Bombay High Court
Pawan @ Vicky S/O Arvind Damkondwar vs State Of Mah.Thr. P.So. P.S. Nandanwan, ... on 18 July, 2019
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal272.19.J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.272 OF 2019
Pawan @ Vicky s/o Arvind Damkondwar,
Aged 22 years, Occ: Labour,
R/o Plot No.320, Darshan Colony,
Near Shiv Mandir,
Nandanwan, Nagpur. ....... APPELLANT
...V E R S U S...
State of Maharashtra through
PSO Police Station Nandanwan,
Nagpur. ....... RESPONDENT
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Shri S.D. Chande, Advocate for Appellant.
Shri T.A. Mirza, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE: 18th JULY, 2019.
ORAL JUDGMENT:
This appeal takes exception to the judgment dated 15.02.2019 rendered by the Special Judge under Protection of Children from Sexual Offences Act, 2012 in Special Case Child Prot. 108 of 2014 where by the appellant - accused is convicted for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and offence punishable under Section 377 of the Indian Penal Code and is ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 2 apeal272.19.J.odt sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.10,000/- and in default of payment of fine to suffer simple imprisonment for a period of six months. 2] The genesis of the prosecution lies in the first information report lodged by Umesh Dhurve (Exhibit 27), who is the father of the victim, on 28.04.2014 at Police Station Nandanwan, Nagpur. The gist of the report is as follows:-
2.1] The informant resides at Darshan Colony within the jurisdiction of Police Station Nandanwan, Nagpur with his parents, wife Nilima, daughter Vaishnavi the victim aged 14 years and the family of two younger brothers.
2.2] The victim is studying in 6th Std. at Adarsha Sanskar Vidhyalaya.
2.3] On 28.04.2014 when the informant returned home from the company where is employed as Fitter, he was informed by Sau. Nilima that the accused and two others (juvenile in conflict with law) were subjecting the victim to unnatural sexual intercourse. The informant took the victim in confidence and made ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 3 apeal272.19.J.odt inquiries. In response, the victim stated that on 11.04.2014 at 06:00 p.m. one juvenile in conflict took the victim to the terrace of the house, showed obscene pictures on mobile and after removing the clothes of the victim inserted his penis in the anus of the victim. After completing the sexual intercourse with discharge of semen the juvenile in conflict threatened the victim of assault with knife and due to fear the victim did not disclose the incident. 2.4] The next day (12.04.2014) when the victim was playing in front of the house, the accused approached him and took him home on the pretext of showing some photographs.
At the house of the accused, the victim was shown obscene pictures on mobile, his pant was removed, and the accused subjected him to unnatural sexual intercourse by inserting penis in the anus. After sometime, when the victim was standing in front of the grocery shop near his house, he was approached by the other juvenile in conflict with law who took him to the terrace of the house adjacent to his house and subjected the victim to unnatural sex. The victim did not disclose these incidents due to fear. 2.5] The victim was playing on the ground of the school, on 25.04.2014. The two juveniles in conflict with law and the ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 4 apeal272.19.J.odt accused approached the victim, took him behind the school and there he was subjected to unnatural sex by the accused. 3] On the basis of the report Exhibit 27 and the printed FIR Exhibit 28 offence punishable under Section 377, 506 Part-II read with Section 34 of the IPC and Section 4 and 11 of the POCSO Act was registered against the accused and the two juveniles in conflict with law.
4] API Sonawane arrested the accused on 29.04.2014. The accused was referred for medical examination. Samples of blood, pubic hair, nail clippings and perianal swab, were collected and seized vide seizure panchnama Exhibit 76. The Investigating Officer Ms. Swati Yawale referred the victim to Medical Hospital, Nagpur for medical examination. The blood sample, samples of perianal swab and anal swab of the victim were collected and seized vide seizure panchnama Exhibit 77. On 30.04.2014 the confessional statement of the accused under Section 27 of the Indian Evidence Act was recorded pursuant to which mobile phone of Karbon company was recovered and seized from the house of the accused vide seizure panchnama Exhibit 75.
The statement of the victim was recorded by the Judicial ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 5 apeal272.19.J.odt Magistrate under Section 164 of the Code of Criminal Procedure (Code). Her statement was also recorded by the Child Welfare Committee. The seized samples were sent to Regional Forensic Science Laboratory for chemical analysis.
