Criminal Appeal No.397 of 2015

22nd February, 2017.

Petitioner Counsel: Shri R.M. DAGA
Respondent Counsel: Shri V.P. MALDHURE

JUDGMENT

Kum. Indira Jain, J. :- This appeal takes an exception to the judgment and order dated 14.10.2015 passed by the learned Special Judge Warora in Special (POSCO) Case No.07/2014. By the said judgment and order, appellant-accused is convicted of the offence punishable under Section 376(2)(f)(i) of the Indian Penal Code and sentenced to suffer imprisonment for life and fine of Rs.5,000/-, in default further rigorous imprisonment for six months. Accused is also convicted of the offence under Section 3(a) punishable under Section 4 as well as under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012, but no separate sentence is imposed for the same. So far as the offences punishable under Sections 3(1)(xii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are concerned, accused has been acquitted of the charge.

2. Briefly stated prosecution case is as under :

a) Complainant Usha Sandip Poyam, a labourer by occupation was residing at Shivaji Nagar, Bhadrawati, District Chandrapur. Her husband was serving in a private company at Nagpur. She had two daughters. Elder daughter was studying in VIIth Standard and prosecutrix was taking her education in Vth Standard. Accused was residing near the house of complainant and was taking music classes. When prosecutrix was a student of IVth Standard, she joined music classes of the accused. After one year as financial condition of complainant was not good, she discontinued the music class of her younger daughter. Complainant then went to reside in a rented room near the house of accused. Her younger daughter used to play. Accused asked the complainant that he would teach music to her daughter free of costs and so she should be sent to his classes. Thereafter, prosecutrix started intermittently going to attend the music class run by the accused.

b) Incident occurred on 18.4.2014 between 3.15 p.m. and 3.45 p.m. in the house of accused. According to prosecution, younger daughter of complainant went to the house of accused for attending the music class. She sat on the mat. Accused lifted and took her to the bench. Then, he unclothed the victim, removed his pant and committed sexual intercourse with her. One lady arrived there so accused pushed the prosecutrix from the bench, put on his pant and prosecutrix also put on her clothes. She then went to her house and slept on the cot. After she woke up her mother asked why was she sleeping. That time she disclosed to her mother that she had burning sensation in her private part and also told her that Sir is not good and Sir is halkat. On that her mother asked what had happened and she narrated the incident to her mother.

c) Then PW 1 Usha took the prosecutrix to Bhadrawati Police Station and lodged report. Crime No.85/2014 was registered against the accused.

d) A.P.I. Chauhan informed about the incident to Deputy Superintendent of Police Dr. Raju Bhujbal. Prosecutrix was sent for medical examination. Deputy Superintendent of Police, Bhujbal took over further investigation. He visited the spot and recorded spot panchanama. Photographs of the place of occurrence were taken. Accused was arrested. He was referred for medical examination. The samples of blood, pubic hair and nail clippings of the accused and samples of blood vaginal swab and nail clippings of prosecutrix were collected. The clothes of prosecutrix were seized. Statements of witnesses were recorded.

e) Regarding age of the prosecutrix bona fide certificate was collected from the school. Statement of prosecutrix was also recorded under Section 164 of the Code of Criminal Procedure. Tahsildar was requested to draw sketch of the spot. Further investigation was handed over to Sub-Divisional Police Officer Sunil Jaiswal. He collected birth certificate of the prosecutrix from her mother. The notebook of music class of the prosecutrix was seized from her mother. The caste certificate of victim was obtained. Seized muddemal was sent to forensic science laboratory. On completing investigation charge-sheet was submitted to the Special Court Warora.

3. Charge of the alleged offences was explained to the accused vide Exh.-5. He pleaded not guilty and claimed to be tried. The defence of accused was of total denial and false implication. Vide his written statement (Exh.-83) accused stated that he advanced loan of Rs.25,000/- to complainant in March 2013 borrowing the same from his younger son-in-law. He insisted the complainant to return Rs.25,000/-. She was avoiding to return. On 20.4.2014, he called the complainant and her husband and asked them to return the amount else he would send her in jail under Section 420 of the Indian Penal Code. That time informant threatened him that she would put him in jail and accordingly she brought her threats to reality by lodging a false report.

4. Prosecution examined in all 10 witnesses in support of its case. Accused also examined four defence witnesses to establish his defence. On hearing both the sides and considering the evidence, learned Special Judge came to the conclusion that prosecution proved guilt of the accused under Section 376(2)(f)(i) of the Indian Penal Code and Section 3(a) punishable under Section 4 and Section 5(m) punishable under Section 6 of the POSCO Act and convicted and sentenced the accused as stated herein above in paragraph (1). Being aggrieved thereof accused has preferred this appeal.

