CRIAPPEAL-451-2017.DOC

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 451 OF 2017

Sayyad Shabbir Sheikh

alias

Sayyad Shabbir Saha

Aged – 55 years, R/o. Anandnagar

Zopadpatti, Vasai West, Dist. Palghar,

at present Kolhapur Central Prison,

Kalamba, as convict prisoner no ,

Kolhapur.

...Appellant

Versus

State of Maharashtra

Through Mnikpur Police Station in

C.R. No.296 of 2014, District Palghar. …Respondent

Mr. Madhusudan Pareek, for the Appellant.

Ms. M. H. Mhatre, APP for the State/Respondent.

CORAM: SMT. SADHANA S. JADHAV

& N. J. JAMADAR, JJ.

RESERVED ON : 22

nd

September, 2020

PRONOUNCED ON: 1

st

October, 2020

JUDGMENT : (Per: N.J. Jamadar, J.)

1.The challenge in this appeal is to the judgment of

conviction and order of sentence dated 20

th

December, 2016

passed by the learned Additional Sessions Judge, Vasai, in

Special Case No.1 of 2015, whereunder the appellant – accused

came to be convicted for the offences punishable under Section

376 (2) (i) and (n); 323 and 506 of the Indian Penal Code, 1860

(“IPC”) and sentenced to suffer imprisonment for life and pay

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fne of Rs.10,000/- on the frst count and rigorous

imprisonment for six months and fne of Rs.5000/- each, on the

second and third count, with default stipulation.

2.The accused came to be prosecuted for having committed

rape on his minor daughter (hereinafter referred to as, ‘the

victim’) repeatedly after threatening her out of her life and for

causing hurt when she resisted, with the following accusation:

(a) The accused was residing at Anandnagar slum, Vasai

(West) along with his 15 year old daughter (the victim) and 6

year old son. His wife and the mother of the children had left

them. She solemnized second marriage. The accused was

working as a rag picker.

(b) Since one year prior to 4

th

November, 2014, the

accused had sexually exploited the victim. The accused used to

disrobe the victim, tie her legs and forcibly commit sexual

intercourse. When the victim tried to resist, the accused gagged

her mouth. The victim attempted to reason with the accused.

But the latter continued to ravish her. The accused threatened

the victim out of her life if she narrated the exploitation to

anybody. Initially the victim had apprised her ordeal to female

members of her community but they did not assist her.

Ultimately, the victim mustered courage and informed the

sexual exploitation at the hands of accused to Mrs. Sunita

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Bablu Chavan. The latter approached Smt. Geeta Ravindra Ayre

(PW-1), a Member of Mahila Dakshta Samiti, who took her to

Manikpur Police Station.

(c) The victim thus lodged report at Manikpur Police

Station of having been subjected to forcible sexual intercourse

by the accused during the period of one year preceding 4

th

November, 2014; on the night of which the last incident of

penetrative sexual assault occurred. Crime was registered at CR

No.296 of 2014 for the offence punishable under Sections 376,

323 and 504 of IPC and Sections 4 and 8 of the Protection of

Children from Sexual Offences Act, 2012 (‘the POCSO Act’).

3.During the course of investigation, the Investigating Offcer

visited the scene of occurrence: the house of the accused. Scene

of occurrence panchnama was drawn and the clothes of the

victim and bedsheet were seized. The accused came to be

arrested. The victim was sent for medical examination. The

accused was also sent for medical examination. The

Investigating Offcer interrogated the witnesses and recorded

their statements. After obtaining the reports of medical

examination and fnding the complicity of the accused, charge-

sheet came to be lodged against accused before the Special

Court.

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4.The learned Special Judge framed charge against the

accused for the offences punishable under Sections 376(2)(i)(n),

323 and 506 of IPC and Sections 4, 6 and 8 of the POCSO Act.

The accused abjured his guilt and claimed for trial.

