Gautam Dhondu Dhone vs The State Of Maharashtra And Anr
2023 Latest Caselaw 1096 Bom

                                                       1 / 18                [email protected]



                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION

                                              CRIMINAL APPEAL NO.1109 OF 2022

                                                                WITH

                                           INTERIM APPLICATION NO.1643 OF 2022
                                                           IN
                                             CRIMINAL APPEAL NO.1109 OF 2022

                           Gautam Dhondu Dhone
                           Age : 55 years, Occ.: Labour,
                           R/at : beside M.R.A. Marg Police Station,
                           Behind BMC Chawl No.A/B Zopadpatti,
                           Mumbai.
                           Presently lodged at
                           Amravati Central Prison                            .... Appellant

                                           versus

                           1.        State of Maharashtra
                                     (L. T. Marg Police Station
                                     in C.R. No.226/14)

                           2.        XXX                                      .... Respondents
                                                                  .......

                           •       Mr. Prasad B. Kulkarni (Appointed), Advocate for Appellant.
                           •       Mr. S. R. Agarkar, APP for the State/Respondent No.1.
                           •       Mr. Pawan Mali, (Appointed) Advocate for Respondent No.2.


          Digitally
          signed by
          MANUSHREE
MANUSHREE V
                                                      CORAM          : SARANG V. KOTWAL, J.
V
NESARIKAR
          NESARIKAR
          Date:
          2023.02.06
                                                      DATE           : 02nd FEBRUARY, 2023
          17:08:17
          +0530




                       Nesarikar
                           2 / 18                   [email protected]

JUDGMENT :

1. The Appellant has challenged the Judgment and Order

dated 21/08/2019 passed by the Special Judge under POCSO

Act, Greater Mumbai, in Special POCSO Case No.421/2014. By

the impugned Judgment and Order, the Appellant was convicted

as follows ;

(a) The Appellant was convicted for commission of offence punishable u/s 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') and was sentenced to suffer rigorous imprisonment of 15 years and to pay a fine of Rs.20,000/- and in default of payment of fine to suffer further rigorous imprisonment for two months.

(b) He was also convicted for commission of offence punishable u/s 10 of the POCSO Act and was sentenced to suffer rigorous imprisonment of 7 years and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer further rigorous imprisonment for one month.

(c) Both the sentences were directed to run concurrently.

(d) The Appellant was given set off u/s 428 of Cr.P.C.

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2. Heard Mr. Prasad B. Kulkarni, learned counsel for the

Appellant, Mr. Pawan Mali, learned counsel for the Respondent

No.2 and Mr. S. R. Agarkar, learned APP for the State.

3. The prosecution case is that the victim in this case was

about 7 years of age. Her date of birth was 21/07/2007. The

Appellant used to be in the same area where the victim was

residing with her parents. The incident had occurred on

05/08/2014. It is the prosecution case that the Appellant took

her in front of a shop and inserted his finger in her private part.

The victim went to her mother and narrated the incident to her.

In the meantime, the father of the victim had caught the

Appellant. He was taken to the police station. The mother of the

victim lodged the FIR which is registered vide C.R.No.226/2014

at L. T. Marg police station. The Appellant was arrested. His

clothes were seized. The clothes of the victim were seized. Both

of them were sent for medical examination. The statement of

the witnesses were recorded. Spot Panchanama was recorded. At 4 / 18 [email protected]

the conclusion of the investigation, the charge-sheet was filed

and the case was committed to the Special Court.

4. During trial, the prosecution examined 10 witnesses

including the victim, her parents, Medical Officers, the Panchas,

a teacher from the victim's school and the Investigating Officers.

The defence of the Appellant was of total denial.

5. The learned Trial Judge considered the evidence on

record and the defence of the Applicant. After hearing the

parties, he convicted and sentenced the Appellant as mentioned

earlier.

