Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 835 OF 2016
Tukaram Pandurang Mhaske
Age 56 years, r/o. Ramanmama Nagar Hutment, Near Soni Brothers, Baiganwadi, Shivaji Nagar, Govandi, Mumbai 400 043.
(presently lodged at the Nashik Jail of District Nashik, Maharashtra, Indian) .. Appellant
(at the instance of Shivaji Nagar Police
Station, Mumbai (C.R.No.244 of 2013) .. Respondent
---------
Mr. Aniket Vagal for the Appellant.
Mr. H.J. Dedhia, APP for the Respondent – State.
---------
JUDGMENT
2. The prosecution case in brief is that the victim's marriage was solemnised on 31/12/2012 with the son of the appellant. She started residing in matrimonial home after her marriage. The victim's husband was working in Blood Donation Ofce at Belapur. His duty hours were 7.00 a.m. till 6 p.m. Her father-inlaw - the appellant herein was working on the garbage van of Mumbai Municipal Corporation at Mumbai. The appellant's duty hours were from 6.00 a.m. till 10.30 a.m. The victim's mother-inlaw was working as a maid servant. Her working hours were 7.00 a.m. till 5.30 p.m. The victim's sister-in-law was a school going student. She used to leave for school at around 12.00 noon and return home around 6.00 p.m. During the absence of these family members only the victim and her father-in-law used to be there in the house.
3. Sometime in the month of July, 2013 the victim noticed the appellant started behaving inappropriately, as she noticed sexual overtures in the behaviour of the appellant. The appellant's behaviour was normal when the other family members were around. However, in the absence of the family members the appellant started demanding sexual favours. The victim was under impression that her married life will be ruined if she informed her husband about these happenings therefore ignored it. On 15/7/2013, the appellant came to the 'potmala' (mezzanine foor) of the house at around 12.30 p.m. where she was asleep and squeezed her breast. She was shocked to see the appellant upon waking up. The victim was frightened and raised her voice. The appellant, however, threatened her with dire consequences. He committed forcible sexual intercourse with her. He had closed the victim's mouth with one hand and threatened to kill her if she disclosed the incident to anyone. The victim did not disclose this incident on that day either to her husband or mother-in-law as the appellant had not only threatened to kill her but also feared that her married life will be ruined. Even on the next day on 16/7/2013, at around 12.15 p.m. the appellant committed forcible sexual intercourse with her. The appellant persisted with his threat to kill the victim if she disclosed the incident to anyone. The victim then informed her mother-in-law and her husband about this incident which they refused to believe and on the contrary, accused her of telling a lie.
4. The victim's uncle Bhagwan Bhikaji Kokate visited her matrimonial home on 11/8/2013 to take the victim to her parental home on the occasion of "Nagpanchami". Two or three days after "Nagpanchami" the victim told her mother Aruna (PW-
2) and her maternal aunt Sheela about the shameful acts committed by the appellant. PW-2 and her maternal aunt then took her to the Police Station. The victim lodged the complaint with Shivaji Nagar Police Station, Govandi, Mumbai. The Police registered a crime bearing Crime No. 244 of 2013 on August 16,
2013.
5. Shri Mushtaque Kayyum Khan (PW-5), PSI attached to Shivaji Nagar Police Station lodged the FIR (Exhibit 12) as per the say of the victim under Sections 376, 506 (II) of the IPC. PW-5 recorded the spot panchanama at Exhibit 22. From the spot, a pillow (Article 1), quilt (Article 2), saree (Article 3), petticoat (Article 4), blouse (Article 5) and knicker (Article 6) were seized. The clothes Articles 3, 4, 5 and 6 were worn by the victim at the time of the incident. PW-5 packed the articles in diferent wrappers and sealed with labels. The articles were deposited in the Muddemal Store Room of Shivaji Nagar Police Station.
6. The appellant was also prosecuted under POCSO Act as victim was below 18 years of age on the date of the incident, as Sub-section 1(d) of Section 2 of the POCSO Act defnes "child" means any person below the age of 18 years. The appellant came to be arrested on 16/8/2013. Shri Chandrakant Trimbak Patil (PW-6) then attached to Shivaji Nagar Police Station as a Police Inspector took over the investigation from PW-5. While in custody, the memorandum statement of the appellant was recorded at Exhibit 19. At the instance of the appellant his clothes Articles 7 to 10 were recovered from his house. The recovery panchanama of the clothes is at Exhibit 22. At this stage itself we would refer to the results of the analysis which indicates that no semen is detected on Articles 1 to 10 i.e. clothes of the victim as well as the appellant. Further, no blood was detected on any of the articles except Exhibit 6. The victim's knicker (Exhibit 6) is stained with blood. Though the result of the analysis indicates that the blood is human, ABO grouping indicates the result to be inconclusive. The blood group of the appellant as per the analysis at Exhibit 33 is of 'O' group whereas that of the victim is shown to belong to 'A' group.
