Bombay High Court
Shashikant Balasaheb Chavan vs The State Of Maharashtra on 13 August, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
917 CRIMINAL APPLICATION NO.881 OF 2021
IN
CRIMINAL APEAL NO.196 OF 2021
SHASHIKANT BALASAHEB CHAVAN
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Choudhari A. G.
APP for Respondent : Mr .G O Wattamwar
...
CORAM : V.K. JADHAV & SHRIKANT D. KULKARNI, JJ.
Dated: August 13, 2021
...
PER COURT :-
1. Pending criminal appeal no.196 of 2021 preferred
against the judgment and order of conviction passed by
the Additional Sessions Judge, Ambajogai dated
26.2.2021 in Special (POCSO) Case dated 35 of 2018,
convicting thereby the applicant/accused for the offence
punishable under sections 376 (2)(j)(n), 323, 506 of the
IPC and under section 6 of the Protection of Children
from the Sexual Offences Act,2012, and thereby
sentencing him for the offence 376 (2)(j)(n) of IPC to
undergo imprisonment for life which shall mean
imprisonment for the remainder of his natural life and
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to pay a fne of Rs.25,000/-, in default to pay the fne,
he shall undergo rigorous imprisonment for three
months, for the offence punishable u/s 323 of IPC to
undergo R.I. for one year and to pay fne of Rs.1,000/-,
in default to pay the fne, the applicant shall undergo
R.I. for one month, for the offence punishable u/s 506
of the IPC to undergo R.I. for fve years and to pay fne of
Rs.5,000/-, in default to pay the fne, shall undergo R.I.
for two months, the applicant/accused has preferred
this criminal application for suspension of the
substantive part of the sentence and for bail.
2. Learned counsel for the applicant submits that
evidence of PW-1 Victim is not trust worthy, reliable and
not inspiring confdence. Learned counsel submits that
there is no corroboration to her evidence. Learned
counsel submits that, there is no satisfactory evidence
about her age. Investigating offcer has not collected the
documentary evidence pertaining to her age, though she
was a school-going girl. Victim was subjected to medical
examination for ascertainment of her age and after
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conducting clinical and radiological examination, the
concerned Doctor has opined that the victim is in
between 14 to 18 years of age at the time of the alleged
incident. Learned counsel submits that, as per the
prosecution evidence, victim was in 10th standard and,
as such, there is no satisfactory evidence about her age
even though documentary evidence was available.
Learned counsel submits that though victim has given
her date of birth, however, she has not disclosed her
date of birth before the police and, as such, same
amounts to omission. Learned counsel submits that,
even the evidence of the mother of the victim is also
contrary to the evidence of the victim. Victim allegedly
narrated the act of commission of rape after second
incident, however, the mother of the victim has deposed
before the court that only after the pregnancy of victim
was noted and when her statement was recorded by the
police, they came to know the details of the culprit.
Learned counsel submits that, prosecution evidence is
full with omissions and contradictions. The applicant is
a married person, having a wife and three children,
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totally depending upon his earnings. There is no other
earning member in the family of the applicant. The
applicant was on bail during the trial. The applicant
may be released on bail.
3. The learned APP has strongly resisted the
application on the ground that, the evidence of the
victim is consistent, reliable and trustworthy. She has
narrated that three times the applicant had forcibly
committed rape on her and, thereafter, she had
disclosed the incident in the house. The learned APP
submits that, the victim became pregnant. Pregnancy
was terminated in the Government Hospital and the
fetus which was not fully grown-up was sent for DNA
purpose. The learned APP submits that, there are DNA
reports at exh. 60 and 61 respectively, which point out
that the applicant and victim are the biological parents
of the aborted fetus. The learned APP submits that the
victim has mentioned her date of birth in her
examination in chief itself. She was not subjected to any
cross-examination on that point. Even the defence has
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not suggested that she is above the age of 18 years of
age. The trial court has rightly convicted the applicant.
The applicant may not be released on bail.
4. We have gone through the prosecution evidence
carefully, particularly, the evidence of PW-1 victim. First
incident had taken place in the month of August. At 4
p.m. after the school timing, victim was proceeding
towards agricultural feld from her house to bring
vegetables. On the way near the agricultural feld of her
uncle, the applicant, who was working as an
agricultural labour on yearly basis, came there from the
back side, gagged her mouth, gave slaps on her chicks
and pulled her towards kadval crop. She further
deposed that while she was trying to shout, the accused
extended beating to her with slaps. She has further
deposed that the applicant had forcibly committed rape
on her and threatened to kill her younger brother Vishal
if she disclosed the incident to anybody. Second incident
occurred 20 days thereafter. She was proceeding
towards the agricultural feld. At that time, again the
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applicant/accused gagged her mouth, pulled her in the
kadval crop and forcibly committed rape on her and also
threatened to kill her younger brother Vishal if she
discloses the incident to anybody. Third incident
occurred 4-5 days thereafter while she was alone at her
house after 4 p.m. when school timing was over. The
applicant entered in her house, bolted the door, gagged
her mouth, made her to lay on the cot, forcibly
committed rape on her and also gave threats. Victim
has deposed that the applicant had given her one pocket
of Mala-D tablets and asked her to take those tablets.
She did not consume those tablets and threw it in front
of the house of the applicant. Further, she had no
menses since the month of August. On 5.11.2018 her
mother took her to Mamta Hospital, Latur, where the
concerned doctor performed sonography and informed
that she is carrying pregnancy of three months.
Accordingly, on 8.11.2018 she went to the Government
Hospital, Latur and there was termination of pregnancy
under the advice of doctor.
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5. The prosecution has examined PW 5 Dr. Swapnil
Shelke. PW-5 Dr. Shelke has deposed about the medical
examination of the victim pertaining to the allegations of
rape, about ascertaining of age by carrying out clinical
and radiological examination and further about
termination of pregnancy. According to him, a team of
the doctor had started induced abortion on 15.11.2018
and completed it on 17.11.2018 at about 9.10 am. After
abortion, he and his staff have collected the abortus
foetus in a sterile container, sealed it and handed over it
to the police.
6. In paragraph no.50 of the judgment, the trial
court has referred DNA reports exhibits 60 and 61
respectively. Victim and the applicant are concluded to
be the biological parents of the abortus of the victim. It
is well settled that victim should not be treated as an
accomplice and her sole evidence can be believed if it
inspires confdence. Furthermore, even though the
investigating offcer has not collected any documentary
evidence about the age of the victim, however, the victim
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was studying in 10th standard at the time of the
incident, which is not disputed by the defence also.
Thus, considering the entire aspect of the case, we are
not inclined to release the applicant on bail. Hence,
following order.
ORDER
Criminal application is hereby rejected.
( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. )
...
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