IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.420 OF 2015
Sunil s/o. Ramdas Salve,
Age : 21 years, Occ. Nil,
r/o. Ramjan-Chincholi,
Tq. Karjat, Dist. Ahmednagar,
presently in Yerwada Central
Prison, Pune ..Appellant
Vs.
The State of Maharashtra,
Through Police Station Officer,
Karjat Police Station,
Dist. Ahmednagar ..Respondent
—-
Mr.N.V.Gaware, Advocate for appellant
Mr.G.O.Wattamwar, A.P.P. for respondent
—-
CORAM : SANGITRAO S. PATIL, J.
RESERVED ON : AUGUST 23, 2017
PRONOUNCED ON : SEPTEMBER 01, 2017
JUDGMENT :
Heard
2. The appellant has assailed the legality and
correctness of the judgment and order dated
29.04.2014 passed in Sessions Case No.278 of 2013 by
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the learned Additional Sessions Judge, Ahmednagar,
whereby he has been convicted for the offences
punishable under Section 376(2)(i) of the Indian
Penal Code (“I.P.C.”, for short) and under Section 3
punishable under Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (“POCSO Act”,
for short), and sentenced for the offence punishable
under Section 376(2)(i) of the I.P.C. only, to suffer
rigorous imprisonment for ten years and to pay a fine
of Rs.10,000/- (Rs.Ten Thousand), in default to
suffer rigorous imprisonment of one year.
3. The victim girl is the daughter of the
informant namely, Intaj w/o. Shabbir Shaikh, r/o.
Village Chincholi-Ramjan, Tq. Karjat, District
Ahmednagar. The victim was aged about 14 years at
the time of the incident. She was studying in 5 th
standard at Parewadi, Tq. Karmala, Dist. Solapur.
She is hearing impaired and suffering from mild
mental retardation. She was not able to speak
fluently.
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4. On 25.06.2013 prior to about 8.00 p.m., the
victim had gone to purchase a stove-washer to the
shop of one Balasaheb Damodar Kale at village
Chincholi-Ranjan. As she did not come back even after
a considerable time, the informant went to the shop
of Balasaheb Damodhar Kale to see her. The said shop
was closed at that time. Balasaheb Kale was standing
near the shop. The informant asked Balasaheb Kale
about the victim, whereon he informed that she had
left his shop before about 15 minutes. The informant
then searched for the victim in the nearby places. At
that time, she heard the shouts of the victim ‘Mummi,
Mummi’ from the backside of a primary school
building. The informant then went to the backside of
the school building. At that time, the victim rushed
towards her. She was crying. On being asked, she
informed that the appellant took her in the dark
behind the school building, removed her Salwar and
knicker and committed rape on her. When she tried to
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raise shouts, the appellant pressed her mouth.
Thereafter, the informant along with the victim girl
and her nephew namely, Amin Shaikh, went to the house
of the appellant to question him about the incident.
At that time, the appellant admitted his mistake and
beg for pardon. Since it was a night time, the
informant did not immediately approach the Police
Station. On the next day, she lodged the F.I.R.
against the appellant in respect of the above-
mentioned incident.
5. On the basis of that FIR, Crime No.I-120 of
2013 came to be registered against the appellant for
the above-mentioned offence. The investigation
followed. The spot panchnama was prepared. The
victim and the appellant were medically examined.
The garments of the victim and that of the appellant
came to be seized and sent to the Chemical Analyst
for analysis and report. The statements of the
witnesses were recorded. The school record showing
the date of birth of the victim came to be collected.
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After completion of the investigation, the appellant
came to be charge-sheeted for the above-mentioned
offences.
6. The learned trial Judge framed charges
against the appellant for the above-mentioned
offences vide Exh.7 and explained the contents
thereof to him in vernacular. The appellant pleaded
not guilty and claimed to be tried. His defence is
that of total denial and false implication on the say
that he had demanded back the amount of hand-loan
from the informant, and therefore he was involved in
this case.
7. The prosecution examined eight witnesses to
bring home guilt of the appellant. The appellant also
examined three witnesses in his defence. After
scrutinizing the evidence on record, the learned
trial Judge held that the prosecution established the
above-mentioned offences against the appellant beyond
reasonable doubts. He, therefore, convicted and
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sentenced the appellant for the said offences, as
stated above.
