Raj D. Wakode, J.
01. Heard Mr. Anil Mardikar, learned Senior Counsel assisted by Mr. S.A. Kanetkar, learned counsel for the appellant, and Mr. S.S. Doifode, learned APP for the respondent/State.
02. The present appellant has approached this Court seeking challenge to the impugned judgment and order dated 23rd October, 2020, passed by the learned District Judge-2 and Special Judge (POCSO Act), Wardha, in Special (POCSO) Case No. 40 of 2016, whereby the learned Special Judge convicted the present appellant for the offences punishable under Section 376(2)(f)(i) of the Indian Penal Code, 1860, and Sections 5(i), 5(m), and 5(p), punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced him to suffer imprisonment for life, meaning imprisonment for the remainder of his natural life, for the offence punishable under Section 376(2)(f)(i) of the IPC and under Section 6 of the POCSO Act. He has also been directed to pay a fine of Rs.2,00,000/- (Rupees Two Lakhs only), which shall be payable to the victim.
03. The prosecution case leading to the conviction of the present appellant is as follows:
PW-2 Dinesh Sudhakar Fulzele, the complainant, is the maternal uncle of the victim. The victim was residing with her maternal grandmother and maternal uncles at Mouza Barbadi, Tahsil and District Wardha. On 11th October, 2015, at about 5:00 p.m., the complainant was at home, while the victim was playing with her friends near the house. The complainant took some money from his mother and went out. Upon his return, the victim also came home and went to his mother. It was noticed that the victim’s frock was soaked with blood.
04. The complainant’s mother removed the victim’s clothes, including her panties, in his presence and saw that the victim’s vagina was bleeding profusely. When questioned by the complainant’s mother, the victim stated that she had gone to Bittu’s house to play and that Bittu’s father had inserted something into her vagina, causing pain and bleeding. When the complainant questioned her again, she reiterated the same thing. The victim’s frock and panties were found soaked in blood.
05. Thereafter, the complainant and his elder brother admitted the victim to Sewagram Hospital. Upon examination, the doctor informed them that the victim had been sexually assaulted. Consequently, the complainant approached the respondent police station and lodged a complaint on 11th October, 2015, which is at Exhibit 22. On the basis of the said complaint, FIR No.345/2015 was registered against the present appellant on the same day, which is at Exhibit 23.
06. Pursuant to the registration of the FIR, the respondent conducted the investigation and, upon completion thereof, filed the charge-sheet. The learned Trial Court framed the charge against the appellant vide Exhibit 4. The appellant pleaded not guilty and claimed to be tried.
07. In order to bring home the guilt of the appellant, the prosecution examined total of 14 witnesses and relied upon various documentary evidence. After the prosecution evidence was concluded, the appellant examined one defence witness, namely ASI Kishor G. Kohad, in support of his case.
08. Upon consideration of the charge framed against the appellant, the evidence led by the prosecution, the defence taken by the appellant, and after hearing the arguments of the learned counsel for the parties, the learned Trial Court convicted the present appellant for the aforesaid offences by its impugned judgment dated 23rd October, 2020. Being aggrieved by the said conviction and sentence, the appellant has preferred the present appeal before this Court.
09. We have gone through the evidence, documents, and the impugned judgment. We will refer the same to the extent if necessary to decide the following points that arise for our consideration. We have recorded our findings thereon for the reasons to follow:
| Sr. No. | Points | Findings |
| (i) | Whether prosecution proves that on 11th October, 2015 at the house of the accused at Mouza Barbadi, accused inserted his finger in the vagina of the six-year old victim (who was residing in his neighborhood) and committed penetrative sexual assault and thereby committed an offence under Section 5(i)(m)&(p) punishable by Section 6 of the POCSO Act and Section 376(2)(f)(i) of the IPC? | Yes. |
| (ii) | Whether interference is called for in the impugned judgment? | No |
| (iii) | What order? | Appeal is dismissed. |
As to point Nos.(i) to (iii)
10. A perusal of the paper-book and the original record of the learned Trial Court reveals that the age of the victim at the time of the incidence, i.e., on 11th October, 2015, was 5 years and 11 months. The prosecution proved the birth certificate of the victim at Exhibit 24. The date of birth recorded therein is 27th November, 2009, and the date of the incidence is 11th October, 2015. Thus, the victim had not even completed six years of age at the time of the incidence.