7. Upon completion of investigation, the charge-sheet was fled before the Special Court. The charge against the appellant was framed by the Special Court for committing the ofences punishable under Sections 376 and 506 (II) of the IPC and for committing the ofence under Section 5 (l) (n) punishable under Section 6 of the POCSO Act. The charge was framed on 18/7/2014 at Exhibit 6. The appellant pleaded not guilty and claimed to be tried by his plea dated 18/7/2014 at Exhibit 7. The prosecution examined as many as six witnesses before the Special Court. The victim is examined as PW-1. The defence of the appellant / accused is of total denial. In the statement made under Section 313 of the Code of Criminal Procedure the appellant took up a defence of false implication. The Special Court convicted the appellant as stated herein before.
8. We have heard learned Counsel for the appellant and learned APP. With the assistance of learned counsel we have gone through the evidence and the judgment. We have perused the record.
9. The appellant's case is of false implication. According to the learned counsel for the appellant, maternal aunt (Sheela) of the victim had taken loan from the appellant which she did not wish to repay and therefore false allegations are made by the victim at her instance. He would submit that though the incident in question happened on 15/7/2013, the victim did not disclose this incident to her mother till 16/8/2013 despite her parental home is not very far from the matrimonial home. He would submit that the delay in fling the complaint creates doubt on the reliability and truthfulness of the victim's testimony. He would submit that in such circumstances it would be highly unsafe to base a conviction on the sole testimony of the witness without any corroboration. He would submit that in respect of an incident which has allegedly taken place on 15/7/2013, lodging of FIR after a delay of more than a month would be fatal to the prosecution case. He would further submit that in the FIR the victim has stated her age to be of 19 years and even at the time of the marriage the appellant’s family was made to believe that she is a major and hence in the present case question of the appellant’s prosecution under the POCSO Act does not arise. He would further submit that the opinion of PW-4 Dr. Shinde as to the age of victim cannot override what is provided in Modi’s Textbook on Medical Jurisprudence and therefore the doctor’s evidence determining the age of the victim on the basis of ossifcation test has to be discarded. He would then submit that in the absence of birth certifcate no reliance can be placed on Exhibit 13 which is mere extract of the admission school register as failure to examine the Headmaster attesting the said certifcate would make the certifcate (Exhibit 13) inadmissible. He would submit that it would be improper to convict the appellant on the basis of the evidence of the victim (PW-1) which appears to be concocted and made only with a view to falsely implicate the appellant. Learned counsel referring to the Forensic analysis of the clothes of the victim and that of the appellant at Exhibit 35 would submit that no semen was detected on their clothes and this is a vital piece of evidence which belies the version of the victim (PW-1) destroying the prosecution case. He would submit that the medical evidence on record falsifes the prosecution case.
10. The learned APP on the other hand supported the judgment rendered by the Special Court. He would submit that a conviction can be based on the sole testimony of the prosecution if it is otherwise truthful and reasonable. He invited our attention to the fndings of the Special Court to make good his submission that the order passed by the Special Court is not erroneous. CONSIDERATION:-
11. The evidence of the victim (PW-1) reveals that her marriage with the son of the appellant was solemnised on 31/12/2012. Let us frst deal with the objection of the learned counsel for the appellant that the prosecution under the POCSO Act is unwarranted as the age of the victim is above 18 years. To make good his submission learned counsel relied upon the ultra-sound report which is at Exhibit 26 to demonstrate that at the time of the medical examination on 16/8/2013 the victim's age was recorded as 19 years. Further, inviting our attention to the statement of the victim under Section 164 of the Code of Criminal Procedure at Exhibit 14, he pointed out that in this statement, the victim has stated her age to be of 19 years. He would submit that even in her complaint dated 16/8/2013 on the basis of which FIR came to be lodged, her age is mentioned as 19 years. The appellant’s case is that the victim's marriage was solemnised with his son as the victim was projected to be a major by her relatives and the above circumstances would illustrate that the appellant had every reason to believe that the victim was a major at the time of marriage. In such circumstances, the question of applicability of the POCSO Act does not arise according to him.