8. The learned Counsel for the appellant
submits that the age of the victim has not been duly
proved by positive and dependable evidence showing
that she was aged about 14 years at the time of the
incident. According to him, the extract of the
general register and the certificate produced by the
In-charge Headmaster of Zilla Parishad Primary
School, Parewadi are suspicious documents. Relying
on the judgments in the cases of Sandeep Janaji Konde
Vs. State of Maharashtra, All.M.R. (Cri.) 1433 and
Sindhu Sukhdeo Waghmare Vs. State of Maharashtra,
2005 All.M.R. (Cri.) 2240, he submits that the school
record produced by the In-charge Headmaster should
not have been relied on by the learned trial Judge.
He submits that no ossification test or radiological
examination was done in order to ascertain the age of
the victim. In the absence of such test, examination
and any reliable evidence showing age of the victim,
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it cannot be said that the victim was below 16 years
of age at the time of the incident. The learned
Counsel further submits that the victim is a mentally
retarded person. She is suffering from loss of
hearing. She was not in a position to speak fluently.
In the circumstances, as per the provisions of sub-
section (3) of Section 26 of the POCSO Act, the
learned trial Judge should have taken assistance of a
Translator or Interpreter, while recording the
evidence of the victim. According to him, the
evidence of the victim recorded by the learned trial
Judge, without seeking assistance of Translator or
Interpreter, is not at all admissible. In the absence
of proper recording of the evidence of the victim,
the appellant should not have been connected with the
alleged incident. He submits that the C.A. reports do
not incriminate the appellant. The finding of semen
stains on the clothes of the appellant by themselves
would not connect him with the alleged incident of
rape. In support of this contention, he relied on the
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judgments in the cases of State of Maharashtra Vs.
Dadarao s/o. Bapurao Jivtode and ors., 2006 All.M.R.
(Cri.) 735 and Ashok Premaji Nirbhawane Vs. The State
of Maharashtra, 2014 (4) Mh.L.J.(Cri.) 407. The
learned Counsel pointed to the evidence of the
defence witnesses namely, Nana Bobade and Rohidas
Salve, who specifically states that the amount of
Rs.50,000/- was lent by the appellant to the
informant in the month of January, 2013 in their
presence. Nana Bobade further states that on the day
of the incident at about 8.00 p.m., the appellant and
himself had gone to the house of the informant to
demand that amount. At that time, their had been
exchange of hot words between the informant and the
appellant. She did not return the amount of hand-loan
and on the next day, she lodged the FIR against the
appellant. He submits that the FIR has been lodged at
10.00 p.m. on 26.06.2013. No explanation has been
given for the delay of more than one day in filing
the FIR. He submits that a false FIR came to be
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lodged against the appellant, only because he
demanded back the amount of hand-loan from the
informant. The learned Counsel, therefore, submits
that the appellant may be acquitted of the above-
mentioned offences.
9. On the other hand, the learned APP submits
that the informant specifically states that the
victim was aged of 14 years at the time of the
incident. The victim also states that her age as 14
years when she was examined before the trial Court.
The Investigating Officer, A.P.I. Rakh (PW 7) also
states that on the basis of the school record of the
victim, it was confirmed that she was aged about 14
years at the time of the incident. The evidence of
these witnesses about the age of victim has not been
challenged in their cross-examination. Their evidence
is supported by the extract (Exh.26) from the general
register of the school, where the victim was
studying, wherein her date of birth is mentioned as
03.08.1999. The In-charge Headmaster had brought the
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original general register. The entry about admission
of the victim in that register was taken in the
ordinary course of business. There was no reason to
prepare false record when the victim was admitted in
that school much prior to the date of the incident,
when it was not even anticipated that the victim may
face such incident. Relying on the judgment in the
case of Arjun Singh Vs. State of H.P., AIR 2009 SC
1568, he submits that the entry in the school
register has evidenciary value and can be considered
for determination of age of the victim. In the
circumstances, according to him, it was not necessary
to subject the victim to ossification test or
radiological examination for ascertaining her age. He
submits that the defence of the appellant is not at
all natural, probable and acceptable. There is no
documentary evidence to show that the appellant lent
Rs.50,000/- to the informant at any point of time. A
suggestion was given to the informant on behalf of
the appellant that she had taken Rs.10,000/- from the
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appellant and when he insisted her to return that
amount, she lodged a false FIR against him. This
suggestion has been flatly denied by the informant.
