Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Bom) 61

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Revati Mohite Dere, J.
Gourav Narendra Singh – Appellant
Versus
The State of Maharashtra and ors. – Respondents
Criminal Appeal No.334 OF 2017
Decided On : 25-03-2021

Advocates:
Advocate Appeared:
For the Appellant : Mr. Vinod V. Kashid
For the Respondent: Mr. S. V. Gavand, A.P.P.

Point of Law: Rape of minor girl – Delay in FIR - threats administered by the appellant of circulating the MMS and of defamation of the family, are all factors to be considered, for delay in lodging the FIR – Conviction justified.

Headnote:
Indian Penal Code, 1860 - Section 376 - Section 506 - Registration of Births and Deaths Act - Section 29 - Sections 12 – Section 17 -Sexual assault - When prosecutrix returned home from school, appellant asked her for some biscuits and when prosecutrix brought biscuits, appellant pulled her towards him and sexually assaulted her -appellant is also alleged to have clicked nude photographs of prosecutrix and threatened to upload same on internet, if she disclosed incident to anyone.
Finding of the Court: Appellant, on basis of said photographs, during period sexually assaulted prosecutrix on number of occasions, by threatening to defame her and her family, by uploading photographs on internet –Evidence is also duly corroborated by evidence - On examination, doctor found an old tear of hymen, however, no evidence of injury to perineum or any foreign body or signs of STD, was found -doctor has stated that due to long gap between date of assault and medical examination and due to lapse of time, opinion could not be given whether sexual intercourse had taken place in her cross-examination, - There is no suggestion made that said injury was possible due to any other reason, other than sexual assault - As noted above, medical corroboration is not always necessary, if testimony of prosecutrix is found to be cogent, reliable and trustworthy - Merely because there was a delay in lodging FIR, cannot be a ground to disbelieve testimony of prosecutrix and PW 2 - prosecutrix's grandfather -- When perpetrator is a family member, it is extremely difficult for a young girl to come forward, without any family support, for various reasons -delay in facts, has been duly explained by prosecutrix and PW 2 - her grandfather and there is no reason to disbelieve them.
Result: Appeal is accordingly dismissed

Judgement Key Points

Key Points: - Conviction can be based on the sole testimony of the prosecutrix if it is found to be cogent, reliable, and trustworthy (!) (!) (!) . - Delay in lodging the FIR must be evaluated in light of the age of the victim, threats administered, and other circumstances; such delay cannot alone be a ground to disbelieve the testimony (!) (!) (!) . - The accused bears the burden of proving any property dispute or other defence; absence of supporting documents leads to failure to discharge the burden (!) (!) .

What is the legal principle regarding conviction based solely on the testimony of the prosecutrix in a rape case?

What factors must be considered when evaluating delay in lodging an FIR in a sexual assault case involving a minor?

What is the burden of proof on the accused when alleging a property dispute as a motive for false implication?

JUDGMENT :

1 By this appeal, the appellant has impugned the judgment and order dated 29th March 2017, passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.500 of 2013, convicting and sentencing him as stated hereinunder :

for the offence punishable under Section 376 of the Indian Penal Code, to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.2,00,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 1 year;

for the offence punishable under Section 506 of the Indian Penal Code, to suffer rigorous imprisonment for 2 years and to pay a fine of Rs.50,000/-, in default of payment of fine, to suffer further rigorous imprisonment for 3 months.

Both the aforesaid sentences were directed to run concurrently.

The fine amount, if recovered, was to be paid as compensation to the victim.

2. The prosecution case, in brief, is as under :

The appellant is the cousin brother of the prosecutrix, who was aged 13 years (a minor) at the time of the alleged incident i.e. the grandfather of the appellant and grandfather of the prosecutrix are real brothers. The prosecutrix was residing with her maternal grandparents and maternal uncle and aunt, at the relevant time. As the prosecutrix’s grandmother was diagnosed with Cancer, she was frequently required to visit the hospital for treatment and would be accompanied by the prosecutrix’s grandfather and maternal uncle and aunt, as a result of which, the prosecutrix would often remain alone at home. The house key would be kept with the neighbour-Gulabi Giri and the prosecutrix, after returning from the school, would pick up the said key from Gulabi Giri. The appellant would visit the prosecutrix's house often.

According to the prosecutrix, in February 2012, the appellant took the key from the neighbour-Gulabi Giri, opened the house and was sitting on the mezzanine floor of the house, watching television. It is the prosecution case, that when the prosecutrix returned home from school, the appellant asked her for some biscuits and when the prosecutrix brought the biscuits, the appellant pulled her towards him and sexually assaulted her.

The appellant is also alleged to have clicked nude photographs of the prosecutrix and threatened to upload the same on the internet, if she disclosed the incident to anyone. The appellant, on the basis of the said photographs, during the period February 2012 to September 2012, sexually assaulted the prosecutrix on number of occasions, by threatening to defame her and her family, by uploading the photographs on the internet.

When the prosecutrix’s parents came to Mumbai from their native place, the prosecutrix went to reside with them. On seeing bodily changes in her, her father questioned her, pursuant to which, she disclosed that she was sexually assaulted by the appellant. The prosecutrix’s father informed the same to the grandfather, pursuant to which, FIR was lodged as against the appellant. During the course of investigation, the appellant was arrested and after investigation, charge-sheet was filed as against the appellant for the aforesaid offences.

Charge was framed against the appellant, to which, the appellant pleaded not guilty and claimed to be tried.

The prosecution, in support of its case, examined 7 witnesses i.e. PW 1 - prosecutrix; PW 2 – maternal grandfather of the prosecutrix; PW 3 – Santosh Jha (panch to the spot panchanama); PW 4 – Omprakash Jaiswal (panch to the seizure of appellant’s clothes); PW 5 - Dr. Rachana Shah, Medical Officer at J.J. Hospital, who examined the prosecutrix; PW 6 – Pramila Dhondkar (PSI attached to the Santacruz Police Station), who registered the FIR and conducted part of the investigation; and PW 7- Babaji Awhad, Police Officer attached to the Santacruz Police Station, who also conducted the investigation and filed charge-sheet in the said case.

After the prosecution examined its witnesses, the statement of the appellant was recorded under Section 313 of the Cri

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