Bombay High Court

Rahul S/O Vinod Choudhary vs The State Of Maharashtra, Thr. ... on 29 September, 2017

Bench: R. B. Deo

 apeal164.16.J.odt                                  1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.164 OF 2016

          Rahul s/o Vinod Choudhary,
          Age 22 years, Occ: Education,
          R/o Karchala, Tahsil Bhadrawati,
          District Chandrapur.          ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through P.S.O. Bhadrawati
          Police Station, Chandrapur.               ....... RESPONDENT
 ---------------------------------------------------------------------------------------
          None for Appellant.
          Shri N.B. Jawade, APP for Respondent/State.
 ---------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J.

          DATE:                th
                            29    SEPTEMBER, 2017.


 ORAL JUDGMENT


 1]               The   challenge   is   to   the   judgment   and   order   dated

02.01.2016 in Special (POCSO) Case 22/2014, by and under

which, the appellant (herein after referred to as "the accused") is

convicted of offence punishable under section 7 and 8 of the

Protection of Children from Sexual Offences Act, 2012 (POCSO

Act) and is sentenced to suffer rigorous imprisonment for three

years and to payment of pay fine of Rs.1000/- and is convicted

under section 11(i) and (iv) punishable under section 12 of the

(POCSO Act) and is sentenced to suffer rigorous imprisonment for

two years and to pay fine of Rs.500/- and is further convicted of

offence punishable under section 354-A (1)(i) and (ii) of I.P.C. for

which conviction no separate sentence is awarded.

2] The genesis of the prosecution is in oral report lodged

by the complainant on 18.09.2014, the gist of which is that the

complainant is a 10th standard student of Karmavir Vidyalaya,

Ghodpeth and used to travel to the said school from her residence

either by bus or bicycle or by foot. Rahul Choudhary (accused)

was harassing the complainant since last three years. The accused

accosted the complainant, caught her hand and asked her as to

why the complainant does not love her. The oral report further

recites that an attempt was made to make the accused see reason,

with the intervention of the Dispute Resolution Committee of the

village, but in vain. The oral report specifically refers to incident

which occurred at 11:30 a.m. on 15.09.2014. The complainant

along with her friends was walking towards the school, as they

reached near the school the accused came from behind, caught

the right hand of the complainant and asked her as to why the

complainant is not showering affection on him and why the

complainant is in love with others. The complainant took offence

and abused the accused. Since people gathered, the accused left

the spot. The next incident referred is stated to have occurred at

10:30 a.m. on 18.09.2014. The complainant, along with her

friends was on way to the school. The accused came on a bicycle,

kept his hand on the shoulder of the complainant, asked the

friends of the complainant to leave and when the complainant too

tried to leave the accused held her hand tight and asked the

complainant to call and to meet the accused alone. The oral report

further states that on the same day at 05:30 p.m. when the

complainant and her friend Ganesh Narule were going to the

village on his motorcycle the complainant waived. The report

further states that when the complainant reached home, changed

clothes and then went to the village bore-pump to fetch water, the

accused said I love you and I miss you and went away.

3] On the basis of the said report F.I.R. Exh.12 was

registered for offence punishable under sections 7, 8, 9 (l), 10, 11

(iv), 12 of the (POSCSO Act) and offence punishable under

section 354-A (1)(iv) of I.P.C. The statements of witnesses were

recorded and completion of investigation culminated in the

presentation of the charge-sheet in the Special Court. The learned

Special Judge framed charge at Exh.5 under section 7 punishable

under section 8 and 11 (i) (iv) and punishable under section 12 of

the (POSCSO Act) and offence punishable under section 354-A (i)

(ii) of I.P.C. The accused pleaded not guilty and claimed to be

tried.

4] Since the learned counsel Shri R.D. Hajare who is

appointed to represent the accused is absent, with the able and

fair assistance of Shri N.B. Jawade, the learned Additional Public

Prosecutor, I have scrutinized the original record of proceedings.

Since I intend to decide the appeal on merits consistent with the

dictum of the Hon'ble Apex Court in Bani Singh and others vs.

State of Maharashtra (1996) 4 SCC 720.

5] The complainant is examined as P.W.1.

