Sachin S/O Shivaji Dhongade vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 401 Bom

                                         1                                           apeal30.15




                                                                                  
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                          
                              NAGPUR BENCH, NAGPUR.




                                                         
     CRIMINAL APPEAL NO.30 OF 2015



     Sachin s/o Shivaji Dhongade,




                                            
     Aged about 28 years, 
     Occupation - Agriculture, 
                             
     R/o Village Gulgaon (Pathar), 
     Tahsil-Bhadravati, District-Chandrapur.                       ....       APPELLANT
                            
                  VERSUS
      

     The State of Maharashtra, 
     through Police Station Officer,
   



     Bhadravati, District-Chandrapur.                              ....       RESPONDENT


     ______________________________________________________________





                  Shri Anuj Hazare, Advocate for the appellant, 
             Shri H.R. Dhumale, Addl.P.P. for the respondent/State.
      ______________________________________________________________





                                   CORAM : Z.A. HAQ, J.

DATED : 26 FEBRUARY, 2016.

th

ORAL JUDGMENT :

1. Heard Shri Anuj Hazare, Advocate for the appellant and

Shri H.R. Dhumale, Additional Public Prosecutor for the respondent.

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2. The appellant has challenged the judgment passed by the

learned Special Judge convicting the appellant for the offence under

Section 3(a) punishable under Section 4 of the Protection of Children

from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO

Act, 2012") and sentencing him to undergo rigorous imprisonment for

seven years and to pay fine of Rs.2,000/- and in default to undergo

rigorous imprisonment for two months. The appellant is convicted

under Section 376 of the Indian Penal Code also, however, as the

appellant is sentenced to suffer rigorous imprisonment for the offence

under Section 3(a) of the POCSO Act, 2012 separate punishment is not

awarded.

3. The appeal is admitted on 16-04-2015. The application

filed by the appellant seeking suspension of sentence is rejected on

23-06-2015. The appellant has prayed for early hearing and

accordingly the matter is listed.

4. The case of the prosecution is :

The complainant Mahadeo Warlu Choudhary resident of

Gulgaon, Tahsil-Bhadravati, District-Chandrapur had been living with

his wife, 7 years son and 4 years daughter. On 15-09-2013, he had

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gone for agricultural labour work at 10-00 a.m. and his wife had gone

for cooking and when he returned from work at 6-00 p.m., his wife

informed him that while they were out, their neighbour Sachin

(accused/appellant) had taken their 4 year old daughter to his house,

removed her clothes and committed rape on her. Suresh Vasanta Pote

and Tulshiram Soma Jambhule residing in neighbourhood informed

the wife of the complainant Mahadeo about the incident. The

complainant Mahadeo enquired from his daughter (victim) and she

disclosed that Sachin had taken her to his house, removed her clothes,

removed his clothes and then slept on her person keeping his private

part on the private part of victim. The complainant and his wife took

their minor daughter to Dr. Khutemate at Bhadravati and narrated the

incident to the doctor who examined the victim and gave a tablet and

after that the complainant returned back to home with his wife and

victim. Initially the complainant could not gather courage to report

the matter to police, being afraid of damage to his reputation,

however, as he noticed that the minor girl was frightened on seeing

Sachin, the complainant became sure that Sachin has committed rape

on the minor girl and therefore, he reported the matter to Bhadravati

Police Station on 23-09-2013.

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On receipt of the report, Crime No.154/2013 came to be

registered for the offence under Section 3(a) punishable under Section

4 of the POCSO Act, 2012, under Section 363-A, 376 of the Indian

Penal Code and Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act.

The investigation started, the victim was sent for medical

examination, statements came to be recorded and after completing the

investigation and necessary formalities, charge-sheet came to be filed.

5. The trial commenced. During the trial, an application

(Exhibit No.8) was filed on behalf of the accused praying that an

enquiry under Section 328 of the Code of Criminal Procedure be

conducted as the accused was of unsound mind. The accused was

referred to the Civil Surgeon, Chandrapur for medical examination.

