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Samadhan Kashiram Khirodkar v/s State of Maharashtra

    Criminal Appeal No. 218 of 2018

    Decided On, 28 November 2018

    At, In the High Court of Bombay at Nagpur

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

    For the Appellant: R.R. Vyas, Advocate. For the Respondent: S.V. Kolhe, A.P.P.



Judgment Text

Oral Judgment:

1. By the present appeal, appellant-Samadhan is challenging the judgment and order of conviction passed by Ad hoc Additional Sessions Judge, Khamgaon, Dist. Buldhana in Sessions Trial No.92/2015 whereby the appellant is convicted for the offence punishable under Section 376 (2) (i) and (n) of the Indian Penal Code and also under Section 6 of the Protection of Children From Sexual Offences Act, 2012. The appellant is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer rigorous imprisonment for one month.

2. I have heard Mr. R. R. Vyas, learned counsel for the appellant and Mrs. Kolhe, learned A.P.P. for the State in extenso. They took me through the record and proceedings minutely. According to the submissions of the learned counsel for the appellant, the appellant is falsely implicated in the crime. It is also his submission that possibility of tutoring of the victim by her mother Uma Wadode (PW2) cannot be completely ruled out. It is also his submission which is based on the answers given by the appellant when his statement under Section 313 of the Code of Criminal Procedure was recorded that due to the political enmity between him and one Avinash Umbarkar, at the behest of said Avinash Umbarkar, false case is lodged against him. It is also his submission that if evidence of the victim is read as a whole, the said does

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not inspire confidence. It is also his submission that there is a delay in lodging the FIR. Therefore, false implication is not completely ruled out. He, therefore, submitted that appeal be allowed and the appellant, who is in jail be set at liberty.

Per contra, Mrs. Kolhe, learned A.P.P. would submit that the learned Judge of the Court below had evaluated the evidence of prosecution witnesses in correct perspective. She submitted that there was no reason for the victim to falsely implicate the appellant. She also submitted that the medical evidence clearly clinches the issue in favour of the prosecution and, therefore, she submitted that the appeal is not having any merit and therefore it be dismissed.

3. Uma (PW2), mother of the victim lodged her oral report with Police Station Jalgaon Jamod on 27.08.2015 (Exh.32). On the basis of the said oral report, offence was registered against the appellant vide Crime No.132/2015 for the offence punishable under Section 376 (2) (ii) & (n) of the IPC and Sections 3, 4 and 6 of the POCSO Act. Gist of the FIR is that on 23.08.2015 when the victim had been to her grandmother's house that time the appellant who resided near the house of her grandmother called her to his house and asked her to sweep his house and that time he made sexual advances towards her by kissing her and thereafter touching her private part and also asked her that she should not disclose this fact to anybody. On the next day also, he called her in his house and thereafter placed his hand in her knicker and fingered her vagina, resulting into pains. According to the FIR, this act on the part of the appellant was disclosed to her mother by the victim on 26.08.2015 at 12.00 O'clock in the night. Thereafter, she approached to Police Station and lodged the report.

4. Investigation of Crime No.132/2015 was handed over to Ganpat Rathod (PW5). He visited the spot of incident and in presence of pancha, spot panchanama was drawn. It is at Exh.51. Prior to that the appellant was arrested. He also requested Judicial Magistrate First Class, Jalgaon Jamod under Exh.54 to record statement of the victim under Section 164 of the Cr.P.C. Accordingly, her statement was recorded by the learned Magistrate after taking due care and following due procedure. The said statement is at Exh.29. Clothes of the victim were seized under Exh.55 so also clothes of accused were seized under seizure memo, Exh.56.

5. Initially, the victim was referred for her medical examination at Rural Hospital, Jalgaon Jamod. At that time, Dr.Amol Banait (PW3) was Medical Officer. As no lady Medical Officer was present, Dr. Banait under Exh.37 referred the victim for her medical examination at General Hospital, Buldhana. Accordingly, the victim was brought before Dr. Rajashri Kharat (PW4), who at the relevant time, was serving as Medical Officer at General Hospital, Buldhana. Since the victim was only aged about 9 years, she obtained consent of her mother Uma (PW2) at Exh.45. Exh.47 is Medical Certificate of the victim. During local examination, as per the evidence of Dr. Rajashri Kharat, she noticed following injuries:

(i) Brest were not well developed.

