APPEAL-195-2016-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.195 OF 2016
SIDDHARTH DAGADU SONDE )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Yashpal Thakur, Appointed Advocate for the Appellant.
Ms.N.S.Jain, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 24th AUGUST 2017
28th AUGUST 2017
ORAL JUDGMENT :
1 By this appeal, the appellant / accused is challenging
the judgment and order dated 20th May 2015 passed by the
learned Special Judge, Pune, in Special Child Sessions Case No.42
of 2013 thereby convicting him of offences punishable under
Section 376 and 354 of the Indian Penal Code (IPC). The
appellant / accused is also held guilty under Section 4 of the
Protection of Children from Sexual Offences Act (POCSO Act
avk 1/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:50 :::
APPEAL-195-2016-J.doc
hereinafter). On each count for the offence punishable under
Section 376 of the IPC as well as that under Section 4 of the
POCSO Act, he has been sentenced to suffer rigorous
imprisonment for 10 years apart from payment of fine of
Rs.5,000/-, in default to undergo further rigorous imprisonment
of 1 year. For the offence punishable under Section 354 of the
IPC, the appellant / accused is sentenced to suffer rigorous
imprisonment for 1 year, apart from directing him to pay fine of
Rs.1,000/- and in default, to undergo further rigorous
imprisonment for 1 month. Substantive sentences imposed on
these three counts are directed to run concurrently by the learned
trial court.
2 Brief facts leading to the institution of the present
proceedings are thus :-
(a) Informant PW2 Suman Gaikwad is a widow. She was having
responsibility of maintaining four daughters. The PW1 /
prosecutrix is one amongst them. PW2 Suman Gaikwad used to
avk 2/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:50 :::
APPEAL-195-2016-J.doc
reside at Dattawadi area of Pune along with her mother-in-law
PW3 Kamal Gaikwad as well as her daughters.
(b) PW3 Kamal Gaikwad is having a daughter named Vandana.
The appellant / accused is husband of said Vandana – daughter of
PW3 Kamal Gaikwad. Thus, the appellant / accused is husband of
paternal aunt of the PW1 / prosecutrix.
(c) According to prosecution case, as father of the PW1 /
prosecutrix died and her mother was suffering from penury, it was
decided to send the PW1 / prosecutrix to the house of the
appellant / accused at Yerwada area of Pune for further education.
Accordingly, the PW1 / prosecutrix started residing with her
paternal uncle i.e. the appellant / accused and her paternal aunt
Vandana as well as their children and took admission in 7 th
Standard at Netaji Subhashchandra Bose High School, Yerwada,
Pune.
avk 3/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:50 :::
APPEAL-195-2016-J.doc
(d) The prosecution alleged that during her stay at the house of
the appellant / accused at Yerwada, Pune, the appellant / accused
used to take her to the terrace and used to outrage her modesty.
He used to attempt to commit sexual intercourse with her by
putting his penis in her vagina.
(e) After completion of academic session 2012-2013, on
9th April 2013, the PW1 / prosecutrix was brought back to her
mother’s house by her grandmother – PW3 Kamal Gaikwad. As
there was urus of God Mhasoba at Dattawadi, Pune, on 14 th May
2013, the appellant / accused along with his family members
visited house of PW1 prosecutrix and stayed there for one day. On
15th May 2013, when the appellant / accused along with his
family members was returning to his house at Yerwada, Pune, the
PW1 / prosecutrix did not accompany him. She was questioned
by her mother PW2 Suman Gaikwad. Thereafter, the PW1 /
prosecutrix disclosed her mother that the appellant / accused used
to call her at the terrace of the house and used to outrage her
modesty so also he used to attempt to penetrate her. She disclosed
avk 4/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:50 :::
APPEAL-195-2016-J.doc
that he used to threaten her that if she dares to disclose the
incident to anybody, he would kill her mother.
