1 apeal264.17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.264 of 2017

1) Vishal Dagdu Gawai,
Aged about 21 years,
Occupation – Agriculturist,

2) Sau. Rekha w/o Sheshrao Gawai,
Aged about 35 years,
Occupation – Household duties,

Both the above are R/o Satali,
Tahsil Jalgaon Jamod,
District Buldhana. …. APPELLANTS

VERSUS

The State of Maharashtra,
through Police Station Officer,
Jalgaon Jamod, Tq. Jalgaon Jamod,
District Buldhana. …. RESPONDENT

__

Shri S.V. Sirpurkar, Counsel for the appellants,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 23
MARCH, 2018.

rd

ORAL JUDGMENT :

The appellants are challenging the judgment and order

dated 28-4-2017 rendered by the learned Special Judge, Khamgaon in

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Sessions Trial 108/2014, by and under which the appellant-accused

Vishal Dagdu Gawai is convicted for offence punishable under Section

376(2)(i) and (n) of the Indian Penal Code (“IPC” for short) and is

sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs.1,000/- and is further convicted for offence

punishable under Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (“POCSO Act” for short) and is sentenced to suffer

rigorous imprisonment for ten years and to payment of fine of

Rs.1,000/- and appellant-accused Rekha Sheshrao Gawai is convicted

for offence punishable under Section 376(2)(i) and (n) read with

Section 109 of the IPC and is sentenced to suffer rigorous

imprisonment for ten years and to payment of fine of Rs.1,000/- and is

further convicted for offence punishable under Section 6 read with

Section 17 of the POCSO Act and is sentenced to suffer rigorous

imprisonment for ten years and to payment of fine of Rs.1,000/-.

2. The prosecution case :

The victim is residing with her parents, brother and sister

at village Satali and was studying in 10th standard in Bhai Bhaskarrao

Shingne Maharashtra Vidyalaya, Gadegaon Khurd. The victim and the

accused are related and reside in the same locality.

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In March or April of 2014, the victim was alone at her

home since her parents were at work as agricultural labourers and her

brother and sister had gone to play. The day was Sunday. In the

afternoon, accused Rekha, who is the aunt of accused Vishal, came to

the house of the victim and asked the victim to accompany her to her

house to meet accused Vishal. The victim refused, however, Rekha

caught her hands and took the victim to her house. Rekha then called

accused Vishal who resided in the adjacent house. Vishal started

making sexual advances, which the victim resisted. Rekha asked the

victim to allow Vishal to do what he wanted to do and told the victim

that nothing would happen if the act was done only once. Therefore,

the victim did not protest and accused Vishal committed sexual

intercourse with her. After the act, accused Vishal threatened to kill

the victim or her parents if the incident is disclosed to her parents.

A month or two after the said incident accused Rekha

came to the house of the victim in the morning and told the mother of

the victim that since women labourers were not available for plucking

cotton in her field, she should send the victim to her field for plucking

raw cotton. The victim was not inclined. However, her mother

convinced her and sent her to the field of accused Rekha. The victim

went to the field of Rekha at 10-30 a.m. and alongwith accused Rekha

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started plucking raw cotton. Between 12-00 to 12-30 p.m. the accused

came to the field, carried the victim to some distance in the cotton crop

and committed sexual intercourse. The victim returned home in the

evening, contemplated disclosing the incident to her parents but did

not do so due to the fear of accused. Again after fifteen to twenty days

accused Vishal committed sexual intercourse with the victim at the

house of accused Rekha.

The victim missed menses, initially consulted a doctor at

village Khandwi alongwith her mother who could not diagnose that she

was pregnant. The victim was taken by her mother to one Dr. Gothi at

Nandura who did her sonography and disclosed that the victim was

carrying foetus of five to six months. The victim went to Government

Hospital at Akola with her grandmother and father for abortion and

was informed that since the foetus was of five to six months abortion

was not an option. The victim was admitted in the said hospital for

same days, the Medical Officer summoned Members of Child Welfare

Committee, Akola who contacted the Members of the Child Welfare

Committee, Buldhana who took the victim to Dr. Smt. Agashe for

examination. Dr. Smt. Agashe referred the victim to Dr. Smt.

