the appellant,
Shri T.A. Mirza, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 24th JUNE, 2019.

ORAL JUDGMENT :

Exception is taken to the judgment dated 28-7-2017

rendered by the Special Judge, Nagpur in Special Child Protection Case

83/2014, by and under which the accused is convicted for offence

punishable under Section 6 read with Section 5(m) of the Protection of

Children from Sexual Offences Act, 2012 (POCSO Act) and is

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sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs.25,000/-, and in default to suffer further rigorous

imprisonment for one year.

2. The genesis of the prosecution case is in report lodged by

the mother of the child victim PW 4-Laxmi Dhurve on 27-3-2014 at

Kondhali Police Station, the gist of which is that PW 4 is engaged in

labour work and resides along with her husband and daughter, aged 7

years, who is studying in the 1st Standard of Zilla Parishad School. On

27-3-2014 at 11-00 a.m. Laxmibai left the house for attending the

labour work, her husband was at home since he did not have work, her

daughter-the child victim (PW 3) had gone to school. When Laxmibai

returned home at 7-00 p.m., the child victim disclosed that when she

was playing in the village, at 2-00 p.m. or thereabout the accused

called her to his home and said “I will pay you Rs.100/- if you allow

me to have sex with you” (this is broad translation of the vernacular).

The accused asked the child victim to remove her knicker, which she

refused, the accused forcibly removed her knicker and caressed her

breast. The hands and legs of the child victim were held and she was

forced to lie on the ground and was subjected to forcible sexual

intercourse (the vernacular word used in the report is “LkaHkksx”).

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Laxmibai narrated the disclosure by the child victim to her

husband-Laxman (PW5) and then Laxmibai, Laxman and the child

victim went to the Kondhali Police Station to lodge report (Exhibit 70).

The child victim was examined at the Primary Health

Centre (PHC), Kondhali by Dr. Sushant Bahadul (PW 7) who referred

the child victim to the Government Medical College, Nagpur. On

28-3-2014, Crime 50/2014 was registered at Kondhali Police Station.

The child victim was examined at the Government Medical College,

Nagpur by Dr. Mangala Sonak (PW 8). The accused was arrested on

28-3-2014 and was medically examined. The samples were collected,

clothes were seized, statements of the witnesses were recorded and the

spot was inspected and after completing the investigation, the charge-

sheet was submitted before the Special Court.

The Special Judge framed charge (Exhibit 3) under

Section 376(2)(i) of the IPC and Section 5(m) of the POCSO Act. The

accused abjured guilt and claimed to be tried in accordance with law.

3. The prosecution examined ten witnesses. PW 1-Suresh

Bhoyar registered the crime on 28-3-2014, PW 2-Devidas Masram is the

witness to the spot panchanama, PW 3 is the child victim, PW 4-

Laxmibai is the mother of the child victim, PW 5-Laxman is the father

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of the child victim, PW 6-Chanda Masram is the Sarpanch of the village

to whom the incident was disclosed, PW 7-Dr. Sushant Bahadul

examined the child victim at PHC, Kondhali, PW 8-Dr. Mangala Sonak

is the Assistant Professor who examined the child victim at the

Government Medical College (GMC), Nagpur, PW 9-Jiteh Kanpure is

the Investigating Officer and PW 10- Dr. Dinesh Akarte was examined

to prove the opinion of Dr. Krunal Sirsat who examined the accused at

GMC and who was not available to depose since he was critically ill

from Blood Cancer.

4. The accused was examined under Section 313 of the

Criminal Procedure Code (Code). The accused denied the incriminating

material and the defence is that the accused is falsely implicated in

view of the inimical relationship between the accused and the family

members of the complainant and the Sarpanch-Chanda Masram. The

accused neither stepped into the witness box nor did he examine any

witness in defence.

5. The learned Special Judge convicted the accused, as

aforestated, relying on the direct evidence of the child victim, the

disclosures made by her to her mother Laxmibai (PW 4) and her father

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Laxman (PW 5) and the medical evidence.

6. I have heard the learned Counsel Shri N.P. Mohod for the

accused and the learned Additional Public Prosecutor Shri T.A. Mirza

for the respondent-State. The material on record and the reasons

recorded by the learned Special Judge are scrutinized. The thrust of the

submission of Shri N.P. Mohod is that the evidence of the child victim

is not reliable. Shri N.P. Mohod submits that the child victim was

tutored and the accused was falsely implicated due to the previous

enmity. Shri N.P. Mohod would submit that the previous enmity is

admitted by the child victim and her mother Laxmibai. Shri N.P.

