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Shivram @ Balu Khandu Jagtap vs The State Of Maharashtra And Anr on 3 October, 2019

APPEAL-1558-2018.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1558 OF 2018

SHIVRAM @ BALU KHANDU JAGTAP )…APPELLANT

V/s.

1) THE STATE OF MAHARASHTRA )
)
2) SARITA SANTOSH GUPTA )…RESPONDENTS

Mr.D.H.Kumthekar, Advocate for the Appellant.

Mr.Amit Palkar, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 3rd OCTOBER 2019

JUDGMENT :

1 By this appeal, the appellant/convicted accused is

challenging the judgment and order dated 3 rd November 2018

passed by the learned Designated Judge for the Protection of

Children From Sexual Offences Act, 2012 (hereinafter referred to

as the POCSO Act for the sake of brevity), Greater Mumbai, in

POCSO Special Case No.333 of 2016 convicting him of offences

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punishable under Sections 363, Section376 and Section354 of the Indian Penal

Code as well as under Sections 4 and 8 of the POCSO Act. For

the offence punishable under Section 363 of the Indian Penal

Code, the appellant/convicted accused is sentenced to suffer

rigorous imprisonment for 5 years apart from direction to pay fine

of Rs.1,000/- and in default, to undergo further rigorous

imprisonment for 1 month. For offences punishable under Section

376 of the Indian Penal Code and under Section 4 of the POCSO

Act, he is separately sentenced to suffer rigorous imprisonment for

15 years apart from direction to pay fine of Rs.2,000/- and in

default, to undergo further rigorous imprisonment for 2 months.

Similarly, for offences punishable under Section 354 of the Indian

Penal Code and under Section 8 of the POCSO Act, he is

separately sentenced to suffer rigorous imprisonment for 5 years

apart from direction to pay fine of Rs.1,000/- and in default, to

undergo further rigorous imprisonment for 1 month. Substantive

sentences are directed to run concurrently.

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2 Facts, in brief, leading to the prosecution and the

resultant conviction of the appellant/convicted accused, can be

summarized thus :

(a) PW1 Sarita, who is mother of the victim female child/PW5

used to reside at Siddharth Colony of Chembur, Mumbai,

along with her husband and three children. Her children

used to study at B.D.Shukla School, Mumbai. The victim of

the crime in question is a female child, who at the relevant

time was aged about 5 years. The incident in question

allegedly took place after 3.00 p.m. of 8th May 2016. On that

day, father of the victim female child/PW5 returned to his

house in the afternoon. He gave one rupee to the victim

female child/PW5 for having a chocolate. The victim female

child/PW5 then left the house for purchasing the chocolate.

She, then, went for playing.

(b) According to the prosecution case, the appellant/convicted

accused is the resident of the locality where the victim female

child/PW5 used to reside with her parents. He met the

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victim female child/PW5 and allured her with an ice-candy.

He took her at the mezzanine floor of the house of PW6 Sajan

Rupwate. At that time, inmates of that house had been to

Nashik for attending a marriage. The appellant/convicted

accused used to fill water at the house of PW6 Sajan Rupwate

and therefore, he had left the keys of that house with

neighbour Vandana Ugde. That is how, the appellant/

convicted accused came in possession of the keys of that

house. After taking the victim female child/PW5 to that

house, the appellant/convicted accused removed her

underwear and inserted his finger in her private part. She

started weeping. The appellant/convicted accused applied

coconut oil on her vagina and gave namkeen to her for

eating. He, then, took her downstairs and left her on the

pretext that he was going for purchasing the ice candy.

(c) The victim female child/PW5 returned to her housed and at

that time, her lips were red. Upon being questioned by her

mother – PW1 Sarita, she told her that the uncle had given

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ice candy to her for eating. Immediately thereafter, the victim

female child/PW5 also disclosed to her mother that the said

uncle had taken her to mezzanine floor of the house and

committed penetrative sexual assault on her.

