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2019 DIGILAW 2659 (BOM)

Pankaj Dadarao Ambadkar v. State of Maharashtra

2019-12-05

V.M.DESHPANDE

body2019
JUDGMENT : V.M. DESHPANDE, J. 1. This appeal challenges the judgment and order of conviction passed by learned Additional Sessions Judge-1 and Special Judge, Achalpur in Special (POCSO) Case No. 11/2013 dated 26.6.2019. By the impugned judgment and order of conviction, the appellant is convicted for the offence punishable under Sections 363, 377, 323 of the Indian Penal Code and also under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’ for the sake of brevity). 2. For conviction of the appellant for the offence punishable under Section 363 of the Indian Penal Code, he is directed to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs. 3,000/- with default clause. For his conviction for the offence punishable under Section 323 of the Indian Penal Code, he is directed to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/- with default clause. Similarly, for his conviction for the offence punishable under Section 4 of the POCSO Act, the sentence imposed on the appellant is sufferance of rigorous imprisonment for a period of ten years and to pay a fine of Rs. 10,000/- with default clause. No separate punishment was imposed for the offence punishable under Section 377 of the Indian Penal Code. The learned Judge of the Court below directed that all the substantive sentences shall run concurrently. 3. Heard Mr. A.A. Dhawas, the learned counsel for appellant and Mr. M.K. Pathan, learned Additional Public Prosecutor for the State. Both of them took me through in detail the record and proceedings and the notes of evidence. Both the learned counsel vehemently submitted for the respective reliefs in their favour. 4. The appellant was charged by the learned Additional Sessions Judge-1, Achalpur that on 08.07.2013 at about 2.30 pm, he kidnapped the victim boy, a minor, from lawful guardianship of his father and has thus committed offence punishable under Section 363 of the Indian Penal Code. He was also charged that on 08.7.2013, he had carnal intercourse against the order of nature with the victim and thereby committed an offence punishable under Section 377 of the Indian Penal Code. He was also charged for the offence punishable under Section 323 of the Indian Penal Code for voluntarily causing hurt to the victim boy. He was also charged that on 08.7.2013, he had carnal intercourse against the order of nature with the victim and thereby committed an offence punishable under Section 377 of the Indian Penal Code. He was also charged for the offence punishable under Section 323 of the Indian Penal Code for voluntarily causing hurt to the victim boy. He was also charged for committing penetrative sexual assault on victim boy and thus he was charged that he has committed an offence punishable under Section 4 of the POCSO Act. 5. The appellant abjured his guilt and claimed for his trial. 6. In order to substantiate the Charge, the prosecution has examined in all nine witnesses and also relied on various judgments which were proved during the course of the trial. The appellant was examined under Section 313 of the Code of Criminal Procedure. As per his defence, his father was to recover the amount from the father of the victim and when this amount was demanded by appellant’s mother, he is falsely implicated in the crime. The appellant himself entered into the witness box as DW-1. After appreciating the prosecution case, the learned Judge of the trial Court found that the prosecution has proved its case beyond reasonable doubt and passed the impugned judgment. 7. The prosecution has examined in all nine witnesses, they are:- (i) PW-1 Vinod Narayanrao (in order to conceal the identity of the victim, surname of this witness is not mentioned since he is the father of the victim). This prosecution witness has lodged the report (Exh.30). (ii) PW-2 Firoz Ahmad Khan is the panch witness. He has proved the spot panchanama (Exh.33). (iii) PW-3 is the victim himself. (iv) PW-4 is Pranit Deshmukh. This witness has turned hostile. (v) PW-5 is Vidya Meshram. She was Headmistress of Dwarkabai Tiwasekar Vidyalaya, Sonori at the relevant time and she proved the entry in the General Admission Register of the school to prove the date of birth of the victim. (vi) PW-6 is Dr. Pravin Parise. He examined the victim and also the appellant/accused. (vii) PW-7 is Ku. Sarita Bhatkar. She was Assistant Teacher of the school at the relevant time. She turned hostile. (viii) PW-8 is Vijay Radke. He is the panch and he has proved various panchanamas. (vi) PW-6 is Dr. Pravin Parise. He examined the victim and also the appellant/accused. (vii) PW-7 is Ku. Sarita Bhatkar. She was Assistant Teacher of the school at the relevant time. She turned hostile. (viii) PW-8 is Vijay Radke. He is the panch and he has proved various panchanamas. (ix) PW-9 is Bhagwat Patil, the Investigation Officer, who at the relevant time was attached to Police Station, Chandur Bazar as Police Sub-Inspector. On 08.7.2013, he received the case diary of Crime No. 200/2013 for investigation. 