Bombay High Court
Vishal Dagdu Gawai And Another (In Jail) vs The State Of Maharashtra Thr. Police ... on 23 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal264.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.264 of 2017
1) Vishal Dagdu Gawai,
Aged about 21 years,
Occupation - Agriculturist,
2) Sau. Rekha w/o Sheshrao Gawai,
Aged about 35 years,
Occupation - Household duties,
Both the above are R/o Satali,
Tahsil Jalgaon Jamod,
District Buldhana. .... APPELLANTS
VERSUS
The State of Maharashtra,
through Police Station Officer,
Jalgaon Jamod, Tq. Jalgaon Jamod,
District Buldhana. .... RESPONDENT
______________________________________________________________
Shri S.V. Sirpurkar, Counsel for the appellants,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 23
MARCH, 2018.
rd
ORAL JUDGMENT :
The appellants are challenging the judgment and order dated 28-4-2017 rendered by the learned Special Judge, Khamgaon in ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 2 apeal264.17 Sessions Trial 108/2014, by and under which the appellant-accused Vishal Dagdu Gawai is convicted for offence punishable under Section 376(2)(i) and (n) of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and is further convicted for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act" for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and appellant-accused Rekha Sheshrao Gawai is convicted for offence punishable under Section 376(2)(i) and (n) read with Section 109 of the IPC and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and is further convicted for offence punishable under Section 6 read with Section 17 of the POCSO Act and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/-.
2. The prosecution case :
The victim is residing with her parents, brother and sister at village Satali and was studying in 10th standard in Bhai Bhaskarrao Shingne Maharashtra Vidyalaya, Gadegaon Khurd. The victim and the accused are related and reside in the same locality. ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 :::
3 apeal264.17 In March or April of 2014, the victim was alone at her home since her parents were at work as agricultural labourers and her brother and sister had gone to play. The day was Sunday. In the afternoon, accused Rekha, who is the aunt of accused Vishal, came to the house of the victim and asked the victim to accompany her to her house to meet accused Vishal. The victim refused, however, Rekha caught her hands and took the victim to her house. Rekha then called accused Vishal who resided in the adjacent house. Vishal started making sexual advances, which the victim resisted. Rekha asked the victim to allow Vishal to do what he wanted to do and told the victim that nothing would happen if the act was done only once. Therefore, the victim did not protest and accused Vishal committed sexual intercourse with her. After the act, accused Vishal threatened to kill the victim or her parents if the incident is disclosed to her parents.
A month or two after the said incident accused Rekha came to the house of the victim in the morning and told the mother of the victim that since women labourers were not available for plucking cotton in her field, she should send the victim to her field for plucking raw cotton. The victim was not inclined. However, her mother convinced her and sent her to the field of accused Rekha. The victim went to the field of Rekha at 10-30 a.m. and alongwith accused Rekha ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 4 apeal264.17 started plucking raw cotton. Between 12-00 to 12-30 p.m. the accused came to the field, carried the victim to some distance in the cotton crop and committed sexual intercourse. The victim returned home in the evening, contemplated disclosing the incident to her parents but did not do so due to the fear of accused. Again after fifteen to twenty days accused Vishal committed sexual intercourse with the victim at the house of accused Rekha.
The victim missed menses, initially consulted a doctor at village Khandwi alongwith her mother who could not diagnose that she was pregnant. The victim was taken by her mother to one Dr. Gothi at Nandura who did her sonography and disclosed that the victim was carrying foetus of five to six months. The victim went to Government Hospital at Akola with her grandmother and father for abortion and was informed that since the foetus was of five to six months abortion was not an option. The victim was admitted in the said hospital for same days, the Medical Officer summoned Members of Child Welfare Committee, Akola who contacted the Members of the Child Welfare Committee, Buldhana who took the victim to Dr. Smt. Agashe for examination. Dr. Smt. Agashe referred the victim to Dr. Smt. Chinchole for sonography who told the victim the date of the delivery. It was then that the victim went to Buldhana (City) Police Station ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 5 apeal264.17 alongwith her father, grandfather, grandmother and members of Balkalyan Samiti and lodged oral report (Exhibit 32).
