Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 460 OF 2017
APPELLANT : Paresh @ Kamlesh Prakash Dhanvatkar
Aged about 21 years, Occ: Private Work,
r/o. Vaishali Nagar Behind Ganesh
Temple,
P.S.O. Panchpaoli, Nagpur.
(In Central Prison, Nagpur)
...VERSUS...
RESPONDENT : The State of Maharashtra, Through PSO,
Panchpaoli, Nagpur.
Mr. C.R.Thakur, counsel for the appellant.
Ms Shamsi Haider, APP for the respondent.
CORAM : MANISH PITALE, J.
DATE OF RESERVING THE JUDGMENT: 27.07.2018.
DATE OF PRONOUNCING THE JUDGMENT: 09.08.2018.
J U D G M E N T
The appellant has challenged judgment and order
dated 11/09/2017 passed by the Sessions Court, Nagpur (Trial
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Court in Special Child Criminal Case No.154 of 2015, whereby the
appellant has been convicted for the offence punishable under
section 354B of the Indian Penal Code (IPC) and sections 8 and
12 of the Protection of Children from Sexual Offences Act, 2012
(POCSO Act) and sentenced to suffer rigorous imprisonment for 4
years and 3 years for such conviction with amounts of fine to be
paid in terms of the impugned judgment and order.
2. The prosecution case in brief is that the complainant
(PW1) Sandhya Suryawanshi lodged a report on 21/05/2015 in
Police Station Panchpaoli, Nagpur, District Nagpur, alleging that
on 17/05/2015 at about 12.30 p.m., when she had gone to the
market with her motherinlaw, the appellant took her daughter
behind Hanuman Temple and kissed her on lips and cheeks and
thereafter he showed his private part to the child. The child victim
PW2 was scared and ran away from the place. The complainant
PW1 claimed that her daughter i.e. the victim PW2 narrated the
incident to her when she came back from the market and that the
complainant then informed her husband and motherinlaw about
the same.
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3. It was claimed that report was lodged before the
Police after about 4 days because the complainant PW1 was
scared of defamation of her daughter. On registration of the first
information report (FIR) pursuant to the said oral report lodged
by the complainant PW1, the Investigating Officer PW6
undertook investigation and recorded statements of witnesses,
including the statement of the victim PW2. The appellant was
arrested on 22/05/2015 and he was sent for medical examination.
On the basis of the material gathered during investigation, charge
sheet was submitted against the appellant.
4. After charge was framed, evidence of witnesses was
recorded in the Trial Court. The prosecution examined 6 witnesses
in support of its case. PW1 was the complainant and mother of
the victim, PW2 was the victim herself, PW3 and 4 were the
panch witnesses on spot panchnama, PW5 was the Police Officer,
who recorded the report lodged by the complainant PW1 and
PW6 was the Investigating Officer. On the basis of the oral and
documentary evidence on record, the Trial Court found that the
prosecution had proved its case beyond reasonable doubt against
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the appellant and accordingly he was convicted and sentenced in
the aforesaid manner.
5. Mr. C.R.Thakur, learned counsel appearing for the
appellant, submitted that in the present case, delay of 4 days in
registration of FIR was fatal for the prosecution case. It was
submitted that no explanation was put forth by the prosecution
for such huge amount of delay. It was submitted that the entire
case against the appellant was nothing but a concoction and that
the appellant was falsely implicated. It was submitted that there
had been dispute between the family of the appellant and that of
the complainant with respect to a lane near the house, due to
which the appellant was falsely implicated. It was further
submitted that the prosecution failed to examine friends of the
victim PW2, with whom she was playing near the Hanuman
Temple at the time of the incident. It was submitted that since
FIR itself was lodged after four days, there was no medical
evidence in the present case to prove the allegations made against
the appellant. On this basis, it was submitted that the appeal
deserved to be allowed.
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6. Per contra , Ms Shamsi Haider, learned APP appearing
on behalf of the respondentState, submitted that merely because
FIR was lodged after 4 days, it could not be said to be fatal for the
prosecution case. The complainant PW1 had sufficiently
explained the delay in registration of FIR, as she stated that she
feared defamation of her minor daughter. It was submitted that
in such circumstances, it has been held that delayed registration of
FIR in cases involving sexual offences, needs to be appreciated in
the context of the fear that the child and her family would have
about being defamed when such incident becomes public. It was
submitted that the victim PW2 had clearly stated in her evidence
in support of the prosecution case and that there was sufficient
material on record to demonstrate that the impugned judgment
and order passed by the Trial Court was justified. On this basis, it
was submitted that the appeal deserved to be dismissed. The
learned APP relied upon the judgment of this Court in the case of
Siddharth Dagadu Sonde v. State of Maharashtra , reported in
2017 ALL MR (Cri.) 4192 .
7. Heard counsel for the parties. The first and foremost
issue that needs to be decided in the present appeal is, as to
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whether registration of FIR on 21/05/2015 at about 3.30 p.m.
