Bombay High Court
Sanjay S/O. Rangnath Haware vs The State Of Maharashtra on 14 December, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:29596-DB
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 1 ::
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.391 OF 2020
Sanjay s/o Rangnath Haware
age 29 years, Occu. Labour,
R/o Rohanwadi, Taluka and
District Jalna ... APPELLANT
VERSUS
1) The State of Maharashtra
Through Police Station,
Taluka Jalna, District Jalna
(Copy to be served on Public
Prosecutor, High Court of Bombay,
Bench at Aurangabad)
2) XYZ ... RESPONDENTS
.......
Mr. R.A. Jaiswal, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent No.1
Smt. Ranjana Reddy, Advocate for respondent No.2
.......
WITH
CRIMINAL APPEAL NO.158 OF 2022
Nitin Fakira Salve
age 25 years, Occu. Labour,
R/o Rohanwadi, Taluka and
District Jalna ... APPELLANT
VERSUS
1) The State of Maharashtra
(Copy to be served on Public
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 2 ::
Prosecutor, High Court of Bombay,
Bench at Aurangabad)
2) XYZ ... RESPONDENTS
.......
Mr. S.J. Salunke, Advocate for appellant
Mrs. S.N. Deshmukh, A.P.P. for respondent No.1
Smt. Ranjana Reddy, Advocate for respondent No.2
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 4th December, 2024
Date of pronouncing judgment : 14th December, 2024
JUDGMENT (PER : R.G. AVACHAT, J.) :
Both these Appeals have been preferred against
the judgment and order of conviction and consequential
sentence, passed by the learned Judge, Special Court, Jalna
(Trial Court) in Spl. Case (Child) No.52/2015, on 19/3/2020.
The appellants have been convicted for the offence punishable
under Section 376-D of the Indian Penal Code and for the
offence punishable under Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act). They
have been sentenced to suffer imprisonment for life, which
shall mean imprisonment for the remainder of their life and
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 3 ::
directed to pay fine of Rs.20,000/- (Rupees twenty thousand)
each, in default, to undergo R.I. for three years for the offence
punishable under Section 376-D of the Indian Penal Code. No
separate sentence has been awarded for offence punishable
under Section 6 of the POCSO Act.
The appellants have been acquitted of the offences
punishable under Sections 392, 323, 506 read with Section 34
of the Indian Penal Code as well as of the offences punishable
under Section 14 of the POCSO Act and under Sections 66-E,
67-B(e) of the Information and Technology Act, 2000.
2. Briefly stated, the facts of the prosecution case
before the Trial Court were as follows :-
"X" (victim) was 17 years of age. She was a student of Second/ Third Year of Commerce stream. "S"
(P.W.2) was her boy friend. Both of them got acquainted with
each other on social media i.e. on victim’s Facebook account.
The victim accepted offer of “S” for friendship. It was just
10/12 days before the fateful day. On 4 July 2015, both of
them met together. Earlier “S” had obtained the victim’s
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 4 ::
photographs and cell phone number. He had asked her to
come to a particular place. From the photograph sent by the
victim, he could identify and joined her. After having roamed in
the city (Town Jalna), the duo went to their respective houses.
3. It was again on 6 July, both of them met each other.
After having parked their respective vehicles (Scooties), they
went towards Firing Butt area. It was little past 8.00 p.m. Both
of them thereafter went to somewhat secluded place. Two
persons/ boys (appellants) came there. For the sake of
convenience, we refer to the appellants as A/1 and A/2 in
chronological order of their appeals. A/2 was sporting red cap.
He was armed with a stick. Both of them claimed to be police
personnel. They threatened “X” and “S”. One of them
assaulted “S” with a stick. The appellants asked “X” (victim) to
remove clothes from her person. A fatty person Kailash
(P.W.6) came there. Untoward incident appears to have
averted thereby. Two friends of “S” happened to come there.
The appellants had taken charge of the victim’s cell phone. On
the intervention of friend of “S”, they returned the phone. “X”
and “S” both thereafter left for their respective houses.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 5 ::
4. The victim “X” parked her Scooty in the parking slot
of the apartment wherein she was residing. She realised her
cell phone was not working. Both the appellants immediately
came there. They told her that the battery of her cell phone
was lying at the place whereat they were sitting earlier. The
victim had to join them to get the battery of her cell phone.
After having walked a while, they asked her to ride pillion on
their motorbike. She had to. The duo i.e. appellants took her
to a jungle area through another road. Both of them committed
sexual intercourse with her against her will. It is alleged that,
both of them videographed each other’s sexual intercourse
with the victim. The incident was stated to have lasted for two
hours. Then they gave the victim her clothes to put on. She
worn the clothes. Both of them dropped her off nearby her
residence. After having been to her residence, she related the
incident to her mother. It was also related to her father on his
return from night shift. On the following day, by 15.05 Hrs. the
victim lodged the First Information Report (F.I.R. Exh.33) at
Taluka Jalna Police Station. A crime vide C.R. No.171/2015
was registered for offences punishable under Sections 376(D),
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 6 ::
392, 170, 506, 323, of the Indian Penal Code, Section 5(g)
read with 6 of the Protection of Children from Sexual Offences
Act, Section 66(E), 67(B)(e) of the Information Technology Act
and Section 135 of the Maharashtra Police Act.
