AJAY Vs. STATE OF MAHARASHTRA THROUGH POLICE STATION PACHPA
HIGH COURT OF BOMBAY
State Of Maharashtra Through Police Station Pachpa
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Swapna Joshi, J. -
(1.) This Appeal has been directed against the judgment and order dated 20th June, 2016 passed by the learned Principal District & Sessions Judge, Nagpur in Special Criminal Case No.48/2016, convicting the appellant under section 354 and 323 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"). The appellant was sentenced to suffer R.I. for three months u/s 323 of the IPC. No separate sentence was passed u/s. 354 of IPC. The appellant was further sentenced to suffer R.I. for five years and to pay a fine of Rs. 5000/- in default to suffer S.I. for three months, u/s. 8 of the POCSO Act.
(2.) The prosecution case in a nutshell can be summarized thus,
The prosecutrix is the daughter of the appellant. The prosecutrix was residing with her parents and younger brother in a rented premises at Katol, Dist. Nagpur, The prosecutrix was studying in XI standard. It is the case of the prosecution that on the night of the incident i.e. 9.8.2015, while the prosecutrix (PW1) was sleeping at about 12.30 am, the appellant came near her and fondled her breasts so also the private part. The said act was continued by the appellant for about 2 to 3 nights. The prosecutrix was scared with the said act of the appellant, The prosecutrix thereafter went to the house of her maternal aunt , namely, Smt.Maya Suryakant Mendhe (PW2). It is the case of the prosecution that on 15th August,2015 also, the prosecutrix was assaulted by her father and therefore she left her house and went to Nagpur and started residing with her maternal aunt (PW 2). At that place also, the father of prosecutrix ( i.e accused) visited the house of PW 2 and started abusing PW2-Maya and also tried to take away the prosecutrix from that place. However, the maternal aunt of the proseuctrix did not allow the appellant to take the prosecutrix with him. Meanwhile, the prosecutrix narrated the said incident to the mother of the prosecutrix (DW1). Thereafter the prosecutrix was admitted in Government Children's Home for Girls i.e Balgriha at Katol Road Sadar, Nagpur. The prosecutrix stayed in the said home for about one-anda-half months. However as she was not keeping good health, her maternal aunt again brought the prosecutrix to her house. It is the case of the prosecution that since the mother of the prosecutrix felt that an opportunity is to be given to her husband ( appellant) to improve himself, she did not lodge any complaint against the appellant. However the appellant visited the house of the maternal aunt of the prosecutrix, abused and assaulted her at that place. On 7.1.2016 the appellant again abused and assaulted the prosecutrix, her maternal aunt as well as her grandmother and also tried to take away the prosecutrix and her mother from that place forcibly. Therefore, the prosexutrix along with her maternal aunt proceeded to Women Cell at Nagpur and lodged a complaint at Pachpaoli Police Station, Nagpur.
(3.) An offence was registered on the basis of the said complaint lodged by the prosecutrix u/ss. 354, 323, 504 of the IPC and u/ss 7 and 8 of the POCSO Act, 2012 vide C.R. No.12/2016 on 7.1.2016. The investigating agency recorded the spot panchnama. The appellant came to be arrested. The statement of the witnesses were recorded and after completion of the investigation, the Police filed the charge-sheet against the appellant before the Special Court under POCSO Act. The charge was framed by the Special Court. The trial was conducted and on appreciation of evidence, the learned trial Judge convicted the appellant as aforesaid.;
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