apeal233.17.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.233 OF 2017
Nandkishor s/o Prabhudayal Bawankar,
Aged about 25 yrs. Occu: Private,
R/o 22, Pathan Layout, Belatardi,
Dist. Nagpur.. ……. APPELLANT
…V E R S U S…
State of Maharashtra,
through Asst. Commissioner of Police,
Sakkardara Division, Nagpur. ……. RESPONDENT
——————————————————————————————-
Shri Uday Dable, Advocate for Appellant.
Shri S.S. Doifode, APP for Respondent-State.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: th
4 MAY, 2018.
ORAL JUDGMENT
1] The appellant is aggrieved by the judgment and order
dated 24.11.2014 rendered by the Special Court under the
Protection of Children from Sexual Offences Act, 2012, Nagpur in
Special Child Protection Case 6/2013, by and under which, the
appellant-accused is convicted for the offence punishable under
Section 376 (2)(i) of the Indian Penal Code and Section 5(m) and
6 of the Protection of Children from Sexual Offences Act, 2012
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 2
(for short “POCSO Act”) and Section 3 (1)(xi) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
(for short “Atrocities Act”) and is sentenced to suffer rigorous
imprisonment for ten years and to payment of fine of Rs.15,000/-
for offence punishable under Section 6 of the POCSO Act and is
sentenced to suffer rigorous imprisonment for eight months and to
payment of fine of Rs.1000/- for the offence punishable under
Section 3 (1)(xi) of the Atrocities Act. No separate sentence is
imposed for the offence punishable under Section 376 (2)(i) of the
Indian Penal Code.
2] The case of the prosecution as is unfolded during the
course of the trial is thus:
P.W.3 Smt. Sangeeta w/o Hariram Bhalvi lodged
report Exh.31 at Police Station Hudkeshwar, Nagpur alleging that
the accused subjected her minor daughter aged 12 years to
forcible sexual intercourse on 03.03.2013. She stated in the report
that she and her husband Hariram Bhalavi are labour and reside in
rented house at Pathan Layout, Beltarodi, Nagpur with two sons
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 3
and the victim. The victim is studying in the 4th Standard at Kanya
Ashram School, Shiwani, District Balaghat, Madhya Pradesh.
Since the victim was not keeping well, her parents brought her
home two weeks prior to the incident. On the fateful day, which
was Sunday, P.W.1 and her husband left home at 09:30 a.m. or
thereabout for work and the victim and her two brothers were at
home. P.W.3 and her husband returned home at 07:00 p.m. and
after having meals went to bed. On 04.03.2013 at 09:00 a.m. the
victim disclosed that she is suffering pain in the chest. P.W.3
examined the chest of the victim and noticed nail marks.
She inquired from the victim and was told that Nandkishor alias
Golu Bawankar, residing in the neighbourhood, came to the house
of P.W.3 at 02:00 p.m. on 03.03.2013, took the victim to his house
and after tying both hands of the victim with dupatta (stole)
subjected the victim to sexual intercourse. Nandkishor alias Golu
threatened the victim not to disclose the incident to anybody.
The victim did not disclose the incident to P.W.3 on the fateful day,
due to fear.
3] On the basis of report Exh.31 offence punishable
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 4
under Section 376 (2)(i) of the IPC and Section 4 and 6 of the
POCSO Act and Section 3 (1)(xi) of the Atrocities Act were
registered against the accused. Upon completion of the
investigation charge-sheet was submitted in the court of Special
Court, Nagpur. The learned Special Judge framed charge (Exh.9)
for offence punishable under Section 376 (2)(i) of the IPC, offence
punishable under Section 5 (m) of the POCSO Act and Section 3
(1)(xi) of the Atrocities Act against the accused, who abjured guilt
and claimed to be tried. The defence of the accused is of total
denial and false implication.
