Bombay High Court
Ganesh Gopal Phulwale vs The State Of Maharashtra on 11 November, 2019
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
(204) Apeal 753-18-(J).doc
BDP-SPS
Bharat
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D. Pandit
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 753 OF 2018
Digitally signed
by Bharat D.
Pandit
Date: 2019.11.19
16:55:23 +0530
Ganesh Gopal Phulwale )
Age - 33 years, Occu: driver )
R/o: Malvani Church, Koliwada)
Brameshwar Galli, Marve Road)
Malad (W), Mumbai - 400 095 )
Presently at Mumbai Central )
Prison. ) Appellant
(Original Accused)
V/s
The State of Maharashtra )
(At the instance of Byculla )
Police Station (C.R. No.5/16) ) .....Respondent.
Mr. Aniket Vagal for the Appellant.
Mr. A.R. Kapadnis, APP for the State.
CORAM: NITIN W. SAMBRE, J.
DATE: NOVEMBER 11, 2019
ORAL JUDGMENT:
1] In POCSO Case No.104 of 2016, Appellant/Accused was convicted by the Special Judge under Section 235(2) of the Criminal Procedure Code for the ofence punishable under Sections 4 and 8 of the Protection of Children from Sexual Ofences Act, 2012 (Hereafter shall be referred to as "the POCSO Act" for the sake of brevity). As such, this 1/18 (204) Apeal 753-18-(J).doc appeal.
2] The case of the prosecution is, on or about 05/01/2016, the Appellant/Accused, while working as a driver with the complainant Fatima and her husband Rizwan, made victim girl aged seven years, sit on his lap while fetching her back from the school to her residence. Appellant/Accused removed her clothes, kissed her on entire body and inserted his private part and fnger in the private part of the victim girl. The victim girl narrated the incident of making her sit on his lap by the Appellant/Accused under the pretext of teaching her driving, to Rizwan, her father, who, in turn, disclosed the same to his wife complainant Fatima, resulting into lodging of complaint. As a consequence of which Crime No. 05 of 2016 came to be registered with the Respondent - Police Station for an ofence punishable under Sections 3, 4, 8, 12 of the POCSO Act and under Section 376 of the Indian Penal Code. After the charge-sheet was fled against the Accused, charge came to be framed at Exhibit-4 for the ofence punishable under Section 376 of the IPC i.e. 2/18 (204) Apeal 753-18-(J).doc punishment for rape, under Section 4 and 8 of POCSO Act i.e. punishment for an ofence of penetrative sexual assault and punishment for sexual assault. The prosecution has got recorded statement of the victim girl under Section 164 of the Cr.P.C at Exhibit-15 on 06/02/2016.
3] Since the Accused has not pleaded guilty, the matter was put to trial. During the course of investigation, Investigating Ofcer seized the clothes of the victim and that of the accused and same were sent for chemical examination to the Forensic Science Laboratory. The said reports produced at Exhibits-7, 8 and 11 are in regard to clothes of the victim, clothes of the Accused, their blood samples, samples of pubic hair, nail clippings, penile swab, urethral swab, buccal swab, labia majora swab, labia minora swab, vaginal swab, anal swab and blood samples. No semen is detected on the sample taken out from buccal swab, labia majora swab, labia minora swab, vaginal swab and anal swab. Same result has come out about the samples collected of the Accused.
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(204) Apeal 753-18-(J).doc 4] So as to prove the case of the prosecution, following witnesses were examined.
"1) "F" Informant/Victim's mother as P.W.1 at Exh.13.
2) Karam Hussain Abdulla Shaikh, Panch of Seizure Panchanama of victim's and accused's clothes as P.W.2 at Exh.16.
3) Vaishali Chandrashekhar Murudkar, Panch of Seizure Panchanama of Victim's clothes as P.W.3 at Exh.22.
4) Dr. Mugdha Laxmanrao Jungare, Medical Ofcer who examined the victim girl as P.W. 4 at Exh.24.
5) Dr. Vinodkumar K.N. S/o. Narayanswami, Medical Ofcer who examined the accused as P.W. 5 at Exh.26.
