Bombay High Court
Sadanand Dattarao Hapse vs The State Of Maharashtra And Anr on 4 September, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:36153
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.120 OF 2022
Sadanand Dattarao Hapse ....Appellant
Versus
The State of Maharashtra
and another ....Respondents
......
WITH
INTERIM APPLICATION NO.2545 OF 2024
IN
CRIMINAL APPEAL NO.120 OF 2022
-----
Mr. Shailesh S. Kharat, Advocate for the Appellant.
Mr. Prashant P. Jadhav, APP for the Respondent No.1-State.
Mr. Aditya Bapat, Advocate (appointed) for the Respondent No.2.
-----
CORAM : SARANG V. KOTWAL, J.
DATE : 04th SEPTEMBER, 2024
ORAL JUDGMENT :
1. The Appellant has challenged the judgment and order
dated 20.2.2020 passed by the learned Special Judge under
POCSO Act, Greater Mumbai in POCSO Special Case
No.47/2017. The Appellant was convicted and sentenced as
under :
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Deshmane(PS)
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[i] The Appellant was convicted for the offence punishable
under Section 376(2)(i),(l) of IPC and he was sentenced
to suffer RI for twelve years and to pay a fine of
Rs.20,000/- and in default of payment of fine to undergo
RI for three months;
[ii] The Appellant was convicted for the offence punishable
under Section 10 of the Protection of Children From
Sexual Offences Act, 2012 (for short, the 'POCSO Act')
and he was sentenced to suffer RI for six years and to pay
fine of Rs.10,000/- and in default of payment of fine to
undergo RI for two months.
[iii] The Appellant was convicted for the offence punishable
under Section 12 of the POCSO Act and he was sentenced
to suffer RI for three years and to pay fine of Rs.5,000/-
and in default of payment of fine to undergo RI for one
month.
2. The Applicant was also convicted under Sections 4
and 6 of the POCSO Act, however, in view of Section 42 of the
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POCSO Act, no separate sentence was imposed on the Appelalnt
under Sections 4 and 6 of the POCSO Act. All the substantive
sentences were directed to run concurrently. The Appellant was
given set off under Section 428 of Cr.P.C. He was acquitted from
the charge of commission of the offence punishable under
Section 506 of IPC. The amount of fine, if recovered, was
directed to be paid to the victim as compensation under Section
357(1) of Cr.P.C. after the Appeal period was over. The case was
recommended to the District Legal Services Authority, Mumbai
for awarding compensation to the victim (PW-3) as per Section
357-A of Cr.P.C.
3. Heard Mr. Shailesh Kharat, learned counsel for the
Appellant, Mr. Prashant Jadhav, learned APP for the Respondent
No.1-State and Mr. Aditya Bapat, learned appointed counsel for
the Respondent No.2.
4. The prosecution case is that the victim, in this case,
was twelve years and ten months old at the time of the incident.
The date of birth of the victim was 12.1.2004 and the incident
occurred on two occasions in the month of November, 2016. The
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victim was suffering from learning disability and, therefore, the
offence was aggravated. The Appellant was a Sweeper in the
society where the victim was residing with her parents. Her
father was not keeping well and her mother used to go for her
job. On the date of the first incident, the victim had gone to play
with her friends. She parked her cycle near a room. That room
was close to the room used by the Sweeper. The Appellant took
her inside the room and touched her indecently. He gave his
mobile phone to her and told her not to disclose it to anybody.
He also threatened her. On the next occasion, within 2-3 days,
again the Appellant took her to a room. This time, he committed
penetrative sexual assault and again threatened her. Initially, the
victim did not tell this incident to anybody, including her mother.
But, her mother discovered the mobile phone in the victim's
school bag. The victim then told her about the incident. The
mother of the victim consulted other family members and
ultimately lodged the FIR on 23.11.2016 at about 10.00 p.m..
The Appellant was arrested on 24.11.2016 and since then he is
continuously in custody. The investigation was carried out. The
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charge-sheet was filed and the case was committed to the Special
Court.
5. During the trial, the prosecution examined eleven
witnesses including the victim, the Medical Officers, a panch, the
Supervisor in the building and the Police Officers. The defence of
the Appellant was of false implication. It is also the Appellant's
case that he had gone to lodge a complaint about theft of his
mobile phone. He was told by the police that the victim's mother
and the victim had stolen the mobile phone and, therefore, to
save themselves, they lodged this complaint against him.
