Dismissed

Nitin Maruti Nanaware v. the State of Maharashtra and Anr.

Bombay HC19 Jan 2023APEAL/819/2019

Case brief

AI extract

What is this about?

In Criminal Appeal No.819 of 2019, the Bombay High Court dismissed the appeal challenging a conviction for rape under IPC Sections 363, 366A, and 376(2)(f). The court upheld the trial court's finding that the prosecution proved the case beyond reasonable doubt through victim testimony, medical evidence, and a valid Identification Parade, rejecting claims of police-induced identification and granti

What did the court decide?

The Criminal Appeal was dismissed with no change to the conviction and sentence imposed by the Trial Court; connected Interim Applications also disposed of.

Nitin Maruti Nanaware Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.819 OF 2019

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WITH

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INTERIM APPLICATION NO.259 OF 2011
IN

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CRIMINAL APPEAL NO.819 OF 2019

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WITH

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INTERIM APPLICATION NO.1115 OF 2020 IN

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CRIMINAL APPEAL NO.819 OF 2019

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Nitin Maruti Nanaware
Age 34 years, Occ : Service
R/at – S. No.16, Damodar Building,
Flat No.1, Ambegaon Pathar,
Dhankawadi, Pune .... Appellant

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versus

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1. State of Maharashtra Through the Sahakarnagar Police Station

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2. XYZ .... Respondent

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Mr. Ashish Vernekar i/b. Mr. Satyavrat Joshi, Advocate for Appellant.

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Smt. M. R. Tidke, APP for the State/Respondent No.1.

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MANUSHREE V NESARIKAR

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Digitally signed by MANUSHREE V NESARIKAR Date: 2023.01.24 14:47:46 +0530

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Mr. Aniesh S. Jadhav, (Appointed) Advocate a/w Mr. Rushikesh Kekane, Advocate for Respondent No.2.

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CORAM: SARANG V. KOTWAL, J.
DATE: 19th JANUARY, 2023

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Nesarikar

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JUDGMENT:

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1. The Appellant has challenged the Judgment and Order dated 08/01/2019 passed by the Additional Sessions Judge, Pune in Sessions Case No.24/2013. By the impugned Judgment and Order, the Appellant was convicted as follows ;

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(a) He was convicted for commission of offence punishable u/s 363 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of 3 years and to pay a fine of Rs.2,000/- and in default of payment of fine to suffer simple imprisonment for two months.

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(b) He was also convicted u/s 366A of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of five years and to pay a fine of Rs.3,000/- and in default of payment of fine to suffer simple imprisonment for three months.

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(c) He was further convicted u/s 376(2)(f) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of twelve years and to pay a fine of Rs.15,000/- and in default of payment of fine to suffer simple imprisonment for six months.

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(d) He was further convicted u/s 506(2) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of two years and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer simple imprisonment for one month.

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(e) All the sentences were directed to run concurrently.

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(f) The Appellant was given set off u/s 428 of Cr.P.C.

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(g) The victim was given compensation of Rs.10,000/out of the fine amount.

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2. Heard Mr. Ashish Vernekar, learned counsel for the

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Appellant, Mr. Aniesh S. Jadhav, learned counsel for the
Respondent No.2 and Smt. M. R. Tidke, learned APP for the State.

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3. The prosecution case is that the victim’s date of birth
was 14/01/2003. The incident took place on 28/05/2012.
Therefore at the time of incident, the victim was barely 9 year
old. On that day, in the evening, the victim’s mother sent her to
buy some groceries. The Appellant was standing near the

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grocery shop with his motorcycle. He offered to drop the victim
to her house. He requested her to show a particular place as he
was new to that area. The victim agreed to help him. She sat on
his motorcycle. The Appellant then took her to an under
construction building on the second floor at a secluded spot and
committed rape on her. He threatened her at the point of knife.
After that, he dropped her near her house. The victim told this
incident to her mother. In the meantime the victim’s father was
searching for her. The victim’s mother called him and informed
about the incident. He rushed home. He enquired with the
victim and then went to the police station and lodged his FIR.
The offence was registered at Sahakarnagar police station vide
C.R.No.199/2012. The victim was sent for medical examination.
Her clothes were seized. On the basis of description given by her,
sketch of the offender was drawn. The Appellant was arrested in
connection with C.R.No.154/2012 registered with Bharati
Vidyapith police station. He was arrested on 10/09/2012. The
officers of Sahakar Nagar police station got his custody through
the transfer warrant. His clothes were seized as they were

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recovered at his instance. Even the knife was recovered at his
instance. The articles were sent for Chemical Analysis. The
statement of witnesses were recorded. Various Panchanamas
were conducted. At the conclusion of the investigation, the
charge-sheet was filed. The case was committed to the Court of
Sessions at Pune.

