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2018 DIGILAW 353 (BOM)

Kundan v. State of Maharashtra

2018-02-06

S.B.SHUKRE

body2018
JUDGMENT : 1. This is a appeal, which challenges the legality and correctness of the judgment and order dated 14/09/2017 rendered in Special (Ch.) Case No.32/2015 by the Special Judge under the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), Wardha. 2. The appellant was 30 years old at the time when the incident occurred. The incident occurred at about 02:00 p.m., on 09/04/2015 at the house of the victim at Seloo. At that time, the appellant had come to Seloo as a guest of Nita Sawangekar, who was the tenant of the mother of the victim. Nita Sawangekar was residing along with her husband and two daughters in two rooms given on rent to her family by the mother of the prosecutrix. These two rooms were part of the six roomed house of the mother of the prosecutrix at Seloo. When the incident occurred, the victim was alone at her house. The appellant had entered the house on the pretext of playing with the victim, who then was about 7 years old. When the victim refused to play with the appellant, the appellant removed her knicker and kissed her private part. The appellant also made the victim lie down on the floor and then he himself slept on her person. The victim resisted and bit his hand. Put off by such resistance of the victim, the appellant fled from the spot of incident. The mother of the victim returned home at about 06:00 p.m. from her work. Immediately on her arrival, the victim narrated her the incident. Some time later, the father of the victim also returned home. He too was apprised of the incident. On the next day, mother of the prosecutrix went to the Police Station Seloo and lodged the report. The information was received at Police Station Seloo, as per the record, at 08:00 p.m. on 10/04/2015. 3. On receipt of the information about commission of the offence, Police Station Seloo registered an offence punishable under Sections 354-A of the Indian Penal Code and Sections 8 and 10 read with Sections 7 and 9 of the POCSO Act and commenced the investigation. Panchnama was carried out. Statements of witnesses were recorded. The appellant was placed under arrest. After completion of the investigation, charge-sheet was filed before the Special Court. Panchnama was carried out. Statements of witnesses were recorded. The appellant was placed under arrest. After completion of the investigation, charge-sheet was filed before the Special Court. The Special Court tried the appellant for the offences punishable under Section 354-A(1)(i) of the Indian Penal Code and Section 8 read with Section 7 of the POCSO Act. On merits, the Special Judge found that one of the offences charged against the appellant was proved beyond reasonable doubt and, therefore, by the impugned judgment and order convicted him of the offence punishable under Section 8 of the POCSO Act sentencing him to suffer rigorous imprisonment for five years together with fine of Rs.5,000/- and for default, sentence of simple imprisonment for two months. The Special Judge, however, acquitted the petitioner of the offence punishable under Section 354-A(1)(i) of the Indian Penal Code. The judgment and order were passed on 14/09/2017. Not being satisfied with the same, the appellant is before this Court in the present appeal. 4. I have heard the learned Counsel for the appellant and the learned Additional Public Prosecutor for the State. I have gone through the report of the case including the judgment and order. The following points arise for my determination – I. Whether it is proved that the appellant committed an offence of sexual assault punishable under Section 8 read with Section 7 of the POCSO Act? II. Whether any interference with the impugned judgment and order is required? 5. In the present case, in all four witnesses have been examined, out of which, two witnesses of the prosecution are material. They are PW-1, the mother of the victim and PW-2, the victim herself. So let us go through the evidence of these two witnesses first. 6. PW-2 has given the details of the incident. Her maturity and understanding was tested by the learned Special Judge and the learned Special Judge was satisfied that she had sufficient maturity to understand the meaning of oath. Oath was administered to her. On going through the questions and answers recorded by the Special Judge in respect of the victim [PW-2], I find that the conclusion so drawn by the learned Special Judge is not illogical or illegal. 7. According to PW-2, when she was all alone at home at about 02:00 p.m., the appellant entered her house and requested her to play with him. 7. According to PW-2, when she was all alone at home at about 02:00 p.m., the appellant entered her house and requested her to play with him. She has stated that when she refused to accept his request, the appellant touched her knicker, removed it and kissed her private part. She has also stated that the appellant then put her down and slept on her person. She stated that when she bit the hand of the appellant, the appellant took to his heels. She stated that in the evening, when her mother arrived from her work in the agricultural field at about 06:00 p.m., she narrated the incident to her mother. She has further stated that on the next day, her mother lodged a report at the Police Station. 