(1) criapl148.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.148 OF 2017
Laxmikant S/o. Nagorao Kulkarni, …APPELLANT
Age-65 years, Occu-Pensioner, [Ori.Accused]
R/o.Vidhyut Nagar, Morewadi,
Tq.Ambajogai, Dist. Beed
VERSUS
State of Maharashtra …RESPONDENT
through Police Station Officer, [Ori.Prosecution]
Ambajogai City Police Station,
Taluka Ambajogai, Dist. Beed
Mr.S.R.Chaukidar, Advocate for the appellant
Mr.C.S.Kulkarni, AGP for the respondent/State
CORAM : S.M. GAVHANE, J.
RESERVED ON : 30.10.2018
PRONOUNCED ON : 19.12.2018
JUDGMENT [PER: S.M. GAVHANE, J.]
. The appellant/accused has challenged the
judgment and order dated 21.03.2017 passed by the
Special Judge Additional Sessions Judge, Ambejogai
thereby convicting him for the offences punishable
under Sections 354,354-A of the Indian Penal Code
(for short “IPC”) and under Sections 8,10 12 of
the Protection of Children From Sexual Offences Act,
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2012 (for short “POCSO Act”) and sentencing him to
suffer rigorous imprisonment for one year and to pay
a fine of Rs.2000/- (Rs.Two Thousand), in default,
to suffer simple imprisonment for 15 (fifteen) days
for the offence punishable under Section 354 of the
IPC, to suffer rigorous imprisonment for one year
and to pay a fine of Rs.1000/- (Rs.One Thousand), in
default to suffer simple imprisonment for 10 (ten)
days for the offence punishable under Section 354-A
of the IPC, to suffer rigorous imprisonment for
three years and to pay a fine of Rs.1000/- (Rs.One
Thousand) in default, to suffer simple imprisonment
for 10 (ten) days for the offence punishable under
Section 8 of the POCSO Act, to suffer rigorous
imprisonment for five years and to pay a fine of
Rs.1000/- (Rs.One Thousand) in default, to suffer
simple imprisonment for 10 (ten) days for the
offence punishable under Section 10 of the POCSO Act
and to suffer rigorous imprisonment for three years
and to pay a fine of Rs.1500/- (Rs.One Thousand Five
Hundred) in default to suffer simple imprisonment
for 12 (twelve) days for the offence punishable
under Section 12 of the POCSO Act. All the
substantive sentences were ordered to run
concurrently. The accused was given set off for the
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(3) criapl148.17
period i.e. from 18.09.2014 till 30.09.2014 which
has undergone by him as under-trial prisoner against
the sentence. On deposit of fine amount, an amount
of Rs.3000/- (Rs.Three Thousand Only) is ordered to
be given to the victim as a compensation as per
Section 357 of the Code of Criminal Procedure. The
accused has deposited the fine amount on the same
day.
2. The appellant/accused is in jail. The
appeal was fixed for final hearing as per order
dated 01.02.2018.
3. Facts leading to the institution of the
present appeal, in short, are as under:-
A. The victim girl aged 9 years was residing
alongwith her parents, her sister and brother at
Morewadi, Ambajogai. On 17.09.2014 at about 07.00 am
while the victim was returning to house from grocery
shop of Vijay Pawar and reached in front of house of
one Ambad, the accused Lakshmikant Nagorao Kulkarni
came from her behind and on saying her of whose big
size footwear she wore took her near to him and
touched the breast of the victim and said her what
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(4) criapl148.17
is this, it would become big when she would enter
into 5th standard and on saying her to allow him to
touch her breast pressed the breast of the victim by
both the hands. At that time while the victim was
attempting to rescue from him as soon as accused saw
one person coming, he left the victim. Then after
the victim went to her house informed the incident
to her mother (PW-3) in frightened condition. The
mother of the victim told the incident to her
husband the complainant (PW-2) when he returned to
house. The complainant father of the victim
confirmed incident from victim and tried to find out
said person on the basis of description of said
person given by the victim as fat, short, big berry
with spect, but said person was not found. Then PW-2
traced out the said person and came to know that on
18.09.2014 the said person committed similar act
with the daughter of his maid, due to which the
father of the said victim girl had lodged complaint
against the accused. Thereafter, the complainant
went to Ambajogai (City) Police Station on
19.09.2014 and gave information about the incident
which was reduced into writing by ASI Borse, on the
basis of the same police registered crime
No.194/2014 for the offences under Sections 354,
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354-A of the IPC, Sections 8,10 12 of the POCSO
Act and Sections 3(w)(i), 3(2)(v)(a) of the
Scheduled Castes/Scheduled Tribes (Prevention of
Atrocities) Act against the accused and the
investigation was commenced.
B. During the investigation Dr.Kakasaheb
Adinath Dole (PW-6) the Sub Divisional Police
Officer/the Investigating Officer on 19.09.2014
visited the spot of incident and prepared spot
panchanama (Exh.25). He recorded statements of
father, mother, sister and maternal aunt of victim.
So also, the statements of the victim and her father
were recorded by the JMFC, Ambajogai under Section
164 of the Code of Criminal Procedure on 22.09.2014.
The accused was arrested on 23.09.2014 and was
subsequently released on bail as per order dated
29.09.2014. After completion of the investigation
the police submitted charge-sheet in the Court of
Additional Sessions Judge, Ambejogai against the
accused for the aforesaid offences being trial Court
for trial of the said offences.
