Apeal 118.17 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.118 OF 2017.
APPELLANT: Sandip s/o Atmaram Khandekar,
aged about 29 years, Occu: Labourer,
r/o Pawana, Tq.Warora, Distt.Chandrapur.
: VERSUS :
RESPONDENT: The State of Maharashtra
through Police Station Officer,
Police Station, Warora, Tq.Warora, Distt.
Chandrapur.
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Mr.D.A.Sonwane, Advocate (appointed) for the appellant.
Mr.S.D.Sirpurkar, Addl.Public Prosecutor for the respondent/State.
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CORAM
: P.N.DESHMUKH, J.
DATED: 12th DECEMBER, 2016. ORAL JUDGMENT :
1. This appeal takes exception to judgment and order dated 17th of February, 2016, passed in Special (POCSO) Case No.27 of 2014 by Special Court at Warora, Distt.Chandrapur, whereby appellant came to be convicted for the offence punishable under Section 376 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.1000/-, ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 2 in default to suffer simple imprisonment for four months. Appellant is also convicted for the offence under Sections 3, 5 and 9 punishable under Sections 4, 6 and 10 of the Protection of Children from Sexual Offences Act, however, no separate sentence is imposed for these offences.
2. In brief, it is the case of prosecution that PW 5, Sangita Vasanta Jivtode, mother of prosecutrix along with her husband and mother-in-law returned home from labour work at around 6 p.m. At that time, prosecutrix aged 5 years, was crying for sweets when appellant came to their house and took her away with him on the pretext of offering her sweets. After returning back within fifteen minutes Sangita noticed that minor girl was crying and on inquiry informed that appellant took her to nearby shop for offering her sweet and inserted his finger in to her vagina. Sangita also noticed bleeding injury sustained by the prosecutrix into her vagina and therefore, took her to Warora Police Station and lodged report, Exh.25.
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3. Report was reduced into writing by Lady Police Constable Maya Parchake and on the strength of said report offence came to be registered vide Crime No.275 of 2014 which was investigated by PW 9 Prashant Masram, API, during the course of which, on the same day, he issued requisition letter, Exh.16 for carrying medical examination of the prosecutrix and deputed PW 4, LPC Samiksha Pandurang Bhongade for carrying prosecutrix to the hospital. Inspite of reaching in the hospital on 31 st October, 2014, no medical examination could be held on that day which was accordingly performed on 1st November, 2014 by PW 2 Dr.Jaya Kashinathrao Bhongade and had issued medical report, Exh.17 certifying that on medical examination hymen was noted to be fresh torn with multiple blood stains found on her inner clothes. It was also certified that there was inflammation and bleeding present at the time of medical examination.
4. PW 9 Prashant Vishwanath Masram, Investigating Officer, on 1st November, 2014 seized clothes of prosecutrix as produced by PW 4 LPC Samiksha Bhongade under seizure ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 4 panchanama, Exh.23 and vaginal swab and blood of prosecutrix, under seizure panchanama, Exh.22 in the presence of panch witness, PW 6 Karan Tukaram Rampure. On the same day, accused came to be arrested under arrest panchanama, Exh.33 and his full pant and full shirt having blood stains came to be seized under seizure panchanama, Exh.29 in the presence of Panch witness PW 6, Karan Rampure. The blood sample and swab of right hand middle finger of accused brought by police constable Sachin was seized under panchanama, Exh.34. During the course of investigation, spot panchanama, Exh.20 came to be drawn and on recording statements of witnesses, all the seized muddemal articles came to be forwarded to Chemical Analyzer for its analysis under covering letter, Exh.35. On completion of investigation, charge-sheet is filed before the Special Court, Warora.
5. In due course of time, case was committed to the Special Court for trial. Charge, Exh.4 is framed against the appellant for the offence punishable under Sections 3(b), 5(m)(p) and 9 (m)(p) punishable under Sections 4, 6 and 10 of the Protection of Children ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 5 from Sexual Offences Act and under Section 376(2)(i) of the Indian Penal Code. Charge was explained to accused in vernacular to which he pleaded not guilty and claimed to be tried.
6. To establish charge levelled against the appellant, prosecution in all examined nine witnesses and has commenced its case by examining PW 1, prosecutrix, PW 2 Dr.Jaya Kashinathrao Bhongade, Medical Officer who has examined prosecutrix and issued Medical Certificate, Exh.17, PW 3 Subhash Maroti Virutkar, who has proved spot panchanama, Exh.20, PW 4 LPC, Samiksha Pandurang Bhongade who took prosecutrix for medical examination and collected blood sample and vaginal swab sample of prosecutrix which came to be seized by PW 9 Prashant Masram under seizure panchanama, Exh.22 and her clothes under seizure panchanama, Exh.23, PW 5 Sangita Vasant Jivtode, mother of prosecutrix, complainant who has proved oral report on record, Exh.25, PW 6 Karan Tukaram Rampure, panch on seizure panchanamas, Exh.22 and Exh.23 as above and has also proved seizure panchanamas, Exs.28 of blood sample of accused and ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 6 Exh.29 of the clothes of accused, PW 7 Kunda Kawadu Jivtode, PW 8 Sanjay Charandas Patil, on circumstances, however their evidence is not found to be material and had concluded its case on examining PW 9 Prashant Vishwanath Masram, A.P.I., the Investigating Officer.
