Partly allowed

Rahul Ramhari Gaikwad v. the State of Maharashtra

Bombay HC12 Jan 2023IA/1821/2021

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay, Criminal Appellate Jurisdiction, allowed the appellant's appeal partly. The Court maintained the conviction and sentence but directed that all substantive sentences run concurrently instead of consecutively due to the appellant's young age of 22 years.

What did the court decide?

Maintenance of conviction and sentence but modification that all substantive sentences run concurrently instead of consecutively.

Rahul Ramhari Gaikwad Vs the State of Maharashtra — 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.112 OF 2019
WITH

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INTERIM APPLICATION NO.1821 OF 2021
IN

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CRIMINAL APPEAL NO.112 OF 2019

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Rahul Ramhari Gaikwad

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Hindu, Aged 22 years,
Permanently residing at Post Bahulgoan,
Taluka Yeola, District Nasik
Presently undergoing sentence at
Nasik Road Central Prison Nasik Road.... Appellant

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versus

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1. State of Maharashtra At the instance of Yeola City Police Station, Taluka – Yeola, District – Nasik

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2. XYZ .... Respondent

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Mr. Anil G. Lalla a/w Mr. Aditya Singh i/b. Lalla and Lalla, Advocate for Appellant.

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Mr. S. R. Agarkar, APP for the State/Respondent No.1.

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Digitally signed by MANUSHREE MANUSHREE V V NESARIKAR NESARIKAR Date: 2023.01.19 11:52:22 +0530

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• Ms. Priyanka Chavan (Appointed) Advocate for Respondent No.2. CORAM : SARANG V. KOTWAL, J. DATE : 12^th 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 29/08/2018 passed by Additional Sessions Judge, Niphad, in Sessions Case No.34/2017. 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 376(2)(i) of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of 10 years and to pay a fine of Rs.25,000/- and in default of payment of fine to suffer simple imprisonment for six months.

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(b) He was also convicted u/s 323 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of six months and to pay a fine of Rs.5,000/- and in default of payment of fine to suffer simple imprisonment for 15 days.

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(c) He was further convicted u/s 506 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment of one year and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer simple imprisonment for one month.

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(d) He was also convicted u/s 4 of the Protection of Children from Sexual Offences Act, 2012. But separate punishment was not imposed on him in view of sentence passed u/s 376(2)(i) of the Indian Penal Code.

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

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

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2. Heard Mr. Anil G. Lalla, learned counsel for the
Appellant, Ms. Priyanka Chavan, learned counsel for the
Respondent No.2 and Mr. S. R. Agarkar, learned APP for the State.

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3. The prosecution case is that, the victim’s date of birth
was 12/04/2004. On 28/03/2017, the victim was dragged to a
secluded spot by the Appellant. He committed rape on her. He
had put a Condom on his private part. He had threatened the
victim. After returning home, she informed the incident to her
family members. She was not knowing the name of the
Appellant. On the next morning when she had gone to purchase
milk, she saw the Appellant sleeping on a cot in the

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neighbourhood. She informed this fact to her parents. They
went there. They confronted the Appellant’s mother. In the
meantime, the Appellant ran away. The Appellant’s mother
requested the victim’s family not to lodge the FIR. The victim’s
father made enquiries. He came to know the name of the
Appellant. After that, the victim and her family approached the
police and lodged the FIR. The Appellant was arrested. The
investigation was carried out. The victim and the Appellant were
sent for medical examination. The clothes of the Appellant as
well as the victim were seized and were sent for chemical
analysis. The Spot Panchanama was conducted. A torn Condom
was found at the spot. It was also sent for chemical analysis. At
the conclusion of the investigation, the charge-sheet was filed
and the case was committed to the Special Court.

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4. During trial, the prosecution examined six witnesses,
including the victim, her parents, the Medical Officer, the Head
Master of the victim’s school and the Investigating Officer.
Besides the oral evidence, the prosecution produced

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documentary evidence in the form of her birth certificate at
Ex.66 and the C.A. reports.

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5. The defence of the Appellant was of total denial.
According to him, a false case was lodged against him. He
examined himself as defence witness No.1. He has deposed that
he knew the victim. She was residing in front of his house. But
he denied the incident dated 28/03/2017. He had to pass from
the victim’s house as he was residing in that area itself. The
victim’s relatives were suspecting him because of
misunderstanding. The victim’s grandmother and the parents
came to his house and started quarreling with the Appellant’s
family members. His mother tried to pacify them and requested
them not to go to the police station, but they did not listen and
lodged the false case against him.