5.At the trial, the prosecution examined eight witnesses

including the victim (PW-2), Smt. Geeta Ayre (PW-1); the

Member of Mahila Dakshata Samiti, Dr. Anjali Pimple (PW-3);

the Medical Offcer who had examined the victim, Dr. Rani

Vikas Bhadlani (PW-6); the Medical Offcer who had examined

the accused, Mrs. Balvita Thomas Silhera (PW-8); the teacher of

ZP School where the victim was enrolled and Ashwini Patil (PW-

7) the Investigating Offcer, who had conducted substantial

investigation. After closure of the evidence for prosecution the

accused was examined under Section 313 of the Code of

Criminal Procedure, 1973. The accused did not lead any

evidence in his defence which consisted of false implication at

the instance of Bablu Chavan and Umesh Shetty who were bent

on grabbing his house.

6.After appraisal of the evidence, the learned Special Judge

was persuaded to enter the fnding of guilt against the accused.

In the opinion of the learned Special Judge the testimony of the

victim found necessary corroboration in the medical evidence

and there was no justifable reason to discard the evidence of

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the victim. Since the accused had ravished his daughter and

betrayed the trust and confdence reposed in him by the victim,

the accused deserved to be punished with maximum sentence

prescribed under Section 376(2)(i)(n) of IPC. Thus, the accused

came to be convicted and sentenced as indicated above.

7.Being aggrieved by and dissatisfed with the impugned

judgment the accused is in appeal.

8.We have heard Mr. Madhusudan Pareek, the learned

Counsel for the appellant, and Ms. Mhatre, the learned APP for

the State/Respondent at considerable length. With the

assistance of the learned Counsels, we have perused the

evidence and material on record.

9.Mr. Pareek, the learned Counsel for the appellant mounted

a multi-fold challenge to the impugned judgment of conviction.

Firstly, the learned Special Judge committed a grave error in

placing implicit reliance on the testimony of the victim without

there being necessary corroboration. Secondly, the testimony

of the victim suffers from material omissions and improvements

which rendered it unsafe to place reliance on the sole testimony

of the victim. Thirdly, the fact that there was an inordinate

and unexplained delay in lodging the FIR was lightly

brushed aside by the learned Special Judge. Lastly, the non-

examination of witnesses, especially the neighbours of the

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victim, in the context of allegation of repeated sexual

exploitation over a period of one year, dents the credibility of the

prosecution.

10.In contrast to this Ms. Mhatre, the learned APP submitted

that the sole testimony of the prosecutrix is worthy of reliance

and the learned Special Judge has not committed any error in

returning the fnding of guilt against the accused. The learned

APP stoutly submitted that the medical evidence in the form of

the testimony of Dr. Anjali Pimple (PW-3) provides requisite

corroboration. Laying emphasis on the circumstances in which

the victim was ravished by her father in the four walls of their

house, it was urged that the grounds of non-examination of

independent witnesses and the alleged delay in lodging the FIR

are of no signifcance.

11.Before adverting to deal with the aforesaid submissions, it

would be apposite to note relationship between the parties and

their situation in life. Indisputably the accused was residing at

Anandnagar slum, Vasai, along with the victim and her brother.

There is no qualm over the fact that the wife of the accused had

walked out of their matrimonial home and was residing at

Ratlam. By and large there is no dispute over the fact that the

victim is the daughter of the accused, though at the fag end of

the trial, a feeble attempt was made to suggest to the

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Investigating Offcer that the accused was not the genetic father

of the victim. Nor there is much quarrel over the fact that the

accused and the victim were residing in a densely populated

slum.

12.The trustworthiness of the testimony of the victim (PW-2)

is required to be appreciated in the aforesaid context. The

victim (PW-2), after apprising the Court about the familial

circumstances, testifed to the fact that since one year prior to

lodging of the report the accused had been sexually exploiting

her. He used to disrobe her, tie her hands and do dirty things

with her. When she resisted, the accused threatened her and

also gave threats to kill her younger brother by pointing knife to

the latter’s neck. She further affrmed that the accused used to

give some pill to her before ravishing her.

13.The victim (PW-2) wants the Court to believe that she

apprised about the exploitation at the hands of the accused to

Sunita Chavan, who resides near her house. Sunita approached

Smt. Geeta Ayre (PW-1), a Member of the Mahila Dakshta

Samiti, who took her to Manikpur police station.

14.Smt. Geeta Ayre (PW-1) lent support to the claim of the

victim. Smt. Geeta (PW-1) informed the Court that, on being

apprised by Sunita, she met the victim in the house of Sunita.

