Bombay High Court
Balu S/O Pundlik Ingle vs State Of Maharashtra … on 2 May, 2018
Bench: R. B. Deo
apeal106.01.J.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPEAL NO.106 OF 2001 Balu Pundlik Ingle, Aged about 25 yrs., Occ: Labourer, R/o Wadner Bholji, Tq. Nandura, Dist. Buldana. ……. APPELLANT …V E R S U S… State of Maharashtra, through P.S.O. P.S., Nandura, Tq. Nandura, Dist. Buldana. ……. RESPONDENT ——————————————————————————————- Shri R.L. Khapre, Advocate for Appellant. Shri N.B. Jawade, APP for Respondent/State. ——————————————————————————————- CORAM: ROHIT B. DEO, J.
DATE: 2 nd MAY, 2018. ORAL JUDGMENT 1] The appellant is aggrieved by the judgment and order
dated 24.04.2001 rendered by the Additional Sessions Judge, Khamgaon in Sessions Case 20/1996, by and under which, the appellant-accused is convicted for offence punishable under Section 376 (2) (f) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.2000/-.
::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 2 2] Heard Shri R.L. Khapre, the learned Counsel for the appellant and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.
3] The genesis of the prosecution lies in oral report dated 01.07.1994 (Exh.14) lodged by P.W.1 Sou. Chhaya Ravindra Deshmukh at Police Station Nandura, the gist of which oral report is thus:-

P.W.1 Chhaya and her husband P.W.2 Ravindra Deshmukh and their two daughters aged 4 years and 2 years reside in Sahayata hutment area at Wadner (Bholji) within the jurisdiction of the Nandura Police Station. The accused, then aged 18 years, resides two houses away, with his mother. On 30.06.1994 between 03:00 and 04:00 p.m., the elder daughter-victim came home crying. P.W.1 pacified her and asked her as to what happened and the response of the victim was to disclose that the accused (referred to as “Mama” or maternal uncle) made her lie on the ground and asked her to show her buttock. The victim then disclosed, that she was ravished, by pointing finger towards her vagina. P.W.1 rushed to the house of ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 3 the accused and confronted him. The accused was frightened and kept mum. P.W.1 personally inspected the vagina of the victim and noticed sticky fluid and that the vagina was reddish. P.W.2 came home at 05:00 p.m. and the incident was disclosed to him by P.W.
1. P.W.1 and P.W.2 deliberated and then with the assistance of Jivansingh Deshmukh (P.W.3) called the Police Station on 01.07.1994 and lodged the oral report.
4] The Nandura police registered offence punishable under Section 354 and 376 read with Section 511 of the Indian Penal Code against the accused. Investigation ensued, upon completion of which charge-sheet was submitted in the court of Judicial Magistrate First Class, Malkapur who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh.9) under Section 376 (2) (f) of the Indian Penal Code. The accused abjured guilt and claimed to be tried. The defence of the accused is of total denial and false implication. In response to question 27 in the statement recorded under Section 313 of the Criminal Procedure Code, 1973 the accused stated thus:- P.W.1 Chhaya has constructed her house by encroaching ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 4 on the road. On that count there was quarrel in between me and P.W.1 Chhaya and her husband. There was a quarrel in between my mother and P.W.1 Chhaya as the turathi bundles kept by me were thrown by P.W.1 Chhaya and her husband. Jivansing Deshmukh is the maternal uncle of Chhaya. Jiwansing was the member of Grampanchayat. Jiwansing Deshmukh has prepared complaint against me.

The defence of false implication is further discernible from the trend and tenor of the cross-examination. 5] The prosecution examined six witnesses to bring home the charge. The victim was not examined, although, the record reveals that the statement of the victim was recorded by police. It was the learned A.P.P. Shri Jawade who, as an exemplary officer of the court fairly brought to the notice of the court that the record reveals that the statement of the victim was recorded. The learned Sessions Judge was pleased to convict the accused, as aforestated.
