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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 934 OF 2014
Vanita Vasant Patil
Age : 56 Yrs, Occu. Service,
R/o. Prathamesh Society, Flat No.10,
Lokhadipada, Panvel, Dist-Raigad
(At present lodged in Central Jail)
… APPELLANT
(Orig. Accused no.2)
VERSUS
1) The State of Maharashtra
(At the instance of Sr.P.I.Uran
Police Station, Dist. Raigad).
2) Victim girl-X
Mukam Post, Mothi Jui,
Tal.Uran, Dist.Raigad. … RESPONDENTS
(with a view to conceal an
identity of the informant,
she is referred as
“victim girl-X)
W I T H
CRIMINAL APPEAL NO. 919 OF 2014
Mr. Datta Somnath Jadhav,
Aged about 43 years, adult,
Indian inhabitant, Occ : Service
R/o.Navjeevan Society,
L-3 Yugant Colony, Sukapur
New Panvel, Dist.Raigad.
(Alibag Prison) … APPELLANT
(Orig. Accused No.1)
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VERSUS
1) State of Maharashtra
(Through Uran Police Station)
2) Victim girl-X
Mukam Post, Mothi Jui
Tal. Uran, Dist.Raigad … RESPONDENTS
W I T H
CRIMINAL APPEAL NO. 160 OF 2015
(For Enhancement of Sentence)
The State of Maharashtra … APPELLANT
(Orig. Complainant)
VERSUS
1) Datta Somnath Jadhav,
Age 43 years, Occ : Service
R/o.Navjeevan Society,
L-3 Yugant Colony, Sukapur
New Panvel, Dist.Raigad.
2) Vanita Vasant Patil
Age : 56 Yrs, Occu. Service,
R/o. Prathamesh Society,
Flat No.10, Lokhadipada, Panvel,
Dist: Raigad. … RESPONDENTS
(Orig. Accused Nos.1 and 2)
…
Mr. Mahesh Vaswani a/w Mr. Jagdish Shetty a/w Ms.
Dharni Nagda a/w Ms. Sophia Hasan Advocates for
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Appellant in Criminal Appeal No. 934/2014.
Mr. Sathyanarayanan, Advocate for Appellant in
Criminal Appeal No. 919/2014
Mrs. M.H. Mhatre, A.P.P. for Respondent – State in
Criminal Appeal No. 934/2014 and Criminal Appeal
No.919/2014 and for Appellant in Criminal Appeal
No.160/2015.
…
CORAM: S.S. SHINDE AND
A.S. GADKARI, JJ.
DATE OF RESERVING JUDGMENT : 23rd OCTOBER, 2018.
DATE OF PRONOUNCING JUDGMENT: 2nd NOVEMBER, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. Criminal Appeal No. 919 of 2014 filed by
accused No.1 Datta Somnath Jadhav (for the sake of
brevity, hereinafter would be referred as accused
No.1), is directed against the Judgment and Order
dated 28th October, 2014 passed by the Additional
Sessions Judge, Raigad-Alibag thereby convicting
accused No.1 for the offence punishable under
Section 376(2)(b) of the Indian Penal Code read
with Section 5(c), 6 of Protection of Children
from Sexual Offences Act (for short, “POCSO Act”)
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and sentencing him to suffer rigorous imprisonment
for ten years and to pay fine of Rs.20,000/- and
in default to suffer rigorous imprisonment for two
years. The Trial Court also convicted accused No.1
for the offence punishable under Sections 292, 509
of Indian Penal Code read with Section 14 of POCSO
Act read with section 67 B of Information
Technology Act and sentenced him to suffer
rigorous imprisonment for five years and to pay
fine of Rs.10,000/, in default to suffer rigorous
imprisonment for one year. The Trial Court also
convicted accused No.1 for the offence punishable
under Section 342 of Indian Penal Code and
sentenced him to suffer rigorous imprisonment for
one year and to pay fine of Rs.1,000/, and in
default to suffer rigorous imprisonment for one
month. The Trial Court also convicted accused No.1
for the offence punishable under Section 354 of
Indian Penal Code and sentenced him to suffer
rigorous imprisonment for two years and to pay
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fine of Rs.5,000/, and in default to suffer
rigorous imprisonment for five months. All the
sentences were directed to be run concurrently.
2. Criminal Appeal No. 934 of 2014 filed by
Vanita Vasant Patil (for the sake of brevity
hereinafter would be referred as accused No.2) is
directed against the Judgment and Order dated 28 th
October, 2014 passed by the Additional Sessions
Judge, Raigad-Alibag thereby convicting her for
the offence punishable under Section 376(2)(b),
109 of Indian Penal Code read with Section 5(c), 6
and 17 of POSCO Act and sentencing her to suffer
rigorous imprisonment for ten years and to pay
fine of Rs.10,000/- and in default to suffer
rigorous imprisonment for one year. The Trial
Court also convicted accused No.2 for the offence
punishable under Sections 292, 509, 109 of Indian
Penal Code read with Sections 14 and 17 of POSCO
Act read with Section 67 B of Information
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Technology Act and sentenced her to suffer
rigorous imprisonment for five years and to pay
fine of Rs.5,000/, and in default to suffer
rigorous imprisonment for five months. The Trial
Court also convicted accused No.2 for the offence
punishable under Section 342 of IPC and sentenced
her to suffer rigorous imprisonment for one year
and to pay fine of Rs.1,000/, and in default to
suffer rigorous imprisonment for one month. All
the sentences were directed to be run
concurrently.
3. Criminal Appeal No. 160 of 2015 is filed
by the State for enhancement of the sentence
imposed upon accused No.1 and accused No.2.
4. All these three Criminal Appeals are
arising out of one and the same Judgment and Order
passed by the trial Court, hence the same are
being decided by this common Judgment.
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5. The prosecution case, in brief, is as
under:
A] Complainant/victim girl (with a view to
conceal an identity, name is not disclosed)
resides at village Mothi Jui, Tal.Uran along with
her mother, two sisters and brother. Her father
Tulshiram Bhoir is no more. In the year 2013, she
was taking education as regular student in VIIth
standard, in Z.P. Primary School at village Mothi
Jui. Accused No.1 was employed as teacher in the
said school. At the relevant time and prioir to
the incident, he was discharging his duties, as
class teacher of the victim. While accused No.2
was working as head mistress in the said school.
At about two months prior to filing of the
complaint, during the first recess in the school,
at about 12.00 noon, complainant/victim girl was
playing in the school premises along-with other
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students. At that time, accused No.2 called her in
the office, and told her to clean the room where
rice was stored (for short, “rice room”), which
was adjacent to the office of head mistress. As
soon as complainant went inside the said rice
room, accused No.2 bolted the door of the said
room from outside. Accused No.1 was present in the
said room, and he caught hold the hands of
complainant and then kept her on the bench by
removing her wearing clothes, and thereafter
snapped the photographs of the chest and private
part of complainant, on his mobile. So also,
accused No.1 laid the victim girl on gunny bag
(Gonpat) and pressed her breast and also told her
to take his private part into her mouth, which she
refused and so, accused No.1 penetrated his penis
into the private part of the complainant and also
threatened her to keep quiet. Accused No.1 told
complainant to wear her clothes, and also
threatened her that if she endeavor to disclose
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the incident to others he will beat her like dog.
Thereafter, accused no.2 removed the bolt of the
door and the complainant went to her class room.
B) After some days, accused No.2 called the
complainant to her office, and then told the
complainant to go inside the rice room and when
the complainant entered into the rice room,
accused No.1 came in the said room and accused
No.2 bolted the door of the room from outside.
Then accused No.1 gave chocolate to the
complainant and kept her on the bench with an
intention to snap her photographs, and
accordingly, the accused No.1 took photographs of
her chest and private part on his mobile. Then
after some days, accused No.1 again called the
complainant. But the complainant did not go, so,
accused No.1 got annoyed. One day accused No.1
threw duster towards victim girl-X which was hit
on the head of the victim girl-X. Then the victim
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girl-X informed the said incident to her mother.
However, her mother did not lodge any complaint.
