SAMIN ILIYAS ANSARIversusTHE STATE OF MAHARASHTRA AND ANR.

                                               APEAL_830 & 869 OF 2017.DOC




                                                                      Prasad
       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION
               CRIMINAL APPEAL NO.830 OF 2022
Samin Iliyas Ansari                                      …Appellant
      Versus
State of Maharashtra and Anr.                            …Respondents

                              WITH
              CRIMINAL APPEAL NO.869 OF 2017
Sonu Boloram Muramu                        …Appellant
      Versus
State of Maharashtra and Anr.              …Respondents


Mr. Aniket Vagal, for the Appellant in Cri. Appeal No.830 of 2022.
Mr. M.G. Shukla, for the Appellant in Cri. Appeal No.869 of 2017.
Mr. A.R. Kapadnis, APP for the Respondent No.1 – State in both
      Appeals.
Mr. M J Bhatt, for Respondent No.2 in Cri. Appeal No.830 of 2022.
Mr. Maitreya Girish Shukla, appointed Advocate for the
      Respondent No.2 through legal aid in Cri. Appeal No.869 of
      2017.


             CORAM              :              R. M. JOSHI, J.
             RESERVED ON :                     20TH APRIL, 2026.
             PRONUNCED ON:                     30TH APRIL, 2026.
JUDGMENT:-


1.          Both these Appeals are filed by original Accused Nos.1
and 2, in Special Case (POCSO) No.108 of 2016, whereby they
came to be convicted for offences punishable under Sections 363,
366-A, 376(D), 337 read with Section 34 of the Indian Penal Code,
1860 and Sections 9 and 10 of the Protection of Children from
Sexual Offences (POCSO) Act, 2012, by impugned judgment and
order dated 6th September, 2017, passed by Special Judge Thane.


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2.          Since the facts and law involved in both Appeals are
common, by consent of both sides Appeals were heard and now
decided together by this common judgment.


3.          In the instant case, law was set on motion on the basis
of first information report at 1st February, 2016, lodged by the
informant, who is the mother of the victim, a mentally challenged
girl, aged about 11 years. The Informant reported to the police that
the victim girl, is mentally challenged and she used to attend a
special school named “Ummeed” situated at Mumbra. She claims
that since the school van stopped coming to their place, for last 4
to 5 months, the victim is at home. According to the informant,
victim used to go out of the house for the purpose of playing and
used to return back home. On 1st February 2016, the victim was
playing outside the house. At about 5:15 PM, Informant was
required to go to a dispensary at Shilphata along with her elder
daughter. At that time, she did not find victim playing near the
house, however, she assumed that ordinarily victim plays in the
village and hence did not pay attention to the same. When she
went to the house of her sister Pinky, she received phone from her
husband on the mobile of Pinky. He told her that the victim girl
was seen going towards Kalyan Phata. Informant therefore went
towards Kalyan Phata, however, could not find victim. Thereafter,
her husband also joined the search with her. At about 6:00 PM, the
victim girl was found sitting under a tree at the place called Munja
Cha Tep. The girl was found with injuries on her person and her
private part was bleeding. Informant had asked the victim girl as to
what happened, at that time, she informed that “Porane mala
marli” and that she was also assaulted on her private part so also


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anus. It was found that she was bleeding from the private part and
that her leggings was smeared with blood. On enquiry made by the
Informant, a boy staying in the nearby chawl informed about he
having seen one boy taking the victim along with him. Informant
and others took victim to the concerned police station. The victim
was then referred to the Government Hospital at Kalwa. Thus,
offence came to be registered against unknown person for
committing rape on the victim girl. On the basis of the said report
offence came to be registered vide crime number I-22 of 2016,
registered with Shil Daighar Police Station.


4.          During the course of investigation, the spot of the
incident was visited and Spot Panchanama was drawn in the
presence of Pancha Witnesses. From Spot Panchanama recovery of
various incriminating articles was done. Investigating Officer
recorded statements of witnesses including statement of the victim
which was recorded on 6th February 2016, while she was admitted
in the hospital. The victim was medically examined and scratch
marks were found on her face, lips and injuries were seen all over
her body. Apart from this, there were injuries cause to the genitals
of the victim. The medical certificate issued by the concerned
doctor was included in the investigation papers. Accused No.1
Samin Ansari was arrested on 2nd February 2016 and in the
medical examination, it was found that he had scratch marks on
his face and back. Accused No.2 - Sonu Muramu came to be
arrested on 11th February 2016. Arrest Panchanama of arrest of
both accused came to be recorded in presence of Panch witnesses.
Further, in the investigation, statements of witnesses came to be
recorded, who had seen the victim going along with the accused


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persons. One witness claims that he went to the spot at the
relevant time, however, while he was driven away by the accused
persons by pelting stone at him which caused hurt to his forehead.
During the investigation, police used sniffer dog squad and
according to the police, the sniffer dog took Police from the spot of
the incident to the place where Accused No.2 was residing along
with absconded accused Renga. Clothes of the victim, accused as
well as their nail clippings and other samples were collected and
the same were sent for chemical analysis. The report of the
chemical analyser is included in the investigation papers. It is also
claimed by the investigating agency that during the course of
investigation, the identification parade Panchanama of the accused
was carried out. On conclusion of investigation, charge-sheet came
to be filed against present Appellants and absconded co-accused.


5.           At the outset, it needs to be recorded that though
there is allegation against three persons for having committed
offence in question, though present Appellants came to be arrested
and subjected to trial before the trial court, till date the third
accused has not been apprehended and is absconding.


6.           On 10th November, 2016 charges came to be framed
against the present Appellants. On behalf of the prosecution,
District Government Pleader of District Thane conducted the trial
before the trial court. Prosecution examined following 18
prosecution witnesses:

 PW                                     Exh.
              Name of witness                           Description
 No.                                    No.
                                                Complainant and mother
     1   Sushma Rajaram Patil            15
                                                of victim.


