Case Note & Summary
The High Court of Judicature at Bombay considered three criminal appeals arising from a common judgment of the Additional Sessions Judge, Raigad-Alibag, dated 28th October 2014. The trial court convicted accused No.1, a teacher, for offences including rape under Section 376(2)(b) IPC read with Sections 5(c) and 6 of the POCSO Act, and for outraging modesty, child pornography, and wrongful confinement under Sections 292, 509, 342, 354 IPC and Sections 14, 17 POCSO Act and Section 67B of the IT Act. Accused No.2, the headmistress, was convicted for similar offences with the addition of abetment under Section 109 IPC. Both were sentenced to rigorous imprisonment and fines, with sentences running concurrently. The prosecution case was that the victim girl, a 5th standard student, was called by accused No.1 to a classroom, given chocolate, laid on a bench, and obscene photographs of her chest and private parts were taken on a mobile phone. In a supplemental statement, the victim alleged that accused No.2 bolted the computer room from outside while accused No.1 committed rape. The FIR was lodged on 20th January 2013, and investigation led to charge-sheet. Appeals were filed by the accused challenging conviction on grounds of contradictions in evidence, lack of medical corroboration, false implication due to village rivalry, and improper appreciation of evidence. The State also filed an appeal for enhancement of sentence. The High Court heard the appeals together, and the judgment was reserved on 23rd October 2018 and pronounced on 2nd November 2018. The extracted portion of the judgment includes the factual matrix, procedural history, and the arguments advanced by the counsel for accused No.2, but does not include the court's analysis or final decision.
Issue of Consideration
Whether the trial court's conviction of the accused under various sections of IPC, POCSO Act, and IT Act is sustainable based on the evidence on record; whether the sentence should be enhanced
Case Details
2018 LawText (BOM) (11) 50
Criminal Appeal No. 935 of 2014 with Criminal Appeal No. 921 of 2014 with Criminal Appeal No. 292 of 2015
S. S. Shinde, A. S. Gadkari
Mahesh Vaswani, Jagdish Shetty, Dharni Nagda, Sophia Hasan, Sathyanarayanan, M.H. Mhatre
Vanita Vasant Patil, Datta Somnath Jadhav, The State of Maharashtra
The State of Maharashtra, Victim Girl Y, Datta Somnath Jadhav, Vanita Vasant Patil
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Nature of Litigation
Criminal appeals against conviction and sentence for sexual offences under IPC, POCSO Act, and IT Act, and state appeal for enhancement of sentence.
Remedy Sought
Accused seek acquittal; State seeks enhanced punishment.
Filing Reason
Allegation that the victim girl was sexually assaulted, photographed obscenely, and wrongfully confined by the school teacher and headmistress; the accused challenge the conviction based on contradictions and false implication.
Previous Decisions
Trial Court convicted accused No.1 for offences under Sections 376(2)(b), 292, 509, 342, 354 IPC, Sections 5(c)/6, 14 POCSO Act, and Section 67B IT Act, and accused No.2 under similar sections with Section 109 IPC, sentencing them to rigorous imprisonment and fines, all sentences to run concurrently.
Issues
Whether the testimony of the victim girl is credible in light of contradictions with medical evidence and absence of injuries?
Whether the prosecution has proved the place of incident consistently given divergent descriptions by witnesses?
Whether the conviction under POCSO and IPC is sustainable given the alleged inconsistencies and possibility of false implication?
Whether the sentence is adequate or should be enhanced?
Submissions/Arguments
Victim girl falsely implicated the appellant; no injury marks or bleeding; medical officer (PW14) stated no external injury and hymen intact, making the victim's version contrary to medical evidence.
Incident allegedly occurred on a Sunday when school remains closed, which is improbable; politically motivated false implication due to village rivalry and staff disputes.
Possibility of tutoring cannot be ruled out because Sarpanch was present during FIR lodging and mother was present during recording of evidence in camera.
Prosecution witnesses have not stated exact day, month; their versions are inconsistent regarding occurrence; material contradiction about place of incident (6th-A classroom vs. computer room vs. rice room vs. 7th-A classroom).
Prosecution did not examine any teacher as witness; reliance placed on Pratap Misra v. State of Orissa, Amar Singh v. State of Punjab, Jai Ram Prasad Singh v. State of Bihar, and Sham Singh v. State of Haryana.
Judgment Excerpts
Then accused No.1 bolted the said class room from inside and gave Kachha Aam chocolate to the informant and kept the informant on a bench by saying that he wants to snap her photographs. Then accused No.1 laid the informant on the bench and removed her clothes and snapped photographs of the chest and private part of the informant on his mobile by assuring to give money. (Para 5[A])
PI Patil recorded the supplementary statement of the informant in which informant stated that accused No.2 bolted the door of computer room from outside, and accused No.1 committed rape on her and also snapped the photograph of her breast and private part. (Para 5[B])
Even the Medical Officer (PW14) who examined the victim girl has specifically stated that the victim girl was not having any external injury on any part of the body including private part and her hymen was intact, and therefore the version of PW1 victim girl is unbelievable. (Para 7)
Neither the informant nor the prosecution witnesses have stated the exact day, month of incident and also their versions are inconsistent with each other regarding occurrence of the incident. (Para 8)
There is a material contradiction about the place of the incident in the evidence of the victim and other prosecution witnesses. The informant has stated that alleged incident of snapping obscene photographs took place in 6th – A class room and alleged incident of sexual assault took place in computer room. However, PW2 stated that the alleged incident took place in rice room... PW4 stated that alleged incident took place in 7th – A class room. (Para 9)
Procedural History
The informant/victim girl lodged a report at Uran Police Station on 20th January 2013, leading to registration of Crime No.12 of 2013. Investigation was conducted by PI T.D. Patil, who recorded supplementary statements, prepared spot panchnama, and sent the victim and accused for medical examination. Accused No.1 was found capable of sexual intercourse. Mobiles and clothing were seized. After completion of investigation, charge-sheet was filed before JMFC, Uran, who committed the case as R.C.C. No.53/2013 to the Sessions Court for trial. Charges were framed against both accused under various provisions of IPC, POCSO Act, and IT Act. The trial court convicted and sentenced the accused as detailed. Criminal Appeals No.921/2014 and No.935/2014 were filed by the accused challenging conviction; Criminal Appeal No.292/2015 was filed by the State for enhancement of sentence. The High Court heard all appeals together and the judgment was pronounced on 2nd November 2018.
Acts & Sections
- Indian Penal Code, 1860: 376(2)(b), 109, 292, 509, 342, 354
- Protection of Children from Sexual Offences Act, 2012: 5(c), 6, 14, 17
- Information Technology Act, 2000: 67B
