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2024 DIGILAW 955 (BOM)

Deepak Pandurang Raut v. State of Maharashtra

2024-08-21

G.A.SANAP

body2024
JUDGMENT : 1. In this appeal, the challenge is to the judgment and order, dated 13.11.2021, passed by the learned District Judge-2 and Special Judge (POCSO Act), Wardha (for short ‘Special Judge’), whereby the learned Special Judge, held the appellant/ accused guilty of the offences punishable under Section 376(1) of the Indian Penal Code (for short ‘the IPC’) and under Section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short ‘the POCSO Act’) and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs.7,000/-and in default of payment of fine to undergo simple imprisonment for one year. 2. Background facts: The crime was registered on the report of the victim (PW-1) dated 08.01.2016. The prosecution’s case, which can be gathered from the report and material on record, is that on the date of the incident the victim was 17 years old. She was residing with her parents at village Deoli, Tal. Deoli, Distt. Wardha. The appellant/accused is a resident of the same village. It is the case of the prosecution that on 08.01.2016, at about 8:30 p.m., the victim was returning to her house from her grandfather’s house. At that time, the accused, who is the neighbour of the victim, caught hold the victim in front of the Zilla Parishad Primary School. He pulled her aside. The victim tried to push him. In this scuffle, her clothes were torn. The accused dragged her towards the Zilla Parishad School. She shouted for help. However, the accused told her that nobody would come to her help. The accused removed her salwar and knickers and pushed her down. The accused removed his pant and underwear. It is stated that the accused inserted his finger in her vagina. The accused slept on her. In this process, his semen was discharged on her thighs. The maternal brother of the victim heard her shouts and came to the spot. He slapped the accused. The accused fled from the spot. The victim went to her house and narrated the incident to her mother. Thereafter, the victim with other family members went to Deoli Police Station and lodged the report. The crime bearing No. 24 of 2016 was registered against the accused. 3. PW-10 carried out the investigation. He drew the spot panchanama. He forwarded the victim for a medical examination. The victim went to her house and narrated the incident to her mother. Thereafter, the victim with other family members went to Deoli Police Station and lodged the report. The crime bearing No. 24 of 2016 was registered against the accused. 3. PW-10 carried out the investigation. He drew the spot panchanama. He forwarded the victim for a medical examination. The accused was arrested on the next day. The clothes of the victim and the accused were seized. The clothes of the accused were forwarded for medical examination. The blood and other samples were collected. The samples were sent to FSL, Nagpur for analysis. The investigating officer collected the documentary evidence with regard to the birth date of the victim. On completion of the investigation, the investigating officer filed the charge-sheet. 4. Learned Special Judge framed the charge against the accused. The accused pleaded not guilty and claimed to be tried. His defence is of a false implication on account of his enmity with the family of the victim. The prosecution, in order to prove the charge against the accused, has examined 11 witnesses. Learned Judge on consideration of the evidence, held the accused guilty of the charge and sentenced him, as above. The appellant is before this Court against his conviction and sentence. 5. I have heard the learned Advocate for the appellant and the learned APP for the State. Perused the record and proceedings. 6. Learned Advocate for the appellant submitted that the DNA report has not been properly appreciated by the learned Judge. Learned Advocate submitted that the DNA report does not establish the complicity of the accused in the crime. Learned Advocate further submitted that the evidence of the victim is not reliable. Learned Advocate submitted that if the accused wanted to commit sexual intercourse with the victim then he would not have spared the victim. Learned Advocate submitted that the medical evidence as well as the report of the analysis of the sample do not show that semen was detected either on the clothes of the victim or the clothes of the accused. Learned Advocate submitted that the medical evidence as well as the report of the analysis of the sample do not show that semen was detected either on the clothes of the victim or the clothes of the accused. Learned Advocate submitted that if the semen had fallen on the thighs of the victim, as stated by her, then the traces of the semen ought to have been detected on the clothes of the victim as well as on the thighs of the victim at the time of her examination by the doctor. Learned Advocate submitted that while narrating the history of assault to the medical officer, the victim did not state that the semen had fallen on her thighs. Learned Advocate submitted that the evidence of the victim creates doubt about her credibility and trustworthiness. The spot of the incident is surrounded by the houses of the people. It is pointed out that there is a betel-nut shop just in front of the school. The incident occurred at 8:30 p.m. It is submitted that therefore the evidence of the victim that when the accused dragged her into the school, she raised shouts is completely belied. Learned Advocate submitted that the evidence of PW- 3, who is the maternal cousin of the victim, is also doubtful. It is pointed out that in his evidence, he has not stated that he beat the accused on the spot. The case of the prosecution that the accused inserted his finger in the vagina of the victim is completely unbelievable. The story has been cooked-up to falsely implicate the accused. Learned Advocate submitted that the medical evidence, instead of supporting the case of the prosecution, shows that the defence of the accused is believable. The injuries found on the person of the accused by the doctor at the time of his examination could not be corroborative piece of evidence inasmuch as, at the time of the arrest panchanama of the accused, it was recorded in the panchanama that there were no injuries on the person of the accused. Learned Advocate submitted that the learned Judge has failed to properly appreciate the evidence. 