5. The victim was medically screened on the next day.
Clothes on her person were seized. One of the appellants was
arrested. The crime scene panchanama was drawn.
6. As per the case of the prosecution, A/2 again went
to the residence of the victim and under the pretext of handing
over cell phone, made her to accompany him to a secluded
place. The matter was already reported to the police. One of
the police officer had assured the victim to go along with her
and he will follow them. Her father too claimed to have
followed her after a while. She, therefore, joined him. He again
took her to another secluded jungle place and committed rape
of her.
(This is the subject matter of Special Case No.51/2015 in
Appeal No.424/2020 which will be dealt with
independently).
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 7 ::
7. A/2 was arrested at the Railway Station. Two cell
phones were seized from him. Appellants also gave disclosure
statements, pursuant to which cell phones, red cap, stick and
motorbike came to be seized. The test identification parade
was held. Statements of persons acquainted with the facts
and circumstances of the case were recorded. On completion
of investigation, charge sheet was filed against both the
appellants in relation to the first incidence. Another charge
sheet was filed against appellant Sanjay (In Criminal Appeal
No.424/2020).
8. The Trial Court framed the charge. Appellants
pleaded not guilty. Their defence was of false implication.
9. To bring home the Charge (Exh.25), the
prosecution examined 13 witnesses and produced in evidence
certain documents. On appreciation of the evidence in the
case, the Trial Court convicted the appellants and
consequently sentenced them as stated above.
10. Heard. Both the learned Advocates representing
the appellants would submit that, the case was solely based on
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 8 ::
the evidence of the victim. The medical evidence does not
support the prosecution case. On going through the evidence
of the victim, no one will certify her to be a witness of sterling
quality. It was submitted by the learned Advocate Mr. Salunke
that the Trial Court committed a grave error. The co-appellant
was prosecuted separately in relation to another similar
offence against the same victim. In that case, the prosecution
adduced evidence as to the age of the victim. Certified copies
of the said evidence were produced in this case. The Trial
Court relied on the same so as to hold the victim to be a child.
This appellant thereby lost an opportunity to cross-examine the
prosecution witnesses in that regard. Evidence in one case
cannot be relied in another one unless the parties thereto give
consent. He relied on the following authorities :
(1) Sadashiv Ramrao Hadbe Vs. State of Maharashtra &
anr. [ 2006 (1) SCC 92(2) Narender Kumar Vs. State (NCT of Delhi)
2012 CRI.L.J. 3033(3) Chandrashekhar Ramdas tabhane Vs. State of
Maharashtra [ 2022 91) ABR (Cri.) 128 ](4) Ajit @ Lalya Dilip Veer Vs. State of Maharashtra & anr.
2022 (2) Mh.l.j. (Cri.) 237
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 9 ::
11. Both the learned Advocates ultimately urged for
allowing the appeals.
12. The learned A.P.P. would, on the other hand,
submit that the victim had given her date of birth in her
examination-in-chief. The same was not challenged. Moreover,
the victim had given her date of birth along with the School
Leaving Certificate to the Medical Officer (P.W.5 Dr. Snehlata),
who testified in her evidence that the date of birth of the victim
was 17/3/1998. There was no denial to this piece of evidence
in the cross-examination of the Medical Officer. Even the
certified copies of documents relating to the age of the victim
produced in Spl.Case No.51/2015 were filed in this case.
These documents reinforce the victim’s date of birth was
17/3/1998. According to her, the appellants in both the cases
were represented by one and the same Advocate. He was in
the know of the evidence adduced in both the cases. These
two appellants, therefore, could not be heard to say the
prosecution to have failed to make out the victim was a child.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 10 ::
13. The learned A.P.P. would further submit that, she
has placed on record certain authoritative pronouncements
indicating that even no marks of injuries were found on the
person of the victim or at her private part, the same does not
lead to disbelieve her evidence. The appellants have taken
the defence of total denial. But, in fact, they themselves have
brought on record their presence. In this regard, she relied on
Page 17 para 12 whereat suggestion was given that, after
having sat on the motorbike of the appellants, the victim did
not raise shouts as she knew that the appellants were taking
her to a particular place. Another suggestion given to P.W.2
was pressed into service. The same was to the effect that
when accused (appellants) came near to them, at that time,
other persons were nearby the temple. The learned A.P.P.
meant to say the appellants themselves have admitted their
presence. She would further submit that, the defence of the
appellants that both, the victim and P.W.2 had made a plan to
take ransom from the father of the victim and make a false
story of rape so that no one will marry her except P.W.2, was
highly improbable thing. This suggestion was not given to the
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 11 ::
victim. According to her, the evidence of all the witnesses was
consistent, reliable and trustworthy. The appellants were
identified in the test identification parade. It is for the
appellants to rebut the presumption under Sections 29 and 30
of the POCSO Act. The learned A.P.P. has relied on the
following authorities to buttress her submissions.
(1) Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat
AIR 1983 SC 753(2) B.C. Deva @ Dyava Vs. State of Karnataka
2007 AIR (SC) (Supp) 678(3) State of Uttar Pradesh Vs. Babul Nath
1994(3) Crimes (SC) 230The learned A.P.P. and learned Advocate for
respondent No.2 urged for dismissal of the appeals.