Moreover, this suggestion is not consistent with the
evidence of Nana Bobade (DW 2) and Rohidas Salve
(DW3) that the appellant had lent Rs.50,000/- to the
informant. He submits that the victim was quite
competent to depose before the Court. The learned
trial Judge got it confirmed before recording her
evidence, about her competency to depose as a
witness. She has faced the cross-examination
effectively. In such circumstances, it was not
necessary to take assistance of a Translator or
Interpreter for recording her evidence, as prescribed
under sub-section (3) of Section 26 of the POCSO Act.
He submits that there was no reason for the informant
and the victim to state false against the appellant.
The informant has given explanation that due to night
time, she did not approach the police station
immediately after the incident. He submits that the
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evidence on record sufficiently proves beyond the
reasonable doubts that the appellant committed rape
on the victim. He supports the impugned judgment and
order and prays that the appeal may be dismissed.
AGE OF THE VICTIM GIRL
10. The victim girl states at Exh.33 as PW 6 on
solemn affirmation her age as 14 years. The informant
(PW 1) (Exh.13) also states that the victim was 14
years old. In the FIR (Exh.14) also, the age of the
victim is mentioned as 14 years. Dr.Pushpa Narote
(PW3) (Exh.17), who examined the victim on 26.06.2013
also mentions the age of the victim as 14 years in
her deposition as well as in the Certificate
(Exh.18). A.P.I. Rakh (PW 7)(Exh.34) states that on
the basis of the school record of the victim, he got
it confirmed that she was aged about 14 years at the
time of the incident. The evidence of these witnesses
about the age of the victim has not at all been
challenged in their cross-examination. It is not even
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suggested to them that the victim was more than 16
years of age. Shahaji Deokate (PW 5)(Exh.25), who
happened to be the In-charge Headmaster of the Zilla
Parishad Primary School, Parewadi, deposes that the
victim was admitted in his school as a fresher in
the first standard on 30.08.2007 by her mother and
her date of birth is 03.08.1999. He had brought the
original general register of the school with the
extract (Exh.26) thereof in respect of the entry of
the victim in that school. On that basis of that
record, he issued the Certificate (Exh.27) showing
the date of birth of the victim as 03.08.1999.
11. The learned Counsel for the appellant points
out to Entry No.1215 in respect of the victim from
the extract (Exh.26), wherein the name of her mother
is shown as “Lintaj”. He submits that the name of the
informant is “Intaj”. Therefore, according to him,
the said entry cannot be said to be that of the
victim. He further submits that in column no.6 of the
extract (Exh.26), there has been interpolation and
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the student concerned is shown to have been admitted
for the first time in that school. Therefore,
according to him, the extract (Exh.26) from the
admission register cannot be believed.
12. I am not inclined to accept this contention.
There may be some difference in recording the name of
the informant because of clerical mistake in the said
column of the extract (Exh.26) showing it as ‘Lintaj’
instead of ‘Intaj’ being the mother of the victim.
However, the name of the father of the victim has
been correctly recorded as Shabbir Shaikh. There is
no dispute that the name of the father of victim is
Shabbir Shaikh. The original general register was
also produced by Deokate (PW 5) when he was examined
before the Court. Entry no.1215 in respect of the
victim has been taken in the ordinary course of
business by the school authorities. The said entry
has been taken on 30.08.2007 i.e. prior to six years
of the date of the incident. It was not even
anticipated at that time that such entry would be
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required to be produced before the Court to prove the
age of the victim. The said entry would certainly be
admissible under Section 35 of the Indian Evidence
Act in proof of the age of the victim. On the basis
of the date of birth of the victim recorded in the
general register of the school, her age would be 13
years and 10 months at the time of the incident. In
view of this documentary evidence coupled with the
unchallenged above-referred oral evidence of the
victim and other three witnesses, I have no
hesitation to hold that the victim was 14 years of
age or even less than 14 years of age at the time of
the incident.
