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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
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Mrs. Sonali Saware / Gadhwe (Appointed) counsel for the appellant.
Shri. N. H. Joshi, Addl. Public Prosecutor for respondent.
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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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