Jitendra Rajmohan Mazi v. The State of Maharashtra

1 By this appeal, the appellant has impugned the judgment and order dated 21st November 2016, passed by the learned Special Judge, SQ Pathan 1/22 Sindhudurg at Oros in Special Case No.44 of 2015, convicting and sentencing him as under: - for the offence punishable under Section 376(2)(i) of the Indian Penal Code r/w Sections 4, 6 and 8 of Protection of Children from Sexual Offences Act, to suffer rigorous imprisonment for 12 years and to pay a fine of Rs.10,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 1 year; - for the offence punishable under Sections 363 and 366 of the Indian Penal Code, to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.500/-, in default of payment of fine, to suffer further rigorous imprisonment for 50 days. - for the offence punishable under Section 506(2) of the Indian Penal Code, to suffer rigorous imprisonment for 1 year and to pay a fine of Rs.500/-, in default of payment of fine, to suffer further rigorous imprisonment for 50 days. All the aforesaid sentences were directed to run concurrently.

2 In the intervening night of 30th September 2015 and 1st 2015, PW 1-`X’ (minor girl aged 7 years) was kidnapped from the lawful guardianship of her parents from the Sindhudurgnagari Railway Station, where they were sleeping and taken by the appellant towards a close-by SQ Pathan 2/22 forest area, where she was sexually assaulted by the appellant. After the sexual assault on `X’, she returned to the platform and informed her parents about the same. PW 7-Arun Shetye, Senior Station Master, on learning of the incident of sexual assault on `X’, immediately informed the police of Sindhudurgnagari Police Station. When the police reached, the appellant fled from the place where he was residing with others. PW 2 – mother of `X’ lodged a complaint/FIR on 1st October 2015 at 4:00 p.m. The appellant was arrested from Oros on 1st October 2015. Thereafter, statements of witnesses came to be recorded under Sections 161 and 164 of the Criminal Procedure Code. After investigation, charge-sheet was filed as against the appellant in the Court of the learned Special Judge (POCSO). Charge was framed as against the appellant, to which, the appellant pleaded not guilty and claimed to be tried. The prosecution, in support of its case, examined 18 witnesses i.e. PW 1-`X’ (minor aged 7 years); PW 2-mother of `X’ and complainant; PW 3-Satyawan Malave, panch to the (i) spot panchanama dated 1st 2015 (Exhibit 20), (ii) arrest panchanama dated 1st October 2015 (Exhibit

21) and (iii) recovery of clothes worn by the appellant at the time of the incident, under Section 27 of the Evidence Act dated 2nd October 2015 SQ Pathan 3/22 (Exhibit 24); PW 4-Ajit Angsali, who had seen one girl weeping and running towards the railway platform on 1st October 2015 at 12:15 a.m; PW 5-Rohidas Munde, Assistant Chemical Analyser, who proved the DNA report (Exhibit 180); PW 6-Chetan Mhadgut, Medical Officer, Civil Hospital, Oros, who examined the appellant on 1st October 2015 (the medical report of the appellant is at Exhibit 34); PW 7-Arun Shetye, Senior Station Master, who had informed the Sindhudurgnagari Police Station and identified the appellant as being the person sleeping on the bench on the railway platform, where `X’ was sleeping with her parents on 30th September 2015; PW 8-Mandar Dhuri, panch to the test identification parade carried out on 3rd October 2015 at the Tahsil Office, Kudal; PW 9- Balasaheb Joshi, Medical Officer at Civil Hospital, Sindhudurg, who examined victim-`X’ on 1st October 2015 at 2:00 a.m (the medical certificate is at Exhibit 43); PW 10-Gama Jankar, who was working as a Site Supervisor with Ajit Kajve; PW 11-Shashikant Sawant, Police Head Constable, Oros, who carried the sealed articles for depositing the same to the Forensic Science Laboratory on 2nd October 2015; PW 12-Minakshi Rathod, Ladies Police Naik, Oros, who recorded the complaint/FIR of PW 2 (mother of `X’); PW 13-Mahesh Paste, who arrested the appellant from Oros; PW 14-Gourav Nagzarkar, who handed over the OPD casepapers of the appellant; PW 15-Anirudha Gavade, PSI, Sindhudurgnagari SQ Pathan 4/22 Police Station. The said witness seized the clothes of `X’ from PW 2 (mother of `X’); PW 16-Pravin Lokare, Executive Magistrate, Kudal, who conducted the test identification parade on 3rd October 2015 at about 4:30 p.m. and PW 17-Padmaja Chavan, Deputy Superintendent of Police and the Investigating Officer. After the prosecution examined its witnesses, the statement of the appellant was recorded under Section 313 of the Criminal Procedure Code. The defence of the appellant was that of denial and false implication. According to the appellant, as Ajit Kajve, his employer had not paid him for three months, there was a quarrel between him and Kajve, as a result of which, he was removed from work. According to the appellant, he was falsely implicated in the said case at the instance of his employer-Ajit Kajve. After hearing the parties and after considering the evidence on record – both, oral and documentary, the learned Special Judge, Sindhudurg at Oros, convicted and sentenced the appellant as stated in para 1 above.