13. In the case of Sandeep Janaji Konde (supra),
the age of the victim was sought to be proved on the
basis of her own statement and the school leaving
certificate. The entries in the school register were
not at all produced. There was no material to prove
that the school leaving certificate contained
accurate record of entries in the general register
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maintained by the school. The headmaster, who issued
the certificate, also was not examined. In the
circumstances, it was held that the prosecution
failed to prove that the victim was below 16 years of
age at the time of the incident. In the present case,
the extract (Exh.26) has been duly proved by
producing the original general register before the
Court. The In-charge Headmaster himself appeared as a
witness to prove the entry in the extract (Exh.26).
Moreover, there is unchallenged oral evidence of the
above-named witnesses about the age of the victim.
In the circumstances, the judgment in the case of
Sandeep Janaji Konde (supra) would be of no help to
the appellant to discard the evidence of the
prosecution that has been produced to prove the age
of the victim.
14. In the case of Sindhu Sukhdeo Waghmare
(supra), the prosecution examined the Headmaster of
the school, where the prosecutrix was studying. He
produced the original register and on the basis of
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the said register, he produced the school leaving
certificate of the prosecutrix showing her date of
birth. In the cross-examination, he admitted that
the police did not record his statement and did not
collect copy of the school leaving certificate. He
further admitted that the name of the school was not
mentioned in the register. He then admitted that it
was not the first entry of the prosecutrix when she
took admission to the school. He states that
initially, the prosecutrix has taken admission in
Zilla Parishad Marathi School and thereafter, she
took admission in English school. In the
circumstances, his evidence was disbelieved. It was
held that the Headmaster was examined to fill-up the
lacunae in the prosecution case, though his name did
not figure in the list of the witnesses and though
his statement was not recorded. It was further
observed that neither the mother nor the prosecutrix
state that she was minor below 16 years of age at the
time of the incident.
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15. The facts in the present case are totally
distinguishable. In the present case, the victim and
her mother have specifically stated about the age of
the victim, which evidence has remained unchallenged.
It is not that Deokate (PW 5) was not examined by the
Investigating Officer as witness during the course of
investigation. The original general register showing
the name of the school of the victim was produced
before the Court. The Certificate (Exh.27) also has
been produced showing the name of the school and the
date of birth of the victim. In the circumstances,
the judgment in the case of Sindhu Sukhdeo Waghmare
(supra) would not assist the appellant to through
suspicion on the evidence produced by the prosecution
about the age of the victim.
16. In view of the above evidence, I have no
hesitation to hold that the victim was below 16 years
of age at the time of the incident.
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APPLICABILITY OF SECTION 26(3) OF THE POCSO ACT
17. As per sub-section (3) of Section 26 of the
POCSO Act, the Magistrate or the police officer, as
the case may be, may, in the case of a child having a
mental or physical disability, seek the assistance of
a special educator or any person familiar with the
manner of communication of the child or an expert in
that field, having such qualifications, experience
and on payment of such fees as may be prescribed, to
record the statement of the child.
18. In the present case, the informant states
that the victim is hearing impaired to some extent.
She cannot speak fluently. The informant does not
state that the victim is mentally challenged. The
victim has been examined by the learned trial Judge
at Exh.33. In the preliminary examination, the
learned trial Judge made following observations :-
” Witness sought to be examined
is 14 years old, minor girl. As per
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the report of Medical experts, her
hearing is impaired since childhood and
as per the report of Psychologist, she
is having mild mental retardation. On
this background, I put some questions
to ascertain her capability to give
evidence and to know her views about
sanctity of oath. No doubt, she has
replied the questions put to her about
name, place where she resides, the
standard in which she is studying,
Quran and its importance, but replied
all these questions in cryptic manner,
that too after asking those questions
repeatedly. That itself would not make
her incompetent witness. Thus, it is
necessary to record her evidence after
administering oath.”
