Arun Popatrao Pingale v. The State of Maharashtra & Ors.

1. Appellant has impugned Judgment and Order dated 1st September 2018 passed by the learned Special Judge, Pune (under POCSO Act) in Special (C) Sessions Case Case No. 23 of 2016 by its Judgment and Order dated 1st September 2018, convicting him under Sections 376 & 506 of the Indian Penal Code (for short, ‘I.P.C.’) and is sentenced to suffer 7 years and 1 year of rigorous imprisonment on each count respectively and to pay a fine of Rs.5,000/-, and is also convicted under Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and is directed to suffer rigorous imprisonment for 7 years and 10 years on each count respectively and to pay a fine of Rs.15,000/-. The Trial Court has directed that, all the substantive sentences shall run concurrently.

2. Heard Mr.Rajiv Patil, learned Senior Advocate for Appellant, Ms.S.S. Kaushik, learned A.P.P. for Respondent No.1-State and Mr.Aditya Bapat, learned Advocate appointed to represent Respondent No.2. Perused entire record.

3. As the victim was minor on the date of lodgment of crime, with a view to protect her identity and in consonance with provisions of Section 228(A) of I.P.C. & Section 33(7) of P.O.C.S.O. Act, the facts or any other material disclosing her identity are hereinafter avoided.

4. It is the prosecution case that, the first informant/victim was a minor, then aged approximately 17 years was a native of village Sangwa, Post Derwadi, Taluka Digras, District Yavatmal. She along with her parents had been to village Kiwale Takva situated near Dehuroad, District Pune for labour work. The prosecutrix along with her parents was staying at a poultry farm known as ‘Gayatri Poultry Farm’ owned by Mr.Sunil Deshmukh. Victim girl (PW-1) used to call Appellant as ‘Abaji’ and Mr.Sunil Deshmukh as ‘Mama’. Victim was entrusted with the work of taking care of chicks in the poultry farm by providing it fodder and water. That, in the month of October 2014, in Diwali festival on the day of ‘Bhaubeej’, the victim girl was providing fodder and water to the chicks in the poultry farm in the morning and her parents had gone to the brick kiln. At that time, the Appellant came there, gave threats of serious consequences and to kill the victim and thereafter committed forcible sexual intercourse with her. Appellant committed the said act of sexual assault on victim subsequently on atleast two occasions by giving threats to kill her. As the victim was frightened, did not disclose the said incident to her parents. In the month of April 2015, the victim and her parents shifted to village Dohale, Taluka Bhiwandi, District Thane, as her parents were not being paid labour charges from the brick kiln owner. As the victim was not feeling well on 30th April 2015, she was taken to Primary Village Center of village Padgha, Taluka Bhiwandi, District Thane by her mother. The Medical Officer present there, on examination informed that, the victim girl was pregnant of about 6 months. The mother of victim therefore made enquiry with her, whereupon she disclosed and narrated the incident of rape committed by Appellant upon her. The victim along with her mother therefore on 2nd May 2015 approached Padgha Police Station and lodged First Information Report (F.I.R.) against the Appellant. The said F.I.R. was recorded by PSI Mr.Shamrao Kale (PW-6), then attached to Padgha Police Station in presence of Smt.Manisha Godambe (PW-3), a Member of Mahila Dakshata Samittee, Padgha. The Padgha Police Station registered F.I.R. vide C.R. NO. 00/2015 for the offence punishable under Section 376 of I.P.C. and under Sections 3 read with Sections 4, 5(J)(2)(3)(l)(q) punishable under Section 6 of the POCSO Act. PSI Shamrao Kale started investigation and got the minor victim girl examined from Civil Hospital, Thane. He also collected blood samples for DNA test. As the offence had occurred within the jurisdiction of Vadgaon Maval Police Station, he forwarded documents of the said crime to the Superintendent of Police, Pune (Rural). After receipt of documents, PSI Iqbal Shaikh (PW-5) then attached to Vadgaon Maval Police Station numbered the said crime as FIR No. 133 of 2015 and conducted further investigation. He obtained DNA samples of the victim minor girl, newly born baby of the victim girl and the Appellant and sent it for examination to the Forensic Science Laboratory. He also produced the victim before the Judicial Magistrate First Class for recording her statement (Exh.16) under Section 164 of the Criminal Procedure Code (for short, ‘Cr.P.C.’). After completion of investigation PSI Iqbal Shaikh (PW-5) submitted chargesheet.

5. Trial Court framed framed charge below Exh.4. The contents of the said were read over and explained to Appellant, to which he pleaded not guilty and claimed to be tried. The defence of Appellant was of total denial and false implication. In his defence, he stated that the parents of victim had availed a loan of Rs.1,20,000/- from the owner of brick kiln and to avoid return of it a false case is foisted upon him.

