R/CR.A/1897/2018 JUDGMENT DATED: 30/04/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 1897 of 2018
With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2023
In R/CRIMINAL APPEAL NO. 1897 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MERAJUDDIN @ MULLAJI KAMRUDDIN MOHD. CHHEDI SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MR. JARJEESKHAN(7235) for the Appellant(s) No. 1
MS JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 30/04/2024
ORAL JUDGMENT
1. The appellant has preferred the present appeal
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under section 374(2) of the Code of Criminal Procedure,
1973 against the judgment and order of conviction dated
19.7.2018 rendered by learned Additional Sessions Judge,
(Special), Ahmedabad (Rural), Mirzapur, Ahmedabad in
Special POCSO Case No.80 of 2016 whereby the learned
trial Court sentenced the appellant accused to undergo
imprisonment for ten years and to pay fine of Rs.25,000/-,
in default, to undergo further simple imprisonment for three
months for the offence under section 376(2)(i) of the Indian
Penal Code and also convicted and sentenced the appellant
accused to undergo imprisonment for ten years and to pay
fine of Rs.25,000/-, in default, to undergo further simple
imprisonment for three months for the offence under section
4 of the Protection of Children from Sexual Offences Act,
2012. The appellant is hereinafter referred to as the accused
as he stood in the original case for the sake of convenience,
clarity and brevity.
2. The short facts giving rise to the present appeal
are that the complainant has alleged that the victim
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(daughter of the complainant) was aged around 6 years at
the time of the incident. It is alleged that on 11.8.2016 i.e.
the day of incident, her husband went for work and her
mother-in-law went to attend a social function and at
around 11:00 am, her daughter took Rs.2/- to purchase
chocolate and thereafter returned back after half an hour
wherein she looked scared and it appeared that she had
fever and slept. It is alleged that her daughter woke up and
started crying and complaining about pain in her stomach
and upon inquiry, she was informed that the accused
committed a wrongful act with her and the First Information
Report came to be lodged on 14.8.2016 at 22.15 hours
under section 376 of IPC and sections 4 and 6 of the POCSO
Act.
2.1 In pursuance of the complaint, the accused was
arrested on 15.8.2016 and the Investigating Officer carried
out the investigation and collected the necessary evidence
and filed the chargesheet against the accused. That the
accused was produced before the learned trial Court and
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after the copies of the chargesheet were given to the accused
free of cost under section 207 of the CrPC, the charge was
framed against the accused at Exh.5 and the statement of
the accused was recorded at Exh.6 wherein the accused
pleaded not guilty to the charge and claimed to be tried.
2.2 In order to bring home the guilt, the prosecution
has examined twelve witnesses and produced nine
documentary evidences on record.
2.3 At the end of the trial, after recording the
statement of the accused under section 313 of the CrPC and
hearing the arguments on behalf of the prosecution and the
defence, the learned trial Court delivered the judgment and
order of conviction, as stated above.
3. Being aggrieved by the same, the appellant has
preferred the aforesaid Criminal Appeal before this Court.
3.1 By way of preferring the present appeal, the
appellant has mainly contended that the learned trial Court
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has failed to appreciate the evidence on record and has
wrongly recorded the order of conviction. It is further
contended that the learned trial Judge has not appreciated
the evidence on record in its proper perspective and in fact,
there was no appreciation of evidence so far as the defence
of the appellant is concerned and hence, the impugned
judgment and order of conviction is required to be reversed,
as such.
4. This Court has heard Mr.Jarjeeskhan, learned
advocate for the appellant and Mr.Bhargav Pandya, learned
APP for the respondent State.
