Surendra S/O Ramkisan Khobragade vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 8180 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 69 OF 2016



 Surendra s/o. Ramkisan Khobragade,
 Aged about 53 years, 
 Occupation : Mechanic,
 Resident of Gonditola Kudwa, 
 Tahsil and District Gondia                                  ....     APPELLANT


          Versus


 The State of Maharashtra,
 through its Police Station Officer, 
 Ramnagar, Police Station Ramnagar,
 Tahsil and District Gondia.                                 ....       RESPONDENT


 ______________________________________________________________
             Mr. B.M. Kharkate, counsel for the appellant.
       Mr. H.R. Dhumale, Addl. Public prosecutor for respondent.
 ______________________________________________________________

                                          CORAM   :ROHIT 
                                                         B. DEO, J.

DATE OF RESERVING THE JUDGMET :10.10. 2017 DATE OF PRONOUNCING THE JUDGMENT : 13.10.2017

ORAL JUDGMENT :

Challenge is to the judgment and order dated 5.2.2016, in

Special Case 7 of 2013 delivered by Special Judge, Gondia, by and

under which the appellant (hereinafter referred to as "the accused") is

convicted of offence punishable under section 7 read with section 8 of

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the Protection of Children from Sexual Offences Act ("POCSO" for

short) and is sentenced to suffer rigorous imprisonment for three years

and to payment of fine of Rs. 500/- and is further convicted of offence

punishable under section 354-A of Indian Penal Code ("IPC" for short)

and is sentenced to suffer rigorous imprisonment for one year and to

payment of fine of Rs. 200/- and is further convicted of offence

punishable under section 354-B of IPC and is sentenced to suffer

rigorous imprisonment for three years and to payment of fine of

Rs.500/-. The accused is also convicted of offence punishable under

section 3 (1) (x) and (xii) of the Schedule Caste and Schedule Tribe

(Prevention of Atrocities Act) (for short "Atrocities Act") and is

sentenced to suffer rigorous imprisonment for one year and to payment

of fine of Rs. 200/-.

2 Heard Shri. B.M. Kharkate, the learned counsel for the

accused and Shri H.R. Dhumale, the learned Additional Public

Prosecutor for the respondent.

3 The case of the prosecution is that the victim (PW 5) who

was nine years as on the date of the incident was residing with her

mother Smt. Veena Bhuwati at village Kudwa, Tahsil and District

Gondia. The victim was mentally challenged. On 24.1.2013, the

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mother of the victim had gone to the field to fetch wood for fuel and

the victim was playing in front of her house. The accused accosted the

victim, took her behind house of one Rajni Maraskolhe, gave her

money and biscuits and removed her clothes. Smt. Chhotibai Vithoba

Salunkhe saw the accused taking the victim girl, followed the accused

and caught the accused removing the underwear of the victim red

handed. She intervened and the accused fled from the spot. Chhotibai

(PW 2) brought the victim girl home and narrated the incident to her

mother (PW 1). A report was lodged against the accused by PW 2 -

Veena on the basis of which offence under section 354-A and 354-B of

IPC, under section 9 (K) of POCSO Act and under section 3 (1) (x),

(xii) of Atrocities Act was registered at Ramnagar Police Station,

Gondia. The investigation was conducted by Deputy Superintendent of

Police Shri Anil Paraskar (PW 6) and the accused was chargesheeted in

the Special Court at Gondia.

4 The Special Judge framed charge at Exh. 4, the accused

abjured guilt and claimed to be tried. The defence of the accused as is

apparent from the statement recorded under section 313 of the Code of

Criminal Procedure, is of total denial and false implication. A specific

defence is taken by the accused that he was desirous of purchasing the

land besides the land of Maraskolhe and so was PW 4 Devipuri

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Gangdarao and in view of the strained relationship inter se between

the accused and PW 4, the complainant Veena was instigated by PW 4

to falsely implicate the accused.

5 The prosecution has examined as many as seven witnesses

including complainant Sau. Veena Ramesh Bhowati as (PW 1),

Chhotibai Vithoba Salunkhe (PW 2), Antkalabai Santosh Sulanke (PW

3), Devipuri Govindpuri Gangadrac (PW 4), victim girl (PW 5), Shri

Anil Subhash Paraskar (PW 6) and Vimal w/o. Yashwant Tadge (PW

7).

6 The deposition of PW 1 Smt. Veena is broadly consistent

with the First Information Report. She states that the victim is

mentally challenged. She further states that when she had gone to the

field for bringing firewood, the victim was playing in front of the

house. PW 3 - Antakalabai came to the field and told her that the

accused took her daughter towards the house of Rajni Maraskolhe and

this was disclosed to her mother in law Chhotibai (PW 2). PW 1 Veena

rushed home, saw the victim surrounded by neighbours, Chhotibai PW

2 told her that she had followed the accused while he was taking the

victim girl with him and saw the accused removing the underwear of

the victim girl.

