Bombay High Court

Raju Param Thappa vs State Of Maharashtra And Anr on 3 September, 2024

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

 2024:BHC-AS:35946



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                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CRIMINAL APPELLATE JURISDICTION

                                                       CRIMINAL APPEAL NO.455 OF 2024

                               Raju Param Thappa                                       ....Appellant
                                           Versus
                               The State of Maharashtra
                               and another                                             ....Respondents
                                                                     ......
                                                                     WITH
                                                      INTERIM APPLICATION NO.1863 OF 2024
                                                                      IN
                                                        CRIMINAL APPEAL NO.455 OF 2024

                                                               -----
                               Mr. Ankit Dhindale, Advocate for the Appellant.
                               Mr. Vinit A. Kulkarni, APP for the Respondent No.1-State.
                               Ms. Priyanka H. Chavan, Advocate (appointed) for the
                               Respondent No.2.
                                                               -----

                                                                   CORAM : SARANG V. KOTWAL, J.

                                                                   DATE    : 03rd SEPTEMBER, 2024
                               ORAL JUDGMENT :

1. The Appellant has challenged the judgment and order

dated 9.2.2024 passed by the District Judge-1 & Additional

Sessions Judge, Vasai in Special Case No.181/2020. The

Appellant was convicted and sentenced as under :

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Deshmane(PS) PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE DESHMANE Date:

2024.09.06 16:49:11 +0530

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[i] The Appellant was convicted for the offence punishable under Section 10 of the Protection of Children From Sexual Offences Act, 2012 (for short, 'POCSO Act') and he was sentenced to suffer RI for five years and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo SI for one month;

[ii] The Appellant was convicted for the offence punishable under Section 323 of IPC and he was sentenced to suffer RI for six months.

2. Though the Appellant was convicted for the offence

punishable under Section 354 of IPC and under Section 12 of the

POCSO Act, no separate sentence was imposed on him as the

Appellant was sentenced for the offence punishable under

Section 10 of the POCSO Act. The substantive sentences were

directed to run concurrently. The fine amount of Rs.1,000/- was

directed to be paid to the victim as compensation under Section

357(3) of Cr.P.C. after the Appeal period was over. The Appellant

was given set off under Section 428 of Cr.P.C. for the period

undergone in jail.

3. Heard Mr. Ankit Dhindale, learned counsel for the

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Appellant, Mr. Vinit Kulkarni, learned APP for the Respondent

No.1-State and Ms. Priyanka Chavan, learned appointed counsel

for the Respondent No.2.

4. The prosecution case is that the Appellant was

working as a Watchman. He was residing in a room on the

second floor of the building where the victim was residing. The

date of birth of the victim was 14.8.2009. The incident occurred

on 27.10.2020. Thus, she was around eleven years of age at the

time of the incident. On the date of incident in the evening, the

victim was going from the first floor where her grand-parents

were residing to the 3rd floor where the victim and her mother

were residing. She was going there by the stair-case. When she

reached the second floor, the Appellant pulled her inside Room

No.205. He tried to remove her pant but the victim rescued

herself and pushed the Appellant. While she was coming out of

the room, the Appellant kicked the door, which hit the victim on

her cheeks causing injury. She managed to come down to her

grand-mother's place. She narrated the incident to her aunt, who

in turn, informed her mother telephonically, who was at her 3 of 16

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workplace in the vicinity. The mother of the victim rushed home.

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

police station and lodged the FIR. The Appellant was arrested.

The investigation was carried out. The victim was sent for

medical examination. The statements of the witnesses were

recorded. The spot panchnama was conducted. The statement of

the victim and her mother were recorded under Section 164 of

Cr.P.C.. After conclusion of the investigation, the charge-sheet was

filed. The case was committed to the Special Court.

5. During the trial, the prosecution examined six

witnesses including the victim, her mother, the Medical Officer,

the pancha for the spot panchnama, the Appellant's employer and

the Investigating Officer. The defence of the Appellant was of

total denial. According to him, he was from Nepal and there was

no one to support him. He was wrongly blamed for the offence.

6. The learned Judge considered the evidence and the

defence. At the conclusion of the trial, the learned Judge

convicted and sentenced the Appellant, as mentioned earlier.



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7. The main witness, in this case, is the victim herself.

Her birth certificate was produced on record through the

evidence of PW-6 ASI Survase, who was the investigating officer.

It is produced on record at Exhibit-48, which shows her date of

birth as '14.8.2009'. There is hardly any dispute about her date

of birth. Therefore, it is established that on 27.10.2020, she was

below twelve years of age.

8. The victim was examined as PW-2, as mentioned

earlier. She has stated that she was studying in the school on the

date of the incident. The lock-down was imposed in the year

2020 and on the date of the incident her school was being

conducted on-line. Her mother used to go to attend her work.

During that period, she used to stay with her grand-parents. Her

mother used to go for her work between 9.30 a.m. to 9.00 p.m..

