Vikas Diwansingh Patil vs The State Of Maharashtra And Anr
2017 Latest Caselaw 6972 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 157 OF 2017

Vikas Diwansingh Patil
Age: 35 years, Occu.: Labour,
R/o Varkhed Khurd, Tq. Bodwad,
Dist. Jalgaon.                                               ..APPELLANT

     VERSUS

1. State of Maharashtra
   Through Investigating Officer,
   Bodwad Police Station,
   Tq. Bodwad, Dist. Jalgaon.

2. Shrushti Jaywant Patil
   Age: 17 years, Occu.: Student,
   R/o Varkhed Khurd, Tq. Bodwad,
   Dist. Jalgaon.
   Minor - Through Her Guardian
   Jaiwant @ Dinkar s/o Prabhakar Patil
   Age: 45 years, Occu.: Agri.,
   R/o Varkhed Khurd, Tq. Bodwad,
   Dist. Jalgaon.                                            ..RESPONDENTS

                          ----
Mr. R.V. Gore, Advocate for appellant
Mr. B.A. Shinde, A.P.P. for respondent no.1
Mr. G.S. Shembole, Advocate for respondent no.2
                          ----

                                  CORAM         : SANGITRAO S. PATIL, J.

RESERVED ON : AUGUST 28, 2017 PRONOUNCED ON : SEPTEMBER 11, 2017

JUDGMENT :-

The appellant has assailed the judgment dated

10th April, 2017 passed in Special (POCSO) Case No. 32

2 CRAPEAL-157-2017

of 2014 by the learned Additional Special Judge /

Additional Sessions Judge, Bhusawal, whereby he has

been convicted for the offence punishable under

Section 8 of the Protection of Children from Sexual

Offences Act, 2012 ("POCSO" for short) and under

Section 448 of the Indian Penal Code ("IPC" for

short).

2. The victim girl was aged about 13 years in

the year 2014. She was studying in 7 th standard. On

31st January, 2014, the mother of the victim had gone

to the hospital at Bodwad, while her father had gone

to village Tembhi, Tq. Motala. The house, where the

victim was residing with her parents and grandfather,

was comprising of two rooms. In one of the rooms,

her aged grandfather was sleeping. He had lost sight

due to old age. The victim girl connected a pipe to

the water tap at about 5.00 p.m. and entered into the

house. At that time the appellant followed her and

entered into the house. The victim girl told him

that her parents were not present in the house and

3 CRAPEAL-157-2017

they would be coming in the evening. The appellant,

without uttering any word, caught hold of the right

hand of the victim girl and pushed her on a cot that

was inside one of the rooms of the house other than

the room in which her grandfather was sleeping. The

appellant pressed mouth of the victim girl and

started removing her nicker. At that time, her

friend viz. Pallavi (P.W.2) came to call her for the

purpose of playing. After hearing the call of

Pallavi (P.W.2), the appellant got frightened and

fled away. During the above mentioned incident, the

victim girl sustained scratches on her right hand and

waist. After the parents of the victim girl came

back home at about 5.30 p.m., the victim girl

narrated them about the incident and thereafter they

went to Police Station Bodwad. The victim girl

lodged a report against the appellant. On the basis

of that report, Crime No. 13 of 2014 came to be

registered against the appellant. The investigation

followed. The statements of the witnesses were

4 CRAPEAL-157-2017

recorded. The victim girl was medically examined.

After completion of the investigation, the appellant

came to be charge-sheeted for the offences punishable

under Sections 354-A and 448 of the I.P.C. and also

under Sections 8 and 12 of the POCSO Act.

3. The learned Trial Judge framed charges

against the appellant for the above mentioned

offences vide Exhibit - 7 to which the appellant

pleaded not guilty and claimed to be tried. His

defence was of total denial and false implication on

the ground that he was a mediator in the proposed

sale transaction of the land of the grandfather of

the victim girl with one Anant Galwade (D.W.1) and

when the said Anant Galwade (D.W.1) and the appellant

visited the house of the victim girl and demanded

back from the grandfather of the victim girl the

amount of earnest money, he refused to pay that

amount back and threatened to lodge a false case

against the appellant.

