Bombay High Court
Dhanraj Sadashiv Molke vs The State Of Maharashtra Thr. P.S.O., ... on 6 March, 2019
Author: V.M. Deshpande
Bench: V. M. Deshpande
1 APEAL793a.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 793 OF 2018
APPELLANT : Dhanraj Sadashiv Molke,
Aged about 49 years, Occu. Labour Work,
R/o Mangrul Bhelapur, Tq. Morshi,
District Amravati.
VERSUS
RESPONDENT : The State of Maharashtra,
through Police Station Officer,
Police Station, Shirkhed,
Tq. Morshi, District Amravati.
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Mr. A. D. Tote, Advocate appointed for the appellant.
Mr. S. M. Ghodeswar, A. P. P. for respondent/State
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CORAM : V. M. DESHPANDE, J.
DATE : MARCH 06, 2019.
ORAL JUDGMENT
1. This appeal challenges the judgment and order of conviction passed by the learned Additional Sessions Judge-6, Amravati, dated 21.4.2018 in Special POCSO Case No. 80/2017. By the said judgment and order of conviction, the appellant stands convicted for the offence punishable under Section 376(1)(2)(i)(j) of the Indian Penal Code and directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs.5,000/- and in ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 2 APEAL793a.18.odt default of payment of fine to undergo simple imprisonment for one month. The appellant is also convicted for the offence under Section 3 punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act" for short) and directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for one month. The appellant is also convicted for the offence under Section 5 punishable under Section 6 of the POCSO Act and and directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for One month.
2. I have heard Mr. A.D. Tote, the learned counsel appointed through the High Court Legal Services Sub-Committee, Nagpur for and on behalf of the appellant and Mr. S. M. Ghodeswar, the leaned Additional Public Prosecutor for the respondent/State. With their able assistance, I have gone through the record and proceedings and also the notes of evidence.
3. It is the submission of Mr. Tote, the learned counsel appointed for the appellant that the appellant is falsely implicated in ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 3 APEAL793a.18.odt the crime. He submitted that prior to two months of the incident, there was verbal altercation in between the appellant and the complainant and in the said verbal altercation, the complainant, father of the victim, abused him in the name of caste and therefore, he is falsely implicated in the crime. It is also the submission of the learned counsel for the appellant that the Chemical Analyser's reports (Exh.3 to 5) are negative in nature. It is also his submission that Dr. Balwant Ramteke (PW10), who examined the victim did not notice any injury on genital area or any part of the body of the victim. He submitted that the girl is not examined by the prosecution. To sum up his arguments, it is the submission of the learned counsel that if the Court is of the view that the offence is committed by the appellant, some leniency should be shown in favour of the appellant by reducing the quantum of sentence.
4. Per contra, Mr. Ghodeswar, the learned Additional Public Prosecutor for the respondent/State, very ably meets the submissions made by the counsel for the appellant. He submitted that positive Chemical Analyser's report cannot be expected in view of the nature of the act done by the appellant. It is also his submission that the version of PW1 Pravin, the father of the victim, is trustworthy and he is eye-witness to the incident. He submitted ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 4 APEAL793a.18.odt that so far as leniency is concerned, the Court below has already shown leniency and looking to the age of the girl, he submitted that the Court should not show further leniency in favour of the appellant and prays for dismissal of the appeal.
5. The first information report is lodged by Pravin (PW1). His oral report is at Exh.16, on the basis of which PSI Sachin Taywade (PW12) registered the offence against the appellant vide Crime No. 52/2017 for the offence punishable under Section 376(2)
(i) of the Indian Penal Code and under Section 4 and 6 of the POCSO Act at Police Station, Shirkhed, District Amravati. PW12 PSI Taywade has conducted entire investigation of the crime and filed the charge-sheet in the Court of law.
6. The learned Judge of the Court below has framed the Charge against the appellant for the offence punishable under Section 376(1)(2)(i)(j) of the Indian Penal Code and also under Section 3 punishable under Section 4 and under Section 5(l) punishable under Section 6 of the POCSO Act.
