Dismissed

Machindra Bhiku Mohite v. the State of Maharashtra

Bombay HC1 Mar 2018APEAL/694/2015

Case brief

AI extract

What is this about?

The High Court dismissed the appeal challenging a conviction under Section 376(2)(f) IPC. Upholding the findings of fact regarding the prosecutrix's age and the nature of the assault, the Court affirmed that the medical evidence and testimony were reliable and no reasonable doubt existed to sustain the conviction and sentence.

What did the court decide?

The criminal appeal filed by the appellant was dismissed, upholding the conviction and sentence.

Machindra Bhiku Mohite Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.694 OF 2015

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MACCHINDRA BHIKU MOHITE )...APPELLANT

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V/s.

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THE STATE OF MAHARASHTRA

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)...RESPONDENT

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Mr.Satyavrat Joshi, Appointed Advocate for the Appellant.

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Mr.S.V.Gavand, APP for the Respondent - State.

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CORAM : A. M. BADAR, J. DATE : 1^st MARCH 2018

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JUDGMENT :

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1 By this appeal, the appellant/accused is challenging

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the judgment and order dated 2^nd August 2013 passed by the learned Additional Sessions Judge, Baramati, in Sessions Case No.34 of 2012 whereby he is convicted of offences punishable under Sections 376(2)(f) and 506(II) of the Indian Penal Code.

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For the offence punishable under Section 376(2)(f) of the Indian Penal Code, the appellant/accused is sentenced to suffer rigorous imprisonment for 10 years apart from payment of fine of Rs.1,000/- and default sentence of rigorous imprisonment for 15 days. For the offence punishable under Section 506(II) of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for 1 year apart from fine of Rs.500/- and default sentence of rigorous imprisonment for 7 days.

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2 Facts leading to the prosecution of the appellant/accused can be summarized thus :

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(a) The prosecutrix/PW1, at the time of the alleged incident, was aged about 10 years and 9 months. She is resident of Village Shelgaon, Vaidawadi in Indapur Taluka of Pune District. She was residing with her father PW4 Taiappa, her mother as well as brothers and sisters. She was taking education in Zilla Parishad Primary School of the village.

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She had passed 3^rd Standard and was promoted to 4^th Standard. The incident in question took place after 8 p.m.

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of 3^rd June 2011. PW4 Taiappa had asked the

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prosecutrix/PW1 to take grains to the flour mill for grinding. Initially, the prosecutrix/PW1 had not carried money towards the charges for grinding, and therefore, she was sent back by the appellant/accused, who was working in the flour mill of DW1 Smt.Rohini Aarde. The prosecutrix/PW1 then again returned back to the flour mill by taking amount

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of Rs.10/- from her father PW4 Taiappa. As the prosecutrix/PW1 came to the flour mill all alone, the appellant/accused shut the door of the flour mill and committed rape on the prosecutrix/PW1 inside the flour

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mill. The prosecutrix/PW1 then returned to her home weeping. Upon being questioned by her father PW4 Taiappa, she disclosed the incident to him. After committing rape on the prosecutrix/PW1, the appellant/accused had threatened her that she would be killed if the incident is disclosed to anybody else. Family members of the prosecutrix/PW1 were frightened because of this incident and the consequent threatening. Hence, in the

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night hours, they did not go to the police station. However, on the next day, the prosecutrix/PW1 was taken to the police station, where she lodged report Exhibit 13, which has resulted in registration of Crime No.99 of 2011 for offences punishable under Sections 376 and 506 of the Indian Penal Code at Walchand Nagar Police Station against the appellant/ accused.

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(b) Routine investigation followed. The Investigator collected Birth Certificate of the prosecutrix/PW1 from the Zilla Parishad School. Statement of witnesses came to be recorded. The prosecutrix/PW1 was got medically examined from PW5 Dr.Suvarna Rathod, Chief Residential Doctor at the Sassoon Hospital at Pune. Her Ossification test was conducted by PW7 Dr.Ajay Taware, Assistant Professor working with B.J.Medical College and Sassoon Hospital, Pune. After completion of investigation, the appellant/accused came to be charge-sheeted.

