Mukesh @ Vicky S/O Suresh Dendule ... vs The State Of Maharashtra, Through ...
2018 Latest Caselaw 118 Bom

 apeal83of16.odt                           1




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


                      CRIMINAL APPEAL NO.83 OF 2016


 Mukesh @ Vicky s/o. Suresh Dendule,
 Aged about 21 years, Occ. Education,
 R/o. Karanja, Tahsil Karanja,
 District Washim                                                     ...APPELLANT


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


 The State of Maharashtra,
 Through Police Station Officer
 Police Station Karanja (Lad), 
 District  Washim                                                     ...RESPONDENT
 -------------------------------------------------------------------------------------------
 Mr. R.M. Daga, counsel for the Appellant.
 Mr. N.R. Patil, Additional Public Prosecutor for Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                      ROHIT B. DEO, J. 

  DATE OF RESERVING THE JUDGMENT     
                                             
                                             : 04.01.2018
  DATE OF PRONOUNCING THE JUDGMENT        
                                             :  08.01.2018


 JUDGMENT:

The judgment and order dated 8.1.2016 delivered by

the additional Sessions Judge, Washim in Special Session Trial 58

of 2015, by and under which, the appellant (hereinafter referred

to as "the accused") is convicted of offence punishable under

section 376 of the Indian Penal Code ("IPC" for short) and

sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs. 3,000/- and is further convicted of offence

punishable under section 6 read with section 5 (m) of Protection

of Children from Sexual Offence Act, ("POCSO Act" for short) and

sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs. 5,000/- is assailed herein.

2 Heard Shri. R. M. Daga, the learned counsel for the

accused and Shri. N.R. Patil, the learned Additional Public

Prosecutor for the respondent / State.

3 The gist of the prosecution case, as is unfolded during

the trial is thus:-

The informant Sau. Anju Manoj Jadhav who belongs to the

Banjara community is a resident of Karanja and has two daughters

then aged 7 and 4 years who used to attend the tuition classes of

one Mayuri Dandule. The accused is the brother of Mayuri

Dandule. Both the daughters attended the tuition class on

5.12.2013. The child victim aged 4 years narrated to her mother

Sau Anju that the accused approached her when she had stepped

out of the tuition class to urinate, took her behind the house, took

out his male organ and rubbed it on her vagina. She resisted and

was slapped by the accused. The child victim returned to the class

and narrated the said incident to Mayuri disclosing the name of

the offender as Vikki Dada.

4 The mother of the child victim confronted Mayuri.

She was accompanied by one Suchita Rathod. Three boys were

engaged in painting work in the house of the tuition teacher

Mayuri. The child victim however said that none of the three boys

were involved in the sexual assault. However, the child victim

identified the brother of Mayuri as Vikki Dada who assaulted her

sexually. The informant Sau. Anju then confronted Mayuri and

Vicky who drove her out of the house. Sau. Anju informed her

husband about the incident on mobile who asked his father and

brother Prakash Jadhav and Vinod Jadhav and Sau. Anju's brother

Bandi Chavan to visit Karanja. The said relatives accordingly came

to Karanja and Sau. Anju narrated them the incident in detail.

The report was lodged at Police Station Karanja on 6.12.2013.

On the basis of the said report offence punishable under

section 376 of IPC and section 6 read with section 5 (m) of POCSO

Act was registered against the accused by the Investigating officer

PSI - Varsha Mate. The Investigating Officer went to the spot and

prepared spot panchanama in presence of the panchas, recorded

the statement of Sau. Anju and other witnesses. The accused was

arrested, and his clothes and the clothes of the child victim were

seized, the accused and the child victim were medically examined,

the seized articles were sent to the Chemical Analyzer and after

completing the investigation the charge sheet was presented

before the learned Sessions Judge who framed charge for offence

punishable under section 376 of IPC and under section 6 read with

section 5 (m) of POCSO Act. The accused abjured guilt and

claimed to be tried in accordance with law.

5 The defence of the accused is total denial and false

implication. The accused stated in the written statement under

section 313 of the Code of Criminal Procedure that since his uncle

is a politician, the family has many political opponents.

6 Shri. R.M. Daga, the learned counsel for the accused

submits that the conviction is against the weight of the evidence

on record. The identity of the offender is serious doubt, is the

submission. He submits that even if the evidence is accepted at

face value, offence punishable under section 376 of IPC and under

section 6 read with section 5 (m) of POCSO Act is not made out.

