R.K. Deshpande, J.
1. The incident is of 15-8-2015, which took place at the newly constructed building of the hostel of Adivasi Madhyamik Ashram Shala, Pandhurna, Tahsil Ashti, District Wardha. The victim is Ku. S (name not disclosed to withhold the identity), aged about ten years and the charge against the accused was that he repeatedly committed rape/penetrative sexual assault on three consecutive days prior to 15-8-2015. The further charge was that the accused committed an act of criminal intimidation by threatening Ku. S to kill her with intent to cause alarm if she discloses the incident to anybody. It was also the charge that not being a member of Scheduled Caste or Scheduled Tribe, the accused was in a position to dominate the will of Ku. S, a minor girl belonging to Scheduled Caste or Scheduled Tribe, and used the position to exploit her sexually by repeated acts. The charges were framed initially on 27-10-2016, and the additional charge was framed on 16-8-2017 for sexual assault on a minor girl aged about ten years, amounting to an offence punishable under Section 5(m) and (p) and Section 6 of the POCSO Act.
2. The conviction of accused Raju on 5-10-2017 in Special (Ch.) Case No.76 of 2015 by the Special Judge for POCSO, Wardha, is for the offence punishable under Section 376(2)(i) of the Indian Penal Code (IPC) and the sentence imposed is of life imprisonment means for the remainder of his natural life and with a fine of Rs.5,000/-. The conviction is also for the offence punishable under Section 506(II) of IPC and the sentence for it is to suffer rigorous imprisonment for seven years with a fine of Rs.1,000/-. The further conviction is for the offence punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act) and for it, the sentence is to suffer life imprisonment with a fine of Rs.5,000/-. All the sentences for the substantive offences are directed to run concurrently. The acquittal is in respect of the offences punishable under Section 376(2)(n) of IPC, Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act), and Section 3(1)(xii) of the Atrocities Act.
3. Though the offences were alleged to have been committed on three consecutive days prior to 15-8-2015, the oral report and the written complaint were given for the first time in the Police Station on 6-9-2015 by one Smt. Drupadabai, the grandmother of the victim, registered as FIR No.43 of 2015 at Exhibit 26. The prosecution led evidence and examined twelve witnesses during 9-1-2017 to 1-8-2017. The conviction was recorded by delivering the judgment on 5-10-2017, which is the subject-matter of challenge in Criminal Appeal No.119 of 2018.
4. The second incident is of 19-8-2015 and the place is the Government Adivasi Ashram School, Pandhurna at 11.00 hours. The accused is the same person Raju and the victim is Ku. R (name not disclosed to withhold the identity), aged about nine years. Initially the charges were framed on 27-10-2016 alleging that the accused committed rape on Ku. R, aged about nine years and has thereby committed an offence under Section 376(2)((i) of IPC. The second charge was that the accused committed criminal intimidation by threatening to end life of Ku. R and has thereby committed an offence punishable under Section 506 of IPC. The third was that of committing penetrative sexual assault, resulting in commission of offence under Sections 3 and 5 of the POCSO Act, punishable under Section 6 therein. The additional charge was framed on 16-8-2017 in respect of the offence punishable under Sections 2(m) and (p) and 6 of the POCSO Act. Further, the charge under Section 376E of IPC was framed on 12-12-2017.
5. The same accused Raju has been convicted on 11-1-2018 by the same Special Judge for POCSO, Wardha, in Special (Ch.) Case No.77 of 2015 for the offence punishable under Section 376E of IPC and is directed to be hanged by neck till he is dead, subject to the confirmation by this Court. The accused is also convicted for the offence punishable under Section 376(2)(i) of IPC and is sentenced to suffer life imprisonment for the remainder of his natural life with a fine of Rs.5,000/. He is also convicted for the offence punishable under Section 506(II) of IPC and is sentenced to suffer rigorous imprisonment for seven years with a fine of Rs.1,000/-. The conviction is also for the offence punishable under Section 3(2)(v) of the Atrocities Act and the accused is sentenced to suffer life imprisonment with a fine of Rs.5,000/-. All the sentences for the substantive offences imposed upon the accused are directed to run concurrently. The acquittal of the accused Raju is in respect of the offence punishable under Sections 4 and 6 of the POCSO Act and also of the offence punishable under Section 3(1)(xii) of the Atrocities Act.
6. Though the incident is of 19-8-2015, the FIR No.40 of 2015 was lodged on 1-9-2015 by Zanaklal Zibru Parteki, the father of the victim. The prosecution examined twenty-two witnesses during 1-9-2017 to 16-12-2017. The conviction was recorded and the death sentence was imposed in the judgment delivered on 11-1-2018, which is the subject-matter of Criminal Confirmation Case No.01 of 2018 by the State and challenged in Criminal Appeal No.85 of 2018 by the accused Raju.
7. The undisputed position is that the second incident of 19-8-2015 was reported first on 1-9-2015, whereas the first incident of 15-8-2015 was reported subsequently on 6-9-2015. The conviction of the appellant-accused is for the offence of rape covered by Sections 376(2)(i) of IPC, apart from the offences under Sections 506(II) of IPC and Section 3(2)(v) of the Atrocities Act. Though the charge in Special (Ch.) Case No.76 of 2015 was also for the offence under Section 376(2)(n) of IPC, the accused is acquitted of the same and there is no conviction for it in any of the two cases. In addition to the accused Raju, t
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he conviction in the Confirmation Case is also of accused No.2 Madan and accused No.3 Vaishali, the Head Master and Hostel Superintendent respectively, for the offences punishable under Section 202 of IPC and Section 21(1)(2) of POSCO Act, as they failed to report the matter and take action in spite of knowledge. All these offences were committed on or before 19-8-2015 for which the maximum punishment that could be imposed under Section 376(2)(i) of IPC was of imprisonment for life, means the remainder of the natural life of the accused and fine. However, on the basis of the provision of Section 376E of IPC, introduced with effect from 3-2-2013, the punishment for repeat offenders imposed is that of the death sentence, as the accused was found to be previously convicted of an offence of rape under Section 376 of IPC.