(ii) Axillary hair were not present.

(iii) Pubic hairs not present.

(iv) There were no injuries on chest, lower part of back, inner part of thighs, buttocks.

(v) Labia major not well developed.

(vi) Abrasion of size 2 mm X 2 mm on posterior wall of labia majora on left side and the base was red. The age of injury was 4 to 5 days back.

(vii) Abrasion of size 1 mm X 1 mm on the right side of the posterior wall of labia majora and the base was red. The age of injury was 4 to 5 days back.

(viii) The vagina admits tip of finger.

As per the opinion of Dr. Rajashri Kharat (PW4), there was sexual assault on the victim. When the victim was examined before the trial Court, she gave her date of birth as 06.10.2006. However, in English recording, it is 06.10.2010. The learned Judge of the Court below in the judgment has recorded this particular fact that there is a clerical mistake in English typing. Important to note that the victim was below age of 10 years on the date of incident and it was never disputed by the appellant. Even before this Court, it was not the submission of the learned counsel for the appellant that wrongly the provisions of the POCSO Act were applied. Exh.29 which is a statement recorded under Section 164 of Cr.P.C. by the learned Magistrate. She replied to the question that at the time of recording her statement, she was taking education in 4th standard. Once, prosecution successfully proves that the victim was a “Child” within the meaning of clause (d) of Sub Section (1) of Section 2, provisions of the POCSO Act will take place with all force and vigor.

6. All the submissions of the learned counsel for the appellant were devoted to elaborate that the case of the prosecution is untruthful in view of the delay in recording the FIR.

It is trite law that delay in lodging of the FIR itself cannot be the ground to throw case of the prosecution in dustbin by the Court at the threshold. What is required by the Court to evaluate in that behalf is whether the delay in lodging the FIR is intentional so that the complainant or the prosecution gained sufficient time for deliberation to falsely implicate any person in a crime. In the FIR itself, Uma (PW2) has stated that the acts done by the appellant on victim were for the first time disclosed to the complainant Uma in the dead hours of 26.08.2015 and the FIR is lodged on 27.08.2015. Thus, prompt steps were taken by mother of the victim to report the matter to the concerned Police Station.

7. In that behalf, it would be useful to refer to the evidence of the victim herself. Her evidence would show that on Wednesday i.e. two days after 24.08.2015 while urinating, she discharged blood and felt pain. The said fact was disclosed by the victim to her mother. Her evidence shows that her mother asked her to see that whether she had any such urine with blood again. The evidence of victim then further reveals that in the night when she was feeling like urinating, she along with her mother went outside and she noticed that the victim is discharging blood while urinating. On that particular point of time, as per the evidence of victim, she disclosed that on last Sunday and Monday, the appellant has put his fingers in her vagina.

8. Till disclosure of the act on the part of the appellant by the victim to Uma (PW2), there was no occasion for Uma to know the fact and to approach to the Police Station. Thus, for the first time, at 12.00 O'clock in the night on Wednesday, firstly Uma (PW2) the first informant gathered knowledge and information from her little girl about the fact that the appellant has done heinous act resulting into discharge of blood from her vagina. Therefore, on the next day, the matter was reported to police station. In view of the aforesaid chronology, in my view, the submissions made by the learned counsel for the appellant that the prosecution case is required to be viewed under tainted glasses and discard the entire prosecution case on the count of delay is required to be rejected and accordingly, the submission in that behalf made by the learned counsel for the appellant is rejected.

9. Another submission of learned counsel for appellant is that there is a great possibility of victim being tutored on the part of her mother and for that he relies on the following submission, which is appearing in the cross-examination of the victim, “It is true that my mother stated me as to what is to be deposed by me in the Court.”