14. Considered the submissions advanced. Perused
the evidence on record. Also perused the judgment impugned
in these appeals. Let us turn to the evidence on record and
appreciate the same. Before adverting thereto, it must be
mentioned that the facts here and there makes all the
difference in application of authoritative pronouncements relied
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 12 ::
on, particularly in criminal matters. True, the authorities relied
on would be a good guide. No two cases could be identical on
facts.
15. The evidence of the victim was to the effect that in
the year 2015, she was taking education in Commerce stream.
She was First Year student of B.Com. P.W.2 “S” was her boy
friend. The evidence on record indicates that he was younger
to her. He was just in 10th Standard. He became her friend
on social media, i.e. on the victim’s Facebook. The victim
accepted P.W.2’s offer of friendship. It was just 12 days before
the incident dated 6/7/2015. Her evidence further disclose
that, she sent her photographs and cell phone number to
P.W.2. The same suggests both of them were even not
knowing each other and ever met also. On the request of
P.W.2, the victim met him on 4 July. Both of them roamed in
the city of Jalna in the evening and went to their respective
homes post 8.00 p.m. According to the victim, since she was
residing in Jalna from her First Standard till mid-graduation,
she knew all the places of the city of Jalna.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 13 ::
16. The victim’s evidence further disclose that, on the
request of P.W.2, she again met him by little past 8.00 p.m. on
6 July. She left her house on her Scooty. They met near
Nhava Chowki. Both of them went to Firing Butt area. Both
were sitting at a secluded place. Two persons/ boys
(appellants) came there. A/2 was sporting red cap. He was
armed with a stick. Both of them claimed to be police
personnel. They threatened “X” and “S”. One of them
assaulted “S” with a stick. The appellants asked “X” (victim) to
remove clothes from her person. A fatty person (P.W.6) came
there. Untoward incident appears to have averted thereby.
Two friends of “S” happened to come there. The appellants
had taken charge of the victim’s cell phone. On the
intervention of friend of “S”, they returned the phone. “X” and
“S” both thereafter left for their respective houses.
17. The victim “X” parked her Scooty in the parking slot
of the apartment wherein she was residing. She realised her
cell phone was not working. Both the appellants immediately
came there. They told her that the battery of her cell phone
was lying at the place whereat they were sitting earlier. The
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 14 ::
victim had to join them to get the battery of her cell phone.
After having walked a while, they asked her to ride pillion on
their motorbike. She had to. The duo i.e. appellants took her
to a jungle area through another road. Both of them committed
sexual intercourse with her against her will. It is alleged that,
both of them videographed each other’s sexual intercourse
with the victim. The incident was stated to have lasted for two
hours. Then they gave the victim her clothes to put on. She
worn the clothes. Both of them dropped her off nearby her
residence. After having been to her residence, she related the
incident to her mother. It was also related to her father on his
return from night shift. On the following day, by 15.05 Hrs. the
victim lodged the First Information Report (F.I.R. Exh.33) at
Taluka Jalna Police Station.
18. The victim further testified that she was born on
17/3/1998. She had handed over photo copy of her School
Leaving Certificate in proof of her date of birth while the F.I.R.
was registered. She underwent medical screening two days
after the incident. She even handed over her clothes to the
police. Those were – White Jeans pant, dusty colour top,
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 15 ::
black knicker. The clothes were seized under the panchanama
(Exh.34). She identified those clothes before the Court.
19. The victim further testified that she had been to
Jalna Jail on 14/7/2015. 12 persons were standing in a row.
She identified both the appellants who were standing between
Dummy Nos.5 and 6 and 8 and 9 respectively. She too
referred to her statement recorded under Section 164 of the
Cr.P.C. The same is at Exh.35. According to the victim, her
mobile phone was of Micromax make, black in colour. She
identified the same. She even identified both the appellants
before the Court.
20. The victim was subjected to a searching cross-
examination. She admitted to have become friend of P.W.2
through Facebook. The place whereat both of them were
sitting on the fateful night belongs to Forest Department. She
claimed ignorance that over 500 persons come to that place
every day for morning and/or evening walk. At a distance of 2
minutes walk there was Dattashram. She claimed ignorance
about 200 to 300 persons visiting the said Ashram daily
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 16 ::
morning and evening. On the opposite side of the spot, there
was S.R.P. Ground. There was temple of Kankaleshwar as
well. She denied the suggestions that while both of them were
talking to each other, many persons were walking from that
spot. She could not state the names to whom Shubham
(P.W.2) had made phone call and who arrived in response
thereto. She admitted that her love affair with P.W.2 was going
on at the time of the incident. While leaving the house, she
had told her mother that she was going to meet her friend.
She had raised shouts when the appellants tried to remove her
clothes forcibly. Friends of P.W.2 came within 10 minutes.
Although it was dark, she could notice the appellants in mobile
light. She denied that, by that time, both of them (herself and
P.W.2) were engaged in coitus. She admitted that at the time
of the first incident, the appellants did not take her cell phone.
