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2019 Supreme(Bom) 1071
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
Rohit B. Deo, J.
Manish – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 316 of 2018
Decided On : 01-07-2019
Advocate Appeared:
M.S. Wakil, N.B. Jawade.
Headnote:
Indian Penal Code – Section 376(2)(f)(i) – Criminal Procedure Code,1973 – Section 313 - Protection of Children from Sexual Offences Act – Section 6 r/w 5(n) – Offence of child rape – Rape of child under twelve - Gist of the report, which is lodged by victim who was accompanied by her mother (PW-2) is victim was studying in 9th standard, her father was suffering from epilepsy and expired 5 years ago - Since then, victim her mother, sister- (PW-7), brother and the cousin brother of her deceased father (accused) were residing together in house as tenant - Months prior to lodging of report, accused attempted to insert his penis in anus of child victim on two to three occasions - Victim disclosed incidents to her mother who asked accused to leave house and since then accused is residing separately - Victim returned from school and was alone in the house - Victim was changing her clothes - Accused entered the house, went to bathroom, undressed and rushed towards child victim - Accused closed the door, removed salwar of child victim which tore and since the accused was finding it difficult to untie nada (cotton thread) of paijama, he cut it with sickle - Accused forced the victim to lie, face down, pressed her breasts and inserted his penis in her anus - Accused got up from person of the victim and tried to force her to come to his room by dragging her - Child victim gave a jerk to hand of accused and rushed to her neighbours house in naked condition - Neighbour (PW-5) gave her clothes to wear - Victim disclosed the incident to the neighbour who in turn called one and then narrated the incident to the mother of child victim telephonically - Mother of the child victim came home, she called her brother and brother-in-law telephonically - Maternal uncle of the child victim and elder paternal uncle came, matter was discussed and it was decided to lodge report – Held, Honble Apex Court observes that section 6 is an exception to general rule of inadmissibility of hearsay evidence provided such evidence is almost contemporaneous with the facts excluding possibility of fabrication - Essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue, as to the form part of same transaction, that it becomes relevant by itself - Evidence of PW-2 and PW-7 that the child victim narrated the incident to them is therefore admissible in view of the provisions of section 6 of Indian Evidence Act - Overwhelming evidence against the accused apart, statutory presumption under section 29 of POCSO Act is required to be rebutted by accused in view of prosecution having established fundamental facts, which the accused failed to do - Defence is not parabolized even on the touchstone of preponderance of probabilities - Defence is not consistent and different suggestions are given to the witnesses - Defence which is reflected in the cross-examination is not spoken of in the 313 statement - It is true that the presumption under section 29 can be rebutted by effective cross-examination and bringing on record material which would render the prosecution case improbable or of doubtful veracity - However, in court considered opinion, accused failed to discharge burden of rebutting the statutory presumption - Appeal dismissed.
JUDGMENT :
Rohit B. Deo, J.
1. The appellant - who shall be referred to as the accused hereinafter - is assailing the judgment dated 26.9.2017 rendered by the Additional Sessions Judge - 1, Nagpur in Special Child Protection Case 128 of 2013 whereby the accused is convicted for the offence punishable under section 6, read with section 5(n) of the Protection of Children from Sexual Offences Act ("POCSO Act") and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 5,000/- and in default to suffer further rigorous imprisonment for one year.
2. The victim, then aged 13 years lodged report at Police Station Mauda on 10.8.2013 (Exh.25) pursuant to which offences punishable under section 6 of the POCSO Act and section 376(2) (f)(i) of the Indian Penal Code ("IPC") were registered against the accused vide crime 129 of 2013.
3. The gist of the report, which is lodged by the victim who was accompanied by her mother Smt. Pushpa (PW-2) is thus:
The victim was studying in the 9th standard at Shrinath Vidyalaya, Mahalgaon, her father was suffering from epilepsy and expired 5 years ago. Since then, the victim her mother, sister-Priya (PW-7), brother Prashant and the cousin brother of her deceased father (accused) were residing together in the house of Chudaman Wasnik, as tenant. 2 to 3 months prior to the lodging of report, the accused attempted to insert his penis in the anus of the child victim on two to three occasions. The victim disclosed the incidents to her mother who asked the accused to leave the house and since then the accused is residing separately. The victim returned from school at 6.30 p.m. on 7.8.2013 and was alone in the house. The victim was changing her clothes. The accused entered the house, went to the bathroom, undressed and rushed towards child victim. The accused closed the door, removed the salwar of the child victim which tore and since the accused was finding it difficult to untie the nada (cotton thread) of the paijama, he cut it with sickle. The accused forced the victim to lie, face down, pressed her breasts and inserted his penis in her anus. The accused got up from the person of the victim and tried to force her to come to his room by dragging her. The child victim gave a jerk to the hand of the accused and rushed to her neighbour's house in naked condition. The neighbor Smt. Sushma Deshbhratar (PW-5) gave her clothes to wear. The victim disclosed the incident to the neighbor who in turn called one Wasnikbai and then narrated the incident to the mother of the child victim telephonically. The mother of the child victim came home, she called her brother and brother-in-law telephonically. On 8.8.2013, the maternal uncle of the child victim and elder paternal uncle came, the matter was discussed and it was decided to lodge report.
4. The investigation proceeded on the usual lines. The spot panchanama was recorded in the presence of witness. The victim was medically examined. The accused was arrested on 9.30 p.m. on 10.8.2013 and was medically examined. The blood and other samples of the victim and the accused were collected and sent to chemical analyzer and so were the clothes of the victim and the accused which were seized during the investigation. The statements of witnesses were recorded, the completion of the investigation led to submission of the chargesheet in the Special Court.
5. The learned Sessions Judge framed charge Exh.14 under section 376(2)(f) of the IPC and section 6, read with section 5(n) of the POCSO Act. The accused abjured guilt and claimed to be tried in accordance with law.
6. The accused did not step into the witness box nor did the accused examine any witness in defence. In response to question 91 in the statement recorded under section 313 of the Code of Criminal Procedure ("Code"), the accused states that since maternal and paternal uncles of the child victim did not like accused residing with mother of the child victim, they conspired to falsely implicate th