6] Shri R.L. Khapre, the learned counsel for the accused would submit that the failure of the prosecution to examine the victim is fatal. The next submission of Shri Khapre is that reading ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 5 the spot panchnama (Exh.18) and the medical evidence together, it is extremely doubtful whether the victim was medically examined as is deposed by P.W.6 Dr. Sau. Subhangi Kulkarni. Shri Khapre would further submit that the defence of false implication is more than probablized on the touchstone of preponderance of probabilities. In rebuttal, the submission of the learned A.P.P. Shri Jawade is that the failure of the prosecution to examine the victim is per se not destructive of the prosecution case. The evidence of P.W.1, which is corroborated by the medical evidence, is sufficient to sustain the conviction, is the submission. Shri Jawade would submit that the judgment and order impugned is unexceptionable.
7] The most material witness from the perspective of the prosecution is P.W.1 Chhaya Deshmukh. She has deposed that between 02:00 to 03:00 p.m. on the day of the incident the victim was playing on the heap of turati (dry stick). The accused came, called the victim and took her away to his house. The victim returned home after half an hour, weeping. The victim disclosed that the accused displayed his buttock. P.W.1 inspected the private ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 6 part of the victim and noticed swelling and reddishness and sticky fluid. P.W.1 confronted the accused who remained silent. When her husband-P.W.2 returned home at 05:00 p.m. P.W.1 disclosed the incident. P.W.1, P.W.2 along with the victim went to the police station. However, the police did not receive the complaint. The next day between 09:00 to 10:00 a.m. P.W.1 narrated the incident to P.W.3 Jivansingh Deshmukh who telephonically called the Nandura Police Station. P.W.1 was summoned to the police post at Wadner (Bholji) where she lodged the oral report.
In the cross-examination, an endeavour is made to demonstrate that the accused is falsely implicated at the instance of Jivansing Deshmukh, since the accused and other residents of the locality objected to the encroachment made by P.W.1 on the road, while constructing her house. P.W.1 admits that she constructed the house on government land by encroaching the road. She however, denies the suggestion that the accused is falsely implicated. Several omissions are brought on record, which are duly proved in the evidence of Investigating Officer P.W.5 Vitthal Bhusari. The most vital and glaring omission is that P.W.1 ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 7 did not disclose to the police that when her daughter was playing the accused came and by calling out to the victim, took her away to his house. The evidence of P.W.1 that the victim disclosed that accused exposed his buttock, is a proved omission. The evidence of P.W.1 that she confronted the accused with the allegation that he had sexually ravished her daughter, which allegation the accused denied, is again an omission.
8] The evidence of P.W.1 that when the victim was playing on the heap of turati she was taken away by the accused to his house is an omission which touches the very substratum of the prosecution version and the embellishment seeks to introduce the “last seen together” circumstance. I had no hesitation in keeping out from consideration the evidence of P.W.1 Chhaya Deshmukh that the accused came to her house and took the victim with him. 9] P.W.2 Ravindra Deshmukh has deposed that he returned home at 05:00 p.m. and P.W.1 narrated the incident between 07:00 and 07:30 p.m. P.W.2 states that he went to the police post with the victim and P.W.1 and the police did not receive ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 8 the complaint. This evidence is inconsistent with the evidence of P.W.1 who states that it was P.W.2 and the victim who went to the police station. The version of P.W.1 Chhaya Deshmukh, as has come on record in the cross-examination, is that after her husband returned from the police station on the day of the incident he disclosed to P.W.1 that the police did not receive the complaint. P.W.2 then states that on the next day morning, the mother of the accused started abusing P.W.2 and thereafter he went to P.W.3 Jivansing Deshmukh and narrated the incident. P.W.2 has deposed that the police did make inquiry from the victim, and the victim narrated the incident to the police by signs.
