"24. Recording of statement of a child.
(1) The statement of the child shall be
recorded at the residence of the child or
at a place where he usually resides or at
the place of his choice and as far as
practicable by a woman police officer not
below the rank of subinspector.
(2) The police officer while recording
the statement of the child shall not be
in uniform”.
(3) The police officer making the
investigation, shall, while examining the
child, ensure that at no point of time
the child come in the contact in any way
with the accused.
(4) No child shall be detained in the
police station in the night for any
reason.
(5) The police officer shall ensure that
the identity of the child is protected
from the public media, unless otherwise
directed by the Special Court in the
interest of the child.”
It is to be noted that said provisions are
made for benefit of the victim and not for benefit
of the accused. It would not lie in the mouth of
the accused that the breach of the provisions,
ultimately, would vitiate the trial. It is provided
under the said provisions that the statement of the
victim child shall be recorded usually at her place
of residence, as far as practicable by a woman
police officer not below the rank of subinspector;
and the police officer, while recording the
statement, shall not be in uniform.
13] In fact, the investigating agency requires to
be sensitive in such matters. The object and
purpose of the said provisions is to see that the
child, who has already been victimized by the
perpetrator of the crime, should not be subjected
to recording of statement at the police station by
a male officer in uniform thereby again making her
uncomfortable and causing mental trauma. In that
view of the matter, though the procedure prescribed
under Section 24 of POCSO Act, is not followed, it
can not be used to benefit the accused.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.261 OF 2014
Damodhar s/o. Himtaji Dongre,
Versus
The State of Maharashtra,
CORAM : M.T. JOSHI, J.
DATE : AUGUST 12, 2015
Citation; 2015 ALLMR(cri)4825
2] The appellant, who is convicted by learned
Addl. Sessions Judge/Special Judge, Majalgaon in
Sessions Case No.47 of 2013, vide judgment and
order dated 10th April, 2014, for the offences
punishable under Section 376 read with 511 of
Indian Penal Code and Sections 4 and 8 of the
Protection of Children from Sexual Offences Act
(for short, “POCSO Act”) and sentenced to suffer
rigorous imprisonment for seven years on account
of offence punishable under Section 376 read with
511 of Indian Penal Code and Section 4 of POCSO
Act; and for three years on account of offence
punishable under Section 8 of POCSO Act, with a
direction to pay fine, has preferred present
appeal.
3] The prosecution case would reveal that the
present appellant as well as the family of the
victim girl, who was seven years old at the time
of the incident, were residing in the fields in
the neighborhood.
. According to the complaint of PW 2
grandmother of the victim, on 5th May, 2013, while
she was returning back to her house after taking
milk from the appellant, her pot slipped from her
hands and the milk was lost. Present appellant
came to know of the same. Therefore, he went to
the house of PW 2 grandmother and advised that
if the victim girl is sent to his place, he would
give some milk with her. Accordingly, the
grandmother sent the victim girl with the
appellant to his field where, shegoats were tied
by him. However, for a considerable period, the
victim girl did not return to the house and
therefore, grandmother of the victim girl sent her
another son i.e. PW 3 to find out as to what has
happened. Thereafter, PW 3 saw that under a
tree, present appellant has made the victim girl
to lie on the ground and he was lying over her.
At that time, the victim girl was weeping.
Therefore, PW 3 dragged the appellant from the
person of the victim girl. By that time, it was
found that the nicker of the victim girl was
removed and present appellant had also removed his
Dhoti. In the circumstances, PW 3 brought the
victim girl to the house.
. When the grandmother inquired with the victim
girl, she told that present appellant removed her
nicker, made her to lie on the ground and
thereafter, he also slept over her. In the
circumstances, FIR came to be filed on the same
day i.e. 5th May, 2013.
. Thereafter, regular investigation was carried
by PW 6 – Ramakant Panchal, A.P.I. He sent the
victim for medical examination. Her statement was
recorded. The appellant was arrested and sent for
medical examination. Necessary panchnamas were
recorded. Statements of witnesses including PW 3
were recorded. The property was sent for chemical
analysis and ultimately, the charge sheet was
filed.
