Sunil Deorao Ratne vs State Of Maharashtra

The present appeal is directed against the judgment and order dated 10.05.2019 passed by the learned Special Judge, Darwha, in Special Case (POCSO) No.12 of 2016. By the said judgment, the appellant was convicted for the offences punishable under Sections 354, 354-A and 506 of the Indian Penal Code (In short, ‘IPC’) and Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (In short, ‘POCSO Act’). He was sentenced to various terms of imprisonment and fine, as detailed in the impugned judgment. The appellant was, however, acquitted of the offence punishable under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (In short ‘Atrocities Act’).

Briefly stated, the prosecution case is that the victim was about 15 years old at the time of alleged incident. According to the complaint dated 27.09.2015, on the same day at about 1:30 p.m., the victim was cleaning utensils in front of her house situated at Wadarpura, Digras. It is alleged that the appellant passed by and made an indecent gesture by blinking his eyes towards her. The victim reacted by abusing him and slapping him. It is further alleged that thereafter the appellant caught hold of the hand of the victim and threatened her by saying that she belonged to him and that if she resisted, he would rape her and kill her. After issuing such threat, the appellant allegedly left the spot. The victim disclosed the incident to her mother and grandmother immediately thereafter and subsequently informed her father. On the basis of the said disclosure, the report came to be lodged at Police Station Digras.

On the said report, Crime No.347 of 2015 was registered. During the course of investigation, the spot panchnama was prepared. The Investigating Officer collected the school leaving certificate, school admission and discharge extract, and caste certificate of the victim. The appellant was arrested during investigation. Statements of witnesses were recorded and, after completion of investigation, the charge-sheet was filed before the competent Court.

The learned trial Court framed Charge (Exhibit No.2) against the appellant for the offences punishable under Sections 354, 354-A and 506 of the IPC, Section 3(1)(xi) of the Atrocities Act, and Sections 8 and 12 of the POCSO Act. The charge was read over and explained to the appellant in vernacular. He pleaded not guilty and claimed to be tried.

The prosecution examined five witnesses including PW 1 – mother of the victim at Exh.14, PW-2 victim at Exh.15, PW3 Limbaji Sadashio Kadam, panch witness at Exh.23, PW 4 Ashok Shankarrao Chukekar, Head Master of School at Exh.26 and PW 5 Kalpana Manikrao Bharade, SDPO at Exh.34.

After completion of the prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. The appellant denied the allegations and claimed false implication. His defence was that there was a previous dispute with the parents of the victim and, due to such enmity, a false case had been filed against him.

Upon appreciation of the evidence on record, the learned trial Court held that the prosecution had proved that the appellant had made indecent gestures towards the victim and had caught hold of her hand. The learned trial Court concluded that such acts amounted to use of criminal force with sexual intent and thereby constituted offences punishable under Sections 354 and 354-A of the IPC. The learned trial Court further held that the act of holding the hand of the minor victim amounted to physical contact with sexual intent, thereby satisfying the ingredients of Section 7 of the POCSO Act, and consequently convicted the appellant under Section 8 of the said Act. The appellant was also convicted under Section 12 of the POCSO Act for issuing threats to the victim.

So far as the charge under the Atrocities Act is concerned, the learned trial Court held that the prosecution failed to establish that the victim belonged to a Scheduled Caste, as her Caste Certificate mentioned her caste as “Boudha”. Accordingly, the appellant was acquitted of the said offence.

Aggrieved by the findings of conviction and the sentences imposed by the learned trial Court, the appellant has preferred the present appeal.

Mr. Chawhan, learned Counsel appearing for the appellant, assailed the impugned judgment on the following grounds:

Per contra, the learned Additional Public Prosecutor Ms. Sonia Thakur supported the impugned judgment and submitted that the victim was a minor aged 15 years at the time of the incident. There was no reason for the victim to falsely implicate the appellant, as no prior animosity between them has been brought on record. It was argued that if the testimony of the victim is found to be reliable and inspires confidence, no corroboration is required in law.

The learned Additional Public Prosecutor further submitted that outraging the modesty of a woman, particularly a minor girl, is a serious offence. According to the prosecution, the evidence on record clearly establishes that after the victim had slapped the appellant, the appellant caught hold of her hand and threatened her, thereby applying criminal force with sexual intent. Therefore, the learned trial Court has rightly convicted the appellant under Sections 354, 354-A and 506 of the IPC read with Sections 8 and 12 of the POCSO Act. It was submitted that the findings recorded by the learned trial Court are well-reasoned and do not call for any interference by this Court.