11. The said birth certificate and the date of birth mentioned therein were not disputed by the present appellant during the cross-examination of any of the prosecution witnesses and, therefore, the same stands proved.
12. The victim, in her statement dated 12th October, 2015, as well as in her supplementary statement dated 25th December, 2015, specifically narrated the incidence and the crime committed by the present appellant. The evidence of the victim is at Exhibit 27 (record page No.42). A perusal of the said evidence reveals that the victim had specifically attributed the overt act to the present appellant, which reads thus:
“Bittu used to stay near our house. I used to go to his house to play. One day when I had gone to Bittu's house to play, I was playing on the swing. At that time Bittu's father inserted his finger in my organ of urination
I had lot of pain. I came home and narrated the incident to my grand-mother that Bittu's father inserted his finger in my organ of urination 
Thereafter, she removed my clothes. There was blood on my clothes. My grand- mother removed my clothes and saw. Dinesh mama was at home at that time. They took me to the hospital at Sewagram.13. A perusal of the further examination-in-chief of the victim reveals that she identified the appellant before the learned Trial Court. She specifically deposed on oath that she was scared of him and did not want to go near him.
14. The learned Trial Court has recorded the demeanor of the victim as regards the present appellant, which reads thus:
“Witness has cringed at the sight of the accused. She also became afraid and stated 2 to 3 times that she does not want to go near him.”
15. The aforesaid demeanor of the victim, even after the lapse of three years from the date of the incidence, speaks volumes about the mental trauma suffered by her and her mental condition upon seeing the present appellant.
16. In his cross-examination, the appellant attempted to suggest that the injury sustained by the victim was due to her falling while playing. The said suggestion was categorically denied by the victim. Thus, the cross-examination of PW-4 (Victim) could not shake her clear and consistent examination-in-chief, which pointed towards the guilt of the present appellant.
17. The testimony of PW-4 (Victim) is duly corroborated by the testimonies of her mother (PW-3), her maternal uncle and complainant (PW-2), and their neighbour, Smita Satishrao Tamgade (PW-5). The learned Trial Court, in paragraphs 14, 15, and 16 of the impugned judgment, has elaborately recorded how these witnesses corroborated the incidence as narrated by PW-4 (Victim).
18. There are no material omissions or contradictions in their testimonies which go to the root of the matter. Though there are certain minor inconsistencies in the statement of the victim, it must be borne in mind that she was a minor aged about six years at the relevant time. Considering her tender age and the trauma endured by her, such minor inconsistencies were bound to occur. However, these minor discrepancies do not affect the core of the prosecution case.
19. The evidence of the aforesaid prosecution witnesses, namely PW-2, PW-3, PW-4, and PW-5, stands strongly corroborated by PW-6, Dr. Rahul Uddhav Ramteke, who examined the victim and prepared the forensic medical report. PW-6 specifically deposed regarding the injuries found on the private parts of the victim, which reads thus:
On examination I found that the patient was oriented to time, place and person but was not co-operative in giving history about the incident. I found linear abrasion (scratch) on back of trunk of length 4 cm. Reddish in color. Patient was shifted to OT and examination was carried under anesthesia. On local examination, I found in fourchette and introitus/vagina that blood clots were present in vagina, reddish in color. Hymen was torn at multiple places, reddish in color with fresh bleeding.”
20. PW-6 further deposed that his findings on medical examination were consistent with vaginal penetration, with evidence of hymenal tears at multiple places. He explained that such hymenal tears can occur only when there is penetration to a certain depth. He further clarified that insertion of a finger into the hymen could cause such injuries. Thus, the evidence of PW-6 strongly corroborates the prosecution case regarding penetrative sexual assault upon PW-4 (Victim) by the present appellant.
21. PW-6 proved the forensic medical report, which was exhibited at Exhibit 36. A perusal of the said report reveals that there was active bleeding at the time of examination. Owing to the tender age of the victim, the examination was conducted in the operation theatre under anesthesia. Blood clots, reddish in colour, were found in the vagina. The hymen was torn at multiple places and was reddish in colour with fresh bleeding. The doctor concluded that the findings were consistent with vaginal penetration with evidence of hymenal tears at multiple places.
22. PW-6 also proved the discharge summary of PW-4 (Victim), which is at Exhibit 38 (record page No.58). The discharge summary clearly supports the prosecution case regarding vaginal bleeding caused by penetration of a finger, resulting in rupture of the hymen and the presence of intravaginal clots, which were removed and cleaned at the hospital. Thus, the medical evidence strongly corroborates the prosecution case and establishes the guilt of the accused.
