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Nandkishor S/O. Prabhudayal … vs State Of Maharashtra Thr. Asst. … on 4 May, 2018

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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reasonable doubt.

11] The appeal is sans substance and is rejected.

JUDGE

NSN

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