Bombay High Court
Deepak @ Dipkya Pundalikrao ... vs State Of Maharashtra Thr. Pso,Ps. ... on 21 July, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.786/2004
Deepak @ Dipkya Pundalikrao Bhoskar,
aged about 21 Yrs., R/o Gram Amboli,
P.S. Umrer, Distt. Nagpur. ..Appellant.
..Vs..
State of Maharashtra, through P.S.O.,
Police Station, Umrer, Distt. Nagpur. ..Respondent.
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Shri Amit Kukday, Advocate (appointed) for the appellant.
Shri N.R. Patil, A.P.P. for the respondent / State.
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CORAM : Z.A.HAQ, J.
DATE : 21.7.2017.
ORAL JUDGMENT
1. The appellant has filed this appeal to challenge the judgment passed
by the Sessions Court by which the appellant is convicted for the offence
punishable under Sections 511 / 376 of the Indian Penal Code and sentenced
to undergo rigorous imprisonment for 5 years and to pay fine of Rs.10,000/-
and in default of payment of fine to undergo further rigorous imprisonment for
6 months. The conviction of the appellant for the offence punishable under
Section 201 of the Indian Penal Code and sentence to undergo rigorous
imprisonment for 3 years and to pay fine of Rs.1,000/- and in default of
payment of fine to undergo rigorous imprisonment for 1 month is also
challenged.
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2. This appeal was admitted by order passed on 17 th January, 2005.
By order passed on 20th January, 2005 this Court suspended the sentence and
directed that the appellant be released on bail.
3. None appeared for the appellant on 27th March, 2017, 5th April,
2017, 13th April, 2017 and 3rd May, 2017. On 11th July, 2017 when the appeal
was listed for hearing none appeared for the appellant. This Court passed an
order recalling the order passed on 20 th January, 2005 by which the sentence
was suspended, and it was directed that non-bailable warrant be issued to
secure the presence of appellant before this Court. It was directed that the
appeal be listed on 21st July, 2017. Shri Amit Kukday, Advocate was appointed
to represent the appellant. When the appeal was called out in the morning
session Shri Amit Kukday Advocate sought adjournment and the hearing of
appeal was adjourned for 24th July, 2017. Subsequently, the appellant is
produced having been arrested as per the order passed by this Court on 11 th
July, 2017.
4. Heard Shri Amit Kukday, Advocate who is appointed to represent
the appellant and Shri N.R. Patil, learned A.P.P.
5. The case of the prosecution is that Sangita (mother of victim, aged
abut 4 ½ years) lodged complaint on 19 th December, 2003 that on 16th
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December, 2003 at about 1 p.m. when she returned after work from her
agricultural field to her house, she found that her daughter (victim) was crying
and when she asked, the victim stated that the accused had taken her to his
grand-mother's house where nobody was present, laid her on cot and
committed the crime.
After the F.I.R. was registered, the investigation was undertaken,
accused was arrested and after completing the formalities, charge-sheet was
filed before the Judicial Magistrate First Class, Umrer and as the case is to be
tried by the Court of Sessions, it was committed to the Sessions Court. The
Sessions Court framed charge, read it over and explained it to the accused, the
accused did not accept the guilt and claimed to be tried and, therefore, the trial
was conducted. After conducting trial, the Sessions Court recorded that the
prosecution has proved that the victim was aged about 4 ½ years at the time of
the incident, that the prosecution has proved that the accused attempted to
have sexual intercourse with the victim and convicted the accused and
sentenced him as per the order.
6. The learned Advocate for the appellant / accused has referred the
report of medical examination of the victim (Exh. No.10-A) and has submitted
that it does not support the case of the prosecution as the report states that no
external injuries were found over the body of the victim, the hymen was intact
and there was no laceration of vagina. It is submitted that the story
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put-forth by the complainant is also improbable and in any case, doubtful. It is
argued that the incident had taken place on 16th December, 2003 at about 12 to
12.30 p.m. the complaint is lodged on 19th December, 2003 and there is no
justifiable explanation for delay in filing the complaint. Alternate submission is
made on behalf of the appellant that even if the case of the prosecution is
accepted, at the most, offence punishable under Section 354 of the Indian
Penal Code will be made out. It is further submitted that after the appellant is
released on bail as per the order passed by this Court on 20 th January, 2005
there has not been any complaint against the appellant and considering these
facts, the sentence be reduced.