5. Heard Shri R.M. Daga, learned counsel for the appellant and Shri V.P. Maldhure, learned Additional Public Prosecutor for the respondent-State. On going through the evidence of the parties we find merit in the submission of the learned counsel for the appellant that testimony of the prosecutrix is highly improbable and in the absence of medical evidence accused was entitled to the benefit of doubt.

6. PW 2 victim is the star witness for the prosecution. At the relevant time, she was studying in Vth Standard. She was examined in the Court on 2.8.2014. That time, she stated her age as 11 years. Incident occurred on 18.4.2014. It means prosecutrix at the time of incident was minor.

7. It is stated by prosecutrix that on 18.4.2014 she had been to the house of accused as he came to her house and asked her to give him a copy. She went to the house of accused at 3.00 p.m. She sat on the mat. She states that, then Sir lifted and took her on the bench. He removed her clothes and his pant and thereafter committed sexual intercourse with her. According to prosecutrix, there was some sound of gate and, therefore, accused pushed her from the bench and put on his pant. She also put on her clothes. One lady came, she asked the accused what was he doing with a lone child. The prosecutrix was weeping. On that, accused replied that fygwu n;k;ps vkgs (to be given in writing). Then, prosecutrix came to her house and went to sleep. After she woke up she narrated the incident to her mother. Duo went to Police Station and her mother lodged the report.

8. The evidence of prosecutrix is assailed on the ground that there was delay in disclosure of the incident by prosecutrix. It is contended on behalf of the appellant that incident took place on 18.4.2014 in the afternoon. She narrated the incident to her mother on 20.4.2014. This fact is admitted by complainant Usha in her evidence and late disclosure according to the accused makes the testimony of victim doubtful.

9. Another ground of attack from the side of defence to the evidence of prosecutrix is that her testimony is not supported by PW 7 Kusum Khadse, who immediately arrived on the spot and there is no reason for PW 7 Kusum Khadse to depose a lie. The third ground is absence of medical evidence and negative CA reports.

10. If cross-examination of prosecutrix is minutely looked into it is apparent that the entire evidence is full with material contradictions and omissions. PW 9 Dy. Superintendent Of Police Dr. Bhujbal recorded statement of prosecutrix and he admits in his cross-examination that victim had not stated about the act of sexual assault on the query raised by the lady who immediately reached the spot and response of the accused thereon. Those contradictions and omissions have been proved through evidence of Investigating Officer. The omissions are material omissions and go to the root of the prosecution case. Another circumstance which makes the evidence of prosecutrix doubtful is absence of any sign of forcible sexual intercourse in the medical evidence.

11. PW 5 Dr. Jaya Bhongade examined the prosecutrix. She states that regarding sexual assault she could not comment properly. It appears from the evidence of Medical Officer that one laceration was noticed on the private part of the victim girl. In the query report (Exh.-47) doctor had mentioned that it was a small healed injury. This injury, therefore, cannot be linked with the commission of crime. If this injury goes away then medical evidence does not support the case of prosecution. Similarly CA reports are in the negative and do not link the accused with commission of alleged acts of sexual intercourse.

12. So far as the defence of accused is concerned, we do not find it convincing and acceptable even on preponderance of probabilities. However, an important fact elicited in the cross-examination of PW 6 Dr. Ravikiran Pore, who examined the accused needs to be taken note of. Dr. Pore admitted in unequivocal terms that he did not see the erected penis of the accused and when he asked the accused to erect the penis he said "Mazyani hot naahi, Mee karat nahi" This indicates that accused was not capable of performing sexual intercourse. The burden was on the prosecution to prove that he was capable of doing such an act.

13. One more significant factor which cannot be lost sight of is evident from the evidence of PW 6 Dr. Ravikiran Pore. He found as many as seven injuries on the person of accused at the time of his medical examination. The age of those injuries was less than 30 hours. Accused on his arrest made complaint of ill-treatment at the hands of Police. All the injuries mentioned in certificate (Exh.-53) have been caused by hard and blunt object. It is not the case of prosecution that accused received these injuries at the time of alleged forcible sexual intercourse. In this situation, prosecution was duty bound to explain the injuries as accused has raised the defence that he was ill-treated at the hands of Police after his arrest. The nature and age of injuries on the person of accused indicates that investigation was not done in fair and impartial manner and in such circumstance it would not be appropriate to believe the case of prosecution as true.

14. In the light of the above and for want of sufficient evidence, we are of the view that prosecution has failed to bring home the guilt of accused beyond reasonable doubt. Hence, the following order :

The Criminal Appeal is allowed.

The conviction and sentence awarded to the appellant/accused for the offences charged with vide judgment and order dated 14.10.2015 passed by Special Judge, Warora in Special (POSCO) Cast No.07/2014 are quashed and set aside and the appellant/accused is acquitted of the offences. The fine amount, if paid, be refunded to the accused.

The order passed by the learned trial Judge in so far as disposal of property is concerned, is maintained. The appellant is ordered to be released and set at liberty forthwith if not required in any other case.

Appeal allowed.