The victim narrated her ordeal. Smt. Geeta (PW-1) claimed

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to have inquired with the victim as to why the victim did not

disclose the incident earlier and thereupon the victim replied

that the accused had threatened her with dire consequences.

Smt. Geeta (PW-1) claimed to have accompanied the victim to

Manikpur police station to lodge the report. Nothing material

could be elicited in the cross-examination of Smt. Geeta (PW-1)

to discard her evidence on the aspect of having met the victim,

and, upon being apprised of sexual exploitation at the hands of

the accused, taken the victim to Manikpur police station to

lodge the report.

15.It would be contextually relevant to have recourse to the

testimony of Dr. Anjali Pimple (PW-3), who had examined the

victim on 7

th

November, 2014, at Civil Hospital, Thane. Dr.

Pimple (PW-3) apprised the Court that the victim had narrated

history of forcible sexual assault during night hours repeatedly,

after administrating sedative tablet before each episode by the

father of the victim. The last reported episode was of 1

st

November, 2014. Dr. Pimple (PW-3) deposed that, on external

examination, no injury was found on the person of the victim.

On radiological examination the victim appeared to be 14 to 15

years of age. In her opinion, the victim had repeatedly

undergone sexual intercourse. The said opinion was based on

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the vaginal examination of the victim as the vaginal opening was

broad.

16.First and foremost, the age of the victim. While lodging the

FIR (Exhibit-18) the victim claimed to be 15 year old. In proof of

age of the victim the prosecution examined Mrs. Balvita Thomas

Silhera (PW-8), and relied upon the extract of the admission

register of the students maintained by Zilla Parishad, Navghar

Marathi School (Exhibit-47) and the extract of the general

register of students (Exhibit-48). In the admission and general

registers, 1

st

June, 2004 was recorded as the date of birth of the

victim. The prosecution also banked upon the report of

radiological examination of the victim, which revealed that the

approximate age of the victim was 14 to 15 years.

17.During the course of cross-examination, the victim

expressed her inability to state the year of her birth though she

claimed that her date of birth was 4

th

October. The extracts of

admission and general register (Exhibits-47 and 48), on the

contrary, indicate that the birth date was recorded as 1

st

June,

2004. If we reckon the age of the victim on the basis of those

entries then the victim was 10 year old at the time of

occurrence. Mrs. Balvita Thomas Silhera (PW-8) conceded that

the date of birth was entered in the register as per the claim of

the parents without perusing supporting documents. Thus, the

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extracts (Exhibits-47 and 48) are not of much assistance in

conclusively establishing the age of the victim.

18.However, the claim of the victim that she was 15 year old

while lodging the report went unimpeached. The accused, being

the father of the victim, was expected to know the age of the

victim and could have, thus, challenged her claim, nay

suggested specifc date and year of birth/age of the victim. Nor

the claim of Dr. Pimple (PW-3) that on radiological examination

the victim appeared to be 14 – 15 years of age was assailed. In

fact, the said claim of Dr. Pimple (PW-3) went completely

unchallenged.

19.The evidence on record thus leads to a legitimate inference

that, in any event, the victim had not completed 18 years of age

on the date of lodging of the FIR (Exhibit-18) to the effect that

she was sexually exploited since a year preceding the said date.

20.Mr. Pareek, the learned Counsel for the appellant would

urge that the evidence of Dr. Pimple (PW-3) is not of much

assistance to the prosecution. Banking upon the claim of

Dr. Pimple (PW-3) that no external injuries were found,

especially when as per the claim of the victim the last of the

sexual assault was on 4

th

November, 2014, it was submitted that

had the victim been subjected to forcible sexual intercourse,

after tying her hands, legs and mouth, as deposed to by the

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victim, there must have been traces of injury to the private

parts and associated injuries. The absence of external injuries

thus erodes the veracity of the claim of the victim, submitted

the learned Counsel for the appellant.

21.We are not impressed by the aforesaid submission. It is

true that the victim has asserted positively that the last of the

sexual assault took place on the night of 4

th

November, 2014.