8. Initially we heard Shri S.K. Bhoyar, the learned counsel appearing for the accused, who urged that for imposing the punishment of death under Section 376E of IPC for the repeat offenders, the previous conviction contemplated therein is the conviction recorded prior to commission of subsequent offence or at any rate before the charge in the subsequent offence is framed. In the present case, previous conviction is during the course of trial of the subsequent offence. After recording the conviction in the subsequent case, the charge was framed in respect of punishment of death on 12-1-22017 and then the sentence of death was imposed. The sentence for death cannot, therefore, be sustained.
9. According to Shri Bhoyar, the learned Judge of the Sessions Court was determined to sentencing the accused for death. He submits that instead of conducting one trial, as contemplated by Section 219 of Cr.P.C., for the same kind of offence committed within a span of twelve months, the learned Sessions Judge conducted two trials in respect of the same kind of charge simultaneously. The conviction in Special (Ch.) Case No.76 of 2015 (called as 'previous case'), was recorded on 5-10-2010 and thereafter proceeded the examination of remaining witnesses in Special (Ch.) Case No.77 of 2015 (called as 'subsequent case'). Shri Bhoyar submits that if one trial had been conducted, as contemplated under Section 219(1) of Cr.P.C., the question of previous conviction would not have arisen. He also urged that the procedure adopted of conducting simultaneous trial has caused prejudice to the accused.
10. It is further urged, relying upon the provisions of Sections 303 and 304 of Cr.P.C. and Sections 12 and 13 of the Legal Services Authority Act, 1987, that the accused was not provided an effective opportunity to defend the matter, as the counsel appointed from the legal aid to represent him in trial did not possess requisite experience. He took us through the cross-examination conducted to point out that the questions which could not have been put in cross-examination were asked and the questions which could have been put by a lawyer having reasonable knowledge were not put to the witnesses. On this count, he submits that the conviction recorded in both these matters need to be set aside with an order of remand to provide the accused an effective opportunity to defend.
11. Shri Sanjay Doifode, the learned Additional Public Prosecutor appearing for the State, invited our attention to Sections 236, 376, 386, 391, 464 and 465 of Cr.P.C. to urge that the findings on the sentence cannot be reversed or altered on account of any error, omission or irregularity unless in the opinion of the Court, failure of justice has in fact been occasioned thereby. He submits that at the most the matter can be remanded back keeping in view the argument in respect of failure on the part of the Court to provide an effective opportunity to defend. He further submits that there was no defect in framing the charge and refutes the argument that the 'previous conviction' means the conviction subsisting either on the date of commission of second offence or on the date of framing of charge in the subsequent case. He submits that the procedure adopted by the Sessions Court was correct, proper and in accordance with law.
12. While hearing the learned counsels appearing for the parties, we thought that in the absence of any judgment on the provision of Section 376E of IPC, it would be better if we call upon someone to assist us and address on several important questions involved in the matter. We, therefore, passed an order as under :
“Both these matters raise various questions of public importance involving interpretation of provisions of Section 376 of Indian Penal Code and other amendments introduced with effect from 21.04.2018. We are dealing with the case of confirmation of death sentence and the questions arising in the present matter probably have not been addressed to by any Court as the amendment is of 2018. We, therefore, called upon Shri Adwait Manohar and Smt. Renuka Sirpurkar, the learned counsels to address this Court on several issues as amicus curiae which we have explained to them. We expect Shri Bhoyar, the learned counsel for the accused and Shri Doifode, the learned Additional Public Prosecutor to supply sequence of events to both the learned counsels appointed by this Court, so that they can address this Court on the precise issues. Put up this matter on 11.10.2018.”
13. We have heard Shri Adwait Manohar, the learned counsel appointed as amicus curiae, who has taken us through the scheme of conducting trial under the Code of Criminal Procedure, including the mandatory provision of Section 218 of Cr.P.C., dealing with conducting of separate trial in respect of distinct offences and the exceptions to it under the provisions of Sections 219 to 223 of Cr.P.C. and has urged that there can be no fault in the procedure adopted by the Sessions Court in conducting different trials. He has taken us through various judgments of the Apex Court on this aspect of the matter and has urged that merely because separate trials are conducted, no prejudice is said to have been caused to the accused. He has further invited our attention to the provision of Section 376E of IPC, introduced on 3-2-2013, and the amendments carried out with effect from 21-4-2018 and submits that the said provision is clearly attracted in the present case. According to him, the Sessions Court was right in framing the charge in respect of the enhanced punishment under Section 376E of IPC after recording the conviction in the subsequent trial. Further, according to him, at no earlier point of time, there was an occasion to frame the charge. On the aspect of failure to provide an opportunity to defend, he has also relied upon the decisions of the Apex Court in the cases of (i) Mohd. Hussain alias Zulfikar Ali v. State (Government of NCT of Delhi), reported in (2012) 2 SCC 584; and (ii) Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of Delhi), reported in (2012) 9 SCC 408, and has urged that the matter is required to be remanded back to the Sessions Court to conduct de novo trial from the stage of framing of the charge itself.
