Bombay High Court
Nishant S/O. Prabhakarrao Dhande (In ... vs State Of Maharashtra Thr. Police ... on 20 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL 319 OF 2017
Nishant s/o. Prabhakarrao Dhande,
Aged about 31 years, occ. Nil,
R/o. Buddhwada Near Corporation
School, amravati Presently in Central
Prison, Amravati ...APPELLANT
VERSUS
The State of Maharashtra,
Through Police Station Officer
Police Station Rajapeth, District Amravati ...RESPONDENT
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Mrs. Sonali Saware / Gadhwe (Appointed) counsel for the appellant.
Shri. N. H. Joshi, Addl. Public Prosecutor for respondent.
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CORAM: ROHIT B. DEO, J.
DATE: 20 th
March, 2018.
ORAL JUDGMENT
The appellant is challenging the judgment and order dated 5.11.2015 rendered by the Additional Sessions Judge, Amravati in Sessions Trial 266 of 2013, by and under which, the appellant - accused is convicted for offence punishable under section 4 of Protection of Children from Sexual Offences Act, 2012 ("POCSO" Act) and is sentenced to suffer rigorous imprisonment for ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 2 seven years and to payment of fine of Rs.5,000/-.
2 Heard Smt. Sonali Saware / Gadhwe, the learned counsel for the appellant and Shri N.H. Joshi, the learned Additional Public Prosecutor for the respondent / State.
3 The prosecution case is that the accused was a friend of the father of the victim, who was then aged 14 years and studying in 7th standard. The victim was studying in her house at 6.00 p.m. On 25.8.2013, the accused came and had a word with her father and then left. The father of the victim had meal and left the house to work at the floor mill. After some time, the accused again came to the house of the victim. He had brought two liquor bottles which he consumed at the house of the victim and then asked the mother of the victim to serve meal. The accused had meal and slept at the house of the victim. He woke up at 8.00 p.m. or thereabout, came close to the victim, removed her clothes, removed his underwear and embraced the victim. The accused pressed breasts of the victim, made her lay on the floor, and then inserted his penis in her mouth. The victim raised an alarm and so did her mother who had entered the house after finishing the work of washing utensils outside the ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 3 house. The accused asked the victim to come with him to Shegaon and Pune and stay in a room. The father of the victim returned at 10.00 p.m. to whom the incident was narrated. The next day, the victim narrated the incident to her school teacher Sarita Raut and after the school hours alongwith Sarita Raut and parents lodged a report at Police Station, Rajapeth, Amravati, on the basis of which, offence punishable under section 377 of Indian Penal Code ("IPC" for short) and under section 3 and 4 of POCSO Act was registered. Investigation ensued, upon completion thereof charge sheet was submitted in the Court of Judicial Magistrate First Class, Amravati who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh. 2). The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is total denial and false implication. In response to question 28 in the statement recorded under section 313 of the Code of Criminal Procedure, the accused states that he lent Rs. 3,000/- to the father of the victim and he is falsely implicated since he demanded the refund of the said amount.
4 The prosecution has examined three witnesses who are PW 1 victim, PW 2 the mother of the victim and PW 3 the ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 4 Investigating Officer.
5 In view of the prosecution case, it is axiomatic that the material witness is the victim herself and corroboration is sought by the prosecution in the evidence of her mother who is examined as PW 2. Smt. Sonali Saware, the learned counsel for the accused would submit that the evidence of PW 1 is not confidence inspiring and her version that the accused inserted his penis in her mouth is not at all believable. The learned counsel would submit that the presence of the victim in her house at the relevant time is doubtful. The defence of false implication is more than probabilized on the touchstone of preponderance of probabilities, is the submission. Per contra, the learned Additional Public Prosecutor Shri N.H. Joshi would submit that the conviction can rest on the sole testimony of the victim. Her evidence is implicitly reliable and confidence inspiring. The defence that the accused demanded refund of the hand loan of Rs. 3,000/- from the father of the victim and therefore, he is falsely implicated, deserves rejection, is the submission. The learned APP would submit that the father of a minor girl is not likely to implicate the accused using his minor girl as a tool only because according to accused he demanded refund of hand loan of Rs. ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 5 3,000/-. The evidence on record is not suggestive of strained relationship between the family of the victim and the accused, is the submission.
