Janardan Pandurang Kapse vs The State Of Maharashtra And Anr
2021 Latest Caselaw 11840 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                                             APPEAL NO. 838 OF 2019


             Janardan Pandurang Kapse                        ..Appellant

                            v/s.

             The State of Maharashtra                        ..Respondent/s


             Mr. Ravindra L. Chalke a/w. Sanjay Kape for the Appellant/s.
             Mr. S.V. Gavand, APP for the Respondent-State.

                                       CORAM : ANUJA PRABHUDESSAI, J.

DATED : 26th AUGUST, 2021.

JUDGMENT.

1. This is an appeal under Section 374 of Cr.P.C. directed

against the judgment dated 15.05.2019 passed by Addl. Sessions

Judge, Thane in Special Case (POCSO) No. 61 of 2018. By the

impugned judgment, the learned Judge has held the Appellant

guilty of offences punishable under Section 376 and 354(A)(1)(i)

of the Indian Penal Code and Section 4 and 8 of Protection of

Children from Sexual Offences Act, 2012, and has sentenced him

as under:

(i) Rigorous imprisonment for seven years and

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fine of Rs.5000/- i.d. to suffer rigorous

imprisonment for six months for offence

punishable under Section 376 IPC.

                             (ii)    Rigorous imprisonment      for three years

                             and fine of Rs.5000/- i.d. to suffer          rigorous

                             imprisonment for six months              for offence

punishable under Section 354(1)(A) IPC.

                             (iii)    Rigorous imprisonment     for seven years

                             and fine of Rs.5000/- i.d. to suffer          rigorous

                             imprisonment for six months              for offence

punishable under Section 4 of POCSO Act, 2012

.

(iv) Rigorous imprisonment for seven years

and fine of Rs.5000/- i.d. to suffer rigorous

imprisonment for six months for offence

punishable under Section 8 of POCSO Act,

2012.

2. The crime against the Appellant was registered pursuant to

the First Information Report lodged by PW1- mother of the victim

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(PW2). PW1 had alleged that on 13.12.2017 at about 12.00 a.m.

she heard her daughter crying. She was complaining of pain in

her vagina. When questioned, her daughter narrated that

whenever she and her friends used to go to play in the room of the

Appellant, he used to give them chocolates. The Appellant used to

send her friends out, and then latch the door from inside and

touch and insert his finger in her private parts. The first informant

confirmed that there was an injury on the private parts of the

victim. She informed her husband about the incident and lodged

the FIR (Exhibit 17) on 16.12.2017.

3. Upon registration of the Crime, the Investigating Officer

recorded the statement of the victim girl (PW2). He conducted

the scene of offence panchanama (Exh. 30) in presence of PW4

Roshan Belosay and PW4 Santosh Morey. He referred the victim

girl for medical examination . She was examined by PW8 Dr.

Nandini Deshmukh, a gynecologist at Thane Civil Hospital. On

completing the investigation, chargesheet came to be filed.

4. Charge was framed against the Appellant for offences under

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Section 376, Section 354(1)(i) Indian Penal Code and Section 4

of Protection of Children from Sexual Offences Act, 2012 and

Section 8 of Protection of Children from Sexual Offences Act. The

Appellant pleaded not guilty and claimed to be tried. The

prosecution in support of its case examined 10 witnesses.

Statement of the Appellant was recorded under Section 313 of

Cr.P.C. The defence of the Appellant was of total denial. He had

claimed that there was a quarrel between him and the first

informant over leakage of water from his toilet. He claimed he

has been falsely implicated since he had not acceded to the

request of the first informant to repair the toilet. The Appellant

examined DW1 Rajkumar More to establish the plea of alibi. Upon

considering the ocular as well as documentary evidence on record,

the learned Judge held the Appellant guilty and convicted and

sentenced him as stated above. Being aggrieved by this

conviction and sentence, the Appellant has preferred this appeal.

5. Heard Mr. Chalke, learned Counsel for the Appellant. He

submitted that there is considerable delay in lodging the FIR. He

submitted that the evidence of the victim does not inspire

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confidence and is not supported by medical evidence. He further

submitted that the prosecution has not examined material

witnesses and that conviction cannot be sustained in view of

inconsistencies and contradictions in the evidence of the victim.

He submits that the learned Judge has failed to appreciate the

evidence of DW1 and take note of the plea of alibi raised by the

Appellant. He submits that this is a clear case of false implication

due to previous enmity.

6. Shri Gavand, learned APP submits that the delay in lodging

the FIR in cases relating to sexual offences is of no significance.

He submits that the evidence of the victim amply proves that the

Appellant herein had touched her private parts. Learned APP

further submits that the Appellant had not raised the plea of alibi

at the trial or in the statement under Section 313 of Cr.P.C. and

that the defence of alibi is nothing but an after thought.

7. I have perused the records and considered the submissions

advanced by learned Counsel for the Appellant and the learned

APP for the State.

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8. The first informant (PW1) had set the law in motion on the

basis of the narration given by the victim (PW2), a child of 5

years. The testimony of PW1 indicates that she, her husband and

her daughter (PW2) were residing on the fourth floor of Building

No.4 whereas the Appellant was residing on the 5 th floor of the

said building. PW1 was working as a cook and her husband was

serving at Kapurbavdi. The victim was studying in Senior K.G. in

Holy Trinity High School, Thane. Her school timings were from

8.00 a.m. to 11.00 a.m. PW1 has deposed that after school hours

the victim used to stay in the house of their neighbor Lilavati

Shetty, who was also residing on 4th floor of the said building.

