Manish vs State Of Maharashtra

Rohit B. Deo, J

The appellant â€" who shall be referred to as the accused hereinafter â€" is assailing the judgment dated 26.9.2017 rendered by the Additional

Sessions Judge â€" 1, Nagpur in Special Child Protection Case 128 of 2013 whereby the accused is convicted for the offence punishable under section

6, read with section 5(n) of the Protection of Children from Sexual Offences Act (“POCSO Actâ€) and is sentenced to suffer rigorous

imprisonment for ten years and to payment of fine of Rs. 5,000/Â​ and in default to suffer further rigorous imprisonment for one year.

The victim, then aged 13 years lodged report at Police Station Mauda on 10.8.2013 (Exh. 25) pursuant to which offences punishable under section 6

of the POCSO Act and section 376(2) (f)(i) of the Indian Penal Code (“IPCâ€​) were registered against the accused vide crime 129 of 2013.

The gist of the report, which is lodged by the victim who was accompanied by her mother Smt. Pushpa Â​ (PW 2) is thus:

The victim was studying in the 9th standard at Shrinath Vidyalaya, Mahalgaon, her father was suffering from epilepsy and expired 5 years ago. Since

then, the victim her mother, sister â€" Priya (PW 7), brother Prashant and the cousin brother of her deceased father (accused) were residing together

in the house of Chudaman Wasnik, as tenant. 2 to 3 months prior to the lodging of report, the accused attempted to insert his penis in the anus of the

child victim on two to three occasions. The victim disclosed the incidents to her mother who asked the accused to leave the house and since then the

accused is residing separately. The victim returned from school at 6.30 p.m. on 7.8.2013 and was alone in the house. The victim was changing her

clothes. The accused entered the house, went to the bathroom, undressed and rushed towards child victim. The accused closed the door, removed the

salwar of the child victim which tore and since the accused was finding it difficult to untie the nada (cotton thread) of the paijama, he cut it with sickle.

The accused forced the victim to lie, face down, pressed her breasts and inserted his penis in her anus. The accused got up from the person of the

victim and tried to force her to come to his room by dragging her. The child victim gave a jerk to the hand of the accused and rushed to her

neighbour’s house in naked condition. The neighbor Smt. Sushma Deshbhratar  (PW 5) gave her clothes to wear. The victim disclosed the

incident to the neighbor who in turn called one Wasnikbai and then narrated the incident to the mother of the child victim telephonically. The mother of

the child victim came home, she called her brother and brotherÂinÂlaw telephonically. On 8.8.2013, the maternal uncle of the child victim and elder

paternal uncle came, the matter was discussed and it was decided to lodge report.

The investigation proceeded on the usual lines. The spot panchanama was recorded in the presence of witness. The victim was medically

examined. The accused was arrested on 9.30 p.m. on 10.8.2013 and was medically examined. The blood and other samples of the victim and the

accused were collected and sent to chemical analyzer and so were the clothes of the victim and the accused which were seized during the

investigation. The statements of witnesses were recorded, the completion of the investigation led to submission of the chargesheet in the Special

Court.

The learned Sessions Judge framed charge Exh. 14 under section 376(2)(f) of the IPC and section 6, read with section 5(n) of the POCSO Act.

The accused abjured guilt and claimed to be tried in accordance with law.

The accused did not step into the witness box nor did the accused examine any witness in defence. In response to question 91 in the statement

recorded under section 313 of the Code of Criminal Procedure (“Codeâ€), the accused states that since maternal and paternal uncles of the child

victim did not like accused residing with mother of the child victim, they conspired to falsely implicate the accused in the crime. However, in the

cross examination of the child victim  (PW 1) what is suggested is that the accused objected to the child victim having an affair with one boy and

disclosed the affairs to the mother of the child victim. Similar suggestion is also given to the mother of the child victim. The defence of false

implication, as is discernible from the cross examination, is different from the defence reflected in the statement recorded under section 313 of the

Code.