23. At this stage, it would be relevant to consider the definition of “rape” as provided under Section 375(b) of the Indian Penal Code, 1860, which reads thus:
“(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person;”
Thus, Section 375(b) of the IPC provides that the insertion of any object or a part of the body, not being the penis, into the vagina, urethra or anus of a woman shall be rape as per the aforesaid section. The medical evidence clearly showing the penetration of a finger into the vagina of the victim by the appellant is duly proved and thus it can be safely concluded that the appellant has committed an offence under Section 376 of the IPC.
24. The same position emerges from the scientific evidence. According to the prosecution, the frock and panties of the victim were soaked in blood. The Investigating Officer noticed blood stains at the spot, including on the stairs and on the road. He collected, seized, and sealed the said bloodstained material, including cement concrete mixed with earth, with the help of a hammer and chisel while preparing the spot panchanama. The clothes of the victim were also seized from PW-2 Dinesh S. Fulzele.
25. The requisition dated 30th November, 2015, for sending the seized muddemal property to the Regional Forensic Science Laboratory, Nagpur, is at Exhibit 45 (record page No.67). In response to the said requisition, the Investigating Officer received the report dated 20th August, 2016, from the Regional Forensic Science Laboratory, Nagpur, which is at Exhibit 82 (record page No.121).
26. A perusal of the said report reveals that the blood detected on the clothes of the victim, as well as on the cement concrete mixed with earth, was human blood. Further analysis was conducted by the Assistant Chemical Analyzer at the Regional Forensic Science Laboratory, Nagpur, by preparing a DNA profile. The DNA profile revealed that the DNA found on the exhibits was identical and matched with the DNA profile obtained from the bloodstained sample of the victim. Thus, the Chemical Analyzer’s report also corroborates the prosecution case.
27. When the appellant was questioned by the learned Trial Court regarding the aforesaid incriminating findings, he failed to offer any explanation and raised a two-fold defence, namely, that of alibi and false implication, which reads thus:
“On the date of the incident, I had left the house at 8.00 am. for my duty at Walfad Petrol Pang I was working as a Manager there. I used to return home at 7.00 to 8.00 pm. I am not aware about the incident at all. The police came to my house at about 10.00 to 10.30 pm. that night. I had guests in my house that day since it was a Sunday. I was sleeping at night with my wife. I do not know what happened. Police woke me up from my sleep and informed me that an offence is registered against me and that I should accompany them to the police station. I changed my clothes and went to the police station along with my son on his motorcycle. Police made enquiry with me. Since I did not know anything about the incident, I became confused. I told the police that I came home at night, had dinner and slept. I told them that I was sleeping because I had to attend duty the next day. I do not know anything about the incident. In 2014 my wife had stood for elections for the opposition party and her opponent was Rajvilas Domaji Moon. He used to persuade us to join him and fight the elections together. However, we did not want to be on his side. The elections got over. He was the friend of Dinesh Fulzale. We had an argument with Rajvilas during elections. I therefore feel that Rajvilas has filed this case as a revenge because of the said dispute. I do not know anything else.”
28. However, the aforesaid defence raised by the appellant is not supported by the suggestions put forth in the cross-examination of the prosecution witnesses. Though the appellant raised the plea of alibi, except for his bare statement, there is not an iota of evidence on record to substantiate the said plea. The appellant has not even remotely established his absence from the scene of offence, either through cross-examination of the prosecution witnesses or by examining any defence witness in support of his case.
29. Further, the appellant did not put any question to the prosecution witnesses, particularly PW-5, regarding any alleged enmity with him. On the contrary, in the cross-examination of PW-3, it was suggested that she was a neighbour of the appellant, that they shared cordial relations, and that there was no dispute between them. Such cross-examination at the instance of the appellant clearly washes out the defence of false implication.
30. In fact, during the cross-examination of PW-4 (Victim), the appellant attempted to suggest that there was a broken tree lying near his house, that the victim used to play on the said tree along with her friends, and that on the day of the incidence she fell while playing and sustained injuries. The said suggestion was categorically denied by the victim. Nevertheless, it is evident that the defence was sought to be developed on the theory of accidental injury while playing.