6) PSI Bhaskar Balkrishna Rane, Investigating Ofcer as P.W.6 at Exh.28.
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(204) Apeal 753-18-(J).doc
7) PSI Bijali Indurao Shirke, Investigating Ofcer as P.W.7 at Exh.30.
8) "A" Victim girl as P.W. 8 at Exh.33.
9) PSI Aarati Sheshrai Jadhav, Investigating
Ofcer aa P.W.9 at Exh.34."
5] After appreciating the evidence brought on record
through the prosecution, the Special Judge ordered
conviction of the Accused as under:-
"1. Accused GANESH GOPAL PHULWALE
is hereby convicted u/s. 235(2) of the Code of Criminal Procedure for the ofence punishable u/sec. 4 of The Protection of Children from Sexual Ofences Act, 2012.
He is sentenced to sufer Rigorous Imprisonment for Ten (10) Years and to pay a fne of Rs 2,000/- (Rupees Two Thousand only), in default of payment of fne, he shall undergo Simple Imprisonment for Two (2) Months.
2. Accused GANESH GOPAL PHULWALE is hereby convicted u/s. 235 (2) of the Code of Criminal Procedure for 5/18 (204) Apeal 753-18-(J).doc the ofence punishable u/sec. 8 of The Protection of Children from Sexual Ofences Act, 2012. He is sentenced to sufer Rigorous Imprisonment for Three (3) Years and to pay a fne of Rs 1,000/-
(Rupees One Thousand only), in default of payment of fne, he shall undergo Simple Imprisonment for One (1) Month.
3. Accused GANESH GOPAL PHULWALE is punished u/sec. 4, 8 of Protection of Children from Sexual Ofences Act, 2012, there is no need to punish him separately for the ofence punishable u/s. 376 of the Indian Penal Code, 1860 as per the provisions u/s. 42 of Protection of Children from Sexual Ofences Act, 2012.
4. He shall pay the compensation of Rs 25,000/- (Rupees Twenty Five Thousand only) to the victim girl as per Section 33(8) of The Protection of Children from Sexual Ofences Act, 2012. On being deposited, said amount be given to the victim. He shall deposit the said amount within one month from the date of this order. If he 6/18 (204) Apeal 753-18-(J).doc fails to deposit the amount, he shall undergo Simple Imprisonment for Six (6) Months.
5. All the aforesaid sentences shall run concurrently."
6] In the aforesaid background, while arguing the case of acquittal, learned Counsel for the Appellant would urge that statements of the victim girl, her mother, Dr. Mugdha and Dr. Vinodkumar, if appreciated, it is apparent that no case for conviction of the Accused is made out under Section 4 and Section 8 of the POCSO Act. According to him, the learned Special Judge has misread the evidence, particularly having regard to the provisions of Section 4 of the POCSO Act. He would invite attention of this Court to the diferences between the Master of the present Appellant, who is a father of the victim girl and her grandfather on the issue of damage to the rear seat of the vehicle of grandfather and non- payment of salary in the month of December, 2015. The learned Counsel as such, sought acquittal. 7/18
(204) Apeal 753-18-(J).doc 7] The learned APP supports the judgment and order of the learned Special Court and sought dismissal of the appeal.
8] Considered the submissions. 9] P.W. 1 - Fatima, mother of the victim girl, is examined
at Exhibit 13 wherein she has proved age of the victim as seven years, as her date of birth is 5/7/2009. In categorical terms, she has narrated about alleged incident leading to commission of ofence happened on 05/01/2016, as was told by the victim. According to her, Appellant/Accused made the victim girl sit on his lap, making her hold steering of the vehicle. Taking disadvantage of the situation, Accused claimed to have removed her clothes, used to rub his private part on the private part of the victim girl and then insert his fnger in her private part. It is also claimed that the Appellant/Accused used to give threats to the victim girl. On the night of the incident when she checked the clothes of the victim girl, she found them in wet condition, resulting into lodging of FIR.
