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2018 DIGILAW 72 (BOM)

Mukesh v. State of Maharashtra

2018-01-10

S.B.SHUKRE

body2018
JUDGMENT : 1. This appeal questions legality and correctness of the judgment and order dated 7th April 2016 rendered in Sessions Trial No. 118 of 2013 convicting the appellant for the offences punishable under Section 454 of the Indian Penal Code and Section 6 read with Section 5 (c) of the Protection of Children from Sexual Offences Act, 2012. Appellant has been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default, to suffer further RI for three months, on the first count. On second count, he has been directed to suffer rigorous imprisonment for fifteen years and to pay a fine of Rs. 1000/-, in default, to suffer further RI for one year. Appellant has also been convicted for an offence punishable under Section 376 (2) (1) of the Indian Penal Code, but no separate jail sentence is inflicted upon the appellant for the same. 2. This is a case wherein the facts disclose poignant story of a helpless child and her mother. This child, according to prosecution story, was made an object of un-trammelled lust of the accused. The prosecution story goes as under: (a) Mother of the victim child (for short, "M" for mother and "V" for victim) in the year 2012 resided along with her husband and three children at Lahiri, Tahsil Bhamragad, District Gadchiroli. V was the eldest of the children of M. She was, at the time of incident, aged about 11 years; was deaf and dumb and was also severally handicapped so much so that she was completely confined to bed; was unable to perform by herself any act necessary to keep herself clean and in hygienic condition and could also not wear any clothes of her own. Whenever M and other members of her family had to go out of the house, per force they were required to keep V in the house, lying on the bed with bare minimum clothes on her person and the house locked from outside. V was followed by her sister, aged about 9 years and her brother, aged about 7 years in the year 2012. (b) The incident occurred on 14.12.2012 some time before 05.00 pm. All the family members had their lunch by about 12.00 noon and they left the house in pursuit of their daily work. They had ensured to lock the front door from outside. (b) The incident occurred on 14.12.2012 some time before 05.00 pm. All the family members had their lunch by about 12.00 noon and they left the house in pursuit of their daily work. They had ensured to lock the front door from outside. It appears that there was some opening left in the room in which V was kept lying on the cot. This room had one wall which was not constructed right upto its roof and there was some gap left in between the roof and this wall, which would enable any person to have egress to or ingress from the room. (c) At about 05.00 PM in the evening, M returned to the house. Her daughter and son were seen by her as pacing up and down near their house in a frightened condition. They told M that there was somebody inside the house on the cot along side V. M rushed to the window to the room of V and found to her astonishment that one person, aged about 20 years, fully naked, was lying on the person of V who was also without any clothes. She also saw that V was writhing in pain and crying aloud. M rushed back to the front door and using the key, she opened the lock and ran towards the room of V. The naked person then jumped over the incomplete wall; got into the adjoining bath room and made an attempt to escape from the clutches of M.M being desperate, also ran after that person who was even then completely naked. M succeeded in catching hold of the naked man and with the aid of her two children, she immobilised him by keeping him tied by means of a rope. She then went towards V who was still crying and yelling in pain. V was bleeding from her private part. It is stated that bothri on the cot which appears to be a quilt like fabric, was seen by M as stained with blood. One blue pant and one sky blue shirt were found to be lying there. (d) V, appeared to be dangerously injured and was taken to Primary Health Centre, Lahiri from where she was taken to Sub-hospital, Aheri, District Gadchiroli. Police also arrived at the spot and took away the person caught hold of by M. He is the accused-appellant in the present case. (d) V, appeared to be dangerously injured and was taken to Primary Health Centre, Lahiri from where she was taken to Sub-hospital, Aheri, District Gadchiroli. Police also arrived at the spot and took away the person caught hold of by M. He is the accused-appellant in the present case. (e) A complaint about the incident was lodged on 15.12.2012 at about 00.02 hours. Spot panchanama and seizure panchanama were prepared; necessary investigation was carried out; statements of witnesses were recorded and after completion of investigation, charge-sheet for prosecuting the appellant for offences under Section 376 of the Indian Penal Code and other relevant sections was filed. The appellant was prosecuted for the offences punishable under Sections 376 (2) (1) and 454 of the Indian Penal Code and for an offence under Section 5 punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the "POCSO Act"). On merits of the case, the Special Judge found that these offences were proved and accordingly convicted and sentenced the appellant, as stated in first paragraph of this judgment. Not being satisfied with the same, the appellant is before this Court in the present appeal. 