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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