Bombay High Court
Akash Chandrakant Kotak vs The State Of Maharashtra on 3 October, 2019
Equivalent citations: AIRONLINE 2019 BOM 1900
Author: A.M.Badar
Bench: A.M.Badar
(502)APEALNo.15432018(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1543 OF 2018
Mr.Akash Chandrakant Kotak
Age : 19 years, Occu. : Education,
R/at : Mount View Building,
1st Floor, Nearby Maharashtra
Machinery Centre, Shiv Tekdi,
Kisan Nagar No.3, Wagle Estate,
Thane.
(At present lodged in Taloja
Central Jail) ... Appellant
Versus
The State of Maharashtra
(Through Shrinagar Police Station)
& Anr. ... Respondents
.....
Ms.Shraddha Sawant, Appointed Advocate for the Appellant.
Mr.A.R.Kapadnis, APP for the Respondent No.1/State.
Ms.Simantini Mohite, Appointed Amicus Curiae for the
Respondent No.2/Victim.
....
CORAM : A.M.BADAR J.
DATED : RESERVED ON 1st OCTOBER 2019
PRONOUNCED ON 3rd OCTOBER 2019.
Gaikwad RD 1/16
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(502)APEALNo.15432018(J).odt
ORAL JUDGMENT :
1 By this appeal, the appellant/convicted accused is challenging the Judgment and Order dated 28/02/2018 passed by the learned Designated Court under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act' for the sake of brevity) and Additional Sessions Judge, Thane in Sessions Case No.175 of 2017 thereby convicting the appellant/convicted accused of the offences punishable under Sections 8,10 and 12 of the POCSO Act and under Sections 354(A) (1)(i)(ii)(iii), 354(B) and 354(D) of the Indian Penal Code. For the offence punishable under Section 10 of the POCSO Act, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for five years apart from a direction to pay fine of Rs.1,000/- and in default he is directed to suffer simple imprisonment for fifteen days. For the offence punishable under Section 12 of the POCSO Act, he is sentenced to suffer rigorous imprisonment for three years apart from a direction to pay fine of Rs.1,000/- and in default to undergo simple imprisonment for fifteen days. No separate sentence came to be awarded to the appellant/convicted accused for the offences punishable under Sections 354A (i)(ii)(iii), 354B and 354D of the Indian Penal Code as well as for the offence punishable under Section 8 of the POCSO Act.
2 Facts in brief leading to the prosecution and resultant Gaikwad RD 2/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt conviction of the appellant/convicted accused can be summarized thus :
(a) The victim of the crime in question, who is examined as P.W.No.1, was a minor female child below 18 years of age.
The appellant/convicted accused is her biological brother. Their father used to work as watchman, whereas mother Naina, who is examined as D.W.No.3 used to do catering work. The appellant/convicted accused was kept at the hostel for some time and he remained to stay at hostel till he completed his study up to 7th Standard.
(b) According to the prosecution case, the appellant/convicted accused used to commit sexual assault on his sister i.e. the victim female child/P.W.No.1 from time to time when they used to stay at Sakrabai Chawl, Jagdamba Niwas and Mount View Building at Thane. He used to touch her breasts, back and hands and used to establish physical contact with her with sexual intent. He used to cause sexual harassment of the victim female child/P.W.No.1 by showing pornographic film to her and by flashing. These incidents took place since the victim female child/P.W.No.1 was 12 years of age. She used to disclose the same to her parents as well as her friend P.W.No.3 Sejal Jethwa as well as her neighbourer P.W.No.5 Santosh Gaikwad. Though parents of the victim female child/P.W.No.1 used to get angry with the appellant/convicted accused, there Gaikwad RD 3/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt was no improvement in his behaviour. He used to take advantage of absence of his mother for sexually assaulting his sister.