(f) After hearing narrations of the PW1 / prosecutrix, PW2
Suman Gaikwad was frightened and therefore, immediately she
did not disclose the incident. Subsequently, she told the incident,
as narrated by the PW1 / prosecutrix, to her mother-in-law i.e.
PW3 Kamal Gaikwad. Then, PW2 Suman Gaikwad accompanied
by her mother as well as PW3 Kamal Gaikwad, went to the house
of the appellant / accused on 18 th May 2013 and questioned him.
At that time, the appellant / accused threatened them that if the
complaint is lodged, he would commit suicide. Ultimately, with
the aid of PW5 Lilatai Sonawane, PW2 Suman Gaikwad lodged
report of the incident with Police Station Yerwada on 20 th May
2013, which resulted in registration of Crime No.241 of 2013 for
offences punishable under Section 376 as well as Section 4 of the
POCSO Act.
avk 5/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:50 :::
APPEAL-195-2016-J.doc
(g) Wheels of investigation were set in motion due to report
lodged by PW2 Suman Gaikwad. PW1 prosecutrix was sent for
medical examination to Sassoon hospital, Pune, where she came
to be examined by PW4 Dr.Swati Kagne. Statement of witnesses
came to be recorded and spot panchnama of the spot of the
incident came to be recorded. On completion of necessary
investigation, the appellant / accused came to be charge-sheeted.
(h) After committal of the case, charges for the offences
punishable under Sections 376 and 354 of the IPC as well as
under Section 4 of the POCSO Act came to be framed and
explained to the appellant / accused, who abjured guilt and
claimed trial.
(i) In order to bring home guilt to the appellant / accused, the
prosecution has examined in all six witnesses. The prosecutrix
came to be examined as PW1 whereas her mother came to be
examined as PW2. Report lodged by PW2 Suman Gaikwad is at
Exhibit 10. PW3 Kamal Gaikwad is grandmother of the PW1 /
avk 6/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:50 :::
APPEAL-195-2016-J.doc
prosecutrix. Dr.Swati Kagne, gynecologist from Sassoon Hospital,
Pune, is examined as PW4. Lilatai Sonawane – social worker,
came to be examined as PW5 whereas, the Investigator Amol
Nandekar, A.PI., Yerwada Police Station, is examined as PW6.
(j) Defence of the appellant / accused, as gathered from the
line of cross-examination from the prosecution witnesses as well
as from his statement under Section 313 of the Code of Criminal
Procedure (Cr.P.C.) is that of false implication. According to the
defence, at the time of marriage ceremony, the appellant /
accused had a quarrel with one Ravi Gaikwad and PW2 Suman
Gaikwad had illicit relations with said Ravi Gaikwad. Hence, he
has been framed in the crime in question.
3 I have heard Shri Yashpal Thakur, the learned advocate
on the panel of Legal Aid of High Court and appointed by this
court to represent the appellant / accused at the cost of the State.
By taking me meticulously through the entire record, Shri Yashpal
Thakur, the learned advocate argued that case of the prosecution
avk 7/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc
becomes suspect because of inordinate delay in lodging the First
Information Report (FIR). He argued that though according to the
prosecution case PW2 Suman Gaikwad – mother of the PW1 /
prosecutrix came to know about the alleged incident on 15 th May
2013, still no action came to be taken by the prosecuting party
and ultimately, the FIR came to be lodged belatedly on 20 th May
2013. This indicates false implication of the appellant / accused in
the crime in question by concocting against him. It is further
argued that the PW1 / prosecutrix had ample opportunity to
complain against the appellant / accused. Evidence on record
indicates that she was continuously in contact with her mother
PW2 Suman Gaikwad and her grandmother PW3 Kamal Gaikwad,
during the course of her stay at the house of the appellant /
accused. The learned advocate pointed out that the PW1 /
prosecutrix had a brief stay at her own house at Dattawadi, in
company of her mother and grandmother during Diwali vacation.
