Bombay High Court
Pradip S/O. Laxmanrao Deshmukh (In ... vs The State Of Maharashtra Thr. Police ... on 5 February, 2019
Author: V.M. Deshpande
Bench: V. M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 530 OF 2017
APPELLANT : Pradip S/o Laxmanrao Deshmukh,
Aged about 54 years, Occu. Press Reporter,
R/o Sayrabai lay-out, Near Renuka Mangal
Hall, Arni, Tah. Arni, Dist. Yavatmal.
VERSUS
RESPONDENT : State of Maharashtra,
Though the Police Station Officer,
Police Station, Arni,
Tq. Arni, Dist. Yavatmal.
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Mr. P. P. Deshmukh, Advocate for the appellant.
Mrs. S. V. Kolhe, A. P. P. for the respondent/State
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CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 05, 2019
ORAL JUDGMENT
1. By the present appeal, the appellant is challenging the judgment and order of conviction passed by the learned Special Judge, Darwha, dated 16.09.2017 in Special Case No. 42/2013. By the impugned judgment the appellant is convicted for the offence punishable under Section 376(2) read with Section 511 of the Indian Penal Code. He is also convicted for the offence punishable under Section 370 of the Indian Penal Code and also found to be ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 2 APEAL530.17.odt guilty for the offence under Section 4 read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act" for short).
For his conviction under Section 376(2) read with Section 511 of the Indian Penal Code, the learned Judge of the Court below directed that the appellant should suffer rigorous imprisonment for Five years and to pay a fine of Rs.500/- with default clause. The appellant's sentence for his conviction for the offence punishable under Section 370 of the Indian Penal Code is rigorous imprisonment for Seven years and to pay a fine of Rs.1,000/- with default clause. The appellant is also directed to suffer rigorous imprisonment for Seven years and to pay fine of Rs.1,000/- for the offence punishable under Sections 4 read with Section 18 of the POCSO Act.
2. I have heard Mr. Pravin P. Deshmukh, the learned counsel for the appellant and Mrs. S. V. Kolhe, the learned Additional Public Prosecutor for the State. Both the learned counsel took me minutely through the notes of evidence and other record.
3. PW7 Girish Bobade, Police Inspector at the relevant time of Police Station Arni, registered the offence bearing Crime ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 3 APEAL530.17.odt No.86/2013 on the basis of the report lodged by Renuka (PW1), the mother of the victim.
4. Exh.19, the oral report, is dated 27.4.2013. The said report recites that Renuka is having two daughters and one son. The younger daughter, the victim, is aged about Six years and takes education in 1st standard. The appellant, who is a journalist and neighbour, many a time used to take the victim along with him on bicycle. It is further reported that on the day of the incident i.e. Saturday, when Renuka was busy in her household work, the appellant took the victim along with him and failed to return for quite considerable time. Therefore, Renuka went to the house of the appellant and asked his wife to make a phone call. It is further stated in the report that on phone, she had a talk with her daughter and she informed that she is drinking Lassi along with the appellant. After that telephonic talk also, for a considerable time, the appellant failed to return to the house along with daughter. At that time, the appellant's wife informed her that the appellant and her daughter are in police station. Therefore, Renuka came to police station. There it was informed to Renuka that the appellant tried to commit rape on her daughter.
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5. After registration of the offence PI Bobade (PW7) immediately went to the spot of the incident and prepared the spot panchanama. The spot was shown by PW2 Vinod Munginwar. The spot panchanama is at Exh.41. He seized the clothes of the victim under seizure panchanama (Exh.23). The clothes of the accused were also seized under seizure panchanama (Exh.24). Further investigation of the crime was carried out by PI Sarjerao Gaikwad (PW8). He recorded the statement of victim girl in presence of her mother. Also he took steps for recording the statements of the eye- witnesses under Section 164 of the Code of Criminal Procedure. After completion of the investigation, he filed charge-sheet vide Charge-sheet No. 113/2013 for the offences punishable under Sections 366, 370(4), 376(2)(I) and 511 of the Indian Penal Code and for the offence under Section 4 read with Section 18 of the POCSO Act.
