Laxman S/O. Sudam Toge vs The State Of Maharashtra
2022 Latest Caselaw 5461 Bom

                                                                Cri-Appeal-519-2018.odt




             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 519 OF 2018

 Laxman s/o Sudam Toge
 Age: 30 years, Occu. Agriculture,
 R/o Mundewadi, Tq. Kaij,
 District Beed                                           ... Appellant

          Versus

 The State of Maharashtra and another            ... Respondents
                                  ....
 Mr. N. R. Thorat, Advocate for appellant
 Mr. R. B. Bagul, APP for respondent No.1 - State
 Mr. R. C. Bora, Advocate for respondent No.2
                                  ....

                                        CORAM : R. G. AVACHAT, J.

RESERVED ON : 02nd MAY, 2022 PRONOUNCED ON : 16th JUNE, 2022

J U D G M E N T :-

This is an appeal against conviction. The appellant has

been convicted for the offence punishable under Section 376(2)(f) of

the Indian Penal Code and therefore, sentenced to suffer rigorous

imprisonment for twelve (12) years and pay fine of Rs.2,000/-. In

default of payment of fine, he had been directed to undergo rigorous

imprisonment for three months. No separate sentence has been

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awarded for the offences punishable under Sections 4 and 8 of the

Protection of Children from Sexual Offences (POCSO) Act, 2012.

2. Facts giving rise to the present appeal are as follows:

PW1- "P" (victim), was resident of village Tandalachi

Wadi. She was a 7th standard student in 2017. The victim would

reside along with her parents and two of her five sisters. Her other

three sisters have been married. The appellant is the husband of one

of the sisters, namely, Kanta.

It so happened that on 05.09.2017, the victim, along

with her two sisters was engaged in harvesting Udid (black gram)

crop in their field. Little past 3.00 p.m., the appellant came to the

field and informed them that their mother had purchased grocery

and she was unable to bring the articles home. He, therefore, asked

one of them to go to Nandur Phata to assist their mother. The victim

therefore accompanied the appellant. The victim's cousin Sushant

was requested to drop both of them, first at Nandur Phata. Sushant

agreed. He was riding the motorbike. Both, the appellant and victim

were the pillion riders on one and the same motorbike. On way, the

appellant informed that the victim's mother is awaiting at Barad

Phata. Sushant, therefore, dropped them at Barad Phata and went

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away. It is also the case of the prosecution that the appellant went to

a nearby medical shop to purchase some medicines as his son had

sustained burn injuries. He came with some medicines. Both, the

appellant and the victim started to proceed. The appellant received a

phone call of the victim's mother. She told him to have returned

home and asked him to drop the victim home. The appellant,

therefore, took the victim through the field wherein Jawar crop was

standing. According to him, it was a short way to reach home early.

On way, he swallowed one tablet. Offered another tablet to the

victim. She suspected something amiss. She threw away the tablet.

The appellant embraced her. He gagged her mouth. Removed her

clothes and his, as well. He, then, committed rape of the victim. The

victim shouted. That time, 2 - 3 persons grazing she-goats, rushed to

the place and rescued her. She told them that one Babasaheb is the

husband of her another sister. Somebody from them contacted

Babasaheb on phone. He and his wife came. They brought the victim

home. Meanwhile, Babasaheb contacted the police on phone. The

police too arrived. Initially, the family members were reluctant to

lodge report of the incident. A lady Police Constable (PW2) took the

victim in confidence. The victim related her what had happened with

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her. Since the family members of the victim were reluctant to lodge

First Information Report (FIR), PW2 lady Police Constable lodged

the FIR Exh.37 on behalf of the State. Crime vide CR No. 221 of

2017 under Section 376(2)(f) of Indian Penal Code and under

Sections 4 and 8 of the POCSO Act, came to be registered at

Neknoor Police Station. It was investigated. The appellant was

arrested. Both, the victim and the appellant were medically

screened. Clothes on their person were taken charge of under the

panchanamas. Scene of offence panchanama was drawn. Blood

sample, vaginal swab etc., were sent to (Central Forensic Science

Laboratory (C.F.S.L.). Statements of persons acquainted with the

facts and circumstances of the case, were recorded. On completion of

the investigation, the appellant was proceeded against by filing

charge-sheet.

3. The learned Special Judge constituted for trial of the

offences under the POCSO Act, framed the charge. The appellant

pleaded not guilty. His defence was of false implication. It is his case

that his in-laws felt that he was ill-treating their daughter. They were

insisting him to give some land in the name of his wife (their

daughter). With a view to teach him a lesson, false FIR was lodged.

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4. The prosecution examined ten (10) witnesses and

produced in evidence certain documents. On appreciation of the

evidence in the case, the trial Court convicted and sentenced the

appellant as stated above.