While leaving the spot, she picked up her cell phone lying on
the ground. Until she reached her residence, she did not
realise to have been followed by anyone. Her cell phone was
not in a broken condition. The building in which she was
residing was comprised of four flats. She joined the appellants
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 17 ::
on their motorbike believing that they will not harm her. One
fatty person (P.W.6 Kailash) came at the time of the first
incident. He scolded them. The appellants took her to the
isolated place via Chaudhari Nagar Road and not by
Dattashram. She denied to have not raised any shout while
she took a seat on their motorbike. According to her, clothes
on her person were not torn. There was bleeding from her
private part at the time of second sexual intercourse. The
thorn pierced her back. Except this, no other injury was
suffered by her. Video shooting of sexual intercourse was
made in her cell phone. She had raised shouts when the
incident was being committed. After the incident, she sat on
the motorbike of the appellants. As she was crying, she did
not notice the motorbike minutely. She went on to state to
have had given three slaps to A/2 so as to prevent him from
committing sexual intercourse. She had taken bath before she
went to the Police Station to lodge the report. Her mother did
not check up her physically after she narrated her the incident.
According to her, she had even met the Superintendent of
Police, Jalna, namely Jyoti Priya Singh. She denied to have
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 18 ::
cooked up a false story only with a view to hide her love affair
with P.W2. She denied the police had shown her the
appellants before going to jail for identification parade.
21. Evidence of P.W.2 as regards the first incident is
almost consistent with the evidence of P.W.1. We, therefore,
do not propose to reproduce the same. According to him,
while they were sitting nearby Kankaleshwar Mandir, the
appellants came. They claimed to be police personnel. They
snatched their cell phones. By that time, two persons reached
there on motorbike. One of the two earlier unknown persons,
therefore, hid himself behind the tree. One of the two who
came on motorbike was his friend – Vijay Bhagat. He related
Vijay that those unknown persons (appellants) had taken their
cell phones. Vijay assured that he would manage to get their
cell phones back. Accordingly, he took their cell phones from
appellants and gave it to the victim and P.W.2. The cell phone
of the victim was not working. He asked her to see what had
happened with it after reaching home. Then Vijay sat on his
motorbike and victim started on her Scooty. According to him,
the unknown persons (appellants) told them that they had lost
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 19 ::
their key and, therefore, they went inside the jungle area. Both
of them (victim and P.W.2) came to Mantha Chaufuli and then
left for their respective residence.
22. According to P.W.2, on the following day, he was
summoned to the Police Station. His statement was recorded
in relation to the incident. His statement was also recorded by
J.M.F.C., Jalna. A month after the incident, he had been to
Jalna Jail and identified the appellants in test identification
parade.
23. During his cross-examination, it has been brought
on record that, he had love affairs with the victim. The affair
was just 15 days old. He was studying in 10th Standard while
the victim was First Year student of Commerce stream.
According to him, at an isolated place both of them were sitting
close to each other. They had held their hands together. He
did kiss her and they hugged each other as well. He has,
however, denied that he had sexual intercourse with her that
time.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 20 ::
24. During cross-examination, according to him, no
other person than Vijay and one another person had been
there. He denied that, he could not see the appellants due to
darkness. According to him, A/2 had assaulted on his leg with
a stick. He was, however, medically examined 8 days
thereafter. He denied that, with a view to avoid the victim’s
marriage with someone else they cooked up a story of the
victim to have been subjected to rape so that no one will be
ready to marry her. He also denied to have made another plan
to get ransom from victim’s father.
25. P.W.3 was the father of the victim. He was not
home while the victim returned late in the night of 6 July 2015.
He returned home by 11.00 p.m. after his duty hours were
over. His evidence is as regards what was related to him by
the victim. According to him, as it was somewhat late in the
night, they preferred to approach the police station on the
following day.
26. In short, the father of the victim gave evidence
explaining the delay in lodging of the F.I.R.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 21 ::
27. P.W.8 Sagar is a panch witness to the seizure of
the clothes of the victim, under panchanama Exh.34. The
clothes were delivered by the victim herself to the police on 7
July by 5.30 p.m.
28. P.W.5 Dr. Snehlata medically examined the victim
on 8 July 2015. Her evidence would be referred to while
appreciating/ analysing the evidence in the case.
29. P.W.6 Kailash was a witness to the first incident
dated 6 July 2015. He testified that, on hearing noise from
jungle area of Forest Department, he went to that side. He
noticed three boys and a girl there. He asked them what they
were doing. He snatched stick from the hand of one boy. That
boy was of black complexion. The other was also of the
similar complexion with a scar on his face. He could see them
in the torch light. He then identified both the appellants in test
identification parade on 14 August 2015.
30. The learned A.P.P. brought to our notice arrest
panchanama of A/2 to indicate that he was of black complexion
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 22 ::
with a scar on his face. According to her, evidence of P.W.6
reinforces the prosecution case in relation to the first incident
dated 6 July 2015.
During cross-examination of this witness, the
topography of the area, which has already been brought on
record through the cross-examination of other witnesses and
crime scene panchanama has again been brought on record.
According to him, Vijay Bhagat (friend of P.W.2) was the son of
his maternal uncle. This witness, however, did not state that,
Vijay Bhagat was there.