The Civil Surgeon examined the accused and gave report that the

accused was not suffering from unsoundness of mind and was fit for

trial. The accused was again referred to the Civil Surgeon, Chandrapur

for further examination through psychiatrist-Dr. Kiran Deshpande of

Civil Hospital, Chandrapur, who certified and deposed before the

Court that the accused was fit for trial.

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6. The trial proceeded, charges were framed, the accused did

not accept his guilt and claimed to be tried. After completing the trial,

the learned Special Judge concluded that the prosecution has proved

that the accused committed penetrative sexual assault on the victim.

The learned Special Judge has not dealt with the charge levelled

against the accused observing that the charge merges with the charge

regarding commission of the offence under Section 3(a) of the POCSO

Act, 2012. The learned Special Judge concluded that the prosecution

has failed to prove that the accused had taken away the victim from

lawful guardianship. The learned Special Judge recorded that the

prosecution has failed to prove the charge regarding commission of

offence under Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act. The learned

Special Judge accordingly convicted the accused for the offence under

Section 3 (a) of the POCSO Act, 2012 and imposed the sentence and

fine. The appellant being aggrieved by the judgment by the learned

Sessions Judge, has filed this appeal.

7. Shri Anuj Hazare, learned Advocate for the appellant has

submitted that the story of prosecution, on its face, is unacceptable. It

is submitted that though it is mentioned in the first information report

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that the information about the incident was given to the wife of the

complainant Mahadeo by Suresh Vasanta Pote and Tulshiram Soma

Jambhule, the prosecution has not examined the mother of victim and

Tulshidas Soma Jambhule and there is no explanation for this serious

lapse. It is submitted that looking to the nature of offence, mother of

the victim is the most natural witness, but she has not been examined,

and this lapse creates doubt about the truthfulness of the prosecution

story. The learned Advocate has pointed out that though it is alleged

that the incident had taken place on 15-09-2013 and the complainant

Mahadeo and his wife got knowledge about the incident on the same

day, the first information report is lodged on 23-09-2013 i.e. after

eight days and there is no explanation for this. It is submitted that the

complainant Mahadeo has admitted that the victim was taken to

Dr. Khutemate who had examined the victim and he had not found any

injury and had given one injection and two tablets and the

complainant returned back with his wife and victim. The submission

on behalf of the appellant is that these facts are admitted by Mahadeo

in his deposition and in his cross-examination and there is no

explanation for not examining Dr. Khutemate. It is submitted that the

above facts show that the claim made by the prosecution is false and

because of non-examination of Dr. Khutemate adverse inference is

7 apeal30.15

required to be drawn against the prosecution.

8. Shri Anuj Hazare, learned Advocate for the appellant has

then focused on the omissions and contradictions and the

inconsistency in the statements and evidence of Suresh Vasanta Pote

(P.W.4) and Ravindra Gajanan Malekar (P.W.9). It is pointed out that

Suresh Vasanta Pote has stated in his evidence that when Ravindra

Malekar, Tulshiram Jambhule and Suresh Pote went to the house of

the accused, Suresh Pote asked the accused "kahobe" and on hearing

this the accused ran away. It is pointed out that Suresh Pote has stated

that clothes of victim were lying on cot and there were no clothes on

her person and the accused had partly removed his pant. The learned

Advocate has pointed out that Ravindra Malekar stated that when they

(Suresh Pote, Tulshiram Jambhule and Ravindra Malekar) asked the

accused as to what he was doing, he did not get up. It is pointed out

that Ravindra Malekar stated that Swati was wearing top but there was

no knicker and chain of pant of accused was open and his private part

was seen out.