The victim was medically examined on 7

th

November, 2014. The

absence of the injuries, in the case at hand, would at the most

suggest absence of violent or stiff resistance by the victim. In the

facts of the case, where the victim claimed to have been

subjected to exploitation for almost a year, in her own house,

the submission to the last act can only mean that the victim

resigned herself to her fate. Nothing more can be inferred from

the helpless surrender of the victim. Thus, the absence of

external injuries on the person of the victim does not erode the

trustworthiness of her claim. Conversely, Dr. Pimple (PW-3) has

affrmed that the examination of the victim indicated that there

was evidence of repeated sexual intercourse as the vaginal

opening was broad.

22.The veracity of the claim of the victim was sought to be

assailed on the count that there was a signifcant variance in

her testimony before the Court from her previous statement.

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During the course of the cross-examination of the victim certain

omissions were elicited. It was brought out that her statement

before the police does not fnd mention of the fact that accused

used to threaten to her by pointing out knife on the neck of her

brother and that the accused gave pills to her before subjecting

her to exploitation and that the accused pressed her breasts

and kissed her. These omissions, according to the learned

Counsel for the appellant, are material and render the claim of

the victim suspect.

23.We have carefully perused the evidence of the victim

(PW-2). On appraisal of her evidence, as a whole, we do not fnd

that the aforesaid omissions affect the core of her testimony. It

is trite law that minor discrepancies and variations in the

matter of trivial details which do not affect the core of the

prosecution case should not be given undue importance to

jettison away otherwise reliable testimony. The evidence is

required to be appreciated through the prism of the

circumstances in which the victim found herself. It was a

broken home. The victim and her brother, aged barely six years,

were under the care and custody of the accused. The victim has

consistently asserted that at night the accused ravished her.

The omission to state that, at times, the accused gave pills to

her and threatened her by pointing knife on the neck of her

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brother, in the given circumstances, does not detract

substantially from her claim. It is imperative to note that while

narrating the history to Dr. Pimple (PW-3) the victim did state

that the accused had given pills to her before the incident of

exploitation. The omission to state how the accused ravished

her is again a matter of detail.

24.This takes us to the main plank of the submissions on

behalf of the appellant that in the absence of corroboration to

the testimony of the victim the conviction is legally

unsustainable. Amplifying this submission, the learned Counsel

for the appellant would urge that the non-examination of Sunita

Chavan and Kalima Kaundar, who were present while lodging

the report, impairs the credibility of the prosecution. As a

second limb, it was submitted that the scene of occurrence

panchnama (Exhibit-27) indicates that the house of the accused

is bound by the residential houses on three sides. The non-

examination of the next door neighbours, who would have had

the opportunity to notice the ordeal which the victim allegedly

faced, for almost a year, according to the learned Counsel for the

appellant, is rather inexplicable.

25.It is well-neigh settled that if the evidence of the

prosecutrix inspires confdence, it can be acted upon

unhesitatingly without seeking corroboration of her testimony in

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material particulars. If for some justifable reason the Court

fnds it diffcult to place implicit reliance on the testimony of the

prosecutrix, it may look for evidence which may lend assurance

to her testimony, short of corroboration required in the case of

an accomplice. Corroboration to the testimony of the prosecutrix

is not the requirement of law. Sole testimony of the prosecutrix

can form a sound basis for conviction.

26.A proftable reference, in this context, can be made to the

judgment of the Supreme Court in the case of Vijay alias Chinee

vs. State of Madhya Pradesh

1

, wherein after referring to the

earlier pronouncements in the cases of State of Maharashtra v.

Chandraprakash Kealchand Jain (1990) 1 SCC 550; State of

U.P. v. Pappu (2005) 3 SCC 594; State of Punjab v. Gurmit

Singh (1996) 2 SCC 384; State of Orissa v. Thakara Besra

(2002) 9 SCC 86; State of H. P. v. Raghubir Singh (1993) 2 SCC

622, the legal position was concluded to the effect that, “the law

that emerges on the issue is to the effect that the statement of

the prosecutrix, if found to be worthy of credence and reliable,

requires no corroboration. The Court may convict the accused

on the sole testimony of the prosecutrix”.

27.A useful reference can also be made to the observations of

the Supreme Court in the case of State of Uttar Pradesh vs.

