Amol @ Samir S/O Mangal Dongre (In ... vs State Of Maharashtra Through ...
2017 Latest Caselaw 5784 Bom

                                         1                                       apeal179.16




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.179 OF 2016


 Amol @ Samir s/o Mangal Dongre,
 Aged 24 years, Occupation - Private Work,
 R/o Chuna Bhatti, Jail Road, Nagpur.                            ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through P.S.O. Dhantoli, Nagpur.                                ....       RESPONDENT

 ______________________________________________________________

       Shri D.A. Sonwane, Advocate appointed for the appellant, 
            Shri V.A. Palshikar, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 9 AUGUST, 2017.

th

ORAL JUDGMENT :

This appeal takes exception to the judgment and order

dated 21-3-2016 delivered by the learned Additional Sessions Judge-1,

Nagpur in Special Child Protection Case 75/2014 by and under which

the appellant (hereinafter referred to as the "accused") stands

convicted for the offence punishable under Section 376(2) of the

Indian Penal Code read with Sections 3 and 4 of the Protection of

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Children from Sexual Offences Act, 2012 and offence punishable under

Section 354-D (1) of the Indian Penal Code read with Sections 11(iv)

and 12 of the Protection of Children from Sexual Offences Act, 2012.

The accused is, however, acquitted of the offences punishable under

Sections 341 and 506 Part-II of the Indian Penal Code. The accused is

sentenced to suffer rigorous imprisonment for ten years for the offence

punishable under Section 376(2) of the Indian Penal Code read with

Sections 3 and 4 of the Protection of Children from Sexual Offences

Act, 2012 and to suffer rigorous imprisonment of one year for the

offence punishable under Section 354-D (1) read with Sections 11(iv)

and 12 of the Protection of Children from Sexual Offences Act.

2. It is the case of the prosecution that the complainant

victim was aged 13 years old at the relevant time and was residing

with her parents and brother at Chunabhatti, Nagpur. The accused also

resided in the same locality. The victim was then in 9 th Standard in

Tilak Vidyalaya, which is situated near Dhantoli Garden, Nagpur. The

victim and the accused knew each other since childhood as house of

the accused was situated near the parental house of the victim.

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3. The first incident in the prosecution story occurred in July

2013 when the victim was on her way to school. The accused, around

7.00 a.m. accosted the victim and said "I love you". The victim ignored

the accused, attended the school and did not inform any person about

the incident. The next morning, the accused again confronted her and

asked her "yes or no" and the victim replied "I don't know". It is

alleged that the accused then parked his motorcycle, brandished a

knife and pointed the knife at the neck of the victim. The victim tried

to raise alarm, the accused pressed her mouth, the victim managed to

free herself and went to her school. On the same day at 11-30 a.m.

when the victim was returned from the school, she was again accosted

by the accused and threatened with a knife. The accused is alleged to

have threatened the victim that should she disclose the incident to

anyone, she and her brother shall be killed. The victim did not report

the incident to anyone.

4. The case of the prosecution further is that in August 2013

when the victim was on her way to attend tuition class at about 4-00

p.m., the accused stopped her and forcibly took her on his motorcycle

to Marigold Photo Studio and took her photographs with him. This is

allegedly done at the point of knife. The victim did not narrate the

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incident to any person because of the threats issued by the accused.

The victim was on her way to her school on 03-12-2013 to attend

cultural programme and at about 11-30 a.m. near Chitale Marg the

accused again accosted her, brandished a knife and forcibly took her

on his motorcycle to Shivangaon forest which was a secluded area.

The accused parked his vehicle, tried to kiss the victim who attempted

to ran away and in the process fell down. The accused caught her,

inflicted four to five slaps on her face, forcibly removed her school

uniform, gagged her mouth with handkerchief, undressed her and

forcibly committed sexual intercourse. The accused allegedly took

photographs of the victim on his mobile, when the victim was nude.

The accused then dropped the victim in Dhantoli area. The victim

attended the cultural programme in the school and on her way back to

her house at 5-00 p.m. accused accosted her and issued threat that if

the victim informs any person about the incident, her family members

shall be killed. The victim again did not inform the incident to her

family members.

5. The prosecution version is that on 28-2-2014 when the

victim was attending the school, the accused sent one mobile and

chocolate through one Ritik Upadhya. The victim threw away

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chocolate while retaining the mobile due to fear. On 09-3-2014

parents of the victim noticed the mobile, made enquiries with the

victim, the victim narrated the various incidences including the forcible

sexual intercourse and on 11-3-2014 the victim and her parents lodged

a report with the Dhantoli police station. The statements of the victim

is recorded at Exhibit 21 and an offence vide Crime 66/2014 was

registered at Dhantoli police station.

