Pramod Ganpatrao Joshi vs The State Of Maharashtra on 25 September, 2017

1 CRI.APPEAL 204/2017

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.204 OF 2017

Pramod s/o Ganpatrao Joshi
Age: 53 Yrs., occu. Business,
R/o Bhagyodayanagar,
Satara Parisar, Aurangabad
Tq. and Dist. Aurangabad.
(At present the appellant-
is in Aurangabad Central Prison,
Harsool, Aurangabad Tq and Dist
Aurangabad. APPELLANT
(orig. Accused)

VERSUS

The State of Maharashtra
Through the Police Station Officer
Satara Police Station,
Aurangabad, Tq. And Dist.
Aurangabad. RESPONDENT
(orig. Complainant)
—–
Mr.Rajendra Deshmukh with Mr.A.M. Walujkar, Advocate
for Appellant;
Mr.SP Tiwari, APP for Respondent.
—–
CORAM : P.R.BORA, J.

RESERVED ON:

15

th
September,2017.

PRONOUNCED ON :- 25
th
September
,2017.

JUDGMENT:

1) Aggrieved by the order of conviction

passed by the learned Additional Sessions Judge,

Aurangabad in Special Case No. 99/2015 decided on

2nd May 2017, the convict therein has preferred

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the present appeal.

2) The appellant, who is herein after

referred to as accused, was prosecuted in the

aforesaid special case for the offences

punishable under Section 354(A)1 of IPC and under

Sections 7 and 8 of the Protection of Children

from Sexual Offences Act, 2012 (for short, POCSO

Act). The Special Court has convicted the accused

for the aforesaid offences and has sentenced the

appellant to suffer R.I. for one year for the

offence punishable under Sections 354(A)1 of IPC

and R.I. for five years for the offence

punishable under Sections 8 of the POCSO Act with

fine of Rs. 2,000/- in default to suffer S.I. for

two months.

3) It was the case of the prosecution that

on 9.8.2015 at around 3.00 p.m., the victim girl,

had been to the shop of the accused known as

“Shriram Daily Needs” along with her elder

brother and cousin for purchasing chocolates.

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After the trio entered into the shop the accused

asked the boys, who were accompanying the victim,

who were also the minor children, to go at the

upper floor of his house and to see the house and

he took the victim to the inside room, make her

sleep on the bed and slept on her person. As

because the victim girl raised shouts, the

accused got up and went out of the said room. The

accused then asked the victim girl not to cry and

gave chocolates to her as well as to her

brothers, who by that time had come down from the

upper floor. The victim girl then returned to

her home and after some time narrated the

incident to her mother. Father of the victim was

at his work place at that time. After he

returned home at about 8.00 p.m., he, victim girl

and her mother went to Satara police station and

reported the said incident to the police. On

such report being lodged, a crime was registered

against the accused for the offences, referred to

above and the investigation was set in motion.

The accused was arrested. Spot panchanama was

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prepared. Statements of the witnesses were

recorded by the Investigating Officer and after

completing the investigation in the matter,

charge sheet was filed against the accused.

Since the accused was prosecuted for the offences

punishable under the provisions of the POCSO Act,

the accused was tried by the Special Court. On

19.11.2016 charge was framed against the accused,

to whom he pleaded not guilty and claimed to be

tried. In order to prove the charges levelled

against the accused, the prosecution examined

total four witnesses. The prosecution evidence

commenced with the testimony of mother of the

victim. Evidence of the victim was also adduced

and one panch witness was examined. The

prosecution evidence was concluded with the oral

testimony of Investigating Officer.

4) After the prosecution evidence was

closed, the learned Special Judge recorded the

statement of the accused under Section 313 of

Code of Criminal Procedure. The Accused examined

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his wife as a defence witness. The accused had

taken a plea that he was falsely implicated in

the alleged crime. The learned Special Judge,

after having assessed the oral as well as

documentary evidence brought on record before it,

held the accused guilty for the offences

punishable under Section 354(A)1 of the I.P.C.

and section 7 and 8 of POCSO Act and sentenced

him to suffer the sentence as noted herein above.

Aggrieved by, the accused has filed the present

appeal.