C. The learned Special Judge framed charge
against the accused for the offences punishable
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(6) criapl148.17
under Sections 354 and 354-A of the IPC, Section
8,10 and 12 of the POCSO Act and Section 3(w)(i) and
3(2)(v)(a) of the Scheduled Castes/Scheduled Tribes
(Prevention of Atrocities) Act. The accused pleaded
not guilty to the said charge and claimed to be
tried. The defence of the accused was that false
case is filed against him. Further his defence as it
appears from the trend of cross-examination of the
prosecution witnesses and particularly the victim is
that the accused was not in a position to understand
anything as he was suffering from mental ailment at
the relevant time of incident. Thus he claimed that
due to unsoundness of mind his case falls under
exception in Section 84 of the IPC. The accused has
examined two witnesses in defence.
D. To prove guilt of the accused, the
prosecution has examined six witnesses namely
Yeshpal Ashokrao Sonwane (PW-1), Rajendra Mahadeorao
Sarkate (PW-2) father of the victim, Pranita
Rajendra Sarkate (PW-3) mother of the victim,
Dnyaneshwar Bhimrao Bhise (PW-4), Anariya Rajendra
Sarkate (PW-5) the victim and Dr.Kakasaheb Adinath
Dole (PW-6) the Investigating Officer and it has
relied upon Exh.54 and Exh.55 respectively the
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(7) criapl148.17
statements of the victim and father recorded by the
learned Magistrate under Section 164 of the Code of
Criminal Procedure. Upon considering the said
evidence adduced by the prosecution and the defence
evidence, the trial Court held that the prosecution
has proved the offences except offence under the
Scheduled Castes/Scheduled Tribes (Prevention of
Atrocities) Act against the accused and accordingly
convicted and sentenced him for the said offences as
referred in detail in opening para of this judgment
by the impugned judgment and order, which is
assailed in this appeal by the appellant/accused.
4. Mr.Chaukidar, learned counsel for the
accused submitted that the trial Court has held the
accused guilty for the offence punishable under
Sections 354 354-A of the IPC and under Sections
8,10 12 of the POCSO Act. The evidence adduced by
the prosecution is not sufficient to establish the
aforesaid offences for which accused has been
convicted. It is submitted that to attract the
offence punishable under Section 10 of the POCSO Act
aggravated sexual assault as defined under Section 9
of the POCSO Act has to be proved by the
prosecution. In the present case, if the allegations
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(8) criapl148.17
made against the accused and evidence of the victim
girl are considered, no inference can be drawn that
the accused has committed aggravated sexual assault,
because the only allegations made against the
accused is that on the day of incident the accused
allegedly outraged modesty of the victim girl by
touching to her breast. Therefore, according to
learned counsel for the accused no offence is proved
against the accused. It is submitted that if the
evidence adduced by the prosecution is believed, at
the most, the act alleged against the accused would
fall under Section 354 of the IPC i.e. outrage of
modesty of the victim girl. But, the same also
cannot be accepted as at the relevant time of
incident on 17.09.2014 the accused had a mental
attack and therefore, due to unsoundness of mind he
was not in a position to understand what he was
doing and hence he has committed no offence as his
case falls under exception under Section 84 of the
IPC in the light of his defence. It is submitted
that the accused has established his defence. To
support the said submissions the reliance is placed
on the decision in the case of Hari Singh Gond Vs
State of MP 2008 (7) Supreme 351. In the said
decision, it was held that the legal insanity has to
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(9) criapl148.17
be distinguished from medical insanity. The burden
of proof rests on an accused to prove his insanity.
That burden is not so onerous as that upon the
prosecution to prove that the accused committed the
act with which he is charged. Further it was held
that mere absence of motive for a crime, howsoever
atrocious it may be, cannot in the absence of plea
and proof of legal insanity, bring the case within
section 84 of the IPC. In the said decision the Apex
court observed in paragraph Nos.6,8,9 and 11 as
under:-
6. Under Section 84 IPC, a person is exonerated
from liability for doing an act on the ground of
unsoundness of mind if he, at the time of doing the act, is
either incapable of knowing (a) the nature of the act, or (b)
that he is doing what is either wrong or contrary to law.
The accused is protected not only when, on account of
insanity, he was incapable of knowing the nature of the act,
but also when he did not know either that the act was
wrong or that it was contrary to law, although he might
know the nature of the act itself. He is, however, not
protected if he knew that what he was doing was wrong,
even if he did not know that it was contrary to law, and also
if he knew that what he was doing was contrary to law even::: Uploaded on – 19/12/2018 25/12/2018 21:52:18 :::
( 10 ) criapl148.17though he did not know that it was wrong. The onus of
proving unsoundness of mind is on the accused. But where
during the investigation previous history of insanity is
revealed, it is the duty of an honest investigator to subject
the accused to a medical examination and place that
evidence before the Court and if this is not done, it creates a
serious infirmity in the prosecution case and the benefit of
doubt has to be given to the accused. The onus, however,
has to be discharged by producing evidence as to the
conduct of the accused shortly prior to the offence and his
conduct at the time or immediately afterwards, also by
evidence of his mental condition and other relevant factors.
Every person is presumed to know the natural consequences
of his act. Similarly every person is also presumed to know
the law. The prosecution has not to establish these facts.