5. Mr.Jarjeeskhan, learned advocate for the
appellant has mainly argued that in the instant case, the
prosecution has miserably failed to prove the charge against
the accused beyond reasonable doubt and the case of
present accused requires consideration. That the learned
trial Judge has erred in appreciating the fact that most of
the panchas have not supported the case of prosecution and
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they have been declared hostile and the learned trial Judge
has erred in appreciating the deposition of the complainant
i.e Sajiabanu Mehboobbhai Sipai who came to examined
vide Exh. 9 wherein, the deposition of the said witness
doesn't appear to be trustworthy and reliable in view of the
fact that the said witness admits that the alleged incident in
question took place on 11.08.2016 and the First
Information Report was registered after three days of the
alleged incident on 14.08.2016 which shows that the same
is registered belatedly after applying legal mind with an
oblique and malice motive to harass and pressurize the
present accused. The attention of this Court is also drawn
to the fact that the said witness mentions the time of
incident between 8:00 and 8:30 in her deposition though
she has stated the time of 11:00 am in the First
Information Report.
5.1 Mr.Jarjeeskhan has submitted that the learned
trial Judge has erred in appreciating the deposition of the
victim who came to be examined vide Exh.18 wherein the
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deposition of the said witnesses is highly doubtful and there
has been great amount of contradictions and improvement
in the said deposition. Mr.Jarjeeskhan has further
submitted that the learned trial Judge has also erred in
appreciating the deposition of Dr.Janki Bharatbhai Patel
who came to be examined vide Exh.19 wherein the said
witness has stated in the chief examination that upon
asking the victim about the history, she stated that sexual
assault has been committed upon her but no injury was
found on the body or private part of the victim. It is
submitted that the said witness admits in her cross
examination that the history was given to her by the victim,
her mother and her grandmother. Mr.Jarjeeskhan has
further submitted that the learned trial Judge has erred in
appreciating the deposition of Mehboobbhai Yusufbhai Sipai
(Father of the Victim) who came to be examined vide Exh.26
wherein the said witness has stated that he got knowledge
of commission of alleged offence on the very same day from
her wife i.e. 11.08.2018 and the said witness has been
declared hostile by the prosecution.
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5.2 Mr.Jarjeeskhan has further submitted that the
learned trial Judge has erred in appreciating fact that
Farukbhai Karimbhai Memon who happens to be the shop
owner came to be examined vide Exh.27 wherein he has
been declared hostile and he has not supported the case of
prosecution. Mr.Jarjeeskhan has further submitted that the
learned trial Court has erred in appreciating the deposition
of the Police Inspector Girirajsinh Chauhan who came to be
examined vide Exh.45 wherein it appears that the
Investigation Officer has not carried out the investigation in
fair and impartial manner. The attention of this Court is
drawn by the learned advocate for the appellant accused to
the fact that as per the jail remarks, the appellant accused
has already undergone the sentence of seven years, one
month and 21 days as on 22.1.2024. Lastly, Mr.Jarjeeskhan
has has requested this Court to allow the present appeal.
6. On the other-hand, Mr.Bhargav Pandya, learned
APP has supported the judgment rendered by learned trial
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Court. Mr.Pandya has argued that the learned trial Court
has rightly believed the evidences recorded in the case.
Mr.Pandya has further argued that the learned trial Court
has recorded ample reasons based on the evidence on
record for convicting the appellant and, therefore, this Court
should not disturb the findings recorded by the learned trial
Court, as such.
7. This Court has minutely gone through the
impugned judgment rendered by learned trial Court as well
as the evidence on record in the nature of paper book. As
per the prosecution version, the victim (daughter of the
complainant) was aged around 6 years at the time of
incident. It is the case of the prosecution that on the day of
alleged incident, the husband of the complainant went for
work on 11.8.2016 and her mother-in-law went to attend
the social function wherein at around 11:00 am, her
daughter took Rs.2/- to purchase chocolate and thereafter
returned back after half an hour wherein she looked scared
and she had high fever and therefore she slept. That
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thereafter, her daughter woke up and started crying
complaining about pain in stomach wherein upon inquiry,
she was informed that the present accused had committed a
wrongful act with her and thereby the accused committed
the offence, as alleged.