Mohod would then submit that the medical evidence is inconclusive

and is of no corroborative value. Per contra, the learned Additional

Public Prosecutor Shri T.A. Mirza would submit, inter alia relying on

the decision of the Hon’ble Supreme Court in Rajendra Datta Zarekar

Vs. State of Goa, 2008 All MR (Cri) 569, that medical evidence is

consistent with the version of the child victim that she was ravished.

Shri T.A. Mirza submits that the fair and truthful admissions of past

quarrel between Laxmibai and the accused is not sufficient to infer that

the accused is falsely implicated. Shri T.A. Mirza would submit that

rarely, if at all, would a mother concoct a false story of rape using her 7

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years child as a tool only to wreck vengeance. Shri T.A. Mirza would

conclude with the submission that the prosecution having established

the foundational fact, the burden to rebut the presumption of guilt

under Section 29 of the POCSO Act was on the accused, which he

failed to discharge.

7. The evidence may now be analysed. The spot panchanama

is proved. However, there is no recovery and seizure from the spot of

any incriminatory material. The seizure of the clothes of the accused

and the child victim is admitted. The chemical analysis reports of the

analysis of the samples of blood, vaginal swab, vulva swab of the victim

and the blood sample, perennial swab and nail clippings of the accused

are proved (Exhibits 97 to 99). However, since no blood or semen was

detected on the clothes or the samples, the evidence is of scant

assistance to the prosecution. The edifice of the prosecution is

constructed on the evidence of the child victim and the witnesses to

whom the incident was disclosed. It is too well settled to necessitate

reference to the plethora of precedents that the victim of sexual assault

is not accomplice and conviction can rest on the sole testimony of the

victim which needs no corroboration. If the evidence of the victim is

not found implicitly trust worthy or shaky on material aspects, the

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Court may, short of corroboration, seek assurance from the medical or

other forensic evidence.

8. The child victim has deposed that she was playing under a

tamarind tree when she was called by the accused to his house. The

accused offered her Rs.100/- and asked her to submit to sexual

intercourse. The child victim states that she refused and went to the

bathroom under the pretext of answering nature’s call. The accused

entered the bathroom, removed his knicker and that of the child victim.

The accused slept on her person and touched his private part to her

place of urination. The child victim states that she bit the accused and

fled and reported the incident to her grandmother and then to her

mother when she returned home. The child victim states that there

was swelling and redness in the private parts.

The child victim admits that there was a quarrel between

her mother and the accused, who is a relative. She admits that she was

told of the quarrel by her mother. She further admits that she has

come in the Court after studying the matter and that she memorised

the incident by heart in the bus and in the Court and that did so lest

she forgets. She further admits that PW 6-Chanda Masram told her to

give proper statement and not to commit any mistake. On the basis of

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what is elicited in the cross-examination, it is argued that the child

witness was tutored. I do not agree. All that is admitted is that she

memorised the incident by heart. It is not even suggested to the child

witness that she is deposing falsehood and that she is tutored. If the

child witness has memorised the incident by heart, no inference can be

drawn that she is not a truthful witness or that she is a tutored witness.

The child witness admits that while playing kabaddi she used to sustain

injury. However, the suggestion that the injuries noticed were suffered

while she was playing kabaddi, is denied.

9. The evidence of PW 4-Laxmibai is broadly consistent with

the contents of the First Information Report. She has deposed that the

child victim disclosed that in the bathroom the accused removed her

knicker, slept on her person and inserted his organ in the place of her

urination. The further disclosure is that the child victim bit the

accused, ran away, told the incident to her grandmother and her father

and then the police report was lodged.

In the cross-examination, PW 4 admits that prior to the

incident a quarrel took place between her and the accused in which she

fell down and sustained head injury and that she told the accused that

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she would “see him”. The details of the alleged incident are not

brought on record. When did the quarrel occur is not brought out in

the cross-examination. All that is elicited is that the quarrel took place

prior to the incident. While PW 4 admits that there was a quarrel

between Chanda Masram and the accused and that Chanda Masram

had declared that the accused will be punished, she denies the

suggestion that the report was lodged at the instance of Chanda

Masram. The omission which is proved through the Investigating

Officer PW 9-Jitesh Kanpure is that PW 4 did not state in the statement

under Section 161 of the Code that the child victim narrated that she

went to the bathroom under the pretext of answering nature’s call and

that the accused followed her and that the child victim bit the accused

and ran to the house of the grandmother.