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(c) As the appellant/accused pleaded not guilty to the Charge explained to him, the prosecution has examined in all eight witnesses for proving the alleged offence. In rebuttal, the appellant/accused has examined Smt.Rohini Aarde – owner of the flour mill as DW1. The defence of the appellant/accused is that of total denial.

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(d) Upon hearing the parties, by the impugned judgment and order, the appellant/accused came to be convicted of offences punishable under Sections 376(2)(f) and 506(II) of the Indian Penal Code and he came to be sentenced as indicated in the opening paragraph of this judgment.

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3 I have heard Mr.Satyavrat Joshi, the learned advocate appointed to represent the appellant/accused at the cost of the State at sufficient length of time. He argued that the prosecutrix/PW1 is not proved to be below 12 years of age, and as such, conviction and resultant sentence of 10 years rigorous imprisonment is not proper. Evidence of PW7 Dr.Ajay Taware

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shows that the prosecutrix/PW1, at the relevant time, was 11 to 13 years of age and by adding margin of error of two years in the Ossification test, the prosecutrix/PW1 can be said to be aged about 15 years at the relevant time. The learned advocate further argued that as on date, without remission, the appellant/accused has undergone jail sentence of 7 years, and inclusive of remission it could be of 8 years. Therefore, by reducing the sentence to the already undergone, the appeal needs to be allowed partly, in the event this court comes to the conclusion that offences alleged are proved by the prosecution. The learned advocate further argued that evidence of the prosecutrix/PW1 in respect of the incident is not all relevant because the spot of the incident was surrounded by houses and it was a populace locality. It is not probable that such an incident could take place and that too, at the flour mill, which is being visited by so many customers. The learned advocate criticized the medical evidence by stating that injuries to the private part of the prosecutrix/PW1 can be attributable to

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other reasons also.

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4 As against this, the learned APP supported the impugned judgment and order of conviction by placing reliance on evidence of the prosecutrix/PW1, her father PW4 Taiappa as well as the medical evidence coming from the mouth of PW5 Dr.Suvarna Rathod. The learned APP further argued that age of the prosecutrix/PW1 is proved by the prosecution through evidence of PW2 Umesh Satpute, in-charge Head Master of the Zilla Parishad School.

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5 I have carefully considered the rival submissions and also perused the Record and Proceedings including deposition of witnesses and documentary evidence adduced by the prosecution. The case in hand is that of sexual assault on a female child, who at the relevant time, was aged about 10 years and 9 months. In the matter of State of Punjab vs. Gurmit Singh 1the Honourable Apex Court has held that in cases of sexual offence, the court should examine the broader probabilities of the case and should not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix. If evidence of 1 AIR 1996 SC 1393

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the prosecutrix inspires confidence, then it should be relied upon without seeking corroboration to her statement in material particulars. In the matter of Aman Kumar and another vs. State of Haryana2 , the Honourable Apex Court has held that a prosecutrix complaining of having been a victim of the offence of rape stands at a higher pedestal than an injured victim. In the 3 matter of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat , the Honourable Apex Court has stated that a girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours.

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6 In the case in hand, the prosecutrix/PW1 is a school

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going child having been promoted to 4^th Standard at the relevant time. Evidence of PW2 Umesh Satpute, in-charge Head Master of

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2 AIR 2004 SC 1497

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3 AIR 1983 SC 753(1)

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Zilla Parishad School at Mali Vasti, Shelgaon, shows that the prosecutrix/PW1 was admitted in the said school on 8^th February 2011 and her date of birth is recorded in the school record as 25^th August 2000. This date of birth came to be recorded as per the previous School Leaving Certificate of the prosecutrix/PW1. PW2 Umesh Satpute has proved extract of General Register of the School (Exhibit 18) as well as Birth Certificate of the prosecutrix/PW1 issued by his school (Exhibit 16). These documents reflect date of birth of the prosecutrix/PW1 as 25^th August 2000. The prosecutrix/PW1 in her evidence as stated her date of birth as 25^th August 2000. Evidence of PW2 Umesh Satpute in respect of date of birth of the prosecutrix/PW1 has virtually gone unchallenged. There is no suggestion to this witness that recorded date of birth of the prosecutrix/PW1 is incorrect. Similarly, evidence of the prosecutrix/ PW1 regarding her date of birth has remained unchallenged in the crossexamination. Provisions of Section 35 of the Indian Evidence Act, 1872, makes it clear that if entry is made by a public servant in the official book in discharge of his official duty, then such entry

