Prafulla Rambhau Kachare vs State Of Maharashtra, Thr. P.S.O. ...
2018 Latest Caselaw 222 Bom

                                        1                                        apeal358.16




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 358 OF 2016


 Prafulla Rambhau Kachare,
 Aged about 30 years, 
 Occupation - Labour, 
 R/o Bellora, Tahsil - Warud, 
 District - Amravati.                                            ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through Police Station Officer, 
 Police Station Benoda, District Amravati.                       ....       RESPONDENT


 ______________________________________________________________

           Shri Mir Nagman Ali, Advocate for the appellant, 
             Shri N.H. Joshi, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

 DATE OF RESERVING THE JUDGMENT        :    4
                                                 JANUARY, 2018
                                              th

 DATE OF PRONOUNCING THE JUDGMENT :    10         JANUARY, 2018.
                                                th



 JUDGMENT : 

The appellant is aggrieved by the judgment and order

dated 11-7-2016 passed by the learned Additional Sessions Judge,

Amravati in Special Atrocity Case 2/2014, by and under which the

appellant (hereinafter referred to as the "accused") is convicted for

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offence punishable under Section 376(2)(f) of the Indian Penal Code

("IPC" for short) and is sentenced to suffered for rigorous

imprisonment for ten years and to payment of fine of Rs.30000/- and is

further convicted for offence punishable under Section 6 of the

Protection of Children from Sexual Offences Act ("POCSO" for short)

and is sentenced to suffer rigorous imprisonment for ten years and to

payment of fine of Rs.30,000/-.

2. The child victim, who was aged 6 years as on the date of

the incident, is the daughter of the informant Sheela Shalik Dhurve on

the basis of whose report the offence under the provisions of Section

376(2)(f) of the IPC, Section 6 of the POCSO and 3(1)(xii) and 3(2)(v)

of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act ("Atrocities Act" for short) was registered against the

accused.

3. The gist of the oral report dated 23-11-2013 lodged by

P.W.2 Sau. Sheela is thus :

P.W.2 Sau. Sheela and her husband Shalikram are

residents of village Belora and are agricultural labours by avocation.

They have two children from the wedlock to-wit the child victim and a

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son who was then aged 3 years. Sau. Sheela and her husband

Shalikram had left the house at 9-00 a.m. for their respective work and

the child victim and her younger brother were alone in the house.

Sau. Sheela returned at 3-00 p.m., she noticed that the child victim was

not at home and came out of the house to look for her. One

Bhagyashri Uike, aged 14 years, escorted the child victim to her house,

one Prajwal informed Sau. Sheela that the child victim was taken by

the accused alongwith him. Sau. Sheela enquired from the child victim

who stated that the accused had taken the child victim, gave her cream

biscuit and Rs.10/- and took her to his residence, made her lie on the

bed, removed her knicker and after undressing slept on her person and

sexually ravished her. Sau. Sheela states in the report that the child

victim had a swelling on the private part and a blood stain was noticed

on the knicker.

Police Station Officer, Benoda, on the basis of the said

report, registered offence punishable under Section 376(2)(i) of the

IPC, Section 3(1)(xii) and Section 3(2)(v) of the Atrocities Act and

Section 6 of the POCSO Act. The Investigating Officer Sagar Patil

recorded the spot panchanama, sent the child victim for medical

examination, seized the clothes of the victim, seized one bed-sheet

from the house of the accused and the clothes of the accused, recorded

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the statements of the witnesses and sent the seized property for

chemical analysis. The statements of the witnesses were recorded

under Section 164 of the Criminal Procedure Code, the blood samples

of accused and victim and vaginal slide of victim were also sent for

chemical analysis. The culmination of investigation led to submission

of charge-sheet before the Special Court.

4. The learned Special Judge framed charge under

Section376(2)(f) of the IPC, Section 6 of the POCSO Act, Section 3(1)

(xii) and 3(2)(v) of the Atrocities Act. The accused abjured guilt and

claimed to be tried. The defence of the accused is of total denial and

false implication. In response to question 44 in the statement recorded

under Section 313 of the Criminal Procedure Code, the accused stated

that he and the mother of the child victim worked in the agricultural

field of Chandan Kachare. The mother of the victim used to speak with

him affectionately. The father of the child victim berated and assaulted

the mother of the child victim and abused and threatened the accused.

