Shivnath Ramprasad Sharma vs The State Of Maharashtra
2022 Latest Caselaw 9109 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPEAL NO.108 OF 2018

Shivnath Ramprasad Sharma                      ....Appellant
          Versus
State of Maharashtra                           ...Respondent
                               ______
Mr. Lokesh Digambarrao Zade, Advocate (appointed) for the
Appellant.
Smt. J.S. Lohokare, APP, for Respondent-State.
                               ______

                           CORAM : SARANG V. KOTWAL, J.

                           DATE     : 13th SEPTEMBER, 2022

ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 30.11.2017 passed by the Special Judge under the Protection

of Children from Sexual Offences Act, 2012 (POCSO Act) at

Greater Mumbai in POCSO Sessions Case No.47/2014. The

appellant was charged with commission of offence punishable

under Section 377 of IPC and under Section 4 of the POCSO Act. At

the end of the trial, he was convicted for commission of the offence

punishable under Section 377 of IPC and was sentenced to suffer RI

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for seven years and to pay fine of Rs.2,000/- and in default to

suffer SI for three months. He was also convicted for commission of

the offence punishable under Section 4 of POCSO Act and was

sentenced to suffer RI for seven years and to pay fine of Rs.3,000/-

and in default to suffer SI for three months. The sentences were

directed to run concurrently. He was given set off under Section

428 of Cr.P.C.

2. Heard Shri Lokesh Zade, learned counsel appointed for

the appellant and Smt. J.S. Lohokare, learned APP for the State.

3. The prosecution case is that the appellant was residing

in the neighborhood of the victim (PW-2) who was seven years of

age. The appellant was around 24 years of age at the time of

incident. The incident took place on 10.9.2013. The appellant

lured PW-2 to his house by giving him some money and then

committed penetrative sexual assault which would attract

provisions of Section 377 of IPC. The mother of the victim came to

know about some injury while she was washing the victim. Then

the victim told her about the incident. She then went to the police

station and lodged FIR. The appellant was arrested on 12.9.2013

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at 3.55 a.m.. The FIR was lodged vide C.R. No.257/2013 at

Mankhurd police station, Mumbai. Investigation was carried out.

Spot panchnama was conducted. Clothes of the victim and the

appellant were seized. They were sent for Chemical Analysis. The

victim and appellant were sent for medical examination. Statement

of witnesses were recorded and at the conclusion of the

investigation, charge-sheet was filed and the case was committed to

the Special Court.

4. During trial, the prosecution examined six witnesses

including the victim, the mother of the victim, the medical officer, a

pancha and the investigating officer. The defence of the appellant

was of total denial. He examined his uncle as a defence witness to

show that there was previous quarrel between the victim's mother

and the appellant and for that reason false FIR was lodged against

him. Learned Judge considered the evidence and the defence of

the appellant, heard the parties and recorded his judgment and

order, as above.

5. The prosecution case is based on the evidence of the

victim and his mother. The victim was examined as PW-2. Learned

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Judge satisfied himself that the victim was able to understand the

court proceedings and the questions put to him. Thereafter his

evidence was recorded. PW-2 deposed that he was born in the year

2006. He was studying in school at the relevant time in the year

2013. The school timing was in the morning. On the date of

incident he had not gone to school because of the festival holidays.

He deposed that a person in the neighborhood gave him Rs.10/-.

He also gave Rs.10/- to PW-2's friend and asked that friend to go

home. When PW-2 was alone he was taken by that person to his

own house. He closed the door. He removed the clothes. He put oil

on his penis and committed the act which would fall within the

meaning of Section 377 of IPC as well as under Section 3 of POCSO

Act, i.e. penetrative sexual assault, attracting both these provisions.

The victim shouted. He was given Rs.10/-. The offender left him.

He told the victim not to disclose that incident to anyone. He did

not tell that incident to anybody. However, on the next day he told

his mother and also showed the house of that person. Then they

went to the police station. The police enquired with him and sent

him for examination.

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In the cross-examination, PW-2 accepted that the boys

in the area used to play mischief and used to knock on the windows

of others. He denied the suggestion that one day prior to the

incident he had harassed the appellant. He also denied the

suggestion that before coming to the Court his mother had told him

what to narrate in the Court. He identified the appellant in the

Court as the same person who had committed that act.

6. PW-1 was the victim's mother. She had lodged the FIR.

She had deposed that at the relevant time, the victim was studying

in 3rd standard. On that day there was a holiday. He had gone out

of house at 12.00 p.m. and had returned at about 1.30 p.m.. He

was having some money in his hand. He told her that one uncle

had given that amount to him. PW-1 made enquiries. Then PW-2

took her to the house of the appellant. PW-1 then questioned the

appellant as to why he had given that money. He did not gave any

satisfactory answer. She came to know about name of the appellant

subsequently. She identified the appellant in the Court. On the

same day in the evening when she was cleaning PW-2, she noticed

that PW-2 was having pain. She made further enquiries. Then

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PW-2 described the incident to her. She disclosed that incident to

her neighbour. Then they went to police station and lodged the

FIR. The FIR is produced on record at Exhibit-17. PW-2 showed

the spot to the police. The police arrested the appellant. PW-2 was

sent for medical examination.

