Popat Navasu Bendkoli vs The State Of Maharashtra And Anr
2022 Latest Caselaw 6531 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 1544 OF 2019

Popat Navasu Bendkoli,                            ]
Age - 33 years, Occ: Labourer,                    ]
R/o. Holdar Nagar, Tq. Trambakeshwar,             ]
Dist. Nashik.                                     ]              .....Appellant

        V/s.

1. The State of Maharashtra                      ]
through Harsul Police Station, Nashik.           ]
                                                 ]
2. Surekha Manglu Bendkoli,                      ]
Age - 19 years, Occ: Labourer,                   ]
R/o. Holdar Nagar, Tq. Trambakeshwar,            ]
Dist. Nashik.                                    ]               .....Respondents

Mr. Aniket Vagal for the Appellant.
Mr. S. S. Hulke, APP for Respondent No.1-State.
Ms. Priyanka Chavan for Respondent No.2.

                                      CORAM         :       A. S. GADKARI, J.

                                      RESERVED ON   :       13th JUNE, 2022.
                                      PRONOUNCED ON :       12th JULY, 2022

JUDGMENT:-

Appellant/original Accused No.1 has questioned correctness of

the Judgment and Order dated 13 th March, 2018 passed in Sessions Case

No.93 of 2017 by the learned Special Judge (POCSOA), Nashik convicting

him under Section 366 of Indian Penal Code (for short IPC) and sentenced

to suffer rigorous imprisonment for five years and to pay fine of Rs.3,000/-

(Rupees Three Thousand Only), in default of payment of fine to suffer

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further rigorous imprisonment for three months and for offence committed

under Section 5(1) read with Section 6 of the Protection of Children from

Sexual Offences Act, 2012 (for short POCSO Act) and sentenced to suffer

rigorous imprisonment for ten years and to pay fine of Rs.10,000/- (Rupees

Ten Thousand Only), in default of payment of fine to further suffer rigorous

imprisonment for six months.

2. Heard Mr. Aniket Vagal, learned Advocate for the Appellant,

Ms. Priyanka Chavan, learned Advocate appointed by the High Court Legal

Services Committee, Mumbai to represent Respondent No.2 (victim) and

learned APP. Perused entire record.

3. As the victim was minor, aged about 16 years and 11 months

on the date of commission of offence i.e. on 30 th June, 2016, with a view to

protect her identity and in consonance with provisions of Section 228(A) of

IPC and Section 33(7) of the POCSO Act, the facts or any other material

disclosing her identity are hereinafter avoided.

4. It is the prosecution case that, the Respondent No.2 (victim)

and her friend who was also a minor, used to go for labour work at Nashik

in a track jeep of Appellant. They used to return at home by 8.00 p.m.

every day. That, on 30th June, 2016, at about 7.00 a.m., Respondent No.2

(victim) and her friend (victim No.2) went to do labour work at Nashik

from the jeep of the Appellant, however they did not return till late night.

Therefore, the father (PW No.3) of the victim and the father of the victim

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No.2 tried to search them in the vicinity, however they were not traced.

They continued their search for two days. However, as the said two girls

were not traced out, he ultimately lodged First Information Report on 2 nd

July, 2016 with Harsul Police Station, District Nashik bearing Crime No.28

of 2016 under Section 363, 366 of the IPC and under Section 4 of the

POCSO Act. After registration of the crime, investigation of the same was

taken over by PSI Mr. Ghuge. During the course of the investigation it was

revealed that, the Respondent No.2 along with Appellant were residing at

village Tokwade and Inde, Taluka Murbad, District Thane, within the

jurisdiction of Tokwade Police Station. On 22nd August, 2016, police

apprehended Appellant and along with Respondent No.2 brought him to

Harsul Police Station. The medical examination of victim was conducted by

the Medical Officer of General Hospital, Nashik on 22 nd August, 2016 itself.

After completion of the investigation, investigating officer submitted final

report under Section 173(2) of Code of Criminal Procedure, 1973 (for short

Cr.P.C.), under Section 366 of IPC and under Section 5(1) read with Section

6 of the POCSO Act before the special Court.