6. The accused was arrested on 16-3-2014. The clothes of

the victim were seized from her mother vide seizure memo Exhibit 36.

The investigating officer prepared a spot panchanama Exhibit 40. A

second spot panchanama Exhibit 41 was prepared since during the

investigation it transpired that the accused committed similar act in a

room at Chunabhatti. The victim was sent for medical examination

and the medical examination report is Exhibit 48. The pleasure

motorcycle and the clothes of the accused were seized vide

panchanama Exhibits 54 and 57 respectively. The mobile was seized

vide seizure panchanama Exhibit 58. According to the prosecution, the

accused gave a memorandum statement Exhibit 60 while in police

custody pursuant to which the knife allegedly used in the offence was

recovered and seizure panchanama Exhibit 61 was prepared. The

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accused was medically examined and the medical examination report

is Exhibit 67. The birth certificate of the victim is Exhibit 24. The

investigation culminated into charge-sheet, the learned Sessions Judge

framed charge at Exhibit 4, the accused pleaded not guilty and claimed

to be tried. The defence of the accused as is evident from the tenor of

the cross-examination and statement under Section 313 of the Criminal

Procedure Code, 1973 is of false implication.

7. Shri D.A. Sonwane, learned Counsel for the accused would

urge that the prosecution story is inherently incredible. He would

submit that the evidence on record is grossly insufficient to prove that

the accused threatened or pressurized the victim. He would further

submit that false implication of the accused is a real possibility and in

the absence of corroborative evidence the accused could not have been

convicted on the basis of the testimony of the victim/prosecutrix. The

judgment impugned is also attacked on the ground that the delay in

lodging the first information report is inordinate and unexplained. The

learned Counsel further submits that the fact that the victim did not

make a hue and cry or an attempt to shout or raise alarm when the

accused allegedly took her on his motorcycle to Shivangaon forest area

would suggest that the allegation that the victim was forced to

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accompany the accused to Shivangaon forest area is not worthy of

acceptance. The learned Counsel further submits that the alleged spot

of forcible sexual intercourse at Shivangaon forest area is rough terrain

would surely have caused some injuries to the victim. That the medical

evidence does not so suggest is, according to the learned Counsel,

totally inconsistent with the prosecution version. The learned Counsel

for the accused invites my attention to the medical examination report

and in particular to the absence of external injury on the private part of

the victim. The learned Counsel would urge that the conviction is

manifestly erroneous and militates against the oral and documentary

evidence on record. Per contra, the learned Additional Public

Prosecutor Shri V.A. Palshikar would urge that it is not in dispute that

the victim was only thirteen years old at the relevant time and there is

no material brought on record to suggest false implication. He would

urge that the testimony of the minor victim is consistent with the first

information report and is confidence inspiring. The learned Additional

Public Prosecutor submits that the minor victim has stood her ground

in the extensive cross-examination and nothing is brought on record in

the cross-examination to shake the credibility of the testimony of the

victim. He would urge that this Court should ordinarily accept the

testimony of the minor prosecutrix/victim in the absence of any

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evidence to suggest that the accused was falsely implicated and that

since the victim/prosecutrix is not an accomplice, her evidence did not

call for any corroboration. The learned Additional Public Prosecutor

would urge that there is no straight-jacket formula to judge or asses

the implication of delay in lodging the first information report,

assuming that there is a delay. The learned Additional Public

Prosecutor submits that the first information report is lodged with

promptitude upon the parents of the minor prosecutrix discovering the

mobile and coming to know of the sexual exploitation of their daughter

at the hands of the accused. He would further submit that in view of

the age of the prosecutrix, which was indisputably thirteen years, even

if it is assumed that the sexual intercourse was with the consent of the

victim, such consent is immaterial and the accused would be guilty of

offence punishable under Section 376(2) of the Indian Penal Code read

with Sections 3 and 4 of the Protection of Children from Sexual

Offences Act, 2012 and offence punishable under Section 354-D (1) of

the Indian Penal Code read with Sections 11(iv) and 12 of the

Protection of Children from Sexual Offences Act, 2012.

8. I have closely scrutinized the record and have given my

anxious consideration to the appreciation of evidence by the learned

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Sessions Judge. For reasons recorded infra, I have no hesitation in

confirming the judgment and order impugned and dismissing the

appeal.

9. The minor prosecutrix is examined as P.W.1. Her

testimony is by and large consistent with the first information report.