8. Section 84 embodies the fundamental maxim
of criminal law, i.e., actus non reum facit nisi mens sit rea”
(an act does not constitute guilt unless done with a guilty
intention). In order to constitute an offence, the intent and
act must concur, but in the case of insane persons, no
culpability is fastened on them as they have no free will
(furios is nulla voluntas est.)
9. The section itself provides that the benefit is
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( 11 ) criapl148.17available only after it is proved that at the time of
committing the act, the accused was labouring under such a
defect of reason, from disease of the mind, as not to know
the nature and quality of the act he was doing, or that even
if he did not know it, it was either wrong or contrary to law
then this section must be applied. The crucial point of time
for deciding whether the benefit of this section should be
given or not, is the material time when the offence takes
place. In coming to that conclusion, the relevant
circumstances are to be taken into consideration, it would
be dangerous to admit the defence of insanity upon
arguments derived merely from the character of the crime.
It is only unsoundness of mind which naturally impairs the
cognitive faculties of the mind that can form a ground of:
exemption from criminal responsibility. Stephen in ‘History
of the Criminal Law of England, Vo.II, page 166 has
observed that if a person cuts off the head of a sleeping man
because it would be great fun to see him looking for it when
he woke up, would obviously be a case where the
perpetrator of the act would be incapable of knowing the
physical effects of his act. The law recognizes nothing but
incapacity to realise the nature of the act and presumes that
where a man’s mind or his faculties of ratiocination are
sufficiently dim to apprehend what he is doing, he must
always be presumed to intend the consequence of the action::: Uploaded on – 19/12/2018 25/12/2018 21:52:19 :::
( 12 ) criapl148.17he takes. Mere absence of motive for a crime, howsoever
atrocious it may be, cannot in the absence of plea and proof
of legal insanity, bring the case within this section. This
Court in Sherall Walli Mohammed V. State of Maharashtra,
2 (1972 Cr.LJ 1523 (SC), held that the mere fact that no
motive has been proved why the accused murdered his wife
and child or the fact that he made no attempt to run away
when the door was broken open would not indicate that he
was insane or that he did not have necessary mens rea for
the offence. Mere abnormality of mind or partial delusion,
irresistible impulse or compulsive behaviour of a
psychopath affords no protection under Section 84 as the
law contained in that section is still squarely based on the
outdated Naughton rules of 19th Century England. The
provisions of Section 84 are in substance the same as that
laid down in the answers of the Judges to the questions put
to them by the House of Lords, in M Naughton’s case, 3
(1843) 4 St.Tr. (NS)847. Behavior, antecedent, attendant
and subsequent to the event, may be relevant in finding the
mental condition of the accused at the time of the event,
but not that remote in time. It is difficult to prove the
precise state of the offender’s mind at the time of the
commission of the offence, but some indication thereof is
often furnished by the conduct of the offender while
committing it or immediately after the commission of the::: Uploaded on – 19/12/2018 25/12/2018 21:52:19 :::
( 13 ) criapl148.17offence. A lucid interval of an insane person is not merely a
cessation of the violent symptoms of the disorder, but a
restoration of the faculties of the mind sufficiently to enable
the person soundly to judge the act; but the expression does
not necessarily mean complete or prefect restoration of the
mental faculties to their original condition. So, if there is
such a restoration, the person concerned can do the act
with such reason, memory and judgment as to make it a
legal act; but merely a cessation of the violent symptoms of
the disorder is not sufficient.
11. The trial Court and the High Court have, on the
facts of the case, rightly held that Section 84 IPC has no
application.
5. Learned counsel for the appellant/accused
further submitted that thus, the accused is entitled
to be acquitted of all the offences for which he has
been convicted. Alternatively, it is submitted that
if the defence is not accepted then at the most
offence under Section 354 of the IPC would be
attracted and the sentence recorded against the
accused be reduced to the period undergone by him
and said period would be sufficient sentence.
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( 14 ) criapl148.17
6. Learned counsel for the appellant/accused
has also relied upon the following decisions.
a. In the case of John @ Vivek Ramesh
Jadhav Vs State of Maharashtra 2015ALL.M.R. (Criminal) 4053 the appellant was
convicted for the offence punishable under
Section 10 of the POCSO Act and under
Section 506 of the IPC and as he was
convicted for the aggravated sexual assault
under Section 10 of the POCSO Act, no
separate sentence was imposed under Section
354 of the IPC and also under Section 8 of
the POCSO Act. The victim girl (PW-2) was
aged about 8 years on the day of incident.