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(204) Apeal 753-18-(J).doc 10] In her cross-examination, she stood by her testimony as stated by her in her examination-in-chief. In her cross- examination, she has further stated that the victim girl used to sit on the back seat for safety reasons and, in rarest of rare cases, she used to travel alone. It is claimed that she traveled alone for a week. It is also admitted by her that on the date of the incident, there was no delay in reaching the victim girl at home. She further admitted that the victim girl volunteered to narrate about holding of steering by her by sitting on the lap of the Appellant/Accused. However, she has not volunteered narration about the alleged incident of sexual assault. It is only after the detail inquiry by her, the victim girl narrated the same.
11] The seizure of the clothes was proved from the testimony of P.W. 2 - Karam and P.W. 3 - Vaishali. 12] At Exhibit-33 is the testimony of the victim girl, wherein she has stated in categorical terms about insertion of something in her private part. It is also required to be 9/18 (204) Apeal 753-18-(J).doc noted that, to certain questions posed by defence, the victim girl kept mum, though she could have answered the same in "Yes" or "No". As such, from the testimony of the victim girl, it is apparent that she has only stated about the sexual assault. The victim girl in her statement recorded under Section 164 of the Cr.P.C. has allegedly narrated about the aggravated sexual assault by inserting private part by the Appellant. She has further stated that private part of the Appellant was not inserted but what was inserted was fnger in the private part, in the incident of 05/01/2016 whereas on earlier occasion, the Appellant has inserted his private part. 13] Dr. Mughda who has been examined at Exhibit-24 as P.W. 4 is a doctor by profession, who has examined the victim on 06/01/2016. In her examination-in-chief, she has stated that the physical examination fndings are suggestive of sexual assault on the victim and accordingly issued Report-Exhibit-25. She has admitted that no sexual intercourse took place with the victim girl. She has also stated that, in the case in hand, hymen was intact at the 10/18 (204) Apeal 753-18-(J).doc time of examination. She has also stated that due to itching, minimal redness around hymen can be seen. She has also stated that there was no swelling to the labia majora. In her cross-examination, she has in categorical terms admitted that infection can lead to swelling and redness. As far as the case of victim is concerned, except minimal redness, there was no other injury noticed.
14] Dr. Vinodkumar, who is examined at Exhibit-26 as P.W.5, has examined the Accused. In his cross-examination, while answering the question put forth by the defence, he has stated as under:-
"Que : I put it to you that by general physical examination of vital parameters and local examination that is genital examination can you say that there was even slightest indication that he has committed sexual assault, what you want to say?
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(204) Apeal 753-18-(J).doc
Ans. No."
15] Upon analysis of the aforesaid evidence of the
prosecution witnesses, this Court is required to fnd out as to whether the prosecution has established a case of penetrative sexual assault for which punishment is provided under Section 4 and the Accused is convicted thereunder.
This Court is also required to appreciate as to whether sexual assault as defned under Section 7 is established by the prosecution, so as to sustain punishment under Section 8 of the POCSO Act. As noted hereinabove, the alleged incident has taken place on 05/01/2016, resulting into registration of Crime No. 05 of 2016. The victim girl, at the relevant time, appears to be aged about seven years. 16] As far as Chemical Analyser's Reports are concerned which are at Exhibits-7, 8 and 11, no chemical evidence is available on record with regard to inferring about the ofence alleged to have been committed by the accused person punishable under Section 4 of the POCSO Act. Section 3 of 12/18 (204) Apeal 753-18-(J).doc the POCSO Act provides for penetrative sexual assault, whereas Section 4 provides for punishment for such assault. The accused in the case in hand is convicted by the Special Court for the ofence punishable under Section 4 of the POCSO Act, thereby ordering him to undergo rigorous imprisonment for ten years.
17] This Court has already noticed from the evidence as refected in Exhibits-7, 8 and 11 as regards no blood or semen was found on the private part and the clothes of the victim girl. Similar appears to be the opinion of the Chemical Analyser about the samples collected from the accused and his clothes.