As the victim girl-X came to know about the
complaint lodged against accused No.1 by another
school girl, she got courage to lodge the
complaint. Accordingly, she lodged the report in
Uran Police station on 22nd January, 2013. Police
Inspector – Avate reduced the report of the
complainant into writing and registered an offence
vide Crime No.13/2013 and handed over the
investigation to ACP – Borate. ACP – Borate
visited the spot and prepared spot panchanama at
the place of incident shown by the victim girl-X.
So also, ACP – Borate prepared the panchanama in
presence of forensic expert and seized gunny bag
(Gonpat) from the spot. He seized the clothes of
the complainant vide seizure panchanama. Accused
No.1 came to be arrested in Crime No.10/2013
registered with Uran Police Station under Sections
354, 509 of the Indian Penal Code (for short,
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“IPC”) in which two mobiles were seized from
accused No.1 vide arrest panchanama and ACP –
Borate conducted the said panchanama as well as
panchanama of the two mobiles containing obscene
photographs of the student girls. ACP – Borate
arrested the accused. Accused No.1 while in police
custody showed his readiness to produce his
clothes used at the time of the incident and
accordingly, ACP – Borate prepared memorandum of
accused No.1 and subsequently seized the clothes
at the instance of accused Datta Jadhav vide
seizure panchanama.
C) The complainant was examined by Dr.
Minakshi Sawant of NMMC hospital, Washi and she
issued medical examination report with an opinion
that, hymen of victim girl-X was torn and admit
one finger easily. ACP – Borate obtained the spot
map from Circle Inspector, Koproli. As per the
directions of ACP – Borate, PSI – Puri recorded
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the statements of school students including the
victim girl-X. So also, ACP – Borate recorded the
statements of witnesses including guardian of the
girl students. ACP – Borate sent the seized
articles to Chemical Analyzer Office and received
the Chemical Analysis reports in this behalf.
D) During the course of investigation, it
was transpired that accused No.1 committed rape on
minor victim girl-X and accused No.2 abetted
accused No.1 in commission of the said crime. So
also, accused No.1 taunted and committed sexual
assault and caused harassment of the girl students
including the complainant, and also snapped
obscene photographs of the complainant on his
mobile and accused No.2 abetted accused No.1 in
commission of aforesaid offences. After completion
of the investigation, the investigating officer
filed charge sheet against the accused persons in
the Court of Judicial Magistrate, First Class,
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Uran.
E) As the offence under Section 376 of IPC
is exclusively triable by the Court of Sessions,
the Judicial Magistrate, First Class, Uran
committed the case bearing R.C.C. No. 54/2013 to
the Sessions Court for trial.
F) A charge under Section 376(2)(b), 354,
292, 509, 342, 109 of the IPC and under Section
5(c), 6, 14 and 17 of Protection of Children from
Sexual Offences Act and also under Section 67B of
Information Technology Act, as against accused
No.1 and accused No.2 was framed vide Exhibit-3,
and same was read over and explained to the
accused in vernacular. The accused pleaded not
guilty and claimed to be tried.
6. After recording the evidence and
conducting full-fledged trial, the trial Court
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convicted and sentenced the appellants – accused
for the aforesaid offences in the manner stated in
paragraphs 1 and 2 herein before, the Criminal
Appeal No. 919 of 2014 is preferred by the
appellant Datta Somanth Jadhav and Criminal Appeal
No.934 of 2014 Appeal is preferred by appellant –
Vanita Vasant Patil challenging the conviction and
sentence. As already mentioned in paragraph 3,
Criminal Appeal No. 160 of 2015 is preferred by
the State seeking for an enhancement of the
sentence imposed upon the accused persons.
7. Learned counsel appearing for the
Appellant- Vanita in Criminal Appeal No.934 of
2014 submitted that the appellant has been
falsely implicated in the alleged incident. Though
the victim girl-X alleged that she was sexually
assaulted, however she admits that she did not
suffer any bleeding during an alleged incident of
rape. Even the Medical Officer (PW-12) who
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examined the victim girl-X has specifically stated
that the victim girl-X was not having any injury
on her private part. The Medical Officer has
specifically admitted that, generally if a tender
aged girl like victim is raped, there is every
possibility of having injuries on her private
part, and therefore the version of PW-1 victim
girl-X is unbelievable. Learned counsel further
submits that version of the victim girl-X is
contrary to the medical evidence. In support of
his submissions, learned counsel placed reliance
upon the exposition of law in the case of Pratap
Misra and others vs. State of Orissa 1, Amar Singh
and others vs. State of Punjab2, Jai Ram Prasad
Singh Alias Jai Ram Mandal vs. State of Bihar 3 and
Sham Singh V/s State of Hariyana4. Learned counsel
further submits that the victim girl has falsely
implicated accused in the incident alleged to have
1 AIR 1977 SC 1307
2 (1987) 1 SCC 679
3 1990 (1) BLJR 139
4 AIR 2018 SC 3978
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been happened on Sunday, because on Sunday every
school remains closed and there was no reason for
the victim or the accused to attend the school on
Sunday. Further, the victim has admitted that
after 5th day of the incident she narrated the
alleged incident to her mother, but the conduct of
her mother is unnatural as mother has neither
taken to her daughter to the hospital nor reported
the incident to the Police, Principal or father of
the victim girl-X. There was political pressure in
implicating the accused persons in the alleged
incident as the record before the trial Court
shows that at every time, including the time of
filing of the FIR, Sarpanch of the village namely
Ashok was very well present along with the victim
girl and her mother. Even during the course of
recording of the evidence though in camera, mother
of every child witness along with one lady Police
Officer were present and therefore the possibility
of tutoring cannot be ruled out.
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9. Learned counsel further submits that PW-2
has not supported the evidence of PW-1, as PW-2
has stated only about the indecent behaviour of
accused No.1 and nothing has been stated about the
sexual assault. PW-3 literally denied the version
of PW-1 and exonerated the Appellant Vanita about
any incident alleged to have happened in rice
room. The evidence of PW-4 is not in consonance
with the evidence of PW-1, as victim girl PW-1 has
no where stated that she was pushed in the rice
room. Even the evidence of PW-6 and PW-7 does not
support the prosecution case. PW-7 stated that
Appellant Vanita was in class room on the day of
alleged incident and therefore it is doubtful
whether really the incident had taken place. Thus,
there is no consistency in the evidence of victim
girl and other minor student witnesses and so the
entire prosecution case falls. Learned counsel in
support of his submissions that, children are most
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untrustworthy class of witness, placed reliance
upon the relevant observation made in the case of
Dasarathi Mahanto V/s The State5 (Para 7 and 9) and
Arbind Singh V/s State of Bihar 6. Learned counsel
submitted that, the evidence of the victime girl-X
and other girls is totally inconsistent with the
medical evidence, and therefore, said evidence can
not be believed and as a result the entire
prosecution shall fail. In support of his
aforesaid submissions, learned counsel relied upon
the observations in Para Nos.6 and 14 of the
Judgment in the case of Ram Narayan and others V/s
The State of Punjab7. Learned counsel further
submitted that, there is an inordinate delay in
filing the FIR and therefore the prosecution case
is after thought and unbelievable. In support of
his aforesaid submission, learned counsel placed
reliance upon the ratio laid down in the case of
5 27(1961)CLT 169
6 AIR 1994 SC 1068
7 AIR 1975 SC 1727
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Surjan and others vs. State of M.P.8 and Mohd. Ali
Alias Guddu vs. State of Uttar Pradesh 9. In support
of aforesaid submissions, learned counsel further
placed reliance in the cases of Ram Swaroop and
others V/s State of Rajasthan 10, Tilak Raj V/s
State of Himalchal Pradesh11 and Ram Gopal Yadav
V/s State of Chhattisgarh and another12.
10. Learned counsel appearing for Appellant –
Jadhav, in Criminal Appeal No. 919 of 2014 has
adopted the arguments advanced by the learned
counsel appearing for the Appellant – Vanita. In
addition to it, learned counsel submitted that
there is an inordinate delay of about two months
in filing the first information report and
therefore it is doubtful whether really such
incident of sexual assault was happened. The
informant vaguely stated in the FIR that the
8 AIR 2002 SC 476
9 (2015) 7 SCC 272
10 (2004) 13 SCC 134
11 (2016) 4 SCC 140
12 2018 All M.R. (Cri) 2304 (S.C.)