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     2    Rajaram Dinkar Patil               25      Father of victim.
                                                     Student of T.M.C. school at
     3    Pratik Kanchan Gholap              26
                                                     Shilgaon.
     4    Geeta Pravin Patil                 28      Relative of informant.
     5    Victim                             30      Victim.
                                                     Who noticed victim while
     6    Chandrabhaga Hira Mhatre           31
                                                     going towards Daighar.
                                                     Who noticed the boys and
                                                     thereafter, who heard
     7    Rasul Nabi Mujawar                 33
                                                     voice of girl 'Aai, Aai',
                                                     witness on I.P.
                                                     Who was in the company
     8    Jagdish Ashok Patil                37      of police with dog squad
                                                     on the spot.
                                                     Who visited the victim at
     9    Vallabh Madhukar Patil             38
                                                     hospital.
                                                     Neighbourer of victim and
     10   Savita Vinod Patil                 40
                                                     accused.
                                                     Panch to the identification
     11   Gopinath Mangal Mhatre             41
                                                     parade.
                                                     Who noticed victim in the
     12   Rahul Sheshrao Kamble              43
                                                     company of accused.
     13   Dr. Asmita Ravindra Patil          46      Medical officer.
                                                     Woman Police Constable
     14   Savita Avinash Khatal              49      who has carried the victim
                                                     to the hospital.
                                                     Teacher     of    Ummeed
     15   Tejashri Suresh Mane               55      School, Mumbra, where
                                                     victim was studying.
     16   Shraddha Ashok Vaydande            61      Investigating officer.
     17   Sunil Manohar Mohite               77      Investigating officer.
     18   Sunil Bhaurao Wagh                 84      Investigating officer.

7.             Apart from examining these witnesses before the trial
court, prosecution also placed reliance on the documents which
read thus:



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     Sr.No.                              Document
       1         Proforma for determination of age
       2         Seizure panchanama of clothes of victim
       3         Letter to C.A. dated 03.02.13
       4         Letter to C.A. dated 04.02.16
       5         Arrest panchanama of accused Samin Ansari
       6         Personal search and arrest panchanama of accused
                 Sonu Boloram Muramu
       7         Letter to C.A. dated 13.02.16
       8         Psychological report dated 10.12.14
       9         Birth certificate dated 14.06.11
      10         Letter to C.A. dated 22.02.16
      11         Letter to C.A. dated 11.03.16
      12         Report of mental health expert dated 17.03.16
      13         Seizure panchanama of Chocolate dated 11.02.16
      14         Photographs of victim

8.            On conclusion of the evidence of the prosecution,
incriminating circumstances were put to the accused persons under
section 313 of Cr.PC. During the course of the hearing of this
Appeal, since it was revealed to this court, that there was no
signature on statement recorded under 313 of Appellant – Accused
No.2, and hence a report was called from trial court. The report
indicates that the statement of this accused was recorded through
video conferencing (VC) and therefore his signature does not
appear thereon. During the course of the hearing of this Appeal,
the Accused No.2 made statement in writing, confirming the fact
that his statement under Section 313 of the Cr.PC was recorded.

9.            After hearing the DGP and learned counsel for the
accused, learned trial court by judgment and order dated 6 th


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September 2017 passed in Special Case (POCSO) No.108 of 2016,
convicted Appellants for different offences, maximum sentence of
20 years with fine was imposed against them. The sentences in
respect of the other offences proved, were directed to be run
concurrently. Learned trial court, however, acquitted accused
persons for the offence under Section 120 B by holding that the
prosecution has failed to prove any conspiracy between present
accused - Applicants and the absconded accused. There is no
challenge raised to the said order of acquittal of Appellants by
prosecution or victim/Informant. As such the said acquittal has
attained finality.

10.          Learned counsel for the Appellants/accused submitted
that the burden is upon the prosecution to prove the guilt of the
accused beyond shadow of reasonable doubt and said principle of
criminal jurisprudence would apply even in cases wherein offences
charged are under the provisions of POCSO Act. It is their
submission by referring to the evidence laid by the prosecution on
record that the prosecution has failed to prove the guilt of the
accused persons beyond shadow of reasonable doubt. By referring
to the first information report itself, it is their submission that
initially case of the prosecution and the Informant was that the
victim was subjected to the assault as well as forcible sexual acts
by one person. To support this submission, they drew attention of
the court to the specific statement of the victim made to her
mother i.e. Informant, indicating that only one person was
involved in the crime in question. It is their argument that since
the perpetrator of the crime was not found by the police, present


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Appellants were falsely implicated therein. It is argued that the
suspicion was drawn against the present Appellants in view of the
fact that one of the accused person was staying along with the
absconded accused and that the sniffer dog from the spot of the
incident took police to the place where they were staying i.e. the
chawl wherein the sister of the informant was the owner.
According to the learned counsel for Appellant – Sonu, use of
sniffer dog during investigation may be justified, however the same
cannot become a ground to convict the accused and burden was on
Investigating Agency to collect reliable evidence to show
involvement of Appellant – Sonu in this crime. They further argued
by referring to the evidence laid before the trial court that the
statements of important witnesses are recorded at belated stage
and as there is no explanation provided thereafter, there is a clear-
cut doubt in respect of the genuineness/correctness of the said
statement. It is submitted that evidence of Chandrabhaga - PW6
indicates that the victim girl was seen walking along with the
absconded accused and not the present Appellants. Reference is
made to the evidence of Rasul - PW7 indicating that his evidence is
not sufficient to prove the presence of the Appellants at the spot of
the incident. It is argued that the statement of this witness is
contrary to the statement recorded before the Magistrate under
section 164 of Cr.PC (Exhibit 30). They further drew attention of
the court to the fact that there was a CCTV footage of one shop
indicating victim having being seen going along with the
absconded accused and not present Appellants. It is their argument




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that this evidence was suppressed by the prosecution and hence
adverse inference deserves to be drawn in this regard.