6. After considering the evidence and the defence, the
learned Judge convicted and sentenced the Appellant, as
mentioned earlier.
7. The victim was examined as PW-3. She has deposed
that she was residing with her parents and grand-mother. She,
along with her friend used to go to the clubhouse of the society
for playing. They used to go for cycling near the clubhouse. Her
mother used to go for her job and her father used to remain in
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the house. Her mother used to leave home at around 8.30 a.m.
and used to return at 9.00 p.m. PW-3's date of birth was
12.1.2004. She has deposed that the incident took place during
the Diwali festival in the year 2016. At about 11.00 a.m., she and
her three friends had gone for cycling towards the clubhouse. At
about 12.00 noon, she returned home and her friends had gone
back to their houses. She had gone to the parking area. The
Appellant was working as a Sweeper in the society. The
Appellant suddenly came towards her from behind and took her
forcibly towards the washroom used by the watchmen and he
touched her private parts repeatedly. She has deposed that she
was frightened and she went back to her house. On the next day
also, she went with her friends for cycling. Again, she went to
the same place to park her cycle. Again, the Appellant came
towards her and took her forcibly towards the bathroom used by
the watchmen. He gave his mobile handset to her. She further
deposed that he removed their clothes and touched her private
parts. She added that he inserted his private part in her private
parts. The Appellant asked her to take photographs and told her
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not to disclose that fact to anybody. He handed over that mobile
handset to her and told her not to tell about it to anybody else.
After that, she went home. She did not disclose this incident to
anybody as she was frightened. She started attending her
school. Her mother came to know that she had a mobile handset.
Her mother inquired with her about that fact. PW-3 lied to her
that it belonged to her friend "H". PW-3's mother made inquiries
with H's mother and came to know that PW-3 was not telling the
truth. Her mother, then, again inquired with her. Again the
victim did not give proper answer; but her mother kept on
questioning her; and ultimately PW-3 disclosed the entire
incident to her mother. PW-3's mother lodged her FIR at
Navghar police station. The police made inquiries with PW-3.
Her statement was also recorded by the Magistrate at Kurla under
Section 164 of Cr.P.C., which is produced on record at Exhibit-26.
She identified the mobile phone given by the Appellant to her,
which is produced in the Court. She identified her clothes
produced in the Court.
In the cross-examination, she stated that after 2-3
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days, when her mother came to know about the mobile handset,
they had gone to the police station. During that period, the
mobile handset remained with PW-3's mother. Before that, PW-3
herself was having the mobile handset for 2-3 days. During that
entire period, neither the Appellant made any phone call to her
nor PW-3 made any phone call to him. The handset was switched
off. Her mother also did not use the phone to call the Appellant
by using that mobile handset. Her mother did not question the
Appellant about the mobile handset. The Appellant used to come
to the building for sweeping daily. The washroom was situated
adjacent to the cabin of the watchman. The watchman was
deputed in the premises of the building for 24 hours. Sometimes
the washroom used to be locked and sometimes it used to be
unlocked but in the evening time, it used to be locked. On
23.11.2016, when they had gone to the police station, the
Appellant was present in the police station. She denied the
suggestion that the Appellant had alleged that PW-3 had stolen
his mobile phone from the garden. Importantly, she admitted
that the said mobile handset did not have any photographs or
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videos. She used to carry that mobile handset with her in her
school bag. She carried it to her school for 2-3 days.
In her cross-examination, she deposed that at the
time of recording of her police statement, she had not stated
before the police that the Appellant had come towards her from
behind and that he had given his mobile handset to her and that
the Appellant had inserted his private part in her private parts
and that he had asked her to take photographs. This appears to
be the omission from her police statement. The defence had
asked the investigating officer WPSI Kulkarni, who was
examined as PW-6 about this omission; at that time PW-6 had
also admitted that PW-3 had not stated so in her police statement
but PW-6 further added that the victim had stated that after
removing the clothes the Appellant had committed the "bad act"
with her. PW-3 admitted that at the time of her medical
examination, her mother had given the history to the medical
officer and the medical officer had not asked her about it.