3. I have heard Ms S.P. Kulkarni, learned counsel (appointed) for the appellant and Ms Ritu Kaliya, learned Additional Public Prosecutor for the respondent-State. I have carefully gone through record of the case including the impugned judgment and order. 4. Now, the following points arise for my determination: I. Whether the offences of aggravated penetrative sexual assault punishable under Section 6 of the POCSO Act read with S. 376 (2) IPC and lurking house trespass punishable under Section 454 of the Indian Penal Code have been proved beyond reasonable doubt ? II. Whether there is any need for interfering with the findings of guilt recorded for the offences punishable under Section 6 of the POCSO Act read with S 376 (2) IPC and Section 454 of IPC is required ? 5. Ms S.P. Kulkarni, learned counsel for the appellant submits that this a fit case for interfering with the impugned judgment and order for the reason that the prosecution has failed to prove the most fundamental fact, the fact of V being a "child" as defined under Section 2 (d) of the POCSO Act. 5. Ms S.P. Kulkarni, learned counsel for the appellant submits that this a fit case for interfering with the impugned judgment and order for the reason that the prosecution has failed to prove the most fundamental fact, the fact of V being a "child" as defined under Section 2 (d) of the POCSO Act. She submits that according to the definition, anybody who is below the age of 18 years, is a child and the burden to prove the fact that the victim is a "child", as held in the case of Ravi Anand Gurpude v. State of Maharashtra reported in 2017 ALL MR (Cri) 1509, is upon the prosecution. She further submits that there is something greatly doubtful about the investigation carried out in the present case as, according to M, the appellant was handed over to the police on the same day of the incident while the appellant has been shown to be arrested by police after searching of his whereabouts and it was on the next day i.e. 15.12.2012. She further submits that except for the sole evidence of mother of victim child, there is no other evidence to support the prosecution case against the appellant and even the evidence of M is shaky in nature. Thus, she submits that the appellant be acquitted of the offences with which he has been charged in the present case by giving him benefit of doubt. 6. Learned Additional Public Prosecutor would disagree with learned counsel for the appellant. She submits that no dispute about the age of the victim of the crime, V, her being physically disabled and her being in bed always has been raised by the appellant. She further points out from the evidence available on record, that presence of appellant at the relevant time has not been disputed by him. In such a case, learned APP further submits, there was no need for the prosecution to adduce any more evidence to prove the age of V and her physical disability. She further submits that these facts established on record also require no corroboration to the testimony of M though there is in existence corroboration in the nature of spot panchanama (exhibit 20); seizure panchanama (exhibit 21); medical evidence in the nature of testimony of PW D.r. Pravin Kilnake and medical report at exhibit 29. She further submits that these facts established on record also require no corroboration to the testimony of M though there is in existence corroboration in the nature of spot panchanama (exhibit 20); seizure panchanama (exhibit 21); medical evidence in the nature of testimony of PW D.r. Pravin Kilnake and medical report at exhibit 29. She submits that there is nothing in the entire evidence of M to entertain any manner of doubt about her creditworthiness. She also submits that the appellant did not adduce any evidence to dislodge the presumption drawn against him under Section 29 of the POCSO Act. In these circumstances, learned APP urges, the appeal be dismissed. 7. On going through the evidence available on record and the impugned judgment and order, I find that there is no merit in the submissions of learned counsel for the appellant and great substance in the argument of learned Additional Public Prosecutor for the respondent-State. 8. So far as the age and physical state of the victim of crime, V is concerned, I find from the evidence of the prosecution witnesses viz. PW 1 M, PW 3 Gundru - pancha witness to spot panchanama (exhibit 20) and crime details form (exhibit 24); PW 4 Ewada and PW 5 Rama neighbours of V and PW 7 Anant Salunke, investigating officer that the appellant has not disputed the physical disability suffered by V at the time of incident and also her age. PW 7 Investigating Officer has specifically deposed that V was 11 year old and was deaf and dumb. PW 1 M, PW 3 Gundru, PW 4 Ewada as well as PW 5 Rama, neighbours of V all have deposed that V was handicapped and dependent upon M. PW 5 Rama, in particular, has also stated that V used to remain lying on the cot. All these facts, revealed by the respective cross-examinations of these witnesses show that V was minor and physically disabled at the time of incident. Therefore, it cannot be said that the prosecution has not done its duty in proving the victims age and her physical condition, characterised by her complete disability of V to move out of the bed, and be able to speak and hear. So, the case of Ravi Anand Gurpude (supra) would be of no help to the appellant. 