1 apeal357.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.357 OF 2017
Uman @ Kumansingh Chotelal
Jabekar (Jawarkar),
C-4953 (Convicted Offender)
Aged about 22 years,
Occupation – Labour,
R/o Berda Balda, Tahsil – Dharni,
District – Amravati. …. APPELLANT
VERSUS
The State of Maharashtra,
through P.S.O. Dharni, Police Station
Dharni, District – Amravati. …. RESPONDENT
__
Shri R.D. Hazare, Counsel for the appellant,
Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
__
CORAM : ROHIT B. DEO, J.
DATED : 5
APRIL, 2018.
th
ORAL JUDGMENT :
The appellant is challenging the judgment and order dated
25-11-2016 rendered by the learned Additional Sessions Judge,
Achalpur in Special (P) Case 123/2015, by and under which the
appellant-accused is convicted for offence punishable under Section
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366-A of the Indian Penal Code (“IPC” for short) and is sentenced to
suffer rigorous imprisonment for five years and to payment of fine of
Rs.1,000/- and is further convicted for offence punishable under
Section 343 of the IPC and is sentenced to suffer rigorous
imprisonment for one year and to payment of fine of Rs.500/- and is
further convicted for offence punishable under Section 376(n) of the
IPC and is sentenced to suffer rigorous imprisonment for ten years and
to payment of fine of Rs.2,000/- and is further convicted for offence
punishable under Section 6 of the Protection of Children from Sexual
Offences Act (“POCSO Act” for short) and is sentenced to suffer
rigorous imprisonment for ten years and to payment of fine of
Rs.2,000/-. The accused is acquitted of offence punishable under
Section 363-A and Section 506 of the IPC.
2. The genesis of the prosecution lies in report lodged by the
prosecutrix on 25-8-2015 at Dharni Police Station, alleging that the
accused kidnapped her, confined her for fifteen days at his house and
subjected her to forcible sexual intercourse every day of the
confinement. On the basis of the said report (Exhibit 7) and printed
first information report (Exhibit 8) offence punishable under Sections
363, 366-A, 343, 376(n), 506 of the IPC and Section 6 of the POCSO
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Act was registered against the accused. The investigation was
conducted by P.W.6 API Prity Tathe and charge-sheet was submitted to
the Special Court.
The learned Special Judge framed charge (Exhibit 3). The
accused abjured guilt and claimed to be tried. The defence is of total
denial.
3. Shri R.D. Hazare submits that the prosecution has not
established that the prosecutrix was aged less than eighteen years and
the provisions of the POCSO Act are not attracted. The next
submission is that the prosecution case is inherently improbable and
unbelievable and the evidence of the prosecutrix (P.W.1) is falsified by
the medical evidence. Per contra, Shri N.B. Jawade, learned Additional
Public Prosecutor would submit that the judgment and order impugned
is unexceptionable.
4. Shri R.D. Hazare is justified in the submission that the
prosecution has not proved that the prosecutrix was aged less than
eighteen years as on the day of the incident. P.W.1 prosecutrix has not
disclosed her date of birth and in the cross-examination, she admits
that she is not aware of her date of birth. P.W.3 Ramsu Jawalkar
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working as Assistant Teacher in Belda Barda School is examined to
prove (Dakhal Kharij) admission register which records the date of
birth of the prosecutrix as 25-4-1999. In the cross-examination, it is
elicited that the prosecutrix was admitted by the Headmaster Shri
Ghorpade and the entry of the date of birth is taken on the basis of
Anganwadi Certificate. P.W.3 admits that the school is not in
possession of the birth certificate of the prosecutrix nor can the witness
say who submitted the documents at the time of the admission. P.W.3
admits that he did not maintain the Dakhal Kharij Register at the
relevant time. Concededly, the prosecutrix is not subjected to
radiological/ossification test to determine the age. The school record
does not take the case of the prosecution any further since the primary
document or the source of information is not proved. The first
submission of Shri Hazare that the prosecution failed to prove the age
of the prosecutrix must be accepted.