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The evidence of Chhotibai PW 2 is on similar lines. She states

that her daughter in law Antakalabai told her that the accused took the

victim towards the house of Maraskolhe, she followed the accused and

saw the accused, removing the underwear of the victim girl. She

intervened and the accused fled away from the spot. PW 3 Antakalabai

has deposed that she saw the accused taking the victim girl towards

house of Maraskolhe and disclosed this to her mother in law Chhotibai.

She then informed the mother of the victim Veena that the accused

took her daughter to the house of Maraskolhe.

7 The victim is examined as PW 5. She has deposed that the

accused gave her money and biscuit and removed clothes at the house

of Maraskolhe. She then deposed that since mother of Manju and

Antakala came there, the accused fled from the spot.

8 Deputy Superintendent of Police Shri. Anil Paraskar, who

is Investigating Officer, is examined as PW 6. He has deposed as to the

various facets of the investigation.

9 Smt. Vimal Tagde who is examined as PW 7 has proved

the age of the prosecutrix. She has deposed that she is in-charge Head

Mistress of Nagar Parishad Marathi Prathamik School, Gondia since

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December 2012. The victim girl was studying in her school in the 1st

standard and her date of birth as per the school register was 15.4.2004.

PW 7 has further deposed that the victim belongs to Mahar (Scheduled

Caste) community. She has proved certificate Exh. 31 issued on the

basis of the school register and the copy of the school admission

register evidencing that the date of birth of victim is 15.4.2004.

10 Shri. B.M. Kharkate, the learned counsel for the accused

submits that the judgment of conviction is against the weight of

evidence on record. He submits that the learned Special Judge failed to

appreciate that the accused had probabilized the defence of false

implication on the touchstone of preponderance of probabilities. The

learned counsel for the accused Shri. B.M. Kharkate would further

submit that the prosecution failed to prove offence under section 3 (1)

(x) and (xii) of Atrocities Act and the conviction is unsustainable. The

learned counsel for the accused Shri. B.M. Kharkate would submit that

the victim has admitted that she was instructed by her mother as to

what is to be deposed during the trial.

Shri. B.M. Kharkate, the learned counsel, would submit that the

evidence on record is grossly insufficient to prove the offence much less

beyond reasonable doubt.

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 11                Per   contra,   Shri.   H.R.   Dhumale,   the   learned   Additional

Public Prosecutor would submit that the evidence of the eye witness

PW 2 Chhotibai who has seen the accused removing the underwear of

the victim is not shaken in cross examination. Her evidence is

confidence inspiring and the conviction can be based on the sole

testimony of the eye witness PW 2. The learned APP Shri. Dhumale

would then submit that although the victim was perceived by the

learned Special Judge as a slow learner, her evidence is also confidence

inspiring. She has categorically deposed that the accused gave her

money and biscuits and removed her clothes at the house of Rajni

mami. (reference is to Smt. Rajni Maraskolhe). It is true that some

discrepancies are brought on record in her cross examination.

Illustratively, in response to a question in the cross examination, the

victim states that no one has inquired with her about the incident. She

has also accepted the suggestion that her mother instructed her as to

what is to be deposed before the Court. On a holistic appreciation of

the evidence, I am not persuaded to hold that such stray answers from

the victim girl are sufficient to dent the credibility of her testimony.

The victim, concededly, a slow learner was hardly 11 years when she

entered the witness box. The answer that she was instructed by her

mother as to what is to be deposed does not necessarily suggest that

she was tutored and is not a truthful witness. The stray statement that

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no inquiry was made by anybody about the incident is of little

significance.

12 PW 2 Chhotibai has deposed that she saw the accused

removing the underwear of the victim girl. It is brought on record that

she is a beggar and she begs pretending that she can not see. It is also

brought on record that PW 2 has eye sight problem. However, her

testimony can not be discarded or brushed aside simply because she is

a beggar pretending that she can not see. The testimony of PW 2 is

more than amply corroborated by the testimony of Veena PW 1,

Antakalabai PW 3 and that of the victim herself. Antakalabai PW 3 has

deposed that she saw the accused taking the victim girl towards the

house of Maraskolhe and disclosed this to her mother in law Chhotibai

(PW 3). She has deposed that after discloser to Chhotibai, she rushed

to inform PW 1 Veena. Nothing is brought out in the cross

examination of PW 3 to take the case of the accused any further.

13 The learned APP Shri. Dhumale is right in contending that

in view of the presumption under section 29 of the POCSO Act which is

activated on a person being prosecuted for committing or abetting or

attempting to commit any offence under section 3, 5, 7 and 9 of the Act

and in the teeth of the evidence on record, the prosecution has proved

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the offence beyond reasonable doubt.

The appeal is devoid of substance and is dismissed.

JUDGE

Belkhede