Still, she failed to make any grievance against the appellant /
accused. The learned advocate further drew my attention to
evidence of PW3 Kamal Gaikwad to point out that PW3 Kamal
avk 8/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc
Gaikwad was continuously visiting the house of the appellant /
accused for meeting her daughter as well as grandchildren. At
that time, the PW1 / prosecutrix used to interact with PW3 Kamal
Gaikwad. Still, the prosecutrix did not complain about the alleged
act of the appellant / accused. This, according to the learned
advocate appearing for the appellant / accused, makes the
prosecution case doubtful and improbable.
4 Shri Thakur, the learned advocate further argued that
evidence of the prosecution suffers from several inconsistencies
and discrepancies making it unworthy of credit. Evidence of PW4
Dr.Swati Kagne shows that she had jotted down the history of the
alleged incident given jointly by PW1 prosecutrix as well as her
mother PW3 Kamal Gaikwad. Evidence of PW4 Dr.Swati Kagne
does not make it clear that as to which witness has stated which
history, and therefore, the contemporaneous medical record
cannot be used against the appellant / accused for inferring the
guilt. It is further argued that even if evidence of prosecution is
accepted as it is, then also, no offence either under Section 376 of
avk 9/32
::: Uploaded on – 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc
the IPC or under Section 4 of the POCSO Act is made out. Shri
Yashpal Thakur, the learned advocate, to buttress this contention
placed reliance on evidence of PW1 prosecutrix so also, evidence
of her mother PW2 Suman Gaikwad and the FIR lodged by her to
submit that, evidence on record shows that the appellant /
accused had only attempted to penetrate the PW1 / prosecutrix,
and therefore, offence punishable under Section 376 of the IPC as
well as offence punishable under Section 4 of the POCSO Act, is
not made out by the prosecution. According to him, considering
this quality of evidence, the appellant / accused is entitled for
benefit of doubt. He placed reliance on the judgment of the
Hon’ble Apex Court in the matter of Tarkeshwar Sahu vs. State
of Bihar1.
5 I have heard the learned APP who argued that
evidence of PW4 Dr.Swati Kagne duly corroborates version of the
PW1 / prosecutrix and therefore, offences as alleged against the
appellant / accused are proved by the prosecution.
1 2006 (8) SCC 560
avk 10/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc6 I have carefully perused the record and proceedings
including the deposition of witnesses, so also the documentary
evidence placed on record. I have also considered the rival
submissions.
7 At the outset, let us put on record the undisputed
position. It is not disputed by the defence that the date of birth of
the PW1 / prosecutrix is 11th February 2001, and as such, the
appellant / accused has not disputed the fact that at the time of
the alleged incident, the PW1 / prosecutrix was below 18 years of
age. Undisputedly, this female child was residing at the house of
the appellant / accused during the academic session 2012-2013
and she left his house on 9th April 2013 for joining company of her
mother. It is not in dispute that during the academic year 2012-
2013 by staying at the house of the appellant / accused, the
PW1 / prosecutrix was taking education at Netaji Subhashchandra
Bose High School, Yerwada, Pune. Similarly, it is not in dispute
that the appellant / accused is husband of paternal aunt of the
PW1 / prosecutrix and that PW3 Kamal Gaikwad is mother of his
avk 11/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docwife Vandana. The defence has also not disputed that PW2
Suman Gaikwad is daughter-in-law of PW3 Kamal Gaikwad and
mother of PW1 prosecutrix. With this undisputed position on
record, let us examine whether the prosecution is successful in
making out the offence punishable under Section 376 of the IPC,
as well as the one punishable under Section 4of the POCSO Act.
8 Undisputedly, the victim of the crime in question, at
the relevant time, was a minor female child, she being below 18
years of age. As such, the appellant / accused cannot put forth the
theory of consent. PW1 prosecutrix had not attained the
consenting age.
9 Evidence on record coming from cross-examination of
PW3 Kamal Gaikwad so also from evidence of the PW1 /
prosecutrix and her mother PW2 Suman Gaikwad reflects the
reason for the PW1 / prosecutrix joining the company of the
appellant / accused for residing in his house at Yerwada, Pune.