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incident occurred prior to two months of the
incident but she does not remember the date of
such incident. So also the prosecution witnesses
also not brought on record, the specific date of
the alleged incident. Learned counsel further
submitted that there are material contradictions,
omissions and improvements in the statements of
the prosecution witnesses. The victim was examined
by the Medical Officer two months after the
alleged incident and the prosecution failed to
bring on record medical evidence showing that
sexual assault was committed on the victim girl-X.
Learned counsel therefore submits that the Appeal
deserves to be allowed.
11. Learned A.P.P. appearing for the State
has supported the findings recorded by the learned
trial Court while convicting both the Appellants.
But so far as the quantum of sentence is
concerned, she submits that the trial Court ought
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to have considered that the victim was a minor
girl of 12 years, and heinous crime was committed
by a teacher i.e. accused No.1 and in the
commission of said crime, accused No.2 abetted
accused No.1 and in such case, there should not
have been any leniency in awarding maximum
sentence, and both the accused should have been
sentenced for life imprisonment by the Trial
Court. Therefore learned A.P.P. prays that
Criminal Appeal No. 160 of 2015 filed by the State
may be allowed.
12. Heard learned counsel appearing for the
respective Appellants and learned APP appearing
for the Respondent – State, at length. With their
able assistance, we have carefully perused the
entire notes of evidence so as to find out whether
the findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
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13. To prove its case, the prosecution has
examined as many as fifteen witnesses. As the
allegations are of sexual a assault on a minor
girl, we would not like to disclose the identity
of the victim girl-X, as also the prosecution
witnesses who are the minor girls and victim of
sexual assault. The Supreme Court in the case of
Dinesh Alias Buddha vs. State of Rajasthan 13 in
para 7 of the Judgment, held thus :-
“7. We do not propose to mention the name
of the victim. Section 227-A IPC makes
disclosure of the ident ity of the victim of
certain offences punishable. Printing or
publishing the name or any matter which may
make known the identity of any person
against whom an offence under Sections 376,
376-A, 376-B, 376-B or 376-D is alleged or
found to have been committed can be
punished. True it is, the restriction does
not relate to printing or publication of
judgment by the High Court or the Supreme13 (2006) 3 SCC 771
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23Court. But keeping in view the social object
of preventing social victimisation or
ostracism of the victim of a sexual offence
for which Section 228-A has been enacted, it
would be appropriate that in the judgments,
be it of this Court, the High Court or lower
court, the name of the victim should not be
indicated. We have chosen to describe her as
“victim” in the judgment. (See State of
Karnataka v. Puttaraja14).”
14. The prosecution has examined PW-1 victim
girl (henceforth we would refer her as “victim
girl-X”). The incident took place in the year 2012
when the age of victim girl-X was 12 years. Her
evidence was recorded in camera. The record of the
trial Court shows that as the victim was minor,
initially the trial Court has asked some questions
to the victim girl-X to ascertain whether she
knows the difference between true and false and
the importance of oath. At the time of recording
the evidence of informant – victim girl-X in
14 (2004) 1 SCC 475
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camera, the trial Court has allowed the mother of
the victim girl-X i.e. informant, and also one
lady police officer to be present. The evidence of
informant shows that she was residing along with
her mother, two sisters and one brother. At the
time of recording her evidence, she was studying
in P.N.P. school at village Mothi Jui. Her
evidence shows that she studied up-to 7th standard
at Primary School at village Mothi Jui. While
studying in Primary School in 7th standard, accused
No.1 was her class teacher and accused No.2 was
Headmistress of the school. Her evidence further
shows that she was studying in 7th standard,
division A in Primary School and her class room
was near to the office of Headmistress i.e.
accused No.2. There was a computer room near the
office of Headmistress. The school time from
Monday to Friday was 10.30 a.m. to 5.00 p.m. and
on Saturday the school time was from 7.00 a.m. to
11.00 a.m. Their short recess from Monday to
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Friday was at 12.00 noon and the lunch recess was
at 1.30 p.m. till half and hour. Accused No.1
used to teach her all the subjects. In absence of
accused No.1, another teacher namely Pol or
accused No.2 used to teach the students. Her
evidence further shows that accused No.1 used to
ask her whether she was undergoing M.C. period and
whether to give pills/tablets for it. While
attending the classes in the class room, Accused
No.1 used to ask her, whether she is taking air
from beneath side at the sitting place. Accused
No.1 used to beat the boys with rod, and also used
to beat the girls on buttock. Her uniform was half
shirt and petticoat. Her evidence further shows
that Accused No.1 used to catch hands of girl
students and touch their breasts/chest due to
which the girl students feel ashamed. Accused No.1
used to threaten the girls that, in case they
disclose the incident to someone else, he would
beat them mercilessly.
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15. The evidence of PW-1 victim girl-X
further shows that two months prior to filing of
the report, accused No.2 called her during the
lunch period and told her to clean the room where
the rice was stored, and so she went in the said
rice room. When she entered into the said room,
accused No.2 bolted the door of the said room from
outside. Accused No.1 was already present in the
said room. Accused No.1 caught hold her hands and
pulled her towards him. She tried to rescue but
accused No.1 stripped her clothes and laid her on
a mattress. Accused No.1 also removed his clothes.
Accused No.1 penetrated his private part into her
private part. She tried to cry but said accused
threatened her to beat. Said accused No.1 also
pressed her breasts. Accused No.1 snapped
photographs of her breast and private part on his
mobile. Then accused No.1 told her to wear the
clothes and also gave call to accused No.2.
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Accused No.2 removed the door-bolt of the room
from outside. She narrated the incident to accused
No.2 but accused No.2 told her that accused No.1
was like her father. Then she went to her class
room.
16. The evidence of victim girl (PW-1)
further shows that one Kunal Bhoir who was
studying in her class, on one Sunday came to her
house to call her so as to go to the school since
accused No.1 has called her in the school. So she
went to the school. She met there to one girl
student (name is not disclosed), who was studying
in her class. Accused No.1 called that girl
student in the computer room by keeping the victim
outside the said room. There was door to the
computer room. Then the said girl student came out
of the computer room. The said girl student told
the victim that accused No.1 removed her clothes
and snapped her photographs. The evidence of
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victim girl-X further shows that, then accused
No.1 called her inside the computer room and
snapped photographs of her breast and private part
on his mobile and also told her not to disclose
the said fact to others. She further named PW-2,
PW-4 and other girl students, who were studying in
her class. Her evidence further discloses that at
one time, accused No.1 beat her with duster, as
she did not follow his directions. The first
information report (Exhibit – 16) was shown to
her during recording of her evidence and she
stated that the contents are as per her narration
and the said report bears her signature. Her
evidence further shows that Police came to her
school and inspected the spot. She was medically
examined by the doctor. When she was shown Article
No.2/1 Payjama, No.2/3 Underwear, No.2/2 Slip and
Article No.3 rice bag, she identified the same.
17. During the course of cross examination,
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victim (PW-1) stated that she knows the watch
time, she came to the Court at about 11.30 a.m. to
12.00 noon on the day of recording her evidence.
She knew English months and the month in which her
evidence was recorded, was June. She further
stated that there used to be Summer vacation of
one and half months to them in each year. She
admits that school closes w.e.f. 15th April and
opens in the first week of June. She further
stated that her mother and friends were
accompanying with her at the time of filing
report. PW-2 and other three girls who were
studying in her class, were accompanying with her.
She lodged report in the Police Station. At the
time of filing report, she was not knowing full
name of Jadhav Sir (accused No.1) and Patil Madam
(accused No.2). Nobody has told her the full name
of accused at the time of filing of report. Victim
volunteered that when she entered in 7th standard,
at that time accused No.1 told his full name to
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them. There used to be Diwali vacation for 8 days
to her school, but she does not remember exact
month. There were in all fourteen teachers in her
school including both accused. Their lunch recess
used to start at 1.30 p.m., the first short
recess of her school was at 12.00 `O’ clock and
the same was for 10 minutes. She stated that
accused No.2 Patil madam called her in the recess
at 12.00 O’clock. She further states that she was
present in the room of rice till half an hour and
during the said period, her school period was
started. According to her, half an hour means 5 to
10 minutes. The work of snapping her photographs
and the work of illegal act with her occurred
within half an hour and then she went to her class
room. She does not remember the exact period and
its subject going on in the class room when she
went to her class room. Pol madam was teaching in
the class room at that time. At that time PW-2 and
other named three girl students were present in
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her class room. On the said day, the school closed
at about 5.00 to 5.30 p.m.