5. Heard.

The learned Advocate for the appellant took me through

the evidence in the case to submit that the same is grossly

inconsistent with each other. The officer in-charge of the Police

Station had been serving with the concerned police station for little

over five years. He had, therefore, acquaintance with the parents

in-law of the appellant. Since the appellant was harassing and

ill-treating his wife, his parents in-law got lodged the FIR at the

behest of their minor daughter. According to the learned Advocate,

the prosecution failed to prove the victim was below twelve (12)

years of age. According to him, the victim was little over sixteen (16)

years of age. He would further submit that if the Court held the

offence to have been proved, he urged for taking lenient view and

release of the appellant with the sentence already undergone. The

appellant is behind the bars for little over five (5) years. The learned

Advocate also relied on the following authorities:

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(i) Jitendra Suresh Gabhane and others vs State of Maharashtra - 2017 DGLS (Bom.) 807;

(ii) Mahendra Subhashbhai Vankhede vs State of Gujarat etc.

- 2017 DGLS (SC) 1280;

(iii) Dashrath Aba More vs State of Maharashtra - 2016 DGLS (Bom.) 1081;

(iv) Mohammad Sharif Latifur Rehman Shaikh @ Bilal vs State of Maharashtra - 2016 DGLS (Bom.) 604.

6. The learned APP would, on the other hand, submit that

the victim is none other than younger sister of the wife of the

appellant. She did not have a reason to falsely implicate him in the

crime in question. The witnesses have deposed to as per the

happenings. According to him, the relations between the victim and

the appellant was that of a confidence. The appellant has betrayed

the same. The trial Court has rightly convicted him with imposing

adequate sentence. The learned APP urged for dismissal of the

appeal.

7. The learned Advocate for the victim was first found to be

siding the appellant. The same appears to be on instructions of his

client. The Court even found nothing wrong in it, since the victim is

the sister of the wife of the appellant. Due to the appellant to be

required to remain behind the bars for further 5 - 6 years, the

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victim's sister and her two minor children are going to suffer. The

learned Advocate, however, later on came around to support the

prosecution case. He urged for dismissal of the appeal.

8. Considered the submissions advanced. Perused the

evidence relied on. Gone through the documents referred to.

The victim gave her evidence very much consistent with

her police statement and the statement Exh.22 recorded under

Section 164 Cr.P.C. It is in her evidence that her date of birth was

07.05.2005.

9. It is the case of the prosecution that on 05.09.2017, the

victim, along with her two sisters was engaged in harvesting Udid

(black gram) crop in their field. Little past 3.00 p.m., the appellant

came to the field and informed them that their mother had

purchased grocery and she was unable to bring the articles home.

He, therefore, asked one of them to go to Nandur Phata to assist

their mother. The victim therefore accompanied the appellant. The

victim's cousin Sushant was requested to drop both of them, first at

Nandur Phata. Sushant agreed. He was riding the motorbike. Both,

the appellant and victim were the pillion riders on one and the same

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motorbike. On way, the appellant informed that the victim's mother

is awaiting at Barad Phata. Sushant, therefore, dropped them at

Barad Phata and went away. It is also the case of the prosecution

that the appellant went to a nearby medical shop to purchase some

medicines as his son had sustained burn injuries. He came with some

medicines. Both, the appellant and the victim started to proceed. The

appellant received a phone call of the victim's mother. She told him

to have return home and asked him to drop the victim home. The

appellant, therefore, took the victim through the field wherein Jawar

crop was standing. According to him, it was a short way to reach

home early. On way, he swallowed one tablet. Offered another tablet

to the victim. She suspected something amiss. She threw away the

tablet. The appellant embraced her. He gagged her mouth. Removed

her clothes and his, as well. He, then, committed rape of the victim.

The victim shouted. That time, 2 - 3 persons grazing she-goats,

rushed to the place and rescued her. She told them that one

Babasaheb is the husband of her another sister. Somebody from them

contacted Babasaheb on phone. He and his wife came. They brought

the victim home. Meanwhile, Babasaheb contacted the police on

phone.

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It is further in her evidence that on arrival of police

personnel, a lady Constable took her in confidence. She related her

the incident. It is also in her evidence that she pointed out the police

officer the scene of offence. It is also in her evidence that she was

medically examined.

True, in her cross examination, it has come on record

that the appellant was addicted to liquor. He would ill-treat his wife

(sister of the victim). Her parents were insisting the appellant to

transfer some of his land in the name of his children. They would

also ask the appellant as to why did he ill-treat their daughter. It is

also in her evidence that she did not give the police her date of birth

as 07.05.2005. She could not assign reason as to why said date is

appearing in her police statement. It is further in her evidence that

she was taken first her home. Some villagers had gathered there. A

sister's husband, Balasaheb had come in response to a phone call.

True, Balasaheb has not been examined. The same is, however, not

found to be fatal to the prosecution.