31. Further, the cross-examination of PW-6 (Doctor) reveals that the appellant attempted to suggest that the injury sustained by the victim could possibly occur if the girl inserted her own finger into her vagina due to itching. These inconsistent and contradictory defences taken by the appellant only strengthen the prosecution case. Thus, in our considered opinion, the learned Trial Court was fully justified in convicting the present appellant for the aforesaid offences on the basis of the oral as well as documentary evidence on record.
32. Mr. Mardikar, learned Senior Counsel, invited our attention to the evidence of PW-1 Nilesh Shende, who is a panch witness to the spot panchanama. In his examination-in-chief, PW-1 deposed that the house of the appellant is situated in Ward No.3. Mr. Mardikar further pointed out the intimation notice dated 12th October, 2015, issued by the Investigating Officer, which is at Exhibit 11 (record page No.14). In the said intimation notice, the sport of incidence is described as “the residence of the appellant in Ward No.3, Mouza Barbadi.” However, the spot panchanama dated 12th October, 2015 (Exhibit 12) records that the house of the appellant is situated in Ward No.4. He vehemently contended that such a discrepancy regarding the ward number is fatal to the prosecution case and creates a serious doubt about the correctness of the investigation.
33. Mr. Doifode, learned APP, however, submitted that the aforesaid discrepancy does not go to the root of the matter and does not render the said spot panchanama inadmissible in evidence.
34. A perusal of the deposition of PW-12, Brijpalsingh Rajpalsingh Thakur, the Investigating Officer, reveals that he has specifically deposed that the spot of incidence was the house of the appellant situated at Mouza Barbadi, Grampanchayat Ward No.4. It is further noteworthy that, in the entire cross-examination relating to the spot panchanama, no suggestion was put to the Investigating Officer on the aforesaid aspect. In view thereof, the ground raised by the appellant regarding the alleged discrepancy in the ward number deserves to be rejected.
35. Mr. Mardikar, learned Senior Counsel, then sought to assail the seizure reports. In that context, he invited our attention to Exhibit 13, the seizure panchanama dated 12th October, 2015, thereby showing the seizure of the frock, skirt, cloth and knickers of the victim. He also referred to another seizure panchanama dated 13th October, 2015 (Exhibit 70), pertaining to the seizure of the blood samples of the appellant.
36. The contention raised is that though the aforesaid muddemal articles were seized on 12th October, 2015 and 13th October, 2015, Property No.152/2015 came to be assigned only on 11th November, 2015. In support of this contention, the appellant examined DW-1, ASI Kishor G. Kohad (Exhibit 96), to substantiate that muddemal articles are required to be assigned a property number on the day they are deposited.
37. However, the record reveals that the appellant did not cross-examine the Investigating Officer on this aspect. A perusal of the cross-examination of PW-12 shows that though the witness was extensively cross-examined in paragraphs 11 and 12 regarding the seizure panchanama, there is no suggestion whatsoever about any discrepancy in the assignment of the property number. In the absence of any such suggestion, the appellant cannot now be permitted to challenge the seizure panchanama on a ground for which no opportunity was afforded to the Investigating Officer to furnish an explanation.
38. Further, it is pertinent to note that the Chemical Analyser’s report is only a corroborative piece of evidence. The guilt of the accused stands established primarily on the basis of the substantive evidence of PW-4 and other prosecution witnesses, which is duly corroborated by the medical examination reports.
39. Similarly, with regard to the alleged discrepancy as to whether the clothes of the victim were seized at her house or at the police station, all the prosecution witnesses have consistently deposed that the clothes were soaked in blood. This version is corroborated by the CA report as well as the DNA profile report. Therefore, the said ground also deserves to be rejected.
40. Mr. Mardikar, learned Senior Counsel, further invited our attention to the deposition of PW-1 Nilesh Shende (Exhibit 10, record page No.11), wherein he admitted that before entering the witness box he had gone through the contents of the documents. He also referred to the cross-examination of PW-4 (victim), who admitted that she had come to Court in the morning and was sitting in the office of the Public Prosecutor.
41. Mr. Mardikar, learned Senior Counsel, relying upon the judgment of the Gujarat High Court in Kanbi Vaghji Savji v. State of Gujarat [AIR 1968 Gujarat 11], argued that the evidence of the aforesaid two witnesses becomes inadmissible by reason of the bar under Section 162 of the Code of Criminal Procedure. However, the cross-examination of PW-4 does not disclose any admission that her police statement was read over to her immediately before the recording of her evidence. The same is the position with respect to PW-1.