7. Learned APP fairly conceded that the opinion of the DNA analyst in the DNA report is not against the accused. Learned Advocate submitted that the learned Judge has failed to properly appreciate the evidence. 7. Learned APP fairly conceded that the opinion of the DNA analyst in the DNA report is not against the accused. Learned APP conceded that, in fact, neither the blood nor the semen was detected on the full pant as well as the underwear of the accused. Learned APP submitted that the evidence of the victim is trustworthy and reliable. The evidence of the victim has been corroborated by the evidence of PW-3, her maternal cousin. The evidence of the medical officer is sufficient to lend an assurance to the testimony of the victim. The evidence of the medical officer PW-9, who had examined the accused, would show that at the time of the examination of the accused, he found multiple injuries on the person of the accused. The injuries were 36 to 48 hours old. In short, the learned APP supported the judgment and order passed by the learned Special Judge. 8. I have minutely gone through the evidence adduced by the prosecution and the record. Undisputedly, the CA report as well as the DNA report do not in any way corroborate the case of the prosecution. The said evidence, therefore, has to be excluded from consideration. The prosecution has examined PW-11 to prove the birth date of the victim. The victim, in her evidence, has stated that on the date of the incident she was studying in the 9th standard. She has stated that her birth date is 02.11.1999. PW-11 is the headmaster of Zilla Parishad Upper Primary School Borgaon (Hatala). He has stated that the victim was a student of the Zilla Parishad School from 2005 to 2008. She was admitted in 1st standard in 2005. He has produced before the Court the Pratidhnya Lekh register and the Dakhal Kharij register (Affidavit register and Admission & Leaving register). He has stated that in the original school record the birth date of the victim is recorded as 02.11.1999. As far as the affidavit register is concerned, he has stated that the affidavit was submitted by the mother of the victim, Durga Mandare. This witness has produced the original register of the affidavit. Similarly, he has produced the admission and leaving register. Learned Judge personally verified the contents of both registers. The affidavit register is marked as Exh. As far as the affidavit register is concerned, he has stated that the affidavit was submitted by the mother of the victim, Durga Mandare. This witness has produced the original register of the affidavit. Similarly, he has produced the admission and leaving register. Learned Judge personally verified the contents of both registers. The affidavit register is marked as Exh. 103 and the admission and leaving register is marked as Exh. 104. It is to be noted that PW-11 produced before the Court the original TC book. The TC book contained a carbon copy of the leaving certificate issued to the victim. The original TC was shown to the witness. He has admitted the contents of the same. It is at Exh. 105. This evidence is cogent and concrete to prove the birth date of the victim. It is not the case of the accused that this evidence was brought into existence after lodging of the report by the victim. The victim was admitted in the school in 2005. The incident occurred on 08.01.2016. The record was maintained in the school in the ordinary course of the business of the school. Such a record can attract presumption. In this case, the original registers produced before the Court cannot be overlooked. It is primary evidence. In his cross-examination, PW-11 has admitted that the birth certificate of the victim was not submitted when she was admitted by her mother in the school. It was suggested to PW-11 that 02.11.1999 is not the birth date of the victim. The witness has denied this suggestion. In my view, this evidence cannot be discarded. The certified copies of the affidavit register, TC and the entry from the admission register had been collected by the investigating officer during the course of the investigation. These documents were compiled in the chargesheet. It is not the case of the accused that the victim was not admitted in the school as deposed by PW-11. Similarly, it is not his defence that these documents have been either forged or fabricated to substantiate the case of the prosecution. The victim, on the date of the incident, was studying in 9th standard. It is stated that she is 17 years old. Similarly, it is not his defence that these documents have been either forged or fabricated to substantiate the case of the prosecution. The victim, on the date of the incident, was studying in 9th standard. It is stated that she is 17 years old. The evidence on record is, therefore, sufficient to prove that the victim on the date of the incident was below 18 years of age and as such a child as defined under Section 2(1)(d) of the POCSO Act. 9. It would now be necessary to consider the evidence of the victim and the evidence of other witnesses. Certain facts admitted by the victim in her cross-examination are required to be borne in mind for the purpose of proper appreciation of her evidence. According to her, the incident occurred at 8:30 p.m. She has stated that, the accused had dragged her into the school with the intention to commit rape on her. She has stated that the accused, instead of committing