Bombay High Court
Shyamkaran Sadashiv Sontakke vs Satte Of Mah. Thr. Pso Ps Frezarpura ... on 31 January, 2024
Author: M.W. Chandwani
Bench: M.W. Chandwani
2024:BHC-NAG:1362
212.apeal.75.21.doc 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.75 OF 2021
Appellant : Shyamkaran Sadashiv Sontakke,
Aged about 50 years, Occu : Labour,
R/o. Yashoda Nagar, Galli No.4, Amravati,
Tq. & Dist. Amravati.
- Versus -
Respondent : State of Maharashtra,
through Police Station Officer,
Police Station Frezarpura, Amravati.
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Mr. M.L. Vairagade, Advocate (Appointed) for the Appellant.
Mr. H.D. Futane, A.P.P. for the Respondent.
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CORAM : M.W. CHANDWANI, J.
RESERVED ON : 16th JANUARY, 2024.
PRONOUNCED ON : 31st JANUARY, 2024.
JUDGMENT :
The appeal challenges the judgment and order dated 20/05/2020
passed in Special (POCSO) Case No.77/2018, thereby convicting the appellant
for the offence punishable under Section 10(m) of the Protection of Children
From Sexual Offences Act (hereinafter referred to as "POCSO Act" for short)
and Section 354-A of the Indian Penal Code (I.P.C.).
02] The facts, which give rise to the present appeal, can be
summarized as under :
Reena Anil Dhakde (PW-1), a mother of one of the victims,
lodged the report before Police Station Frezarpura, Amravati alleging that on
10/03/2018 at about 12:00 noon, she along with her neighbour went to the
hospital. When she returned from the hospital at about 03:00 p.m., the victim
girls disclosed that the appellant touched their private parts at the house of
one Bhagabai Kawre. Therefore, on her written complaint, Police Station
Frezarpura registered the offences punishable under Sections 354 and 354-A
of I.P.C. and Sections 8 and 12 of POCSO Act. Subsequently, during
investigation, offences under Sections 376(2)(i) of I.P.C. and Sections 4, 6 and
10 of POCSO Act were added. The appellant was arrested and after
completion of investigation, charge-sheet came to be filed against the
appellant.
03] To prove its case, the prosecution examined six witnesses viz.
Reena Anil Dhakde (PW-1), Victim Girls (PW-2 and PW-3), Ashok Namdeorao
Tayade (PW-4), Jyoti Ramrao Balegave (PW-5) and Rajeshri Chandapure
(PW-6), and also relied on various documents. After appreciating the
evidence, the learned Sessions Judge by the impugned order convicted the
appellant for the offence punishable under Sections 10(m) of the POCSO Act
and sentenced him to suffer rigorous imprisonment for five years and to pay
fine of Rs.5,000/-, in default of payment of fine, to suffer further simple
imprisonment for three months. The appellant is also sentenced to suffer
rigorous imprisonment for two years for the offence punishable under Section
354-A of I.P.C. and to pay fine of Rs.5,000/- in default of payment of fine, the
appellant to suffer further rigorous imprisonment for one month. The
appellant is acquitted of the offence punishable under Section 376(2)(i) of
I.P.C. and Sections 4 and 6 of POCSO Act. Feeling aggrieved with the
impugned judgment and order of conviction, the present appeal came to be
filed.
04] It is contended on behalf of the learned Counsel for the
appellant that the appellant has been falsely implicated in this case.
According to him, the appellant was having relations with Bhagabai Kawre
and, therefore, the appellant used to visit her house frequently, which was not
liked by neighbour Reena (PW-1). On the day of alleged incident, just
because the appellant slapped the victim girls, a false complaint has been
lodged against the appellant. According to him, PW-1 has admitted in her
cross-examination that she did not like frequent visits of the appellant in the
house of Bhagabai. Taking help of the said admission, the learned Counsel for
the appellant submits that to take revenge, a false case has been lodged
against the appellant. According to him, the case put forth by the prosecution
of molesting two girls at a time, does not appear to be probable. Hence,
according to him, the learned Sessions Judge did not appreciate this aspect of
the case and erroneously held the appellant guilty for the aforesaid offences.
According to him, the trial Court did not appreciate the evidence on record in
proper perspective and came to a wrong conclusion of holding the appellant
guilty. Therefore, the findings of the trial Court do not consistent and liable to
be set aside by acquitting the appellant.
05] Per contra, the learned Additional Public Prosecutor for the State
vehemently submits that the evidences of the prosecution witnesses are
consistent and corroborating each others. According to him, Section 29 of the
POCSO Act permit to rely on the sole version of the victim girl. The victim
girls have given details of the alleged acts, which were rightly appreciated by
the learned Sessions Judge. According to him, nothing is brought on record to
disbelieve the versions of the prosecution witnesses. The learned Sessions
Judge has rightly appreciated the evidence of the prosecution witnesses and,
therefore, no interference in the impugned judgment and order is required.