31. P.W.7 Babasaheb is a witness to the disclosure
statement made by A/2. It is at Exh.61. He disclosed that he
would take out his cell phone and cap. Accordingly, he took
the police and panchas to a slum area of Rohanwadi. The
appellants’ house was thereat. He entered the house. Others
followed. He took out a cell phone kept below the bed and
also removed the cap which was hanged on the wall. Both
these articles were seized under panchanama Exh.62. The
cell phone seized has been described in the panchanama as
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 23 ::
of Micromax make Model Q-372. However, in the evidence the
description of the cell phone has not been given by the witness
or the police officer (P.W.11 Shaikh Rafiq) who recorded A/2’s
disclosure statement.
32. P.W.2 is a witness to the seizure of clothes of A/2
on his arrest on 10 July. The panchanama in that regard finds
place at Exh.65.
33. P.W.11 Shaikh Rafiq is a police officer who did the
investigation of the crime (C.R. No.171/2015). His evidence
indicates what steps she did take for collection of evidence
during the investigation of the crime. We, therefore, do not
propose to refer to his evidence in extenso. During cross-
examination, he testified that, A.P.I. Pawar was placed under
suspension in connection with this case. According to him,
when he issued letter to the Medical Officer post registration of
the F.I.R. same day, the victim refused to undergo the
medical screening.
34. P.W.12 Dixitkumar was another police officer who
did the investigation. He arrested A/2 and seized red colour
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 24 ::
cap and Micromax make cell phone pursuant to the disclosure
statement made by him. During cross-examination, he
testified that the father of the victim, in spite of repeated
demands, could not produce birth certificate or any other
document in proof of date of birth of the victim. While P.W.13
Sunil is a police officer. His evidence indicates he arrested A/2
at Railway Station, Jalna and seized two cell phones on search
of his person. One was of Micromax. The other one was of
Nokia Company. He seized the same under panchanama
(Exh.86).
35. Aforesaid was the evidence adduced by the
prosecution to bring home the charge. Oral and written
submissions of the learned A.P.P. are very much on our minds
besides the authorities relied on by her. The charge sheet was
filed against both the appellants. At the cost of repetition, it
has to be stated that they have been sentenced to undergo
imprisonment for life, which shall mean till the end of their
natural life. One of them (A/1 Sanjay) was 24 years of age,
while the other (A/2 Nitin) was of 19 while the charge was
framed. It needs no mention that serious is the offence stricter
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 25 ::
shall be the proof. Both the appellants have been behind the
bars for about 9 and half years. Admittedly, A/2 was also
prosecuted for the offence of rape committed on the victim
three days after the one in question. The trial of that offence
took place separately. Some documentary evidence was
adduced therein in proof of the age of the victim.
36. No witness was examined in this case in proof of
the age of the victim. Certified copies of the evidence in that
case were produced in this case in proof of the victim’s age.
Non-examination of the witnesses who were examined in that
case to prove those documents caused prejudice to A/1 and
necessarily to A/2 as well in this case as they did not have
opportunity to cross-examine them. Needless to mention,
evidence in one case cannot be read in the other one unless
parties thereto agree to admit the same in evidence. Nothing
of that sort has happened in this case. the victim in her
evidence gave her date of birth as 17/3/1998. Her evidence in
that regard is necessarily hear-say. Her entire evidence in fact
has been challenged suggesting that she was deposing false
although there is no specific denial as regards the age stated
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 26 ::
by her. By no such specific denial, inadmissible evidence
cannot become admissible. Then the learned A.P.P. relied on
the cross-examination of the Medical Officer who medically
screened the victim. She is P.W.5 Dr. Snehlata, wherein she
testified that, on asking the victim, she told her date of birth –
17/3/1998. This piece of evidence is hear-say. According to
the Medical Officer, the victim had shown her the School
Leaving Certificate in which her date of birth was mentioned. If
we take this evidence as it is, there is no further evidence to
suggest that this witness i.e. doctor stated the date of birth
which was recorded in the School Leaving Certificate. Section
65 of the Evidence Act speaks of cases in which secondary
evidence of a document may be given. While Section 63
defines the secondary evidence. Sub-section (5) thereof reads
thus :
“(5) oral accounts of the contents of a document
given by some person who has himself seen it.”
37. At the cost of repetition, it is stated that, P.W.5 Dr.
Snehlata did not state that such and such date of birth was
recorded in the School Leaving Certificate shown to her. By no
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 27 ::
stretch of imagination, therefore, it could be said that the
prosecution has proved in this case that the victim was below
18 years of age.
38. Admittedly, P.W.2 had become the victim’s boy
friend just 12 to 15 days before the incident took place. They
were not acquainted with each other even facially therebefore.
Their friendship became on P.W.2’s offer therefor having been
accepted by the victim on social media. Within days of their
acquaintance, only on social media, the victim sent P.W.2 her
photographs and cell phone number. Admittedly, the victim
was Second/ Third Year student of Commerce stream while
P.W.2 was 10th Standard student. P.W.2 was younger than
the victim. The victim had been staying at Jalna since she was
admitted to the school in 1st Standard. She admitted to have
known each and every area of the town/ city of Jalna. On the
given day i.e. 6 July 2015, she left her residence on her Scooty
to meet her boy friend – P.W.2 on his request. Her family
members were not in the know of their friendship. She had to
speak lie to her mother that she was leaving to meet her friend
(necessarily girl). As planned, she met P.W.2 at Navha
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 28 ::
Chaufuli, Jalna. Both of them parked their vehicles in the
nearby. Both of them then went to Firing Butt area. It was
admittedly a secluded place. S.R.P.F. Ground was nearby.