1 (2010) 8 Supreme Court Cases 191.

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Chhotey Lal

2

, wherein the approach to be adopted by the Court

in evaluating the testimony of victim of rape was illuminatingly

postulated as under:

“26.The important thing that the court has to bear in mind

is that what is lost by a rape victim is face. The victim loses

value as a person. Ours is a conservative society and,

therefore, a woman and more so a young unmarried woman

will not put her reputation in peril by alleging falsely about

forcible sexual assault. In examining the evidence of the

prosecutrix the courts must be alive to the conditions

prevalent in the Indian society and must not be swayed by

beliefs in other countries. The courts must be sensitive and

responsive to the plight of the female victim of sexual assault.

Society's belief and value systems need to be kept uppermost

in mind as rape is the worst form of woman's oppression. A

forcible sexual assault brings in humiliation, feeling of

disgust, tremendous embarrassment, sense of shame,

trauma and lifelong emotional scar to a victim and it is,

therefore, most unlikely of a woman, and more so by a young

woman, roping in somebody falsely in the crime of rape. The

stigma that attaches to the victim of rape in Indian society

ordinarily rules out the leveling of false accusations. An

Indian woman traditionally will not concoct an untruthful

story and bring charges of rape for the purpose of blackmail,

hatred, spite or revenge.”

28.On the aforesaid touchstone, reverting to the facts of the

case, in our view, the non-examination of Sunita Chavan and

Kalima Kaundar, who accompanied the victim to the police

station for lodging the report, or for that matter, who were

present when Smt. Geeta (PW-1), the Member of Mahila

Dakshata Samiti, interacted with the victim, is of no

signifcance. Firstly, neither Sunita nor Kalima are the

witnesses to the occurrence. Sunita Chavan had employed her

acquaintance to solicit the assistance of Smt. Geeta (PW-1).

2(2011) 2 Supreme Court Cases 550.

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Since Smt. Geeta (PW-1) was examined and her testimony could

not be impeached during the course of cross-examination on the

vital aspects, the non-examination of Sunita and Kalima does

not detract materially from the prosecution case.

29.The failure of the prosecution to examine the immediate

neighbours is also of little signifcance. The victim has deposed

to her helpless condition and the methods adopted by the

accused to prevent her from raising alarms. To her misfortune,

her prime protector preyed on her as sexual predator. It was a

case of fence eating into the crop. The neighbours would hardly

suspect that the accused would ravish the victim in the manner

deposed to by the victim. Thus the submission sought to be

advanced by the learned Counsel for the appellant on the

premise that had the victim offered resistance the neighbours

would have known about the occurrence, does not merit

acceptance.

30.Mr. Pareek then urged that there was an inordinate delay

in lodging the FIR. This submission was premised on the fact

that there was no credible evidence to indicate that the victim

was lastly exploited on 4

th

November, 2014, as deposed to by the

victim. If the victim was subjected to sexual exploitation for the

prolonged period of one year, the victim would have approached

the neighbours, relatives and the authorities at an earlier point

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of time. This delay, according to the learned Counsel for the

appellant, impairs the prosecution.

31.We are not persuaded to accede to the submission that

there is no credible evidence to indicate that the victim was

subjected to sexual exploitation on 4

th

November, 2014. We do

not fnd any justifable reason to disbelieve the victim, on the

said count. Even if we assume that the victim was not ravished

on 4

th

November, 2014, in our view, the aspect of delay in lodging

the report cannot be appreciated in the abstract. Nor can it be

considered de hors the attendant circumstances. In the case at

hand, the victim has affrmed that she was threatened out her

life by the accused. She tried to reason with the accused but

the latter continued to exploit her. The victim was a girl of

tender age. Apart from the accused, there was nobody in her

life to whom the victim could look up to. In the circumstances,

the explanation offered by the victim cannot be said to be

inconceivable or unsatisfactory.

32.In a prosecution for rape, delay in lodging the report by

itself is not fatal to the prosecution. Nor delay in lodging the FIR

can be used as a ritualistic formula to throw the prosecution

overboard. If an explanation for delay is offered, the Court has

to examine whether it is satisfactory or not. And if found

satisfactory, the delay does not impair the prosecution.

