Bombay High Court
Kiran Chandrakant Ovhal vs The State Of Maharashtra And Anr on 29 April, 2022
Bench: C.V. Bhadang
apeal-123-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.123 OF 2020
Kiran Chandrakant Ovhal ..Appellant
Vs.
The State of Maharashtra & Anr. ..Respondents
----
Dr.Uday Warunjikar a/w Mr.Pankaj D. Purway for the Appellant.
Mr.Y.Y. Dabke, APP, for the Respondent-State.
Mr.Tejesh Dande a/w Mr.Bharat Gadhavi, Mr.Vishal Navale,
Mr.Aniket Aghade, Mr.Trushna Shah and Mr.Chinmay Deshpande
i/b Tejesh Dande & Associates for Respondent No.2.
----
CORAM : C.V. BHADANG, J.
RESERVED ON : 7 DECEMBER 2021
PRONOUNCED ON : 29 APRIL 2022
:JUDGMENT:
. By this Appeal, the Appellant-Accused is challenging the
judgment and order dated 23 December 2019, passed by the learned
Special Judge at Pune in Special POCSO Case No.17 of 2017. By
the impugned judgment the learned Special Court has convicted the
Appellant for the offence punishable under Section 5(m) read with
Section 6 of the Protection of Children from Sexual Offences Act,
2012 ('POCSO Act') read with Section 376(2)(i) of the Indian
Penal Code (IPC for short).
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2. The Appellant has been sentenced to suffer rigorous
imprisonment for 10 years with fine. The learned Special Judge
however has acquitted the Appellant from the offence punishable
under Section 323 of Indian Penal Code.
3. The prosecution case may be briefly stated thus :-
The first informant, who is the mother of the victim girl was
working in Central Park Hotel at Pune. Her husband is doing the
work of collecting garbage. On 7 November 2016, when the
informant came back from her work at 7.00 p.m., she found that the
victim, who is her minor daughter aged about 6 years, was having
fever. Her elder daughter brought medicines from a medical shop,
which was administered to the victim. According to the informant,
on account of the fact that the victim was suffering from fever, she
chose not to bathe her. However, on 10 November 2016 at 8.00
a.m. when she was trying to bathe the victim, she noticed that there
was redness and blood on her private parts with dry blood stains on
the thighs. On inquiry, victim started crying. The victim informed
that on the previous Monday when she was playing outside her
house, the neighbourer (who she calls Dada), who according to the
prosecution, is the Appellant/Accused, took her in his house at
about 9.00 hrs to 10.30 hrs. and closed the door. It is the material
case that the Appellant lifted her gown and inserted his hand in her
knicker and inserted his finger in her vagina. Victim experienced
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pain and she shouted. The Appellant hit her on her back. She started
crying, when he opened the door and let her go. He threatened her
not to disclose the incident to anyone.
4. The informant narrated the incident to her husband, after
which the FIR (Exhibit-17) came to be registered on 10.11.2016.
5. During the course of the investigation, the statements of the
witnesses and the victim (PW-3) were recorded. The victim was
sent for medical examination and after completion of the
investigation, a charge-sheet is filed.
6. The learned Special Judge framed charge against the
Appellant for the aforesaid offences, to which the appellant pleaded
not guilty and claimed to be tried. The defence of the Appellant is
of total denial and false implication.
7. At the trial, the prosecution examined in all five witnesses,
namely the mother and the father of the victim as PW-1 and PW-2.
The victim is examined as PW-3. Medical Officer Dr. Nisha Watti
as PW-4 and the Investigating Officer Mr.Krishna Indalkar as PW-
5.
8. The Appellant did not lead any evidence in defence.
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9. According to the Appellant, there was a quarrel between his
mother and family members of the victim, which is the reason for
his false implication.
10. The learned Special Judge has found the Appellant guilty.
Hence this Appeal.
11. I have heard the learned counsel for the Appellant and the
learned APP. With the assistance of the learned counsel for the
parties, I have gone through the record.
12. It is submitted by the learned Counsel for the Appellant that
the Special Court has framed charge under Section 3 and 4 of the
POCSO Act read with Section 376 (2)(i) of IPC. However, the
Appellant has been convicted under Section 5(m) read with Section
6 of the POCSO Act which is a graver offence than the offence
under section 3 read with section 4 of the POCSO Act. It is
submitted that thus the conviction of the Appellant for the offence
under Section 5(m) read with Section 6 is not sustainable,
particularly, when section 376(2) (i) was omitted in the year 2018.
Reliance is placed on the decision of this court in Abdul Rajak
Chapparban v/s. State of Goa1 and in State of Maharashtra v/s.