8. On going through the cross-examination of this witness, I find that there is absolutely nothing to doubt about the credibility of this witness. The victim fully understood the meaning of the oath and the manner in which she deposed before the Court indicated that she was well aware of her duty of speaking the truth before the Court. There has been a searching cross-examination of this witness taken by the learned Counsel for the appellant, but the witness has neither budged from her stand that she took in her examination-in-chief nor buckled under pressure. Her conduct in the whole episode also appears natural as she narrated the incident to her mother, who was the first person to come back home. Her testimony is supported by her mother as well as the oral report given by her mother, which is at Exh.30. Therefore, there is no reason for me to call this witness, PW-2, who is the victim of the crime, as an incredible witness. Rather her evidence is reliable and I choose to accept it to be so, which I do now. 9. The evidence of PW-1, the mother of the victim of crime is consistent with the evidence of PW-2. She has stated that, when she returned home in the evening at about 06:00 p.m., she was immediately told by her daughter, PW-2, about her suffering at the hands of the appellant. The version that was narrated to her by PW-2 was the same, which she testified before the Court in her evidence, which has been discussed by me earlier. She has stated that, when she returned home in the evening at about 06:00 p.m., she was immediately told by her daughter, PW-2, about her suffering at the hands of the appellant. The version that was narrated to her by PW-2 was the same, which she testified before the Court in her evidence, which has been discussed by me earlier. In her cross-examination also, there is nothing which could create any dent in her credibility. The appellant during the lengthy cross-examination made insinuation against the character of PW-1, but all in vain. Although a suggestion was given to her that previously this witness had filed a false report under Section 354 of the Indian Penal Code against Suryavanshi, no supportive material was brought on record. Copy of the alleged previous police report was not filed on record, much less it was shown to this witness. The date of the alleged previous incident, in which respect police report was filed, was also not indicated. PW-1 has stood the trial that she was made to pass through in a detailed cross-examination by the learned Counsel for the appellant by keeping her calm and without getting disturbed. Therefore, I do not think that there is anything in her evidence, which would enable me to discredit this witness. I find her version to be of trustworthy nature which is supportive of testimony of the victim of crime, PW-2. 10. The learned Counsel for the appellant has submitted that F.I.R. in the present case has been filed belatedly to which the learned A.P.P. for the State is disagreed. I think, I would go with the disagreement expressed by the learned A.P.P. There has been an explanation given for the delay, which occurred in filing of the F.I.R. by the mother of the victim and this explanation in the facts and circumstances of the case, I would say, is reasonable. It is not in dispute that the mother and father of the victim used to leave home by 10:00 a.m. in the morning and the victim used to return home thereafter from her school and then the victim of crime used to be all alone in the house till her mother returned back home in the evening. 11. In the present case, the incident took place at about 02:00 p.m. on 09/04/2015, at which time, the victim of crime was all alone in the house. 11. In the present case, the incident took place at about 02:00 p.m. on 09/04/2015, at which time, the victim of crime was all alone in the house. She was of tender age. Her age was of seven years then, about which the appellant has not raised any dispute. For such a small girl, if any such thing, as has been done to her by the appellant, occurs and such girl is all alone, it would be quite natural for such a girl to wait till arrival of some elderly person at home, so that she can seek some respite from that person. In this case, the mother of the victim girl arrived home about four hours later and immediately on her arrival, she was told about the incident by the victim of crime. Once the incident was narrated by the victim of the crime, who is a small girl, to an elderly person in the house, the duty of such victim gets over and the ball travels to the court of that elderly person in the family. If that elderly persons also takes some time to decide on the further course of action to be taken in the matter, the victim cannot be called untruthful and even the further time taken by the elderly person, can