Sayad Afroz vs State Of Maharashtra And Others

Abhay S. Waghwase, J

Convict for offence under Sections 376, 452, 323 of the Indian Penal Code (IPC), hereby assails Judgment and order dated 02-04-2019 passed by learned Special Judge, Nanded, in Special (POCSO) Case No.21 of 2016.

FACTS OF CASE IN NUTSHELL

Kinwat Police Station, District Nanded, chargesheeted accused on the premise that on 05-06-2016, victim, aged 16 years of age, was alone and studying in her house. At that time, accused, who happens to be a relative of landlord, entered the house and had sexual intercourse with victim. Victim's mother and brother fortunately reached their house and they found victim unconscious and in naked condition. After mother sprinkled water on her face and after she gained consciousness, she narrated acts of accused and thereafter, she accompanied her mother to the Police Station where Crime bearing No.107 of 2016 was registered. The same was investigated by PW8 Investigating Officer and after gathering sufficient evidence, accused was duly chargesheted and ultimately tried vide Special (POCSO) Case No.21 of 2016.

At trial, prosecution adduced evidence of in all ten witnesses and also adduced documentary evidence. Both oral and documentary evidence was duly appreciated by learned Special Judge and had reached to a finding that prosecution has failed to prove that victim was below 18 years of age and therefore, accused came to be acquitted from charge under the POCSO Act. But learned trial Judge accepted case of prosecution as regards offence under Sections 376, 452 and 323 of the IPC and sentenced him as stated in the operative part of the order.

It is the above Judgment and order of conviction, which is the subject matter of the appeal.

SUBMISSIONS

On behalf of appellant :

Learned counsel for the appellant submitted that, there is false implication. According to him, prosecution has not only failed to prove that victim was a minor, but also failed to prove that there was forcible rape. According to him, there is no corroboration to the testimony of the victim. That, medical evidence also did not suggest any forcible sexual act. That, necessary ingredients for attracting offence under Sections 452 and 323 of the IPC were not available. However, learned trial Court failed to consider and correctly appreciate the available evidence as well as defence of accused and even did not take into account cross-examination faced by the prosecution witnesses and straightaway accepted the case of prosecution without testing its credibility and veracity. He further submitted that accused has already undergone and suffered the sentence awarded by the learned trial Court.

On behalf of State and Victim :

Learned APP as well as learned counsel for the victim have both justified the order of conviction and pray to dismiss the appeal for want of merits.

ANALYSIS OF EVIDENCE

Initially at the commencement of trial, the learned trial Court framed charge for commission of offence under Sections 376, 452 and 323 of the IPC and under Section 3 punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

However, on appreciation of evidence, learned trial Court noted that there was no conclusive evidence or proof on the point of age of prosecutrix and therefore, holding that prosecution failed to prove that victim was below 18 years of age, case of prosecution for commission of offence under the POCSO Act, was rejected.

Resultantly, only conviction under penal sections like 376, 452, 323 remain for consideration in this appeal.

Though State has not challenged acquittal from charge under the POCSO Act, it become incumbent upon this Court also to verify whether prosecution had at all discharged its burden of proving victim to be a minor in the light of availability of charges under the provisions of POCSO Act.

On this count, there is evidence of victim and her mother as well as Head Master.

PW1 Victim is examined at exh.10. She has given her age as 16 years, but she has not given her exact date of birth.

PW7 mother of victim, in her evidence at exh.38, also gave age of her daughter as 16 years and she did not give date of birth.

PW5 Head Mistress of Sumatibai Hemsingh Naik Kanya Vidyalaya, Kinwat, where the victim studied in 10th Standard, gave date of birth of victim as 15-06-2000 as per school record and she placed on record admission register and further stated that victim had taken admission in their school on 15-06-2015. This witness has also placed on record exh.32, exh.33 and exh.34, which are extracts of admission register and admission form. This witness PW5 has admitted that, at the time of admission, date of birth certificate was not tendered.

Similarly, PW10 Head Master of Vithai Madhyamik Vidyalaya, Nanded, also merely placed on record admission form, admission register extract and school leaving certificate of prosecutrix at exhibits 57 to 59.

From the testimony of these prosecution witnesses, it is emerging that, prior to taking education in the school of witness PW5, prosecutrix was studying in Vithai Madhyamik Vidyalaya, Nanded i.e. in 9th Standard. Therefore, apparently, there is no school record showing admission being taken in 1st Standard, which is relevant for considering date of birth. In absence of any cogent and conclusive evidence on the point of age, victim's age is not proved. Hence, no fault can be found in the findings of the learned trial Court to that extent.

Now, it is to be further tested whether accused has indulged in forcible sexual intercourse as alleged by victim. On this count, evidence of victim as well as her mother is crucial.

Revisited the evidence of PW1 victim. She has deposed that on 05-06-2016, while she was alone in the house as her mother and brother had been to Kinwat, at around 10:30 a.m., accused came, caught her, gagged her by inserting stole in her mouth and thereafter, disrobed her and committed sexual intercourse with her.

Nothing adverse has been brought in the cross-examination of victim to disbelieve her such version.

Mother of victim, who is examined as PW7, has also stated that after she returned home, she found doors closed from inside and when she gave call to her daughter, this accused himself was seen coming out of house and when she went inside the house, she found victim unconscious and in naked condition, and therefore, she sprinkled water on victim's face. Thereafter, victim become conscious and narrated the incident to her and then, they both went to lodge report. After lodging of report, victim was referred for medical examination.

PW3 Dr.Sambhaji Madhavrao Kadam, Medical Officer is examined at exh.17 and he has stated that victim gave history of sexual assault at 11:00 a.m. on 05-06-2016 i.e. after accused forcibly entering her house, gagged her mouth, disrobed her and committed sexual intercourse with her. This witness has also narrated injuries noted by him, out of which, two are abrasions and two are contusions. On examination of genitals, Medical Officer noticed that there was redness to Labia Majora with swelling and tenderness, and redness to Labia Minora with swelling and tenderness, and vagina having redness, swelling and tenderness. He has categorically opined that injuries are due to forceful vaginal intercourse. This evidence has also not seriously challenged nor it is disturbed.

Taking into account above evidence of victim finding support from the medical evidence, commission of offence under Section 376 of the IPC indeed is made out by the prosecution. As there was forcible entry in the house of victim, even offence under Section 452 of the IPC gets gravitated. Likewise, Medical Officer has narrated nature of injuries on the person of victim during medical examination and therefore, necessary ingredients for attracting offence under Section 323 of the IPC are also available. Consequently, charges under Sections 376, 452 and 323 of the IPC stand squarely proved.

Perused the judgment under challenge. This Court has noticed that entire oral evidence has been correctly appreciated. Medical evidence is also correctly appreciated and therefore, learned trial Court committed no error in accepting prosecution case as proved but only for offence under Sections 376, 452 and 323 of the IPC. As such there is no infirmity or illegality in the impugned judgment so as to interfere. Consequently, the appeal deserves to be dismissed. Accordingly, following order is passed :

ORDER

(I) Criminal Appeal stands dismissed.

(II) Fees of the learned counsel appointed to represent respondent no.2 is to be paid through the High Court Legal Services Sub-Committee, Aurangabad, as per Rules.