8. The crime was registered on the basis of the report lodged by Vinod Narayanrao (PW-1) with Police Station, Chandur Bazar. His oral report is at Exh.30. Printed first information report is at Exh.31. The contents of Exh.30 can be narrated as under: Vinod Narayanrao (PW-1) resides at village Sonori and he is an agriculturist. His family consists of his wife, two sons and one daughter. His younger son (victim) aged about 13 years is taking education in 7th standard at Dwarkabai Tiwasekar Vidyalaya, Sonori. On 08.7.2013 he came from his agricultural field at 7.00 O’clock in the evening. That time, the victim came to him and disclosed that at 2.30 in the lunch recess, the appellant came there on motorcycle and asked him that they should go for darshan of devi (goddess) and after darshan, he will reach the victim to house and therefore, the victim accompanied the appellant. However, in stead of going to Ambadevi temple, the appellant took him near the bank of nala and asked him that he should allow him to have intercourse. Therefore, the victim ran away, however, he was followed on motorcycle and asked him to sit on the motorcycle with an understanding that he will drop him in school. However, in stead of stopping the vehicle near school, he took said vehicle towards Vishroli dam and from there, the appellant took the victim towards Ghatladki and he was taken to an agricultural field. When the said was objected, the appellant gave two slaps to the victim and took him to a hut situated in that agricultural field. However, since the hut was closed, outside the hut after removing his clothes, the appellant had carnal intercourse with him. 9. After the case diary was received by PW-9 PSI Bhagwat Patil, he sent the victim for medical examination. He seized clothes of the victim under seizure panchanama (Exh.34). However, since the hut was closed, outside the hut after removing his clothes, the appellant had carnal intercourse with him. 9. After the case diary was received by PW-9 PSI Bhagwat Patil, he sent the victim for medical examination. He seized clothes of the victim under seizure panchanama (Exh.34). He also arrested the appellant by drawing arrest panchanama (Exh.59). In presence of the victim, the spot panchanama was drawn. On 10.7.2013, the appellant gave his disclosure statement in presence of panch Vijay Radke (PW-8) and agreed to show the place where he kept his clothes and the motorcycle. The admissible portion of the said memorandum is at Exh.54. Thereafter, the appellant led the police party along with panchas and from the place, clothes and motorcycle were seized under seizure panchanama (Exh.55). The Investigating Officer also recorded the statements of witnesses. The medical samples of the victim as well as the appellant were seized under seizure panchanamas and were sent to the Chemical Analyser. 10. As per the charge, the victim being minor was sexually assaulted. According to the impugned judgment, the appellant has committed sexual intercourse with a “child.” Therefore, it will have to be seen whether the prosecution has proved that on the date of the offence, the victim boy was “child” within the meaning of clause (d) of Section 2(1) of the POCSO Act. 11. PW-1 Vinod Narayanrao disclosed in his report Exh.30 the age of the victim as 13 years and at the relevant time he was taking education at Dwarkabai Tiwasekar Vidyalaya, Sonori in 7th standard. Similar is his evidence from the witness box. The victim (PW-3) has disclosed his date of birth as 28.09.2001 when he was examined on oath. His evidence regarding his date of birth is not at all challenged during the course of his cross-examination. 12. Be that as it may. The prosecution has also examined Smt. Vidya Meshram (PW-5) in that behalf. Smt. Meshram was working as Headmistress of Dwarkabai Tiwasekar Vidyalaya. She had bought original admission registered of her school. Her evidence would show that the victim was a student of her school and he was admitted in the school on 20.5.2011 in 5th standard and as per the record, his date of birth is 28.9.2001. Smt. Meshram was working as Headmistress of Dwarkabai Tiwasekar Vidyalaya. She had bought original admission registered of her school. Her evidence would show that the victim was a student of her school and he was admitted in the school on 20.5.2011 in 5th standard and as per the record, his date of birth is 28.9.2001. Her evidence would show that the learned trial Judge had verified the original register and thereafter the photo copy of the relevant page of the admission register was taken on record and marked as Exh.41. The learned counsel for the appellant Mr. Dhawas would submit that in cross-examination Smt. Meshram deposed that she does not know the victim. In my view, this submission has no force at all. Admittedly, Smt. Meshram