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33.A proftable reference in this context can be made to the

judgment of the Supreme Court in the case of Tulshidas

Kanolkar vs. State of Goa

3

. The observations of the Court in

paragraph 5 are instructive. They read as under:

“5.We shall frst deal with the question of delay. The

unusual circumstances satisfactorily explained the delay in

lodging of the frst information report. In any event, delay per

se is not a mitigating circumstance for the accused when

accusations of rape are involved. Delay in lodging frst

information report cannot be used as a ritualistic formula for

discarding prosecution case and doubting its authenticity. It

only puts the court on guard to search for and consider if

any explanation has been offered for the delay. Once it is

offered, the Court is to only see whether it is satisfactory or

not. In a case if the prosecution fails to satisfactory explain

the delay and there is possibility of embellishment or

exaggeration in the prosecution version on account of such

delay, it is a relevant factor. On the other hand satisfactory

explanation of the delay is weighty enough to reject the plea

of false implication or vulnerability of prosecution case. As

the factual scenario shows, the victim was totally unaware of

the catastrophe which had befallen to her. That being so, the

mere delay in lodging of frst information report does not in

any way render the prosecution version brittle.”

34.The learned Counsel for the appellant made a strenuous

effort to draw home the point that Sunita Chavan and her

husband Bablu Chavan were the slumlords of the area wherein

the accused and the victim resided. Since the victim conceded

in the cross-examination about the efforts on the part of the

said Bablu Chavan to usurp the house of the accused, the

learned Special Judge could not have placed implicit reliance on

the testimony of victim, urged Mr. Pareek.

3(2003) 8 SCC 590.

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35.It is true that in the cross-examination of the victim it was

elicited that Sunita Chavan and Bablu Chavan wielded

infuence in the said area. She went on to concede that

residents of the said slum were scared of Sunita Chavan. She

further admitted that Bablu Chavan had threatened the

accused that if the accused failed to vacate his house a false

case would be lodged against the accused. She went on to

admit that the accused used to tell her not to go to the house of

Bablu Chavan as the latter wanted to transfer the said house in

the name of the victim and her brother. The victim (PW-2), at

one stage, conceded that Sunita had told her to speak against

her father. At the same breath, the victim asserted that she

replied to Sunita that she would speak the truth about the bad

things happened to her.

36.On the strength of the aforesaid admissions and the

manner in which the victim fared in the cross-examination, an

endeavour was made on behalf of the appellant to draw home

the point that the testimony of the victim is not worthy of

credence. Undoubtedly, the victim admitted that Sunita and her

husband Bablu were slumlords. However, the defence on the

aspect of foisting of a false case so as to usurp the house of the

accused wavered from one end to another. In the course of the

cross-examination of the victim, it was suggested that false case

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was foisted against the accused at the instance of Bablu Chavan

as the accused refused to vacate the house. In contrast, in his

examination under Section 313 Criminal Procedure Code the

accused asserted that Bablu Chavan and Umesh Shetty were

demanding his house and there was a quarrel between him and

Bablu Chavan and Umesh Shetty over the said issue and thus

false prosecution was initiated. Interestingly, to the Investigating

Offcer it was suggested that as the victim herself wished to grab

the room of the accused a false report was lodged against the

accused.

37.The learned Special Judge, after noting the demeanor of

the victim and the fact that the victim was in tears when it was

suggested to her that she was deposing falsely at the instance of

Sunita Chavan, put Court questions to ascertain the truth. In

answer to the Court questions, the victim deposed that the

accused had done wrong with her and she was under no

pressure to depose against the accused.

38.Evidently, the learned Sessions Judge made an effort to

satisfy himself about the truthfulness of the claim of the victim

and that the victim deposed before the Court on her free volition

and was not under duress. The learned Sessions Judge had the

beneft of observing the manner in which the victim deposed;

her conduct and demeanor. We do not fnd any justifable reason

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to discard the inference of truthfulness of the testimony of the

victim, drawn by the learned Sessions Judge, after careful

evaluation of the evidence of the victim.

