Bombay High Court
Mr. Sachin S/O Subhash Bite vs State Of Mah. Through Police Station ... on 12 April, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL 283.18.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.283 OF 2018
Sachin s/o Subhash Bite,
Aged about 26 years,
Occupation-Labour,
R/o. Yerur, Tahsil and District-Chandrapur,
In Jail Chandrapur Prison Class-I. .. Appellant
.. Versus ..
State of Maharashtra,
Through Police Station Officer,
Police Station, Chandrapur. .. Respondent
..........
Shri R.R. Vyas, Advocate for Appellant,
Mrs. Mrinal Barabde, APP for Respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 12.04.2019.
ORAL JUDGMENT
1] This appeal has been directed against the judgment and order dated 17.04.2018 delivered by the learned Judge, Special Court, Chandrapur in Special (POCSO) Case No.18/2014 whereby the learned Judge, Special Court, Chandrapur ::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 2 has convicted the appellant (hereinafter referred to as 'accused') for the offence under Section 7 punishable under section 8 of the Protection of Children from Sexual Offences Act, 2012 and he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months. He was convicted for the offence punishable under section 354 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for six months. He was further convicted for the offence punishable under section 506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and in default to undergo rigorous imprisonment for three months. He was also convicted for the offence punishable under Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to suffer simple imprisonment for two years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for three months.
2] The prosecution case in nutshell can be summarized as under :
The victim was 12 years old studying in 6 th Standard and residing at village Yerur, District-Chandrapur. The victim is belonging to Mang caste. The accused is the resident of the same village. On the day of the incident i.e. 22.02.2014 around 12.00 noon, the victim returned from her school. At that time her parents had gone to attend their work in Hiralal Company. The victim was washing the clothes by the side of the road. Seeing that the victim is alone, the accused approached her and said that ::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 3 he would give her Rs.100/- and she should accompany him to the Nala in the village.
The accused caught hold of her hand and started pulling and pushing her. The victim rescued herself from his clutches and she fell down, due to which, she received injury to her left hand elbow. The victim refused to go with him, on this the accused threatened her with dire consequences. He then fled away. One Rahul Barde from the same village, telephonically informed about the said incident to the mother of victim. After sometime, the mother of victim returned home. The victim narrated the incident to her mother. The victim then proceeded to the Police Station along with her mother and lodged her complaint. At the relevant time, PW-9 PSI Sheikh recorded the oral report of the victim (Exh.14) and on the basis of which he registered the offence vide Crime No.42/2014. PW-10 API Mahendra Suryawanshi visited the place of incident and conducted the spot panchanama Exh.59. He also collected the caste certificate of the victim. The statements of the witnesses came to be recorded and on completion of investigation, charge-sheet was filed. The case was committed to the Court of Sessions. Learned Special Judge framed the charge. On recording the evidence and hearing both the sides, learned Special Judge convicted the accused as aforesaid. 3] I have heard Shri R.R. Vyas, the learned advocate for the appellant and Mrs. Mrinal Barabde, the learned Additional Public Prosecutor for the respondent-State. With their able assistance, I have gone through the record and proceedings of the case papers.
::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 4 4] Learned advocate for the appellant vehemently argued that the learned trial Judge has not assessed the evidence led by the prosecution witnesses in its right perspective and has erroneously convicted the accused. It is submitted that the act of the accused in no way attract the provisions under section 7 punishable under section 8 of the Protection of Children from Sexual Offences Act, 2012 as well as Section 354 of the Indian Penal Code.
5] As against this, learned Additional Public Prosecutor canvassed that the learned trial Judge has properly assessed the evidence led by the prosecution witnesses and the evidence of the victim itself is sufficient to bring home the guilt of the accused under Section 7 of the Protection of Children from Sexual Offences Act, 2012 Act as well as under Section 354 of the Indian Penal Code.