pertaining to an incident, that allegedly occurred at about 12.30
p.m. on 17/05/2015, could be said to be fatal for the prosecution
in the present case. No straight jacket formula can be laid down
as regards delay in registration of FIR becoming fatal for the
prosecution. Everything would depend on the facts and
circumstances of each case and the nature of evidence placed on
record on behalf of the prosecution. In the judgment relied upon
by the learned APP i.e. Siddharth Dagadu Sonde v. State of
Maharashtra ( supra ), in a case where FIR was registered after 5
days of the incident, pertaining to offences under the POCSO Act,
this Court found that the delay of 5 days could not be said to be
fatal for the prosecution case. In the said judgment, reliance was
placed on the judgment of the Hon'ble Supreme Court in the case
of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat , reported
in AIR 1983 SC 753 . In the said judgment of the Hon'ble
Supreme Court, reasons for late reporting of sexual offences in our
country were noted to be as follows :
“ (1) A girl or a woman in the tradition bound
nonpermissive Society of India would be extremely
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reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred, (2) She
would be conscious of the danger of being ostracized by
the Society or being looked down by the society
including by her own family members, relatives, friends
and neighbours, (3) She would have to brave the
whole world. (4) She would face the risk of losing
the love and respect of her own husband and near
relatives, and of her matrimonial home and happiness
being shattered. (5) If she is unmarried, she would
apprehend that it would be, difficult to secure an
alliance with a suitable match from a respectable or an
acceptable family. (6) It would almost inevitably and
almost invariably result in mental torture and suffering
to herself. (7) The fear of being taunted by others will
always haunt her. (8) She would feel extremely
embarrassed in relating the incident to others being over
powered by a feeling of shame on account of the
upbringing in a tradition bound society where by and
large sex is taboo. (9) The natural inclination would
be to avoid giving publicity to the incident lest the
family name and family honour is brought into
controversy. (10) The parents of an unmarried girl as
also the husband and members of the husband's family
of married woman, would also more often than not,
want to avoid publicity on account of the fear of social
stigma on the family name and family honour. (11)
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The fear of the victim herself being considered to be
promiscuous or in some way responsible for the incident
regardless of her innocence. (12) The reluctance to
face interrogation by the investigating agency to face the
Court, to face the cross examination by counsel for the
culprit, and the risk of being disbelieved, acts as a
deterrent. ”
On the basis of the aforesaid position, it was
submitted by the learned APP that delay of 4 days in registration
of FIR in the present case could not be said to be fatal for the
prosecution case.
8. There is no doubt about the fact that when an
incident involves a minor girl child like the victim PW2 in the
present case, the family of the victim may not immediately
approach the Police in respect of such incident. The inclination of
the family would be to avoid making the incident public so that
the victim and the family do not suffer social stigma.
9. In the present case, the incident allegedly took place
on 17/05/2015 at about 12.30 p.m., while FIR was registered
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after 4 days on 21/05/2015 at 3.30 p.m. The complainant PW1
gave a one line explanation for the delay in her evidence by
stating that she did not lodge report earlier due to fear of
defamation of her daughter i.e. the victim PW2. But, it has also
come in her evidence that she had gone to the market with her
motherinlaw when the alleged incident took place. According to
this witness, when she returned home at about 2.00 p.m., she
heard her daughter weeping and upon being asked, she narrated
details of the said incident. The complainant PW1 stated that she
narrated the incident to her motherinlaw and that her motherin
law told about the incident to her husband and fatherinlaw and
that she also told both of them about the incident. There are no
details as to when the complainant PW1 told her husband and
inlaws about the said incident. It has also not come on record
that upon being told about the incident, all of them were in fear
about the defamation of the victim PW2. It appears to be
unnatural that the father and grand parents of the child would
have kept quiet for a long period of 4 days before the report was
lodged about the incident. It is also not the case of the
complainant PW1 that she hesitated for some time and then told
her husband and fatherinlaw about the incident, who then
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immediately caused the report to be lodged. It is also strange that
the father of the child did not approach the Police at all. The one
line explanation sought to be given by the complainant PW1 for
delay in approaching the police does not appear to be convincing,
as no attending circumstances have been explained as to why the
complainant PW1 did not report the matter earlier to the Police.
10. In the case of Siddharth Dagadu Sonde v. State of
Maharashtra ( supra ), upon which reliance is placed by the
learned APP, the delay of 5 days was explained on the basis that
the accused was none other than the uncle of the victim and the
parents of the victim found it difficult to immediately report the
incident to the Police, as it involved a close family member. It had
also come on record in that case, that the mother of the victim
had first confronted the accused (uncle of the victim) when the
accused threatened that if they lodged a complaint against him, he
would commit suicide. Thereafter, the complainant in that case,
with the help of other prosecution witnesses gathered courage to
lodge the report against the accused. In that case, the Court found
that the medical evidence had corroborated the allegations made
by the victim.
