Bombay High Court
Ramesh S/O. Jaipal Patle (In Jail) vs State Of Maharashtra Thr. Police ... on 24 February, 2018
Author: S.B. Shukre
Bench: S.B. Shukre
apeal.79.17.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.79 OF 2017
Appellant : Ramesh s/o Jaipal Patle,
Aged 51 Years, Occupation : Teacher,
R/o Fukkimetha, Tahsil Amgaon,
District Gondia (Presently in Jail)
-- Versus --
Respondent : State of Maharashtra,
(Police Station Amgaon,
District Gondia).
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Shri R.M. Daga, Advocate for the Appellant.
Shri S.D. Sirpurkar, A.P.P. for the Respondent/State.
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CORAM : S.B. SHUKRE, J.
DATE : 24th FEBRUARY, 2018.
ORAL JUDGMENT :-
This appeal has been filed questioning the legality and correctness of the judgment and order dated 01/02/2017 passed by the Additional Sessions Judge, Gondia in Special Case [POCSO] No.35/2016.
02] By the impugned judgment and order, the appellant has been found to be guilty of offences punishable under Sections 8, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act' for short) and offences punishable under Sections ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 2 354-A and 376(f) of the Indian Penal Code ('IPC' for short). For these two offences, the Additional Sessions Judge imposed different punishments upon the appellant ranging from 10 years to 3 years and also fine amounts ranging from Rs.15,000/- to Rs.5,000/-. 03] At the time when the offences were alleged to be committed by the appellant, they were alleged to be committed during period of two months in the early part of the year 2016, the appellant was a teacher posted to Zilla Parishad Senior Primary School, Fukkimetha, Tahsil Amgaon, District Gondia. There were several girl students receiving education in the school and being a teacher, the appellant used to take their classes. The appellant, in particular, was a teacher appointed for the 3 rd third standard and 4th standard students.
04] It so happened that in the evening of 31/03/2016, one Sangita, niece of the complainant's mother disclosed a startling fact to the complainant that the appellant was in the habit of behaving inappropriately with her daughter and also some of her classmates or schoolmates. The fact was verified by the complainant from her daughter when she was told by her daughter that what was told to her by Sangita was true. She informed the complainant that on the pretext of checking the homework, the ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 3 appellant used to call her and other girls near him and then used to inappropriately touch their chests and also the private parts by running his fingers over them, which has been called by the victim girl as tickling. She also informed her mother that the appellant threatened them not to disclose what he used to do with them to anyone or otherwise he would fail them in the respective classes. The complainant then also made an enquiry with the classmates and other schoolmates of her daughter on 01/04/2016 and the other girls confirmed to her what was told by her daughter. The complainant then discussed with the other parents and also with the headmaster. A decision was taken to report the matter to the police and accordingly on 2nd April, 2016, a report was made to the Police Station alleging that the appellant was behaving in an inappropriate manner with the school girls by touching their chests and private parts under the threats issued to them. The offences punishable under Section 354-A of IPC and 8 & 10 of the POCSO Act were registered against the appellant and the investigation started. 05] Case went for trial before the Additional Sessions Judge, appointed as Special Judge to try the offences under the POCSO Act. Charge for the offences punishable under Section 8 regarding sexual assault and Section 12 regarding sexual harassment of the POCSO Act and Section 354-A regarding outraging of modesty of ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 4 the IPC was framed against the appellant. Before commencement of the evidence, offence punishable under Section 376 of IPC was added to the charge so framed against the appellant. The appellant was tried for these offences. His statement under Section 313 of Cr.P.C. was recorded on 03/01/2017 and thereafter one more charge regarding offence of aggravated sexual assault defined under Section 9(f) of PSCSO Act, which was punishable under Section 10 of the same Act was added. However, no witnesses were recalled or re-examined. The learned Sessions Judge, on merits of the case, found that all these offences were proved beyond reasonable doubt by the prosecution and, therefore, by the impugned judgment and order, he convicted the appellant of these offences and sentenced him in different punishments referred to earlier.