18. During further cross examination, victim
(PW-1) further stated that, she has shown the
place of incident to Police. She does not know the
word “panchanama”. She does not remember the exact
date on which she showed the spot to the Police.
She has shown the place of incident to Police at
about 12.00 noon to 1.00 p.m. Her photographs were
snapped by making to sit her on the broken bench.
She further stated that at first accused No.1 laid
her on the Gonpat and committed sexual act with
her and then snapped her photographs. Her mother
narrated incident to Police. She has read over the
contents of complaint narrated by her mother to
Police. She knows the month of December. She filed
a report two months after the incident. She does
not remember whether the incident occurred in the
month of December or not. On the day of incident,
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she was in her school uniform when she went to her
school on the call of Kunal. She further stated
that she lodged a report after the report was
lodged by another victim girl (we would refer her
as “another victim girl-Y). She admits that she
narrated the incident to her mother and then they
came to Police Station for lodging report. One day
before filing report, she herself and her mother
went to hospital at Vashi for her medical
examination and lady doctor examined her. Lady
doctor asked her about the incident and she
narrated the incident to her. The incident
occurred once in room of rice and once in computer
room. She further stated that except rice room and
computer room, accused No.1 did not commit any
sexual act with her at any other place. She has
worn school uniform when incident in rice room was
occurred. She does not remember whether police
collected her school uniform from her or not. She
further stated that duster hit by accused No.1 was
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struck on her head, she did not sustain bleeding
injury but suffered giddiness. She further stated
that she did not suffer any bleeding to her
private part when accused No.1 penetrated his
private part into her private part. She however
stated that she suffered pain. She admits that
villagers took a Morcha to the Police Station
after the incident. Further the defence has
brought on record certain omissions in her
evidence which she stated to the Police but not
mentioned in the FIR. She further stated that she
went to Police Station along with her mother and
5-6 girl friends by vehicle. She herself and her
girl friends took unanimous decision to go to
Police Station. She admits that 300 to 350
students were taking education in her school. She
stated that there were two windows to the rice
room but both the windows were in closed
condition.
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19. During further cross examination, victim
(PW-1) further stated that she did not narrate the
incident to Pol Madam. Her girl friends asked
where she went and she narrated the incident
to 5-6 girl friends. She does not remember whether
she sustained bleeding injury or other her clothes
were torn or not. She further stated that when she
went to Police Station at that time villagers,
some women and Sarpanch of her village were
present in the Police Station. She has stated
before the Police at the time of lodging report
that accused No.2 called her during the lunch
recess, accused No.1 gave call to accused No.2 and
accused No.2 removed the door bolt from the
outside, she narrated the incident to accused No.2
and accused No.2 told her that accused No.1 was
like her father. She was unable to assign any
reason as to why the aforesaid facts are not
written in her report (Exhibit-15).
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20. We have carefully perused the evidence of
victim girl (PW-1). As she was minor at the time
of recording her evidence, the trial Court has
taken every precaution and asked her certain
questions to ascertain whether she knows the
difference between true and false. Considering the
nature of case, the statement of informant victim
girl-X was recorded in camera. Though at the time
of recording evidence of the informant, mother of
the informant and one lady Police Officer were
present, if the provisions of the Protection of
Children from Sexual Offences Rules, 2012 are
perused, it provides that a support person to take
care of the child can accompany the child victim
during the course of proceedings. The informant
has specifically stated about the sexual assault
by accused No.1. She has specifically stated that
accused No.2 forced her to go into the rice room
and bolted the said room from the outside. The
record of the Trial Court shows that for entering
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in the rice room, one has to go through the office
of head mistress (accused Vanita). The victim
girl-X further stated that accused No.1 was
already present in the said rice room. She has in
clear words stated about the sexual assault
committed by accused No.1. Her evidence further
shows that accused No.1 snapped photographs of her
breast and private part on his mobile and
thereafter he gave call to accused No.2 who
removed the door bolt of the room from outside.
The evidence of PW-1 further shows that after some
days again she was called in the school by accused
No.1 and forced her to remove her clothes and
again snapped photographs of her breast and
private part on his mobile and threatened her not
to disclose the incident to anybody. Her evidence
further shows that at one time, as she did not
respond to the call of accused No.1 and did not
act as per his say, accused No.1 assaulted her by
throwing duster towards her in the class room
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which struck on her head due to which she suffered
giddiness. Thus it appears that evidence of PW-1
is trustworthy and reliable. She had given
rational answers to the questions which were put
to her. So as to ascertain her competency to
depose before the Court. Though the prosecution
has brought on record few contradictions and
omissions regarding the spot, benches in the
school, date, month and year of the incidents, in
our opinion, the said contradictions and omissions
are of a minor nature and do not affect substratum
of the prosecution case.
21. The prosecution has examined PW-2 (name
is not disclosed), minor girl student. Before
recording her evidence the trial Court has
followed the same procedure which was followed
while recording the evidence of victim girl-X and
after satisfying itself, the trial Court has
recorded the evidence of PW-2. The evidence of
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this witness was recorded in camera and mother of
witness and also one lady Police Officer were
present at the time of recording of the evidence.
22. The evidence of PW-2 shows that she
studied up-to 7th standard at Primary School, Mothi
Jui since 1st standard. Her evidence further shows
that she knows accused No.2, head mistress of the
school, accused No.1 – class teacher and she also
knows victim girl-X. Her evidence further shows
that when she was studying in 7th standard at that
time victim girl-X was studying with her and
another victim girl-X (who has filed separate
proceedings alleging similar allegations as to the
victim girl-X). Her evidence further supports the
evidence of victim girl-X regarding the timing of
her primary school including short recess and
lunch recess. Her evidence further shows that
accused No.1 was teaching them all subjects. She
was studying in 7th-A standard in which some boys
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were also studying with her. Their class room was
adjacent to the office of accused No.2. The
computer room was also adjacent to her class room.
Her class room was in between the office of
accused No.2 and computer room. There was a
separate room for storying rice in her school.
23. The evidence of PW-2 further shows that
in her class room, there were 17 girl students
including her. Accused No.1 used to beat the boys
with rod and girls on buttock by hand. Accused
No.1 used to utter obscene words before the
students. There were benches in her class room.
Accused No.1 used to ask the girl students whether
they were taking air from beneath side if sat on
the bench. Accused No.1 used to stare at their
chest. Accused No.1 used to touch the chest of
girl students and due to the same, they felt
ashamed. She has named other girl students
including PW-5 who were studying with her. Her
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evidence further shows that she along with other
girl students made complaints against accused No.1
to the headmistress – accused No.2, but accused
No.2 told them that Jadhav Sir was like their
father and further told not to take his talk
seriously.
24. The evidence of PW-2 further shows that
two months prior to the registration of offence,
she along with other girl students was playing in
the school premises during the lunch recess at
which time accused No.1 called the victim girl X
and took her in the rice room. Her evidence shows
that as she was playing with victim girl, so she
knew that accused No.1 called the victim girl.
Her evidence further shows that victim girl came
in their class room after some time. Her evidence
further shows that when asked, victim girl told
her that accused No.1 called her in the rice room
and behaved in indecent manner with ill motive.
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Her evidence further shows that after some days,
when she along with other girl students was
sitting in the Varanda in the school premises, at
that time accused No.2 called the victim girl by
saying that accused No.1 has called her for some
work and so victim girl-X went in the office
accused No.2. Accused No.2 took the victim girl-X
in the rice room and bolted the said room from
outside. Victim girl-X came to the class room
after one hour and at that time she was in
frightened condition. Her evidence further shows
that accused No.1 also called another victim girl
and when she went in the rice room accused No.2
bolted the door of rice room from the outside. Her
evidence further shows that at one time accused
No.1 pelted a duster towards the victim girl-X
which hit on the head of victim girl-X, due to
which she suffered giddiness. Her evidence further
shows that the victim girl in the present case and
another victim girl lodged reports and Police
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recorded her statement. Police made inquiry with
her in presence of her mother. When photographs on
arrest memo were shown to her, she identified the
photographs of accused No.1 and accused No.2.
