Bombay High Court
Bhimraoji S/O Manikraoji Dhole vs State Of Mah. Thr. Pso Ps Karanja (Gh.) ... on 17 December, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:14250
222.Cri.Apeal 173.2023.judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 173 OF 2023
Bhimraoji S/o. Manikraoji Dhole,
Aged : 68 Yrs., Occu.: Nil,
R/o. Yengaon, Tahsil : Karanja (Gh.),
District : Wardha. (In Jail) .... APPELLANT
// V E R S U S //
1 State of Maharashtra,
Through Police Stationer Officer,
Police Station- Karanja (Gh.),
Tahsil Karanja (Gh.),
District Wardha
2 The Victim X.Y.Z.,
being Minor through her
guardian mother Informant.
In FIR No. 336 /2019, registered
with Police Station - Karanja (Gh.)
Tahsil - Karnja (Gh.),
District Wardha. ... RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr Madhur Deo, Advocate for the appellant
Mr Amit Chutke, APP for the respondent No.1/State
Advocate (appointed) for respondent No.2 is absent
-----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 17/12/2024 OR A L JUDGMENT :
1. In this appeal, challenge is to the judgment and
222.Cri.Apeal 173.2023.judge.odt 2 order dated 17.02.2023 passed by the learned Extra Joint, Addition Sessions Judge and Special Judge, Wardha (for short 'the learned Judge'), whereby the learned Judge convicted the appellant/accused for the offences punishable under Section 6 read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') and Sections 376(2)(j) and 376-AB read with Section 511 of the Indian Penal Code (for short 'the IPC') and sentenced him to suffer rigorous imprisonment for ten (10) years and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer simple imprisonment for six (6) months for the offence punishable under Section 6 read with Section 18 of the POCSO Act. No separate punishment is awarded for the offences punishable under sections 376(2)(j) and 376-AB read with Section 511 of the IPC.
2. Background facts The informant, in this case, is the mother of the victim girl. The victim girl on the date of the incident was 7
222.Cri.Apeal 173.2023.judge.odt 3 years and 5 months old. The case of the prosecution, which can be unfolded from the report and other materials, is that the victim girl is deaf and dumb. The incident in question occurred on 13.11.2019. On 13.11.2019, at about 11:00 a.m., the informant went to the agricultural field. Her mother-in-law and the victim were at home. While leaving the house, she told her mother-in-law to drop the victim at the house of her sister- in-law (PW-4) before going to the field. It is stated that while going to the field, the mother-in-law of the informant dropped the victim at the house of PW-4 and gave Rs.2/- to the victim for purchasing chocolate etc.
3. The appellant is a neighbor of PW-4. He is running a pan stall near the house of PW-4. PW-4 and the appellant are relatives. It is stated that the victim went to the shop of the appellant for purchasing the chocolate. The victim did not return for some time. PW-4, therefore, went to see her near the shop. When she went to the shop, she saw that the victim was lying on the cot while her frock was removed and
222.Cri.Apeal 173.2023.judge.odt 4 her legging was stripped off up to her knees. The appellant was lying on her person and taking kisses of her breast and abdomen. On seeing PW-4, the appellant was scared. PW-4 got the victim down from the cot and put on her clothes and brought her home. The mother of the victim was not at home.
4. The informant, the mother of the victim, returned from the field at 2:30 p.m. After seeing the mother of the victim, PW-4 started crying. She narrated the incident to the mother of the victim. The husband of PW-2 informant and his brother were not at home. They returned from the agricultural field at about 6:00 p.m. PW-4 and PW-2 narrated the incident to them. PW-4, her husband and her relatives went to the house of the appellant and questioned him about the act committed by him with the victim. The appellant quarreled with them. Thereafter, they went to Karanja (Ghadge) Police Station. PW-2, the mother of the victim, lodged the report against the appellant.
222.Cri.Apeal 173.2023.judge.odt 5
5. On the basis of the report, crime bearing No. 336 of 2019 was registered against the appellant/accused. PW-8 Kavita Fuse, API, carried out the investigation. PW-8 referred the victim for medical examination. The appellant was arrested. The investigating officer recorded the statement of the witnesses. The investigating officer drew the spot panchanama and seized the clothes of the victim and the clothes of the accused. The samples had been collected and seized. The samples were sent to RFSL, Nagpur for examination. The statement of the witnesses were recorded under Section 164 of the Code of Criminal Procedure (for short 'the Cr.P.C.'). After completion of the investigation, PW-8 filed the charge-sheet against the appellant.
