High Court · 2024
Legal Reasoning
(1) Criappeal-201.2022.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 201 OF 2022Ashok Bhagwanrao Balatkaar Age : 27 yrs, occ : business R/o Kundi, Taluka Setu, District Parbhani.AppellantVersus1.The State of Maharashtra2.X – ProsecutrixRespondents...Mr. S.J. Salunke, Advocate for the appellant.Mr. R.D. Sanap, A.P.P. for respondent No.1 – State.Smt. Renuka Ghule-Palve, Advocate for respondent No.2(Appointed through Legal Aid)....CORAM :SANDIPKUMAR C. MORE, J.Judgment Reserved on:6 November 2023Judgment pronounced on:2 February 2024Judgment :1.By preferring this appeal, the appellant, who is theoriginal accused in Special (POCSO) Case No. 43/2020, haschallenged his conviction in the aforesaid case under Sections376-AB and 363 of the Indian Penal Code ( for short “I.P.C.”)and under Section 8 of Prevention of Children from SexualOffences Act, 2012 (for short, “POCSO Act”) imposed bylearned Additional Sessions Judge and Special Judge,Parbhani (hereinafter referred to as “the learned trial Court”). (2) Criappeal-201.2022.odtThe appellant/accused is sentenced to suffer rigorousimprisonment for twenty years and to pay fine of Rs. 1000/-,in default to suffer simple imprisonment for six months forthe offence punishable under Section 376-AB of I.P.C. He isalso sentenced to suffer rigorous imprisonment for sevenyears and to pay fine of Rs. 1000/- in default to suffer simpleimprisonment for six months for the offence punishableunder Section 363 of I.P.C. Lastly, the appellant is alsosentenced to suffer rigorous imprisonment for five years andto pay fine of Rs. 1000/- in default to suffer simpleimprisonment for six months for the offence punishableunder Section 8 of POCSO Act.2.According to prosecution, the appellant is theneighbour of the family of minor victim. He was havingcordial relationship with the victim as well as her familymembers. Therefore, by taking undue advantage of suchrelationship, the appellant on 13.02.2020 at about 6.00 p.m.took away the victim in the field on the pretext of giving herfresh green peas (VgkG). He first took away the victim to a shopsituated in the village and thereafter to field. Then he tookthe minor victim in a small hut situated in the field where hetook out her nicker and inserted his finger into her vagina.
Legal Reasoning
(3) Criappeal-201.2022.odtHe also applied his private part to the private part of theminor victim.3.On the next day the informant i.e. father of victimlodged report in Selu Police Station on the basis of whichcrime was registered against the appellant for the offencespunishable under Sections 376-AB, 363 of I.P.C. and underSection 4 and 8 of the POCSO Act. On completion of theinvestigation, the appellant/accused was chage-sheeted.Learned trial Court i.e. Additional Sessions Judge, Parbhaniconducted the trial and convicted the appellant/accused asmentioned above.4.Learned Counsel for the appellant/accusedsubmits that age of the victim being of 8 years is not seriouslydisputed, but there are so many contradictions in theevidence of victim. He pointed out that on the point of takingthe victim to the field when she was in the company of herfriends, no reliable evidence is laid by the prosecution byexamining one of her friends. He also pointed out thatnobody from the neighbours of the victim’s family wereexamined. According to him, all the interested persons havebeen examined by the prosecution. He pointed out that theMedical Officer, who had examined the victim, had in fact (4) Criappeal-201.2022.odtstated that no external injury on the person of victim wasfound despite the allegations of slapping her by theappellant/accused. He pointed out that the C.A. report alsocould not establish the case of prosecution as it did notsupport any positive finding in respect of sexual assault onthe victim. Besides his oral submission, the learned Counselfor the appellant/accused relied on the following citations :(i)State of Maharashtra vs Suresh @ Bhaskar DashrathGawai & ors, 2011 ALL MR (Cri) 3110(ii)Ravi Anandrao Gurpude vs State of Maharashtra2017 ALL MR (Cri) 1509(iii)Mangesh Wadkar vs State, AIR Online 2023 Bom 312(iv)Pradip vs State of Maharashtra through Police Station Officer, Police Station Old City Akola, (2022) 4 Bom CR(Cri) 631,5.On the contrary, learned A.P.P. supported