5) Shri Rajendra Deshmukh, learned Counsel

appearing for the appellant assailed the impugned

Judgment on various grounds. The learned Counsel

submitted that, several circumstances have come

on record which create reasonable doubts about

the truthfulness in the case of the prosecution.

The learned Counsel further contended that, there

are material contradictions and omissions in the

evidence of the prosecution witnesses. The

learned Counsel submitted that, perusal of the

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impugned judgment reveals that, the learned

Special Judge was predetermined to hold the

appellant guilty for the offences alleged against

him.

6) The objections raised by the learned

Counsel in exception to the impugned Judgment and

order can be summarized, in brief, as follows :

i) That, the alleged incident was not

promptly reported to the police and the delay of

9 hours occurred in lodging F.I.R. is not

explained.

ii) That, there are material contradictions

and omissions in the statements of the

prosecution witnesses.

iii) That, there was no medical examination

of the victim girl, though Section 27 of the

POCSO Act mandates the same.

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iv) That, though her real brother was at

home, mother of the victim girl did not take his

assistance to approach the police immediately and

did not lodge the report of the alleged incident,

promptly.

v) That, two minor brothers of the victim,

who according to the case of the prosecution,

were accompanying the victim at the relevant

time, have not been examined by the prosecution

though they could have been the best witness to

depose about the alleged incident and to

corroborate the facts stated by the victim.

vi) That, the statements of the neighbours

are not recorded by the investigating officer

though the spot of occurrence is surrounded by

residences and shops.

vii) That, there was previous enmity between

the accused and the informant,

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viii) That, the prosecution witnesses have

admitted that, the shop of the accused remains

closed in between 01:00 p.m. to 04:00 p.m.

7) It was the contention of the learned

Counsel for the appellant that, failure on part

of the learned Special Court in proper

appreciation of aforesaid circumstances have

resulted in recording of erroneous findings. The

learned Counsel submitted that, the conviction of

the appellant based on such erroneous findings

cannot be sustained and he, therefore, prayed for

setting aside the order of conviction and acquit

the accused of the charges levelled against him.

8) The learned APP Shri S.P. Tiwari

supported the impugned judgment and order. He

submitted that, the prosecution has brought on

record sufficient evidence to prove the guilt of

the accused. The learned APP further submitted

that, the oral testimony of the victim girl alone

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is enough to prove the complicity of the accused

in the commission of the alleged crime. The

learned APP submitted that, the learned Special

Judge has correctly appreciated the evidence on

record and has passed a well reasoned order. The

learned APP submitted that, no interference is

required in the impugned judgment and order. He,

therefore, prayed for dismissal of the appeal.

9) I have carefully considered the

submissions made by the learned Counsel appearing

for the appellant and the learned APP. I have

perused the impugned judgment and the evidence on

record. I would like to deal with the objections

in the same sequence as are raised by the learned

Counsel appearing for the accused in his

arguments.

10) The first and foremost objection as was

raised by the learned Counsel was that, the delay

caused of 9 hours in filing the F.I.R. in respect

of the alleged incident has created serious

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doubts about the imputations made against the

accused. The learned Counsel submitted that,

according to the prosecution, the alleged

incident had occurred at about 03:00 p.m. whereas

the F.I.R. is lodged at 00:45 hours i.e. after

period of more than 9 hours. The learned Counsel

further submitted that, the prosecution has not

explained the delay so caused.

11) I, however, do not find any substance in

the objection so raised. The alleged incident is

said to have happened during 03:00 to 04:00 p.m.

As has come on record father of the victim girl

returned to home from his office at about 08:00

p.m., whereupon the incident was narrated to him.

Then he, his wife and the victim girl reached to

Satara police station at around 10:00 p.m. for

lodging the report about the alleged incident.

Though the F.I.R. appears to have been registered

at 00:45 hours, the Investigating Officer (PW

No.4 – P.S.I. Komal Shinde) in her evidence

before the Court has deposed that, the victim and

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her parents had been to police station Satara at

around 10:00 p.m. Considering the facts as

aforesaid, it cannot be said that, there was

delay much less inordinate delay in filing the

report of the alleged incident.