14. Smt. Renuka Sirpurkar, the learned amicus curiae, has also produced before us the report of the Committee on the amendments to criminal law to point out that the Committee in fact did not recommend the punishment of death sentence, but then the Parliament has passed a legislation introducing the provision of Section 376E, to provide the punishment of death in the situation contemplated therein. She has concurred with the view expressed by Shri Adwait Manohar that the 'previous conviction' referred to under Section 376E of IPC need not necessarily be a conviction existing either at the time of commission of second offence or at the time of framing of the charge in the subsequent trial. She subscribes to the view that it is only upon recording of the conviction in the subsequent trial that the occasion to invoke the provision of Section 376E of IPC would arise.
15. We must express that Shri S.K. Bhoyar, the learned counsel appearing for the accused Raju, and Shri Sanjay Doifode, the learned Additional Public Prosecutor appearing for the State, have not only provided us proper assistance on the facts of the cases, but have also gone ahead and assisted us as officers of this Court and we appreciate it. We must also place on record our appreciation in respect of the efforts taken by Shri Adwait Manohar and Smt. Renuka Sirpurkar as amicus curiae and the assistance provided to us in understanding the scheme of the trial of the offences by the Sessions Court and the interpretation of various provisions, supported by several decisions and the report of the Committee on the amendment of criminal law. We have no hesitation in expressing that the arguments by both of them would always remain an addition to our knowledge. It would have been our pleasure to deal with all the aspects addressed to us. However, it is not necessary for us in the present matter to deal with the same, as we are convinced on the question of remand of the matter back to the Sessions Court after setting aside the decisions for de novo trial on the ground of lack of opportunity provided to the accused to defend.
Conviction in Special (Ch.)case No.76 of 2015 – 'Previous Case' :
16. In the previous case, the conviction for the offence punishable under Section 376(2)(i) of IPC is based upon the oral testimony of the victim Ku. S, examined as PW 5; Smt. Dhrupadabai, PW 2, the grandmother of the victim and the complainant; Chanda Kamble, PW 11, the teacher of the victim; and Dr. Vaishali, PW 7. We would, therefore, like to see the material available on record to support the findings of conviction.
17. The charge in the previous case is in respect of an offence under Sections 376(2)(i) and 376(2)(n) of IPC, framed as under :
“Firstly, That, in the summer of year 2014, on three consecutive days and about one to one and half month prior to 15.08.2015 at a newly constructed building of Hostel of Aadivasi Madhyamik Aashram Shala, Pandhurna, Tah.Ashti, District Wardha, you accused repeatedly committed rape/penetrative sexual assault on Ku. Shilpa Prakash Nirmale, a minor/child under 16 years of age and thereby committed an offence punishable under section 376(2)(i), 376(2)(n) of Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, and within the cognizance of this Special Court.”
18. PW 5 victim Ku. S has stated in Paras 2, 3 and 4 of her examination-in-chief as under :
“2. Now, through V.C. witness is shown one gents. On seeing him she has stated that his name is Rajudada. She has identified his by showing her finger. At relevant time Rajudada was serving as a Watchman (Choukidar). Dighore Madam was Superintendent and Khadse Sir was Headmaster. At relevant time, Rajudada was residing in a new building. When I was in 4th Standard, Rajudada took me in a new building on 15th August at about 2.00 p.m. At that time, he took me in the kitchen of the said building. Thereafter, he had undressed me. He had removed his clothes also. Thereafter, he had led me on Ota of kitchen. Thereafter, he had inserted his main genital into my vagina. Therefore, blood oozed out of my vagina. He had wiped of said blood by his clothes. Thereafter, he told to me that if I stated about the said incident to anybody, he will kill me. Thereafter, I went away from there. I had stated about the said incident to Dighore Madam. Thereupon Dighore Madam told to me that if I stated about the said incident to anybody, she will assault by stick.”
“3. Prior to the incident also on three occasion, accused had did above stated acts with me.”
“4. After the incident of 15th August, after 2 to 4 days again Rajudada called me. At that time, he told to me to call Rani. So, I called Rani and took her near new building. Rajudada took Rani inside. I had gone for playing. After sometime, Rani came outside. At that time, she told to me that whatever bad deeds Rajudada had done with me he had done the same with her. Thereafter, I and Rani both had stated to Dighore Madam. Thereupon, she told that not to state about it to anybody otherwise she will make assault, she has also stated that she will state about the same to Sir.”
The victim states in Para 7 of her cross-examination as under :
“7. It is true to say that besides me other girls are also in my school. I do not know whether Rajudada was giving harassment to other girls also or not. It is not true to say that at relevant time, I had not shouted. It is not true to say that prior to the incident also on 2 to 3 occasion when Rajudada gave harassment to me, I had not shouted. Witness volunteers that when I shouted, Rajudada pressed my mouth. It is not true to say that after the incident, I was having no pains. Witness volunteers that there was stomachache to her. It is not true to say that I had not stated about the previous incident to anybody. I had stated about it to Dighore Madam and she informed to me that she will stated about it to Sir. It is true to say that I had not stated about it to anybody apart from Dighore Madam. I had not stated about the said incident and earlier incident to Wagh Madam. It is not true to say that in Police Station about the said incident only my grandmother stated and I stated nothing. It is not true to say that I am stating against Rajudada.”