The learned counsel for the accused Shri M.S. Wakil has not seriously assailed the finding of the learned Sessions Judge that the victim was child

within the meaning of section 2(1)(d) of the POCSO Act. The victim has deposed that her date of birth is 29.12.2000. In the crossÂexamination, there

is no challenge to the deposition that the date of birth of the victim is 29.12.2000. The mother of the victim PW 2 Â Pushpa also deposed that the child

victim was born on 29.12.2000, which evidence has again gone unchallenged. The incriminating material was put to the accused in examination under

section 313 of the Code and the answer was “I do not knowâ€. PW 11 â€" Dr. Vinod Rathod, who alongwith Dr. Sachin Giri, examined the child

victim for age determination, has deposed that she was 12 years old on 10.8.2013. PW 11 Â Dr. Rathod has proved the age determination certificate

(Exh.27). The age is determined after general physical examination, dental examination, examination of XÂray of the wrist and the elbow joint and

genital examination. I have considered the deposition of PW 11Â Dr. Vinod Rathod which is consistent with the age determination certificate, and the

crossÂexamination. The evidence of PW 11 â€" Dr. Rathod on age determination is not shaken in the crossÂexamination. The prosecution also relied

on the school record which is proved by PW 9 â€" Smt. Kirti Nasre â€" the Head Mistress of Shrinath Vidyalaya. However, the entries in the school

record are on the basis of the school leaving certificate issued by the school in which the child victim was first admitted. The primary evidence which

is source of information on the basis of which the entry is taken in the record of the school in which the victim was first admitted, is not proved. The

school record which is proved by PW 9 â€" Kirti Nasre is of no evidentiary value. However, in view of the unchallenged evidence of PW 1 â€" child

victim and PW 2 â€" Smt. Pushpa and the medical evidence on age determination, the finding recorded by the learned Sessions Judge that the child

victim was aged less than 16 years as on the date of the incident, is unexceptionable.

In the context of the charges under section 6, read with 5(n) of the POCSO Act, the learned Sessions Judge has found that the relationship

between the accused and the child victim is proved. The evidence that the accused is the cousin brother of the child victim is not challenged. The

finding recorded by the learned Sessions Judge that it is proved that the accused was related to the child victim through blood is consistent with the

evidence on record.

The deposition of the child victim â€" PW 1 is broadly consistent with the report, on material aspects. She has deposed that the accused was

residing with her family and in view of his sexual misconduct, he was driven out of the house and he started residing adjacent to the house of the child

victim. As regards the incident, the child victim states that she was alone in the house after returning from school and at 6.30 p.m. or thereabout on

7.8.2013 when she was changing her clothes, the accused came and knocked the door of the room. The victim told the accused that she was changing

clothes. The accused went to the bathroom, undressed and since the latch of the door of the room was open, he entered the room naked, closed the

door, tore the salwar of the child victim, tried to untie the paijama nada and since he was finding it difficult to do so, cut the nada. The child victim then

deposes that the accused committed sexual intercourse, pressed her breasts due to which she sustained abrasion and then inserted his penis in her

anus. The accused dragged the child victim who rescued herself and came out of the house in naked condition and went to Smt. Sushma Deshbhratar

(PW 5) to whom the child victim narrated the incident and then the incident was informed to her mother telephonically. The child victim then states

that her maternal uncle and elder paternal uncle were called on 8.8.2013 and made aware of the incident. The family went to the Police Station on 9th

and lodged the report.

Shri M.S. Wakil, the learned counsel for the accused would submit that the evidence of the child victim is not confidence inspiring. The child victim

admits that the earlier instances were not reported to the police, that the accused knocked the door of the room, is an omission. The evidence that the

child victim told the accused that she was changing clothes and that after the incident, her sister Priya came, is an omission. In my considered opinion,

the omissions do not touch the core of the prosecution version and are not significant enough to partake the character of contradictions. Considering

the relationship, the fact that the earlier instances were not reported to the police is not a reflection on the veracity of the version of PW 1. Shri M.S.

