Wednesday, 3 February 2016

When accused can not take benefit of violation of provision of POCSO Act by police?

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.
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.]

Print Page

No comments:

Post a Comment