Cr.Appeal.1140-2019.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.1140 OF 2019

WITH

CRIMINAL APPLICATION NO.1171 OF 2021

Govind s/o. Narayan Ghule,

Age : 35 years, Occ. Labour,

r/o. Dhagi, Post Borgaon,

Tq. and Dist. Jalgaon,

and at present r/o. Dhuliya Crane,

Chalisgaon Road, Dhule

..Appellant

Vs.

1. State of Maharashtra

2. Victim through Mother - “Z”

Age:32 years, Occ. Household,

r/o. Pawan Nagar (West)

HUDCO, Chalisgaon Road, Dhule

..Respondents

----

Mr.N.R.Shaikh, Advocate for appellant

Mr.R.B.Bagul, APP for respondent no.1

Mrs.S.G.Chincholkar, Advocate for respondent no.2

----

CORAM : R.G. AVACHAT, J.

DATE : JANUARY 06, 2022

JUDGMENT :-

This appeal is directed against the judgment of conviction

and the order of sentence dated 12.07.2018 passed by learned Special

Judge, Dhule in Special (POCSO) Case No.82 of 2013. The appellant

herein has been convicted for the offence punishable under Section

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376(2)(i) of Indian Penal Code and Sections 4 and 6 of the

Protection of Children from Sexual Offences Act, 2012 and sentenced

to suffer rigorous imprisonment for 14 years and to pay a fine of

Rs.40,000/-. In default of payment of fine, he is directed to undergo

rigorous imprisonment for six months.

2.

The case of prosecution, in short, is as under:-

3.

The victim (“X”) was four years of age. Her father i.e.

PW - 3 (“Y”) and the appellant herein were serving as crane-drivers

with PW 2 – Dinesh. The incident took place in the afternoon of

01.07.2013. The victim had returned from school by 12 noon. Her

father (“Y”) was away at the work place. The appellant herein came

home of the victim. He took the victim under the pretext of taking

her to her father. He took the victim to a field and sexually

assaulted her. PW 5 – Dursing was working in the nearby field. The

cries of child invoked his attention towards the field. He went there

to find a small girl (victim) and a man (appellant) there. On having

seen him, the appellant ran away. PW 5 – Dursing had some

interaction with the victim. He brought her to her home. The mother

of the victim, PW – 6 (“Z”), noticed that her daughter was sexually

assaulted. After a while, it was informed to her husband (“Y”). He

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contacted his employer (PW 2) on phone. He came home of the

victim. The parents of the victim took her to the police station. The

First Information Report (Exh.23.) came to be lodged. The victim

was medically screened. The appellant was arrested. The scene of

offence panchnama (Exh.44) was drawn. Some articles in the

nature of clothes of the victim and that of the appellant, came to be

seized. On completion of the investigation, the appellant was

proceeded against by filing charge sheet.

4.

Learned Judge framed Charge (Exh.6-A). The appellant

pleaded not guilty. His defence is of false implication in view of no

good relationship with the father of the victim. On appreciation of

the evidence in the case, learned Special Judge convicted and

sentenced the appellant, as stated above.

5.

Heard learned counsel appearing for the parties.

6.

Mr.N.R.Shaikh, learned counsel for the appellant, would

submit that no statement of the victim was recorded by the

Investigating Officer. The appellant herein was not subjected to test

identification parade. The victim was four years of age. Being a

child witness, she was prone to tutoring. The victim testified that

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the appellant gave Tapli (टपली) on her private part, meaning thereby

the appellant had simply placed his hand thereat. According to

learned counsel, the medical examination report is not helpful for

the prosecution. Hymen of the victim was intact. The same rules

out sexual assault. He would further submit that the trial court did

not put questions to the victim t