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6. Learned Trial Judge on consideration of evidence led
by both the sides, believed the prosecution case and convicted
and sentenced the Appellant as mentioned earlier.

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7. The victim was examined as P.W.1. She has deposed as

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follows;

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She was residing with her parents, sisters and brother.
She was educated upto 7th standard. The incident took place on
28/03/2017. It was a Tuesday. Her grandmother and mother
had gone to a village to sell cutlery. In the afternoon, at about
03.00 p.m., even her father went to the market. She went to
collect wood as fuel for cooking. When she was collecting wood,
a boy from the village came near her. He caught her. She
shouted. He assaulted her with fist blows on her stomach. He
pressed her mouth. He fell her down. He removed her clothes.
He removed his own clothes. He put on a condom and then
committed rape on the victim. It caused bleeding from her
private part. She wiped the blood with her Odhani. That boy
threatened her. After that, she returned home. She was crying.
Her father enquired with her. She told the incident to him. She
further told her father that the boy who was roaming around
their house, was the same boy who had committed that offence.
Her father informed her mother telephonically. She came home.

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The victim was suffering from pain and also it was late.
Therefore they did not go to the police station. On the next day
morning, she went to bring milk. While returning she saw that
the Appellant was sleeping on a Cot in front of a neigbourning
house. She came back home and told others that the same boy
was sleeping on the Cot nearby. The victim, her mother and
grandmother then went to the house of the Appellant. They
questioned the Appellant’s mother. They came to know about
the Appellant’s name from her. In the meantime, the Appellant
had run away. The Appellant’s mother offered Rs.500/- to settle
the matter. But the victim’s family refused. After that, the victim
lodged her FIR at the police station. The FIR is produced on
record at Ex.11. She identified the Appellant before the Court.
After registration of her FIR, she was referred for medical
examination. She showed the spot of incident to the police. Her
statement was recorded u/s 164 of Cr.P.C. It is produced on
record at Ex.12. During investigation, the police seized her
clothes. She identified her clothes and the torn Odhani. She also
identified the Condom which was found at the spot.

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In the cross-examination she stated that she, her sisters

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and brother were born at Sangamner. She was born at
Sangamner in a Government hospital. After the incident, she
had taken bath. When she told her family members about the
incident, they decided to wait till the next day. At the time of
lodging of the FIR one Police officer took down her complaint.
One lady police officer took her in confidence and inquired
about the incident. She also wrote down something and both
these narrations were combined together to draft the final
complaint. The victim and her family stayed at the police station
for the entire day and night. She was not referred to the hospital
immediately after lodging of the FIR. She had given her Odhani
to the police which was stained with blood. According to her,
she had cleaned the blood from her private part with that
Odhani. Her underwear was also stained with blood. She had
received a bruise injury. According to her, the Appellant used to
move around her house on his motorcycle since 2-3 days before
the incident. She denied the suggestion that she had complained

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to the police only about his roaming around her house, but the
police gave serious colour by registering it as an offence of rape.

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The FIR is produced on record at Ex.11. It shows that it
was registered at 00.10 a.m. on 30/03/2017 at Yeola City Police
Station vide C.R.No.38/2017. Her FIR substantially corroborates
her evidence. The statement of P.W.1 u/s 164 is produced at
Ex.12. She has accepted that the contents of that statement were
correct. That statement also substantially corroborates her
deposition.

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8. P.W.2 is the father of the victim. He has deposed that on

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28/03/2017, he had gone to the market at about 03.00 p.m. He
returned after about an hour. He saw that P.W.1 was crying. She
told him about the incident. He called his wife. He went on his
motorcycle to bring her back. He also brought his mother from
another village. P.W.1 narrated the incident to all of them. P.W.1
was having pain in the stomach. She was frightened. It was late
in the night. Therefore they did not go to the police station. On

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the next day, P.W.1 told the family members about the Appellant
that he was sleeping in the neighbourhood. P.W.2 himself went
in the village to make enquiry about the Appellant. He came to
know that his name was Rahul and he was a Mason. He
produced copies of the bonafide certificate and th ebirth
certificate.

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In the cross-examination, he accepted that P.W.1 had
not told him that the Appellant had given a blow on her
stomach. He did not take her to a Doctor though P.W.1 was
suffering from pain. He did not tell about the incident to the
Police Patil of the village. He denied the suggestion that a false
complaint was lodged.

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9. P.W.3 was the mother of the victim. She has deposed in

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almost the same manner as deposed by P.W.2. She has
corroborated the version of P.W.1 and P.W.2.