42. The Full Bench of the Gujarat High Court in Nathu Manchhu v. State of Gujarat [1977 SCC OnLine Guj 37] has held thus:
“34. We may now examine the decision of the Division Bench of the Bombay High Court in State v. Maganbhai Jhaverbhai, Criminal Appeal No. 460 of 1953 decided by Vyas and Bavdekar, JJ. on Sept. 29, 1953. The learned Judges were considering the evidence of one Bai Sabu, daughter of Kashia Khalpa. Her evidence would have connected the accused of that case with the offence of murder under consideration. Her case was that while she was preparing loaves, the deceased all of a sudden hurriedly entered her house and ran into the back yard in a bleeding condition. He was closely followed in to the backyard by the six accused who were armed. Thereupon, she was terrified and ran away from the house. It was found that her police statement was read out to her before her evidence was recorded in the Committing Magistrate's Court as well as Sessions Court. Her statement was recorded under S. 164 of the Code by a Magistrate and before that also her police statement was read out to her. The case would fall under case No. 1 of the five illustrative cases set out earlier. Vyas, J. was of the view that on account of reading out of her police statement at three stages her evidence was inadmissible in view of the decisions of the Privy Council in Zahiruddin's case (48 Cri LJ 679(PC)) (supra). In his opinion, the view expressed by the Privy Council was not to be confined “only to the physical use or tangible use of her police statement by a witness while giving evidence in Court.” The learned Judge went on to say: “In other words, in order that the observations of their Lordships made by them in the above mentioned case may be attracted, the police statement of a witness need not necessarily be in his hands or before his eyes at the time of giving evidence in the court.”
“Speaking for myself, I have no doubt that their Lordships' observations would apply with equal force even if a witness made a mental use of his police statement, which was just previously read out to him, because by reason of such mental use, the witness's evidence was bound to be moulded by or modelled on his police statement.” The learned Judge then proceeded to give illustration of a case in which a witness is “almost made to commit to memory his police statement before stepping into the witness box to give evidence”; and reasoned on this basis that the evidence of such a witness was bound to be almost a copy of his police statement. Speaking with great respect, this is an extreme example; and extreme examples do not become helpful in interpretation of statute. With regard to Sabu's evidence, the learned Judge observed that material parts of her police statement “must have almost come to be committed to memory” and her evidence “must have been modelled on her police statement”. In the end, the learned Judge said that reading over of the police statement to witness before her stepping into the box amounts to use of the police statement at the trial. Of course, in the alternative, the learned Judge also said that the value of Sabu's evidence must suffer considerably.
Bavdekar, J. refused to express any opinion on “how far the evidence of a witness would become inadmissible on the ground that the witness' police statement was used to refresh his memory. He at the same time expressed concern on the practice of reading over police statement to the witness before he enters the box and said “it is doubtful how far the practice, which has been deprecated by this court so often, would stop unless this court were to hold categorically that the evidence of a witness would be inadmissible in case his statement to the police was used to refresh his memory”. What is of utmost significance for our purpose is the learned Judge's exposition of the basis of the Privy Council's decision in Zahiruddin's case. The learned Judge said: —
“But the fact remains that, in the case which was before their Lordships of the Privy Council, the witness had used the statement to refresh his memory while he was under examination in the witness box and it was obvious, therefore, that it could not be argued with any reason that the statement was not used at the trial. I am inclined to think that the decision of their Lordships of the Privy Council to exclude altogether from the evidence the deposition of a witness given by him in such circumstances was based not upon the view that the witness's evidence amounted to a police statement, but upon the view that it was the policy of the Legislature to prevent any use of the police statement of a witness at the enquiry or trial and if the witness was allowed to use his police statement to refresh his memory when he gave the evidence, it would be defeating the statute to allow his evidence to come on record”. (Emphasis supplied), With respect, that is the correct exposition of the ratio of the Privy Council decision which was not based on any supposed identity between the police statement and the evidence given, at the trial. If this is the correct ratio laid down with respect to actual use of the police statement while giving evidence, what logically follows from it cannot be considered to be the ratio of the Privy Council's decision. The said ratio does not apply to the questions referred to this Full Bench and those questions are not concluded by the Privy Council decision.