From cross-examination of PW3 Kamal Gaikwad it is brought on
avk 12/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docrecord by the defence that the father of PW1 prosecutrix passed
away and the responsibility of maintaining the PW1 / prosecutrix
and her three sisters thereafter rested on shoulders of their mother
i.e. PW2 Suman Gaikwad. Cross-examination of PW3 Kamal
Gaikwad further shows that it was the appellant / accused who
asked PW3 Kamal Gaikwad and PW2 Suman Gaikwad to send the
PW1 / prosecutrix to his house for further education. Evidence of
PW2 Suman Gaikwad shows that because of death of her husband
and as she was required to shoulder the responsibility of
maintaining all her four daughters, hoping that the PW1 /
prosecutrix would get good education while staying at the house
of the appellant / accused, she had consented for sending PW1
prosecutrix for residing at the house of the appellant / accused.
Evidence of PW2 Suman Gaikwad, which is unchallenged in the
cross-examination, goes to show that she was not in a position to
provide educational facilities to her daughters. As seen from the
cross-examination of PW3 Kamal Gaikwad, then PW1 prosecutrix
was admitted at Netaji Subhashchandra Bose High School, in
Yerwada area of Pune, and she started residing in the house of the
avk 13/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docappellant / accused, which is also located at Yerwada, Pune. This
evidence, which is brought on record mostly from cross-
examination of PW2 Suman Gaikwad and PW3 Kamal Gaikwad
needs to be accepted and this court will have to keep in mind the
situation in which the PW1 / prosecutrix was constrained to join
company of the appellant / accused by residing with him and his
family members at his house at Yerwada, Pune. This evidence
unerringly points out that the appellant / accused who himself
obtained custody of the minor female child (PW1) was in a
position of dominating her while she was in his custody. In these
established facts, now let us examine what PW1 prosecutrix says
about the incident, as considering the nature of allegations made
against the appellant / accused, fate of the prosecution case to a
large extent depends on her version about the incident.
10 The PW1 / prosecutrix deposed that during her stay at
the house of the appellant / accused, he used to take her to the
terrace and he used to ask her to massage his private part by oil.
The PW1 / prosecutrix further stated that the appellant / accused,
avk 14/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docat that time, used to press her breast and he also was trying to
insert his penis into her vagina. The PW1 / prosecutrix further
deposed that the appellant / accused was sleeping on her body. At
that time, wife of the appellant / accused used to be in the kitchen
of the house and there used to be nobody at the terrace. The PW1
/ prosecutrix further deposed that the appellant / accused used to
give threats to her that if his acts were disclosed to anybody, then
he would kill her mother and due to this fear, she had not
disclosed the incident to anybody else.
11 PW2 Suman Gaikwad in her deposition before the
court has stated that while studying in 7 th Standard, her daughter
i.e. the PW1 / prosecutrix used to reside with the appellant /
accused and his family. After completion of examination, her
daughter was brought back by her mother-in-law PW3 Kamal
Gaikwad to her own house on 9th April 2013. On this aspect,
evidence of PW3 Kamal Gaikwad is also in tune with evidence of
PW2 Suman Gaikwad.
avk 15/32::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc12 PW2 Suman Gaikwad and PW3 Kamal Gaikwad in
their statements have disclosed narrations made to them by the
PW1 / prosecutrix after the appellant / accused left their house,
after attending urus of God Mhasoba, on 15th May 2013. As per
version of both these witnesses, at the time of visit of the
appellant / accused to their house, the PW1 / prosecutrix showed
disinclination to go back to the house of the appellant / accused.
She was questioned by both of them. Then, as per version of PW2
Suman Gaikwad, the PW1 / prosecutrix disclosed her that the
appellant / accused was sexually harassing her by asking her to
massage his private part, by touching her breast as well as her
private part, at the terrace of the house. In words of PW3 Kamal
Gaikwad, the PW1 / prosecutrix disclosed her that the appellant /
accused used to ask her to massage his private part, he used to
pull the PW1 / prosecutrix near him and used to kiss her.