8. PW-1 was the first informant. She was the mother of
the victim. She has deposed that PW-3 was a Special Child. PW-
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1 herself was working in a private company as a Manager. On
18.11.2016, when she was checking the school bag of PW-3, she
found a mobile phone. When she questioned her daughter,
initially she told PW-1 that it belonged to one of her friends, "H"
but later on confessed that it belonged to the Appellant and then
she narrated the incident as described by PW-3. PW-1 then took
PW-3 to a Gynecologist, Dr. Shetty who confirmed the incident
but opined that there was "no harm". After that PW-1 went to the
police station with her husband, sister and the victim. She
lodged her FIR. It is produced on record at Exhibit-20. The police
recorded statement of PW-3. On 24.11.2016, she handed over
the victim's clothes to the police. From the evidence, nothing
incriminating is brought out in the evidence in respect of those
clothes. The C.A. Report did not reveal anything incriminating
against the Appellant. PW-1 has further deposed that her
statement was recorded under Section 164 of Cr.P.C.
In the cross-examination, she deposed that she came
to know about the incident for the first time on 18.11.2016 and
she lodged the FIR on 23.11.2016. She explained that she
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wanted to consult the matter with her family members. After she
came to know about the mobile phone belonging to the
Appellant, she did not question the Appellant about it. She
deposed that there was a watchman in their building. There
were fourteen buildings in all. The watchmen's cabin was by the
side of the parking area and the service washroom was adjacent
to that cabin. There were watchmen for 24 hours; one during the
day and the other in the night. She did not make any inquiry
with the watchman. She did not make inquiries with the victim's
friends. Nobody from the society told her that the victim was
playing in the parking area. She denied the suggestion that PW-3
had stolen the Appellant's mobile phone and to avoid those
accusations, this false case is lodged against the Appellant.
9. PW-2 Hiralal Jadhav was a Manager in the society. He
deposed that the Appellant was working as a Gardner in the
clubhouse. This witness used to mark the Appellant's presence in
the muster-roll. There were fourteen buildings in the campus.
There were around 28 flats in each building. There were in all
450 flats. The society campus was crowded in the morning and
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in the evening.
10. PW-5 Pawaskar was a Guard Supervisor working in
that society. He has deposed that he had seen the Appellant
talking with PW-3 between 11.11.2016 to 18.11.2016.
11. PW-11 Vijay Gosavi was a pancha witness. He has
deposed about the seizure of the victim's clothes produced by
PW-1, seizure of the mobile phone produced by PW-1 and the
spot panchnama. The spot panchnama is produced on record at
Exhibit-50. It is mentioned in the spot panchnama that there was
flat No.106 of building No.7 above the washroom, which was the
spot of incident.
12. The prosecution examined three medical officers in
this case. Their evidence is quite important. PW-8 Dr. Shetty was
the first doctor who had examined the victim. She was a
Gynecologist. She was a private practitioner. On 23.11.2016, the
victim's parents brought her to PW-8. The victim gave her the
history that the Appellant had touched his private part to her
private part. He had pressed her private parts. She had suffered
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pain. PW-8 examined her. She has specifically stated that she
could not find any damage to the victim's private parts. In her
cross-examination, she added that she had not found any marks
or injuries of sexual assault on the victim.
13. PW-7 Dr. Patil had examined the victim after the FIR
was lodged. He has referred to the history given by the victim's
mother. He had given his final opinion that there were signs of
use of force and that the sexual assault could not be ruled out.
He was asked in the examination-in-chief itself as to what he
meant by 'NAD' in the medical report. He answered that, it
meant 'No Abnormality Detected'. It meant that there were no
fresh injuries or tears. According to him, the fresh injury would
be caused within 2-3 days of the examination. He added that he
referred to the protocols of the medico legal examination and,
therefore, had not mentioned the status of hymen because,
according to those protocols, it was irrelevant and it could be
torn due to various causes. He was asked whether history of
penovaginal sexual intercourse was possible. He had answered
affirmatively. The provisional medical certificate was produced
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on record at Exhibit-37.
He was cross-examined . He deposed that the victim
had learning disability. He admitted that since the victim was
suffering from mental disability, she was not able to give proper
history. The medical papers produced on record at Exhibit-37A
clearly mentions that there was no abnormality detected in
urethral meatus and vesibule, labia majora, labia minora,
fourchette and introitus, hymen, perineum and external urethral
mealus. Thus, the clinical examination did not show any
indication of any injury or force inflicted on the victim. Inspite of
this clinical examination, the witness gave his opinion as
mentioned above. His opinion is based only on the history told to
him and not based on his own clinical examination.
