Ramchandra Shrimant Bhandare vs The State Of Maharashtra
2022 Latest Caselaw 7568 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO.982 OF 2017

Ramchandra Shrimant Bhandare                 ....Appellant
          Versus
The State of Maharashtra                     ...Respondent
                              ______
Mr. Sushan Mhatre, Advocate for the Appellant.
Mr. Yogesh Y. Dabke, APP for the Respondent-State.
                              ______

                          CORAM : SARANG V. KOTWAL, J.

                          DATE     : 3rd AUGUST, 2022
ORAL JUDGMENT :

1. The appellant has challenged his conviction and

sentence recorded by the learned Special Judge under POCSO Act

at Greater Mumbai on 20.11.2017 in POCSO Case No.94/2014.

The appellant was convicted for commission of offence punishable

under Section 354 of the Indian Penal Code read with Section 8 of

the Protection of Children from Sexual Offences Act, 2012 (for

short, 'POCSO Act'). He was sentenced to suffer RI for five years

and to pay fine of Rs.5,000/- and in default to undergo RI for six

months. He was granted benefit of set off under Section 428 of

Cr.P.C.. The judgment mentions that the appellant was in custody

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from 13.12.2013 till 21.7.2014 and then was re-arrested on

26.7.2017 and was in custody till the date of the order.

2. Heard Shri Sushan Mhatre, learned counsel for the

appellant and Shri Yogesh Dabke, learned APP for the State.

3. The prosecution case is that on 11.12.2013 at about

1.00 p.m., the appellant approached the victim who was about five

years of age on that date. He touched and pinched her private

parts and thus committed offence punishable under Section 8 of

POCSO Act and under Section 354 of IPC. The FIR was lodged at

the midnight. The appellant was apprehended by the people from

the locality, was brought to the police station then he was arrested.

The investigation was carried out and the charge-sheet was filed.

During trial, the prosecution examined four witnesses : PW-1 was

the victim herself, PW-2 was the victim's mother, PW-3 was the

investigating officer and PW-4 was the Medical Officer.

4. PW-1 in her deposition has stated that she was studying

in 4th standard. Her school timing was from 7.00 a.m. to 12.30 p.m.

After returning from school she used to take lunch and thereafter

used to go to Masjid for studying Arbi. She used to return home at

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around 4.30 p.m. Then she used to go out for playing with her

friends and used to return home at 7.00 p.m. On the day of the

incident she was playing outside her house with her friends. At

that time, one uncle came near her and took her with him. He

closed her eyes with his hands. He touched her private parts. He

also pinched her private parts. She was having pain. She returned

home and narrated the incident to her mother. Her mother took

her to hospital. Then she was taken to the police station. The

mother lodged her FIR. PW-1's statement was also recorded under

Section 164 of Cr.P.C. by the learned Magistrate.

In the cross-examination, she deposed that her parents

were keeping watch on her activities to protect her and that she

was not kept alone by her mother. She did not know anything

about the relations between her father and the appellant. She

specifically denied the suggestion that she was deposing before the

Court against the appellant at the instance of her mother. She also

admitted that there was quarrel between the appellant and her

father. However, she immediately clarified that the quarrel took

place on account of the fact that the appellant had committed this

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offence. PW-1 then identified the appellant before the Court.

5. PW-2 is the mother of the victim. She had narrated the

incident that on the date of the incident her daughter returned

home crying. On enquiries she told her about the incident. PW-2

then saw her private part which was reddish in colour. In the

evening she along with her daughter - the victim had gone to

purchase vegetables, while they were returning they saw that the

appellant was drinking alcohol. At that time the victim showed the

appellant as the person who had committed that offence. PW-2's

husband then with the help of neighbours enquired with the

appellant. The people in the vicinity gathered there and assaulted

the appellant for committing that act. The police then came there

and took the appellant with them. PW-2 also went to the police

station and lodged her FIR, which was produced on record at

Exhibit-13. The victim was sent for medical examination.

In the cross-examination, hardly anything of

consequence was elicited from her evidence. She denied the

suggestion that on the date of incident the appellant had quarreled

with her husband under the influence of liquor and as PW-2's

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husband assaulted him, the appellant's family members went to

police station to lodge complaint against her husband and,

therefore, immediately the present complaint was lodged to falsely

implicate the appellant.

