DNYANDEO BHUJANG DAHIPHALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present appeal has been filed by the original accused challenging his conviction in Sessions Case No.69/2015 by learned Special Judge, under POCSO Act, Ahmednagar on 24/2/2016, whereby he has been held guilty of committing offence punishable under Sec. 376(2)(f)(i) of the Indian Penal Code, 1860 and under Sec. 5(j)(ii), 5(n) of the Protection of Children from Sexual Offences Act, 2012 (for short, hereinafter referred to as "the POCSO Act"). The criminal application has been filed for suspension of sentence, however, taking into consideration the facts of the case and the fact that the appellant is in custody since the date of his arrest i.e. 12/12/2014, the appeal itself was taken up for final hearing with the consent of the learned Advocates representing all the parties.

(2.) The appellant is stated to be the accused involved in one of the most heinous crimes of committing rape on his daughter. Before proceeding to consider the facts in the case, we would like to say that we are aware about the provisions of Sec. 228-A of the Indian Penal Code and ratio laid down in Sangita Yeshwantrao Tanpure vs. State of Maharashtra and others [2021 All M.R. Cri. 1131], Sajjan Hirachand Gusinge vs. State of Maharashtra and another [2023(2) Bom.C.R.(Cri.) 282], State of Punjab vs. Ramdev Singh, [(2004) 1 SCC 421], Nipun Saxena and another vs. Union of India and others [(2019), 2 SCC, 703] and so many other pronouncements on the same point that the identity of the rape victim should not be disclosed. So also there is specific provision in the POCSO Act i.e. Sec. 33(7) of the said Act which cast duty on the Courts that the identity of the victim should not be disclosed, however, there are certain cases in which ultimately somewhere the said identity gets disclosed from the point of view of relationship. This is one of the said cases. Unless that relationship is taken note of in writing in the Judgment, there cannot be better appreciation of the evidence. Therefore, we have taken utmost care of not disclosing the identity of the victim girl here, but when it came to the relationship with the accused, we have made reference of the same.

(3.) The prosecution has come with a case that First Information came to be lodged on 3/12/2014 on the basis of the report lodged by PW 2 - the grandmother of the victim (mother's mother), when the victim was admitted in Civil Hospital, Ahmednagar after she had delivered baby on 2/12/2014. In the First Information Report it was contended that till 1/12/2014 the victim had not disclosed the fact to anyone and just prior to 1/12/2014 the victim had come to her grandmother's place. The mother of the victim (daughter of informant PW 2) had expired in the year 2011 itself. The victim was residing with her father i.e. accused and sister at different place than the place where PW 2 was residing. The victim was taken to hospital on 1/12/2014 when she made complaint that her legs were paining. At that time it was disclosed to PW 2 that the victim is pregnant and may deliver the child at any moment. The grandmother had not noticed the pregnancy of the victim as she has disclosed in the First Information Report that the victim had the habit of putting lose clothes. The victim delivered the child at 4.00 p.m. on 2/12/2014. A female child was born to her and thereafter the grandfather asked the victim as to how the thing has happened, then, at that time she disclosed that how she was supposed to take the name of her father. The father has sexually exploited her. Thereafter, the victim and the child were taken to Civil Hospital, Ahmednagar and actually the delivery was in Civil Hospital, Pathardi. Thereafter, the First Information Report came to be lodged.