8. The prosecution has examined PW 1 – Sajiyabanu
Mahebubbhai Sipai at Exh.9 and the witness is the mother
of the victim and the complainant. The witness has stated
that on 11.8.2016 the victim had gone to by some eatable at
the shop nearby and the accused called the victim and took
her to his house and made her lie down and removed her
leggings till her ankle. That the accused thereafter lifted his
lungi and slept on the victim and moved about and
ejaculated. The accused thereafter took the victim to the
bathroom and washed her with water. That he thereafter
made her wear her clothes and threatened her. That the
victim came home and started crying and her body was very
hot and she told the mother about the incident. That she
th
went to Aslali Police Station on 14 and filed the complaint
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which is produced at Exh.10. The witness has also
produced the birth certificate of the victim at Exh.11.
During the cross examination by the learned advocate for
the accused, the witness has stated that the shop where the
victim had gone was at a distance of about 6 to 7 houses
away from her house and the victim had gone at around at
8.00 am and returned after half an hour. That when the
victim had returned, she was afraid and the victim had told
her about the incident on 14.8.2016 and the accused had
called the victim and hence, she had gone to the accused.
8.1 The prosecution has examined PW 2 – the minor
victim at Exh.18. The victim has narrated the entire
incident that had taken place. The victim has also stated
that when the accused called her, he took her to the room
on the first floor and thereafter the victim has described the
entire incident that had taken place. During the cross
examination, the victim has also admitted that the wife and
the son of the accused were not at home.
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8.2 The prosecution has examined PW 3 – Dr.Janki
Bharatbhai Patel at Exh.19. The witness is the Medical
Officer who has examined the witness on 14.8.2016 at
about 16.00 hours. The witness has produced the medical
certificate of the victim at Exh.20. During the cross
examination, the witness has stated that the information
about the incident was given to the witness by the victim,
her mother and her grandmother.
8.3 The prosecution has examined PW 4 –
Dr.Manish Jayantilal Gandhi at Exh.22. The witness is the
Medical Officer who has examined the accused on
16.8.2016 at around 3.38 pm. The witness has stated that
the accused was sent along yadi produced at Exh.23 and
the accused had himself in the history stated that he was
residing at Fatehwadi, Juhapura for last 10 years and the
victim who was around 6 years old was residing near his
house. That on 11.8.2016 at around 11.00 am, he called the
victim and took her to the first floor and removed her lower
clothes and lifted his lungi and slept over the victim. That
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he did not penetrate the private part of the victim and then
she went away and told her mother. That he ran away on
12.8.2016 and on 15.8.2016 himself surrendered before the
Police Station at 4.00 pm. That he was not educated and
was married and the police had seized his clothes. The
witness has produced the medical certificate of the accused
at Exh.24 and the yadi of the sample taken at Exh.25.
During the cross examination, the witness has deposed that
the accused had himself given the details in the history and
if no such incident had occurred, the accused had no
reason to give the history as stated before the witness.
8.4 The prosecution has examined PW 5 –
Mahebubbhai Yusufbhai Sipai at Exh.26. The witness is
the father of the victim who has stated that on 11.8.2016
when he had gone for labour work and his wife, victim and
his mother-in-law were at home and when he returned in
the evening, his wife – Sajiya had told him about the
incident. That his wife had filed the complaint at the Police
Station and they had taken the victim to the VS Hospital.
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During the cross examination, the witness has admitted
that when he came back home in the evening, the victim
had fever and she was sleeping. The witness has also
admitted that the accused is married and has son who is
driving rickshaw.
8.5 The prosecution has examined PW 6 – Farukbhai
@ Bhurabhai Karimbhai Memon at Exh.27. The witness is
the owner of the shop where the victim had gone to buy
chocolate. The witness has stated that the minor daughter
of Sajiyabanu Sipai had come to buy some food item but he
does not know as to whether the incident had taken place or
not. The witness has been declared hostile as he has not
supported the case of the prosecution.
