Apeal504-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 504 OF 2017
Hanumant s/o Buwasaheb Deshmukh … Appellant
Age 76 years, Occu: Nil
r/o Chincholi-Mali Tq. Kaij,
Dist. Beed
VERSUS
State of Maharashtra
Mr. A. A. Nimbalkar, Advocate for the appellant
Mr. Y. G. Gujrathi, APP for the State.
CORAM : K. L. WADANE, J.
RESERVED ON : 27th September, 2018
PRONOUNCED ON : 29th September, 2018
JUDGMENT:
1. This Appeal is preferred by the Appellants- original accused
who has been convicted by the learned Special Judge, Ambajogai in
Special Case No. 06 of 2016, for the offence punishable under section
450 of the Indian Penal Code (IPC) and sentenced to suffer rigorous
imprisonment for four years and to pay fine of Rs.1000/- and for the
offence punishable under section 354-A IPC and sentenced to suffer R.I.
for two years and to pay fine of Rs.2000/-. The appellant/accused is
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further convicted under sections 8 of the Protection of Children from
Sexual Offences Act (POCSO Act) and sentenced to suffer R. I. for
three years and to pay fine of Rs.2000/- . All the sentences are to run
concurrently.
2. PW-2 namely Balu Gade, father of the victim (minor girl)
lodged complaint to the police station on 06.03.2016 alleging that on
13.02.2016, when the victim was alone in the house of his brother- Aba
Gade, at about 1.00 p.m, accused Hanumant gave a chocolate to the
victim and inserted his finger into her vagina. Victim disclosed this fact
to her father-PW-2. However, so as to avoid defamation in the society,
PW-2 contacted other witnesses/villagers, went to the accused and
enquired about the incident. At that time, accused apologized.
Therefore, PW-2 avoided to lodge criminal complaint.
On 05.03.2016 again, when victim was alone in the house, at
about 2.00 p.m., the accused entered into the house and repeated the
same thing i.e. inserted his finger into vagina of the victim, due to
which, the victim shouted. Grandmother of the victim came there, so
the accused ran away from the spot. On the basis of information given
by the PW-2, offence came to be registered against the appellant for the
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offence punishable under sections 376(2)(i)(j), 354, 354(A), 452 of the
Indian Penal Code and under section 4, 8, 12 and 18 of the POCSO Act.
3. After registration of the crime, PW-4 Investigating Officer
visited the spot and prepared spot panchanama in presence of PW-3
Vijay Gaikwad and after doing as usual investigation, he has submitted
charge sheet before the learned Judaical Magistrate, First Class
Ambajogai, who thereafter committed the case to the Special Court,
Ambajogai. The learned Special Judge framed the charges against the
appellant for the offence punishable under sections 450, 354-A, 376(2)
IPC and under sections 4, 6, 8 and 12 of the POCSO Act.
4. After recording evidence of the witnesses, statement of the
accused under section 313 of the Cr. P.C. was recorded and after
hearing the arguments, the trial court convicted and sentenced the
accused as aforesaid. Hence this appeal is preferred by the accused-
appellant challenging his conviction and sentence.
5. I have heard Mr. Nimbalkar , learned counsel appearing for the
appellant and Mr. Gujrathi, learned APP for the respondent State at
length. With their able assistance, I have carefully perused the entire
notes of evidence.
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6. In order to establish the charges leveled against the appellant
accused, the prosecution has examined four witnesses viz. PW-1
Victim at Exh.24, PW-2 Balu Gade at Exh.25 father of the victim, PW-
3 Vijay Sheshrao Gaikwad as panchwitness to spot panchanama at
Exh.29 and PW-4 Investigating Officer Raosaheb Gangaram Gadekar
at Exh. 32. Besides oral evidence of above witnesses, prosecution has
has also relied on FIR Exh.26 and Spot panchanama Exh.30.
7. On perusal of the evidence on record, it appears that in order
to establish the alleged offence, evidence of the victim is very
important and material. Evidence of other witnesses like PW-3 and
PW-4 are of formal in nature. It is an undisputed fact that the victim
was aged about six years at the time of incident and her evidence is
recorded by the learned Special Judge in the form of question and
answer, after verifying that witness is able to understand the questions
and answer. From the evidence of victim it appears that she is a school
going girl and at that time she was taking education in 2nd standard.
At the relevant time, she had been to the house of her real uncle Aba
Gade. In order to assess oral evidence of victim, question Nos. 5, 6, 9,
10 and 11 and their answers are very material, which are reproduced
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as follows:
Q. No.5 : What is residence place of Hunumant Kaka ?
Ans. : Hanumant Kaka is of village Chincholi Mali.
Q. No.6 : What did he do with you?
Ans. : Hanumant Kaka told me that he will give chocolate to me
and put his his hand in my nicker.
