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Judgment
The present appeal is directed against the judgment and order of conviction passed by the learned Special Judge (POCSO Act) and Additional
Sessions Judge, Nagpur, dated 22.09.2016 in Special Criminal Case No.12/2014. By the impugned judgment, the appellant is convicted for the
offences punishable under Sections 354, 354ÂA(2) of the Indian Penal Code and under Sections 8 and 10 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter referred to as “the POCSO Act†for the sake of brevity). He is sentenced to suffer rigorous imprisonment for
three years and to pay a fine of Rs.2,000/Â and in default of payment of fine to suffer further simple imprisonment for six months for his conviction
for the offence punishable under Section 354 of the Indian penal Code.
Insofar as his conviction under Section 354ÂA(2) of the Indian Penal Code is concerned, the sentence imposed on the appellant is sufferance of
rigorous imprisonment for two years and payment of fine of Rs.2,000/Â and in default of payment of fine sufferance of further simple imprisonment
for two months.
His sufferance of sentence for conviction under Section 10 of the POCSO Act is rigorous imprisonment for five years and payment of fine of
Rs.10,000/Â and in default of payment of fine to suffer further simple imprisonment for six months.
I have heard Shri A. M. Kukday, the learned counsel for the appellant and Shri. T. A. Mirza, the learned Additional Public Prosecutor for the
respondent/State in extenso. Both the learned counsel took me in detail through the notes of evidence and all the documents proved during the course
of the trial. They vehemently submitted their respective briefs.
The date of birth of the victim is 22.11.2006 and at the time of the incident, she was taking education in 3rd standard. The date of the incident is
13.01.2014. Thus, on the date of the incident, the age of the victim was eight years and therefore, she is a child within the meaning of definition of
“Child†under Section 2(d) of the POCSO Act.
The incident in question has occurred inside the house of the victim. Accused/appellant gained his entry inside the house on the pretext that he
want to charge his cell phone and after getting such permission from the mother of the victim, he stepped inside the house and committed misdeeds,
which constitutes offence under the Indian Penal Code and under the POSCO Act.
The first information report is lodged by Asha Kohale (PW2). She is the aunt of the victim. At the relevant time, she was present in the courtyard
of her house. She heard shouts of the victim. Therefore, she entered in the house to notice the misbehaviour constituting the offence on the part of
the appellant with the victim girl.
The oral report of Asha Kohale (PW2) is at Exh.22. The report of Asha (PW2) and her substantive evidence show that she and her family
resides jointly with the father of the victim PW4 Anil and his wife PW5 Kunda. The father of victim runs a small iron press shop and the residents of
the vicinity visit their house for getting their clothes pressed from the said shop. The first information report further states that on the date of the
incident i.e. 13.1.2014, she was washing clothes in the courtyard. That time, father of victim girl had been to the floor mill and the victim, aged 8 years
and her brother Naitik, aged about 4 years, were watching TV. That time, when mother of the victim girl, namely Kunda (PW5) was about to leave
the house, the present appellant, who always use to visit the house on account of getting his clothes pressed, came and requested Kunda (PW5) that
he wants to charge his cell phone. Permission was given by Kunda (PW5) and thereafter, she left the place. Thereafter, appellant Pankaj took entry
inside the house. After some time, the victim shouted loudly. Therefore, the first informant went inside the house. That time she noticed that the
victim was weeping and the appellant was pressing her breasts and her stomach. She also noticed that the zip of his pant was in open condition. On
noticing this, first informant Asha reacted and gave slaps to Pankaj. She also shouted and thereafter, the persons from the vicinity gathered and they
caught the appellant on the spot.
The investigation part of the prosecution case is completed by PW6 Rupali Bawankar, A.P.I. She also filed the chargeÂsheet in the Court f law.
Evidence of PW4 Anil Kohale, the father of victim, is of no use in respect of the actual incident is concerned, since at that time he was not present in
the house. However, subsequently when he reached, he acted as panch to spot panchanama (Exh.26).
The version of prosecution witness that father of victim runs a iron press shop and the appellant used to visit the house of victim to iron his clothes
is admitted by the appellant as it could be seen from the answer which he has given to question no.15 when the appellant was examined under Section
313 of the Code of Criminal Procedure by the learned Judge of the Court below. Further, he has also admitted the prosecution evidence as come on
record through the evidence of PW5 Kunda, the mother of the victim and PW2 Asha Kohale that at the relevant time, PW2 Asha was washing
clothes in front of the house and the appellant asked consent of Kunda to gain his entry inside the house for charging his cell phone. Thus, the
evidence of the prosecution witnesses in respect of gaining entry by the appellant inside the house is an admitted position.
Though, there is no document of date of birth, the victim herself has deposed that her date of birth is 22.11.2006. This particular date is not at all
challenged by the appellant. When the appellant was examined, he gave evasive replies of “I do not know in respect of her age and the standard in
which the victim was taking educationâ€.
The victim girl is crossÂexamined. There is no crossÂexamination at all in respect of the acts, which the victim stated in her examinationÂinÂ‐
chief that the appellant was pressing her breasts and stomach. The tenor of the crossÂexamination of the victim is she is a tutored witness.
However, the said suggestion is also denied by her. In her evidence and her statement under Section 164 of the Code of Criminal Procedure
(Exh.19), she in very clear terms and words has described the obnoxious acts of the appellant, which he committed on her person. Her evidence
shows that she shouted. Her shouting is corroborated by Asha Kohale (PW2), who states in her evidence and also in oral report (Exh.22) that after
hearing the shout, she rushed inside the house just to notice the appellant's acts, for which he is punished.
Evidence of Asha Kohale (PW2) shows that as soon as she noticed the activities of the appellant, she slapped on his face. In my view, this is the
most natural reaction on the part of the aunt of the victim and nobody should doubt about the said assertion made by her in her evidence. Her
evidence also states that she also shouted. This is also corroborated by PW3 Amol Kantode, a security guard, who was flying kites in near ground and
who rushed there along with others. His evidence shows that that time he noticed the appellant running away from the house of the victim and at that
time zip of his pant was in open condition. The appellant was apprehended then and there only.
The learned Judge of the Court below, in my view, has correctly evaluated the evidence and has rightly convicted the appellant.
The submission of Mr. Kukday, the learned counsel for the appellant that some leniency should be shown in favour of the appellant, in my view,
has no merit. The appellant is a married person, aged abut 38 years. The victim is only aged about eight years, an age when she has not attended the
puberty, still the appellant targeted her to fulfill his lust. The Court cannot keep blind eye on what is happening around the society. Even before this
Court many of the cases are brought wherein the age of the victim is well below 10 years. Thus, it appears that in the society, there is a spurt of such
type of offences. Therefore, these type of offences has to be dealt with with iron hand and with deterrence. As such the leniency cannot be shown
in the matter. In my view, the sentence is just and proper.
On reÂappreciation of the entire prosecution case, I am of the view that the prosecution has successfully brought its case to home against the
appellant, warranting no interference. The appeal is, therefore, dismissed.