PW-1 – Mother of the Victim : PW-1 is the mother of the victim. She was not present at the time of the alleged incident, as she herself admitted that she had gone to her work and returned home only at about 3:00 p.m. Her evidence is entirely based on what was narrated to her by the victim. She has no personal knowledge of the incident. Her testimony is thus hearsay in nature and does not provide any direct corroboration to the prosecution case. Beyond stating that her daughter informed her about the incident, no independent fact has been proved through her deposition.

PW-2 – Victim : The testimony of PW-2 forms the foundation of the prosecution case. She stated that the incident occurred at about 1:30 p.m. in front of her house, which is situated adjacent to a public road. She admitted that people frequently pass through the said road throughout the day. Despite this, she stated that no one else, except Vishal Landge, witnessed the incident. Importantly, PW-2 admitted that Vishal Landge was present at the spot, that he intervened, and that after persuasion, the accused left the place. Vishal Landge is thus a natural and material eye-witness, yet the prosecution has failed to examine him without offering any explanation. This omission assumes significance. PW-2 further admitted that her grandmother, aged about 69 years, was at home at the aforesaid time. However, she stated that no one except Vishal Landge knew about the incident until her parents returned home. This version appears doubtful in view of the location of the house and the time of the incident.

In cross-examination, PW-2 admitted that she stated before the police that the appellant told her that he loved her, but she could not assign any reason as to why this important fact does not appear in her police statement. This omission is material in nature and affects the consistency of her testimony. Thus, while PW-2 alleges that the appellant caught hold of her hand and issued threats, her testimony suffers from omissions, lack of corroboration, and surrounding circumstances which make it unsafe to rely upon her sole testimony without independent support.

PW-3 – Panch Witness : PW-3 was examined to prove the spot panchnama. He did not support the prosecution case and categorically denied that the police prepared the spot panchnama in his presence. He also denied that the contents of the panchnama were read over to him. PW-3 was declared hostile. As a result, the spot panchnama has not been proved through independent evidence. The place of occurrence, therefore, remains doubtful. This is a serious weakness in the prosecution case, particularly when the incident is alleged to have occurred in a public place.

PW-4 – Head Master: PW-4 produced the School Leaving Certificate and admission register to prove the age of the victim. However, in cross-examination, he admitted that the entries in the admission and discharge register are normally made by the clerk and that he could not say what documents were produced at the time of admission of the victim. He further admitted that he had not seen the birth certificate or any hospital record of the victim at the time of admission. PW-4 also admitted that he could not produce the earlier transfer certificate of the victim. Thus, the date of birth entered in the school record is not supported by primary documentary evidence. In the absence of proof regarding the basis of such entry, the age of the victim is not established beyond doubt. Further, PW-4 stated that the caste of the victim as per school record is shown as “Boudha”, which contradicts the claim of the victim that she belongs to “Mahar” caste. This contradiction assumes relevance and further weakens the prosecution case.

PW-5 – Investigating Officer: PW-5 stated that he prepared the spot panchnama and collected documents regarding age and caste of the victim. However, he admitted that no notice was issued to the panch witnesses. The spot panchnama is not corroborated by PW-3, who turned hostile. The Investigating Officer has relied entirely on the school record without establishing the authenticity of the source document for age determination. His evidence does not cure the lacunae arising from non-examination of material witnesses and failure to prove the spot of incident.

This Court has carefully re-appreciated the entire oral and documentary evidence on record in light of the submissions advanced by the learned Counsel for the parties.

The prosecution case rests primarily on the testimony of the victim (PW-2). It is a well settled law that the sole testimony of the victim can form the basis of conviction, provided it is cogent, reliable and inspires full confidence. However, where the testimony suffers from material omissions, inconsistencies or does not inspire confidence, the Court is required to exercise caution and extend the benefit of doubt to the accused.

In the present case, the victim has stated that at the time of the incident one Vishal Landge was present and that he intervened and persuaded the appellant and the appellant left the spot. The presence of Vishal Landge at the time of the incident is thus admitted by the victim herself. Despite being a natural and material eye-witness, the said Vishal Landge has not been examined by the prosecution. No explanation has been offered for his non-examination. The non-examination of such a crucial witness gives rise to a serious doubt about the correctness of the prosecution version.

Further, the spot of the alleged incident is stated to be in front of the house of the victim, which admittedly is situated adjacent to a main road. The incident is alleged to have taken place at about 1:30 p.m., a time when public movement is expected. In such circumstances, the absence of any independent witness assumes significance. The prosecution has not examined any neighbour or passer-by, though they were readily available. This omission weakens the prosecution case.

The spot panchnama also does not advance the prosecution case. The panch witness has turned hostile and has not supported the prosecution. As a result, the spot of the incident has not been duly proved. In a case where the incident is alleged to have occurred in a public place, failure to establish the place of occurrence creates a serious dent in the prosecution story.