intercourse with her, inserted his finger in her vagina. She has stated that the semen of the accused fell on her thighs and her thighs became wet. She has stated that her brother PW-3 heard her shouts and came to the school. He pulled the accused away from her and gave him two slaps. It is evident that the report of the incident was lodged immediately. In her cross- examination, she has admitted certain facts. She has stated that her elder maternal aunt Laxmibai resides near the house of the accused. She used to do the liquor business. It was suggested to her that the mother of the accused had filed the complaint against Laxmibai regarding her liquor business. She has stated that Laxmibai and the mother of the accused are not on good terms. She has admitted that the Zilla Parishad School does not have a compound wall. She has stated that there is Panthela of one Ghode near the gate of the school. She has further admitted that there are houses near the Panthela. She has further admitted that said Panthela remains open till 8:00 p.m. She has stated that the school is at a distance of about 300 feet from the Panthela. She has stated that there is Panthela of one Ghode near the gate of the school. She has further admitted that there are houses near the Panthela. She has further admitted that said Panthela remains open till 8:00 p.m. She has stated that the school is at a distance of about 300 feet from the Panthela. She has further stated that the people in the village are awake after 8:00 p.m. She has stated that Laxmibai, her brother-in-law Gajanan and her brother PW-3 accompanied her to the police station. 10. Perusal of her evidence and the evidence of the doctor would show that her contention that there was a semen discharge on her thighs has not been proved. She was examined in the night of 09.01.2016 at about 2:29 a.m. She had narrated the history of the assault to the doctor. She did not tell the doctor that there was a semen discharge on her thighs. Similarly, the doctor did not notice the traces of semen on her thighs. It is not her case that before coming to the police station she had taken a bath or changed her clothes. In fact, the evidence on record shows that she went to the police station and from the police station to the hospital wearing those torn clothes. In my view, this is a doubtful circumstance. If the intention of the accused was to commit rape on the victim, then he would not have simply inserted his finger in her vagina. There are other circumstances as well to create a doubt about the veracity of the testimony of the victim. She has stated that, against her wish, the accused forcefully dragged her from the road to the school. It means that she did not go there without any struggle. The doctor, at the time of examination, did not find any injury on her body. On examination of her private part, only a hymen tear was noticed. She was examined within 6-7 hours of the alleged incident. The doctor stated that the age of the injury could not be determined because there was no edema or bleeding. It is the case of the victim that she was forcefully pushed on the ground by the accused and her clothes were removed by the accused. There were no injuries on her back. Similarly, there were no injuries on her face or on her thighs. It is the case of the victim that she was forcefully pushed on the ground by the accused and her clothes were removed by the accused. There were no injuries on her back. Similarly, there were no injuries on her face or on her thighs. In my view, this creates doubt about the occurrence of the incident in the manner narrated by the victim. It is to be noted that if the accident as narrated had occurred, then the shouts of the victim would have attracted the attention of the people residing near the spot. The presence of PW-3 alone on the spot by chance therefore creates a doubt. 11. It would be necessary to consider the evidence of PW-3, the maternal brother of the victim. He has stated that on 08.01.2016 he had gone to the market and while returning at about 8:30 p.m., he heard the noise of screaming from Zilla Parishad School. He has stated that therefore, he went inside and saw that the accused was lying on the victim. He has stated that he shouted and pushed the accused back. He has stated that the accused, after putting on his pant, ran away from the spot. His evidence is silent about any slap given by him to the accused and any attack on him by the accused in retaliation. In his cross-examination, he has stated that Laxmibai is residing near the house of the accused. He has stated that Laxmibai used to do business of liquor. He has denied the suggestion that there is animosity between Laxmibai and the accused. He has categorically stated in his cross that there are houses near the school. He has also stated that the Panthela owned by Mr Ghode is near the school gate. He has denied the suggestion that Panthela is always open after 8:00 p.m. He has stated that the door of his house is closed early. He has stated that he consumes liquor. In my view, the very presence of PW-3 on the spot, as narrated by him, creates a doubt. The Panthela is at the gate of the school. There is a wire fencing compound to the school. The possibility of dragging the victim from the gate of the school in these circumstances is remote. He has stated that he consumes liquor. In my view, the very presence of PW-3 on the spot, as narrated by him, creates a doubt. The Panthela is at the gate of the school. There is a wire fencing compound to the school. The possibility of dragging the victim from the gate of the school in these circumstances is remote. The evidence of the victim would show that the accused caught hold her on the road and forcefully dragged her into the school. She has stated that she raised shouts. The absence of the injuries on the person of the victim clearly suggests that the incident, as narrated by the victim, did not occur. It is further pertinent to