Bombay High Court
Pramod Mahadev Tayde vs State Of Mah. Through The Station ... on 7 January, 2019
Author: V.M. Deshpande
Bench: V.M. Deshpande
Judgment
apeal299.18 26
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.299 OF 2018
Shri Pramod Mahadev Tayde,
Aged about 40 years, Occupation Labour,
R/o Kathora (Bu.),
Taluka and District Amravati. ..... Appellant.
:: VERSUS ::
The State of Maharashtra,
(Through The Station Officer,
Police Station Nandgaonpeth),
Taluka and District Amravati. ..... Respondent.
===================================
Shri V.P.Mohod, Counsel for the Appellant
(Appointed).
Mrs. S.V.Kolhe, Additional Public Prosecutor for the
Respondent/State.
===================================
CORAM : V.M. DESHPANDE, J.
DATE : JANUARY 7, 2019.
ORAL JUDGMENT
1. By the present appeal, the appellant is challenging judgment and order of conviction dated 4.10.2017 passed by learned 4th Additional Sessions Judge, Amravati in Special (POCSO) Case No.108/2016.
2. By the impugned judgment and order of conviction, .....2/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 2 the appellant is convicted for offence punishable under Section 376(2)(f)(i) of the Indian Penal Code and is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- and in default of payment of the fine amount to suffer simple imprisonment for 6 months.
He is also convicted for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act") and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- and in default of payment of the fine amount to suffer simple imprisonment for 6 months.
He is also convicted for offence punishable under Section 342 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for 3 months and to pay a fine of Rs.500/- and in default of payment of the fine amount to suffer simple imprisonment for 1 month.
He is also convicted for offence punishable under Section 506 of the Indian Penal Code and is sentenced to suffer .....3/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 3 rigorous imprisonment for 6 months and to pay a fine of Rs.500/- and in default of payment of the fine amount to suffer simple imprisonment for 2 months.
Learned Judge below directed that all the sentences shall run concurrently and directed that the appellant is entitled for set-off under Section 428 of the Code of Criminal Procedure since the appellant is in jail since 12.2.2016.
3. The case of the prosecution is as under:
Police Sub Inspector Nirmala Krushna Bhoi (PW9) attached to Frezarpura Police Station received a wireless message about an offence of child sexual harassment. Accordingly, she had been to Nandgaonpeth Police Station where she recorded oral report lodged by Venutai Pramod Tayde (PW2).
4. Complainant Venutai (PW2) reported that her marriage took place about 17-18 years ago with Pramod, the appellant. From the wedlock, she is having 2 daughters. Elder daughter is taking education in 11th Std. and younger daughter, the .....4/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 4 victim aged about 14 years, studies in 9 th Std.. Pramod, the appellant is habituated to vices like drinking liquor and smoking ganja and he spends all monies earned by him for the same. Therefore, Venutai used to do labour work and used to earn money for education of her two daughters. She used to leave house at 7:00 0'clock in the morning and used to return at 2:30 in the noon. According to the First Information Report, elder daughter used to go to college at 7:30 in the morning and used to return at 12:00 in the noon. Whereas, the victim used to go to school at 11:00 O'clock in the morning and used to return at 5:30 in the evening.
5. According to the First Information Report (Exhibit 12), on 11.2.2016 as usual the first informant left for her work place. That time, her daughters and her husband were present. At 2:30 in the noon, when she came from her work, the appellant was sleeping and her elder daughter was present in the house. The victim came at 6:15 in the evening from school. At 8:00 O'clock in the night, the appellant left house and at 9:00 O'clock the victim came to the first informant and sought permission to disclose an event. On getting the permission from the first informant, it was .....5/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 5 disclosed by the victim that after when her elder sister went for her college at 8:00 O'clock in the morning, the appellant kept water on hearth for bath and called the victim inside the house. He closed door and demanded that the victim should remove her clothes. The said was resisted by the victim. However, by force, the clothes were removed and by force had sexual intercourse with her. It was also stated in the oral report that the victim narrated to her mother that the appellant extended threats and asked her to take bath and wash her clothes and, thereafter, she went to her school.
