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2019 DIGILAW 1509 (BOM)

Chandkha v. State of Maharashtra

2019-07-01

ROHIT B.DEO

body2019
JUDGMENT : Rohit B. Deo, J. 1. This appeal is directed against the judgment dated 11.2.2018 rendered by the Additional Sessions Judge, Hinganghat in Special (Child) Case 1 of 2017 whereby the appellant Chandkha Ibrahimkha Pathan is convicted for offence punishable under section 363 of the Indian Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for a period of three years and to payment of fine of Rs. 3,000/- and in default to suffer simple imprisonment for a period of three months and is convicted for the offence punishable under section 366-A of the IPC and is sentenced to suffer rigorous imprisonment for a period of five years and to payment of fine of Rs. 5,000/- and in default to suffer simple imprisonment for a period of six months and is further convicted for offence punishable under section 376(2)(i) of the IPC and is sentenced to suffer rigorous imprisonment for a period of ten years and to payment of fine of Rs. 20,000/- and in default to suffer simple imprisonment for a period of six months. 2. The operative part of the judgment impugned and the perusal of paragraphs 24 and 29 of the judgment reveal that the appellant is also held guilty for the offence punish under section 4 of the Protection of Children from Sexual Offences Act ("POCSO Act") although no separate sentence is imposed in view of the provisions of section 42 of the POCSO Act. 3. I have heard the learned counsel Ms. Sweety Bhatia for the appellant - who shall be referred to as the accused hereinafter - and the learned Additional Public Prosecutor Shri C.A. Lokhande and with their able assistance, the material on record and the reasons recorded by the learned Sessions Judge are scrutinized. 4. PW-1 Smt. Vandana Agare lodged report dated 5.11.2013 at the Samudrapur Police Station, the gist of which is thus: PW-1 Smt. Vandana is a widow whose daughter - victim (PW-2) who is aged 15 years is studying in the 9th standard at Muktabai Girls School, Samudrapur. The victim left home at 11 a.m. on 5.11.2013 without informing anybody. PW-1 tried to locate the victim but in vain. At 3 p.m. on 5.11.2013, PW-1 learnt that the victim was at the Samudrapur Police Station and PW-1 and her father in law Bhaurao came to the Police Station and made inquiries with the victim. The victim left home at 11 a.m. on 5.11.2013 without informing anybody. PW-1 tried to locate the victim but in vain. At 3 p.m. on 5.11.2013, PW-1 learnt that the victim was at the Samudrapur Police Station and PW-1 and her father in law Bhaurao came to the Police Station and made inquiries with the victim. The victim disclosed that the accused forced her to accompany him on Splender motorcycle bearing registration Number MH-32-U-1004 and took her to the jungle via Samudrapur - Girad road. The accused stopped the vehicle, took the victim in the jungle and subjected her to forcible sexual intercourse. The victim further disclosed that the accused threatened her with dire consequences should the victim inform anybody about the incident. 5. On the basis of the report lodged by PW-1 (Exh.59) and the printed First Information Report (Exh.60), offences punishable under section 363, 366-A, 376(2)(i) and 506 of the IPC and sections 3, 4, 5, 6, 11, 12 of the POCSO Act were registered. Investigation ensued. The accused was arrested. The victim and the accused were medically examined. The spot was inspected and panchanama was recorded. The statements of the witnesses were recorded and after completion of the investigation, the chargesheet was filed in the Special Court. Charge (Exh.5) for offences punishable under section 363, 363-A, 376(2)(i) of the IPC and section 3(a) and 4 of the POCSO Act was framed by the learned Special Judge. The accused pleaded not guilty and claimed to be tried. The defence of the accused is of total denial. In the statement recorded under section 313 of the Criminal Procedure Code ("Code"), the accused states that he is a businessman who deals in teakwood and that he does not know driving. The accused states that he was at Rosaghonsa village in connection with his business at the time of alleged incident and then went to offer namaj at the mosque in village Waigaon. The accused states that the police in collusion with the complainant and her father in law and other witnesses have falsely implicated him in the crime. The accused did not step into the witness box nor did the accused examine any witness in defence. 6. PW-2 victim has deposed that her date of birth is 28.7.1999, which statement is reiterated in the cross-examination. The accused did not step into the witness box nor did the accused examine any witness in defence. 