4] Shri Uday Dable, the learned counsel for the accused
submits that the identity of the perpetrator of the crime is in
serious doubt. The next submission is that the evidence on record
is not confidence inspiring and is marred by inter se inconsistencies
and embellishment. The final submission is that offence
punishable under Section 376 (2)(i) and 5(m) of the POCSO Act is
not made out since there is no evidence of penetrative sexual
assault and at the most the accused can be convicted for offence
punishable under Section 8 of the POCSO Act. Per contra, the
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 5
learned A.P.P. Shri Doifode submits that the identity of the accused
as perpetrator of the crime is established by clinching evidence on
record. The medical evidence conclusively proves that the victim
was subjected to penetrative sexual assault, is the submission.
The learned A.P.P. would then submit that the inter se
inconsistencies are minor and do not destroy the credibility of the
prosecution version.
5] The victim was aged 11 years and 5 months as on the
day of the incident and therefore, a child within the meaning of
section 2 (1)(d) of the POCSO Act. Shri Uday Dable, in all
fairness, did not argue to the contrary. The submission that the
accused is not identified deserves to be noted only for rejection.
The victim has identified the accused present before the court as
Nandkishor alias Golu. It is not in dispute that the accused is a
neighbour and resides two houses away from the residence of the
victim. It is suggested to the victim that Golu and Nandkishor
Bawankar are two different persons, which suggestion is denied.
The oral report lodged by P.W.3 Smt. Sangeeta Bhalavi – Exh.31
refers to the accused as Nandkishor alias Golu Bawankar. P.W.3 has
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 6
deposed that the name of the accused is Nandkishor alias Golu
Bawankar. The defence is not disputing that the accused is a
neighbour. The final nail in the coffin of the defence is the
Vakalatnama Exh.8 signed by the accused in which the name of
the accused is written as Nandkishor @ Golu s/o Prabhudayal
Bawankar. Be it noted, that in the statement under Section 313 of
the Criminal Procedure Code, the opening sentence is “My name is
: Nandkishor alias Golu Prabhudayal Bawankar”. No objection was
raised by the defence to referring to the accused as Nandkishor
alias Golu Bawankar. I do not find any substance in the submission
that the identity of the accused as perpetrator of the crime is in
doubt.
6] P.W.6 – victim has deposed with clarity and conviction.
Her testimony is not shaken in the lengthy cross-examination.
She has deposed that on the day of the incident when she and her
two brothers were at home, the accused came to her house and
told her that Dadi (the reference is to the mother of the accused)
had called the victim. The victim told the accused that she would
come after her mother returned home. Since the victim was not
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 7
inclined to accompany the accused, the accused caught hold of her
hand and forcibly took her to his house. The victim was taken in
the back side room under the pretext that Dadi is in the back
room. However, there was nobody in the said room. The accused
closed the front door of the house, made the victim sit on the sofa,
tied her hands by the dupatta (stole) and subjected the victim to
forcible sexual intercourse. The victim has deposed that her
clothes were removed, the accused undressed and inserted his
male organ in the private part of the victim. The accused scratched
the chest of the victim with his nails. The victim went home but
not before being threatened not to disclose the incident to
anybody. The victim did not disclose the incident to her brother
Sumit, who asked why she was weeping. The victim disclosed the
incident to her mother at 10:00 a.m. or thereabout the next day.
In the cross-examination, an endeavour is made to demonstrate
that the version of the victim that she was forcibly taken from the
house to the house of the accused is improbable. The response of
the victim to the suggestions was to volunteer that at the relevant
time people in the neighbourhood were sleeping in their houses.
It is elicited in the cross-examination that at the time of recording
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 8
of the statement at the Police Station Asha Kadbe was present. It is
suggested to the victim that since the accused had quarreled with
the tenants of one Chhaya Kadbe, the said Chhaya had threatened
to implicate the accused in false case. The victim however, denies
the suggestion that she is falsely implicating the accused at the
instance of Chhaya Kadbe. Few omissions are brought on record
which do not touch the core of the testimony.
7] The submission of Shri Uday Dable that it is
inconceivable that if the victim was forcibly taken to the house of
the accused, such act would go unnoticed, overlooks the fact that
the house of the accused was hardly one or two houses away.