13 It is, thus, clear from version of both these witnesses
that though the PW1 / prosecutrix had disclosed that the
appellant / accused was trying to insert his penis in her vagina,
avk 16/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docPW2 Suman Gaikwad and PW3 Kamal Gaikwad are not stating
that this fact was disclosed by the PW1 / prosecutrix to them.
PW2 Suman Gaikwad has stated that her daughter had disclosed
to her each and every thing about misbehavior of the appellant /
accused with her. However, nothing more than giving massage to
the private part of the appellant / accused and touching breast
and private part of the PW1 / prosecutrix, is stated by her before
the court.
14 Now let us examine whether an element of
improbability creeps in the prosecution case because of non-
disclosure of alleged sexual harassment to her by the PW1 /
prosecutrix to her mother PW2 Suman Gaikwad and her
grandmother PW3 Kamal Gaikwad. No doubt, during the period
of about one academic session, the PW1 / prosecutrix resided at
the house of the appellant / accused, but in the foregoing
paragraphs of this judgment, I have also disclosed circumstances
in which she was required to take shelter of the house of the
appellant / accused. Evidence on record disclosed that the PW1 /
avk 17/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docprosecutrix was hailing from a penury sticken family, after passing
away of her father. She was the victim of circumstances after
death of her father and as such helpless. From cross-examination
of PW2 Suman Gaikwad, it is elicited by the defence that the
PW1 / prosecutrix was required to do work of washing utensils,
clothes, as well as other work allotted to her at the house of the
appellant / accused. The PW1 / prosecutrix was hardly 13 years
of age at that time. Apart from taking school education, she was
also required to do household work at the house of the appellant /
accused. Considering poverty of the family of PW1 prosecutrix, so
also the fact that she was virtually in custody of the appellant /
accused for all practical purposes, coupled with the fact that her
evidence shows that the appellant / accused had threatened her
not to disclose anything to anybody or else her mother would be
killed, conduct of the PW1 / prosecutrix in keeping mum and to
shut her mouth during her entire stay with the appellant / accused
is not abnormal. A girl of tender years, who was virtually left at
the mercy of the appellant / accused, is not expected to speak
against the appellant / accused, particularly when she had lost her
avk 18/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docfather and there was no male member at her house. Hence, even
though evidence on record shows that the PW1 / prosecutrix had
ample opportunity to disclose her woes and sufferings to her
mother as well as her grandmother during telephonic talks, during
her brief stay at her mother's house, as well as during visits of her
grandmother to the house of the appellant / accused, non-
disclosure of the same cannot be said to be a factor which creates
doubts in version of PW1 prosecutrix. Her conduct appears to be
normal conduct of a helpless girl of tender age enmeshed in
cobweb of adverse circumstances and as such, this fact does not
cast shadow of doubt on version of the PW1 / prosecutrix.
Because of fear and terror of the appellant / accused, she was
virtually prohibited from disclosing anything to her other relatives.
