KISHAN SHESHRAO KHAWAS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 31/3/2015 passed by Special Judge, Nanded in Special Case No.14/2013 convicting the appellant-accused under section 376(2) (n) of Penal Code and Sec. 3 r/w 4 of Protection of Children from Sexual Offences Act (for short POCSO Act) and awarded sentence to suffer rigorous imprisonment for 10 years and pay fine of Rs.2 lakhs and in default to undergo R.I. for 2 years, the appellant has preferred this appeal on various grounds as set out in detail in the memo of appeal.

(2.) Before adverting to appreciate submissions advanced, it is necessary to consider the few facts leading to filing of appeal. On 10/10/2013, Police Patil of village Saregaon, Tq. Mukhed, Dist.Nanded informed to official of police station Barad to the effect that one newly born baby with placenta found lying in a dilapidated house located by the side of Maroti temple in village. On receipt of said information, Police personnel visited the place and found newly born baby i.e. male child lying at the place. On the basis of report lodged by Sukhdeo Sambhaji Bhise, the Police Patil of village Saregaon, initially registered offence under Sec. 317 of Penal Code registered against unknown woman vide Crime No.44/13. During investigation, it was revealed that said baby was given birth by Victim girl (PW1) involved in this case. Therefore she was taken in custody and referred for medical examination. In the medical examination, it was revealed that she has given birth to child within 24 hours of her medical examination. Since the age of the victim girl was below 18 years, she was produced in juvenile Court. Later on she was released on bail. After release on bail the statement was recorded. In her statement, she disclosed that since about 2 years back, she got acquainted with accused. The relations of accused with his wife were strained and therefore, wife of accused had left the house of accused and residing at her parental place. The accused was residing in the house of Shobhabai (i.e. deceased original accused no.2). She further disclosed that Shobhabai instigated her to maintain sexual relationship with the accused. She further disclosed that some time during the period closed to Deepawali, the accused had taken her to nearby agricultural field and persuaded her to have sexual intercourse with him by promising to marry with her. Relying upon the assurance, she consented to have sexual intercourse with her. Subsequent thereto, several times, accused committed sexual intercourse with her. Although she insisted to abort the pregnancy which she was carrying from accused, the accused was not inclined to do so as he wanted to have a son to be born from her. Accused no.2 was fully aware about physical relationship between her and the appellant-accused no.1. On 10/10/2013, at about 6.15 a.m. she developed abdominal pain. Therefore, she went to dilapidated house located in the village for easing, where she gave birth to male child. She threw that newly born baby to nearby place and went to her house and after taking bath, went to school. While she was going to school, she heard the people talking about the newly born child found in the village. Pursuant to the disclosure made by the victim girl, the offence under Sec. 376 (2) (n) of Penal Code and Sections 4, 5(J) (ii) 6, 16, 17 of POCSO Act came to be registered against the appellant and co-accused Shobhabai vide Crime No.45/13.

(3.) API Rathod (PW5) conducted the investigation. During the course of investigation he recorded statement of Ayenath Tukaram Gire (PW2) father of the victim girl and also obtained the copy of school leaving certificate of the victim girl from Zilla Parishad School at Mukhed to ascertain the date of birth and age of victim girl. He arrested both the accused. He referred the accused to medical officer, Government Hospital, Nanded for medical examination as well as to collect the sample for the purpose of conducting DNA test and other related examination. He also referred the victim girl to medical officer to obtain sample for the purpose of conducting DNA test of the newly born child. It was revealed that at the time of commission of offence, the girl was 15 years of age. Report of DNA test has confirmed that the accused and the victim girl to be biological parents of the said baby delivered by PW1. On conclusion of the investigation, as sufficient evidence was found to prosecute both the accused, charge sheet was prepared and filed in the Court of Special Judge.