Nandkishor vs State Of Maharashtra And Others

Abhay S. Waghwase, J

In this appeal, there is challenge to the judgment and order of conviction dated 28.11.2024 rendered by learned Special Judge, Kaij in Spl. (POCSO) Case No. 31 of 2023 [Old Spl. (POCSO) Case No. 79/2020].

On being chargesheeted by Police Station Kaij, trial was conducted against present appellant on allegations that, on 12.10.2020, when victim , a minor, had been to answer call of nature in the field, there, appellant came, caught hold of victim, dragged her to the cotton crop and after gagging her, he committed sexual intercourse and also issued threats to kill. After returning home, she narrated the incident to her mother. As no elderly person was available in the house, next morning victim narrated the incident to her father and brother and then accompanied them to police station and filed complaint Exhibit 34, which was made the basis of registration of crime bearing no. 444 of 2020 for offence under Sections 376, 376(2)(n)(j) of IPC and Sections 4, 6, 8, 10 and 12 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

On completion of investigation, accused was chargesheeted and tried vide Spl. (POCSO) Case No. 31 of 2023 [Old Spl. (POCSO) Case No. 79/2020]. The oral and documentary evidence adduced by prosecution was analyzed, appreciated and by judgment and order dated 28.11.2024, accused was held guilty for offence under Section 4 of the POCSO Act and sentenced to suffer imprisonment for 14 years and to pay fine of Rs.55,000/- and in default to suffer two months' imprisonment.

Feeling aggrieved by the above judgment and order of conviction, convict has preferred instant appeal .

SUBMISSIONS

On behalf of the Appellant-Accused :

Learned senior counsel Mr. R. S. Deshmukh took this court through the length and breadth of the evidence of victim, her mother, medical expert as well as Investigating Officer. He also took this Court through the cross faced by each of them and would submit that there is false implication. According to him, it has come in the evidence of victim as well as her mother that there already existed toilet facility in the very house of victim and therefore, there was no question of victim going to answer call of nature in the field. He submitted that, even in spite of serious offence being allegedly committed, neither victim nor her mother immediately approached police and there is delay in reporting.

Further taking this Court through the evidence of PW4 medical expert, he pointed out that in spite of claiming to be dragged in the field, there are no bruises, scratches or injuries. That, on physical examination of genitals of victim, doctor has noticed old tear and therefore there was no recent occurrence attributable to accused. Thus, according to him, medical evidence falsifies case the of prosecutrix. He also submitted that, in the medical papers, there are certain interpolations and insertions to suit the case of prosecution.

He further took this court through the CA reports and would point out that none of the reports is positive so as to connect the accused. Consequently, it is his submission that there is no corroboration to the testimony of prosecutrix and moreover, there is no support from medical evidence.

At the end, learned senior counsel took this Court through the answers given by the accused while facing inquiry under Section 313 of Cr.P.C. and more particularly answer to question no. 59 and would point out that, parents of victim were illegally selling liquor in the grocery shop. Mother of accused along with other women folk of the village had opposed such activity and had agitated, and therefore complainant party suspected that accused and his mother are instrumental in said action and therefore there is false implication. He criticized the judgment and order of conviction on the ground that the above aspects are not properly appreciated and therefore, he prays to interfere by setting aside the impugned judgment.

On behalf of the State as well as the Victim :

Both, learned APP as well as learned counsel for the victim, while supporting the judgment and order of conviction, pointed out that prosecution has prove beyond reasonable doubt that victim on the date of occurrence was a minor. According to them, testimony of victim, as was inspiring confidence, was rightly relied and acted upon by the trial court. They further submitted that, even medical evidence clearly supports victim's version. Learned APP pointed out that minor variances in the medical evidence will not affect the prosecution case, more particularly when the oral evidence is trustworthy and inspiring confidence of the court. Learned APP further pointed out that, in view of such quality of evidence on record, learned trial court rightly applied Section 29 of POCSO Act and as such, they both justified the order of conviction and prayed to dismiss the appeal for want of merits. They sought reliance on the judgment of the Hon'ble Apex Court in the case of State of Punjab v. Gurmit Singh [1996 DGLS (SC) 111 : (1996) 2 SCC 384] as well as the judgment of Division Bench of this Court dated 03.10.2023 passed in Criminal Appeal No. 718 of 2016 [Sunil s/o Fattesing Sable v. The State of Maharashtra].

