Sunday, 27 March 2016

Precaution to be taken by court while recording contradictions and omissions in evidence

 Learned counsel Dr.
Kalsi, during the course of arguments, has brought to my notice that there
are glaring omissions in the earlier statement of P.W.3.  She has invited my
attention to the cross­examination of P.W. 3 Shraddha.  The said witness in
her cross­examination has stated that she had stated before the police that
the appellant had outraged her modesty and had committed rape on her.

She was, however, unable to give any explanation as to why these facts are
not recorded in her police statement.  Few more similar omissions are taken
on record for which P.W. 3 was unable to give any explanation.
The Investigating Officer has also stated in his evidence that the
above stated facts were not mentioned by P.W. 3 in her police statement.  It is
seen from the Record and Proceedings that the omissions were recorded and
proved without referring the police statement of P.W. 3.   Had the police
statement of P.W. 3 been seen by the Judge himself or had it been brought to
the notice of P.W. 3 herself the omissions would not have come on record.  In
fact, it was mandatory on the part of the cross­examiner to call attention of
P.W. 3 to her previous statement before any contradiction (omissions) was
intended to be brought on record.  It is noted by me that Section 145 of the
Evidence   Act   was   not   followed   while   recording   omissions   in   the   earlier
statement of P.W. 3.  Section 145 of the Evidence Act runs as under :
“145.  Cross­examination as to previous statements
in writing  – A witness may be cross­examined as to
previous statements made by him in writing or reduced
into   writing,   and   relevant   to   matters   in   question,
without   such   writing   being   shown   to   him,   or   being
proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used
for the purpose of contradicting him.”
It is thus, clear from reading of Section 145 of the Evidence Act
that if P.W. 3 was intended to be contradicted with her previous statement, it

was necessary for the learned counsel for the appellant to call her attention
to the previous writing and put relevant questions to bring the contradictions
(omissions) on record.  The omissions have been casually recorded without
reference to the previous statement of P.W. 3.  I have gone through her cross examination.
I have come to the conclusion that had the proper procedure
been followed for recording omissions, the omissions would not have come
on record.   As already stated, a very casual approach was adopted by the
prosecutor,   defence   lawyer   and   the   Judge   while   recoding   the   crossexamination
of P.W. 3. In fact, it was the duty of the Judge to regulate the
cross­examination.   He was under obligation to see the writing himself to
ascertain  whether the  question was properly  framed  and he was further
under obligation to see that earlier statement was brought to the notice of
the witness before she was contradicted.  As such, the omissions which have
been brought on record could not be treated as omissions and evidence of
P.W.  3  has  to  be  read  without  omissions   which  are   stated  to  be  proved
omissions. 
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 104 OF 2012
Raju S/o. Bhimrao Girnare,


 //  VERSUS //
The State of Maharashtra, 

                             CORAM : M.L. TAHALIYANI, J.
                              DATED   : MARCH 21, 2014.
Citation;2016 CRLJ(NOC)77 Bom

2. The appellant is convicted for the offences punishable under
Sections 363, 366 and 376 of the Indian Penal Code by learned Ad­hoc
Additional Sessions Judge, Buldana by his judgment dated 23rd  February,
2012 in Sessions Case No. 106 of 2009.

3. Complainant   Ganesh   Bhangale's   wife   Mrs.   Versha   had   been
admitted in Ward No.9 of Government Hospital, Buldana for delivery.  The
complainant   was   staying  with  his  wife   in  the   hospital   ward  itself.    The
incident in question had occurred on 17th May, 2009.  Shraddha the daughter
of the complainant had come to stay with the complainant at hospital two
days prior to the date of incident.   She had come along with her uncle
Ramdas. Ramdas returned to his village and Shraddha had stayed back with
her father.
4. On 17th May, 2009 at about 9.00 a.m. when the complainant,
his   wife   and   his   daughter   were   taking   meals   below   a   tree   outside   the
Government Hospital the appellant had approached the complainant and had
demanded a bidi.  The complainant gave him one bidi.  On the same day at
about   11.30   a.m.   the   complainant   was   going   to   market   along   with   his
daughter Shraddha.  The appellant also wanted to accompany them to the
market.  It appears that somebody from the family of the appellant was also
admitted in the hospital.  As such the appellant, complainant and daughter of
the   complainant   went   to   market.     Shraddha   went   to   the   ward   and   the
complainant was sitting in the courtyard of the hospital after returning from
market.   Shraddha came down in the courtyard at about 4.30 p.m.   The
complainant, however, asked her to go back to her mother.  The complainant
himself visited the ward at about 5.00 p.m.  His daughter Shraddha was not

