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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO.229/2015
Rakesh s/o Charandas Lonbale,
aged 22 years, Occ. Labour,
r/o Wadala, Tq. Mul, Dist. Chandrapur. …..APPELLANT
…V E R S U S…
The State of Maharashtra, through
Police Station Officer, Police Station,
Chandrapur City, Tq. Dist. Chandrapur. …RESPONDENT
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Mr. Rahul Hajare, Advocate (Appointed) for appellant.
Mr. R. S. Nayak, A.P.P. for respondent.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 07.06.2017
ORAL JUDGMENT
1. The present appeal is directed against the judgment
and order of conviction passed by the learned Additional Sessions
Judge, Chandrapur in Sessions Case No.108/2003 on 10.04.2015.
By the said judgment and order of conviction, the appellant is
convicted for an offence punishable under Section 376 of the
Indian Penal Code and is directed to suffer rigorous imprisonment
for 10 years and to pay a fine of Rs.2,000/- in default to suffer
further rigorous imprisonment of on year. The appellant is also
convicted for an offence punishable under Sections 3 and 4 of the
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POCSO Act and no separate order of sentence was passed by the
court below. The appellant is also convicted for the offence
punishable under Section 343 of the IPC and on that count he is
sentenced to suffer six month’s rigorous imprisonment and to pay
a fine of Rs.500/- and in default further rigorous imprisonment for
15 days. Though the appellant was charged for the offence
punishable under Section 506 of the IPC, he was acquitted of the
said charge.
2. I have heard Mr. Rahul Hajare, learned counsel who
was appointed by the Legal Aid Committee to represent the
appellant since he was unable to engage a counsel. The State is
represented by Mr. R. S. Nayak, learned A.P.P. With their able
assistance, I have gone through the record and proceedings.
3. The prosecutrix in this case will be referred to as “K” so
as to hide her identity. The FIR is lodged by “K” herself on
08.06.2013 in Police Station Chandrapur (City). The oral report is
available on record at Exh.-10. The said report was reduced into
writing by Rahul Jadhav (PW7) PSI, who was the Day Officer. He
registered an offence vide Crime No.104/2013 for the offence
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punishable under Section 354 (A) (1) (I), 323, 342 and 506 of the
IPC
4. After registration of the crime, “K” was referred for
medical examination along with Lady Police Constable. By issuing
the letter dated 08.06.2013, Exh.-26, Rahul Jadhav (PW7)
requested the Medical Officer, District Government Hospital,
Chandrapur for medical examination of “K”. The investigation
then was entrusted to Sudhir Kodape (PW5). The said
investigating officer drew the spot panchanama Exh.-14. He also
caused the arrest of the appellant on 08.06.2013 by executing
arrest panchanama (Exh.-20) and after completion of the
investigation he filed the final report before the Court.
The learned Additional Sessions Judge framed the
charge against the appellant for the offence punishable under
sections 343, 376 (2) (i) of the IPC and also under Section 354-A
and 354-B of the IPC along with an offence under Sections 7 and 8
of the Protection of Children From Sexual Offences Act, 2012. The
appellant abjured his guilt and claimed for his trial.
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5. In order to bring home the charge, the prosecution has
examined in all 9 witnesses.
Leena Babare (PW8) is Head Mistress of Sanghamitra
Kendriya Vidyalaya Resident School of Scheduled Tribe at
Ghodpeth, District Chandrapur whereat “K” was taking her
education. She brought her school record which shows the date of
birth as 15.03.1999. The copy of the register showing the name
and date of birth of “K” is at Exh.-130. Similarly, the prosecution
has examined Nitin Pandhar (PW9), the Village Development
officer at Saoli and also the Registrar of Birth Death Registration
Office. He proved birth certificate of the prosecutrix, Exh.-42
which shows the date of birth as 15.03.1999. The prosecutrix has
also stated her date of birth as 15.03.1999. From the nature of the
prosecution, it is clear that the appellant is not disputing the date
of birth of the prosecutrix. It is clear that the date of birth of the
prosecutrix is 15.03.1999 and she was child within the meaning of
the POCSO Act.
6. The question is whether the prosecution has ably
proved the offence for which the appellant was charged.