18] The victim girl, in her evidence, narrated about total fve times sexual assaulte four times inserting of private part and on the date of registration of crime, by inserting fnger. The evidence of Dr. Mughda (P.W.4) at Exhibit-24 and Dr. Vinodkumar (P.W.5) at Exhibit-26 is, if appreciated in the backdrop of the evidence of P.W. 1 - Fatima at Exhibit-13 and 13/18 (204) Apeal 753-18-(J).doc the evidence of P.W. 9 - PSI Aarti S. Jadhav at Exhibit-34, the story of the prosecution of the alleged penetrative sexual assault is not established. It has come in the cross- examination of Dr. Mughda (P.W.4) that hymen has remained intact and in her examination-in-chief she has stated that the physical examination fndings are suggestive of sexual assault. She has also admitted that no sexual intercourse took place with the victim. She has also admitted that due to itching minimal redness around hymen can be seen and also there was no swelling on the labia majora. She has admitted that except minimal redness, no other injury was noticed and infection can lead to swelling and redness. Dr. Vinodkumar (P.W.5), who is examined at Exhibit-26, in his cross- examination has in categorical terms accepted about absence of any sexual assault by the accused person. 19] In the aforesaid background, particularly having regard to the medical evidence on record, the conduct of the victim girl of not responding to certain questions put to her in cross-examiantion, her father's noticeable conduct of not 14/18 (204) Apeal 753-18-(J).doc narrating the incident about earlier sexual assaults but only about driving of the vehicle, leads this Court to record that the fnding of conviction against the accused is not sustainable for ofence defned under Section 3 and punishable under Section 4 of the POCSO Act. 20] This Court is further required to appreciate as to whether the fnding of conviction against the Accused for the ofence punishable under Section 7 of the POCSO Act is sustainable or not. The deposition of victim girl read with deposition of P.W. 1 - Fatima, her mother, in categorical terms establishes about the fact that the Accused made the victim girl sit on his lap and made her handle the steering of the vehicle. It has also come in evidence that the Appellant/ Accused, with sexual intent, touched her vajina, kissed the girl all over her body. It has also come on record that the Appellant/Accused has removed her clothes while making her hold the steering which is sufcient to infer his intention and sustain the fnding of the ofence defned under Section 7 and punishable under Section 8 of the POCSO Act to be made 15/18 (204) Apeal 753-18-(J).doc out. Even if the evidence of Dr Vinodkumar (P.W.5), who is examined at Exhibit-26, does not speak of any aggravated sexual assault by the Appellant/Accused, however, it cannot be inferred from the record that the Appellant has not committed any sexual assault as defned under Section 7 of the POCSO Act. That being so, having regard to the testimony on record of the witnesses, the conviction of the Appellant/Accused for the ofence prescribed under Section 7 and for which punishment is provided under Section 8 of the POCSO Act is sustainable.
21] As a consequence of above discussion, in my opinion, appeal needs to be partly allowed. 22] In the result, following order is passed:-
ORDER
(i) Appellant/Accused is hereby acquitted of the ofence punishable under Section 4 of the Protection of Children from Sexual 16/18 (204) Apeal 753-18-(J).doc Ofences Act, 2012, whereas his conviction under Section 8 of the POCSO Act, 2012 is very much maintained.
(ii) As a consequence of setting aside of the conviction of the Appellant/Accused under Section 4 of the POCSO Act, 2012, the compensation of Rs 25,000/- ordered to be paid to the victim girl by the Appellant/Accused under sub-section (8) of Section 33 of the Act is reduced to Rs 10,000/- from Rs 25,000/-. If the amount of compensation of Rs 25,000/- is already paid then remaining amount of Rs 15,000/- is directed to be refunded to the Appellant/Accused.
(iii) In view of maintaining of the conviction of the Appellant/Accused under Section 8 of the POCSO Act, 2012, he is liable to be 17/18 (204) Apeal 753-18-(J).doc released forthwith, if not required in any other case, as he has undergone three years of imprisonment.
(iv) Appeal is partly allowed in the aforesaid terms.
( NITIN W. SAMBRE, J. ) 18/18