Shivaji Ramchandra Tirlotkar v. The State of Maharashtra

2 Heard Smt. Patil, learned Advocate for the Appellant and Smt. Kaushik, learned APP for the Respondent-State. Perused entire record.

3 The victim in the present crime was aged about 5 years on the date of lodgment of the crime and with a view to protect her identity and in consonance with the provisions of Section 228(A) of the IPC and Section 33(7) of the POCSO Act, the detailed narration of the facts and other details disclosing identity of the victim and/or her mother are hereinafter avoided.

4 The prosecution case in nutshell is that, the Appellant was neighbour of the informant i.e. the mother (PW-1) of victim (PW-2) for number of years. They were having cordial relations and therefore the daughter of the informant (PW-1) i.e. victim herein (PW-2) and her nephew used to visit the house of Appellant for playing. On the date of incident, i.e. on 4th February, 2016, the victim was aged about 5 years and was taking education in Senior K.G.. That, on 4th February, 2016, when the informant had been to the water tap for fetching water, she noticed that her daughter near the gutter and was trying to pass urine. However, she started shouting loudly as there was burning sensation at the time of passing urine. Informant (PW-1) therefore inspected private part of the victim (PW-2) and noticed that, it had turned reddish. She therefore, applied “Ghee” to her private part. The informant made inquiry with the victim and after taking her into confidence, the victim confided with her mother and disclosed that, when she was playing outside in the noon at about 4.00 p.m., the Appellant called her inside his house and took her on its loft along with the mobile headphone which was in the said room. The victim accordingly took the said headphone on the loft. The Appellant played with the victim for some time and thereafter he removed her legging and inner wear and penetrated his penis in the vagina of victim and committed penetrative sexual assault with her. Due to the said act of the Appellant, victim started crying. The Appellant allowed the victim to leave the said place by giving threats not to disclose the said incident to anybody. Informant thereafter took the victim to Dr. Bhagyashree B. Mete (PW-3) who examined the victim and advised informant to report it to the police. Informant (PW-1) along with her husband thereafter went to Bhandup Police Station and registered crime No.51 of 2016. Police Sub Inspector, Sahadev L. Bhosale (PW-9) recorded first information report and started investigation. He immediately conducted spot panchanama (Exh-28) in presence of panch witness Pradip G. Munde (PW-4). He referred the victim for medical examination to Lokmanya Tilak Municipal Medical College & General Hospital, Sion, Mumbai (for short, “LTMGH Sion, Mumbai”). The concerned hospital issued medical reports. PSI Bhosale (PW-9) arrested the Appellant. During the course of investigation, the police referred the victim (PW-2) to the learned Metropolitan Magistrate, 54th Court Mazgaon, Mumbai for recording her statement under Section 164 of the Code of Criminal Procedure (for short, “the Cr.P.C.”). Learned Magistrate recorded statement of victim under Section 164 of the Cr.P.C. (Exh-16) on 26th February, 2016. After receipt of necessary reports and completion of investigation, PW-9 submitted chargesheet before the Special Court.

5 Trial Court framed charge below Exh-3 under Sections 376, 506 of the IPC and under Sections 4, 6, 8 and 12 of the POCSO Act. The contents of the said charge were read over and explained to the Appellant in vernacular language. Appellant pleaded not guilty and claimed to be tried. The defence of Appellant, which can be gathered from the crossexamination of the informant (PW-1) is of false implication, due to his quarrel with her brother and/or close relatives.

6 Prosecution examined in all 9 witnesses in support of its case namely, mother of victim (PW-1); Victim (PW-2)’ Dr. Bhagyashree B. Mete (PW-3), Doctor, examined the victim at the first instance; Pradip G. Munde (PW-4), panch witness to seizure of clothes of victim (Exh-21) and spot panchanama (Exh-28); Jitendra Ghadi (PW-5) panch witness to seizure of clothes of Appellant (Exh-23); Amol H. Kulkarni (PW-6) Police Officer, seized clothes of victim and Appellant as per punchanamas (Exh-21) and (Exh-23) respectively; Ms. Sujata S. Shelke/Smt. Sujata Sandip Sargar (PW-

7) Police Officer, recorded statement of mother of victim and the victim; Mr. Anil Sonawane (PW-8) Investigating Officer and Sahadev Bhosale (PW-9) Police Sub-Inspector, recorded first information report, effected spot panchanama (Exh-28) and conducted earlier part of investigation and was also part of investigation team. The Trial Court, after recording evidence and hearing the learned Advocates appearing for the respective parties was pleased to convict and sentence the Appellant as noted hereinabove.