6. The prosecution examined in all 6 witnesses in support of its case, namely, (i) Victim (PW-1), (ii) Smt.Bhujade (PW-2), mother of victim, (iii) Smt.Manisha Godambe (PW-3), Member of Mahila Dakshata Samitee, Padgha,

(iv) Mr.Chhabu Waikar (PW-4), a native from the village of Appellant, (v) PSI

Mr.Iqbal Shaikh (PW-5), Investigating Officer, then attached to Vadgaon Maval Police Station and (vi) Mr.Shamrao Kale (PW-6), Police Sub-Inspector, then attached to Padgha Police Station, Taluka Bhiwandi, District Thane. The Appellant examined Mr.Umesh Kale (DW-1), as a defence witness. The said person was working as Branch Manager with Venkateshwara Hatcheries Private Limited, Branch Chakan. The Trial Court after conducting a full fledged trial has convicted and sentenced the Appellant, as noted herein above.

7. Mr.Rajiv Patil, learned Senior Advocate for the Appellant submitted that, the prosecution has failed to prove age of the victim being minor on the date of alleged incident. That, the prosecution has not ascertained age of the victim, whether she was really minor or major on the date of incident. He submitted that, the Trial Court has erred in relying on School Leaving Certificate of the victim girl, while reaching to the conclusion that the victim was a minor on the date of incident. He submitted that, the School Leaving Certificate of victim was not produced with the chargesheet and therefore it was an error in producing and proving School Leaving Certificate of the victim by the Investigating Officer and accepting it by the Trial Court in para No.17 of the impugned Judgment and Order. He submitted that, from the provisions of P.O.C.S.O. Act, it is crystal clear that, the prosecution is under boundened duty to prove that the victim was a child. Unless the prosecution successfully establishes that, the victim was a child as contemplated by Section 2(d), a person cannot be convicted for the offence punishable under Sections 4 & 6 of the P.O.C.S.O. Act. To buttress his submission he placed reliance on the decision of the Division Bench of this Court in the case of Ravi Anandrao Gurpude Vs. State of Maharashtra, reported in 2017 All MR (Cri.) 1509. He submitted that, as the prosecution has failed to prove the age of the victim being minor on the date of incident, the conviction of Appellant under the provisions of P.O.C.S.O. Act needs to be quashed and set-aside. He submitted that, as far as conviction of the Appellant under the provisions of I.P.C. is concerned, it is the case of the Appellant that, he has been falsely implicated by the parents of the victim to avoid to make repayment of loan availed by them from the owner of the brick kiln. He therefore prayed that, the present Appeal may be allowed by acquitting the Appellant from all the charges.

8. Ms.Kaushik, learned A.P.P. and Mr.Bapat, learned Advocate appointed to represent Respondent No.2 vehemently opposed the Appeal. They submitted that, the medical record produced and proved by PW-5 & PW- 6 clearly indicates that, the age of the victim as 16 years. They submitted that, even the victim in her First Information Report has stated her age as 17 years and therefore a clear inference can be drawn that, the prosecutrix was below the age of 18 years in the festival of Dewali in the month of October 2014. They submitted that, the DNA report which is at Exh.44 clearly mentions that, the Appellant is father of the baby delivered by victim. They therefore prayed that, the present Appeal may be dismissed.

9. At the outset, it is to be noted here that, in the First Information Report the victim has stated her age as about 17 years. In her examination-inchief which was recorded on 29th July 2017, she has stated her age about 18 years. It is to be noted here that, after her examination-in-chief was recorded on 29th July 2017, she fell ill and while undergoing treatment expired on 24th August 2017. The Appellant therefore could not cross-examine her. The evidence available on record clearly indicates that, the Medical Officer in their medical reports have stated age of victim as 16 years on 5th May 2015 and 6th May 2015. The Appellant did not raise objection about the age of the victim during entire trial. The suggestion given by the Advocate for the Appellant to the Investigating Officer (PW-6) that, at the time of commission of offence, the victim was major has been denied by him. In his statement recorded under Section 313 of Cr.P.C., the Appellant has not disputed the age of the prosecutrix. Therefore from the evidence available on record, a safe conclusion can be drawn that, the prosecutrix was a child as contemplated under Section 2(d) of the P.O.C.S.O. Act in the festival of Diwali in the month of October 2014.

10. There is another and most important fact established by the prosecution in the present case. PSI Iqbal Shaikh (PW-5) has proved the DNA report (Exh.44 colly.) issued by Regional Forensic Science Laboratory, Pune. In the said report it is stated that, all the 15 different genetic systems analysed with PCR, Arun Popatrao Pingale, i.e. Appellant, matched the obligate paternal alleles present in baby of victim. The report therefore opines that, the Appellant and victim are concluded to be biological parents of baby of victim. The allegation against the Appellant of committing sexual intercourse with the victim is thus proved beyond reasonable doubt by the prosecution by adopting the advanced scientific methods. The DNA report (Exh.44) has not been disputed and/or questioned by the Appellant. There is no crossexamination of any of the witnesses about the authenticity or genuineness on the said report. Therefore even the cross-examination of the victim could not be conducted due to her unfortunate and untimely demise, the prosecution has successfully and beyond reasonable doubt has proved that the Appellant had committed sexual intercourse with the victim, who was a child in the month of October 2014. The prosecution has therefore proved all the charges levelled against the Appellant by leading cogent and convincing evidence in that behalf.

11. Perusal of impugned Judgment indicates that, the Trial Court has not committed any error while convicting and sentencing the Appellant. There are no merits in the Appeal. Appeal is accordingly dismissed. [A.S. GADKARI, J.] SHIVAHAR KUMBHAKARN