8.6 The prosecution has examined PW 7 – Raees
Abdul Hakim Shaikh at Exh.28 and PW 10 – Salim
Bagdadbhai Shaikh at Exh.37. Both these witnesses are
the panch witnesses of the panchnama by which the clothes
of the victim have been seized by the Investigating Officer
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and the panchnama is produced at Exh.29. Both the
witnesses have not supported the case of the prosecution
and they have been declared hostile.
8.7 The prosecution has examined PW 8 –
Hasanbhai Iqbalbhai Shaikh at Exh.32 and PW 9 –
Iqbalkhan Nizamkhan Malek at Exh.37. Both these
witnesses are the panch witnesses of the panchnama of
place of offence which is produced at Exh.33. Both the
witnesses have not supported the case of the prosecution
and they have been declared hostile.
8.8 The prosecution has examined PW 11 –
Maheshkumar Babulal Parmar at Exh.41, PSO of Aslali
Police Station who has registered the complaint of the
complainant at I – CR No.114/2016 and had entered the
same in the station diary of the police station. The witness
has produced the station diary at Exh.42.
8.9 The prosecution has examined the Investigating
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Officer Mr.Girirajsinh Pratapsinh Chauhan at Exh.45. The
witness is the Investigating Officer who has fully supported
the case of the prosecution and has narrated all the
procedure undertaken by him during investigation. During
the cross examination by the learned advocate for the
accused, the witness has stated that the offence had taken
place on 11.8.2016 and the complaint was filed on
14.8.2016. That at the time of incident, the victim had gone
to the shop of Farukbhai to buy chocolate and the accused
is known as “Molaji” in the area. That when the complainant
came to file the complaint, the victim was with her but she
was afraid.
9. The learned trial Court has appreciated all the
evidence and has discussed each and every aspect that has
come on record. The learned trial Court has also considered
the deposition of the victim which is at Exh.18 and has also
appreciated that nothing adverse has come on record during
the cross examination to help the case of the accused. The
learned trial Court has mainly relied upon the history given
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by the accused before the Medical Officer – PW 4 –
Dr.Manish Jayantilal Gandhi at Exh.22 and has also
considered that during the cross examination of the
witness, nothing adverse has come on record.
10. At this juncture, it would be appropriate to refer
to the provisions of Section 29 of the POCSO Act which
reads as under.
“29. Presumption as to certain offences. - Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under sections
3, 5, 7 and section 9 of this Act, the Special Court
shall presume, that such person has committed
or abetted or attempted to commit the offence, as
the case may be, unless the contrary is proved.”
11. Learned APP has relied upon the decision of the
Honourable Supreme Court in the case of State of Himachal
Pradesh Vs Manga Singh, reported in (2019) 16 SCC 759
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and in paragraphs 11, 12, 13 and 20, the Honourable
Supreme Court has observed as under.
“11. The conviction can be sustained on the sole
testimony of the prosecutrix, if it inspires
confidence. The conviction can be based solely on
the solitary evidence of the prosecutrix and no
corroboration be required unless there are
compelling reasons which necessitate the courts
to insist for corroboration of her statement.
Corroboration of the testimony of the prosecutrix
is not a requirement of law; but a guidance of
prudence under the given facts and
circumstances. Minor contradictions or small
discrepancies should not be a ground for
throwing the evidence of the prosecutrix.
12. It is well settled by a catena of decisions of the
Supreme Court that corroboration is not a sine
qua non for conviction in a rape case. If the
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evidence of the victim does not suffer from any
basic infirmity and the ‘probabilities factor’ does
not render it unworthy of credence. As a general
rule, there is no reason to insist on corroboration
except from medical evidence. However, having
regard to the circumstances of the case, medical
evidence may not be available. In such cases,
solitary testimony of the prosecutrix would be
sufficient to base the conviction, if it inspires the
confidence of the court.