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becomes relevant fact and is admissible in evidence. In the case in hand, the entry in the record of the school, which is ante litem motam in nature, reflects date of birth of the prosecutrix/PW1 as 25^th August 2000 and the same is gaining corroboration from the version of the prosecutrix/PW1. This evidence is not challenged by the defence, and as such, I see no reason to disbelieve the same. Thus, this evidence points out that on the date of the incident, i.e. on 3^rd June 2011, the prosecutrix/PW1 was aged about 10 years and 9 months and as such, was certainly below 12 years of age.

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7 The prosecutrix/PW1 hails from a rustic family and her parents, as seen from her cross-examination, used to indulge in hunting wild boar. Her mother used to sell toys and other articles in villages. As seen from the cross-examination of the prosecutrix/ PW1, on the day of the incident, her family members were successful in hunting a wild board. In the evening of the day of the incident, meat of the wild boar was being cooked and the family members found the flour available in the house short of

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their requirement. That is how, as seen from the cross-

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examination of the prosecutrix/PW1, she was sent for grinding grains to the flour mill by PW4 Taiappa. In the backdrop of this material found in the cross-examination of the prosecutrix/PW1, in her chief-examination, the prosecutrix/PW1 has stated that at about 8.00 p.m., as per the direction of her father PW4 Taiappa, she took the food grains for grinding at the flour mill of a person named Kharade, where the appellant/accused was working. She deposed that the appellant/accused asked her whether she had brought money towards the grinding charges. Then the prosecutrix/PW1 returned back, got an amount of Rs.10/- from her father and again came back to the flour mill. At that time, as seen from her deposition, there was nobody else in the flour mill, except the appellant/accused. Taking advantage of the situation, as per version of the prosecutrix/PW1, the appellant/accused closed the door of the flour mill and committed rape on her. He, then, threatened the prosecutrix/PW1that if the incident is disclosed, she would be killed. The prosecutrix/PW1 deposed that while weeping she returned back to her house and narrated the

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incident to her father. Because of threatening of the appellant/accused, in the night time, they did not go to the police station, but on the next day, she went to police station Walchand Nagar and lodged the report Exhibit 13.

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8 Thus, evidence of the prosecutrix/PW1 and the material elicited from her cross-examination unerringly points out that there was need of flour for feeding the family members of the prosecutrix/PW1 on the eve of cooking meat of the wild board, and therefore, the prosecutrix/PW1 was constrained to go to the flour mill which was being operated by the appellant/accused.

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9 Cross-examination of the prosecutrix/PW1 reveals that the flour mill was surrounded by several houses and at the back side of the flour mill there was a grocery shop where people in the locality used to talk with each other. With this, it was attempted to show that the incident is improbable. However, evidence of the prosecutrix/ PW1 shows that she was all alone when the incident took place inside the flour mill, and that too, by closing the door

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thereof. The incident happened post 8.00 p.m. At such hours of the night, there was no probability of other customers going to the flour mill. The prosecutrix/PW1 was a female child of tender years of age. It was not expected of her to make a hue and cry when pitted against the fully grown adult. Moreover, crossexamination of the prosecutrix/PW1 does not show that on the relevant day, and particularly, at that hour of the day, there were people in the vicinity of the flour mill. As such, on this count, the evidence of the prosecutrix/PW1 cannot be disbelieved.