5. The submission that the prosecution case is of doubtful
veracity is equally well merited. The version of the prosecutrix is that
she was abducted and forcibly confined in the house of the accused for
fifteen days and that she was subjected to forcible sexual intercourse
every day. She then states that her grandmother brought her home on
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the day of the Jiroti Festival and since the accused and his parents used
to threaten the prosecutrix, her mother and grandmother, she lodged
the police report. The prosecutrix has also deposed that prior to the
abduction and illegal confinement she was harassed and threatened by
the accused as and when she used to go to the river for washing
clothes. The prosecution has not examined either the mother or the
grandmother of the prosecutrix to unfold the narrative. The testimony
of the prosecutrix is inherently improbable and not at all confidence
inspiring. The report is lodged on 25-8-2015, and the recital in the oral
report is that the prosecutrix was abducted and confined in the house
of the accused fifteen days prior to 16-8-2015. The report is obviously
lodged belatedly and no endeavour is made by the prosecution to
explain the delay.
6. The evidence of the prosecutrix is not corroborated by the
medical evidence. P.W.4 Dr. Kanchan Jawanjal examined prosecutrix
on 25-8-2015. The hymen was intact. The prosecutrix was subjected
to USG vagina test and UTP test. No injury on the genitalia or the
person of the prosecutrix was detected. P.W.4 has proved the medical
certificate (Exhibit 18). The learned Sessions Judge has referred to
Lyon’s Medical Jurisprudence and Toxicology, in paragraph 19 of the
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judgment and order impugned. The learned Sessions Judge has
referred to and rely upon the following passage in the said treaties :
The anatomy of hymen varies from individual to individual.
It may be thick, thin rigid or elastic and varies in shape but is
usually circular or cresentic in virgins. Rupture of hymen
usually occurs on first penetration, but it is not inevitable.
Hymen may not rupture if the membrane is thin and elastic
or think of fleshy. In cases of sexual assault on young
children hymen usually does not rupture due to deeper
placement. Cases are on record where the married women
having regular intercourse, have intact hymen. Contrary to
this, hymen may be ruptured due to trauma, surgical
procedures foreign body insertion, chronic irritation due to
lack of cleanliness and worm infestation and occasionally by
the regular use of tampons.
7. It must be noted, that the prosecution made no effort to
elicit from P.W.4 the nature of the anatomy of hymen and to bring on
record that the membrane of the hymen of the prosecutrix is thin and
elastic or thick of fleshy. In the absence of medical evidence on record
that despite the forcible sexual intercourse every day for fifteen days
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the hymen of the prosecutrix may not have ruptured, it must be held
that the evidence of the prosecutrix is not corroborated by medical
evidence.
8. This Court is alive to the settled position of law that the
conviction can rest on the sole uncorroborated testimony of the
prosecutrix. However, the rider is that the testimony must be of
sterling quality, implicitly reliable and confidence inspiring. In the
present case, I am of the opinion that the version of the prosecutrix is
of doubtful veracity and not at all confidence inspiring. Relatives who
were material witnesses are not examined. The version of the
prosecutrix that she was abducted and confined in the house of the
accused, in the same village for fifteen days and was subjected to
forcible sexual intercourse every day is inherently improbable and
indeed incredible. If there were to be a single grain of truth in the
version of the prosecutrix, immediately after she was abducted, her
mother or grandmother would have lodged a police report. That she
was confined in the house of the accused in the same village for fifteen
days, that she did not make any effort to rescue herself or leave the
company of the accused and that her family members took no steps
against the accused renders the version of the prosecutrix unbelievable.
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9. The judgment and order impugned is manifestly erroneous
and unsustainable in law. The judgment and order impugned is set
aside and the accused is acquitted of offence punishable under Sections
366-A, 343, 376(n) of the IPC and Section 6 of the POCSO Act.
10. The accused is in jail. He be released from custody
forthwith unless his custody is required in any other offence.
JUDGE
adgokar
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