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11. But, in the present case, the facts are different and in
the context of the evidence of the other prosecution witnesses,
delay in approaching the Police in the present case has created a
serious doubt about the genuineness of the prosecution case.
12. A perusal of the evidence of the victim PW2 shows
that she was playing along with other children near the Hanuman
Temple on the date of the incident. She claimed that the
appellant came there and asked her to play game of hide and seek
with him and then he took her behind the temple. Thereafter, the
victim has given details of the manner in which the appellant
behaved with her. But, in the crossexamination the victim PW2
has stated that earlier she used to visit the house of the appellant
but due to dispute regarding lane between the two families, the
visiting terms had come to an end. The complainant PW1 has
also stated in crossexamination that there had been exchange of
words between the two families, although she denied the
suggestion that there had been a dispute between the families in
respect of the lane. The complainant PW1 had also stated that
about 10 to 11 years earlier the father of the appellant had raised
objection on construction of wall.
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13. It has also come in the evidence of the complainant
PW1 that there were some improvements made in her evidence
before the Court as compared to her statement given to the Police
after the incident. These omissions were proved through the
crossexamination of the Investigating Officer. The nature of
evidence of the complainant PW1 and her daughter victim PW2
thus shows that there had been a dispute between the families of
the appellant and the victim. The omissions in the evidence of the
complainant PW1 also indicate that there was an attempt by her
to embellish the version. In this context, failure of the prosecution
to examine at least one of the children with whom the victim
PW2 was playing also becomes significant. The place of the
incident was not a house or an enclosed place, but it was a public
place behind the Hanuman Temple. In this situation the
prosecution could have examined an independent witness.
14. As the FIR itself was lodged after 4 days of the
incident, as also because of the nature of the allegations made
against the appellant, there is no medical evidence in the present
case to corroborate the prosecution case. There is nothing on
record to show that the victim PW2 had indeed suffered physical
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abuse due to the said incident. The evidence of PW3 and PW4,
the panch witnesses on spot panchanama shows that they have
not supported the prosecution case. Both these witnesses have
stated that the spot panchanama was not prepared in their
presence. Therefore, this aspect of the prosecution case is also
not proved. The evidence of the Investigating Officer PW6 shows
that he admits not to have recorded the statement of the girl who
was playing with the victim PW2. He also admitted that he had
asked the victim PW2 as to what the appellant had done with
her by specifically naming the appellant. This indicates that the
name of the appellant did not come from the victim PW2 at the
time of recording of her statement. In his statement under section
313 of the Criminal Procedure Code, the appellant stated that he
had been falsely implicated because of dispute pertaining to lane
in the year 2015.
15. The evidence of the prosecution witnesses brings out
the fact that although the incident allegedly took place on
17/05/2015 at about 12.30 p.m., the complaint regarding the
same was lodged by the complainant PW1 for the first time on
21/05/2015 at about 3.30 p.m. In the backdrop of the admissions
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given by the complainant PW1 and the victim PW2 about dispute
between the families of the victim and the appellant (accused),
proper explanation for such a long delay in registration of the FIR
was necessary. But, the complainant PW1 has failed to give a
proper explanation. One line statement about fear of defamation
of her daughter does not appear to be sufficient in the facts and
circumstances of the present case. The complainant PW1 has
failed to give details about when she informed her husband and
inlaws about the said incident and what prompted her on
21/05/2015 to approach the Police at about 3.30 p.m. Since
existence of dispute between the families was admitted both by
the complainant PW1 and the victim PW2, the possibility of false
implication of the appellant cannot be ruled out. There is also no
medical evidence to corroborate the prosecution case. The
Investigating Officer failed to record statement of the children
with whom the victim PW2 was playing when the incident
allegedly occurred and the spot panchanama has also not been
proved satisfactorily as both the panch witnesses turned hostile.
16. In these circumstances, it appears to be unsafe to
convict the appellant for the offences with which he was charged.
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The Trial Court has merely stated that it found the explanation for
delay in registration of FIR to be satisfactorily explained by the
complainant PW1. There is no discussion in the impugned
judgment and order as to why there was such a delay of 4 days in
approaching the Police when the Police Station was admittedly
situated at a distance of about one to one and half kilometers from
the house of the complainant PW1. There is no explanation on
record as to why the husband of the complainant PW1 and the
father of the victim PW2 had no role to play in the present case,
although it pertained to serious offence of sexual abuse against his
own daughter. All these circumstances show that the verdict of
guilty pronounced by the Trial Court against the appellant is not
sustainable.
17. Accordingly, the instant appeal is allowed. The
impugned judgment and order is set aside and the appellant is
acquitted of the offences with which he was charged.
Consequently, the appellant shall be released from custody
forthwith, unless required in any other case.
JUDGE
KHUNTE
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