6. The victim is examined as P.W.5. She has deposed that

she was residing with her parents and elder sister. She was going

to a school in Chandanwadi. Her school timing was from 12

p.m. to 6 p.m. On the date of incident, when she was returning

home, one uncle called her. He made her sit next to him. He

touched her on her legs. After that he touched her private part.

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She started crying. She then disclosed that incident to her

mother. Her mother came to the spot. P.W.5 then pointed out the

Appellant to her mother. After that, her parents brought the

accused to the police station. She has further deposed that she

was acquainted with the Appellant as he was a sweeper and

used to do his job in their vicinity. She identified the Appellant

before the Court. She identified her clothes. The police had

recorded her statement. Her statement was also recorded u/s

164 of Cr.P.C. It is produced on record at Ex.27.

In the cross-examination, she deposed that her

statement was recorded by a male police officer. She could not

explain why her police statement did not mention that the

accused had touched her legs or that the accused had touched

her private part. She further admitted that there were shops

around the place of incident and many people used to visit that

area. She had not called anybody for help after the incident.

After she started crying, people had gathered there.

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7. P.W.1 is the mother of the victim. She had lodged the

FIR. She has deposed that the incident had occurred in August

2014. The victim came towards her and was crying. P.W.1

enquired with her. P.W.1 deposed that the victim told her that

one person removed her frock, touched her body and then

removed her knicker and he put his finger in her private part.

The victim took her to the place where the incident had taken

place. P.W.1 saw that her husband had already caught the

Appellant. P.W.1 identified the Appellant in the Court at the time

of her deposition. She further deposed that she had seen the

Appellant prior to the incident as he used to roam around in that

locality. The Appellant was taken to the police chowky. The

victim had also come to the police station. P.W.1 lodged her FIR,

which is produced on record at Ex.14. The victim was then

taken to the hospital for medical examination.

In the cross-examination, she stated that her husband

was working in one shop which was at about 5 minutes walking

distance from their house. She admitted that the locality where 7 / 18 17-APEAL-1[email protected]

she was staying, was a crowded area and it was difficult to walk

on the footpath because of the crowd. She denied the suggestion

that since the Appellant started working at the same place where

P.W.1 was working, it had impact on her income and therefore

the appellant was implicated falsely. The FIR was produced on

record at Ex.14. It was recorded at 12.30 p.m. on 05/08/2014.

It substantially corroborates the evidence of P.W.1.

8. P.W.2 is the father of the victim. He has deposed that on

the day of incident, one person told him that a girl was crying in

their area. P.W.2 then went to see what had happened. He saw

that his daughter was crying. He then called the victim's mother.

The victim told her mother about the incident. He then gave the

narration as was deposed by P.W.1 in respect of what the victim

told him describing the incident. P.W.2 then went to enquire with

the Appellant. He took the Appellant to the police station. They

were accompanied by the victim and P.W.1. The victim's mother

P.W.1 lodged the FIR. P.W.2's statement was recorded by the

police. Then, he took the police to the spot of incident. The Spot 8 / 18 [email protected]

Panchanama was drawn. He produced birth certificate of the

victim at Article-C.

In the cross-examination, he also admitted that there

were shops all around. The people and customers used to visit

the shop near the spot of incident. The occupants of the

premises also used to come and go in the said building.

9. P.W.3 Rajendra Sitap was the Pancha, in whose

presence the clothes of the Appellant were seized. The

Panchanama is produced on record at Ex.21. It was conducted

between 02.30 to 03.20 p.m.

10. P.W.4 Asha Mangaonkar, was a Pancha for seizure of the

victim's clothes. The Panchanama is at Ex.25. It is conducted at

01.10 p.m.

11. P.W.6 Sayali Breed, was a teacher of the school where

the victim was studying. She produced the register where there 9 / 18 [email protected]

was entry regarding the victim showing her date of birth as

21/07/2007. She had issued a certificate to that effect which is

produced on record at Ex.31.