It was alleged that on the day of incident
when she had come out of her house for
collecting some leaves of a tree for
playing, the appellant/accused called her
in his room and closed the door from
inside. He made the victim to sit on Sofa
by the side and told her to take his penis
in her mouth and also touched the breast of
the victim. He also gave threats to the
child that if she would disclose the things::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 15 ) criapl148.17to anybody, he would kill her family
members. He also told the child to come his
house everyday and removed the clothes. The
victim narrated all the contents of the FIR
during her substantive evidence. Her mother
(PW-1) in the cross-examination admitted
that the appellant/accused is landlord of
Chawl where in one of the rooms the parents
of the victim girl reside as tenants. It
was suggested that there were arrears of
rent and the landlord was demanding arrears
of rent to the father of the girl and also
the landlord had asked the father of the
girl to vacate the premises and on this
count there was dispute. On holding that
this was probable defence raised on behalf
of the appellant/accused and thus on
holding that it would be risky to rely upon
the evidence of the child when there is no
other corroborative evidence the conviction
recorded against appellant was set aside
and he was acquitted.b. In the case of Sachin Baliram
Kakde VS State of Maharashtra 2016 ALL.M.R.::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 16 ) criapl148.17(Criminal) 4049 the appellant was
convicted for the offences punishable under
Sections 376, 292 and 506 of the IPC and
under Section 6 and 12 of the POCSO Act by
the trial Court. In the appeal the
appellant was acquitted of all the
offences. Medical report showed hymen was
intact while victim deposed that at least
for one month, time and again, accused
committed sexual intercourse either by
stupefying her or there after under threat
to make video clip public. Secondly,
allegation of stupefying victim is belied
by very video clip which does not show her
in anyway stupefied. International Mobile
Equipment Identity (IMEI) number of mobile
handset from which video clip was taken was
different from one seized. It was held that
a reasonable doubt has arisen regarding
holding of mobile handset by accused and
that presumption under section 29 of the
POCSO, Act stands rebutted by the accused
and he was acquitted. It was observed in
paragraph Nos. 17,18,19 of the said
decision as under:-::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 17 ) criapl148.17
17. The provisions of section 29 of the POCSO Act
runs as under:-29. Presumption as to certain offences-
Where a person is prosecuted for committing or
abetting or attempting to commit any offence
under Sections 3,5,7 and section 9 of this Act,
the Special Court shall presume, that such
person has committed or abetted or attempted
to commit the offence, as the case may be
unless the contrary is proved."18. Thus, when a person is persecuted for
commission of the offence specified in the said
section, the Court is required to presume that the said
person has committed the said offence unless the
contrary is proved.19. The presumption, however, cannot be said to
be irrebuttable. Infact, no presumption is irrebuttable
in law, as this cannot be equated with conclusive
proof. The provisions of section 29 of the POCSO Act
mandates the Court to draw the presumption unless
contrary is proved.c. In the case of Vishal @ Sagar Vasant
Waghmare and others Vs State of Maharashtra
2015 ALL M.R.(Criminal) 301 the
appellant/original accused Nos. 1 to 3 were::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 18 ) criapl148.17convicted for offence punishable under
Sections 363, 366, 376(D) of the Indian
Penal Code and sentenced to rigorous
imprisonment and fine as detailed in the
judgment. In the appeal conviction and
sentence recorded against them was set
aside and they were acquitted of all the
offences with which they were charged. In
paragraph Nos. 10 and 11 it was observed as
under:10. The trial Court also, in our opinion, erred
in relying on the presumption under Section 29
of the Protection of Children From Sexual
Offences, Act, 2012. The prosecution, in the
present case, had utterly even failed to
remotely connect the appellants with the
commission of the offence. The substantive
evidence also does not disclose that the
prosecutrix/victim had named the accused as
the offenders. In the absence of that, therefore,
the presumption cannot be drawn. Such is not
the scope of presumption under Section 29 of
the Protection of Children From Sexual
Offences, Act, 2012.::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 19 ) criapl148.17
11. It would thus be seen that there is no
substantive evidence at all that the appellants
were the offenders who had forcibly taken the
victim alongwith them and had committed
forcible sexual intercourse. Mere narration of
history given by the victim to the Medical
Officer and which is reflected in the medical
certificate at Exh.27 by itself would not
constitute evidence nor does it established a
nexus between the said person and the accused
before the Court. For sustaining the conviction
of an accused, there has to be substantive
evidence and the prosecution is not absolved
from proving the offence against the accused
beyond reasonable doubt. In the present case
there is no evidence whatsoever to prove the
offence against the appellants beyond
reasonable doubt. The appellants, in our
opinion, therefore, are entitled to be given the
benefit of doubt.d. In the case of Mukesh @ Vicky S/o.
Suresh Dendule Vs State of Maharashtra 2018
DGLS (BOM)5 the appellant was convicted for
the offence punishable under Section 376 of
the IPC and sentenced to suffer rigorous::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 20 ) criapl148.17imprisonment for seven years and to pay
fine of Rs.3000/- and under Section 6 r/w
Section 5(m) of the POCSO Act. He was
sentenced to suffer rigorous imprisonment
for 10 years and to pay fine of Rs.5000/-.
In the appeal the conviction and sentence
under Section 376 of the IPC and under
Section 6 read with Section 5(m) of the
POCSO Act was set aside and instead the
accused is convicted for the offence under
Section 354 of the IPC and under Section 9
r/w Section 10 of the POCSO Act considering
the evidence of the child victim that the
accused rubbed his male organ on her
private part and observing that there is
absolutely no evidence on record to show
that there was any penetration, to any
extent even in the labia majora of the
child victim and he was sentenced to suffer
rigorous imprisonment for three years for
the offence punishable under Section 354 of
the IPC and to suffer rigorous imprisonment
for five years for the offence punishable
under Section 9 read with Section 10 of the
POCSO Act and sentence of fine imposed by::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 21 ) criapl148.17the trial Court was maintained.
e. In the case of Sunil Soma Bhamble
Vs State of Maharashtra 2016 ALL.M.R.