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10. P.W.4 Dr. Sonal Khandare had examined the victim on

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30/03/2017. From the medical examination, she found abrasion

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of size 4 x 5 cm over left buttock of the victim. There was no
other external injury. The victim’s hymen was torn. That part
was painful for the victim. There were no injuries on the
genitals.

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In the cross-examination she admitted that, on the
basis of hymen tear only, no definite opinion could be expressed
that the victim had undergone sexual intercourse. She also
admitted that if the sexual organs were disproportionate and
there is forceful intercourse, then there was possibility that there
may be injury to the private parts. Finger insertion examination
is very primary test and the pain in the area was depending on
the size. This witness further deposed that on the basis of
medical examination she could not definitely tell if the victim
had undergone forceful sexual intercourse. She had given her
primary report regarding suspected intercourse only on the basis
of torn hymen and abrasion on buttock. The medical papers
were produced at record at Ex.28.

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11. P.W.5 Babaji Gunjal was the Head Master of the school

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where the victim studied. He issued the bonafide certificate as
per their register. The entry regarding the victim was at Sr.1500.
According to that entry, the victim’s date of birth was
12/04/2004. On the basis of that entry, the bonafide certificate
was issued.

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In the cross-examination, he deposed that the victim
was given admission on the basis of School Leaving Certificate
issued by the previous school. He had not seen the birth
certificate issued by Primary Health Centre. The bonafide
certificate was produced on record at Ex.30.

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The victim’s birth certificate was produced on record at

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Ex.66.

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12. P.W.6 API Vishwas Raosaheb Nimbalkar was attached to

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Yeola City Police Station. On 29/03/2017 the victim had given a
complaint. The offence was registered vide C.R.No.38/2017.

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This witness conducted the investigation. The victim was sent
for medical examination. The Appellant was arrested on
30/03/2017. He was sent for medical examination. The clothes
of the victim and the Appellant were seized. This witness went
to the spot and conducted the Spot Panchanama. One Condom
which was torn in two pieces was seized from the spot. He sent
the victim for recording of statement u/s 164 of Cr.P.C. the
clothes and other articles were sent for chemical analysis and on
completion of the investigation, the charge-sheet was filed. The
C.A. report was produced on record which Ex.51. The Condom,
the clothes of the victim and the clothes of the Appellant were
sent for chemical analysis. Semen was found on the underwear
of the Appellant. On the knicker and Odhani of the victim, blood
of ‘AB’ group was detected. There was no semen found on other
clothes and no vaginal fluid was detected on the Condom or on
the clothes of the Appellant. The victim’s blood group was found
to be ‘AB’. The Appellant’s blood group was ‘A’.

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This, in short, is the evidence led by the prosecution.

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13. As mentioned earlier, the Appellant examined himself

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as defence witness No.1. He denied the incident. The learned
Trial Judge believed the evidence of the prosecution, disbelieved
the defence and convicted and sentenced the Appellant as
mentioned earlier.

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14. Learned counsel for the Appellant made following submissions -:

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The medical evidence does not support the case of the
victim. The Panchas to the Panchanamas are not examined. No
explanation is offered by the Investigating Officer as to why
none of the Panchas was examined. There was delay in lodging
the FIR. The C.A. report is not incriminating. In fact, it supports
the defence, because nothing was detected on the Condom,
neither semen nor vaginal fluid. There was no injury to the
private part of the victim. There was improvement in respect of
the offering of Rs.500/- from the police statement of the
witness, on the part of the mother of the Appellant. The

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Appellant was admittedly staying in the neighbourhood and yet
the victim and her family did not know the Appellant’s name or
any other details. This is not believable. He finally submitted
that there was no reason to make the sentences run
consecutively and therefore the sentence is harsh.

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15. Learned APP as well as learned counsel for the
Respondent No.2 opposed these submissions. According to them,
the victim was not highly educated. She belonged to a poor
family. Her family used to go to from place to place for selling
cutlery. There was no reason for her to know the name and
other details of the Appellant. They were not knowing each
other. The evidence of P.W.1 is clear enough and on that basis
alone the conviction can be recorded. The medical evidence is
not against the version of the victim. The date of birth of the
victim is not disputed.

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16. I have considered these submissions. As far as date of
birth of the victim is concerned, the prosecution has produced

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on record the birth certificate and the bonafide certificate
showing her birth date as 12/04/2004. That evidence is not
challenged seriously by the defence. In any case, the birth
certificate is duly proved through its certified copy. It can safely
be held that her date of birth was 12/04/2004 and on the date
of incident i.e. on 28/03/2017, she was 12 years and 11 months
old.

