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Nishant S/O. Prabhakarrao Dhande … vs State Of Maharashtra Thr. Police … on 20 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL 319 OF 2017

Nishant s/o. Prabhakarrao Dhande,
Aged about 31 years, occ. Nil,
R/o. Buddhwada Near Corporation
School, amravati Presently in Central
Prison, Amravati …APPELLANT

VERSUS

The State of Maharashtra,
Through Police Station Officer
Police Station Rajapeth, District Amravati …RESPONDENT

——————————————————————————————-
Mrs. Sonali Saware / Gadhwe (Appointed) counsel for the appellant.
Shri. N. H. Joshi, Addl. Public Prosecutor for respondent.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE: 20 th
March, 2018.

ORAL JUDGMENT

The appellant is challenging the judgment and order

dated 5.11.2015 rendered by the Additional Sessions Judge,

Amravati in Sessions Trial 266 of 2013, by and under which, the

appellant – accused is convicted for offence punishable under section

4 of Protection of Children from Sexual Offences Act, 2012

(“POCSO” Act) and is sentenced to suffer rigorous imprisonment for

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seven years and to payment of fine of Rs.5,000/-.

2 Heard Smt. Sonali Saware / Gadhwe, the learned

counsel for the appellant and Shri N.H. Joshi, the learned Additional

Public Prosecutor for the respondent / State.

3 The prosecution case is that the accused was a friend of

the father of the victim, who was then aged 14 years and studying in

7th standard. The victim was studying in her house at 6.00 p.m. On

25.8.2013, the accused came and had a word with her father and

then left. The father of the victim had meal and left the house to

work at the floor mill. After some time, the accused again came to

the house of the victim. He had brought two liquor bottles which he

consumed at the house of the victim and then asked the mother of

the victim to serve meal. The accused had meal and slept at the

house of the victim. He woke up at 8.00 p.m. or thereabout, came

close to the victim, removed her clothes, removed his underwear and

embraced the victim. The accused pressed breasts of the victim,

made her lay on the floor, and then inserted his penis in her mouth.

The victim raised an alarm and so did her mother who had entered

the house after finishing the work of washing utensils outside the

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house. The accused asked the victim to come with him to Shegaon

and Pune and stay in a room. The father of the victim returned at

10.00 p.m. to whom the incident was narrated. The next day, the

victim narrated the incident to her school teacher Sarita Raut and

after the school hours alongwith Sarita Raut and parents lodged a

report at Police Station, Rajapeth, Amravati, on the basis of which,

offence punishable under section 377 of Indian Penal Code (“IPC” for

short) and under section 3 and 4 of POCSO Act was registered.

Investigation ensued, upon completion thereof charge sheet was

submitted in the Court of Judicial Magistrate First Class, Amravati

who committed the proceedings to the Sessions Court. The learned

Sessions Judge framed charge (Exh. 2). The accused abjured guilt

and claimed to be tried in accordance with law. The defence of the

accused is total denial and false implication. In response to question

28 in the statement recorded under section 313 of the Code of

Criminal Procedure, the accused states that he lent Rs. 3,000/- to the

father of the victim and he is falsely implicated since he demanded

the refund of the said amount.

4 The prosecution has examined three witnesses who are

PW 1 victim, PW 2 the mother of the victim and PW 3 the

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Investigating Officer.

5 In view of the prosecution case, it is axiomatic that the

material witness is the victim herself and corroboration is sought by

the prosecution in the evidence of her mother who is examined as

PW 2. Smt. Sonali Saware, the learned counsel for the accused

would submit that the evidence of PW 1 is not confidence inspiring

and her version that the accused inserted his penis in her mouth is

not at all believable. The learned counsel would submit that the

presence of the victim in her house at the relevant time is doubtful.

The defence of false implication is more than probabilized on the

touchstone of preponderance of probabilities, is the submission. Per

contra, the learned Additional Public Prosecutor Shri N.H. Joshi

would submit that the conviction can rest on the sole testimony of

the victim. Her evidence is implicitly reliable and confidence

inspiring. The defence that the accused demanded refund of the

hand loan of Rs. 3,000/- from the father of the victim and therefore,

he is falsely implicated, deserves rejection, is the submission. The

learned APP would submit that the father of a minor girl is not likely

to implicate the accused using his minor girl as a tool only because

according to accused he demanded refund of hand loan of Rs.

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3,000/-. The evidence on record is not suggestive of strained

relationship between the family of the victim and the accused, is the

submission.

6 It is not in dispute that the victim was aged 14 years and

was a child within the meaning of section 2(d) of the POCSO Act.

Her deposition is that on 25.8.2013, the accused came to her house,

had a talk with her father and then left. After the father of the victim

left for work, the accused again came to her house with two liquor

bottles, consumed the liquor and asked her mother to serve meal.