12. P.W.7 Dr. Suchita Phad had examined the Appellant. In

her opinion, there was nothing to suggest that he was impotent.

13. P.W.9 Dr. Dhruv Gohil, had examined the victim on

05/08/2014. He has deposed that he had recorded the history

given by the victim's mother. On examination he did not find

any fresh external injury except multiple HYPO to Hyper

pigmented Maculopapular lesions which were present over the

body. Itching was absent at the time of examination. On local

examination, the findings were normal. He opined that as per

the history given by the mother of the victim, the possibility of

the sexual assault could not be ruled out.

14. P.W.8 API Rekha Sakpal was on duty when P.W.1 lodged

her FIR. This witness has recorded the FIR. She had arrested the

Appellant. Then she recorded the statement of two children 10 / 18 [email protected]

playing with the victim. She seized the clothes of the victim. The

further investigation was handed over to API Gaware who is

examined as P.W.10. P.W.8 has deposed in her cross-examination

that CCTV cameras were installed in that area, but she had not

collected any CCTV footage.

15. P.W.10 API Gaware was the second Investigating

Officer. He had conducted the Spot Panchanama. He seized the

clothes of the Appellant. He had forwarded the clothes for

chemical analysis. He collected the certificate from victim's

school regarding her date of birth. He arranged for recording of

victim's statement u/s 164 of Cr.P.C. He produced the Spot

Panchanama at Ex.39. The spot was on the platform of the

ground floor opposite a shop.

16. The C.A. reports were produced on record at Ex.4.

They show that there were blood stains of 'B' group on the frock

of the victim. There were semen stains on the underwear of the

Appellant.

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This, in short, is the evidence led by the prosecution.

17. The defence of the Appellant as mentioned was of total

denial. Learned Judge believed the prosecution evidence. She

believed the evidence of the victim and her parents. She relied

on the evidence and in particular the C.A. reports showing

presence of blood on the victim's frock and presence of semen

on the underwear of the Appellant. Based on these aspects, she

recorded the findings against the Appellant.

18. Learned counsel for the Appellant submitted that the

prosecution has not proved its case beyond reasonable doubt.

There are various contradictions in the evidence of the

important witnesses P.W.5, the victim and the parents i.e. P.W.1

and P.W.2. The victim has told that she had approached her

mother and had narrated the incident and both of them went to

the spot where the father had already caught the accused. Her

mother also has deposed in the same manner. Learned counsel 12 / 18 [email protected]

therefore submitted that there was no occasion for the father to

know that the Appellant had committed this act and therefore

he could not have caught the Appellant. The evidence shows

that the Appellant was caught either on suspicion or deliberately

to implicate him falsely. He further submitted that the victim's

deposition nowhere shows that the Applicant had put his finger

in her private part and therefore there was no penetration at all.

Even otherwise, there are important omissions in the vicitim's

statement as are brought out in her cross-examination. She has

admitted that her police statement does not include her case

that the Appellant had touched her legs or her private part. She

could not assign any reason as to why these important facts are

not mentioned in her police statement. He submitted that

though learned Judge has relied on the C.A. report showing

presence of blood on the frock and presence of semen on the

underwear of the Appellant, these circumstances were not put to

the Appellant in the examination u/s 313 of Cr.P.C. and therefore

this factors could not have been taken into consideration while

recording the finding.

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19. Learned APP and learned counsel for the Respondent

No.2 opposed these submissions. They submitted that the

omissions referred to by learned counsel Mr. Kulkarni regarding

the important statements of the victim, were not put to the

Investigating Officer. Therefore the omissions are not proved by

the defence. The Appellant cannot take advantage of these

omissions. They submitted that how the Appellant was caught, is

hardly an important issue. This is a minor discrepancy in the

evidence. The prosecution case is consistent with the father's

evidence that the victim told about the incident to her mother.

The father was in that area itself. He also was present when the

victim told about the incident to her mother and then he went to

the spot where the Appellant was present. The Appellant was

taken to the police station immediately and therefore there was

no scope to argue that it was a false case or it was a concocted

case.

