CRIMINAL APPEAL NO.309/2017

4th December 2018

Petitioner Counsel: Mr. S. D. Chande
Respondent Counsel: Mr. N. S. Rao

Cases Cited :
Paras 6, 23, 24: State of Karnataka Vs. Shivanna @ Tarkari Shivanna; reported in 2014 ALL MR (Cri) 4484 (S.C.)
Para 7: Suryanarayana Vs. State of Karnataka; reported in (2001) 9 SCC 129
Para 18: Ram Kumar Vs. State of Rajasthan; reported in 2006 CRI. L. J. 4363 (DB)

JUDGEMENT

1. The present appeal is directed against the judgment and order of conviction passed by learned Additional Sessions Judge, Gadchiroli in POCSO Case No.1/2015 whereby the appellant is convicted for an offence punishable under Section 376 (2) (i) of the Indian Penal Code and Section 4 of the Protection of Children From Sexual Offences Act. However, he is sentenced to suffer rigorous imprisonment for ten years for an offence under Section 376 (2) (i) of the IPC and to pay a fine of Rs.5,000/-, in default to undergo further rigorous imprisonment for one year.

2. The wheels of criminal justice were set into motion by Deorao (PW1) father of the unfortunate girl by lodging his oral report-Exh. 22 on 13.11.2014 with Police Station, Mulchera, Dist. Gadchiroli.

3. One Durganath Sali (PW6), Police Sub Inspector, was attached to Police Station, Mulchera on 13.11.2014. On the basis of the oral report of Deorao (PW1), he registered an offence vide Crime No.29/2014 against the appellant for an offence punishable under Section 376(2) (i) and Sections 4 and 6 of the POCSO Act. Printed FIR is at Exh.13.

4. Oral report shows that first informant-Deorao resides at mouja Konsari and working as “Majoor” (Labour) at Bilt Paper Mill, Ashti. He is having two daughters, elder 5 years (victim) taking education in KGI at Shishu Mandir Convent, Ashti and younger daughter is 9 months.
As per the FIR, Deorao's duty at paper mill, Ashti is from 8.00 O'clock in the morning till 5.00 O'clock in the evening. Therefore, daily he used to leave his village Konsari along with his daughter, the victim for dropping her at convent and to attend the duty. From 05.11.2014, his wife Soni (PW2) was residing with her mother at Ashti for sewing class along with two daughters.
Oral report further states that since intermittently the victim used to reside at the house of her grandmother, she knows appellant-Rahul Shingade who runs a shoe shop and the victim girl used to call him as maternal uncle (Mama).
The FIR further recites that on 12.11.2014, when his wife Soni asked the victim to get one handkerchief from the shop of one Deepak Jorgelwar, the victim refused by saying that on 06.11.2014 at 4.00 O'clock when she was playing in front of the house, that time the appellant called her to his shoe shop and when she obliged the appellant, the appellant took her near him. Thereafter, removed his pant, took out his male organ and asked the little girl to have oral sex saying that she will have a milk. It is also stated in the FIR that the appellant asked the girl to lick his male organ. This fact was revealed to the first informant by his wife Soni (PW2). However, though this fact has come to know on 12.11.2014, he got the knowledge in the night and therefore on 13.11.2014, he approached to the police station and lodged the oral report at 10.00 O'clock in the morning.
After the crime was registered, the investigating officer Durganath Sali (PW6) visited the spot of incident and panchanama was drawn on 13.11.2014 itself. It is at Exh.-34. He arrested the appellant under arrest panchanama at Exh.-36, on 13.11.2014 itself. He sent the victim girl for her medical examination to General Hospital, Gadchiroli by giving a requisition to the Medical Officer, District General Hospital, Gadchiroli. It is at Exh.-37. After medical examination of the girl, he collected the medical certificate of the victim at Exh.-38. He also collected the Ossification Test report for determination of age of the victim. It is at Exh.-39. The appellant was also sent for medical examination under requisition and his medical examination report is at Exh.-41. The investigating officer also sent the sample and clothes of the victim to the Chemical Analyser. Statement of victim was also recorded before the Judicial Magistrate First Class, Chamorshi. After completion of the investigation, charge-sheet was filed.
Learned Additional Sessions Judge framed charge against the appellant for an offence punishable under Section 376 (2) (i) of the IPC and Section 4 of the POCSO Act. Appellant denied the charge and claimed for his trial. In order to bring home guilt of the appellant, in all seven witnesses were examined by the prosecution. The prosecution relied on various documents duly proved during the course of trial.
After a full fledged trial, the Court below passed the impugned judgment.