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4. During trial, the prosecution examined in all 13
witnesses including the victim, her parents, Medical Officer, the
carrier of articles to C.A., the Panchas, the Professor who drew
sketch of the Appellant and the police officers.

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5. The defence of the Appellant was of total denial. In his
statement u/s 313 of Cr.P.C. he has stated that the victim was
brought to the police station and she had stated that the
Appellant was not the offender. On 28/05/2012 he was present
in his office. At that time, he was having his working shift at
07.00 p.m. and he was on his duty. False case was filed against
him due to pressure exerted by the relatives of the victim. In

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September 2012, a demand of Rs.1 lakh was made from him at
the gate of the Sassoon Hospital and he was falsely implicated in
this case. At the time of Test Identification Parade, in jail, one
lady had asked the victim to point towards him. Therefore he is
falsely implicated.

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6. The learned Trial Judge considered the evidence on
record and defence of the Applicant and at the conclusion of the
trial, convicted and sentenced the Appellant as mentioned
earlier.

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7. The victim is examined as P.W.2. She has deposed that
in June 2012 she was studying in 4th standard. On 28/05/2012
at about 08.00 p.m. her mother asked her to bring some articles
from a shop. She went to that shop and purchased some articles.
She was returning home. On the way, one person on motorcycle
stopped her. He told her that he wanted to go to a particular
spot in that locality as his sister and daughter were staying there
and he was new to that locality. Initially, the victim refused to go

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with him, but he told her that he would call her mother and tell
her about it. He took the mobile number of the victim’s mother
from her. He dialed some number. He spoke something on the
mobile phone. Because of this show, the victim trusted him. She
sat on the motorcycle. He took her towards another shop. She
wanted to get down, but he again made some phone call and
then took the victim at some distance. He stopped near one
building. He took her upstairs. It was a dark place. He took out a
knife and threatened her. Then committed rape on her. He again
threatened her with the knife and again repeated that act. Then
he took her on the motorcycle and dropped her near her house.
On reaching home, she immediately disclosed the incident to her
mother, who in turn informed her father. The father came home
and then they went to the police station and lodged the FIR. She
showed the spot of incident to the police. She was sent for
medical examination. An Artist came to her house and on the
description given by her, he drew the sketch of the culprit. After
some days, she was called to jail for Test Identification Parade of
the suspect. She went there and identified the Appellant. Even in

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the Court, at the time of her deposition, she identified the
Appellant as the person who had committed that offence.

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In the cross-examination, she admitted that the shop
from where she purchased the articles, was in a thickly
populated area. She did not remember whether she carried
those articles in a carry bag. She met the Appellant within five
minutes from leaving her house. After that, they took 10 minutes
to reach the spot of incident. Prior to the incident, she had not
been to that spot. The construction of the building was still
incomplete. The spot of incident was not in a closed room. She
denied the suggestion that she did not cry or shout at the time of
incident. She did not remember whether she had given history
of the incident to the Doctor. She was in the hospital for two
days and then she was discharged. She came to know from the
police after 4-5 months that the culprit was arrested. But she did
not remember that on 23/09/2012 she was called by the police.
There is some variance in the English deposition and Marathi
deposition whether the accused was shown to her in Bibwewadi

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police station. But from the context of her deposition, it is clear
that she had not admitted that the accused was shown to her in
the Bibwewadi police station. Marathi deposition is clear and
there it is not mentioned that the accused was shown to her. She
has not admitted that the Appellant was shown to her in
Bibwewadi police station. She has further deposed that after 4-5
months of the incident, she was called by the police for Test
Identification Parade.

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8. The Test Identification Parade memo was produced by
the prosecution u/s 291-A of Cr.P.C. by filing an application vide
Ex.19. The defence did not give any say though the Trial Court
had called upon the defence to give say. The memo of the Test
Identification Parade was therefore exhibited at Ex.24. That has
remained unchallenged and therefore the evidence of the
identification of the Appellant in the Test Identification Parade
held on 12/10/2012, has remained unchallenged. This fact is
important because the identity of the culprit is an important
issue in this case.