9. PW1 has deposed that on 13.12.2017 at about 12.00 a.m.

she heard her daughter crying. When questioned, her daughter

complained of pain in her vagina. Her daughter narrated that

whenever she and her friends used to play on the 5th floor of the

building, the Appellant used to give them chocolates. He used to

take her in the room, latch the door from inside and thereafter

touch and insert his finger in her private parts. PW1 informed

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her husband about the incident and on the next day she narrated

the incident to her neighbor Lilawati Shetty and also to the

parents of the other children who used to play with the victim. On

16.12.2017 she lodged the FIR (Exhibit 17).

10. The victim (PW2) has deposed that she and her friends were

playing bat and ball on the 5th floor. She deposed that the

Appellant took them to his room and offered them chocolates. He

sent her friends out of the room and thereafter he closed the door,

made her lie down on the bed, removed her pant and touched her

private parts. He told her not to disclose the incident to her

mother. She has stated that on the relevant date the wife and

children of the Appellant were not in the house. She has deposed

that the Appellant had committed similar act previously about four

times during afternoon and in the evening, and earlier while they

were residing at Vartak Nagar.

11. The evidence of PW2 does not indicate that the Appellant

had inserted his finger in her vagina. It is also to be noted that

the victim was examined by PW8 Dr. Nandini Deshmukh. She has

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deposed that there were no injuries on the private parts of the

victim and that everything was normal. The medical evidence

therefore rules out the possibility of insertion of finger in the

vagina of the victim. Thus the evidence adduced by the

prosecution does not support the charge of rape within the

meaning of Section 375(b) of IPC or penetrative sexual assault as

defined under Section 3 of POCSO Act, 2012.

12. The Appellant has also been held guilty of offence of 'sexual

harassment' and 'sexual assault' as defined under Section 354(A)

(i) of IPC and Section 7 of the POCSO Act. The learned Judge has

held the Appellant guilty of these offences solely on the basis of

the statement of the victim who is a child of 5 years of age. It is

well known that a child witness, by reason of his/her tender age is

a pliable witness. He/she is amenable to tutoring and inducement

and is often prone to telling imaginative and exaggerated stories.

Hence the evidence of a child witness needs to be scrutinized with

extreme care and caution.

13. In the instant case, PW2 claims that the accused had

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touched her private parts. She claims that the Appellant had

committed such acts previously about four to five times. Her

evidence indicates that the Appellant had also sexually assaulted

her while they were residing at Vartak Nagar. She has admitted in

her cross examination that her parents were present at the time of

recording her statement under Section 164 of Cr.P.C.. She has

stated that her parents had told her how to give the statement.

She has further stated that she was questioned by the police about

the incident and that her mother had given the answers, which

were taken down in writing. She has admitted that her parents

had told her how to depose before the Court.

14. PW2 on her own admission is a tutored witness and hence

no implicit reliance can be placed on her evidence. It is in the

evidence that the Appellant, his wife and two children live in a

room on the 5th floor, which is above the room of the first

informant. The first informant has admitted that there was a

quarrel between her and the Appellant over leakage of water from

his toilet. Hence the possibility of false implication cannot be

ruled out.

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15. It is also pertinent to note that PW2 has admitted that she

had not stated to the police that the Appellant had earlier touched

her vagina about 4 to 5 times during afternoon and evening hours.

She has also admitted that she had not told the police that the

Appellant had also touched her vagina while she was residing at

Vartak Nagar. She has also admitted that she had not stated in her

statement under Section 164 Cr.P.C. that the Appellant had

removed her pant. Though she has stated in the examination-in-

chief that the Appellant had sent her friends out, in her cross-

examination she has stated that the Appellant had committed the

act of sexual assault in presence of her friends Sanu, Anaya, Hed

and Purva. It could be thus seen that PW2 has made material

improvement in her evidence. Learned Judge has not taken into

consideration these material omissions and discrepancies which

render the evidence of PW2 unreliable.

16. PW1 has stated that the victim (PW2) used to return from

school by 11.00 a.m. and that she used to stay with her neighbor

Lilavati Shetty from 11.00 a.m. to 5.45.p.m. She has also stated

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that on 13.12.2017 her daughter was with Lilawati from 11.00

a.m. to 5.45 p.m. PW2 has also stated in her cross examination

that she was in the house of Leela Aunty the whole day when she

had narrated the incident to her mother. The prosecution has not

examined said Leela Shetty, and has not offered any explanation

for not examining this material witness who could have affirmed

whether the victim was in her house or whether she had gone

with her friends to the room of the Appellant on the 5 th floor of the

building.

17. It is to be noted that the alleged incident had taken place on

13.12.2017 and the victim had narrated the incident to the first

informant on the same night PW1 has stated in her cross

examination that she had seen the injury on the private part of the

victim. She has also stated that the victim had complained that

she was passing reddish color urine. She has admitted that she

had not taken the victim to the doctor till lodging of the FIR on

16.12.2017.

18. It is well known that in matters relating to sexual offences

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the victims are hesitant to approach the police and/or report such

incident. Hence the delay in lodging the FIR is not of significance.

However the conduct of the PW1 in not taking the victim to the

doctor, despite noticing an injury on her private parts and the

victim complaining of passing reddish colour urine, is unnatural

and casts a doubt on the truthfulness and credibility of the entire

prosecution version.

19. Considering the totality of the evidence, in my considered

view, the prosecution has failed to establish the case beyond

reasonable doubt. Hence the conviction as well as sentence

cannot be sustained. In the result, the Appeal is allowed. The

impugned judgment is quashed and set aside. The Appellant is

acquitted of offences under Section 376 and 354(A)(1)(i) of the

Indian Penal Code and Section 4 and 8 of Protection of Children

from Sexual Offences Act, 2012. He shall be set at liberty

forthwith, if not required in any other case. His bail bonds stand

discharged. Fine amount, if deposited, be refunded to the

Appellant.

(ANUJA PRABHUDESSAI, J.)

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