People used to visit that place for morning and evening walk.
At that time, no one was around. Necessarily, the couple
chose such a place to meet where there would be no
disturbance of others. Both were engaged in presexual act. It
was suggested that they were engaged in coitus. The same
was denied. Both the appellants suddenly appeared there.
They threatened the duo, claiming to be police personnel. One
of them hit on the leg of P.W.2 with a stick. P.W.2 was,
however, medically examined 8 days after the incident,
although his police statement was recorded on the very next
day. As such, there is no medical evidence of an assault.
Both the appellants asked the victim to remove clothes from
her person. The same suggested the intention of the
appellants was ill. According to P.W.1 victim, P.W.2 in the
meanwhile made a phone call to his friends. His two friends
appeared there in a while on motorbike. P.W.2 requested one
of those two to help out them in the matter. He assured. Since
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 29 ::
the cell phone of the victim was said to have been taken
charge of by the appellants, on the intervention of P.W.2’s
friend Vijay Bhagat (not examined), the cell phone was
returned to the victim. Then they dispersed. Close reading of
the evidence of P.W.2 would suggest that he nowhere states
arrival of P.W.6 (fatty man). He even did not claim to have
made any phone call to any of his friends. According to P.W.2,
Vijay Bhagat and another person suddenly came there. It is
mysterious as to how P.W.2’s friends arrived there without
being called to them and on his intervention the cell phone of
the victim is returned. Thereafter the victim and P.W.2 came to
the place whereat their two wheelers were parked and then
went back to their respective houses.
39. According to the victim, both the appellants
followed her. While she was parking the Scooty and checking
with her cell phone, she realised it was not working. While the
evidence of P.W.2 indicates that the victim had realised the cell
phone was not in working condition at the crime scene itself.
Her evidence further indicates that both the appellants told her
that battery of her cell phone was lying at the place whereat
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 30 ::
she was with her boy friend. They asked her to accompany
them to get back the battery. When she enquired them as to
why did they not bring the battery with them, they questioned
her as to whether they were her servants. She, therefore,
accompanied them. After walking a while, she sat on the
motorbike as a second pillion rider. According to her, she took
the seat since the appellants told her that when she treated
them her brothers why she did not trust them. Her evidence
further indicates that she was taken to the very area but by
different road. She had realised the same. In our view, the
same might have happened by 9.30 or 9.45. Their motorbike
went through the crowded area. The victim neither shouted
nor did she try to jump from the motorbike. She did not claim
that it was being run in such a speed and therefore jumping
was risky. Her evidence further indicates that, after going
through to earlier spot, she was handed over the battery. Both
the appellants took her further inside area of the jungle. Both
of them took turns to have sexual intercourse with her against
her wish. The victim claimed to have shouted that time and
even slapped A/2. According to her, the incident lasted for two
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 31 ::
hours. Meaning thereby, it was little past 11.00 p.m. Her
evidence further indicates that, both the appellants then gave
her clothes to put on. She came on the main road along with
them on their motorbike and then returned to her residence.
According to her, the appellants had retained her cell phone.
The recording of rape was made in her cell phone. On her
return to the house, she related her trauma to her mother,
sister and father as well. We are conscious of the fact that,
considering the nature of offence and reputation of a common
girl being at stake, it was but natural for the family to take
some time to approach the police. Accordingly, the F.I.R. was
lodged on the following day by little past 3.00 p.m. against
unknown persons. The F.I.R. is silent to give the description of
the culprits except their age group. True, P.W.6 (fatty man)
gave the description of the culprit. It is also true that the victim,
P.W.2 and this witness identified the appellants in the test
identification parade that was held in the jail. At the cost of
repetition, it is stated, it is a mysterious as to how come Vijay
Bhagat came on the scene without there being call by
Shubham. Shubham did not say that P.W.6 was there along
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 32 ::
with Vijay nor did P.W.6 vouch for the presence of Vijay
Bhagat. This makes the presence of P.W.6 (fatty person) at
the crime scene doubtful.
40. After registration of the F.I.R., the investigating
officer had written letter to the Medical Officer to screen the
victim medically. The victim refused to undergo medical
screening at first instance. She was medically screened on the
third day of the incident. It was P.W.5 Dr. Snehlata who
medically screened the victim. The medical examination report
finds place at Exh.45. She gave her opinion as follows :-
(1) No evidence of signs of recent coitus/ evidence of old
ruptured hymen. No evidence of any marks of
resistance.
(2) No evidence of of any injury anywhere over body. No
evidence of any injury over breasts, chest & over
genitals.
(3) She is capable of sexual intercourse. She may not be
habitual.
(4) Pubic hair, vaginal swabs, blood sample & nails collected
and sealed for C.A. & handed over to the police.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 33 ::
41. There is no evidence to indicate whether the
articles stated in clause No.4 above were sent to FSL. If at all
sent, who carried the same. The C.A. reports have not been
placed on record. The same gives rise to raise an adverse
inference. The medical screening report does not reinforce the
prosecution case. True, in one of the suggestions the presence
of the appellants, as suggested by learned A.P.P., is made out.
It is a serious offence. The prosecution has to travel from
‘may’ to ‘must’. There is long gap between the two. When
according to the victim the rape act was recorded in her cell
phone and the cell phone was seized, it is not known as to why
the same (recording) was not made part of evidence in proof of
the offence.