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The prosecutrix is examined as PW1, Rajani (PW2) is
her mother. Her evidence is hearsay evidence since she deposed
before the Court that what is stated to her by her daughter is being
deposed. Mohan (PW3) is a pancha witness. Though he has
turned hostile, through the investigating officer the spot
panchanama Exh.-40 is duly proved. Manohar (PW4) is the
neighbour of the prosecutrix.
As per the FIR and the evidence of the prosecutrix, it is
alleged that on 07.06.2013 at 4.00 p.m. when the prosecutrix was
alone in the house, the appellant entered into her house and
thereafter put his two fingers in her private parts.
After issuance of Exh.-26, the prosecutrix was brought
in the General Hospital on 08.06.2013. That time Sapna Tallarwar
(PW6) was working as Medical officer. She examined “K” and on
examination she noticed the nail scratch on her left breast and
contusion and tenderness on the private parts of the prosecutrix.
The medical certificate to that effect is available at Exh.-22.
7. It is established on record that the house of the
prosecutrix is situated in thickly populated locality. Her house is
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surrounded by various houses. The prosecutrix has admitted that
if any shouts are raised those can easily be heard by the
neighbours. She has also admitted that at the relevant time the
appellant was working as a servant in the Chinese Foods Stall run
her parents. It is also established on record that the appellant used
to prepare Chinese foods in the stall and all the raw materials
which are required for the Chinese foods used to be kept in the
house and the raw materials used to be taken to the stall as and
when it is required. It is also admitted by the prosecutrix that the
accused used to attend the house as per the directions of her
parents for brining the raw materials from the house. Thus, it is
clear that the visit of the appellant to the house cannot be termed
as an unnatural one in the absence of the parents of the
prosecutrix. It was suggested to “K” that when the appellant had
been to her home for taking raw material that time she demanded
Rs.100/- from him and on refusal, she abused the appellant. She
therefore was slapped by the appellant hence he is falsely
implicated.
8. The time of the incident, even as per the prosecutrix is
at about 4 O’clock in the afternoon. Therefore, the presence of the
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neighbours in their respective houses cannot be ruled out. Further,
the incident has occurred in the month of June in the city of
Chandrapur. That shows that the summer season was not
completely over and thus the neighbours are bound to be there in
their houses during the afternoon hours of the day.
9. On a closer scrutiny of the evidence of Dr. Swapna
(PW6), it shows that the injury as noticed by her which are
mentioned in Exh.-22 are possible due to itching. In that respect,
admission given by the prosecutrix herself that she used to feel
itching assumes importance. Further, she has admitted in her
cross-examination that at the time of the alleged act she raised a
loud shout However, nobody from the neighbour came to her
house. This appears to be improbable in view of the fact that the
house is situated in a thickly populated locality. Further it is her
version that one Narendra and Virendra who reside in front of her
house gave a call to her. For the reasons best know to the
prosecution, these two persons are not examined by it. The
learned APP submits that their statements are also not recorded.
10. The incident is dated 07.06.2013. The FIR is lodged on
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the next day. The distance between the shop of the parents of the
prosecutrix and the police station is only 15 minutes. No
explanation is coming on record for not lodging the FIR
immediately. In this backdrop, the suggestion which is denied by
the prosecutrix that the family members of the prosecutrix
deliberated throughout night and thereafter on the next day the
report is lodged has its own importance. Immediate registration of
the crime on the basis of the report rules out the possibility of false
implication.
11. The prosecution case shows that there is no
investigation whatsoever in respect of the two other boys which
according to the prosecution were present with appellant in front
of their houses at the time of the incident. The reappreciation of
the entire prosecution case shows that in respect of the alleged
incident, the evidence is short to reach to the conclusion definitely
about the overt act on the part of the appellant to convict him for
the offence for which he was charged.
12. In my view, the entire case of the prosecution is in a
mist of doubt. Therefore, the benefit of doubt is required to be
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extended in favour of the appellant. Consequently, following order
is passed.
ORDER
(i) Criminal Appeal No. 229/2015 is allowed.
(ii) The judgment and order of conviction dated 10.04.2015
passed by the Additional Sessions Judge, Chandrapur in Sessions
Case No.108/2013 convicting the appellant is set aside.
(iii) The appellant who is in jail should be released forthwith, if
not required in any other case.
(iv) Professional charges of Mr. Rahul Hajare, learned appointed
counsel for the appellant are quantified at Rs.5,000/- to be paid by
Legal Aid Committee.
JUDGE
kahale
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