12) It was further contended that the mother

of the victim had not waited even for a minute in

approaching the police had the incident really

happened. This contention also cannot be

accepted. It was but natural for the mother of

the victim girl to wait till her husband comes to

home. In the case like present, the mother alone

could not have taken any such decision at her own

which concerns the reputation of the victim girl

and the honour of the entire family. It has to be

understood that, in such cases not only mother

but even a father would think twice whether to

take the matter to the police or not since it is

likely to affect the honour and reputation of the

family. It also cannot be ignored that, many

parents hesitate to come forward to file the

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compliant of sexual abuse apprehending the double

trauma the victim girl is likely to go through

the trial. As such, if the mother of the victim

girl waited till her husband comes, her conduct

in any way cannot be said to be improbable or

unnatural. As has come on record after the father

of the victim girl reached to home and the

incident was narrated to him, he took a decision

to lodge a report of the alleged incident and

accordingly the police station was approached by

them at about 10:00 p.m. i.e. within two hours.

In the circumstances, it cannot be said that,

there was any delay much less inordinate delay in

lodging the F.I.R. of the alleged incident.

13) Referring to the fact stated by the

victim girl in her oral evidence before the Court

that her mother informed about the alleged

incident to her father on telephone, it was

argued by the learned Counsel for the appellant

that, in spite of such an information received

when the father of the victim girl did not rush

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to the home, it can be reasonably inferred that,

nothing serious had happened as alleged by the

prosecution. The objection so raised also

deserves to be turned down. There is nothing on

record to show at what time the mother of the

victim girl telephoned to her husband and what

was actually informed to him by her about the

alleged incident. Without the complete

information in that regard on record, no adverse

inference can be drawn.

14) The next objection, as was raised by the

learned Counsel for the appellant, was that there

are material contradictions and omissions in the

statements of the prosecution witnesses and the

facts stated by PW 1 and PW 2 in their evidence

before the court, do not corroborate each other.

The learned Counsel submitted that the fact,

which has been deposed by the victim (PW 2) that

since she was not playing with the boys, her

mother asked the reason for not playing with the

boys and then she disclosed about the alleged

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incident to her mother, is not stated by PW 1 –

Durga in her testimony before the Court. On the

contrary, her evidence goes to suggest that

immediately after the victim reached home, she

was noticed somewhat scared and when asked why

she is so scared, she disclosed the alleged

incident to her.

15) The learned Counsel further submitted

that the very material fact, stated by the victim

girl in her testimony before the court that her

mother informed about the alleged incident on

phone to her father, is missing in the evidence

of PW 1 -Durga.

16) The learned Counsel further submitted

that the fact stated by the prosecutrix that her

maternal uncle had been to their home on the date

of the incident and when she returned to her home

after the alleged occurrence, her maternal uncle

was there at her home, has not been stated by PW

1 – Durga in her evidence before the court. The

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learned Counsel submitted that PW 1 intentionally

suppressed the said fact. The learned Counsel

further submitted that had the incident really

happened, mother of the victim girl would have

certainly taken her brother to the police station

and would have immediately lodged the report of

the alleged incident.

17) Referring to the statement of the victim

girl, recorded under Section 164 of Cr.P.C., the

learned Counsel submitted that it contains a

totally different story that after the alleged

occurrence, the victim girl, her mother, her

brother and her cousin brother all had been to

Umrikar Lawns.

18) The learned Counsel submitted that

having regard to the serious nature of

allegations made against the accused, having

serious consequences, the prosecution evidence

must be beyond reasonable doubts. The learned

Counsel submitted that prosecution evidence is

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not free from doubts, benefit of which would

certainly go to the accused and on the basis of

such evidence, the accused cannot be held guilty.