6. The learned Judge framed the charge against the appellant. The appellant pleaded not guilty. His defence is of a false implication on account of his inimical relations with PW- 4 and the family of the informant. In order to bring home the guilt of the appellant, the prosecution examined eight
222.Cri.Apeal 173.2023.judge.odt 6 witnesses. The learned Judge, on consideration of the evidence, held the appellant guilty for the above offences and sentenced him as above. The appellant, being aggrieved by the said judgment and order, has come before this Court in appeal.
7. I have heard learned Advocate Mr Madhur Deo for the appellant and learned APP Mr Amit Chutke for the State. Perused the record and proceedings.
8. The learned Advocate for the appellant submitted that the learned Judge has failed to properly appreciate the evidence on record. In the submission of the learned Advocate even if the case of the prosecution is accepted at its face value, the offence made out would not be penetrative sexual assault as has been held by the learned Judge. The learned Advocate submitted that the case of the prosecution with regard to the sexual assault on the victim by the appellant is not at all probable. In order to buttress his submission, learned Advocate took me through the panchanama and the evidence of the
222.Cri.Apeal 173.2023.judge.odt 7 panch witness. The learned Advocate submitted that the occurrence of the incident inside the shop during daytime is highly improbable. The appellant was running a pan stall and it would remain open throughout the day. The people used to visit his pan shop throughout the day. The cot inside the pan stall is visible from outside. The appellant on the date of the incident was more than 65 years of age and therefore, he would not have committed such an act at the spot of the incident. The learned Advocate submitted that from the southern side door of the shop, the cot can be seen from the house of PW-4. The learned Advocate submitted that, therefore, the possibility of the occurrence of the incident as narrated by the PW-4 is not at all acceptable. The learned Advocate submitted that the evidence of PW-4 does not inspire confidence. It is submitted by pointing out the evidence of the two defence witnesses that PW-4 had a grudge against the appellant because the appellant had prohibited PW-4 and her family members from using the latrine by the side of his pan stall. The learned Advocate submitted that, therefore, the circumstances brought on record
222.Cri.Apeal 173.2023.judge.odt 8 in totality support the defence of the appellant. The learned Advocate in the alternative submitted that even if the evidence is accepted as it is, the appellant could not be held guilty for the charge of the penetrative sexual assault. The learned Advocate submitted that at the most the offence of sexual assault as defined under Section 7 of the POCSO Act and Section 354(A) (1)(i) of the IPC would get attracted. The appellant, who was more than 65 years of age on the date of the incident, would not have indulged in such an act. He is the relative of the victim girl. It is pointed out that his family members, including his small grandchildren, are residing with him. The learned Advocate submitted that the prosecution in this case has failed to prove the guilt of the appellant beyond reasonable doubt.
9. The learned APP submitted that PW-4 had no reason to falsely implicate the appellant. The evidence of PW-4 is of a sterling quality. The evidence has not been shaken at all in her cross-examination. PW-4 has denied all the suggestions put to her consistent with the defence of the appellant. The
222.Cri.Apeal 173.2023.judge.odt 9 learned APP took me through the evidence of PW-4 and pointed out that the account of the incident narrated by PW-4 cannot be doubted. The conduct of PW-4 is consistent. Immediately after the arrival of the mother of the victim from the field, she narrated the incident to her. In fact, when she saw the mother of the victim, she started crying. The learned APP submitted that PW-4 has not exaggerated the incident. It is submitted that if she wanted to falsely implicate the appellant, then she could have exaggerated the case and tried to implicate him for penetrative sexual assault. The learned APP submitted that the victim is deaf and dumb. She was not able to communicate even with the special teacher. The statement of the victim girl could not be recorded because she was not able to interact. The learned APP pointed out that after recording the evidence of the PW-5 Baban Raut, the special teacher, the learned Judge, in order to satisfy himself about the actual condition of the victim girl, had summoned the victim girl through her mother. The learned Judge recorded in the proceeding conducted on that day about the condition of the
222.Cri.Apeal 173.2023.judge.odt 10 victim girl and the response given by the victim girl to the question put by the learned Judge. The learned APP submitted that therefore, the learned judge was right in holding the appellant guilty. The learned APP however, in all fairness, submitted that offence proved on the basis of the evidence may be under Section 7 punishable under Section 8 of the POCSO Act read with Section 9(m) of the POCSO Act. The learned APP submitted that on the basis of the available evidence, the appellant cannot be acquitted.