5 CRAPEAL-157-2017

4. The State/Prosecution examined six witnesses

to establish the guilt of the appellant. The

appellant examined Anant Galwade (D.W.1) in his

defence.

5. After evaluating the evidence on record, the

learned Trial Judge found the appellant guilty of the

offence under Section 7 punishable under Section 8 of

the POCSO Act and sentenced him to suffer rigorous

imprisonment for four years and to pay a fine of

Rs.10,000/-, in default, to suffer rigorous

imprisonment for two years. The learned Trial Judge

further held the appellant guilty of the offence

punishable under Section 448 of the I.P.C. and

sentenced him to suffer rigorous imprisonment for six

months and to pay a fine of Rs.500/-, in default, to

suffer rigorous imprisonment for 15 days. The

substantive sentences were directed to run

concurrently. Out of the fine amount, the amount of

Rs.10,000/- was ordered to be given to the victim

girl as compensation.

6 CRAPEAL-157-2017

6. The learned Counsel for the appellant

submits that the evidence of the victim girl is not

at all natural and probable. Though the house of the

victim girl is situate adjacent to the village road

and in thickly populated area, no independent witness

has been examined by the prosecution. Pallavi

(P.W.2), the friend of the victim girl, did not

support her version. The grandfather of the victim

girl was inside the house. Even then, the victim

girl did not raise any shouts, which does not appear

to be probable. The evidence of Anant Galwade

(D.W.1) shows that on 29th January, 2014, he had gone

alongwith the appellant for demanding back the

earnest money from the grandfather of the victim girl

and at that time, the grandfather of the victim girl

not only refused to pay back the amount of the

earnest money, but also threatened to lodge a false

complaint against the appellant. He submits that the

presumption under Section 29 of the POCSO Act has

been duly rebutted by the appellant by showing that

7 CRAPEAL-157-2017

there was a reason for the victim girl to lodge a

false report against him. He submits that the

scratches were not possible when there were clothes

on the person of the victim girl. He submits that

the victim girl was a child witness. Therefore,

independent corroboration to her version was

essential. According to him, the learned Trial Judge

did not appreciate the evidence of the prosecution

properly and wrongly convicted the appellant for the

above mentioned offences.

7. As against this, the learned A.P.P. submits

that there was absolutely no reason for the victim

girl to lodge a false report or speak lie against the

appellant. The transaction in respect of the

proposed sale of the land of the deceased grandfather

of the victim girl with Anant Galwade (D.W.1) has

nothing to do with the incident in question. The

grandfather of the victim girl was visually

challenged due to his old age. He was sleeping in

8 CRAPEAL-157-2017

another room. The parents of the victim girl were

not present in the house. The appellant took

disadvantage of this situation. The victim girl

specifically states that when the appellant tried to

remove her nicker, she sustained scratches on her

waist and hand. This evidence has been corroborated

by the medical evidence. Pallavi (P.W.2) belongs to

the community of the appellant. Therefore, in order

to save the appellant, she turned hostile. According

to him, the evidence of the victim girl is quite

natural. It creates great confidence. He submits

that the presumption laid down in Section 29 of the

POCSO Act has not been rebutted by the appellant. He

has been rightly convicted and sentenced by the Trial

Court. He, therefore, submits that the appeal may be

dismissed.

8. The victim girl deposes at Exh.13 that her

date of birth is 06th October, 2000. This evidence

has not been challenged on behalf of the appellant.

9 CRAPEAL-157-2017

She was aged about 13 years, 3 months and 26 days on

the date of the incident that took place on 31 st

January, 2014. Thus, she was a "child" on the day of

the incident as defined under Section 2(d) of the

POCSO Act being below 18 years of age.