6. PW-2 victim has deposed that her date of birth is 28.7.1999, which statement is reiterated in the cross-examination. PW-2 is not cross examined any further and there is no serious challenge to the evidence that the date of birth of the victim is 28.7.1999. The evidence of the informant-mother of the victim PW-1 Smt. Vandana that the age of the victim was 15 years as on the date of the incident, has gone unchallenged. The evidence of the victim and her mother is more than amply corroborated by the birth certificate (Exh.63) issued by the Gram Panchayat, Bhisi under the Birth and Death Registration Act, 1969. It is therefore established that the victim was a child within the meaning of section 2(1)(d) of the POCSO Act, as on the date of incident. 7. The evidence may now be analyzed to ascertain whether the prosecution has proved the fundamental facts as would trigger the prosecution under section 29 of the POCSO Act. A reverse onus is placed on the accused to prove that the accused is innocent. However, the burden, which the accused is required to discharge, once the prosecution establishes the fundamental facts, is not absolute. It would suffice if the accused creates a serious doubt about the prosecution version or brings on record the material to render the prosecution inherently incredible or improbable, either by leading evidence or by effective cross-examination. I have noted supra, that from the statement recorded under section 313 of the Code, the defence which is discernible is two fold. The first is of alibi and the second is of false implication. In the statement under section 313 of the Code, all that is stated is that accused is falsely implicated by the Investigating Officer who acted in collusion with the mother and father in law of the child victim. However, in the cross-examination, it is suggested to the victim that the accused saw her mother and grandfather having sexual intercourse and therefore a quarrel took place between the accused and her mother, which suggestion is denied. The suggestion given to the mother of the victim is significantly different. The suggestion is not that the accused saw the mother of the victim having sexual intercourse with her father in law. The suggestion given to the mother of the victim is significantly different. The suggestion is not that the accused saw the mother of the victim having sexual intercourse with her father in law. The suggestion is that the accused knew that she was having illicit relationship with her father in law and therefore, she falsely implicated the accused. 8. The evidence of PW-2 victim is that she was sitting on a platform in front of her house. On 5.11.2013 at 11 a.m. the accused came in front of the house and called her. Her mother was washing clothes and her grandfather was having bath. When the victim approached the accused, the accused asked her to accompany him, which she refused. The accused caught her hand and made her sit on the motorcycle and took her to a vehicle near village Sirsi via Samudrapur - Girad road. The accused asked for sexual favour which the victim refused. The accused removed her clothes and after undressing, he caused the victim to lie on the ground and subjected her to sexual intercourse. The accused discharged semen from his penis into the vagina and then got up and wore his clothes. The victim was asked to wear her clothes and then threatened that disclosure of the incident to anybody will entail dire consequences. The victim then states that she was taken by the accused to Sirsi bus stop by the motorcycle bearing registration Number MH-32-U-1004 which was blue in colour and of Splender make. The accused gave Rs. 50/- to the victim and asked her to board the Samudrapur bus. A co-passenger noticed the frightened state of the victim and made inquiries, the victim did not disclose the incident to the co-passenger. Both the victim and the co-passenger deboarded at Samudrapur and the co-passenger took the victim to the Samudrapur Police Station. The police summoned the mother and grandfather of the victim at the police station and then the victim narrated the incident to her mother and grandfather. The victim is cross-examined at some length. An attempt is made to discredit the testimony of the victim by bringing on record that Samudrapur - Sirsi road has heavy traffic and that it was inconceivable that the victim was not in a position to attract the attention of the public and seek help. The victim is cross-examined at some length. An attempt is made to discredit the testimony of the victim by bringing on record that Samudrapur - Sirsi road has heavy traffic and that it was inconceivable that the victim was not in a position to attract the attention of the public and seek help. The response of the victim is that there was no traffic at the relevant time and that she could not have jump from the vehicle which was in speed. Several suggestions are given to lay a foundation for the defence of false implication. Every suggestion is denied. I have already noted supra that one suggestion was that the accused saw the mother and grandfather of the victim in compromising position and therefore the accused is falsely implicated. 