19) I am, however, not at all convinced with

the submission so made. The contradictions and

commissions, which are referred to by the learned

Counsel, cannot be, in any way, said to be

material having regard to the core fact stated by

the prosecutrix that the accused took her to the

inside room of his house, made her to sleep on

bed and then he slept on her person. The fact, as

stated by the victim girl in her evidence before

the court that since she was not playing with the

boys, her mother asked the reason of not playing,

admittedly is not stated by PW 1 – Durga in her

evidence before the court. However, it has come

in the evidence of PW 1 – Durga that she noticed

that the victim girl was somewhat scared and she,

therefore, asked her why she was so scared. The

aforesaid cannot be said to be a material

contradiction considering that the facts, which

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are stated by the victim girl thereafter are more

material and as I noted herein above, the core

fact, as has been stated by the victim girl in

her evidence before the court and narrated by PW

1 – Durga in her evidence before the Court, are

fully corroborating each other.

20) Similarly, no much capital can be made

of the fact that PW 1 – Durga did not state in

her evidence before the court that her real

bother was present at the relevant time when the

victim girl returned to her home. I have earlier

noted that even if the real brother was at the

house, mother of the victim girl could not have

taken such decision to lodge the report about the

alleged incident to the police without consulting

her husband and unless he comes home and

accompanies her and the victim girl to the police

station for lodging such report.

21) Further, there is no substance in the

contention that the victim, in her statement

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before the court under Section 164 of Cr.P.C. has

stated that after the alleged incident, they had

been to Umrikar Lawns. It does not have any

adverse effect on the case of the prosecution or

the core fact stated by the prosecutrix about the

mis-deed committed by the accused with her.

22) Law is well settled that if evidence of

the victim of sexual assault inspires confidence,

it must be relied upon without seeking

corroboration of her statement in material

particulars. Minor contradictions and

insignificant discrepancies in the statement of

the victim, which are not of fatal nature shall

not be used to throw out an otherwise reliable

prosecution case.

23) The next objection relates to non –

examination of the victim by the Medical Officer

after the alleged occurrence. According to the

learned Counsel, Section 27 of the POCSO Act,

mandates the medical examination of a child, in

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respect of any offence committed under the said

Act. The learned Counsel submitted that though

the police officer has directed the medical

examination of the victim girl, mother of the

victim girl did not consent for such medical

examination and as such, no medical examination

could be done. The learned Counsel, emphasizing

the word `shall’ used in Section 27 submitted

that non-examination of the victim girl, has

raised reasonable doubt about the truthfulness in

the allegations made against the accused.

24) It is really not understood as to why

the learned Counsel for the appellant has raised

such an objection. The objects of medical

examination are :(i) to elicit the evidence of

recent sexual intercourse, (ii) to find out the

marks of violence if any resulting from struggle,

(iii) to find out signs of forceful

penetration,(iv) to search for physical signs

that will corroborate the history given by the

victim, (v) to search for, collect and preserve

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all trace evidence for laboratory examination,

(vi) to treat the victim for any injury.

25) In the instant matter, the allegation

against the accused is that he made the victim to

sleep on the bed and then slept over her person.

Except the above, no other overt act was

attributed on his part. As such, there was

absolutely no need of medical examination of the

victim girl. In the circumstances, refusal by

the mother of the victim to accord consent for

the medical examination of the victim may not

lead to any adverse inference.

26) It was also contended by the learned

Counsel for the appellant that, the two boys, who

were allegedly accompanying the victim girl when

she had been to the shop of the accused could

have been best witnesses to tell as to what

actually happened at the relevant time. The

learned Counsel submitted that, the prosecution

has deliberately omitted to examine the two boys

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as the prosecution witnesses so that truth shall

not come on record. The learned Counsel submitted

that, non – examination of the said boys as

witnesses has also created serious doubts about

the prosecution case.

27) The objection is apparently

unsustainable. Who are to be examined as a

prosecution witnesses and how many witnesses are

to be examined is the absolute choice of the

prosecution. Sometimes evidence of the sole

witness may also be sufficient to prove the

prosecution case and sometimes the prosecution

may be required to examine plenty of witnesses.

In the instant case, when according to the

prosecution the evidence of the prosecutrix and

her mother was sufficient to prove the guilt of

the accused, prosecution chose not to examine any

more witness on the point. Non-examination of

the said two boys as prosecution witnesses, per

se, cannot be a ground to reject the prosecution

version and more particularly when the evidence

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of the victim girl is found trustworthy and

dependable to prove the guilt of the accused.