Upon completion of the investigation, charge-sheet for offences punishable under Section 377, 506 Part-II read with Section 34 of the IPC and Section 6 of the POCSO Act was filed before the Special Court.
The learned Special Judge framed charge vide Exhibit 14 under Section 377 of the IPC and Section 5(l) read with Section 6 of the POCSO Act.
5] The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused, as is discernible from the statement recorded under Section 313 of the Code is of total denial and false implication at the instance of one Bunty Kukde.
6] The learned Special Judge was pleased to convict the accused as aforestated.
The learned Special Judge held that the prosecution has proved the date of birth of the victim which is 25.03.2002 and that ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 6 apeal272.19.J.odt the victim was aged 14 years and 19 days on the date of the incident. The learned Special Judge found the testimony of the victim reliable and confidence inspiring. The learned Special Judge considered the medical evidence and held that it is proved that the victim was subjected to unnatural sexual intercourse. The learned Special Judge then considers the submission that the first information report is delayed, and rejects the same. 7] It is further held that the accused failed to rebut the statutory presumption under Section 29 of the POCSO Act which is triggered since the foundational facts are established by the prosecution.
8] I have heard the learned counsel Shri S.D. Chande for the accused and the learned APP Shri Mirza for the respondent/State.
9] The age of the victim is no longer in dispute. In all fairness Shri S.D. Chande has not even argued that the prosecution failed to establish the age of the victim.
10] Shri S.D. Chande submits that it is not proved that the ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 7 apeal272.19.J.odt victim was subjected to unnatural sex. Shri S.D. Chande would take me through the evidence of PW 2 Dr. Kunal Sirsat who examined the victim. Shri S.D. Chande submits that since PW 2 accepts that fissure injury can be caused if a patient has piles problem, it is not conclusively established that the victim was subjected to unnatural sex. The submission is noted only for rejection.
11] PW 2 has deposed that the victim gave the history of sodomy by three persons on multiple occasions, lastly on 25.04.2014. PW 2 states that on local examination of anal region, he found fissure injury (tear injury) at 6 O' clock position on posterior side of size 0.2 cm x 0.2 cm on the anal opening with presence of tenderness. PW 2 opines that the findings are suggestive of anal coitus. The possibility that such injury can be caused by some medical ailment is not sufficient to doubt the opinion of the Doctor that the injury is suggestive of anal coitus. Significantly, no suggestion is given to the victim or his father that the victim suffered from piles.
12] PW 7 is the victim he has deposed that on 11.04.2014 he was subjected to anal intercourse by the juvenile in conflict ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 8 apeal272.19.J.odt with law. The role attributed to the accused is that when the victim was playing near his house he was called by the accused. The victim states that one juvenile in conflict with law took him to the terrace of the house of the accused and there he was sexually ravished. The exact role played by the accused in the incident of 11.04.2014 is blurred and it is safe to assume that the limited role played by the accused was to call the victim. The victim states that one juvenile in conflict showed him obscene photographs on mobile and the other juvenile issued threats. The victim has then narrated two incidents in which the accused has played no role. The first incident refers to one juvenile in conflict with law subjecting the victim to unnatural sex and the other incident refers to similar ravishment by the other juvenile in conflict.
In so far as the accused is concerned, according to the child victim the accused subjected him to forcible anal intercourse twice. The version of the victim is that on 12.04.2014 the accused called him to his house and then showed obscene photographs on mobile. The accused asked the victim to accompany him and took the victim to his house where the accused removed the clothes of the victim and inserted his penis in the anus of the victim. The second incident occurred on 25.04.2014. The victim states that the accused subjected him to anal intercourse in the ground of ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 9 apeal272.19.J.odt the Corporation School and the incident was seen by one Bunty Kukde who beat the accused. Victim states that Bunty Kukde took him to his house and narrated the incident to his Uncle who took the victim and his father to the Nandanwan Police Station, Nagpur.