Viran Gyanlaln Rajput2 wherein it is held that if there is no charge
under a particular section then the conviction is not sustainable. It
1 (2020) SCC Online Bom 932
2 (2015) SCC Online Bom 380
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is pointed out that the Appellant has already completed more than
five years of jail sentence.
13. The learned Counsel for the Appellant has taken strong
exception to the aspect of identification of the Appellant by the
victim. It is submitted that the victim and the complainant who is
her mother have been referring to one Dada residing in their
neighbourhood who was involved in the incident. It is submitted
that subsequently PW-1 and PW-2 claimed that it was 'Kiran
Dada'. It is submitted that notwithstanding Section 36 of the
POCSO Act, the identification of the accused has to be properly
established as it goes to the root of the matter. It is submitted that
the victim was not made to identify the Appellant before the court.
It is submitted that the identification by the parents of the victim is
of no consequence. The learned counsel has referred to three
different versions which have come in the FIR about the identity of
the accused. In the initial stage, no name was mentioned, later it
was mentioned by the victim girl "shejariche Dada" (brother
residing in the neighbourhood) and subsequently, the parents
introduced the name of the Appellant. In the submission of the
learned counsel section 36 of the POCSO Act does not relieve the
prosecution of the basic requirement of the identification of the
accused, albeit without exposing the child/victim to unnecessary
trauma/stress.
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14. It is submitted that the medical evidence is contrary to the
oral evidence as PW-4 had not found any external injuries on the
body of the victim nor had found any swelling or redness on her
private parts which would falsify the evidence of PW-1. It is
submitted that PW-4 has specifically opined that there is no
evidence of any penetrative vaginal intercourse and further opined
that "attempt" of vaginal fingering cannot be ruled out. It is
submitted that in the absence of a conclusive medical opinion, the
Appellant is entitled to benefit of doubt. It is submitted that
admittedly there is an enmity between the parties which is the
reason for false implication.
15. It is submitted by the learned APP assisted by the learned
Counsel for the second respondent that sufficient particulars of the
incident are setout in the charge and in the absence of any
prejudice, the non framing of the charge under section 5(m) read
with section 6 may not be decisive. Reliance in this regard is
placed on the decision of the Supreme Court in State of West
Bengal and Laisail Haque and others1.
16. Insofar as the identification is concerned, it is submitted that
the appellant was residing in the neighbourhood of the victim and
they are known to each other and therefore, the alleged absence of
identification is of no consequence. Reliance is placed on the
1 (1989) 3 SCC 166
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decision of the Abdul Sayyed v/s. State of Madhya Pradesh2 ,
Willie (William) Slaney v/s. State of Madhya Pradesh 2, Dana
Yadav alias Dahu and Ors. v/s. State of Bihar 3 and Musheer Khan
alias Badshah Khan and Ors v/s. State of Madhya Pradesh 4 and
Prakash v/s. State of Karnataka5. It is submitted that section 36 of
the Act require the Special Court to ensure that the child is not
exposed in any way to the accused at the time of recording of the
evidence. It is submitted that the evidence of the victim girl, who is
of tender age is consistent and cogent and is sufficient to base the
conviction. It is submitted that the victim was examined by PW-4
about 3 to 4 days of incident and therefore, the absence of Medical
Officer noticing any redness or swelling on the private parts of the
victim is not material. It is submitted that PW-4 has stated that
there is possibility of vaginal fingering which cannot be ruled out.
17. I have carefully considered the rival circumstances and the
submissions made. It is true that offence u/s 5(m) read with section
6 is graver than the offence u/s 3 and 4 of the POCSO Act. It can
also be seen that conviction for a graver offence cannot be
sustained if the charge is for a lessor offence. However, what is
material is the contents of the charge and not the actual section
mentioned. It is necessary to note that the label of the section
1 (2010) 10 SCC 259
2 (1955) 2 SCR 1140
3 (2002) 7 SCC 295
4 (2010) 2 SCC 748
5 (2014) 12 SCC 133
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mentioned may not be decisive. The Appellate court faced with a
contention based on inadequacy or insufficiency of the charge has
to go to the charge as a whole and then to find out whether the
necessary ingredients of the offence were put to the accused so as
to avoid any prejudice. The object and purpose of framing of
charge is to ensure that the accused is made aware of the
prosecution case with sufficient amount of precision so as to ensure
that he can properly defend and meet the charge so framed. In my
considered view the matter would depend upon facts and
circumstances of each case.
18. Coming to the present case, clause (3) of the charge reads
thus:
"3) That, you accused, during the aforesaid period, time
and place and during the course of same transactions,
committed penetrative sexual assault on the minor victim
girl aged about 6 years i.e. under the age of 16 years, by
inserting your finger into the vagina of the aforesaid
victim and you are thereby committed an offence
punishable under section 3 read with section 4 of the
Protection of Children from Sexual Offences Act, 2012
and within my cognizance."