mention that if the victim was forcefully dragged by the accused and she had raised the shouts, then it would have attracted the attention of the people residing around the spot. As per the victim, the time was 8:30 p.m. In view of this factual position, the people residing around the spot would be awaken. In my view, this is doubtful evidence. The doubt about the evidence is further fortified because the accused did not commit any sexual intercourse with her. 12. In this backdrop, it is necessary to consider the evidence of the medical officer PW-7. The doctor (PW-7) has not given a candid opinion. The doctor has simply said that the possibility of finger insertion cannot be ruled out medically. The doctor has stated that the clothes of the victim were torn. The hymen injury was present. In her cross-examination, the doctor has categorically stated that in case of forceful resistance by a girl, there would be scratch marks on her back. She has stated that she did not find external injuries on the body of the victim. Similarly, she did not find any stains on the clothes of the victim. She has admitted that the age of the hymen injury was not mentioned in the report. She has stated that since there was no edema or bleeding, the age of the hymen injury could not be stated. In my view, the failure on the part of the doctor to mention the age of the injury is a circumstance in favour of the accused. The doctor has not stated that the injuries found by her were either fresh or an old hymen tear. In my view, the failure on the part of the doctor to mention the age of the injury is a circumstance in favour of the accused. The doctor has not stated that the injuries found by her were either fresh or an old hymen tear. In the backdrop of the account of the incident narrated by the victim of insertion of finger, the doctor was required to give a categorical opinion. In my view, therefore, the evidence of the medical officer does not lend assurance to the testimony of the victim. 13. The learned Prosecutor has relied on the evidence of PW-9, who had examined the accused. The doctor, on examination of the accused, found two abrasions on the right side of his neck and one abrasion on the right lateral side of his abdomen. The doctor has stated that these abrasions occurred 36 to 48 hours prior to 10.01.2016. He has opined that the abrasions could be caused by nails. It is to be noted that at the time of the examination of the victim by the doctor, her nail clippings were collected. The report of the analysis of the nail clippings as to the presence of traces of blood or any foreign body material is negative. In my view, simply because of the presence of injuries on the body of the accused, it cannot be said that the said injuries were caused in the incident. It is to be noted that in the arrest panchanama of the accused at Exh. 81, the injuries were not mentioned. Column No. 7 of the arrest panchanama is blank. This panchanama was drawn on 09.01.2016 at 4:36 p.m. If the injuries were present as noticed by the doctor, then the investigating officer would have mentioned the same in the arrest panchanama. Even if it is presumed for the sake of argument that injuries on the person of the accused went unnoticed by the investigating officer, the medical evidence by itself could not be said to be conclusive proof to connect the accused with the incident. 14. On minute scrutiny of the evidence of the victim and her maternal brother, I am satisfied that the said evidence is doubtful and shaky. The evidence, if appreciated in juxtaposition with the undisputed and attending circumstances, would show that it is not sufficient to prove the incident. 14. On minute scrutiny of the evidence of the victim and her maternal brother, I am satisfied that the said evidence is doubtful and shaky. The evidence, if appreciated in juxtaposition with the undisputed and attending circumstances, would show that it is not sufficient to prove the incident. The conviction can be based on the sole testimony of the victim of the rape. There is no need of any corroborative piece of evidence. The victim in a rape case is akin to the injured witness. She cannot be equated with an accomplice. However, before placing implicit reliance on the evidence of the victim or prosecutrix, the evidence must be of stellar quality. The evidence shall not leave any scope for doubt. In this case, a minute scrutiny of the evidence of the victim would show that it is not cogent, convincing and reliable. The credibility and trustworthiness of the victim has been completely shaken. The evidence on record creates doubt about the complicity of the accused in the crime. The accused, therefore, is entitled to the benefit of doubt. In this case, the evidence adduced by the prosecution is not sufficient to establish the foundational facts vis-a-vis the charge against the accused and therefore, the presumption under Section 29 of the POCSO Act would not trigger. In the facts and circumstances, I am of the view that learned Judge has failed to properly appreciate all these facts and evidence. Therefore, the accused deserves to be acquitted. 15. Accordingly, the criminal appeal is allowed. 16. The judgment and order of conviction and sentence of the appellant/accused dated 13.11.2021 passed by learned District Judge-2 and Special Judge (POCSO) Act, Wardha in Special (POCSO) Case No.20 of 2016 for the offences punishable under Section 376(1) of the Indian Penal Code and Section 4 of the Protection of Children From Sexual Offences Act, 2012 is quashed and set aside. 17. The appellant- Deepak Pandurang Raut is acquitted of the offences punishable under Section 376(1) of the Indian Penal Code and Section 4 of the Protection of Children From Sexual Offences Act, 2012. 18. The appellant, who is in jail, shall be released forthwith, if not required in any other case. 19. The criminal appeal stands disposed of, accordingly. Pending applications, if any, stand disposed of.