BALAJI SARJERAO KAMBLE Vs. THE STATE OF MAHARASHTRA
LAWS(BOM)-2017-8-117
HIGH COURT OF BOMBAY
Decided on August 29,2017

Balaji Sarjerao Kamble Appellant
VERSUS
THE STATE OF MAHARASHTRA Respondents

JUDGEMENT

A.M.BADAR,J. - (1.) By this appeal, the appellant / accused is challenging the judgment and order dated 15th December 2015 passed by the learned Special Judge, Pune, in Special (Child) Case No.66 of 2014 thereby convicting him of the offence punishable under Section 376 of the Indian Penal Code (IPC) so also under Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act). For the offence punishable under Section 376 of the IPC, the appellant / accused is directed to undergo rigorous imprisonment of 7 years apart from directing him to pay fine of Rs.5,000/, in default, to undergo further rigorous imprisonment of 3 months. Similarly, for the offence punishable under Section 4 of the POCSO Act, he is sentenced separately to suffer rigorous imprisonment of 7 years, apart from directing him to pay fine of Rs.5,000/, in default, to undergo further rigorous imprisonment of 3 months. For the offence punishable under Section 8 of the POCSO Act, the appellant / accused is sentenced to suffer rigorous imprisonment of 3 years, apart from directing him to pay fine of Rs.1,000/, in default, to undergo further rigorous imprisonment of 1 month. Substantive sentences are directed to run concurrently.
(2.) Facts leading to the institution of the present appeal can be summarized thus : (a) Informant PW2 Shamalata Gadkari used to reside at Hargudevasti, Chikali, Pune, with her husband Prashant, son Pranay and daughter (PW1) aged about 7 years, who is stated to be the victim of the crime in question. The incident allegedly took place on 21st December 2013. The victim female child (PW1) at the relevant time was taking education in 1 st Standard in Saraswati English Medium School at Pawarvasti, Chikhali, Pune. (b) The appellant / accused is stated to be neighbour of First InformantPW2 Shamalata Gadkari. He used to visit house of the First InformantPW2 Shamalata Gadkari frequently. Children of First InformantPW2 Shamalata Gadkari used to play games on mobile phone of the appellant / accused. Children of the First InformantPW2 Shamalata Gadkari used to call appellant / accused Balaji Kamble as "mama" maternal uncle. (c) It is case of the prosecution that the incident in question took place on 21st December 2013 at about 8.00 p.m. Appellant / accused Balaji came to the house of PW2 Shamalata Gadkari, and the minor female child (PW1) who is daughter of PW2 Shamalata Gadkari, accompanied him for playing games on mobile phone. She returned to her house after half an hour. On 22 nd December 2013 also, at about 6.00 p.m. appellant / accused Balaji came to the house of PW2 Shamalata Gakari to enquire as to where the minor female victim (PW1) is. Upon being told that she had gone outside for playing, the appellant / accused left the house of PW2 Shamalata Gadkari. The minor female victim (PW1) then returned to her house and slept. (d) In late night hours of 22 nd December 2013, the minor female victim (PW1) informed her mother PW2 Shamalata Gadkari that she is suffering pain at abdomen and private part. However, PW2 Shamalata Gadkari did not pay any attention. (e) In the morning hours of 23rd December 2013, the PW1/ minor female victim reiterated her complaint of pain at private part and abdomen to her mother PW2 Shamalata Gadkari. This resulted in detailed questioning of the minor female victim by her mother. It was thereafter that the minor female victim (PW1) disclosed to her mother PW2 Shamalata Gadkari that the day before yesterday, appellant / accused Balaji took her to the staircase, kissed her, took out her nicker and committed rape on her. (f) PW2 Shamalata Gadkari then called her husband and took the minor female victim (PW1) to the hospital of PW3 Dr.Neelam Kale. Ultimately, PW2 Shamalata Gadkari went to Police Station Nigdi on 23rd December 2012 itself and lodged FIR Exhibit 12 against the appellant / accused which had resulted in registration of Crime No.3432 of 2013 for offences punishable under Sections 3, 4, 7 and 8 of the POCSO Act. (g) During course of investigation, the minor female victim (PW1) was sent for medical examination to the Sassoon Hospital, Pune, where she came to be examined by PW4 Dr.Swati Kagne ? Junior Resident. The appellant / accused came to be arrested. Statement of witnesses came to be recorded. Clothes of the appellant / accused so also that of minor female victim came to be seized. Seized articles were sent for chemical analysis and on completion of investigation, the appellant / accused came to be chargesheeted. (h) The learned trial court framed charges for offences punishable under Section 376 of the IPC and under Sections 4 and 8 of the POCSO Act. The appellant / accused abjured his guilt and claimed trial. In order to bring home the guilt to the appellant / accused, the prosecution has examined in all five witnesses. The minor female victim of the crime in question is examined as PW1 whereas her mother ? First Informant Shamalata Gadkari is examined as PW2. Dr.Neelam Kale is examined as PW3 whereas Dr.Swati Kagne is examined as PW4. Exhibit 19 is the certificate of medical examination of the PW1 issue by PW4 Dr.Swati Kagne. Investigating Officer Rupali Bobade, A.P.I. of Nigdi Police Station, is examined as PW5. (i) Defence of the appellant / accused is that of total denial as well as false implication. The appellant / accused belongs to Mang caste. According to him, his family has purchased a piece of land at Hargudevasti, dominated by people from Maratha community. Neighbours belonging to Maratha caste were not happy with this act. His elder brother was kidnapped which has resulted in registering of the crime against persons belonging to Maratha caste. Similarly, one Shrikant Tambe had lodged report of commission of rape against eldest brother of the appellant / accused, in which brother of the appellant / accused came be acquitted. Thus, because of this hostility with people from Maratha community, the appellant / accused is falsely implicated in the crime in question. It is the defence of the appellant / accused that for withdrawing the case of abduction of his eldest brother, he is falsely implicated in the crime in question. At the time of the incident, he was giving examination at the Disha Computers.
(3.) I heard Shri Satyavrat Joshi, the learned advocate appearing for the appellant / accused. He argued that entire evidence of the prosecution is silent about age of the alleged vitim of the crime in question. The prosecution was duty bound to prove that the minor female victim was a child within the meaning of the said term under the POCSO Act. As age of the victim is not proved, the prosecution case suffers from serious infirmity. He further argued that the victim of the crime in question, has not disclosed the date of the incident. Evidence regarding place of the incident is also discrepant. History given to the doctor shows that the incident allegedly took place at the terrace whereas, evidence suggests that it took place near staircase. According to the learned advocate for the appellant / accused, conduct of mother of the victim in not disclosing anything to PW3 Dr.Neelam Kale to whom she approached first, casts a shadow of doubt on the case of the prosecution. Alleged sexual assault on the PW1 was not at all disclosed to this witness. In submission of Shri Joshi, the learned advocate for the appellant / accused, medical evidence is also not supporting the prosecution case. Tearing of hymen is attributable to fingering and the tear was old one. Therefore, it cannot be said that it was the appellant / accused, who had committed the offence of penetrative sexual assault on the minor female victim.;


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