Rakesh Charandas Lonbale (In … vs The State Of Maha., Thr. P.S.O., … on 7 June, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.229/2015

Rakesh s/o Charandas Lonbale,
aged 22 years, Occ. Labour,
r/o Wadala, Tq. Mul, Dist. Chandrapur. …..APPELLANT

…V E R S U S…

The State of Maharashtra, through
Police Station Officer, Police Station,
Chandrapur City, Tq. Dist. Chandrapur. …RESPONDENT

——————————————————————————————-
Mr. Rahul Hajare, Advocate (Appointed) for appellant.
Mr. R. S. Nayak, A.P.P. for respondent.
——————————————————————————————-
CORAM:- V. M. DESHPANDE, J.

DATED :- 07.06.2017

ORAL JUDGMENT

1. The present appeal is directed against the judgment

and order of conviction passed by the learned Additional Sessions

Judge, Chandrapur in Sessions Case No.108/2003 on 10.04.2015.

By the said judgment and order of conviction, the appellant is

convicted for an offence punishable under Section 376 of the

Indian Penal Code and is directed to suffer rigorous imprisonment

for 10 years and to pay a fine of Rs.2,000/- in default to suffer

further rigorous imprisonment of on year. The appellant is also

convicted for an offence punishable under Sections 3 and 4 of the

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POCSO Act and no separate order of sentence was passed by the

court below. The appellant is also convicted for the offence

punishable under Section 343 of the IPC and on that count he is

sentenced to suffer six month’s rigorous imprisonment and to pay

a fine of Rs.500/- and in default further rigorous imprisonment for

15 days. Though the appellant was charged for the offence

punishable under Section 506 of the IPC, he was acquitted of the

said charge.

2. I have heard Mr. Rahul Hajare, learned counsel who

was appointed by the Legal Aid Committee to represent the

appellant since he was unable to engage a counsel. The State is

represented by Mr. R. S. Nayak, learned A.P.P. With their able

assistance, I have gone through the record and proceedings.

3. The prosecutrix in this case will be referred to as “K” so

as to hide her identity. The FIR is lodged by “K” herself on

08.06.2013 in Police Station Chandrapur (City). The oral report is

available on record at Exh.-10. The said report was reduced into

writing by Rahul Jadhav (PW7) PSI, who was the Day Officer. He

registered an offence vide Crime No.104/2013 for the offence

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punishable under Section 354 (A) (1) (I), 323, 342 and 506 of the

IPC

4. After registration of the crime, “K” was referred for

medical examination along with Lady Police Constable. By issuing

the letter dated 08.06.2013, Exh.-26, Rahul Jadhav (PW7)

requested the Medical Officer, District Government Hospital,

READ  Atanu Pandit vs Unknown on 10 April, 2017

Chandrapur for medical examination of “K”. The investigation

then was entrusted to Sudhir Kodape (PW5). The said

investigating officer drew the spot panchanama Exh.-14. He also

caused the arrest of the appellant on 08.06.2013 by executing

arrest panchanama (Exh.-20) and after completion of the

investigation he filed the final report before the Court.

The learned Additional Sessions Judge framed the

charge against the appellant for the offence punishable under

sections 343, 376 (2) (i) of the IPC and also under Section 354-A

and 354-B of the IPC along with an offence under Sections 7 and 8

of the Protection of Children From Sexual Offences Act, 2012. The

appellant abjured his guilt and claimed for his trial.

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5. In order to bring home the charge, the prosecution has

examined in all 9 witnesses.

Leena Babare (PW8) is Head Mistress of Sanghamitra

Kendriya Vidyalaya Resident School of Scheduled Tribe at

Ghodpeth, District Chandrapur whereat “K” was taking her

education. She brought her school record which shows the date of

birth as 15.03.1999. The copy of the register showing the name

and date of birth of “K” is at Exh.-130. Similarly, the prosecution

has examined Nitin Pandhar (PW9), the Village Development

officer at Saoli and also the Registrar of Birth Death Registration

Office. He proved birth certificate of the prosecutrix, Exh.-42

which shows the date of birth as 15.03.1999. The prosecutrix has

also stated her date of birth as 15.03.1999. From the nature of the

prosecution, it is clear that the appellant is not disputing the date

of birth of the prosecutrix. It is clear that the date of birth of the

prosecutrix is 15.03.1999 and she was child within the meaning of

the POCSO Act.

6. The question is whether the prosecution has ably

proved the offence for which the appellant was charged.