9. The victim girl states that she was studying

in 7th standard when the incident took place. She was

aged about 16 years when she deposed before the

Court. She had attained the age of understanding.

She deposes that on the day of the incident, at about

5 p.m., she connected a pipe to the water tap and

went back inside her house. The appellant followed

her. She informed the appellant that her parents

were not at home. At that time, the appellant caught

hold of her right hand and pushed her on a cot. When

she tried to shout, the appellant pressed her mouth

and tried to remove her nicker. At that time, her

friend Pallavi (P.W.2) gave a call to her for

playing. Therefore, the appellant ran away from the

10 CRAPEAL-157-2017

house. She sustained scratches on her waist and hand

when the appellant tried to remove her nicker. This

version is corroborated by the contents of the

report (Exh.14) which was lodged by her in Police

Station Bodwad in the night of the incident itself

after her parents came back home. The only omission

that has been brought on record is that the fact that

she tried to shout is not specifically mentioned

therein. However, her version that the appellant

pressed her mouth at the time of the incident, has

been corroborated by the contents of the F.I.R.

(Exh.14). Pressing of the mouth of the victim itself

indicates that the appellant, in order to make it

difficult for the victim girl to raise shouts,

pressed her mouth. In the circumstances, this minor

omission would have no adverse effect on the case of

the prosecution.

10. Pallavi (P.W.2) (Exh.17) does not support

the prosecution. She admits in her cross-examination

11 CRAPEAL-157-2017

that the appellant belongs to her community. She

further admits that she is not in talking terms with

the victim girl. These two admissions are

sufficiently clear to show as to why Pallavi did not

support the prosecution. It is obvious that in order

to save the appellant, she resiled from her previous

statement, which will not create any doubt about the

case of the victim girl.

11. The grandfather of the victim girl was

inside the house. He was an aged person having lost

vision due to old age. His statement seems to have

been recorded by the investigating officer. However,

he could be examined since he expired prior to the

stage of recording the evidence in this case.

Therefore, it cannot be said that the prosecution

suppressed his evidence.

12. It has come in the cross-examination of the

victim girl that there were houses of Ganpat Daulat

12 CRAPEAL-157-2017

Patil, Dnyandeo Govinda Chaudhary and Shankar

Mangalsing Patil near the house where the incident

took place. She admits that the said persons had

come to her house after the said incident. The

learned Counsel for the appellant submits that these

persons have not been examined by the prosecution and

therefore, a doubt is created about the case of the

prosecution. This contention cannot be accepted. It

is a common knowledge that the incidents like the

incident-in-question generally occur at the places

which are not be visible to the outsiders. Such

offences are generally committed surreptitiously.

The appellant would not have dared to commit such

acts in the presence of neighbors of the victim girl.

Consequently, non-examination of these persons would

not throw doubt on the case of the prosecution. On

the contrary, the unchallenged evidence of the victim

girl that the said persons had come to her house

after the incident strengthens her version about

occurance of the incident. Had the incident as

13 CRAPEAL-157-2017

stated by the victim girl had not taken place, those

persons would not have visited her house.

13. Dr. Pawar, (P.W.5) (Exh.21) deposes that he

examined the victim on 31st January,2014 in Rural

Hospital at Bodwad and found the following injuries:-

"(i) Crescentric nail scratches, red and brown in colour, on right hand palm, dorsal aspect - simple in nature, caused by finger nail.

(ii) Multiple crescentric nail scratches, of size 2 x 0.1 cm and 3 x 0.1 cm, vertical in shape and red and brown in colour, on lower abdomen, pelvic region and right side 2 cm lateral to pubic symphisis, simple in nature and caused by finger nail."

14. Dr. Pawar (P.W.5) issued injury certificate

(Exh.22) and further opined by issuing the letter

(Exh.24) that the injuries found on the body of the

victim girl were caused by the finger nails. This

evidence fully corroborates the evidence of the

14 CRAPEAL-157-2017

victim girl about the cause of the scratches found on

her right hand and waist.