5. I have heard Mr. S. D. Chande, learned counsel for the appellant and Mr. N. S. Rao, learned A.P.P. for the State. I have also perused the notes of evidence of all the witnesses and the record and proceedings.

6. Learned counsel for the appellant submitted that there is delay in lodging the FIR. He also submitted that the victim is unable to state the day, date and time. He also submitted that the evidence of the victim is required to be discarded since there is nothing on record as to how she could recall the happenings to her done by the appellant. It is also the submission of the learned counsel for the appellant that the entire trial is vitiated for not recording statement of victim under Section 164 (5A) (a) of the Code of Criminal Procedure and thereby the investigating agency has flouted the directions given by the Hon'ble Apex Court. In view of the law laid down by the Hon'ble Apex Court in State of Karnataka .vs. Shivanna @ Tarkari Shivanna; reported in 2014 ALL MR (Cri) 4484 (S.C.). He also submitted that the Chemical Analyser's reports are nil inasmuch as no blood or semen stains were found on the clothes of the victim as well as the appellant. Though, learned counsel for the appellant wishes to rely on various judgments for effect of delay, those are not mentioned in this judgment to avoid unnecessarily burdening this judgment, since law on delay in lodging the FIR is well crystallized and is not in res integra. It is also submission of the learned counsel for the appellant that evidence of the victim is recorded in questionanswer form, without permission of Court.

7. Per contra, Mr. Rao, learned A.P.P. for State strongly opposed the submissions made by learned counsel for the appellant. He further submits that merely because the victim is of tender age that by itself is not sufficient to reject her testimony. For that he relied on the law laid down by the Hon'ble Apex Court in Suryanarayana .vs. State of Karnataka; reported in (2001) 9 SCC 129. He submitted that the prosecution has explained the delay properly and in any case merely because there is a delay, case of the prosecution cannot be thrown in dustbin as the prosecution is able to prove the finger of guilt against the accused person. He submitted that the Court below has inflicted minimum punishment on the appellant. He therefore submitted that the appeal be dismissed.

8. After considering the prosecution case and the submissions made by learned counsel for the appellant, following is the question that falls for my determination in the present case:
“Whether the prosecution is able to prove the guilt of the appellant beyond reasonable doubt and any interference is required at the hands of this Court with the impugned judgment?”
Now, I shall record my reasons for answering the aforesaid question.

9. Exh.-37 is requisition given by the investigating officer Durganath Sali (PW6) to the Medical Officer, District Hospital Gadchiroli. Accordingly, the victim (PW3) was sent for her medical examination at General Hospital, Gadchiroli. Dr. Parvin Kilnake was attached as Gynecologist with General Hospital, Gadchiroli. His evidence would show that Exh.-37 was received in the hospital along with victim and the victim was also produced in the hospital. As per the evidence of Doctor, age of the victim was 5 years. Evidence of Dr. Kilnake (PW7) shows that consent of the victim's father was obtained. The girl was also examined. Evidence of doctor would show that the history of forcible oral sex was reported to him. Accordingly, he noted the same in Medico-Legal Certificate. It is at Exh.-38. According to the doctor, though he could not find any injury on the private part, he noticed congestion over labia minor and labia majora. As per evidence of doctor, it is his opinion that sexual intercourse did not take place. However his evidence shows that he was unable to give any opinion about oral sex. Though, Dr. Kilnake (PW7) was available for cross-examination, defence declined the cross-examination of Doctor. Therefore, notes in Exh.-38 and his evidence that it was reported to him by the girl about oral sex has gone unchallenged.

10. According to the learned counsel for the appellant, case of the prosecution is required to be thrown in dustbin for lodging the FIR belatedly. It is his submission that though the incident in question has occurred on 06.11.2014, the same was reported on 13.11.2014. According to him, this delay is fatal and therefore benefit of doubt has to be extended in favour of the appellant.

11. It is trite law that merely because there is a delay, the prosecution case need not be viewed with the tainted glasses by the Court and/or that itself cannot be the ground to discard the entire prosecution case. It is always open for the prosecution to explain the delay at various stages i.e. during the course of inquiry, investigation or during the course of trial. If explanation offered by the prosecution is found to be acceptable and plausible, it is always open for the Court to accept the same and in that behalf, the delay cannot be fatal.

