Bombay High Court
Chandrakant Namdeo Wagalgave vs The State Of Maharashtra on 10 February, 2022
Bench: R. G. Avachat
A-Cri.Appln.2177.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2177 OF 2021
IN
CRIMINAL APPEAL NO.465 OF 2021
Chandrakant s/o. Namdeo Wagalgave ..Applicant
Vs.
The State of Maharashtra and anr. ..Respondent
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Mr.V.D.Salunke, Advocate h/f. Mr.M.V.Salunke, Advocate for applicant
Mr.S.P.Sonpavale, APP for respondent no.1
Mr.S.N.Lale-Yelwatkar, Advocate for respondent no.2
----
CORAM : R.G. AVACHAT, J.
RESERVED ON : FEBRUARY 08, 2022
PRONOUNCED ON : FEBRUARY 10, 2022
ORDER :-
Heard.
2. This is an application for suspension of substantive
sentence of imprisonment. The applicant/appellant herein has been
convicted for the offence punishable under Section 376(2)(N) of Indian
Penal Code (I.P.C.) read with Section 6 of the Protection of Children
from Sexual Offences Act (POCSO Act) and under Section 506 of I.P.C.
He has been sentenced to suffer rigorous imprisonment of ten years
for the offence punishable under Section 376(2)(N) of I.P.C. read with
2 A-Cri.Appln.2177.21
Section 6 of the POCSO Act; and to suffer simple imprisonment of
three months for the offence punishable under Section 506 of I.P.C.
3. Heard learned counsel for the parties.
4. The case of prosecution is that "R" had married one "X".
The couple was blessed with three daughters (victims). The
applicant herein is the husband of sister-in-law of "R". The applicant
would regularly visit the house of "R". Emotional relationship came
into being between "R" and the applicant. "X" got knowledge of this.
He, therefore, deserted "R" first, and then, got the decree of divorce
against her. The applicant, "R" and her three minor daughters
(victims) would reside together. As such, all of them stayed together
for the period from May, 2007 to October, 2017 and to be more
specific, upto 9th October, 2017. It is also the case of prosecution
that during this stay, the applicant had sexual intercourse with all
the three daughters (victims) of "R" many a time (as and when
occasion arose and circumstances permitted).
5. Learned APP for State and the learned counsel
representing the respondent-victim took this Court through the
relevant evidence, to ultimately urge for rejection of the application.
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Learned counsel representing the victim also urged this Court to
pass order after going through the file. Learned counsel first took
this Court through paragraphs 5, 9, 19, 22, 36 and 47 of the
impugned judgment. He also took me through the evidence of the
victims and the Medical Officer as well.
6. On the question of age of the victims, it has to be stated
that although the Headmaster of the school (PW 7 - Sunita)
admitted to have not placed on record any document to show the
basis on which the dates of birth of the victims were recorded in the
school record, the mother of the victims has given their dates of
birth. In proof of age of a particular person, best evidence would be
that of his parents. Her evidence needs to be accepted as it is for
the present, at least. As such, during the relevant time, the victims
were minors.
7. Before the trial Court, "R" and her three daughters
(victims) gave evidence consistent with their case. The victims were
medically examined as well. Their medical examination reports
indicate that the hymen was torn. It, however, indicates that there
were no signs of sexual intercourse in the recent past (immediately
before the medical examination).
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8. There is, however, another aspect of the matter.
According to "R" herself, the applicant stopped maintaining her and
the victims in October, 2017. "R" had, therefore, lodged a report,
alleging the applicant to have had stopped providing for their
maintenance and even beaten her up and her daughters as well. The
informant has given a specific date upto which the applicant and
they had stayed together i.e. upto 9th October, 2017. After about
21 days thereafter, "R" lodged report against the applicant and
alleged to have had stopped for providing for their maintenance and
even beaten up them. By that time, none of them had made report
against the applicant about sexual exploitation of the daughters of
"R". It is only on 18.11.2017, the elder daughter of "R" lodged the
FIR, alleging the applicant to have committed rape of her many a
time. Her both sisters gave their statements with the same
allegations against the applicant herein.
9. It is reiterated that "R" and her victim daughters gave
evidence before the Court consistent with their case before the
Investigating Officer. Learned counsel for the victim, therefore, may
have a reason to contend that the trial Court has rightly convicted
the applicant and he does not deserve grant of suspension of
substantive sentence of imprisonment, pending the appeal.
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10. The applicant was on bail, pending the trial. It will take
time for the appeal to come up for final hearing. The medical
examination reports of the victims may or may not support their
case, since there were no signs of recent sexual intercourse. As per
the FIR, it is the applicant on one hand and "R" and her daughters
on the other, had stayed together upto 09.10.2017. On 30.10.2017,
"R" had lodged a report against the applicant. There is evidence to
suggest that the daughters (victims) had informed "R" as to what
the applicant had done with them during their joint stay. Still, in the
report lodged on 30.10.2017, there are no allegations against the
applicant about having sexually exploited the daughters of "R". It is
only about one month thereafter, the FIR has been lodged on
18.11.2017.
11. For about ten years, the applicant, the victims and their
mother had stayed together as members of one family. It was the
applicant who would provide for their maintenance. All of them had
stayed together in the premises taken on rent. During the period
from May, 2007 to October, 2017, they had stayed in not less than
four different rental premises. None of the premises was comprising
more than two rooms. The applicant, allegedly, sexually exploited
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the victims when all of them used to be in the house/s. It is their
case that the applicant, during night time, would exploit one of the
victims, when others used to be asleep. It is also their case that the
applicant would use tranquilizers/chloroform, whereby, other
members in the family used to be not conscious. These facts do not,
prima facie, appeal. In the circumstances, the application deserves
to be allowed.
12. The submissions advanced by learned counsel
representing the victim, made this Court to make some observations
about merit of the matter, which this Court could have avoided.
13. For the reasons stated herein above, the application
deserves to be allowed. Hence, the following order:-
(i) During pendency of the appeal, the substantive sentence
of imprisonment to stand suspended.
(ii) During pendency of appeal, the applicant be released on
executing P.R. Bond in the sum of Rs.15,000/- (Rupees
Fifteen Thousand) with one surety in the like amount.
[R.G. AVACHAT, J.]
KBP