06] In this case, the trial Court has examined in all 17 witnesses. Out of these 17 witnesses, the second witness, PW-2 was the complainant and mother of one of the victim girls. PW-4 was the father of one of the victim girls. PW-1, PW-5, PW-7, PW-9 and PW-15 were the victim girls. The evidence of these witnesses is important from the view point of the prosecution as these are the witnesses who have stated against the appellant and also about ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 5 what he did with the victim girls when they used to attend their classes in the school.
07] PW-2, the complainant has stated about what she was told by her daughter PW-1 about the appellant. PW-1, on her part has stated that the appellant used to call her near him on some pretext and then he used to touch her chest and private part. She has stated that while touching the private part, the appellant used to tickle her at that place. PW-2, the mother of PW-1 and the complainant, has stated that these are the facts which were narrated to her by her daughter. The other witnesses have also deposed almost on similar lines. Some of them have made a few additions to the facts stated by PW-1 and PW-2. I will consider those additions later on.
08] Keeping aside the additions made by some of the witnesses, what is seen to be established on record by the prosecution are the facts that the appellant used to touch the chests as well as private parts of the victim girls while they used to attend his classes in the school. This touch, as their evidence shows, was inappropriate in the sense that it was made with sexual intent. A person, who is a teacher would not just casually touch the private parts of his girls students. But, when a teacher does so, no ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 6 other intention behind such touch except the sexual intention can be seen unless some explanation has been given by the teacher. In the present case, there is no explanation given by the appellant as to why, did he touch or feel the girl students in this fashion. There is also no dispute about the age of the girl students. All of them were minor and well below the age of 12 years. At the relevant time, they were standing either in the 3 rd or the 4th standard. These children, therefore, were squarely covered by the provisions of the POSCO Act to whom the inappropriate touch, which was accompanied by sexual intent was made and, therefore, the offence of sexual assault as well as offence of sexual harassment as defined under Sections 7 and 11 of the POCSO Act respectively have been constituted by the acts committed by the appellant and this has been rightly held by the learned Additional Sessions Judge. 09] The offences of sexual assault and sexual harassment are punishable under Sections 8 and 12 of the POCSO Act respectively. The learned Additional Sessions Judge has imposed punishment of five years together with fine amount of Rs.5,000/- for the offence of sexual assault and the punishment of three years together fine of Rs.5,000/- for the offence of sexual harassment. These punishments are also accompanied by default sentences of ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 7 one month each. In the circumstance of this case, I do not find that these punishments are excessive in nature or unjust or unfair. Therefore, I do not think that any interference is warranted with the impugned judgment and order in this regard.
10] Same opinion will have to be expressed about the finding recorded by the learned Additional Sessions Judge on the offence of outraging the modesty punishable under Section 354-A of IPC, when the learned Additional Sessions Judge found this offence to have been reasonably committed by the appellant. The punishment imposed for this offence, which is of three years coupled with fine of Rs.5,000/- and default sentence of one month is appropriate and does not call for any interference. 11] About the findings of guilt for the offence of aggravated sexual assault as defined under Section 9(f) punishable under Section 10 of the POCSO Act and rape as contemplated under Section 376(f) of IPC, I am of the view that the learned Counsel for the appellant is right when he submits that the prosecution evidence adduced on these two counts does not inspire any confidence. I am also in agreement with him on the count that no punishment under Section 10 of the POCSO Act could have been given in the absence of recalling of any of the prosecution ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 8 witnesses after the charge was altered at the belated stage. Of course, the learned A.P.P. for the State submits that no prejudice has been shown to be caused by the appellant owing to belated framing of the charge and not recalling of the prosecution witnesses, which argument cannot be accepted for the reason that the learned Additional Sessions Judge has not recorded any reason as to why in her opinion she did not think it fit to recall or direct re- summoning of the prosecution witnesses as required under Section 217 of Cr.P.C.