14. PW-4 Dr. Gupte was a Psychologist. She has deposed
that she was treating the victim since 2015 as she was having
learning disability and attention deficit hyper activity disorder.
On 23.11.2016, the victim was brought to her hospital by the
victim's parents. They narrated the incident. This witness had
referred the victim for further treatment to a Gynecologist and
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had advised to lodge a report.
15. The defence admitted the medical examination of the
Appellant, which is produced on record at Exhibit-28. It was
issued by the Sion Hospital, Mumbai. In that document, the
history was mentioned as given by the Appellant. He had stated
that he knew the victim as she used to play in the garden. Once
she had fallen while cycling. He had gone to help her. On
14.11.2015, she had asked him to give his mobile phone for an
hour. He had given his mobile phone but thereafter she had not
returned it. He had denied any kind of sexual assault committed
with the victim.
16. PW-6 WPSI Kulkarni had recorded the victim's
statement and as mentioned earlier had referred to the omission
from the victim's police statement, as deposed by the victim in
her deposition.
17. PW-9 PI Dilip Patil was the investigating officer who
had filed the charge-sheet. He had recorded the statements of
some of the witnesses and some of the doctors.
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18. PW-10 PSI Jagade was the first investigating officer.
He had registered the FIR, seized the mobile phone and clothes
produced by PW-1 and had caused recording of the statements
under Section 164 of Cr.P.C. He deposed that he had seized the
mobile phones from the Appellant as well as from PW-1. He did
not find any obscene video or photographs in both these mobile
phones. He did not find any incoming and outgoing calls
between the Appellant and the victim. He added that the log
details of the mobile phone produced by PW-1 were in deleted
condition. He did not collect the CDR of both the mobile phones.
. This, in short, is the evidence led by the prosecution.
19. Learned counsel for the Appellant submitted the
entire evidence shows that the incident is highly improbable. The
conduct of the victim was unnatural. She had not raised any
shouts. It was not possible for the Appellant to have dragged her
to the watchmen's washroom from an open parking space of a
crowded society. The mobile phones do not show any obscene
photograph or videos. There is no explanation as to why the
victim had kept the mobile phone of the Appellant. There were
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no calls exchanged between them. He heavily relied on the
medical evidence. He submitted that the clinical examination by
two medical officers PW-7 and PW-8 did not show any injury and
hence there were no signs of penetration. He submitted that the
evidence shows that there was always a watchman next to the
washroom as the watchmen's cabin was adjacent to the
washroom. He submitted that there is serious doubt raised about
the entire incident and in any case there is a strong doubt about
the theory of penetration. He, therefore, submitted that the
Appellant deserves to be acquitted. The Appellant is in custody
since 24.11.2016.
20. Learned APP as well as learned counsel for the
Respondent No.2 submitted that in this case, the evidence of the
victim - PW-3 is cogent and reliable and, therefore, even in the
absence of the corroborative medical evidence, the conviction can
be based on her sole testimony. There is no reason for the PW-3
to implicate the Appellant falsely. They submitted that even
penetration to a small extent can constitute an offence and there
need not be any injury caused to the victim.
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21. I have considered these submissions. I find force in
the submissions of learned counsel for the Appellant that the
medical evidence in this case assumes importance. The clinical
examination conducted by the two doctors i.e. Dr. Shetty and Dr.
Patil show that there were no signs of injury at all. This fact will
have to be taken into consideration while deciding this appeal.
22. Learned counsel for the Appellant referred to the
omission brought out by the defence in PW-3's evidence from her
police statement. As mentioned earlier, the victim PW-3 as well
as the police officers have admitted that PW-3 had not specifically
mentioned the penetrative sexual assault, though, there was a
reference to the 'bad act' committed by the Appellant in her
police statement. However, considering her tender age, this
aspect cannot be the sole decisive factor in the present case. This
will have to be considered together with the other evidence.
23. However, in the history given to Dr. Shetty, there was
mention of only touching the private parts of the victim. Thus, at
the first instance, the allegations made by PW-3 were only
regarding touching of her private parts and not the penetration.