was the Headmistress of the school and not the class teacher of the victim. It is not expected from any Headmistress or Headmaster to know each and every student of her/his school. Further the prosecution case was not challenged at all by the appellant that the victim boy was not the student of Dwarkabai Tiwasekar Vidyalaya, Sonori. In that view of the matter, merely because the Headmistress does not know personally the victim, her evidence does not loose authenticity especially when she proved the admission register maintained in day to day course of the school, which clearly depicts the name of the victim at Serial No. 3005 and it shows that the date of birth of the victim as 28.9.2001 as disclosed in unchallenged version of the victim by himself. In that view of the matter, there cannot be any doubt in anyone’s mind that the date of birth of the victim is 28.9.2001. That shows that on the date of the incident i.e. 08.7.2013, the victim was a “child” within the meaning of the provisions of the POCSO Act. 13. Evidence of PW-1 Vinod Narayanrao shows that when he came back from his agricultural field on 08.7.2013, the victim narrated the happening to him and the atrocities committed on him by the appellant. PW-1 Vinod reacted immediately. He proceeded to Police Station, Chandur Bazar and lodged the report at 20.30 hours. Thus, the report about the incident was lodged immediately. Prompt lodgement of the report rules out the possibility of false implication. PW-1 Vinod reacted immediately. He proceeded to Police Station, Chandur Bazar and lodged the report at 20.30 hours. Thus, the report about the incident was lodged immediately. Prompt lodgement of the report rules out the possibility of false implication. Further, immediate disclosure by the victim about the incident to his father on his return from agricultural field after finishing his work is also a relevant fact and in my view, it has its own importance regarding truthfulness of the version given by the victim. 14. Mr. Dhawas, the learned counsel for the appellant made a submission that the incident was not seen by anybody and therefore, benefit of doubt has to be given in favour of the appellant. I reject this submission outrightly. The offence like rape on a woman or an offence of unnatural sexual assault on a minor boy can never happen in presence of any third person. The perpetrator of the crime of such nature will always commit the same in a secluded place. Therefore, the expectation of the learned counsel for the appellant that there ought to have been eye-witness, in my view, is unacceptable. 15. The spot panchanama, which is proved by PW-2 Firoz Ahmad Khan, a panch, is at Exh.33. The recitals of said panchanama would show that the place of incident is ‘chhapri’ i.e. varanda of a closed hut, situated in an agricultural field, which is inside half furlong from the tar road. It would be useful to reproduce here the relevant recitals of Exh.33..... 16. The aforesaid recitals of the spot panchanama clearly shows that the said place was used and therefore, the soil on the spot was found to be pressed. The panchnama was executed on 09.7.2013 at 10.00 O’clock in the morning i.e. on the next day of registration of the crime. Further, there is nothing available on record to show or even to suggest that after lodgement of the first information report till the panchnama was recorded, it was used by anybody and/or anybody entered into the said place. 17. Evidence of the victim (PW-3) is of utmost importance. Further, there is nothing available on record to show or even to suggest that after lodgement of the first information report till the panchnama was recorded, it was used by anybody and/or anybody entered into the said place. 17. Evidence of the victim (PW-3) is of utmost importance. The cases like this which are at par of committing rape on a girl or on a woman, can be decided on a solitary piece of evidence of the victim, if evidence of the victim is free from embellishment, exaggeration and falsehood and if on the scrutiny of the cross-examination, it stands and inspires confidence in the judicial mind. If that be so, then even solitary version of the victim is sufficient to record the finding of conviction even though on many occasions the version is not supported by medical evidence. 18. Evidence of the victim (PW-3) would show that he was taking education at Dwarkabai Tiwasekar Vidyalaya, Sonori in 7th standard. His this version is also supported by Ku. Sarita Bhatkar (PW-7), Class Teacher. Though, this witness has not supported the prosecution case fully, the law on appreciation of evidence of hostile witness is by now well crystalized by various decisions of the Hon’ble Apex Court and by this Court. One can refer the leading case in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, AIR 1991 SC 1853 . 