39.The situation which thus obtains is that the testimony of

the victim in the backdrop of the attendant circumstances,

allures confdence. It does not appeal to human credulity that

the victim would depose against her father at the instance of

third person, who was bent on grabbing her house, wherein she

was residing with her father and brother. The tussle over

occupancy rights of a room in a slum area, in a metropolis like

Mumbai, is not uncommon. However, it does not stand to

reason that the victim would stake her life and that of her father

and side with a third person for the purpose of getting exclusive

rights over the room wherein she has been reisding. In

addition, the medical evidence renders necessary assurance

about the truthfulness of the testimony of the victim.

40.The learned Counsel for the appellant lastly urged that the

CA reports do not indicate that any semen was detected on the

clothes of the victim, which were seized from the scene of

occurrence. The submission losses sight of the facts that the

clothes were not seized immediately after the last incident of

exploitation and that the victim was subjected to repetitive

exploitation over a period of time. The absence of semen on

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clothes and pubic hairs of the victim thus does not dent the

prosecution.

41. We must note that during the course of hearing of

this appeal, while perusing the original record, it transpired

that though communication was addressed by the investigation

offcer to record the statement of the victim under section 164 of

the Code, yet the statement of the victim did not form part of

the record. We were anxious to know whether the statement of

the victim under section 164 of the Code was recorded as the

prosecution was for the offences punishable under POCSO Act,

2012 as well. Thus, by an order dated 8

th

September 2020, we

called a report from the jurisdictional Magistrate as to whether

the statement of the victim under section 164 of the Code was

recorded and, if so, whether it was sent to the Court of the

learned Special Judge. The learned Magistrate reported that

though the statement of the victim under section 164 of the

Code was recorded on 20

th

November 2014 by the then

Magistrate, 3

rd

Court, Vasai, yet, inadvertently, the same was not

forwarded to the Court of learned Special Judge. The original

statement of the victim recorded under section 164 of the Code

is also forwarded to this Court. We have perused the statement.

We simply note that it is in consonance with the deposition of

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the victim before the court, without construing the same against

the appellant as it was not tendered during the trial.

42.The upshot of the aforesaid consideration is that the

testimony of the victim is worthy of credence. The learned

Special Judge was thus justifed in placing reliance on the

testimony of the victim and returning the fnding of guilt.

43.On the aspect of punishment, the learned Special Judge

was persuaded to impose the maximum punishment prescribed

under Sections 376(2) of the IPC. The acts of the accused fall

within the dragnet of clauses (f), (i) and (n) of sub-section (2) of

Section 376 of the IPC. The offences are grave. The relationship

between the accused and the victim exacerbates situation and

the aggravates the gravity of the offence. As observed earlier the

protector turned out a predator. The dictate of justice demands

that the sexual predator is dealt with sternly and visited with

condign punishment. Undoubtedly, the social and fnancial

position of the accused appeared to be unfavourable. However,

in the context of the circumstances in which the offences were

committed, the situation in life of the accused does not

constitute a mitigating factor. We are thus not inclined to

interfere with the quantum of sentence as well.

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44.By the impugned order though the learned Special Judge

sentenced the accused to pay fne as well, yet, no order for

payment of compensation to the victim under Section 357 of the

Code was passed. The victim was dependent upon the accused.

Her mother had already left. The accused – father has been

incarcerated since the day of his arrest. The victim was thus

left in the lurch. In these circumstance, in our view, the victim

is entitled to compensation under the Victim Compensation

Scheme framed by the State Government under Section 357-A of

the Code. We are thus persuaded to make a recommendation to

the State Legal Services Authority to award appropriate

compensation to the victim under the Victim Compensation

Scheme framed by the State of Maharashtra.

45.Before parting, we place on record our appreciation for the

fair and effcient manner in which Mr. Madhusuan Pareek, who

was appointed by the Legal Aid Committee to espouse the cause

of the appellant, presented the case of the appellant.

46.Resultantly, the appeal deserves to be dismissed. Hence,

the following order:

: O r d e r :

(i)The appeal stands dismissed.

(ii)The Maharashtra State Legal Services Authority is

requested to award appropriate compensation to the

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victim under the Victim Compensation Scheme

framed by the State of Maharashtra.

[N. J. JAMADAR, J.] [SMT. SADHANA S. JADHAV J.]

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