(Cri)2950 the appellant/accused wasconvicted for the offence punishable under
Section 9(m) read with Sections 10 and 18
of the POCSO Act. The allegations against
the appellant was that he attempted to
commit an aggravated sexual assault on girl
aged 4 years. CA report taken on record
under Section 293 of Cr.P.C. showed finding
of semen stains of 'O' group on underwear
of appellant and also undergarments of
child victim. Admittedly, it was not a case
of penetrative sexual assault. The evidence
of PW-6 Doctor shows that there was no
injuries on the private parts of the
victim. Therefore, it was held that mere
finding of the semen stains of "O" group
allegedly on under garments of the
victim/child cannot be considered as such a
clinching material so as to come to the
conclusion that even the attempt to commit
forcible sexual intercourse has been::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 22 ) criapl148.17committed by the appellant. Considering the
said fact and other evidence, it was held
that the trial Court erred in coming to the
conclusion that the prosecution has
established the charges under Section 9 (m)
and Section 10 read with Section 18 of the
POCSO Act and the prosecution had not
gathered the evidence of that standard
which is required to establish the guilt of
the appellant/accused, even for the attempt
of forcible sexual intercourse.Accordingly, the appeal was allowed and the
conviction and sentence recorded against
the appellant was set aside.7. On the other hand learned APP for the
respondent/State submitted that there is presumption
under Section 29 of the POCSO Act in favour of the
prosecution. Said presumption is rebuttable and the
accused has not rebutted the said presumption.
Therefore, there is no reason to disbelieve the case
of the prosecution. The defence witness Dr. Ashok
Giri (DW-2) is a general practitioner and is not an
expert. Therefore, probability of the defence of the
accused that he is suffering from mental disorder is::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 23 ) criapl148.17not proved. The consecutive instances of committing
the same act on 17.09.2014 and 18.09.2014 are proved
against the appellant. Thus, learned APP has claimed
to dismiss the appeal.8. I have carefully considered the submissions
made on behalf of the accused and the
respondent/State and with assistance of learned
counsel appearing for the accused and learned APP
for the respondent I have perused the evidence
adduced by the prosecution and the defence. So also,
I have gone through the impugned judgment and order.9. To hold that the prosecution has proved
offence under Section 354 of the IPC, the
prosecution has to establish that the accused
outraged modesty of the victim girl by touching to
her breast. To attract the offence under Section
354-A of the IPC the prosecution has to prove that
the accused did the act of physical contact to the
victim girl by touching to her breast and advances
involving unwelcome and explicit sexual overtures.
Moreover, to hold that the accused has committed the
offence under Section 8 of the POCSO Act, the
prosecution has to prove that he has committed::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 24 ) criapl148.17sexual assault i.e. with sexual intent he touched
breast of the victim girl which involves physical
contact without penetration within the meaning of
Section 7 of the POCSO Act on 17.09.2014 at about
07.00 am on the road of Vidyut Nagar, Morewadi,
Ambajogai. Similarly, to hold that the accused has
committed the offence punishable under Section 10 of
the POCSO Act, the prosecution has to establish that
the accused touched to breast of victim girl of 9
years old and also said her that seize of the breast
would be increased after going to 5th class and
thereby committed the offence of aggravated sexual
assault on child below 12 years. As regards offence
under Section 12 of the POCSO Act the prosecution
has to prove that accused with sexual intent
pointing finger to the breast of the victim girl
uttered words that it would become big when she
would go in 5th standard and followed her and
committed sexual harassment to her. To prove these
facts, the prosecution has mainly relied upon the
evidence of the victim girl (PW-5), her mother (PW-3) and father (PW-2).
10. Now coming to the evidence of the victim
girl (PW-5) at Exh.40, which was recorded on::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 25 ) criapl148.1715.06.2016, her evidence is that the incident
occurred on 17.09.12014 at about 07.30 am to 08.00
am in Vidyut Nagar. On that day she went to the
house of her aunt to return saree. She went to shop
of Pawar alongwith Harsh son of her aunt. One person
came from her back side and asked her of whom she
wore big size footwear. He asked her in which
standard she is studying. She told him that she is
studying in 4th std. He pointed out finger to her
breast and asked her what is it. Thereafter, he came
near her and touched her breast and said it would
become big when she would go in 5th std. Thereafter,
he caught hold her. She tried to rescue herself, one
another person went from there, therefore, he
released her and she went away. Thereafter, she went
to the shop of Neha as shop of Pawar was closed. The
said person had taken some articles from Neha shop
and was standing talking with Istriwala. Thereafter,
she took cheaps packet from Neha shop and by another
road went to her aunt's house. That person followed
her. As that person followed them they ran and
rushed to aunt's house and dropped Harsh in aunt's
house and went to her house. Her father went out
side of the house and she told to her mother. When
her father returned to home from outside, her mother::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 26 ) criapl148.17told to her father. Her father asked her whether she
knows that person?. She told her father that she did
not know the said person and told that said person
was fat, with big berry, short and with spect. She
belongs to Mahar community. She can identify the
said person, if she saw him. She stated that, the
accused present before the Court is the same person.
Thereafter, she went to one place and at that place
there was Judge. There these questions were
recorded.11. In the cross-examination the victim girl
has stated that now she is studying in 6th std. She
has admitted that in her statement before police
there is no reference that she visited Pawar's shop
on that day. She has denied that her family members
interpreted the incident otherwise and therefore,
asked her to give her statement on record. She has
denied that she is deposing false. She has denied
that the person who committed the above said act
does not understand what he was doing. Her evidence
regarding role attributed to the accused regarding
material incident of outraging her modesty, that the
accused followed her, that the accused touched her
breast and about the words uttered by the accused,
pointing finger to her breast and regarding::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 27 ) criapl148.17identification of the accused by her before the
Court has gone unchallenged in the course of her
cross-examination on behalf of the accused.