10] P.W.6 Dr. Subhangi Kulkarni examined the victim at 04:30 p.m. on 01.07.1994 and she has proved the medical certificate Exh.27. P.W.6 did not notice any external injury or marks of violence on the person of the victim. On local examination, P.W.6 noticed thus:-
Vulva was slightly odematous. No stains of blood or semen seen on the private part and thighs. Small abrasion on right vulva inner side size 2 cm x ½ c.m. Small abrasion seen on the inner side left vulva having size ½ c.m. x 1 c.m. Hymen present i.e. intact.
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P.W.6 has deposed that although no definite opinion could be given about rape, from abrasion noticed on the inner side of vulva attempt to rape is a possibility. It is elicited in the cross-examination that the age of the abrasion is not mentioned. The suggestion that the abrasion on the vulva could have been caused by turati stick, is denied. The witness admits that she did not mention identification marks of the victim in report Exh.27 and that she is not in a position to identify the girl if produced before her. P.W.6 states that the medical examination took 30 minutes from 04:30 p.m. onwards. The witness further admits that she is not in a position to opine on the age of injury 1 and 2 mentioned in certificate Exh.27. She denies the suggestion that the victim was not brought to the hospital for medical examination. Shri Khapre invites my attention to the spot panchnama (Exh.18), and more particularly to the statement in Exh.18 that the recording commenced at 04:45 hours and concluded at 05:45 p.m., in the presence of P.W.1 and the victim. The submission is that if the spot panchnama is taken at face value, the victim could not have been medically examined from 04:30 p.m. onwards. The possibility of the victim not brought to the hospital for ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 10 medical examination, is a real possibility, is the submission. I do not see any reason to disbelieve P.W.6. It is possible that an error has occurred in recording the time in the spot panchnama or in medical certificate Exh.27. It is quite possible, that the spot panchnama is not correctly recorded and the victim may not be present with her mother P.W.1 during recording of the spot panchnama. However, I am not in a position to persuade myself to hold that P.W.6 Dr. Subhangi Kulkarni did not examine the victim at all.
11] I have already held that the evidence of P.W.1 Chhaya Deshmukh that it was the accused who took the victim with him on the day of the incident, must be discarded. The only evidence on record, other than the corroborative medical evidence, is the version of P.W.1 Chhaya Deshmukh that the victim disclosed that the accused displayed or exposed his buttock (which is a proved omission) and that when she inspected the private part of the victim she noticed redness and swelling and sticky fluid. The report of the Chemical Analyzer Exh.25 is of no assistance to the prosecution since neither blood nor semen is detected on the ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 11 underwear or hair or the vaginal swab, of the victim. 12] In the teeth of the evidence on record, the pivotal issue is whether the non-examination of the victim is fatal to the prosecution case.
13] Section 118 of the Evidence Act reads thus:- Section 118. Who may testify. — All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. Explanation. — A lunatic is not incompetent to testify, unless he is prevented by his Lunacy from understanding the questions put to him and giving rational answers to them.”

Plain reading of Section 118 of the Indian Evidence Act reveals that the general rule is that every person is competent to testify and incompetency is an exception. A witness would be incompetent if he or she is unable to understand the question put to him or her or give rational answers. The inability to understand the question and give rational answer may be due to tender years, ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 12 extreme old age, disease of body or mind or any other cause of the same kind. The legislature in its wisdom, has not exhaustively enumerated the causes of incompetency as is evident from the use of expression “any other cause of the same kind”. 14] It is trite law, and it is not necessary to burden the judgment by referring to plethora of authorities that there is no straight jacket formula that a child of particular age alone would be a competent witness. Indeed, such an assumption would not only be fallacious, same would militate against the plain language of Section 118. The intellectual and emotional growth differs from person to person. The ability to understand the question and to give a rational answer would vary from child to child. Shri Khapre, the learned counsel for the accused has invited my attention to certain decisions of the Apex Court in which child aged 4 years is examined and the testimony is relied upon to hold the accused guilty. However, the competency of the child cannot be assessed on the basis of the precedents or the view taken by the courts in the backdrop of the factual matrix.