15 Now let us examine, whether there is delay in lodging
the FIR and whether that delay is fatal to the case of the
prosecution. The case in hand is a case of sexual assault on minor
female child by her paternal uncle, and that too, when the minor
female child was in his custody for a period of one year. Sexual
avk 19/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docoffences are not reported to police because of tradition bound
Indian society. There are several reasons for such non-disclosure
of sexual offences, either to the relatives or to the law enforcing
agencies. The Hon'ble Apex Court, in the matter of Bharwada
Bhoginbhai Hirjibhai vs. State of Gujarat 2 has categorized
reasons for non-reporting sexual offences in Indian settings and
those are as under :
(1) A girl or a woman in the tradition bound non-
permissive Society of India would be extremely
reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred;
(2) She would be conscious of the danger of being
ostracised by the Society or being looked down by the
society including by her own family members,
relatives,friends, and neighbours;
(3) She would have to brave the whole world;
(4) She would face the risk of losing the love and
respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered;
(5) If she is unmarried, she would apprehend that it
would be, difficult to secure an alliance with a suitable
match from a respectable or an acceptable family;2 1983 AIR 753
avk 20/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc(6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself;
(7) The fear of being taunted by others will always
haunt her;(8) She would feel extremely embarrassed in relating
the incident to others being over powered by feeling of
shame on account of the upbringing in a tradition
bound society where by and large sex is taboo;
(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy;
(10) The parents of an unmarried girl as also the
husband and members of the husband's family of a
married woman, would also more often than not, want
to avoid publicity on account of the fear of social stigma
on the family name and family honour;(11) The fear of the victim herself being considered to be
promiscuous or in some way responsible for the
incident regardless of her innocence;(12) The reluctance to face interrogation by the
investigating agency, to face the court, to face
the cross examination by Counsel for the culprit, and
the risk of being disbelieved, acts as a deterrent.16 One will have to appreciate the evidence of the
prosecution in the backdrop of this position of law, keeping in
mind the fact that the prosecuting party and the appellant /
avk 21/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docaccused are closest relatives. PW2 Suman Gaikwad is the First
Informant. Her evidence indicates that she came to know about
the incident of sexual assault of her daughter i.e. the PW1 /
prosecutrix on 15th May 2013. Her evidence further shows that
then accompanied by her other relatives, she had been to the
house of the appellant / accused to question him on 18 th May
2013 and then with the help of PW5 Lilatai Sonawane, she lodged
report of the incident with police on 20 th May 2013. This witness
deposed that she was thinking about the matter and about the
further course of action to be taken in the matter. She further
deposed that the fact that close relative was involved in the matter
is one of the consideration before her. PW3 Kamal Gaikwad, who
is mother-in-law of the appellant / accused indicated in her
evidence that mental condition of PW2 Suman Gaikwad was
disturbed after getting knowledge of the incident and ultimately,
PW2 Suman Gaikwad was required to threaten her to take action
in the matter. In words of PW3 Kamal Gaikwad, PW2 Suman
Gaikwad has questioned her that though life of a granddaughter is
ruined, she (PW3 Kamal Gaikwad) is not taking any action in the
avk 22/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docmatter. It was in these circumstances, ultimately, PW2 Suman
Gaikwad was required to take help of PW5 Lilatai Sonawane to
lodge report against the appellant / accused.
17 Delay in lodging the FIR cannot be used as ritualistic
formula to suspect or discard case of the prosecution. The court is
required to search for explanation, if any, given by the First
Informant for lodging the FIR belatedly. If explanation is found to
be satisfactory, then the prosecution case cannot be discarded on
this ground. The court is also required to consider whether the
evidence on record indicates adding of embellishments or
exaggeration because of the delay in lodging the FIR, or whether
the prosecuting party was attempting to bolster up its case by
deliberately delaying the lodging of the FIR. Unless and until such
factors are established, even by preponderance of probability,
mere delay in lodging the FIR cannot render the case of the
prosecution brittle. The appellant / accused has not made out any
such contingency from cross-examination of witnesses of the
prosecution and evidence of the First Informant / PW2 Suman
avk 23/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docGaikwad coupled with evidence of her mother-in-law PW3 Kamal
Gaikwad gives satisfactory explanation of this short delay in a case
where serious allegations are leveled against their own relative.
Hence, I hold that the case of the prosecution is not suffering from
any delay in lodging the FIR.