9. PW-8 Dr. Mayuresh Wasnik examined the victim on the date of incident. PW-8 Dr. Wasnik states that the history which was narrated by the victim was that the accused subjected her to forcible sexual intercourse. PW-8 noticed three external injuries on the body which he described as abrasions. The abrasions were on the right side of the chest 1 x 0.5 cm in size, on the right breast 4 x 5 cms in size and on the right buttock 4 x 5 cms in size. PW-8 noticed injury to the hymen, on the local examination of the genitals. There was no other injury on the genitals or anus. PW-8 Dr. Wasnik opines that the injuries on the chest and buttock are suggestive of application of force and the age of injuries is eight hours, which co-relates to the time of the incident as deposed by the victim. PW-8 has proved the medical examination report Exh.106 and opines that the overall findings are consistent with the sexual intercourse or assault. PW-8 Dr. Wasnik also examined the accused and has deposed that the accused narrated that he had sexual intercourse at 2 p.m. on 5.11.2013 with partial penetration of penis in the vagina. PW-8 Dr. Wasnik is subjected to extremely lengthy cross-examination. It is elicited in the cross-examination that while determining the age of the victim, PW-8 has not followed the standard protocol. I need not consider this part of the cross-examination in any detail since the evidence of the PW-8 Dr. PW-8 Dr. Wasnik is subjected to extremely lengthy cross-examination. It is elicited in the cross-examination that while determining the age of the victim, PW-8 has not followed the standard protocol. I need not consider this part of the cross-examination in any detail since the evidence of the PW-8 Dr. Wasnik is kept out of consideration as regards the determination of the age of the victim, which the prosecution has proved by the other evidence on record. PW-8 Dr. Wasnik denies the suggestion that the history was recorded as told by the police and that the victim did not narrate the history. PW-8 Dr. Wasnik denies the suggestion that the injuries mentioned in the medical report can be self-inflicted. A specific suggestion is given to PW-8 that the hymen injury can be self-inflicted, which is denied. It is further suggested that the accused did not give history as is mentioned in medical examination report of the accused (Exh.106). 10. Victim of sexual assault is not an accomplice. It is not necessary to seek corroboration. Assurance from the other evidence, short of corroboration, can be sought if the evidence of the victim does not inspire confidence. I have given my anxious consideration to the evidence of the victim. Whether the victim was induced to accompany the accused or she was physically forced to do so is not really material since the victim was a child. Section 361 of the IPC is clearly attracted and the punishment for kidnapping is provided under section 363 of the IPC. The testimony of the victim that she subjected to sexual intercourse by the accused is trustworthy. No serious attempt is made in the cross-examination to dislodge her testimony that she was sexually ravished. While the conviction can rest on the testimony of the victim alone, the medical evidence on record lends assurance to the testimony. 11. The evidence of the complainant PW-1 Smt. Vandana that the victim narrated the incident to her at the police station is relevant in view of the provisions of section 6 of the Indian Evidence Act. No specific suggestion is given to PW-1 that the victim did not narrate the incident to her or that the narration does not confirm with the deposition of PW-1. No specific suggestion is given to PW-1 that the victim did not narrate the incident to her or that the narration does not confirm with the deposition of PW-1. It is suggested to PW-1 that she and her father in law are in illicit relationship and that the accused is falsely implicated since he is aware of such relationship. Such suggestion is of no assistance to the defence. The line of cross-examination is that the accused was having good relationship with the family of the victim. Even if it is assumed that the mother of the child victim and her father in law were in illicit relationship, and the accused was aware of such relationship, why would the accused be falsely implicated in a heinous offence is left to speculation. The ground reality is that a victim of rape or sexual assault has to face the trauma and stigma of the crime for years together, given the ethos of the conservative Indian society. An extremely strong motive will have to be established to consider the possibility of a mother using her child as a tool to falsely implicate a person in offence of rape. Rarely, if at all, would a mother indulge in such false implication and surely not to implicate a person who has good relations with the family only because he is aware of her illicit relationship with her father in law. Notably, no attempt is made to prove the defence of alibi. 