4] Before learned Special Judge, besides other
witnesses, PW 1 victim girl, PW 2 grandmother
of the victim girl, who had filed the FIR
(Exhibit14) and PW 3 uncle of the victim girl
were examined. There is no need to advert to the
medical evidence or the Chemical Analyst's report
as the prosecution case is of attempt to commit
rape. All the three witnesses, detailed supra,
deposed on the prosecution line.
5] The defence of the appellant, as can be seen
on the line of his statement under Section 313 of
the Code of Criminal Procedure, is that on the day
of the incident, there was marriage of Namdeo, son
of Nanabhau (brother of appellant) at village
Babhalgaon. There was dispute between the family
of victim girl and the family of appellant over
taking water from public hand pump. Due to that
dispute, the family members of the victim girl
were not invited to the marriage and therefore, in
order to take revenge, present appellant is
involved in a false case, though, in fact, on the
day of alleged incident, the appellant and his
relatives had already gone for marriage of Namdev.
6] Leaned Special Judge, however, found that the
prosecution evidence is reliable and therefore,
conviction and sentence, as detailed supra, came
to be recorded against the appellant.
7] Mr.Solanke, learned counsel for the appellant,
submits that though the provisions under Section
24 of the POCSO Act provide that the statement of
the victim child shall be recorded usually at her
place of residence, as far as practicable by a
woman police officer not below the rank of subinspector;
and the police officer, while recording
the statement, shall not be in uniform, the
statement of the victim girl would show that it
was recorded by a male police constable who was in
uniform. He further took me through the
testimonies of the witnesses and pointed out
certain contradictions. He invited my attention to
the statement of the victim girl recorded before
the court wherein, she has deposed that her mother
had sent her to bring the milk from the house of
the appellant while, the FIR and evidence of the
grandmother, would show that present appellant had
advised the grandmother of the victim, to send the
victim to his house. He further submits that due
to previous enmity, present appellant, who was
seventy years of age at the time of the alleged
incident, has been involved in a false case.
8] Mr.Solanke, learned counsel for the appellant,
alternatively submits that the offence punishable
under Section 376 of Indian Penal Code provides
for a minimum sentence of seven years rigorous
imprisonment or imprisonment for life and attempt
to commit an offence punishable under Section 511
of Indian Penal Code, provides for half of the
substantive sentence. He further submits that the
ingredients of Section 4 of the POCSO Act i.e.
penetrative sexual assault, are not made out by
the prosecution. In the circumstances, he submits
that as the appellant is presently 75 years old,
leniency in awarding the sentence ought to have
been given by learned Special Judge.
9] Learned APP, however, opposed all the pleas.
According to him the provisions of Section 24 of
POCSO Act, are not mandatory. It provides that
the conditions prescribed thereunder are to be
followed “as far as practicable”. At any rate,
breach thereof would not vitiate the trial. He
further submits that the defence of the appellant
is not, at all, probable. The suggestions
regarding the defence of the appellant, are
clearly denied by relevant prosecution witnesses.
He submits that the honour of the family and more
particularly, of a seven years old girl, would not
be put to stake by her family members to involve
the seventy years old man in a false case. He
further submitted that the fact that a seventy
years old man had attempted to commit rape, would
show his depravity and therefore, he submits that
the appeal may be dismissed.
10] On the basis of this material, following
points arise for my determination :
I] Whether the prosecution has proved
that on 5th May, 2013 at about 9:30 a.m.
at village Hingni (Bk), present appellant
attempted to commit rape on the minor
victim girl ?
II] Whether the prosecution has further
proved that on the given date, time and
place, the appellant committed offence of
penetrative sexual assault on the victim
girl ?
III] Whether the prosecution has further
proved that on the given date, time and
place, the appellant, with a sexual
intention, removed undergarment of the
victim girl and also removed his Dhoti
with a view to commit sexual assault ?
IV] Whether interference in the sentence
is required ?
. My findings as to point I, is in the
affirmative; as to point II, in the negative; and
as to points III and IV, in the affirmative. The
appeal is, therefore, partly allowed on the lines
of the final order, for the reasons to follow.
R E A S O N S
11] The statements of PW 1, PW 2 and PW 3 are not
shattered in the crossexamination. The defence of
the appellant was denied by them. The FIR was filed
on the day of the incident itself. In the
circumstances, the statement of the victim girl not
only inspire confidence, but is corroborated by her
grandmother by immediately filing the FIR.