3 Learned counsel for the appellant submitted that the prosecution has not established the identity of the appellant as being the SQ Pathan 5/22 very person, who was sleeping on the platform of the railway station, where `X’ was sleeping with her family, on the intervening night of 30th September 2015 and 1st October 2015. She further submits that the identification of the appellant by witnesses i.e. PW 1-`X’, PW 2-mother of `X’ (complainant) and PW 7-Arun Shetye, Senior Station Master, cannot be relied upon, inasmuch as, the incident had taken place at midnight, and as such there was no opportunity for anyone to see the appellant. She also assailed the DNA report, which shows that the blood found on the appellant’s clothes was that of `X’. She further submits that the prosecution ought to have examined Sandesh Samant, Suresh Sharma, Ajit Kajve and Naresh, to show the complicity of the appellant in the alleged crime. She submits that non-examination of the said witnesses was fatal to the prosecution case.

4 Learned A.P.P submitted that no interference was warranted in the impugned judgment and order. He submitted that the prosecution, by leading cogent evidence, had proved beyond reasonable doubt, that it was the appellant who kidnapped `X’ and thereafter sexually assaulted her. He submitted that the appellant has been identified by PW 2- mother of `X’ and PW 7- Arun Shetye, Senior Station Master, in the test identification parade held on 3rd October 2015. He submitted that even PW 1-`X’ has identified SQ Pathan 6/22 the appellant in Court. According to the learned A.P.P, the evidence of PW 1-`X’, PW 2-mother of `X’ and PW 7-Arun Shetye, Senior Station Master, is duly corroborated by the medical evidence on record as well as the DNA report.

5 Perused the papers with the assistance of the learned counsel for the appellant and the learned A.P.P. Having gone through the evidence and the documents on record and having heard the submissions advanced by the respective parties, I am of the opinion that no interference is warranted in the impugned judgment and order of conviction and sentence passed by the learned Special Judge, for the reasons set-out hereinunder. 6 PW 1-`X’ (minor aged 7 years), has, in her evidence, stated that she was studying in the 4th standard, at her native place and had come to Oros, 3 to 4 months prior to the date of incident. She has stated that her father was ill and that they were taking him to Kudal from Oros and hence, had come to the railway station; that as they missed the train i.e. Diva Passenger Railway, they were sitting in front of the railway booking office; that one person was sitting on the platform and was looking towards them; that they slept on the railway platform; that the said person also slept on one of the benches at the railway platform; that at about 12 midnight, the said SQ Pathan 7/22 person picked her up and took her at a distance of about 5 to 10 minutes, in a jungle, removed her nicker and slept on her person; that blood started oozing from her private part; that the said person threatened her that if she disclosed the incident to her parents, he would kill her by throwing a stone on her; that she told him that she would not disclose it to her parents and that if her parents asked her, she would tell them that she went to answer the nature’s call; that the said person left her in the jungle and went away; that she walked towards the railway station from the said spot, seeing the light of the railway station; that on reaching the railway station, she disclosed the incident of sexual assault to her mother, by the person sleeping on the bench; that her mother disclosed the incident to the railway station master; and that she was taken to the hospital, where she was treated. PW 1-`X’ has further stated that her statement was recorded by the police and thereafter, before the Court. She has stated that the said person was wearing a black coloured pant and a shirt having squares, when he was at the railway station and has given his description. She has also deposed with respect to the clothes worn by her and has identified the said clothes i.e. blue skirt having blood stains (Article 11), nicker having blood stains (Article 13) and blue shirt (Article 12). She has further stated that her statement was recorded by the Chief Judicial Magistrate, Oros (Exhibit 12). She has identified her thumb impression on the said statement. The witness has also identified the SQ Pathan 8/22 appellant as being the same person, who kidnapped her and thereafter, sexually assaulted her. A perusal of the cross-examination shows that the said witness has withstood the cross-examination. Nothing material has been brought on record in the cross-examination of the said witness to disbelieve or discredit her testimony. The suggestion given to the said witness that she was deposing falsely at the instance of her mother, has been denied by her. It is pertinent to note that certain questions were put to the said witness before her evidence commenced, to ascertain whether she understood the questions put to her and to ascertain whether she understood the sanctity of oath. The learned Judge, after confirming that the witness understood the sanctity and importance of oath, administered oath to the said witness-`X’.