(d) Upon hearing the incident of penetrative sexual assault on

her daughter i.e. the victim female child/PW5, PW1 Sarita

took her daughter to the locality by asking her to show who is

that uncle. Her daughter – the victim female child/PW5

then took her to a chicken shop and showed one person

standing in front of that shop. She disclosed that the said

person had committed sexual assault on her. PW1 Sarita then

identified the said person as the appellant/convicted accused.

She tried to catch hold of him. However, he ran away.

Thereafter, PW1 Sarita went to Police Station Chembur and

lodged the First Information Report (FIR) Exhibit 15 which

resulted in registration of Crime No.155 of 2016 against the

appellant/convicted accused.

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(e) Routine investigation followed. The victim female child/PW5

was sent for medical examination to the Sion Hospital,

Mumbai. The spot was inspected in presence of PW2 Pradeep

Yadav – panch witness and Spot Panchnama Exhibit 17 came

to be prepared on 9th May 2016. Bottle of oil as well as

namkeen “shev” lying there came to be seized from the

mezzanine floor of the said house vide said Spot Panchnama.

Clothes of the victim female child/PW5 so that of the

appellant/convicted accused came to be seized in presence of

PW3 Vicky Gupta vide Panchnama Exhibit 19 on 11th May

2016. Blood stained pillow covers lying on the spot of the

incident came to be seized in presence of PW4 Ratna Vimal

vide Seizure Panchnama Exhibit 21 on 9th May 2016. On

completion of routine investigation, the appellant/ convicted

accused came to be charge-sheeted.

(f) The learned trial court framed and explained the Charge to

the appellant/convicted accused. He pleaded not guilty and

claimed trial.

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(g) In order to bring home the guilt to the appellant/convicted

accused, the prosecution has examined in all nine witnesses.

Defence of the appellant/convicted accused was that of total

denial.

(h) 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 counsel appearing for the

appellant/convicted accused. He vehemently argued that evidence

of the prosecution is not consistent and particularly PW1 Sarita

and PW2 Pradeep Yadav are not corroborating each other. He

further argued that age of the victim female child/PW5 is not

proved. Medical evidence is not corroborating the version of the

victim female child/PW5 regarding the penetrative sexual assault.

The learned counsel further argued that according to the

prosecution case, the victim female child/PW5 was playing with

boys in the locality, but statement of not a single boy is recorded.

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The Test Identification Parade was not conducted by the

prosecution. The learned counsel further argued that as the

medical evidence is not corroborating the version of the victim

female child/PW5 and as hymen of the victim female child/PW5

was found intact, neither the offence punishable under Section 4

of the POCSO Act nor that of Section 376 of the Indian Penal Code

is proved.

4 The learned APP supported the impugned judgment

and order of conviction and 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 In the case in hand, the prosecution will have to prove

that the victim female child/PW5 was a child as defined by

Section 2(d) of the POCSO Act and at the time of commission of

the alleged incident, she was below 18 years of age. The

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prosecution has placed on record Birth Certificate of the victim

female child/PW5 issued by the Sub-Registrar under the

Registration of Births and SectionDeaths Act, 1969. This Birth Certificate

is issued under the provisions of Sections 12 and Section17 of the

Registration of Births and SectionDeaths Act, 1969 as well as Rules 8 and

13 of the Maharashtra Registration of Births and Deaths Rules,

2000. As per provisions of Rule 9 of the Maharashtra Registration

of Births and Deaths Rules, 1976, this Certificate is issued by the

Sub-Registrar acting under the provisions of the Registration of

Births and SectionDeaths Act, 1969. Section 7 thereof deals with

appointment of Registrars for each local area comprising the area

within the jurisdiction of the Municipality, Panchayat or other

local authority. It is the duty of the Registrar to register every birth

and every death which takes place in his jurisdiction. SectionThis Act

mandates that the Registrar should discharge his duties carefully.

Section 8 of this Act mandates each head of the house to report

birth in the family to the Registrar. SectionThe Act provides for

maintenance of register for recording birth and death within the

local area. That is how, certificate came to be issued by the Sub-

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Registrar as per provisions of Sections 12 and Section17 of the said Act.

