Bombay High Court: An appeal was filed by the original accused challenging his conviction by the learned Special Judge, under the POCSO Act dated 16-05-2016, whereby the accused was held guilty of committing offense punishable under Section 376(1) of Penal Code, 1860 (IPC) and Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). A division bench of Vijay Kankanwadi and S G Chapalgaonkar, JJ., dismissed the appeal as medical evidence supporting the testimony of the victim.
The informant is the mother of the victim aged 6 years, who lodged a report with Kinwat Police Station accusing the convict of committing rape on the victim while she was away at the weekly bazaar. The mother checked the daughter and found that blood was oozing from the private part, and it was swollen. The victim confessed in her local language Lamhani, that the accused had offered one rupee when she was playing in front of the house and took her with him wherein, he gagged her mouth and committed rape. FIR was filed, and pursuant to trial, the Single Judge sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for three months for the offense punishable under Section 5(m) punishable under Section 6 of the POCSO Act.
The Court noted that a six-year-old girl cannot have the intention to implicate anybody. Further, the testimony of the witnesses clearly establishes that the informant was not at home and the victim was playing outside the house. She has narrated all the facts in her examination-in-chief. On the day of the incident, she says that she had come along with her grandmother. Though she has stated that her grandmother had told her what she should state before the Court, she denied that she is deposing the same thing at the insistence of her grandmother. Thus, only based on a stray statement, it cannot be stated that her testimony is the outcome of tutoring.
On the aspect of the rural hospital or Sub District Hospital not being equipped with the expertise and, therefore, the girl was taken to the District Hospital for medical examination on the next date, the Court further noted that it is an unfortunate scenario that even after independence, health services are not available in many remote areas. The basic medical facilities are also not available there and, therefore, we cannot expect that expert medical officers would be available at such Sub District Hospitals or Rural Hospitals. Those victims will have to be brought to the District Hospitals for medical examinations.
The Court observed that the purpose behind these provisions is that the rape victim should be taken to the nearest medical expert so that the evidence should not get lapsed or be destroyed. Unfortunately, either the police do not approach those private medical practitioners or sometimes they do not get cooperation from the private practitioners. This reality will have to be considered in this case also. Therefore, the belated examination of the victim cannot be a point for the accused to give a benefit.
The Court also observed that the physical examination of the girl showed that there was evidence of whitish discharge around the urethra. There was a mucosal laceration on the right side of the labia minora near the junction with the hymen. There was evidence of guarding and tenderness on the right side of the labia majora and minora but the hymen was intact. The age of the injury was 1-2 days and, therefore, over all opinion was that the findings were consistent with sexual assault. Therefore, the medical evidence supports the testimony of the victim.
Thus, the Court held that the cumulative effect of the entire evidence is the proof of the guilt of the accused beyond reasonable doubt.
[Dilip v State of Maharashtra, 2023 SCC OnLine Bom 1417, decided on 26-06-2023]
Advocates who appeared in this case :
Mr. M.A. Tandale, Advocate for the Appellant;
Mrs. V.S. Choudhari, APP for the respondent – State.
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