10. PW 5-Laxman Dhurve has deposed that when he went to

the house of Bindabai between 4-00 p.m. and 5-00 p.m., he was told of

the disclosure made by the child victim to Bindabai. PW 5 then states

that when PW 4-Laxmibai returned, PW 5 asked her to enquire with

the child victim and then the child victim narrated the incident to PW

4. The omission which is proved by the Investigating Officer PW 9-

Jitesh Kanpure is to the extent that Bindabai told PW 4 that the child

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victim went to the toilet and the accused followed her and that the

accused removed the knicker of the child victim.

11. PW 6- Chanda Masram has deposed that she was narrated

the incident by Bindabai and, therefore, she met the child victim. PW 6

then states that the child victim narrated the incident to her. She

denies the suggestion that she tutored the child victim in view of her

strained relationship with the accused. The omission, which is proved,

is that Chandabai did not disclose in the statement under Section 161

of the Code that the child victim told her that she bit the accused.

12. In the light of the candid admissions of the child victim

and her mother Laxmibai that there was a quarrel between Laxmibai

and the accused prior to the incident, I have given my anxious

consideration to the submission of the learned Counsel Shri N.P.

Mohod that the accused is falsely implicated. I am not inclined to

agree, for reasons more than one. I find that the evidence of the child

victim is natural, truthful and trustworthy. The evidence of the child

victim is corroborated by the evidence of her parents and Chanda

Masram to whom the incident was disclosed. The inconsistencies and

omissions, which the defence has brought on record, are essentially

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touching the minor particulars of the incident as disclosed by the child

victim to PW 4-Laxmibai, PW 5-Laxman and PW 6-Chanda. The

credibility of the evidence of the child victim is not diluted by the slight

variance and inconsistencies in what other witnesses have stated before

the police or in the depositions in the Court as regards the disclosure

made by the child victim to the witnesses. The evidence of the child

victim is confidence inspiring and although the conviction can raise on

her sole testimony, and no corroboration is necessary, as a fact the

evidence of the child victim is more than amply corroborated by the

evidence of PW 4-Laxmibai, PW 5-Laxman and PW 6-Chanda. The

report is lodged with reasonable promptitude, in the factual matrix.

That there was strained relationship due to quarrel in the past, is by

itself not sufficient to infer that the accused is falsely implicated. The

medical evidence further strengthen the case of the prosecution and

lends assurance to the evidence of the child victim.

13. At this stage, the medical evidence may be considered.

The child victim was first examined at the PHC Kondhali by PW 7-Dr.

Sushant Bahadul who deposed that on external examination, he found

blood on the vagina and that suspecting sexual assault, the child victim

was referred to GMC, Nagpur. PW 7-Dr. Sushant Bahadul states that

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he also examined the accused on 28-3-2014, no external injury was

noticed and that the accused was also referred to GMC for forensic

opinion.

14. PW 8-Dr. Mangala Sonak was then working as Assistant

Professor in the Gynecological Department of GMC. PW 8-Dr. Mangala

Sonak found the following injuries :-

(i) Contusion left side of labia majora, middle 1/3 region to

lower 1/3 region, simple.

(ii) Abrasion (linear) present over middle 1/3 area of medical

aspect of right thigh, simple.

On examination of external genital area, PW 8 found

swelling and edema over the left labia majora and redness over labia

minora and bruise over clitoris. PW 8 proved the medical report

Exhibit 90. It is elicited in the cross-examination that the hymen of the

victim was intact. The attention of the witness is drawn to the report

which states that the evidence related to non penetrative assault is

present. PW 8 denies the suggestion that the injuries could be caused

by falling on the ground.

15. The evidence of PW 8-Dr. Mangala Sonak, rather than

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discrediting the child victim, as is argued by Shri N.P. Mohod, lends

assurance to her version. It is well recognized that sexual intercourse,

as the term is understood in law, covers even the slightest degree of

penetration of the vulva by the penis with or without emission of

semen. The fact that the hymen is intact is not inconsistent with rape

as is understood in law. Partial penetration of the penis within the

labia majora or the vulva or pudenda with or without emission of

semen is sufficient to constitute the offence of rape. In the present

case, the injuries noticed by doctor only strengthen the credibility of

the evidence of the child victim. In Rajendra Datta Zarekar Vs. State of

Goa, the Hon’ble Supreme Court referred to the decision in SectionSantosh

Kumar vs. State of MP, and held that since the victim was a very young

girl of six years of age, it is quite likely that full penetration did not

take place as the accused is grown up person of over 20 years of age

and that the injuries are indicative of rape as defined in Section 375 of

the IPC. The injuries which were noticed by doctor in the case before

the Hon’ble Supreme Court was bruise reddish of 2 x 1.5 cm. on right

labia majora and right labia minora and laceration of 5 mm. x 2 mm.