Chinchole for sonography who told the victim the date of the delivery.

It was then that the victim went to Buldhana (City) Police Station

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alongwith her father, grandfather, grandmother and members of

Balkalyan Samiti and lodged oral report (Exhibit 32).

Investigation ensued. In the month of November 2014,

the victim gave a birth to a female child.

On the basis of the oral report (Exhibit 32) and printed

first information report (Exhibit 33), offence punishable under Section

376 read with Section 34 of the IPC and Sections 4, 8 and 12 of the

POCSO Act was registered. The D.N.A. test which was conducted

conclusively established that accused Vishal and victim were the

biological parents of the child born to the victim. Upon completion of

the investigation, charge-sheet was submitted in the Sessions Court.

The learned Special Judge framed charge (Exhibit 24)

against accused Vishal for offence punishable under Section 376(i) and

(n) of the IPC and Sections 6 of the POCSO Act and accused Rekha for

offence punishable under Section 376 read with 109 of the IPC and

Section 6 read with Section 17 of the POCSO Act. The accused abjured

guilt and claimed to be tried. The defence of the accused is of total

denial and false implication. It is suggested to the victim in the cross-

examination that the accused are falsely implicated due to strained

relationship between the parents of the victim and the accused.

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3. The victim has deposed that her date of birth is

26-11-1998. The father of the victim P.W.2 has also deposed that the

victim was born on 26-11-1998. It is suggested to the victim that the

date of birth mentioned in the school leaving certificate is not correct,

which suggestion is denied. The birth certificate of the victim (Exhibit

82) which is issued under the provisions of the Birth and Death

Registration Act and the Rules framed thereunder evidences that the

date of birth of the victim is 26-11-1998. P.W.9 Investigating Officer

has deposed that the birth certificate (Exhibit 82) was produced by the

father of the victim. The authenticity of the birth certificate is not

challenged. The suggestion given to the Investigating Officer is that

though the birth certificate of the victim was available, the

Investigating Officer did not seize it during investigation. The

Investigating Officer denies the suggestion and volunteers that the

father of the victim informed that the birth certificate could not be

located and as and when same is located he shall produce the birth

certificate before the Investigating Officer. In the teeth of the evidence

on record, the conclusion is irresistible that the victim was a child

within the meaning of Section 2(d) of the POCSO Act at the relevant

time.

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4. The D.N.A. examination report (Exhibit 15) concludes that

the victim and accused Vishal are the biological parents of the child

born to the victim. P.W.5 Dr. Manisha Chavan has deposed that on

20-10-2014 the victim and accused Vishal were brought to the hospital

by Jalgaon Jamod police who were armed with a D.N.A. kit. P.W.5

collected blood samples of the victim and accused Vishal in the D.N.A.

kit after getting the identification form filled in the presence of

witnesses Lakhan Agrawal, Raju Tayade and Baban Banjare and

handed over the forms to the police constable for being submitted to

Regional Forensic Science Laboratory, Nagpur alongwith Form-B.

P.W.7 Head Constable Surendra More carried the D.N.A. kit to RFSL,

Nagpur alongwith sealed phials and test tube in plastic jars, in sealed

condition. The report of RFSL, Nagpur (Exhibit 63) records that the

laboratory received one sealed plastic container with seal intact

containing blood of accused Vishal and victim in vials. P.W.8 PSI

Mupade has deposed that he received letter (Exhibit 55) from RFSL,

Nagpur on 18-11-2014 stating that the D.N.A. examination of accused

Vishal and the victim had been conducted and blood of the child was

required to match the D.N.A. profiles. The blood sample of the child

was collected on 01-12-2014 and the D.N.A. kit was sent to the RFSL,

Nagpur, which received the same in sealed condition. D.N.A.

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examination report (Exhibit 15) records thus.

