Bombay High Court
Suresh Prabhakar Dabhade (In Jail) vs State Of Maharashtra Thr. Police ... on 2 April, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.513.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 513/2018
Suresh Prabhakar Dabhade
Aged about 38 years,
R/o Malegaon, Tah.Malegaon
Dist. Washim. (Now in Central Jail at Amravati) ..APPELLANT
versus
The State of Maharashtra
Through P.S.O. PS Malegaon
Dist. Washim. .. RESPONDENT
...............................................................................................................................................
Mrs. Sonali Saware, Adv. (appointed) for appellant
Mr. M.J. Khan, Additional Public Prosecutor for respondent
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 2nd April, 2019
ORAL JUDGMENT:
1. Being aggrieved by the judgment and order dated 27.08.2015 in Spl. Sessions Trial No.22/2014 delivered by learned Additional Sessions Judge, Washim, convicting the appellant for the offence punishable under section 376 of the Indian Penal Code and Section 3(b) punishable u/s 4 & 8 of the Protection of Child from Sexual Offences Act (POCSO) . For the offence punishable u/s 376 IPC, the appellant was sentenced to suffer RI for seven years and fine of Rs. 500/- in default SI for one month; for offence punishable u/s 3(b) punishable u/s 4 of the POCSO Act, to suffer RI for seven years and fine of Rs. 500/- in default, SI for one month whereas, for offence punishable u/s 3(b) punishable u/s 8 of the POCSO Act, he was sentenced to suffer ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 2 RI for three years and a fine of Rs. 300/-, in default, to suffer SI for fifteen days. All the sentences were directed to be run concurrently.
2. Brief facts giving rise to the instant Appeal may be summarized as under:-
Complainant-Smt.Nanda Kishor Gaikwad, a resident of Malegaon Dist. Washim, was having two daughters. The victim was her younger daughter, studying in IV standard at the relevant point of time. The complainant was a labourer. On the date of incident,i.e.,15.1.2014 at about 10.30 am, the complainant along with her husband proceeded for her work and returned home at about 6.00 pm,. Her younger daughter , that is the victim informed her that at about 11.00 am when she went to the School's lavatory, the person by name Suresh Prabhakar Dabhade (appellant) who was the resident of same vicinity, jumped from the wall and came inside the lavatory. He gagged the victim's mouth, removed her knicker and inserted his finger in her private part. At that time, a lady, by name, Nanda Pakhale (PW7) who was working as a Cook in the school, arrived. As soon as the appellant saw her, he took to his heels. The complainant then proceeded to the Police Station and lodged her complaint (Exh.21). At the relevant time, PI Rameshwar Saudagar (PW6) was attached to Malegaon Police Station. ASI Ahir (PW5) telephonically informed him that one Nanda Pakhale attended the Police Station and lodged the complaint. On the basis of the said complaint, an offence was registered vide Crime No.7/2014. The police visited the place of incident and recorded the spot panchnama (Exh.38). The police arrested the accused. The statements of victim as well as other witnesses were ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 3 recorded. After completion of investigation, charge-sheet was filed in the Court of JMFC, Malegaon. The case was committed to the Court of Sessions. Charge was framed. The defence of the appellant was of total denial. The learned trial Judge after recording the evidence and hearing both sides, convicted the appellant as aforesaid. Hence, this Appeal.
3. I have heard Mrs.Sonali Savare, learned Advocate (appointed) for the appellant as well as Mr. M.J.Khan, learned APP for the respondent-State. With their able assistance, I have gone through the record and proceedings of the case. Learned Advocate for appellant vociferously argued that considering the stringent provisions under the POCSO Act, it is to be minutely viewed whether the prosecution has proved its case beyond reasonable doubt. It is submitted that the identity of the appellant has not been established by the prosecution beyond reasonable doubt. She further contended that even there is no medical evidence of the victim on record to support her ocular testimony. Similarly, PW7-Nanda Pakhale, who was the alleged eye witness to the incident, did not support the case of the prosecution. It was therefore submitted that the prosecution has not proved its case beyond reasonable doubt.
4. Per contra, learned APP vehemently argued that the learned trial Judge has considered the evidence led by the prosecution in its right perspective and has properly convicted the appellant. It was further submitted that even though there is no medical evidence on record, it is well-settled that the sole testimony of the victim ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 4 should be relied upon, if found to be trustworthy. Mr Khan submitted that the learned trial Judge has rightly convicted the appellant.
