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2019 DIGILAW 239 (BOM)

Sunil Ambadas Gawai v. State Of Maharashtra

2019-01-28

V.M.DESHPANDE

body2019
JUDGMENT V. M. Deshpande, J. (Oral) - The learned Special Judge and Additional Sessions Judge, Yavatmal on 24.8.2016 in Special Case (POCSO) No.34/2014 found the appellant guilty for the offences punishable under Sections 376(2)(i)(n) and 506 of the Indian Penal Code and under Sections 4 and 6 of the Protection of Children from Sexual Offices Act, 2012 (hereinafter referred to as "the POCSO Act" for short) and directed to suffer rigorous imprisonment for 14 years on each count for the offences under Section 376 of the IPC and under Section 6 of the POCSO Act, with fine of Rs. 5,000/on each count. The appellant is also directed to suffer simple imprisonment for a period of two years and to pay a fine of Rs. 1,000/for the offence punishable under Section 506 of the Indian Penal Code. All the sentences are directed to run concurrently. 2. Though, initially the appeal was filed through a private advocate and private paper book was also filed, the said Advocate was discharged and Shri R. M. Daruwala, the learned counsel was appointed through the High Court Legal Services Sub-Committee to represent the appellant. 3. PW11 Abhay Ashtikar, Assistant Police Inspector on 26.2.2014 was attached to Police Station, Yavatmal (City), Yavatmal as Night Duty Officer. On the said day, Pooja (PW2) came to police station to lodge the report. She lodged her oral report, which was reduced into writing as per her say by API Ashtikar. It is at Exh.54. On the basis of said report, crime was registered vide Crime No. 144/2014. The printed first information report is at Exh.55. The said Investigating Officer also arrested appellant Sunil Gawai on 27.2.2014 under arrest panchanama (Exh.91). Further investigation was handed over to lady PSI Tejaswini Girsawale. 4. As per oral report (Exh.54), PW2 Pooja was married with one Vijay in the year 1997. From their wedlock, the couple had one daughter (victim) and one son Shubham. Two shops were constructed in front of her matrimonial house and in one of the shops, appellant Sunil used to run a canteen. From 2001, on the recommendation of brother-in law of Pooja, the first informant, he (appellant) gained his entry in the house and also used to sleep. The report (Exh.54) further states that in August, 2002, first informant Pooja noticed unnatural sexual relations between Sunil (appellant) and her husband. From 2001, on the recommendation of brother-in law of Pooja, the first informant, he (appellant) gained his entry in the house and also used to sleep. The report (Exh.54) further states that in August, 2002, first informant Pooja noticed unnatural sexual relations between Sunil (appellant) and her husband. The said unnatural sexual relations in between them gave discord in Pooja''s matrimonial life. On account of that, husband of the first informant used to beat her. Therefore, she lodged a criminal case against her husband for the offence punishable under Section 498A of the Indian Penal Code and a case of maintenance was also pending against her husband. It is further stated in the oral report that from 2003, Pooja started residing with her parents along with her two children. However, she was unable to maintain two children and therefore, she handed over the custody of victim girl to her husband from 2008. It was noticed by Pooja, the first informant, that her daughter is not being taken care of properly and is also not having good health. Therefore, on 06.1.2014, Pooja went to the school wherein the victim girl used to take her education and she fetched her to her house. On the day of the report i.e. 26.2.2014, Pooja noticed that victim was sitting in very dismood condition on a swing. Therefore, the first informant gave support to her and when took her in confidence, the victim disclosed that in absence of her father and grandmother, the appellant not only used to touch her private part, but also used to commit sexual intercourse with her and this he was doing since last one year. These are the statements in the oral report of PW2 Pooja. 5. After the investigation being entrusted to PW12 PSI Tejaswini Girsawale, she visited the spot of the incident, which was shown by the victim. She prepared spot panchanama (Exh.58) in presence of PW10 Shuddhodhan Muneshwar. She then sent the victim for her medical examination to the Government Hospital, Yavatmal by giving requisition (Exh.70). The medical report of the victim was received. The map of the incidence was also drawn. The statement of victim and other witnesses were also recorded. Lady PC Sarika Hemne (PW3) produced blood sample, vaginal swab etc. of the victim, which were seized under seizure memo (Exh.58). PC Rajesh Wankhade (PW4) produced the blood sample, pubic hairs etc. The medical report of the victim was received. The map of the incidence was also drawn. The statement of victim and other witnesses were also recorded. Lady PC Sarika Hemne (PW3) produced blood sample, vaginal swab etc. of the victim, which were seized under seizure memo (Exh.58). PC Rajesh Wankhade (PW4) produced the blood sample, pubic hairs etc. of the appellant and those were seized under seizure panchanama (Exh.61). The Investigating Officer also sought the attendance record of the victim from her school. She also arrested the father of the victim under arrest panchanama (Exh.99). After completion of the investigation, charge-sheet was filed. 