Wakil would then submit that the fact that the police did not seize the nada of the paijama is significant. I do not agree. The victim identified the

clothes in the Court. The learned Sessions Judge found that the paijama nada was missing and that the salwar was torn. Shri M.S. Wakil, the learned

counsel would then submit that the report is delayed which creates doubt as regards the prosecution version. The incident occurred on 7.8.2013 in the

evening. It has come in evidence that the maternal uncle and elder paternal uncle were summoned on 8.8.2013, deliberations ensued, which is but

natural, particularly considering that the accused is a close relative, since the social stigma and ostracization is a real possibility in the conservative

Indian society in such situations. The report was lodged on 9.8.2013 which evidence is not challenged. The printed First Information Report does state

that the information was received on 10.8.2013 at 2.15 p.m. In Exh. 25, the date of receiving the report which was initially recorded as 9.8.2013 is

scored of and recorded as 10.8.2013. In any event, I am satisfied that the delay, if any, is properly explained and the veracity of the prosecution case

is not affected thereby. Shri M.S. Wakil, the learned counsel then argues that since the evidence that the accused also inserted the penis in the vagina

is an improvement, the credibility of the evidence of the child victim is destroyed. It is true that the child victim did not disclose in her statement to the

police that the accused also inserted his penis in the vagina. To this extent, the evidence will have to be kept out of consideration. However, the

evidence of the child victim that she was sexually ravished and that the accused inserted his penis in her anus is truthful, natural and implicitly reliable.

It is well settled that the victim of sexual assault is not an accomplice. Conviction can rest on her sole testimony and to seek corroboration would

add insult to the injury. If the evidence of the victim is not found of sterling quality, or if the Court has a disturbing or niggling doubt, short of

corroboration, the other evidence including medical evidence may be looked into to lend assurance to the prosecution case. I find the evidence of the

child victim confidence inspiring and therefore it would not be necessary to seek assurance from the other evidence on record. However, though, not

required, as a fact, there is ample evidence on record which lends assurance to the evidence of the child victim.

PW 4 â€" Dr. Swati Chavan, who is a pathologist conducted the preliminary examination of the child victim on 10.8.2013. She noticed two

abrasions on the chest and opined that the injury was fresh and was caused by sharp object like nails. PW 6 â€" Dr. Manik Gedam to whom the child

victim was referred by the gynecologist is a surgeon. PW 6Â Dr. Gedam has deposed that the child victim and her mother gave the history of

insertion of penis in the vagina. The child victim was complaining of pain in the perineal region since the time of the incident. PW 6 noticed injuries on

the right breast and the left lower limb of the child victim. One contusion abrasion with scab formation was noticed below the left knee. PW 6 â€" Dr.

Gedam deposed that the formation of scab indicates that the injury was sustained prior 48 hours. PW 6 Dr. Gedam states that he did not notice any

external injury at the perineal region. However, on rectal digital examination, he found that the child victim was experiencing pain. Spasms of external

anal sphincter was noticed on proctoscopic examination, contusion 0.5 x 0.5 cm on anal mucosa just above the mucocutanious junction was noticed at

5 O’ clock position. Dr. Gedam deposed that the injuries are suggestive of forceful insertion of penis in the anus and that the injuries on the

breasts are suggestive of resistance. It is elicited in the crossÂexamination that PW 1 â€" Dr. Gedam did not mention in the report that the injuries are

suggestive of forceful insertion of penis and the injuries on the breasts are suggestive of resistance. Shri M.S. Wakil, the learned counsel for the

accused would submit that the said omission is significant. In my opinion, the fact that the injuries are suggestive of forcible or forceful insertion of

penis in the anus is not specifically mentioned in the report would not detract from the evidence of the doctor. The report specifically mentions the

nature and extent of injuries and there is no reason not to accept the opinion of the doctor that the probable causes may be the resistance offered and

the forceful insertion of the penis in the anus. Shri M.S. Wakil would then emphasize on the inconsistency in the opinion of PW 4 â€" Dr. Swati

Chavan and PW 6 â€" Dr. Manik Gedam on the nature of injuries noticed on the breast and the leg of the child victim. It is true that PW 4 â€" Dr.

Swati states that the injuries were fresh which is inconsistent with the opinion of PW 6 â€" Dr. Manik Gedam. The learned Sessions Judge has for

reasons recorded given more weightage to the opinion of Dr. Manik Gedam and I see no reason to differ. PW 8 â€" Dr. Vilas Kurude is a

gynecologist who examined the child victim on 10.8.2013. PW 8 deposed that the child victim was complaining of pain at the perineal region and the

history given was of insertion of penis in the anus by the accused. PW 8 Â Dr. Kurude states that the injuries were caused within 4 to 8 hours.