12. PW-5 Dilip Barekar is examined to bring on record that on the date of the incident, the accused had come to the panthela where PW-5 Dilip was working between 10 to 10.30 a.m. PW-5 has deposed that after eating kharra (betel nut and tobacco mixture), the accused went near the motorcycle which was parked in front of the house of Agare (house of victim) and then while the witness was sitting at the panthela he saw the accused and the victim proceeding towards Sirsi on motorcycle. PW-5 Dilip states that in the evening he learnt from the people that the victim was raped by the accused. It is elicited in the cross- examination that on the date of the incident, the witness did not inform the mother of the victim that the victim and the accused were seen proceeding on motorcycle. PW-5 Dilip states that in the evening he learnt from the people that the victim was raped by the accused. It is elicited in the cross- examination that on the date of the incident, the witness did not inform the mother of the victim that the victim and the accused were seen proceeding on motorcycle. The witness is suggested that he is deposing falsehood in view of good relations with the grandfather of the victim, which suggestion is denied. It is further elicited that the statement of the witness is recorded 8 to 10 days after the incident. Investigating Officer - PW-9 Anil Gittawar is specifically asked to explain the delay in recording the statement of PW-5 Dilip Barekar. The Investigating Officer was not in a position to explain. In view of the unexplained delay in recording the statement of PW-5, it would be unsafe to attach any evidentiary value to his testimony. 13. PW-6 Sau. Beby Tirpude, who was examined to prove that the accused used Splendor motorcycle owned by her husband to commit the crime, did not support the prosecution. PW-7 Govinda Ladhi, who according to the prosecution was the co-passenger, who took the victim to the Samudrapur Police Station, also turned hostile. PW-9 Anil Gittawar is the Investigating Officer, who has testified as regards the investigation including the seizure of the motorcycle bearing registration MH-32/U-1004 pursuant to the statement of the accused under Section 27 of the Indian Evidence Act. The Investigating Officer has also deposed that the crime scene was also discovered pursuant to the statement of the accused under Section 27 of the Indian Evidence Act. In the cross-examination, the Investigating Officer is suggested that he was paid Rs. 60,000/- by the grandfather of the victim to implicate the accused. At one stage, the Investigating Officer is suggested that the accused is falsely implicated since he refused to fulfill the demand of bribe of Rs. 10,000/- per month. The other suggestion given is that due to political rivalry, the workers of a political party have falsely implicated the accused. Perusal of the judgment impugned would reveal that the learned Sessions Judge has not given too much importance to the seizure of the motorcycle, although the submission of the defence that the vehicle was seized from open space is rejected. 14. The learned Sessions Judge has found the testimony of the victim trustworthy. Perusal of the judgment impugned would reveal that the learned Sessions Judge has not given too much importance to the seizure of the motorcycle, although the submission of the defence that the vehicle was seized from open space is rejected. 14. The learned Sessions Judge has found the testimony of the victim trustworthy. The medical evidence is found to lend assurance to her version. The learned Sessions Judge holds that the accused failed to rebut the presumption under Section 29 of the POCSO Act. I see no reason to differ from any of the aforesaid findings. 15. The prosecution has proved the foundational facts. The evidence of the victim does not suffer from any embellishment. The medical evidence is consistent with the version of the victim. The statutory presumption stood triggered. However, all that is done by the defence is to give several suggestions, each consistent with the other, to the prosecution witnesses. The honesty of the investigation is attacked by suggesting to the Investigating Officer that he demanded monthly bribe of Rs. 10,000/- from the accused. It is then suggested that the Investigating Officer was paid Rs. 60,000/- by the grandfather of the victim to falsely implicate the accused. It is further suggested to the Investigating Officer that the accused is implicated due to political rivalry. The suggestion to the victim and her mother is that the accused is falsely implicated since she saw the mother of the victim and her father-in-law in compromising position. Such bare suggestions are not sufficient to rebut the presumption. No attempt is made to prove the defence of alibi. Considering the evidence on record, the irresistible conclusion is that the prosecution proved the charge beyond reasonable doubt. 16. No interference is warranted with the judgment impugned. 17. The appeal is without substance, and is dismissed. 18. The appointed counsel Ms. S.H. Bhatia be paid fees in accordance with the rules.