12. In the present case, to deal with this aspect of delay, the Court cannot forget the fact that age of the girl was below 5 years at the time of incident i.e. on 06.11.2014. The prosecution has filed document Exh.-34 a bona fide certificate of Shishu Mandir Convent where the victim is taking education in KGI and her date of birth his shown as 17.07.2010. Be that as it may. Age of the girl was never in dispute by the appellant either during the course of trial or even before this Court, learned counsel for the appellant did not raise any issue about the age and that the victim is child within the meaning of Section 2 (1) (d) of the POCSO Act. The victim girl was thoroughly cross-examined by the counsel for the appellant before the trial Court. From the nature of questions those were put to her by the learned cross-examiner, the Court can notice that most of the questions were very complex questions. It is not expected to put complex questions to a child whose age is below 5 years. Be that as it may. There is nothing in her crossexamination that there was any special reason for the girl (PW3) not to disclose happening to her till 12.11.2014 as disclosed by her to her mother. In the FIR itself, the first informant has stated that the atrocious act at the hands of the appellant upon the victim girl was reported to the mother of the victim on 12.11.2014 and when the first informant reached in the night of 12.11.2014, the said was disclosed to him by the mother Soni (PW2). The first informant has given explanation in the FIR itself that since due to night, he could not immediately approach the police station on 12.11.2014 and on next day on 13.11.2014, matter is reported.

13. Printed FIR is available at Exh.-23. Clause 3(b) of the said printed FIR shows that the matter was reported to Police Station, Mulchera on 13.11.2014 at 10.00 O'clock. Clause 5 of the printed FIR is in respect of distance and direction of the Police Station from the place of occurrence. If that particular column is properly seen then it shows that Ashti, where the incident has taken place, is 26 km. away from Police Station, Mulchera. This Court cannot forget that the first informant is only a “Majoor” and therefore it is quite possible that due to night, he was unable to travel 26 km. and the matter was reported on 13.11.2014 at police station at 10.00 O'clock in the morning. In that view of the matter, I am of the considered view that there is no delay from the date and time of receipt of the information by the first informant and delay is properly explained in the FIR itself.

14. The submission of learned counsel for the appellant that there is no eye witness account in the prosecution case is also required to be rejected since the nature of offence, which the appellant has committed, are always done if not in darkness but not within the public view.

15. It is also the submission of the learned counsel for the appellant that the shop where the incident has occurred, is situated on the main road and where various vehicles are parked, including public transport vehicles. The spot panchanama is available on record at Exh.-34. Perusal of the said clearly reveals that the spot of incident is away, about 30 ft. from the main road. The relevant recitals in the spot panchanama in vernacular are reproduced hereinbelow.
“सदरचच घटननसथळ पनहतन आलनपलल तच चचदपपर जनणनऱयन मखम य डनचबरल ररडपनसपन ३० फप ट अचतरनवर आहच. सनदर घटननसथळ शलमतल मचदन समरशच खटम चमनटच रन. आषल यनचच च दकम नन चनळलतलल असपन तयन चनळलमधयच आररपल ननव रनहहल रनजकम मनर शशगच नडच यनचच 'जगदलश' बपट हनऊस यन ननवननच चपपल जमतयनचच दकम नन एकन ससममट शवटनचच यन सललबचयन खरललमधयच आहच.”
(Looking to the aforesaid place of occurrence, it is at a distance of 30 ft. from main road of Alapalli to Chandrapur. Aforesaid spot of incident is a shop situated in chawl of Smt. Manda Suresh Khutemate, r/o Ashti and it is a chappal-shoe shop by name 'Jagdish Boot House', belonging to accused Rahul Rajkumar Shingade. This shop is situated in a room constructed in bricks and cement slab.) (Free Translation)
From the aforesaid, it is clear that the submissions made by the learned counsel for the appellant that the shop is situated at main road, is devoid of any substance and cannot be accepted.

16. According to the learned counsel for the appellant, without there being permission obtained from the Court, the evidence of the victim was recorded in question-answer form and therefore the evidence is required to be discarded.

