Bombay High Court
Surendra S/O Ramkisan Khobragade vs The State Of Maharashtra, Through ... on 13 October, 2017
Author: R. B. Deo
Bench: R. B. Deo
1 apeal69of16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 69 OF 2016
Surendra s/o. Ramkisan Khobragade,
Aged about 53 years,
Occupation : Mechanic,
Resident of Gonditola Kudwa,
Tahsil and District Gondia .... APPELLANT
Versus
The State of Maharashtra,
through its Police Station Officer,
Ramnagar, Police Station Ramnagar,
Tahsil and District Gondia. .... RESPONDENT
______________________________________________________________
Mr. B.M. Kharkate, counsel for the appellant.
Mr. H.R. Dhumale, Addl. Public prosecutor for respondent.
______________________________________________________________
CORAM :ROHIT
B. DEO, J.
DATE OF RESERVING THE JUDGMET
:10.10. 2017
DATE OF PRONOUNCING THE JUDGMENT : 13.10.2017
ORAL JUDGMENT :
Challenge is to the judgment and order dated 5.2.2016, in Special Case 7 of 2013 delivered by Special Judge, Gondia, by and under which the appellant (hereinafter referred to as "the accused") is convicted of offence punishable under section 7 read with section 8 of ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 ::: 2 apeal69of16 the Protection of Children from Sexual Offences Act ("POCSO" for short) and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 500/- and is further convicted of offence punishable under section 354-A of Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 200/- and is further convicted of offence punishable under section 354-B of IPC and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.500/-. The accused is also convicted of offence punishable under section 3 (1) (x) and (xii) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities Act) (for short "Atrocities Act") and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 200/-.
2 Heard Shri. B.M. Kharkate, the learned counsel for the accused and Shri H.R. Dhumale, the learned Additional Public Prosecutor for the respondent.
3 The case of the prosecution is that the victim (PW 5) who was nine years as on the date of the incident was residing with her mother Smt. Veena Bhuwati at village Kudwa, Tahsil and District Gondia. The victim was mentally challenged. On 24.1.2013, the ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 ::: 3 apeal69of16 mother of the victim had gone to the field to fetch wood for fuel and the victim was playing in front of her house. The accused accosted the victim, took her behind house of one Rajni Maraskolhe, gave her money and biscuits and removed her clothes. Smt. Chhotibai Vithoba Salunkhe saw the accused taking the victim girl, followed the accused and caught the accused removing the underwear of the victim red handed. She intervened and the accused fled from the spot. Chhotibai (PW 2) brought the victim girl home and narrated the incident to her mother (PW 1). A report was lodged against the accused by PW 2 - Veena on the basis of which offence under section 354-A and 354-B of IPC, under section 9 (K) of POCSO Act and under section 3 (1) (x),
(xii) of Atrocities Act was registered at Ramnagar Police Station, Gondia. The investigation was conducted by Deputy Superintendent of Police Shri Anil Paraskar (PW 6) and the accused was chargesheeted in the Special Court at Gondia.
4 The Special Judge framed charge at Exh. 4, the accused abjured guilt and claimed to be tried. The defence of the accused as is apparent from the statement recorded under section 313 of the Code of Criminal Procedure, is of total denial and false implication. A specific defence is taken by the accused that he was desirous of purchasing the land besides the land of Maraskolhe and so was PW 4 Devipuri ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 ::: 4 apeal69of16 Gangdarao and in view of the strained relationship inter se between the accused and PW 4, the complainant Veena was instigated by PW 4 to falsely implicate the accused.
5 The prosecution has examined as many as seven witnesses including complainant Sau. Veena Ramesh Bhowati as (PW 1), Chhotibai Vithoba Salunkhe (PW 2), Antkalabai Santosh Sulanke (PW
3), Devipuri Govindpuri Gangadrac (PW 4), victim girl (PW 5), Shri Anil Subhash Paraskar (PW 6) and Vimal w/o. Yashwant Tadge (PW
7).
6 The deposition of PW 1 Smt. Veena is broadly consistent with the First Information Report. She states that the victim is mentally challenged. She further states that when she had gone to the field for bringing firewood, the victim was playing in front of the house. PW 3 - Antakalabai came to the field and told her that the accused took her daughter towards the house of Rajni Maraskolhe and this was disclosed to her mother in law Chhotibai (PW 2). PW 1 Veena rushed home, saw the victim surrounded by neighbours, Chhotibai PW 2 told her that she had followed the accused while he was taking the victim girl with him and saw the accused removing the underwear of the victim girl.
