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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.605 of 2017
Sandeep alias Sonu s/o Hari Verma,
Aged about 30 years, Occ.-Private,
Surendragarh, Behind Hanuman Mandir,
Nagpur (P.S. Gittikhadan) …. Appellant
-Versus-
State of Maharashtra,
through Police Station Officer,
Police Station Gittikhadan, Nagpur. …. Respondent.
Shri P.H. Khobragade, Advocate (appointed) for appellant.
Shri Alap Palshikar, APP for State.
Coram : Manish Pitale, J.
Dated : 5
June, 2018.
th
ORAL JUDGMENT
By this appeal, the appellant has challenged the judgment and
order dated 23-06-2017 passed by the Court of Principal District and
Sessions Judge, Nagpur in Special Criminal (POCSO) Case No.200 of
2016. By the said judgment and order, the appellant has been convicted
under Section 376 (2) (i) (j) of the Indian Penal Code (for short ‘IPC’) read
with Sections 6 and 10 of the Protection of Children from Sexual Offences
Act, 2012. The appellant has been further convicted under Section 450 of
the IPC. The aforesaid Court has imposed sentences of rigorous
imprisonment for 10 years, 5 years and 3 years for the aforesaid
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conviction and also imposed fine of different amounts on the appellant.
The sentences are directed to run concurrently.
2. The appellant was prosecuted for the aforesaid offences in
pursuance of a complaint/oral report dated 06-05-2016 submitted by the
mother of prosecutrix in the present case. On the basis of the said report,
an FIR was registered in Police Station Gittikhadan, District Nagpur. It
was stated in the said report that said PW-3, on finding that her daughter
(prosecutrix) was missing, started to look for her and found that she was
with the appellant inside the house of the appellant from where the
sounds of her crying could be heard. When the door was knocked, it was
not opened and therefore, the said witness along with others forced open
the door and found that the appellant was with the prosecutrix who was
crying with her nicker in her hand. Upon the said witness asking the
prosecutrix (daughter) what had happened she gave the details about the
manner in which the appellant had sexually assaulted her. In brief, it can
be stated that the prosecutrix described as to how the appellant had
touched her genitalia and forced her to touch that of the appellant. Upon
the Police being informed, the appellant was arrested and investigation
was initiated.
3. On the basis of the investigation, charge-sheet was submitted
and the appellant was charged with the aforesaid offences. In order to
prove its case, the prosecution examined eight witnesses, while the
appellant examined one witness in his defence.
4. The eight witnesses examined by the prosecution included
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PW-1-prosecutrix, PW-2 Dheeraj Bhange, the panch witness, PW-3-Aarti
Butate, mother of the prosecutrix/complainant, PW-4-Dr. Bhakti
Deshpande, PW-5-Tarachand Somkuwar, the person from whom the
prosecutrix had purchased tobacco mixture, which the appellant had asked
her to bring, PW-6-Sheetal Thakur, a neighbour who accompanied PW-3
to look for the prosecutrix and PWs-7 and 8 being the Investigating
Officers.
5. The appellant examined his sister Kavita Rajput as defence
witness who was married and living at Jalna with her family. The
prosecution also brought on record documentary evidence, including the
Medical Examination Report of the prosecutrix, which was duly proved by
the doctor (PW-4). On this basis, the prosecution claimed that it had
proved its case beyond reasonable doubt against the appellant. In the
statement of the appellant recorded under Section 313 of the Code of
Criminal Procedure, 1973, his defence was that there had been a quarrel
between him and PW-3-mother of the prosecutrix, couple of days before
the incident leading to his false implication in the present case.
6. The trial Court took into consideration the entire oral and
documentary evidence on record and found that the prosecution had
proved its case and that the defence raised by the appellant was not
believable. On this basis, the trial Court passed the impugned judgment
and order convicting and sentencing the appellant in the aforementioned
manner.
7. Aggrieved by the same, the appellant has filed the instant
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appeal. Shri P.H. Khobragade, Advocate appointed to appear on behalf of
the appellant, submitted that the evidence brought on record by the
prosecution was not sufficient to prove the guilt of the appellant. It was
submitted that this was a case of false implication due to enmity as there
had been quarrel between the appellant and the mother of the
prosecutrix (PW-3) and that therefore, the impugned judgment and order
was not sustainable. It was submitted that the panch witness for seizure
and spot panchanama had turned hostile and that therefore, the
documents pertaining to the same could not have been looked into by the
trial Court. It was further submitted that even the Medical Examination
Report of the prosecutrix and the Chemical Analyzer’s reports of the
clothes of the prosecutrix demonstrated that there was no blood or semen
found and that therefore, the case of the prosecution could not said to have
been proved.
