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IN THE HIGH COURT OF BOMBAY AT NAGPUR
VINAY JOSHI, J.
Pravin Narayan Khole - Appellant
Versus
State Of Maharashtra - Respondent
Cri. Appeal No. 809 of 2019
Decided on : 22-12-2020
POCSO Act - Conviction under Sections 8, 10, 12 - Summary
Fact of the Case:
The case involves the conviction of the accused under Sections 8, 10, 12 of the POCSO Act and Section 506 of the Indian Penal Code for sexually assaulting a minor girl. The victim's mother reported the incident to the police after the victim disclosed the assault following a medical examination at a government hospital.
Finding of the Court:
The trial court convicted the accused based on the evidence provided by the victim and her mother, despite the defense's arguments about inconsistencies and irregularities in the evidence.
Issues: The issues included the delay in lodging the FIR, inconsistencies in the evidence, and the adequacy of the identification of the accused.
Ratio Decidendi: The court found that the delay in lodging the FIR was justified due to the sensitive nature of sexual offenses. It also held that minor discrepancies in the evidence did not undermine the overall credibility of the victim's testimony. The court emphasized the significance of the victim's identification of the accused in court, despite irregularities in the prior test identification parade.
Final Decision: The court upheld the conviction of the accused under the POCSO Act, dismissing the appeal for lack of merit.
Certainly. Based on the provided legal document, here are the key points summarized:
The case involves the conviction of the accused under Sections 8, 10, and 12 of the POCSO Act, as well as Section 506 of the Indian Penal Code, for sexually assaulting a minor girl. The trial court imposed a maximum sentence of 5 years' simple imprisonment under Section 10 of the POCSO Act, along with a fine, with all sentences running concurrently. The accused was acquitted of the charge under Section 376(1) of the Indian Penal Code, and the State did not challenge this acquittal (!) (!) .
The prosecution's case is based on the victim's and her mother's testimonies, supported by medical evidence, hospital records, and an identification parade. The victim was a minor at the time of the incident, confirmed by her birth and bona fide certificates (!) (!) .
The victim's evidence was found to be natural, trustworthy, and corroborated by her mother and medical documents. Despite some inconsistencies and cross-examination, her overall testimony was deemed credible, especially given the circumstances and the nature of the offense (!) (!) (!) (!) .
The victim's identification of the accused in court was considered significant and credible, despite irregularities in the prior test identification parade. The court emphasized that direct court identification, especially when supported by other evidence, can be sufficient for conviction (!) (!) (!) (!) (!) .
The test identification parade was conducted belatedly and with procedural irregularities, such as incomplete details in the memorandum and use of only four dummies instead of the recommended number. These irregularities cast doubt on its credibility, but the court found the subsequent court identification to be trustworthy enough to rely upon (!) (!) (!) (!) (!) .
The delay in lodging the FIR was justified by the circumstances, including the victim's fear, threats from the accused, and the natural delay in reporting sexual offenses. The court accepted the explanation and found no undue delay that would undermine the prosecution's case (!) (!) .
The evidence was deemed sufficient to establish the accused's guilt, especially considering the statutory presumption under the POCSO Act, which shifts the burden to the accused to prove innocence. The court held that the prosecution had proved the foundational facts necessary for conviction (!) (!) .
The court acknowledged that the absence of a prior test identification parade does not automatically weaken the case if the court's own identification is credible. In this case, the victim's repeated interactions with the accused and the circumstances of the incident provided ample opportunity for proper identification, which the court found to be reliable (!) (!) (!) (!) (!) .
Overall, the appellate court upheld the conviction, agreeing with the trial court's assessment that the evidence sufficiently proved the guilt of the accused beyond reasonable doubt. The appeal was dismissed as lacking merit (!) (!) .
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JUDGMENT :
1. Heard learned Counsel for the parties.
2. Challenge in this appeal is to the judgment and order of conviction in Special (Child) Case No.9/2014 whereby the Additional Sessions Judge, Pusad has convicted the appellant / accused for the offence punishable under Sections 8, 10, 12 of the Protection of Children from Sexual Offences Act (POCSO Act) and under Section 506 of the Indian Penal Code. The Trial Court has imposed maximum sentence for the offence punishable under Section 10 of the POCSO Act, to suffer simple imprisonment for 5 years. The total fine has been imposed to the tune of `12,000/with default clause. Since all the sentences were directed to run concurrently, the term of imprisonment for different offences has not been mentioned. However, the Trial Court has acquitted accused of the offence punishable under Section 376(1) of the Indian Penal Code.
3. The State has neither challenged the acquittal of accused for the offence punishable under Section 376(1) of the Indian Penal Code, nor sought for enhancement of sentence for the offence under which he was convicted.
4. The facts in brief leading to the prosecution case are that, mother of the victim girl aged 11 years lodged report on 12-3-2014 with the police about atrocities committed by the accused on her minor daughter (victim). It was stated that the informant was having two daughters, out of which the victim aged 11 years was elder one. Prior to 2025 day, from the report, the victim sustained injury to her right hand, hence, she was sent to Government Hospital Umarkhed for treatment. A token (O.P.D. case paper) was issued in the name of the victim. Medical Officer gave treatment to victim and asked her to visit on the following day for followup treatment. On the next date, the victim once again visited to the hospital for treatment. Thereafter, informant mother noticed behavioural change of the victim as she used to remain frightened.
5. On 11-3-2014, the victim girl was again suffering from cough, hence, informant asked her to go to the Government Hospital to which she denied. On enquiry, the victim disclosed that last time when she visited to the Hospital, the person who has issued token (OPD Card), asked her to meet after treatment. When she returned to him, he took her in the adjacent room, closed the door and touched her buttocks in inappropriate manner. The victim asked him to desist, however, he took her in nearby bathroom by holding her hand. In her presence, the said person has passed urine and moved his hand on her person. Then he forcibly gave her 10 rupees and asked her to visit daily. He also threatened her for not to disclose the things, otherwise he would beat. After realizing the things, the informant mother narrated the happenings to her husband and then on the following day, they went to the police station and lodged report (Exh.36).
6. On the basis of said report, a Crime No. 61/2014 was registered. During the course of investigation, the victim was medically examined, her birth date certificate was collected and test identification parade was conducted. On completion of investigation, charge sheet was filed in Special Court. On trial, prosecution has led evidence of nine witnesses. On believing the evidence of prosecution witnesses the Trial Court has recorded the finding of guilt and passed sentence as referred above.
7. The learned Counsel for the appellant has strongly criticized the judgment and order of conviction. It is submitted that the trial Court committed serious error in convicting the accused sans adequate evidence. The argument consists of several points on the basis of which it is urged to set aside the order of conviction. Defence has concentrated submissions on the point of delay in lodgment of first information report, inconsistencies in the evidence, material omissions and irregularity in holding prior test identification parade. Much stress has been led on the point that there was no proper identification of th
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