SHIVRAM @ BALU KHANDU JAGTAP Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/convicted accused is challenging the judgment and order dated 3 rd November 2018 passed by the learned Designated Judge for the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act for the sake of brevity), Greater Mumbai, in POCSO Special Case No.333 of 2016 convicting him of offences punishable under Sections 363, 376 and 354 of the Indian Penal Code as well as under Sections 4 and 8 of the POCSO Act. For the offence punishable under Section 363 of the Indian Penal Code, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 5 years apart from direction to pay fine of Rs.1,000/- and in default, to undergo further rigorous imprisonment for 1 month. For offences punishable under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act, he is separately sentenced to suffer rigorous imprisonment for 15 years apart from direction to pay fine of Rs.2,000/- and in default, to undergo further rigorous imprisonment for 2 months. Similarly, for offences punishable under Section 354 of the Indian Penal Code and under Section 8 of the POCSO Act, he is separately sentenced to suffer rigorous imprisonment for 5 years apart from direction to pay fine of Rs.1,000/- and in default, to undergo further rigorous imprisonment for 1 month. Substantive sentences are directed to run concurrently.

(2.) Facts, in brief, leading to the prosecution and the resultant conviction of the appellant/convicted accused, can be summarized thus : (a) PW1 Sarita, who is mother of the victim female child/PW5 used to reside at Siddharth Colony of Chembur, Mumbai, along with her husband and three children. Her children used to study at B.D.Shukla School, Mumbai. The victim of the crime in question is a female child, who at the relevant time was aged about 5 years. The incident in question allegedly took place after 3.00 p.m. of 8th May 2016. On that day, father of the victim female child/PW5 returned to his house in the afternoon. He gave one rupee to the victim female child/PW5 for having a chocolate. The victim female child/PW5 then left the house for purchasing the chocolate. She, then, went for playing. (b) According to the prosecution case, the appellant/convicted accused is the resident of the locality where the victim female child/PW5 used to reside with her parents. He met the victim female child/PW5 and allured her with an ice-candy. He took her at the mezzanine floor of the house of PW6 Sajan Rupwate. At that time, inmates of that house had been to Nashik for attending a marriage. The appellant/convicted accused used to fill water at the house of PW6 Sajan Rupwate and therefore, he had left the keys of that house with neighbour Vandana Ugde. That is how, the appellant/ convicted accused came in possession of the keys of that house. After taking the victim female child/PW5 to that house, the appellant/convicted accused removed her underwear and inserted his finger in her private part. She started weeping. The appellant/convicted accused applied coconut oil on her vagina and gave namkeen to her for eating. He, then, took her downstairs and left her on the pretext that he was going for purchasing the ice candy. (c) The victim female child/PW5 returned to her housed and at that time, her lips were red. Upon being questioned by her mother - PW1 Sarita, she told her that the uncle had given ice candy to her for eating. Immediately thereafter, the victim female child/PW5 also disclosed to her mother that the said uncle had taken her to mezzanine floor of the house and committed penetrative sexual assault on her. (d) Upon hearing the incident of penetrative sexual assault on her daughter i.e. the victim female child/PW5, PW1 Sarita took her daughter to the locality by asking her to show who is that uncle. Her daughter - the victim female child/PW5 then took her to a chicken shop and showed one person standing in front of that shop. She disclosed that the said person had committed sexual assault on her. PW1 Sarita then identified the said person as the appellant/convicted accused. She tried to catch hold of him. However, he ran away. Thereafter, PW1 Sarita went to Police Station Chembur and lodged the First Information Report (FIR) Exhibit 15 which resulted in registration of Crime No.155 of 2016 against the appellant/convicted accused. (e) Routine investigation followed. The victim female child/PW5 was sent for medical examination to the Sion Hospital, Mumbai. The spot was inspected in presence of PW2 Pradeep Yadav - panch witness and Spot Panchnama Exhibit 17 came to be prepared on 9th May 2016. Bottle of oil as well as namkeen "shev" lying there came to be seized from the mezzanine floor of the said house vide said Spot Panchnama. Clothes of the victim female child/PW5 so that of the appellant/convicted accused came to be seized in presence of PW3 Vicky Gupta vide Panchnama Exhibit 19 on 11th May 2016. Blood stained pillow covers lying on the spot of the incident came to be seized in presence of PW4 Ratna Vimal vide Seizure Panchnama Exhibit 21 on 9th May 2016. On completion of routine investigation, the appellant/ convicted accused came to be charge-sheeted. (f) The learned trial court framed and explained the Charge to the appellant/convicted accused. He pleaded not guilty and claimed trial. (g) In order to bring home the guilt to the appellant/convicted accused, the prosecution has examined in all nine witnesses. Defence of the appellant/convicted accused was that of total denial. (h) After hearing the parties, by the impugned judgment and order, the learned trial court was pleased to convict the appellant/accused and sentenced him accordingly, as indicated in the opening paragraph of this judgment.

(3.) I have heard the learned counsel appearing for the appellant/convicted accused. He vehemently argued that evidence of the prosecution is not consistent and particularly PW1 Sarita and PW2 Pradeep Yadav are not corroborating each other. He further argued that age of the victim female child/PW5 is not proved. Medical evidence is not corroborating the version of the victim female child/PW5 regarding the penetrative sexual assault. The learned counsel further argued that according to the prosecution case, the victim female child/PW5 was playing with boys in the locality, but statement of not a single boy is recorded. The Test Identification Parade was not conducted by the prosecution. The learned counsel further argued that as the medical evidence is not corroborating the version of the victim female child/PW5 and as hymen of the victim female child/PW5 was found intact, neither the offence punishable under Section 4 of the POCSO Act nor that of Section 376 of the Indian Penal Code is proved.