Therefore, there is no reason to disbelieve the
evidence of the victim girl regarding happening of
the incident.12. The evidence of victim girl is corroborated
by her statement Exh.54 recorded by the JMFC,
Ambajogai under Section 164 of the Code of Criminal
procedure which shows that on 17.09.2014 prior to
08.00 am she had gone to her maternal aunt's house
to give saree. Maternal aunt had given 10 rupees to
her. Then she went to the shop. Then one person came
from behind and uttered the words as further:"R;kus ekyk fopkjys dh rq pIiy dks.kkph ?kkryh eh Eg.kkys
eEehph- rks Nkrhyk gkr ykowu Eg.kkyk dh] ;sFks dk; vkgs]
iktw fnys rj eksBs gksrs- eh ,l-Vh-Mh- P;k nqdkukr tk;ys gksrs
rs nqdku can gksrs] jLR;koj dks.khgh uOgrs rks tkrkuk
Eg.kkyk ,dnk Nkrhyk gkr ykow ns o R;kauh idMys]
ekxwu ,d ek.kwl vkY;kus rsOgk lksMys] rsOgk rs nwdku can gksrs
R;kP;keqGs eh nqlj;k nqdkukdMs xsys] rsOgk rks nqdkukrwu ;sr
gksrk] rks bLhP;k nqdkukr Fkkacyk- eh fpIl o lkeku ?ksrys
eh okil nqlj;k jLR;kus tk;yk ykxys rsOgk rks eks ekxs
;sow ykxyk- rsOgk eh g"kZqyk Eg.kkys iGr tkowu jsl ykow::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 28 ) criapl148.17Eg.kwu vkEgh ?kjkdMs iGkyks- rks ek.kwl fu?kqu xsyk- ?kjh
vkY;koj jkh vkbZyk loZ ?kVuk lkaxhryh-"13. The above statement Exh.54 of the victim
girl shows that she was aged 10 years when said
statement was recorded on 20.09.2014. Thus, on the
basis of above evidence of victim girl, it is clear
that she was a child within the meaning of Section
2-d of the POCSO Act as she was below the age of 18
years. Moreover, on the basis of her evidence and
her statement Exh.54, it can be said that on
17.09.2014 at about 08.00 am the accused touched the
breast of the victim girl followed her and caught
hold her and uttered the words as referred earlier.14. PW-3 mother of the victim has stated that
on 17.09.2014 her daughter the victim went to her
sister to return her saree and returned to home at
about 08.30 am. She found the victim silent. After
her husband went away, the victim told her that when
she was returning from house of her maternal aunt
alongwith her son Harsal, one person came from her
backside and asked her of whom she wore big footwear
and also further asked her in which standard she was
studying. At that time she replied that she was in::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 29 ) criapl148.174th std. Then he came close to her and pointed
towards her breast and asked what is that. He also
told her that breast becomes big when she would
enter in 5th std. He also touched her breast. He also
caught hold her at that time, she attempted to
escape from him. He left her as soon as he saw one
person going from the road. Thereafter, she went to
shop of Pawar. As said shop was closed, she went to
Neha Grocery shop. She found that said person was
talking in the laundry and she observed that she was
returning from another road, at that time same
person was chasing her. The victim gave description
of the accused as recorded earlier. PW-3 stated that
she narrated the incident to her husband (PW-2).
Though PW-3 has been cross-examined at length
nothing is found in favour of the accused. She has
denied that accused does not remember what happened
on that day at the relevant time. She stated that
she does not know whether he is suffering from Polar
disorder with manifacie disease. She has denied that
nothing has happened as deposed by her about conduct
of accused on 17.09.2014. She also denied that what
is committed by the accused is not committed by him
with his sound condition. Thus, nothing is found in
favour of the accused in the cross-examination of::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 30 ) criapl148.17PW-3 mother of the victim girl and she has
corroborated the evidence of the victim girl on the
material particulars of incident and her evidence is
in the nature of previous statement made to her by
the victim girl about the incident admissible under
Section 157 of the Evidence Act.15. The evidence of PW-2 father of the victim
girl is that on the day of incident his wife (PW-3)
narrated about the incident that has taken place
with the victim girl as referred earlier while
referring the evidence of victim girl. So also, he
has stated that he asked the victim girl as to who
was said person and she had given description of the
accused. Moreover, he stated that he came to know
from the victim girl that similar incident has taken
place with daughter of their house maid Gangabai
and said Gangabai also told him that the said person
resides in Vidyut Nagar, Ambajogai and his name is
Laxmikant Kulkarni. Thereafter, he had gone to the
accused and the victim girl had identified him. Then
he lodged the complaint (Exh.27) on 19.09.2014. In
the cross-examination on behalf of the accused he
has stated that house of the accused is at a
distance of about 400 to 500 mtrs. from his house.