9. Therefore, it cannot be said that the prosecution has not done its duty in proving the victims age and her physical condition, characterised by her complete disability of V to move out of the bed, and be able to speak and hear. So, the case of Ravi Anand Gurpude (supra) would be of no help to the appellant. 9. The discussion made in the earlier paragraphs would show that at the time of incident, which occurred between 12.00 noon and 05.00 pm of 14.12.2012 inside the house of M and V situated at village Lahiri, V was aged about 11 years; was confined to bed; all the time was unable to perform any of the biological activities of her own and thus, apart from being a "child" as defined under Section 2 (d) of the POCSO Act, was also a person who was suffering from severe physical disability, not capable of making sound decisions as contemplated under Section 5 (k) of the POCSO Act. 10. Now, we have to consider as to exactly what was it that was done by the appellant to V. The evidence of PW 1 M as well as circumstantial and medical evidence is relevant in this regard. PW 1 M in her testimony before the Court has stated that she had seen the appellant naked and laying himself over V who was also then completely without clothes. She has also stated before the Court that V was then in a semiconscious condition; that there was blood spilled over the cot, the floor and the clothes of V and V was required to be taken to the hospital at Lahiri, Bhamragad and Aheri. 11. Learned counsel for the appellant submits that there were certain improvements made by M in her evidence before the Court. The improvements were in the nature of M stating before the Court that she threw a stick at the appellant and that there were blood stains over the clothes of the victim and on the floor and that she was in a semi conscious condition. The improvements were in the nature of M stating before the Court that she threw a stick at the appellant and that there were blood stains over the clothes of the victim and on the floor and that she was in a semi conscious condition. I must say, these facts stated for the first time in Court are not something which prove wrong or factually incorrect the core testimony of PW 1 M which is about her seeing the appellant as forcing himself in a naked condition upon V, also without any clothes on her person, in a house which was locked from outside by PW 1 M and in which the appellant had sneaked into through a gap between roof and the wall of the room of V. 12. There are some other facts which PW 1 M in her cross-examination by the appellant has admitted to have not stated by her to the police while lodging the FIR. But, I find that the admissions so given by her are against the contents of the First Information Report and so cannot be considered as admissions. In fact, learned Special Judge ought to have made suitable remarks in this regard when he recorded so called admissions of PW 1 M, which he has not. These so called admissions relate to the absence of some statements from the First Information Report (exhibit 17) relating to police coming to village and taking away the appellant to Police Station and another door of the house being open. In the First Information Report, PW 1 M has clearly described the condition of her house which sufficiently discloses that there was some opening for gaining entry to or making exit from the room in which V was kept. It is also stated in the First Information Report that the person committing rape on V was handed over to police. These facts would be sufficient to show that there have been no improvements amounting to contradictions made by PW 1 M and, therefore, should have been, accordingly recorded by the learned Special Judge. 13. The result of the discussion made so far is that there is absolutely nothing in the entire evidence of PW 1 M to entertain any manner of doubt about her creditworthiness, that her evidence can be solely relied upon and that no corroboration to her evidence is required. 13. The result of the discussion made so far is that there is absolutely nothing in the entire evidence of PW 1 M to entertain any manner of doubt about her creditworthiness, that her evidence can be solely relied upon and that no corroboration to her evidence is required. At this juncture, I must mention, V was not examined as prosecution witness and could not have been given her physical and mental state. 