12. We are not persuaded to accept this submission of the learned counsel for the appellant. The victim was medically examined by Dr. B.S. Shinde (PW-4). The ossifcation test was conducted of the victim. PW-4 opined the age of victim to be 15 to 16 years. PW-4 deposed that the ossifcation test does not give exact age of the victim but with the margin of six months. PW-4 did not agree with the proposition in Modi's Jurisprudence that error of margin in ossifcation test is two years. He deposed that the victim was subjected to sexual intercourse.
13. It would be pertinent to refer to Exhibit 13 which is certifcate of extract of school admission register of the victim. The said extract records the date of birth of the victim as 29/6/1997. The victim (PW-1) in her examination-in-chief has stated that at the time of her marriage on 31/12/2012 she was 16 years of age. Even the ossifcation test report (Exhibit 24) supported by the deposition of Dr. Shinde refects the age of the victim as 15 to 16 years on 16/7/2013. The evidence of Doctor, the certifcate of extract of school admission register of the victim and the deposition of the victim (PW-1) are sufcient to conclude that the victim was a minor on the date of the incident. We therefore are of the opinion that the victim being a minor at the time of the commission of the ofence, the appellant has been rightly prosecuted under the provisions of the POCSO Act.
14. At this stage we may refer to sub-section (2) of Section 34 of the POCSO Act which provides that if any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. We have gone through the fndings recorded by the Special Court and do not fnd any infrmity with the determination made by the Special Court after satisfying itself about the age of the victim and has even recorded in writing in its reasons for such determination.
15. The victim married the son of the appellant on 31/12/2012. In her evidence she has stated that the duty hours of the appellant were from 6.00 a.m. till 10.30 a.m. Her mother-in-law was working as a maid servant, left for work at 7.00 a.m. and would return home only by 5.30 p.m. Her husband went for his duty at 7.00 a.m. and would return home by 6.00 p.m. Her sisterin-law attended her school between 12.00 noon till 6.00 p.m. She has deposed that during this time she and the appellant would be the only ones in the house. PW-1 further deposed that sometime from July 2013 the appellant started making sexual overtures and uttered flthy words and asked her to allow him to squeeze her breasts and used to threaten her. She deposed that she did not disclose this to her husband as she feared that her marriage life will be ruined. She has deposed that on 15/7/2013, sometime around 12.30 p.m., when nobody was in the house the appellant raped her on the potmala (mezzanine foor). She deposed that the appellant threatened to kill her if she disclosed the incident to anybody and because of the fear of the appellant the victim did not disclose this incident to her husband on that day. The appellant repeated the act on the second day i.e. on 16/7/2013. The victim was again threatened by the appellant. In the evening, she informed this incident to her husband and mother-in-law. They did not believe her and accused her of telling a lie. The victim (PW-1) further deposed that on 11/8/2013, the victim left her matrimonial home to go to her parental home for ‘Nagpanchami’ along with her uncle Bhagwan Bhikaji Kokate. 2-3 days after ‘Nagpanchami’, the victim informed about this incident to her mother and maternal aunt Sheela. Thereafter, they proceeded to the police station to lodge the complaint. In cross examination the victim says that she is not aware whether her maternal aunt Sheela borrowed some money from the appellant. The victim admitted that from 16/7/2013 till 11/8/2013 she did not tell her mother about the incident. She says that she could not inform about this because her family members did not visit her matrimonial home during this period. She denied the suggestion that she was deposing on the instructions of her maternal aunt Sheela. She denied the suggestion that as her maternal aunt Sheela did not want to repay the money to the appellant, therefore she was asked to lodge a false complaint against the appellant. Except for the suggestion that her aunt Sheela borrowed money from the appellant which victim is not aware of nothing is elicited in the cross examination to disbelieve the victim's testimony.
16. The victim's mother Aruna Ganesh Jagtap is examined as PW-2. PW-2 in her evidence narrates the incident as told to her by PW-1. In cross examination, it was suggested to PW-2 that her sister Sheela took Rs.19,000/- from the appellant for marriage expenses of the victim. She denied the suggestion that a written agreement dated 1/1/2013 was entered into between her sister Panchasheela and the appellant. PW-2 further denied the suggestion that all her sisters were present at the time of the written agreement dated 1/1/2013. She further denied the suggestion that Sheela had lodged complaints in Shivaji Nagar Police Station against the appellant in respect of the transaction. She further says as not true about disputes between Panchasheela and the appellant raised before Annabhau Sathe Samajik Sanstha. Further suggestion that PW-2 and her sister had lodged the complaint with the Shivaji Nagar police station in respect of the dispute of Rs.19,000/- is denied by PW-2. She also denied that the appellant was arrested for one day and released. PW-2 admitted that when the complaint against the appellant for committing rape was lodged, the volunteers of Annabhau Sathe Samajik Sanstha were present. She denied the suggestion that on the date of the incident the victim was 18 years of age. She denied the suggestion that the false case is fled against the appellant only because he was demanding repayment of the amount of Rs.19,000/- which Sheela had taken.