BRIEF ACCOUNT OF THE EVIDENCE BEFORE TRIAL COURT

Though as many as eight (08) witnesses are examined by prosecution, crucial evidence is that of victim (PW2), followed by that of her mother (PW5) and that of the medical expert (PW4). However, equally important in the evidence of PW6 who was the Principal of the institution where victim studied and therefore, at the threshold, it would be advisable to ascertain whether prosecution has succeeded in proving that victim was minor on the date of incident.

Prosecution has adduced evidence of PW6 at Exhibit 55 and this witness, who was working as a Principal in the institution where victim took admission, deposed about victim being admitted in the school on 15.06.2011, that too in the 1st standard. He placed on record attested copies of birth certificate, admission application form and admission register which were compared with the originals and the same were duly marked by court at Exhibit 58, 59 and 60 respectively. Witness deposed that as per school record, date of birth of victim is 02.10.2004.

While under cross, witness has answered that he was present in the school when the victim was admitted in the school and that, he was principal of 1st standard to 7th standard. He further answered that, after 7th victim went to different school. He admitted that the school where he was working as a Principal was a private school. Rest all suggestions are denied.

Thus, here is the oral as well as documentary evidence on the point of age of victim. It is pertinent to note that this witness was Principal of the school where the victim took admission in 1st standard which has relevance in age determination. This witness has placed on record not only the birth certificate, but also the admission application as well as original school register wherein date of birth of victim is reflected as 02.10.2004. Nothing adverse has been brought in his above discussed cross. Therefore, as regards to age of the victim is concerned, there is no hesitation to hold that prosecution has indeed proved victim to be minor on the date of incident i.e. 12.10.2020.

Having put the issue of age and minority to rest, it is to be further seen whether prosecution has also proved all charges. Again, the evidence of victim is crucial and the same is required to be put to scrutiny.

PW2 Victim, who is examined at Exhibit 33, has deposed that on 12.10.2020 around 3.00 p.m. she went in the field of Chatrabhuj Wanve to answer call of nature and accused came to the said spot and asked her to accompany him to the adjoining cotton crop. She claims that she asked him to leave but he caught hold of her hand and dragged her in the cotton crop. She claims to have raised alarm but as, according to her, nobody was available near the spot, no one came to her rescue. She deposed that after gagging her and scuffling with her, he made her fall down and by issuing threats to kill, she claims that, he committed sexual intercourse with her. She has narrated the sequence of events that took place chronologically and again stated that accused forcibly committed sexual intercourse with her and ran away, and so she returned home crying and narrated the incident to her mother. According to her, at that time, nobody was available in the house and therefore on the next morning, her brother and father were informed and thereafter police was approached for lodgment of complaint. She identified accused as well as her clothes.

Victim is extensively cross-examined including giving a suggestion that her brother was available in the field throughout the day, which she admitted. She denied that she was more than 18 years of age at the time of incident. She was asked the distance between her house and the spot of incident, and then questions about vicinity of the house and neighbourhood are put to her, including how long it would take to go to Kaij from village by auto rickshaw or motorcycle. She expressed ignorance about 10 to 15 complaints filed against her father for selling illicit liquor. In para 5 of the cross she confirmed acquaintance with accused as well as his family and also expressed ignorance that her family suspected that police effected raid on information provided by accused and his family members. She further expressed ignorance about mother of accused with female folks of village had opposed her father's act of selling illicit liquor. In para 7 of the cross, occurrence is virtually admitted as questions are put for how long she was dragged and whether she resisted and in which direction she was dragged and whether she slapped the accused, whether she raised alarm, resisted the accused. She answered that she did not suffer injury to her back. Omissions are brought in para 8 to the extent of accused sitting on her person, pressing her breasts, inability of the accused to remove her pant, trying to remove her undergarment and accused putting his legs between her legs. At the end, she answered that she has not narrated the details of rape while recording her statement by police as she was feeling shy and also admitted about not narrating it to the court.

