Bombay High Court
Shravan S/O. Babarao Ambure vs State Of Maharashtra Thr. P.S.O. Police ... on 19 March, 2018
Author: Rohit B. Deo
Bench: Rohit B. Deo
1 apeal520of17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL 520 OF 2017
Shrawan s/o. Babarao Ambure,
Aged about 49 years,
R/o. Sirasgaon Pandhari,
Tahsil Ner, District Yavatmal .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer
Police Station Ner, District Yavatmal ....RESPONDENT
______________________________________________________________
Shri D.A. Sonwane, (Appointed) counsel for the appellant.
Shri. S.S.Doifode, Addl. Public Prosecutor for respondent.
_____________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 19 th
MARCH, 2018
ORAL JUDGMENT :
The appellant is aggrieved by the judgment and order dated 10.11.2016 rendered by the Special Judge and Additional Sessions Judge, Yavatmal, in Special Case (POCSO) 2 of 2014, by and under which the appellant - accused is convicted for offence punishable under section 354-A, 376(2)(i) of Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs. 5,000/- and is convicted for offence ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 ::: 2 apeal520of17 punishable under section 4,8,12 of Prevention of Children From Sexual Offences Act ("POCSO" Act) and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs. 5,000/-. 2 Heard Shri. D.A. Sonwane, the learned counsel for the appellant and Shri S.S. Doifode, the learned Additional Public Prosecutor for the respondent / State.
3 Shri A.D. Sonwane, the learned counsel for the accused submits that the learned Sessions Judge failed to appreciate that the defence of false implication is more than probabilized, the motive being strained relations between the father of the child victim and the accused. The further submission is that failure of the prosecution to examine Nikita, who was a material witness, is fatal. It is further submitted that even if the evidence of the child victim is accepted at face value, offence punishable under section 376(2)(i) and section 4,8,12 of the POCSO Act is not established as all that is deposed by the child victim is that the accused inserted hand in the knicker. Per contra, the learned Additional Public Prosecutor Shri S.S. Doifode, would support the judgment and order impugned. The learned APP ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 ::: 3 apeal520of17 would submit that the evidence of the child victim must be read and appreciated in the context of the medical evidence which clearly indicates insertion of finger in the vagina. The non-examination of Nikita, who is a relative of accused, does not dilute the probative value of the evidence of the child victim, is the submission. 4 Prosecution case:
Pramila Rathod - PW 4 lodged report at Ner Police Station on 29.9.2013 (Exh. 28) alleging that the accused sexually assaulted her 4 year old daughter by inserting his finger in her vagina. PW 4 and her husband reside in a hutment with the child victim, and three year old son. Accused is a neighbour. PW 4 and her husband left home at 8.00 a.m. to work in the agricultural field of one Vijay Zumbade, leaving the child victim and their younger son at home. PW 4 and her husband returned at 4.00 p.m. It was then that the child victim disclosed that Nikita's relative (accused) took the child victim inside his house, offered boiled egg and Parle biscuit. The accused then unzipped his trousers and placed his male organ in the hand of the child victim. The accused also caressed the private part of the child victim with his finger. The husband of PW 4 confronted the accused who said that he ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 ::: 4 apeal520of17 did not do anything and ran away. The report is lodged with promptitude at 9.30 p.m. on the day of the incident. Investigation ensued, upon completion thereof charge sheet was submitted in the Court of Judicial Magistrate First Class, Ner who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exh. 4). The accused abjured guilt and claimed to be tried in accordance with law. The defence of the accused is total denial and false implication.
5 Shri A.D. Sonwane, the learned counsel for the accused is right in submitting that the child victim has not specifically spoken of the accused having inserted his finger/s in the vagina. The child victim has deposed that she was asked to sleep on ground, the accused slept with her, unzipped chain of his pant and placed his penis in the hand of the child victim and that the accused inserted his hand in her knicker. The child victim, was aged between 4 to 5 years as on the date of the incident and 8 years or thereabout when her deposition was recorded. It would be apposite, therefore, to consider the medical evidence.