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9. P.W.1 was the father of the victim. He has corroborated

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the evidence of the P.W.2. He has deposed as to how he was
searching for her in the evening and as to how he got a phone
call from his wife informing about that the victim had returned
home. He made enquiries with the victim and then she told him
about the incident. He then went to Sahakar Nagar Police
Station and lodged the FIR. The FIR is produced on record at
Ex.14. The FIR substantially corroborates his version. He has
further deposed that after some days police from Bharati
Vidyapith police station had called them to identify the culprit
since the culprit had already committed similar type of offence.
They went to the police station. The victim identified the culprit
as the same person who was the accused before the Court. P.W.1
also identified him.

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In the cross-examination, hardly any material in favour
of the defence was brought on record.

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10. P.W.3 was the mother of the victim and she has deposed

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in the same manner as P.W.1 and P.W.2 about the events of that
day. She has substantially corroborated the evidence of P.W.2.

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In the cross-examination, she has deposed that she
came to know about the name of the Appellant from her
husband after the Appellant was arrested. She deposed that, in
her presence, her husband did not take the victim to the police
station for identifying the accused. She further deposed that on
28/05/2012 itself the victim had narrated the incident to the
police, but on that day the police did not record her statement.

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11. P.W.4 Pratap Kakde, was a Pancha for Spot

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Panchanama. He was called by the police on 29/05/2012. He
has accepted the contents of the Spot Panchanama, which is
produced on record at Ex.37. It is mentioned in the Spot
Panchanama and P.W.4 has also deposed that one newspaper
with yellowish spot was seized from the spot of incident, which
was on the second floor of the building. The spot was an open
space between the staircase and the lift.

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12. P.W.5 Sudhakar Deshmukh was a Pancha for

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Panchanama dated 21/02/2012 when the Appellant had taken
the police and the Panchas at the spot of incident. Since the spot
of incident was already known to the police, this particular
Panchanama does not carry any significance.

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13. P.W.6 Namdeo Kunjir was a Pancha in whose presence,

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the clothes of the victim were seized under the Panchanama
Ex.43 on 28/05/2012 itself. He was also a Pancha when the
Appellant had shown willingness to show the place where he
had concealed his clothes, seat cover of his motorcycle and the
knife. At the instance of the Appellant all the articles were
recovered from his house. That Panchanama is produced on
record at Ex.44.

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14. P.W.7 Police Naik Shamrao Lhamkar and P.W.9 Police

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Constable P. N. Pawar were the two carriers who had carried the
articles to the FSL on 15/10/2012 and 12/06/2012 respectively.

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15. P.W.8 Police Constable Ganesh Kulal was the driver of

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the police vehicle when the accused had led the police party to
the different places for showing the spot and for recovery of the
articles. He had produced the relevant entries from the logbook.

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16. P.W.11 Police Hawaldar Shobha Gundale had recorded

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the victim’s statement in June 2012.

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17. P.W.12 Girish Charwad had drawn a sketch of the

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offender on the basis of the description given by the victim -
P.W.2. That sketch is produced on record at Ex.67.

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18. P.W.10 Dr. Shruti Gadekar, was an important witness.

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She had examined the victim in the night between 28/05/2012
and 29/05/2012. She had recorded the history given by the
victim and her aunt. In the medical history, she had noted that
the offender had attempted to commit vaginal intercourse. On
the medical examination of the victim she found inflammation

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on labia-minora and labia-majora. Hymen was torn at multiple
sites – 5, 7 and 10 O’clock positions. Perihymenal inflammation
was present. Small fourchette mucosal, tear present and not
actively bleeding. Hymen admitted little finger patulous. She
obtained the samples of pubic hair, vaginal swab, survical smear
and blood for grouping. In her opinion, there was evidence of
penetrative sexual vaginal intercourse. She issued the certificate.
It is produced on record at Ex.52. According to her, such type of
injuries are possible if a penetrative sexual assault is committed
on a minor girl about 9-12 year old.