PW5 mother, who is examined at Exhibit 51, deposed that around 3.30 p.m. her daughter came home crying and she told that accused caught her hand, dragged her in the cotton field, threatened her and after undressing her, he penetrated his male organ in her vagina. After hearing this story, this witness claims to be traumatized and further deposed that she feared that her daughter and family members would be shamed in the village and therefore she did not inform her husband. She further stated that, her husband was hot tempered and so also she did not inform him.

This witness is also subjected to extensive cross wherein, to almost to all suggestions, she has answered about her ignorance. She admitted that in their house, there is a living room, kitchen, bedroom and toilet but then volunteered that since six months to one year prior to the incident, there was no water supply to the toilet in the house and it was not in use.

From the above discussed evidence of PW2 victim and that of her mother PW5, it is clear that they both are consistent. Mother is lending support to the testimony of victim. Victim, in her testimony at Exhibit 33, has deposed about accused dragging her in cotton crop when she had been to answer call of nature and forcing himself on her. In her testimony she has given chronology of the events which have remained undisturbed in searching cross. Moreover, manner of her cross in para 7 shows that presence of accused as well as incident is got re-confirmed even in cross. Mother has also deposed what she heard from her daughter immediately on disclosure after returning home that, her daughter came home crying and told her about she being raped. She has also assigned reason for not reporting immediately that day and rather informing next day and then approaching police. Even otherwise, in such matters, delay, if any, is not of much significance.

Now, it is to be seen whether victim's evidence finds support from the medical evidence as prosecution has adduced evidence of PW4 doctor. This witness, who was acting as CMO on 13.10.2020, deposed about victim being referred and she narrating the history of rape and thereafter going home and immediately informing her mother. On physical examination, doctor claims to have come across hymen ruptured at 3 o'clock position and there to be old tear. She has also opined about sexual assault not to be ruled out.

While under cross, she admitted that final opinion is not on record and further admitted that only on the basis of CA report, it cannot be ruled out that victim was subjected to sexual assault. She also expressed the possibility of no sexual assault on the victim and that, in the medical papers, word "not" in P/V findings in column no.24 appears to be insertion, but she further denied that it was later on inserted on the say of victim and her family members. Witness answered that, findings of old healed tear is more than 24 hours old. She admitted that, going by the nature and position of the tear, it can be said to be a case of habitual to sex.

Learned senior counsel for accused would strenuously submit that medical evidence does not support prosecution's version. According to him, there were no injury marks in spite of claiming to be dragged and moreover, there was old hymenal tear not suggesting fresh tear or any other injury. According to him, even CA reports are negative ruling out offence of sexual assault.

Here, occurrence is of afternoon of 12.10.2020. Victim is examined on the next day i.e. on 13.10.2020 after 24 hours. Therefore, it is possible that there may not be fresh injuries. Even otherwise, law is fairly settled that, mere absence of injuries will not completely rule out occurrence of rape, more particularly when evidence of prosecutrix inspires confidence. Law to this extent has been dealt by the Hon'ble Apex Court in the case of The State of Himachal Pradesh v. Manga Singh [Criminal Appeal No(s). 1481 of 2018 decided on 28.11.2018] as well as State of Punjab v. Gurmit Singh and others (1996) 2 SCC 384. What offence of rape contemplates is mere penetration, and signs and injuries are not necessary.

Therefore, here, evidence of victim does find support from medical evidence and consequently, when it is proved that victim was below 18 years of age, rigors of POCSO Act i.e. Section 4, which provides punishment for sexual assault, indeed does get gravitated.

Rest of the witnesses are pancha, medical officer who examined accused and the Investigating Officer. On the strength of testimony of victim, her mother and medical expert, charge is indeed shown to be substantiated and proved.

Perused and studied the judgment. It is noticed that, all essential requirements of law are borne in mind while appreciating and analyzing the evidence. It being a well reasoned order, this Court does not find any reason to interfere or overturn the same. Hence, the following order :

ORDER

The appeal is dismissed.