7 The evidence of PW 1-`X’ with respect to her kidnapping and of sexual assault on her, is duly corroborated by PW 2 (mother of `X’). PW 2 (mother of `X’ ) has deposed that `X’ was 7 years of age at the relevant time; that as her husband was unwell, they were taking him to a dispensary at Kudal; that her husband, son and `X’ were with her; that they went to the railway station at Oros at about 7/7:30 p.m, as they were to take the Diva Passenger train; that as they missed the train, they stayed at the SQ Pathan 9/22 railway station; that one person was sitting on a bench by their side for some time; that after some time, the children fell asleep and hence, they too went to sleep near the office of ticket booking; that at about 00:30 hours, `X’ came crying and disclosed that the person sitting on the bench had gagged her mouth, lifted her and taken her towards the jungle, where he removed her nicker and slept on her; that he put his private part in hers, due to which, there was oozing of blood; that she saw `X’ and they all started weeping; that the Railway Master came and asked them why they were weeping, pursuant to which, she disclosed the said incident. PW 2 has further stated that the Railway Officials went in search of the said person and that the Railway Officials also called the police. She has further stated that `X’ was taken to the hospital. PW 2-mother of `X’, has identified the complaint given by her. The same is at Exhibit 14. The same was recorded at about 4:00 a.m. on 1st October 2015. According to PW 2, her statement was also recorded before the Chief Judicial Magistrate. She has identified her thumb impression on the said statement which is at Exhibit 15. PW 2 has further stated that she was called to the jail at Sawantwadi for identifying the accused. She has stated how she identified the appellant, who was standing at serial No. 5 in the row by touching him. PW 2 has also identified the clothes worn by `X’ at the time of the incident i.e. Articles 11, 12 and 13. SQ Pathan 10/22 In the cross-examination, PW 2 has admitted that the unknown person who had taken her daughter-`X’, had worn black pant and shirt having checks and that there were no other passengers there. She has also admitted that her son and daughter were sleeping together. Several suggestions were put to the said witness, however, the said suggestions have been denied by her. She has also denied the suggestion that she had identified the appellant by mistake in the identification parade. She has denied the suggestion that she had falsely filed the complaint/FIR, as against the appellant. The evidence of PW 2 inspires confidence and there is nothing on record to disbelieve the said witness or discredit her testimony. It is pertinent to note that the incident is alleged to have taken place on the intervening night of 30th October 2015 and the identification parade was held promptly, within two days thereafter i.e. on 3rd October 2015 and as such, PW 2, having seen the appellant at the railway station, where they were sitting and later sleeping, could well identify the appellant. Therefore, the question of making a mistake in identifying the appellant is completely ruled out.

