Vitthal Rajendra Jogade vs The State Of Maharashtra
2022 Latest Caselaw 7849 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.99 OF 2016

                                          WITH

             CRIMINAL APPLICATION (APPA) NO.1398 OF 2018

                                          WITH

                     INTERIM APPLICATION NO.213 OF 2021

Vitthal Rajendra Jogade,
Age 30, Occu: Agri/Service,
R/o. Chungi, Tal. Akkalkot,
Dist. Solapur
At present in Solapur Jail.                            .....Appellant.

      Vs.

The State Of Maharashtra                               .....Respondent.


Ms. Shraddha D. Sawant, appointed Advocate for the Appellant.
Smt. S.S. Kaushik APP, for the Respondent-State.

                                            CORAM : A.S. GADKARI, J.

RESERVED ON : 14th JUNE, 2022.

PRONOUNCED ON : 11th AUGUST, 2022.

JUDGMENT:-

By the impugned Judgment and Order dated 13 th January,

2016, the Appellant has been convicted under Section 376(2)(i) of the

Indian Penal Code (for short, "the IPC") and under Sections 4 and 10 of the

Protection of Children from Sexual Offcences Act, 2012 (for short, "the

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POCSO Act") and is sentenced to suffer maximum rigorous imprisonment

for 10 years and to pay a total fine of Rs.15,000/-, in default of payment of

fine to further suffer simple imprisonment of specified term, by the learned

Special Judge, Solapur in Sessions Case No.202 of 2014.

2 Heard Ms. Sawant, learned Advocate appointed by the High

Court Legal Services Committee, Mumbai to represent Appellant and Smt.

Kaushik, learned APP for the State. Perused entire record.

3 The victim in the present crime was aged about 11 years on the

date of lodgment of the crime and with a view to protect her identity and in

consonance with the provisions of Section 228(A) of the IPC and Section

33(7) of the POCSO Act, the detailed narration of facts and other details

disclosing her identity and/or identity of her mother are hereinafter

avoided.

4 The prosecution case in nutshell is that, victim was 11 years of

age on the date of commission of crime i.e. on 22 nd April, 2014 and was

studying in 4th Standard in Z. P. School. Victim is handicapped by leg.

Appellant was also resident of the same village and engaged in the business

of connection of cable TV. On the day of incident, the victim was at home

due to summer vacation. The father of victim had gone to Akkalkot for

work. Under the instructions of her mother (PW-2), victim (PW-3) called

Appellant for connection of cable TV in their newly constructed house.

Appellant accordingly visited the house of the victim.               As there was






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shortage of electric wire, the mother of victim brought it from the nearby

shop and gave it to the Appellant for doing necessary work. While the

Appellant was busy in his work of connecting cable TV, Smt. Nagarbai

Salgare (PW-4) came to the house of victim (PW-3) and asked her mother

(PW-2) to accompany her to the agricultural field. On inquiry with

Appellant, he informed the mother of victim that, after completion of cable

TV connection work he would leave their house. That, due to the assurance

by the Appellant, the mother of victim went along with Smt. Nagarbai

Salgare (PW-4) to her agricultural land.

5 It is the further prosecution case that, after completion of cable

TV connection work, Appellant closed the door and window of the house,

raised volume of the TV; pulled the victim towards him and pressed her

body. Appellant thereafter removed her nicker and inserted his fingers in

her vagina. Victim therefore started to shout whereupon the Appellant

threatened her to keep quiet. Victim started heavily sweating and looking

the same, Appellant ran away from her house. At that time, nobody was

present in the vicinity of the said house. Victim thereafter called her cousin

brother by name Amol on his mobile and informed the fact of Appellant

misbehaved with her. Cousin brother of the victim immediately approached

her mother and both of them came to their house. Victim narrated the

incident to her mother. After returning of the father of victim from his

work, her mother (PW-2) along with father and other persons approached

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Akkalkot North Police Station and lodged the present crime.

