VISHAL DAGDU GAWAI Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants are challenging the judgment and order dated 28-4-2017 rendered by the learned Special Judge, Khamgaon in Sessions Trial 108/2014, by and under which the appellant-accused Vishal Dagdu Gawai is convicted for offence punishable under Section 376(2)(i) and (n) of the Indian Penal Code (" IPC " for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and is further convicted for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act" for short) and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and appellant-accused Rekha Sheshrao Gawai is convicted for offence punishable under Section 376(2)(i) and (n) read with Section 109 of the IPC and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/- and is further convicted for offence punishable under Section 6 read with Section 17 of the POCSO Act and is sentenced to suffer rigorous imprisonment for ten years and to payment of fine of Rs.1,000/-.

(2.) The prosecution case : The victim is residing with her parents, brother and sister at village Satali and was studying in 10th standard in Bhai Bhaskarrao Shingne Maharashtra Vidyalaya, Gadegaon Khurd. The victim and the accused are related and reside in the same locality. In March or April of 2014, the victim was alone at her home since her parents were at work as agricultural labourers and her brother and sister had gone to play. The day was Sunday. In the afternoon, accused Rekha, who is the aunt of accused Vishal, came to the house of the victim and asked the victim to accompany her to her house to meet accused Vishal. The victim refused, however, Rekha caught her hands and took the victim to her house. Rekha then called accused Vishal who resided in the adjacent house. Vishal started making sexual advances, which the victim resisted. Rekha asked the victim to allow Vishal to do what he wanted to do and told the victim that nothing would happen if the act was done only once. Therefore, the victim did not protest and accused Vishal committed sexual intercourse with her. After the act, accused Vishal threatened to kill the victim or her parents if the incident is disclosed to her parents. A month or two after the said incident accused Rekha came to the house of the victim in the morning and told the mother of the victim that since women labourers were not available for plucking cotton in her field, she should send the victim to her field for plucking raw cotton. The victim was not inclined. However, her mother convinced her and sent her to the field of accused Rekha. The victim went to the field of Rekha at 10-30 a.m. and alongwith accused Rekha started plucking raw cotton. Between 12-00 to 12-30 p.m. the accused came to the field, carried the victim to some distance in the cotton crop and committed sexual intercourse. The victim returned home in the evening, contemplated disclosing the incident to her parents but did not do so due to the fear of accused. Again after fifteen to twenty days accused Vishal committed sexual intercourse with the victim at the house of accused Rekha. The victim missed menses, initially consulted a doctor at village Khandwi alongwith her mother who could not diagnose that she was pregnant. The victim was taken by her mother to one Dr. Gothi at Nandura who did her sonography and disclosed that the victim was carrying foetus of five to six months. The victim went to Government Hospital at Akola with her grandmother and father for abortion and was informed that since the foetus was of five to six months abortion was not an option. The victim was admitted in the said hospital for same days, the Medical Officer summoned Members of Child Welfare Committee, Akola who contacted the Members of the Child Welfare Committee, Buldhana who took the victim to Dr. Smt. Agashe for examination. Dr. Smt. Agashe referred the victim to Dr. Smt. Chinchole for sonography who told the victim the date of the delivery. It was then that the victim went to Buldhana (City) Police Station alongwith her father, grandfather, grandmother and members of Balkalyan Samiti and lodged oral report (Exhibit 32). Investigation ensued. In the month of November 2014, the victim gave a birth to a female child. On the basis of the oral report (Exhibit 32) and printed first information report (Exhibit 33), offence punishable under Section 376 read with Section 34 of the IPC and Sections 4, 8 and 12 of the POCSO Act was registered. The D.N.A. test which was conducted conclusively established that accused Vishal and victim were the biological parents of the child born to the victim. Upon completion of the investigation, charge-sheet was submitted in the Sessions Court. The learned Special Judge framed charge (Exhibit 24) against accused Vishal for offence punishable under Section 376(i) and (n) of the IPC and Sections 6 of the POCSO Act and accused Rekha for offence punishable under Section 376 read with 109 of the IPC and Section 6 read with Section 17 of the POCSO Act. The accused abjured guilt and claimed to be tried. The defence of the accused is of total denial and false implication. It is suggested to the victim in the cross- examination that the accused are falsely implicated due to strained relationship between the parents of the victim and the accused.

(3.) The victim has deposed that her date of birth is 26-11-1998. The father of the victim P.W.2 has also deposed that the victim was born on 26-11-1998. It is suggested to the victim that the date of birth mentioned in the school leaving certificate is not correct, which suggestion is denied. The birth certificate of the victim (Exhibit 82) which is issued under the provisions of the Birth and Death Registration Act and the Rules framed thereunder evidences that the date of birth of the victim is 26-11-1998. P.W.9 Investigating Officer has deposed that the birth certificate (Exhibit 82) was produced by the father of the victim. The authenticity of the birth certificate is not challenged. The suggestion given to the Investigating Officer is that though the birth certificate of the victim was available, the Investigating Officer did not seize it during investigation. The Investigating Officer denies the suggestion and volunteers that the father of the victim informed that the birth certificate could not be located and as and when same is located he shall produce the birth certificate before the Investigating Officer. In the teeth of the evidence on record, the conclusion is irresistible that the victim was a child within the meaning of Section 2(d) of the POCSO Act at the relevant time.