11.         According to them, the prosecution has failed to prove
the Panchanama of test identification parade. They further argued
that since the name of the perpetrator of the crime was not
recorded, and since the first information report was lodged against
unknown person, it was incumbent on the part of the investigating
agency to undertake identification parade and substantiate the
same before the trial court. It is argued that the identification of
the Appellants in the court for the first time cannot be accepted.
Apart apart from this, it is their submission that the manner in
which the identification of the accused person is done, it makes it
highly impossible to accept the same. It is pointed out that except
for the Appellants i.e. original accused person, no one else was
there in order to identify the Appellants to be the perpetrator of
the crime. It is argued that more particularly when the victim is
mentally not sound, such possibility of false identification ought to
have been taken into account by the learned trial court and
appropriate precautions should have been taken while seeking
their identification. According to them these safeguards, essential
for fair trial, has not been taken by trial court herein this case.
Learned counsel for the Appellants/accused took strong exception
to the manner in which the evidence of the victim was recorded. It
is their contention that since the victim was mentally challenged,
and as it appears from the evidence of witness No. 15 that the
victim was required the assistance for interpretation, the evidence
ought not to have been recorded by the trial court without seeking


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help/assistance of interpreter or expert, who will understand what
the victim wants to convey. It is argued that in absence of expertise
in the said field, possibility of trial court committing error in
interpreting sign, nodding and gesture is not ruled out. Apart from
this, according to them doubt is created the way in which the
evidence is recorded. In this regard, reference is made to the fact
that as per the initial recording before the commencement of
evidence of the victim, the said evidence was recorded in the
chambers, however, in later part victim is said to have come
towards dais. It is submitted that if the evidence is recorded in
chambers, question of the victim rushing to the dais and telling the
judge, something does not arise. On these amongst other
submissions it is claimed that guilt of accused is not proved beyond
reasonable doubt.

12.          Learned APP oppose the said submission by pointing
out that no such arguments were made nor any objection was
raised at the time of recording of the evidence. It is the contention
of learned prosecutor that the evidence as recorded by the trial
court is required to be taken into consideration by this court.

13.          Learned counsel for Appellants by referring to the
medical evidence on record argued that the doctor who examined
the accused persons after their arrest, was not brought before the
trial court and his evidence is not laid. Thus, it is their submission
that in such circumstances the alleged samples taken of the
accused persons cannot be considered for the purpose of the
conviction of the accused. In any case, according to them, the CA



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reports are not supporting the case of the prosecution against the
Appellant/accused. In this regard, reference is made to the
evidence of the investigating officer who candidly accepts that CA
reports are not against the accused person. They drew attention of
the court to the evidence collected during the course of the
investigation, such as the clothes of the Appellant/accused, victim
and the samples collected, including nail clippings etc. It is their
submission that if it was a case of the prosecution that there were
scratch marks on the person of the victim, the nail clippings of the
accused person ought to have shown blood therein. The learned
counsel for accused Samin submits that though there is allegation
with regard to there being scratch marks, found on the person of
this accused after the occurrence of the incident, however, there is
nothing on record to show that the said scratch marks were made
by the victim as the nail clippings of the victim do not show any
blood or tissues. It is their submission that thus, except for the
inconsistent and unreliable statements of the victim as well as
other witnesses, there is no conclusive evidence in order to prove
the guilt of the Appellant accused. On these amongst other
contentions they seek acquittal of both accused persons.

14.         Learned APP and learned counsel for Respondent No.2
supported the impugned judgment and order passed by the trial
court convicting present Appellants. It is argued that it is settled
position of law that the evidence of the victim if found reliable and
free from doubt, that by itself becomes a ground for conviction of
the accused without requiring any corroboration thereto. By
referring to the evidence of the Informant and victim, it is argued


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that their evidence is consistent and that for want of any
inconsistency, no doubt can be raised about the said evidence.
Pointing out the evidence of the medical officer, it is argued that
there is sufficient evidence to indicate that the victim was brutally
assaulted and was subjected to forcible sexual intercourse. It is
submitted that having regard to the nature of injuries found on the
genitals of the victim, there is reason to believe that more than one
person has committed the crime in question. In order to support
the judgment of conviction, reference is made to the evidence of
victim, PW5, Chandrabhaga - PW6, Rasul - PW7 and Jagdish Patil -
PW 8. It is submitted that these witnesses have categorically stated
as to what has occurred and happened at the spot of the incident
at the relevant time. According to the prosecutor, the version of the
victim with regard to she being taken to the spot by three accused
persons gets support from the evidence of Rasul. It is argued that
the alleged delay in recording of the statements of the witnesses is
not sufficient to discard their veracity. It is submitted that the
defence has not been able to bring anything on record to show as
to the reason for which the witnesses are deposing falsely against
them. As far as accused Samin is concerned, it is argued that there
is evidence on record to show that this accused person sustained
the injuries on his person not by dog attack but were caused by the
human nails. It is submitted that the defence taken by the accused
about injuries being caused by the dog is not sustainable. Thus, it
is the submission of the prosecution that there is sufficient
evidence on record which conclusively proves the guilt of the
accused person beyond shadow of reasonable doubt. It is argued



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that in view of the provisions of Section 29 of the POCSO act, the
burden is upon the accused person to prove their innocence. On
these   amongst    other    contentions         the   prosecution    seeks
confirmation of the impugned judgment and order.

15.         In the present case, the prosecution has sought to
invoke the provision of POCSO Act against the Appellants/accused.
It is therefore incumbent on the prosecution at the first instance to
prove that the victim is a child within the meaning of Section 2(b)
of the said Act. In this regard, the prosecution examined Informant
(PW1), who is the mother of the victim girl who deposed about the
date of birth of the victim to be 18.04.2005 and said oral evidence
of the witness gets support from the birth certificate (Exhibit 17).
The defence has not taken exception to the evidence of the
Informant with regard to the age of the victim. Thus, the
prosecution by leading cogent evidence has proved that the victim
was aged about 11 years at the time of the occurrence of the
incident and that she is a child within the meaning of Section 2(d)
of the POCSO Act. The provisions of POCSO Act therefore are
rightly invoked in the present case.

