MUKESH SON OF TULSHIRAM MADAVI Vs. STATE OF MAHARASHTRA, THROUGH POLICE STATION, LAHERI, TAHSIL EETAPALLI, DISTRICT GADCHIROLI
HIGH COURT OF BOMBAY
Mukesh Son Of Tulshiram Madavi
State Of Maharashtra, Through Police Station, Laheri, Tahsil Eetapalli, District Gadchiroli
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S.B. Shukre, J. -
(1.) This appeal questions legality and correctness of the judgment and order dated 7th April 2016 rendered in Sessions Trial No. 118 of 2013 convicting the appellant for the offences punishable under Section 454 of the Indian Penal Code and Section 6 read with Section 5 (c) of the Protection of Children from Sexual Offences Act, 2012. Appellant has been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 500/, in default, to suffer further RI for three months, on the first count. On second count, he has been directed to suffer rigorous imprisonment for fifteen years and to pay a fine of Rs. 1000/, in default, to suffer further RI for one year. Appellant has also been convicted for an offence punishable under Section 376 (2) (1) of the Indian Penal Code, but no separate jail sentence is inflicted upon the appellant for the same.
(2.) This is a case wherein the facts disclose poignant story of a helpless child and her mother. This child, according to prosecution story, was made an object of untrammelled lust of the accused. The prosecution story goes as under:
(a) Mother of the victim child (for short, "M" for mother and "V" for victim) in the year 2012 resided along with her husband and three children at Lahiri, Tahsil Bhamragad, District Gadchiroli. V was the eldest of the children of M. She was, at the time of incident, aged about 11 years; was deaf and dumb and was also severally handicapped so much so that she was completely confined to bed; was unable to perform by herself any act necessary to keep herself clean and in hygienic condition and could also not wear any clothes of her own.
Whenever M and other members of her family had to go out of the house, per force they were required to keep V in the house, lying on the bed with bare minimum clothes on her person and the house locked from outside. V was followed by her sister, aged about 9 years and her brother, aged about 7 years in the year 2012.
(b) The incident occurred on 14.12.2012 some time before 05.00 pm. All the family members had their lunch by about 12.00 noon and they left the house in pursuit of their daily work. They had ensured to lock the front door from outside. It appears that there was some opening left in the room in which V was kept lying on the cot. This room had one wall which was not constructed right upto its roof and there was some gap left in between the roof and this wall, which would enable any person to have egress to or ingress from the room.
(c) At about 05.00 pm in the evening, M returned to the house. Her daughter and son were seen by her as pacing up and down near their house in a frightened condition. They told M that there was somebody inside the house on the cot along side V. M rushed to the window to the room of V and found to her astonishment that one person, aged about 20 years, fully naked, was lying on the person of V who was also without any clothes. She also saw that V was writhing in pain and crying aloud. M rushed back to the front door and using the key, she opened the lock and ran towards the room of V. The naked person then jumped over the incomplete wall; got into the adjoining bath room and made an attempt to escape from the clutches of M. M being desperate, also ran after that person who was even then completely naked. M succeeded in catching hold of the naked man and with the aid of her two children, she immobilised him by keeping him tied by means of a rope. She then went towards V who was still crying and yelling in pain. V was bleeding from her private part. It is stated that bothri on the cot which appears to be a quiltlike fabric, was seen by M as stained with blood. One blue pant and one skyblue shirt were found to be lying there.
(d) V, appeared to be dangerously injured and was taken to Primary Health Centre, Lahiri from where she was taken to Subhospital, Aheri, District Gadchiroli. Police also arrived at the spot and took away the person caught hold of by M. He is the accusedappellant in the present case.
(e) A complaint about the incident was lodged on 15.12.2012 at about 00.02 hours. Spot panchanama and seizure panchanama were prepared; necessary investigation was carried out; statements of witnesses were recorded and after completion of investigation, chargesheet for prosecuting the appellant for offences under Section 376 of the Indian Penal Code and other relevant sections was filed. The appellant was prosecuted for the offences punishable under Sections 376 (2) (1) and 454 of the Indian Penal Code and for an offence under Section 5 punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, the "POCSO Act"). On merits of the case, the Special Judge found that these offences were proved and accordingly convicted and sentenced the appellant, as stated in first paragraph of this judgment. Not being satisfied with the same, the appellant is before this Court in the present appeal.
(3.) I have heard Ms S.P. Kulkarni, learned counsel (appointed) for the appellant and Ms Ritu Kaliya, learned Additional Public Prosecutor for the respondentState. I have carefully gone through record of the case including the impugned judgment and order.;
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