He has denied that he is deposing false that his::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 31 ) criapl148.17daughter narrated the incident to her mother and her
mother narrated the incident to him. He has stated
that he has no idea whether accused was suffering
from Polar disorder with manifacie. Thus, nothing is
found in favour of the accused in the cross-
examination of father of the victim. Exh.55
statement under Section 164 of the Code of Criminal
Procedure recorded by JMFC, Ambejogai of PW-2 father
of the victim girl also shows that the incident as
deposed by the victim girl has taken place on
17.09.2014 and he came to know about the said
incident from his wife and that on enquiry the
victim girl had told him description of the accused.16. From the evidence of father of the victim
girl, it is clear he came to know about the incident
from his wife and he has no direct knowledge of the
incident. On the basis of evidence of PW-2 father of
the victim, it can be said that he lodged the
complaint (Exh.27) in the Police Station (City)
Ambejogai and that the victim girl had given him
description of the accused.17. For the forgoing reasons, on the basis of
evidence of victim girl (PW-3) and her statement
(Exh.54) recorded by JMFC, Ambejogai and evidence of::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 32 ) criapl148.17PW-3 mother of the victim girl, I hold that the
prosecution has established the ingredients of
offences of outraging modesty punishable under
Section 354, offence of sexual harassment punishable
under Sectiion 354-A of the IPC and the offence of
sexual assault as defined under Section 7 punishable
under Section 8 of the POCSO Act. Moreover, on the
basis of said evidence, it can be said that
prosecution has established the offence of
aggravated sexual assault under Section 9 of the
POCSO Act punishable under Section 10 of the POCSO
Act. So also, on the basis of said evidence, it can
be said that the prosecution has proved the offence
of sexual harassment of the victim girl under
section 11 which is punishable under Section 12 of
the POCSO Act. Another aspect to be noted is that
since the defence of the accused is of unsound mind
at the relevant time he does not deny the happening
of the incident.18. Learned counsel appearing for the accused
submitted that the prosecution has not proved that
the alleged act attributed to the accused amounts to
aggravated sexual assault within the meaning of
Section 9 of the POCSO Act and therefore, finding of
the trial Court that the prosecution has proved::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 33 ) criapl148.17offence punishable under Section 10 of the POCSO Act
is not correct. Section 9(m) of the POCSO Act says
that whoever commits sexual assaults on a child
below twelve years is aggravated sexual assault.
Sexual assault is defined under Section 7 of the
POCSO Act which says that 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. As referred
earlier the victim girl was aged 10 years on the day
of incident i.e. 17.09.2014, the said fact is not
disputed by the accused. Thus, it is obvious that on
the day of said incident the victim girl was below
12 years. As mentioned earlier, while referring the
evidence of victim girl, she deposed that the
accused has touched her breast and caught hold her.
The said act of the accused amounts to sexual
assault. Therefore, it can be very well said that
the accused has committed sexual assault on the
victim who is a child below 12 years of age and
therefore, the said act of the accused amounts to
aggravated sexual assault within the meaning of::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 34 ) criapl148.17section 9 of the POCSO Act which is punishable under
Section 10 of the POCSO Act. Therefore, the argument
advanced by the learned counsel for the accused that
the prosecution has not proved the offence under
Section 10 of the POCSO Act or that the act alleged
against the accused does not amount to aggravated
sexual assault is not accepted.19. Now, it is to be seen whether the accused
has established that his act does not amount to an
offence by reasons of his unsoundness of mind at the
time of commission of offence and as such his case
falls under the general exception in Section 84 of
the IPC. It is settled law that the burden of
proving the existence and circumstances bringing the
case within purview of Section 84 lies upon the
accused under Section 105 of the Indian Evidence
Act. To prove above facts the accused has adduced
evidence of his son Prasad Kulkarni (DW-1) and
Doctor Ashok Giri (DW-2) and has relied upon
prescription and letter given by Doctor Giri
respectively Exh.61 and 62.20. Now coming to the evidence of Prasad
Kulkarni (DW-1) who is admittedly son of the
accused. He has stated that in the year 2014 the::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 35 ) criapl148.17accused his father was 64 years and in May, 2014 the
accused was residing with him at Hingoli. According
to him, his father used to scold without any reason,
remain in anger continuously for two to three days
and suddenly become very calm and cool, talking
irrelevantly, and used to become calm and quite, but
at that time they could not recollect. He stated
that on 18.07.2014 at Hingoli his father outraged
modesty of one girl of 14 to 15 years. They met
parents of the victim and they had forgiven his
father and there was possibility of psychological
problem to his father, therefore, he took his father
to Dr. Giri on 21.07.2014. Dr. Giri examined his
father and advised him to take his father to Dr.
