Bombay High Court
Shivaji Shripat Dhadave vs State Of Maharashtra And Anr on 1 October, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:39157
Gokhale 1 of 15 13-apeal-506-24 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 506 OF 2024
Shivaji Shripat Dhadave ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
INTERIM APPLICATION NO. 1991 OF 2024
IN
CRIMINAL APPEAL NO. 506 OF 2024
__________
Mr. Rahul Arote a/w. Riya Mane for Appellant.
Ms. Ranjana D. Humane, APP for State/Respondent.
Mr. Dharmendra D. Jadhav (appointed Advocate) a/w. Mayank
Tripathi for Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 1 OCTOBER 2024
ORAL JUDGMENT:
1. The Appellant was the original accused in Special (P)
Case No.325 of 2016 before the Special Judge under POCSO Act,
Thane. The learned Judge vide his Judgment and order dated
08.04.2024 convicted the Appellant for commission of offences
punishable under section 376(2)(i)(j) of the I.P.C. and under
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2024.10.04
15:42:54
+0530
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section 3 r/w.4 and U/s.5(m) r/w. Section 6 and U/s.7 r/w.
Section 8 of the Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as 'POCSO Act'). He was sentenced
as under:
i) For the offence punishable U/s.5(m) r/w. 6 of the
POCSO Act he was sentenced to suffer R.I. for 10
years and to pay a fine of Rs.10000/- and in
default to suffer S.I. for six months.
ii) No separate sentence was imposed for the
offence punishable U/s.376 of the I.P.C. in view of
Section 42 of the POCSO Act.
iii) No separate sentence was imposed for the other
offences in view of sentence imposed U/s.3 r/w.
Section 4 and U/s.7 r/w. Section 8 of the POCSO
Act.
iv) He was given set off U/s.428 of the Cr.p.c.
2. Heard Mr. Rahul Arote, learned counsel for the
Appellant, Ms. Ranjana Humane, learned APP for the State and Mr.
Dharmendra Jadhav, learned counsel for the Respondent No.2.
3. The prosecution case is that the victim was about 4 years
and 8 months old at the time of the incident dated 10.10.2016.
The Appellant was a neighbour and was knowing the victim's
family. On the date of incident, in the late afternoon, the victim's
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mother had gone out. The victim's father was not in the house. The
victim and her younger brother were in the house. While, the
victim's mother was returning home, she was told by her nephew
that the Appellant had taken the victim to his house. Therefore,
the victim's mother went to the Appellant's house and saw that the
Appellant was committing rape on the victim. She raised shouts.
The people in the locality gathered. Somebody informed the
police. The Appellant was taken to the police station. The mother
of the victim lodged her F.I.R. vide the C.R.No.210 of 2016 at
Shrinagar police station. It was registered at around 8:50p.m. on
10.10.2016. The victim was sent for medical examination. She had
suffered injuries. The Appellant was arrested. The clothes of the
victim and the Appellant were seized and sent for chemical
analysis. The investigation was carried out. The spot panchanama
was conducted. The statements of the witnesses were recorded.
The victim's statement and her mother's statement were recorded
U/s.164 of the Cr.p.c. At the conclusion of the investigation, the
charge-sheet was filed and the case was committed before the
Special Judge, Thane.
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4. During the trial, the prosecution examined nine
witnesses, including the victim, her mother, the Medical Officers,
the panchas, a neighbour and the police officers. The defence of
the appellant was of total denial. He had answered that, he had
constructed some portion of his house. He had told the victim's
mother that she could also make a similar construction and
because of that, a false case was lodged against him.
On the face of it, this defence does not seem acceptable
at all. The learned Special Judge after considering the evidence,
the arguments and the defence raised by the Appellant, convicted
and sentenced the Appellant, as mentioned earlier.
5. The victim was examined as PW-3. Her deposition was
recorded in October 2023 i.e. nearly about 7 years after the
incident. She had deposed that the Appellant had committed
wrong act with her. She further deposed that her mother came
there and she narrated the incident to her mother. Because of the
Appellant's act she was having pain in her stomach. Then they
went to the police station and recorded her statement. She was
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referred to hospital for medical examination. Her statement was
recorded U/s.164 of the Cr.p.c. She identified the Appellant
produced through the video conferencing. There is hardly any
effective cross-examination of the victim. Her statement recorded
U/s.164 of the Cr.p.c. mentioned that the Appellant had taken her
to the loft. He slept on her. She was suffering from pain. He
poured oil inside her underwear and he committed wrong act.
