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Akash v/s The State of Maharashtra

    Criminal Appeal No. 141 of 2018

    Decided On, 24 November 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE V.M. DESHPANDE

    For the Appellant: R.M. Daga, Advocate. For the Respondent: N.S. Rao, A.P.P.



Judgment Text

Oral Judgment:

1. Present appeal is directed against judgment and order of conviction passed by learned Sessions Judge, Nagpur dated 31.01.2018 in Special Criminal (POSCO) Case No. 198/2016.

2. By the impugned judgment and order of conviction, appellant-Akash is convicted for the offence punishable under Section 376 (2) (i) of the Indian Penal Code (IPC) read with Sections 4 and 8 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act) and directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for six months. The Court below has also directed that upon recovery of the fine amount, Rs.7,000/- be paid to the victim girl as per Section 357 of the Code of Criminal Procedure as compensation. Not only that, the Court below has referred the case of the victim for additional compensation under Section 357A of the Code of Criminal Procedure (Cr.P.C) to the competent authority. Since from the date of arrest till the trial was concluded, the appellant was in jail, the Court also granted benefit of Section 428 of the Cr.P.C.

3. Sunil Vitthal Raut (PW9) a Police Sub Inspector (PSI) was attached to Police Station, Jaripatka on 15.04.2016. On 16.04.2016, fourfive persons including two women brought one girl aged 15 years to the Police Station. The said girl's mother Chandrakala (PW2) has lodged her oral report in respect of rape committed on her daughter, the “Victim”, against the appellant. The report is at Exh.11. On the basis of the said report, PSI Raut registered a crime vide Crime No.221/2016 against the appellant for an offence punishable under Section 376 of the IPC and Sections 4 and 8 of the POCSO Act. Printed FIR is at Esh.11A.

4. As per the FIR, the victim at the relevant time was taking education in 7th standard in a school known as Sakimata Vidyalaya, Nagpur. On 15.04.2016, there was a marriage ceremony in the house of relative of the first informant at Kabir Nagar. Therefore, the first informant, along with victim, in order to attend the said marriage ceremony went there at 6.30 p.m. After the marriage ceremony was over, in between 9

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.30 p.m. dinner was served and the first informant was totally engrossed with the dinner as well as interacting with other relatives. That time, victim was playing in the marriage pandal. Due to intermingling of the first informant with other relatives, she was not having close eye on the victim. The entire programme has finished at 11.30 in the night. That time, when the first informant noticed absence of victim, she and other relatives started making her search. That time, at about 12.30 in the night, from a dilapidated house situated nearby, the victim came running and weeping. One boy also stepped outside the said dilapidated house. He was chased by male members and he was caught. Upon inquiry made by the first informant with her daughter, the victim, she disclosed that when she was playing, one boy on the pretext of demanding water, caught hold her hand and brought her to the said dilapidated house and thereafter by pressing her mouth, committed sexual intercourse.

5. After the crime was registered, the appellant was also brought to Police Station by the persons in the locality. PSI Raut took the appellant in his custody and prepared arrest panchanama (Exh.29). Thereafter, PSI Raut visited the spot of occurrence on 16.04.2016 at 11.00 a.m. Spot Panchanama is at Exh.48. Thereafter, he handed over the investigation to Police Inspector Bahadure, who handed over further investigation to Smita Sonwane (PW7), Woman Police Sub Inspector. PSI Sonwane sent the victim for her medical examination to Mayo Hospital, Nagpur by giving requisition (Exh.22). Woman Police Constable Vaishali took the victim girl to the said hospital for medical examination. After the medical examination of the victim was over, WPC Vaishali produced medical samples of the victim girl received from the Medical Officer. The said were seized by Investigating Officer Sonwane under panchanama (Exh.30). She also seized clothes of victim under seizure memo (Exh.31).