(c) The victim female child/P.W.No.1, in the year 2017 was attending the Computer Coaching Class conducted by Alert Citizen Trust, Mulund of which P.W.No.4 Asha Khotak was Secretary. She used to impart training to the students. One Ajit Jobanputra was the Chairman of the said Trust. During the course of computer training, P.W.No.4 Asha Khotak found the victim female child/P.W.No.1 under tension. Upon being asked, the victim female child/P.W.No.1 disclosed about the incidents of sexual harassment and sexual assault caused to her by her own brother. P.W.No.4 Asha Khotak then lodged report (Exhibit Nos.16 and 16A) in respect of the incidents with Police Station, Shrinagar, Thane on 09/06/2017. Accordingly, Crime No.71 of 2017 came to be registered against the appellant/convicted accused. He came to be arrested.
(d) Routine investigation followed. The victim female child/ P.W.No.1 was sent for medical examination. Statements of witnesses came to be recorded and ultimately, the appellant/convicted accused came to be charge-sheeted.
Gaikwad RD 4/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 :::(502)APEALNo.15432018(J).odt
(e) The learned trial Court framed and explained the charge for the offences punishable under Sections 8,10 and 12 of the POCSO Act and under Sections 354A(i)(ii)(iii), 354B and 354D of the Indian Penal Code to the appellant/accused. He pleaded not guilty and claimed trial.
(f) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all six witnesses. The victim female child is examined as P.W.No.1. Dr.Pratiksha Pawar, Medical Officer, Civil Hospital, Thane came to be examined as P.W.No.2. Sejal Jethwa - friend of the victim female child/P.W.No.1 is examined as P.W.No.3. First Informant Asha Khotak is examined as P.W.No.4. Santosh Gaikwad - neighbourer of the victim female child/P.W.No.1 is examined as P.W.No.5. Investigating Officer Sulabha Patil, Senior Police Inspector of Shrinagar Police Station is examined as P.W.No.6.
(g) Defence of the appellant/convicted accused was that of total denial. According to him, he is falsely implicated in the crime in question at the instigation of P.W.No.4 Asha Khotak. Said Asha Kotak wants to change the college of the victim female child/P.W.No.1 and desires her to be admitted in the Arts College. The appellant/convicted accused further contended that by doing the job, he was giving Rs.3,000/- per month for education of his sister i.e. the victim female child/P.W.No.1. It is defence of the appellant/convicted accused that as he used Gaikwad RD 5/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt to be in the hostel, there was no ground of sexual assault or harassment of his sister by him. By entering in defence, the appellant/convicted accused has examined his friends namely Ronik Bharadwaj and Shreyans Panchal as D.W.No.1 and D.W.No.2 respectively. He examined his mother Naina as D.W.No.3.
(h) After hearing the parties the learned trial Court was pleased to convict the appellant/accused and to sentence him as indicated in the opening paragraph of this Judgment.
3 I heard Ms.Sawant, the learned appointed Advocate representing the appellant/accused at the cost of the State at sufficient length of time. She argued that evidence of P.W.No.4 Asha Khotak and that of P.W.No.3 Sejal Jethwa is contradictory. It is further argued that the appellant/convicted accused is falsely implicated at the instance of Ajit Jobanputra and P.W.No.4 Asha Khotak. Evidence of the victim female child/P.W.No.1 is not reliable. Therefore, the appellant/convicted accused is entitled for acquittal.
4 As against this, the learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction and resultant sentence.
5 I have carefully considered the submissions so Gaikwad RD 6/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt advanced and also perused the Record and Proceedings including the oral as well as documentary evidence.
6 In the case in hand, the victim of the crime in question, even at the time of entering in the witness box, was 17 years of age as stated by her. Her date of birth is brought on record by cross-examination of her mother D.W.No.3 Naina. She stated that the victim female child/P.W.No.1 was born to her on 13/11/1999. Similar is the evidence of the victim female child/P.W.No.1, who stated that her date of birth is 13/11/1999. This evidence is not disputed by the defence in any manner. The incidents in question, according to the prosecution case, took place five years prior to lodging of the FIR dated 09/06/2017. As such, the victim female child/P.W.No.1 was a child as defined by Section 2(d) of the POCSO Act at the time of commission of alleged offence against her.
