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2020 DIGILAW 798 (BOM)

Devanand v. State Of Maharashtra

2020-07-10

N.B.SURYAWANSHI, Z.A.HAQ

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JUDGMENT N.B. Suryawanshi, J. - The appellant is convicted for the offences punishable under Section 4 of the Protection of Children From Sexual Offences Act, 2012 (for short "POCSO Act") and Sections 376 (2) (f) and 506 (2) of the Indian Penal Code and sentenced to suffer life imprisonment and to pay fine of Rs. 5,000/- with a default sentence, by the judgment given in Spl. (POCSO) Case No. 122/2016 recorded by learned Additional Sessions Judge, Achalpur. 2. The prosecution case, in short, is that :- PW 2 Informant is the mother of PW 4 Victim. The informant had deserted her husband since last 13 years and he was residing at Jivan Pura slums at Achalpur alongwith her daughter. The informant developed relationship with the accused and they were staying as husband and wife alongwith the victim in the same house since 4 years prior to the date of incident. Since one month prior to filing of the report by the informant, the accused used to remove his clothes and ask the victim to massage his legs and hands. During the course of massage, on 2-3 occasions, the accused inserted his private part in the mouth of the victim. When the informant objected to it, the accused had beaten her due to which she did not file any report nor disclosed it to anybody. On 20/06/2016, PW 2 Informant found the accused molesting the victim. The accused had removed his clothes and had asked the victim to press his legs and hands and thereafter, the accused sat on the chest of the victim and gave his private part in the mouth of the victim. The informant had pushed the accused away and asked him not to stay in her house. Then on the next day, the informant alongwith victim went to the police station and lodged first information report on the basis of which C.R. No. 182/2016 for the offences punishable under Section 376 (2) (f) of the Indian Penal Code and Section 4 of the POCSO Act was registered. After completion of investigation, charge-sheet was filed. Charges were framed against appellant under Section 376 (2) (f) of the Indian Penal Code and under Section 4 of POCSO Act. The prosecution, in support of its case, examined 7 witnesses. The defence of the appellant was of denial and of false implication. After completion of investigation, charge-sheet was filed. Charges were framed against appellant under Section 376 (2) (f) of the Indian Penal Code and under Section 4 of POCSO Act. The prosecution, in support of its case, examined 7 witnesses. The defence of the appellant was of denial and of false implication. The defence suggested to the informant that she was not keeping well and the accused was bearing all the household expenses, however when the wife of the appellant came to take him back, the informant had lodged false report in order to receive compensation from the government. In the statement under Section 313 of the Code of Criminal Procedure, the appellant contended that he had to receive money from the informant and on 20/06/2016, he went to her house to demand money, the informant quarreled with the appellant and told him to wait till she arranges the money. While he was waiting for the informant, she came with the police and made false allegations against him. The trial was conducted and after assessing the evidence, the Sessions Court has convicted the appellant as aforesaid. Hence, the present appeal. 3. Heard learned advocate for the appellant and learned APP. With the assistance of both the learned advocates, we have gone through the notes of evidence and record. 4. Learned advocate for the appellant submitted that the evidence of prosecution is unreliable. According to the accused, the prosecution has failed to prove that at the time of the incident, the victim was child within the meaning of Section 2 (1) (d) of the POCSO Act, and the evidence of PW 3 Headmaster who brought on record the school leaving certificate (Exh. 29) is not reliable as he has admitted in the cross-examination that it is not mentioned in the admission register (Exh. 31) as to on what basis the entry of birth of the victim was taken. He further argued that the medical evidence does not support the allegations of the victim and informant and therefore the prosecution has failed to prove the offence beyond reasonable doubt. Hence, the appellant is entitled for acquittal. 5. Learned APP, on the other hand, supports the conviction stating that the evidence of PW 2 Informant and PW 4 Victim corroborates each other on material particulars. Hence, the appellant is entitled for acquittal. 5. Learned APP, on the other hand, supports the conviction stating that the evidence of PW 2 Informant and PW 4 Victim corroborates each other on material particulars. The date of birth is mentioned by the informant and the medical evidence supports the fact that the victim was child at the time of incident. It is submitted that the appellant, being a person being in authority had committed the offence and hence the conviction is proper. The learned Sessions Judge has properly appreciated the evidence and the appeal being devoid of any substance, is liable to be dismissed. 