7. The appellant denied the Charge and claimed for his trial. During the course of the trial against the appellant, the ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 5 APEAL793a.18.odt prosecution has examined in all 12 witnesses. They are PW1 Pravin, first informant and father of the victim, PW2 Pravin Solav, who informed the first informant that the appellant took the minor girl with him, PW3 Jaydeo Bhonde, who noticed presence of PW1 Pravin, victim and appellant in front of the house of the appellant and he seen the quarrel in between them, PW4 Ashok Rahate, a panch witness to seizure memo (Exh.27) of one sealed and one half packet of 'kurmura' from the spot of occurrence. He is also panch to spot panchanama (Exh.28) and seizure panchanama (Exh.29) in respect of clothes of the victim, PW5 Prakash Uike is a panch to the seizure panchanama (Exh.32) of the clothes of the accused, PW6 Chandu Ghormade is a person in whose presence medical samples of the victim were seized under seizure memo (Exh.34) and medical samples of the accused were seized under seizure memo (Exh.35), PW7 Kiran Lakade is a Police Constable, who brought the appellant for his medical examination and after medical examination took his medical samples in sealed condition and handed over the same to the Investigating Officer, which were seized under seizure panchanama (Exh.35), PW8 Amit Aware is a Police Constable who deposited the muddemal articles with Chemical Analyser at Nagpur, PW9 Kamla Raibole is a Lady Police Constable, who took the victim to the hospital for her medical examination, PW10 Dr. Balwant ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 6 APEAL793a.18.odt Ramteke is a Medical Officer, who examined the victim as well as the appellant and proved the respective medical certificates. PW11 Krushnakumar Thakre, is a Mandal Officer, who prepared the map of spot of incident (Exh.53) and PW12 is PSI Sachin Taywade, the Investigating Officer.
8. As per the oral report (Exh.16) lodged by PW1 Pravin, which is filed on the date of the incident itself i.e. 07.2.2017, his wife went to her parental house at Gourkheda-kumbhi and in the house only he, his mother and the victim aged about three years were present. At about 4.00 O'clock in the afternoon first informant Pravin went to a temple for darshan. After his return, he found that his daughter is not present in the house. Therefore, he made enquiry with his mother. She told him that the victim was outside the house. At that time, Pravin Solav (PW2) informed to the first informant that his daughter is taken by the appellant to his house. Therefore, to bring back his daughter, the first informant went to the house of the appellant. At that time, the first informant found that the appellant was in naked condition and half pant of the girl was also removed and he was playing with the private part of the girl by his hand and also was inserting his finger inside the vagina of the small girl. The girl was weeping. The first information report ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 7 APEAL793a.18.odt further recites that noticing this, he got enraged and assaulted on the appellant resulting into head injury to the appellant. Thereafter, he started abusing the appellant and that time one Jaydeo (PW3) and Vittal Dange came there. He narrated the incident to him and thereafter, the first information report was lodged.
9. Birth Certificate of the girl is available on record. It is at Exh.61. It shows that the date of birth of the girl is 30.9.2013 and the incident in question is dated 07.2.2017. Thus, the girl was aged about three years on the date of the incident. From the entire record and proceedings, it is clear that the age of the girl was never disputed by the appellant. Similarly, before this Court also, the counsel for the appellant has not disputed the age of the girl and in my view, rightly, in view of the birth certificate (Exh.61) issued by the Competent Authority.
10. It is the submission of Mr. Tote, the learned counsel for the appellant that in the present case, the victim is not examined by the prosecution and therefore, the prosecution case must fail. Merely because the victim is not examined that cannot be the reason to discard the entire prosecution case, if there is other sufficient evidence available on record to prove the culpability of the ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 8 APEAL793a.18.odt appellant/accused. In the present case, at the time of the incident the age of the girl was three years only. Through the cross- examination of PW1 Pravin, father of the victim, it is brought on record that the victim spoke incoherently (vM[kGr). If that be so, non-examination of the victim would not be sufficient to discard the entire case of the prosecution if there is sufficient evidence and material available on record to punish the appellant for the heinous act which he has done on a small girl, aged about three years. Therefore, I have no hesitation in my mind to reject the submission of the learned counsel for the appellant that the prosecution case is required to be discarded for non-examination of the victim.