also not be seen as unusual or extraordinary. After all, reputation of a daughter is always a matter of concern and it is indeed in such matters. The elders in the family, therefore, have to think twice before taking a final decision. The mother of the victim in the present case, it is seen, had consulted her husband and it was only there after that she could make up her mind about taking recourse to the law, which she did in the evening of the next day i.e. 10/04/2015. Brief explanation in this regard is also incorporated in the oral report of PW-1 lodged at Exh.30. In these circumstances, I find that there is a reasonable explanation given by the informant for belatedly filing of the F.I.R., which would not make the case of the victim of crime as false or improbable or impossible. 12. Brief explanation in this regard is also incorporated in the oral report of PW-1 lodged at Exh.30. In these circumstances, I find that there is a reasonable explanation given by the informant for belatedly filing of the F.I.R., which would not make the case of the victim of crime as false or improbable or impossible. 12. So, I find that the prosecution has proved beyond reasonable doubt the offence of commission of sexual assault on the person of the victim of crime by the appellant, as contemplated under Section 7 of the POCSO Act, which is punishable under Section 8 of the same Act. Section 7 defines sexual assault as an act which has been committed with sexual intent and the various acts such as touching the vagina and other private part of the child with such an intention, are included in the definition. We have already seen that the appellant had not only removed the knicker of the victim of the crime, but also kissed her private part which would make these acts as fall within the scope and ambit of Section 7 of the POCSO Act. The learned Special Judge has, therefore, rightly found the appellant as guilty of the offence of sexual assault as contemplated under Section 7 which is punishable under Section 8 of the POCSO Act. There is no reason for me to make any interference with such a finding. As regards the finding of acquittal recorded in respect of the offence punishable under Section 354- A(1)(i) of the Indian Penal Code, I am of the further opinion that the learned Special Judge has rightly recorded the finding for the reasons stated in the impugned judgment and order. 13. Now the question would be about the adequacy or otherwise of the sentence of imprisonment imposed on the appellant. At this stage, the learned Counsel for the appellant submits that the appellant does not have any previous criminal record and has a family to support. He further submits that his family consists of his wife, one son and one daughter, whose respective age is between 3 to 7 years and he is the sole breadwinner of the family. At this stage, the learned Counsel for the appellant submits that the appellant does not have any previous criminal record and has a family to support. He further submits that his family consists of his wife, one son and one daughter, whose respective age is between 3 to 7 years and he is the sole breadwinner of the family. Therefore, he submits that some leniency should have been shown by the learned Special Judge and if it was not shown by the learned Special Judge, at least this Court should consider granting of some relief to the appellant. The learned A.P.P. for the State submits that an appropriate order may be passed. He also points out that minimum prescribed punishment under Section 8 of the POCSO Act is of three years. 14. In the present case, the minimum prescribed punishment under Section 8 of the POCSO Act is of three years and maximum punishment is of five years. The appellant has been awarded maximum punishment under this section. Considering the facts that this is the crime committed by the appellant for the first time, that the appellant has no previous criminal record and that the appellant is a man of family and sole breadwinner in his family, I am of the view that some leniency can be deservedly shown to the appellant so that the balance can be maintained between the individual needs of the appellant and the expectations of the victim of the crime from law. To this extent, the appeal, in my view, deserves to be allowed. 15. In the result, the following order is passed. I. The appeal is partly allowed. II. The conviction of the appellant for an offence punishable under Section 8 read with Section 7 of the POCSO Act is maintained. However, the sentence awarded to him under this offence stands modified and now it is directed that the appellant shall undergo rigorous imprisonment of four years and shall also pay fine of Rs.15,000/- and in default to pay the fine, shall undergo simple imprisonment of six months. III. Out of the fine amount, the amount of Rs.7,000/- be paid to the mother of the victim of crime as compensation. IV. The finding of acquittal recorded by the Special Judge in respect of the offence punishable under Section 354- A(1)(i) of the Indian Penal Code is maintained. V. Remaining order is also maintained.