Criminal Appeal No.290 of 2015

3rd September, 2015

Petitioner Counsel: Mr. SHIVSHANKAR D. PATIL
Respondent Counsel: Mrs. ANAMIKA MALHOTRA, APP

JUDGMENT

JUDGMENT :- Heard rival submission on this Criminal Appeal preferred by the appellant-accused challenging his conviction for the offence punishable under section 9(m) read with section 10 read with section 18 of Protection of Children from Sexual Offences Act.

2. Initially the bail application was taken before the Court when the appeal was admitted. That time considering the evidence adduced before the trial Court, it was thought fit that instead of deciding the application for bail, the entire appeal can be disposed of by expeditious hearing and as such today the entire appeal is heard and is being disposed of by this order.

3. The applicant is charged for attempting to commit rape on the small child, prosecutrix girl, aged about 4 years. Initially there was offence levelled against the appellantaccused punishable under section 4 read with section 18 of the Protection of Children from Sexual Offences Act. Subsequently the charge was altered during the proceeding and appellantaccused was charged for the offence under section 9(m) read with section 10 read with section 18 of the Protection of Children from Sexual Offences Act. As such the charge was attempt to commit an aggravated sexual assault in the sense that allegedly the appellant tried to have sexual intercourse with the child of 4 years age after taking the child in his hut in the evening of 05th February 2013.

4. During the trial total eight prosecution witnesses were examined. Out of them the important evidence is that of P.W.No.1 and P.W.No.6. P.W.No.1 is the first informant, grand mother of the child. P.W.No.6 is Dr.Gohil attached to J.J. Hospital as Assistant Professor of Obstetrics and Gynecology. Another important piece of evidence which is required to be analyzed is the substantive evidence of P.W.No.4 panch and the documentary evidence of the C.A. report which show finding of semen stains of 'O' group on the underwear of the appellant and also the undergarments/chaddi of the child victim.

5. According to the case of prosecution the grand daughter of the first informant was playing around the hut in a slum area of the Seveeri, Mumbai. The girl was playing with other small children including P.W.No.3 another small boy aged about 5 to 6 years. On that evening the first informant grandmother started inquiring with the children regarding her grand daughter. Then she knew that the small child had been taken by the appellant in his nearby hut. As such she went and saw that the appellant was sleeping on a cot under a quilt. By his side the small child was also sleeping but the child was quite and not making any noise. Sensing something abnormal she entered the hut and removed the quilt and found that the appellant had already opened the zipper chain of his jean pant and some white coloured liquid was found on his thighs. She also noticed that the undergarments of her grand daughter were removed and some white coloured liquid was also found on the legs of the child. Immediately she took away the child and raised hue and cry. Three women and one person from the locality gathered there. Thereafter it was decided to lodge a complaint and the matter was reported to the police.

6. On the same night the present appellantaccused was arrested and apparently at early hours of the next day the cloths, he was then wearing, were taken the charge of under the panchnamma. One of the panchas is P.W.No.4. It is significant to note that said P.W.No.4 had acted as a panch witness in total three panchnammas i.e. Spot of offence which was conducted on the night of 05th February 2013 and another two panchnammas for seizure of the cloths of the appellant cloths of the victim child. After seizure of the cloths they were sent for Chemical Analysis and after obtaining the C.A. report and recording of the statements of the witnesses chargesheet was filed and matter was committed to the Special Court dealing with the matters under provisions of Protection of Children from Sexual Offences Act, 2012.

7. The entire case of prosecution mainly rest on the substantive evidence of the P.W.No.1 first informant coupled with the substantive evidence of the panch P.W.No.4 and the evidence of Medical Officer P.W.No.6 Dr. Gohil. Admittedly it is not a case of penetrative sexual assault but considering the age of the victim girl being about 4 years, the trial Court thought it fit to bring the matter under section 9(m) of the Act read with section 10 and section 18 of the said act. As such as mentioned at the threshold of this order it was an attempt by an appellant to have aggravated sexual assault on the girl and if the attempt would have been successful it would have been punishable under section 10 of the said Act.

8. During the arguments it is brought to the notice of this Court by the learned counsel for the appellant that there is rather discrepancy in the material produced before the trial Court and what was told by the witnesses mainly P.W.No.1 and P.W.No.4. According to P.W.No.4 panch the cloths of the victim child were taken charge of by taking these cloths from the person of the child on 06th February 2013. Where as it is not at all the case of the prosecution that the cloths were taken from the person of the child but they were handed over by the first informant i.e. grandmother of the child on the next day of the incident by keeping them in the polythene bag and handing them to the police officer. This discrepancy rather goes to the root of the matter inasmuch as findings in the C.A. report are concerned. The C.A. report is dated 17th September 2013. It appears that the said C.A. report is produced before the Court through P.W.No.8 the Investigating Officer. However, no much care has been taken during the trial for proving the said C.A. report and there is nothing on record to show that the appellant-accused had accepted the said C.A. report. Apparently the trial Court had taken the said C.A. report on record under provisions of section 293 of Cr.P.C.