The incident occurred in the afternoon in the month of March and
it is possible, as stated by the victim, that the neighbours were
resting in the house. Even if it is assumed that the victim has
indulged in some exaggeration and that she was not literally or
physically forced to accompany the accused and that she
accompanied the accused to his house succumbing to the sheer
insistence of the accused, there is no reason to disbelieve the
testimony of the victim, which is otherwise implicitly reliable and
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 9
confidence inspiring and more than amply corroborated by the
disclosure made to her mother, the history narrated to the Medical
Officer and the injuries detected on her person.
8] P.W.1 Smt. Rupali w/o Kuldeep Deshpande examined
the victim at 04:00 p.m. on 04.03.2013 and recorded the history
as narrated by the victim. In the medical examination report
Exh.21 it is recorded that Golu subjected the victim to forcible
sexual intercourse. The history as narrated by the victim to the
Doctor is admissible under Section 6 of the Indian Evidence Act.
In the cross-examination of P.W.1 Dr. Deshpande there is absolutely
no challenge to her deposition that she recorded the history as
narrated by the victim. P.W.1 noticed nail abrasions on the breast
of the victim, bruises on both the breasts which were appearing
like finger marks and were red in colour. The hymen was torn and
there was edema by the side of hymen. P.W.1 Dr. Deshpande has
deposed that the injuries were consistent with recent sexual
intercourse – assault. The evidence of P.W.1 Dr. Deshpande has
gone virtually unchallenged. The nature of the injuries corroborate
the evidence of the victim. Shri Uday Dable argued that the Doctor
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 10
has not specified whether the tear to the hymen was old or fresh.
Shri Uday Dable, is right in so submitting. However, P.W.1 has
deposed that the hymen was torn and there was edema or swelling
by the side of the hymen. This evidence has gone unchallenged.
It is trite law that the court is not obligated to seek corroboration if
the evidence of the prosecutrix or victim is confidence inspiring.
In the present case, the evidence of the victim is implicitly reliable.
The version of the victim is more than amply corroborated by the
medical evidence. It is not suggested to the Doctor that the injury
to the hymen was not fresh injury. Even if it is assumed arguendo,
that it is not proved that the injury to hymen was fresh, in view of
the swelling besides the hymen and injuries noticed injury on the
breast, the evidence of the victim that she was subjected to
penetrative sexual assault is trustworthy.
9] P.W.5 Sumit s/o Hariram Bhalavi is the elder brother
of the victim who has deposed that the name of the accused is
Nandkishor Bawankar and he is also known as Golu. P.W.5 has
deposed that at 02:00 p.m. on the day of the incident Golu came
to his house and took Poonam to his house on the pretext that she
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 11
was called by Dadi. Nothing is elicited in the cross-examination to
disbelieve the version of Sumit that the accused took the victim to
his house. Similar is the deposition of P.W.2 Smt. Chhaya Kadwe,
to which there is no challenge in the cross-examination. P.W.8
Smt. Sarika Choure did not support the prosecution and was
declared hostile. However, she did state, before she was declared
hostile, that on the day of the incident at 02:00 p.m. the accused
was taking one girl aged 11 years to his house. The prosecution
has clinchingly established that the accused took the prosecutrix to
his house at 02:00 p.m. on the day of the incident.
10. The defence of false implication is not probablized
even on the touchstone of preponderance of probabilities. Nothing
is brought on record to substantiate the defence of false
implication. The prosecution having proved the foundational facts,
statutory presumption under Section 29 of the POSCO Act stands
activated. The defence made no endeavour to discharge the
reverse onus. Even de hors the statuary presumption, the evidence
adduced by the prosecution is cogent and confidence inspiring and
proves the complicity of the accused in the crime beyond
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
apeal233.17.J.odt 12
reasonable doubt.
11] The appeal is sans substance and is rejected.
JUDGE
NSN
::: Uploaded on – 04/05/2018 05/05/2018 01:55:39 :::