6. On the basis of the oral report, Police Sub Inspector Nirmala Boi registered the offence vide Crime No.40/2016 under Sections 376(2)(f)(i), 506, and 342 of the Indian Penal Code and under Section 6 of the POCSO Act and started investigation. Statement of the victim was recorded. It was videography by Assistant Police Inspector Kanchan Padmakar Pande (PW8). Hash value of the same was also drawn. Investigating Officer Nirmala Boi also referred the victim for her medical examination with LPC Ashwini. Under seizure panchnama Exhibit 45, the Investigating Officer seized required sealed samples of the victim from LPC .....6/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 6 Ashwini which were collected by her from Medical Officer i.e. blood sample, nail sample, pubic hair, vaginal swab, vaginal slide (2), ADT. She also carried spot panchnama in presence of two panchas. The spot was shown by the victim herself. From the spot, the Investigating Officer seized a quilt and clothes of the victim. After completion of other usual investigation, chargesheet was filed.
7. Learned Judge below framed charge against the appellant. The appellant denied the charge and claimed for his trial.
8. In order to bring home the guilt of the appellant, the prosecution examined in all 10 witnesses. The appellant entered into the witness box and examined himself as DW1. After a full fledged Trial, learned Judge below passed the judgment, impugned in the appeal and inflicted various sentences as mentioned in the opening paragraph of this judgment.
9. I have heard learned counsel Shri V.P.Mohod appointed through the High Court Legal Services Sub Committee at .....7/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 7 Nagpur to represent the appellant and learned Additional Public Prosecutor Mrs. S.V.Kolhe for the respondent/State. Both learned counsel took me through relevant documents and record and proceedings. They vehemently submitted in respect of their respective briefs for grant of respective reliefs in their favour.
10. The prosecution examined following witnesses:
(i) The victim as PW1;
(ii) Venutai as PW2 who lodged oral report (Exhibit
12) on the basis of which printed First Information Report (Exhibit 13) was prepared;
(iii) Dr. Prashant Samrat Kalpande as PW3 who examined the victim and proved medical certificate Exhibit 18;
(iv) Sachin Kailashrao Sabale as PW4, a panch for spot panchnama (Exhibit 22), seizure of the quilt (Exhibit
25), and seizure of clothes of the victim under seizure panchnama (Exhibit 24);
.....8/-
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(v) Sagar Anantrao Pandit as PW5, a police constable who carried Muddemal articles to Chemical Analyzer, Amravati and deposited the same with the Chemical Analyzer;
(vi) Dr. Tarasing Parashram Ade as PW6, who conducted medical examination of the accused and found that the accused is capable of sexual intercourse and there was no evidence of external injuries on his private part. The doctor proved medical certificate (Exhibit 34) of the appellant;
(vii) Dr. Fulchand Kayaji Jamkar as PW7, who proved OPD papers (Exhibit 36);
(viii) Kanchan Padmakar Pande as PW8, who conduced videography of recording of statement of the victim and hash value and proved the same;
(ix) Investigating Officer Nirmala Krushna Bhoi as PW9, and .....9/-
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(x) Dr. Ajay Damodhar Kadukar as PW10, who examined the victim, done sonography and found that the victim was not pregnant, and proved certificate Exhibit 50.
11. In the present case, the appellant is the natural father of the victim. Birth Certificate (Exhibit 42) issued by the registration authority shows date of birth of the victim as 5.9.2001. The appellant is not disputing the date of birth of the victim. According to the charge, on 12.2.2016 the appellant assaulted sexually upon his daughter. In view of the date of birth of the victim and the date of the sexual assault, it is clear that on the day of the incident, for which the appellant is charged, the victim was child within the meaning of the POCSO Act.