13. In State of Punjab v. Gurmit Singh and
Others, (1996) 2 SCC 384, it was held as under:-
“8. The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape, no
self-respecting woman would come forward in a
court just to make a humiliating statement
against her honour such as is involved in the
commission of rape on her. In cases involving
sexual molestation, supposed considerations
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which have no material effect on the veracity of
the prosecution case or even discrepancies in the
statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise
reliable prosecution case. The inherent
bashfulness of the females and the tendency to
conceal outrage of sexual aggression are factors
which the courts should not overlook. The
testimony of the victim in such cases is vital and
unless there are compelling reasons which
necessitate looking for corroboration of her
statement, the courts should find no difficulty to
act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony
inspires confidence and is found to be reliable.
Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should
the evidence of a girl or a woman who complains
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of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion?........”. (Underlining
added).
14. xxx xxx xxx
15. xxx xxx xxx
16. xxx xxx xxx
17. xxx xxx xxx
18. xxx xxx xxx
19. xxx xxx xxx
20. Observing that there are number of unmerited
acquittals in rape cases and that the courts have
to display a greater sense of responsibility and to
be more sensitive while dealing with the charges
of sexual assault on woman, in State of Rajasthan
v. N.K. The Accused– (2000) 5 SCC 30, this Court
has held as under :
“9. ...A Doubt, as understood in criminal
jurisprudence, has to be a reasonable doubt and
not an excuse for a finding in favour of acquittal.
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An unmerited acquittal encourages wolves in the
society being on the prowl for easy prey, more so
when the victims of crime are helpless females. It
is the spurt in the number of unmerited
acquittals recorded by criminal courts which
gives rise to the demand for death sentence to the
rapists. The courts have to display a greater sense
of responsibility and to be more sensitive while
dealing with charges of sexual assault on women.
In Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat:- (1983) 3 SCC 217 this Court observed
that refusal to act on the testimony of a victim of
sexual assault in the absence of corroboration as
a rule, is adding insult to injury. This Court
deprecated viewing evidence of such victim with
the aid of spectacles fitted with lenses tinted with
doubt, disbelief or suspicion. We need only
remind ourselves of what this Court has said
through one of us (Dr A. S. Anand, J. as his
Lordship then was) in State of Punjab v. Gurmeet
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Singh:- (1996) 2 SCC 384 : p. 403, para 21 )
“[A] rapist not only violates the victim's privacy
and personal integrity, but inevitably causes
serious psychological as well as physical harm in
the process. Rape is not merely a physical
assault- it is often destructive of the whole
personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the
very should of the helpless female. The courts,
therefore, shoulder a great responsibility while
trying an accused on charges of rape. The must
deal with such cases with utmost sensitivity. The
courts should examine the broader probabilities
of a case and not get swayed by minor
contradictions or insignificant discrepancies in
the statement of the prosecutrix, which are not of
a fatal nature, to throw out an otherwise reliable
prosecution case.”
10. The questions arising for consideration before
us are: whether the prosecution story, as alleged,
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inspires confidence of the court on the evidence
adduced? Whether the prosecutrix, is a witness
worthy of reliance? Whether the testimony of a
prosecutrix who has been in victim of rape stands
in need of corroboration and, if so, whether such
corroboration is available in the facts of the
present case? What was the age of the
prosecutrix? Whether she was a consenting party
to the crime? Whether there was unexplained
delay in lodging the FIR?”
12. In view of the above settled principles of law and
in cases filed under the POCSO Act where the Special Court
has to presume that a person has committed the offence
and reappreciating the entire evidence produced by the
prosecution on record, it is proved that on 11.8.2016, the
accused had called the minor victim and had committed the
act with her. The deposition of the victim who is minor child
of around six years at the time of incident is believable and
very natural and she has narrated the entire incident that
had taken place with her. As observed by the Honourable
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Apex Court in Manga Singh (supra), absence of injuries on
the private part of the victim does not conclude that no act
had taken place and absence of injuries on the private part
of the victim are of no consequences in the facts and
circumstances of the present case. The testimony of the
victim is extremely vital and there are no compelling reasons
or any instances that have come on record that would find
that the accused had not committed an act with the victim.
