Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Bom) 230

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR
HON'BLE SHRI JUSTICE G. A. SANAP
Vijay @ Bablya S/o. Ashok Ingale - Appellant
Versus
State of Maharashtra, through its Police Station Officer, Police Station Balapur, Tq. Balapur, Dist. Akola - Respondent
CRIMINAL APPEAL NO. 782 OF 2022
Decided On : 09-12-2024

Advocates Appeared:
Mr. S.V. Sirpurkar, Advocate for the Appellant.
Mr. A.R. Chutke, APP for Respondent No.1/State.
Ms. Mitisha Kotecha, Advocate (appointed) for Respondent No.2.

Penetration, even partial, constitutes rape under IPC and POCSO Act; the credibility of child witnesses must be carefully assessed.

Headnote:
(A) Indian Penal Code, 1860 - Sections 376(3) and 506 - Protection of Children from Sexual Offences Act, 2012 - Sections 3, 4, 5(m), and 6 - Conviction for penetrative sexual assault on a minor - The appellant was sentenced to 20 years of rigorous imprisonment and fines for the offences under IPC and POCSO Act - The victim, aged 4 at the time of the incident, disclosed the assault to her mother and doctor, corroborated by medical evidence of injuries consistent with sexual assault. (Paras 1, 2, 3, 19, 25)

(B) Evidence - Credibility of witnesses - The court found the testimonies of the victim and the informant credible despite minor inconsistencies, emphasizing the importance of the victim's disclosure to the doctor and the corroborative medical findings. (Paras 12, 15, 26)

(C) Legal principles - The court reiterated that penetration, even partial, constitutes rape under IPC and POCSO Act, and the credibility of child witnesses must be carefully assessed. (Paras 19, 24)

Facts of the case:
The appellant was convicted for sexually assaulting a 4-year-old girl, with the incident disclosed to her mother and later confirmed by medical examination revealing injuries consistent with sexual assault.

Findings of Court:
The evidence presented was sufficient to establish the guilt of the appellant beyond reasonable doubt, with the court affirming the conviction based on credible testimonies and medical evidence.

Issues: The main issues included the credibility of the victim's testimony, the establishment of the appellant's identity, and the sufficiency of evidence for conviction.

Ratio Decidendi: The court held that the evidence of the victim and medical findings were credible and sufficient to establish the offence of penetrative sexual assault, emphasizing that even partial penetration constitutes rape.

Result: Appeal dismissed.

JUDGMENT :

In this appeal, challenge is to the judgment and order dated 14.09.2022, passed by the learned Additional Sessions Judge/Special Judge (POCSO Act), Akola, whereby the learned Judge convicted the appellant for the offences punishable under Sections 376(3) and 506 of the Indian Penal Code, 1860 (for short, “IPC”) and under Section 3 punishable under Section 4 and under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”), and sentenced him to suffer rigorous imprisonment for 20 years and to pay a fine of Rs.20,000/- and in default to suffer further simple imprisonment for 2 months for the offence punishable under Section 376(3) of the IPC and rigorous imprisonment for 2 years and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for 15 days for the offence punishable under Section 506 of the IPC. No separate sentence has been awarded for the offences under Section 3 punishable under Section 4 and under Section 5(m) punishable under Section 6 of the POCSO Act.

02] Background Facts:

The informant (PW-1) is the mother of the victim, who at the time of the incident, was about 4 years old. The case of prosecution, which can be unfolded from the report and other materials, is that on the date of the incident, i.e., on 11^th October, 2018, the informant, along with her husband and younger daughter, had gone for work in the morning. She returned back at about 4:00 p.m. The victim-girl came to her and started crying. The informant made the victim sleep. The victim woke up at about 6:00 to 6:30 p.m. and went for urination. At that time, the victim started crying. After urination, the informant made an enquiry with the victim. The victim told that she had sustained injury to her urinal place due to touching of the stick. The informant verified her urinal place and found that it was reddish with swelling. In the night on arrival of the father of the victim, the informant told him about the same. There was no doctor in the village, and therefore they decided to take the victim to the doctor at Balapur on the next day in the morning. The victim was crying whole night due to pain in her private part.

03] It is stated that, on the next day in the morning at about 11:00 a.m., the informant took the victim to the doctor, Smt. Pahurkar, at Balapur. The doctor examined the victim and her private part. On examination of the private part of the victim, the doctor told the informant that the injury to the private part of the victim was not due to touching of the stick. The doctor suspected that someone had committed an offensive act with the victim. The doctor, Smt. Pahurkar, gave a chocolate to the victim and consoled her. The doctor, Smt. Pahurkar, after taking the victim in confidence, made an enquiry with her. The victim narrated the incident. The victim told the doctor that when her parents had gone to the field yesterday, Shaurya’s Baba Bablaya took her in his house. He made her lie down, removed her knickers and lied on her body. Thereafter, she had a severe pain in her urinal place. The victim further told the doctor that the appellant threatened to kill her parents in case she disclosed the incident to anybody. The victim further informed the doctor that the appellant told her that in case an enquiry is made with her about the injury, she should tell her parents that while playing with Shaurya and other children, the children caused injury to her private part by piercing the stick. The doctor, Smt. Pahurkar, treated the victim. The informant called her husband to the hospital. The informant went to Balapur Police Station with the victim and lodged the report against the appellant.

04] On the basis of this report, a crime bearing No.459/2018 was registered against the appellant. The investigation in the crime was conducted by PW-6. PW-6 referred the victim for medical examination. He visited the spot and drew the spot panchanama.

The appellant w