All the 15 different genetic systems analyzed with PCR,

putative father Vishal Gawai (accused no.1) from R.F.S.L. ML. Case

No.DNAn545/2014 matched the obligate paternal alleles present in

baby of prosecutrix by all 15 STR Loci. Similarly, mother

prosecutrix from R.F.S.L. ML. Case No.DNAn545/14 also matched

the obligate maternal alleles present in baby of prosecutrix at all

15 ST Loci. On the basis of the interpretation of the result of DNA

typing the chemical analyzer has opined that accused no.1 Vishal

and prosecutrix are concluded to be biological parents of baby of

prosecutrix.

5. In fairness to the learned Counsel for the accused, it is not

even argued before me that the prosecution failed to prove that the

accused Vishal established sexual relationship with victim. The main

plank of the submission is that the age of the prosecutrix is not proved

to be less than eighteen years beyond reasonable doubt and the sexual

relationship, was obviously consensual. I have already held that the

prosecution has proved beyond reasonable doubt that the victim was

less than eighteen years of age at the relevant time and a child within

the meaning of Section 2(d) of the POCSO Act. The consent of the

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victim, even if arguendo, the submission of the learned Counsel is

examined seriously, is irrelevant since the prosecution was irrefragably

less than eighteen years of age when the accused established sexual

contact with her.

6. The evidence of the child victim (P.W.1) is implicitly

reliable and confidence inspiring. She has deposed that accused Rekha

played a significant role and aided accused Vishal in commission of the

offence. The victim was not inclined to concede to the demand of

accused Rekha that she should accompany Rekha to her house to meet

accused Vishal. When accused Vishal started making sexual advances,

accused Rekha told the victim to permit accused Vishal to do what he

wanted to do and if the act is done once nothing would happen. The

victim has deposed that one or two months after the first incident, it

was accused Rekha who took her to her field to pluck cotton and

accused Vishal came there and subjected the victim to sexual

intercourse. The victim then states that fifteen to twenty days after the

sexual intercourse committed by accused Vishal in the field of accused

Rekha, accused Vishal subjected her to sexual intercourse at the house

of accused Rekha. However, the evidence that after fifteen to twenty

days accused Vishal committed sexual intercourse with the victim at

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the house of accused Rekha is an omission. Even after keeping out of

consideration the evidence which is brought on record as an omission,

on a holistic appreciation of the evidence of P.W.1 the complicity of

accused Rekha as an abettor stands conclusively established.

7. I do not find any error in the finding recorded by the

learned Sessions Judge that it is proved beyond reasonable doubt that

accused Rekha abetted the commission of offence punishable under

Section 376(2)(i) and (n) of the IPC and Section 6 of the Protection of

Children from Sexual Offences Act, 2012. The victim is related to both

the accused. The defence of false implication is not probabilized even

on the touchstone of preponderance of probabilities. The prosecution

having conclusively proved that accused Vishal established sexual

relationship with the victim and is the biological father of the child

born from the said relationship, the half hearted suggestions given to

the victim and her father (P.W.2) that in view of some quarrel or

altercation, the accused are falsely implicated, does not take the case of

the defence any further. It must be borne in mind that Section 29 of

the said POCSO Act mandates that where a person is prosecuted for

committing or abetting or attempting to commit any offence under

Sections 3, 5, 7 and Section 9 of the POCSO Act, the Special Court shall

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presume, that such person has committed or abetted or attempting to

commit the offence, as the case may be, unless the contrary is proved

(emphasis supplied). The prosecution is not relieved from the burden

of proving the foundational facts. Any other interpretation of Section

29 of the POCSO Act would render the provision vulnerable to the vice

of unconstitutionality. In the light of the evidence on record, the

prosecution has proved the foundational facts beyond reasonable doubt

and the statutory presumption stands activated. The defence made no

serious endeavour to rebut the statutory presumption.

8. The judgment and order impugned is unexceptionable.

9. The appeal is sans merit and is rejected.

10. Accused Rekha is on bail. Her bail bond stands cancelled.

She shall be taken in custody forthwith to serve the sentence. Jalgaon

Jamod Police to file a compliance report in the registry within two

weeks.

JUDGE
adgokar

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