15. As per the agreement (Exh.39), the

grandfather of the victim girl had agreed to sell his

land to Anant Galwade (D.W.1) for Rs.3,25,000/- on

receiving Rs.75,000/- from him. The sale deed was to

be executed on or before 31st January, 2013. In case

the sale deed was not executed prior to 31 st January,

2013, the grandfather of the victim girl had agreed

to refund the earnest amount of Rs.75,000/-. The

appellant seems to be an attesting witness to the

said agreement. Anant Galwade (D.W.1) states that

the grandfather of the victim girl did not execute

the sale deed and therefore, he was demanding back

the earnest money from time to time. He states that

since the appellant was a mediator for the said

transaction, he visited the house of the victim girl

on 29th January, 2014 alongwith the appellant and

asked her grandfather to refund that amount. At that

15 CRAPEAL-157-2017

time, the grandfather of the victim girl refused to

pay that amount back and threatened to file a report

against them. According to the appellant that was

the reason for lodging of a false report against him.

16. Anant Galwade (D.W.1) admits that he alone

was able to complete the said transaction. He

further admits that he did not issue any notice to

the grandfather of the victim girl or initiate any

legal action against him for not completing the sale

transaction. Even if the evidence of Anant Galwade

(D.W.1) in respect of the proposed sale transaction

of the agricultural land is accepted for a while, it

will be clear that it was purely a civil dispute

between them. If the grandfather of the victim girl

wanted to lodge a false report, it would have been

lodged against Anant Galwade (D.W.1) and not the

appellant. By filing false report against the

appellant, the grandfather of the victim girl would

not have been in a position to evade refund of the

16 CRAPEAL-157-2017

earnest money to Anant Galwade (D.W.1). Thus, there

was absolutely no reason for the grandfather of the

victim girl to prompt the victim girl to lodge a

false report against the appellant. Moreover, at the

cost of the dignity of the victim girl and her family

members, no report would have been lodged against the

appellant.

17. As per Section 29 of the Act, where a person

is prosecuted for committing an offfence under

Section 7 of this Act, the Special Court shall

presume that such person has committed the said

offence, unless the contrary is proved. The

appellant has totally failed to prove anything

contrary and as such, failed to rebut the presumption

under Section 29 of the POCSO Act. His defence is

not natural, probable and acceptable.

18. The evidence of the victim girl, which is

corroborated by the medical evidence, inspires a

great confidence. The appellant has failed to rebut

17 CRAPEAL-157-2017

the presumption under Section 29 of the POCSO Act.

The learned Trial Judge has rightly convicted the

appellant for the offence under Section 7, punishable

under Section 8 of the POCSO Act. The appellant

entered into the house of the victim girl for

committing the said offence. Therefore, the learned

Trial Judge rightly convicted him for the offence

punishable under Section 448 of the I.P.C.

19. The learned Counsel for the appellant relied

on an unreported judgment in the case of Namdeo

Mahadu Bhalerao Vs. State of Maharashtra in Criminal

Revision Application No. 101 of 2004, decided by this

Court on 02nd December, 2016, wherein, on the basis of

the facts and evidence of that individual case, the

accused was acquitted of the offences punishable

under Sections 452 and 376 of the I.P.C. No legal

principle which would be made applicable to the

present case is laid down in that case. Therefore,

the said judgment is of no help to the appellant.

18 CRAPEAL-157-2017

20. The learned Counsel for the appellant

further cited a judgment in the case of John @ Vivek

Ramesh Jadhav Vs. State of Maharashtra 2015 ALL.M.R.