In the cross-examination, she deposed that her husband

accompanied her to the police station. She denied the suggestion

that her children were troubling others and, therefore, there was

quarrel between herself and the appellant.

The FIR was lodged on 11.9.2013 at 11.00 p.m.

regarding the incident dated 10.9.2013 which was taken at around

2.00 p.m.. The FIR substantially corroborates PW-1's evidence.

7. PW-4 was another child witness, but, he could not give

proper answers and, therefore, learned Judge did not record his

evidence.

8. PW-5 Mahajan Kewat was a pancha witness in whose

presence clothes of the appellant were seized. The panchnama is

produced on record at Exhibit-24. He did not fully support the

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prosecution and, therefore, he was declared hostile but during the

cross-examination conducted by learned APP he accepted that he

was a pancha for spot panchnama from where chaddar was seized.

In the cross-examination, conducted on behalf of the

appellant, he admitted that his signatures were taken on the papers

in the police station and those papers were not read over to him.

9. PW-6 Police Constable Uddhav Pol had conducted

major part of the investigation. He registered the FIR. He had gone

to the spot, had prepared spot panchnama and had seized chaddar

from there. He had seized the clothes of the victim and the

appellant under panchnama. PI Nalawade had obtained birth

certificate of the victim. Articles were sent to Forensic Laboratory.

PI Nalawade had filed the charge-sheet. He identified the appellant

before the Court. The appellant was arrested on 12.9.2013 at 3.55

a.m.. From 13.9.2013 onwards, PI Nalawade carried out the

investigation.

10. PW-3 Dr. Ravindra Chavan is an important witness. He

has deposed that on 12.9.2013, the victim was brought to him for

medical examination. Even the appellant was brought for medical

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examination. On local examination of the victim he found that

there were abrasions on his anus. Abrasions were at 6 O'clock and

12 O'clock position. They were fresh. PW-3 has given his clear

opinion that, according to him, penetrative sexual intercourse must

have taken place. Accordingly he issued a certificate, which is

produced on record at Exhibit-20. The opinion on the said

document mentions that the findings on examination were

suggestive of penetrative anal intercourse. Age of the victim was

noted as between 8 to 9 years. This witness had also examined the

appellant. He did not find injuries on his private parts. Clinically

his age was found to be 24 years. There were injuries on his back,

face, forearm, hand and neck due to assault by the people as per

the history given by the police constable.

This, in short, was the prosecution evidence.

11. Learned counsel for the appellant submitted that there

was delay in lodging the FIR, which was fatal to the prosecution.

The CA reports on record are innocuous and they are not

incriminating at all. The victim's father is not examined. No other

independent witness from the locality is examined. The defence

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witness's evidence supports the defence taken by the appellant.

The victim's statement under Section 164 of Cr.P.C. is not recorded.

The oil bottle was not seized.

12. Learned APP opposed this appeal. She relied on the

deposition of the victim as well as the evidence of the medical

officer that supported the victim's deposition.

13. I have considered these submissions in the light of the

evidence led by the prosecution. There is hardly any dispute that

the victim was aged between 8 to 9 years. There is no serious

objection to the victim's age. Even when he was examined by the

prosecution in the trial Court, at that time he was hardly eleven

years of age. Learned Judge has noted that some preliminary

questions were put to him and only after ascertaining his

understanding his evidence is recorded. As far as his evidence is

concerned, he has given clear answers. He has described the

incident in detail. Considering the age the charge should have

been under Section 6 of POCSO Act, but that charge was not

framed and it is now too late to consider that aspect. The

prosecution has not taken any steps in that behalf. The incident is

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quite old which has taken place in the year 2013. The appeal is

pending almost for four years. Therefore, I am considering the

evidence in the background of the charges framed against the

appellant.

14. I find that the evidence of PW-2, the victim, is quite

trustworthy. When he returned home, he had some money with

him as noticed by his mother (PW-1). He was having pain. He was

initially reluctant to tell the facts to his mother but on her

insistence he narrated the incident. Therefore, there was a delay of

about one day. However, that delay will not affect the prosecution

case in this case.

15. More importantly the victim's case is supported fully by

the evidence of PW-3 Dr. Chavan, who had noticed the injury at the

exact place where the victim had suffered because of the appellant.

PW-3 has given his clear opinion that the victim was subjected to

sexual intercourse. The findings were suggestive of penetrative anal

intercourse. After coming to know about the incident, the victim's

mother had gone to the police station without any delay. Medical

examination was conducted as early as possible. These are very

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strong circumstances against the appellant.

16. The evidence of the defence witness will not help the

appellant because DW-1 has admitted that he had not seen the

quarrel between the victim's mother and the appellant, therefore,

his evidence being hearsay is not admissible.

17. Learned Judge has considered all these aspects

correctly. The ingredients of Section 377 of IPC and Section 4 of

the POCSO Act are made out. Therefore, I do not find any merit in

this Appeal. The appeal is accordingly dismissed.

(SARANG V. KOTWAL, J.)

Deshmane (PS)

Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2022.09.17 12:17:11 +0530

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