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BOMBAY HIGH COURT
Prithviraj K. Chavan, J.
Ganesh Kisan Navale —Appellant
versus
State of Maharashtra —Respondent
Criminal Appeal No.538 of 2017
Decided on 16.1.2020
(i) Protection of Children from the Sexual Offences Act, 2012—Sections 3, 4, 5 and 6—Prosecutrix aged about 11 years when was going to school was intercepted by accused-appellant who was cousin of victim, accused took her on his motorcycle on a pretext and took her in a sugarcane field and subjected her to sexual assault—Appeal against conviction—Evidence of mother of prosecutrix that on being informed by school teacher that prosecutrix had reached late to school, she went to school and prosecutrix disclosed to her about incident, though hearsay, was relevant under section 6 of Evidence Act—Evidence of prosecutrix could not be challenged in cross examination—Appellant had accompanied mother of prosecutrix to school but when prosecutrix named him, he escaped and his conduct was relevant under section 8 of Evidence Act—Medical of prosecutrix was found torn completely and old healed tears were present—Prosecutrix or her mother had no reason to falsely implicate the appellant—Conviction and sentence of 10 years imprisonment called for no interference. (Paras 16 to 30, 38 and 39)
(ii) POCSO Act, 2012—Section 42 and 42-A—Alternative punishment—Offender found guilty of any offence under Indian Penal Code as mentioned in the section, shall be liable to punishment under POCSO Act or under IPC for punishment which is greater in degree—When accused was convicted for offence of sexual assault on victim under POCSO and was sentenced to 10 years imprisonment, his conviction under section 376(f)(i) was liable to be set aside. (Paras 40 and 41)
Result: Appeal dismissed.
JUDGMENT
Prithviraj K. Chavan, J.—Aggrieved with the impugned judgment of conviction rendered by the Special Judge under the provisions of the Protection of Children from the Sexual Offences Act, 2012 (for short ‘POCSO’) at Khed, Rajguru Nagar, District. Pune on 25th April, 2017, the appellant has preferred this appeal amongst following facts and grounds.
2. It was the first day of the year 2014 when the prosecutrix who was admittedly aged about 11 years and studying in 5th standard had gone to attend the School at 9.30 a.m. Around 4.00 p.m, her teacher P.W.5 telephonically called mother of the prosecutrix. When mother of the prosecutrix i.e P.W.1 reached the School around 4.30 p.m, it was informed that the prosecutrix came late on that day. On being asked the reason as to why she was late, the prosecutrix stated that she was taken by the appellant to a place and committed sexual assault on her. He thereafter dropped her at the School. It is alleged that the appellant lured the prosecutrix under the pretext of giving her sweet and took her to a secluded place at Mangwada on his motorbike. He removed her clothes and thereafter moved his hand on her person. He inserted his finger in her vagina and then touched his penis to her vagina. As the prosecutrix shouted, the appellant asked her not to get scared and that he would drop her in the School. He asked her to put on the clothes. The appellant thereafter dropped the prosecutrix at her School. P.W.1-mother of the prosecutrix went to Otur Police Station and lodged a report against the appellant. A crime bearing No.1 of 2014 came to be registered against the appellant.
3. P.W.7-Maruti Ghungurkar then P.S.I attached to Otur Police Station held investigation into the crime. He arrested the appellant. He referred the prosecutrix to Sassoon Hospital for medical treatment and examination. He seized the clothes of the appellant. He drew Panchanama in respect of seizure of clothes of the appellant.
4. On 3rd January, 2014, Investigating Officer seized clothes of the prosecutrix under a Panchanama. He visited the spot of occurrence of crime on 4th January, 2014 and drew a spot Panchanama in the presence of Pancha witnesses.
5. Pursuant to a statement voluntarily made by the appellant in the presence of Panchas, motorbike alleged to have been used in the commission of the offence came to be discovered at the instance of the appellant. The said motorbike was seized under a Panchanama. The Investigating Officer had collected medical certificate of the prosecutrix from Sassoon Hospital, Pune. He had also collected certificate from the School of the prosecutrix regarding proof of her age. Statement of the prosecutrix under section 164 of the Code of Criminal procedure, 1973 (for short ‘Cr. P.C’) came to be recorded by J.M.F.C, Junnar. Seized Muddemal was sent for chemical analysis on 21st January, 2014. After investigation, he laid a charge-sheet against the appellant.
6. The appellant appeared before the Special Judge on 17th November, 2014. The learned Special Judge framed a charge in terms of Exhibit 4 under section 376 of the Indian Penal Code as well as under sections 4,6,8 and 10 of the POCSO Act. It was read over and explained to the appellant in vernacular to which he pleaded not guilty and claimed a trial. The defence of the appellant as emerged from the line of cross-examination as well as from his statement under section 313 of the Cr. P.C is denial of commission of the offence alleged as well as false implication on account of a civil dispute, in the sense, despite request from father of the prosecutrix, the appellant refused to cultivate the land of the prosecutrix’s father by means of his tractor. It is contended that the parents of the prosecutrix had a grudge against the appellant.
7. No defence evidence has been adduced on behalf of the appellant.
8. In order to substantiate the charge, prosecution examined as many as eight witnesses and tendered a few documents which
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