7. Heard Shri D.A.Sonwane, learned counsel for the appellant and Shri S.D.Sirpurkar, learned Additional Public Prosecutor for the State.
8. Learned counsel for the appellant has submitted that accused is falsely implicated after the prosecutrix has sustained injury to her private part when she had visited open space adjoining to her house having fencing and thorny sticks, when she was answering the nature's call. It is further contended that after prosecutrix returned back to home, as accused was found present in her house, he came to be falsely implicated and therefore, has contended that though there is medical evidence suggesting bleeding injury to the vagina of prosecutrix, due to which there are ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 7 blood stains on the inner ware and frock of prosecutrix, nothing can be attributed to accused as such injury is an outcome of injury sustained by prosecutrix while answering the nature's call as aforesaid. It is, therefore, submitted that appeal be allowed.
9. The learned Additional Public prosecutor has referred to evidence of prosecutrix as well as of her mother, complainant and has submitted that there is nothing to disbelieve her oral version which is further stated to be corroborated by medical evidence and other circumstantial evidence and has thus, contended that appeal is liable to be dismissed.
10. Having considered facts of prosecution case and submissions advanced as aforesaid, on evaluating the evidence on record and the documents, with the assistance of learned counsel for both sides, from the evidence of PW 1 Prosecutrix it has come on record that on the day of incident appellant had inserted finger into her private part due to which she sustained pains and started crying. She has further stated that appellant brought her back to ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 8 home and went away. In her evidence it has come on record that "Bakya" had taken her to the shop who is deposed to be sitting outside the Court. It has also come in the evidence of prosecutrix that she does not know Bakya or where he resides. In the entire record it has nowhere come if appellant is also known as Bakya, nor learned Public Prosecutor at the time of trial had re-examined prosecutrix on this piece of evidence. However, on considering the cross-examination of prosecutrix, it is found that there is no challenge to the effect that appellant is not Bakya. It is even not suggested in this way to the prosecutrix. In fact, from her evidence it is noted that her evidence came to be recorded without administering oath to her since she did not understand the meaning of oath and her evidence is recorded after putting some questions.
11. Considering the age of prosecutrix of 5 years at the time of recording her evidence, no weight can be given to her evidence about her not knowing who is 'Bakya' or where he resides, in view of her specific evidence on record that 'Bakya' had taken her to the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 9 shop and also for the reasons that there is no suggestion to this witness that appellant is not 'Bakya'. Prosecutrix in the cross- examination has specifically denied that she sustained injury due to fall on the ground and has in fact admitted that after she sustained injury she was taken to doctor by her parents and that she has narrated said fact to her mother.
12. In the backdrop of evidence of prosecutrix as aforesaid, perusal of evidence of PW 5 Sangita, mother of prosecutrix, finds totally corroborated to her version when she deposed that on the day of incident when she returned back to her house after 6.30 p.m. she found prosecutrix crying for sweet when appellant arrived in their house and took her out of the house on the pretext of offering her sweet. She further deposed that within short time appellant returned home with the girl and on leaving her in the house ran away. However, since the minor girl was still crying, on her enquiry, she was informed that appellant had inserted his finger in her private part. Complainant, therefore, checked her daughter and noticed bleeding injury sustained by her to her ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 10 vagina. Having noticed injury as above and information received from prosecutrix, complainant Sangita immediately took her to Warora Police Station and lodged report, Exh.25 against the appellant.
13. Contents of report, Exh.25 substantially corroborates with the evidence of complainant as aforesaid, which according to Printed FIR, Exh.26 is found lodged on the same day of incident at 8.40 p.m. while the incident is after 6.30 p.m. The distance between the house of complainant situated at village Pawana and Police Station Warora is of 10 kms. It is thus found that report is lodged without inordinate delay as such, there is no room to doubt its contents and truthfulness, falsely implicating appellant as submitted in his behalf. Moreover, nothing is brought on record as to why minor girl, aged 5 years or in that case even her mother Sangita should falsely implicate the appellant. In view of above facts, there appears no substance in the case of appellant of minor girl receiving vaginal injury while answering the nature's call and falsely implicating him.