theimpugned judgment and vehemently argued that the F.I.R.was immediately lodged and father, mother and victim havecorroborated each other on the material aspect. Further, PW-5 Baba Mahajan has also deposed that he saw the victim inthe company of appellant/accused at the shop in the village.He pointed that the Medical Officer Dr. Archana Bhusewadi.e. PW-6 has specifically stated in her evidence that sexualviolence with the victim could not be ruled out. Thus, heclaims that the prosecution has established complete chain of (5) Criappeal-201.2022.odtthe incidents which is well supported by the evidence ofvictim, and therefore the appeal needs to be dismissed. Healso placed reliance on the judgment in the case of State ofPunjab vs Gurmit Singh reported in 1996 AIR (SC) 1393.6.On the other hand, learned Counsel forrespondent No.2 / victim also supported the arguments oflearned A.P.P. and submitted that the learned trial Court hasproperly convicted the appellant/accused considering theentire evidence on record. As such, she also prayed fordismissal of the appeal.7.Heard rival submissions. Also perused entire oraland documentary evidence on record.8.It is significant to note that the learned Counselfor the appellant/accused during the course of argument didnot dispute the age of victim being of 8 years at the time ofincident seriously. Therefore, there is no need to discuss theevidence on that point as discussed by the learned trialCourt. So far as the evidence in respect of guilt of appellant/accused is concerned, the victim in her evidence hasspecifically deposed that on the day of incident she was in 3rdStandard and after school she attended private tuition and (6) Criappeal-201.2022.odtreturned home at about 6.00 p.m. She further deposed thatthen she went to play with her brother, sister and friends byseeking permission of her mother. According to her, when shewas playing in front of her house, the appellant / accusedcame there and asked her to come with him on the pretext ofgiving fresh green peas (VgkG). They first went to the shop ofJogi Mama where the appellant purchased Goa Sachet andthen took her to his field. She has deposed that when shesaw torch lights in the said field, the appellant told her aboutarrival of thieves. When she uttered word “mother” loudly,the appellant pressed her mouth and slapped her. Thereaftershe has deposed about the incident of removing her nicker byappellant/accused and inserting his finger in her private part.She also deposed that appellant/accused applied his privatepart on her private part and kissed her cheek. She furtherdeposed that appellant / accused then took her to variousplaces in the field and did not allow her to sleep whole night.Further, in the morning when her parents and maternaluncle came in the field to search her, the appellant/accusedleft her near the bridge and ran away. Thus, the victim,except certain minor contradictions, has deposed as per theprosecution story. She has also stated that after cominghome, she narrated the incident to her mother and then they (7) Criappeal-201.2022.odtwent to Police Station and lodged report. She has also statedabout her visit to hospital at Parbhani alongwith her motherand her examination through the doctor. 9.Considering the age of the victim at the time ofdeposition, her aforesaid testimony definitely appearstrustworthy and reliable since it is also corroborated by hermother i.e. PW-3 Kalinda. The evidence of father of the victimi.e. PW-2 Bharat also corroborates the version of mother ofvictim as well as victim. Therefore, considering the evidenceof these witnesses, it has come on record that the appellant /accused had taken the victim to his field and they hadsearched victim in the night till 2.30 a.m. Further, theevidence of PW-4 i.e. the uncle of informant also indicatedthat he had seen the accused alongwith victim in the shop ofJogi. It has come in the evidence of father of victim i.e. PW-2that PW-5 Baba had told that he had seen the appellant /accused and victim while going by Pandan road. Though thiswitness Baba i.e. PW-5 refused to support the prosecutionwhile deposing before the Court, but in the cross-examinationit has also come on record that he had cordial relationshipwith the appellant/accused. As such, it was obviousl that hedid not support the case of