6. To prove that the victim was child at the time of the incident, the prosecution has relied on the evidence of PW 2 Informant who has stated in her evidence that thirteen years back her husband abandoned her soon after the birth of victim and she started residing at Achalpur. The victim was not born in any hospital and when the victim was admitted in the school, her birth certificate was not submitted. She has given the date of birth of victim as "31/10/2002". 7. Pw 3 - the Headmaster of Municipal Primary School, Achalpur deposed that the victim was taking education in that school and in her school record, the date of birth is shown as "31/10/2002". School leaving certificate (Exh. 29) is brought on record in which date of birth of the victim is mentioned as "31/10/2002", which corroborates the version of PW-2 regarding date of birth of victim. 8. Pw 5 Medical Officer, who clinically examined the victim has stated in her evidence that the victim had not attained menstruation and her pubic area was clean. Thus, her evidence also corroborates the evidence of PW 2 Informant that the victim was child at the time of the incident. 9. Much is argued by learned advocate for the appellant that there is inconsistency in the date of birth of the victim, as in the first information report, the date of birth of the victim is given as 31/10/2003 whereas in the evidence, the date of birth is given as 31/10/2002. This is not proved as an omission by the defence and it does not go to the root of the matter. It is a minor improvement. The informant is a rustic village woman. This is not proved as an omission by the defence and it does not go to the root of the matter. It is a minor improvement. The informant is a rustic village woman. Even if it is assumed for the sake of argument that date of birth of the victim was 31/10/2003, still she was child within the meaning of Section 2 (1) (d) of the POCSO Act on the date of the incident. Hence, we are unable to accept the argument of learned advocate for the appellant in this behalf. Thus the prosecution has proved that victim was child within the meaning of Section 2(1)(d) of the POCSO Act. 10. In order to prove the offence, the prosecution has examined PW 2 Informant (mother of the victim) who has stated in her evidence that the appellant was in relationship with her and since 4 years prior to the incident he was residing with the informant and victim in the same hut and she had actually seen the incident of molestation of her daughter by the appellant. On 20/06/2016, the accused had removed his clothes and had asked the victim to press his legs and hands, then sat on the chest of the victim and gave his private part in the mouth of the victim. At that time, PW 2 Informant had pushed away the accused and had asked him not to stay in her house. The appellant had threatened to kill her if she intervened in the matter. On the night of incident, the informant and victim stayed in a nearby field. On the next day, they had gone to Achalpur Police Station and had lodged the report against the appellant (Exh. 21). The informant had mentioned the date of birth of the victim as "31/10/2002". In the cross-examination, her evidence is not shattered in respect of the incident. Minor omission is pointed out in respect of the date of lodging of the report, as to whether the report was lodged on 20/06/2016 or 21/06/2016. 11. Pw 2 Informant admitted in her cross-examination that she had given chronology of the incident while lodging the report that the appellant sat on the chest of the victim and gave his private part in her mouth and further PW 2 Informant had pushed the accused and had asked him not to stay in her house. 11. Pw 2 Informant admitted in her cross-examination that she had given chronology of the incident while lodging the report that the appellant sat on the chest of the victim and gave his private part in her mouth and further PW 2 Informant had pushed the accused and had asked him not to stay in her house. The chronology is not reflected in her report in the same manner, so also the fact of PW 2 Informant and PW 4 Victim staying in the nearby field for the whole night of incident is not reflected in the report (Exh. 21). 12. Pw 4 Victim has stated in her evidence that the appellant was staying in her house since four years prior to the incident. The incident had taken place one year prior to the recording of her evidence. The appellant had come to the house, removed her clothes and put his penis in her mouth. The appellant used to remove his clothes and used to direct her to massage his hands and legs. He used to put his private part in her mouth. Therefore, report was lodged and the victim was referred for medical examination. She attended the girls school of Achalpur. In her cross-examination, a suggestion was given that she had love affair with a boy residing in neighbourhood aged about 16-17 years, and there was physical relationship between them. The same is denied. She reiterated that on the day of incident, report was lodged and her statement was recorded 2-3 times on different dates. Her two statements were recorded on the next day of filing of the report. She denied that there was quarrel between the informant and appellant on the date of filing of the report. She has further denied that the appellant had seen physical relationship of the victim and the boy and that there was quarrel between the appellant and PW 2 Informant and the appellant demanded Rs. 10,000/- which was kept with the informant to go back to his village and therefore false report was lodged against the appellant. 