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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.R. Gavai, V.M. Deshpande, JJ.
Ravi Anandrao Gurpude - Appellant
Versus
State of Maharashtra, through PSO P.S. Bhisi - Respondent
Criminal Appeal No. 412 of 2014
Decided On : 01-08-2016
POCSO - Conviction under Sections 3(a), 4, 5(j)(ii), 5(l), 6 - Protection of Children From Sexual Offences Act, 2012 - Section 3(a), Section 4, Section 5(j)(ii), Section 5(l), Section 6
Fact of the Case:
The appellant was convicted for offences under POCSO Act and IPC based on the prosecutrix's report of sexual assault and subsequent pregnancy. The appellant appealed the conviction, arguing failure to prove the prosecutrix's age and unreliability of her testimony.
Finding of the Court:
The court found that the prosecution failed to prove the prosecutrix's age, crucial for establishing the charges under the POCSO Act. It also concluded that the conviction under IPC Section 506 could not be confirmed due to delayed disclosure of the assault.
Issues: Failure to prove prosecutrix's age, reliability of prosecutrix's testimony, and validity of charges under POCSO Act and IPC Section 506.
Ratio Decidendi: The prosecution must prove the victim's age to establish charges under the POCSO Act. The delayed disclosure of assault affects the reliability of the testimony and impacts the conviction under IPC Section 506.
Final Decision: The appeal was allowed, and the appellant's conviction under the POCSO Act and IPC Section 506 was quashed and set aside, leading to the appellant's immediate release.
V.M. Deshpande, J.
The appellant is convicted for the offence punishable under Section 3 (a) punishable under Section 4 and for the offence under Section 5 (j) (ii) and 5 (l) punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012, by the learned Special Judge, Warora on 21.04.2014 in Special (POCSO) Case No. 2/2013 and directed that the appellant shall suffer imprisonment for life and pay a fine of Rs. 5,000/- and in default to undergo rigorous imprisonment for six months. The appellant is further convicted for the offence punishable under Section 506 of the IPC and sentenced to suffer rigorous imprisonment for one year.
2. The prosecution case as it is unfolded during the course of trial is narrated hereunder:
(a) On 09.09.2013, Siddhanand Mandavkar (PW7) was discharging his duties as Police Inspector at Police Station, Bhisi. On the said day at 2.00 p.m. the prosecutrix along with her father Bhagwan Gongal (PW5) came to Police Station. The prosecutrix lodged her oral report. It was reduced into writing as per her say. The oral report is at Exh.52.
On the basis of the said, Siddhanand (PW7), registered the offence against the appellant vide Crime No. 45/2013 for the offence punishable under Section 376, 506 of the IPC and under Section 4 and 6 of the POCSO Act (Hereinafter referred to as the “Act” for the sake of brevity). The printed FIR is at Exh.13.
(b) The oral report of the prosecutrix shows that when she was residing at mouja Panjrepar, Dist. Chandrapur in the month of March 2013, her father had been to her elder sister Pushpa who stays outstation. The Prosecutrix had been to her agricultural field for grazing her she goats. That time, at about 2.00 p.m. the appellant suddenly came from her behind and forced her to fell down. She raised hue and cry, then started running towards the village. That time the appellant followed her and thereafter committed forcible sexual intercourse with her. After the sexual assault, he extended the threats to her. In the evening, the prosecutrix returned to her house. However, since, her father was out of station, she could not narrate the incident to anybody.
On the second day also, the appellate repeated his act on the prosecutrix. Not only that, he continued to fulfil his lust for a period of three days.
It is further stated in the FIR that thereafter whenever father of the prosecutrix was not available in the house, the appellant used to commit sexual intercourse in her agricultural field. In the month of May, the marriage of the appellant took place and he left along with his wife. Thereafter, the prosecutrix noticed that she is pregnant. When the pregnancy became visible, her father gave courage to her and thereafter the report was lodged.
(c) The Investigating Officer, after registration of crime, sent the prosecutrix to Primary Health Centre, Bhisi. However, her medical examination could not be done there. Therefore, she was sent to the Rural Hosptial, Chimur under requisition Exh.44. He arrested the appellant on 09.09.2013 under arrest memo Exh.55. On 10.09.2013, the Investigating Officer visited the spot of incident. The spot was shown by the prosecutrix. The spot panchanama was drawn in presence of pancha witness Nanaji Lokhande (PW2), which is at ExH.17. He also recorded statement of some witnesses. He also sent the appellant for medical examination. All the formalities for DNA test were also completed. He thereafter obtained birth certificate from Sarpanch of the Gram Panchayat. The Prosecutrix was sent to the General Hospital from Chimur hospital. She gave birth to one female child. The blood sample for DNA test was also collected. On 27.09.2013, the Investigating Officer received the information that newly born child is dead. Therefore, he registered Accidental Death No. 32/2013 and sent the dead body of autopsy. After completion of other investigation, charge-sheet was filed before the Court of law.
(d) The J.M.F.C. in whose Court, the cha
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