The Birth Certificate, as such, is issued by the Public Officer and it

is a document forming the record of the acts of the Public Officer

and therefore the same is a public document within the meaning

of the said term as per provisions of Section 74 of the Indian

Evidence Act, 1872. The same is admissible in evidence by mere

production thereof in view of provisions of Section 77 of the

Evidence Act. Section 17 of the Registration of Births and SectionDeaths

Act, 1969, provides for search of Birth Register and supply of

extract thereof by certifying the same by the Registrar or other

authorized Officer. Section 17 of the said Act provides that such

extract shall be admissible in evidence for the purpose of proving

birth or death to which the entry relates. The Birth Certificate is,

infact, the extract of Birth Register in respect of entry of birth of

the victim child/PW5, and as such, admissible in evidence.

Section 35 of the Evidence Act, 1872, makes it clear that if entry is

made by public servant in the official book in discharge of his

official duty, then such entry becomes the relevant fact and

admissible in evidence. Section 35 of the Indian Evidence Act lays

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down that entry in any public, official book, register, record

stating a fact in issue or relevant fact and made by a public

servant in the discharge of his official duty specially enjoined by

the law of the country is itself the relevant fact. To render a

document admissible under Section 35, three conditions must be

satisfied, firstly, entry that is relied on must be one in a public or

other official book, register or record, secondly, it must be an entry

stating a fact in issue or relevant fact; and thirdly, it must be made

by a public servant in discharge of his official duty, or any other

person in performance of a duty specially enjoined by law. It is,

thus, clear that the Birth Certificate issued by the statutorily

appointed competent authority is relevant and admissible. The

same is a public document and it constitutes primary evidence.

Proof of contents of a public document can be had by production

thereof as envisaged by Section 77 of the Evidence Act. In this

view of the matter, no formal proof of the Birth Certificate issued

by the competent authority under the provisions of the

Registration of Births and SectionDeaths Act, 1969 and Rules framed

thereunder is required.

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7 This court in the case of Mahadeo S/o Kerba Maske Vs.

State of Maharashtra and Anr.1 has held that Rule 12(3) of the

Juvenile Justice (Care and Protection of Children) Rules, 2007, is

applicable in determining the age of the victim of rape. Rule 12(3)

reads as under:

“Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board
or, as the case may be, the Committee by seeking
evidence by obtaining –

(a)(i) the matriculation or equivalent certificates,
if available; and in the absence whereof;

(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or

(iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.

In case exact assessment of the age cannot be done,
the Court or the Board or, as the case may be, the

1 (2013) 14 SCC 637

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Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year. and, while
passing orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii),

(iii) or in the absence whereof, clause (b) shall be
the conclusive proof of the age as regards such child
or the juvenile in conflict with law.”

8 The Birth Certificate at Exhibit 44A shows that the

victim female child/PW5 was born on 27th July 2011 and the

incident in question took place on 8th May 2016. As such, at the

relevant time, she was about 5 years of age and certainly below 12

years of age. The learned trial court, as such, ought to have

framed the Charge for the offence punishable under Section 6 of

the POCSO Act. However, no such Charge for the aggravated

penetrative sexual assault was framed. The appellant/convicted

accused is not convicted for the offence of aggravated penetrative

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sexual assault punishable under Section 6 of the POCSO Act.

Thus, State has not challenged the impugned judgment and order

on that count.