6. The learned Judge of the Court below framed the Charge for the offences punishable under Section 376(2) read with Section 511, under Section 370 of the Indian Penal Code and under Section 4 read with Section 18 of the POCSO Act. The appellant denied the Charge and claimed for his trial. The prosecution has examined in all Nine witnesses. The Court below, after a full ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 5 APEAL530.17.odt dressed trial found the appellant guilty for the offences for which he was charged. Hence, this appeal.
7. The primary submission of Mr. Deshmukh, the learned counsel for the appellant is that the appellant is falsely implicated in the crime. It is his submission that he being a Journalist, is being falsely implicated in the crime. It is his submission that since the appellant has published various news items about the illegal activities happening in Arni city, he has been made target and is falsely implicated. He submitted that there are lapses in the investigation inasmuch as the statement of victim girl was not recorded by a lady police officer and her statement is recorded at a belated stage. It is also the submission of the learned counsel that the victim's evidence is required to be discarded since she is a child witness and therefore, tutoring is not completely ruled out. He, therefore, prayed that the appeal be allowed.
8. Per contra, Smt. Kohe, the learned Additional Public Prosecutor supported the impugned judgment and prayed for dismissal of the appeal.
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9. After hearing the respective counsel, following points do arise for my consideration in this appeal :
1] Whether the prosecution has proved its case to bring home the Charge for the offence punishable under Section 376(2) read with Section 511 of the Indian Penal Code ?
2] Whether the prosecution has proved the ingredients of Section 370 of the Indian Penal Code and whether the appellant could be punished for making an attempt to commit offence under Section 18 of the POCSO Act ?
10. Since, the evidence of the prosecution for deciding the aforesaid points is interlinked, I propose to take both the points for discussion simultaneously.
11. As per the prosecution case and evidence of PW1 Renuka and PW3 victim, the appellant is their neighbour. Even this fact is admitted by the appellant during the course when he was examined under Section 313 of the Code of Criminal Procedure by the learned Judge of the Court below.
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12. As per the prosecution, at the time of incident, the victim was taking education in 1st standard in a school namely Shri Mahant Dattaram Bharti Marathi Primary School, Arni. To prove the said fact, the prosecution has examined PW5 Ashok Muneshwar, the Head Master of the school. His evidence would show that in 2013, the victim was taking education in 1st standard. This particular piece of evidence is not at all challenged by the defence. Through this prosecution witness, the prosecution has proved Exh.28, a certificate issued by he School which shows that the date of birth of the victim is 22.11.2006. His evidence is challenged on this point that he has not brought the original admission and discharge register with him. Making capital of this, the learned counsel for the appellant submitted before this Court that the evidence of this witness is required to be discarded.
13. To the extent of prooving Exh.28, the learned counsel for the appellant is having point in his favour. Since, the original was not brought before the Court from which entries were taken in Exh.28, the date of birth of the victim as 22.11.2006 as shown in Exh.28 is not conclusively proved.
Be that as it may. However, the evidence of PW5 Ashok Muneshar, the Head Master, is not at all challenged by the defence ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 8 APEAL530.17.odt that at the relevant time, the victim was taking education in 1 st Standard.
Exh.38 is the document given by the Chief Officer and Registrar of Birth and Death, Arni under the Registration of Birth and Death Act, 1969. According to the birth certificate (Exh.38), the date of birth of the victim is shown as 23.11.2006. Thus, the difference in between Exh.28 and Exh.38 is of one day. It is not the defence that Exh.38 does not belong or does not pertain to the victim. At no point of time Exh.38 was challenged by the defence.
In view of the birth certificate (Exh.38) issued by the Statutory Authority who is required to maintain the record of birth and death, shows that the date of birth of the victim is 23.11.2006. The date of the incident is 27.4.2013. Thus, the victim on the date of the incident was six years old girl. Clause (d) of sub-section 1 of Section 2 of the POCSO Act reads as under :
2. Definitions - (1) ....
(d) "child" means any person below the age of eighteen years ;
Thus, it is crystal clear that the victim was a "Child" within the meaning of the POCSO Act.