17. I am really unable to understand this particular submission. Perusal of the record shows that prior to recording evidence of the victim, all necessary procedure and precautions as contemplated under the rules under the POCSO Act were duly followed by learned Judge. Learned Judge himself has recorded the evidence. When the learned Judge himself is recording evidence in question-answer from, I really fail to understand from which Court the appellant wants to obtain permission.

18. In that behalf, though there is no direct judgment cited by learned A.P.P., he has brought to my notice judgment of the Hon'ble Rajasthan High Court in Ramu alias Ram Kumar Vs. State of Rajasthan; reported in 2006 CRI. L. J. 4363 (DB). Paragraph 14 of the said judgment is reproduced hereunder.
“14. Even though no procedure is Laid down as to the manner of recording the testimony of child witness, we are of the opinion that the Court should record the evidence of a child witness in a question answer form. An infant may be sworn in a criminal prosecution provided such infant appears on strict examination by the Court to possess a sufficient knowledge of the nature and consequences of oath.”
In addition to that, since the learned Judge of the Special Court himself has followed all procedure and took all precautions and measures before recording evidence of the child the victim, I have no hesitation in my mind to reject the submissions made by the learned counsel for the appellant being not only untenable but devoid of any substance and made only to consume precious time of the Court.

19. The evidence of the victim shows that she knows the appellant and she used to call him as Rahul Mama (maternal uncle). Thus, the said fact shows how much respect this tender aged girl was giving to the appellant. It appears that the appellant has destroyed the entire confidence of the victim in respect of the relations for her entire future life and the scar that must have cast in her heart and mind can never me mitigated. To very specific question that what Rahul mama has done, the victim has replied as under,
“He has put his urinary organ in my mouth and asked to suck like milk.”
This type of act is not an act of any normal person but this shows the pervert mind and attitude of the appellant towards the girls, especially the tender aged girl and that also shows that he has a scant respect for any human relationships. The victim has also stated this heinous act on the part of the appellant as done in his own shop. Perusal of the cross-examination, which was also in the nature of question and answer form, more specifically question nos. 16, 17 and 19, specifically shows that the little girl has denied that she is deposing before the Court as per the say of her parents. Thus, tutoring on the part of her parents to the victim is completely ruled out. To question no.23, she has specifically stated that since nobody has inquired with her, she has not disclosed the fact to anybody.

20. The question will be then how the heinous act came into light. Evidence of Soni (PW2) who is mother of the victim, asked the victim to bring handkerchief from the shop of Dipak Jorgelwar and she refused. That time Soni was breast-feeding her 9 month old daughter. On noticing the said, as per the evidence of Soni, the victim realised that the appellant (Rahul mama) has done the same thing to her and narrated the incident.

21. After amendment to Section 375 of the IPC there is a drastic change in the definition of rape. Clause (a) of Section 375 reads as under:
“375. A man is said to commit "rape" if he— a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or...”
Section 3 of the POCSO Act defines penetrative sexual assault. Clause (a) of Section 3 of POCSO Act reads as under:
“3. Penetrative sexual assault.-
A person is said to commit "penetrative sexual assault" ifa. he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or”
In the present case, undisputedly, victim is a child. Appellant has not only asked the victim to suck his male organ but he put his male organ into the mount of the child. Therefore, the appellant has completed offence of rape as contained in Section 375 of the IPC and also done the act of penetrative sexual assault on the child as contemplated in the POCSO Act.

22. Before entering into the witness box and before stating all the facts, the Court observed in the preceding paragraph of this judgment that the victim was referred to Dr. Kilnake (PW7) for her examination and Exh.-38 the medico-legal certificate has clear cut recitals about disclosure on the part of the victim to state the Doctor about the oral sex. The said is dated 14.11.2014. Thus, contemporary document also corroborates the evidence of the courageous girl. In addition to that, as observed in the earlier paragraph of this judgment, Dr. Kilnake (PW7) was not crossexamined at all. Rather, the defence declined to crossexamine him. Therefore, authenticity of the document and its contents are proved beyond doubt by the prosecution.

23. Another limb of submission of the learned counsel for the appellant is that the investigating officer has failed to adhere to the directions given by the Hon'ble Apex Court in State of Karnataka .vs. Shivanna alias Tarkari Shivanna (supra). According to him, no statement as contemplated under Section 164 of the Cr.P.C. is recorded and the said is not on record.