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17. As far as the corroborative piece of evidence is
concerned, the prosecution has sought to rely on the evidence of
the Doctor and also on the Spot Panchanama. As far as th
eDoctor’s evidence is concerned, she has not given a conclusive
opinion about the forcible sexual intercourse. However, at the
same time, she has observed that the hymen was torn and that
area was painful for the victim. though it does not conclusively
corroborate the version of the victim, yet it is not against the
prosecution case either. To that extent, it does support the case
of the P.W.1.

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18. As far as finding of Condom recovered on the spot is

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concerned, as rightly submitted by learned counsel for the
Appellant, the Panchas to the Panchanama were important
witnesses and but they were not examined and no explanation
whatsoever was given by the Investigating Officer or the
prosecution for not examining those Panchas. In a given case,
such Panchanama and seizure of articles can be proved through
the evidence of the Investigating Officer, but in this particular
case the Panchas are not examined at all and no explanation is
offered by the prosecution for their non-examination. Therefore
this has considerably weakened the evidentiary value of the Spot
Panchanama and recovery of the Condom. Further more, the
C.A. report regarding that the Condom also has not revealed
anything. It did not show presence of either semen or vaginal
fluid.

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19. More importantly, there is one strong corroborative
incriminating piece of circumstance in the nature of blood
stained Odhani of the victim. That Odhani was produced by the

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victim herself. The C.A. report shows that the said Odhani had
blood stains of ‘AB’ group which was the blood group of the
victim. The victim stated that, at the time of the incident she had
used that Odhani to wipe blood from her private part. There was
no other bleeding injury on her person. Therefore finding
victim’s blood on the Odhani is seriously incriminating
circumstance against the Appellant. This also corroborates the
version of the victim/P.W.1.

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20. Apart from this corroborative piece of evidence the
most important evidence in this case is that of the victim herself.
Her version is required to be considered minutely. After reading
her evidence in detail, I do not find any circumstance which
raises doubt regarding her version. I find that her evidence is
clear, cogent and free from any doubt. She has described the
incident in sufficient details. Sequence of events narrated by her
are corroborated by her parents. Therefore, on the basis of the
evidence of P.W.1 alone, the prosecution has proved its case
beyond reasonable doubt. I do not find any substance in the

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arguments that there was delay in lodging the FIR. The father of
the victim (P.W.2) has explained that it was late in the night and
therefore they did not go to the police station on the same day.
On the next day morning the Appellant and his family were
confronted and after that the victim and her family members
approached the police station. After all this, the victim’s
statement was recorded and ultimately the FIR was lodged.
Therefore it cannot be said that there was delay in lodging the
FIR or that there was concoction of false story.

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21. The defence of the Appellant is also not acceptable.
Just because the Appellant was roaming in the area, it was not a
good enough reason for implicating him falsely in such a serious
offence. The victim was a girl of hardly 12 years of age. Her
evidence is found to be truthful. She had given details of the
threats given by the Appellant and has established how she was
rendered helpless during the entire incident. In this view of the
matter, the examination of the Appellant himself as a defence
witness does not help him in disproving the prosecution case.

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The learned Judge has rightly considered all these aspects and
has recorded the conviction and sentence.

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22. The next question is about the sentence imposed on the
Appellant as mentioned earlier. He was sentenced to suffer
rigorous imprisonment for 10 years for commission of offence
punishable u/s 376(2)(i) of the Indian Penal Code. It was also
referred to as the alternate punishment for commission of the
offence under section 4 of POCSO. Besides this sentence, the
Appellant was separately sentenced for commission of offence
punishable u/s 323 and 506 of the IPC. Sentence of 10 years
rigorous improvement is the minimum sentence prescribed by
section 376(2)(i) of the Indian Penal Code as it stood then on
the date of incident. Since the sentence imposed is minimum,
there is no scope to reduce it further. However, learned Judge
has not given acceptable reasons as to why the substantial
sentences were directed to run consecutively. Considering the
young age of the Appellant who at that time was of 22 year old,
some benefit can be extended to him by making the substantive

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sentence to run concurrently instead of consecutively. To that

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extent, the operative part needs to be modified.

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23. Hence, the following order :

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O R D E R

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(i)The Appeal is partly allowed.

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(ii) The conviction and sentence awarded to the Appellant are maintained. However, all the substantive sentences are directed to run concurrently instead of consecutively.

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

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(iv) With this modification, the Appeal is disposed of.

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(v) With disposal of the Appeal, the connected application is also disposed of.

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(SARANG V. KOTWAL, J.)

Rahul Ramhari Gaikwad v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rahul Ramhari Gaikwad v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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