This is the entire evidence of the victim in respect of the charge so framed.
19. PW 2 Dhrupadabai, the complainant and the grandmother of the victim, has stated in Para 2 of her examination-in-chief as under :
“2. On 5/09/2015 victim and her brother and sisters were brought at our home by their father. At that time victim was crying. So, I asked her as to why she was crying. Thereupon, she had stated that Rani came near victim, accused told to her to call Rani. Thereupon she told as to why I called her. Thereafter, she went away in the school. She has also stated that on the festival of Nagpanchami accused took away Rani in the building, removed her clothes and removed his clothes also. Thereafter, she has also stated that Rani had also stated to her that accused has inserted his penis in her vagina and blood was oozed out of it. He had wiped of it by her clothes. Victim had also stated to me that prior to 1 months accused had did the same thing with her as liked Rani. But, accused had given threats of killing to her she had not stated about it to anybody. As the accused did said act with victim, there was stomach ache, there was trouble in her vagina of the victim. So, I had lodged the report of said incident at Police Station. Now the said report is shown to me. It bears my thumb impression. Its contents are written as per my narration. It is at Exh.25. Now printed F.I.R. is shown to me. It bears my thumb impression. It is at Exh.26. I know the accused. Because, he is a chowkidar of a construction work going on in the said school. Police had recorded my statement.”
In the examination-in-chief, PW 2 Dhrupadabai does not state that the victim told her that Dighore Madam, the Hostel Superintendent, was informed about the incident which took place on 15-8-2015 or at any earlier point of time. However, surprisingly the question is put in the cross-examination, in response to which she states that the victim had informed that the incident was communicated to Dighore Madam. PW 11 Chanda Kamble, the teacher of the victim, came to know about the incident when the police went to School, obviously on or after 6-9-2015 upon registration of the offence.
20. PW 8 Dr. Vandana is the Gynaecologist, who examined the victim on 7-9-2015 at 5 p.m. She states that the victim was accompanied by her grandmother Dhrupada, who gave the consent for the medical examination of the victim. Upon getting history of sexual assault from the victim, she states in her examination-in-chief as under :
“... At that time Pain and small amount of bleeding (few drops) not told to anybody at that time. On her examination I found that no injury on her body, on her genital examination I found that pubic hair not developed, labia majora, labia minora, clitoris within normal limits, vagina within normal limit, hymen injury present, edges normal, no edema, small tear present as 5.00 O clock position. I had collected vaginal swab, blood sample. From the same I had opined that sexual intercourse//assault cannot be ruled out. Hence, final opinion is kept pending till receipt of FSL report. Three sealed bottle given to LPC Nisha B. No.866. Accordingly, I had issued certificate. Now the same is shown to me. It bears my signature. It is in my handwriting. Its contents are true. It is at Exh.51.”
The certificate issued by PW 8 Dr. Vandana in respect of the examination is at Exhibit 51. She further states that she filled in Form-B and Form No.II giving particulars about blood, vaginal swab and nail clipping, marked as Exhibits 53 and 54. She also proved FSL report at Exhibit 55. She states that on seeing the report, she opined that the possibility of sexual intercourse/assault cannot be ruled out.
21. Exhibit 51 is the forensic medical examination report of the victim. In Para (II)(a), the history stated by the victim (e.g. Date, time, place of assault, number of assailants and type/nature of sexual assault and other relevant details) is stated as under:
“H/given by grandmother C
that H/o sexual assault 1 month
back in the under construction building
by (chaukidar) guard of building.
At that time pain & small amount of
bleeding (few drops). Not told to
anybody at that time.”
It is stated in Para (III)(a) as under :
“Not attaineded menorche.”
In the column of position of tears in Para (VI)(f), it is stated as under :
“Small tear O present at 5 'O clock position.”
The overall opinion in clause (b) of Para (X) states as under :
b) Evidence of sexual intercourse/assault cannot be ruled out. Hence, final opinion is kept pending till receipt of FSL reports.”
22. Exhibit 58 is the FSL report dated 2982016, which states that neither blood nor tissue matter is detected on exhibit (3), which is the nail clipping in a test tube labelled with the name of the victim. It states that no semen is detected on exhibit (2), which is vaginal swab in a test tube labelled with the name of the victim.
23. In Paras 26, 27 and 40 of the judgment, the findings are recorded as under :
“26. The medical evidence is suggestive of sexual intercourse and sexual assault. The testimony of the prosecutrix that the accused put his male organ in her organ of urination is revelatory of penetrative sexual assault. The defence though argued that the sexual intercourse with the prosecutrix was not possible, it is not of significance as the prosecutrix has not stated in those words. She was a small child. Her conduct during inquiry made by PW 11 and also while disclosing the incident to her grandmother indicates the effect of threats issued to her. It was after more than 18 days when she disclosed the incident to PW 11 and almost after 20 days to her grandmother. In such a tender age not disclosing the incident of sexual assault to anybody under the threats to life is definitely going to negatively affect the psychology of the child which made her to keep shut.”
“27. The evidence of the witnesses PW 2 and PW 11 corroborates the version of the prosecutrix. The medical evidence also corroborates the evidence of the prosecutrix.”
“40. The prosecution has brought the reliable evidence through the victim of the crime, medical evidence and corroborative evidence. Applying all the tests to the facts of the present case the Court is satisfied beyond any manner of doubt that the prosecutrix had absolutely no reason to falsely involve the accused. Thus, the prosecution has successfully proved the offence punishable under Section 376(2)(i) of IPC.”