12] Section 217 of Cr.P.C. enables a Criminal Court to alter the charge after the commencement of trial, but, it lays down, as a mandate, that the prosecutor and the accused shall be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-summon such witness for the purpose of vexation or delaying the trial or defeating the ends of justice. This procedure is mandatory as it facilitates the right of the accused to defend himself properly and also the right of the prosecution to be given an opportunity to prove it's case against the accused. If such ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 9 procedure is not followed, prejudice to the right of both sides or either of the sides is obvious. This is all the more required in a case where an aggravated form of an offence is added to the charge after the commencement of the trial. The addition of the charge of an offence punishable under Section 10 read with Section 9(f) of the POCSO Act, in the present case, after Section 313 of Cr.P.C. statement was recorded, was in respect of an aggravated offence. It was, therefore, essential for the trial Court to have given an opportunity to the accused to recall or re-summon the witnesses already examined and if it was not to be given, at least to record the reasons in writing as to why it was not so necessary in the opinion of the trial Court. This procedure having not been followed, no finding regarding guilt of the appellant for an offence of aggravated sexual assault punishable under Section 10 of the POCSO Act could have been recorded by the learned Judge. The trial of the appellant on this count is vitiated. I, therefore, find that the finding of guilt of the appellant for an offence punishable under Section 10 of the POCSO Act and consequent sentence imposed upon him cannot be sustained in the eye of law and same deserve to be quashed and set aside.
13] As regards the argument of the learned Counsel for the appellant that even the charge for an offence punishable under ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 10 Section 376(f) of IPC cannot be said to be proved because of discrepant nature of evidence, I have already stated that there is a great substance in such an argument. While, discussing the evidence of the material prosecution witnesses earlier, I made a reference to some additions of facts made by the prosecution witnesses. These additions of facts relate to the insertion of fingers in the private parts of the school girls. These additions have appeared in the evidence of PW-7 and PW-15 and they are in the nature of omissions amounting to contradictions. They have been proved to be so by the appellant. Their statements recorded with the expert help during the course of investigation by the police did not contain any such facts. Even PW-4, the father of PW-7, has not stated anything about insertion of fingers in the private parts of the school girls. He says that he was told about particular acts committed by the appellant against his daughter PW-7 and those acts included touching of her chest and tickling of her private part. He did not say anything about insertion of finger to have been stated to him by his daughter PW-7. So, great doubt about the reliability of these two witnesses PW-7 and PW-15 as regards the insertion part arises and their evidence without any further corroboration cannot be believed. There is, however, no corroboration coming forth from the other witnesses. On the ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 ::: apeal.79.17.jud 11 contrary, the evidence of two Medical Officers, who examined the victim girls, PW-16 Dr. Rushikesh Shambharkar, supports the inference that evidence of PW-7 and PW-15 on the point of insertion of fingers has to be taken with a pinch of salt. He has admitted during the course of his cross-examination by the learned Counsel for the appellant that the victim girls were so small and tender in age, that any attempt to insert or any insertion of finger into their private parts would have resulted in either bleeding or rupture of the hymen. But, he has further admitted, the medical examination of the victim girls did not result in noticing of any such rupture.
14] In view of above, I am of the opinion that the prosecution has failed to prove beyond reasonable doubt the penetrative sexual assault, which has been broadly termed as an offence of rape under Section 376(f) of IPC. The learned Special Judge did not consider these material aspects of the case logically arising from the prosecution evidence and the result is of a wrong finding regarding guilt of the appellant on this count. The same needs to be quashed and set aside. In the result, I am of the view that this appeal deserves to be partly allowed and it is allowed accordingly.
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i. The finding of guilt and the punishments given to the appellant in the 1st, 3rd and 4th parts of the operative order are confirmed.
ii. However, the finding of guilt and punishments given under 2nd and 5th part of the operative order, which relate to offence punishable under Section 10 of the POCSO Act and offence punishable under Section 376(f) of IPC, are hereby quashed and set aside.
iii. The appellant is acquitted of the offences punishable under Section 10 read with Section 9(f) of the POCSO Act and under Section 376(f) of IPC.
iv. The fine amounts, if deposited by the appellant for these two offences, be refunded to him.
v. Rest of the findings and part of the impugned judgment and order are confirmed.
(S.B. Shukre, J.) *sdw ::: Uploaded on - 27/02/2018 ::: Downloaded on - 28/02/2018 01:42:20 :::