6. On 16.04.2016 itself the investigating officer sent the appellant-accused for medical examination by giving requisition (Exh.32). Clothes of the accused were seized under seizure panchanama (Exh.33). Medical samples of the appellant were seized under seizure memo (Exh.34). During investigation, PSI Sonwane (PW7) obtained birth certificate (Exh.36) of the victim from the mother of the victim. Muddemal properties were sent to the chemical analyser. After completing other usual investigations, when Smita (PW7) found that sufficient material is collected to send the appellant for trial, filed Final Report before the competent Court of law.

7. Since the offence was exclusively triable by the Court of Sessions, learned Magistrate, in whose Court the Final Report was presented, committed the case to the Court of Sessions. Learned Sessions Judge, Nagpur himself took the case for trial after registering it as Special Criminal (POSCO) Case No.198/2016.

8. In order to bring home the guilt of the accused, the prosecution has examined in all 11 witnesses and also relied on various documents during the course of trial. After appreciation of the entire prosecution case, the Court below found that the prosecution has successfully proved the charge which was framed against the appellant and therefore passed the impugned judgment.

9. I have heard Mr. Daga, learned counsel for the appellant in extenso and Mr. Rao, learned A.P.P. for the respondent-State. Submission of the lerned counsel for appellant is that the victim is clearly consenting party to the act alleged to have been done by the appellant and also he submitted that leniency will have to be shown in favour of the appellant looking to his age. He, therefore, submits that the appellant can be punished for minimum sentence as contemplated in Section 4 of the POCSO Act.

Per contra, Mr. Rao, learned A.P.P. would submit that in the present case, it is firmly established by the prosecution that on the day of incident, the victim was “Child” within the meaning of the POCSO Act and in any case, her age was below 18 years. He submits that the offence under Section 376 (2) (i) of the IPC is also proved against the appellant and in view of Section 42 of the POCSO Act it is the duty of the Court to award greater punishment. Therefore, he stoutly opposed the submission of the learned counsel for the appellant for showing any leniency.

10. The appellant was caught by the members who were participating in the marriage ceremony when they found the appellant stepping outside the house in dilapidated condition and it was just adjacent to the marriage pandal and they handed over custody of the appellant to the Police Station Officer at the time of lodging of the FIR itself. The said aspect is crystal clear from the unchallenged version of PSI Raut (PW9) and also from FIR itself.

11. The FIR is lodged on 16.04.2016 at 2.30 a.m. The incident, according to the prosecution, has occurred in between 11.30 p.m. to 12.30 a.m. The appellant started running after the incident and he was chased by the members of the marriage congregation and he was caught and brought to police station. Printed FIR (Exh.11A) shows that the distance of Police Station from the place of occurrence is 2 km. It is crystal clear that within the span of 1 hours, the FIR was lodged with Police Station and at the time of lodging of the FIR, custody of appellant was handed over to the police. From the record, it is crystal clear that thus the FIR was lodged not only promptly but also immediately. Prompt and immediate lodging of the FIR always rules out the possibility of deliberation and false implication. In addition to that, in the present case, on the spot itself the appellant was apprehended by members of marriage congregation. Therefore, false implication of the appellant in the crime, in my view, is completely ruled out though it was his case as it could be seen from the answers which he has given when the appellant was examined by the learned Sessions Judge under Section 313 of the Cr.P.C.

12. The learned counsel for the appellant tried his level best by pointing out the discrepancy in between the evidence of victim (PW1) and recitals in the FIR and the history which was narrated to Dr. Mohd. Jafar Iqubal (PW6) prior to the medical examination of the victim. In the FIR and in the evidence of Chandrakala (PW2), mother of the victim, it is stated that the victim disclosed to her mother that when on the pretext of getting water the appellant took her to the dilapidated house, there he established physical relation with her. The same is also found in Exh.23, medical report. Same is also found when the Doctor has noted previous history of the incident. However, in the evidence, victim (PW1) as stated that “He inserted his hand in my urinal organ.”