19. PW-7 Ku. Sarita, in the year 2013, was serving as Assistant Teacher in Dwarkabai Tiwasekar Vidyalaya, Sonori and she was Class Teacher of 7th standard. She specifically deposed that the victim was a student of her class. Thus, evidence of this Class Teacher not only corroborates the version of the victim that the victim was her student, but also gives strength to the evidence of PW-6 Vidya Meshram (PW-5), the Headmistress of the school, who proved the admission register showing that the victim was the bona fide student of the said school. 20. As per evidence of the victim, on the day of the incident i.e. 08.7.2013, at about 2.30 pm, in recess of the school, when he came out of the school, the appellant was standing with his motorcycle and he called him. He asked the victim to accompany him for darshan of devi and he then took him to Ghatladki road. As per evidence of the victim, on the day of the incident i.e. 08.7.2013, at about 2.30 pm, in recess of the school, when he came out of the school, the appellant was standing with his motorcycle and he called him. He asked the victim to accompany him for darshan of devi and he then took him to Ghatladki road. His evidence would show that the appellant did not take him to any temple, but took him in a field. It would be relevant to observe here the demeanor of the victim recorded by the learned Judge before whom the trial was conducted. The learned Judge while recording the evidence of the victim has observed as under: “Witness is hesitating to tell further. He is feeling shy.” The version of the victim shows that thereafter his clothes were removed. Also the appellant removed his clothes. The place was a hut in the field and there he inserted his private part in his anus and gave in and out jerks. It is also the evidence of the victim that while doing such heinous act, he extended threat to him and also beat him on his left cheek. Thereafter, he dropped the victim in the school and after school hours he came to the house and narrated the incident to his father. 21. The version of the victim that he attended the school on 08.7.2013 is corroborated by the victim’s Class Teacher Ku. Sarita Bhatkar (PW-7). Not only that she also stated that he was in school till 5.00 pm, however, she showed ignorance that in between where the victim had gone and therefore, she was declared hostile. However, it is not the Class Teacher’s version that all the time till 5.30 pm, the victim boy was within her eye sight. 22. Mr. Dhawas, the learned counsel for the appellant submitted that in cross-examination, the victim has admitted that he came to school at 5.00 pm and he went to house at 5.15 pm. However, he did not disclose the incident to the teacher. The learned counsel submits that this version of the victim creates doubt in respect of the incident itself inasmuch as according to the submission of the learned counsel, had such incident occurred, it was expected from the victim boy to narrate the same to the teacher. One cannot forget the age of the boy at the relevant time. The learned counsel submits that this version of the victim creates doubt in respect of the incident itself inasmuch as according to the submission of the learned counsel, had such incident occurred, it was expected from the victim boy to narrate the same to the teacher. One cannot forget the age of the boy at the relevant time. He was a very tender aged boy. However, at the same time he was knowing that penetrating a male organ in his anal part is an obnoxious thing. The said occurred to this boy. In such cases, it would be most natural on the part of such victim to conceal such thing from his teacher, from anyone else who are not the members of the family because of fear of defamation. Therefore, no exception can be taken for not narrating the incident to the teacher. It is to be seen in this case that the victim boy returned to his house at about 5.30 pm. His father came back from his agricultural field at 7.30 pm and even during this period he did not disclose the incident to his mother. In my view, it shows that this victim boy was very close to his father and therefore, only when his father came back to the house, the boy not only gathered courage, but immediately disclosed the incident without loosing any precious time. 23. From evidence of the victim boy, as it could be seen from his cross-examination, the appellant was not unknown to the victim. In fact, it is brought on record from the evidence of the victim as well his father that the victim’s father has given the status of his sister to the mother of the appellant. 24. The appellant is convicted for the offence punishable under Section 363 of the Indian Penal Code. As discussed in earlier paragraphs, the age of the boy was 13 years at the relevant time. Therefore, all the time his custody will remain with his parents. Even during the period of attending the school, the parents of minor will not be said to have parted custody of minor voluntarily. On the contrary, for this period, the parents entrust custody of the minor to the school authority and the school authority will be having the custody of minor for and on behalf of parents of such minor. 