16.         Needless to emphasise that even in the proceedings
under the POCSO Act, the burden would always be upon the
prosecution to prove the guilt of the accused beyond the shadow of
reasonable doubt. It is only after the prosecution successfully
proves the fundamental facts indicating the complicity of the
accused in the crime, in view of Section 29 of the Act, there is no
burden upon the accused to prove that he has not committed said



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offence. Unlike other penal laws, this is exceptional provision
which does not permit the accused to remain silent and there is
burden cast upon the accused to prove that he is not guilty of the
offence once the fundamental facts are established against the
accused. The defence need not necessarily lead any independent
evidence to prove that the accused is not guilty of the offence and
the same can be demonstrated by way of cross-examination of the
witnesses of the prosecution and pointing out the discrepancies in
the evidence of the prosecution. Keeping in mind these principles,
the evidence on record is evaluated/assessed hereinafter.

17.         The incident in question has occurred on 1 st February,
2016 wherein the victim was sexually assaulted. The prosecution
by examining the victim (PW5), the Informant (PW1), Smt. Geeta
(PW4) and Dr. Patil (PW13) has brought on record the nature of
injuries caused to the victim in the said incident. The victim states
about the injures being caused on her person including to her
genitals. Her version gets support from the Informant and
witnesses who had seen the victim at the spot of the incident and
at that time she was found to be bleeding from her genitals with
number of injuries on her person.

18.         The    victim   was     immediately        referred   to   the
government hospital at Kalwa. She was examined by the medical
officer. On examination of the victim as deposed by Dr. Patil
(PW13), it was found that the victim had a II perineal tear (2 cm)
long and deep tear at 5 o’clock position extending inside the
vagina. There was a lateral vaginal wall tear extending upto the



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right formix. The fornix of vagina was also found torn. The vaginal
mucosa of the victim was also torn and the hymen was completely
torn. It was also noticed that the injuries were fresh and bleeding.
The medical officer has candidly opined with regard to their being
evidence of genital penetration and that the victim was sexually
assaulted. The medical officer has also opined that injuries caused
to the victim indicate that she has been raped brutally.

19.         The evidence of medical officer further shows that the
victim was required to undergo surgery and she was subjected to
surgeries i.e. genital exploration and diagnostic laparoscopy. The
victim was required hospitalisation as an indoor patient for ten
days. The medical officer proved medical papers (Exhibit 50) and
medical certificate (Exhibit 51). According to this evidence, a
questionnaire was received from the Investigating Officer and
while replying the same it was opined that the victim is mentally
challenged girl, who has been raped and was injured by the
accused, which has resulted in multiple injuries being caused all
over her person.

20.         The above evidence led by the prosecution was not
being able to be shattered by cross-examination of these witnesses.
The prosecution thus has proved conclusively that on 1 st February,
2016, the victim was sexually assaulted and was subjected to rape.
In the said incident she has sustained severe injuries on the
genitals so also on other parts of her person. The prosecution thus
has proved beyond reasonable doubt that the victim girl was




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subjected to forceful sexual intercourse which constitutes rape
within the meaning of provisions of Penal Code.

21.            Once the prosecution proves that the victim is a child
and was subjected to sexual assault, the next burden upon the
prosecution is to prove that the accused are the perpetrators of the
said crime. In order to decide the said issue, it would be relevant to
take into consideration and appreciate the evidence which has
come on record through examination of the witnesses.

22.            The Informant (PW1), who is the mother of the victim
reported the incident to the police on the same day of the
occurrence of the incident i.e. on 1 st February, 2016. She reported
the incident after she along with her husband and other went to
the spot of the incident and found the victim to be in injured
condition and bleeding from her genitals. The report came to be
lodged on the basis of information given to her by the victim
herself. It would be necessary to reproduce the relevant portion of
the FIR reads thus:

                ^^R;kosGh vkEgh rhyk dk; >kys vls fopkjys vlrk rhus
      vkEgkyk lkafxrys dh] ^^iksjkus eyk ekjyh** o iq<s vls lkafxrys dh]
      rhus rhpk gkr vkiys xqIrHkkxkdMs d:u lkafxrys dh] eyk bFks
      xqIrHkkxkoj rlsp xqn~n}kjkoj ekjys o cksV ykowu nq[kkoys vls lkaxrys-

                R;kosGh vkEgh ikghys vlrk vkEgkyk rhP;k xqIr Hkkxkrqu
      lrr jDr ;sr vlY;kps fnlys o rhph ysxht jDrkus Hkjysyh gksrh-
      R;kosGh rhP;k vaxkojpk VkWi uOgrk- vkEgh vf/kd pkSd’kh dsyh vlrk
      vkEgkyk ‘kstkjh pkGhr jkg.kk&;k eqykus lkafxrys dh] ,d eqyxk fgyk
      lkscr ?ksowu xsyk vlY;kps R;kus ikghys gksrs-**




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23.           Ultimately, it was claimed that some unknown boy has
committed rape on the victim. This gets reflected from the
following portion of the FIR:

               ^^ek>h eqyxh g”kZnk fgus eyk lkafxrys dh] dks.khrjh iksjkus
      rhyk gkrkus psg&;koj ek:u o frpsoj tcjh laHkksx dsyk vkgs o rhus
      vksjMw u;s Eg.kwu rhP;k rksaMkoj gkrkus nkcY;kus rhps vksB lqtysys
      vkgsr-
                rlsp ek>h vYio;hu eqyxh g”kZnk fgpk vKkr blekus rhP;k
      xqIrHkkxkyk gkr ykowu rlsp ek:u] ySafxd NG d:u tcjh laHkksx
      dsyk vkgs- Eg.kwu eh ek>s eqyhoj dGok gkWLihVy ;sFks nokmipkj d:u
      >kys izdkjkckcr iksyhl Bk.;kr ;sowu fQ;kZn nsr vkgs-**

24.             The victim was sent for medical examination and
where the Informant i.e. the mother of the victim gave history to
the medical officer stating that sexual assault being caused by
unknown person.