24. In that behalf, I would like to observe here that in the examination-in-chief the investigating officer has stated as under.
“Later the statement of the victim was recorded before the J.M.F.C., Chamorshi.”
This particular submission is not challenged in the cross-examination of the investigating officer. No doubt true that the said statement is not available on the record. However, I am not going to accept the submission made by the learned counsel for the appellant that for non availability of statement under Section 164 of the Cr.P.C. of the child, the entire trial vitiates. The reason is that it is not cross-examination on the part of the appellant to the investigating officer since the statement of the girl which was later recorded before the Judicial Magistrate First Class, Chamorshi was in favour of the appellant, therefore, willfully the said statement is withheld and/or suppressed by the prosecution. Further, submission of the learned counsel for the appellant is to be rejected because if any lapse is committed on the part of the investigating officer, for that justice cannot be made victim. Of course, it was the duty of the investigating officer to place the said statement before the Court. However, neither the victim nor her father, who was a labour, was having any control or influence on the investigating officer. They are rustic villagers. It appears that the learned A.P.P. who was incharge of the brief was also in slumber and the investigating officer and the learned A.P.P. in the most casual manner has conducted this serious case. Had a sense of seriousness was shown in the matter, the argument which the learned counsel for the appellant is now making before this Court would not not have been available with the appellant. In any case, for the fault or lapses committed by the investigating officer, the prosecution case cannot be said to have been vitiated, especially when in the examination in chief itself it is brought on record that the statement of the victim was recorded by the learned Magistrate at Chamorshi. In that view of the matter, the reliance placed by the learned counsel in the matter of State of Karnataka, supra is highly misplaced.

25. Another submission of learned counsel for the appellant is that the Chemical Analyser's reports are not supporting the prosecution inasmuch as according to him, no blood and/or semen stains were found on the clothes of the appellant as well as the victim. The said cannot be expected at all in view of the fact that it was never the claim of the victim that the appellant discharged anything either in her private part or in her clothes. Therefore, the said submission of the appellant is also required to be rejected.

26. Here, I would like to mention that the appellant has examined two persons as defence witnesses namely; Anil Khobragade (DW1) and Dushyant Mandal (DW2). However, their evidence is of no value nor it supports the appellant.

27. Another submission of the learned counsel for the appellant is that he is falsely implicated in the matter since the room in which he runs his shop, belongs to the grandmother of the child and there is a dispute for vacation of the said room.

28. In my view, said defence is taken only for the purpose of defence. When the appellant was examined under Section 313 of the Cr.P.C., to question no.56, he has answered as under:
“I do not know the victim and her parents. Other witnesses are their relatives. There was dispute over shop between my father and grandmother of victim. Her grandmother said that if premises of the shop is given to her they would tell the truth. As I refused to accept that, the witnesses deposed against me.”
Except this, there is no material available on record to show that at any point of time, grandmother of the victim asked vacation of the premises. Further, at one breathe, the appellant is stating that he does not know who is the victim and at the second breathe he is saying that at the instance of the grandmother of the victim, witnesses are telling falsehood before the Court. Though, lacunae in the evidence or falsity of the evidence can never be a ground for conviction, if the defence is found to be untrue then it is always open for the Court to consider the said as one of the factor against accused while imposing conviction and punishment.

29. On reappreciation of the entire prosecution case and after giving thoughtful consideration to it, I am of the view that the prosecution has successfully proved its case beyond reasonable doubt against the appellant.

30. Before parting with the judgment, I would like to observe that it is a fit case wherein the Police Department shall take appropriate steps against Durganath Sali (PW6) Police Sub Inspector, the investigating officer who has not given proper attention to the matter by not placing the statement on record by Judicial Magistrate First Class, Chamorshi before Court of law. Therefore, Director General of Police, Maharashtra State shall take appropriate steps in the matter against Durganath Sali, who was attached to Police Station, Mulchera as Police Sub Inspector on 13.11.2014 so as to see that in future neither him nor any police officers commits such lapses which may give leverage in the hands of the persons like the appellant to make a submission that for non filing of the statement under Section 164 of Cr.P.C., the entire trial is vitiated and shall place the report before this Court in respect of the steps taken by the said authority.

31. Conspectus of the aforesaid discussion leads me to pass the following order.
ORDER
(i) The appeal is dismissed.
(ii) Impugned judgment and order of conviction dated 17.06.2017 passed by the Additional Sessions Judge, Gadchiroli in POCSO Case No.1/2015 is confirmed.