Investigation ensued. In the month of November 2014, the victim gave a birth to a female child.
On the basis of the oral report (Exhibit 32) and printed first information report (Exhibit 33), offence punishable under Section 376 read with Section 34 of the IPC and Sections 4, 8 and 12 of the POCSO Act was registered. The D.N.A. test which was conducted conclusively established that accused Vishal and victim were the biological parents of the child born to the victim. Upon completion of the investigation, charge-sheet was submitted in the Sessions Court.
The learned Special Judge framed charge (Exhibit 24) against accused Vishal for offence punishable under Section 376(i) and
(n) of the IPC and Sections 6 of the POCSO Act and accused Rekha for offence punishable under Section 376 read with 109 of the IPC and Section 6 read with Section 17 of the POCSO Act. The accused abjured guilt and claimed to be tried. The defence of the accused is of total denial and false implication. It is suggested to the victim in the cross- examination that the accused are falsely implicated due to strained relationship between the parents of the victim and the accused. ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 :::
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3. The victim has deposed that her date of birth is 26-11-1998. The father of the victim P.W.2 has also deposed that the victim was born on 26-11-1998. It is suggested to the victim that the date of birth mentioned in the school leaving certificate is not correct, which suggestion is denied. The birth certificate of the victim (Exhibit
82) which is issued under the provisions of the Birth and Death Registration Act and the Rules framed thereunder evidences that the date of birth of the victim is 26-11-1998. P.W.9 Investigating Officer has deposed that the birth certificate (Exhibit 82) was produced by the father of the victim. The authenticity of the birth certificate is not challenged. The suggestion given to the Investigating Officer is that though the birth certificate of the victim was available, the Investigating Officer did not seize it during investigation. The Investigating Officer denies the suggestion and volunteers that the father of the victim informed that the birth certificate could not be located and as and when same is located he shall produce the birth certificate before the Investigating Officer. In the teeth of the evidence on record, the conclusion is irresistible that the victim was a child within the meaning of Section 2(d) of the POCSO Act at the relevant time.
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4. The D.N.A. examination report (Exhibit 15) concludes that the victim and accused Vishal are the biological parents of the child born to the victim. P.W.5 Dr. Manisha Chavan has deposed that on 20-10-2014 the victim and accused Vishal were brought to the hospital by Jalgaon Jamod police who were armed with a D.N.A. kit. P.W.5 collected blood samples of the victim and accused Vishal in the D.N.A. kit after getting the identification form filled in the presence of witnesses Lakhan Agrawal, Raju Tayade and Baban Banjare and handed over the forms to the police constable for being submitted to Regional Forensic Science Laboratory, Nagpur alongwith Form-B. P.W.7 Head Constable Surendra More carried the D.N.A. kit to RFSL, Nagpur alongwith sealed phials and test tube in plastic jars, in sealed condition. The report of RFSL, Nagpur (Exhibit 63) records that the laboratory received one sealed plastic container with seal intact containing blood of accused Vishal and victim in vials. P.W.8 PSI Mupade has deposed that he received letter (Exhibit 55) from RFSL, Nagpur on 18-11-2014 stating that the D.N.A. examination of accused Vishal and the victim had been conducted and blood of the child was required to match the D.N.A. profiles. The blood sample of the child was collected on 01-12-2014 and the D.N.A. kit was sent to the RFSL, Nagpur, which received the same in sealed condition. D.N.A. ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 8 apeal264.17 examination report (Exhibit 15) records thus.