25.           The medical certificate dated 1st February, 2016 also
records the history as:

      “H/o alleged rape/kidnapping given by victim in her own words.

              As Pt’s (victim) is mentally retarded since birth all the history is
      given by victim’s mother. She only tells that the man had hurted her at
      her private parts & removed her clothes.”

26.           The above statements clearly indicate that initially the
case of the victim/Informant was commission of the crime i.e. act
alleged, by one person. The manner in which report came to be
lodged with police and history given to medical officer, leaves no
room for doubt that there was single perpetrator of crime.




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27.         According to the prosecution, on 2nd February, 2016
Accused No.1 Samin came to be arrested and it was found that
there were scratch marks on his face and body. He was claimed to
have been spotted near the spot of the incident on the next day of
the occurrence thereof.

28.         It is for the first time on 6 st February, 2016, during the
course of treatment, it was informed to the medical officer that few
men assaulted the victim and such information was given by the
parents of the victim.

29.         It is pertinent to note that the FIR as well as the
history given to the medical officer indicates that initially the
victim disclosed to her mother about she being sexually abused
and raped by one boy. It is thus clear that at the first instance the
victim never disclosed to her mother about involvement of more
than one person in the said incident. The said version is sought to
be changed on 6th February, 2016 and for this purpose no
explanation is provided by prosecution.

30.         As per the case of the prosecution, thereafter a
statement came to be recorded on 9th February, 2016, wherein
witness Rasul (PW7) claimed that on 1st February, 2016, at the spot
of the incident he saw two - three boys and further about he being
assaulted by one of them by throwing stone at him and that
resulted in causing injury to him over his forehead. He also claims
to have taken treatment for the same from doctor and being
prescribed medication.




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31.         During the course of investigation the dog squad was
also used and the sniffer dog led the police party to the room in a
chawl where Accused No.2 – Sonu was staying along with the
absconded accused Renga. On the basis of these circumstances,
Accused No.2 came to be arrested.

32.         In order to prove the complicity of the Appellants in
the crime the prosecution led evidence of the victim. Learned trial
court recorded about evidence of the victim being taken in the
chambers and that the victim answered the questions after asking
her 2-3 times by way of nodding and gestures. The record does
not indicates that aid of any expert being taken at the time of
recording of the evidence. It becomes relevant in view of the
evidence of Smt. Mane (PW15). In this regard, it would be
necessary to take note of her deposing before the trial court. She is
the teacher of Ummeed School, which is meant for mentally
challenged children. She is a diploma holder in vocational
rehabilitation from NIMH, Belapur, Navi Mumbai. She was
therefore able to understand the communication by such special
children. She admits that the police called her for recording
statement of victim. Though she claims in her chief-examination
that the victim used to communicate in such a way that even
others could understand by and large, what she had to say, in the
cross-examination however she accepted the fact that she was
called because only she could understand what the victim was
saying. From the evidence of this witness it is clear that the victim
required assistance for correct understanding of what she wants to




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communicate and this would be more so relevant when on the
basis of her statement, fate of a criminal trial would be decided.

33.          It is further matter of fact that the learned trial court
did not take assistance of any expert in recording her statement
but mentioned that the answers were given by nodding and
gestures. Apart from this, it is mentioned that the evidence is being
taken in the chambers, however, there is further recording to the
effect that the victim even rushed to the dais to communicate with
the learned judge. Without attributing anything against the learned
judge, the evidence of the victim however needs to be appreciated
with extra caution.

34.          Victim was put questions and she answered them
nodding or making gestures. She claimed that she was abused by
three boys. By gesticulating and removing her inner-wear she
claimed that the private part of the male was inserted into her
private part and by gesturing three with fingers she indicated this
act being committed by three boys. She identified the present
Appellants/accused on VC. She claims that she was taken to prison
by nodding to answer to the questions that she was taken to prison
and had seen those boys in jail. It is however pertinent to note that
the   prosecution     has   not   proved          the   conducting   of   Test
Identification Parade of the accused before the trial court. Without
being critical, it is necessary to note that the highest law officer of
the district had conducted the said trial. Inspite of the said fact, no
pains were taken for proving the Test Identification Parade by
examining the person who conducted the same. Ultimately it has
resulted into non-proving of the Test Identification Parade.


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35.          Test Identification Parade assumes relevance and
importance in the instant case because it was the case of the victim
and Informant that the perpetrators of the crime were unknown
person and hence accordingly the offence came to be registered
against unknown person. It was in such situation absolutely
necessary for the prosecution to prove that during the course of the
investigation, the arrested accused were identified to be the
perpetrators of the crime. No doubt, the Test Identification Parade
is relevant for the purpose of investigation and to ascertain that the
investigation being done in right directions, when the accused are
unknown to the victim or the witnesses, conduct of                    Test
Identification Parade would become essential and so also its proof
before the trial court. No doubt PW11 – Gopinath, has stated that
he was called to Thane Central Jail, on 10.03.2016 for
identification parade and he having identified Appellants/accused,
he being witness of prosecution for identifying the accused, cannot
be considered as a witness to prove identification panchanama.
Even otherwise, it does not claim drawing of panchanama or proof
thereof. Thus, as a matter of fact in case where accused are
unknown persons, on proving of Identification Panchanama proves
fatal to the case of prosecution.

36.          Apart from this, what is more disturbing is the manner
in which the Identification of the accused persons was sought
before the trial court. The accused were produced on VC. There is
nothing on record to indicate that except for the accused person
there was anyone else who was seen on the screen in order to lend
any support to their identification as the perpetrators of the crime.