5. At the outset, it would be significant to note that defence has not seriously disputed that at the relevant time, the victim was aged about 9-years. No doubt, the testimony of PW4 Ranjana Shirsat, Headmistress of the school where the victim is studying in IV standard, shows the date of birth of the victim as 16.6.2003. PW4 produced the school register (Exh.28) in order to support her contention. Apparently, it is not clear from the testimony of PW4 as to on what basis the said entry has been taken in the school register. Leaving apart, it is not disputed by the defence that at the time of incident, the victim was below the age of 18-years.
6. In order to consider the rival contentions of both sides, it would be advantageous to go through the evidence led by the prosecution witnesses. The prosecution mainly relied upon the testimony of PW3-victim and PW2-Nanda Gaikwad, who is the complainant and mother of the victim. The testimony of PW3-victim shows that on the date of incident ie 15.1.2014, the victim went to the school. At about 11.00 am she went to the lavatory of the School, at that time, one person came there by jumping the wall. He gagged her mouth, removed her underpant and inserted his finger on the private part of the victim. That person dragged her upto the wall of the school. She deposed that in the meanwhile, Nandabai, who was working as Cook came to that place. The person seeing Nandabai fled away from that place. ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 :::
CRI.APPEAL.513.18 5
7. According to PW3, her medical examination was conducted in the Government Hospital at Washim. The victim identified the person in the court who was sitting behind the curtains, as a person who committed illl-act with her. She further deposed that there was paining in her private part. During the cross-examination improvements were pointed out in the testimony of the victim to the effect that the appellant dragged her upto the wall of the school and he fled away as Cook Nandabai came there. One more improvement was pointed out in her version about the fact of pain in her private part. On meticulous scrutiny of the testimony of the victim, it is noticed that no doubt the victim has described the manner in which the incident had taken place, however, the improvements pointed out in the cross- examination makes the presence of Nandabai doubtful at the place of the incident as there is an improvement made by the victim about the fact of the appellant dragged her upto the wall of the school and he fled away as Nandabai came there. So also, there is also an improvement with regard to the fact that there were pains in the private part of the victim.
8. Now coming to the identification of the appellant, according to the victim, when she went to the lavatory one person came there by jumping the wall, gagged her mouth, removed her pant and inserted a finger into her private part. It is worthwhile to note that the victim identified the appellant in the Court as the same person who committed the ill-act with her. Significantly, the identity of the appellant has not been challenged in the cross-examination. Furthermore, the incident had ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 6 occurred in broad daylight. The appellant was from the same vicinity where the victim was residing. The victim immediately disclosed the incident to her mother PW2.
9. The testimony of PW3-victim is corroborated with the testimony of PW 2- Nanda Gaikwad, who is the complainant and mother of the victim. According to PW2, on the date of the incident, her daughter proceeded to the school at about 10.30 am. As informed by her daughter, at about 11.00 am she went to the lavatory of the school and at that time the appellant jumped over the wall and came inside the lavatory. He then touched her private part and inserted a finger in it. The said incident was narrated by the victim to her mother-PW2. It was also informed by her daughter that at the time of incident, PW7-Nandabai witnessed the said ill act and on seeing Nandabai the appellant fled away by jumping the wall. According to PW2 even Nandabai narrated the said incident to her. PW2 then proceeded to the Police Station and lodged her complaint (Exh.21). During the cross-examination, efforts were made by the defence to point out that there was rivalry between the appellant and husband of PW2. However PW2 firmly denied the said suggestion. She further denied that on the count of money, there was a dispute between her husband and the appellant and, therefore, she has falsely implicated the appellant in the said Act by lodging a false report. Significantly, the contents in the FIR are in consonance with the testimony of PW3. There is no delay in lodging the FIR as such.
10. The prosecution further examined PW7-Nandabai Pakhale who was ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 7 working as Cook in the said School where the victim was studying. PW7 deposed that on the date of incident, she went to the tap in order to bring water for coking purposes. At that time she saw the appellant talking with the victim. On making enquiry as to what was he doing, the appellant fled away. The victim informed her that the appellant had offered her fruit. PW7 further stated that she does not know anything thereafter. Thus, PW7 was declared to be a hostile witness and nothing fruitful could be elicited from her during the course of cross-examination. The testimony of PW7 no doubt shows that she saw the appellant at the place of the incident. The presence of the appellant at the place of incident has not been disputed by the defence and it corroborates the version of PW2-Nanda Gaikwad as well as PW3-victim.
