apeal no.432.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 432 OF 2015
Gulabrao S/o Shravanji Bhamode,
Aged about 80 years, Occ: Labour,
R/o Chaudhari Plot, Karasgaon,
Tah-Chandur Bazar,District-Amravati. ..... APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Chandur Bazar,
District: Amravati. ...RESPONDENT
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Shri D.A.Sonwane,Advocate for appellant.
Shri R.S.Nayak,Addl.P.P. for State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 6,2017 ORAL JUDGMENT The present appeal is directed against the judgment and order of conviction passed by Learned Additional Sessions Judge,Achalpur dated 11/4/2014, in Special(POCSO) Case No.01/2012. By the impugned judgment the learned Court below convicted the appellant for the offence punishable under Section 376(2)(i) r/w Section 511 of Indian Penal Code and sentenced him to suffer S.I. for seven years and to pay fine of Rs. 1000/- and ::: Uploaded on - 29/06/2017 ::: Downloaded on - 28/08/2017 05:08:27 ::: apeal no.432.15 2 in default of payment of fine to suffer S.I. for 3 months. He is also sentenced for the offence punishable under Section 10 of Protection of Children from Sexual Offences Act, and on that count he was directed to suffer S.I. for 5 years and to pay fine of Rs. 1000/- and in default of payment of fine he has to suffer S.I. for 3 months.
2. I heard Shri D.A.Sonwane, learned advocate appointed through Legal Aid Committee to represent appellant and Shri R.S.Nayak, learned Addl. P.P. for for the State. Foremost contention of the learned counsel for appellant is that looking to the age of the appellant there should not be conviction as directed by the Court below and he should be therefore acquitted. He further submitted that in the present case the prosecution has not examined prosecutrix and therefore in his submission the prosecution case must fail. These were only his submissions.
3. Gopal Vitthal Bharti(PW4) was police officer of P.S.Shirajgaon on 26/4/2013. On the said day, Ganesh Manikrao Tayde(PW1), his wife and prosecutrix, their daughter came to police station.
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Ganesh Tayade lodged his oral report(Exh.19). As per the said report in the morning of 26/4/2013 first informant proceeded for his work at about 6.00 'O clock in the morning. He returned at 10.00' O clock. That time he noticed his wife alone was sitting. He therefore made inquiry with his son and daughter. That time, his son Jayesh aged 4 years came to the house. First informant made inquiry with him regarding the prosecutrix. As per F.I.R. Jayesh informed first informant that prosecutrix is inside the house of appellant who is their neighbour and the door of his house is closed from inside therefore, he and his wife went to the house of appellant-accused. There they noticed that the door was closed from inside. First informant therefore gave call to the prosecutrix that time, appellant opened the door and prosecutrix came outside the house by weeping. When first informant was making inquiry with her he noticed that the pant which was on her person was wet therefore, when he and his wife removed her pant that time he and his wife noticed that her private part was reddish and was swollen. They also noticed sticky substance on the person of the prosecutrix. On noticing this first informant made inquiry with the appellant that time he started shivering therefore, he lodged report against the present appellant. ::: Uploaded on - 29/06/2017 ::: Downloaded on - 28/08/2017 05:08:27 ::: apeal no.432.15 4
4. Gopal Bharti (PW4) registered the offence against appellant for the offence punishable under Section 376 and 6 of the POCSO Act vide Crime No.29/2013. The printed F.I.R. is at Exh.20.
5. After registration of the crime investigating officer Gopal Bharti(PW4) sent female child for her medical examination along with lady constable with requisition letter (Exh.26). He also seized the clothes of child from the custody of Ganesh (PW1) vide seizure memo (Exh.21). He also visited the spot and spot panchnama (Exh.22) was drawn in presence of panchas. He seized quilt from the spot under seizure memo(Exh.29). Appellant was present in his house. He was arrested under arrest panchnama(Exh.40). Appellant was also sent for his medical examination with a requisition letter (Exh.32). His blood sample and pubic hair were seized under seizure memo (Exh.36). All muddemal alongwith requisition were sent to chemical analyser. He also sent semen, cutting of half pant and dhoti i.e. clothes of accused to C.A.Amravati. The DNA test was conducted and DNA report is available on record at Exh.50.
6. The age of the victim-prosecutrix is only 2 years and 11 months as it could be seen from the F.I.R.(Exh.20). Therefore in view of such a tender age of the victim girl in my view non ::: Uploaded on - 29/06/2017 ::: Downloaded on - 28/08/2017 05:08:27 ::: apeal no.432.15 5 examination of such child ipso facto does not render the prosecution as untrustworthy. Therefore, the submission of the learned counsel for the appellant in that behalf is hereby rejected.
7. P.W.2 is Dr.Lalita Rajiv Mule. On 26/4/2013 she was attached to District Ladies Hospital, Amravati as a medical officer. Her evidence shows that patient "victim girl" aged about 2 years and 11 months was brought in the hospital with a requisition letter (Exh.26) alongwith parents of the victim. Dr. Lalita (PW2) obtain consent for medical examination of the child from her parents. She noticed no external injury over genital region. She also noticed there was no evidence of any penal insertion. She also took vaginal swab. It was her opinion that there was no evidence of any sexual intercourse however, as per her evidence an attempt to commit rape is not ruled out.
8. P.W.3 is Dr.Ashok Janrao Thakare. He has examined appellant and gave his certificate (Exh.34). According to his opinion , appellant was capable to perform sexual intercourse.
9. C.A.report is available on record and it is at Exh.49-A. The pant which was on the person of victim girl was seized and was ::: Uploaded on - 29/06/2017 ::: Downloaded on - 28/08/2017 05:08:27 ::: apeal no.432.15 6 sent to C.A. in sealed condition. C.A.report(Exh.49-A) shows that it was having semen stains. Similarly, dhoti of the appellant which was sent to C.A. was also having semen stains.
Noticing the semen on the pant of victim a girl aged of 2 years and 11 months is most unnatural. Through the evidence of Ganesh(PW1) father of victim the prosecution has established victims's presence inside the house of the appellant. Even on the dhoti of the appellant there were semen stains. No explanation is offered by the appellant as to how semen stains were noticed on the clothes of the little victim girl.
Further D.N.A. report(Exh.50) also confirmed that the D.N.A.profile obtained from semen detected on Exh.2 half pant and Exh.3 dhoti i.e. of appellant are identical and from one and the same source of male original and matched with the DNA profile of blood of the appellant.
10. In view of the aforesaid scientific evidence against the appellant and the fact that Ganesh(PW1) took custody of his daughter from the house of the appellant, clearly proved case against the appellant and I see no reason to upset the judgment and order of ::: Uploaded on - 29/06/2017 ::: Downloaded on - 28/08/2017 05:08:27 ::: apeal no.432.15 7 conviction. The other submission of learned counsel for the appellant that the appellant is aged about 80 years and leniency should be shown to him is required to be rejected for the reason that he has tried to assault on a girl of 2 years and 11 months. The prosecution has proved its case. The act on the part of the appellant in my view shows that he is a pervert man and therefore no discretion can be exercised in his favour. Hence, appeal is dismissed.
ORDER Appeal is dismissed.
JUDGE kitey ::: Uploaded on - 29/06/2017 ::: Downloaded on - 28/08/2017 05:08:27 :::