The accused then slept at the house of the victim for one hour and

then awoke, came close to the victim and pressed her breasts. The

accused removed her clothes, removed his own underwear, sat on

her head and inserted his penis in her mouth. At that time, the

mother of the victim was washing utensils, the victim shouted, her

mother who was carrying the washed utensils came inside the house

and slapped the accused. The accused asked the victim to

accompany him to Shegaon and Pune and left. The victim states that

after her father returned at 10.00 pm, the incident was disclosed to

him and report Exh. 16 was lodged at the Rajapeth Police Station. In

the cross examination, it is suggested to her that she had gone to the

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house of one Khatri in the evening to wash utensils and returned

home in the night. The victim admits that she used to go to the

house of Khatri to wash utensils. She however denies the suggestion

that on the date of the incident, she had been to the house of Khatri

in the evening and returned home at night. The defence, which is

referred to in the statement recorded under section 313 of the Code

of Criminal Procedure, is put to her to suggest false implication. It is

then suggested to the victim that the accused is working with

goldsmith and used to bring golden nose tops (besar) and used to

give them to the mother of the victim to sell. It is suggested that an

amount of Rs. 3,000/- was due and payable by the mother of the

victim to the accused as sell proceeds of the said ornaments. These

suggestions are denied. It is then suggested that when the victim

suffered a fracture to hand, her father borrowed Rs. 3,000/- from the

accused. The accused used to visit her house to demand refund of

the said amount and used to speak loudly. This suggestion is also

denied by the victim. She denies the suggestion that on the date of

the incident, she attended tuition. It is elicited in her cross-

examination that after the incident neither her mother nor her father

abused or assaulted the accused. This endeavor of the defence was

to bring on record an inconsistency since in the examination in chief,

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the victim stated that the accused was slapped by her mother.

7 The evidence of PW 1 is broadly consistent with the

contents of the First Information Report. Her statement is recorded

under section 164 of the Code of Criminal Procedure. The

Investigating Officer is examined as PW 3. No attempt is made by

the defence to bring on record much less to prove any omission

amounting to contradiction in the evidence of the child victim

vis-a-vis the First Information Report or the statement recorded

under section 164 of the Code of Criminal Procedure.

8 PW 2 is the mother of the prosecutrix. While recording

her demeanour, the learned Sessions Judge observed that “the

witness appears to be a little mentally dull”. She has deposed that

she is an eyewitness to the incident. She was cleaning utensils when

she heard the victim shouting. She went to the room where the

prosecutrix was studying and saw the accused inserting his penis in

the mouth of the child victim. The accused was sitting on the chest

of the child victim, is the deposition. The suggestion given to PW 2 is

that her husband used to borrow money from the accused and that

when her husband suffered fracture, the accused gave money for

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treatment. This suggestion is inconsistent with the suggestion given

to PW 1 that Rs.3,000/- was given when PW 1 fractured her hand.

Be that as it may, the suggestion is denied by PW 2. She has also

denied the suggestion that she used to sell nose ornaments (besar)

supplied by the accused and that she owed money to the accused. It

is elicited that on the date of the incident, the victim went to the

house of Khatri at 5.30 p.m. and returned at 9.30 p.m.. The learned

counsel for accused vehemently submits that the said admission rules

out the presence of the child victim at the time and date of the

incident. The submission is noted only for rejection. The evidence of

the child victim that she did not go to Khatri’s house and that she

was very much present at the time and on the date of the incident is

clinchingly reliable. The demeanour noted is that PW 2 is a bit dull

mentally. Notwithstanding the said admission that PW 1 returned at

9.30 p.m., there is cogent evidence on record that the child victim

was at home at the time and on the date of the incident. Absolutely

minor and insignificant omissions brought on record, are even other

wise not proved. On a holistic appreciation of the evidence of PW 2,

notwithstanding one or two minor inconsistencies with the evidence

of PW 1, PW 2 supports and corroborates the core and substratum of

the evidence of PW 1 that the accused inserted his penis in the

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mouth of PW 1.

9 The learned counsel Smt. Sonali Saware invited my

attention to the Division Bench Judgment of this Court in Vishal @

Sagar Vasant Waghmare Ors…Vs…The State of Maharashtra,

2015 ALL MR (Cri.) 301 to buttress the submission that in the teeth

of evidence on record, the statutory presumption under section 29 of

the POCSO Act is not activated. The Division Bench was confronted

with a situation where the prosecutrix made inconsistent and

irreconcilable statements in the examination in chief and in the cross

examination. The prosecutrix initially declined to identify the

accused, then at the behest of the prosecutrix identified the accused

and again did a volte face in the cross examination on behalf of the

accused and declined to identify the accused and stated in

categorical terms that the accused were not the offenders. The father

of the prosecutrix did not support the prosecution. It was in view of

the nature of evidence on record that the Division Bench observed

that the statutory presumption under section 29 of POCSO Act is not

attracted. Smt. Sonali Saware, the learned counsel then brought to

my notice judgment of a learned Single Judge in Sachin s/o.

Baliram Kakde …vs.. The State of Maharashtra, 2016 ALL MR

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(Cri.) 4049. The said judgment is rendered in the facts of the case.

The prosecution case was that the rape of the prosecutrix was

videographed and threats to make the video clip public were issued.

The learned Sessions Judge has held that the prosecution case that

the victim was stupefied was belied by the video clip and that in view

of the medical evidence, the presumption under section 29 of POCSO

Act stands rebutted. I am afraid, neither of the two decisions

referred to by the learned counsel take the case of the appellant any

further. The evidence of the child victim is implicitly reliable and the

irresistible inference is that the prosecution has proved foundational

facts and the statutory presumption under section 29 of the POCSO

Act is activated.

10 In this view of the matter, this Court must necessarily

take note of the statutory presumption under section 29 of the

POCSO Act. The foundational facts having been established, the

burden shifted on the accused to prove that he did not commit the

offence. This burden is not discharged.

11 I do not see any infirmity in the judgment and order

impugned.

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The appeal is sans merit and is rejected.

12 Fees of the appointed counsel are quantified at Rs.5,000/-.

JUDGE

RSB

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