Shailesh @ Shera @ Shailendra S/O … vs The State Of Maharashtra, Through … on 6 November, 2017

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

CRIMINAL APPEAL NO.90 OF 2016

Shailesh @ Shera @ Shailendra s/o Jivansing
Thakur, Aged about 28 yrs.,
R/o Kamargaon, Tahsil Goregaon,
District Gondia. ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through Police Station Officer,
Police Station Dawaniwada,
District Gondia. ……. RESPONDENT
——————————————————————————————-
Shri N.A. Badar, Advocate for Appellant.
Ms. R.V. Kaliya, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: th
6 NOVEMBER, 2017.

ORAL JUDGMENT

1] The appellant is aggrieved by the judgment and order

dated 20.02.2015 in Special (POCSO Act) Case 26/2014 delivered

by the Additional Sessions Judge, Gondia, by and under which,

the appellant (hereinafter referred to as “the accused”) is

convicted for the offence punishable under sections 3, 4 and 5 (m)

and 6 of the Protection of Children from Sexual Offences Act,

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2012 (“POCSO Act”) and under section 376 (2)(i) and 506 of

Indian Penal Code and is sentenced as under;

[i] R.I. for 10 years and fine of Rs.9000/- I/d to

S.I. for 1 year (u/s. 3 punishable u/s.4 of

POCSO).

[ii] R.I. for 10 years and fine of Rs.9000/- I/d to

S.I. for 1 year. (u/s.5 punishable u/s. 6 of

POCSO).

[iii] R.I. for 10 years and fine of Rs.9000/- I/d to

S.I. for 1 year. (u/s 376(2)(i) of I.P.C.

[iv] R.I. for 2 years and fine of Rs.3000/- I/d to S.I.

for 4 months. (u/s. 506 of I.P.C.)

2] Heard Shri N.A. Badar, the learned Advocate for the

appellant and Ms. R.V. Kaliya, the learned Additional Public

Prosecutor for the respondent/State.

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3] The prosecution case as can be culled out from the

final report under section 173 of the Criminal Procedure Code

(“Code” for short) is thus:

The complainant Smt. Manisha Devilal Shahare, the

mother of the child victim, aged 4½ years on the day of the

incident, lodged report against the accused on 27.01.2014,

inter alia stating that she is residing with her husband and two

children in village Dawaniwada, the child victim (daughter of the

complainant) complained of pain in her private part while

urinating, at 10:00 p.m. or thereabout on 26.01.2014.

The complainant applied talcum powder on the private part of the

child victim. The report states that the child victim again

answered nature’s call at 04:00 a.m. and complained of pain.

The complainant inquired with the child victim and was told that

on 26.01.2014 she was playing outside the house and then

proceeded towards the field to meet the complainant as she was

hungry. It was then, that the victim child was taken by the

accused (the child has referred to the accused as Sherabhaiya) to

his house. The victim child informed the complainant that the

accused made her lie on the bed, removed her knicker and

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inserted his finger in the private part of the child. The accused

asked the victim not to inform about the said act to any one and

threatened the child victim of beating in the event of disclosure.

4] On the basis of the said report offences under section

4 and 6 of the Protection of Children from Sexual Offences Act,

2012 (“POCSO Act”) read with section 376 (2)(i)(m) and 506 of

the Indian Penal Code were registered, the investigation ensued,

the Investigating Officer (I.O.) visited the spot, prepared the spot

panchnama vide Exh.24, recorded statement of victim child

through a lady Police Officer as well as the learned Magistrate.

The accused was arrested by the I.O. and along with the victim

child was sent for medical examination. The medico legal reports

were obtained, statements of witnesses were recorded, the clothes

of both the child victim and the accused were seized and sent for

chemical analysis. The culmination of investigation led to

submission of the charge-sheet before the Special Court, the

learned Special Judge framed charge, the accused abjured guilt

and claimed to be tried.

5] The prosecution examined nine witnesses to bring

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home the charge, viz:

PW-1: Sau. Manish w/o Devilal Shahare, (Exh. 10),
mother of victim girl complainant.