17. We fnd from the testimony of PW-1, the version of PW-1 appears to be truthful and inspires confdence. PW-1 was 16 years of age only at the time of her marriage. We fnd it difcult to believe and it is highly improbable that the allegations of the present nature would be made by PW-1 only because her maternal aunt did not want to return the money which she had allegedly taken from the appellant. Though it is tried to suggest that a written agreement dated 1/1/2013 was entered into between Sheela and the appellant, no such written agreement is produced on record. Apart from this, even written agreement dated 1/1/2013 allegedly entered into between Sheela and the appellant was one day after the marriage ceremony was over. It is not the case of the defence that the victim's mother PW-2 had borrowed money from the appellant. It seems too far fetched that the victim or her mother will ruin the victim's married life only on account of some transaction alleged to have been entered into between the victim's maternal aunt Sheela and the appellant.
18. On 15/7/2013, when the victim was raped for the frst time, the appellant had threatened to kill her if she disclosed the incident to anybody. Her fear that nobody will believe her came true when despite informing her husband and her mother-in-law on the next day after the victim was raped for the second time, they refused to believe her and on the contrary, accused her of telling a lie. We do not fnd anything unnatural in the conduct of the victim under these circumstances. PW-1 was conscious that her married life will be ruined if such serious allegations are to be levelled against the appellant – her father-in-law. It is only when she went to her parental home on 11/8/2013 that she disclosed about the incident to her mother PW-2. The victim had explained that after ‘Nagpanchami’ celebration was over, 2-3 days thereafter she gathered courage to disclose the incident to her mother PW-2. This conduct of the victim (PW-1) cannot be said to be unusual. Given the circumstances, even her husband and mother-in-law refused to believe the victim when she narrated the incident to them and on the contrary they accused her of telling a lie. The conduct of a girl only 16 years of age, having just settled in matrimony facing a prospect of ruined marriage, taking time to disclose such a shameful act can hardly be said to be unusual or unnatural. She attempted to tell her mother-in-law and husband but they refused to believe her. Nothing is elicited in the cross-examination of the victim (PW-1) to discredit or disbelieve her testimony. The only suggestion is of false implication at the instance of her maternal aunt because her maternal aunt Sheela did not want to repay the amount of Rs.19,000/- which she borrowed from the appellant. A reference to Section 29 of the POCSO Act would be material at this stage. Section 29 provides that “where a person is prosecuted for committing or abetting or attempting to commit any ofence under sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the ofence, as the case may be, unless the contrary is proved.” This would further strengthen the case of the prosecution as even from the materials on record and the defence taken it cannot be said that this presumption stands rebutted.
19. No doubt, the Forensic report reveals that semen was not found either on the clothes of the appellant or the victim, but that by itself can hardly be a ground to disbelieve the testimony of the victim if the same is otherwise found to be truthful and inspiring confdence. We do not see any compelling reasons necesseciating us to look for corroboration of her statement. It would be useful to draw support from the decision of the Apex Court in the case of State of Punjab vs. Gurmit Singh and others[1] which is relied upon by the learned APP and also referred to in its judgment by the Special Court, wherein it is held that the testimony of the victim in cases of sexual ofences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should fnd no difculty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confdence and is found to be reliable. Their Lordships have held that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
20. We may also refer to the decision of the Apex Court in the case of Aslam vs. State of Uttar Pradesh[2] wherein Their Lordships have held that where the sole testimony of the prosecutrix is inspiring confdence, there was no necessity of corroboration of evidence of prosecutrix for conviction of the accused. This position was reiterated by Their Lordships especially in the context of the Indian culture.
21. We have gone through the judgment of the Special Court. We do not fnd any error or infrmity in the view taken by the Special Court in convicting the appellant. In this view of the matter, the Appeal is dismissed.
22. This judgment will be Assistant of this Court. All concerned will act on production by fax (M.S.KARNIK, J.) (S.S.SHINDE, J.)