SIDDHARTH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the present appeal, the appellant is challenging the judgment and order of conviction passed by the learned Additional Sessions Judge-9, Nagpur on 25.02.2019 in Special (POCSO) Case No.281 of 2016. By the impugned judgment, the appellant is convicted for the offence punishable under Sections 3(a) and 5(1)(m) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act" for short). For his conviction under Section 3a of the POCSO Act, the appellant is directed to suffer simple imprisonment for a period of seven years and to pay a fine of Rs.5,000/- and in default of payment of fine to suffer further simple imprisonment for 30 days and for his conviction under Section 5(1) (m) of the POCSO Act, the appellant is directed to suffer rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer further rigorous imprisonment for 60 days. Though, the appellant is also convicted for the offence punishable under Sections 377 and 506-B of the Indian Penal Code, in view of the provisions of Section 42 of the POCSO Act, separate and specific sentence is not awarded for the said conviction. The Court below directed that the sentences shall run concurrently.

(2.) The prosecution case as it is unfurled during the course of the trial is as under : A] Pravin Madhukarrao Kale (PW6) was attached to Police Station, MIDC, Nagpur as Assistant Police Inspector from February- 2014 till June-2017. On 14.9.2016, he was discharging duty as Day Officer. That time Sau. Kiran (PW1) came in police station along with her son, the victim, to lodge report against the appellant. API Kale registered the report of the complainant as per her say and the contents were read over to her. She put her signature in his presence. The complaint also bears the signature of API Kale. The report is at Exh.22. On the basis of said report, PW6 API Kale registered the offence vide Crime No. 2351/2016 for the offence punishable under Sections 377 and 506 of the Indian Penal Code and under Section 4 of the POCSO Act. The printed first information report is at Exh.23. The said also bears signature of the complainant as well as API Kale. B] As per the report (Exh.22), the complainant is resident of Jaitala, Nagpur. Her husband Dinesh works in a company. She is having two daughters by name Ankita aged about 20 years, Krutika aged about 19 years and one son Preshit aged about 16 years and the youngest is the victim aged about 9 years. At the relevant time the victim was taking education in a school at Jaitala in 4 th standard. (in this judgment the name of the school so also the surnames of the witnesses are not mentioned so that identity of the victim will not be disclosed). Her daughter Ankita died due to illness on 17.8.2016. It is reported in the report (Exh.22) that on 30.8.2016, her husband went for his work and she was present in the house. At t that time, at about 11.00 O'clock in the morning, the victim came after answering nature's call. That time, her uncle's son Ankush, aged about 12 years, was playing in her house. He disclosed that there is something in the anal region of the victim. Therefore, she inspected the said portion and found that there were white granuals. However, she did not pay any attention and she thought that there was some infection to him. It is also stated in the report that in the night when her husband returned home, she disclosed the fact to him. Upon that her husband asked her to take the victim to the Doctor. However, since she was in tension due to the death of her daughter, the victim was not taken to the Doctor. It is further stated in the report (Exh.22) that on 06.9.2016, she asked one Sangesh, her relative to take the victim to Dr. Golhar at Ambazari, who was their family Doctor. Accordingly, Sangesh took the victim to Dr. Golhar, who examined him. At that time, Sangesh was standing outside. The report states that the victim did not disclose anything to the Doctor and disclosed to him that he is suffering from rashes on his back due to sweating. Doctor gave him medicine and thereafter Sangesh took the victim back to house. That day, Sushma, wife of her brother was also present. She asked the victim, however, he did not disclose anything about his anal portion. Therefore, the complainant made a phone call to Dharampal (PW5), her brother and called him at her house. Thereafter, Dharampal and his wife Sushma took the victim to Dr. Golhar and in their presence Dr. Golhar examined the anal portion of the victim. Dr. Golhar directed them that the victim should be taken to Dr. Sandeep Pal, a Skin Specialist at Gokulpeth, Nagpur. Thereafter, they came to house and after that the first informant and Dharampal took the victim to Dr. Pal's clinic. He also examined the anal portion of the victim and asked the first informant to sit outside and thereafter made queries with her brother about her family. After some time, she was called inside by Dr. Pal and told that there is a suspicion that an unnatural sexual intercourse took place with the victim. Dr. Pal also asked the victim about the same, however, he did not disclose anything. Therefore, Dr. Pal asked the informant that the victim should be taken to the house and by taking him in confidence, happenings to him should be asked. On second day also the first informant went to Dr. Pal and after examining the victim, he gave medicines. The first information report further states that since the first informant was suspecting something foul, she decided to take the victim to another Doctor. Therefore, on 09.9.2016 at about 12.00 O'clock, she took the victim to Dr. Dange, a Surgeon at Ramdaspeth, Nagpur. There, after examining the victim, Dr. Dange also expressed that there took unnatural sex with the victim. Thereafter the first informant returned to her house along with the victim and enquired with him by taking him in confidence. That time it was disclosed to her that the appellant who resides in neighbourhood, used to take the victim at his house and used to show obscene movies on his mobile phone and used to do unnatural sex as well as oral sex with him. The first information report states that the victim disclosed to the first informant that this was going on from Diwali-2015 till August, 2016. C] After registration of the crime, API Kale visited the spot of the incident shown by the complainant and prepared the spot panchanama (Exh.26) in presence of panchas Nilesh Khobragade (PW2) and Dhiraj Bagde (PW3). The Investigating Officer thereafter referred the victim for his medical examination at Government Medical College and Hospital, Nagpur by giving requisition (Exh.40). On the said day, PC Ishant collected sealed medical samples taken by the Medical Officer during medical examination of the victim, which were seized under Seizure panchanama (Exh.41). D] On 15.9.2016, the Investigating Officer arrested the appellant as per arrest panchanama (Exh.42). Thereafter, the appellant was referred for his medical examination at Government Medical College and Hospital, Nagpur as per requisition (Exh.43). Accordingly, medical examination of the appellant was conducted and the Medical Officer collected the medical samples of the appellant and handed over in sealed condition to PC Ishant. Those were seized by the Investigating Officer under seizure panchanama (Exh.44). E] Statements of the victim and the complainant were also recorded under Section 164 of the Code of Criminal Procedure. The Investigating Officer also recorded the statements of other witnesses. He then sent the seized muddemal for Chemical Analysis. After completion of other usual investigation, he filed the charge-sheet. F] The learned Special Judge under POCSO Act, Nagpur in Special POCSO Case No. 281 of 2016, below Exh.15, framed the Charge against the appellant for the offence punishable under Sections 377, 506-B of the Indian Penal Code and under Sections 3(a) and 5(1)(m) punishable under Sections 4 and 6 of the POCSO Act. The appellant denied the Charge and claimed for his trial. G] In order to prove the Charge, the prosecution has examined in all seven witnesses and also relied upon various proved documents. After appreciation of the prosecution case, the learned Judge of the Court below passed the impugned judgment. Hence, this appeal.

(3.) Heard Mr. P.S. Wathore, the learned counsel for the appellant and Mr. S. M. Ghodeswar, the learned Additional Public Prosecutor for the respondent/State in extenso and also perused the entire record with their able assistance.