Back
2024 Supreme(Online)(Bom) 5953
BOMBAY HIGH COURT
G. A. SANAP, J
BHAIYYA S/O. VIJAY CHAKRE – Appellant
Versus
THE STATE OF MAHARASHTRA THR. THE P.S.O. P.S. ASEGAON AND ANOTHER – Respondent
APEAL 181 / 2019
Mr. R. M. Daga, Advocate with Mr. P. R. Agrawal, Advocate for the appellant. Mrs. M. R. Kavimandan, A. P. P. for respondent no.1/State. Ms. Mohini Sharma, Advocate appointed for Resp.no.2/victim is absent.
The prosecution failed to prove the accused's guilt beyond reasonable doubt, primarily due to DNA evidence not matching the accused and significant delay in reporting the incident.
Headnote:(A) Indian Penal Code, 1860 - Section 376(2)(f)(l) - Protection of Children from Sexual Offences Act, 2012 - Section 6 - Conviction for sexual assault - Accused sentenced to 14 years rigorous imprisonment and fine - Acquitted based on DNA evidence not matching with the accused - Delay in lodging FIR questioned - Presumption under POCSO Act not triggered due to lack of foundational facts. (Paras 1, 24, 25)
(B) Evidence - Credibility of victim's testimony - Delay in reporting incident raises doubts - Medical evidence insufficient to establish guilt - DNA report crucial in ruling out accused's involvement. (Paras 8, 22, 24)
Facts of the case:
The appellant, a teacher at a Deaf and Dumb School, was accused of sexually assaulting a 12-year-old partially mentally retarded girl. The incident occurred on 05.01.2017, but the FIR was lodged on 09.01.2017, raising questions about the delay. The victim's testimony was inconsistent, and the DNA evidence did not match the accused.
Findings of Court:
The court found that the prosecution failed to prove the guilt of the accused beyond reasonable doubt, primarily due to the DNA evidence and the delay in reporting the incident.
Issues: The main issues included the credibility of the victim's testimony, the significance of the delay in lodging the FIR, and the evidentiary value of the DNA report.
Ratio Decidendi: The court ruled that the evidence presented by the prosecution was insufficient to establish the accused's guilt, and the presumption under the POCSO Act was not applicable as foundational facts were not established.
Result: The appeal is allowed; the conviction is quashed, and the accused is acquitted.
ORAL JUDGMENT
1. In this appeal, challenge is to the judgment and order dated 22.01.2019, passed by learned Additional Sessions Judge-1 and Special Judge, Achalpur, whereby the appellant/accused has held the accused guilty for the offence punishable under Section 376(2)(f)(l) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for short) and sentenced to suffer rigorous imprisonment for 14 years and to pay fine of Rs.30,000/- and in default of payment of fine to undergo rigorous imprisonment for one year for the offence under Section 376(2)(f)(l) of the IPC. Learned Judge has not awarded separate sentence for the proved offence under Section 6 of the POCSO Act.
2. BACKGROUND FACTS :-
The wheels of investigation were put into motion on the report dated 09.01.2017, lodged by PW1, who is the mother of the victim girl (PW3). The case of the prosecution, which can be discerned from the report and charge-sheet, is that the appellant at the relevant time was a Teacher at residential Deaf and Dumb School, Asegaon-Purna. The acquitted accused no.2 was the Head Mistress of the said school. PW3 (hereinafter referred to as ‘the victim’) is a minor, partially mentally retarded deaf and dumb girl of around 12 years of age. The victim was studying in the said school at Asegaon- Purna. The appellant and the victim are residents of village Takarkheda, Tah. Achalpur, Dist. Amravati. It is the case of the prosecution that the victim girl would accompany the accused everyday to the school on his motorcycle. The accused would take the victim from his house to the school and drop her back at her house. The incident occurred on 05.01.2017. According to the prosecution, on 05.01.2017, as usual, the victim went to the house of the accused to go to the school. The accused was alone at his house. He was taking meal. The accused called the victim inside his house. The accused asked the victim to lie down on ‘diwan’ (cot). It is stated that thereafter, the accused committed sexual intercourse with her on three occasions. He inserted his private part in her mouth. After this act, the accused washed the private part and face of the victim and cleaned it with towel. The accused cleaned his private part as well. The accused carried the victim on motorcycle to the school. The victim and the accused returned home from the school at 5.00 p.m.
3. On 05.01.2017, the victim did not disclose the incident to anybody. It is further the case of the prosecution that on the next day morning when the mother (PW1) prepared the victim for school, she was reluctant to go to the school. The mother of the victim, therefore, took the victim along with her to the field. In the afternoon, the victim narrated the entire incident to her mother. In the evening, after returning home, the informant (PW1) disclosed the incident to her husband. On the next day, the husband of the informant went to the accused and questioned him about his act. The accused denied the allegations. On 09.01.2017, the mother of the victim went to Asegaon police station and reported the matter to the police. On the basis of the report (Exh.35), a crime bearing No. 05/2017 was registered against the appellant and the Head Mistress of the school.
4. PW8 is the Investigating Officer. PW8 forwarded the victim to the Civil Hospital, Amravati for medical examination. The victim was medically examined. The Investigating Officer drew the spot panchanama (Exh.137). PW8 seized the clothes of the victim as well as the clothes of the accused. She seized the bedsheet and towel, which was used by the accused to clean the face and private part of the victim. The samples were collected and forwarded to the Chemical Analyser for analysis. The Investigating Officer collected the documentary evidence with regard to the birth date of the victim. On completion of the investigation, charge-sheet was filed against the accused. 5. Learned Sp