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No doubt, the victim has identified them however question arises
as to whether the said identification could be considered as
clinching evidence to hold that the Appellants/accused have
committed the crime in question, when the witness/victim’s
judgment to identify them is not tested with presence of others
along with them.

37.          The victim is aged about 11 years with her mental age
of 5 years, and hence needless to say that she becomes susceptible
to tutoring. It is the duty, responsibility and obligation on the Court
to ensure that in all cases the identification even if the Court is
taken in such a manner that it would give meaning thereto and not
farce of identification. In the cross-examination of the victim it has
come on record that the police asked her about what has happened
on that day and at that time her mother as well as the Advocate
representing victim was present. This suggests the possibility of
tutoring. In the light of these facts and the manner in which
evidence of victim is recorded, it cannot be said that the evidence
of victim is reliable and trustworthy to record conviction without
corroboration by other evidence.

38.          At this stage, it would be relevant to take note of the
judgment of the Hon’ble Supreme court in the case of Nirmal
Premkumar and Anr. v. State represented by Inspector of Police 1.
This Court finds it appropriate to reproduce relevant portion of the
said judgment, which reads thus:




1     (2024) 20 SCC 293



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 “20. Law is well settled that generally speaking, oral testimony may be
classified into three categories viz.:

         (i) wholly reliable;
         (ii) wholly unreliable;
         (iii) neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious difficulty for the
Court in arriving at its conclusion(s). However, in the third category of
cases, the Court has to be circumspect and look for corroboration of any
material particulars by reliable testimony, direct or circumstantial, as a
requirement of the rule of prudence.

         21. In Ganesan v. State, this Court held that the sole testimony
of the victim, if found reliable and trustworthy, requires no corroboration
and may be sufficient to invite conviction of the accused.

         22. This Court was tasked to adjudicate a matter involving gang
rape allegations under Section 376(2)(g) IPC in Rai Sandeep v. State
(NCT of Delhi). The Court found totally conflicting versions of the
prosecutrix, from what was stated in the complaint and what was
deposed before Court, resulting in material inconsistencies. Reversing the
conviction and holding that the prosecutrix cannot be held to be a
"sterling witness", the Court opined as under: (SCC p. 29, para 22)

      "22". In our considered opinion, the "sterling witness" should be of
      a very high quality and calibre whose version should, therefore, be
      unassailable. The court considering the version of such witness
      should be in a position to accept it for its face value without any
      hesitation. To test the quality of such a witness, the status of the
      witness would be immaterial and what would be relevant is the
      truthfulness of the statement made by such a witness. What would
      be more relevant would be the consistency of the statement right
      from the starting point till the end, namely, at the time when the
      witness makes the initial statement and ultimately before the court.
      It should be natural and consistent with the case of the prosecution



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     qua the accused. There should not be any prevarication in the
     version of such a witness. The witness should be in a position to
     withstand the cross-examination of any length and howsoever
     strenuous it may be and under no circumstance should give room
     for any doubt as to the factum of the occurrence, the persons
     involved, as well as the sequence of it. Such a version should have
     co-relation with each and every one of other supporting material
     such as the recoveries made, the weapons used, the manner of
     offence committed, the scientific evidence and the expert opinion.
     The said version should consistently match with the version of
     every other witness. It can even be stated that it should be akin to
     the test applied in the case of circumstantial evidence where there
     should not be any missing link in the chain of circumstances to
     hold the accused guilty of the offence alleged against him. Only if
     the version of such a witness qualifies the above test as well as all
     other such similar tests to be applied, can it be held that such a
     witness can be called as a "sterling witness" whose version can be
     accepted by the court without any corroboration and based on
     which the guilty can be punished. To be more precise, the version
     of the said witness on the core spectrum of the crime should remain
     intact   while   all   other    attendant     materials,   namely,   oral,
     documentary and material objects should match the said version in
     material particulars in order to enable the court trying the offence
     to rely on the core version to sieve the other supporting materials
     for holding the offender guilty of the charge alleged."

                                                  (emphasis supplied)

        23. In Krishan Kumar Malik v. State of Haryana, this Court laid
down that although the victim's solitary evidence in matters related to
sexual offences is generally deemed sufficient to hold an accused guilty,
the conviction cannot be sustained if the prosecutrix's testimony is found




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unreliable and insufficient due to identified flaws and lacunae. It was
held thus: (SCC p. 138, paras 31-32)

                        "31. No doubt, it is true that to hold an accused
                    guilty for commission of an offence of rape, the
                    solitary evidence of the prosecutrix is sufficient
                    provided the same inspires confidence and appears to
                    be absolutely trustworthy, unblemished and should be
                    of sterling quality. But, in the case in hand, the
                    evidence of the prosecutrix, showing several lacunae,
                    which have already been projected hereinabove,
                    would go to show that her evidence does not fall in
                    that category and cannot be relied upon to hold the
                    appellant guilty of the said offences.

                        32. Indeed there are several significant variations
                    in material facts in her Section 164 statement,
                    Section 161 statement (CrPC), FIR and deposition in
                    court. Thus, it was necessary to get her evidence
                    corroborated independently, which they could have
                    done either by examination of Ritu, her sister or
                    Bimla Devi, who were present in the house at the
                    time of her alleged abduction. The record shows that
                    Bimla Devi though cited as a witness was not
                    examined and later given up by the Public Prosecutor
                    on the ground that she has been won over by the
                    appellant."

         24. What flows from the aforesaid decisions is that in cases
where witnesses are neither wholly reliable nor wholly unreliable, the
Court should strive to find out the true genesis of the incident. The Court
can rely on the victim as a "sterling witness" without further
corroboration, but the quality and credibility must be exceptionally high.
The statement of the prosecutrix ought to be consistent from the


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      beginning to the end (minor inconsistences excepted), from the initial
      statement to the oral testimony, without creating any doubt qua the
      prosecution's case. While a victim's testimony is usually enough for sexual
      offence cases, an unreliable or insufficient account from the prosecutrix,
      marked by identified flaws and gaps, could make it difficult for a
      conviction to be recorded.