Q. No.9 : What trouble you caused ?
Answer : Due to that, I sustained trouble.
Q.No.10 : Who came there ?
Answer : At that time my grandmother Abhai came there.
Q. No.11 : After your grandmother came what had happened ?
Ans. : I told to my grandmother that that old man gave
chocolate to me and put his hand in my nicker ?
8. Looking to the evidence of the PW-1 victim which is in
question and answer form, it reveals that at the relevant time, the
accused who is referred by the victim as Hanumant Kaka gave chocolate
to her and then put his hand into her nicker. So the act of the accused
seems to be physical contact with the victim and advances, involving
unwelcome and explicit sexual overtures, which is squarely covered
under the definition of section 354-A(i) IPC. Same is the case in
reference to the offence under section 8 and the definition of sexual
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assault given in Section 7 of the POCSO Act, which reads as follows:
“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.”
Looking to the definition of sexual assault and the act
committed by the accused, it appears that the accused, with sexual
intent, put his hand into the nicker of the victim, which amounts to
touching to the private part of the victim, or at the most, it can be said
that act of the accused was with sexual intention involving physical
contact without penetration which can be said to be sexual assault.
Oral evidence of the victim PW-1 is restricted only to the extent that the
accused has put his hand in her nicker, which amounts to touching to a
private part of the victim with sexual intent.
9. On perusal of evidence of PW-2, it appears that earlier on
13.02.2016, the accused has committed the same thing, however, so as to
avoid defamation in the society, the matter was settled as the accused
apologized and hence no complaint was lodged at that time. In the
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cross examination of PW-2, certain suggestions were given regarding
groupism and two groups of persons. The victim has nothing to do with
such group and there is no evidence on record to show that PW-2 is
belonging to any group or involved in the groupism in the village.
10. Mr. Nimbalkar, learned counsel for the appellant argued that
since there was rivalry between two groups, the complaint was lodged
by PW-2. Argument of Mr. Nimbalkar is not acceptable because,
nobody will dare to file such a complaint concerning chastity of PW-1
at the stake of defamation. No prudent man can advice to a daughter
who is about six years to depose falsely about sexual assault against the
person who was aged about 76 years at the time of incident. I do not
find any reason to disbelieve the version of PW-1 victim.
11. Looking to the nature of allegations and the fact, nothing is
brought on record in the cross examination to disbelieve the evidence
of prosecution. Oral evidence of sole eye witness which is victim can be
relied without there being any further corroboration. Corroboration
is rule of produce and in the present case, there is absolutely no reason
for PW-1 to depose falsely against the appellant and there is absolutely
no reason for PW-2 to file false first information report against the
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accused-appellant.
12. In view of the above, the conviction recorded against the
appellant is proper to the extent of offence punishable under section
354-A IPC and offence under section 8 of the POCSO Act. Finding of
the learned Special Judge holding the accused guilty for the offence
punishable under section 354 IPC and section 8 of the POSCO are
correct and requires no interference.
13. The next aspect involved in the present matter is that charges
were framed against the accused and one of the charges framed against
the accused is for the offence punishable under section 450 of the IPC.
Punishment provided for the offence under Section 354-A is up to
three years imprisonment. Punishment for the offence under section 8
of the POSCO is to the extent of five years with fine. No punishment of
life imprisonment is provided for the offences punishable under
sections 354-A IPC and Section 8 of POCSO Act. Learned Special
Judge has convicted the accused for the offence punishable under
section 450 IPC. Provisions of 450 IPC reads as follows:
“House-tresspass in order to commit offence punishable with
imprisonment for life: Whosoever commits house-tresspass in8/10
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order to the committing of any offence punishable with
imprisonment of life, shall be punished with imprisonment of
either description for a term not exceeding 10 years and shall
also be liable to fine. ”
Looking to the aforesaid provisions of Section 450 IPC, it
appears that since the accused has not committed an offence punishable
with imprisonment for life, the provisions of section 450 IPC cannot be
attracted. An accused can be convicted for the offence punishable under
section 450 IPC, provided the other offencee punishable with
imprisonment for life is proved against the accused, otherwise, the
conviction under section 450 is bad in the eyes of law. Resultantly, the
accused is acquitted from the offence punishable under section 450
IPC.
14. In view of the above, the appeal is partly allowed.
15. Punishment imposed upon the appellant accused for the
offence punishable under section 354-A IPC and Section 8 of the
POCSO Act are maintained.
16. Punishment awarded for the offence punishable under section
450 IPC is hereby quashed and set aside. Amount of fine imposed
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upon the accused for the offence punishable under section 450 shall be
refunded to the accused.
Criminal appeal is accordingly disposed of.
(K. L. WADANE, J.)
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