Sandip S/O. Atmaram Khandekar (In ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 9509 Bom

   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.
                                  
   -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   Mr.D.A.Sonwane, Advocate (appointed) for the appellant.
   Mr.S.D.Sirpurkar, Addl.Public Prosecutor for the respondent/State.
   =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                                   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/-,

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.

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

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

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

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

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

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

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

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.

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

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

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

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

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

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.

Chute