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2018 Supreme(Bom) 2107
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
V.M. Deshpande, J.
Govind Alias Heramb – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 514 of 2018
Decided On : 20-12-2018
Advocate Appeared:
For the Appellant : C.R. Thakur.
For the Respondent: Mrs. S.V. Kolhe.
Headnote:
Indian Penal Code,1860 – Sections 375, 376 (2) (f), (i) (j),376(D),506 and 34 – Criminal Procedure Code,1973 – Section 164 and 53A - Protection of Children from Sexual Offences Act, 2012 – Section 2(d),3,4 and 6 – Offence of rape - DW-1 natural mother of victim approached to Police Station - She lodged a report - By the report, it was disclosed that Layout in house of one as a tenant which falls within jurisdiction of Police Station - Her husband is a Carpenter - She is having two sons and one daughter - Her daughter, victim is taking education at Corporation School in 9th standard and she is having regular menses - It is further stated in FIR that victim went to her school and in recess - When she was approaching towards urinal and since all her other friends went inside urinal, victim waited outside - At that time, one unknown schoolmate came to her and offered her snack - Though victim initially refused, on request of said unknown girl, she ate same - After eating the same, headache started to her - It is also stated in the FIR that girl, who offered snack, asked victim that one, her friend is standing outside school and victim should bring some articles from him - According to FIR on this, victim went behind school in bushes - That time, said one aged about 22 years was standing along with his friends - He gave victim a sweet - After eating the said, victim felt like fainting - At that time, said one and his friends dragged her inside bushes and after removing her clothes, committed forcible sexual intercourse - All the three persons committed sexual intercourse with victim - Thereafter, though victim came to house, she did not disclose anything to her mother - In sonography report, it was noticed that victim is pregnant - On the basis of the FIR, crime was registered vide Crime – Held, Evidence of doctor (PW-4) shows that she has taken blood sample of appellant when he was referred to her - Thus, while discharging her duties as Chief Medical officer at G.M.C, she has obtained blood sample of the appellant - Though suggestion was given to her that she has not collected sample in proper manner, she has stoutly denied the same - Except giving this suggestion, nothing is brought on record in her cross-examination to disbelieve her testimony - In court view, cross-examination is half hearted and her evidence can safely be relied on - During the course of trial or even before this Court, it is not the case of appellant that at any point of time, his blood sample was tampered by anybody at any stage - In view of the admitted document and proved by (PW-8) the date of birth of the victim - Thus, appellant, in view of definition of Section 375 IPC and Section 3 of the POCSO Act, can be held responsible for committing sexual intercourse with his minor stepdaughter, which is one of most heinous crime which shakes the belief of society about pious relations between father and daughter, though step one - Re-appreciation of the entire prosecution case does not leave any doubt in court mind that the learned Judge of Court below has correctly recorded a finding of guilt against appellant and has imposed appropriate punishment on appellant, warranting no interference from this Court - Appeal is dismissed
JUDGMENT :
V.M. Deshpande, J.
1. The present appeal is an example how science and the scientific investigation not only facilitate the Court to reach to correct conclusion to punish the perpetrator of a crime but such scientific evidence also saved three young boys from languishing in jail for about 10 years.
2. By the present appeal, the appellant, who is stepfather of the victim, is challenging the judgment and order of conviction passed by learned Designated Judge, POCSO Act and Additional Sessions Judge 2 Nagpur dated 08.08.2018 in Special Case Child Protection No. 226/2015. The appellant is convicted for an offence punishable under Sections 376 (2) (f), (i) (j) of the Indian Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for six moths. He is further convicted for an offence punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and is sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for six months. Both sentences are directed to run concurrently.
(I) FACTS:
3. The prosecution case is as under:
(i) Sunita (DW-1), natural mother of victim approached to Police Station, M.I.D.C. Nagpur on 03.03.2015. She lodged a report. By the report, it was disclosed that she resides in Hiranwar Layout in the house of one Kormude as a tenant which falls within jurisdiction of Police Station, M.I.D.C. Nagpur. Her husband is a Carpenter. She is having two sons and one daughter. Her daughter, the victim is taking education at Jaitala Corporation School in 9th standard and since 2014, she is having regular menses. It is further stated in the FIR that on 19.01.2015, on 11.30 a.m. the victim went to her school and at 3.00 O'clock in recess. When she was approaching towards urinal and since all her other friends went inside the urinal, victim waited outside. At that time, one unknown schoolmate came to her and offered her snack (chiwda). Though the victim initially refused, on the request of said unknown girl, she ate the same. After eating the same, headache started to her. It is also stated in the FIR that the girl, who offered snack, asked victim that one Sameer, her friend is standing outside the school and victim should bring some articles from him. According to the FIR on this, victim went behind the school in bushes. That time, Sameer aged about 22 years R/o Jaitala was standing along with his friends. He gave victim a sweet (Pedha). After eating the said, victim felt like fainting. At that time, said Sameer and his friends dragged her inside the bushes and after removing her clothes, committed forcible sexual intercourse. All the three persons committed sexual intercourse with the victim. Thereafter, though victim came to the house, she did not disclose anything to her mother, the first informant. It is also stated in the FIR that victim was having regular menses but till 27.02.2015, her menstrual cycle was stopped. Therefore, first informant took victim to Dr. Rashmi Shende (PW-6). She advised for sonography. Therefore, victim was taken to the hospital of Dr. Rupal Kothekar (PW-2). On 28.02.2015, in sonography report, it was noticed that victim is pregnant. As per the report, after sonography the first informant asked who is responsible for her pregnancy. At that time, victim disclosed the incident dated 19.01.2015.
(ii) On the basis of the FIR, crime was registered vide Crime No. 68/2015 for the offence punishable under Section 376 (D), 506 and 34 of the IPC and Section 4 of POCSO Act.
(iii) API Vinod Dadaji Godbole (PW7) was attached to M.I.D.C. Police Station, Nagpur. On 03.03.2015, Crime No. 68/2015 was entrusted to him for investigation along with case papers. He referred victim for her medical examination to Government Medical College and Hospital, Nagpur. After medical examination, he recorded statement of