PW-2: Victim Girl (Exh.13).

PW-3: Sau. Anand w/o Tejram Gajbhiye (Exh.14),
witness.
PW-4: Ku.Damini d/o Yeshwantrao Mendhe (Exh15),
witness.

PW-5: Jageshwar S/o Nandu Kohare Exh.23), spot

panch witness for the test samples of the victim
girl.

PW-6: Damnik S/o Netlal Lilhare (Exh.26), panch
witness on seizure memorandum of the clothes of
victim girl accused.

PW-7: Ravi Narendra Gajbhiye (Exh.29), panch witness
of seizure memorandum of blood samples.

PW-8: Dr. Poonam w/o Mukesh Pardhi (Exh. 32)
Medical Officer who examined the victim girl.

PW-9: PSI. Sudhakar Kokode (Exh. 36) Investigating
Officer.

The defence of the accused as is obvious from a

perusal of the statement under section 313 of the Code and the

tenor of the cross-examination, is of false implication. The accused

specifically contended that he was working as a Security Guard

with Adani Power Project and had lent some amount to the uncle

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of the victim child. The accused stated in the 313 statement that

on the date of the alleged incident he was not present in the

village and was away to village Bodha to attend the post funeral

rites and rituals of his maternal grand-father one Yograjsingh Bais.

A defence is also taken by the accused that the mother of the child

victim was making overtures to the accused and since he refused

to oblige, she has falsely implicated the accused.

6] The complainant, who is examined as P.W.1, has

deposed that she is residing with her husband, victim child and

son aged 3 years and that the accused is residing at a distance of 5

to 6 houses from her house. P.W.1 states that on 26.01.2014 the

victim child was studying in a nursery class. 26.01.2014 was a

holiday being Republic Day and the complainant woke up early in

the morning, and then sent the child victim to the school to attend

the Republic Day function. The victim girl returned home at

11:30 a.m. or thereabout. P.W.1 states that since her workplace

was closed due to Republic Day she went to the field for

agricultural work along with her son and the child victim was

playing near the house with her friends.

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7] The complainant states that she returned from the

field at 03:15 p.m., the entire family went to Gondmohadi village

and returned home between 07:00 to 07:30 p.m. The family had

dinner and went to sleep. P.W.1 states that before putting the

child victim to sleep, she took her for urination and the victim girl

complained of pain in the private part. The complainant applied

talcum powder. The complainant also noticed reddish fluid at the

place where the victim child answered nature’s call. P.W.1

complainant has deposed that in the early hours of morning at

04:00 a.m. she again took the victim child for urination, the child

complained of severe pain in her private part and upon inquiry

revealed to the complainant that the accused took her to his

house, made her lie on the bed, removed her underwear and

inserted his finger in her private part and told her not to disclose

the incident to anyone. The complainant P.W.1 states that upon

examining the private part of her daughter she noticed a

contusion and approached the Police Station and lodged report

against the accused vide Exh.11.

8] The child victim is examined as P.W.2. However, the

learned Special Judge did not deem it appropriate to administer

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the oath. The learned Special Judge has noted the demeanour of

the child victim thus:

Note:- As soon as the Ld. APP asked the
prosecutrix as to whether she recognized the accused
sitting in the corner of chamber, she look at him and
started crying. To make her relax, her mother was
asked to take her outside chamber and examination-in-
chief is deferred for about half an hour.

The child victim has stated thus:

I know the person, who was present in the corner
of chamber and was shown to me. Sherabhaiya has
inserted his finger in the place of my pee. He had taken
me to his house. He also told me not to tell this thing to
my mother or otherwise he will come to my home and
beat me. I was paining at my place of pee hence I told
my mother.

9] The child victim has denied the suggestion that the

accused did not insert his finger in her private part. She has

further denied the suggestion that she is deposing on the

instructions of the complainant.