28) Much vehemently it was argued that when

her real brother was at home, why the mother of

the victim girl did not take his assistance for

immediately going to the police station and to

lodge the report of the alleged incident. I have

already discussed that mother of the victim girl

could not have taken any such decision to lodge

the report of the alleged incident without

consulting her husband for the reason that it was

concerning the honour and reputation of the

family. The objection, so raised also thus

deserves to be turned down.

29) Why the mother of the victim girl did

not disclose the alleged incident immediately

after its occurrence to her neighbours and more

particularly to the female members in the said

families, was another circumstance of doubt

raised by the learned Counsel for the appellant.

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According to the learned Counsel, mother of the

victim girl must have immediately made grievance

against the accused for the mis-deed committed by

him with her minor daughter at least to the

female members of the said families, had the

incident really happened. The learned Counsel

submitted that such conduct of the mother appears

unnatural and paves way for doubting the

prosecution case.

30) The contention of the learned Counsel is

wholly unacceptable. No mother would like to

disclose that an attempt was made by somebody to

sexually abuse her daughter even to a next door

neighbour.

31) It was also sought to be contended by

the learned Counsel for the appellant that the

victim girl as well as her mother both have

admitted that the shop of the accused remains

closed in between 1.00 p.m. to 4.00 p.m. The

learned counsel submitted that in view of the

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admission so given, the fact stated by the victim

girl that she had been to the shop of the accused

at 3.00 p.m., is difficult to be accepted.

According to the learned Counsel, genuine doubts

are created whether, in fact, the said shop was

open at the relevant time when the victim girl is

alleged to have entered in the said shop. In

view of the evidence on record, the objection so

raised does not hold any water. It was a broad

admission by the witnesses that in ordinary

course the shop of the accused remains closed

during the period between 1.00 p.m. to 4.00 p.m.

In view of the unshattered evidence of the victim

girl, which has been duly corroborated by her,

there remains no doubt that at the relevant time

the shop of the accused was not closed.

32) In order to substantiate the defence

that the shop remains closed during 1.00 p.m. to

4.00 p.m. and as such, there was no possibility

of the prosecutrix coming to the shop of the

accused during the said period, accused examined

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his wife Shamal as a defence witness. In her

evidence before the court, DW 1 – Shamal has

deposed that their shop remains closed during

1.00 p.m. to 4.00 p.m. and on 9.8.2015 also the

same was closed during 1.00 p.m. to 4.00 p.m.

However, the evidence of DW 1 – Shamal cannot be

of any use to brush aside the testimony of the

prosecutrix. I reiterate that the version of the

prosecutrix before the court is found fully

trustworthy by the Sessions Court. After having

considered the entire evidence on record, I agree

with the observations made and the conclusion

recorded by the learned Sessions Judge that the

evidence of victim girl is fully dependable and

nothing has been brought on record so as to

reject or disbelieve her evidence. It has to be

further stated that DW 1 – Shamal has stated one

more fact in her evidence before the court that

on 9.8.2015, her husband i.e. the accused was not

at home for the whole day. The fact so stated by

DW 1 – Shamal in a way amount to raising a plea

of alibi by the accused. In the circumstance,

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the burden was on the accused to bring on record

some probable evidence to show where was he at

the relevant time, if not on the spot of

occurrence. Moreover, in the cross examination

of PW 1 and PW 2, no such suggestion is given

that on 9.8.2015, the accused was not at home or

at the shop for whole day. The accused has thus

failed in substantiating his plea that his shop

was closed at the relevant time.

33) It was the further contention of the

learned Counsel for the appellant that the

learned Sessions Judge has failed in not

considering that having regard to the existing

enmity in between family of the victim and the

accused, there was every possibility of false

implication of the accused in the alleged crime.

The learned Counsel submitted that the real

brother of the accused, namely Vinod, who resides

at Parli Vaijnath, had published some material in

the newspaper against the father of PW 1 – Durga,

According to learned Counsel, PW 1 – Durga was

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thus having grudge against the accused. The

learned Counsel submitted that one more incident

had occurred in the immediate past, wherein the

brother of the victim girl had knocked down the

shutter of the shop of the accused and thereafter

some altercations had taken place between son of

the accused and son of PW 1 – Durga. The learned

Counsel submitted that, that was also one of the

reasons that the family of the victim girl was

nurturing a grudge against the accused. The

learned Counsel submitted that there also had a

wordy quarrel between wife of the accused and PW

1- Durga on account of sale of a stale bread.