18 Now let us examine whether evidence of the
prosecution establishes that the appellant / accused had committed
penetrative sexual intercourse on the PW1 / prosecutrix by
indulging in atleast slightest penetration. In this regard, submission
of the learned advocate appearing for the appellant / accused, as
reiterated earlier, is to the effect that the offence cannot travel upto
the one punishable under Section 376 of the IPC or under Section 4
of the POCSO Act, as there is no evidence of penetration. He relied
on chief examination of the victim of the crime in question to the
effect that the appellant / accused was trying to insert his penis in
her vagina. Therefore, according to the learned advocate for the
appellant / accused, there is no evidence of penetration.
avk 24/32::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc19 Section 375 of the IPC prescribes six categories which
constitute basic ingredients for the offence of rape punishable
under Section 376 of the IPC. In the case in hand, undisputedly,
the victim of the crime in question is a minor female child, who at
the relevant time, was of tender years. She was taking school
education in 7th Standard by residing at the house of the appellant
/ accused. On this backdrop, it needs to be kept in mind that
Section 375 of the IPC or explanation attached thereto does not
require that there should be complete penetration in order to
constitute offence of rape. Even partial or slightest penetration
into the private part of the victim would be quite enough to
sustain conviction under Section 376 of the IPC. The offence
punishable under Section 376 of the IPC postulates sexual
intercourse by a man with a woman. The word "intercourse"
means sexual connection. It can be slightest and not necessarily
complete. What is sine-qua-non for constitution of this offence is
penetration and to convict the accused for this offence the
requirement is that of clear and cogent evidence to establish that
some part of the virile member of the accused was within the labia
avk 25/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docof the victim of the crime in question. No matter how little. In
the wake of this legal position, one will have to assess the
evidence adduced by the prosecution in order to prove the guilt of
the appellant / accused on this count. No doubt, the victim of the
crime in question, who is a minor female child of tender years had
explained the act of the appellant / accused as that of 'trying to
insert his penis into her vagina', but the victim was subjected to
medical examination after lodging the FIR. The offence alleged
against the appellant / accused continued for entire academic
session 2012-2013 when the victim was residing at his house.
Because of her tender age, the victim of the crime in question i.e.
the PW1 / prosecutrix is not aware about the meaning of sexual
intercourse or sexual acts. Therefore, in her words, she deposed
what happened to her at the hands of the appellant / accused.
Considering the fact that the victim was of tender years, she is not
expected to have knowledge of sex and meaning of sexual
intercourse. Description of the act in detail cannot be expected
from her. However, result of such acts committed on her by the
appellant / accused are reflected on her body and those
avk 26/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docconstitutes evidence against the appellant / accused. In this
backdrop, it is in the evidence of PW4 Dr.Swati Kagne, a
gynecologist, resident doctor working with Sassoon hospital, that
she examined the PW1 / prosecutrix at about 2.00 a.m. of 21 st
May 2013. In medical examination of the PW1 / prosecutrix, PW4
Dr.Swati Kagne found that hymen of the PW1 / prosecutrix was
completely torn and it was having old healed tears at 8 O'Clock
and 10 O'clock position. On clinical examination of the PW1 /
prosecutrix, PW4 Dr.Swati Kagne came to the conclusion that
there was possibility of sexual vaginal intercourse with the PW1 /
prosecutrix. She further stated that tearing of the hymen,
presence of old healed tears at 8 O'Clock and 10 O'clock positions
reflects the case of sexual vaginal intercourse. The defence has
attempted to demonstrate that there are several other reasons for
tearing of hymen and it can be caused by cycling, athletic running
and sports. However, halfhearted cross-examination of PW4
Dr.Swati Kagne does not go beyond these suggestions which are
answered in affirmative by her. Moreover, there is no cross-
examination of the PW1 / prosecutrix to the effect that she was
avk 27/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docinvolved in vigorous sport activities such as cycling, athletic
running or other sports. In absence of such suggestions to the
PW1 / prosecutrix, one cannot infer that tearing of hymen of the
PW1 / prosecutrix can be attributable not to the activities of the
appellant / accused but to the other activities in sports
undertaken by the PW1 / prosecutrix. Hence, evidence of the
PW1 / prosecutrix to the effect that the appellant / accused was
trying to insert his male organ in her private part, coupled with
the fact that upon medical examination of PW1 prosecutrix, her
hymen was found to be torn and presence of old healed tears, is
definitely suggestive of penetrative sexual intercourse with her
constituting the offence punishable under Section 376 of the IPC
as well as the one under section 4 of the POCSO Act. Ultimately,
it is trite that evidence in the case of sexual offence against minor
female child is required to be considered in broader probabilities
of the prosecution case. Hence, non-description of the specific act
in its entirety by PW1 prosecutrix, who happens to be a minor
female child, is of no consequence as the prosecution has
established that there was penetration constituting the offence of
avk 28/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docrape and penetrative sexual intercourse. Ultimately, what is
required in the case of rape is not rigid proof of mathematical
precision, but proof beyond reasonable doubt considering broad
probabilities of the prosecution case. In this view of the matter, it
cannot be said that the learned trial court erred in holding the
appellant / accused guilty of offence alleged against him.