::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 13 15] Be it noted, that although the victim was 4 years on the day of the incident, she was aged 11 years on the day of recording of the evidence in the trial. The competency of the child is required to be determined as on the day of the incident, and as on the day on which the child is to be examined as witness. Ordinarily, the determination of the competency of the child as witness is the function of the court. The judicially evolved procedure is to subject the child to preliminary examination – Voir Dire in which questions are put to the child to assess the capacity, intelligence and comprehension of the child witness. Voir Dire is certainly not mandatory. Examining the child without conducting Voir Dire is neither illegal nor seriously irregular since ultimately the competency of the child may be determined from the evidence tendered before the court. However, Voir Dire not only saves the valuable time of the court, if a formal record of Voir Dire is maintained by the trial court, which is invariably done, such record enables the appellate court to re-determine the competency of the child witness. The jurisprudential logic underlying Voir Dire is to assess the capacity of the child to understand the question and to give rational answer.
::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 14 16] The determination of the competency of the child, by conducting Voir Dire or otherwise, is the function of the court and if the child is the victim or a material witness, failure of the prosecution to produce the child before the court would certainly be fatal, in the absence of other clinching evidence on record to bring home the charge or in the absence of material to assume and accept the uncontroverted or irrefutable inability of the child to understand the question and give rational answer due to extreme tender age or mental or physical disability as in case of a child who is mentally retarded or deaf and dumb and there is material on record to show that due to such physical or mental disability the child would not be a competent witness. Ordinarily, the prosecution is obligated to produce the child before the court and leave it to the judicial mind of the court to determine the competency of the child.
17] The victim was concededly, 11 years of age when the recording of evidence commenced. Her statement was recorded by Lady Police Constable Thakur during investigation. It is not even the case of the prosecution that the child was suffering from any ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 15 mental or physical disability as would preclude her from understanding the questions and giving rational answers. The competency of the child is predicated not necessarily on age, but on the intellectual or emotional growth of the child. In normal course, unless there is irrefutable evidence on record to show that the child was not a competent witness, the court would be justified in drawing an adverse inference against the prosecution if the child, who is either the victim or a material witness, is not produced in the court to enable conducting of Voir Dire. 18] In the present case, the conscience of this court is satisfied that the failure of the prosecution to put the child in the witness box is fatal to the prosecution case. The only evidence on record is the version of the P.W.1 that the child disclosed that “Mama” (maternal uncle) exposed his buttock and that upon examination of the private part of the child swelling and reddishness and sticky fluid, was noticed. No explanation is forth coming from the prosecution for not examining the child although she was 11 years of age when the recording of evidence commenced. The evidence of P.W.1, which is even otherwise ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 16 marred by embellishment and inter se inconsistencies with the evidence of P.W.2, is too shaky and fragile to be the basis of conviction.
19] The presumption of innocence is one of the golden threads which runs through the web of the criminal administration system. Liberty of an accused is too precious to be sacrificed at the alter of suspicion. The gulf between “might have” and “must have” must be bridged by the prosecution by adducing cogent, reliable and trustworthy evidence, which the prosecution failed to do. 20] It would be extremely unsafe and hazardous to base the conviction on the evidence on record, particularly since the best possible evidence is suppressed.
21] The judgment and order impugned is set aside. 22] The accused is acquitted of offence punishable under Section 376 (2) (f) of IPC.
::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 ::: apeal106.01.J.odt 17 23] The bail bond of the accused shall stand discharged. 24] The fine paid by the accused, if any, shall be refunded.
25] The appeal is allowed. JUDGENSN ::: Uploaded on – 02/05/2018 ::: Downloaded on – 04/05/2018 01:40:10 :::

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