On 27.10.2020, she was going from the first floor to the third

floor to take her books. It was evening time. She was going by

the staircase. When she had reached on the second floor, one

man caught her hand, pressed her mouth and pulled her inside

the room. He took PW-2 to a corner room on the second floor.

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She has categorically stated that she did not know the name of

that man. She has further deposed that said person tried to

remove her pant. She pushed him and tried to run out of the

room. At that time, he kicked the door. Her face got stuck

between the door and the door-frame causing injuries to her

cheeks. Then she went downstairs on the first floor and told the

incident to her maternal aunt, who in turn called the victim's

mother. She came home. The victim PW-2 told her mother about

the incident. Then they went to the police station. The police

referred PW-2 to the hospital. She has again specifically stated

that she had not seen that person prior to the incident and that

she did not know him. She added that she had seen that person

2-3 times after the incident. The Appellant was shown to her

through video-conferencing in the Court during recording of her

evidence. The victim identified him as the same person, who had

committed the offence.

In the cross-examination, she denied that she was

deposing as per what her mother had told her. There was CCTV

installed on the ground-floor. There were six flats on each of the 6 of 16

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three floors. She was acquainted with the people living in her

building. At the time of the incident, neither she nor the

Appellant had put the face-masks. She knew the people from the

second floor. She deposed that there was one hall in the house

where she was pulled inside. She admitted that the offender had

quarreled with her grand-father in the past. She admitted that

she had not told the incident to anyone else in her building. She

denied the suggestion that because of the Appellant's quarrel

with her grand-father, the Appellant was falsely implicated.

9. PW-1 was the mother of the victim. She has deposed

that she was residing with her daughters and son in another flat

of the same building where her parents and two brothers were

residing. When she used to attend her job, her children used to

wait in her mother's flat till she came back. On 27.10.2020,

when she was still at her job, at about 8.00 p.m., her sister-in-law

called her on her phone and asked her to return home as early as

possible because of the incident with PW-1's daughter. PW-1

returned home within 5-6 minutes. PW-2 started crying and

narrated the incident to her. She further deposed that the 7 of 16

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Appellant was a watchman in a hotel. According to her, before

she reached the building, the people from her building had

brought the Appellant downstairs. He was already apprehended.

The people from her building had called the police. After that

she went to the police station and lodged her FIR. The FIR is

produced on record at Exhibit-19. The FIR mentions that the

information was received at the police station at 12.45 a.m. on

28.10.2020 i.e. in the mid-night. It may be noted at this stage

that the Appellant was arrested at 9.55 a.m. on 28.10.2020 as per

the arrest form produced at Exhibit-45 through the evidence of

PW-6.

PW-1 has further deposed that she had gone to the

hospital along with the victim PW-2. She had shown the flat

No.205, which was the spot of the incident, to the police. Her

statement was recorded under Section 164 of Cr.P.C.

In the cross-examination, she admitted that she knew

the Appellant since about 2-3 years prior to the incident. For

some days, the Appellant used to work as a Watchman where she

herself was working. She denied the suggestion that prior to the 8 of 16

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incident her father had quarreled with the Appellant. PW-1

deposed that her husband was not living with her since about 7-8

years prior to the incident. She denied the suggestion that the

victim had suffered injuries on her cheeks because she fell in her

house. The victim weighed around more than 16-17 KGs.

10. PW-3 Dr. Kokare had examined PW-2 on 27.10.2020

at about 9.15 p.m.. The medical certificate is produced by him at

Exhibit-31. He deposed that on examination of PW-2, he found

blackish discoloration on bilateral side of face. He admitted that

the victim's mother, aunt and grand-mother had told the medical

officer that the victim was assaulted by an unknown person.

Same fact is reproduced in the medical certificate at Exhibit-31.

11. PW-4 Vilas Ubale was a pancha for the spot

panchnama. It is produced on record at Exhibit-34. He has stated

that one black button was seized from room No.205 and the

victim had identified that button as belonging to her. The spot

panchnama shows that it was in the nature of a hair-clip.

12. PW-5 Jeol Tuscano was running a restaurant where

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the Appellant was working as a Watchman before changing the

job. This witness had helped the Appellant in getting a room.

He produced a copy of the rent agreement at Article A. However,

there are no further details produced on record and that

particular agreement is not properly proved in the evidence.

In the cross-examination, he deposed that the

Appellant had not misbehaved with any lady customers or other

customers in his restaurant.

13. PW-6 ASI Survase was the Investigating Officer. He

deposed that the investigation of C.R. No.388/2020 registered

at Vasai police station was handed over to him on the date of its

registration. On 28.10.2020, he arrested the Appellant and

prepared the arrest panchnama. It is produced on record at

Exhibit-45, as mentioned earlier. He conducted the spot

panchnama. He seized that particular rubber button from the

spot. The victim's statement was recorded. Her birth-certificate

was collected. He completed the investigation and submitted the

charge-sheet. In the cross-examination, he added that at the time

of the incident the CCTV cameras in the victim's building were 10 of 16

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not functioning.