19. As per Section 118 of the Indian Evidence
Act All persons shall be competent to testify unless
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the Court considers that they are prevented from
understanding the questions put to them, or from
giving rational answers to those questions, by tender
years, extreme old age, disease, whether of body or
mind, or any other cause of the same kind. The
explanation under Section 118 of the Indian Evidence
Act makes it clear that even a lunatic is not
incompetent to testify, unless he is prevented by his
lunacy from understanding the questions put to him
and giving rational answers to them.
20. Though it is observed by the learned trial
Judge that the victim was having mild retardation, he
found in preliminary examination of the victim, that
she was capable to give the evidence. As seen from
the examination-in-chief, the victim has deposed
verbally as well as by making signs/gestures,
whenever necessary. From the manner in which the
victim deposed before the Court, as exhibited from
her examination-in-chief as well as the cross-
examination, it is quite clear that she was able to
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understand the questions put to her and give rational
answers thereto. She has effectively faced the cross-
examination. The learned Counsel for the appellant
did not raise any objection before the trial Court on
the ground that the victim was not able to answer or
understand the questions that were being put to her.
In the circumstances, in my view, it was not
necessary to resort to the provisions of sub-section
(3) of Section 26 of the POCSO Act for recording the
evidence of the victim.
OCCULAR EVIDENCE
21. The victim deposes that after purchasing the
washer from the shop she was going back to her house.
At that time, the appellant approached her, took her
kiss and pressed her chest. Thereafter, he removed
her knicker and that of himself and committed sexual
intercourse with her. She used a Marathi word ” केल”
for the act of sexual intercourse. On hearing her
shouts, her mother came and took her to home. She
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informed her mother about the aforesaid act committed
by the appellant with her. The victim could not give
the exact date, day and time of proceeding to the
grocery shop for purchasing the washer. She denied
the suggestions put to her by the learned Counsel for
the appellant in her cross-examination. Considering
the disability suffered by the victim and her age, it
was not expected of her to give all the details about
the date, day and time as well as the description of
the clothes of the appellant and that of herself. She
denied that she was tutored by the informant to speak
against the appellant. The evidence of the informant
appears to be quite natural. She would not have
thought of making any false allegations against the
appellant had he not been involved in the incident in
question.
22. The informant specifically states that the
victim had gone to the shop of Balasaheb Kale (DW 1)
for purchasing washer of stove. Since the victim did
not come back home for a considerable time, she went
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to the shop of Balasaheb Kale (DW 1) to inquire about
the victim. The shop was closed. Balasaheb Kale (DW1)
was standing near his shop. On inquiry, he informed
that the victim had left his shop just prior to 15
minutes. Then the informant started searching for the
victim. At that time, she heard shouts ‘Mummi Mummi’
from behind a Marathi school building. Then, the
victim also came towards her. She was weeping. On
being asked by her, the victim told that the
appellant took her to the backside of the school
building, removed her knicker, salwar, gagged her
mouth and committed rape on her. Thus, the evidence
of the informant about the conduct of the victim,
subsequent to the incident of rape, is quite relevant
and admissible in view of the illustration (j) under
Section 8 of the Indian Evidence Act. Furthermore,
the informant states that after the incident, she
went to the house of the appellant with the victim
and her nephew Amin Shaikh. On being asked, the
appellant tendered apology saying that he committed
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mistake. This reaction of the informant also
fortifies the version of the victim in respect of the
misdeeds of the appellant. Thus, the evidence of the
informant corroborates the version of the victim in
respect of occurrence of the incident in question.
MEDICAL EVIDENCE
23. Dr.Pushpa Narote (PW 3)(Exh.17) states that
on 26.06.2013 at about 10.05 p.m., she examined the
victim in the sub-District Hospital at Karjat and
found that her hymen was absent and there was
evidence of vaginal penetration. According to her,
she issued Certificate (Exh.18). She collected the
samples of vaginal swab, parineal swab, blood in
plain bulb, blood in citrate bulb, nails pubic hairs
etc. and sent them to the Chemical Analyst. After
perusal of the C.A. reports in respect of those
samples, she gave final opinion (Exh.20) that there
was evidence of vaginal penetration. It has come in
her cross-examination that the hymen may be absent
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because of various reasons i.e. cycling, swimming,
fast running, long jump, high jump, etc. and that
absence of hymen cannot be a decisive factor to
decide rape or sexual intercourse. She further states
that she gave opinion as to vaginal penetration and
that it may be due to sexual intercourse or by
climbing and swimming etc. According to the learned
Counsel for the appellant, the medical evidence does
not establish positively that sexual intercourse was
committed with the victim girl. This statement cannot
be accepted. There is absolutely no evidence to show
that on the day of the incident, the victim had
indulged in cycling, swimming, fast running, long
jumping, high jumping, etc. Therefore, alternative
possibilities of absence of hymen or opinion as to
vaginal penetration suggested on behalf of the
appellant, would not come in the way of the
prosecution to establish that the victim was
subjected to sexual intercourse only.