prosecution. Further, it seems (8) Criappeal-201.2022.odtthat the appellant/accused tried to raise the defence that healongwith father of victim used to drink liquor which causedheavy expenditure and therefore, the other family members ofvictim out of annoyance because of such expenditure falselymade complaint against him. However, such defence appearshighly improbable especially when the victim and her parentscorroborated each other on material aspect of sexualpenetrative assault on the victim.10.Learned Counsel for the appellant/accused heavilyrelied on the judgment in the case of State of Maharashtra vsSuresh @ Bhaskar Dashrath Gawai (supra) wherein thisCourt has observed that it would not be easy to believe theprosecutrix contrary to medical evidence. In the instant case,if the evidence of Dr. Archana i.e. PW-6 is seen, then it isevient that the victim had not sustained any injury to herprivate part or on the other part of her body. Medical OfficerPW-6 Dr. Archana has admitted in her cross-examination thatin case of insertion of finger in the private part of any woman,there would of redishness, bleeding and other injuries mightbe possible. She has also admitted that such type of injurieswere not found while examining the private part of the victim.Learned Counsel for the appellant/accused, by referring such (9) Criappeal-201.2022.odtadmissions given by Medical Officer, argued that theprosecution could not establish the fact of penetration.However, learned trial Court has referred in the judgmentamended definition of penetrative sexual assault underSection 375-B of I.P.C. wherein the word “vagina” is inclusiveof “libia majora”. Therefore, in the instant case, even thoughthere were no injuries on the private part of the victim, but inthe light of specific evidence given by victim, the insertion offinger upto libia majora can also be categorized as “rape”.Moreover, despite such admission on the part of the MedicalOfficer, she has specifically deposed that the possibility ofsexual violence with the victim could not be ruled out.Therefore, the aforesaid judgment is not helpful to theappellant/accused.11.Further, there is also presumption as per Section29 of the POCSO Act under which the Court shall presumethat the accused has committed offence unless contrary isproved. In the instant case, I have already observed earlierthat defence of appellant/accused appears improbable, andtherefore, it can safely be observed that the appellant/accused has not rebutted the aforesaid presumption by way ofreliable defence. Further, on perusal of the impugned (10) Criappeal-201.2022.odtjudgment, it is evident that the learned trial Court hasproperly appreciated the facts of the case and evidenceadduced thereof, in the light of the judgments of the Hon’bleApex Court as well as this Court in proper perspective.Therefore, considering the entire evidence on record, theprosecution has clearly established the guilt ofappellant/accused beyond all reasonable doubts.12.Learned Counsel for the appellant/accused heavilyrelied on the judgment in the case of Pradip vs State ofMaharashtra (supra) and prayed for reduction of sentence ashe has sentenced to suffer rigorous imprisonment for twentyyears, specially when the medical evidence on record asregards the incident of rape is not convincing. However, Ihave already opined that though there were certainadmissions on the part of PW-6 Dr. Archana, who examinedthe victim, but the other evidence on record specially of thevictim, found convincing. Moreover, in the aforesaidjudgment of this Court, reduction in the sentence ofimprisonment was on the ground that the accused thereinwas a young boy of 20 years shouldering responsibility of hiswidowed sister and her son. Such is not the case in thepresent matter. The appellant/accused was also having (11) Criappeal-201.2022.odtdaughter who was friend of the victim, and therefore, the actof appellant/accused in the instant case needs to no leniency.As such, the aforesaid judgment is also not helpful to theappellant/accused. Thus, considering all these aspects thereis no need to interfere with the judgment of the learned trialCourt and accordingly the appeal stands dismissed. The feesof the appointed Counsel for respondent No. 2 / victim bequantified as per rules.(SANDIPKUMAR C. MORE, J.)VD_Dhirde