(Cri) 4053, wherein the accused/appellant was

convicted for the offence punishable under Section 10

of the POCSO Act. This Court, in the above case, has

observed that when the offence is of serious nature

and attracting minimum punishment for five years and

maximum it can be upto seven years, great care and

caution is required to be taken while appreciating

the evidence of the child witness. In that case, the

age of the victim girl was eight years. In the

present case, the victim girl was aged about 13 years

and 3 months at the time of the incident. When she

deposed before the Court, she was about 16 years. As

such, she was quite a matured person having attained

the age of understanding. As stated above, on

appreciating of her evidence, it is found to be quite

trustworthy. In view of these facts, the said

19 CRAPEAL-157-2017

judgment would be of no help to the appellant to

discard the evidence of the victim girl.

21. The learned Counsel for the appellant placed

reliance on the judgment in the case of Vitthal

Kachru Tupe Vs. State of Maharashtra 2016 (3) B.Cr.C.

863, in which the benefit of probation was given to

the accused, who was convicted for the offences

punishable under Sections 325 and 506 of the I.P.C.,

on finding that there was no criminal antecedents or

history against the accused and the liberty granted

to him by releasing him on bail, was not misused by

him. On the basis of this judgment, it is submitted

that if it is held that the appellant is guilty of

the above mentioned offences, he may be extended the

benefit of probation.

22. The appellant was aged about 30 years at the

time of the incident. He was quite a matured person.

He sexually assaulted the victim girl. Considering

the serious nature of the offences established

20 CRAPEAL-157-2017

against the appellant, I am of the view that the

appellant does not deserve the benefit of probation.

23. The learned Counsel for the appellant, in

the alternative, submits that the appellant has

already suffered imprisonment for more than three

years, which was the minimum punishment of

imprisonment for the offence under Section 8 of the

Act. Therefore, considering the fact that the

appellant is not a previous convict, he may be

sentenced to suffer imprisonment for the period which

he has already undergone.

24. The maximum substantive sentence passed

against the appellant is for a period of four years.

The appellant was in jail in connection with this

case from 01st February, 2014 to 04th February, 2014

and then from 10th April, 2014 (i.e. the date of

delivery of the impugned judgment) onwards till date.

Thus, he has undergone the sentence of imprisonment

for a period of about three years and five months.

21 CRAPEAL-157-2017

In my view, considering the nature of the offences

established against the appellant and the fact that

the appellant is not a previous convict, I am of the

view that it would meet the ends of justice if the

appellant is sentenced for the period which he has

been already undergone. This much sentence would

remind him to refrain from indulging in any criminal

activity in future. So far as the sentence of

payment of fine is concerned, I do not find any

reason to interfere in it. In case the appellant

does not pay the fine amount, he would undergo the

sentence in default of payment of fine as has been

ordered by the Trial Court. The appeal is liable to

be allowed partly. In the result, I pass the

following order:-

O R D E R

i) Criminal Appeal is partly allowed.

ii) The impugned order of conviction of the

appellant for the offence under Section 7, punishable

22 CRAPEAL-157-2017

under Section 8 of the Protection of Children from

Sexual Offences Act, 2012 and under Section 448 of

the Indian Penal Code is maintained as it is.

iii) The impugned order of sentence is modified

and the appellant is sentenced to suffer imprisonment

for the period which he has already undergone.

iv) The impugned order of sentence of fine

passed against the appellant in respect of the above

mentioned offences is maintained as it is. In case

the appellant does not pay the amount of fine, he

will have to suffer the sentence of rigorous

imprisonment, in default of payment of fine, as

ordered by the Trial Court.

v) The order passed by the Trial Court

directing payment of compensation of Rs.10,000/- to

the victim girl is maintained as it is.

                                  23                       CRAPEAL-157-2017


vi)            On payment of fine amount by the appellant, 

as ordered by the Trial Court or after undergoing the

sentence of imprisonment in default of payment of

fine, the appellant be released forthwith, if not

required in any other case.

vii) Criminal Appeal is accordingly disposed off.

[SANGITRAO S. PATIL] JUDGE SSD