35. We have already seen that in State v. Maganbhai (Cri. App. No. 460 of 1953, D/- 29-9-1953) (Bom) (supra) it was the opinion of Vyas, J. alone which laid down that the evidence of a witness to whom police statement was read over thrice at different times before she gave evidence in the Sessions Court was inadmissible on the basis that the bar of S. 162(1) was contravened. Bavdekar, J., in terms refrained from expressing definite opinion on this question. The Division Bench of this High Court consisting of Divan and J.B. Mehta, JJ. in Kathi Moti Lakha v. State of Gujarat, Criminal Appeal No. 543 of 1962 decided on 21/22nd Nov. 1963 laid down a similar principle after referring to the decision of the Privy Council in Zahiruddin's case (48 Cri LJ 679(PC)) (supra) and Maganbhai's case (supra). The Division Bench of this Court as appears from its judgment reproduced the observations of Vyas, J. in Maganbhai's case under the impression that that was the decision of the Division Bench. Speaking with great respect, I am of the opinion that the interpretation of S. 162 made by Vyas, J. and the Division Bench of this Court is not correct in view of the conclusion reached by me as to the interpretation and scope of the prohibition contained in S. 162(1) in the context of the questions referred to the Full Bench. It is already shown earlier that the cases covered by the questions referred to this Full Bench are not governed by the dictum laid down by the Privy Council in Zahiruddin's case (supra).
36. It must, however, be emphasised that the practice of reading over police statements to witnesses before they enter the box is not healthy practice.
37. In cases where such practice is resorted to, the Magistrates and Judges should carefully consider the evidence given by the witness and decide upon the probative value of such evidence in view of the facts and circumstances of each case.
38. Answers to the questions referred to this Full Bench are as under:
(1) The evidence of such witness does not become inadmissible; its probative value has to be judged in the circumstances of each case. No hard and fast rule can be laid down that in all such cases the evidence of such witness will be of no value whatsoever.
(2) Reading over of the police statement to the witness before he enters the box does not amount to contravention of the prohibition contained in S. 162(1). But the fact of reading over of the statement may affect the probative value of the evidence of the witness.
(3) Reading over of such a statement to the witness before he enters the box does not amount to use of such statement contrary to S. 162(1). The matter will now go back to the Division Bench.”
43. Thus, so far as PW-4 (victim) is concerned, she has not at all admitted that her police statement was read over to her prior to the recording of her deposition before the Court. So far as PW-1 is concerned, even if it is assumed that he had gone through the contents of his documents, his evidence cannot be said to be completely inadmissible. However, the probative value of evidence given by this witness will be considered as per the facts and circumstances of the case.
44. In the present case, both the oral as well as the documentary evidence strongly point towards the guilt of the accused. Consequently, the ground raised by the appellant with regard to alleged improper refreshing of memory loses its force and is accordingly rejected.
45. The submissions advanced by Mr. Mardikar, learned Senior Counsel, regarding the presence of guests at the house of the appellant on the date of the incidence, as well as the non-examination of the children who were allegedly playing with the victim, are noted only for the purpose of rejection. Even if it is assumed that guests were present at the house of the appellant, the presumption that the accused could not have committed the offence in their presence runs contrary to the principles laid down by the Hon’ble Supreme Court.
46. So far as the ground regarding the non-examination of the minor children playing with the victim is concerned, the same is unsustainable in law. The victim has categorically deposed about the guilt of the accused, and her testimony stands corroborated by other prosecution witnesses, the medical examination reports, and the Chemical Analyser’s report. No further corroboration was required in the facts of the case. Hence, the said ground also stands rejected.
47. Mr. Mardikar, learned Senior Counsel, invited our attention to the evidence of PW-2, Dinesh Fulzele, the complainant, who admitted in his cross-examination that the victim herself had given the history of sexual assault to the doctor. He also referred to the deposition of PW-4 (victim), who stated that she had informed the doctor about the incidence. It was contended that these statements are contradicted by PW-6, Dr. Rahul Ramteke, who, in his examination-in-chief, deposed that the history was narrated by the victim’s maternal uncle. According to the learned Senior Counsel, such contradiction vitiates the prosecution case.
48. Such submission at the behest of the learned Senior Counsel deserves to be rejected by this Court on the ground that the history is only one column in the forensic medical report. The main content of such report is the severe bleeding injuries caused in vagina of PW-4 (victim) resulting in profuse bleeding at the behest of the appellant, which supported the prosecution case. The medical report clearly pointed out that the findings are consistent with penetration of vagina with evidence of hymenal tears at multiple places.