10. In order to appreciate the rival submissions, I have gone through the evidence. The case of the prosecution revolves around the evidence of PW-4. The evidence of PW-4 has been assailed on multiple grounds. The main ground of challenge to her evidence is her so called enmity with the appellant. The victim is not the daughter of PW-4. The victim is the daughter of PW-2. PW-2 and PW-4 are relatives. Similarly, the appellant is also their distant relative. The appellant was the distant grandfather of the victim girl. In my
222.Cri.Apeal 173.2023.judge.odt 11 view, this fact is required to be borne in mind while appreciating the evidence of PW-4. PW-4 has deposed that the informant is her sister-in-law. They are residing at some distance from her house. She has stated that the victim girl is deaf and dumb by birth. She cannot understand the sign language. She has stated that the appellant is her father's cousin brother. As far as the incident is concerned, she has stated that on the date of the incident at 11:00 a.m. the parents of the victim went to the field. The mother-in-law of PW-2 dropped the victim at her house. The mother-in-law of PW-2 gave Rs.2/- to the victim for purchasing chocolates. She has stated that at about 1:00 p.m. to 1:30 p.m. the victim alone went to the pan stall of the appellant to buy chocolate. She did not return for 20-25 minutes and therefore, she went to see her. She has stated that when she went to the shop, she found that the frock of the victim was stripped off up to her knees. The appellant was sleeping on her. The appellant was taking kisses of her stomach and breast. She has stated that after seeing her, the appellant got scared. She therefore got down the victim
222.Cri.Apeal 173.2023.judge.odt 12 from the cot and put on her clothes. She brought her back to the house. She has stated that at that time she alone was at home. The informant came back at 2:30 p.m. After seeing her, she started crying. She has stated that on being questioned by the informant about the cause of her crying, she narrated the incident to her. She has stated that since the father of the victim was not at home, they made wait for him until evening. He came back at 6:00 p.m. They narrated the incident to him. Thereafter, they went to the house of the appellant. They questioned the appellant about the wrongful act committed by him. The appellant quarrelled with them. It is stated that therefore they went to the police station and PW-2 lodged the report. She has stated that her statement was recorded by the Magistrate under Section 164 of the Cr.P.C. Her statement under Section 164 of the Cr.P.C. is at Exh. 39. It was recorded on 28.11.2019. PW-4 reiterated the incident before the learned Magistrate. Her evidence before the Court is consistent with her statement recorded under Section 164 of the Cr.P.C.
222.Cri.Apeal 173.2023.judge.odt 13
11. PW-4 was subjected to searching cross-examination. PW-4 has not denied the location of the pan shop of the appellant. She has stated that the victim had gone to the shop from the inside door of her house. She has stated that the wall of her house had collapsed on the side of the pan stall and therefore, from her house, she could see the major part of the shop. She has denied the suggestion that the cot could be seen from her house. She has admitted that the appellant has grandchildren and mostly they play around the pan stall. She has stated that at the time of the incident, the pan stall was open. She has further admitted that the land, where the pan stall is constructed, belongs to one person from Nagpur. It is suggested to her that she wanted to purchase this land, but the appellant did not allow her to purchase it. The cross-examiner put the suggestions to PW-04 consistent with the defence of the appellant. PW-4 has denied all the suggestions. As stated earlier, the case of the prosecution revolves around the evidence of PW-4. PW-4 is therefore the star witness. The victim girl was not able to communicate even in sign language. The
222.Cri.Apeal 173.2023.judge.odt 14 evidence of PW-4 has been subjected to minute scrutiny by the learned Judge. The learned Judge has found the same credible and trustworthy. I have gone through her evidence carefully. On careful perusal of her evidence I do not see any reason to discard and disbelieve the account of the incident narrated by her. It is to be noted that PW-4 had no reason to falsely implicate the appellant. The victim girl was given in her custody by her grandmother. The visit of the victim girl to the pan stall to purchase the chocolate was natural. The incident occurred during the daytime, between 1:30 p.m. and 2:00 p.m. The victim girl was given in the custody of PW-4 by her grandmother. Therefore, it was her duty to look after the girl. The victim girl is deaf and dumb. The PW-4 was therefore required to be extra careful and cautious. The presence of PW- 4 at her house has not been denied and challenged. PW-4 could not see the victim girl for 20-25 minutes and therefore, she went to the shop and there she saw the appellant indulging in a wrongful act with the victim. PW-4 has not exaggerated and embellished the incident. She has nowhere stated that the
222.Cri.Apeal 173.2023.judge.odt 15 appellant had removed her clothes. She has stated that after partially removing the frock of the victim, the appellant was kissing on her stomach. PW-4, if wanted to falsely implicate the appellant, could have exaggerated the incident. I do not see any reason to discard and disbelieve the evidence of PW-4.