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24. The learned Counsel for the appellant tried
to challenge the evidence of Dr.Pushpa Narote (PW 3)
on the ground that while obtaining consent for
physical examination of the victim, thumb mark of the
informant has not been attested. It has come in the
evidence of Dr.Pushpa Narote (PW 3) that the victim
was produced in the Sub-District Hospital, Karjat by
A.P.I. Rakh (PW 7) with a requisition letter. She
further states that she examined the victim
clinically and gynecologically after obtaining the
written consent of her mother Intaj Shaikh. The
letter (Exh.45) is the office copy of the letter
received by Dr.Pushpa Narote (PW 3), whereby she was
requested to conduct the medical examination of the
victim. The said office copy bears her signature.
With this strong evidence on record, there is no room
to raise doubt about production of the victim before
Dr.Pushpa Narote (PW 3) for medical examination on
26.06.2013, as mentioned in the Certificate (Exh.18).
Only because the thumb mark of the informant in the
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consent form is not attested, the evidence of
Dr.Pushpa Narote (PW 3) cannot be seen with
suspicion. This medical evidence fully supports the
version of the victim that she was subjected to
penetrative sexual assault at the time of the
incident.
25. As per Section 29 of the POCSO Act, where a
person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3, 5,
7 and section 9 of this Act, the Special Court shall
presume, that such person has committed or abetted or
attempted to commit the offence, as the case may be
unless the contrary is proved. It is true that the
appellant was under an obligation to disprove the
case of the prosecution beyond doubt. He was expected
to bring some evidence on record to make his evidence
probable and acceptable.
26. The appellant examined Balasaheb Kale (DW 1)
(Exh.48), the shop-owner, to whom the victim had gone
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29 cri.appeal.420-15
to purchase washer of stove on the day of the
incident. He simply states that his shop was closed
from 24.06.2013 to 26.06.2013 as he had gone to
Pandharpur for darshan of Lord Pandurang. It seems
that this is a got-up witness coming forward to
support the appellant. This witness must be keeping
accounts of his shop. The said accounts would have
disclosed, whether that shop was closed on the above-
mentioned dates. He has not produced those accounts.
His bare version that his shop was closed on those
dates does not inspire confidence. The informant
specifically states that this witness met her on the
day of the incident, when she went to his shop to
inquire about the victim and that he had told that
the victim had left just prior to 15 minutes from his
shop. There was no reason for the informant to state
false about her visit to the shop of this witness and
interaction made with him on the day of the incident.
27. Nana Bobade (DW 2) and Rohidas Salve (DW 3)
states that in the month of January, 2013, the
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30 cri.appeal.420-15
appellant had lent Rs.50,000/- to the informant as
hand-loan. There is absolutely no documentary
evidence in proof of this hand-loan translation. The
appellant was aged 19 years at the time of the
incident. Nana Bobade (DW 2) admits that the
appellant was not in any private service. There is
nothing on record to show that the appellant was
having sufficient income, from which he could have
lent Rs.50,000/- to the informant. The learned
Advocate for the appellant, on the instructions of
the appellant, cross-examined the informant, wherein
he suggested that she had taken Rs.10,000/- from him.
This discrepancy in the amount of hand-loan itself
falsifies the defence of the appellant that he had
lent Rs.50,000/- to the appellant and when he
demanded that amount, the informant lodged a false
report against him. This defence is not at all
plausible because the informant would not have
thought of lodging a false report against the
appellant at the cost of dignity of her daughter and
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31 cri.appeal.420-15
herself. The appellant, thus, has totally failed to
prove anything contrary to what has been alleged
against him by the victim and the informant. The
presumption under Section 29 of the POCSO Act, thus,
strengthens the case of the prosecution.