All the 15 different genetic systems analyzed with PCR, putative father Vishal Gawai (accused no.1) from R.F.S.L. ML. Case No.DNAn545/2014 matched the obligate paternal alleles present in baby of prosecutrix by all 15 STR Loci. Similarly, mother prosecutrix from R.F.S.L. ML. Case No.DNAn545/14 also matched the obligate maternal alleles present in baby of prosecutrix at all 15 ST Loci. On the basis of the interpretation of the result of DNA typing the chemical analyzer has opined that accused no.1 Vishal and prosecutrix are concluded to be biological parents of baby of prosecutrix.
5. In fairness to the learned Counsel for the accused, it is not even argued before me that the prosecution failed to prove that the accused Vishal established sexual relationship with victim. The main plank of the submission is that the age of the prosecutrix is not proved to be less than eighteen years beyond reasonable doubt and the sexual relationship, was obviously consensual. I have already held that the prosecution has proved beyond reasonable doubt that the victim was less than eighteen years of age at the relevant time and a child within the meaning of Section 2(d) of the POCSO Act. The consent of the ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 9 apeal264.17 victim, even if arguendo, the submission of the learned Counsel is examined seriously, is irrelevant since the prosecution was irrefragably less than eighteen years of age when the accused established sexual contact with her.
6. The evidence of the child victim (P.W.1) is implicitly reliable and confidence inspiring. She has deposed that accused Rekha played a significant role and aided accused Vishal in commission of the offence. The victim was not inclined to concede to the demand of accused Rekha that she should accompany Rekha to her house to meet accused Vishal. When accused Vishal started making sexual advances, accused Rekha told the victim to permit accused Vishal to do what he wanted to do and if the act is done once nothing would happen. The victim has deposed that one or two months after the first incident, it was accused Rekha who took her to her field to pluck cotton and accused Vishal came there and subjected the victim to sexual intercourse. The victim then states that fifteen to twenty days after the sexual intercourse committed by accused Vishal in the field of accused Rekha, accused Vishal subjected her to sexual intercourse at the house of accused Rekha. However, the evidence that after fifteen to twenty days accused Vishal committed sexual intercourse with the victim at ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 10 apeal264.17 the house of accused Rekha is an omission. Even after keeping out of consideration the evidence which is brought on record as an omission, on a holistic appreciation of the evidence of P.W.1 the complicity of accused Rekha as an abettor stands conclusively established.
7. I do not find any error in the finding recorded by the learned Sessions Judge that it is proved beyond reasonable doubt that accused Rekha abetted the commission of offence punishable under Section 376(2)(i) and (n) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012. The victim is related to both the accused. The defence of false implication is not probabilized even on the touchstone of preponderance of probabilities. The prosecution having conclusively proved that accused Vishal established sexual relationship with the victim and is the biological father of the child born from the said relationship, the half hearted suggestions given to the victim and her father (P.W.2) that in view of some quarrel or altercation, the accused are falsely implicated, does not take the case of the defence any further. It must be borne in mind that Section 29 of the said POCSO Act mandates that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of the POCSO Act, the Special Court shall ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 ::: 11 apeal264.17 presume, that such person has committed or abetted or attempting to commit the offence, as the case may be, unless the contrary is proved (emphasis supplied). The prosecution is not relieved from the burden of proving the foundational facts. Any other interpretation of Section 29 of the POCSO Act would render the provision vulnerable to the vice of unconstitutionality. In the light of the evidence on record, the prosecution has proved the foundational facts beyond reasonable doubt and the statutory presumption stands activated. The defence made no serious endeavour to rebut the statutory presumption.
8. The judgment and order impugned is unexceptionable.
9. The appeal is sans merit and is rejected.
10. Accused Rekha is on bail. Her bail bond stands cancelled. She shall be taken in custody forthwith to serve the sentence. Jalgaon Jamod Police to file a compliance report in the registry within two weeks.
JUDGE adgokar ::: Uploaded on - 23/03/2018 ::: Downloaded on - 24/03/2018 02:05:29 :::