25. On the contrary, for this period, the parents entrust custody of the minor to the school authority and the school authority will be having the custody of minor for and on behalf of parents of such minor. 25. In the present case, from the evidence of PW-7 Ku. Sarita, a Class Teacher, it is clear that the appellant did not obtain permission from said class-teacher to take away the minor from the school. On the contrary, from the evidence of the victim boy, it is clear that he was enticed by the appellant on the pretext of taking him to darshan of devi (goddess) It was very easy on the part of the appellant to entice and prevail upon the mind of the victim to accompany with him since they were knowing each other. Therefore, in my view, the ingredients of offence of kidnapping are duly proved by the prosecution. 26. The victim boy was sent to the hospital for his medical examination immediately after registration of the crime. 27. On 08.7.2013, Dr. Pravin Parise (PW-6) was the Medical Officer at Rural Hospital, Chandur Bazar. His evidence would show that PC Mohan, B.No. 1969 had brought the victim for his medical examination. Evidence of Dr. Parise would show that he examined him and also answered the queries of the Investigating Officer mentioned in his memo. As per evidence of Dr. Parise, there was history of sodomy by 27 years male about 5 to 7 hours back on 08.7.2013. On examination of the victim boy, Dr. Parise noted the following findings: (1) A sample of hair of another person is found at the opening of anus. (2) Anus and part around the anus is wet and became red. (3) Opening of anus is loose, not very tight as it is normally. (4) Injury i.e. abrasion (breach of skin) ½ x 0.25 cm two in numbers at the upper part of annual opening is present. (5) Contusion two in number of size 4 x ½ cm beside left eye is present. 28. Dr. Parise (PW-6) proved the medical certificate of the victim, which is at Exh.44. It is to be mentioned here that Dr. Parise’s evidence would show that prior to examining the victim boy, he followed the procedure. Exh.45A is the answers to the queries made by the Investigating Officer. Exh.45A and substantive evidence of Dr. 28. Dr. Parise (PW-6) proved the medical certificate of the victim, which is at Exh.44. It is to be mentioned here that Dr. Parise’s evidence would show that prior to examining the victim boy, he followed the procedure. Exh.45A is the answers to the queries made by the Investigating Officer. Exh.45A and substantive evidence of Dr. Parise reveals following thing: (1) That, the boy was victim of unnatural sex. (2) Injuries as noted in the injury report no. 70 were present over his upper border of anal opening. Also there was a contusion on left eye. 29. Evidence of Dr. Parise was challenged that redness on the anus opening was due to eating more chillies and non-veg etc. This was also a suggestion given to Dr. Parise when he was in cross-examination. The said was stoutly denied by Dr. Parise. 30. From the evidence of Dr. Parise (PW-6), it is clear that the victim boy was sexually assaulted. The learned counsel for the appellant submits that Chemical Analyser’s report does not show blood or semen stain on the garment of the victim. The Chemical Analyser’s reports are not the conclusive proof. They are only corroborative piece of evidence. Further, evidence of victim boy does not show that due to heinous act on the part of the appellant, his anus was bleeding. His evidence is also totally silent that anything was discharged in his anus from the male organ of the appellant. If that be so, much importance cannot be given to C.A. report (Exh.24). 31. From evidence of the victim, which according to me is not only truthful, but which is also corroborated by the medical evidence, the prosecution has established the charge framed against the appellant beyond all reasonable doubts. 32. On re-appreciation of entire prosecution case, I am of the opinion that the learned trial Judge did not commit any error in convicting the appellant. Consequently, I pass the following order: ORDER: 1. The criminal appeal is dismissed. 2. The judgment and order of conviction passed by learned Additional Sessions Judge-1 and Special Judge, Achalpur in Special (POCSO) Case No. 11/2013 dated convicting the appellant for the offence punishable under Sections 363, 377, 323 of the Indian Penal Code and also under Section 4 of the Protection of Children from Sexual Offences Act, 2012, is maintained. 3. 2. The judgment and order of conviction passed by learned Additional Sessions Judge-1 and Special Judge, Achalpur in Special (POCSO) Case No. 11/2013 dated convicting the appellant for the offence punishable under Sections 363, 377, 323 of the Indian Penal Code and also under Section 4 of the Protection of Children from Sexual Offences Act, 2012, is maintained. 3. The appellant, who is in jail, shall undergo the entire jail sentence.