6] Relevant witnesses examined by the prosecution are PW-2 Victim, PW-1 Draupadi Nandeshwar, the mother of the victim and PW-4 Dr. Dhammadeep Patil, the Medical Officer, who examined the victim. The testimony of PW-2 victim demonstrates that she was knowing the accused as he was resident of the same village where she was residing. On 22.2.2014 at about 12.00 noon, the victim was washing the clothes in front of her house by the side of the road. By seeing the victim is alone, the accused came to her and said that he will give her Rs.100/- and asked her to accompany him towards the nallah of the village. The accused then caught hold of her hand and pulled her. While she was trying to give jerk to his hand she fell down on the ground and ::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 5 she sustained abrasion to her left hand. The accused then threatened her by saying that if she will narrate about the incident to any one, then he would kill her. Her neighbour namely Rahul Barde phoned her mother and father and called them at home. After arrival of her mother she narrated the incident to her. The victim then along with her parents proceeded to the Police Station and lodged complaint Exh.14. The victim was then referred to General Hospital, Chandrapur for her medical examination. 7] It was suggested to the victim in her cross-examination that the road is crowded by the people always which she admitted. She also admitted that the house of the accused can be reached by using said road. Adjacent to her house there are many houses. The victim however denied that the accused used to go for labour work. She also denied that on the pretext of labour money there was quarrel between accused and her father and because of the said quarrel she has falsely implicated the accused in the matter. Nothing adverse was elicited in the cross-examination of the victim although she was extensively cross-examined. The testimony of the victim is in consonance with the contents in the F.I.R. which was lodged on the same day. There was no reason for the victim to falsely implicate the accused in the present case. The incident had taken place in the broad day light. There was no question of mistaken identity. As such there is nothing to disbelieve the testimony of the victim and she is found to be reliable and trustworthy witness.
8] The testimony of PW-2 shows that the victim has narrated the entire ::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 6 episode to her as she narrated before the court. The testimony of the victim corroborates with the testimony of her mother PW-1. There is nothing to disbelieve the testimony of PW-2 and her testimony corroborates with the testimony of victim on all material aspects.
9] As far as medical evidence is concerned, the evidence of the Medical Officer PW-4 Dr. Patil shows that on the day of incident itself he examined the victim. He found abrasion of 4 x 1 cm on both elbows of the victim. No doubt, PW-4 stated that the age of the injury was approximately 6-8 days old. However, it appears that by mistake, he stated so as the medical certificate Exh.34 shows that the age of injury of 6-8 hours, so also the victim also deposed that on the same day he was examined by the medical officer. The medical officer opined that the injury was possible due to fall on the ground. He issued the medical certificate Exh.34. Thus the medical evidence supports the ocular testimony of the witnesses.
10] Now coming to the fact under which provisions of law the offence is made out. Section 354 of the Indian Penal Code contemplates as under :
"354. Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."..
::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 7 11] There is ample evidence on record to show that the act of pulling the victim, offering her Rs.100/- and asking her to accompany him to the nallah of the village itself discloses the intention of the accused to outrage the modesty of the victim and the said act of the accused is sufficient to constitute the offence under Section 354 of the Indian Penal Code.
12] In case of Aman Kumar and another v. State of Haryana, reported in (2004) 4 SCC 379, the Hon'ble apex Court has held as under :-
"Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. Modesty can be described as the quality of being modest; and in relation to a woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions."
Thus the offence under Section 354 of the Indian Penal Code is made out. Even the prosecution has proved that the accused has threatened the victim with dire consequences while leaving that place. The evidence of the victim has not been shattered in the cross-examination on that point. Thus, the said threats given by the accused confirms his intention to outrage the modesty of the victim, otherwise there was no reason for him to try to drag her and when he did not succeed, threatened her with dire consequences. So far as the allegations under the Scheduled Castes and ::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 8 Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, the prosecution has failed to bring concrete evidence on record in that regard.
13] On the aspect of the offence under Section 7 of Protection of Children from Sexual Offences Act, 2012, it contemplates as under :
7. Sexual assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
14] Admittedly the incident had taken place on the road. The evidence on record shows that the accused tried to drag the victim towards the secluded place i.e. near nallah of the village with an ill intention to have physical relations with her, however, when the accused caught hold of the hand of the victim, he did the said act with only intention to take her to a secluded place. It cannot be said that the accused had intention to establish sexual contact with her at that point of time. Thus the said act of the accused cannot be said to be an act with sexual intent which involves physical contact. Thus the said act of the accused does not come within the purview of definition of "sexual assault" mentioned under section 7 of the POCSO Act. In view of the fact and circumstances, it is held that the prosecution has failed to prove its case. 15] In view of the facts and circumstances, it is held that the learned trial Judge should have considered the evidence led by the prosecution witnesses in its ::: Uploaded on - 23/04/2019 ::: Downloaded on - 06/04/2020 09:21:38 ::: CRI.APPEAL 283.18.odt 9 proper perspective. The judgment and order passed by the learned trial Judge needs interference. Hence, the order :
ORDER [1] Criminal Appeal No.283/2018 is partly allowed. [2] The judgment and order passed by the learned trial Judge is modified to the extent that the accused is acquitted of the offence punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 and Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. [3] The accused is however convicted for the offence punishable under Sections 354 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for six months.
[4] The accused is also convicted for the offence punishable under section 506 of the Indian Panel Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of rs.2,000/- in default to undergo rigorous imprisonment for three months.
[5] Both the sentences shall run concurrently.
JUDGE
Gulande
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