6 After lodgment of crime, the victim was immediately referred

to the Civil Hospital, Solapur. Dr. Prabhakar S. Gavandi (PW-5), examined

victim and prepared necessary case papers (Exh-22 colly.). He also

prepared medical case record (Exh-24). After completion of investigation,

investigating Officer Shri. Ganeshprasad Bharate (PW-6) submitted charge-

sheet for the offence alleged against Appellant before the Special Court.

7 Trial Court framed charge below Exh-6 under Sections 376(2)

(i) of the IPC and under Section 3(b) r/w Section 4 and under Section 9

r/w Section 10 of the POCSO Act. The contents of the charge were read

over and explained to the Appellant in vernacular language. Appellant

pleaded not guilty and claimed to be tried. The defence of Appellant is of

false implication.

8 Prosecution has examined in all six witnesses in support of its

case namely, Amol Patil (PW-1) panch witness to seizure of clothes of victim

(Exh-11) and clothes of Appellant (Exh-12); mother of victim (PW-2);

Victim (PW-3); Smt. Nagarbai Salgare (PW-4); Dr. Prabhakar Gavandi (PW-

5), examined the victim on the date of lodgment of crime and (6)

Ganeshprasad Bharate (PW-6), Investigating Officer.

9 After recording evidence of the prosecution witnesses, Trial

Court recorded statement of Appellant under Section 313 of the Code of

Criminal Procedure (Exh-35). The Appellant submitted his written

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explanation (Exh-36).

The defence of the Appellant as can be gathered from the cross-

examination of material witnesses was that, Mr. Sarjerao Jogade was

previously the Deputy Sarpanch of the said village. Sarjerao Jogade is

paternal uncle of the accused. The husband of PW-2 was having friendly

relationship with Sarjerao Jogade. That, Court proceedings were pending

between the father of the Appellant and Sarjerao Jogade out of partition of

agricultural land and therefore on the say of Sarjerao Jogade, the present

case has been filed against the Appellant by the informant.

10 Amol Patil (PW-1) is a panch witness to seizure of clothes of

victim and Appellant. His evidence is formal in nature.

Victim (PW-3) in her testimony has deposed that, on the date

of incident, she was at home for summer vacation. She had appeared for

final examination of 4th Standard. Victim and her mother were at home at

the relevant time. Her mother asked her to call the TV cable operator and

therefore she called the Appellant to her house. Appellant asked her to

bring electric wire as there was shortage of electric wire in their house. Her

mother brought it from the shop of Mallu Swami. In the meantime, Smt.

Nagarbai Salgare (PW-4) came to their house and asked her mother to

accompany her to the agricultural land. Mother of victim asked Appellant

whether he would fixed the cable properly, to which the Appellant replied

positively. The mother of victim and Smt. Nagarbai Salgare (PW-4) left for

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her agricultural land. After the said two witnesses left the house of the

victim, Appellant completed work of fixing cable. Victim was standing in

front of TV, Appellant dragged her towards him and pressed her body. He

thereafter removed her nicker and inserted his fingers in her vagina. When

the victim started shouting, Appellant asked her to keep quiet. When the

victim started sweating, the Appellant ran away from the house. At that

time, no one was present in the vicinity of the house. Victim thereafter

called her cousin brother Amol on his mobile. She tried to narrate the

incident to him, however she could not tell him the entire incident. After

some time, her mother and brother Amol came to their house at that time

victim was crying. After they came to house, victim narrated the entire

incident to them. Victim, her mother and other persons thereafter

approached to the police station and lodged the present crime. Victim was

subsequently referred to hospital at Solapur and her statement was

recorded.

The version of victim has been duly corroborated by her

mother (PW-2) and Smt. Nagarbai Salgare (PW-4) on all counts. Mother of

victim has in detailed narrated the facts up to the arrival of Smt. Nagarbai

Salgare (PW-4) to her house and leaving their house in the company of

Smt. Nagarbai Salgare (PW-4) to go to her agricultural land. PW-2 has also

narrated that, between 2.00 to 2.30 p.m. the victim called her cousin

brother Amar (Amol) on his mobile phone and narrated the ordeal faced by

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her at the hands of Appellant. PW No.2 has proved the Birth Certificate

(Exh-15) of the victim. Smt. Nagarbai Salgare (PW-4) has also fully

corroborated the version of PW-2 and PW-3.