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In the cross-examination, she admitted that she did not
find any active bleeding from victim’s private part. She had not
mentioned the colour and edges of hymenal tears, which would
have been helpful in determining the time of the offence. She
agreed with the proposition that in case of injury to vagina, head
or face, there is possibility of much bleeding. She admitted that
in case of injury to vagina, inflammation starts vanishing in a
couple of hours. According to her, it was a case of multiple

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hymen tears and that generally occurs in the case of a woman
habituated to sexual intercourse. However, she volunteered that
perihymenal inflamamtion and fourchette mucosal tear do not
occur in a woman habituated to sexual intercourse. She deposed
that such inflammation may occur in case of unhygienic
condition or negligence. According to her, such incident might
have occurred 3-4 days from her examination.

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19. P.W.13 PI Shahsikant Khot, was the Investigating

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Officer. He has deposed that he had conducted the Spot
Panchanama and seized the newspaper from the spot. He
recorded statements of the witnesses. On 18/06/2012, the
victim’s statement was recorded by P.W.11. He came to know
that the Appellant was arrested by Bharati Vidyapith Police
Station. He took custody of the Appellant by transfer warrant on
17/09/2012. The Appellant showed the spot of incident and the
articles were recovered at his instance. He then sent the articles
for Chemical Analysis. He obtained birth certificate of the victim,
which is produced on record at Ex.80. He requested the

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Tahasildar to conduct the Test Identification Parade. At the
conclusion of the investigation, he filed the charge-sheet.

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In the cross-examination, he deposed that he did not
record statements of the people in the locality of that building.
He explained that he did not record the statement of the victim
immediately because she was in the hospital. He denied the
suggestion that on 23/09/2012 he showed the Appellant to the
victim, the first informant and the other witnesses.

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20. Besides this evidence, the prosecution produced the
documentary evidence in the form of C.A. certificate which
shows that the newspaper found at the spot and the T shirt of
the victim showed the presence of semen stains. That C.A. report
is produced on record at Ex.84.

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21. The learned Trial Judge relied on the evidence of the
prosecution. He disbelieved the defence of total denial of the
Appellant and recorded his conviction and sentence as
mentioned earlier.

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22. Learned counsel for the Appellant submitted that the
identification of the Appellant is crucial and the victim’s father
i.e. P.W.1 has admitted that the Appellant was shown to the
victim in the police station. Therefore, subsequent identification
in the Test Identification Parade and in the Court are vitiated. He
submitted that the conduct of the victim’s mother and father was
unnatural. The mother did not remember the details of any
money, carry bag etc. given to the victim for purchasing the
articles. Even the conduct of the victim was unnatural, as she
did not remember whether there were people in the locality.
According to the prosecution case, the shop from where she
purchased the articles, was situated in a crowded locality. There
is a serious doubt about the spot of incident because the victim
has deposed that it was an open space and the father has
deposed that it was a closed place in a room. He submitted that
the spot of incident was in a commercial building and naturally
there would be watchmen and other people present. But the
prosecution has not brought their evidence on record. The

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Investigating Officer did not record statements of anybody near
the building where the incident had taken place.

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23. Learned APP and learned counsel for the Respondent
No.2 opposed these submissions. According to them, the
prosecution has proved its case beyond reasonable doubt. The
victim had made immediate disclosure to her parents. The father
had immediately gone to the police and there was no scope for
concocting a false story. The evidence is sufficiently corroborated
by the medical evidence. The Test Identification Parade of the
Appellant is proved beyond reasonable doubt. He was also
identified in the Court. There was no enmity between the
Appellant and the victim’s family and therefore there was no
reason to implicate the Appellant falsely. The age of the victim is
not challenged. The C.A. report has also supported the
prosecution case.

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24. I have considered these submissions. As far as the age
of the victim is concerned, that evidence is not seriously
challenged. The birth certificate of the victim is produced on

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record at Ex.80, which shows that at the time of the incident,
she was around 9 years of age.

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25. Though, learned counsel for Appellant has raised doubt
about the exact spot, the newspaper found on the spot was sent
for Chemical Analysis and it shows presence of semen stains.
This fixes the spot of incident and corroborates the victim’s
evidence that the incident had taken place at that particular
spot. The evidence shows that the building was under
construction and it was a secluded spot where the incident had
occurred. Therefore it was not possible to record the statement
of any witness who could have seen the victim and the Appellant
near that spot of incident. To that extent, the prosecution case
does not suffer from any infirmity.