seen in the ward. The complainant inquired from his wife.   She told the
complainant   that   Shraddha   had   gone   downstairs.     The   complainant,
therefore, went down and was searching his daughter.   Since his daughter
could not be traced for a long time, the complainant, went to Police Station
and lodged a missing report.  He, however, suspected that his daughter might
have   been   kidnapped   by   the   appellant,   because   the   appellant   was   also
missing   from   the   premises.     In   the   report   lodged   at   Police   Station   the
complainant has given description of his daughter and the appellant.   His
oral report was recorded which is at Exh.27.  It is the case of prosecution that
the appellant had taken the daughter of the complainant to his sister's house
on the pretext that he would perform marriage with her.  The daughter of the
complainant viz. Ms Shraddha accompanied him to the village of sister of the
appellant   which   was   near   village   Dhad.     The   victim   girl   Shraddha   was
detained   overnight   in   the   said   house   and   the   appellant   had   sexual
intercourse with her without her consent. After that she was let off and
allowed to go to village Dhad.  Ms Shraddha came to Buldana by a public
taxi.   She inquired about the address of Civil Hospital, Buldana where her
mother was admitted.   However, the person to whom she was inquiring
brought   her   to   Police   Station.     The   police   made   further   inquiries   from
Shraddha and she had disclosed everything to the police.  She was sent for
medical examination by the police.   Her clothes were also seized by the
police.

5. During the course of investigation, the appellant was arrested.
Panchnama of the spot was drawn.  The appellant was also sent for medical
examination and for collecting semen and pubic hair.   After completion of
investigation chargesheet was filed by the police. 
6. The   learned   trial   Court   framed   charge   for   the   offences
punishable   under   Sections   363,   366   and   376   of   the   Indian   Penal   Code
against the appellant.   The appellant pleaded not guilty and claimed to be
tried.  The prosecution had examined in all eight witnesses. P.W. 1 is panch
witness who was present when the  spot panchnama  was  drawn  at  Civil
Hospital.     P.W.  2  is  complainant,   P.W.  3   is  the   victim   of  the  offence  Ms
Shraddha, P.W.4 is mother of the victim Mrs. Versha, P.W. 5 is Dr. Bramhanand
who had examined the victim to determine whether she was subjected to
sexual intercourse, P.W. 6 is Executive Magistrate who held identification
parade.     P.W.   7   was   Headmaster   of   Zilla   Parishad,   Marathi   School   who
produced   School   Leaving   Certificate   of   the   victim   girl   and   P.W.   8   is
Investigating Officer.  
7. P.W. 8, in his evidence, has stated that he was attached to Police
Station,   Buldana   City.   On   18th  November,   2009     one   person   Ganesh
(complainant)   had   visited   Police   Station   and   lodged   report   Exh.26.   An
offence   punishable   under   Section   363   of   the   Indian   Penal   Code   was
registered on the basis of the said report.  It is further stated by this witness