The learned Counsel submitted that due to the

aforesaid three instances, mother of the victim

girl had nurtured grudge against the accused,

which has resulted in false implication of the

accused.

34) The objection so raised and the

submission so made in support of the said

objection must be rejected for many reasons.

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Though it is not the requirement of law that the

accused shall prove the plea taken by him in his

defense beyond reasonable doubt and the principle

of preponderance of probabilities would apply in

such case, it also cannot be accepted that burden

on the accused will be discharged only by raising

certain plea in his defense. When it was the

defense of the accused that PW 1 – Durga was

having grudge against him, because his brother

Vinod had published some defamatory material

against her father, it was incumbent on the part

of the accused to place on record the copy of the

said publication, more so, when the said

suggestion was denied by PW 1. The accused

admittedly did not produce on record any such

published material.

35) Similar is the case as regards to the

another incident, which has been cited by the

accused to bring on record that there was some

enmity between him and the family of the victim

girl because son of PW 1 – Durga, few days prior

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to the alleged incident, had knocked the shutter

of the shop of the accused. This suggestion was

also denied by PW 1. the accused has not brought

on record any probable evidence in this regard.

36) The third instance was a quarrel between

wife of the accused and PW 1 – Durga. It is a

matter of record that accused has examined his

wife as a defense witness. However, in her

testimony before the court, DW 1 – Shamal Pramod

Joshi has not even whispered about any quarrel

between her and mother of the victim girl i.e. PW

1 – Durga.

37) Having considered the facts, as

aforesaid, there appears no substance in the

objections raised by the appellant that filing of

a false case against him was an an outcome of

previous enmity between him and the family of the

victim girl. Further, even if it is assumed that

there was some dispute between the accused and

the parents of the victim girl, it appears

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unconscionable, unbelievable and unacceptable

that parents of the victim girl would use the

victim girl as an instrument to settle the score

with the accused by making such heinous

allegation that the victim girl was sexually

assaulted by the accused.

38) Thus, all the objections, as are raised

by the accused in exception to the impugned

judgment, are found to be without any merit.

39) In the instant matter, the testimony of

the prosecutrix is of vital importance. I have

carefully gone through the oral evidence of the

prosecutrix recorded before the learned Sessions

Court. The victim girl had narrated the incident

in a most natural way and in no sense it can be

said that there was any possibility of she being

tutored by her parents. A tutored witness and

if it is a child, always gets exposed in the

cross-examination. The accused has not brought

on record any material in the cross-examination

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31 CRI.APPEAL 204/2017

of the victim so as to disbelieve the facts

deposed by her in her cross-examination in chief.

The learned Sessions Judge has also observed that

the evidence of the victim girl was quite natural

and dependable. The core facts stated by the

victim girl that the accused held her hand, took

her in the inside room, made her lie on the bed

and then slept over her person, have remained

unshattered in the cross-examination also.

40) As per the case of the prosecution, the

incident was narrated by the victim girl first to

her mother, i.e. PW 1- Durga. In her testimony

before the court, PW 1 – Durga reproduced the

facts as were narrated to her by the prosecutrix.

The FIR also contains the same facts as were

deposed by the victim girl and PW 1 – Durga. As

has been observed by the learned Sessions Judge

the evidence of the prosecutrix was enough to

prove the complicity of the accused in commission

of the alleged crime. It does not appear to me

that the learned Sessions Court has committed any

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32 CRI.APPEAL 204/2017

error in holding the appellant-accused guilty for

the offences alleged against him.

41) As was rightly submitted by the learned

APP, on allegations of the victim girl made

against the accused, a presumption was raised

against the accused that he has committed the

alleged offence. The accused has failed in

rebutting the presumption raised against him.