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26. The C.A. report also shows presence of semen stains on
the T shirt of the victim. It was immediately seized by the police.
This also shows that the incident had taken place and the victim
is telling the truth.

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27. Her evidence is further corroborated by the medical
evidence which shows hymenal tear and the other indications
showing that she had undergone trauma of forcible sexual
intercourse. The Doctor, P.W.10, in fact has given clear opinion
that the victim had undergone such forcible sexual intercourse.
Thus, the prosecution has proved beyond reasonable doubt that
the incident is true and the victim is not lying.

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28. The only crucial question is about the identity of the
offender. Learned counsel for the Appellant tried to contend that
the Appellant was shown by the police to the victim and her
father at Bharati Vidyapith Police Station. P.W.1, the victim’s
father, has deposed in his examination-in-chief itself that after
some days, the police from Bharati Vidyapith police station had
called them to identify the culprit since the culprit had already
committed similar type of offence. They went to the police
station and the victim identified the culprit. In this context, it is
important to note that the victim has not given any such

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admission. Even her mother had not given such admission. The
record also shows that there were two other offence pending
against the Appellant. One was C.R.No.154/2012 registered
with Bharati Vidyapith police station and another at Bibewadi
police station. P.W.1’s evidence does not show exactly when they
were called by Bibewadi police station and whether they were
called before holding Test Identification Parade. In any case,
there was other offences pending including the one at Bharati
Vidyapith police station against the Appellant. There is nothing
to show that the victim was shown the Appellant, by the police,
in connection with the present offence, before the Test
Identification Parade was held. The victim’s evidence is more
important and she has not stated that the Appellant was shown
to her at the police station. She has categorically stated that the
Appellant was identified by her at the Test Identification Parade
held in Yerwada Central Prison.

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29. As mentioned earlier, the defence has not challenged
the Test Identification Parade memo, which is produced on

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record at Ex.24. Therefore, identification of the Appellant has
remained unchallenged and there is no reason to doubt the
prosecution case that the victim had identified the Appellant in
the Court at the time of her deposition. The Appellant had spent
considerable time with the victim while the offence was
committed. It was a trauma which the victim was not likely to
forget. Therefore, her identification of the Appellant assumes
importance and in fact proves the prosecution case beyond
reasonable doubt.

¶116

30. There is nothing on record brought out by the defence
as to why the victim was deposing against the Appellant. There
was no connection between the families of the victim and of the
Appellant. The Appellant was a stranger, the victim was only 9
year old and she had no reason to implicate him falsely. There
was nothing to suggest that she was tutored to depose against
the Appellant.

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31. On the other hand, the Appellant has taken a specific
defence in his statement recorded u/s 313 of Cr.P.C. that at the

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exact point of commission of offence, he was in his office in his
shift duty. However, he has not examined anybody from his
office in support of his contention.

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32. Taking into account all these factors, in my opinion, the
prosecution has proved its case beyond reasonable doubt.

¶122

33. Learned counsel for the Appellant submitted that the

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Appellant is in custody since 17/09/2012 and more than 10
years have passed. He therefore submitted that some leniency, as
far as quantum of sentence is concerned, be shown to the
Appellant. Learned APP and learned counsel for Respondent
No.2 strongly opposed these submissions. According to them
considering the nature of the offence and the trauma which a 9
year old child had to undergo because of the Appellant, who was
around 34 years of age at the time offence, shows that the
Appellant does not deserve any sympathy.

¶124

34. I have considered and I agree with the submissions of

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learned APP and learned counsel for the Respondent No.2. The

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Appellant has committed this serious offence, as a result of
which a 9 years old child had to undergo the trauma. The Trial
Court has already shown him leniency in not imposing the
maximum sentence. Therefore, I do not see any reason to
interfere with the reasons given by the Trial Court in imposing
sentence of 12 years of rigorous imprisonment in this case.
Based on this discussion, I do not find any merit in the Appeal.
The Appeal is accordingly dismissed.

¶128

35. In view of the dismissal of the Appeal, the connected
Interim Applications are also disposed of.

¶129

(SARANG V. KOTWAL, J.)

Nitin Maruti Nanaware v. the State of Maharashtra and Anr.

Case brief

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Nitin Maruti Nanaware v. the State of Maharashtra and Anr.

Case brief

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What the court decided

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