20. I have considered these submissions. As far as the

sequence of events is concerned, after the victim had narrated 14 / 18 [email protected]

the incident, the Appellant was immediately caught by P.W.2 and

he was taken to police station. The FIR was lodged immediately.

Therefore some incident had definitely taken place and pursuant

to the FIR, the Appellant was immediately arrested. To that

extent, the evidence of P.W.1, P.W.2 and P.W.5 is consistent.

21. The important question would be whether there was

penetrative sexual assault. In that context, the evidence of P.W.5-

the victim is more important than any other evidence. She has

narrated in her deposition that the Appellant had touched her

legs. Then she has deposed that the Appellant had touched her

private part. She had nowhere deposed that the Appellant had

inserted his finger in her private part. There is absolutely no

allegation or statement that there was any penetration. Even her

statement u/s 164 of Cr.P.C. does not specifically mention that

there was penetration. There was no re-examination of the

victim to clarify this position. Therefore, at the highest, it can be

said that there was sexual assault as defined u/s 7 of POCSO

Act. Though, the FIR as well as the evidence of both the parents 15 / 18 [email protected]

mentions that the victim had told about the penetration, the

substantive evidence would be that of the victim. At the time of

her deposition, she was 12 year old. She had sufficient

understanding of the questions put to her. She was also

administered oath and she was very clear in her deposition.

Therefore prosecution case does not cover the ingredients of the

offence of penetrative sexual assault.

22. As far as the blood stains on the frock of the victim are

concerned, the medical evidence does not show that there was

injury, much less, the bleeding injury caused to her private part.

Therefore, those blood stains cannot be directly attributed to the

alleged act of the Appellant. The medical evidence also shows

that there was Maculopapular lesions over the body. But at the

time of examination, the itching was absent. Therefore, there is

a possibility of bleeding was because of this medical condition.

This cannot be attributed to any sexual assault. Therefore, even

that circumstance does not point to the theory of penetrative

sexual assault.

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23. With the result, I am of the opinion that the

prosecution has proved its case beyond reasonable doubt only in

respect of the sexual assault as defined u/s 7 of the POCSO. The

prosecution has failed to prove its case beyond reasonable doubt

in respect of offence u/s 6 of POCSO which is the aggravated

penetrative sexual assault, which is defined u/s 3 r/w 5 of the

POCSO Act. The victim was below 12 years of age. There is

hardly any dispute about her age. Therefore, section 9(m) and

10 of POCSO are attracted in this case which means that the act

falls within the definition of aggravated sexual assault. Under

that section, the punishment is prescribed which cannot be less

than 5 years, but which can extend 7 years besides liability of

paying fine. In this case, the Applicant is in custody since

05/08/2014. Thus more than 8 years and 6 months have

passed. The maximum punishment which can be imposed on

him is 7 years. Therefore, the sentence imposed on him has to

be 7 years or less. The Appellant has already crossed that period

and hence he deserves to be released forthwith.

                   17 / 18               [email protected]

24.   Hence, the following order :


                           ORDER


      (i)    The Appeal is partly allowed.

(ii) The conviction and sentence of the Appellant u/s 6 of the Protection of Children from Sexual Offences Act, 2012, by the Special Judge under POCSO Act, Greater Mumbai, in Special POCSO Case No.421/2014 is set aside.

(iii) The conviction and sentence u/s 10 of the Protection of Children from Sexual Offences Act, 2012, are maintained.

(iv) Hence the sentence imposed on him is now rigorous imprisonment for 7 years and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer further rigorous imprisonment for one month.

(v) Since the Appellant has already suffered the sentence for more than 8 years 6 months, he shall be released forthwith, if not required in any other case.

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(vi) The Appeal is disposed of.

(vii) With disposal of the Appeal, the connected Interim Application is also disposed of.

(SARANG V. KOTWAL, J.)