11. The another submission of the learned counsel for the appellant that the Chemical Analyser's reports are negative and therefore, the prosecution has not proved its case against the appellant, also requires to be rejected. The Chemical Analyser reports are always in the nature of corroborative piece of evidence. It cannot take place of substantive evidence. Further, in the present case, according to the prosecution, the appellant did not insert his private part inside the private part of the victim, nor it is the case of the prosecution that the appellant discharged his semen inside the vulva of the victim. The case of the prosecution is that the appellant ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 9 APEAL793a.18.odt touched the private part of the victim by his finger. If that be so, nobody can expect scientific evidence in the nature of Chemical Analyser reports of noticing semen stains etc. Further, Dr. Ramteke (PW10) did not notice injury on the private part of the victim. Therefore, there is no possibility of even oozing blood. In that view of the matter, there cannot be any blood stains also on the clothes of the victim. In view of these aspects, I have no hesitation to reject the submission of the learned counsel for the appellant that the chemical Analyser reports absolve the culpability of the appellant.
12. Dr. Balwant Ramteke (PW10) was discharging his duties as Medical Officer at Sub-District Hospital, Morshi on 08.2.2017. On the said day, the victim was brought by police and her father. The doctor found her age as three years and in view of the requisition letter (Exh.45) given to him by the Investigating Officer, he examined the victim. After medical examination, he found that there were no signs suggestive of sexual intercourse and also found no injuries on the private part of the victim girl. Accordingly, he issued medical certificate (Exh.46). Exh.46 shows that the doctor has opined about possibility of manual insertion of digit finger.
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13. In the present case, the horrendous act of the appellant of touching and inserting his finger inside the private part of a very small girl is noticed and witnessed by her father PW1 Pravin. If his evidence is found to be trustworthy, then there will be no difficulty in recording the finding of guilt against the appellant.
14. As per the oral report (Exh.16) and from the substantive evidence of PW1 Pravin, father of the victim, it is clear that on the date of the incident, he, victim and his mother were in the village. His evidence would show that his wife had been to her parental home at Gourkheda-kumbhi and at about 4.00 O-clock, Pravin went for taking darshan in the temple of Navlaji Maharaj Sansthan. After darshan when he returned to his house, he could not notice his daughter and therefore, he made enquiry with his mother, who disclosed that the victim was sitting outside the house. When he came out of the house, at one construction site, Pravin Solav (PW2) was present. He told to the first informant that the appellant took the victim with him. He also gave information that two packets were there in the hands of the appellant. The appellant resides after 3- 4 houses of the first informant. Therefore, he was knowing him. He, thereafter went to the house of the appellant. That time, he heard the noise of weeping. When he entered in the house, he ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 11 APEAL793a.18.odt found that the appellant has inserted his finger in the vagina of his daughter. Therefore, he gave 2-3 slaps to the appellant and also pushed him.
15. It is also the submission of the learned counsel for the appellant that minute details narrated by the first informant in his evidence are not found in the first information report. The first information report is not an encyclopedia of the prosecution case. It only sets the criminal law into motion. It is always open for the first informant to give his detailed statement during the course of the investigation. The learned counsel for the appellant tried to point out that there are omissions in the evidence of PW1 Pravin, which are proved by the Investigating Officer. However, on examination of the entire record and proceedings, I found that the omissions were not properly recorded. Further, even otherwise those omissions are not in respect of the core of the prosecution case that the appellant inserted his finger in the vagina of the girl. Therefore, the said omissions which are very minor in nature, have no bearing on the prosecution case.
16. In the course of the trial, the prosecution has examined PW2 Pravin Solav and PW3 Jaydeo Bhonde. These two prosecution ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 12 APEAL793a.18.odt witnesses corroborate the version of PW1 Pravin to the effect that PW2 Pravin informed the first informant that he noticed the appellant taking away the girl with him to his house and PW3 Jaydeo corroborates the version of Pravin (PW1) that there was a quarrel between PW1 Pravin, the first informant and appellant and the first informant was giving abuses to the appellant.
17. As per the version of PW1 Pravin, father of the victim, after noticing heinous act committed on his daughter by the appellant, he lost his control and has slapped and pushed the appellant resulting into injuries on the person of the appellant. This reaction on the part of a father is most natural when in presence of a father, his small daughter is ravished in the manner which he described. Any father will loose his control in such a situation and the first natural reaction would be to react immediately. Reaction of a father will differ from person to person. Ultimately, it is a reaction of a human to a particular situation. In my view PW1 Pravin, a villager if reacts in a manner which he described, it cannot be the unnatural one.