12. According to submission of learned counsel for the appellant and from line of cross-examination, defence of the appellant is that he is falsely implicated in the crime. According to the defence, since the appellant was habituated to drinking and smoking ganja, his family members were fed up and they have .....10/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 10 falsely implicated him in the crime.
13. Dr. Prashant Kalpande (PW3) was working as gynecologist at Irvin Hospital. On 12.2.2016, he received medical memo from Nandgaonpeth Police Station. As per the requisition (Exhibit 16), Investigating Officer asked as to whether the victim was sexually assaulted or not. The doctor after obtaining consent of the mother of the victim conducted medical examination. As per history recorded, the victim disclosed to the doctor that she was ravished by her father. Exhibits 17 and 18 are certificates issued by the doctor. As per Exhibit 17, the victim attended menarche at the age of 12 years and having regular menstruation history. Examination conducted by the gynecologist shows that there was no external injury whatsoever in nature. Similarly, pubic hairs were not matted. No discharge was found and no injury was on the private part. The doctor found old healed ruptured of hymen. According to the doctor, opinion of rape cannot be given.
This Court is mindful of the principle that evidence of the victim of sexual assault alone is sufficient to record conviction.
.....11/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 11 However, testimony should inspire confidence. If the testimony is not inspiring confidence, the Court should seek corroboration from other available evidence on record.
14. The victim is examined as PW1. According to the prosecution witnesses, the incident occurred only once i.e. on 12.2.2016. According to the victim's evidence, the appellant applied force for committing sexual intercourse.
In the present case, no injury on the minor girl's private part was noticed nor any injury was found on the private part of the appellant when he was medically examined by Dr. Tarasing Ade (PW6).
15. As per evidence of the victim (PW1) and Venutai (PW2), the appellant was habituated to vices. He used to spend all monies which he used to earn and used to demand money from Venutai. During course of cross-examination also the victim admitted that her father used to continuously demand money from her mother for drinking purposes. It is also admitted by the victim that due to the said activity and attitude of the father, they were .....12/-
::: Uploaded on - 09/01/2019 ::: Downloaded on - 11/01/2019 07:03:35 ::: Judgment apeal299.18 26 12 fed up. After these admissions, when a question was put to the victim that they were intending to put an end to this trouble was their desire, after keeping silence for much time, she did not reply the same. In my view, remaining silent for a considerable period of time and refusing to give an answer speaks volumes in favour of the appellant. The suggestions were also given to her mother in that behalf. However, those were denied by the mother.
16. Though Chemical Analyzer's Reports are not exhibited, since those are admissible in evidence, this Court has perused the same and the Chemical Analyzer's Reports do not support the prosecution case.
17. Since the victim avoided to give reply to the pointed question, this Court is required to attach much importance to the medical evidence as brought on record. The medical examinations of the victim and the appellant show that no injury on the minor girl's private part was noticed nor any injury was found on the private part of the appellant. Further, the doctor is also not sure about the commission of the rape.
.....13/-
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18. In that view of the matter, I am of the opinion that in order to get rid of the drunken father, possibility of he being implicated falsely is not completely ruled out. Therefore, benefit of doubt is required to be extended in favour of the appellant.
19. The aforesaid discussion leads me to pass following order:
ORDER
(i) The criminal appeal is allowed.
(ii) Judgment and order of conviction dated 4.10.2017 passed by learned 4th Additional Sessions Judge, Amravati in Special (POCSO) Case No.108/2016 is hereby quashed and set aside.
(iii) The appellant is acquitted of offences punishable under Sections 376(2)(f)(i), 342, and 506 of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012.
(iv) The appellant who is in jail shall be released forthwith, if not required in any other case.
(v) Fees payable to learned counsel Shri V.P.Mohod, who is .....14/-
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Judgment apeal299.18 26 14 appointed by the High Court Legal Services Sub Committee at Nagpur to represent the appellant, are quantified at Rs.5000/-.
JUDGE !! BRW !! ...../-
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