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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