06] Having heard the learned Counsel for the appellant as well as the
learned A.P.P. for the State, I have perused the evidence and documents on
record.
07] At the outset, let me state that the birth certificates of the victims
have been placed on record, which show their date of birth as 10/01/2014
and 28/04/2011. The birth certificate of victim (PW-3) is admitted by the
defence. Rather, the defence has not seriously challenged the age of victim
girl. There is no single suggestion to victim (PW-2) that she was not child on
the alleged date of incident. Reena (PW-1), the mother of a victim, has
specifically deposed the date of birth of victim (PW-2), which supports the
birth certificate (Exh.22) of victim (PW-2). Thus, the victims are child within
the meaning of Section 2(1)(d) of the POCSO Act.
08] Reema (PW-1) has deposed that victim (PW-2) was 4 years of age
and victim (PW-3) was 7 years of age at the time of incident. They both were
studying in a school, namely, Vaibhav Prathamik Marathi School at Mudliyar
Nagar, Amravati. On the day of incident i.e. on 10/03/2018, they have
dropped both the girls in Anganwadi and they went to the hospital along with
daughter-in-law of Bhagabai. When they returned from the hospital, both the
girls approached to them and disclosed that they were watching TV in the
house of Bhagabai; the appellant was also there; and he inserted his hand into
the nicker of both the girls and touched to their private part. Therefore, they
approached the Police Station and lodged the report.
09] To corroborate the version of PW-1, prosecution has examined
her daughter i.e. victim (PW-2). She has categorically narrated about the
incident. She testified that Bhaga Aaji is residing near to her house. On that
day, the appellant has put his hand inside her nicker. She has used the word
"Chaddit Hat Takla". She has also narrated the name of another victim girl.
She also testified that she has narrated incident to her mother, police and one
madam. She has also visited the police-station and hospital.
10] PW-3 is another victim girl. She has also disclosed that she is
residing in the house of Bhaga Aaji. Another victim girl (PW-2) is also
residing with her parents. She testified that on the day of incident, the
appellant has put his finger into her urinal place and urinal place of another
girl. On that day, her mother had been to the hospital along with Bhaga Aaji.
She has also identified the appellant, who was sitting behind the partition.
11] Through Ashok Namdeorao Tayade (PW-4), spot-panchnama has
been placed on record. PW-5 and PW-6 are the Investigating Officers, who
have deposed about referring the victim girls for medical examination;
preparation of spot-panchnama and completion of investigation by recording
the statement of witnesses. The important witnesses viz. PW-1, PW-2 and PW-
3 have been cross-examined at length. The only thing, which could be
brought on record, is that the visit of the appellant to the house of Bhagabai
was disliked by PW-1 and the mother of PW-3.
12] Perusal of entire evidence of PW-1, PW-2 and PW-3 reveals that at
the relevant time, mothers of both the victim girls were not at house and the
victims were at the house of Bhagabai, where the appellant was present. This
takes me into the statement of the appellant recorded under Section 313 of
the Code of Criminal Procedure, wherein he has admitted his presence along
with these two girls at the house of Bhagabai. However, he further put rider
that he slapped a victim girl, therefore, a false complaint has been lodged
against the appellant.
13] There is consistency in the evidence of PW-1, PW-2 and PW-3
regarding molestation by touching the private parts of the victims. No
suggestion was put forth by the appellant, just because he slapped once to the
daughter of the informant, he has been falsely implicated in this case. Except
disliking of visits of the appellant to the house of Bhagabai by the mothers of
the victims, there is nothing on record to show that there was any previous
enmity in between Reena (PW-1) and the mother of victim (PW-3) with the
appellant to the extent of lodging a false report at the cost of reputation of
their minor daughters by their respective mothers.
14] The careful analysis of the evidence of both the victim girls clearly
shows that it is the appellant, who has molested them by touching to their
private parts, when there was nobody in the house. The facts, that they
immediately disclosed the incident to their mothers and thereafter
immediately written report was filed by the informant about the alleged
incident, corroborate to their versions. No material has been brought on
record in the form of cross-examination to believe that the appellant has been
falsely implicated in the case.
15] The trial Court has rightly appreciated evidence on record and
came to the conclusion that the prosecution has proved that the appellant has
intentionally outraged the modesty of the victim girls and thereby committed
an offence punishable under Sections 354 and 354-A of I.P.C. and under
Sections 9 and 10 of POCSO Act as well. Therefore, I find no merit in the
appeal.
16] The impugned judgment and order passed by the learned Sessions
Judge does not require interference with the hands of this Court. Accordingly,
the appeal fails and is dismissed.
(M.W. CHANDWANI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 02/02/2024 19:02:05