9 Be that as it may, now let us examined evidence of the

victim female child/PW5. As stated, she was about 5 years of age

and as such, she is a child witness. The question is whether the

testimony of the child witness can be relied upon for basing

conviction in such a serious offence. The Hon’ble Supreme Court

in Radhey Shyam Vs. State of Rajasthan2 has laid down the law

regarding appreciation of evidence of child witness. Paragraph 12

of that judgment reads thus :

“12 In Panchhi, (1998 SCC (Cri) 1561) after
reiterating the same principles, this Court observed
that the evidence of a child witness must be
evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and, thus, a child
witness is an easy pray to tutoring. This Court
further observed that the courts have held that the
evidence of a child witness must find adequate
2 (2014) 5 SCC 389

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corroboration before it is relied upon. But, it is
more a rule of practical wisdom than of law. It is
not necessary to refer to other judgments cited by
learned counsel because they reiterate the same
principles. The conclusion which can be deduced
from the relevant pronouncements of this Court is
that the evidence of a child witness must be
subjected to close scrutiny to rule out the possibility
of tutoring. It can be relied upon if the court finds
that the child witness has sufficient intelligence and
understanding of the obligation of an oath. As a
matter of caution, the court must find adequate
corroboration to the child witness’s evidence. If
found, reliable and truthful and corroborated by
other evidence on record, it can be accepted
without hesitation. We will scrutinize PW-2
Banwari’s evidence in light of the above principles.”

10 Now let us examine whether evidence of the victim

female child/PW5 is reliable and trustworthy and whether it is

free from infection of tutoring. It is in evidence of the victim

female child/PW5 that by taking amount of one rupee from her

father, she purchased a chocolate and ate it. Thereafter, she was

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playing and one uncle came. He told that he would give an ice

candy to her, if she comes with him. As per version of the victim

female child/PW5, she then went with that uncle to his home.

She was taken at the first floor. He laid her down, removed her

underwear and inserted his finger in her private part. Thereafter,

he gave namkeen “shev” to her for eating. She was then taken

downstairs. The victim female child/PW5 further stated that then

that uncle told her that he would bring ice candy for her. This is

the narration of incident by the victim female child/PW5 before

the court. In cross-examination she admitted that she had been to

the court twice or thrice on earlier occasion along with her parents

and police uncle. She admitted that she never went to the house

of the appellant/convicted accused till date. She admitted that at

the police station, police in uniform made inquiries from her. She

stated in her cross-examination that after the incident, the

appellant/convicted accused was not shown to her and she had

seen him for the first time in the court. Some minor omissions

were sought to be brought on record from her cross-examination

but those are not on material particulars. Not visiting the house of

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the appellant/convicted accused is an irrelevant factor, as

according to the prosecution case, the victim female child/PW5

was taken by the appellant/convicted accused to the house of

PW6 Sajan Rupwate and not to his own house. Inquiry with the

victim female child/PW5 by the police cannot throw any doubt on

her version. Similarly, if the victim female child/PW5 attended

the court for the purpose of recording her evidence and if that

work was not done, the victim female child/PW5 cannot be

blamed. Cross-examination of the victim female child/PW5 does

not show that she was tutored by anybody else to depose a lie

against the appellant/convicted accused.

11 As per version of the victim female child/PW5, after

the incident she returned to her house. Therefore, evidence of her

mother PW1 Sarita becomes important. PW1 Sarita has stated

that when the victim female child/PW5 returned back, she noticed

her lips and hands were stained with red colour. Her daughter

then informed her that it was because she had ice candy given by

the uncle. PW1 Sarita disclosed that her daughter i.e. the victim

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female child/PW5 narrated the incident to her by stating that she

was taken to the mezzanine floor of the house by the uncle and

there the said uncle inserted finger in her vagina. PW1 Sarita

stated that the victim female child/PW5 had disclosed to her that

as she started crying, said uncle applied oil to her vagina and gave

some namkeen to her for eating. As per version of this mother –

PW1 Sarita, then her daughter – the victim female child/PW5

took her near the chicken shop and told that the person standing

in front of that chicken shop is the same uncle, who had taken her.

Evidence of PW1 Sarita shows that she was knowing that person

as he used to be at the flour mill in the locality. She, therefore,

attempted to apprehend him but he ran away. Hence, as per

version of PW1 Sarita, she went to Chembur Police Station and

lodged report Exhibit 15 on the very same day. From cross-

examination of this witness, some insignificant omissions are

brought on record. It is further brought on record that she was

not on visiting terms with the appellant/convicted accused nor she

used to talk with him.