19. It can thus be seen that there are essential particulars in the
charge about the Appellant accused inserting his fingers into the
vagina of the victim. The appellant had also not demonstrative any
prejudice on account of any irregularity or defect in the matter of
framing of the charge. Thus, on the basis of the facts as obtaining
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in this case and the contents of the charge the contention on behalf
of the appellant cannot be accepted.
20. The contention based on the fact that Section 376(2)(i) has
been omitted also may not be material inasmuch as the said Section
was omitted w.e.f. 21.04.2018 while the incident in this case is
prior thereto.
21. This takes me to the material evidence about the incident. It
has come on record that the birth date of the victim is 18.10.2010.
The incident is alleged to have happened on 07.11.2016. Thus, the
victim was a little over 6 years of age on the date of the incident. It
has come in the prosecution evidence that the victim narrated the
incident to her mother for the first time on 10.11.2016, on which
date the FIR came to be registered. It has come in the evidence of
PW-1 that the victim has 3 elder sisters aged about 16 years, 14
years and 11 years and one brother. The prosecution evidence does
not show that the incident was narrated by the victim to any of her
elder sisters who used to be at home when their parents used to be
out. The elder sisters who were aged about 11 to 16 years were
certainly of the age to understand the nature and the gravity of the
incident. However, their evidence is not forthcoming.
22. Coming to the issue of identification, it is true that the
Appellant is the neighbourer of the victim. PW-1 states that prior
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to the incident, her family and the family members of the appellant
were not on talking terms. In the FIR, PW-1 claims that the victim
informed her that "shejarchya Dadane" (the brother residing in the
negihbouhood) had called her in the house and lifted her gown and
inserted his hand in her knicker and inserted his finger in her
vagina. In the subsequent part of the FIR, PW-1 claims that the
victim pointed towards the house of Sunita Ovhal who is the
mother of the Appellant. On the basis of such disclosure, PW-1
claims that it was the Appellant who did the act. PW-2 has
straightway named the Appellant claiming that Kiran Ovhal did this
as informed by his wife PW-1. However, PW-1 herself has not
stated about the name of Kiran Ovhal.
23. Coming to the evidence of PW-4, Dr. Nisha Watti, she claims
that when the victim's mother asked the victim about the redness
noticed around the perineal region of the victim, while she was
giving bath, the victim told that the accused "did something with
her but did not tell exactly what he did". This history given is
again contrary to the claim earlier made. The evidence of PW-4
clearly shows that she did not observe any external injury on the
body of the victim or perineal region or swelling on the private
parts of the victim. PW-4 also states that the hymen was intact. As
per the opinion of PW-4, there is no evidence of penetrative vaginal
intercourse, however she states that the attempt of vaginal fingering
cannot be ruled out.
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24. The learned Counsel for the Appellant as noticed earlier has
taken strong exception to the absence of identification of the
Appellant during the course of the trial by the victim. It is well
settled that the identification before the court is alone the
substantive evidence. The test identification parade may not be
necessary where the parties are known to each other. However, at
the same time when there is a certain amount of discrepancy as to
the description or the name of the accused who was involved in the
incident where the parties are known to each other, the
identification before the court would assume significance. I am
conscious of the fact that under section 36 of the POCSO Act, a
duty is cast on the court to ensure that the child is not exposed in
any way to the accused at the time of recording of the evidence.
However, that may not in a given case obviate the need for proper
identification before the court. It is necessary to note that there
may be cases where the accused may be a total stranger to the
victim, in which case the proper identification of the accused, as the
perpetrator of the crime, would be of pivotal importance.
25. In the facts of the case, I do not find it necessary to make a
detailed reference to the cases cited but for the risk of prolixity.
None of these cases involved a trial under the POCSO Act or
involving a child.
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26. Considering the overall circumstances, I find that the
appellant would be entitled to benefit of doubt broadly for three
reasons, (i) for want of proper identification both in the FIR as well
as before the court, (ii) Second on account of the medical opinion
which cannot to be said to be conclusive inasmuch as while
negating the penetrative sexual assault PW-4 only expresses
possibility of the fingering not being ruled out and (iii) there is an
enmity between the family of the appellant and that of the victim as
admitted by PW-1.
27. In the result, the following order is passed:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of conviction and sentence is
hereby set aside.
(iii) The appellant is acquitted of the offences punishable
under Section 6 of the Protection of Children from
Sexual Offences Act read with Section 376 (2)(i) of
Indian Penal Code.
(iv) The appellant is set at liberty forthwith if not required
in connection with any other case.
C.V. BHADANG, J.
Digitally signed by ANDREZA
ANDREZA PEREIRA PEREIRA
Date: 2022.04.29 17:36:38 +05'30'
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