Therefore, so far as the facts of the case are
concerned, I concur with the reasons given by
learned Special Judge.
12] Section 24 of the POCSO Act runs as under :
"24. Recording of statement of a child.
(1) The statement of the child shall be
recorded at the residence of the child or
at a place where he usually resides or at
the place of his choice and as far as
practicable by a woman police officer not
below the rank of subinspector.
(2) The police officer while recording
the statement of the child shall not be
in uniform”.
(3) The police officer making the
investigation, shall, while examining the
child, ensure that at no point of time
the child come in the contact in any way
with the accused.
(4) No child shall be detained in the
police station in the night for any
reason.
(5) The police officer shall ensure that
the identity of the child is protected
from the public media, unless otherwise
directed by the Special Court in the
interest of the child.”
It is to be noted that said provisions are
made for benefit of the victim and not for benefit
of the accused. It would not lie in the mouth of
the accused that the breach of the provisions,
ultimately, would vitiate the trial. It is provided
under the said provisions that the statement of the
victim child shall be recorded usually at her place
of residence, as far as practicable by a woman
police officer not below the rank of subinspector;
and the police officer, while recording the
statement, shall not be in uniform.
13] In fact, the investigating agency requires to
be sensitive in such matters. The object and
purpose of the said provisions is to see that the
child, who has already been victimized by the
perpetrator of the crime, should not be subjected
to recording of statement at the police station by
a male officer in uniform thereby again making her
uncomfortable and causing mental trauma. In that
view of the matter, though the procedure prescribed
under Section 24 of POCSO Act, is not followed, it
can not be used to benefit the accused.
14] It is, however, clear that the prosecution
case is not of penetrative assault, which is
punishable under Section 4 of the POCSO Act, which
runs as under :
"4. Punishment for penetrative sexual
assault. Whoever commits penetrative
sexual assault shall be punished with
imprisonment of either description for a
term which shall not be less than seven
years but which may extend to
imprisonment for life, and shall also be
liable to fine.
15] It is, therefore, clear that the offence
punishable under Section 4 of the POCSO Act, is not
applicable in the present case.
16] In the circumstances, considering the age of
the appellant, who is now seventy five years old,
and the fact that he is behind the bars since 5th
May, 2013, in my view, following order would meet
the ends of justice.
ORDER
A] The appeal is partly allowed.
B] The impugned judgment and order dated 10th
April, 2014 passed by learned Addl. Sessions
Judge/Special Judge, Majalgaon in Sessions Case
No.47 of 2013, convicting the present appellant for
the offence punishable under Section 4 of the POCSO
Act, is hereby set aside. Instead, he is acquitted
from the said offence.
C] However, conviction of the appellant recorded
vide the impugned judgment for the offences
punishable under Section 376 read with 511 of
Indian Penal Code and Section 8 of POCSO Act, is
hereby confirmed.
D] The sentence of rigorous imprisonment for
seven years and direction to pay fine of
Rs.1,000/, in default to suffer rigorous
imprisonment for six months for the offences
punishable under Section 376 read with 511 of
Indian Penal Code; and sentence of rigorous
imprisonment for three years and to pay fine of
Rs.500/, in default to suffer rigorous
imprisonment for three months for the offence
punishable under Section 8 of POCSO Act, are hereby
set aside.
. Instead, it is hereby directed that the
appellant shall suffer rigorous imprisonment for
three years and shall pay a fine of Rs.1,000/, in
default, shall suffer rigorous imprisonment for two
months for the offences punishable under Section
376 read with 511 of Indian Penal Code.
. For the offence punishable under Section 8 of
the POCSO Act, the appellant shall suffer rigorous
imprisonment for two years and to pay a fine of
Rs.500/, in default, to suffer rigorous
imprisonment for one months.
E] Both the substantive sentences shall run
concurrently.
F] As the appellant is in custody since 5th May,
2013, set off be given as per the rules.
G] Muddemal property be disposed of as per the
directions issued by learned Addl. Sessions
Judge/Special Judge, Majalgaon.
[M.T. JOSHI, J.]
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