7 Smt. Patil, learned Advocate for the Appellant submitted that, the informant (PW-1) while narrating history to the Medical Officer of the LTMGH, Sion, Mumbai has stated that, the Appellant tried to insert his penis in the vagina of victim. That, in her statement recorded under Section 164 of the Cr.P.C., the victim has stated that, the Appellant placed his organ of urination on her place of urination. However, the victim in the evidence before the Court has narrated about penetrative sexual assault. She submitted that, the prosecution has thus made improvements in its version of commission of alleged sexual assault. She further submitted that, in the Medical Reports (Exhs-23A and 23-B), the Medical Officer has stated that, hymen of the victim was intact and no bleeding and Oedema /Tears were noticed in clinical examination. That, Medical Officer has also stated in the said reports that, Labia Majora, Labia Minora and Clitoris found intact without any injuries. She therefore submitted that it cannot be stated that, the Appellant committed penetrative sexual assault on the victim as defined under Section 3(a) of the POCSO Act. That, conviction of the Appellant therefore under Sections 4 and 6 of the said Act is not proper. She submitted that, in the cross-examination of PW-1, the Appellant has tried to put his defence of false implication due to the quarrel and/or dispute with the brother of the mother of victim. According to her, it is the reason, the Appellant was falsely implicated in the present case. She further submitted that, the room where the alleged act was committed by the Appellant is situated in a densely populated area and the cries of the victim would have been certainly heard by the people in the vicinity which according to her did not happen and therefore the version of the prosecution may not be believed. She therefore submitted that, the impugned Judgment and Order may be quashed and set aside by allowing the present Appeal.

8 Per contra, learned APP vehemently opposed the Appeal and submitted that, there is no reason to disbelieve the version of the victim who had to undergo the ordeal of sexual assault at the hands of Appellant. Learned APP however fairly submitted that, once Appellant is convicted under Sections 4 and 6 of the POCSO Act, separate conviction under Sections 8 and 12 of the said Act which are of lesser gravity is not warranted. She submitted that, the testimonies of the mother of victim (PW-1) and the victim (PW-2) herself are reliable and trustworthy and needs no further corroboration in that behalf. She therefore submitted that, the Appeal being without any merits, be dismissed. 9 PW -1 in her testimony has stated the facts upto lodgment of crime as noted in para No.4 above and reproduction of the same is hereby avoided for the sake of brevity. In her cross-examination, suggestions were given to her to the effect that, Jitendra Ghadi (PW-5) is her foster brother. That, the said Jitendra Ghadi used to take objection to the Appellant’s playing Banjo. That, according to the said Jitendra Ghadi and other residents of the said Chawl, Appellant used to play Banjo loudly, which caused trouble to them and therefore the Chawl Committee had issued a letter to the Appellant. That, the members of the said Chawl were suffering due to the loud playing of Banjo by the Appellant. Except the admission that, Jitendra Ghadi is her foster brother, rest of the suggestions have been denied by PW-1. In the cross examination of Sahadev Bhosale (PW-9), vital admission detrimental to the interest of Appellant has been brought on record. PW-9 has admitted that, during the course of investigation, it was not brought to his notice about any quarrel between the family of informant and Appellant. The said witness has also denied the suggestion that, the Appellant has been falsely implicated on the say of the informant without carrying proper investigation. It is thus clear that, the alleged defence of the Appellant of false implication has not been proved by him by leading cogent evidence in that behalf.