14. Although no corroboration to the evidence of M is necessary, in the facts and circumstances of the present case, still, such corroboration is very much there in the other evidence available on record. The spot panchanama (exhibit 20) proved through the evidence of Investigating Officer, PW 7 Anant, supports the testimony of PW 1 M substantially. It reveals that there were blood stains on the cot, on the floor and also on a piece of white terricot saree. It further discloses that one blue full pant was lying at the spot and the blood stains were also there on the floor. These articles were seized by the police as per the seizure panchanama vide exhibit 21, which supports the story of PW 1 M. The evidence of Medical Officer, Dr Pravin Kilnake, a gynecologist, lends further support to the evidence of PW 1 M. It shows, posterior vaginal valve of V was torn about 2 cms in length and there was tearing of perineal muscle and skin upto rectum. His evidence also shows that V was required to be admitted in General Hospital, Gadchiroli from 15.12.2012 to 26.12.2012 and she was discharged with healthy sutured wound. PW 6 Dr Pravin Kilnake being a treating doctor suffering of a tearing wound by V and its being required to be sutured, are the facts not disputed by the appellant. The only suggestion given to PW 6 is that the vaginal injury was possible due to rubbing of coconut rope and the suggestion has been promptly rejected by PW 6 Dr Pravin Kilnake. In fact, on the backdrop of admitted severe disability of V by the appellant, giving of such a suggestion to a gynecologist carried no significance. After all, even the appellant had never disputed the inability of V to perform any kind of act or physical activity on her own and so thinking that she might have abrased herself against a coir rope is outlandish. After all, even the appellant had never disputed the inability of V to perform any kind of act or physical activity on her own and so thinking that she might have abrased herself against a coir rope is outlandish. So, there is a corroborative evidence available on record to support the case of the prosecution as propounded through the evidence of PW 1 M, the mother of V. 15. The evidence discussed above would show that the appellant on 14.12.2012, some time between 12.00 and 05.00 pm, entered the house of M and V, without M's permission, in a manner to conceal his presence inside the house and with a view to committing serious offence of rape upon a physically disabled child and in order to commit the offence, got completely naked, stripped off V entirely and then taking advantage of her being deaf and dumb and a small child severally handicapped, committed forcible sexual intercourse with her. The victim V, owing to her disability, was incapable of keeping herself in a clean and hygienic condition and even wear clothes unless somebody helped her, but the appellant was unmindful of it, he was overpowered by his libido, and went ahead in satisfying his lust. This evidence would further show that his such forcing himself upon V resulted in causing of a serious injury to the vaginal walls of V, which led to substantial discharge of blood from the private part of V and which ultimately required V to remain in hospital from 15.12.2012 to 26.12.2012 for her treatment through clinical and surgical aid at the hospital. These facts established on record would clearly point out to the complicity of the appellant in the offences with which he has been charged in the present case. This would make this Court conclude that injury to the vaginal wall of V would not have been caused unless there was penetrative sexual assault launched by the appellant upon V and thus, the appellant has committed, beyond any manner of doubt, the offence of penetrative sexual assault upon a physically disabled child as contemplated under Section 5 (k) of the POCSO Act, punishable under Section 6 thereof. This act is also punishable under Section 376 (2) (l) of the Indian Pennal Code, but the punishment being of the same nature, the appellant could be handed out sentence only under Section 6 of the POCSO Act, which has been rightly done by the learned Special Judge in the present case. The facts so established on record further disclose that the appellant has committed offence of lurking house trespass, punishable under Section 454 of the Indian Penal Code and has been rightly found to be guilty of the same and sentenced for the same by the learned Special Judge. 16. At this juncture, I would also like to refer to the provisions of Section 29 of the POCSO Act laying down that when a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 9 of the Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. I have already found previously in this judgment that the appellant has not adduced any evidence on record to show that he did not commit the offences with which he has been charged in the present case. This evidence could have been in the nature of bringing on record a reasonable probability of the appellant having been not involved in commission of these offences. But, it has not been brought on record by the appellant. Therefore, the presumption of commission of offence, as constituted by Section 5 (k) of the POCSO Act, by the appellant in the present case mandatorily required to be drawn by the Court, has not been dislodged by the appellant. For this reason also, I find that the offence of penetrative sexual assault charged against the appellant has been proved beyond reasonable doubt by the prosecution. 17. There is a doubt expressed upon the genuineness of the investigation made by PW 7 Anant Salunke, the investigating officer. The doubt so expressed by the appellant is based upon dichotomy arising from the testimony of PW 1 M and testimony of PW 7 Investigating Officer Anant Salunke. 