42. The learned A.P.P. relied on Sections 29 and 30 of
the POCSO Act. For better appreciation, we reproduce both
the Sections below :
29. Presumption as to certain offences.– Where
a person is prosecuted for committing or abetting
or attempting to commit any offence under sections
3, 5, 7 and section 9 of this Act, the Special Court
shall presume, that such person has committed or
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 34 ::
abetted or attempted to commit the offence, as the
case may be unless the contrary is proved.
30. Presumption of culpable mental state. –
(1) In any prosecution for any offence under this
Act which requires a culpable mental state on the
part of the accused, the Special Court shall presume
the existence of such mental state but it shall be a
defence for the accused to prove the fact that he
had no such mental state with respect to the act
charged as an offence in that prosecution.(2) For the purposes of this section, a fact is said
to be proved only when the Special Court believes
it to exist beyond reasonable doubt and not merely
when its existence is established by a
preponderance of probability.
Explanation.– In this section, “culpable mental
state” includes intention, motive, knowledge of a
fact and the belief in, or reason to believe, a fact.”
43. Sections 35 and 54 of the Narcotic Drugs and
Psychotropic Substances Act are para materia with Sections
29 and 30 of the POCSO Act relied on by learned A.P.P. The
Apex Court, in case of Noor Aga Vs. State of Punjab & anr.,
(2008) 16 SCC 417, observed thus :
“56. The provisions of the Act and the punishment
prescribed therein being indisputedly stringent
flowing from elements such as a hightened standard
for bail, absence of any provision for remissions,
specific provisions for grant of minimum sentence,
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 35 ::
enabling provisions granting power to the Court to
impose fine of more than maximum punishment of
Rs.2,00,000/- as also the presumption of guilt
emerging from possession of narcotic drugs and
psychotropic substances, the extent of burden to
prove the foundational facts on the prosecution i.e.
“proof beyond all reasonable doubt” would be more
onerous. A heightened scrutiny test would be
necessary to be invoked. It is so because whereas,
on the one hand, the Court must strive towards
giving effect to the parliamentary object and intent
in the light of the international conventions, but, on
the other, it is also necessary to uphold the
individual human rights and dignity as provided for
under the UN Declaration of Human Rights by
insisting upon scrupulous compliance with the
provisions of the Act for the purpose of upholding
the democratic values. It is necessary for giving
effect to the concept of “wider civilisation”. The
Court must always remind itself that it is a well-
settled principle of criminal jurisprudence that
more serious the offence, the stricter is the degree
of proof. A higher degree of assurance, thus, would
be necessary to convict an accused. In State of
Punjab V. Baldev Singh [ (1999) 6 SCC 172 ] , it
was stated (SCC p. 199, para 28) :
“28. … It must be borne in mind that severer
the punishment, greater has to be the care
taken to see that all the safeguards provided in
a statute are scrupulously followed.”
(See also Ritesh Chakarvarti Vs. State of M.P.
[ (2006) 12 SCC 321 ]
57. It is also necessary to bear in mind that
superficially a case may have an ugly look and
thereby, prima facie, shaking the conscience of any
Court but it is well settled that, suspicion, however
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 36 ::
high it may be, can under no circumstances, be held
to be a substitute for legal evidence.
58. Sections 35 and 54 of the Act, no doubt, raise
presumptions with regard to the culpable mental
state on the part of the accused as also place the
burden of proof in this behalf on the accused; but a
bare perusal of the said provision would clearly
show that presumption would operate in the trial of
the accused only in the event the circumstances
contained therein are fully satisfied. An initial
burden exists upon the prosecution and only when
it stands satisfied, would the legal burden shift.
Even then, the standard of proof required for the
accused to prove his innocence is not as high as
that of the prosecution. Whereas the standard of
proof required to prove the guilt of the accused on
the prosecution is “beyond all reasonable doubt”
but it is “preponderance of probability” on the
accused. If the prosecution fails to prove the
foundational facts so as to attract the rigours of
Section 35 of the Act, the actus reus which is
possession of contraband by the accused cannot be
said to have been established.”
44. Moreover, the Apex Court, in the case of Vadivelu
Thevar Vs. The State of Madras, AIR 1957 SC 614, held :-
“11. Generally speaking oral testimony in this
context may be classified into three categories
namely :
(1) Wholly reliable,
(2) Wholly unreliable,
(3) Neither wholly reliable nor wholly
unreliable.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 37 ::
12. In the first category of proof, the court
should have no difficulty in coming to its
conclusion either way-it may convict or may acquit
on the testimony of a single witness, if it is found to
be above reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court, equally has no difficulty in
coming to its conclusion. It is in the third category
of cases, that the court has to be circumspect and
has to look for corroboration in material particulars
by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist
on plurality of witnesses in proof of any fact, they
will be indirectly encouraging subornation of
witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally has
to weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and free from
all taints which tend to render oral testimony open
to suspicion, it becomes its duty to act upon such
testimony. The law reports contain many
precedents where the court had to depend and act
upon the testimony of a single witness in support of
the prosecution. There are exceptions to this rule,
for example, in cases of sexual offences or of the
testimony of an approver; both these are cases in
which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a
single witness is entirely reliable. We have,
therefore, no reasons to refuse to act upon the
testimony of the first witness, which is the only
reliable evidence in support of the prosecution.”