Per contra, Shri N.R. Patil, the learned Additional Public

Prosecutor supports the judgment and order impugned and

submits that the testimony of child victim is reliable and deserves

acceptance without any corroboration. The child victim or her

family nursed no ill will against the accused and false implication

is a defence which needs consideration only for rejection, is the

submission.

7 I have given my anxious consideration to the evidence

on record, the judgment and order impugned and the submission

of the learned counsel for the accused Shri. R.M. Daga and Shri.

N.R. Patil, the learned Additional Public Prosecutor for the

respondent, and having done so, while I concur with the view of

the learned Sessions Judge that the testimony of the child victim is

reliable and no reason is demonstrated for this Court to disbelieve

the child victim, the learned counsel for the accused is justified in

contending that even if the evidence of the child victim is accepted

at face value, the offence under section 376 of IPC and under

section 6 read with section 5 (m) of POCSO Act is not established.

8 The child victim is examined as PW 2. She has

deposed that when she stepped out of the tuition room for

urination, Vikki Dada took her to the backside of the house and

rubbed his "Shingi" on her private part. She resisted, Vikki Dada

slapped her and she slapped him back. She disclosed the incident

to the tuition teacher and the response of the tuition teacher was

to slap her and ask her to keep quite. The child victim states that

when she went back alongwith her elder sister, she narrated the

incident to her mother.

The child victim has been subjected to extensive cross-

examination. However, the testimony of the child victim is not

shaken. While appreciating the evidence of the child victim who

has deposed that the accused rubbed his Shingi on her private

part, it must be noted that her mother PW 1 - Sau Anju has

deposed that in Banjara language Shingi means the male organ.

9 The evidence of the child victim is more than amply

corroborated by the evidence of her mother Sau Anju who is

examined as PW 1 and that of Suchita Rathod who is examined as

PW 3. PW 1 has deposed substantially consistent with the First

Information Report. She has proved oral report Exh. 14 and

printed First Information Report Exh. 15. She has sufficiently

explained why the report was not lodged on the same day and was

lodged on the next day on 6.12.2013. It is true, as submitted by

the learned counsel for the accused, that the defence did bring on

record a few omissions and exaggerations in the deposition of both

PW 1 Sau Anju and PW 3 Suchita. But then, the omissions and

embellishments do not destroy the core of the testimony

illustratively, the exaggeration to which PW 3 - Suchita has

resorted to is as regards the altercation with Mayuri. PW 1 - Sau

Manju has deposed that 5 to 7 boys were doing the painting work

in the house of the tuition teacher Mayuri which is inconsistent

with the First Information Report in which the reference is to only

three boys. However, both the witnesses do corroborate the

substratum of the evidence of the child victim. The witnesses do

have tendency to exaggerate and improvise. It is trite law, that

the Court is duty bound to separate the chaff from the grain. I

have no hesitation in recording that the evidence of the child

victim, confidence inspiring as the evidence is, amply corroborated

on material aspect by PW 1 Sau. Anju and PW 3 Suchita.

10 However, even if the evidence is accepted at face

value, the only offence which is made out is under section 354 of

IPC and section 9 read with section 10 of POCSO Act. The child

victim states that the accused rubbed his male organ on her

private part. However, there is absolutely no evidence on record

to show that there was any penetration, to any extent even in the

labia majora of the child victim. Indeed it is not even the version

of the child victim that other than rubbing the male organ on the

private part, the accused attempted to penetrate her vagina which

is explained in the amended section 375 of IPC to include labia

majora. The accused has however committed an offence

punishable under section 354 of IPC by outraging her modesty. It

is evident, that since there is no evidence to prove penetrative

sexual assault, the conviction under section 6 read with section

5(m) of POCSO Act is equally unsustainable and the offence which

is made out would be aggravate sexual assault punishable under

section 10 of the POCSO Act.

11 In the light of the discussion supra, the conviction and

sentence under section 376 of IPC and under section 6 read with

section 5 (m) of POCSO Act is set aside and instead the accused is

convicted for offence under section 354 of IPC and under section 9

read with section 10 of POCSO Act.

12 The accused is sentenced to suffer rigorous imprisonment

for 3 years for offence punishable under section 354 of IPC and to

suffer rigorous imprisonment for 5 years for offence under section

9 read with section 10 of POCSO Act. The accused shall be

entitled to set of under section 428 of the Code of Criminal

Procedure.

13 Sentence of fine imposed by the Trial Court is maintained.

14 The appeal is partly allowed and disposed of in the above

terms.

JUDGE

RS Belkhede