9. The learned Advocate for the appellant has then

pointed out the examination-in-chief of the victim and relying on the

8 apeal30.15

provisions of Section 24 of the POCSO Act, 2012, it is submitted that

the statement of the victim is not recorded in consonance with Section

24 of the POCSO Act, 2012. Referring to the report of the Chemical

Analysis, it is submitted that nothing incriminating has been found on

the basis of which it can be said that the appellant has committed

offence for which he is charged. It is submitted that even the evidence

of Dr. Dipti Vinay Shrirame (P.W.6) does not show that the offence for

which the appellant is charged, is committed on the victim. The

learned Advocate for the appellant has relied on the judgment given by

this Court in the case of Dhanraj s/o Shivram Tagde vs. The State of

Maharashtra reported in 2015 ALL MR 501 to substantiate his

contention that the appellant cannot be convicted for the offence for

which he is charged, as the evidence against him, including the

medical evidence and report of Chemical Analysis does not support the

prosecution. It is prayed that the appeal be allowed, the judgment

passed by the learned Special Judge be set aside and the appellant be

acquitted of the charge levelled against him.

Shri Anuj Hazare, learned Advocate has alternatively

submitted that, on the basis of the evidence and other material on the

record the appellant can be convicted at the most for the offence under

Section 8 of the POCSO Act, 2012.

9 apeal30.15

10. Shri H.R. Dhumale, learned Additional Public Prosecutor

has submitted that the presence of victim in the house of accused is not

disputed by the accused. It is further submitted that the accused has

not given any explanation for the presence of 4 year old girl (victim) in

the house of the accused, at the time when accused was alone in the

house. The learned Additional Public Prosecutor has submitted that in

these facts the minor contradictions in the evidence of Suresh Pote

(P.W.4) and Ravindra Malekar (P.W.9) will not have any effect and it

cannot be said that the conclusions of the learned Special Judge are

not proper. The learned Additional Public Prosecutor has submitted

that the witnesses are consistent on the relevant aspects of the incident

and moreover these witnesses are corroborating the statement given by

the victim and recorded by the learned Special Judge as per Section 24

of the POCSO Act, 2012. Shri H.R. Dhumale, learned Additional Public

Prosecutor has pointed out from the medical examination report of the

victim issued by the General Hospital, Chandrapur, the relevant entries

which show that the victim complained of pos-coital pain or discomfort

during walking, and the conclusion that most probably the intercourse

has occurred.

The learned Additional Public Prosecutor has submitted

that the findings recorded by the learned Special Judge that the

10 apeal30.15

appellant has committed the offence are based on proper appreciation

of evidence on the record. It is submitted that the evidence of Dr. Dipti

Vinay Shrirame (P.W.9) substantiates that the penetrative sexual

assault as contemplated by Section 3 of the POCSO Act, 2012 has been

committed by the accused. Referring to the provisions of Section 5(m)

of the POCSO Act, 2012, the learned Additional Public Prosecutor has

submitted that the offence will fall under the category of aggravated

penetrative sexual assault as undisputedly the victim is a child below

12 years. It is submitted that the learned Special Judge has overlooked

this and has committed an error in not punishing the accused as per

Section 6 of the POCSO Act, 2012. In view of the findings recorded by

the learned Special Judge that the prosecution has proved that the

accused has committed penetrative sexual assault on the victim of 4

years, the learned Sessions Judge should have recorded that the

offence committed by the accused will be of the category of the

aggravated penetrative sexual assault as per Section 5(m) of the

POCSO Act, 2012 and consequently the punishment should have been

as per Section 6 of the POCSO Act, 2012.

11. The learned Additional Public Prosecutor has submitted

that the learned Special Judge has committed similar error by

11 apeal30.15

overlooking the provisions of Section 376(2)(i) of the Indian Penal

Code and not imposing punishment on that basis. It is urged that in

view of the findings recorded by the learned Special Judge, the

accused be punished for the offence under Section 5(m) of the POCSO

Act, 2012 and Section 376(2)(i) of the Indian Penal Code and he be

sentenced to undergo imprisonment for life.

12. In reply, Shri Anuj Hazare, learned Advocate for the

appellant has submitted that the arguments made on behalf of the

respondent for imposing punishment for the offence under Section

5(m) of the POCSO Act, 2012 and for the offence under Section

376(2)(i) of the Indian Penal Code cannot be accepted in view of the

charges framed against the accused.