11. It is significant to note that the complaint was lodged by PW2 on the same day on the basis of which the offence came to be registered. Nothing is brought on record in the cross-examination to remotely show that there was animosity between and the appellant and family of the victim, to falsely implicate him in the present case alleging commission of heinous crime. Thus there was no reason either for the victim or her mother to falsely implicate the appellant in the heinous offence of rape by putting reputation of their entire family, at stake.
12. In case of Aman Kumar and another v. State of Haryana, reported in (2004) 4 SCC 379, the Hon'ble apex Court has held as under :-
"5. It is well settled that a prosecutrix complaining ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 8 of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional."
8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly, preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded.
9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word ''attempt'' is not itself defined, and must, therefore, be taken in its ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 9 ordinary meaning. This is exactly what the provisions of Section 511 require.
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part-
execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect."
13. Learned APP relied upon the judgment of the Hon'ble Apex Court in the case of S. vs. Sunil Kumar and another reported in (2015) 8 SCC 478, more particularly para nos. 11,13 and 14: which read thus,
11. It has consistently been held by this Court that ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 10 what is substantive evidence is the identification of an accused in court by a witness and that the prior identification in a test identification parade is used only to corroborate the identification in court. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent identification in court during trial could be safely relied upon. However, even in the absence of such test identification parade, the identification in court can in given circumstances be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma (2014) 4 SCC 747.
13. In Malkhansingh v. State of M.P. (2003) 5 SCC 746 in a similar situation where identification by the prosecutrix for the first time in court was a matter in issue, this Court observed :
16....She also had a reason to remember their faces as they had committed a heinous offence and put her to shame.
She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity.
14. Furthermore, the appellant had gone to the extent of stating in her first reporting that she would be in a position to identify the offender and had given particulars regarding his identity. The clothes worn by the offender were identified by her when called upon to do so.
In the circumstances there was nothing wrong or exceptional in identification by her of the accused in court. We find her testimony completely trustworthy and reliable. Consequently, we hold that the case against Respondent 1 stands proved. Since the trial Court had found the appellant to be 10-13 years of age, we take the age to be on the maximum scale i.e. 13 years. In our considered view, the Hgh Court was not justified in dismissing the revision. No other view was possible and the case therefor warrants interference by this Court.
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CRI.APPEAL.513.18 11
14. Pertinently, there is no medical evidence on record to support the contentions of the victim. The overall assessment of the evidence indicate that the appellant has outraged the modesty of the victim. No doubt, the prosecution has failed to prove that the appellant committed rape on the victim by inserting his finger in her private part. As discussed above, there is no medical evidence on record. The prosecution has failed to produce the medical certificate of the victim on record, so also the doctor who examined the victim has not been examined by the prosecution. Thus, there is no medical evidence to support the contention of the victim that the appellant inserted his finger into her private part and thus committed rape on her. I am of the considered view that the prosecution has miserably failed to prove its case beyond reasonable doubt. In view of the above, the following order is passed:-
ORDER
(i) Criminal Appeal No. 513/2018 is partly allowed.
(ii) The impugned judgment of conviction and sentence dated 27.08.2015 passed by learned Additional Sessions Judge, Washim in Spl.S.T. No.22/2014, is set aside.
The appellant is acquitted of the offence punishable u/s 376 of IPC and Sec.3 (b) punishable u/s 4 and u/s. 3(b) punishable u/s 8 of the POCSO Act.
(iii) The appellant is however convicted for the offences punishable u/s 354 of IPC and u/s 8 of the POCSO Act. For offence punishable u/s 354 of IPC, he is sentenced to suffer RI for three years and to pay a fine of Rs. 1,000/- in default, to suffer R.I. for three months. For offence punishable under section 8 of the POCSO Act, he is ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 ::: CRI.APPEAL.513.18 12 sentenced to suffer RI for three years and to pay a fine of Rs. 1000/-, in default, to suffer RI for three months. Both the sentences shall run concurrently.
(iv) Since the appellant is in jail since 16.1.2014, he be set at liberty unless required in any other case.
(v) The professional fees of the Advocate appointed for the appellant, are quantified at Rs.5000/-only.
JUDGE sahare ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 12:29:25 :::