12. PW-2 Jyoti Pathade is the mother of the victim girl. Her evidence is not direct evidence. The incident occurred with the victim was narrated to her by PW-4. The appellant is their distant relative. The conduct of the informant is consistent. When she was apprised about the incident by PW-4, after the arrival of her husband, they went to the house of the appellant to make inquiry. The appellant denied the incident. The appellant quarrelled with them. Thereafter, they went to the police station. PW-2 has reiterated the incident as narrated by PW-4. She was also subjected to searching cross- examination. She has admitted that the owner of the land, who is residing at Nagpur, after the occurrence of this incident, gifted the land to village Gram Panchayat. She has denied the
222.Cri.Apeal 173.2023.judge.odt 16 suggestion that PW-4 wanted to purchase the said land. She has admitted that there was a latrine by the side of the pan stall. She has denied the suggestion that the family members of the PW-4 would use that latrine for the last 8-9 years and 15 days prior to the incident they were not allowed to use the same by the appellant. She has admitted that around the shop there are other houses. She has stated that it was a Diwali holiday period and the children from the locality would play in front of the shop. The children would buy chocolate etc. from the shop. She has admitted that, along with the appellant, his wife, son and daughter-in-law with the grandchildren are residing. She has stated that from the front side, one can see the shop. The customers regularly visit the said shop. Perusal of her cross- examination would show that she did not exaggerate the incident. Some of the admissions given by her in her cross- examination indicate that she did not hide anything from the Court. Her evidence is natural. Her statement under Section 164 of the Cr.P.C. was recorded. It is at Exh. 30. In her statement, before the Magistrate, she has reiterated the incident
222.Cri.Apeal 173.2023.judge.odt 17 narrated to her by the PW-4. In her evidence, she has categorically stated that PW-4 told her that after partially removing the clothes of the victim girl, the appellant was kissing on her stomach. She has not exaggerated the incident. It is to be noted that PW-4 and PW-2, being the relatives of the appellant, had no reason to falsely implicate him. The evidence of enmity sought to be brought on record through two defence witnesses is not believable. PW-2 and PW-4 would not have involved the innocent deaf and dumb girl in such an ugly incident. They could have invented any other story to falsely implicate the appellant if they wanted. I do not see any reason to discard and disbelieve this evidence.
13. It is submitted that the occurrence of the incident in the manner stated by PW-4 and at the place, is not at all probable. I have gone through the panchanama. I have gone through the evidence of the panch witness. The sketch of the pan stall has been drawn. It is part of the panchanama. The photographs of the pan stall taken at the time of drawing
222.Cri.Apeal 173.2023.judge.odt 18 panchanama are on record. The learned Advocate took me through the photographs. It is seen that on the road side there is an entry to the pan stall. But, at the entry there is a counter. The pan stall is facing the eastern side. The house of PW-4 is on the southern side. The photographs show that there is a door to the pan stall on the southern side, as well. The wall of the house of PW-4 on that door side has collapsed and from this door one can see a part of the shop. The cot is towards the northern side wall of the shop. The cot cannot be seen by the person walking through the road. One can see the cot by standing in front of the counter. The cot is in an east-west direction near the northern wall. Perusal of the photographs would show that the foundation of the shop is elevated from the road. One has to stand on the footpath in front of the counter to buy the articles. It is not the defence of the appellant put either to PW-4 or PW-2 that at that time his family members were very much present in the shop. In my view, therefore, the submission made to demonstrate that the occurrence of the incident was not probable at the spot during
222.Cri.Apeal 173.2023.judge.odt 19 the daytime cannot be accepted. In this view of the matter, I conclude that on the point of occurrence of the incident I do not see any reason to discard and disbelieve the evidence of PW-4 and PW-2.
14. There was no delay in lodging the report. The prompt lodging of the report avoids the possibility of exaggeration and embellishment of the incident. The conduct of PW-2 and PW-4 is natural and consistent. The victim girl, being deaf and dumb, could not depose before the Court. The learned Judge even after recording the evidence of PW-5, the special teacher, summoned the victim girl to satisfy himself about the condition of the victim girl. The learned Judge has recorded in the proceeding that the victim girl was not competent to depose before the Court. The victim was not able to understand the sign language. She was simply moving her hands and smiling after being questioned through sign language. In my view, therefore, the submission that the evidence of the victim was deliberately suppressed from the
222.Cri.Apeal 173.2023.judge.odt 20 Court cannot be accepted. The investigating officer, immediately after lodging the report, summoned PW-5 for recording the statement of the victim girl. PW-5 has deposed that he made efforts to communicate with the victim girl. The victim girl was not able to understand the sign language. In my view, on this count also there is no substance in the submission.