49. Significantly, the aforesaid findings of PW-6 have not been challenged by the appellant either during cross-examination or before this Court in the present appeal. In such circumstances, the question as to who narrated the history to the doctor becomes irrelevant in view of the categorical medical findings recorded after a detailed examination of PW-4, which strongly corroborate the prosecution case.
50. The last limb of the argument advanced by Mr. Mardikar, learned Senior Counsel, pertains to the recording of the FIR. It is contended that the prosecution failed to examine ASI Sayara Pathan, who recorded the FIR, and therefore the appellant is entitled to the benefit of doubt. However, the learned Senior Counsel has not demonstrated as to what prejudice has been caused to the appellant on account of such non-examination, particularly when the registration of the FIR has been duly proved through the depositions of PW-12, API Brijpalsingh Rajpalsingh Thakur, and PW-13, PSI Pranita Sonaji Karale.
51. Moreover, it is noteworthy that the appellant has not disputed the factum of recording of the FIR. In the absence of any challenge to its registration or any prejudice shown to have been caused, the said contention is devoid of merit and deserves to be rejected. Accordingly, Issue No.(i) is answered in the affirmative, and Issue No.(ii) in the negative.
52. In view of the aforesaid discussion, we are of the considered opinion that the present appeal lacks merit and is accordingly dismissed. Pending applications, if any, stand disposed of.
53. At this stage, Mr. Mardikar, learned Senior Counsel, submits that the appellant is 69 years of age and that the learned Trial Court has imposed the sentence of imprisonment for life, which means imprisonment for the remainder of his natural life, for the offences punishable under Section 376(2)(f)(i) of the IPC and Section 6 of the POCSO Act.
54. Mr. Mardikar, learned Senior Counsel, places reliance upon the judgment of the Hon’ble Supreme Court in Criminal Appeal No.1072 of 2018 (Umesh Yadav & Ors. vs. The State of Bihar, decided on 30th October, 2025) and submits that the approach adopted by the Hon’ble Supreme Court in the said judgment, where the sentence was modified to a fixed term of 14 years of actual imprisonment considering the advanced age of the appellants therein, ought to be adopted by this Court. He, therefore, prays that the quantum of punishment imposed upon the present appellant be reduced to a fixed term of 14 years.
55. Mr. Mardikar, learned Senior Counsel, has also tendered across the bar certain documents regarding the health condition of the appellant to demonstrate that he is not in good health. However, a perusal of the aforesaid judgment of the Hon’ble Supreme Court reveals that, in that case, the learned counsel for the appellants had not challenged the conviction on merits. Furthermore, the incidence therein had taken place more than three decades earlier, and the offences alleged were under Sections 302/149 and 323/149 of the IPC.
56. The case in hand clearly defers from the aforesaid case, as the learned Senior Counsel has extensively argued the appeal on merits. The incidence in the present case is of the year 2015, and the offence involved is one of aggravated penetrative sexual assault and rape upon a minor child aged five years and eleven months, allegedly committed by the appellant, who was more than 60 years of age at the time of the incidence.
57. Section 42 of the POCSO Act mandates that where an act constitutes an offence punishable both under the IPC, including Section 376, and under the POCSO Act, the offender shall be liable to punishment which is greater in degree.
58. The learned Trial Court, while imposing the maximum punishment upon the present appellant, has recorded the following reasons:
“It is a well-settled principle governing sentencing policy that the punishment for the offense should be commensurate with the gravity of the crime. In the case at hand, a young innocent child who trusted the accused went to his house to play was meted out with a grotesque, diabolical and dastardly act by the accused. She suffered severe injuries which lead to profuse bleeding of her vagina. She had to be admitted to the ICU. Needless to add that the victim has endured enormous physical, mental and emotional pain due to the said offense. The act committed by the accused wreaks of gross perversion. The photographs of her blood-soaked clothes and the spot speak volumes of the severe injury inflicted upon the victim as a result of the sexual assault. The victim had not even completed 6 years of age on the date of commission of the offense. Offenses against women and children are on the rise in our country and need to be dealt with an iron hand.”
59. Thus, for the reasons stated hereinabove, we are not inclined to accede to the request made by the learned Senior Counsel for reduction of the sentence of imprisonment imposed upon the appellant. The said request is, accordingly, rejected.