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2019 Supreme(Bom) 233
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
PRAVIN - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Criminal Appeal No. 670 of 2018
Decided on : 01-03-2019
Act Referred
INDIAN PENAL CODE : S.376
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT : S.2(d), S.5(m), S.6
Headnote
Protection of Children from Sexual Offences Act, 2012 0 Sections 5 and 6 - Indian Penal Code,1860 - Section 376 - Appeal Against conviction - Special Child Protection Case - Thereafter she her younger brother and cousin were playing in courtyard in front of house- At about came in courtyard on his motorcycle - He took victim with him and they had a right on motorcycle - He also gave chocolates to them - Thereafter he asked to get down from motorcycle however he took victim on motorcycle to a temple which is two kilometers away from village and thereafter he took victim in bushes arden and also opened zip of his pant and inserted his private part in her private part - That time victim shouted however appellant asked not to shout as nothing will happen- After some time he asked victim to put on her undergarment and also closed zip of his full pant - Held, In view of aforesaid nature of evidence there is no doubt in my mind that proper precaution was taken right from obtaining samples its sealing reaching same to office of Chemical Analyser in sealed condition and thereafter exercise of extracting DNA and preparation of DNA report (Exh-62) was done which clearly shows finding of guilt against appellant - Appellant has taken a defense that he is falsely implicated in crime due to political rivalry- In cross-examination of PW1 it was suggested to her that family of victim and family of appellant worked for Party and cousin brother-in-law of (PW1) is working in school - She however stoutly denied suggestions that sister-in-law of appellant by contested election against from family of victim and due to that there was political enmity in between these two families and therefore on say of male members false report is lodged against him - Criminal appeal is dismissed
Advocate Appeared:
R.M. Daga, Adv., M.K. Pathan, Adv.
V. M. DESHPANDE, J.
1. The appellant is challenging the judgment and order of conviction passed by the learned Extra Joint Additional Sessions Judge, Nagpur dated 12.9.2018 in Special Child Protection Case No. 134/2016. The appellant is convicted for the offence under Section 5(m) punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act" for short) and is directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs.15,000/- and in default of payment fine to suffer rigorous imprisonment for Six months. Though, the appellant is also convicted for the offence punishable under Section 376 of the Indian Penal Code, no separate punishment is imposed for the same.
2. When Shubhangi Hemraj Dhavde (PW15), a lady Police Constable, was attached to Police Station, Hingna on 01.2.2016, the victim (PW4) and her mother Roshani (PW1) had been to the police station. Lady PC Shubhangi found that the victim was frightened. She recorded her report as per her version. The oral report is at Exh.89.
3. Oral report (Exh.89) states that the victim is admitted in a school situated at Dhangarpura, Hingna and at the time of lodging the report she was aged about six years studying in KG-II. Her father works in a company at Mangrul and she is having one younger brother by name Samar, aged about two years.
As per the report, at about 9.30 am on the date of the lodging the report, she went to school and at about 2.00 O'clock, she came back from the school. She took lunch provided by her mother. Thereafter, she, her younger brother Samar and cousin Manthan were playing in the courtyard in front of the house. At about 4.00 to 4.30 pm, her neighbour Pravin @ Golu (appellant) came in the courtyard on his motorcycle. He took the victim, Samar and Manthan with him and they had a right on the motorcycle. He also gave chocolates to them. Thereafter, he asked Samar and Manthan to get down from the motorcycle, however, he took the victim on the motorcycle to a Ganpati temple, which is two kilometers away from the village and thereafter he took the victim in the bushes behind the temple. When the victim tried to raise shout, he asked her not to shout. Then, he parked his motorcycle and removed her undergarment and also opened the zip of his pant and inserted his private part in her private part. That time the victim shouted, however, the appellant asked not to shout as nothing will happen. After some time, he asked the victim to put on her undergarment and also closed the zip of his full pant. It is also stated that thereafter he brought the victim to her house. That time one vendor was vending 'Samosa', a type of eatable. He purchased two Samosas and gave it to the victim. In the return journey, as per the first information report, the appellant asked the victim not to disclose the incidence. However, since, there was pain and burning sensation at her private part, she disclosed the incident to her parents.
4. On the basis of oral report (Exh.89), the first information report was registered at Police Station, Hingna vide Crime No. 19/2016.
5. After the report was lodged, the victim was taken to the Government Medical College and Hospital, Nagpur by PW7 Rajkamal Gadbail, Lady Police Constable. Along with the victim, she took medical examination form. The victim was accompanied with her mother when she was taken by lady PC Rajkamal (PW7) at Government Medical College and Hospital. The Medical Officer conducted medical examination of the victim. After medical examination, the Medical officer handed over six sealed bottles to LPC Rajkamal (PW7). Thereafter, she, victim and her mother along with six bottles came to police station and handed over those six bottles to the Investigating Officer API Santosh Khadke (PW14). Along with six bottles, the Medical Officer also handed over Form-B. API Khadke prepared seizure panchanama of those six bottles and the said seizure panchanama is