25. During the course of cross examination of
PW-2, she stated that her date of birth is 13 th
February, 2000. Police did not collect her birth
certificate from her parents. She admits that
victim girl-X and another victim girl were
attending the school after occurrence of incident
in the rice room as well as incident of pelting
duster by accused No.1 and uttering of obscene
words by accused No.1. She admits that accused
No.1 was teaching them including victim girl-X and
another victim girl-Y. She further admits that
after the afore said incidents victim girl-X and
another victim girl-Y were playing and taking meal
with them in the school. She further stated that
mother of victim girl-X had been to the school
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after the incident of pelting duster by accused
No.1 towards victim girl-X. She personally did not
inform anybody about the aforesaid incident
including her parents. She further stated that she
knows time and watch. Victim girl-X and another
victim girl lodged reports in the Police Station
in the month of January. She further stated that
the incident of calling victim girl-X in the rice
room occurred during the lunch recess i.e. from
1.30 p.m. to 2.30 p.m. and the said incident took
place prior to two months of filing report. This
witness PW-2 was further cross examined by the
defence and brought some omissions on record
regarding her Police statement.
26. Thus after careful perusal of the
evidence of PW-2, it shows that she has given
minute details about her class room, computer
room, rice room, office of accused No.2 and fully
supported the version of victim girl-X. Though the
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defence has brought on record some contradictions,
omissions and improvements in the evidence of PW-
2, those are of minor nature and therefore much
importance need not be given to the same. Thus the
evidence of PW-2 is reliable, trustworthy and
consistent with the prosecution case and the same
lends support to the version of PW-1 victim girl-
X.
27. The prosecution examined PW-3 (name is
not disclosed). As this witness was also minor,
before recording her evidence the trial Court has
followed the same procedure which was followed
while recording the evidence of victim girl-X and
after satisfying itself whether she was able to
give rational answers to the questions put to her,
the trial Court has recorded the evidence of PW-3.
The evidence of this witness was recorded in
camera and mother of witness and also one lady
Police Officer were present at the time of
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recording of the evidence.
28. The evidence of PW-3 shows that, at the
relevant time when the incident took place, she
was studying in 7th-A class at primary school Mothi
Jui. There were 17 girls including her and 14 boys
studying in her class room. There were 14 teachers
in Z.P. primary school, Mothi Jui. Accused No.1
was their class teacher and accused No.2 was
headmistress. Her evidence shows that accused No.2
used to sit in her office in the school and her
class room of 7th – A standard was adjacent to the
office of headmistress Vanita and computer room
was adjacent to their class room. Her evidence
further shows, the school timing, recess timing.
Her evidence further shows that victim girl – X,
PW-4 and other girl students were studying in her
class room in 7th- A standard. Her evidence further
shows that accused No.1 while teaching them used
to taunt the girl students in filthy language and
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he used to beat the girl students on buttock by
hand. Accused No.1 used to touch the chests of the
girls and used to ask whether the girl students
were undergoing M.C. period and whether to give
pills or tablets for it. Her evidence further
shows that they were sitting on the benches in the
school and accused No.1 used to tell them whether
they were taking air from the beneath if they sat
on the bench in the crossed legs. Due to such
taunts of accused Jadhav, the girl students
including her, feel ashamed. Her evidence further
shows that when the girl students made complaints
against accused No.1 to accused No.2, accused No.2
told them that Jadhav sir was like their father.
29. The evidence of PW-3 further shows that
accused No.1 used to stare at the chest of girl
students. Regarding the incident which took place
in computer room of the school, her evidence shows
that on the day of incident she was present in the
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school Varandha. At that time victim girl-X was
also present there. Accused No.2 called and pushed
the victim girl-X inside the computer room and
bolted the door of computer room from outside. Her
evidence further shows that at the relevant time,
she was standing there and told accused No.2 that
accused No.1 was present inside the computer room
but accused No.2 scolded her and told to go in the
class room. Her evidence further shows that the
victim girl-X returned to the class room at about
4.00 p.m. when she was in frightened condition.
Her evidence further shows that two weeks
thereafter same incident took place with another
victim girl, accused No.2 called another victim
girl and compelled her to go in the computer room
and bolted the said room from outside.
30. During the course of cross examination,
PW-3 stated that the incident of taunting by
accused No.1 to the girl students occurred in the
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month of December, 2012. She has further stated
that her mother was present with her in the Police
Station at the time of recording of her statement
and one Ashok Anna was also present. She further
stated that she has narrated the incident to Ashok
Anna and her mother.
31. Thus the evidence of PW-3 is also
consistent with the evidence of PW-1 and PW-2 and
lends support to the prosecution case. The
evidence of PW-3 shows that accused No.1 used to
behave in indecent manner with the girl students
and used to taunt them in filthy language. Further
the evidence of PW-3 shows that she witnessed the
incident of accused No.2 compelling victim girl-X
to go inside the computer room and bolting the
said room from outside.
32. PW-4 is another minor girl student who
was, at the relevant time studying in 7th standard
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of the primary school Mothi Jui along with victim
girl-X. She has supported the version of PW-1,
PW-2 and PW-3. Her evidence shows that accused
No.1 was behaving in indecent manner and was
talking in filthy language with girl students. Her
evidence further shows that accused No.1 used to
touch her chest by holding her arms. Her evidence
further shows that at one time when she was in the
school, accused No.1 called her and asked whether
she was undergoing M.C. period and to tell him if
M.C. period is started. Regarding the incident
which took place in the rice room, the evidence of
PW-4 shows that accused No.2 called victim girl-X
and pushed her inside the rice room and bolted the
door of said room from outside. Her evidence
further shows that after 2-3 days when she asked
about the incident, victim girl-X told her that
accused No.1 behaved with her in indecent manner.
This witness was extensively cross examined by the
defence but nothing contrary was brought on
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record.
35. Thus PW-4 has supported the version of
PW-1, PW-2 and PW-3. Though some contradictions
and omissions are brought on record in the
evidence of PW-4 by the defence, but those are
minor in nature and does not affect to the core of
the prosecution case.
36. PW-5 Pramila Satish Gade is the witness
to the spot panchanama (Exhibit – 22) of the rice
room in the school and she has proved the spot
panchanama. PW-6 is the minor boy student, who was
studying with victim girl-X, at the relevant time.
We would not disclose his name. PW-6 has supported
the version of prosecution witnesses PW-1 to PW-4.
His evidence shows that accused No.1 used to talk
with girl students in filthy language. His
evidence shows that on one day Jadhav sir asked
him to go to the house of victim girl-X and to
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tell her secretly her that Jadhav was calling her
and therefore, he went to the house of victim
girl-X and told that accused No.1 was calling her
and accordingly she went to the school.
37. PW-7 is another minor girl student, who
was taking education at the relevant time in 7 th
standard along with victim girl-X. She has
supported the version of PW-1 to PW-4. Her
evidence shows that accused No.1 used to behave in
indecent manner with the girl students and used to
touch the chest of girls.
38. PW-8 Nitesh Balkrishna Ghase who is panch
to the spot panchanama (Exhibit-26) and seizure
panchanama (Exhibit-27) in respect of seizure of
gonpat from the spot, which was used by accused
No.1 while committing sexual assault on victim
girl-X. PW-9 Manish Vasant Ravaiya is panch
witness and he has proved the memorandum of
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accused No.1 (Exhibit-32) and seizure panchanama
(Exhibit-33) regarding the seizure of clothes of
accused No.1, which he was wearing at the time of
incident, which were seized at the instance of
accused No.1. PW-10 Anil Khalchandra Patil is also
panch witness, who has proved the seizure
panchanama (Exhibit-36) regarding the seizure of
clothes of victim girl-X, which she was wearing at
the time of incident.