13. After hearing the learned Advocate for the appellant and

the learned Additional Public Prosecutor for the respondent, and after

examining the record with their assistance, I find that there is no

dispute about the fact that the victim was much below 12 years at the

time of incident. The prosecution claimed that the victim was 4 year

old and there is no denial by the accused to this fact. The charge

framed by the learned Special Judge is as follows :

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"That on 15-09-2013 at about 4-00 p.m. at Mouza-

Gulgaon, Tahsil-Bhadravati, at your house you have committed penetrative sexual assault by forcible sexual intercourse with a four years child Ku. Swati Mahadeo Choudhary and you have thereby committed an offence

under Section 3(a) punishable under Section 4 of the POCSO Act, 2012.

--------------------

Thirdly, on the same date, time and place, in your house you have committed rape forcibly on said minor child Swati and you have thereby committed an offence

punishable under Section 376 of the Indian Penal Code and within my cognizance."

Thus the accused faced the trial having knowledge of the

charge for which he is tried.

14. As permitted by Section 24 of the POCSO Act, 2012, the

statement of victim is recorded by the learned Special Judge. The

learned Special Judge has noted the demeanor of the victim during the

course of recording of her statement.

I find that no error is committed while recording the

statement of the victim and the learned Advocate for the appellant has

not been able to show as to what irregularity is committed while

recording the statement of the victim.

13 apeal30.15

15. The learned Additional Public Prosecutor has rightly

submitted that the presence of victim in the house of the accused is not

disputed by the accused and has also not been explained by the

accused. Though the learned Advocate for the appellant has pointed

out some minor discrepancies in the evidence of Suresh Pote (P.W.4)

and Ravindra Malekar (P.W.9), the learned Additional Public

Prosecutor has rightly pointed out that the discrepancies are in respect

of events or acts of the accused which have nothing to do with the

main incident/act which constitutes the offence. Considering the

statement of the victim and the medical evidence on the record, the

evidence of Suresh Pote (P.W.4) and Ravindra Malekar (P.W.9) has to

be treated as corroborative evidence and the minor discrepancies

pointed out in their evidence are not of such a nature that the

prosecution case should be disbelieved. There is sufficient material on

the record which establishes that the victim was in the house of the

accused at the time of incident and there was no one else in the house

except the accused and the victim.

16. Now it has to be considered as to whether the prosecution

has established that the penetrative sexual assault has been committed

on the victim. Though the answer given by the victim to the querry of

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Court as to what the accused had done with her after taking her to his

house, cannot be given too much weightage while considering the

issue as to whether penetrative sexual assault has been committed on

the victim, the medial reports and the evidence of Dr. Dipti Vinay

Shrirame (P.W.6) proves beyond doubt that penetrative sexual assault

is committed on the victim. The medical examination report of the

victim issued by the General Hospital, Chandrapur (Exhibit No.27)

shows that the victim complained of pos-coital pain or discomfort

during walking. The report further shows that hymen was found to be

torn at 6'O clock position. The Medical Officer In-Charge gave opinion

that most probably intercourse had occurred. The Medical Officer In-

Charge - Dr. Dipti Vinay Shrirame is examined as P.W.6. The relevant

extracts of her deposition are as follows :

"On genital examination pubic hair was absent. Vulva and forchette was normal. Hymen torn at 6'O Clock position and old, hymen admitted little finger with

difficulty. Digital examination was painful. Area of vaginal tenderness, laxity cannot be commented as the victim was not co-operating for examination.

--------------------

As per requisition letter there were four queries. As to query No.1, I answered that most probably intercourse has occurred and no injury marks seen on genital. As to query No.2, there was no semen on the private parts of the victim.

15 apeal30.15

As to query No.3, there was no injury marks over breasts,

chest, genital parts and thighs or any other part. As to query No.4, blood sample was taken and sealed.