39.            As recorded earlier, initially it was the case of the
Informant on the basis of the incident being disclosed to her by the
victim, one boy had committed the act of rape on her. There is
consistent statement to that effect even before the medical officer
when the victim was immediately taken for treatment to the
government hospital. Apart from this, there is evidence of PW 3 –
Pratik, who specifically states about he having seen the victim on
the fateful day following one boy. He states in his testimony before
the trial court that he was playing cricket in front of a bunglow
near to his house. At around 06:00 p.m. he saw victim coming
towards her house. She went and sat on the step of the bunglow. A
boy came towards her house and he went ahead. The victim
followed him by calling him “HkS;k HkS;k :d”. He claims the
acquaintance with the said boy and has also stated that he could
identify the him if shown. This witness was however never asked
to identify the Appellants/accused either during investigation or
ever before the trial court. In the cross-examination, he accepted
that the accused were arrested by the police, however, no boys
were shown to him by the police. He also states that the boy who
had kept his hand on the victim’s shoulder and taken her were not
shown to him. It was very much possible for the prosecution to
prove that the boy who took the victim is amongst the


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Appellants/accused. Failure on the part of the prosecution to seek
such identification leads to the inference that none present
Appellants took victim along with them.

40.         Similar is the evidence of PW4 – Geeta. No doubt, she
has not seen personally the victim going along with anyone,
however, deposed before the Court that about 05:15 p.m. she was
told by her Bhoye that the victim was seen going towards Kalyan
Phata with one boy. Similar is the evidence of PW6 –
Chandrabhaga, who states about she having seen the victim along
with one boy and they were proceeding towards village Daighar.
She further states that she enquired with the victim as to where
she is going. On this she responded by saying that this bhaiyya is
going to give her “[kkm” i.e. something to eat. She saw both of them
going towards Daighar. She also claimed that she would be in a
position to identify the said boy since she used to reside at
Shilphata. Pertinently, she was also not called upon to identify the
present Appellants/accused. It is thus clear from the evidence laid
by the prosecution that the victim was seen along with one boy
and that more than one boy was never in reference of the
witnesses at the first instance. The above evidence therefore is
inconsistent with regards to the participation of of one person in
commission of crime. Though the victim later on claims that three
persons committed offence, the statement of victim and Informant
cannot be said to be consistent at all stages of proceedings. This
Court therefore has no hesitation to hold that the evidence of
victim is not wholly reliable and it would be unsafe to




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record/upheld conviction solely on the basis of her evidence. As a
rule of prudence, Courts must seek corroboration.

41.         It would be relevant at this stage to take into
consideration the evidence of the Investigating Officer (PW16),
Ms. Vaydande. During the course of cross-examination it was
suggested to the witness that only absconding accused Renga is
visible in the CCTV footage collected during the course of
investigation and the present Appellants are not seen therein.
Though the witness denied the said suggestion, she was unable to
say whether the Appellants/accused are seen in the CCTV footage.
She further admits candidly that in the said footage the victim can
be seen running behind Renga with stone. The said evidence in the
form the CCTV footage also indicates that the victim was seen
going   either   with   or   behind      one     boy    and   the   present
Appellants/accused were not seen with the victim.

42.         The presence of the Appellants is sought to be
introduced with the evidence of Rasul (PW7). This witnesses
claims about being at the spot of the incident at 05:15 p.m. When
he reached the Munja Cha Tep, he heard noise of 2-3 boys coming
from the bushes nearby. He asked them as to what is going on, one
of them stood up and told him, “let us drink in peace”. The said
boy was said to be from Pinky Tai’s chawl. He therefore started
proceeding ahead, however, as he heard, the voice of young girl
calling “Aai Aai” and crying he returned near the bushes and asked
them again as to what is going on. He however does not state
about having seen victim or any other girl at the spot. He claimed



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that he hurled stone at him. He further claims that they hurled
stones at him. He also claims that two boys also hurled stone at
him and one stone caused injury to his forehead. He further claims
to have taken treatment with doctor and also purchased medicines.
Learned trial court on the basis of statement of this witness,
without examination of the doctor who authorised the said
prescription, exhibited the said document so also documents about
purchse of medicines.

43.          During the cross-examination it has come on record
that this statement came to be record on 9th February, 2016. He
admits that in these eight days he did not inform anybody about
the incident. There is no explanation given by this witness as to the
reason for which he has not gone to the police to inform about he
having seen three boys at the spot of the incident. Similarly, the
prosecution has not given any explanation for non-recording of the
statement of this witness for a period of eight days after the
occurrence of the incident. Needless to emphasise that mere delay
in recording the statement of the witness would not become a
ground to discard testimony of the victim. However, at the same
time it was incumbent on the part of the prosecution to explain
the said delay. In case no plausible explanation is provided by the
prosecution, the Courts are required to be slow in accepting the
evidence of the statement of such witness who is brought on
record   belatedly,     as   the    doubt        creeps    in   about    its
genuineness/authenticity.




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44.         This becomes more serious in view of the fact that
there is evidence on record through more than one witness say that
victim went along with a boy, who is not accused. Thus, there has
to be evidence to indicate as to when the Appellants/accused
joined them, if at all they were at the spot. There is no evidence to
indicate that the present Appellants/accused joined absconded
accused and victim after they left towards the spot of the incident.
The introduction of such witness at the belated stage of the
investigation therefore needs to be carefully considered, his
evidence needs to be accepted with pinch of salt.

