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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
V.M. DESHPANDE, J.
Ganesh Laxman Madne - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 788 of 2018
Decided On : 29-04-2019
Code of Criminal Procedure, 1973 – Section 313 – Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3 – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Section 376 – Order of conviction – By the impugned judgment and order of conviction, the appellant though stands acquitted of offences under Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is convicted for offence under Section 376(2)(i) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 – By the present appeal, the appellant is challenging judgment and order of conviction passed by learned Special Judge and Additional Sessions Judge, in Special Case – Held, Observations of the Division Bench in the case cited supra, are aptly applicable in the present case – Judge of the Court below has failed to analyze the prosecution evidence as brought on record in its correct perspective. – In addition to that, the said incriminating material was used against the appellant for convicting him. – The said was not brought to notice of the appellant when he was examined under Section 313 of the Code of Criminal Procedure. – Appellant is falsely implicated in the crime. – From the line of Rameshwar (PW1), relation between them were stained and on 24.8.2015 at 8:00 p.m. Rameshwar assaulted on the accused, resulting into bleeding injuries near his right ear and in order to save himself, Rameshwar lodged the report. Of course, suggestions given in that behalf are denied by Rameshwar. – Record shows that the appellant was arrested on 25.8.2015 at 22:02 hours, as it could be seen from Arrest Form (Exhibit 45). – Perusal of the said document shows that medical report of the appellant is attached with the arrest memo. – Though it is stated so in Exhibit 45, in fact no such report finds place on record. – Investigating Officer Rahul Madne (PW7) has also admitted during his cross-examination that after his verification of the arrest panchnama, medical examination report of the appellant is not filed on record along with the chargesheet. – He has also admitted that prior to arrest of the appellant, the medical examination of the appellant was conducted. – If the medical examination of the appellant was conducted and when arrest memo (Exhibit 45) states that medical examination report is annexed along with the said, there was no reason for the prosecution to suppress the medical examination report of the appellant. – Suppression on the part of the prosecution in respect of the medical examination of the appellant earns adverse inference against the prosecution and the defence of the appellant gets strength that he was attacked by Rameshwar (PW1) and in that he suffered bleedings injuries and in order to save himself, he falsely implicated the appellant in the crime. – Criminal Appeal Allowed
V.M. DESHPANDE, J.
1. By the present appeal, the appellant is challenging judgment and order of conviction dated 31.10.2017 passed by learned Special Judge and Additional Sessions Judge, Yavatmal in Special Case No.44/2015.
2. By the impugned judgment and order of conviction, the appellant though stands acquitted of offences under Section 3(1)(xii) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the SC & ST Act"), is convicted for offence under Section 376(2)(i) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, "the POCSO Act").
For his conviction under Section 376(2)(i) of the Indian Penal Code, he is directed to suffer rigorous imprisonment for 14 years and to pay a fine of Rs.5000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 6 months.
For his conviction under Section 6 of the POCSO Act, he is directed to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5000/- and in default of payment of the fine amount to suffer rigorous imprisonment for 6 months.
Learned Judge of the Court below directed that all the sentences shall run concurrently and also set-off is given to the appellant since he was in jail.
3. The prosecution case is in a narrow compass and it is detailed herein under:
(A) Lady Police Sub Inspector Sangita Shankarrao Helonde (PW5) was attached to Yavatmal (City) Police Station. On 25.8.2015, when she was discharging her duties, Rameshwar (PW1) approached to the police station along with victim and his wife. He lodged his oral report which was typed on computer. The said oral report is at Exhibit 18.
(B) As per the oral report (Exhibit 18), first informant Rameshwar (PW1) resides with his wife Manisha (PW3) and his daughter, the victim aged about 3 years. He works as labour with Snehal Dresses. Victim used to go to house of accused for playing.
(C) On 24.8.2015, as usual at 10:00 a.m., he left his house and came back at 11:00 p.m.. That time, his wife Manisha disclosed that when she was working inside house, victim was playing in courtyard, however since she failed to come inside house, therefore, she searched for her. She also went near house of appellant which was closed from inside, however television was loudable. Since victim could not be traced, she was returning to her house. That time, she noticed that victim came running from house of the appellant and on enquiry she disclosed that the appellant, to whom she described as father of Rahul mama, tried to push his male organ inside her vagina and anus. The First Information Report further states that, therefore, on next day, he and his wife Manisha made enquiries with the appellant. That time, the appellant and his wife asked them not to disclose the incident to anybody.
(D) On the basis of the oral report and as per directions of Police Inspector Kulkarni, Police Sub Inspector Sangita Helonde (PW5) registered the crime against the appellant vide Crime No.357/2015. Printed First Information Report is at Exhibit 19. She, thereafter, sent victim for her medical examination to the Government Hospital at Yavatmal, as per requisition Exhibit 37. She also issued Notice to first informant Rameshwar (PW1) to remain present on 26.8.2015 before the Child Welfare Committee for recording statement of victim and accordingly statement of victim was recorded before the Child Welfare Committee on 26.8.2015.
(E) Investigation of the crime was entrusted to Rahul Dnyandeo Madne (PW7) who was Sub Divisional Police Officer at Yavatmal. He visited spot of occurrence and prepared spot panchnama (Exhibit 23) in presence of panchas. He seized knicker of victim from her father under seizure memo (Exhibit 20) in presence of panchas.
(F) The appellant was arrested by Police Inspector Kulkarni and on 27.8.2015. Police Sub Inspector Sangita Helonde (PW5) issued letter, as per requisition (Exhibit 38), to medica
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