--------------------

Hymen is found to be torn. It is old but age of torn cannot be commented. After examination of hymen the victim had not co-operated because she was having pain. It

is not true to say that at the age of 4 years, if the female is playing in jumping hymen can torn. I cannot say whether

in our civil hospital there is micro camera available. In external examination it can be seen whether hymen is ruptured. It is not true to say that, by inserting the finger

while examination of the victim the hymen is torn and therefore, the victim had not allowed for further examination.-----------------"

Thus the statement of the victim, corroborative evidence

of Suresh Pote (P.W.4), corroborative evidence of Ravindra Malekar

(P.W.9), the medical examination report and the evidence of Dr. Dipti

Vinay Shrirame (P.W.6) prove beyond doubt that penetrative sexual

assault has been committed on the victim.

17. The deviation in the normal and established criminal

jurisprudence, brought by the Legislature by Section 29 of the POCSO

Act, 2012 is relevant. Section 29 of the POCSO Act, 2012 reads as

follows :

16 apeal30.15

"29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has

committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

The provisions of Section 29 of the POCSO Act, 2012

appear to have been inserted to fulfil the object of the Act which is to

protect children from offences of sexual assault and to secure that

children of tender age are not abused. The mandate of Section 29 of

the POCSO Act, 2012 lays down that if any person is prosecuted for

committing or abetting or attempting to commit any offence under

Section 3, 5, 7 and 9 of the POCSO Act, 2012, the Court has to

presume that the offence is committed by the person who is prosecuted

unless the accused proves to the contrary. The appellant has failed to

discharge the burden of explaining the presence of the victim in his

house and that too alone with him. The appellant has failed to counter

the medical evidence which proves the commission of the offence.

18. Though the learned Special Judge has not considered the

effect of Section 29 of the POCSO Act, 2012, he has considered the

material and the evidence on record in extenso. It cannot be said that

17 apeal30.15

the findings recorded by the learned Special Judge are not proper.

Consequently, it has to be held that the conviction of the appellant is

proper and justified.

19. Now the issue which requires consideration is as to

whether the learned Special Judge is right in convicting the accused for

the offence under Section 3(a) of the POCSO Act, 2012 and the

punishment for it as per Section 4 of the POCSO Act, 2012 is proper or

accused has to be convicted for the offence under Section 5(m) of the

POCSO Act, 2012 and has to be punished under Section 6 of the

POCSO Act, 2012.

Similarly, it has to be examined as to whether the learned

Special Judge is right in convicting the accused for the offence under

Section 376 of the Indian Penal Code or the accused is required to be

punished under Section 376(2)(i) of the Indian Penal Code.

20. The learned Special Judge having recorded that the

accused has committed penetrative sexual assault and it being

undisputed on the record that the victim was aged about 4 years at the

time of commission of the offence, the accused is required to be

punished for the offence under Section 5(m) of the POCSO Act, 2012.

18 apeal30.15

Consequently, the accused is required to be punished under Section 6

of the POCSO Act, 2012. The learned Special Judge has not noticed

the provisions of Section 5(m) and Section 6 of the POCSO Act, 2012.

This is the statutory requirement.

Similarly, for the same reasons as recorded above, the

accused is required to be convicted for the offence under Section

376(2)(i) of the Indian Penal Code which is the statutory requirement.

Again the learned Special Judge has overlooked the provisions of

Section 376(2)(i) of the Indian penal Code.

21. In view of the above, I maintain the findings recorded by

the learned Special Judge that the accused has committed penetrative

sexual assault on the victim. However, considering the provisions of

Section 5(m) and Section 6 of the POCSO Act, 2012 and Section

376(2)(i) of the Indian Penal Code, show cause notice is given to the

appellant as to why he should not be sentenced as per Section 6 of the

POCSO Act, 2012 and for the offence under Section 376(2)(i) of the

Indian Penal Act.

Shri Anuj Hazare, learned Advocate has submitted that the

course proposed by this Court cannot be adopted as it will amount to

altering/modifying the charge and it is not permissible. The appellant

19 apeal30.15

would be granted hearing on the point on the next date and the

submission made by the learned Advocate for the appellant will be

considered while dealing with the point.

List the appeal for further hearing on the point on which

notice is given to the appellant, on 02-03-2016. It is stated that the

appellant is in Central Jail, Nagpur. The appellant shall be produced

before this Court on 02-03-2016 at 11-30 a.m.

JUDGE

pma