There is hardly any material contradiction and omission

between the FIR and her deposition. The FIR was recorded at

12.10 a.m. on 13.12.2013 i.e. on the same mid-night.

6. PW-3 API Santosh Rasam had conducted the

investigation. He deposed that at about 11.30 p.m., the informant,

her husband and the victim had come to the police station and had

narrated the incident. The FIR was lodged. In the meantime, the

staff of Vakola police station brought the appellant to the police

station in their mobile van. The victim identified the appellant as

the person who had committed that act. He was arrested. He

clarified that in the third paragraph of the FIR, by mistake, the date

was mentioned as 11.12.2013 instead of 12.12.2013. The victim

was five years of age at the time of FIR and she was continuously

crying and, therefore, he could not record her statement for seven

to eight days. In the meantime, she was referred for medical

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examination at Cooper Hospital. The victim's statement was

recorded under Section 164 of Cr.P.C. He himself recorded the

statement of the victim on 11.8.2017 and issued copy of the same

to the defence. Again in the cross-examination, nothing much was

elicited. He admitted that he did not record the statement of the

victim's friends who were playing with her.

7. PW-4 Dr. Ayyar had examined the victim on

12.12.2013. She was brought to Cooper Hospital by her mother.

Her medical examination did not reveal anything except the history

given by her mother .

. This, in short, is the prosecution case.

8. The defence of the appellant recorded under Section

313 of Cr.P.C. is that he went to the victim's father's shop to

purchase grocery. He paid money but there was some quarrel and

he was falsely implicated because of the quarrel between him and

the victim's father.

9. Learned Judge believed the version of the victim and by

relying on other evidence, convicted and sentenced the appellant as

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mentioned earlier.

10. Learned counsel for the appellant submitted that the

FIR mentions that the incident had taken place on 11.12.2013 and

the FIR was lodged on 13.12.2013. The delay has remained

unexplained. He submitted that the appellant is falsely implicated

because of the quarrel between him and the victim's father. He

submitted that the medical examination did not reveal any injury

including redness on the private part of the victim. The

prosecution case therefore is doubtful.

11. Learned APP, on the other hand, relied upon the

depositions of the victim and her mother to contend that the

prosecution has proved its case beyond reasonable doubt.

12. I have considered these submissions. The victim has

described the incident in sufficient details. She was barely five

years of age. The evidence shows that she was crying continuously.

After gathering courage she, in fact, had identified the appellant in

the Court. From her evidence it does not appear that she is a

tutored witness. In fact she has denied the suggestion that she was

deposing on being tutored by her mother. The victim appears to be

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a truthful witness.

13. PW-2's evidence corroborates PW-1's version. The

appellant was immediately shown by PW-1 in the evening when

PW-1 and PW-2 were returning after purchasing vegetables from

the market. There was no possibility of the victim identifying the

appellant wrongly. PW-1 appears to be an innocent child. She has

not identified any person randomly. Even during the course of trial,

she identified the appellant in the Court though she was scared.

14. The absence of injury mentioned in the medical

certificate will not make any difference to her case because the very

nature of the offence of sexual assault defined under Section 7 of

the POCSO Act mentions that even touching private part with

sexual intent is sufficient to attract the provisions of Section 7 read

with Section 8 of the POCSO Act.

15. In this case, the ocular evidence of the victim and her

mother inspires confidence and there is no reason to doubt their

versions. The other step of arresting the accused is also proved by

the prosecution from the evidence of the investigating officer. The

appellant was caught by the residents and was handed over to the

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police.

16. The defence of the appellant does not really help his

cause. No circumstances are brought on record by the defence to

show that there in fact was any quarrel between the appellant and

the victim's father.

17. Thus, considering all these aspects, no case for

interference with the impugned judgment and order is made out.

The appeal is, therefore, dismissed. It is clarified that if the

appellant has already completed his substantive sentence and also

the the sentence imposed on him in default of payment of fine, in

that case, the appellant be released only if he has completed both

the sentences and if he is not required in any other case. With

these observations, the appeal is disposed of.

(SARANG V. KOTWAL, J.) Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2022.08.06 12:54:57 +0530

Deshmane (PS)

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