10. PW2 - Asha was a Police Naik, serving with Neknoor

Police Station. It is in her evidence that by 4.00 p.m. on 05.09.2017,

a phone message was received by her officer, informing that one girl

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was sexually assaulted at Dhawajachi Wadi. She was on wireless

duty. She was asked to accompany the other police officials to the

place of the incident. She, therefore, went there in the company of

the police officials. She, found the victim under fear. She took to the

victim in confidence. Gave her courage and inquired with her as to

the happenings. The victim, in turn, related the entire incident. It is

further in her evidence that since the relations of the victim were

reluctant to lodge FIR, she (PW2 - Asha) lodged the same vide

Exh.37. Though she was subjected to searching cross examination,

nothing substantial could be elicited to disbelieve her evidence. The

report lodged by PW2 - Asha has rightly been treated as FIR. The

victim had not narrated her case with a view to set criminal law in

motion.

11. PW9 - Mahananda, mother of the victim gave evidence

consistent with the prosecution case. It is in her evidence that on the

given day she had gone to purchase grocery articles. Her husband

was away in someone's field for labour work. Her three daughters

including the victim were engaged in harvesting Udid crop. On her

return, her daughter Sharda informed that the appellant had come

there and took the victim with him under the pretext of joining the

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victim to her mother so as to assist her to bring grocery articles. It is

in her evidence that she had not asked the appellant to ask any of his

daughters to come Neknoor Phata to assist her. It is further in her

evidence that the victim related her what the appellant did with her.

Although PW9 - Mahananda was subjected to searching

cross examination, nothing substantial could be elicited to disbelieve

the prosecution case. No doubt, she admitted that the appellant was

not treating her daughter well.

12. PW3 - Rajendra was a witness to the panchanamas

whereunder clothes of the victim and the appellant on their person

at the relevant time were taken charge of.

13. PW4 - Shivdas is a witness to the scene of offence

panchanama Exh.51. It is in his evidence that one nicker and a pill

were seized from the scene of offence.

14. PW5 - Mahadeo was the Head Master of the school

wherein the victim was taking education. He produced school record

(Exh.53) of the victim. It is to be stated that the appellant did not

dispute the victim to have been below 18 years of age at the relevant

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time. Whether the victim was below 12 years of age at the relevant

time is not of much relevance, since the appellant was charged with

the offence punishable under Section 376 (2)(f) IPC.

15. PW7 - Dr. Rajashri was the Medical Officer in Civil

Hospital, Beed. It is in her evidence that she had screened the victim

medically. The victim had given her history of having been sexually

assaulted by the husband of her sister. On examination of the victim,

PW7 found - 'uretharal meatus and vestibule intact, labia majoria -

intact, labia minoria - intact and all were developed as per age.

Fourchette and introitus - redness at introitus. Hymen perinem -

torn at 3, 4, 6, 7, 9 O' clock'. The doctor had obtained vaginal swab,

blood sample, pubic hair etc. of the victim. She placed on record all

the OPD papers. After having gone through the Chemical Analysis

(CA) reports. she gave her final opinion (Exh.67) that sexual assault

might have occurred.

16. The appellant too was medically examined to find him

potent.

17. True, the CA reports may not support the prosecution.

The fact remains that the victim girl, in the age group of 11 to 15

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years, could not be said to have any reason to falsely implicate the

appellant at the cost of her chastity. The report of the incident and

her statement came to be recorded within one or two hours of the

incident. They are bound to be some inconsistency inter-se the

evidence of the prosecution witnesses.

This Court found the victim to be witness of truth. This

Court, has therefore, no reason to interfere with the impugned

judgment of conviction.

18. On the question of quantum of sentence is concerned,

the offence punishable under Section 376(2)(f) IPC, is punishable

with rigorous imprisonment for a term which shall not be less than

ten (10) years. But which may extend to imprisonment for life. The

trial Court has sentenced the appellant for twelve (12) years

rigorous imprisonment. Because of the appellant having been behind

the bars, his wife and two minor children do suffer a lot. The victim

is none other than younger sister of appellant's wife. It was,

therefore, found that her Advocate was not opposed for reduction of

sentence of imprisonment. The appellant has already been behind

the bars for little over five years. A minimum sentence prescribed for

the offence is not less than ten (10) years. In this factual backdrop, I

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am inclined to reduce the quantum of sentence from twelve (12)

years rigorous imprisonment to ten (10) years rigorous

imprisonment. With this, the appeal partly succeeds. Hence,

following order is passed.

19. The appeal is partly allowed.

20. The conviction of the appellant for the offence

punishable under Section 376(2)(f) of the Indian Penal Code, is

maintained. However, the substantive sentence of imprisonment of

twelve (12) years rigorous imprisonment is reduced to ten (10) years

rigorous imprisonment.

21. Rest of the terms of the impugned order to stand

unaltered.

[ R. G. AVACHAT, J. ]

SMS

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