5. The trial Court took cognizance of the said offences against

Appellant and accused No.2 Ankush Ananda Mondhe and framed charge

below Exh.18. The contents of the said charge were read over and

explained to the accused in vernacular language to which they pleaded not

guilty and claimed to be tried. To establish its case, the prosecution

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examined in all four witnesses namely the victim (PW No.1); another victim

(PW No.2) who had eloped with accused No.2 Ankush Mondhe; Mr. Manglu

Raghu Bendkoli (PW No.3), father of victim and Mr. Pravin P. Salunke (PW

No.4), Assistant Police Inspector, investigating officer. The prosecution has

also proved statement of victim recorded under Section 164 of Cr.P.C.

through her which is on record at Exh.27.

The trial Court after recording evidence and hearing learned

Advocates for the respective parties, has convicted Appellant as noted

hereinabove by its impugned Judgment and Order dated 13 th March, 2018.

6. Mr. Vagal, learned Advocate for the Appellant submitted that,

the Appellant has admitted medical reports of Respondent No.2 under

Section 294 of Cr.P.C. He submitted that, in her medical report, the Medical

Officer has clearly mentioned in para No.12(c) that Hymen was intact.

That, the Medical Officer while expressing clinical opinion in para 15(b)

has stated that, "Not consistent with recent sexual intercourse/assault". He

further submitted that, the Appellant has brought on record a vital omission

from the Respondent No.2 from which it can be safely inferred that, the

Appellant did not commit an act of 'aggravated penetrative sexual assault'

as defined in Section 5 of the POCSO Act to attract punishment under

Section 6 of POCSO Act. He submitted that, at the most, offence under

Section 366 of IPC can be alleged against the Appellant, however in view of

the categorical opinion expressed by Medical Officer, no offence under

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Section 6 of POCSO Act has been made out by the prosecution. He

submitted that, the trial Court has failed to take into consideration these

aspects and has committed error while convicting the Appellant under

Section 6 of POCSO Act. He therefore prayed that, the impugned Judgment

and Order may be set aside and the Appellant may be acquitted.

7. Per contra Ms. Chavan, learned Advocate appointed to

represent Respondent No.2 and learned APP vehemently opposed the

Appeal. Ms. Chavan submitted that, the testimony of prosecutrix is fully

reliable to base conviction solely on the same. In support of her contention,

she relied on decisions in the case of (i) Mohd. Imran Khan Vs. State

Government (NCT of Delhi) reported in (2011) 10 SCC 192; (ii) Vijay alias

Chinee Vs. State of Madhya Pradesh reported in (2010) 8 SCC 191 and (iii)

State of Uttar Pradesh Vs. Chhotey Lal reported in (2011) 2 SCC 550. She

further submitted that, conviction can be awarded on the basis of sole

testimony of the prosecutrix, if Court finds that it is genuine and reliable.

She therefore submitted that, there are no merits in the Appeal and the

same may be dismissed.

Learned APP submitted that, non-rupture of hymen or absence

of injury on victim's private parts, does not belie her testimony. That, to

constitute rape penetration however slight is sufficient. That, opinion of

doctor cannot throw out an otherwise cogent and trustworthy evidence of

the prosecutrix. In support of his contention he relied on a decision of the

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Hon'ble Supreme Court in the case of Ranjit Hazarika Vs. State of Assam

reported in (1998) 8 SCC 635.

8. Perusal of evidence on record reveals that, PW No.2 (victim

No.2) did not support prosecution's case and was declared hostile. In her

cross-examination by the learned APP, she admitted that, she was having an

affair with accused No.2 Ankush Mondhe and in the month of June, she and

Ankush Mondhe decided to ran away and accordingly she joined the

company of Ankush Mondhe on 30 th June, 2016 and along with him she

started residing as husband and wife at Thane. She has further stated that,

she has married with Ankush Mondhe and she has no grievance with

anybody.