8. On the other hand, Shri Alap Palshikar, learned APP
appearing on behalf of the State submitted that the impugned judgment
and order passed by the trial Court was fully justifiable. There was
sufficient oral and documentary evidence on record to prove the guilt of the
appellant and that no fault can be found with the findings rendered by the
trial Court. It was submitted that the evidence of the prosecutrix itself was
sufficient as it was fully trustworthy and nothing was brought out in the
cross examination of the prosecutrix on behalf of the appellant/accused to
cast any doubt on the evidence of the prosecution. It was further
submitted that there was sufficient corroborative evidence showing the
truthful nature of the grievance made by the prosecutrix against the
appellant. On this basis, it was submitted that the appeal deserved to be
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dismissed.
9. In the present case, the prosecutrix was only about seven
years of age when the incident occurred on 06-05-2016. The evidence of
prosecutrix shows that she has stated in a clear and unambiguous
manner as to the manner in which the appellant first entered her house and
inserted a finger in her private part. It is stated by the prosecutrix that upon
another person, Aryan Mama, coming to her house the appellant
immediately left her house and that he came again to her house and
asked the prosecutrix to bring mixture of tobacco and betel nut (Kharra) for
him. She then purchased the said item from PW-5-Tarachand who was
also examined, and went to the house of the appellant to give the same to
him. It is further stated that the appellant took the prosecutrix in his house
and then the details of the sexual activity undertaken by the appellant have
been stated. The prosecutrix has also identified the appellant in the Court.
A perusal of cross examination conducted on behalf of the appellant
shows that there is not a single question asked about the detailed
description of incident given by the prosecutrix. There is absolutely no
cross examination in respect of the same. The evidence of the prosecutrix
is thus found to be not shaken at all. A perusal of the same shows that it
is truthful and unambiguous as regards the details of the manner in which
the prosecutrix was sexually assaulted by the appellant.
10. A perusal of the evidence of PW-3 (mother of the prosecutrix)
and PW-6, a neighbour, shows that they had knocked the door of the
appellant and after forcibly opening the door they found the appellant and
the prosecutrix in a situation which completely supported the version of
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the prosecutrix. The evidence of PW-5-Tarachand who sold the mixture of
tobacco and betel nut to the prosecutrix and that of PW-6-Sheetal Thakur,
the neighbour, along with that of PW-3 the mother of the prosecutrix,
completely corroborate the evidence of prosecutrix in order to prove the
guilt of the appellant. In this situation, merely because PW-2, the panch
witness for seizure and spot panchanama turned hostile, would not
adversely affect the case of the prosecution.
11. The medical evidence in the form of evidence of PW-4
Dr. Bhakti Deshpande and the Medico Legal Examination Report at
Exhibits-21 and 25 completely support the case of the prosecutrix. The
medical report clearly shows that there was redness present on various
parts of vagina of the prosecutrix, thereby corroborating her statement that
the appellant had inserted his finger and kissed the private part of the
prosecutrix. In this situation, absence of torn hymen is wholly irrelevant.
A perusal of said medical report and the testimony of Dr. Deshpande (PW-
4) shows that the case of the prosecution was clearly proved beyond
reasonable doubt.
12. As far as the defence of the appellant is concerned regarding
the false implication based on an alleged incident of quarrel between the
appellant and PW-3 (mother of the prosecutrix), there is hardly any
evidence on record. The only evidence is that of defence witness, Kavita
Rajput, the sister of appellant. In cross examination, the said witness has
clearly admitted that she is married and usually lives in Jalna. There is
nothing brought on record to show that on the date of incident i.e. on
06-05-2016, the said witness was indeed with the appellant in his house at
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Nagpur. Therefore, no fault can be found with the findings rendered by
the trial Court that the defence story is wholly unbelievable.
13. Thus, a perusal of the evidence and material on record shows
that the findings rendered by the trial Court cannot be interfered with. The
trial Court has discussed in detail all the facets of the oral and documentary
evidence on record to come to the conclusion that the appellant was
indeed guilty of the offence for which he was charged. In that view of the
matter, there is no merit in the instant appeal and accordingly it is
dismissed.
14. Since the learned Counsel appearing for the appellant was
appointed Counsel, it is directed that the learned Counsel shall be entitled
to fees of Rs. 5000/- for conducting final hearing of this appeal.
JUDGE
Deshmukh
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