10 This leads me to deal with the testimony of the victim (PW-2). The victim in her testimony has stated that, on the date of incident, the Appellant called her on the mezzanine floor with headphone. She therefore went on mezzanine floor. Thereafter, the Appellant removed her legging and moved his penis on her private part. He thereafter put her underwear and asked her to go. At that time the Appellant gave threat to her that, he will end her life if she discloses this incident to anybody. That, at the time of urination she was having pain and thereafter her mother took her to the police station. In her cross-examination, the suggestion given to her that, she has falsely implicated the Appellant at the behest of her mother, has been denied. She has further denied that, since there was a family fight between her family and the family of Appellant, the Appellant has been falsely implicated at the behest of her mother. She further denied that, she has made a false case against the Appellant.

11 Though the Medical Reports (Exh-23A) submitted by the Medical Officer of the LTMGH Sion, Mumbai mentions that, the hymen of the victim was intact and the Labia Majora, Labia Minora and Clitoris found intact without any injuries it is not helpful to the Appellant. The Supreme Court in the case of Ranjit Hazarika Vs. State of Assam reported in (1998) 8 SCC 635 has held that, non rupture of hymen or absence of injury on victim’s private parts does not belie her testimony as she nowhere stated that she bled per vagina and her statement remained virtually unchallenged in cross-examination. That, to constitute rape penetration, however slight is sufficient. It is further held that, opinion of doctor that no rape was committed, cannot throw out an otherwise cogent and trustworthy evidence of the prosecution case. The supreme Court in the case of Aman Kumar & Ors. Vs. State of Haryana reported in AIR 2004 SC 1497 held that, the evidence of prosecution in a rape case stands at higher pedestal than injured witness and needs no corroboration. The Supreme Court in the case of State Himachal Pradesh Vs. Shree Kant Shekhari reported in AIR 2004 SC 4404: (2004) 8 SCC 153 has held that, the prosecutrix is not accomplice in crime of rape.

12 In the present case, this Court finds that, the testimony of victim (PW-2) is fully trustworthy and reliable. The victim was aged about 5 years when she was subjected to the said ordeal by the Appellant. She was an innocent child and had no reason at all to falsely implicate the Appellant at the behest of her mother. The version of the victim clearly discloses the act committed and defined under Section 3(a) of the POCSO Act by the Appellant with her. Even if the Medical Officer has stated that, he did not find injuries on the private part of the victim as noted hereinabove, in his opinion has stated that, evidence of sexual intercourse/assault cannot be ruled out.

13 Taking into consideration the testimony of victim and other evidence available on record, this Court finds that the act alleged against the Appellant falls within the purview of Section 3(a) which is punishable under Section 4 of the POCSO Act. Admittedly, the victim was below the age of 12 years and therefore Section 5(m) of the POCSO Act is also applicable. For an offence committed under Section 5(m), punishment is prescribed under Section 6 of the POCSO Act. The date of commission of offence is 4th February, 2016. The Trial Court has awarded sentence of 15 years for an offence committed under Section 6 of the POCSO Act. Amendment to Section 6 came into effect from 5th August, 2019. Prior to the said amendment, minimum sentence prescribed under Section 6 was of 10 years of rigorous imprisonment.

14 Taking into consideration the allegations made against the Appellant and the medical evidence relied upon by the prosecution, this Court is of the view that, the sentence imposed by the Trial Court upon the Appellant under Section 6 of the POCSO Act can be reduced to 10 years of rigorous imprisonment.

15 The Appellant has also been convicted under Sections 8 and 12 of the POCSO Act. As is rightly submitted by the learned APP that once the accused is convicted under Sections 4 and 6 of the POCSO Act, separate conviction under Sections 8 and 12 of the POCSO Act, which prescribes punishment for sexual assault and sexual harassment respectively, will have no application in the eyes of law. According to me, the said submission deserves to be accepted. This Court is of the view that, conviction of the Appellant under Sections 8 and 12 is therefore redundant and is accordingly set aside.

16 The Appellant is held guilty under Sections 4 and 6 of the POCSO Act and under Section 506 of the IPC. The conviction of the Appellant therefore is upheld under Sections 4 and 6 of the POCSO Act. The sentence imposed upon the Appellant under Section 6 of POCSO Act of 15 years by the trial Court is hereby reduced to 10 years of rigorous imprisonment. The fine amount imposed by the trial Court is maintained. Impugned Judgment and Order dated 24th June, 2019 passed by the trial Court is modified to that extent only.