I am afraid that only on the basis of this solitary and stray statement made by the victim aged about 8 years, the victim, a child, cannot be branded as a tutored one. It is the duty of the Court to evaluate entire prosecution case as a whole. The prosecution case has to be decided by the Court of law by considering the entire evidence and not on the basis of bits and pieces as appearing in the evidence. However, in the cross-examination itself, the victim has stated that his mother had asked her to state true facts which are happened. If that be so, the mother, at the most told her daughter that she should disclose the events and facts done to her by the appellant. Therefore, in my view, the submissions made on behalf of the learned counsel for the appellant has no merit. On the contrary, after a thoughtful consideration and minute scrutiny of the evidence of the victim, I am of the view that the victim is a courageous girl who very firmly disclosed from the witness box what happened to her at the hands of the appellant to her body, especially to her private parts. Had this girl failed to disclose the atrocities committed on her by the appellant, the obnoxious acts on the part of the appellant would have remained always in dark and it would have given more courage to him to do such obnoxious acts in future.

10. The evidence of Dr. Rajashri Kharat (PW4) discloses injuries as she has mentioned in her certificate Exh.47 at item Nos. (vii) and (viii). Looking to the age of the girl and looking to the fact that her vagina admitted only tip of a finger, in my view, those injuries substantially corroborate the victim's version about the acts done by the appellant with her. Though, in cross-examination, it is suggested to the victim that it is true that she is learning cycling while studying in 5th standard and on some occasion she fell while cycling, thereby it appears that the learned crossexaminer was trying to raise a defence that the injury may be due to cycling. The said is also submitted before this Court. The said submission and cross-examination has inherent shortcomings. Statement of victim was recorded by Magistrate under Section 164 Cr.P.C. on 31.08.2015. The evidence of the girl before Sessions Court was recorded on 06.07.2017. Before the learned Magistrate, while recording her statement under Section 164 Cr.P.C., she has stated that she was taking education in 4th standard. In view of that, the said suggestion given by the learned crossexaminer about cycling has no value since after one year of the incident, her statement was recorded.

11. Further, as per the evidence of Dr. Rajashri Kharat (PW4), when she physically examined the victim, according to her opinion, the injuries which she noticed were 45 days old. The victim was medically examined on 28.08.2015 and the incident occurred on 23.08.2015 and 24.08.2015. Further, the evidence of doctor in that behalf is not challenged at all. In that view of the matter, the medical evidence supports the victim's version that she was ravished on 23.08.2015 and 24.08.2015. The learned counsel submitted that the Chemical Analyer's report (Exh.63) in respect of the clothes of the appellant-accused, does not show blood or semen stains, in my view, the Chemical Analyser's report has no bearing at all since it was never the prosecution case that at any point of time the appellant has inserted his private part inside the private part of the victim.

12. After Amended Act of 2013, there is a drastic change in the definition of rape under Section 375. Clause (b) of Sub Section 375 states that a man is said to have committed rape if he inserts any object or any part of his body, not being penis, into vagina, urethra, mouth or anus of any person, or making any other person to do so with him or any other person. dt It will be useful to refer examination-in-chief of the victim in respect of 23.08.2015, which is as under: “While cleaning, he was kissing me, he then laid me on the ground. He asked me whether he can insert in my vagina (su chi jaga). I said no to him.” In spite of this, it appears that the appellant continued not only on 23.08.2015 but on 24.08.2015 also. Her evidence would show that the appellant asked her not to state those facts to anybody. It was never the case of the victim that after the act immediately she felt pain and/or started discharging blood through her urine. It only occurred after two days. Therefore, this little girl cannot be blamed for not disclosing the fact immediately to anybody.

13. In my view, the learned Court blow has rightly paid attention to certain omissions. In my view, those omissions do not touch to the core of the prosecution case and core of the testimony of the victim about the heinous acts done by the appellant.

14. On reappreciation of the entire prosecution case, I do not find any reason to interfere with the finding recorded by the Court below that the appellant was found to be guilty for which he was charged. Similarly, there is no reason to disturb the order of sentence since the Court below has imposed minimum sentence as provided under law. Hence, I pass the following order.

ORDER

The appeal is dismissed.
OR

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