7 Now, let us examine whether evidence of the victim female child/P.W.No.1 is trustworthy and reliable in order to base conviction. There is no elements of tutoring to the victim female child/P.W.No.1 as her own mother D.W.No.3 Naina has deposed in favour of her brother i.e. the appellant/convicted accused. Let us see what the victim states about the incidents which used to take place in her house when she used to be in company of the appellant/convicted accused. As stated by the victim female child/ Gaikwad RD 7/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt P.W.No.1, who was 12 years old, when she was in 6 th Standard, at that time, the appellant/convicted accused used to touch her breasts and used to sleep near her. While sleeping with her, he used to untie her ghagara. The victim female child/P.W.No.1 further stated that on one day, the appellant/convicted accused tried to remove her clothes, touched her breasts, moved his hands on her body. He removed his clothes and took out his penis and shook it in her presence. This incident, as per the version of the victim female child/P.W.No.1, took place when they were residing at Jagdamba Niwas, Thane. The victim female child/P.W.No.1 testified that when once she was in kitchen, the appellant/ convicted accused touched her, took out his penis and shook it in her presence. He then pressed her breasts. The victim female child/P.W.No.1 continued in stating the traumatic incidents which were taking place at her residence by disclosing that on one occasion her mother had gone to their native place. At that time, at about 1.00 a.m., the appellant/convicted accused came. She had already called her friend P.W.No.3 Sejal Jethwa to stay with her. The appellant/convicted accused then left the house and returned in the morning when P.W.No.3 Sejal Jethwa was not there. At that time, as stated by the victim female child/P.W.No.1, the appellant/convicted accused moved his hands on her body and, therefore, she quarreled with him. Then, he brought a knife and cut veins of his wrist. She told this fact to her neighbouring uncle. Said uncle questioned the appellant/convicted accused, but Gaikwad RD 8/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt the appellant/ convicted accused told him that as there is no milk in the house, he cut veins of his wrist. The victim female child/P.W.No.1 also stated that the appellant/convicted accused has kicked her breasts and due to pains suffered by her, her mother had taken her to the clinic of Dr.Kothari.
8 As per version of the victim female child/P.W.No.1, she used to disclose these incidents to her parents and her parents used to get angry with the appellant/convicted accused. However, the appellant/convicted accused did not budge. She clarified that though the appellant/convicted accused was staying in the hostel previously, he used to come to the house for causing her sexual harassment.
9 The victim female child/P.W.No.1 was cross-examined at length. It was attempted to demonstrate that the appellant/ convicted accused used to reside in the hostel and, as such, he had no occasion to trouble her. However, no positive material can be brought on record to substantiate this contention. It was suggested to the victim female child/P.W.No.1 that one Ajit Jobanputra intends to put her in some illegal profession and the appellant/convicted accused is against Ajit Jobanputra. It is further suggested to the victim female child/P.W.No.1 that said Ajit Jobanputra used to harass her sexually. These suggestions are denied by the victim female child/P.W.No.1 and she stated that she is not concerned with said Ajit Jobanputra. At this juncture, it is Gaikwad RD 9/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt relevant to note that if really Ajit Jobanputra making sexual advances against the victim female child/P.W.No.1 and was intending to drag her in some illegal profession, the victim female child/P.W.No.1 would not have made complaint against her own brother. Rather she would have lodged the FIR or made complaint against Ajit Jobanputra to her parents. She had no cause or reason to falsely implicate the appellant/convicted accused when allegedly she was harassed by Ajit Jobanputra. Thus, cross- examination of the victim female child/P.W.No.1 is not bringing on record any material to infer possibility of false implication of the appellant/convicted accused by her.