8 Infact, the evidence of PW 1-`X’ and PW 2-mother of `X’, is corroborated by PW 7-Arun Shetye. PW 7 has stated that he was serving as a Senior Station Master at Sindhudurgnagari, at the relevant time. He SQ Pathan 11/22 has stated that he came to the railway station on 30th September 2015 at 10:45 p.m, and saw one couple sleeping along with two children in front of the ticket booking office. He has stated that he saw one more person sleeping on a cement platform before them; that the said person was dark in colour and was aged between 30 to 35 years. He has stated that at around 12:20 a.m, when he was at the counter, one small girl came weeping and was disclosing something to her mother; seeing the girl weeping, he asked his colleague-Sandesh Sawant to make inquiry as to why the said girl was weeping; that Sandesh Sawant went and asked PW 2 (mother of `X’) and on return, disclosed that the person sitting on the platform had raped her daughter. PW 7-Arun Shetye has further stated that on learning of the same, he went outside and verified; that he found that `X’ was bleeding from her mouth and that there was blood at the spot where she was sitting; that the parents of `X’ informed him about the incident, pursuant to which, he asked his employees to take search of the said person; that they learnt that the said person was working at the railway site; that the employees went to the site and inquired as to who had gone to sleep at the railway station; that the employees learnt that a person by the name Jitendra (appellant) had fled; that they learnt that the appellant was working as a driver on the vehicle of Ajit Kajve, pursuant to which, he was called, after which, `X’ was taken to the hospital. PW 7-Arun Shetye has identified the SQ Pathan 12/22 appellant as being the same person, who was sleeping on the platform. He has also stated that he informed the police about the said incident. The said witness has also stated that he was called to Sawantwadi jail for identifying the accused; that he identified the appellant, who was standing at No. 3 in the row, by touching him, before the Tahsildar. He has also admitted that on 8th October 2015, his statement was recorded before the Chief Judicial Magistrate under Section 164 of the Criminal Procedure Code. PW 7-Arun Shetye has admitted his signature as it appears on the said statement (Exhibit 38). In the cross-examination, certain minor omissions were brought on record i.e. there is no mention of the name of Sandesh Sawant in his statement before the Chief Judicial Magistrate. However, the said omission is not a material omission, which goes to the root of the case. PW 7-Arun Shetye, in his cross-examination, has denied that on the date of the incident, he had left the railway station premises and that he was deposing falsely that he had seen the appellant sleeping on a cement platform opposite to where PW 2-mother of `X’, was sleeping with her family. PW 7-Arun Shetye was present on duty at the relevant time. There is no reason to disbelieve his presence at the railway station at the SQ Pathan 13/22 relevant time, nor there is any reason to disbelieve his evidence that he had seen the appellant sleeping on the cement platform, opposite to where PW 2-mother of `X’, was sleeping with her family. Nothing is brought on record in the cross-examination to show why PW 7 – Arun would falsely depose against the appellant, more particularly, when the appellant was not even known to the said witness.

9 Merely because Ajit Kajve (employer of the appellant), who took PW 1-`X’ to the hospital, was not examined, does not, in any way, cast a shadow of doubt on the prosecution case, more particularly, when prosecution had examined all the relevant witnesses.

10 It is pertinent to note that the prosecution has also proved the 164 statements of witnesses i.e. PW 1-`X’, PW 2-mother of `X’ and PW 7- Arun Shetye, recorded before the Chief Judicial Magistrate. There is nothing to disbelieve the recording of the said statements before the Chief Judicial Magistrate. All the three witnesses have stood by their statements and there is no material omission/contradiction brought in the evidence of the said witnesses. SQ Pathan 14/22

11 In this context, it would also be apposite to note, that the test identification parade was conducted by PW 16-Pravin Lokare, Executive Magistrate, on 3rd October 2015. In order to prove the test identification parade, the prosecution has examined PW 16- Pravin Lokare, Executive Magistrate as well as PW 8-Mandar Dhuri, panch to the test identification parade, which was conducted at the Tahsil Office at Kudal. A perusal of the evidence of both, PW 8-Mandar Dhuri and PW 16-Pravin Lokare with respect to the test identification parade conducted on 3rd October 2015, inspires confidence. In the said test identification parade which was conducted, both PW 2-mother of `X’ and PW 7-Arun Shetye, Senior Station Master, have identified the appellant as being the person, who was sitting on the platform. Thus, the identity of the appellant is clearly established by the prosecution.

12 The aforesaid evidence is duly corroborated by the medical evidence. PW 9-Dr. Balasaheb Joshi examined PW 1-`X’ on 1st 2015 at 2:00 a.m. Dr. Joshi, in his evidence, has stated that he was attached to the Civil Hospital as Casualty Medical Officer on 1st October 2015. He has stated that at about 2:00 a.m, `X’ was brought to the Civil Hospital; that her parents were with her; that he inquired with the prosecutrix, who SQ Pathan 15/22 disclosed the history of sexual assault on her; on physical examination, he found that PW 1-`X’, aged 7 years old, was bleeding from her vagina, had swollen lacerations, labia minora bilateral laceration 1 cm in length, lateral vaginal wall laceration 1 cm, small tear on right side of hymen. On gynecological examination by gynecologist, following injuries were found:

1. One degree perennial tear with bleeding with edema of edges.

2. Lateral vaginal wall tear measuring 1 cm x 0.[5] x 0.[5] cm. Bilateral bleeding plus swelling present.

3. Paraurethral tear measuring 1 cm in length.