9. PW No.3 i.e. father of the victim has deposed about the fact of

victim used to go to work at Nashik from the vehicle of Appellant and her

not returning to home on 30th June, 2016 and lodgment of crime. He has

also deposed that, the Respondent No.2 along with other victim girl were

not found in the village and he had having doubt about the other victim

joining the company of Ankush Mondhe. PW No.4 Mr. Pravin Salunke,

Assistant Police Inspector has deposed about the investigation carried out

by him with respect to present crime i.e. Crime No.28 of 2016 and his

tracing out of other victim girl along with Ankush Mondhe. He has stated

that, further investigation was thereafter handed over to original

investigating officer Mr. Ghuge, who completed the investigation and

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submitted the charge-sheet.

10. This leads me to deal with the most important deposition in the

entire case that is of Respondent No.2 (PW No.1) victim. The victim in her

deposition has stated that, prior to a year, the Appellant took her and her

friend (victim No.2) to Thane. There he took a room on rent. That, victim

No.2 and Ankush Mondhe were residing in a separate room and the

Appellant and Respondent No.2 were residing separately. That, the

Appellant used to extend threats of serious and dire consequences and

established physical relations with her. That, she along with Appellant

stayed there for about a month. During the said period, Appellant

established physical relations with her on various occasions. She has

further deposed that, the police from Tokwade Police Station came there

and took her and Appellant at Police Station. They were thereafter brought

to Harsul Police Station, where her statement came to be recorded. Her

medical examination was also conducted. She has further deposed that,

her statement was recorded by Judicial Magistrate which is at Exh.27. The

said witness has proved the said exhibit i.e. her statement under Section

164 recorded by Judicial Magistrate.

Even in her detailed cross-examination except an omission that

she did not state before the police that, the Appellant took her under the

pretext of going to work, took her to Thane and established physical

relations with her against her will and that he also threatened her with dire

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consequences, nothing more beneficial to Appellant has been brought on

record. The fact of Appellant established physical relations with

Respondent No.2 and continued it for a month has not been shaken in her

cross-examination.

11. Though, the medical report mentions that, Hymen of

Respondent No.2 was found to be intact and no injuries were found on her

person and therefore the case of sexual assault is not consistent with recent

sexual intercourse/assault is concerned, it is the settled position of law and

as held in the case of Ranjit Hazarika (supra), even if the medical evidence

does not support the prosecution case, the deposition of prosecutrix cannot

be brushed aside if it is found to be otherwise reliable and trustworthy. In

the present case, this Court finds that the testimony of prosecutrix is wholly

reliable and trustworthy.

12. Section 3(a) of the POCSO Act states that, a person is said to

'commit penetrative sexual assault' if he penetrates his penis to any extent,

into the vagina, mouth, urethra or anus of a child or makes the child to do

so with him or with any other person. Section 5 of the Act defines

'aggravated penetrative sexual assault'. Section 5(1) mentions about

penetrative sexual assault on the child more than once or repeatedly. In

view of the testimony of the victim (PW No.1) it is clear that, the Appellant

has committed an act as contemplated under Section 3(a) read with Section

5(1) punishable under Section 6 of the POCSO Act. It is an admitted fact

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on record that, on the date of the commission of offence i.e. 30 th June,

2016, age of the prosecutrix was 16 years and 11 months and therefore she

was a child within the meaning of Section 2(d) of the Act. Appellant forced

her to join his company from the lawful guardianship of her parents. In

view thereof, the offence under Section 366 of the IPC and under Section 6

of POCSO Act is proved by the prosecution.

13. The aforenoted deliberation would lead to draw a safe

inference that, the Trial Court has not committed any error while convicting

and sentencing the Appellant by its impugned Judgment and Order. There

are no merits in Appeal and is accordingly dismissed.

14. Before parting with the Judgment, this Court places on record

a word of appreciation for the efforts put in by Ms. Chavan, learned

Advocate appointed through the High Court Legal Services Committee,

Mumbai for espousing the cause of Respondent No.2, as she was thoroughly

prepared in the matter and rendered proper assistance to the Court.

(A.S. GADKARI, J.)