39. The prosecution has examined PW-11
Prashant Narayan Patil. He deposed that he was
called in the Police Station as panch for the
personal search of accused No.1. His evidence
shows that personal search of accused No.1 was
taken in his presence in which two mobiles were
found in possession of accused No.1, one of Sony
Ericson company and another of Karbon company. He
proved seizure panchanama (Exhibit – 39) regarding
seizure of said two mobiles.
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40. The evidence of PW-11 – Prashant further
shows that on 20th January, 2013, Uran Police
called him as panch in Police Station and police
produced two mobiles seized earlier in his
presence and another panch Ashok Patil. Police
opened the seal of the said mobiles. Police
attached the memory card of Sony Ericson company
mobile, to the laptop through card reader and
restored data recovery software in the laptop.
Then police opened the software and scanned the
memory card and found 4-5 folders. Then J.P.E.G.
camera file was found in the folder in which 128
recovered photographs were found. Then each
photographs were seen and photographs nos.115 to
127 were found in respect of obscene photographs
of the school girls. He proved panchanama
(Exhibit-40) regarding the obscene photographs.
When he was shown muddemal article No.1 mobile of
Sony Ericson Company along with memory card and
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Article No.2 mobile of Karbon company along with
memory card, he identified the same.
41. Thus through the evidence of PW-11 –
Prashant, the prosecution has brought on record
that there were about 13 obscene photographs of
the school girls in the mobile of accused No.1,
which were seized by the Police. Thus the evidence
of this witness supports the prosecution case that
accused No.1 used to take obscene photographs of
the girl students in his mobile phone.
42. PW-12 – Dr. Minakshi Rohit Sawant is the
Medical Officer who examined the victim girl-X
(PW-1). Her evidence shows that on 21st January,
2013 Uran Police referred victim girl-X to her
hospital for medical examination. The age of the
said girl was 13 years. The said girl was referred
to her hospital for medical examination in respect
of rape. She has taken history from the victim
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girl and the victim girl stated before her the
history that teacher called her in an empty class
room, gave a toffee after which she got dizzy, but
did not loose consciousness and teacher touched
her chest, undressed her and himself and inserted
penis in her vagina and this happened once and he
took photographs of the incident. Her evidence
further shows that she examined the victim girl on
21st January, 2013 and on examination, she found
that the victim girl was conscious, co-operative,
well oriented to time, place and person. The
victim girl was not having any injury on her
private part and her sex characters were
developed. Her evidence further shows that hymen
of victim girl was torn having old tear and was
admitting one finger easily and two fingers but
with pains. No foreign body was found and no signs
of STD. Her evidence further shows that as per
history given by victim girl and as per her
medical examination, she was of the opinion that
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hymen of the victim was torn and admits one finger
easily indicative of sexual assault.
43. Thus the evidence of Medical Officer (PW-
12 – Dr. Minakshi) shows that history of sexual
assault was given by the victim girl-X. PW-12
opined that hymen of victim was torn and admits
one finger easily, indicative of sexual assault.
44. Learned counsel appearing for the
Appellants submitted that the evidence of the
medical officer (PW-12) discloses that victim
girl-X was not having any injury on her private
part and therefore in the submission of learned
counsel, the alleged incident of sexual assault
did not happen at all. At this stage, it would be
useful to refer the observations of the Supreme
Court in the case of Ranjit Hazarika V/s State of
Assam15. In the facts of the said case of Ranjit
15 (1998) 8 SCC 635
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Hazarika, the prosecutrix, a young girl of 14
years of age was subjected to the rape by the
appellant therein. In para-5 of the Judgment it is
observed thus:
“5. The argument of the learned counsel for
the appellant that the medical evidence belies
that testimony of the prosecutrix and her
parents does not impress us. The mere fact
that no injury was found on the private parts
of the prosecutrix or her hymen was found to
be intact does not belie the statement of the
prosecutrix as she nowhere stated that she
bled per vagina as a result of the penetration
of the penis in her vagina. She was subjected
to sexual intercourse in a standing posture
and that itself indicates the absence of any
injury on her private parts. To constitute the
offence of rape, penetration, however slight,
is sufficient. The prosecutrix deposed about
the performance of sexual intercourse by the
appellant and her statement has remained
unchallenged in the cross-examination. Neither
the non-rupture of the hymen nor the absence
of injuries on her private parts, therefore,
belies the testimony of the prosecutrix
particularly when we find that in the cross-
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58been brought out to doubt her veracity or to
suggest as to why she would falsely implicate
the appellant and put her own reputation at
stake. The opinion of the doctor that no rape
appeared to have been committed was based only
on the absence of rupture of the hymen and
injuries on the private parts of the
prosecutrix. This opinion cannot throw out an
otherwise cogent and trustworthy evidence of
the prosecutrix. Besides, the opinion of the
doctor appears to be based on “no reasons”.”
45. In present case, the prosecution has
brought on record sufficient medical evidence
disclosing that hymen of the victim girl-X was
torn having old tear, indicative of sexual
assault. Therefore, we find no substance in the
submissions of learned counsel in that behalf.
46. PW-13 Rani Laxman Puri was working as
P.S.I. at Panvel Town Police Station at the
relevant time. This lady Police Officer has
recorded supplementary statement of victim girl on
25th January, 2013. Her evidence further shows that
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she recorded statements of witnesses including the
victim girl-X on different dates from 23rd January,
2013 to 28th January, 2013.
47. PW-14 Shashikant Devrao Borate, A.C.P. at
Port Division Navi Mumbai at the relevant time,
was the Investigating Officer in this crime. He
deposed about the manner in which he has carried
out the investigation. PW-15- Sudam Ganu Avate was
Senior P.I. at Uran Police Station at the relevant
time, who recorded the first information report
(Exhibit-16) of victim girl-X and registered the
offence vide Crime No.13/2013.
48. Thus prosecution has brought on record
sufficient evidence against accused No.1 and
accused No.2. Victim girl-X (PW-1) has
specifically stated about the indecent behaviour
of accused No.1 and sexual assault committed by
him. The evidence of PW-1 discloses that accused
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No.1 used to take her obscene photographs. The
evidence of PW-1 further discloses that at the
time of incident of sexual assault by accused
No.1, she was forced to go in the rice room by
accused No.2 and thereafter accused No.2 bolted
the said rice room from outside and thus the
prosecution has convincingly proved that accused
No.2 abetted to accused No.1 in the commission of
the offence of sexual assault. The other minor
school girls who were studying in the class of
victim girl-X, at the relevant time i.e. PW-2, PW-
3, PW-4 and PW-6 have supported the version of
victim girl-X. The evidence of PW-2 shows that she
was present when accused No.1 took victim girl-X
to the rice room. PW-3 stated that she was present
when accused No.2 pushed victim girl-X inside the
computer room and bolted the door of the computer
room from outside and at the relevant time,
accused No.1 was present inside the computer room.
PW-4 deposed that accused No.2 pushed victim girl-
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X inside the rice room and bolted the door of the
rice room from outside. Even PW-6 supported the
version of PW-1 that on one Sunday on the say of
accused No.1, he went to the house of victim girl-
X and told her to go to the school and as per his
message, victim girl-X went to the school. Thus
all these prosecution witnesses i.e. PW-2, PW-3,
PW-4 and PW-6 have supported the version of PW-1.
They all have stated in clear words that accused
No.1 used to behave in indecent manner with the
girl students and used to snap obscene photographs
of the girl students in his mobile phone. The
prosecution has brought on record through the
evidence of PW-11 Prashant, that in the memory
card of the mobile phone of accused No.1, as many
as 13 obscene photographs of girls were found.