10 P.W.No.3 Sejal Jethwa is close friend of the victim female child/P.W.No.1. Apart from being her neighbourer, she is classmate of the victim female child/P.W.No.1 from 8th Standard. It is in evidence of P.W.No.3 Sejal Jethwa that the victim female child/P.W.No.1 from time to time used to tell her that her brother i.e. the appellant/convicted accused used to touch her private part and breasts. P.W.No.3 Sejal Jethwa stated that the victim female child/P.W.No.1 disclosed to her that the appellant/convicted accused slept near her and used to press her breasts and used to remove her clothes and used to show obscene clips to her. P.W.No.3 Sejal Jethwa has also deposed about the incident when she went to sleep at the house of the victim female child/P.W.No.1 due to absence of mother of the victim female child/P.W.No.1. As per version of P.W.No.3 Sejal Jethwa, in night, the appellant/ Gaikwad RD 10/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt convicted accused returned at 1.00 a.m. and knocked the door. The victim female child/P.W.No.1 refused to open it. However, at the request of P.W.No.5 Santosh Gaikwad, the victim female child/P.W.No.1 opened the door. P.W.No.3 Sejal Jethwa testified that she left the house of the victim female child/P.W.No.1 at 7.30 a.m. At about 11.00 a.m., the victim female child/P.W.No.1 disclosed her that the appellant/convicted accused returned after she left, pressed her breasts and cut veins of his writs as she refused to cooperate.
11 As per version of P.W.No.3 Sejal Jethwa, thereafter the family of the victim female child/P.W.No.1 shifted their residence from Jagdamba Niwas to Mount Valley Building. However, thereafter also the victim female child/P.W.No.1 told her that the appellant/convicted accused touched her and kicked her breasts.
12 Though, it was suggested to P.W.No.3 Sejal Jethwa in the cross-examination that the appellant/convicted accused used to stay in the hostel, P.W.No.3 Sejal Jethwa had stated that she used to see him at the house of the victim female child/P.W.No.1. She also stated in her cross-examination that she used to disclose these facts to her parents and, therefore her parents stopped her from going to the house of the victim female child/P.W.No.1. P.W.No.3 Sejal Jethwa admitted that still she continued to visit the victim female child/P.W.No.1.
Gaikwad RD 11/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 :::(502)APEALNo.15432018(J).odt 13 P.W.No.3 Sejal Jethwa is a close friend of the victim female child/P.W.No.1. She is not supposed to have any animosity against the appellant/convicted accused, who happens to be a real brother of her close friend. Cross-examination of P.W.No.3 Sejal Jethwa does not indicate any reason with her to tell a lie against the appellant/convicted accused. As such, evidence of P.W.No.3 Sejal Jethwa is reliable and trustworthy. With this evidence, she corroborated the version of the victim female child/P.W.No.1.
14 P.W.No.3 Sejal Jethwa is used to reside in the neighbourhood of the victim female child/P.W.No.1 when she was staying at the Jagdamba Niwas. This witness has also deposed that when mother of the victim female child/P.W.No.1 had gone to the native place, the victim female child/P.W.No.1 had called her for sleeping with her. At that time, as per version of P.W.No.5 Santosh Gaikwad, the appellant/convicted accused came at midnight, but the victim female child/P.W.No.1 did not open the door. On his request, she opened the door and gave food to the appellant/convicted accused. With this evidence, P.W.No.5 Santosh Gaikwad is corroborating the version of the victim female child/P.W.No.1 as well as that of P.W.No.3 Sejal Jethwa. P.W.No.5 Santosh Gaikwad has also deposed that the victim female child/P.W.No.1 used to tell him that the appellant/convicted accused used to touch her body. Nothing is brought on record to show that this neighbourer had any reason to falsely implicate the appellant/convicted accused in the subject crime.