13] If the cross-examination is perused, there is absolutely no challenge to the version of the victim as regards the incident of 12.04.2014. In so far as the incident of 25.04.2014 is concerned, it is elicited that the spot of the incident is clearly visible to persons present on the ground. It is elicited from the victim that the incident which occurred on the ground was not observed by anybody present on the ground. It is elicited that the Uncle of the victim lodged the police report. Certain suggestions are given to buttress the defence of false implication, which are denied. 14] The evidence of the victim is natural and truthful. The version of the victim as regards the incident of 12.04.2014 has gone unchallenged. It is not even suggested to the victim that there is any reason or motive for the victim to falsify implicate the accused. In response to the question in the cross-examination, the victim does state that the incident occurred on 29.10.2012. ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 :::
10 apeal272.19.J.odt The answer is obviously incorrect or the victim is referring to some other incident. Such stray and isolated error does not affect the credibility of the evidence which has to be appreciated holistically. Shri S.D. Chande argues that the evidence of the victim is unreliable since he has deposed that he disclosed the incident to his Uncle and that the report is also lodged by his Uncle. The first information report is lodged by the father of the victim who has deposed that he was narrated the incident by the victim on 28.04.2014. The discrepancy and the inconsistency with the evidence of the father of the victim is not of such significance as would affect the credibility of the victim's testimony. 15] The evidence of the victim is corroborated by the evidence of his father PW 1 Umesh Dhurve who has deposed that on 28.04.2014 when he returned from work his wife told him that the victim was subjected to unnatural sex by three boys and that after inquiries with the victim he learnt that the victim was subjected to unnatural sex on multiple occasions by the two juveniles and the accused. PW 1 denies the suggestion that the report is lodged at the instance of Bunty Kukde who is a political rival of the accused. Beyond giving a suggestion that the report is false and that no disclosure was made by the victim, no serious ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 11 apeal272.19.J.odt effort is made in the cross-examination to dislodge the testimony of PW 1.
16] PW 6 Dr. Dinesh Akarte examined the accused on 29.04.2014 and the history recorded is that the accused had anal intercourse and was beaten by public on 25.04.2014. PW 6 did not notice any injury on the private part of the accused. However, abrasion over lower part of the right forearm which was brownish black in colour was noticed. The learned Special Judge has found the evidence of PW 6 of corroborative value. However, I am not inclined to attach any weight to the said evidence. 17] I am satisfied that the evidence of the victim is implicitly reliable. The evidence is corroborated by medical evidence. The fact that the victim disclosed the entire incident to his father lends assurance to the prosecution version. In my considered view, no fault can be found with the judgment of conviction.
18] Shri S.D. Chande would strenuously urge that the first information report is delayed and the delay is unexplained which is sufficient to create doubt about the veracity of the prosecution ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 12 apeal272.19.J.odt version. Shri S.D. Chande would rely on the decision of the Division Bench of this Court in Umesh Bharat Gaikwad v. The State of Maharashtra reported in 2019 ALL MR (Cri) 2302 and the decision of a learned Single Judge (Rohit B. Deo, J.) in Nana s/o Saduji Mane reported in 2018 ALL MR (Cri) 45 to buttress the submission that the delay in lodging the first information report is fatal.
19] If the evidence of PW 1 is seen, as a fact there is no delay in lodging the FIR since he is narrated the incident by the child victim on 28.04.2014 and the report is lodged immediately. That apart, on principle, in cases of sexual assault delay in lodging the first information report is not necessarily fatal. The decision in Nana s/o Saduji Mane turns on facts. The decision in Umesh Bharat Gaikwad does not take the case of the accused any further. There was delay of 8-9 days in lodging the report of murder. In paragraph 24 the Division Bench observes that as there is no independent witness or circumstantial corroboration the delay caused in lodging the FIR is fatal. In the facts of the case, even if it is assumed, it is argued by Shri S.D. Chande that the father of the victim was informed about the incident on 25.04.2014 and the report is lodged on 28.04.2014, the delay, if any, would not affect ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 ::: 13 apeal272.19.J.odt the credibility of the prosecution version. In cases of sexual assault, the Court cannot be oblivious to the ground reality which is that the family of the victim gives a serious and prolonged thought, deliberates the issue and then lodges the report. Sexual assault is unfortunately a stigma in the Indian society and it is often seen that reports are not lodged with promptitude. The sensitivities of the victim and the family must be borne in mind when the aspect of delay and its implication on the credibility of the prosecution version is assessed. 20] The appeal is without substance, and is dismissed.
JUDGE NSN ::: Uploaded on - 19/07/2019 ::: Downloaded on - 20/07/2019 02:04:48 :::