28. The garments of the victim and that of the
appellant were sent to the Chemical Analyst for
analysis and report. There were few semen stains on
the middle portion of underwear of the appellant,
however, no semen stains were found on the underwear
of the victim. The blood of the victim also was not
found on the underwear of the appellant. The C.A.
report would be of no help to the prosecution to
incriminate the appellant. The learned Counsel for
the appellant rightly relied on the judgment of
Ashok Premaji Nirbhawane (supra), wherein it is
observed that the finding of semen stains on the
clothes of the accused, by itself, would not
incriminate him.
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32 cri.appeal.420-15
29. Considering the evidence of the victim and
the informant supported by the medical evidence, in
my view, the absence of semen stains on the
undergarments of the victim and the appellant, by
themselves, would not be helpful to the appellant to
disprove the case of the prosecution. The learned
Counsel for the appellant cited the judgment in the
case of State of Maharashtra Vs. Dadarao s/o. Bapurao
Jivtode and ors. (supra), wherein the C.A. report
disclosed no semen stains on the garments and vaginal
swab of the victim and also on the garments of the
accused. It was an additional circumstance found by
this Court while upholding the judgment of acquittal.
In that case, the incident took place at night when,
admittedly, there was no electricity supply. The
identity of the miscreants could not be proved.
Therefore, the accused were acquitted. In the present
case, identity of the appellant is not in question.
Therefore, the above-cited judgment would be of no
help to the appellant.
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33 cri.appeal.420-15
DELAY IN LODGING THE REPORT
30. It is true that the FIR (Exh.14) has been
lodged on 26.06.2013 at about 10.00 p.m. i.e. after
about one day of the incident. There is no dispute
that the husband of the informant is no more. After
the incident, she did not go to the police station
immediately since it was a night time. She states
that on the next day at about 11.00 a.m., she went to
village Mirajgaon and then, to Karjat Police Station.
It is quite natural on her part to inform her
relatives and seek their advise as to what should be
done in respect of the incident. It is a common
knowledge that in respect of such incidents,
generally, the reports are lodged with reluctance,
because lodging of the report may have adverse effect
on the dignity of the family of the victim and that
of herself. In the circumstances, if the informant
takes some time in thinking over lodging of the
report, it cannot be said that it was an outcome or
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34 cri.appeal.420-15
afterthought or result of due deliberation. In the
circumstances, the delay in lodging the report would
not have any adverse effect on the case of the
prosecution.
31. The learned trial Judge rightly considered
the facts of the case as well as the evidence on
record and rightly held the appellant guilty of the
above-mentioned offence. The offence under Section
376(2)(i) of the I.P.C. is punishable with rigorous
imprisonment for a term, which shall not be less than
10 years and, but which may extend to imprisonment
for life, which shall mean imprisonment for the
remainder of that person’s natural life and shall
also be liable to fine. The offence under Section 3
punishable under Section 4 of the POCSO Act, shall be
punishable with imprisonment of either description
for a term, which shall not be less than seven years
but which may extend to imprisonment for life, and
shall also be liable to fine. Section 42 of the
POCSO Act reads as under :-
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35 cri.appeal.420-15
“42. Alternate punishment.- Where an
act or omission constitutes an offence
punishable under this Act and also
under Sections 166-A, 354-A, 354-B,
354-C, 354-D, 370, 370-A, 375, 376,
376-A, 376-C, 376-D, 376-E or Section
509 of the Indian Penal Code, 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 this Act or under the Indian
Penal Code as provides for punishment
which is greater in degree.”
32. The punishment for the offence punishable
under Section 376(2)(i) of the I.P.C. being greater,
was liable to be imposed against the appellant. The
learned trial Judge has rightly imposed the said
punishment on the appellant. The impugned judgment
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36 cri.appeal.420-15
and order are quite legal, proper and correct. They
do not call for any interference.
33. Hence, the order :-
The appeal is dismissed.
[SANGITRAO S. PATIL]
JUDGE
kbp
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