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

14. Learned counsel for the Applicant submitted that the

incident, as alleged by PW-2, could not have been taken place. It

was highly improbable. The prosecution has not examined the

important witnesses, like, the maternal-aunt of the victim to

whom the victim had narrated the incident at the first instance.

Even her grand-mother and maternal uncle, who had

accompanied her at the time of her medical examination, were

not examined.

15. Learned counsel submitted that nobody from the

building was examined. This was important because the

prosecution case according to PW-1, is that the Appellant was

caught by the people in the building and he was brought down

before PW-1 had reached the building. Nobody from that

building was examined. No explanation was offered for not

examining any of them. He submitted that the manner in which

the injuries were suffered on the cheeks is also improbable.


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Considering the tender age of the victim, it was not possible that

she could have pushed the Appellant and could rescue herself.

He submitted that the identity of the Appellant is extremely

doubtful and the prosecution has not proved its case beyond

reasonable doubt.

16. Learned APP as well as learned counsel for the

Respondent No.2 submitted that the age of the victim is not

disputed. The police were immediately informed. There was no

delay and there was no possibility of concoction of a false story.

There was no reason to implicate the Appellant falsely. The

medical report corroborates the victim's narration. Finding of the

hair-button at the spot is also an incriminating circumstance

against the Appellant.

17. I have considered these submissions. Having perused

the evidence, there are some circumstances which require serious

explanation from the prosecution, which is not forthcoming. It is

the specific case of PW-2 that she had not seen the offender

prior to the incident. She did not even know him. She did not

know the name of that offender. Therefore, in this case it was 12 of 16

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necessary for the investigating agency to have conducted the test

identification parade. However, no such effort was taken by the

prosecuting agency. Undoubtedly, the victim has identified the

Appellant in the court through video-conferencing. However, her

evidence was recorded on 17.2.2023. There was quite a long gap

between the date of incident and date of recording of her

evidence. This has to be considered in the backdrop of her

admission that she had seen the offender 2-3 times after the

incident. The prosecution case is that after the incident the

Appellant was immediately apprehended by the people from the

building and then on the very next day he was put under formal

arrest. Therefore, there was no occasion for the victim to have

seen the Appellant 2-3 times after the incident. That could only

mean that the victim was shown the Appellant during that period

and, therefore, her identification of the Appellant in the Court

loses its significance in the facts of this particular case.

18. Apart from the above infirmity, the medical certificate

shows that the history given to the medical officer recorded that

the victim was assaulted by an unknown person. At that time, 13 of 16

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the victim's uncle and grand-mother were present who had given

this information. This is again contrary to the prosecution case

because PW-1 had stated that the people in the building had

caught the Appellant and had brought him down. In fact, his

name was mentioned in the FIR. Therefore, it was important for

the prosecution to have explained as to why it was mentioned

before the Medical Officer that the assault was committed by an

unknown person.

19. The FIR mentions that when PW-1 enquired with PW-

2 about the incident, at that time, PW-2 had described the

incident by specifically naming the Appellant. This again is

contrary to the PW-2's own version that she neither knew the

offender nor knew his name.

20. As rightly submitted by learned counsel for the

Appellant, the important witnesses in this case are not examined

by the prosecution. In the context of this case, the uncle, grand-

mother and the persons who had allegedly caught the Appellant,

were the important witnesses. None of them was examined which

raises serious doubt about the genuineness of the prosecution 14 of 16

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case as far as the identity of the culprit is concerned.

21. It is also important to note that according to PW-1,

the Appellant was caught by the people in the building before she

had even reached her building, after coming to know about the

incident from her sister-in-law. In that case, the Appellant was

already apprehended. According to her, the police were informed

by those people. There is no explanation as to where the

Appellant was kept throughout the night, because the FIR was

lodged in the next morning and the information regarding the

offence was received by the police station only after mid-night.

The Applicant was put under arrest at about 9.55 a.m. on the

next day. All these circumstances and timings do not tally with

each other. Thus, the learned counsel for the Appellant has made

out a case for strong possibility of mistaken identity or wrong

implication. Sufficiently reasonable doubt is created about the

prosecution case as far as the identity of the offender is

concerned. In this view of the matter, the conviction and sentence

recorded against the Appellant cannot be sustained. He has to be

given benefit of doubt. With the result, the Appeal is required to 15 of 16

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be allowed.

22. Hence, the following order :

:: O R D E R ::

i.         The Appeal is allowed.
ii.        The judgment and order dated 9.2.2024 passed by the

District Judge-1 & Additional Sessions Judge, Vasai convicting and sentencing the Appellant in Special Case No.181/2020, is set aside. iii. The Appellant is acquitted from all the charges. iv. The Appellant is in custody. He shall be released forthwith if not required in any other case. Before his actual release from the prison, the Applicant shall execute a PR bond in the sum of Rs.30,000/- (Rupees Thirty Thousand Only) ensuring his availability in case Appeal against acquittal is preferred.