9. Pointing out the above it is argued that only the link between the present appellant and the alleged offence is that of finding of semen stains on the undergarments of the appellantaccused and the under pant of the victim child. In order to ascertain whether the link has been established, substantive evidence of the P.W.No.4 is of much significance and as mentioned earlier according to him the cloths of the child were taken from the person where as according to P.W.No.1 and according to the case of the prosecution the cloths were produced by the complainant P.W.No.1 on the next day of the incident. It is also substantive evidence of P.W.No.1 that on the same day itself she had washed the white liquid allegedly seen by her on the legs of the child and also such white liquid seen by her on the under pant of the child. As such according to P.W.No.1 herself the said stains were removed and the cloths of the child were given to the police on the next day.

10. Moreover, during the cross-examination P.W.No.4 panch had admitted that he had acted in various other panchnammas for the same police Station i.e. RAK Marg Police Station. He has also answered that RAK Marg Police called him and without telling anything took his signature on the panchnamma. He also answered that the complainant women was well acquainted with him and on the day of the incident while lodging the complaint he had accompanied the complainant to RAK Marg police station. This substantive evidence of P.W.No.4 goes to show that this is a pancha who is vulnerable and in fact a doubt has been created whether the cloths of the victim girl were taken charge of from her person or they were produced by the grandmother on the next day of the incident.

11. Apart from above mainly considering that the allegation against the appellantaccused are that of attempt to commit forcible sexual intercourse, much significance is attained to the medical evidence which is given by Dr. Gohil, P.W.No.6. Para No.4 of the evidence of P.W.No.6 is reproduced herewith for the sake of ready reference.

"On local examination of private parts labia majora and labia minora were healthy, clitoris was normal, vagina was normal, hymen was intact, there was no injury to perineum and no foreign body was present, hymenal orifice admits one finger, vaginal smear was not made as patient did not allow it. Blood for grouping was collected. The report now shown to me is the same. It is prepared by Dr.Archana Kumbhar. I was a student of the same college in which Dr. Archana Kumbhar was working and so I have seen her signature. The signature on the report is that of Dr.Archana Kumbhar. Report is marked Ex.22".

12. When this substantive evidence of P.W.No.6 goes to show that in fact there were no injuries at all on the private parts of the child, mere finding of the semen stains of 'O' group, allegedly undergarment of the child cannot be considered as such a clinching material so as to come to the conclusion that even the attempt to commit forcible sexual intercourse has been committed by the appellant. This is more so in view of the other factual position brought on record during the cross- examination of P.W.No.1. It is brought on record that the appellant and P.W.No.1 were doing the same type of job i.e. washing of the motor vehicle in the said locality. Moreover the factual position of the spot of offence i.e. the hut of the appellant is of much significant. It was the hut made up of plastic sheets without their being any door and in fact it is a sort of Shanty. This aspect is also required to be considered while considering the allegation against the appellant that he tried to have forcible sexual intercourse with the child in the said Shanty in the evening of 05th February 2013 when the children of the locality were playing outside. In the considered opinion of this Court these circumstances negate the case of the prosecution as to there was such an act on the part of the appellant.

13. Apart from the above there is substantive evidence of one alleged eye witness P.W.No.3 a small boy aged about 5 to 6 years. According to his substantive evidence while the children were playing, present appellant came there and lifted the small child i.e. prosecutrix and took her in his hut. During the crossexamination even the child had answered to question no.35 that he did not see anything. Infact considering the age of the child i.e. 5 to 6 years it is not prudent to rely on the testimony of such a witness as the same is moye prone to tutoring. As such a great care and caution is required to be taken while analyzing the evidence of child witness more so when the offence is of very serious nature and attract sever punishment. Infact similar is the condition so far as the substantive evidence of the small child victim is concerned. She is examined as P.W.No.2. Admittedly her age was around 4 years during the incident and almost all her answers were not verbal but by way of her actions by nodding her head. Of course it can be seen that the child of 4 years cannot be accepted to give so rational answers or to describe the events in detailed.

14. Under the above circumstances the case of the prosecution is require to be viewed in the light of the evidence of the complainant P.W. No.1, panch witness P.W.No.4 and Medical Officer P.W.No.6 and in the light of the C.A. report as discuss earlier. Mainly considering that there is a discrepancy as to in what manner cloths of the child victim were seized and whether any action has been taken by P.W.No.1 as stated by her as to washing white stains from the person of the child and from the underwear.

15. In the result in the opinion of this Court it must be said that the trial Court had erred in coming to the conclusion that the prosecution has established the charges for the offences under section 9(m) and section 10 read with section 18 of the Protection of Children from Sexual Offences Act. It must be said that the prosecution had not gathered the evidence of that standard which is required to establish the guilt of the appellant-accused, even for the attempt of forcible sexual intercourse, on the evening of 05th February 2013, that also in a crowded locality in his own hut. It is also a factual position that inside of the hut of the appellant is visible from outside as the hut is not having any door. In the result the present appeal succeeds and same is accordingly disposed of with following order.

ORDER

i. Criminal Appeal No.290 of 2015 is allowed;

ii. The impugned judgment and order passed by Special Court for Protection of Children From Sexual Offences Act, 2012 at Fort, Gr.Bombay in Sessions Case No.477 of 2013 is quashed and set aside. The appellant/accused is acquitted for the offence punishable under section 9(m) read with section 10 read with section 18 of Protection of Children from Sexual Offences Act.

iii. The appellant/accused be released from jail custody, if not required in any other case;

iv. The fine amount if already paid, same shall be returned back to appellant/accused;

v. Criminal Appeal No.290 of 2015 and Criminal Application no.1021 of 2015 are disposed of accordingly.

Appeal allowed.