Case Note & Summary
The appellant, Dilip Jaglal Warkhede, was convicted by the Special Judge (POCSO Act) and Additional Sessions Judge, Nagpur in Special Criminal Case No.85/2014 for offences punishable under Sections 323, 363, and 377 of the Indian Penal Code and Section 4 of the Prevention of Children from Sexual Offences Act, 2012. He was sentenced to 6 months, 3 years, and 5 years respectively with fines, all sentences to run concurrently. The appellant challenged the conviction before the Bombay High Court at Nagpur. The main grounds of appeal were that there was no positive medical evidence to support the charge under Section 377 IPC and Section 4 POCSO Act, and that a material witness named Yadav, who allegedly made a phone call to the victim's father, was not examined by the prosecution. The learned counsel for the appellant argued that in the absence of medical evidence, the conviction for unnatural offence and penetrative sexual assault was untenable, and the non-examination of Yadav was fatal to the prosecution case. The Additional Public Prosecutor for the State argued that the evidence of two doctors (PW4 and PW6) established some penetration. However, the High Court, after hearing both sides, found that the medical evidence did not positively establish penetration. The court also noted that the independent witness Yadav was not cited or examined, which created a lacuna. Consequently, the court allowed the appeal, set aside the conviction and sentence, and ordered the appellant's release forthwith.
Headnote
A) Criminal Law - Penetrative Sexual Assault - Section 4 POCSO Act, 2012 - Medical Evidence - Conviction under Section 377 IPC and Section 4 POCSO Act cannot be sustained without positive medical evidence of penetration - The court held that in the absence of any medical evidence supporting penetration, the conviction for unnatural offence and penetrative sexual assault is not maintainable (Paras 4-5). B) Criminal Law - Material Witness - Non-Examination - The failure to examine an independent witness (Yadav) who made a phone call to the victim's father is fatal to the prosecution case - The court held that non-examination of a material witness creates a lacuna in the prosecution's case (Para 4).
Issue of Consideration
Whether the conviction of the appellant under Sections 323, 363, 377 of the Indian Penal Code and Section 4 of the Prevention of Children from Sexual Offences Act, 2012 is sustainable in the absence of positive medical evidence and non-examination of a material witness.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant directed to be released forthwith.
Law Points
- Conviction under Section 377 IPC requires medical evidence of penetration
- Non-examination of material witness is fatal to prosecution
- Benefit of doubt must be given to accused in absence of corroborative evidence