7. Shri N.R. Patil, learned A.P.P. has submitted that though accused
tried to make out a case that false complaint is filed by the complainant as
there was some dispute between the father of accused and complainant, the
complainant, has categorically denied about such dispute in her
cross-examination. The learned A.P.P. has pointed out from the statement
(evidence of victim) that though she was aged about 5 ½ years at that time and
though cross-examination on behalf of accused was permitted, the testimony of
victim could not be shattered.
8. The statement / evidence of victim (P.W.2) shows that she has
described the incident as reported by her mother at the time of lodging the
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complaint. The evidence of Sangita (P.W.1) / mother of victim also cannot be
doubted and nothing is brought by the defence in the cross-examination of this
witness on the basis of which it can be said that the case of prosecution can be
doubted.
Apart from this, the facts on record show that the parents of victim
and the victim were referred to the Mahila Cell, Umrer. Vijaya (P.W.5) /
Member of Mahila Cell is examined by the prosecution who has stated that the
victim had described the incident when she was asked about it in a separate
room. Again nothing is brought by the defence in the cross-examination of this
witness which creates any doubt about the case of the prosecution.
9. I find that the learned Additional Sessions Judge has properly
appreciated the evidence on record and has rightly convicted the appellant. I
see no reason to interfere with the conclusions of the learned Additional
Sessions Judge convicting the appellant for the offence punishable under
Sections 511 / 376 of the Indian Penal Code.
However, the submission made by the learned Advocate for the
appellant / accused regarding reduction in sentence requires consideration. As
recorded earlier, by the order passed on 20th January, 2005 the sentence
imposed on the accused by the Sessions Court was suspended and it was
directed that the appellant be released on bail and he was released on bail.
There had been no complaint against the appellant after he was released on
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bail. At present the appellant is aged about 35 years and it is submitted by the
learned Advocate for the appellant that he is married and is having 2 sons,
aged about 4 years and 2 years. Considering these aspects, in my view, the
order passed by the learned Additional Sessions Judge directing the appellant
to undergo rigorous imprisonment for the offence punishable under Sections
511 / 376 of the Indian Penal Code is required to be modified and the interests
of justice would be sub-served by directing that the appellant shall undergo
rigorous imprisonment for 3 years. The other part of the order is maintained.
10. Hence, the following order:
(i) The conviction of the appellant for the offence punishable under
Sections 511 / 376 and Section 201 of the Indian Penal Code is maintained.
(ii) The order passed by the Sessions Court directing the accused to
undergo rigorous imprisonment for 5 years for the offence punishable under
Sections 511 / 376 of the Indian Penal Code is modified. It is directed that
for the offence punishable under Sections 511 / 376 of the Indian Penal Code
the appellant shall undergo rigorous imprisonment for 3 years.
The order passed by the Sessions Court directing the accused to pay
fine of Rs.10,000/- and in default to undergo rigorous imprisonment for 6
months is maintained.
(iii) The order passed by the Sessions Court to undergo rigorous
imprisonment for 3 years for the offence punishable under Section 201 of the
Indian Penal Code and to pay fine of Rs.1,000/- and in default to undergo
further rigorous imprisonment for 1 month is maintained.
(iv) All substantive sentences to run concurrently.
(v) The impugned judgment is modified in the above terms.
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(vi) The appellant is arrested as per the order passed by this Court on
11th July, 2017. The bail bonds executed / furnished by the appellant are
forfeited.
(vii) Fees of Shri Amit Kukday, Advocate appointed to represent the
appellant is quantified at Rs.5,000/-.
(viii) The appeal is partly allowed accordingly.
JUDGE
Tambaskar.