The testimony of the victim inspires confidence and is found
reliable. The learned trial Court has observed that the
accused has himself described the entire act before the
Medical Officer Dr.Manish Jayantilal Gandhi and the
learned trial Court has believed the medical history stated
by the accused before the Medical Officer. There is nothing
on record to suggest that the Doctor had himself fabricated
the facts and if the medical certificate produced at Exh.24 is
perused, the history is written in the words and language of
the accused. It had also surfaced that at the time of
commission of an act, penis of the accused had touched the
private part of the victim as during the commission of the
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act, the accused had removed the leggings of the victim till
her ankle and had lifted his lungi and slept on the victim
and moved on the victim and ejaculated and the learned
trial Court has thus concluded that the offence under
section 3 of the POCSO Act is made out. The learned trial
Court has also considered that the victim being the minor
girl of about six years had no reason to falsely implicate the
accused and there is nothing on record to suggest that there
was any enmity between the complainant and the accused
and reason for the complainant to falsely implicate the
accused. As far as delay in filing of the FIR is concerned,
has not been challenged by the learned advocate for the
accused and it appears that after the incident occurred on
11.8.2016 the victim had high fever and the complaint was
filed on 14.8.2016, but in the conservative society, it is
natural for the parents to not rush immediately to the police
station to file the complaint. The learned trial Court has
also considered the presumption under section 29 of the Act
which is not rebutted by the accused either by means of
direct or circumstantial evidence and unrebuttal
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presumption supports the conviction of the accused and
hence, the prosecution has conclusively proved that the
accused had committed the offence under section 3 of the
POCSO Act. As far as medical evidence is concerned, the
Medical Officer has admitted that there were no injury on
genital area of the victim to show that there was penetrative
sexual assault, but in various decisions, the Honourable
Apex Court has taken the view that the complete
penetration is not necessary to constitute the offence of rape
and even the slightest penetration is sufficient to make out
the offence of rape and depth of penetration is immaterial.
It has also been observed that vulva penetration has been
held to be sufficient for conviction of rape. In the instant
case, the learned trial Court has discussed and concluded
that as the accused had removed the undergarments of the
victim and had also lifted his lungi and had ejaculated on
the victim; the penis of the accused had touched vulva of
the victim; as this would be sufficient to cause penetration
to any extent with emission of semen, it is sufficient to
constitute the offence under section 3 of the POCSO Act and
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presumption of offence available under section 29 of the
POCSO Act leaves no doubt that the accused had in fact
committed the offence of penetrative sexual assault under
section 3 of the POCSO Act.
13. In view of the aforesaid nature of evidence, it is
clear that there is clinching, cogent and reliable evidence
beyond reasonable doubts to confirm the conviction and the
learned trial Court has rightly convicted the accused for the
offence in question. Therefore, this Court is in complete
agreement with the findings recorded and ultimate
conclusion arrived at by the learned trial Court.
14. For the reasons recorded above, the appeal fails
and the same is hereby dismissed. The judgment and order
of conviction dated 19.7.2018 rendered by learned
Additional Sessions Judge, (Special), Ahmedabad (Rural),
Mirzapur, Ahmedabad in Special POCSO Case No.80 of
2016 is hereby confirmed. R & P be sent back to the trial
Court, forthwith.
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15. In view of the above, Criminal Misc. Application
(for suspension of sentence) No.1 of 2023 in R/Criminal
Appeal No.1897 of 2018 does not survive and the same
stands disposed of accordingly. Rule is discharged.
(S. V. PINTO,J)
H.M. PATHAN
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