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In this case, PW-3 is the most important witness for the
prosecution. Her first disclosure to an independent Gynecologist
and to the police in her statement, together will have to be given
due importance. In this particular case, the case of the
prosecution in respect of penetrative sexual assault will have to
be scrutinized carefully. In this connection, the medical evidence
given by these two doctors, the clinical findings noted in the
medical papers, the history given to Dr. Shetty (PW-8) and her
case in the police statement together indicate that there is a
reasonable possibility that it was a case of sexual assault and
not penetrative sexual assault. Reasonable doubt is created about
the allegations of penetrative sexual assault. Therefore, to that
extent, benefit of doubt will have to be given to the Appellant.
24. However, the entire prosecution case cannot be
discarded in totality. The victim was suffering from learning
disability. She has consistently deposed about the inappropriate
touch attributed to the Appellant on two occasions which would
fall within the definition of sexual assault as defined under
Section 7 of the POCSO Act. This becomes 'aggravated sexual
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assault' because the victim was suffering from learning disability
and it was done on more than one occasion. Therefore, the
offence would fall within the meaning of Section 9(k),(l) of the
POCSO Act, which is an aggravated form of sexual assault. To
that extent, the prosecution has proved its case in respect of the
commission of the offence under these Sections.
25. The learned counsel for the Appellant had submitted
that the mobile handset of the Appellant was found with PW-3
and, therefore, to save herself from the allegations of theft, she
has falsely implicated the Appellant. I am unable to agree with
these submissions. The Appellant had not made any grievance to
anybody in the society or even before the police that his mobile
phone was not returned by PW-3 to him. In the history narrated
by the Appellant himself during his medical examination, he has
accepted that the victim had asked for that mobile phone from
him and he himself had given that mobile phone to her. Besides
that, he himself had another mobile handset which was also
seized by the police and, therefore, there is no force in the
submission that the victim had stolen that mobile phone from the
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Appellant. Consequently, the submission that the Appellant was
falsely implicated because of the possible allegations of theft of
the mobile phone also cannot be accepted. However, it must be
noted that there were no objectionable or incriminating photos or
videos in either of the two mobile phone handsets seized in this
case.
26. In such cases, even delay in lodging the FIR will not
make any difference considering the tender age of the victim and
the apprehension in the mind of the victim's mother. Thus, the
prosecution case cannot be termed as completely false. But, as
discussed earlier, there is a reasonable possibility of exaggeration
and making allegations to give it a serious colour, as discussed
earlier.
27. In this view of the matter, I am of the opinion that the
conviction under Section 376 of IPC and under Sections 4 & 6 of
the POCSO Act is not sustainable, but, the conviction and
sentence under Sections 10 and 12 of the POCSO Act are
required to be upheld. Considering the disability and tender age
of the victim, I am not inclined to reduce the sentence imposed
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by the trial Court on the Appellant for commission of the offence
punishable under Sections 10 and 12 of the POCSO Act.
28. Hence, the following order :
:: O R D E R ::
i. The Appeal is partly allowed.
ii. The conviction and sentence of the Appellant under Section
376(2)(i)(l) of IPC and under Sections 4 & 6 of the
Protection of Children From Sexual Offences Act, 2012,
recorded by the learned Special Judge under POCSO Act,
Greater Mumbai in POCSO Special Case No.47/2017
against the Appellant is set aside.
iii. The conviction and sentence of the Appellant under
Sections 10 and 12 of the POCSO Act are maintained.
Consequently, the Appellant's conviction under Section 10
of the POCSO Act and the sentence of RI for six years and
to pay fine of Rs.10,000/- and in default of payment of fine
to suffer further RI for two months is maintained. Similarly
the Appellant's conviction under Section 12 of the POCSO
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Act and sentence of RI of three years and to pay fine of
Rs.5,000/- and in default of payment of fine to suffer RI for
one month, is maintained.
iv. The substantive sentences are directed to run concurrently.
The Appellant is given set off under Section 428 of Cr.P.C.
for the period already undergone as an under-trial prisoner.
v. The amount of fine, if recovered, shall be paid to the victim
as a compensation under Section 357(1) of Cr.P.C.
vi. The direction that the case was recommended to the
District Legal Services Authority, Mumbai for awarding
compensation to the victim (PW-3) as per Section 357-A of
Cr.P.C., is maintained.
vii. The Appeal is disposed of accordingly. Pending Interim
Applications are also disposed of.
(SARANG V. KOTWAL, J.)
Deshmane(PS)
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2024.09.09
15:21:16
+0530
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