6 It is not in dispute that the victim was aged 14 years and was a child within the meaning of section 2(d) of the POCSO Act. Her deposition is that on 25.8.2013, the accused came to her house, had a talk with her father and then left. After the father of the victim left for work, the accused again came to her house with two liquor bottles, consumed the liquor and asked her mother to serve meal. The accused then slept at the house of the victim for one hour and then awoke, came close to the victim and pressed her breasts. The accused removed her clothes, removed his own underwear, sat on her head and inserted his penis in her mouth. At that time, the mother of the victim was washing utensils, the victim shouted, her mother who was carrying the washed utensils came inside the house and slapped the accused. The accused asked the victim to accompany him to Shegaon and Pune and left. The victim states that after her father returned at 10.00 pm, the incident was disclosed to him and report Exh. 16 was lodged at the Rajapeth Police Station. In the cross examination, it is suggested to her that she had gone to the ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 6 house of one Khatri in the evening to wash utensils and returned home in the night. The victim admits that she used to go to the house of Khatri to wash utensils. She however denies the suggestion that on the date of the incident, she had been to the house of Khatri in the evening and returned home at night. The defence, which is referred to in the statement recorded under section 313 of the Code of Criminal Procedure, is put to her to suggest false implication. It is then suggested to the victim that the accused is working with goldsmith and used to bring golden nose tops (besar) and used to give them to the mother of the victim to sell. It is suggested that an amount of Rs. 3,000/- was due and payable by the mother of the victim to the accused as sell proceeds of the said ornaments. These suggestions are denied. It is then suggested that when the victim suffered a fracture to hand, her father borrowed Rs. 3,000/- from the accused. The accused used to visit her house to demand refund of the said amount and used to speak loudly. This suggestion is also denied by the victim. She denies the suggestion that on the date of the incident, she attended tuition. It is elicited in her cross- examination that after the incident neither her mother nor her father abused or assaulted the accused. This endeavor of the defence was to bring on record an inconsistency since in the examination in chief, ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 7 the victim stated that the accused was slapped by her mother. 7 The evidence of PW 1 is broadly consistent with the contents of the First Information Report. Her statement is recorded under section 164 of the Code of Criminal Procedure. The Investigating Officer is examined as PW 3. No attempt is made by the defence to bring on record much less to prove any omission amounting to contradiction in the evidence of the child victim vis-a-vis the First Information Report or the statement recorded under section 164 of the Code of Criminal Procedure. 8 PW 2 is the mother of the prosecutrix. While recording her demeanour, the learned Sessions Judge observed that "the witness appears to be a little mentally dull". She has deposed that she is an eyewitness to the incident. She was cleaning utensils when she heard the victim shouting. She went to the room where the prosecutrix was studying and saw the accused inserting his penis in the mouth of the child victim. The accused was sitting on the chest of the child victim, is the deposition. The suggestion given to PW 2 is that her husband used to borrow money from the accused and that when her husband suffered fracture, the accused gave money for ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 8 treatment. This suggestion is inconsistent with the suggestion given to PW 1 that Rs.3,000/- was given when PW 1 fractured her hand. Be that as it may, the suggestion is denied by PW 2. She has also denied the suggestion that she used to sell nose ornaments (besar) supplied by the accused and that she owed money to the accused. It is elicited that on the date of the incident, the victim went to the house of Khatri at 5.30 p.m. and returned at 9.30 p.m.. The learned counsel for accused vehemently submits that the said admission rules out the presence of the child victim at the time and date of the incident. The submission is noted only for rejection. The evidence of the child victim that she did not go to Khatri's house and that she was very much present at the time and on the date of the incident is clinchingly reliable. The demeanour noted is that PW 2 is a bit dull mentally. Notwithstanding the said admission that PW 1 returned at 9.30 p.m., there is cogent evidence on record that the child victim was at home at the time and on the date of the incident. Absolutely minor and insignificant omissions brought on record, are even other wise not proved. On a holistic appreciation of the evidence of PW 2, notwithstanding one or two minor inconsistencies with the evidence of PW 1, PW 2 supports and corroborates the core and substratum of the evidence of PW 1 that the accused inserted his penis in the ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 9 mouth of PW 1.
9 The learned counsel Smt. Sonali Saware invited my attention to the Division Bench Judgment of this Court in Vishal @ Sagar Vasant Waghmare & Ors...Vs...The State of Maharashtra, 2015 ALL MR (Cri.) 301 to buttress the submission that in the teeth of evidence on record, the statutory presumption under section 29 of the POCSO Act is not activated. The Division Bench was confronted with a situation where the prosecutrix made inconsistent and irreconcilable statements in the examination in chief and in the cross examination. The prosecutrix initially declined to identify the accused, then at the behest of the prosecutrix identified the accused and again did a volte face in the cross examination on behalf of the accused and declined to identify the accused and stated in categorical terms that the accused were not the offenders. The father of the prosecutrix did not support the prosecution. It was in view of the nature of evidence on record that the Division Bench observed that the statutory presumption under section 29 of POCSO Act is not attracted. Smt. Sonali Saware, the learned counsel then brought to my notice judgment of a learned Single Judge in Sachin s/o. Baliram Kakde ...vs.. The State of Maharashtra, 2016 ALL MR ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 ::: 10 (Cri.) 4049. The said judgment is rendered in the facts of the case. The prosecution case was that the rape of the prosecutrix was videographed and threats to make the video clip public were issued. The learned Sessions Judge has held that the prosecution case that the victim was stupefied was belied by the video clip and that in view of the medical evidence, the presumption under section 29 of POCSO Act stands rebutted. I am afraid, neither of the two decisions referred to by the learned counsel take the case of the appellant any further. The evidence of the child victim is implicitly reliable and the irresistible inference is that the prosecution has proved foundational facts and the statutory presumption under section 29 of the POCSO Act is activated.
10 In this view of the matter, this Court must necessarily take note of the statutory presumption under section 29 of the POCSO Act. The foundational facts having been established, the burden shifted on the accused to prove that he did not commit the offence. This burden is not discharged.
11 I do not see any infirmity in the judgment and order impugned.
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The appeal is sans merit and is rejected.
12 Fees of the appointed counsel are quantified at Rs.5,000/-.
JUDGE RSB ::: Uploaded on - 22/03/2018 ::: Downloaded on - 23/03/2018 02:04:18 :::