The accused further stated that he caught the father of the child victim

red handed stealing cotton from the agricultural field of Chandan

Kachare. The accused, put forth the aforesaid two reasons for the false

implication.

5 apeal358.16

5. P.W.1 is the child victim, whose date of birth is

30-11-2007 as is evident from birth certificate (Exhibit 65) which is

admitted. The child victim, who was then six years old, has deposed

that she alongwith Anjali (P.W.4), Abhishkh, Amit, Prajwal (P.W.3)

had gone to the field of Babuji Appa to collect jujubes (berries). She

could not find the jujubes and was returning home when the accused

caught her and brought her in his house. The accused gave biscuits to

her friends except her. The accused gave her Rs.10/-, took her in the

house, slept over her person, removed her knicker, increased the

volume of Television and inserted his male organ into her private part.

The door was closed, one Manu Aaji knocked the door and the accused

opened the door after sometime. The child victim was crying and

disclosed the incident to Durga Atya and Manu Aaji. Daughter of

Durga Atya one Bhagyashri escorted her to her house. Her parents

took her to the police station and the police referred her for medical

examination. The child victim deposed that she was not knowing the

accused prior to the incident and the name of the accused was

disclosed to her mother by Prajwal. The child victim, who is examined

as P.W.2, deposed in consonance with the first information report. She

has proved the oral report (Exhibit 22) and the printed first

information report (Exhibit 23). She has also deposed that her

6 apeal358.16

statement (Exhibit 24) was recorded by the Judicial Magistrate First

Class, Warud and admitted the contents thereof as correct.

6. P.W.3 Prajwal, who was aged 15 years when the evidence

was recorded, has deposed that on 23-11-2013 the accused took the

child victim to his house, closed the door from inside and increased the

volume of television. P.W.3 states that after fifteen minutes, he

knocked the door but the accused did not open the door. Manu Aaji,

grandmother of Bhagyashri, shouted and then the accused opened the

door. The child victim was crying when she came out. P.W.3 Prajwal

further states that he disclosed the incident to the mother of Amit and

mother of Bhagyashri and his statement (Exhibit 27) was recorded

before the Judicial Magistrate First Class, Warud.

7. P.W.4 Anjali Dhurve, who was 14 years when her evidence

was recorded, was accompanying the child victim at the time of

incident and she has deposed that the accused took the victim to his

house, P.W.3 Prajwal was standing infront of her house, accused

increased the volume of television, Prajwal knocked the door, the

accused did not open the door and it was only when Manu Aaji

knocked the door that the victim could come out of the house. The

7 apeal358.16

child victim was crying, is the deposition. The deposition of P.W.4 was

recorded before the Judicial Magistrate First Class, Warud (Exhibit 30).

8. Bhagyashri Uike, who was examined as P.W.5, and was

aged about 17 years when her evidence was recorded, has deposed that

since it was Saturday, she returned from school at 12-00 noon, she saw

the child victim and other children playing near the Rukhmai temple.

She then learnt that the child victim was taken by the accused to his

house. She has deposed that Manu Aaji went to the house of the

accused and rescued the child victim who was crying. The child victim

disclosed the incident to Manu Aaji at whose instance P.W.5

Bhagyashri escorted the child victim to her house. P.W.5 Bhagyashri

identified the accused during the evidence.

9. P.W.9 Snehlata Dhote, who examined the child victim on

23-11-2013, has deposed that she did not observe any injury on private

part of the victim. However, there was congestion in labia minora on

posterior side and P.W.9 noticed blood stains on the knicker. P.W.9

proved the medical certificate (Exhibit 45) and deposed that on the

next day the victim was again referred to her with complaint of pain in

abdomen and private part.