6. The learned Special Judge framed the Charge against the appellant as well as father of the victim. The basic allegation against the father of victim was that he has abeted the crime. In all Twelve witnesses were examined by the prosecution. After the trial, the Court below acquitted father of the victim from all the offences, however, convicted the appellant for the offences and for the period which is mentioned in the opening paragraph of the judgment. 7. Mr. R.M. Daruwala, the learned counsel appointed through the Legal Services Committee for the appellant submitted that there is inordinate delay in lodging the first information report. He also submitted that the statement of the victim was not recorded. It is also his submission that lady doctor has not examined the victim. It is also his submission that the Chemical Analyser''s reports are negative. He, therefore, submitted that the appeal be allowed and the appellant who is in jail from the date of his arrest i.e. from 27.2.2014, be released forthwith. 8. Per contra, Mr. Ghodeswar, the learned Additional Public Prosecutor for the State vehemently submitted that the appellant has taken undue advantage of the situation and has established repeated sexual relations with the minor girl. He submitted that the girl was mentally disturbed and it could be seen from the evidence of PW8 Dr. Prajwalit Gour. He, therefore, submitted that the impugned judgment, which is supplemented by good reasons may not be upset and the appeal be dismissed. 9. Admittedly, in the present case, the cause for matrimonial discord in between PW2 Pooja and her husband Vijay is the unnatural sexual relations in between the appellant and her husband. In 2003, Pooja started residing separately from her husband. 9. Admittedly, in the present case, the cause for matrimonial discord in between PW2 Pooja and her husband Vijay is the unnatural sexual relations in between the appellant and her husband. In 2003, Pooja started residing separately from her husband. In the first information report (Exh.54), is has been stated that when Pooja objected the unnatural relations between the appellant and her husband, she was subjected to beating and that was the cause for residing separately from her husband. Though, initially, Pooja was residing with her parents along with her two kids, as per the first information report, from 2008, she handed over custody of girl child to her husband. From the prosecution case, it is clear that case of maintenance in between Pooja and her husband was going on. That shows that she was unable to maintain herself as well as her two kids. It appears that she kept the custody of male child with her. I see no unnatural thing in doing this by Pooja in view of the fact that Pooja had already noticed the attitude and conduct of the appellant to keep unnatural sexual relationship with her husband. Therefore, if a mother is of the opinion that it will be very unsafe to handover custody of her male child, I see no unnatural conduct on her part in the same. 10. The prosecution has examined PW5 Beena Bhagat. She is Assistant Teacher in a school wherein the victim used to take education. In the year 2013, the victim was studying in 6th standard. Her evidence would show that she noticed that victim was remaining always upset and she was not talking with anybody. It is her evidence that appellant Sunil used to take and drop the victim in the school intermittently. In entire January, 2014, the victim was absent in the school. Therefore, as per the evidence of PW5 Beena, she visited the house of the victim and that time the appellant told her that the victim had gone to her mother''s place. As a dutiful teacher when victim was not found to be attending the school for entire month, if she visits the house of her student, nobody can take exception for the same. As a dutiful teacher when victim was not found to be attending the school for entire month, if she visits the house of her student, nobody can take exception for the same. Her evidence would show that in March, 2014, mother of the victim came to the school and asked Beena to permit the victim to appear for the examination and permission was granted. From the evidence of PW5 Beena, a school teacher, it is clear fact that the victim was a disturbed child. The observation of a Class Teacher that victim was a disturbed child has to be given its due importance. 11. Exh.53 is the Birth Certificate of the victim. The said is issued by the Registrar and Chief Officer of Yavatmal Nagar Parishad, an authority who is obliged to maintain the record of Birth and Death. It shows that the date of birth of the victim is 12.01.1999. According to the Charge, during one year before 26.02.2014, the appellant sexually exploited the victim. In view of the date of birth of the victim, which is not at all challenged by the appellant, she is a "Child" rather was a child within the meaning of Clause (d) of subsection 1 of Section 2 of the POCSO Act on the date of the incident and therefore, the provisions of the said Act will come in its operation with full rigor and force. For determination of her age, the victim was referred to a Radiologist PW8 Dr. Gour, who conducted Ossification test and the Ossification report is at Exh.69, which clearly shows that the victim was below 18 years of age. 12. Insofar as the submission of Mr. Daruwala, the