that next day the victim girl by name Shraddha was found at State Transport
Bus Stop at Buldana and she was brought to Police Station. She was sent for
medical   examination.     The   spot   panchnama   was   drawn   by  this   witness,
which   is   at   Exh.50.     He   had   sized   clothes   of   the   victim   girl.     Seizure
panchnama was produced before the trial Court at Exh.51.  He had recorded
statements of the witnesses and had also arranged identification parade to
get the appellant identified by the victim girl.  The seized clothes were sent
to   Forensic   Science   Laboratory,   Aurangabad.     After   completion   of
investigation, chargeshseet was filed in the Court.  
8. P.W. 1 has more or less repeated what he had stated in the first
information   report.   I   do   not   think   that   his   evidence   is   necessary   to   be
reproduced in the present judgment.  The evidence of P.W. 3 is determining
factor in the present case.  P.W. 3, in her evidence, has stated that her mother
was admitted at Buldana Government Hospital for delivery.   She had also
been to Buldana Hospital.  Her father was also there.  It is stated by her that
the appellant had accompanied her and her father to the market.  Thereafter
in the evening he had asked her to accompany her to the house of his sister
on the pretext that he would perform marriage with her.   Accordingly, the
victim went with the appellant towards village Dhad.  The house of the sister
of the appellant was situated at a garden land.  It is stated by this witness
that the appellant removed her clothes during night hours.  He outraged her
modesty and also committed rape on her.  She was left in village Dhad on

next day.  She had come back to Buldana by a public taxi.  It is stated by this
witness that she was taken to Police Station and was referred to Hospital for
medical examination.   She has stated her age as 14 years on the date of
recording of her evidence.   She has also stated that she had identified the
appellant in the identification parade.  Evidence of P.W. 4 Versha, mother of
the victim, is also not necessary to be reproduced as it does not throw any
light on the facts of the case.  
9. P.W. 5 is Medical Officer who had examined the victim girl.
After examination of P.W. 3 he had given his opinion, which is part of his
evidence. The same is reproduced as under :
“(i) Her breasts were well developed.   There were no
external injury marks on both the breasts.
(ii)  Libia majora and libia minora they are not well
developed.
(iii) Her pubic hair were scanty.
(iv)  Pubic hair were present on the pubic.  They are not
present on libia majora and libia minora.
(v)  Blood stains were present on left thigh  inner aspect
near the left libia majora.   There are no external
injury marks on libia majora and libia minora.
(vi) The lacerations are present on the inner wall of
vagina on both sides.
(vii) Hymen was in torn condition.  The hymen is torn at
3 O'clock position. The age of injury is within 24
hours.   The hymen and the injuries site bleeds on
touch.   There is no white discharge.   The vagina
admits one little finger. Swelling is present on both
walls of vagina.”

He had opined that the victim was capable of sexual intercourse
and she was subjected to sexual intercourse forcibly.  Though there were no
injury marks on her body, vaginal walls were having swelling and the hymen
was found torn.  It is also stated by this witness that the age of the injury
(tear) was 24 hours. Hymen and injury sites bleeded on touch.  The vagina
admitted only one little finger.   Swelling was present on both the vaginal
walls.  Medical Certificate was issued at Exh.39.  
10. P.W.   6   Chandrashekhar   Mankar   who   was   working   as   Naib
Tahsildar has stated that he had conducted identification parade on 26th May,
2009 at District Prison, Buldana.  Two panchas were present at the time of
identification parade.  The identifying witness Shraddha was kept away from
the   parade   room.   Six   dummies   and   the   appellant   were   subjected   to
identification parade.  It is stated by this witness that the appellant was given
opportunity to stand at the place of his own choice.   He was also given
opportunity  of  changing  his clothes.  But  he  denied  either  to  change  his
clothes or to change the place.   The appellant was standing in between
dummy Nos. 2 and 3.   The identifying witness Shraddha was called in the
parade room.  She had identified the appellant who was standing in between
dummy Nos. 2 and 3.  Accordingly, panchnama was drawn at Exh.42.
11. P.W.  7  has  stated  in  his  evidence  that  victim  Shraddha  was
student of Zilla Parishad Higher Primary School, Malegaon.  As per admission