6. The victim's mother was examined as PW-1. She has
deposed that she was residing with her husband and two children;
i.e. the victim and one year old son. The date of birth of the victim
was 24.01.2012. She produced a true copy of the birth certificate
on record at Exhibit-32. The learned trial Judge has noted that the
defence had not challenged the age of the victim and had not
challenged her birth certificate. PW-1 further deposed that on
10.10.2016, at about 5:30p.m. she went to the market to buy
vegetable. Her husband was not in the house. Her children were in
the house. She bolted the door from outside. At about 6:15p.m.,
while she was returning home, she met her nephew. He told her
that the Appellant had opened the door and taken the victim to his
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house. PW-1 went to the Appellant's house which was adjacent to
their house. She heard that her daughter was crying. She went
inside. She saw the Appellant and the victim on the loft of his
room. The Appellant had made the victim lie down on the loft. He
had taken off their clothes and he was sitting on the victim. PW-1
took the victim out of the house after making her wear her clothes.
PW-1 saw that there was bleeding from the private parts of the
victim and that there was some oil applied. PW-1 told her
husband. Their neighbours gathered. The police came there and
took the Appellant with them. PW-1 also went to the police station.
The victim told her that the Appellant removed her underwear and
applied oil on her private parts. PW-1 gave her F.I.R. which is
produced on record at Exhibit-33. The victim was sent for medical
examination and for treatment to the Civil Hospital, Thane and
then she was referred to Jupiter Hospital. PW-1's statement was
recorded by the learned Magistrate U/s.164 of the Cr.p.c. She
identified that statement. She also identified the clothes of the
victim produced in the Court.
In the cross-examination, PW-1 stated that she knew
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the Appellant since about 4 years prior to the incident. Their
houses were next to each other. Her nephew who informed her
about the Appellant taking the victim to his house, was 8 years of
age. She denied the suggestion that the victim sustained injuries to
her private parts because of a fall. A true copy of the birth
certificate was produced on record at Exhibit-32 which shows that
the date of birth of the victim was 24.01.2012. PW-1's evidence is
sufficiently corroborated by the F.I.R. lodged by her which is
produced on record at Exhibit-33, as well as, her statement
recorded U/s.164 of the Cr.p.c. which is produced at Exhibit-35.
7. PW-5 Rohit Bhandari was a neighbour. He has deposed
that on 10.10.2016, when he was returning home from his work,
he saw that PW-1 along with the victim PW-3 was present in front
of the Appellant's house and she was shouting. There were 3-4
other women. PW-1 said that the Appellant had committed rape on
her daughter. PW-5 himself and some other people from the
locality went inside the house and went to the loft. The appellant
was sitting there. He was frightened. In the meantime, the police
came there and took the Appellant with them. He identified the
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Appellant in the Court. He was produced on the video
conferencing.
In the cross-examination, he deposed that they went to
the loft on the say of PW-1.
8. PW-2 Dr. Halgarkar had examined the victim on
10.10.2016 when she was brought to the hospital by the police
with the history of sexual assault. PW-2 took the history from the
mother of the victim and the police. The victim's undergarments
were stained with blood. She had suffered linear abrasion on the
right hand of 3cm in length; it was a simple injury and linear
abrasion on the right cheek of 1cm in length. On local
examination, it was noticed that the victim had fresh injury of
0.5cm x 0.2cm x 0.1cm on the inner side of right labia minora, at 7
O' clock position. It was a laceration. Edema and redness over the
injury was seen. Bleeding was present. PW-2 then took swab for
chemical analysis.
In the cross-examination, she stated that the abrasion
could be possible if body comes in contact with hard surface. The
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injuries on labia majora and labia minora were possible by a fall
due to activities like cycling, swimming etc. She has given the final
opinion that it was a case of sexual assault. She produced the
report at Exhibit-42. In that report the injuries are mentioned and
her opinion was that, over all findings were consistent of sexual
assault, however, the final opinion was kept pending till receipt of
FSL report.
9. There was one more Medical Officer examined by the
prosecution in support of the injuries suffered by the victim. That
witness was PW-9 Dr. Parmanand Aandankar. He was attached to
Jupiter Hospital. The victim was referred to their hospital by the
Civil Hospital, Thane. He admitted the victim on 12.10.2016. The
Gynecologist examined the victim. PW-9 also examined the victim
and did sonography. There was no internal bleeding, but there
could be infection in her private parts. She was discharged on
14.10.2016. The injury certificate is produced on record at
Exhibit-84. In that certificate, there is mention that as per the
medical record available, the victim had sustained injuries in
sexual assault, ruptured hymen with no abrasion. He denied the
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suggestion put by the defence counsel that he had given a false
injury certificate.