Regarding the incident of sexual assault, as
observed earlier, the victim girl-X has
specifically stated that accused No.2 asked her to
go in the rice room on the pretext of cleaning the
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said room and when she went in the said room,
accused No.2 bolted the door of the said room from
outside. Accused No.1 was already present in the
said room. Accused No.1 stripped her clothes and
laid her on a mattress (gonpat). Accused No.1 also
removed his clothes and penetrated his private
part into her private part. The evidence of victim
girl-X is reliable, trustworthy and inspiring
confidence. Nothing significant has been suggested
by the defence, as to why her oral testimony
should not be believed, or why she would falsely
implicate the appellants by putting her reputation
at stake. Therefore, the evidence of victim girl
inspires confidence. It is the settled position in
the law that, if evidence of the victim of sexual
assault inspires confidence, it must be relied
upon even without seeking corroboration of her
statement in material particulars. Minor
contradictions and insignificant discrepancies in
the statement of the victim, which are not of
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fatal nature, shall not be used to throw out an
otherwise reliable prosecution case. It is
pertinent to note that in present case, the oral
testimony of victim girl is corroborated by as
many as three prosecution witnesses. Accused No.1
was teacher in the school where victim girl-X was
prosecuting her studies and taking undue advantage
of the said dominating position as class teacher
of class of victim girl-X with the help of accused
No.2, he has committed sexual assault on the
victim girl-X. Thus the prosecution has proved
beyond reasonable doubt that the accused No.1 had
committed an offence punishable under Section
376(2)(b) of the IPC read with section 5(c), 6 of
the POCSO Act. The prosecution has also proved
that accused No.1 has committed offence punishable
under Sections 292, 509 of IPC read with section
14 of the POCSO Act read with 67 B of Information
Technology Act, so also the offence punishable
under Sections 342 and 354 of IPC.
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49. The prosecution has brought on record
sufficient evidence against accused No.2, showing
that accused No.2 has taken active part and fully
supported accused No.1 in commission of offence of
sexual assault. She abetted accused No.1 in
commission of offences as alleged by the
prosecution. The prosecution, by bringing on
record sufficient, cogent and trustworthy evidence
has proved that, accused No.2 had committed an
offence punishable under Section 376(2)(b), 109 of
IPC read with section 5(c), 6, 17 of the POCSO
Act. The prosecution has further proved that
accused No.2 had committed an offence punishable
under Section 292, 509, 109 of IPC read with
Section 14 and 17 of the POCSO Act read with
section 67 B of the Information Technology Act, as
also the offence punishable under Section 342 of
IPC.
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50. As observed earlier, victim girl-X was
taking education in the school where accused Nos.1
and 2 were the teachers. Thus, victim girl-X was
in exclusive custody of accused Nos.1 and 2 when
she used to be in the school. Taking undue
advantage of the position being teacher, accused
No.1 committed sexual assault on girl student i.e.
victim girl-X, and in the said commission of
offence, accused No.2 had abetted accused No.1 and
thus, actively participated in the commission of
said offence. At this stage, it would be useful to
refer the observations made by the Supreme Court
in the case of Mohan Lal and another V/s State of
Punjab16. Para 17 and 18 of the judgment reads as
under :-
“17. The requirement of education for girls and
the functions of a teacher have been dealt with
and explained at some length by this Court in
Avinash Nagra v. Navodaya Vidyalaya Samiti,
which read as follows: (SCC pp. 541-42, paras16 (2013) 12 SCC 519
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6611-12)
“11. It is in this backdrop, therefore,
that the Indian society has elevated the
teacher as ‘Gurur Brahma, Gurur Vishnu,
Gurur Devo Maheswaraha’. As Brahma, the
teacher creates knowledge, learning,
wisdom and also creates out of his
students, men and women, equipped with
ability and knowledge, discipline and
intellectualism to enable them to face the
challenges of their lives. As Vishnu, the
teacher is preserver of learning. As
Maheswara, he destroys ignorance.
Obviously, therefore, the teacher was
placed on the pedestal below the parents.
The State has taken care of service
conditions of the teacher and he owes dual
fundamental duties to himself and to the
society. As a member of the noble teaching
profession and a citizen of India he
should always be willing, self-
disciplined, dedicated with integrity to
remain ever a learner of knowledge,
intelligently to articulate and
communicate and imbibe in his students, as
social duty, to impart education, to bring
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67abjure violence and to develop scientific
temper with a spirit of enquiry and reform
constantly to rise to higher levels in any
walk of life nurturing constitutional
ideals enshrined in Article 51-A so as to
make the students responsible citizens of
the country. Thus the teacher either
individually or collectively as a
community of teachers, should regenerate
this dedication with a bent of
spiritualism in broader perspective of the
constitutionalism with secular ideologies
enshrined in the Constitution as an arm of
the State to establish egalitarian social
order under the rule of law. Therefore,
when the society has given such a
pedestal, the conduct, character, ability
and disposition of a teacher should be to
transform the student into a disciplined
citizen, inquisitive to learn,
intellectual to pursue in any walk of life
with dedication, discipline and devotion
with an enquiring mind but not with blind
customary beliefs. The education that is
imparted by the teacher determines the
level of the student for the development,
prosperity and welfare of the society. The
quality, competence and character of the
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68to mould the calibre, character and
capacity of the students for successful
working of democratic institutions and to
sustain them in their later years of life
as a responsible citizen in different
responsibilities. Without a dedicated and
disciplined teacher, even the best
education system is bound to fail. It is,
therefore, the duty of the teacher to take
such care of the pupils as a careful
parent would take of its children and the
ordinary principle of vicarious liability
would apply where negligence is that of a
teacher. The age of the pupil and the
nature of the activity in which he takes
part are material factors determining the
degree and supervision demanded by a
teacher.
12. It is axiomatic that percentage of
education among girls, even after
independence, is fathom deep due to
indifference on the part of all in rural
India except some educated people.
Education to the girl children is nation’s
asset and foundation for fertile human
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69participation in socio-economic and
political democracy. Only of late, some
middle class people are sending the girl
children to co-educational institutions
under the care of proper management and to
look after the welfare and safety of the
girl. Therefore, greater responsibility is
thrust on the management of the schools
and colleges to protect the young
children, in particular, the growing-up
girls, to bring them up in disciplined and
dedicated pursuit of excellence. The
teacher, who has been kept in charge,
bears more added higher responsibility and
should be more exemplary. His/her
character and conduct should be more like
Rishi and as loco parentis and such is the
duty, responsibility and charge expected
of a teacher. The question arises whether
the conduct of the appellant is befitting
with such higher responsibilities and as
he by his conduct betrayed the trust and
forfeited the faith whether he would be
entitled to the full-fledged enquiry as
demanded by him? The fallen standard of
the appellant is the tip of the iceberg in
the discipline of teaching, a noble and
learned profession; it is for each teacher
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70rot to sustain the faith of the society
reposed in them. Enquiry is not a panacea
but a nail in the coffin.”
(emphasis added)
18. As there was a fiduciary relationship
between the accused and the prosecutrix being
in their custody and they were trustees, it
became a case where the fence itself eats the
crop and in such a case the provisions of
Section 114-A of the Evidence Act, 1872
(hereinafter referred to as “the Evidence Act”)
(which came into effect from 25-12-1983) are
attracted. Undoubtedly it is a case which
provides for a presumption against any consent
in a case of rape even if the prosecutrix girl
is major, however, every presumption is
rebuttable, and no attempt had ever been made
by any of the appellants or other accused to
rebut the said presumption.”
51. The defence has challenged the
prosecution case on the ground that there has been
delay of about two months in filing the first
information report. In this respect, it is
pertinent to note that the victim girl-X was the
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minor girl of aged about 13 years taking education
in the primary school and the sexual assault was
committed by her teacher. It appears that, the
victim girl is coming from socio-economically
backward family residing in the village with
mother, two sisters and brother. It has come on
record that, at the relevant time her father was
no more. She was threatened of dire consequences
by accused No.1 if she would disclose the incident
to anybody. Therefore, it is apparent that due to
fear victim girl-X did not disclose the incident
to her mother and, when another victim girl lodged
first information report in the Police Station
against the accused persons, then she got courage
and filed first information report against the
accused persons. Therefore, delay has been
occurred in filing the first information report in
afore stated circumstances, which is not fatal to
the prosecution case as the case is of sexual
assault on a minor girl. The Supreme Court in the
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case of Mohd. Ali alias Guddu vs. State of Uttar
Pradesh (supra), in Para 21 of the Judgment, held
thus:
“21. It is apt to mention here that in rape
cases the delay in filing the FIR by the
prosecutrix or by the parents in all
circumstances is not of significance. The
authorities of this Court have granted
adequate protection/ allowance in that
respect regard being had to the trauma
suffered, the agony and anguish that creates
the turbulence in the mind of the victim, to
muster the courage to expose oneself in a
conservative social milieu. Sometimes the
fear of social stigma and on occasions the
availability of medical treatment to gain
normalcy and above all the psychological
inner strength to undertake such a legal
battle. But, a pregnant one, applying all
these allowances, in this context, it is apt
to refer to the pronouncement in Rajesh
Patel vs. State of Jharkand 17 wherein in the
facts and circumstances of the said case,
delay of 11 days in lodging the FIR with the
jurisdictional police was treated as fatal
as the explanation offered was regarded
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73totally untenable. This Court did not not
accept the reasoning ascribed by the High
Court in accepting the explanation as the
same was fundamentally erroneous.”