17. There is a doubt expressed upon the genuineness of the investigation made by PW 7 Anant Salunke, the investigating officer. The doubt so expressed by the appellant is based upon dichotomy arising from the testimony of PW 1 M and testimony of PW 7 Investigating Officer Anant Salunke. It is pointed out that according to PW 1 M, the appellant was kept in a tied condition at the spot of incident itself in the evening of 14.12.2012 and then handed over to the police while according to the evidence of PW 7 Anant Salunke, the appellant was required to be searched out and then arrested after his whereabouts were known. Even the crime details form vide exhibit 24, it is further submitted on behalf of the appellant, shows that the appellant was placed under arrest on 15.12.2012. 18. So far as the argument that the appellant was placed under arrest on 15.12.2012 as per the crime details form is concerned, I do not think that it is correct because this document discloses nothing about arrest of the accused, its date and time. However, evidence of PW 7 Anant Salunke does show that he was required to take search for the accused and then arrest him. This evidence apparently is contradictory to the evidence of PW 1 M who has stated in no uncertain terms that the appellant was kept bound by means of a rope at the spot of incident itself in the evening of 14.12.2012. Even the evidence of PW 4 Ewada shows presence of appellant at the spot of incident on the date on which the incident occurred and this fact has not been disputed by the appellant. This witness, when cross-examined with the permission of the Court by learned APP, admitted that blood was lying on the floor of the house and that he and others asked the appellant about the same, but the appellant gave no answer. In the cross-examination of this witness taken on behalf of the appellant, another admission has appeared on record which indicates that at about 05.00 pm of the date of incident i.e. 14.12.2012, the appellant was also present in the Police Station. In the cross-examination of this witness taken on behalf of the appellant, another admission has appeared on record which indicates that at about 05.00 pm of the date of incident i.e. 14.12.2012, the appellant was also present in the Police Station. This evidence is sufficient to enable me to find that the appellant was taken into custody not on 15.12.2012, but some time in the evening of 14.12.2012 or may be at midnight time when the day of 15.12.2012 had just begun. The arrest panchanama has not been produced in evidence by the prosecution so as to throw a clear light upon the time of arrest of the appellant. But the facts discussed just now are sufficient to show that what has been stated about appellant in the deposition of PW 1 M, cannot be discarded as untrue and this would then mean that PS 7 Anant Salunke, the investigating officer has erroneously stated before the Court that he was required to take search of the appellant before placing him under arrest. 19. It appears to me that the Investigating Officer has made an erroneous statement about the arrest of the appellant without making any effort for recollection of facts relating to arrest and certainly without any application of mind, perhaps believing that as it happens in every other case he investigates, in the present case also, same thing may have happened, which was about his need for taking search of the accused and then placing him under arrest. PW 7 Anant Salunke in such an important case, having great impact on the sensitivity of the civil society, ought to have taken care to do some homework in the matter before he entered the witness box, which apparently, he has not done. After all, it is not expected of an investigating officer to remember everything that he does as a part of investigation of a crime, especially when it is not just a crime or two that he investigates in an year, but many more. This would make it necessary for every investigating officer to refresh his memory by going through the case diary, but of course, by following the procedure of law. So, I find no merit in the argument of learned counsel for the appellant in this regard. 20. This would make it necessary for every investigating officer to refresh his memory by going through the case diary, but of course, by following the procedure of law. So, I find no merit in the argument of learned counsel for the appellant in this regard. 20. In the circumstances, I find that the appellant has committed offences under Section 5 (k) of the POCSO Act punishable under Section 6 thereof and Section 454 of the Indian Penal Code. I further find that the sentences handed out to the appellant for these offences by the trial Court reflect a balanced approach. This would call for no interference with the impugned judgment and order. Both the points are answered accordingly. 21. In the result, the appeal deserves to be dismissed and it is dismissed accordingly, however, with a small correction in the operative parts (1) and (3) of the impugned order by substituting Section 5 (c) mentioned therein by Section 5 (k) of the POCSO Act. 22. Fee of Ms. S.P. Kulkarni, learned counsel (appointed) for the appellant is quantified at Rs. 7000/-.