14. The appellant was also charged for the offence ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 9 APEAL530.17.odt punishable under Section 376(2) read with Section 511 of the Indian Penal Code. At no point of time it was the prosecution case that the appellant has committed rape on a minor girl. If the evidence of the prosecution is properly scanned, then it is clear that the appellant was in the process of committing rape on victim, however, he was unsuccessful due to timely intervention of PW2 Vinod Munginwar and PW4 Umesh Sonone. PW2 Vinod runs a pan kiosk at Mahur chowk at Arni. PW4 Umesh is his friend. PW2 Vinod's evidence states that when Umesh had gone to ease himself, after his return he told that one girl is crying near the tree of Babhali and one person is with her. He, therefore, went to the spot along with Umesh and Ishwar to notice that the victim was lying on the ground and her undergarments were removed. The clothes of the appellant were also removed and his private part was in his hand and he was trying to sleep on the person of the victim. Therefore, they caught hold on the spot itself and brought him along with the victim in the police station.
15. Evidence of PW2 Vinod is challenged that he is an interested witness. Through his evidence, it is brought on record that the appellant, a news reporter, used to publish various anti social activities in the newspaper. It is also brought on record that ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 10 APEAL530.17.odt on dry days, liquor was flowing in Arni city. It is also brought on record that he is acquainted with the owner of Sakshi Bar and he is having cordial relation with one Lohiya, who runs satta business. By these admissions, it is tried to be submitted before me that this witness is unreliable witness and his evidence is required to be discarded.
I could not agree with the submission of the learned counsel for the appellant. From this type of cross-examination, it is clear that the cross-examination is half hearted cross-examination. It was always open for the defence to place on record the publication of news items published by the appellant about illegal activities of various persons in the society. No such report either was confronted to PW2 Vinod or was placed on record by the accused. It is nowhere the suggestion to PW2 Vinod that he was involved in illegal activities, which were published by the appellant. The entire cross- examination of Vinod revolves around that he knows the owner of Sakshi Bar and one Lohiya, who has indulged himself in satta business. Mere acquaintance can never debar any person to make statements on oath. In this case, we cannot forget that this witness runs a pan kiosk. So, if he is having acquaintance with many other persons may be having tainted past history, cannot discredit his evidence.
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16. Testimony of PW2 Vinod is not challenged when he was in cross-examination that the undergarments of the victim were removed and also the pant of the appellant was removed and his private part was out of his under-pant. The omission brought on record is that he failed to state in his police statement that his private part was in his hand. Similarly, PW4 Umesh Sonone's evidence shows that the accused was found on the spot without clothes. Evidence of PW4 Umesh was challenged that he was angry because of publication of news item by the appellant against him. Here also, though there was an opportunity for the defence to confront the news item to the witness, the said was not done. Therefore, denial by PW4 Umesh in his cross-examination that he was angry because of publication of news, assumes its own importance.
17. Exh.53 is the medical certificate of the victim. It is proved by Dr. Madhuri Patil (PW9). The said shows no injuries on the person of the victim. However, it is never the case of the prosecution that the act of rape was completed. Therefore, not noticing injuries is of no consequence.
18. Exh.41 is the spot panchanama, a contemporaneous ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 12 APEAL530.17.odt document. The recitals of Exh.41 shows that the spot of incident is a secluded place. The sketch map is also appearing in the spot panchanama, which shows that it is well inside from Yavatmal bye- pass and it is 100 feet away from one Hasmukh Patel's shop. From the sketch map, it is clear that the spot of incident is not surrounded by any house or any shop. On the contrary, it appears that after some distance, there is a funeral ground. Therefore, I have no hesitation to record a finding that the spot of incident is a secluded place.