Gaikwad RD 12/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 :::(502)APEALNo.15432018(J).odt 15 The victim female child/P.W.No.1 used to attend the Computer Coaching Class run by Alert Citizens Trust of Mulund. P.W.No.4 Asha Khotak used to impart the training. She is Secretary of the said Trust. P.W.No.4 Asha Khotak has stated before the Court that she noticed that the victim female child/P.W.No.1 used to be in tension. Hence, she questioned the victim female child/P.W.No.1 and then, the victim female child/P.W.No.1 divulged the details of sexual assault and sexual harassment to her by her own brother i.e. the appellant/convicted accused. Hence, according to P.W.No.4 Asha Khotak, she approached Police Station, Shrinagar, Thane and lodged report (Exhibit Nos.16 and 16A) against the appellant/convicted accused on 09/06/2017. To this witness also questions were put by the defence that the appellant/ convicted accused used to stay in the hostel and, as such, harassment are improbable. However, P.W.No.4 Asha Khotak had made it clear that the appellant/convicted accused used to return to his house. P.W.No.4 Asha Khotak stated that till the victim female child/P.W.No.1 attained the age of five years, her mother used to keep her at the house of Bhagwati Jobanputra and that too on payment of money. This fact is not of any assistance to the defence.
16 Now, let us consider what defence witnesses are stating. D.W.No.1 Ronik and D.W.No.2 Shreyans are friends of the appellant/convicted accused. They have stated that sister of the appellant/convicted accused never made any complaint to them Gaikwad RD 13/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt against the appellant/convicted accused. Both these witnesses are young boys and it is not expected of the victim female child/P.W.No.1 to disclose details of incidents of sexual assault on her by her own brother to these witnesses, who were close friends of her brother. D.W.No.2 Shreyans had stated that he used to visit the house of the appellant/convicted accused, but he had not noticed his friend i.e. the appellant/convicted accused causing sexual harassment to the victim female child/P.W.No.1. This evidence does not lead me anywhere. It is not expected that a young brother would cause sexual harassment and sexual assault of his sister in presence of his friend.
17 D.W.No.3 Naina, who happens to be biological mother of the appellant/convicted accused and the victim female child/P.W.No.1 has stated in her evidence that her daughter has filed false complaint against her son only because of instigation of P.W.No.4 Asha Khotak. She stated that her son has not done anything to her daughter. She further stated that P.W.No.4 Asha Khotak is playing politics and her daughter is not safe at the house of Ajit Jobanputra, P.W.No.4 Asha Khotak or Bhagwati Jobanputra. She further deposed that her daughter had never reported her about the incidents nor her neighbourer.
18 In her cross-examination, D.W.No.3 Naina stated that she had kept the appellant/convicted accused at the hostel till he completed his studies up to 7th Standard. She further stated that Gaikwad RD 14/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 ::: (502)APEALNo.15432018(J).odt her son used to come to the house on holidays. She admitted that she had good relations with the victim female child/P.W.No.1 till lodging of the FIR of this case.
19 D.W.No.3 Naina had not claimed that her daughter i.e. the victim female child/P.W.No.1 never complained about misbehaviour of her brother to her. She has not stated any reason with the victim female child/P.W.No.1 for deposing a lie against her brother. Omnibus statement that P.W.No.4 Asha Khotak is playing politics is of no assistance to the defence particularly when the prosecuting party is the sister and the accused is the real brother. Thus, with the defence evidence of mother, the appellant/ convicted accused could not create any dent in the prosecution case.
20 Thus, for the reasons stated in the foregoing paragraphs, the prosecution has established that the appellant/ convicted accused being brother of the victim female child/P.W.No.1 had with sexual intent touched her private part, involving physical contact with the victim female child/P.W.No.1. He had caused sexual harassment of the victim female child/P.W.No.1 by outraging her modesty and for that purpose, he had assaulted and used criminal force against her. Thus, no infirmity can be found in the impugned Judgment and Order of conviction and resultant sentence. Therefore, the Order :
Gaikwad RD 15/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 :::(502)APEALNo.15432018(J).odt ORDER The Appeal is dismissed.
(A.M.BADAR, J.) Gaikwad RD 16/16 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 04/10/2019 23:00:45 :::