register of the school her date of birth was 27th February, 1995.  The attested
copy of the school leaving certificate was shown to the witness and exhibited
as Exh.48.
12. As such, from the evidence of witnesses discussed herein above
it is abundantly clear that Shraddha was less than 14 years old at the time of
the incident. She was about 13 years 3 months at the time of incident.  
13. Learned Advocate Dr. Kalsi is heard on behalf of the appellant
and learned Additional Public Prosecutor Ms Deshpande is heard on behalf of
the respondent/ State.  
14. As far as reports of Chemical Analyzer are concerned, they do
not assist in any manner to determine whether the sexual intercourse has
taken place or not.  Most of the reports are inconclusive.  The whole case, as
already stated,  is based on the evidence of P.W. 3.  The prime question before
the trial Court was, as to whether the evidence of P.W.3 should be believed or
not.  The trial Court has believed the evidence of P.W.3.  Learned counsel Dr.
Kalsi, during the course of arguments, has brought to my notice that there
are glaring omissions in the earlier statement of P.W.3.  She has invited my
attention to the cross­examination of P.W. 3 Shraddha.  The said witness in
her cross­examination has stated that she had stated before the police that
the appellant had outraged her modesty and had committed rape on her.

She was, however, unable to give any explanation as to why these facts are
not recorded in her police statement.  Few more similar omissions are taken
on record for which P.W. 3 was unable to give any explanation.
15. The Investigating Officer has also stated in his evidence that the
above stated facts were not mentioned by P.W. 3 in her police statement.  It is
seen from the Record and Proceedings that the omissions were recorded and
proved without referring the police statement of P.W. 3.   Had the police
statement of P.W. 3 been seen by the Judge himself or had it been brought to
the notice of P.W. 3 herself the omissions would not have come on record.  In
fact, it was mandatory on the part of the cross­examiner to call attention of
P.W. 3 to her previous statement before any contradiction (omissions) was
intended to be brought on record.  It is noted by me that Section 145 of the
Evidence   Act   was   not   followed   while   recording   omissions   in   the   earlier
statement of P.W. 3.  Section 145 of the Evidence Act runs as under :
“145.  Cross­examination as to previous statements
in writing  – A witness may be cross­examined as to
previous statements made by him in writing or reduced
into   writing,   and   relevant   to   matters   in   question,
without   such   writing   being   shown   to   him,   or   being
proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be
proved, be called to those parts of it which are to be used
for the purpose of contradicting him.”
It is thus, clear from reading of Section 145 of the Evidence Act
that if P.W. 3 was intended to be contradicted with her previous statement, it

was necessary for the learned counsel for the appellant to call her attnetion
to the previous writing and put relevant questions to bring the contradictions
(omissions) on record.  The omissions have been casually recorded without
reference to the previous statement of P.W. 3.  I have gone through her crossexamination.
I have come to the conclusion that had the proper procedure
been followed for recording omissions, the omissions would not have come
on record.   As already stated, a very casual approach was adopted by the
prosecutor,   defence   lawyer   and   the   Judge   while   recoding   the   crossexamination
of P.W. 3. In fact, it was the duty of the Judge to regulate the
cross­examination.   He was under obligation to see the writing himself to
ascertain  whether the  question was properly  framed  and he was further
under obligation to see that earlier statement was brought to the notice of
the witness before she was contradicted.  As such, the omissions which have
been brought on record could not be treated as omissions and evidence of
P.W.  3  has  to  be  read  without  omissions   which  are   stated  to  be  proved
omissions. 
16. As such, the evidence of P.W. 3, who was aged about only 13
years 3 months at the time of the incident, appears to be trustworthy and
there is nothing in her cross­examination which may create doubt about the
correctness of her evidence.  She was a child witness.  The learned trial Court
has ascertained whether she understood meaning of oath.  After ascertaining
that she understood meaning of oath, oath was administered to her.  What is