24. It is not established that the accused committed sexual assault on the victim Ku. S on three consecutive days and about 1 month prior to 15-8-2018. In respect of the incident of 15-8-2015, the victim deposes to have informed Dighore Madam, the Hostel Superintendent, after the incident. However, in her deposition, she does not state to have informed PW 2 Dhrupadabai, the grandmother, about the complaint which she made to Dighore Madam. PW 2 also does not state in her examination-in-chief that the victim told her about the complaint made to Dighore Madam. This is, however, taken out in the cross-examination of PW 2. In the forensic medical examination report at Exhibit 51, PW 8 Dr. Vandana, while taking history from the victim and her grandmother, notes that after sexual assault, the victim did not tell it to anybody at that time. This becomes significant, more particularly when PW 8 tentatively opines that the evidence of sexual assault cannot be ruled out and kept the final opinion pending till receipt of the FSL report. After receipt of the FSL report at Exhibit 58 on 29-8-2016, the final opinion is neither expressed nor placed on record.
25. In our view, the oral evidence of PW 2 on the question of sexual assault on victim is hearsay and not corroborative in its true sense. This supporting version has an impact on the veracity of statement of the victim. The medical report at Exhibit 51 shows that the victim Ku. S has not attained menorche. There are no injuries on the body, pubic hair not developed, labio majora, labia minora, clitoris and vagina are shown to be WNL (Within Normal Limit). No bleeding was found. Except hymen tear at 5 'O Clock position, there is nothing incriminating in the medical opinion. The opinion of possibility of sexual assault is tentative and no final opinion is placed on record to constitute a corroborative piece of evidence. There is delay of twenty days in lodging FIR.
Conviction in Special (Ch.) Case No.77 of 2015 - 'Subsequent Case' :
26. The incident in the subsequent case is of 1982015 at about 11.00 hours and the place is at Government Adivasi Ashram School, Pandhurna. The victim is Ku. R, aged about 9 years. The charge in respect of an offence under Section 376(2)(i) of IPC against the same accused Raju (accused No.1) is as under :
“Firstly, That, on 19.08.2015 at about 11.00 hrs. at Mouza Pandhurna specifically in Government Adivasi Ashram School, Pandhurna, you accused no.1 committed rape on Ku. Rani Zannaklal Parteki, aged about 9 years and thereby committed an offence punishable under section 376(2)(i) of Indian Penal Code, and within the cognizance of this Special Court.”
In relation to this incident, the accused No.2 Madan Lahanu Khadse, the Head Master of the School, and the accused No.3 Vaishali Dayalu Dighore, the Hostel Superintendent, were charged as under :
“Fourthly, That, on the aforesaid date, time and place you accused nos.2 and 3 knowing that on 19.08.2015 at about 11.00 hrs. at Mouza Pandhurna, specifically in Government Adivasi Ashram School, an offence of rape was committed by accused no.1 intentionally, you both accused no.2 and 3 in furtherance of your common intention intentionally omitted to give information respecting the commission of the offence which you both were legally bound to give and thereby committed an offence punishable under section 202 read with section 34 of Indian Penal Code, and within the cognizance of this Special Court.”
“Fifthly, That, on the aforesaid date, time and place, your accused no.2 being Principal of incharge of Government Adivasi Ashram School, Pandhurna, you accused no.3 being Superintendent in said Institute, in furtherance of your common intention fails to report the commission of an offence under subsection (1)(b) of Section 19 in respect of a subordinate under their control and thereby committed an offence punishable under section 21(1)(2) of the Protection of Children from Sexual Offences Act, 2012, and within the cognizance of this Special Court.”
The victim Ku. R (PW 7) states in Para 2 of her examination-in-chief as under :
“2. Shilpa told to me that Rajudada was calling to you. So, she was saying to me to come towards Rajudada. He was calling you. So, I and Shilpa had gone to Rajudada. At that time, he was standing at the rate of a building. Rajudada had given two rupees to me and four rupees to Shilpadidi. Thereafter Rajudada told me to come to see one room. Thereafter Rajudada took me in one room. At there he had removed my nicker and his nicker also. Thereafter, he had inserted his male genital into my vagina. At that time, he was saying to me not to make noise. By saying so, he was scolding to me. Thereafter, he pressed my mouth. Thereafter, my brother Rupesh came in the said room. Thereafter Rajudada went away from there. At that time, it was 2 O' clock in the noon. My brother wore clothes to me and took me outside. Thereafter I had gone to narrate the said incident to Dighore Madam. I had stated it to Dighore Madam. Thereupon, Dighore madam told to me not state to me I will assault you by stick. Now, witness has shown two gents through V.C., in it, there is Rajudada and Khadse Sir (accused nos.1 and 2 in this case). The said act did by Rajudada with me. ...”
The entire cross-examination on behalf of the accused No.1 is contained in Para 4, which is reproduced below :
“4. When Rajudada took me in a room I shouted. It is not true to say that Rajudada did not take me in a room and he had not inserted his genital into my vagina. At relevant time there was pain to my vagina. But no blood oozed out of it. Understanding is given to me about how to state, accordingly I have stated. It is not true to say that I am stating falsely.”