8 apeal358.16

10. The report of the chemical analyzer (Exhibit 67) reveals

that one semen stain of 2 cm. in diameter was detected on the lower

portion of the front side of the frock of the child victim. Similar semen

stain was detected on the panty of the child victim and the underwear

of the accused. The D.N.A. report (Exhibit 67-H) opines thus :

DNA profiles obtained from semen stain cuttings from

exhibit 2 frock and exhibit 3 panty are identical and from one and

the same source of male origin and match with the DNA profile of

Praful Rambhau Kachare. Mixed DNA profile obtained from

Exhibit 1, cotton swab from private part and exhibit 1 cotton swab

from private part match with the DNA profiles of victim and Praful

Rambhau Kachare.

The learned Counsel for the accused contends that it is not

proved that the samples sent for chemical analysis and DNA profiling

were duly sealed and that the possibility of tampering, is a real

possibility. However, the evidence on record inter alia that of P.W.10

Lalita would show that the samples were duly sealed and the possibility

of tampering can be safely excluded.

11. I have given my anxious consideration to the evidence on

record in order to satisfy the conscious of the Court that the accused is

9 apeal358.16

not falsely implicated. Be it noted, that the accused put forth two

reasons for false implication. The first is his interaction with the

mother of the child victim and the second is that he caught the father

of the child victim red handed stealing cotton from the field of

Chandan Kachare. The defence has cross-examined the child victim

extensively and the child victim has candidly admitted that till lodging

of the report she did not know the name of the accused and that she

was told by her father that the report is to be lodged against the

accused. The child victim further admitted that she was told by her

parents how to adduce the evidence and that 3 to 4 days prior to

lodging of the report there was a quarrel between her parents on the

issue of talking with third person in the field and that there was also a

quarrel between her father and one Chandan Kachare on the issue of

bringing some articles from the field of Chandan.

However, candid and fair as the admissions are, I am not

persuaded to disbelieve the child victim on the substratum of her

evidence, which is corroborated not only by the three children who

were in a position to depose, and had deposed, that the accused took

the child victim in his house and was with the child victim for quite

sometime till the accused opened the door due to the intervention of

Manu Aaji. It is true that few discrepancies and omissions are brought

10 apeal358.16

on record during the cross-examination of the three minors. But the,

the discripancies are minor and do not dent the credibility of the

version. The evidence of P.W.3 Prajwal, P.W.4 Anjali and P.W.5

Bhagyashri amply corroborates the evidence of the child victim to the

extent the said witnesses have deposed that the child victim was taken

by the accused in his house and the child victim was alone with the

accused for sometime.

12. The report is lodged with promptitude. The evidence of

P.W.1 Sau. Sheela is broadly consistent with the oral report and her

testimony has withstood the test of the cross-examination. Sau. Sheela

has denied the suggestion that the accused is falsely implicated. The

denial apart, even if it is assumed that there was a quarrel between the

parents of the child victim on the issue of Sau. Sheela talking to a third

person in the field or that there was some altercations between the

father of the child victim and Chandan Kachare, in the teeth of the

evidence on record, I am not inclined to hold that the child victim

would be used as a tool out of spite. In a tradition bound society

sexual ravishment is unfortunately viewed as a stigma. It would be

rare, if at all, that the parents of a child, aged 6 years, would falsely

implicate a person of having sexually ravished their daughter.

11 apeal358.16

Judicious notice must be taken of the social norms and mores of the

tradition bound Indian society in which the victim of sexual assault has

to bear the burden of the social stigma, more often than not, during her

entire life. I am not persuaded to hold, in the teeth of the evidence on

record, that the accused is falsely implicated. Be it noted, that the

conviction is not based on the sole testimony of the child victim. Her

evidence is more than amply corroborated by the prosecution witnesses

and the medical evidence. The D.N.A. profiling is clinching. It must

also be borne in mind that in view of the evidence led by the

prosecution, the statutory presumption under Section 29 of the POCSO

Act is activated. With the result, the accused was under the reverse

onus to prove that the prosecution case is highly improbable and

bordering on falsehood. The accused has clearly failed to discharge the

statutorily imposed burden.

13. The appeal is sans merit and is dismissed.

The accused is in Jail. He would be entitled to set off

under Section 428 of the Criminal Procedure Code.

JUDGE

adgokar