18. After arrest of the appellant, he was sent for his medical examination. PW7 LPC Kiran Lakade took him to the hospital and ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 13 APEAL793a.18.odt Dr. Ramteke (PW10) examined him on 08.02.2017. On his examination, Doctor gave his medical report, which is at Exh.48. Perusal of Exh.48 shows that there was contused lacerated wound on the head of the appellant. So also there were contusions on occipital region of scalps. This particular medical evidence clearly supports and corroborates the version of Pravin (PW1), the father of the victim, that he assaulted on the appellant after he noticed the heinous act. Further, the appellant himself has admitted about the injury on his person, when he was examined under Section 313 of the Code of Criminal Procedure to an answer to question no.21. However, he did not offer any explanation as to why there occurred injury on his head.
19. According to Mr. Tote, the learned counsel appointed for the appellant, he is falsely implicated in the crime because prior to 2 - 3 months of the incident, PW1 Pravin abused the appellant in the name of his caste. It is brought on record that Pravin (PW1) is 'Maratha - Kunbi' by his caste, whereas the appellant is 'Bouddha', which is a Scheduled Caste. According to the defence and according to the submission of the learned counsel for the appellant, prior to 2
- 3 months, Pravin (PW1) abused on caste to the appellant in verbal altercation took place between them and in order to take revenge of ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 14 APEAL793a.18.odt the same, present offence is registered at his behest. In my view, this defence is required to be rejected outrightly. Even according to the defence, the incident of giving abuses occurred prior to 2-3 months of the incident. Thus, there was no live link in between the said incident and the incident in question. Further, had there were abuses on caste by Pravin (PW1) to the appellant, it would have been most natural on the part of the appellant to lodge report in the police station against the first informant Pravin to book him under the relevant provisions of the Atrocities Act, but no such thing has happened. This shows that the defence is not worth to be considered.
20. The version of the father (PW1 Pravin), in my view, is trustworthy in view of the discussions made by me in the preceding paragraphs of this judgment. Once the evidence of PW1 Pravin is found to be trustworthy and can be safely relied upon, I see no reason on re-appreciation of the facts to disturb the findings recorded by the learned Court below to the extent the appellant is convicted for the offence punishable under Section 376 of the Indian Penal Code and under Section 3 punishable under Section 4 of the POCSO Act. However, in my view, the appellant cannot be convicted for the offence under Section 5(l) punishable under ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 15 APEAL793a.18.odt Section 6 of the POCSO Act, for which he was charged.
21. Section 5(l) of the POCSO Act reads as under :
"5. Aggravated penetrative sexual assault. -
(a) to (k) ........
(l) whoever commits penetrative sexual assault on the child more than once or repeatedly ; or .....
22. In the present case, there is no evidence that the appellant has committed heinous act more than once and/or repeatedly. Therefore, the ingredients of said section are not proved. In that view of the matter, his conviction for the said offence cannot stand to the scrutiny of law. Therefore, the conviction recorded by the Court below convicting the appellant for the offence under Section 5(l) punishable under Section 6 of the POCSO Act is liable to be quashed.
23. Insofar as sentence is concerned, according to the learned counsel, leniency is required to be shown to the appellant looking to his age and he being the only bread winner of his family.
24. The minimum punishment for the offence punishable under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act is Seven years, which may extend to life. In the ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 ::: 16 APEAL793a.18.odt present case, the Court below has imposed punishment of Ten years.
25. The Court cannot forget the fact that the appellant aged about 48 years has committed a shameful and heinous act, which is duly proved, on a small girl aged about three years only. IN that view of the matter, the Court below has already shown leniency in not extending the sentence beyond Ten years, warranting no interference in the sentence. Consequently, I pass the following order :
ORDER
1. The criminal appeal is partly allowed.
2. The judgment and order of conviction passed by the learned Additional Sessions Judge-6, Amravati, dated 21.4.2018 in Special POCSO Case No. 80/2017 convicting the appellant for the offence under Section 5(l) punishable under Section 6 of the POCSO Act is hereby quashed and set aside.
3. However, the impugned judgment and order of conviction convicting and sentencing the appellant for the offence punishable under Section 376(1)(2)(i)(j) of the Indian Penal Code and under Section 3 punishable under Section 4 of the POCSO Act is hereby maintained. ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 :::
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4. Mr. A.D Tote, the learned counsel appointed for the appellant is entitled to receive his remuneration from the High Court Legal Services Sub-Committee, Nagpur which is quantified at Rs.5,000/- (Rupees Five thousand only).
5. With this, the criminal appeal is partly allowed and disposed of.
V.M. Deshpande, J.
Diwale ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 02:37:17 :::