27. PW 8 Ku. S is the victim in the previous case, PW 11 Rupesh is the elder brother of the victim Ku. R and was studying in 6th Standard in the same School at the relevant time, and PW 18 Aniket is also the student in the same School and at the relevant time he was in 6th Standard. According to the learned Judge of the Sessions Court, PW 11 Rupesh, the brother of the victim Ku. R, was the eyewitness to an incident. At the instance of accused Raju, PW 8 sent the victim Ku. R to the accused, and PW 18 Aniket, the student in the same School, has deposed about the accused Raju being in the habit of sexually exploiting the minors. On the basis of the evidence of these witnesses, the Sessions Court records the findings in Para 53 of the judgment as under :
“53. Thus, from the overall evidence coming through PW.7, PW.8, Pw.11 and PW.18 the facts can be gathered that it was after 2 to 4 days of 15th August 2015, in the afternoon, when the accused no.1 called PW.7 and took her inside, he removed his clothes and her clothes and thrust his penis into the private organ of the prosecutrix. Meanwhile, PW.11 on the information of PW.18 went inside the new building and saw the accused no.1 sleeping on the person of PW.7 and both were naked. The accused no.1 ran away with his clothes and PW.11 clothed the prosecutrix and brought her back.”
28. The oral evidence of PW 9 Dr. Manisha, who examined the victim Ku. R on 2-9-2015 at General Hospital, Wardha, and PW 17 Dr. Kalpana, the Private Medical Practitioner, who also examined the victim Ku. R, is recorded in Para 63 of the Judgment as under :
“63. From medical evidence, it has been established the prosecutrix had hymen injury which cannot be caused by any other reason that the sexual assault and on 3182015 she had abdominal pain and burning in micturation due to sexual assault.”
29. In the previous case, the conviction is based upon the sole testimony of victim Ku. S, whereas in the subsequent case, it is based upon the oral evidence of PW 7 Ku. R; PW 8 Ku. S, the victim in the previous case; PW 11 Rupesh, the real brother of the victim Ku. R, as an eyewitness; and PW 18 Aniket, the student in the same School. All these witnesses are minors and their evidence was recorded incamera.
30. In the cases of rape on the minor child of aged 9 – 10 years, the question of finding out the motive of the accused normally does not arise, as the barbarous act is done to satisfy the lust of the pervert mind. The minor victim or her close relatives, like parents, can hardly be attributed with any motive to falsely implicate unknown person in the crime. The problem has to be looked into with great sensitivity, based upon the understanding that the offence alleged is committed in the isolated place, which can remotely be accessed to by any one. In such case, there can hardly be any reason to doubt the incident of rape described or narrated by the minor victim falling prey to the lust with all disabilities on her forefront. The conviction can, therefore, be based upon the sole version of the victim, in respect of which we do not entertain any doubt in our mind. The rider, however, is that it must inspire confidence of the Court and a finding in respect of it has to be recorded. While recording the finding of conviction, the Court cannot be oblivious of the principle that there exists no reasonable ground for the conclusion consistent with the innocence of the accused and that every possible hypothesis, except the one, i.e. the guilt, is proved beyond reasonable doubt, is excluded.
31. While appreciating the oral evidence in the subsequent case, the Sessions Court records the finding in Para 15 of the Judgment that in the cross-examination of Advocate for accused no.1, there is no denial to the facts related to the prosecutrix narrated by PW 8. In respect of the oral evidence of PWs 11 and 18, the Court records the finding in Para 18 that nothing could be elicited out except denials to the suggestions put. In Para 184 of the Judgment, the Court records the finding as under :
“184. Though learned Counsels for accused No.1 is appointed through Legal Aid and did not make elaborate submissions, the overall submissions made by accused in person and by his advocate Shri B.D. Lambat is sufficient on facts to bring on record mitigating circumstances and on legal aspects, this Court will be taking every care to consider entire law on the subject for arriving to the decision of appropriate sentence.”
32. In Paras 196, 197 and 198 of the Judgment, the findings are recorded as under :
“196. Amicus Curiae advocate P.B. Taori took the Court to the need of social cry and submitted that undisputedly the crime is heinous and needs to be dealt with sternly. However, he also extended his submissions to the evidence adduced by prosecution, investigation carried out and how the incompetence of defence lawyer affected the trial.”
“197. The force is towards the appointment of legal aid lawyer in defence of accused no.1, who represented him in Special (Ch.) Case No.76/2015 also. The line of his argument is that due to the fault of defence lawyer, accused should not be penalised.”
“198. He also pointed out the discrepancies in dates as displayed from the evidence of child witness. He clarified that inspite of availability of evidence in defence of the accused, prosecution concealed it and placed the only material leading to the guilt of the accused. He urged Court to go through the case diary of investigation. He relied upon following judgments in support of his arguments.”
33. In Paras 204, 205 and 206 of the Judgment, the findings are recorded as under :
“204. It would also be worth to mention here that in this case 13 witnesses were already examined by my learned predecessor. Considering the seriousness of charges against accused no.1 and even before the final arguments were heard Amicus Curiae, adv. P.B. Taori, was asked whether he would represent the accused to which he refused. Inspite of that the Court looking at the gravity of offence, appointed him as Amicus Curiae. But after the case was fixed for final arguments, learned APP called PW.18 under Section 311 of Cr.P.C. and again the trial was continued. Advocate Taori was diligently making enquiry of the case till it reached up to his formal appointment as Amicus Curiae. Therefore, now no one can discuss the flaws of legal aid appointed defence Counsel.”