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10 Evidence of PW4 Taiappa, who is father of the prosecutrix/PW1, is fully corroborating the version of the prosecution. This witness has proved former statement of the prosecutrix/PW1, made to him soon after the incident, implicating the appellant/accused in the crime in question. Evidence of this witness shows that the prosecutrix/PW1 returned to her home from the flour mill and she was weeping and in a frightened state of mind at that time. Therefore, being a father, PW4 Taiappa questioned the prosecutrix/PW1 and then she disclosed that the

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appellant/accused had committed rape on her. Cross-examination of this witness reveals that he was knowing the appellant/accused and that is but natural, because the incident took place in a small village where people are generally acquainted with each other. Cross-examination of this witness does not reflect anything which would cast a shadow of doubt on his version. Thus, the evidence of PW4 Taiappa, which is proving the former statement of the prosecutrix/PW1 in respect of the incident, is fully corroborating the version of the prosecutrix/ PW1, which is, infact, in tune with the FIR lodged by her.

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11 On the very next day of the incident, the prosecutrix/ PW1 was examined by PW5 Dr.Suvarna Rathod, Chief Resident Doctor at the Sassoon General Hospital, Pune. This Medical Officer has also proved the former statement of the prosecutrix/PW1 which is to the effect that the appellant/accused had committed rape on her when she had been to the flour mill for grinding the grains. That apart, evidence of PW5 Dr.Suvarna Rathod shows that the prosecutrix/PW1 was having two injuries

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on her right hand. One was a superficial contusion of size 3 x 2 cms., red in colour, and the other was a small laceration of size 1 x 0.2 cms. on her right forearm. From the cross-examination of the prosecutrix/PW1, the defence has brought on record that in the incident in question, injuries were caused to her right hand. This version of the prosecutrix/PW1 coming on record from the crossexamination is gaining further corroboration the medical evidence.

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12 Evidence of PW5 Dr.Suvarna Rathod shows that on examination of the private part of the prosecutrix/PW1, she found her labia majora inflamed and the hymen of the prosecutrix/PW1 was also found torn at multiple sides. With such finding, PW5 Dr.Suvarna Rathod gave opinion that there was penetrative sexual vaginal intercourse with the prosecutrix/PW1.

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13 Cross-examination of the prosecutrix/PW1 reflects that she used to suffer fall while playing. From cross-examination of PW5 Dr.Suvarna Rathod it is elicited by the defence that the

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hymen tear can be caused while jumping from a tree or a bicycle, and similarly, it can be caused by insertion of a foreign object. These suggestions lead us to nowhere because there are no suggestions to the prosecutrix/PW1 that due to suffering a fall she had suffered vaginal bleeding at any point of time. Similarly, there is nothing on record to suggest that inflammation and excoriation of labia majora of the prosecutrix/PW1 has nexus with some other incident, than the incident deposed to by her. Thus, the medical evidence also supports the version of the prosecutrix/PW1. Contemporaneous record in the form of medical report Exhibit 25 prepared by PW5 Dr.Suvarna Rathod is consistent with the prosecution case.

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14 The prosecutrix/PW1 was subjected to the Ossification test by PW7 Dr.Ajay Taware , who deposed that her bony age was found to be 11 to 13 years. However, this evidence pales into insignificance, in the wake of primary evidence recording age of the prosecutrix/PW1, which is reflecting her age as 10 years and 9 months.

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15 The defence has attempted to demonstrate that the flour mill, where the incident took place, was being operated by its owner – DW1 Smt.Rohini Aarde. In chief-examination, this witness has stated that she used to operate the said flour mill from 8.00 a.m. to 9.00 p.m. and the appellant/accused has no concern with the flour mill. However, in cross-examination, this witness has admitted that on the day of the incident, she left the flour mill at 6.30 p.m. for cooking food and at that time, the appellant/accused was operating the said flour mill. Thus, even the defence evidence indicates that at the time of the incident in question, the appellant/accused was very much present at the spot of the incident.

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16 The cumulative effect of the foregoing discussion makes it clear that the appellant/accused had committed forcible sexual intercourse on the prosecutrix/PW1, who was below 12 years of age, and then he had criminally intimidated her. The appellant/accused is awarded the minimum sentence prescribed

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for the proved offences. Hence, the appeal is devoid of merits.

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Therefore, the order :

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ORDER

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The appeal is dismissed.