42) The accused was charged and accordingly

held guilty for an offence under Section 7 of the

POCSO Act and is punished under Section 8 of the

said Act. Maximum punishment provided under

Section 8 of the POCSO Act is of five years with

fine. In the present case, the learned Trial

Court has awarded the maximum punishment i.e.

Rigorous Imprisonment for five years. As has

been alternatively submitted by the learned

Counsel for the appellant, the sentence awarded

by the Trial Court is too harsh and

disproportionate; whereas according to the

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33 CRI.APPEAL 204/2017

Learned APP, the punishment awarded by the Trial

Court is justifiable for the reasons recorded by

it in the impugned judgment.

43) The question for my consideration,

therefore, is ‘whether any case is made out by

the accused to cause interference in the quantum

of punishment as awarded by the trial Court ?

Section 7 of the Act reads thus :

“7. Sexual assault.- Whoever, with
sexual intent touches the vagina,
penis, anus or breast of the child
or makes the child touch the vagina,
penis, anus or breast of such person
or any other person, or does any
other Act with sexual intent which
involves physical contact without
penetration is said to commit sexual
assault.”

44) The culpable act alleged against the

accused is that, he slept over the person of the

victim girl. It thus falls in the category of

‘any other act with sexual intent which involves

physical contact without penetration.’ The

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34 CRI.APPEAL 204/2017

reasoning given by the Trial Court for awarding

maximum punishment is that had there not been any

resistance from the victim girl, the accused

would have committed rape upon her.

45) I find it difficult to agree with the

reasoning so given by the Learned Trial Court.

Punishment in any criminal case is to be based on

the criminal acts proved to have been committed

by the accused and not by imagining the acts

which could have been committed by the accused.

In the instant matter the proved criminal act of

the accused is that, he slept over the person of

the victim girl with sexual intent. Prosecution

evidence revealed that, after the victim girl

started crying, the accused got up and went out

of the room. It has also come on record that,

then he tried to console the victim girl by

saying that, she is a sensible and clever girl

and she shall not cry. The evidence on record

also suggests that, the accused gave chocolates

to all the three children.

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35 CRI.APPEAL 204/2017

46) What is relevant for imposition of

punishment is the conduct of the accused at the

time of commission of the alleged crime and

subsequent thereto, proved by the evidence on

record. Punishment cannot be awarded by

surmising what the accused would have done. The

learned Additional Sessions Judge has erred in

awarding the maximum sentence to the accused as

provided under Section 8 of the Act on a

speculation that had there been no resistance

from the child, the accused would have committed

rape on her. The reasoning given by the Trial

Court is legally unsustainable.

47) It further appears to me that, the

learned Trial Court has failed in properly

appreciating the conduct of the accused at the

time of commission of the alleged crime and his

immediate subsequent conduct. While surmising

what the accused would have done in the

anticipated contingency, the Trial Court has not

taken into account that, the accused did not

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36 CRI.APPEAL 204/2017

cause any physical harm to the victim girl. He

did not even threaten the victim. From the act

of the accused that he comforted the victim by

saying that she is a clever and wise girl and she

shall not cry, a reasonable inference can be

drawn that within few minutes of his indulging in

the foul act he had come in the repenting state

of mind. It has to be noted that even while

consoling the victim the accused did not threaten

her not to disclose the alleged incident to

anybody. Accused is not a habitual offender.

There are no criminal antecedents to him. As was

submitted by the learned Counsel for the

appellant, that may be a moment of sudden impulse

that he indulged in the alleged loathsome act

Considering the facts as aforesaid, maximum

punishment awarded by the Sessions Court cannot

be justified.

48) In the forgoing circumstances, though

the conviction of the accused under Section 7 of

the POCSO Act is liable to be maintained, the

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37 CRI.APPEAL 204/2017

sentence as awarded by the Trial Court needs to

be modified. For the reasons stated above, it

appears to me that, Rigorous Imprisonment for

three years would be adequate punishment for the

accused. Order accordingly. Save and except the

modification in the quantum of sentence for the

offence punishable under Section 8 of the POCSO

Act, the other part of the impugned order is

maintained as it is. The appeal stands partly

allowed in the aforesaid terms.

(P.R.BORA)
JUDGE
bdv/
fldr 15.9.17

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