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The prosecutrix is examined as PW1, Rajani (PW2) is

her mother. Her evidence is hearsay evidence since she deposed

before the Court that what is stated to her by her daughter is being

deposed. Mohan (PW3) is a pancha witness. Though he has

turned hostile, through the investigating officer the spot

panchanama Exh.-40 is duly proved. Manohar (PW4) is the

neighbour of the prosecutrix.

As per the FIR and the evidence of the prosecutrix, it is

alleged that on 07.06.2013 at 4.00 p.m. when the prosecutrix was

alone in the house, the appellant entered into her house and

thereafter put his two fingers in her private parts.

READ  Richa (Ruchita) Ravibhai Soni vs State Of Gujarat on 25 May, 2017

After issuance of Exh.-26, the prosecutrix was brought

in the General Hospital on 08.06.2013. That time Sapna Tallarwar

(PW6) was working as Medical officer. She examined “K” and on

examination she noticed the nail scratch on her left breast and

contusion and tenderness on the private parts of the prosecutrix.

The medical certificate to that effect is available at Exh.-22.

7. It is established on record that the house of the

prosecutrix is situated in thickly populated locality. Her house is

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surrounded by various houses. The prosecutrix has admitted that

if any shouts are raised those can easily be heard by the

neighbours. She has also admitted that at the relevant time the

appellant was working as a servant in the Chinese Foods Stall run

her parents. It is also established on record that the appellant used

to prepare Chinese foods in the stall and all the raw materials

which are required for the Chinese foods used to be kept in the

house and the raw materials used to be taken to the stall as and

when it is required. It is also admitted by the prosecutrix that the

accused used to attend the house as per the directions of her

parents for brining the raw materials from the house. Thus, it is

clear that the visit of the appellant to the house cannot be termed

as an unnatural one in the absence of the parents of the

prosecutrix. It was suggested to “K” that when the appellant had

been to her home for taking raw material that time she demanded

Rs.100/- from him and on refusal, she abused the appellant. She

therefore was slapped by the appellant hence he is falsely

implicated.

8. The time of the incident, even as per the prosecutrix is

at about 4 O’clock in the afternoon. Therefore, the presence of the

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neighbours in their respective houses cannot be ruled out. Further,

the incident has occurred in the month of June in the city of

Chandrapur. That shows that the summer season was not

completely over and thus the neighbours are bound to be there in

their houses during the afternoon hours of the day.

9. On a closer scrutiny of the evidence of Dr. Swapna

(PW6), it shows that the injury as noticed by her which are

mentioned in Exh.-22 are possible due to itching. In that respect,

admission given by the prosecutrix herself that she used to feel

READ  Rajbir Singh vs State on 21 July, 2014

itching assumes importance. Further, she has admitted in her

cross-examination that at the time of the alleged act she raised a

loud shout However, nobody from the neighbour came to her

house. This appears to be improbable in view of the fact that the

house is situated in a thickly populated locality. Further it is her

version that one Narendra and Virendra who reside in front of her

house gave a call to her. For the reasons best know to the

prosecution, these two persons are not examined by it. The

learned APP submits that their statements are also not recorded.

10. The incident is dated 07.06.2013. The FIR is lodged on

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the next day. The distance between the shop of the parents of the

prosecutrix and the police station is only 15 minutes. No

explanation is coming on record for not lodging the FIR

immediately. In this backdrop, the suggestion which is denied by

the prosecutrix that the family members of the prosecutrix

deliberated throughout night and thereafter on the next day the

report is lodged has its own importance. Immediate registration of

the crime on the basis of the report rules out the possibility of false

implication.

11. The prosecution case shows that there is no

investigation whatsoever in respect of the two other boys which

according to the prosecution were present with appellant in front

of their houses at the time of the incident. The reappreciation of

the entire prosecution case shows that in respect of the alleged

incident, the evidence is short to reach to the conclusion definitely

about the overt act on the part of the appellant to convict him for

the offence for which he was charged.

12. In my view, the entire case of the prosecution is in a

mist of doubt. Therefore, the benefit of doubt is required to be

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extended in favour of the appellant. Consequently, following order

is passed.

ORDER

(i) Criminal Appeal No. 229/2015 is allowed.

(ii) The judgment and order of conviction dated 10.04.2015

passed by the Additional Sessions Judge, Chandrapur in Sessions

Case No.108/2013 convicting the appellant is set aside.

(iii) The appellant who is in jail should be released forthwith, if

not required in any other case.

(iv) Professional charges of Mr. Rahul Hajare, learned appointed

counsel for the appellant are quantified at Rs.5,000/- to be paid by

Legal Aid Committee.

JUDGE

kahale

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