13. On assessing the evidence of PW 2 Informant and PW 4 Victim in respect of the actual incident to which the informant is eye witness and of which victim is the sufferer, the evidence is consistent and has not been shattered in the cross-examination. 13. On assessing the evidence of PW 2 Informant and PW 4 Victim in respect of the actual incident to which the informant is eye witness and of which victim is the sufferer, the evidence is consistent and has not been shattered in the cross-examination. The prosecution has therefore proved the incident of rape committed by the guardian as the appellant and informant (mother of the victim) were residing as husband and wife. In terms of Section 375 of the Indian Penal Code, penetration of penis in the mouth of a woman constitutes an offence of rape. The appellant, since was residing as husband of the informant (mother of the victim) was in a position of trust or authority towards the victim and hence, is liable for conviction for the offence punishable under Section 376 (2) (f) of the Indian Penal Code and Section 4 of the POCSO Act. 14. Pw 5 Medical Officer, during examination found that hymen of the victim was ruptured and that she was habitual to sexual intercourse for more than once or twice, however, the evidence could not be collected in respect of the oral sex with the victim. The fact remains that the evidence of oral sex is brought on record by the prosecution through PW 2 Informant and PW 4 Victim which is consistent on material particulars. 15. The prosecution examined PW 1 who has proved spot panchanama (Exh. 15). PW 6 is the Investigating Officer who has conducted the initial investigation between 21/06/2016 and 27/06/2016. PW 7 is the Investigating Officer who completed the investigation and filed the chargesheet. The accused has not been able to create any doubt necessitating discarding of their evidence. 16. Sections 29 and 30 of the POCSO Act are an exception to the settled principles of criminal jurisprudence that the accused is presumed to be innocent unless proved guilty beyond reasonable doubt. The burden is on the accused to prove that he is innocent. The appellant has failed to discharge this burden. The prosecution has proved the incident through the evidence of PW 2 Informant and PW 4 Victim, which we find reliable. Nothing is elicited in the cross-examination of these two witnesses to doubt their veracity. The burden is on the accused to prove that he is innocent. The appellant has failed to discharge this burden. The prosecution has proved the incident through the evidence of PW 2 Informant and PW 4 Victim, which we find reliable. Nothing is elicited in the cross-examination of these two witnesses to doubt their veracity. As already stated hereinabove, it is proved on record that on the date of incident the victim was child within the meaning of Section 2 (1) (d) of the POCSO Act. Section 375 of the Indian Penal Code defines rape. A man is said to commit rape if he penetrates his penis, to any extent into the vagina, mouth or anus of a woman or make her to do so with him or any other person. Thus, penetration of penis in the mouth of a woman constitutes an offence of rape. Thus, the appellant has committed the offence of rape as well as penetrative sexual assault on the victim within the meaning of Section 3 of the POCSO Act. The minor inconsistencies or improvements brought on record in the evidence of PW 2 Informant are not significant and they do not go to the root of the matter to help the defence. They do not render the evidence of PW 2 and PW 4 unreliable. The appellant has taken different defences in the cross-examination as well as in the statement under Section 313 of the Code of Criminal Procedure, but has failed to discharge the burden of proving his innocence. 17. Taking into consideration the evidence brought on record by the prosecution, it is proved beyond reasonable doubt that the appellant has committed the offence punishable under Section 376 (2) (f) of the Indian Penal Code and Section 4 of the POCSO Act. We find that the learned Sessions Judge has properly appreciated the evidence on record and has rightly convicted the appellant. We do not find any substance in the appeal filed by the appellant and the appeal is liable to be dismissed. 18. Hence, the following order:- (a) Criminal Appeal No. 89/2018 is dismissed. (b) The appellant is entitled for set-off under Section 428 of the Code of Criminal Procedure. (c) Muddemal property be dealt with according to law after the appeal period is over. 18. Hence, the following order:- (a) Criminal Appeal No. 89/2018 is dismissed. (b) The appellant is entitled for set-off under Section 428 of the Code of Criminal Procedure. (c) Muddemal property be dealt with according to law after the appeal period is over. (d) Fees of the advocate appointed to represent the appellant be paid as per the Rules, within 4 weeks.