“205. It is also worth to express that there are few more cases of child rape pending before this Court in which Court is in a view to engage an experienced and competent lawyer, who can be only from leading professionals. However, the situation is so bad that after appearing and examining one or two witnesses, even appointed legal aid Counsels are withdrawing their vakalatnamas or requesting the Court to discharge them. Had it been a case of murder or even rape of major woman, the advocates fraternity would not have worked in such a fashion. Because the cases are in respect of rape of tender aged girls, the lawyers also do not want to work with such files. But the Court is equally sensitive in striking balance to get the accused properly represented.”
“206. Wardha is a small city. The Court has to search for legal aid lawyers from the available advocates from Bar Council only. Under such situation at district places such episodes are not new.”
34. After inviting our attention to the aforesaid findings, the learned counsel for the appellant-accused brought to our notice the averments made in Paras 21 to 23 of the Confirmation Case, wherein it is stated that the accused was defended by Advocate B.D. Lambat in both the trials. The counsel was also an Agricultural Officer, and after retiring from service, joined the legal profession. He was appointed through the Legal Aid Committee without having standing experience to conduct the cases. He was not possessing the expertise to conduct the cases before the Sessions Court. The counsel has failed to bring on record the inconsistencies, contradictions and omissions with reference to previous statements of the witnesses and the questions which should have been asked were not put and the questions which could not have been asked in the cross-examination were put to the witnesses. The counsel was also not conversant with the procedure. The legal aid provided to the accused was in defeat of the provisions of Article 39A read with Sections 12 and 13 of the Legal Services Authority Act, 1987. Article 22(1) of the Constitution of India and Sections 303 and 304 of the Code of Criminal Procedure, which require the State to provide an effective legal aid to the accused at the State expense are also pressed into service. This has violated the guarantee contained in Article 21 of the Constitution of India.
35. It is also pointed out that the learned Judge of the Sessions Court, after examining all the prosecution witnesses and giving finding of guilt of the accused in the previous case, felt that the interest of the accused was not protected and, therefore, appointed Advocate P.B. Taori, an eminent criminal lawyer, as an Amicus Curiae in the matter and requested him to defend the accused. Advocate P.B. Taori refused the same, as, at that time, the prosecution had examined all the witnesses and there was no major role left to be played by him to protect the interest of the accused-appellant. It is urged that the Legal Aid Committee has failed to protect the interest of the accused, and in the absence of fair and just trial, the conviction recorded in both the cases need to be set aside.
36. The purpose of cross-examination of a witness has been explained by the Constitution Bench of the Apex Court in the case of Kartar Singh v. State of Punjab, reported in (1994) 3 SCC 569. Para 278 of the said decision being relevant, is reproduced below:
“278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.”
37. In the subsequent decision of the Apex Court in the case of Jayendra Vishnu Thakur v. State of Maharashtra, reported in (2009) 7 SCC 104, it is reiterated in Para 24 as under :
“24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and reexamination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence visavis opinion.”
38. In the decision of Zahira Habibullah Sheikh (5) v. State of Gujarat, reported in (2006) 3 SCC 374, it is held in Paras 35, 36 and 37, the relevant portion of which is reproduced below :
“35. ... If a criminal course is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.”
“36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. Whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.”
“37. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.”
39. In the decision of the Apex Court in the case of Mohd. Hussain alias Zulfikar Ali v. State (Government of NCT of Delhi), reported in (2012) 2 SCC 584, the decision of the Allahabad High Court in the case of Ram Awadh v. State of U.P., reported in 1990 Cri LJ 4093 (All), was quoted with approval. Para 14 in Ram Awadh's case, quoted with approval, is reproduced below :
“14. The requirement of providing counsel to an accused at the State expense is not an empty formality which may be not by merely appointing a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person and not by a novice or one who has no professional expertise. A duty is cast upon the judgments before whom such indigent accused are facing trial for serious offence and who are not able to engage a counsel, to appoint competent persons for their defence. It is needless to emphasis that a Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion. A defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence. The absence of proper cross-examination may at times result in miscarriage of justice and the Court has to guard against such an eventuality.”
It is held in Para 23 of Mohd. Hussain alias Zulfikar Ali's case as under :
“23. The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result, the accused charged with a serious offence must not be stripped of his valuable right of a fair and impartial trial. To do that, would be negation of concept of due process of law, regardless of the merits of the appeal. The Criminal Procedure Code provides that in all criminal prosecutions, the accused has a right to have the assistant of a counsel and the Criminal Procedure Code also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the court, having these cases in charge, to see that he is denied no necessary incident of a fair trial.”
It is held in Para 26 of the said decision that “The Criminal Procedure Code ensures that an accused gets a fair trial. It is essential that the accused is given a reasonable opportunity to defend himself in the trial. He is also permitted to confront the witnesses and other evidence that the prosecution is relying upon. He is also allowed the assistance of a lawyer of his choice, and if he is unable to afford one, he is given a lawyer for his defence. The right to be defended by a learned counsel is a principal part of the right to fair trial. If these minimum safeguards are not provided to an accused; that itself is “prejudice” to an accused.”
40. In the aforesaid decision of the Apex Court, two different opinions were expressed as to whether there should be a de novo trial in a situation where the accused is denied of a fair trial and an effective opportunity to defend himself. The matter was referred to a Larger Bench, which considered the issue in its decision in the case of Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of Delhi), reported in (2012) 9 SCC 408. It is held in Para 41 of the said decision as under :
“41. The appellant court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellant court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal course must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.”