She has been extensively cross-examined. It is suggested to P.W.1 that

due to strained relationship between her maternal uncle and the

accused, she has falsely implicated the accused. The effort in the cross-

examination is also to bring on record that considering the distance

between the school of the prosecutrix and Shivangaon forest area

where she is allegedly raped by the accused and the presence of traffic

signals, traffic police and the pedestrian and vehicular traffic during

the journey of twenty-two to twenty-five minutes, the version of the

prosecutrix that she was forced to accompanying the accused at knife

point is inherently unbelievable. It is suggested to P.W.1, by referring

to every material fact deposed to in the examination-in-chief, that the

version of the victim is untrue and that she was falsely implicating the

accused. I am of the opinion that although the cross-examination of

the witness creates doubt about the version that the prosecutrix was

forced to have sexual intercourse at knife point, as is rightly contended

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by the learned Additional Public Prosecutor, even if it is assumed

arguendo that the prosecutrix was a consenting party, she being only

thirteen years old at the relevant time, consent, if any, is immaterial

and does not take case of the defence any further.

10. The testimony of the minor prosecutrix is consistent and

confidence inspiring. I am not persuaded to accept the submission of

the learned Counsel for the accused that false implication of the

accused is a real possibility. A vague and omnibus suggestion in the

cross-examination that due to strained relationship between the

maternal uncle of the prosecutrix and the accused and a blissfully

similar vague plea in statement under Section 313 of the Criminal

Procedure Code, 1973 is not sufficient to uphold the defence of false

implication particularly as the testimony of the prosecutrix is generally

reliable and confidence inspiring. In the factual scenario of this appeal,

I am not in a position to record a finding of false implication which

would suggest that maternal uncle of the prosecutrix would use her as

a tool to wreck vengeance at the pain of social stigma and humiliation.

It is equally difficult to believe that the thirteen years old prosecutrix

would be a willing party to such a sinister and diabolic design to falsely

implicate the accused. I would safely rule out the possibility of false

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implication.

11. The mother of the prosecutrix is examined as P.W.2. She

has deposed that it was only on 09-3-2014 that she and her husband

noticed the mobile and upon enquiries with her daughter, she came to

know of the sexual exploitation. Nothing material is brought on record

in her cross-examination. P.W.3 Dhanraj Sayre is examined to prove

the spot panchanama Exhibit 40, he did not support the prosecution

and was declared hostile and cross-examined. During the cross-

examination by the prosecution, he supported the prosecution version

and was, therefore, cross-examined by the defence. P.W.4 Dr.

Madhuri Deotale is examined to prove the medical examination report

Exhibit 48. She states that she did not notice any external injury in the

general examination of the prosecutrix. However, in genital

examination, she found that the hymen of the prosecutrix was

ruptured. She opined that overall findings are consistent with the

sexual intercourse. In the cross-examination, P.W.4 denies the

suggestion that her deposition is at the instance of the police. P.W.5

Baban Solanke is examined to prove the oral report Exhibit 21 and

P.W.6 Chitra Mesre who then was attached with the Dhantoli police

station is examined since she conducted the investigation. She has

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proved the seizure panchanama of the clothes of the accused Exhibit

57, the spot panchanama Exhibit 40, the seizure panchanama of the

mobile Exhibit 58, the memorandum under Section 27 of the Indian

Evidence Act Exhibits 60 and 61 and deposes that upon completion of

the investigation, presented the charge-sheet. Nothing material is

brought on record in her cross-examination. The accused has taken a

defence of total denial in the statement under Section 313 of the

Criminal Procedure Code, 1973. Pertinently nothing is stated in the

statement under Section 313 of the Criminal Procedure Code, 1973

about the strained relationship between maternal uncle of the

prosecutrix and the accused nor has the accused stated that he was

being falsely implicated. Such a suggestion is given to the prosecutrix

in her cross-examination, however, in the statement under Section 313

of the Criminal Procedure Code, there is absolutely no whisper of false

implication due to allegedly strained relationship between the maternal

uncle of the prosecutrix and the accused.

12. The implication of delay in lodging first information

report, assuming there is delay, would depend entirely on the facts of

the case. The first information report is lodged on 11-3-2014 with

reasonable promptitude since the parents of the minor prosecutrix

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came to know of the sexual exploitation on 09-3-2014. They

discovered the mobile given to the prosecutrix by the accused and

made enquiries leading to the prosecutrix narrating the incidence of

sexual exploitation. It is true that the minor did not inform her parents

about the incident till the mobile was discovered on 09-3-2014. But

then, while the silence of the minor may possibly suggest a consensual

relationship, the same is immaterial in view of the fact that the

prosecutrix was a minor aged thirteen years. What is important and

material is that her parents took the prosecutrix to the police station

and ensured the lodging of first information report.

13. The judgment and order impugned does not suffer from

any legal infirmity and no interference is called for in exercise of

appellate jurisdiction. The appeal is sans substance and is dismissed.

The fees of the learned Advocate appointed for the appellant is

quantified at Rs.5,000/-.

JUDGE adgokar