10] P.W.4 Ku. Damini Mendhe aged 12 years is examined

to prove that on the date of the incident she saw the accused

picking up the victim child and taking her to his house. In the

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cross-examination, the credibility of the said minor witness is not

shaken. One Smt. Ananda Gajbhiye is examined to prove that

on 26.01.2014 between 03:00 to 03:15 p.m. the accused came to

her house and inquired whether anybody was present in the house

of Dhrupadabai Chaudhari and the accused left when P.W.3 told

him that there was nobody in her house. Jageshwar Kohare P.W.5

is examined to prove the spot panchnama Exh.24 and the seizure

memorandum of the blood sample of the victim girl Exh.25.

Damnik Lilhare P.W.6 is examined to prove the seizure

memorandum Exh.27 regarding the clothes of the victim child and

the clothes of the accused (Exh.27 and Exh.28 respectively).

Ravi Gajbhiye P.W.7 is examined to prove seizure memorandum

Exh.30 as regards the blood sample of the accused.

11] One Dr. Poonam Pardhi who examined the child

victim is examined as P.W.8. She has deposed thus:

On 27-01-2014 I was attached with BGW
hospital Gondia as a Medical Officer. As that time, a
Lady Police Constable attached with the police station
Dawaniwada has brought one girl of four and half
years of age for medical examination with the alleged
history of sexual assault i.e. fingering in her vagina on
the earlier date. Accordingly, I examined her after
taking the consent of her mother. Upon inquiry with

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the victim girl she also narrated about the history of
sexual assault to me. Her general examination was
normal. On local examination of private part,
I noticed the laceration at vaginal introitus. I also
noticed the hymen of the patient in injured condition.
There was no swelling or no discharge of her vagina.

2] At the material time, I also answered the query of
investigation agency. While answering the queries
I observed a small laceration over the vaginal introitus
and vagina was reddened, inflamed and fowl smell
was present. I opined that such injury can occur with
finger as a superficial laceration was present.

The Doctor admits that the injury noticed on the

private part of the victim child can also be possible by

self-scratching or insect bite. Sudhakar Kokode the I.O. is

examined as P.W.9.

12] I have given my anxious consideration to the evidence

on record and having done so, I find that the testimony of the

child victim is implicitly reliable and confidence inspiring.

The version of the child victim is corroborated, although this

Court is not obligated to seek corroboration, from the evidence of

her mother P.W.1, the medical evidence and the minor victim

Ku. Damini who has deposed that she saw the accused taking the

child victim to his house. The learned counsel Shri Badar

appearing for the accused would urge, that the Doctor has not

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ruled out the possibility that the injuries seen may be self-inflicted

due to scratching or may be caused due to insect bite. Such a

possibility, does not take the case of the accused any further.

The medical evidence is consistent with the version of the child

victim as is corroborated by the evidence of the complainant and

the minor witness who saw the accused taking the child victim to

his house.

13] The accused has not elicited anything in the

cross-examination of the prosecution witnesses to probablize the

defence even on the touchstone of preponderance of probabilities.

The accused had made no efforts whatsoever to prove the defence

of alibi. Insofar as the defence that the mother of the child victim

has falsely implicated the accused since she spurned her overtures,

the same deserves to be noted only for rejection. Except for giving

a suggestion, which of course is denied, to P.W.1 the accused has

not brought on record any material to suggest that the mother of

the child victim was interested in establishing a relationship to the

accused that the refusal of the accused to oblige has motivated

P.W.1 to falsely implicate the accused. The other defence that the

accused lent some amount to the relative of the complainant is

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again not taken to be the logical end. I have absolutely no

hesitation in recording a finding that the accused has not brought

out any material on record to suggest that he is falsely implicated.

14] In the teeth of the evidence on record, and in

particular the confidence inspiring version of the child victim, the

finding that the accused has committed offence punishable under

section 3 and 5(m), 4 and 6 respectively of POCSO Act and under

section 376 (2)(i) and 506 of the IPC deserves to be confirmed.

The judgment and order impugned is unexceptionable on facts

and in law. The appeal is without substance and is dismissed.

JUDGE

NSN

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