52. In the present case though there is delay
of about two months in lodging the FIR,
considering the facts and circumstances of the
case as discussed herein above in paragraph 51,
and also considering the fact that the victim was
minor girl of about 12 years of age at the
relevant time of commission of offence of sexual
assault, which was committed by her teacher, who
was supposed to be her custodian and guardian
during school hours, the delay in lodging the FIR
was not fatal to the prosecution case and same has
been properly explained.
53. Learned counsel appearing for the
appellants have challenged the oral testimony of
the victim girl-X on the ground that, she has not
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specifically stated the date and time of the
incident. In this respect, it is to be noted that
she was minor school going girl, residing in the
village in a family having socio-economical
backwardness, taking education in 7 th standard, and
in such tender age offence of sexual assault was
committed with her, which with certainty can be
said mental trauma to her. Therefore, merely non
mentioning of time and date would not nullify over
whelming evidence of victim girl-X and other
prosecution girl witnesses supported by the
medical evidence and other evidence brought on
record by the prosecution.
54. Learned counsel for the Appellants
further submitted that the Appellants have been
falsely implicated in the incident alleged to have
been occurred on Sunday, as on Sunday every school
remains closed. In this respect, if evidence of
PW-6 is considered, he has specifically stated
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that accused No.1 used to come in the school on
Sundays also. Further through the evidence of
PW-6, the prosecution has proved that on Sunday
as per the say of accused No.1, PW-6 went to the
house of victim girl-X to call her to the school.
55. So far as the submissions of learned
counsel appearing for the Appellants that the
prosecution witnesses PW-2, PW-3, PW-4, PW-6 and
PW-7 did not support the evidence of PW-1 are
concerned, we are not in agreement with the said
submissions. We have already discussed in detail
the evidence of aforesaid witnesses and we are of
the considered view that, those witnesses have
fully supported the version of the victim girl-X.
56. Learned counsel appearing for the
Appellants have also submitted that the
prosecution case is politically motivated and the
accused – Appellants are falsely implicated at the
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instance of Sarpanch of the village namely Ashok
Patil. It is pertinent to note that though the
prosecution witnesses have admitted that during
the process of filing FIR and recording their
statements by the police said Sarpanch Ashok was
present with them, but the defence has not brought
on record material in defence showing that there
was an enmity between said Ashok and the accused
persons. The victim girl-X, the prosecution
witnesses who were the minor girls and their
parents all were the residents of village, and it
is a matter of common knowledge that such
villagers had no courage to face such uncommon
incidents, and so in such a situation they always
try to take the assistance of known person/s in
the village when they had to go to police station
for lodging report of such heinous crime. It is
significant to note that the evidence on the
record shows that father of victim girl-X was no
more when the incident took place and thus there
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was no male member in her family. Therefore there
is nothing abnormal that while filing the FIR the
victim girl-X and so also other girl student, when
went to lodge FIR, said Ashok who was the Sarpanch
of the village at the relevant time was present in
the Police Station. It needs to be remembered
that if such ghastly and heinous crimes take place
in the villages, it creates serious impact on the
minds of the villagers and puts question marks on
future of minor victim girls, in view of socio-
economical backwardness existing in villages.
57. Thus, as observed earlier, after
considering the entire evidence brought on record
by the prosecution, it is clear that the evidence
of victim girl-X is consistent, reliable and
trustworthy. She has specifically stated that
accused No.1 committed sexual assault with her and
in the said process, accused No.2 had abetted
accused No.1 and thus, actively participated in
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the commission of said offence. The version of
victim girl-X is fully corroborated by the oral
account of PW-2, PW-3, PW-4, PW-6 and PW-7. The
evidence of minor prosecution witnesses is
consistent with each other. Though all the above
prosecution witnesses were minor including the
victim girl-X, the Trial Court after taking every
precaution in that respect, recorded their
evidence and their evidence is consistent,
trustworthy and reliable. The prosecution has
convincingly proved that at the time of assault
victim girl-X was minor as at the relevant time
she was taking education in 7th standard. Further
the prosecution has brought on record the bona
fide certificate (Exhibit-68) showing her date of
birth as 23rd January, 2000, and the incident of
sexual assault took place in the month of
December, 2012. Thus at the time of said incident,
the age of victim girl-X was about 12 years. Thus,
the offence under the relevant provisions of the
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POCSO Act has been proved. Even the evidence of
PW-12 Dr. Minakshi lends support to the version of
the victim girl-X. This medical officer has
specifically stated that upon her examination, she
noticed that hymen of victim girl-X was torn
having old tear. Thus this Medical Officer has
also supported the case of the prosecution,
including other witnesses.
58. The evidence of minor victim girl-X so
also the other minor prosecution witnesses who
were studying in the class of victim girl-X shows
that accused No.1 used to snap their obscene
photographs and in the said process accused No.2
actively supported him. Their said contention is
further supported by the evidence of PW-11
Prashant, who has specifically stated that when
the mobile phone of the accused No.1 was checked,
it was found that there were as many as 15 obscene
photographs of girl students. Though the
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prosecution has not specifically proved that the
said photographs were of the victim girl-X or that
of the other prosecution witnesses who were minor
girl students, but accused No.1 being in the
profession of a teacher of the school, was having
no reason to have such photographs in his mobile
phone. Even the defence has neither denied nor
given any explanation why such objectionable
photographs were in the mobile phone of accused
No.1. Thus, the prosecution has brought on record
sufficient evidence to prove the offence against
accused Nos.1 and 2.
59. We have carefully perused the impugned
Judgment. The trial Court has considered all the
evidence brought on record and rightly convicted
and sentenced both the accused for the offences as
afore-stated. After considering the entire
evidence, the trial Court has observed that
complainant has specifically deposed the role
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played by accused No.2 in the commission of crime
and evidence on record clearly shows that accused
No.2 abetted accused No.1 in committing aggravated
penetrative sexual assault on complainant minor
girl and for snapping obscene photographs of
complainant on mobile. The trial Court has further
observed that if accused No.2 had not pushed the
complainant inside the rice room or computer room
and had not bolted the door of the said rooms,
then the incident of rape or snapping obscene
photographs would not have occurred. The trial
Court has thus observed that accused No.2 is also
responsible for the commission of offence along
with accused No.1. Thus, the trial Court has held
accused No.1 and accused No.2 responsible for the
offence punishable as observed in Para Nos.1 and 2
of the Judgment, and sentenced them as afore-
stated.
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60. Upon considering the evidence in its
entirety, we are of the considered opinion that
the findings recorded by the trial Court are in
consonance with the evidence brought on record and
therefore we do not think it necessary to cause
interference in the findings recorded by the trial
Court in convicting and sentencing original
accused Nos.1 and 2, and therefore, Criminal
Appeal No.934 of 2014 and Criminal Appeal No.919
of 2014 are liable to be dismissed.
61. So far as Criminal Appeal No.160 of 2015
filed by the State for enhancement of sentence is
concerned, we are of the opinion that considering
the evidence and nature of offence the trial Court
has convicted and sentenced both the accused
persons for the imprisonment of ten years
including other sentences. The sentence awarded by
the trial Court is appropriate and no case is made
out for enhancement of sentence. Thus, Criminal
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Appeal No.160 of 2015 is also liable to be
dismissed.
62. In the light of discussion made herein
above, we do not find that there is any substance
in the Appeals filed by both the Appellants and
the Appeal filed by the State. Accordingly,
Criminal Appeal No.934 of 2014, Criminal Appeal
No.919 of 2014 and Criminal Appeal No.160 of 2015
stand dismissed.
[A.S. GADKARI, J.] [S.S. SHINDE, J.]
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