pertinent   to   note   here   is   that   the   appellant   was   neither   known   to   the
complainant/ P.W. 1 nor he was known to victim girl P.W. 3.   Since the
appellant was neither known to father nor was he known to the victim girl
there was no reason for these two witnesses to give any false statement.  As
already stated by me, there is nothing in the cross­examination of either of
the witnesses to doubt the prosecution case.  
17. It is noted by the Court that P.W. 3 has not narrated the incident
in detail.  She has only stated that the appellant had committed rape on her.
Though she has not narrated the incident in detail, it does not in any manner
create a doubt about the correctness of the prosecution case.  The Medical
Officer's evidence establishes that P.W. 3 was subjected to forcible sexual
intercourse.  Hymen was found torn and injury was only 24 hours old.  Blood
stains were present on left thigh and inner aspect near left libia majora.
Evidence of P.W. 3, read with evidence of P.W. 5, clearly establishes that P.W. 3
was subjected to forcible sexual intercourse.  
18. P.W. No.3 was in custody of her father P.W.1.  She was enticed
away by the appellant.  P.W. 3 was less than 14 years old at the time of the
incident.   Therefore,   apparently   the   appellant   has   committed   offence
punishable under Section 363 of the Indian Penal Code.   As far as offence
punishable under Section 366 of the Indian Penal Code is concerned, part of
the ingredients of the said offence have been proved by proof of the offence

punishable under Section 363 of the Indian Penal Code.  It is very apparent
from the evidence of P.W. 3 that she was taken by the appellant to his sister's
house with intend that she might be forced to illicit intercourse.   As such,
second part of the offence punishable under Section 366 of the Indian Penal
Code is also proved.  The evidence  of P.W.Nos. 3 and 5 established beyond all
reasonable   doubts   that   the   victim   was   subjected   to   sexual   intercourse
without her consent by force.   It may be mentioned here that even if it is
assumed, for the sake of arguments, that the consent was given by P.W. 3, the
appellant would be guilty of the offence punishable under Section 376 of the
Indian Penal Code inasmuch as P.W. 3 was not of consenting age.   Clause
'Sixthly' of Section 375 of the Indian Penal Code (before amendment) states
that sexual intercourse with a woman with or without her consent when she
is under sixteen years of age amounts to rape.  
19. As   such,   the   learned   trial   Court   has   rightly   convicted   the
appellant for the offences punishable under Sections 363, 366 and 376 of the
Indian Penal Code.   The learned trial Court has not imposed any separate
sentence for the offence punishable under Section 363 of the Indian Penal
Code.  As far as offence punishable under Section 366 of the Indian Penal
Code   is   concerned,   the   appellant   has   been   ordered   to   undergo   rigorous
imprisonment for  a period of five years.  The appellant has been ordered to
undergo rigorous imprisonment for a period of seven years for the offence
punishable under Section 376 of the Indian Penal Code.

20. Learned counsel Dr. Kalsi has submitted that this Court may
take into consideration the circumstances in which the appellant at present is
placed and may impose lesser punishment under proviso to Section 376(1) of
the Indian Penal Code.  She has submitted that the appellant is  HIV positive
and he has got two children to be looked after by him.  One of the children is
a girl aged about 13 years.   I have anxiously considered the submissions
made   on   behalf   of   the   appellant   and   I   find   it   impossible   to   accept   the
contention of the learned counsel Dr. Kalsi that the leniency can be shown. 
21. In   my   view,   the   illness   of   the   appellant   and   two   growing
children   cannot   be   a   special   and   adequate   reason   for   imposing   lesser
sentence. In the present case the children are already being looked after by
some other family members as the appellant is in custody from the date of
arrest.  Therefore, there is no occasion for the children to suffer.  As far as the
disease of the appellant is concerned, it is most probably invited by himself
for which no leniency can be shown.   Moreover, HIV can be treated by
regular visits to the hospital or consultation with the Medical Officer of the
prison.  Such facilities are provided in the prison and prison authorities are
always mindful of the problems of the prisoners particularly those who are
suffering   from   severe   diseases.   As   such,   I   am   not   inclined   to   exercise
discretion under proviso to Section 376(1) of the Indian Penal Code.

The   appeal   deserves   to   be   dismissed   and   is   accordingly
dismissed.  

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