Kalkar, Psychiatric of Akola and given medicine for
seven days and again called for follow up after
seven days. But, as the delivery date of his wife
was coming soon and positive effect of medicine
observed on his father, he did not take his father
to any doctor. Dr. Giri gave him a referral letter
of Dr. Kalkar. Thereafter, for religious function of
his son he came to Ambajogai on 09.09.2014 alongwith
his family. Then they came to Hingoli and his father
remained at Ambajogai with his another brother
Mayur. On 18.09.2014 he came to know from his::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 36 ) criapl148.17brother Mayur that his father again outraged modesty
of one girl. According to him at that time medicine
of his father was over. The incidents of outraging
modesty of the girls at the hands of his father took
place due to psychological problem of his father. In
the cross-examination on behalf of the prosecution
he has admitted that in spite of advise given by
Dr. Giri, till date he had not taken to his father
to any Psychiatric Doctor and on the basis of advise
of doctor he has deposed that the incident of
outraging of modesty of girls at the hands of his
father took place due to psychological problem of
his father. He has denied that he is deposing false
that incident of outraging of modesty which took
place at the hands of his father, took place, due to
his psychological problems. He admitted that as his
father was mentally and physically fit, therefore,
he could stay with his brother independently. As
DW-1 is not Psychiatric his evidence that incident
took place due to psychological problem of his
father is not believable. Moreover, as he has
admitted that his father was mentally and physically
fit and therefore he was independently staying with
his brother it cannot be said on the basis of
evidence of DW-1 that incident in the present case::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 37 ) criapl148.17of 17.09.2014 took place while the accused his
father was unsound.21. The evidence of Dr. Giri (DW-2) is that on
21.07.2014 the accused had come to him and he
collected history of patient. He felt that patient
was suffering from depression disorder, parimania
hypomania and he advised him to take medicine and to
undergo some tests including CBC, blood sugar lever,
KFT and again asked the accused to report him after
five days. He stated that on 28th when accused
visited Hospital as there was no any positive
improvement, he referred the accused to Dr.Kelkar
from Akola by letter. The photo copy of which is at
Exh.62. He stated that Mania and hypermania are
kinds of mental illness. Bipolar disorder includes
the patient's extreme mood changes. The patient is
not in a position to understand the consequences of
his conduct. In the cross-examination on behalf of
the prosecution he stated that he is not expert
Psychiatric. He admitted that his hospital is not
equipped with Psychiatric's In-door Patient
Department. He admitted that whatever may be the
test advised by him to the accused are general and
routine. He admitted that in order to conclude exact
diagnosis of psychological ailment or disease, a::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 38 ) criapl148.17specific tests are to be performed by expert
Psychiatric. He admitted that he has referred the
accused to Psychiatric by observing his abnormal
behavior only. He admitted that one cannot conclude
that the person having abnormal behavior can
understand a specific act and its consequences and
otherwise. He has denied that due to increase in
blood pressure the symptoms of abnormal behavior can
be observed in a person. He denied that he is
deposing false that he has examined the patient and
issued prescription and accordingly he (accused) had
taken treatment in order to get benefit of the
patient in the form of acquittal. He has no idea
what kind of treatment was advised by Dr. Kelkar, to
accused and similarly what kind of test was
performed by Dr. Kelkar. He denied that the patient
is having no any kind of mental disorder and he is
deposing falsely at the instance of accused. In the
absence of evidence of expert doctor the evidence of
Dr.Giri is not sufficient to state that the accused
was suffering from mental ailment and he was of
unsound mind on the date of incident i.e. on
17.09.2014.22. In view of the order dated 10.08.2017 of
this Court in the Criminal Application No. 3739/2017::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 39 ) criapl148.17the Superintendent, Nashik Road, Central Prison,
Nashik along with his report dated 04.09.2017
submitted photo copy of medical certificate dated
01.09.2017 and conclusion in the said certificate
shows that the patient is suffering from moderate
depression and advised regular treatment. But as
said certificate was called to see whether accused
needs any specialized treatment and as it appears
that opinion of the expert was solicited by the
accused with a view to consider his case for
releasing him on bail, conclusion and observation in
the medical certificate dated 01.09.2017 are of no
help to the defence of the accused that at the
relevant time of incident in September, 2014 he was
of unsound mind.23. For the reasons discussed above, above
referred evidence adduced on behalf of the accused
is not sufficient to infer that at the time of
commission of offence the accused by reason of
unsoundness of mind, was either incapable of
knowing, the nature of act or that he was doing what
is either wrong or contrary to law. Therefore, I
hold that the accused has failed to prove his
defence that the act alleged against him does not
amount to an offence by reasons of his unsoundness::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 40 ) criapl148.17of mind at the time of commission of offence and as
such his case falls under general exception under
Section 84 of the IPC. The trial Court has rightly
held so. In view of this it can also be said that
the accused has not rebutted the presumption under
Section 29 of the POCSO Act, in favour of the
prosecution about his committing the offences under
Sections 7 and 9 of the POCSO Act.24. In view of above discussion, I hold that
the prosecution has proved the offences under
Sections 354, 354-A of the IPC and Section 8,10 and
12 of the POCSO Act against the accused beyond
reasonable doubt. The trial Court has rightly held
so and rightly convicted and sentenced the accused
for the said offences. The victim girl was aged 10
years at the time of incident and as such she was a
child within the meaning of Section 2-d of the POCSO
Act. As discussed earlier in detail, the prosecution
has established the ingredients of offences
punishable under Sections 8,10 and 12 of the POCSO
Act and therefore, it cannot be said as argued by
the learned counsel for the accused that only
offence under Section 354 of the IPC is proved
against the accused. The decisions referred earlier::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
( 41 ) criapl148.17relied upon by the learned counsel for the
appellant/accused are not applicable to the present
case, since the facts of the said decisions are
different than the present case, to state that the
prosecution has not proved the aforesaid offences
against the accused. Considering the punishment
provided for the offences under Sections 354 and
354-A of the IPC and Sections 8,10 and 12 of the
POCSO Act the sentence recorded against the
appellant/accused for the said offences by the trial
Court as per the impugned judgment and order is
correct. Therefore, argument advanced by the learned
counsel for the accused that the sentence be reduced
to the period undergone by the accused is not
acceptable.25. In view of above discussion, there is no
ground to interfere with the impugned judgment and
order. Therefore, the appeal being devoid of merits,
the same is liable to be dismissed. Accordingly, the
appeal is dismissed.[S.M.GAVHANE,J.]
VishalK/criapl148.17
::: Uploaded on - 19/12/2018 25/12/2018 21:52:19 :::