on right labia minora near the clitoris which was tender to touch. The

hymen was intact and there was no fresh or old tears to hymen. The

hymnal border was bruised, edematous and tender to touch. Dealing

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with the submission that since the hymen was intact, charge under

Section 376 of the IPC must fell. The Hon’ble Apex Court observes thus

:

“14. Learned counsel for the appellant has next submitted that
the doctor had found that the hymen of P.W.8 was intact and,
therefore, the charge for rape under Section 376, SectionIPC as defined
in Section 375, SectionIPC has not been made out. An identical
question was considered by a Bench of this Court in SectionSantosh
Kumar vs. State of M.P. JT 2006(8) SC 171, and para 10 of
the report is reproduced below: –

10. The question, which arises for consideration, is
whether the proved facts establish the offence of rape. It is not
necessary for us to refer to various authorities as the said
question has been examined in considerable detail in SectionMadan
Gopal Kakkad vs. Naval Dubey JT 1992(3) SC 270 and
paras 37 to 39 of the said judgment are being reproduced
below:

37. We feel that it would be quite appropriate, in
this context, to reproduce the opinion expressed by Modi in
Medical Jurisprudence and Toxicology (Twenty First Edition)
at page 369 which reads thus:

Thus to constitute the offence of rape it not necessary
that there should be complete penetration of penis with
emission of semen and rupture of hymen. Partial penetration
of the penis within the labia majora or the vulva or pudenda
with or without emission of semen or even an attempt at
penetration is quite sufficient for the purpose of the law. It is
therefore quite possible to commit legally the offence of rape
without producing any injury to the genitals or leaving any
seminal stains. In such a case the medical officer should
mention the negative facts in his report, but should not give
his opinion that no rape had been committed. Rape is crime
and not a medical condition. Rape is a legal term and not a
diagnosis to be made by the medical officer treating the
victim. The only statement that can be made by the medical
officer is that there is evidence of recent sexual activity.
Whether the rape has occurred or not is a legal conclusion,

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not a medical one.

38. In Parikh’s Textbook of Medical Jurisprudence
and Toxicology, the following passage is found:- “Sexual
intercourse. In law, this term is held to mean the slightest
degree of penetration of the vulva by the penis with or
without emission of semen. It is therefore quite possible to
commit legally the offence of rape without producing any
injury to the genitals or leaving any seminal stains.

39. In Encyclopedia of Crime and Justice (Vol.4) at
page 1356, it is stated:

“even slight penetration is sufficient and emission is
unnecessary.

Therefore, the absence of injuries on the private parts of a
victim specially a married lady cannot, ipso facto, lead to an
inference that no rape has been committed.”

Here the victim was a very young girl of six years of age and it is
quite likely that full penetration did not take place as the
accused is a grown up person of over 20 years of age. The
injuries clearly indicate that rape, as defined in Section 375 IPC,
did take place.”

The accused was examined by the Government Medical

College by doctor Krunal Sirsat. The medical examination report

(Exhibit 120) issued by Dr. Krunal Sirsat is proved by the prosecution

by examining PW 10-Dr. Dinesh Suresh Akarte. The learned Special

Judge has not relied on the report Exhibit 120 since the author thereof

was not examined. The learned Special Judge did refer to the

provisions of Section 32(2) of the Indian Evidence Act, but then, gave

no reason not to invoke the said provision and concluded that since the

prosecution did not examine the concerned doctor, he is not relying on

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the medical report. Four injuries are referred to in the medical report

Exhibit 120. PW 10- Dr. Dinesh states thus in the examination-in-chief.

Thus :-

“I am working in GMC, Nagpur from four years. I am
qualified as MD in Forensic Medicines. Doctor Krunal Sirsat
was working in our hospital along with me as Residency doctor.
He is suffering from Blood Cancer with non-Hodgkin from last
six months. He is presently taking treatment at Tata Hospital,
Mumbai. He is admitted there. He is not in a position to speak
fluently because of side effect of drugs, brain hemorrhage.
Presently he is not in a position to attend the court. We cannot
say for how long he may not be in a position to come to court. I
know his signature and handwriting. I can identify the same. I
am shown the medical report of examination of accused. It is in
the handwriting of Dr. Krunal Sirsat. It bears his signature.
From the colour mentioned in the report of the injuries, the
same were fresh within 24 hours. The scratch abrasions may be
because of nails or any other like object. The report is at
Exh.120.”