45.         There is one more witness namely PW12 - Rahul
Kamble, who states about he having seen the present Appellants
and absconded accused accompanying the victim. Testimony of this
witness recorded before the trial court indicates that at the
relevant time, he saw three boys Sonu, Renga and one more boy
purchasing chocolates from Gopinath’s shop. He claims that the
victim went behind them. He also states about he having seen
them giving the chocolates to the victim. He saw the victim
running behind these three boys. In this context, it would be
relevant to take note of the evidence PW11 - Gopinath, who runs a
stationary store. He claims that on the fateful day, the Appellants
came to his shop and purchased strawberry candy toffees worth
Rs.10/- from his shop. He does not make reference to the presence
of the Renga i.e. the absconded accused.             Thus, this evidence
sough to be brought on record indicating presence of Appellant at
the shop is wholly unreliable.




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46.         The prosecution is seeking to connect the present
Appellants with the crime on the basis of the wrappers of the
toffees collected from the spot of the incident. First of all it is
necessary to note that inspite of the knowledge of the incident of
the victim being raped on 1st February, 2016, the witness never
goes to the police to inform the such important and relevant fact.
His statement is also came to be recorded belatedly. No
explanation is offered by the prosecution for non-recording of the
statement of these witnesses immediately. In any case finding of
wrappers at spot would not be enough to connect the Appellants to
the crime, unless there is convincing evidence that they were at
shop of Gopinath and purchased any toffees.

47.         In any case, the statements of these witnesses i.e.
Rahul and Gopinath came to be recorded belatedly on 12.02.2016
and 11.02.2016 respectively. Apart from the fact that there is no
reason/explanation given for belated recording of statements, they
are inconsistent to the statement of the other witnesses who never
claim the victim being seen along with the present Appellants.
There is material inconsistency in the evidence laid by these two
sets of witnesses, which cannot be brushed side lightly.

48.         Apart from the fact that there are inconsistencies in
the statements of the prosecution witnesses with regard to
involvement of the Appellants in the crime, the evidence of victim
is not free from doubt for the reason that she was unable to
understand and communicate in right way which could be
understood by the people. When the police required assistance of



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the expert of recording her statement, non seeking such assistance
before the trial court, creates doubt statements recorded and
intended   to   be   communicated        by      victim.   Moreover,   the
Identification Parade of the accused is sought to be done by
showing them on VC in absence of any third person being present
or could be seen on the screen. The evidence of the victim
therefore cannot be called as sterling quality and hence would
require corroboration. As held by the Hon’ble Court in the case of
Nirmal Premkumar (supra), in case the oral testimony of the victim
neither wholly reliable nor wholly unreliable, the Court has to be
circumspect and look for corroboration of material particulars by
reliable testimony, direct or circumstantial, as a requirement of the
rule of prudence.

49.         This Court therefore is required to see as to whether
there is any other reliable evidence against the Appellants to show
their involvement in the crime. As per the record, the involvement
of the Accused No.2 – Sonu was sought on the basis that sniffer
dog was went to the house wherein he was staying along with
absconded accused Renga. As far as Accused No.1 – Samin is
concerned, his complicity is sought on the ground that there were
scratch marks on his person. With regard to the scratch marks on
the person of Samin is concerned, it seems the case of the
prosecution that during the resistance by the victim at the time of
occurrence of the incident, the scratch marks appear on his person.
The scientific evidence however does not support the said claim of
the prosecution. Record indicates that the nail clippings of the
victim were taken and sent for chemical analysis. The CA report


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(Exhibit 102) however, does not indicate any blood or tissue in the
nails of the victim. It is practically not possible that the such
number of marks are caused by the victim to the accused however
neither blood nor tissues were are found in the nail clippings of the
victim. Thus even accepting the fact that the statement of the
accused that the said marks were caused due to dog bite is not
correct, the evidence laid by the prosecution does not show that
they were caused by the victim.

50.             Insofar as Accused No.2 – Sonu is concerned, there is
no other material on record except inconsistent testimonies of
witnesses in order to show his involvement in the crime save and
except inconsistent statements of the witnesses as discussed
hereinabove.

51.             It is also necessarily to take note of the fact that
though learned trial court accepted that this is a case of gang rape,
there is however no evidence to indicate so. Insofar as the injuries
on the thigh of the victim with the cigarette butt concerned, the
medical officer in the opinion given at Exhibit-53 does not
specifically state about the said injuries being caused for the said
reason. The answer to relevant question No.4 is recorded by
stating that:

      “4. Can not comment on this injury.”

52.             The medical officer thus was unable to state whether
the mark on the thigh of the victim was on account of alleged act
on the part of the accused of inflicting cigarettes burns to her. The




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trial court however while recording the evidence of the victim
states so. The said observation reads thus:

      “The victim has pulled up her dress and shown the mark of cigarette
      butts which is still visible on her thigh.”

53.            Thus, when the expert witnesses i.e. the medical
officer is unable to comment upon it, the cause of injury/mark on
thigh of victim, the observation of the trial court with regard to
cause of the said mark does not deserve acceptance. Apart from
this, there is specific query raised as to whether it is possible to
opine as to how many person committed rape on the victim, no
comment was offered by the medical officer in this regard. Thus,
from the medical evidence it cannot be said that the act in question
committed against the victim involve more than one accused.
Needless to reiterate that there is no conclusive evidence to hold
that this is a case of a gang rape, only for the reason that offence is
heinous, conviction cannot be recorded against Appellants once it
is found that their guilt has not been proved beyond reasonable
doubt.

54.            The above discussions therefore clearly indicates that
the prosecution has filed to prove guilt of the accused beyond
shadow of reasonable doubt. In view of the settled position of law
that in case any reasonable doubt is created with regard to the case
of the prosecution, benefit of the same must go to the accused
person. By following the said principle of law Appellants/accused
deserve to be acquitted by giving benefit of doubt. Hence,
following order:-



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                           ORDER

i)       Both Appeals stands allowed.

ii)      Impugned Judgment and order dated 6 th September
2017 passed in Special Case (POCSO) No.108 of 2016, stands
set aside.

iii)     Both Appellants stand acquitted of all charges.

iv)      They be set free forthwith, unless required in another
crime.




                                                    (R. M. JOSHI, J.)
                                                                        {




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