20 It needs to be mentioned here that evidence of the
PW1 / prosecutrix in respect of sexual assault on her by the
appellant / accused is well corroborated by evidence of her
mother PW2 Suman Gaikwad and grand mother PW3 Kamal
Gaikwad. These two witnesses proved previous statement made
to them by the PW1 / prosecutrix about the sexual assault on her
by the appellant / accused and such evidence is admissible under
Section 157 of the Evidence Act to corroborate version of the PW1
/ prosecutrix. PW3 Kamal Gaikwad is mother-in-law of the
appellant / accused and grandmother of the PW1 / prosecutrix.
She being close relative of both of them would be the last to
screen the real culprit and falsely implicate an innocent person.
avk 29/32::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.doc21 However, as rightly pointed out by the learned
advocate for the appellant / accused, in the wake of conviction of
the appellant / accused for the offence punishable under Section
4 of the POCSO Act and consequent sentence, the learned trial
court ought not to have sentenced him again for the offence
punishable under Section 376 of the IPC. He argued that sentence
imposed upon the appellant / accused for the offence punishable
under Section 376 of the IPC is not warranted. It needs to be
noted that Section 42 of the POCSO Act provides that where an
act or omission constitutes an offence punishable under the said
Act, so also the offence punishable under Section 376 of the IPC,
then, notwithstanding anything contained in any law for the time
being in force, the offender found guilty of such offence shall be
liable to punishment under the POCSO Act or under the IPC, as
provided for punishment which is greater in degree. In the case in
hand, the appellant / accused is sentenced to suffer rigorous
imprisonment for 10 years apart from directing him to pay fine of
Rs.5,000/-, in default, to undergo further rigorous imprisonment
for 1 year, for the offence punishable under Section 376 of the
avk 30/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.docIPC. Similar sentence is imposed upon him separately for the
offence punishable under Section 4 of the POCSO Act. The
appellant / accused, in the light of provisions of Section 42 of the
POCSO Act, cannot be awarded separate sentence for the offence
punishable under Section 376 of the IPC. In the result, the
following order :
ORDER
i) The appeal is partly allowed.
ii) Maintaining the conviction of the appellant /
accused for the offence punishable under
Section 376, in the wake of his conviction and
sentence for the offence punishable under
Section 4 of the POCSO Act, sentence of rigorous
imprisonment for 10 years as well as direction to
pay fine of Rs.5,000/- and in default, to undergo
further rigorous imprisonment for 1 year, for the
offence punishable under Section 376 of the IPC,
is quashed and set aside.
avk 31/32::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::
APPEAL-195-2016-J.dociii)Conviction and resultant sentence on rest of the
counts is maintained. Needless to mention that
sentence imposed on the appellant / accused for
the offence punishable under Section 4 of the
POCSO Act is maintained.
iv)The appeal is disposed of accordingly.
(A. M. BADAR, J.)
avk 32/32
::: Uploaded on - 29/08/2017 30/08/2017 01:28:51 :::