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14. In the background of above facts, on considering cross- examination of PW 5 Sangita it is noted that nothing material is elicited from her. In fact, she has denied when suggested that prosecutrix sustained injury to her vagina by some thorny sticks while she went out of the house to answer the nature's call. On the contrary, from her evidence in fact presence of appellant in her house is established when she has admitted that at the time of incident appellant had come to their house and took away prosecutrix as she was crying and brought her within 4 to 5 minutes.
15. Having considered evidence of prosecutrix as well as her mother, prosecution from their evidence had established that on the day of incident appellant took prosecutrix from her house on the pretext of offering her sweet as she was crying and within 4 - 5 minutes brought her back to her home when prosecutrix complained to her mother about appellant inserting his figure into her private part and mother on examining her private part found ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 12 vagina having bleeding injury.
16. In the backdrop of above evidence when evidence of PW 2 Dr.Jaya Bhongade, Medical Officer, Civil Hospital Chandrapur is perused, it is found that in pursuance to requisition letter, Exh.16 she has examined prosecutrix who was brought by PW 4 Samiksha B.No.2472, accompanied with PW 5 Sangita who had narrated history involving appellant to have inserted his finger into vagina of minor girl due to which she had sustained bleeding injury. On medical examination the girl was found to have sustained injury to her vagina and it was noted that hymen was torn having fresh bleeding injury and also her inner ware and frock were found having blood stains and has accordingly the Medical Officer has issued Medical Certificate, Exh.17. Though no other injury was seen on the person of the girl, there is no reason to have any other injury on her person as according to the case of prosecution, appellant had inserted finger into her vagina and nothing more. In fact, in that view of the matter, fact of prosecutrix having no other injury on her person falsifies the case ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 13 of defence of prosecutrix sustaining injury on her person while answering the nature's call in the open space or due to fall on the ground as in that event, there is every possibility of her sustaining other injury on her person, apart from injury to her private part as referred in the medical report.
17. Above evidence thus leads to refer to evidence of PW 4 LPC Samiksha from whose evidence establish that after medical examination of prosecutrix doctor had collected her blood sample and vaginal swab and had also collected clothes of girl which from the evidence of PW 6 Karan are found to be seized by the Investigating Officer under seizure panchanama, Exh.22 and 23, respectively. This witness has also identified frocks and leggings being clothes of prosecutrix marked as articles 'A' and 'B'.
18. From the evidence of Investigating Officer, it has come on record that after effecting arrest of appellant on 1 st November, 2014, he was referred for medical examination with requisition letter, Exh.34 and blood samples and swab of right hand middle ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 14 finger of accused was produced by police constable Sachin which came to be seized under panchanama, Exh.28 and full pant and full shirt of accused having blood stains were seized under seizure panahanama, Exh.29.
In the cross-examination of Investigating Officer, there is no challenge to seizure of clothes of prosecutrix as well as of accused, but from tenor of cross-examination what can be seen is that the challenge is only to the fact of non-seizure of their clothes in the presence of panch witness. In that view of the matter, from the evidence of these witnesses and the seizure panchanamas, referred above, prosecution is found to have established fact of seizure of blood samples, vaginal swab of prosecutrix and her clothes as well as blood sample and clothes of accused, which muddemal during the course of investigation are forwarded to Chemical Analyzer, Nagpur for its analysis under requisition Memo, Exh.35 wherein frock and leggings of minor girl are marked as A1, A2 and clothes of appellant being long sleeves shirt and full pant, having blood stains are marked as B1, B2. Chemical Analyzer report, Exh.14 established that Muddemal Articles A1, A2 ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 15 are marked at Exh.1 and 2 and B1, B2 are marked at Exh.3 and 4. According to this report, Exh.1 and 2 are found to have moderate blood stains ranging from about 0.1 to 1 cm. in diameter on back middle portion and Exh.3 and 4, which are clothes of accused are found having also blood stains upon it on the right and left sleeve and on left side of the full pant. The blood found on Exh.1 to 4 is human blood. Though no blood group of blood found on Exh.1 to 4, could be ascertained, no explanation is put forth by appellant as to how blood stains were found on the sleeves of his shirt as well as on his full pant. These circumstances further substantiate the case of prosecution establishing appellant's involvement in the crime for which he is charge sheeted.
19. In fact, case of prosecution is further found substantiated from the DNA Test report, Exh.11 on record vide which it is established that DNA profile obtained from blood detected on Exh.1 Frock, Exh.2 leggings, Exh.3 Full shirt and Exh.4 Full pant are identical and for one and the same source of female origin and matched with DNA profile obtained from blood sample of ::: Uploaded on - 21/12/2017 ::: Downloaded on - 23/12/2017 00:12:34 ::: Apeal 118.17 16 prosecutrix.
20. For the reasons recorded as aforesaid and ample evidence as discussed above, there is no substance in the appeal, same is thus liable to be dismissed. Hence, following order.
-ORDER-
The appeal is dismissed.
The fee payable to learned Counsel appointed for appellant is quantified to rupees five thousand only.
JUDGE.
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