In the detailed and elaborate cross-examination of the

abovesaid three witnesses, nothing beneficial to the defence has been

brought on record. The facts narrated by the victim (PW-3), her mother

(PW-2) and Smt. Nagarbai Salgare (PW-4) have not at all shaken in their

cross-examination.

11 After lodgment of crime, the victim was referred to the Civil

Hospital for medical examination. Dr. Prabhakar Gavandi (PW-5) had

examined victim on 23rd April, 2014. In his deposition, he has stated that,

the victim gave history of sexual assault on 22 nd April, 2014 at about 2.00

p.m. by the Appellant. She gave history of fondling with breast and

insertion of finger in her vagina. He did not find fresh injury on the person

of victim. He referred the victim for further opinion of forensic expert in

respect of other injuries of her person. That, as per the expert opinion,

there was contusion present over the right side of chest of victim,

admeasuring 1 cm supromedial to right nipple size 1cm x 1.5cm red in

colour. Second injury was linear abrasion over posterior lateral aspect of

left arm in lower half of length 3.5 cm read in colour. He opined that, both

the injuries were simple in nature and were caused within one day prior to

the date of examination. He has proved the medical case papers (Exh-22)

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and the other medical documents including Medical Certificates (Exh-24).

In his cross-examination he has admitted that, the said injuries

were possible by fall from bicycle and on hard surface. However, has

denied the suggestion that, he is deposing falsely about the injuries suffered

by the victim.

12 It is the settled position of law that, absence of any injuries on

the person of the prosecutrix who was the helpless victim of rape might not

by itself discredit the statement of the prosecutrix and in such a situation

the non-production of a medical report would not be of much consequence

if the other evidence was believable. That, corroboration is not the sine qua

non for a conviction in a rape case. That, the evidence of prosecutrix stands

at higher pedestal than injured witness and needs no corroboration.

13 The version of the victim about sexual assault by the Appellant

has been corroborated by the testimony of Dr. Prabhakar Gavandi (PW-5).

It is thus clear from the evidence of aforestated witnesses that, the

prosecution has proved beyond reasonable doubt that, on the date and time

of the incident, the Appellant committed the act as contemplated under

Section 376(2)(i) of the IPC and under Section 3(b) punishable under

Section 4 of the POCSO Act.

14 The criminal law adheres in general to the principle of

proportionality in prescribing liability according to the culpability of each

kind of criminal conduct. Proportion between crime and punishment is a

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goal respected in principle and in spite of errant notions, it remains a strong

influence in the determination of sentences. Reliance is placed on a

decision of the Supreme Court in the case of Adu Ram Vs. Mukna & Ors.

Reported in (2005) 10 SCC 597.

In the present case, the date of commission of offence is 22 nd

April, 2014. Prior to amendment of 2019 to Section 4 of the said Act which

came into effect from 16th August, 2019, the minimum sentence prescribed

was 7 years. After taking into consideration the facts involved and overall

view of the present case this Court is of the opinion that, imposition of

sentence of 8 years rigorous imprisonment for the Appellant would sub-

serve the ends of justice.

15 In view of the above deliberation, the conviction of the

Appellant under Section 376(2)(i) of the IPC and under Sections 4 and 10

of the POCSO Act is hereby upheld. However Appellant has been directed

to undergo maximum rigorous imprisonment for 8 years for the said

offences committed by him. Impugned Judgment and Order dated 13 th

January, 2016 is modified to that extent. Rest of the operative part of the

impugned Judgment and Order dated 13th January, 2016 is maintained.

Appeal is partly allowed in the aforesaid terms.

16 In view of disposal of Appeal itself, Criminal Application

(APPA) No.1398 of 2018 and Interim Application No.213 of 2021 do not

survive and are also disposed off.

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17              Before parting with the Judgment, this Court places on record,

appreciation for the efforts put in by Ms. Sawant, learned Advocate

appointed by the High Court Legal Services Committee, Mumbai for

espousing cause of Appellant, as she was thoroughly prepared in the matter

and rendered proper assistance to the Court.

(A.S. GADKARI, J.)