10. PW-6 Dr. Kamlakar Jawale had examined the Appellant
on 11.10.2016. He found three injuries on his body - 1) three
linear scratch marks on left side of back, middle part, erythema
(redness) seen, 2) abrasion in middle part of back 1/2cm x 1/2cm,
3) contusion on right side of back 3cm x 2cm. Redness seen.
According to him, the abrasions were possible due to scratching by
nails. All the injuries were fresh. He produced the medical report
at Exhibit-66.
In the cross-examination, he deposed that the
abrasions were possible if the Appellant had come in contact with
hard surface. The medical report corroborates his deposition.
11. PW-4 Gulab Pawar was a pancha for arrest of the
Appellant and for seizure of his clothes. That panchanama is
produced on record at Exhibit-62.
12. PW-7 P. I. Satish Pawar was the first investigating officer.
He had registered the F.I.R. and had conducted the spot
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panchamama which is produced on record at Exhibit-70. He had
arrested the Appellant and had referred the victim and the
Appellant for medical examination.
13. PW-8 P. I. Sandeep Kadam was the second investigating
officer. He had collected the victim's clothes and sent the articles
for C.A. examination. At the conclusion of the investigation he had
filed the charge-sheet. The C.A. reports are produced on record at
Exhibit-88 and they show that the victim's underwear and the
Appellant's underwear showed presence of blood.
This, in short, is the prosecution evidence.
14. Learned counsel for the Appellant made the following
submissions.
The birth certificate is not produced in original form.
Therefore, the victim's age is not proved. The medical evidence
does not corroborate her evidence fully. The Medical Officer has
deposed that the bleeding injury to the private parts was possible
due to fall during cycling or swimming etc. The victim herself in
her deposition has not described the incident of penetrative sexual
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assault. She has vaguely stated that the Appellant committed
wrong act with her. The Appellant was implicated falsely because
of the family dispute. The C.A. reports are not incriminating.
15. Learned counsel for the Respondent No.2, as well as, the
learned APP opposed these submissions. They relied on the
evidence of the mother of the victim who was examined as PW-1,
as well as, the medical evidence. According to them, this evidence
supports the prosecution case and the victim's deposition.
According to them, the prosecution has proved its case beyond
reasonable doubt.
16. I have considered these submissions. The victim was
barely four years and eight months old at the time of the incident.
The age of the victim is not in dispute. The learned Judge has
noted while recording the deposition of PW-1 that neither the age
of the victim nor the birth certificate was disputed by the defence.
Therefore, it was conclusively proved that date of birth of the
victim was 24.01.2012 as mentioned in the birth certificate. The
incident had taken place on 10.10.2016 between 5:30p.m. to
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6:30p.m. At that time, she was about four years and eight months
old. The victim herself had stated that the Appellant had
committed wrong act with her. Considering her tender age, it was
not expected of her to describe the incident in detail. She,
however, deposed that because of the Appellant's act she was
having pain in her stomach. She had identified the Appellant. She
had denied the suggestion that she was deposing at the instance of
her family members. Her statement U/s.164 of the Cr.p.c. was
recorded on 16.12.2016 wherein, she had given more details that
he had slept on her and that the Appellant had poured oil and had
committed wrong act. Nothing more can be expected from a victim
who is barely four years and eight months old.
17. The evidence of the victim's mother is important in this
case. She was an eye witness. She had gone out to buy vegetables.
In the meantime, the Appellant had taken the victim to his house
and had committed that act. While PW-1 was returning home, she
was informed by her young nephew that the Appellant had taken
the victim to his house. She had immediately rushed to the
Appellant's house and had seen the act. She raised shouts and the
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Appellant was apprehended from his house itself. He was
immediately taken to the police station. The registration of the
F.I.R. was also immediate. The victim was sent for medical
examination. PW-1 had noticed bleeding injuries on her private
parts which were confirmed by the medical examination and the
depositions of two doctors referred to herein above. Thus, there is
direct evidence of the victim and her mother which is sufficiently
corroborated by two doctors. There are injuries to the private parts
of the victim causing bleeding. All the ingredients of penetrative
sexual act are proved through this evidence. The C.A. report also
shows that there was blood on the underwear of the victim, which
is one more corroborating incriminating piece of evidence against
the appellant. In addition, the evidence of PW-5 Bhandari, who
had immediately reached the spot also supports the prosecution
case and the version of PW-1. There is absolutely nothing in favour
of the Appellant. The prosecution has proved its case beyond
reasonable doubt.
18. The learned Judge has imposed the minimum sentence
on the Appellant. There is no scope to reduce it further. Hence, I
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do not see any reason to interfere with the impugned Judgment
and order. With the result, the Appeal is dismissed. With disposal
of the Appeal, the interim application is also disposed of.
(SARANG V. KOTWAL, J.)