15. The victim on the date of the incident was seven and a half years old. According to PW-2, the birth date of the victim is 09.06.2012. PW-3 Roshan Gade has been examined to prove the birth date of the victim girl. PW-3 is the Registrar, Birth and Death, attached to Nagar Parishad, Morshi. He has produced the original birth entry register. He has also produced the certified extract of the entry from the birth register. He has stated that the birth date of the victim girl recorded in the register is 09.06.2012. The entry from the register is at Exh. 35. The certified copy of the birth register entry was collected by the investigating officer during the investigation. The birth certificate of the victim produced by
222.Cri.Apeal 173.2023.judge.odt 21 PW-3 is at Exh. 37. Perusal of the oral and documentary evidence is sufficient to prove that on the date of the incident, the victim was seven and a half years old. The victim was a child as defined under Section 2(1)(d) of the POCSO Act.
16. The next important question is with regard to the offence made out against the appellant. The learned Judge has held the appellant guilty of the offence punishable under Section 6 read with Section 18 of the POCSO Act as well as under Sections 376(2)(j) and 376-AB read with Section 511 of the IPC. In my view, the evidence on record is not sufficient to prove the attempt to commit rape. On the basis of the evidence, the offence made out against the accused/appellant would be under Section 9(m) punishable under Section 10 of the POCSO Act and under Section 354(A)(1)(i) of the IPC. PW-4 has stated that when she went to shop, she found that the clothes of the victim had been partially removed. The appellant had not removed his clothes. PW-4 found that he was kissing on her stomach. It is not the case of the PW-4 that she found
222.Cri.Apeal 173.2023.judge.odt 22 the appellant indulging in an attempt to commit penetrative sexual assault on the victim. In view of this statement, the offence proved against the appellant would be an aggravated sexual assault under Section 9(m) of the POCSO Act. The victim on the date of the incident was below 12 years of age. In the backdrop of the evidence available on record, I conclude that the act proved against the appellant would constitute an offence under Section 354(A)(1)(i) of the IPC. The punishment provided under Section 10 of the POCSO Act is greater than the punishment provided under Section 354-A of the IPC. In view of the provision of Section 42 of the POCSO Act the appellant cannot be sentenced on both counts. The appellant has to be punished for the offence which provides a greater sentence. In this case, the minimum sentence provided under Section 10 is less than five years but which may extend to seven years. The learned Judge has awarded the sentence of 10 years. In my view, this part of the finding needs to be corrected.
17. The learned Advocate for the appellant submitted
222.Cri.Apeal 173.2023.judge.odt 23 that the appellant is around 71 years of age. So far he has undergone 28 months sentence. It is therefore submitted that the minimum sentence prescribed under Section 10 may be awarded. Learned Advocate submitted that considering his age and the gravity of the proved offence five years sentence would meet the ends of justice.
18. The learned APP submitted that the appellant, despite being a distant grandfather of the victim girl, who is deaf and dumb, has indulged in such a serious crime. It is a crime against society. It is submitted that therefore maximum punishment deserves to be awarded. He does not deserve leniency. I have bestowed thoughtful consideration to the submission. After considering the facts and circumstances, in my view, the substantive sentence of 5 years would meet the ends of justice. Considering the age of the appellant, it would be proportionate to the gravity of the crime.
19. Accordingly, the criminal appeal is partly allowed.
222.Cri.Apeal 173.2023.judge.odt 24
20. The judgment and order of conviction and sentence of the appellant/accused- Bhimraoji S/o. Manikraoji Dhole dated 17.02.2023 is modified.
21. The accused/appellant- Bhimraoji S/o. Manikraoji Dhole is acquitted of the offences punishable under Section 6 read with Section 18 of the Protection of Children From Sexual Offences Act, 2012 and Sections 376 2(j) and 376-AB read with Section 511of the Indian Penal Code.
22. The appellant/ accused- Bhimraoji S/o. Manikraoji Dhole is convicted for the offences punishable under Section 354-A(1)(i) of the Indian Penal Code and under Section 9(m) punishable under Section 10 of the POCSO Act.
23. The accused/appellant- Bhimraoji S/o. Manikraoji Dhole is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- and in default of payment of fine to suffer simple imprisonment for six months for the
222.Cri.Apeal 173.2023.judge.odt 25 offence under Section 9(m) punishable under Section 10 of the POCSO Act.
24. No separate sentence is awarded for the offence punishable under Section 354-A(1)(i) of the Indian Penal Code.
25. The criminal appeal stand disposed of, accordingly. Pending application, if any, also stands disposed of.
(G. A. SANAP, J.) Namrata Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 09/01/2025 17:49:57