learned counsel appointed for the appellant in respect of delay is concerned, I see no merit in it. The delay can never be a fatal to the prosecution case if it is properly explained. From the evidence of PW2 Pooja, it is clear that from 2008, the victim was residing with her father with whom the first informant was having matrimonial disputes. It is only on 26.2.2016 when the first informant noticed the victim sitting on a swing in a disturbed condition and only after giving confidence to her, she disclosed the atrocities committed on her by the appellant, the report was lodged. It is only on 26.2.2016 when the first informant noticed the victim sitting on a swing in a disturbed condition and only after giving confidence to her, she disclosed the atrocities committed on her by the appellant, the report was lodged. Therefore, from the date of the knowledge about the sexual assault on her minor daughter, the mother did not waste any time and promptly lodged the report. 13. Another submission of Mr. Daruwala, the learned counsel appointed for the appellant that the victim girl was not medically examined by a female doctor, in my view, cannot be given importance. PW3 Sarika Hemne, a lady Police Constable took the victim as directed by PSI to the Government Hospital, Yavatmal for her medical examination. On 27.2.2014, Dr. Atul Padmawar (PW6) has examined the victim. Evidence of PW6 Dr. Padmawar shows that he was working at Vasantrao Naik Government Medical College and Hospital, Yavatmal as a Lecturer (Gynic). That shows that PW6 Dr. Padmawar, who examined the victim, is a Gynecologist. It is not at all necessary that all the Gynecologists should be only lady doctors. A male doctor can also be a Gynecologist. In my view, when the victim was medically examined by a trained Gynecologist like Dr. Padmawar, merely because lady doctor has not examined the victim, has no relevance in this judgment. PW6 Dr. Padmawar''s evidence shows that the victim has narrated history of sexual assault on her by the appellant. No doubt true that he could not notice any injuries on her private part, but in my view, it has no relevance since evidence of victim (PW1) never suggests that she was subjected to forceful sexual intercourse. On the contrary, her unchallenged evidence shows that the appellant used to give her pills for getting regular menstrual cycle. PW6 Dr. Padmawar''s evidence shows that her vagina was admitting two fingers very easily, suggestive of the fact that the victim was habituated to sex. Dr. Padmawar has proved medical certificate (Exh.71). The victim''s hymen was found to be torned. Coupled with this, the unchallenged evidence that the appellant used to give pills to the victim for not stopping her menstrual cycle clearly shows establishment of sexual relations by the appellant with minor girl. 14. The place of the incident is the house of the victim herself, where she used to reside with her father. Coupled with this, the unchallenged evidence that the appellant used to give pills to the victim for not stopping her menstrual cycle clearly shows establishment of sexual relations by the appellant with minor girl. 14. The place of the incident is the house of the victim herself, where she used to reside with her father. Her evidence shows that the appellant used to stay in her house itself. Her evidence also shows that her father and grandmother were not paying proper attention to her. 15. The prosecution has also examined PW7 Dr. Piyush Barlota, a Psychiatrist. His evidence would show that when the victim was brought to his hospital on 08.1.2014, he noticed that the girl is having complaint of Insomnia and behavioural disturbances. On examining her, she was not answering properly to the questions put to her. Dr. Barlota found that she was having behavioural disorder. Some medicines were prescribed to her. On 29.01.2014, he again examined the victim to notice some improvement in sleep and nothing else. That shows that when the mother of the victim took her to Dr. Piyush Barlota, who gave certain medicine for Insomnia that has got, her behaviour was in disorder. In my view, the instance of sexual intercourse with her for a period of one year must be the reason for behavioral disturbances, because otherwise no other medical problem was noticed by Psychiatrist Dr. Piyush Barlota. The learned Judge of the Court below also observed in the impugned judgment about the behavioral pattern of the girl when she was in the witness box. The Appellate Court must attach due weightage and importance to the observations of the learned Judge before whom the trial took place. 16. Negative report of Chemical Analyser is of no consequence since for a period of one year, the appellant had established sexual relations with a minor girl. 17. Look at the impugned judgment shows that the learned Judge has supplemented sound reasons for convicting the appellant and on re-appreciation of the prosecution case, I am of the view that this is not a fit case wherein the Appellate Court should interfere with the judgment delivered by the Court below. Hence, the appeal fails and accordingly, it is dismissed. 18. Mr. Hence, the appeal fails and accordingly, it is dismissed. 18. Mr. R. M. Daruwala, the learned counsel appointed for the appellant is entitled to receive his remuneration from the High Court Legal Services Sub Committee, Nagpur, which is quantified at Rs. 5,000/( Rupees Five thousand only).