Ronita Biswas | National Law University, Orissa | 6th January 2020
Baburao @ Sagar Rupaji Dhuri v. The State of Maharashtra (Criminal Appeal No. 1068 of 2018 in POCSO SPL. Case No. 295 of 2015)
Matter
As per Rule-33(7) of the POCSO Act, identity of the victim as well as all the family members, relatives, neighbourhood or any other information by which the identity of the victim is revealed is required to be concealed. Hence, the important witnesses were referred –
PW1- Informant and mother of the victim as, -“P”
PW2- Victim as, -“G”
PW3- Victim’s neighbour and an eye witness as, -”M”
PW4- Panch witness and husband of PW3 as, -“M.M”
PW6- Neighbour of the victim and an eye witness as, -“G.R.”
On 18th April, 2015 five and a half year old victim residing at Powai, Mumbai went to play with a small boy named Babu in the neighbourhood. PW3-M is the relative of the informant PW1-P. The victim is the daughter of P. PW6- G.R., a 16 year old boy asked PW3-M to see what the Appellant was doing. When PW3-M went at the backside of the house of one Sawant and peeped in the house through a space in the door, she noticed that the victim was made to lie on the ground in a prone position while the Appellant was lying on her person. Suspecting some foul play, PW3-M knocked the front door and raised alarm by calling the victim’s name. The victim came out after five minutes. PW3-M took her to her home and asked as to what the Appellant was doing. The victim told when she went in search of Babu for playing, the Appellant took her in the house, bolted the door from inside and then pulled her slacks down and made her lie in prone position on the ground. He put his penis in her anus and was moving it. She further said that the Appellant called her on the pretext that he will show her songs on his mobile. The Appellant lived in the house of his maternal aunt, Mrs. Sawant, who was residing in front of the house of PW3-M. PW3-M immediately asked brother of the victim to call his mother. When victim’s mother “P” (informant) came to the house, P.W.3-M and the victim narrated the incident to her. Someone called the Police who came over there and took away the appellant.
Subsequently, FIR was registered at the Powai Police Station against the Appellant u/s 377 and 342 of IPC and u/s 4, 8 and 12 of the POCSO Act. After investigation, the Investigating Officer laid a charge-sheet in the Court of Special Judge, Mumbai under sections 376, 342, 366A, 377 of the Indian Penal Code r/w sections 6 and 10 of the POCSO Act. The Special Judge convicted the Appellant u/s 6 of the POCSO Act and was sentenced to suffer rigorous punishment for ten years with a fine of Rs. 1000. The Appellant had also been convicted of an offence punishable under s. 342 of IPC and sentenced to suffer rigorous punishment for one year. . The Appellant had been directed to pay compensation of Rs. 25,000 to the victim as per s. 33(8) of the POCSO Act.
Aggrieved by the verdict, the Appellant challenged the judgement before the High Court.
Appellant’s contention
The counsel for the Appellant contended that there was no medical evidence of the victim suggesting that she was sexually assaulted or molested by the Appellant. The evidence of the informant PW1-P was merely hearsay and was inadmissible in the Court. It was further contended that the Forensic Science Laboratory Report revealed that no male DNA was detected in vulva swab or anal swab of the victim. In the given circumstances, the case would fall under s. 7 of the POCSO Act which was punishable under s. 8 of the Act.
Respondent’s contention
The counsel for the Respondent contended that there was no need to refer to the medical evidence as the Appellant was just interrupted when he was about to insert his penis in the anus of the victim. He was about to commit an offence provided under s. 3 of the POCSO Act.
The Public Prosecutor contended that nothing was found in the cross-examination of PW3-M which rendered her testimony unreliable. There was no enmity between the victim and victim’s family and that of the Appellant. It was further submitted that no mother or parents would risk reputation of the family by involving their child risking its future. The Appellant betrayed the trust of the victim who used to refer him as Dada (elder brother). The Public Prosecutor referred to s. 18 of the POCSO Act which is a punishment for attempting to commit an offence.
The Public Prosecutor ascertained that the victim was fully aware of the situation and understood the sanctity of oath. At the time of her evidence, she was aged about eight years. She testified that on the day of the incident, her mother dropped her at the house of PW3-M and left for market. She had gone to call one Babu Dada (another child), her friend with whom she used to play. However, she came to know that Babu Dada was not at home.
The Appellant to who she referred as Sagar Dada called her at his maternal aunt’s house and bolted both the doors of the room. He then took off her clothes i.e full Shirt and Legging. He took off his clothes. Her evidence further reveals that the appellant inserted his “Nunni” (penis) in her “bocha” (anus). It was specifically asked as to the meaning of “Nunni” to which she answered that it is a place of urination by pointing her finger towards her place of urination. While answering the question as to what is meaning of “Bocha”, P.W.2-G pointed her backside by stating that it is a place of toilet. She further testified that Mothi Mummy knocked the door referring to P.W.3M. Thereafter, the Appellant put on her clothes and opened the door. There is no dispute about identity of the appellant. P.W.2-G had identified Aboli colour T Shirt and Blue Colour Legging which were on her person at the time of the incident.
The testimony of the victim was corroborated in materials by PW6-G.R., was a natural and chance witness who had no axe to grind against the Appellant and there was no reason for him to give false evidence. The testimony of this witness was confirmed by PW3-M. PW3-M recollected the exact words uttered by PW6-G.R “sister see what Sagar is doing with the victim.”
Held
The Court held that the victim, PW2-G called the Appellant as Dada, meaning, she had full faith and respect towards the Appellant to that of an elder brother. The Appellant betrayed her trust by molesting her. It was apparent that the Appellant was about to commit aggravated penetrative sexual assault on the victim but due to intervention of PW3-M, he could not succeed in his nefarious design. Therefore, the act was in fact was about to be accomplished by him since he had already started movements of his penis over the posterior part of the victim. The Appellant did an attempt of committing aggravated penetrative sexual assault.
The Court also found that there was no question of reformation of the Appellant as he was quite a grown up male who knew the consequences of his act. The Court found the verdict of the Trial Court correct and did not interfere with the same. Reliance was placed on the case of Madan Gopal v. Naval Dubey (AIR 1992 SCW 1480) and Shyam Narain v. State of NCT of Delhi (2013 Cri L J 3009). The Court made it clear that sexual offenders against children are a menace to the civilized society and therefore, would be punished mercilessly and inexorably.
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