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12 Perusal of evidence of PW1 Sarita shows that she has

proved the former statement made to her by her daughter – the

victim female child/PW5, which gives vivid details of the incident

of commission of penetrative sexual assault on the victim female

child/PW5 by the appellant/convicted accused. While in the

witness box, the victim female child/PW5 as well as her mother

PW1 Sarita have duly identified the appellant/convicted accused

as the person who committed penetrative sexual assault on the

victim female child/PW5 and the person who was pointed out as

the perpetrator of the crime in question, by the victim female

child/PW5.

13 During the course of investigation, the Spot

Panchnama came to be prepared in presence of PW2 Pradeep

Yadav. As per version of this panch witness, on 9 th May 2016

itself, this was done. During inspection of this spot, this panch

witness found bottle containing oil on the spot of the incident, so

also namkeen “shev” thereat. While effecting spot panchnama

Exhibit 17, those articles came to be seized by the Investigator.

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This evidence reflecting situation prevalent on the spot of the

incident, corroborates version of the victim female child/PW5 in

respect of penetrative sexual assault on her.

14 Evidence of PW6 Sajan Rupwate shows that the house,

where the incident took place, belongs to him and he and his

family members were away from his house from 6th May 2016 as

they had gone to attend the marriage at Nashik. Evidence of this

witness shows that he was called back due to the incident and in

presence of the police, he broke open the lock of his house.

Thereafter, the spot panchnama came to be prepared. This implies

that situation on the spot of the incident was undisturbed till PW6

Sajan Rupwate opened his house, in the night intervening 8 th May

2016 and 9th May 2016. His evidence further shows that the

appellant/convicted accused used to fetch water at his house and

for that purpose, he had given keys of his house to his neighbour

Vandana Ugde. Evidence of the victim female child/PW5 stands

corroborated by this evidence.

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15 The victim female child/PW5 was sent for medical

examination to the Sion Hospital, Mumbai. Report of her medical

examination is at Exhibit 23. The same was read in evidence by

exhibiting it by the learned trial court because the same came to

be admitted by the defence. Perusal of this undisputed report of

medical examination of the victim female child/PW5 shows that

she was taken to the Sion Hospital immediately after the incident

and on 8th May 2016 itself. History given to the Medical Officer by

the victim female child/PW5 as well as her mother – PW1 Sarita

is also reflecting in this undisputed document. History recorded

by the Medical Officer is to the effect that the victim female child/

PW5 was taken by the appellant/convicted accused. She was

given some snacks for eating. The victim female child/PW5

further stated that the appellant/convicted accused removed

undergarments of the victim female child/PW5 and inserted his

finger into her vagina. Thus, soon after the incident, the victim

female child/PW5 had given the history of penetrative sexual

assault on her which is reflected from the medical case papers.

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16 Report of the medical examination of the victim female

child/PW5 at Exhibit 23 shows that hymen of the victim female

child/PW5 was intact and there was no bleeding from her vagina.

On this aspect, material elicited from cross-examination of the

victim female child/PW5 is relevant. She was questioned by the

cross-examiner as to, to what extent the finger was penetrated in

her vagina. She answered that the penetration was slight. This

material from cross-examination of the victim female child/PW5

clarifies as to why her hymen was intact and there was no

bleeding. Even otherwise, 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 Assam3, the opinion of the doctor was that no rape

appeared to have committed because of the absence of rupture of

hymen and injuries on the private part of the prosecutrix, the

Apex Court took a view that the medical opinion cannot throw
3 (1998) 8 SCC 635

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over board an otherwise cogent and trustworthy evidence of the

prosecutrix.

17 The Honourable Apex Court in SectionB.C.Deva v. State of

Karnataka4, 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.”

4 (2007) 12 SCC 122

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18 In the light of foregoing reasons, no infirmity can be

found in the impugned judgment and order of conviction as well

as the resultant sentence imposed on the appellant/convicted

accused by the learned trial court. The appeal, as such, is devoid

of merits. Therefore, the order :

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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