Bombay High Court
Gulabrao S/O Shravanji Bhamode vs State Of Maharashtra, Through ... on 6 June, 2017
Bench: V.M. Deshpande
apeal no.432.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 432 OF 2015
Gulabrao S/o Shravanji Bhamode,
Aged about 80 years, Occ: Labour,
R/o Chaudhari Plot, Karasgaon,
Tah-Chandur Bazar,District-Amravati. ..... APPELLANT
...V E R S U S...
State of Maharashtra,
Through Police Station Officer,
Police Station Chandur Bazar,
District: Amravati. ...RESPONDENT
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Shri D.A.Sonwane,Advocate for appellant.
Shri R.S.Nayak,Addl.P.P. for State.
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CORAM:- V. M. DESHPANDE, J.
DATED :- JUNE 6,2017
ORAL JUDGMENT
The present appeal is directed against the judgment
and order of conviction passed by Learned Additional Sessions
Judge,Achalpur dated 11/4/2014, in Special(POCSO) Case
No.01/2012. By the impugned judgment the learned Court below
convicted the appellant for the offence punishable under Section
376(2)(i) r/w Section 511 of Indian Penal Code and sentenced
him to suffer S.I. for seven years and to pay fine of Rs. 1000/- and
in default of payment of fine to suffer S.I. for 3 months. He is also
sentenced for the offence punishable under Section 10 of
Protection of Children from Sexual Offences Act, and on that
count he was directed to suffer S.I. for 5 years and to pay fine of
Rs. 1000/- and in default of payment of fine he has to suffer S.I.
for 3 months.
2. I heard Shri D.A.Sonwane, learned advocate appointed
through Legal Aid Committee to represent appellant and Shri
R.S.Nayak, learned Addl. P.P. for for the State. Foremost contention
of the learned counsel for appellant is that looking to the age of the
appellant there should not be conviction as directed by the Court
below and he should be therefore acquitted. He further submitted
that in the present case the prosecution has not examined prosecutrix
and therefore in his submission the prosecution case must fail. These
were only his submissions.
3. Gopal Vitthal Bharti(PW4) was police officer of
P.S.Shirajgaon on 26/4/2013. On the said day, Ganesh Manikrao
Tayde(PW1), his wife and prosecutrix, their daughter came to police
station.
Ganesh Tayade lodged his oral report(Exh.19). As per the
said report in the morning of 26/4/2013 first informant proceeded
for his work at about 6.00 'O clock in the morning. He returned at
10.00' O clock. That time he noticed his wife alone was sitting. He
therefore made inquiry with his son and daughter. That time, his son
Jayesh aged 4 years came to the house. First informant made inquiry
with him regarding the prosecutrix. As per F.I.R. Jayesh informed
first informant that prosecutrix is inside the house of appellant who
is their neighbour and the door of his house is closed from inside
therefore, he and his wife went to the house of appellant-accused.
There they noticed that the door was closed from inside. First
informant therefore gave call to the prosecutrix that time, appellant
opened the door and prosecutrix came outside the house by weeping.
When first informant was making inquiry with her he noticed that
the pant which was on her person was wet therefore, when he and
his wife removed her pant that time he and his wife noticed that her
private part was reddish and was swollen. They also noticed sticky
substance on the person of the prosecutrix. On noticing this first
informant made inquiry with the appellant that time he started
shivering therefore, he lodged report against the present appellant.
4. Gopal Bharti (PW4) registered the offence against
appellant for the offence punishable under Section 376 and 6 of the
POCSO Act vide Crime No.29/2013. The printed F.I.R. is at Exh.20.
5. After registration of the crime investigating officer Gopal
Bharti(PW4) sent female child for her medical examination along
with lady constable with requisition letter (Exh.26). He also seized
the clothes of child from the custody of Ganesh (PW1) vide seizure
memo (Exh.21). He also visited the spot and spot panchnama
(Exh.22) was drawn in presence of panchas. He seized quilt from
the spot under seizure memo(Exh.29). Appellant was present in his
house. He was arrested under arrest panchnama(Exh.40). Appellant
was also sent for his medical examination with a requisition letter
(Exh.32). His blood sample and pubic hair were seized under seizure
memo (Exh.36). All muddemal alongwith requisition were sent to
chemical analyser. He also sent semen, cutting of half pant and dhoti
i.e. clothes of accused to C.A.Amravati. The DNA test was conducted
and DNA report is available on record at Exh.50.
6. The age of the victim-prosecutrix is only 2 years and 11
months as it could be seen from the F.I.R.(Exh.20). Therefore in
view of such a tender age of the victim girl in my view non
examination of such child ipso facto does not render the
prosecution as untrustworthy. Therefore, the submission of the
learned counsel for the appellant in that behalf is hereby rejected.
7. P.W.2 is Dr.Lalita Rajiv Mule. On 26/4/2013 she was
attached to District Ladies Hospital, Amravati as a medical officer.
Her evidence shows that patient "victim girl" aged about 2 years and
11 months was brought in the hospital with a requisition letter
(Exh.26) alongwith parents of the victim. Dr. Lalita (PW2) obtain
consent for medical examination of the child from her parents. She
noticed no external injury over genital region. She also noticed there
was no evidence of any penal insertion. She also took vaginal swab.
It was her opinion that there was no evidence of any sexual
intercourse however, as per her evidence an attempt to commit rape
is not ruled out.
8. P.W.3 is Dr.Ashok Janrao Thakare. He has examined
appellant and gave his certificate (Exh.34). According to his
opinion , appellant was capable to perform sexual intercourse.
9. C.A.report is available on record and it is at Exh.49-A.
The pant which was on the person of victim girl was seized and was
sent to C.A. in sealed condition. C.A.report(Exh.49-A) shows that it
was having semen stains. Similarly, dhoti of the appellant which was
sent to C.A. was also having semen stains.
Noticing the semen on the pant of victim a girl aged of 2
years and 11 months is most unnatural. Through the evidence of
Ganesh(PW1) father of victim the prosecution has established
victims's presence inside the house of the appellant. Even on the
dhoti of the appellant there were semen stains. No explanation is
offered by the appellant as to how semen stains were noticed on the
clothes of the little victim girl.
Further D.N.A. report(Exh.50) also confirmed that the
D.N.A.profile obtained from semen detected on Exh.2 half pant and
Exh.3 dhoti i.e. of appellant are identical and from one and the same
source of male original and matched with the DNA profile of blood
of the appellant.
10. In view of the aforesaid scientific evidence against the
appellant and the fact that Ganesh(PW1) took custody of his
daughter from the house of the appellant, clearly proved case against
the appellant and I see no reason to upset the judgment and order of
conviction. The other submission of learned counsel for the appellant
that the appellant is aged about 80 years and leniency should be
shown to him is required to be rejected for the reason that he has
tried to assault on a girl of 2 years and 11 months. The prosecution
has proved its case. The act on the part of the appellant in my view
shows that he is a pervert man and therefore no discretion can be
exercised in his favour. Hence, appeal is dismissed.
ORDER
Appeal is dismissed.
JUDGE
kitey