The deposition is broadly consistent with the First Information

Report. P.W.1 has deposed that on 15.09.2014 at 11:30 a.m.

when she was going to the school along with one Dnyaneshwari

Awari, the accused caught her hand and asked her as to why she

was not in love with him. P.W.1 abused the accused and he went

away. P.W.1 has deposed that on 18.09.2014 at 10:30 a.m., the

accused came on bicycle, caught hold of her hand and kept his

hand on her shoulder. The accused asked P.W.1 as to why she was

showering affection on other and not on the accused and response

of the P.W.1 was that why should it matter to the accused.

The accused abused her friends, asked them to leave and

thereafter told P.W.1 to call and meet him alone.

6] P.W.1 has further deposed that on the same day at

05:30 p.m., she came to the bus stop on riding pillion with Ganesh

Narule and then went to her house. The accused was passing on

his cycle and waived to the complainant. Between 06:00 p.m. to

06:30 p.m. she went to the bore-well to fetch water and again the

accused told her that he loves her and misses her. P.W.1 has

extensively been cross examined. However, the testimony of

P.W.1 is not shaken. Some minor inconsistencies and omissions

are indeed brought on record. But then, the inconsistencies and

omissions are not significant enough to dent the credibility of the

witness. P.W.2 Chetan Yergude is examined to prove the spot

panchnama Exh.16. P.W.3 Nilkanth Dhobe is the father of the

complainant. His evidence is admissible to the extent he deposes

that the intervention of the Village Dispute Committee was

sought, in view of his daughter's complaint that the accused was

harassing her since quite sometime. However, his evidence to the

extent it refers to the disclosures made by P.W.1, is hear say and

must be kept out of consideration. P.W.4 Sonali Dhobe is the elder

sister of the complainant. She claims to have witnessed one

incident of the accused misbehaving with her sister.

However, P.W.4 is not a reliable witness in as much as she claims

that the accused assaulted P.W.1 and that she asked the accused

as to why he physically assaulted P.W.1. P.W.4 further states that

she beat the accused. Her version is absolutely at variance with

that of P.W.1. It is not claimed by P.W.1, at any point in time, that

the accused physically assaulted her or that her sister (P.W.4) in

turn beat the accused. P.W.5 Shatrughna Yergude is the President

of the Dispute Resolution Committee who is examined to prove

that the intervention of the said committee was sought. P.W.5 has

deposed that at the instance of the complainant and her father, he

counseled the accused, but in vain. P.W.6 Dnyaneshwari Awari, a

friend of P.W.1, is examined as an eye witness. However, she has

not supported the prosecution, nothing is elicited in the

cross-examination of the learned A.P.P. to assist the prosecution.

P.W.7 Gajanan Dhobe claims to have witnessed the accused telling

the complainant that he loves the complainant. This happed at the

hand-pump boring, is the deposition. P.W.8 is examined to prove

the age of the accused which is 01.08.1999. P.W.9 is the

Investigating Officer.

7] I have given my anxious consideration to the evidence

on record, with the able assistance of the learned A.P.P.

Shri Jawade. The evidence of P.W.1 who is the complainant is

implicitly reliable and confidence inspiring. Her testimony is

corroborated by the testimony of her father (P.W.3) and the

President of the Dispute Resolution Committee (P.W.5).

8] I have no hesitation in concurring with the finding

recorded by the learned Special Judge that the conduct of the

accused, the proven fact that the accused said to the complainant

that the accused loves the complainant, the evidence that the

accused was harassing the complainant, conclusively establishes

offence punishable under section 11 and 12 of the (POSCSO Act)

and under section 354-A (i) and (ii) of the I.P.C.

9] However, I am not persuaded to agree with the

learned Special Judge that the evidence on record, even accepting

the entire evidence at face value, proves offence punishable under

section 8 of the POCSO Act.

10] It would be apposite to note the provisions of section

7 and 8 of the Protection of Children from Sexual Offences Act,

2012:

7. Sexual assault.-- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act, with sexual intent which involves physical contact without penetration is said to commit sexual assault.

This cause defines the offence of sexual assault. It provides that a person is said to commit sexual assault if he with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration.

(Notes on Clauses).

8. Punishment for sexual assault.-- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

This clause provides punishment for sexual assault. It provides that whoever commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but may extend to five years and shall also be liable to fine.