41. Keeping in view the aforestated law laid down by the Apex Court, we have gone through the cross-examination conducted by the learned counsel appointed from the Legal Aid to defend the accused in both the matters. We have also gone through the findings recorded in both the matters by the Special Court. We find that no efforts are made to bring on record the inconsistencies, contradictions and omissions in the cross-examination of the witnesses. Certain questions which could not have been asked in the cross-examination were put and the questions which should have been asked were ignored. The lawyer appointed to represent the accused is found to be totally inexperienced in conducting the Sessions Trial. The truthfulness of the statements made by the witnesses could not be tested; as a result, the opportunity to cross-examine the witnesses became illusory. The accused has lost completely his right to defend, as the counsel appointed from legal aid has failed to protect his interest. As a result, the Sessions Court was also required to take assistance of another counsel who was helpless in view of the evidence brought on record.
42. When a person is accused of the offences of a serious nature for which a penalty of death sentence could also be imposed, the Sessions Court was required to be more sensitive to the right of defence, which means a right to get effectively defended through a competent and experienced lawyer, who can safeguard the interest of the accused in a best possible manner, as permissible in law. The requirement of providing a lawyer to the accused at the State expense is not an empty formality. While appointing a lawyer through legal aid, the attention is required to be made to the provisions of the Legal Services Authority Act, 1987. The anxiety of the Court should be to see that the constitutional right to effectively defend is protected and it is not made illusory. We find this case to be exceptional where there is complete failure of justice resulting in denial of free and fair, reasonable and just trial, which is the constitutional guarantee contained in Articles 21, 22(1) of the Constitution of India read with Section 304(1) of Cr.P.C. In terms of the decisions of the Apex Court in the case of Mohd. Hussain alias Julfikar Ali, cited supra, in our view, the conviction of the accused Raju recorded by the Special Court needs to be set aside and the matter is required to be remanded back to the Special Court to conduct a de novo trial from the stage of framing of the charge itself, as there has to be a material, sufficient to frame a charge, to be looked into by the Court and the counsel.
43. In case of repeated offence of rape either on the same woman or different woman at different times, a separate charge and trial for each such offence would be the rule under Section 218 of the Code of Criminal Procedure (Cr.P.C.). If a person is convicted for more offences of rape than one, then for each of such offence he would be liable for punishment for a term not less than ten years, which may be extendable to imprisonment for life means for the remainder of the natural life of the accused and fine. If for previous conviction the sentence imposed is for such a life imprisonment, any sentence upon subsequent conviction whether for a term or for life imprisonment would naturally cover sentence of life imprisonment imposed in previous conviction. If in subsequent conviction the sentence is imposed for such life imprisonment, obviously it would cover the sentence previously imposed, if any, for a term. If the punishment in previous and subsequent conviction is for a term, the Court invoking its jurisdiction under Section 427 of Cr.P.C. can direct the sentence to run concurrently or consecutively, but the sentence would not be for an imprisonment for life.
44. Section 219 of Cr.P.C. dealing with three offences of same kind within a year may be charged together, is held to be an enabling provision and operates as an exception to Section 218 of Cr.P.C., requiring separate charge for distinct offences to be tried separately. When a person is accused of more offences than one of the same kind committed within a space of twelve months from the first to the last of such offences, whether in respect of the same person or not, Section 219(1) of Cr.P.C. states that he may be charged with and tried at one trial for, any number of them not exceeding three. Subsection (2) therein clarifies that the offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code or of any special or local law. In such a case, the Court may invoke the power under Section 31(1) of Cr.P.C. if a person is convicted for all such offences, to direct running of sentences imposed as concurrently or consecutively. Significantly, the trial being one, there would be no question of 'previous' or 'subsequent' conviction, even if there is conviction recorded and separate sentences are imposed for each such charge or the offence.
45. In both the cases, the accused Raju is convicted for the offence punishable under Section 376(2)(i) of IPC for which maximum punishment prescribed is of the imprisonment for life which means for the remainder of his natural life with fine and not of the death. It is only if Section 376E of IPC is attracted that the punishment of death sentence can be invoked. In the light of the such position, we keep the question of framing the charges against the accused persons and being tried them at one trial, as contemplated by subsection (1) of Section 219 of Cr.P.C. open to be decided by the Special Court, if any such application is made by the accused persons. We find that the lawyer engaged to defend the accused has also failed to apply his mind and to make an application for that purpose. We also refrain from expressing any opinion as to whether in such a situation the provision of Section 376E of IPC would be attracted or not. This question can also be decided by the Special Court.
46. The conviction of other accused persons, viz. Madan Lahanu Khadse, the Head Master; and Ku. Vaishali Dayalu Dighore, the Hostel Superintendent, is connected with the conviction of accused Raju and hence their conviction also cannot be sustained in the Confirmation Case. We set aside the same.
47. In the result, we partly allow all the three appeals and pass an order as under:
(1) The judgments and orders dated 5102017 delivered in Special (Ch.) Case No.76 of 2015, and dated 1112018 delivered in Special (Ch.) Case No.77 of 2015 by the Special Judge for POCSO, Wardha, are hereby quashed and set aside.
(2) The matter is remitted back to the Special Court for conducting a de novo trial in respect of both the cases, viz. Special (Ch.) Cases No.76 and 77 of 2015 from the stage of framing of the charge.
(3) The Special Court to make an endeavour to appoint a competent and experienced lawyer to defend the accused persons, keeping in view the relevant provisions of the Legal Services Authority Act, 1987, and thereafter proceed to frame the charge and conduct the trial and complete it within a period of six months from the date of framing of the charge.
(4) R & P be sent back to the Sessions Court immediately.