The doctor denies the suggestion that he has identified the

signature of Dr. Sirsat only because the name of Dr. Sirsat appears

below the signature. The suggestion that Dr. Sirsat is avoiding to

appear in the Court, is denied. It is elicited that no document is

produced to throw light on the condition of Dr. Sirsat.

Section 32 of the Indian Evidence Act reads thus :

“32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant –

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Statements, written or verbal, or relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which, under the circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in the
following cases :-

(1) when it relates to cause of death – When the
statement is made by a person as to the cause of his death, or
as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that
person’s death comes into question.

Such statements are relevant whether the person who
made them was or was not, at the time when they were
made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death
comes into question.

(2) or is made in course of business – When the
statement was made by such person in the ordinary course of
business, and in particular when it consists of any entry or
memorandum made by him in books kept in the ordinary
course of business, or in the discharge of professional duty; or
of an acknowledgment written or signed by him of the receipt
of money, goods, securities of property of any kind; or of a
document used in commerce, written or signed by him; or of
the date of a letter or other document usually dated, written
or signed by him.

(3) or against interest of make – When the
statement is against the pecuniary or proprietary interest of
the person making it, or when, if true, it would expose him or
would have exposed him to a criminal prosecution or to a suit
for damages.

(4) or gives opinion as to public right or custom,
or matters of general interest – When the statement gives
the opinion of any such person, as to the existence of any
public right or custom or matter of public or general interest,
of the existence of which, it if existed, he would have been
likely to be aware, and when such statement was made before
any controversy as to such right, custom or matter had
arisen.

(5) or relates to existence of relationship – When

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the statement relates to the existence of any relationship by
blood, marriage or adoption between persons as to whose
relationship by blood, marriage or adoption the person
making the statement had special means of knowledge, and
when the statement was made before the question in dispute
was raised.

(6) or is made in Will or dead relating to family
affairs – When the statement relate to the existence of any
relationship (by blood, marriage or adoption) between
persons deceased, and is made in any Will or deed relating to
the affairs of the family to which any such deceased person
belonged, or in any family pedigree, or upon any tombstone,
family portrait or other thing on which such statements are
usually made, and when such statement was made before the
question in dispute was raised.

(7) or in document relating to transaction
mentioned in Sectionsection 13, clause (a) – When the statement
is contained in any deed, Will or other document which
relates to any such transaction as is mentioned in Sectionsection 13,
clause (a).

(8) or is made by several persons, and expresses
feelings relevant to matter in question – When the
statement was made by a number of persons, and expressed
feelings or impressions on their part relevant to the matter in
question.”

16. It is irrefutable that medical report Exhibit 120 is issued by

Dr. Krunal Sirsat in discharge of professional duty. However, before

sub-section (2) of Section 32 of the Indian Evidence Act can come into

play, it is necessary for the prosecution to prove that the author is

dead, or cannot be found, or who has become incapable of giving

evidence, or whose attendance cannot be produced without an amount

of delay or expense which circumstances of the case appears to the

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Court unreasonable. Unfortunately, the prosecution has made no

attempt to prove the foundational fact that Dr. Krunal Sirsat has

become incapable of giving evidence or that his attendance cannot be

procured without unreasonable delay. The Investigating Officer is

conspicuously silent on the attempt made, if any, to ascertain the

physical condition of Dr. Krunal Sirsat and there is no reference in the

entire examination-in-chief to the medical examination of the accused

conducted by Dr. Krunal Sirsat. I concur, albeit for different reasons,

with the learned Special Judge that report Exhibit 120 must be kept

out of the consideration. I may further note that in the medical

examination of the accused which is conducted by PW 7-Dr. Sushant

Bahadul no injuries were noticed. However, the direct evidence of the

child victim, the evidence of the witnesses to whom the disclosures are

made and the medical evidence of PW 8-Dr. Mangala Sonak is

sufficient to hold that the prosecution has proved the offence beyond

reasonable doubt. The burden to rebut the statutory presumption

under Section 29 of the POCSO Act, the prosecution having established

foundational fact, is not discharged merely by eliciting that there was a

prior quarrel between the accused and the mother of the victim.

Previous enmity is ultimately a double edged sword, it can be both a

motive for the crime and cause of false implication.

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17. The judgment impugned calls for no interference.

18. The appeal is without substance and is dismissed.

JUDGE

adgokar

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