A.M.BADAR, J. -
(1.) By this appeal, the appellant accused is challenging the judgment and order dated 20th May 2015 passed by the learned Special Judge, Pune, in Special Child Sessions Case No.42 of 2013 thereby convicting him of offences punishable under Section 376 and 354 of the Indian Penal Code (IPC). The appellant accused is also held guilty under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act hereinafter). On each count for the offence punishable under Section 376 of the IPC as well as that under Section 4 of the POCSO Act, he has been sentenced to suffer rigorous imprisonment for 10 years apart from payment of fine of Rs.5,000-, in default to undergo further rigorous imprisonment of 1 year. For the offence punishable under Section 354 of the IPC, the appellant accused is sentenced to suffer rigorous imprisonment for 1 year, apart from directing him to pay fine of Rs.1,000- and in default, to undergo further rigorous imprisonment for 1 month. Substantive sentences imposed on these three counts are directed to run concurrently by the learned trial court.
(2.) Brief facts leading to the institution of the present proceedings are thus :-
(a) Informant PW2 Suman Gaikwad is a widow. She was having responsibility of maintaining four daughters. The PW1 prosecutrix is one amongst them. PW2 Suman Gaikwad used to reside at Dattawadi area of Pune along with her mother-in-law PW3 Kamal Gaikwad as well as her daughters.
(b) PW3 Kamal Gaikwad is having a daughter named Vandana. The appellant accused is husband of said Vandana - daughter of PW3 Kamal Gaikwad. Thus, the appellant accused is husband of paternal aunt of the PW1 prosecutrix.
(c) According to prosecution case, as father of the PW1 prosecutrix died and her mother was suffering from penury, it was decided to send the PW1 prosecutrix to the house of the appellant accused at Yerwada area of Pune for further education. Accordingly, the PW1 prosecutrix started residing with her paternal uncle i.e. the appellant accused and her paternal aunt Vandana as well as their children and took admission in 7 th Standard at Netaji Subhashchandra Bose High School, Yerwada, Pune.
(d) The prosecution alleged that during her stay at the house of the appellant accused at Yerwada, Pune, the appellant accused used to take her to the terrace and used to outrage her modesty. He used to attempt to commit sexual intercourse with her by putting his penis in her vagina.
(e) After completion of academic session 2012-2013, on 9th April 2013, the PW1 prosecutrix was brought back to her mother's house by her grandmother - PW3 Kamal Gaikwad. As there was urus of God Mhasoba at Dattawadi, Pune, on 14 th May 2013, the appellant accused along with his family members visited house of PW1 prosecutrix and stayed there for one day. On 15th May 2013, when the appellant accused along with his family members was returning to his house at Yerwada, Pune, the PW1 prosecutrix did not accompany him. She was questioned by her mother PW2 Suman Gaikwad. Thereafter, the PW1 prosecutrix disclosed her mother that the appellant accused used to call her at the terrace of the house and used to outrage her modesty so also he used to attempt to penetrate her. She disclosed that he used to threaten her that if she dares to disclose the incident to anybody, he would kill her mother.
(f) After hearing narrations of the PW1 prosecutrix, PW2 Suman Gaikwad was frightened and therefore, immediately she did not disclose the incident. Subsequently, she told the incident, as narrated by the PW1 prosecutrix, to her mother-in-law i.e. PW3 Kamal Gaikwad. Then, PW2 Suman Gaikwad accompanied by her mother as well as PW3 Kamal Gaikwad, went to the house of the appellant accused on 18 th May 2013 and questioned him. At that time, the appellant accused threatened them that if the complaint is lodged, he would commit suicide. Ultimately, with the aid of PW5 Lilatai Sonawane, PW2 Suman Gaikwad lodged report of the incident with Police Station Yerwada on 20 th May 2013, which resulted in registration of Crime No.241 of 2013 for offences punishable under Section 376 as well as Section 4 of the POCSO Act.
(g) Wheels of investigation were set in motion due to report lodged by PW2 Suman Gaikwad. PW1 prosecutrix was sent for medical examination to Sassoon hospital, Pune, where she came to be examined by PW4 Dr.Swati Kagne. Statement of witnesses came to be recorded and spot panchnama of the spot of the incident came to be recorded. On completion of necessary investigation, the appellant accused came to be charge-sheeted.
(h) After committal of the case, charges for the offences punishable under Sections 376 and 354 of the IPC as well as under Section 4 of the POCSO Act came to be framed and explained to the appellant accused, who abjured guilt and claimed trial.
(i) In order to bring home guilt to the appellant accused, the prosecution has examined in all six witnesses. The prosecutrix came to be examined as PW1 whereas her mother came to be examined as PW2. Report lodged by PW2 Suman Gaikwad is at Exhibit 10. PW3 Kamal Gaikwad is grandmother of the PW1 prosecutrix. Dr.Swati Kagne, gynecologist from Sassoon Hospital, Pune, is examined as PW4. Lilatai Sonawane - social worker, came to be examined as PW5 whereas, the Investigator Amol Nandekar, A.PI., Yerwada Police Station, is examined as PW6.
(j) Defence of the appellant accused, as gathered from the line of cross-examination from the prosecution witnesses as well as from his statement under Section 313 of the Code of Criminal Procedure (Cr.P.C.) is that of false implication. According to the defence, at the time of marriage ceremony, the appellant accused had a quarrel with one Ravi Gaikwad and PW2 Suman Gaikwad had illicit relations with said Ravi Gaikwad. Hence, he has been framed in the crime in question.
(3.) I have heard Shri Yashpal Thakur, the learned advocate on the panel of Legal Aid of High Court and appointed by this court to represent the appellant accused at the cost of the State. By taking me meticulously through the entire record, Shri Yashpal Thakur, the learned advocate argued that case of the prosecution becomes suspect because of inordinate delay in lodging the First Information Report (FIR). He argued that though according to the prosecution case PW2 Suman Gaikwad - mother of the PW1 prosecutrix came to know about the alleged incident on 15 th May 2013, still no action came to be taken by the prosecuting party and ultimately, the FIR came to be lodged belatedly on 20 th May 2013. This indicates false implication of the appellant accused in the crime in question by concocting against him. It is further argued that the PW1 prosecutrix had ample opportunity to complain against the appellant accused. Evidence on record indicates that she was continuously in contact with her mother PW2 Suman Gaikwad and her grandmother PW3 Kamal Gaikwad, during the course of her stay at the house of the appellant accused. The learned advocate pointed out that the PW1 prosecutrix had a brief stay at her own house at Dattawadi, in company of her mother and grandmother during Diwali vacation. Still, she failed to make any grievance against the appellant accused. The learned advocate further drew my attention to evidence of PW3 Kamal Gaikwad to point out that PW3 KamalGaikwad was continuously visiting the house of the appellant accused for meeting her daughter as well as grandchildren. At that time, the PW1 prosecutrix used to interact with PW3 Kamal Gaikwad. Still, the prosecutrix did not complain about the alleged act of the appellant accused. This, according to the learned advocate appearing for the appellant accused, makes the prosecution case doubtful and improbable.;