13. Though at the first blush, the submission of the learned counsel for the appellant appears to be attractive as he submitted that a false case is lodged against him but on a closer scrutiny of the entire record, I have no hesitation in my mind to reject the said submission put forth by the learned counsel for the appellant. Chandrakala (PW2), mother of the victim has stated in her evidence that when the victim was aged about 8 years that time she fell ill, requiring the medical treatment including various CT Scans, etc. and doctor has opined that the victim has developed learning disability. In the crossexamination to the mother of the victim, a suggestion was given that the victim understands as to what is right and wrong and the answer given by Chandrakala, mother of the victim, was' “Sometimes yes, sometimes no. She has low I.Q.”

14. Since this was a case under the POCSO Act and according to the prosecution, the victim was minor child, the proceedings were undertaken in camera. The learned Sessions Judge, while recording evidence of victim (PW1) has noted the demeanor of the child and the learned Sessions Judge found that her IQ is very low. The learned Sessions Judge has, while recording evidence noted as under:

“It appears that the witness is having low I.Q. as she takes much time to answer and smiles intermittently while giving answer, without there being any relevance.”

15. A due weightage has to be given by this Court as an appellate Court to the demeanor found and recorded by the learned Sessions Judge, who had an opportunity to view and notice the child while she was deposing before him. Thus, it is crystal clear to this Court that the victim may not be able to give a vivid account of sexual intercourse with her.

16. In this backdrop, with the assistance of learned counsel for the appellant and learned A.P.P. for the State, I have gone through the relevant portion of evidence of Dr. Mohd. Jafar Iqubal (PW6). The evidence of Dr. Mohd. Jafar Iqubal (PW6) shows that in thr year 2016, he was attached to Mayo Hospital. On 16.04.2016 when he was on duty, Police Station Officer, Jaripatka, Nagpur brought the victim girl for her medical examination under requisition (Exh.22). On the said day, he along with lady Dr. Farah Ansari conducted medical examination of the victim girl. The evidence of Dr. Iqbal shows that after local examination of genital parts of the victim, it was revealed that the hymen was ruptured having 0.5 cm. X 0.5 cm fresh abrasion was present and according to the doctor, fresh means it was within 24 hours. According to the doctor, the said injury is possible due to forcible sexual intercourse. The medical report of the victim is available on record at Exh.23. From the cross-examination of the Doctor, it is established on record that within a period of 15 hours from the incident, the victim girl was examined.

17. According to the evidence of Dr. Iqbal (PW6) on 17.04.2016, the appellant was produced before him for his medical examination. The doctor carried out local examination of perineum and genital of the appellant. Upon genital examination, skin erosions were found over glans penis and distal part of shaft of penis. According to the doctor, it is possible due to sexual intercourse. The medical report of the appellant is available on record at Exh.27.

18. Thus, from the scrutiny of evidence of Dr. Mohd. Jafar Iqbal (PW6) and the medical certificate of victim (Exh.23) and medical certificate of appellant (Exh.27) there cannot be any iota of doubt in anyone's mind that the appellant has inserted his private part in the private part of the victim and when this consistent evidence of doctor, which has remained unchallenged is available on record, merely because the victim has stated in her evidence that the appellant has inserted his hand in her vital organ, the prosecution case cannot be termed as untruthful or cannot be thrown away. From the evidence of Chandrakala (PW2), mother of the victim and also evidence of Nitesh (PW10) who was one of the member of the marriage congregation, shows that the victim immediately disclosed the factum of sexual assault on her by the appellant. Therefore, the said disclosure is the relevant fact under the provisions of Section 8 of the Evidence Act. No doubt true that Sunita (PW3), Golu (PW4), Daniel (PW5) and Badal (PW8) have turned hostile, from their evidence itself it is clear that otherwise also their evidence was not touching to the core of the prospection case since they being the pancha witnesses.