::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 :::
5 apeal520of17 6 The child victim was subjected to a preliminary medical examination at Rural Hospital, Ner at 10.00 p.m. on 29.9.2013. However, evidence of PW 3 Dr. Mohd. Iqbal reveals that since female medical officer was not available, the child victim was referred to Vasantrao Naik Government Medical College & Hospital, Yavatmal. PW 6 Dr. Archana Rathod examined the child victim on 30.9.2013. She has deposed that the child victim, who was aged 4 years disclosed that the accused tried to insert finger in her genitalia. PW 6 noticed that the hymen was torn and there was redness and tenderness around the hymen. PW 6 accordingly issued medical examination report Exh.
38. The opinion of PW 6, is that the child victim was subjected to recent sexual assault. In her cross-examination, PW 6 categorically states that although hymen can be torn by a fall or cycling or playing, the hymen tear of the 4 year old child victim could not have been torn due to the aforesaid reasons. Nothing is elicited in the cross- examination of PW 6 Dr. Archana to assist the defence. The evidence of PW 6 that the child victim herself disclosed that the accused tried to insert his finger in her external genitalia after removing her underwear is corroborated by documentary evidence which is contemporaneous in nature.
::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 :::
6 apeal520of17 7 The evidence of the child victim is confidence inspiring. It is true that it is elicited that a quarrel did take place between the accused and the grandfather of the victim. However, it is difficult to accept the submission of the learned counsel Shri Sonwane that the victim is used as a tool to falsely implicated the accused. It is equally difficult to accept the submission that the prosecution failed to prove that the victim named the accused as the perpetrator of the sexual assault. It is true that the mother of the child victim PW 4 admits in the cross-examination that Nikita is the daughter of Govardhan Ambure. However, it must be noted that although referred to as the father of Ankita the accused is specifically named in the First Information Report lodged with promptitude. The victim has identified the accused. The spot panchanama Exh. 45 is of the house of the accused. The Investigating Officer PW 8 has proved the spot panchanama. The panch PW 7 Santosh Jaiswal did not support the prosecution, however, evidence of PW 7 Santosh is relevant to the extent that he deposed that on 30.9.2013 the police called him for preparing panchanama in front of the house of the accused in the presence of the other panch Vinod Bahile. Nothing is brought to my ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 ::: 7 apeal520of17 notice to disbelieve the evidence of Investigating Officer PW 8. Be it noted, that Exh. 35 which is the map drawn by the Revenue Inspector of the house of the accused is admitted by the defence. The mistaken reference to the accused as father of Nikita is not fatal to the credibility of the prosecution version. The submission of the learned counsel that the implication of the accused is a case of mistaken identity must be rejected.
8 The submission of the learned counsel that failure of the prosecution to examine Nikita or other independent witnesses is fatal to the prosecution case, is again misconceived. It is trite law, that evidence must be weighed and not counted. The incident took place within the four corners of the house of the accused. Equally unacceptable is the submission of the learned counsel for the accused that the victim is a tutored witness. The fact that she refreshed her memory is not suggestive of tutoring since the evidence came to be recorded more than two years after the incident. The victim has categorically denied the suggestion that she was tutored to give evidence in a particular manner.
::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 :::
8 apeal520of17 9 The submission that the evidence on record does not indicate insertion of finger in the vagina deserves rejection. It is true that the child victim has spoken of insertion of hand in her knicker. However, the medical evidence and the fact that it was the child victim who narrated the history to PW 6 and disclosed that the accused attempted to insert finger in her vagina is sufficient to support the finding recorded by the learned Sessions Judge that the vagina was manipulated and finger inserted. The hymen was found torn and redness and tenderness was noticed. The finding recorded by the learned Sessions Judge that the prosecution has proved the offence under section 354-A, 376(2)(i) of the IPC and under section 4,8,12 of POCSO Act, is unexceptionable.
10 The appeal is sans merit and is rejected.
11 Fees of the appointed counsel are quantified at Rs. 5,000/-.
JUDGE RSB ::: Uploaded on - 19/03/2018 ::: Downloaded on - 20/03/2018 02:03:24 :::