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 38 ::
45. The Apex Court, in case of Santosh Prasad @
Santosh Kumar Vs. The State of Bihar (Criminal Appeal
No.264/2020, decided on 14/2/2020, has observed as to which
witness could be presumed to be a witness of sterling quality,
which reads thus :
“5.4.2 In the case of Rai Sandeep alias Deepu
(supra), this Court had an occasion to consider who can
be said to be a “sterling witness”. In paragraph 22, it is
observed and held as under :
“22. In our considered opinion, the ‘sterling
witness’ should be of a very high quality and
caliber whose version should, therefore, be
unassailable. The Court considering the version of
such witness should be in a position to accept it
for its face value without any hesitation. To test
the quality of such a witness, the status of the
witness would be immaterial and what would be
relevant is the truthfulness of the statement made
by such a witness. What would be more relevant
would be the consistency of the statement right
from the starting point till the end, namely, at the
time when the witness makes the initial statement
and ultimately before the Court. It should be
natural and consistent with the case of the
prosecution qua the accused. There should not be
any prevarication in the version of such a witness.
The witness should be in a position to withstand
the cross- examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as
to the factum of the occurrence, the persons
involved, as well as, the sequence of it. Such a
version should have co-relation with each and
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 39 ::
everyone of other supporting material such as the
recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of every other
witness. It can even be stated that it should be
akin to the test applied in the case of
circumstantial evidence where there should not be
any missing link in the chain of circumstances to
hold the accused guilty of the offence alleged
against him. Only if the version of such a witness
qualifies the above test as well as all other such
similar such tests to be applied, can it be held that
such a witness can be called as a ‘sterling witness’
whose version can be accepted by the Court
without any corroboration and based on which the
guilty can be punished. To be more precise, the
version of the said witness on the core spectrum
of the crime should remain intact while all other
attendant materials, namely, oral, documentary
and material objects should match the said version
in material particulars in order to enable the Court
trying the offence to rely on the core version to
sieve the other supporting materials for holding
the offender guilty of the charge alleged.”
46. On appreciation of the evidence in the case, we
find the sole testimony of the prosecutrix to be inadequate so
as to base a conviction for the offence of gang rape and
sustain the sentence of life imprisonment which shall mean till
end of natural life. We do not propose to summarize the
appreciation of the evidence made hereinabove.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 40 ::
47. We do not dispute what has been observed in the
judgment relied on by the learned A.P.P. The first case dates
back to 1983. The incident in question in that case had taken
place way back in 1975. Post said incident, much changes
took place in societal behaviour. The second case namely
B.C.Deva Vs. State of Karnataka (supra) suggests the
sentence imposed therein was of seven years. The incident
had taken place in 1992-93. The facts thereof would indicate
that, after appellant therein committing the offence ran away.
The prosecutrix immediately informed the incident to her
mother. In this case, the mother has not been examined. The
victim therein decided to commit suicide as she was unable to
bear the dishonour and disgrace caused to her reputation.
She even eventually jumped into a nearby water tank. She
had to be rescued. Thereafter she narrated the others the
reason for attempting to commit suicide.
48. We have already observed above that each
criminal case has to be decided on the facts and
circumstances obtainable therein.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 41 ::
49. So far as regards third case is concerned, namely
Babul Nath, the victim therein was a 5 year old girl child. The
medical examination of the victim indicated hymen was
completely torn. There was laceration to all sides of her
vagina. Fresh bleeding was also there.
50. In the case in hand, according to the victim, on the
second consecutive incident, there was bleeding from her
private part. She handed over her knicker to the police. The
C.A. report in that regard has not been placed on record. The
same is already observed hereinabove. We reiterate that, the
evidence of the prosecutrix may fall in third category above i.e.
neither wholly reliable nor wholly unreliable. Therefore, there
ought to have been a corroborative evidence specially in the
nature of medical evidence. On the contrary, the medical
evidence runs counter to the prosecution case. Adverse
inference may be drawn for non-placement on record C.A.
reports and even the video recording of the sexual assault. It
is reiterated that, the cell phone wherein it was recorded was
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 42 ::
admittedly before the Court. Mere production thereof without
disclosing what it contained is of no help for prosecution.
51. For the above reasons, we are not in agreement
with the view taken by the Trial Court. The appeals thus
succeed. Hence the order :
ORDER
(i) The Criminal Appeals are allowed.
(iii) Conviction of the appellants and the consequential
sentences, recorded by learned Judge, Special Court, Jalna
(Trial Court) in Spl. Case (Child) No.52/2015 are hereby set
aside. The appellants are acquitted of the offences punishable
under Section 376-D of the Indian Penal Code and for the
offence punishable under Section 6 of the Protection of
Children from Sexual Offences Act, 2012. The appellants be
set at liberty forthwith if not required in any other case. Fine
amount, if paid, be returned to them.
Cri.Appeal No.391/2020 with
Cri.Appeal No.158/2022
:: 43 ::
(iii) Fees of learned Advocate Smt. Ranjana Reddy,
appointed for respondent No.2 is quantified at Rs.8000/-
(Rupees eight thousand).
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-