However, in view of the deposition that the injuries were scab formation, the evidence of the surgeon PW 6 â€" Dr. Gedam that the injuries were 48

hours old appears to be consistent with the authoritative texts on medical jurisprudence. PW 8 â€" Dr. Kurude has deposed that since the victim was

examined after 48 hours during which period she passed stool more than once, there is less possibility of finding any semen or bloodstain in the sample

sent for chemical analysis. PW 8 has deposed that abrasions are possible due to struggle, and that he referred the child victim to the surgeon for

examination.

The medical evidence is consistent with the version of the child victim that the accused inserted his penis in her anus. Shri Wakil would then argue

that PW 5 Â Smt. Sushma did not support the prosecution. Witnesses turning hostile is a common occurrence. However, since the evidence of the

child victim is implicitly reliable, the fact that PW 5 â€" Sushma did not support the prosecution is of scant significance. PW 2 â€" Pushpa is the

mother of the victim who has deposed that the child victim narrated the entire incident when she returned home after receiving telephonic call from

PW 5 â€" Sushma. It is suggested that she and the accused were residing as husband and wife, which suggestion is denied. PW 2 admits that while

residing together, the accused used to contribute to the family expenses. PW 2 denied the suggestion that her children and the landlord were disliking

the relationship between PW 2 and the accused. PW 2 denied the suggestion that her relationship with the accused turned sour since the accused

disclosed having seen the child victim with one boy. PW 7 â€" Priya is examined to establish that the child victim disclosed that she was sexually

ravished by the accused. Nothing is brought on record in the crossÂexamination to discredit her testimony. PW 7 â€" Priya has denied the suggestion

that the child victim was having affair with one Subhash and that since the child victim and Priya apprehended that the accused would reveal the affair

to their mother, the accused is falsely implicated.

The evidence of PW 2 and PW 7 as regards the disclosure made by the child victim though hearsay is admissible in view of the provisions of

section 6 of the Indian Evidence Act which recognizes and embodies the rule of res gestae, which is explained by the Hon’ble Apex Court in

Gentela Vijayvardhan Rao v. State of Andhra Pradesh reported in AIR 1996 SC 2791 thus:

“15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The

essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transactionâ€

speaking, in exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under

Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is

necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous

with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was

sufficient enough for fabrication then the statement is not part of res gestae...............â€​

Section 6 is an exception to the rule of evidence that hearsay evidence is not admissible. The statement must relate to the fact in issue or relevant

thereto and must be substantially contemporaneous with the fact.. Such statement though not evidence of the truth of the matters stated are of

corroborative value.. In Sukhar ..vs.. State of Uttar Pradesh reported in (1999)9 SCC 507 the Hon’ble Apex Court observes that section 6 is an

exception to the general rule of inadmissibility of hearsay evidence provided such evidence is almost contemporaneous with the fact/s excluding the

possibility of fabrication. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue, as to the form part

of the same transaction, that it becomes relevant by itself.

The evidence of PW 2 â€" Pushpa and PW 7  Priya that the child victim narrated the incident to them is therefore admissible in view of the

provisions of section 6 of the Indian Evidence Act.

The overwhelming evidence against the accused apart, the statutory presumption under section 29 of the POCSO Act is required to be rebutted by

the accused in view of the prosecution having established the fundamental facts, which the accused failed to do. The defence is not probabilized even

on the touchstone of preponderance of probabilities. The defence is not consistent and different suggestions are given to the witnesses. The defence

which is reflected in the crossÂexamination is not spoken of in the 313 statement. It is true that the presumption under section 29 can be rebutted by

effective crossÂ​examination and bringing on record material which would render the prosecution case improbable or of doubtful veracity. However, in

my considered opinion, the accused failed to discharge the burden of rebutting the statutory presumption.

I am satisfied that the judgment of conviction is unexceptionable and warrants no interference.

The appeal is without substance, and is dismissed.