19. From the unchallenged evidence of PW2 Vinod, the appellant was caught on the spot itself by him with the help of Umesh and one Ishwar. Presence of the appellant with a small girl at such a secluded place, that too in half naked position, speaks volumes about him and his acts and intention. There was no reason for him to remove his or victim's clothes at a secluded place.
20. The appellant is also charged for the offence punishable under Section 370 of the Indian Penal Code, which reads as under :
370. - Trafficking of person - (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by -::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 :::
13 APEAL530.17.odt First., - using threats, or Secondly. - using force, or any other form of coercion, or Thirdly. - by abduction, or Fourthly. - by practicing fraud, or deception, or Fifthly. - by abuse of power, or Sixthly. - by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation 1 - The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2 - The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than Ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(5)Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 14 APEAL530.17.odt which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
21. From the conduct of the appellant which is duly proved by the evidence of victim and eye-witnesses PW2 Vinod and PW4 Umesh, it is clear that the appellant took the victim girl from her house to a secluded place by deception i.e. by making agree the victim to accompany him and he will provide a glass of Lassi to her. The evidence clearly shows that for sexual exploitation of the victim girl, she was taken from her house to a secluded place. In that view of the matter, there is no doubt in my mind that the prosecution has proved the charge for the offence punishable under Section 370 of the Indian Penal Code against the appellant.
22. In my view, the learned Judge of the Court below has committed a mistake in not imposing the minimum punishment for ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 15 APEAL530.17.odt the offence punishable under Section 370 of the Indian Penal Code. In paragraph 34 of the impugned judgment, the learned Judge of the Court below states that the minimum punishment is Seven years. This particular observation of the Court below insofar as imposition of minimum punishment is concerned, is erroneous in law. Sub- section 4 of Section 370 of the Code states that the minimum punishment for trafficking of a minor is Ten years. In the present case, it is proved by the prosecution that the victim girl was a minor.
23. At this stage, it would be useful to record in this judgment that the appellant has filed Criminal Application (APPA) No. 266/2018 for grant of bail. That was decided by this Court on 28.11.2018. In the said order, it was observed that when the applicant is convicted for the offence punishable under Section 370, in case at the time of final hearing if it is found that the prosecution has proved its case for offence punishable under Section 370, why minimum punishment as envisaged under sub-Section 4 of Section 370 should not be imposed on him. Accordingly, a notice was given to the appellant. The Registry has received reply to the said notice from the appellant. It is dated 22.01.2019. It is taken on record and marked as "Document-X" for the purposes of identification. By the said, the appellant has submitted that he is aged about 60 years and ::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 ::: 16 APEAL530.17.odt is a heart patient. Therefore, punishment of seven years should be maintained. Same is the submission before me by the learned counsel for the appellant.
24. The minimum punishment provided under sub-Section 4 of Section 370 of the Indian Penal Code is for Ten years. The Legislation has not given any power to the Court to reduce the minimum punishment even by recording reasons. When the minimum punishment is provided and when the appellant was found to be guilty for the offence punishable under Section 370 of the Indian Penal Code, in my view, the learned Judge of the Court below has committed a serious mistake of law in not imposing the minimum punishment. Sub-Section 4 of Section 370 shows that the punishment can be extended till remainder of his life. However, in view of the submission made by the learned counsel for the appellant that the appellant is aged about 60 years, I find that minimum punishment will be sufficient. That leads me to pass the following order :
ORDER
1. The criminal appeal is dismissed with a modification in the sentence for the offence punishable under section 370 of the Indian Penal Code.::: Uploaded on - 07/02/2019 ::: Downloaded on - 07/02/2019 23:46:54 :::
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2. The appellant shall serve the jail sentence for a period of Ten years for the offence punishable under Section 370 of the Indian Penal Code, in stead of Seven years as imposed by the Court below for the said offence by the judgment and order passed by the learned Special Judge, Darwha, dated 16.9.2017 in Special Case No. 42/2013.
3. The other clauses of the operative portion of the impugned judgment are maintained.
V.M. Deshpande, J.
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