19. Charge was framed against the appellant for an offence under Section 376 (2) (i) of the IPC. In addition to that, he was also charged for an offence under Sections 4 and 8 of the POCSO Act. Now, lets examine submission of Mr. Daga, learned counsel for the appellant, for leniency. After amendment of 2013, Section 375 of the Indian Penal Code reads as under:

“Section 375”

75. A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

First— Against her will.

Secondly— Without her consent.

Thirdly— With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly— With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly— With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly— With or without her consent, when she is under sixteen years of age.

Seventhly— When she is unable to communicate consent.

Explanation-1.— For the purposes of this section, "vagina" shall also include labia majora.

Explanation-2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.— A medical procedure or intervention shall not constitute rape.

Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

20. Parliament has passed the enactment in order to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. The said Act is POCSO Act 2012 (Act NO. 32 of 2012). Chapter 2 of the said Act deals with sexual offences against children. Section 3 defines penetrative sexual assault.

3. Penetrative sexual assault. - A person is said to commit "penetrative sexual assault" if -

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”

21. Section 4 states about punishment for penetrative sexual assault. According to Section 4, whoever commits penetrative sexual assault shall be punished 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.

22. According to the learned counsel for the appellant, the minimum sentence is seven years and looking to the age of the appellant, some leniency in the sentence can be shown.

23. Before adverting to this submission, firstly, I would like to record my finding that there is a conclusive evidence that the victim is a child within the meaning of clause (d) of Sub Section (1) of Section 2 of the POCSO Act. The victim in her evidence has given her date of birth as 24.10.2001. The investigating officer PSI Sonwane (PW7) states in her evidence that she obtained the birth certificate from the mother of the victim. The investigating officer placed birth certificate of the victim on record. It is at Exh.36. Perusal of Exh.36 would show that it is a birth certificate given by the Medical Officer of Nagpur Municipal Corporation under the provisions of Birth and Death Registration Act, 1969. The original birth certificate is on record and it shows that the date of birth of the victim is 24.10.2001. Thus, the documentary evidence coming on record from the custody of the office which is under obligation to maintain the record corroborates the version of the victim about her date of birth. Further, there is no challenge to the evidence of investigating officer PSI Sonwane about she obtaining birth certificate from mother of the victim. Thus, it is crystal clear here that the prosecution has established the date of birth of the victim as 24.10.2001. The date of the incident is 15.04.2016, which clearly shows that on the date of birth of the incident, the victim was a child within the meaning of provisions of POCSO Act. Therefore, the provisions of that Special Act were rightly applied by the investigating officer while sending the appellant for his trial and the learned Sessions Judge has rightly framed the charge against the appellant under the relevant provisions of the said Act.

24. Section 42 of the POCSO Act reads thus:

“42. Where an act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E 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 this Act or under the Indian Penal Code as provides for punishment which is greater in degree.”

25. In the present case, the prosecution has successfully established charge of Section 376 IPC. I would like to mention here that even the Chemical Analyser's report (Exh.24) to a very great extent is supportive to the prosecution case. The Chemical Analyser has examined various muddemal articles sent to the said office including the undergarments of the victim i.e. knicker. The Chemical Analyser's report (Exh.24) shows that it was stained with human blood. It was never the case of the prosecution that at the relevant time during sexual intercourse, ejaculation was done by the appellant therefore not noticing semen stains is of no consequence.

26. Once offence under section 376 of the IPC is firmly established then it is the duty cast on the Court to award punishment in view of Section 42 of the POCSO Act. Under Section 376 of the IPC minimum sentence is 10 years. Therefore, in my view, the Court below has properly considered this aspect in paragraph 39 of the impugned judgment and has awarded punishment of 10 years.

27. Reappreciation of the entire facts of the prosecution case and after considering the submissions of the learned counsel for the appellant, I do not see any reason to interfere with the impugned judgment. Consequently, I pass the following order.

ORDER

The appeal is dismissed.
OR

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