As regards the age of the victim, the school leaving certificate has been proved through the Head Master (PW-4). Though the document has been exhibited, it is noticed that the Clerk who maintains the school records and is the custodian of such documents has not been examined. In the facts of the present case, this lapse assumes importance, as the prosecution case itself suffers from other infirmities and the age of the victim is a foundational fact for applicability of the provisions of the POCSO Act.

It is true that the sole testimony of the victim can form the basis of conviction. However, such testimony must be of sterling quality and must inspire complete confidence. In the present case, the testimony of the victim suffers from material omissions, lack of corroboration and surrounding circumstances which render the prosecution version doubtful.

The conviction of the appellant under the provisions of the POCSO Act is based on the allegation that the appellant caught hold of the hand of the victim. Section 7 of the POCSO Act defines “sexual assault” as an act involving physical contact with sexual intent. The relevant provision reads thus:

The crucial question, therefore, is whether the act of holding the hand of the victim was done with sexual intent. The evidence on record shows that the victim had slapped the appellant immediately prior to the alleged act. The act of holding the hand, viewed in the factual context of the incident, appears to be an immediate reaction rather than an act motivated by sexual intent. The prosecution has failed to bring on record any cogent material to establish sexual intent beyond reasonable doubt.

Similarly, for an offence under Section 354 of the IPC, the prosecution is required to establish that criminal force was used with the intention to outrage the modesty of a woman. Section 354 of the IPC reads as under:

The Hon’ble Apex Court, in State of Punjab v. Major Singh, AIR 1967 SC 63, has held that the intention of the accused is the decisive factor for attracting Section 354 of the IPC. The culpable mental state of the accused must be clearly established from the evidence on record. The ratio laid down in the said case is as follows :

The Hon’ble Apex Court in Raju Panduran Mahale Vs. State of Maharashtra and another, (2004) 4 SCC 371 relied on the dictionary meaning of ‘modesty’ which reads thus:

If the aforesaid test is applied to the facts of the present case, it emerges that except for a bare allegation of holding the hand of the victim, there is no cogent material on record to indicate that the appellant acted with the requisite intention to outrage the modesty of the victim. Admittedly, the victim did not sustain any injury, nor was she subjected to medical examination, which could have lent corroborative support to the prosecution version. It is further significant that Vishal Landge, an eye-witness who was admittedly present at the time of the incident and is a material witness, has not been examined by the prosecution without any plausible explanation. The house of the victim is situated abutting a main road where public movement is frequent, yet no independent witness from the vicinity has been examined. This omission assumes relevance while appreciating the credibility of the prosecution case.

It is no doubt a settled position of law that the testimony of the prosecutrix does not require corroboration, provided it inspires confidence and is found to be trustworthy. However, in the present case, the evidence of the victim does not pass that test. According to her own version, she slapped the appellant and, in response, the appellant allegedly held her hand and made certain utterances. Notably, the nature and contents of such utterances appear to have been improved upon during her deposition before the Court. The entire incident is stated to have occurred in the presence of Vishal Landge, whose non-examination creates a serious dent in the prosecution story and renders the version of the victim doubtful. These circumstances, though each may not be decisive in isolation, when cumulatively considered along with the other infirmities in the prosecution case, give rise to a reasonable doubt regarding the prosecution version. Consequently, the testimony of the victim, in the facts and circumstances of the present case, does not inspire the requisite confidence to sustain the conviction.

The conduct of the parties as emerging from the evidence also requires consideration. According to the prosecution, the victim herself abused and slapped the appellant. The subsequent allegation of catching hold of the hand and issuing threats is not supported by any independent evidence. The defence of the appellant that there was prior dispute with the parents of the victim has not been ruled out completely and appears plausible in the light of the infirmities noted above.

The learned trial Court has proceeded on the premise that mere holding of the hand of the victim amounts to sexual assault under Section 7 of the POCSO Act. However, for an offence under Section 7, the prosecution must establish physical contact with sexual intent. In the present case, except the bare statement of the victim, there is no material on record to conclusively establish sexual intent beyond reasonable doubt. The surrounding circumstances, omissions and contradictions render the prosecution version unsafe for sustaining conviction.

The cumulative effect of the above deficiencies, namely, non-examination of a material eye-witness, absence of independent witnesses despite availability, failure to prove the spot of occurrence and lack of convincing proof of sexual intent, creates serious doubt about the prosecution case. It is a settled principle of criminal jurisprudence that if two views are possible, the view favourable to the accused must be adopted.

Upon re-appreciation of the entire evidence on record, this Court is of the considered view that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt for the offences punishable under Sections 354, 354-A and 506 of the IPC and Sections 8 and 12 of the POCSO Act.

The findings recorded by the learned trial Court are not sustainable in law and are liable to be set aside. The appellant is therefore entitled to the benefit of doubt. Consequently, the following order: