apeal164.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.164 OF 2016
Rahul s/o Vinod Choudhary,
Age 22 years, Occ: Education,
R/o Karchala, Tahsil Bhadrawati,
District Chandrapur. ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. Bhadrawati
Police Station, Chandrapur. ....... RESPONDENT
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None for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: th
29 SEPTEMBER, 2017.
ORAL JUDGMENT
1] The challenge is to the judgment and order dated
02.01.2016 in Special (POCSO) Case 22/2014, by and under which, the appellant (herein after referred to as "the accused") is convicted of offence punishable under section 7 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and is sentenced to suffer rigorous imprisonment for three years and to payment of pay fine of Rs.1000/- and is convicted under section 11(i) and (iv) punishable under section 12 of the ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 2 (POCSO Act) and is sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.500/- and is further convicted of offence punishable under section 354-A (1)(i) and (ii) of I.P.C. for which conviction no separate sentence is awarded. 2] The genesis of the prosecution is in oral report lodged by the complainant on 18.09.2014, the gist of which is that the complainant is a 10th standard student of Karmavir Vidyalaya, Ghodpeth and used to travel to the said school from her residence either by bus or bicycle or by foot. Rahul Choudhary (accused) was harassing the complainant since last three years. The accused accosted the complainant, caught her hand and asked her as to why the complainant does not love her. The oral report further recites that an attempt was made to make the accused see reason, with the intervention of the Dispute Resolution Committee of the village, but in vain. The oral report specifically refers to incident which occurred at 11:30 a.m. on 15.09.2014. The complainant along with her friends was walking towards the school, as they reached near the school the accused came from behind, caught the right hand of the complainant and asked her as to why the complainant is not showering affection on him and why the complainant is in love with others. The complainant took offence ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 3 and abused the accused. Since people gathered, the accused left the spot. The next incident referred is stated to have occurred at 10:30 a.m. on 18.09.2014. The complainant, along with her friends was on way to the school. The accused came on a bicycle, kept his hand on the shoulder of the complainant, asked the friends of the complainant to leave and when the complainant too tried to leave the accused held her hand tight and asked the complainant to call and to meet the accused alone. The oral report further states that on the same day at 05:30 p.m. when the complainant and her friend Ganesh Narule were going to the village on his motorcycle the complainant waived. The report further states that when the complainant reached home, changed clothes and then went to the village bore-pump to fetch water, the accused said I love you and I miss you and went away. 3] On the basis of the said report F.I.R. Exh.12 was registered for offence punishable under sections 7, 8, 9 (l), 10, 11
(iv), 12 of the (POSCSO Act) and offence punishable under section 354-A (1)(iv) of I.P.C. The statements of witnesses were recorded and completion of investigation culminated in the presentation of the charge-sheet in the Special Court. The learned Special Judge framed charge at Exh.5 under section 7 punishable ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 4 under section 8 and 11 (i) (iv) and punishable under section 12 of the (POSCSO Act) and offence punishable under section 354-A (i)
(ii) of I.P.C. The accused pleaded not guilty and claimed to be tried.
4] Since the learned counsel Shri R.D. Hajare who is appointed to represent the accused is absent, with the able and fair assistance of Shri N.B. Jawade, the learned Additional Public Prosecutor, I have scrutinized the original record of proceedings. Since I intend to decide the appeal on merits consistent with the dictum of the Hon'ble Apex Court in Bani Singh and others vs. State of Maharashtra (1996) 4 SCC 720.
5] The complainant is examined as P.W.1.
The deposition is broadly consistent with the First Information Report. P.W.1 has deposed that on 15.09.2014 at 11:30 a.m. when she was going to the school along with one Dnyaneshwari Awari, the accused caught her hand and asked her as to why she was not in love with him. P.W.1 abused the accused and he went away. P.W.1 has deposed that on 18.09.2014 at 10:30 a.m., the accused came on bicycle, caught hold of her hand and kept his hand on her shoulder. The accused asked P.W.1 as to why she was ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 5 showering affection on other and not on the accused and response of the P.W.1 was that why should it matter to the accused. The accused abused her friends, asked them to leave and thereafter told P.W.1 to call and meet him alone. 6] P.W.1 has further deposed that on the same day at 05:30 p.m., she came to the bus stop on riding pillion with Ganesh Narule and then went to her house. The accused was passing on his cycle and waived to the complainant. Between 06:00 p.m. to 06:30 p.m. she went to the bore-well to fetch water and again the accused told her that he loves her and misses her. P.W.1 has extensively been cross examined. However, the testimony of P.W.1 is not shaken. Some minor inconsistencies and omissions are indeed brought on record. But then, the inconsistencies and omissions are not significant enough to dent the credibility of the witness. P.W.2 Chetan Yergude is examined to prove the spot panchnama Exh.16. P.W.3 Nilkanth Dhobe is the father of the complainant. His evidence is admissible to the extent he deposes that the intervention of the Village Dispute Committee was sought, in view of his daughter's complaint that the accused was harassing her since quite sometime. However, his evidence to the extent it refers to the disclosures made by P.W.1, is hear say and ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 6 must be kept out of consideration. P.W.4 Sonali Dhobe is the elder sister of the complainant. She claims to have witnessed one incident of the accused misbehaving with her sister. However, P.W.4 is not a reliable witness in as much as she claims that the accused assaulted P.W.1 and that she asked the accused as to why he physically assaulted P.W.1. P.W.4 further states that she beat the accused. Her version is absolutely at variance with that of P.W.1. It is not claimed by P.W.1, at any point in time, that the accused physically assaulted her or that her sister (P.W.4) in turn beat the accused. P.W.5 Shatrughna Yergude is the President of the Dispute Resolution Committee who is examined to prove that the intervention of the said committee was sought. P.W.5 has deposed that at the instance of the complainant and her father, he counseled the accused, but in vain. P.W.6 Dnyaneshwari Awari, a friend of P.W.1, is examined as an eye witness. However, she has not supported the prosecution, nothing is elicited in the cross-examination of the learned A.P.P. to assist the prosecution. P.W.7 Gajanan Dhobe claims to have witnessed the accused telling the complainant that he loves the complainant. This happed at the hand-pump boring, is the deposition. P.W.8 is examined to prove the age of the accused which is 01.08.1999. P.W.9 is the Investigating Officer.
::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 7 7] I have given my anxious consideration to the evidence on record, with the able assistance of the learned A.P.P. Shri Jawade. The evidence of P.W.1 who is the complainant is implicitly reliable and confidence inspiring. Her testimony is corroborated by the testimony of her father (P.W.3) and the President of the Dispute Resolution Committee (P.W.5). 8] I have no hesitation in concurring with the finding recorded by the learned Special Judge that the conduct of the accused, the proven fact that the accused said to the complainant that the accused loves the complainant, the evidence that the accused was harassing the complainant, conclusively establishes offence punishable under section 11 and 12 of the (POSCSO Act) and under section 354-A (i) and (ii) of the I.P.C. 9] However, I am not persuaded to agree with the learned Special Judge that the evidence on record, even accepting the entire evidence at face value, proves offence punishable under section 8 of the POCSO Act.
10] It would be apposite to note the provisions of section 7 and 8 of the Protection of Children from Sexual Offences Act, ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 8 2012:
7. Sexual assault.-- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act, with sexual intent which involves physical contact without penetration is said to commit sexual assault.
This cause defines the offence of sexual assault. It provides that a person is said to commit sexual assault if he with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration.
(Notes on Clauses).
8. Punishment for sexual assault.-- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
This clause provides punishment for sexual assault. It provides that whoever commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but may extend to five years and shall also be liable to fine.
(Notes on Clauses).
11] I have no hesitation in holding that the evidence on record does not disclose that the accused did any act with sexual intent involving physical contact without penetration. ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 ::: apeal164.16.J.odt 9 12] I therefore, set aside the conviction under section 7 and 8 of the POCSO Act.
13] The conviction under section 11(i) and (iv) punishable under section 12 of the POSCO Act and under section 354-A (1)(i) and (ii) of I.P.C. is maintained.
14] The accused who then was 22 years old at the time of commission of the offence, has already undergone rigorous imprisonment of more than one year and nine months. I am inclined to uphold the conviction for offence punishable under section 11(i) and (iv) punishable under section 12 of the POSCO Act and under section 354-A (1)(i) and (ii) of I.P.C. and to alter the sentence to imprisonment already under gone. 15] The appeal is partly allowed. The accused be released from custody if not required in any other case.
JUDGE NSN ::: Uploaded on - 03/10/2017 ::: Downloaded on - 04/10/2017 01:10:46 :::