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5 apeal69of16 The evidence of Chhotibai PW 2 is on similar lines. She states that her daughter in law Antakalabai told her that the accused took the victim towards the house of Maraskolhe, she followed the accused and saw the accused, removing the underwear of the victim girl. She intervened and the accused fled away from the spot. PW 3 Antakalabai has deposed that she saw the accused taking the victim girl towards house of Maraskolhe and disclosed this to her mother in law Chhotibai. She then informed the mother of the victim Veena that the accused took her daughter to the house of Maraskolhe.
7 The victim is examined as PW 5. She has deposed that the accused gave her money and biscuit and removed clothes at the house of Maraskolhe. She then deposed that since mother of Manju and Antakala came there, the accused fled from the spot. 8 Deputy Superintendent of Police Shri. Anil Paraskar, who is Investigating Officer, is examined as PW 6. He has deposed as to the various facets of the investigation.
9 Smt. Vimal Tagde who is examined as PW 7 has proved the age of the prosecutrix. She has deposed that she is in-charge Head Mistress of Nagar Parishad Marathi Prathamik School, Gondia since ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 ::: 6 apeal69of16 December 2012. The victim girl was studying in her school in the 1st standard and her date of birth as per the school register was 15.4.2004. PW 7 has further deposed that the victim belongs to Mahar (Scheduled Caste) community. She has proved certificate Exh. 31 issued on the basis of the school register and the copy of the school admission register evidencing that the date of birth of victim is 15.4.2004. 10 Shri. B.M. Kharkate, the learned counsel for the accused submits that the judgment of conviction is against the weight of evidence on record. He submits that the learned Special Judge failed to appreciate that the accused had probabilized the defence of false implication on the touchstone of preponderance of probabilities. The learned counsel for the accused Shri. B.M. Kharkate would further submit that the prosecution failed to prove offence under section 3 (1)
(x) and (xii) of Atrocities Act and the conviction is unsustainable. The learned counsel for the accused Shri. B.M. Kharkate would submit that the victim has admitted that she was instructed by her mother as to what is to be deposed during the trial.
Shri. B.M. Kharkate, the learned counsel, would submit that the evidence on record is grossly insufficient to prove the offence much less beyond reasonable doubt.
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7 apeal69of16 11 Per contra, Shri. H.R. Dhumale, the learned Additional Public Prosecutor would submit that the evidence of the eye witness PW 2 Chhotibai who has seen the accused removing the underwear of the victim is not shaken in cross examination. Her evidence is confidence inspiring and the conviction can be based on the sole testimony of the eye witness PW 2. The learned APP Shri. Dhumale would then submit that although the victim was perceived by the learned Special Judge as a slow learner, her evidence is also confidence inspiring. She has categorically deposed that the accused gave her money and biscuits and removed her clothes at the house of Rajni mami. (reference is to Smt. Rajni Maraskolhe). It is true that some discrepancies are brought on record in her cross examination. Illustratively, in response to a question in the cross examination, the victim states that no one has inquired with her about the incident. She has also accepted the suggestion that her mother instructed her as to what is to be deposed before the Court. On a holistic appreciation of the evidence, I am not persuaded to hold that such stray answers from the victim girl are sufficient to dent the credibility of her testimony. The victim, concededly, a slow learner was hardly 11 years when she entered the witness box. The answer that she was instructed by her mother as to what is to be deposed does not necessarily suggest that she was tutored and is not a truthful witness. The stray statement that ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 ::: 8 apeal69of16 no inquiry was made by anybody about the incident is of little significance.
12 PW 2 Chhotibai has deposed that she saw the accused removing the underwear of the victim girl. It is brought on record that she is a beggar and she begs pretending that she can not see. It is also brought on record that PW 2 has eye sight problem. However, her testimony can not be discarded or brushed aside simply because she is a beggar pretending that she can not see. The testimony of PW 2 is more than amply corroborated by the testimony of Veena PW 1, Antakalabai PW 3 and that of the victim herself. Antakalabai PW 3 has deposed that she saw the accused taking the victim girl towards the house of Maraskolhe and disclosed this to her mother in law Chhotibai (PW 3). She has deposed that after discloser to Chhotibai, she rushed to inform PW 1 Veena. Nothing is brought out in the cross examination of PW 3 to take the case of the accused any further. 13 The learned APP Shri. Dhumale is right in contending that in view of the presumption under section 29 of the POCSO Act which is activated on a person being prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 and 9 of the Act and in the teeth of the evidence on record, the prosecution has proved ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 ::: 9 apeal69of16 the offence beyond reasonable doubt.
The appeal is devoid of substance and is dismissed.
JUDGE Belkhede ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 02:49:30 :::