State..Vs..Dipak 1 Spl. Cri.(Child)Case No.

413/2020 (Judgment)

MHNG010057782020 Presented on : 30-07-2020

Registered on : 30-07-2020
Decided on : 22-06-2022
Duration : Ys. Ms. Ds
01 05 22

IN THE COURT OF EXTRA JOINT ADDITIONAL SESSIONS

JUDGE (SPECIAL JUDGE, POCSO COURT),NAGPUR .

(PRESIDED OVER BY R.P.PANDE)

Spl.Cri.(Child) Case No.413/2020. EXH.NO. 30

PROSECUTION : State of Maharashtra

Through Police Station Officer,
Police Station Butibori,
District-Nagpur

VER SUS
ACCUSED : Dipak Tukaram Thawre,
aged about 54 years,
Occupation : Labour
R/o Quarter No.117, MHADA
Colony, Butibori, District-Nagpur.
---------------- -------- ------------------------
APPEARANCES :
Smt. Aaswari Parsodkar and Shri Shyam Khule, Addl. Public
Prosecutor for State.
Shri S.G.Karmarkar, Advocate for the accused.
----------------------------------------- ------- ---
ORAL JUDGMENT
(DELIVERED ON 22/06/2022)
The accused faced trial for the offence of outrage of
modesty and sexual assault punishable under sections 354 and 354-
A of the Indian Penal Code and under section 8 of the Prevention of
Children from Sexual Offences Act, 2012. Case of the prosecution,
in brief, is as under :
State..Vs..Dipak 2 Spl. Cri.(Child)Case No.413/2020 (Judgment)

02. Victim is a small girl child of 2½ years. The accused

is a neighbour of victim. His house is in front of house of victim.
On 29.02.2020 mother of the victim came out of her house to throw
away waste water. It was a noon time around 1.00 to 1.30 p.m.
Informant found the accused sitting on a table in front of his house.
Victim was on the chair in front of accused. Accused had given his
penis in the hands of victim and it is noticed by mother of the
victim. Mother scolded victim and as such neighbouring women
gathered on the spot.

03. In the evening, mother narrated incident to her husband.

Husband went to the house of accused and scolded him. Parents of
the victim were afraid that they will be defamed in the society and
hence they kept mum for some days. However, they realized that
the accused is their neighbour. If report is not lodged, he will again
do similar act with her daughter or any other girl in the locality and
hence, report is lodged on 6.3.2020.

04. After receipt of report, crime is registered and handed

over to PSI-Varsha Mate for investigation. PSI-Varsha Mate made
correspondence with Forest Department for deputation of two
employees as panch witnesses. She then issued summons to both
panchas and drawn spot panchnama in their presence. Photographs
of scene of offence are also taken at that time. Thereafter, she
forwarded victim for medical examination. Accused is arrested and
forwarded for medical examination. Investigating Officer got
statement of victim recorded u/s 164 of Cr.P.C. through Magistrate.
State..Vs..Dipak 3 Spl. Cri.(Child)Case No.413/2020 (Judgment)

She collected birth certificate of the victim and recorded statement

of the witnesses. After completion of investigation, she filed
chargesheet against the accused under sections 354 and 354-A of
the Indian Penal Code and under section 8 of the Protection of
Children from Sexual Offences Act, 2012.

05. I framed charge at Exhibit 3 against the accused under

sections 354, 354-A of the Indian Penal Code and under section 8
of the Protection of Children from Sexual Offences Act, 2012.
Contents of the charge are read over and explained to the accused in
vernacular. Accused refused to plead guilty. He claimed trial.
Accordingly, plea of the accused is recorded at Exh.4.

06. Prosecution examined in all three witnesses in support

of its case. Some incriminating circumstances appeared against the
accused in the prosecution evidence and therefore, I recorded
statement of accused under Section 313 of the Code of Criminal
procedure in order to give him an opportunity to explain those
circumstances. On behalf of the accused, one defence witness
Gautam Dhoke (DW-1) is examined. Defence of the accused, as it
appears from the record, is denial of prosecution case and false
implication.

SUBMISSIONS

07 . On behalf of prosecution it is argued that the accused

made victim of 2½ years to touch his penis in his courtyard.
Victim is a small child of 2½ years. Her date of birth is proved by
State..Vs..Dipak 4 Spl. Cri.(Child)Case No.413/2020 (Judgment)

the prosecution. Date of birth of the victim is 7.10.1977. Incident

took place on 29.02.2020. Therefore, at the time of incident, victim
was only 2 years and 4 months old. Mother and neighbour are eye
witnesses. Victim was made to sit on chair and accused was on
table. The touch to penis is proved by the prosecution, though there
is no penetration. The mother lifted shirt of the accused. His penis
was out of his clothing. It was in the hands of victim. In such
circumstances, accused is liable for conviction.

08. Defence raised by the accused is improbable and false.

Merely because the accused failed to purchase illicit petrol from
father of the victim can not be a ground for false implication. When
mother is an eye witness, how can it be said that the accused is
falsely implicated in the case?. Moreover, neighbour supported
testimony of mother of victim. In such circumstances, defence is
improbable.

09. Neighbour was proceeding to the house of accused to

help cooking as there was some function in his house. Defence
witness admits presence of accused in the courtyard. It has also
come on record from the evidence of defence witness that victim
was also there in the courtyard at that time.

10. Prosecution did not examine victim because she is so

small child that she is unable to speak before the Court. She is
absolutely innocent. Therefore, mother and neighbour have proved
offence of sexual harassment against the accused. Thus, they both
State..Vs..Dipak 5 Spl. Cri.(Child)Case No.413/2020 (Judgment)

are eye witnesses.

11. On the point of delay, it is argued that delay caused in

lodging report is explained in FIR. It is out of fear of defamation
immediately report is not lodged against the accused. In such
circumstances, delay is not fatal to the prosecution.

12. To counter above argument, it is argued by defence that

witnesses are unreliable. There is considerable delay in lodging
FIR. Delay is not properly explained by the prosecution. Chair and
table are not seized by the police during course of investigation,
therefore, prosecution case is improbable.

13. It is further argued that there was some function in the

house of accused and guests were present. Prosecution failed to
examine those guests to support its case. Defence witness Gautam
Dhoke was present as a guest at that time. He is examined by the
accused and he denied incident. In such circumstances, accused be
acquitted.

14. It is also argued that husband of informant was in habit

of selling stolen petrol and hence, he is removed from job. Husband
of informant was selling illicit petrol to the accused. Accused
stopped buying petrol from him and therefore, he is falsely
implicated in this case.
State..Vs..Dipak 6 Spl. Cri.(Child)Case No.413/2020 (Judgment)

15. Witness Priyanka Pawan Sonwane is not neighbour of

victim and accused. She is tutored witness. More so, other two
women named in FIR are not examined by the prosecution. There
are contradictions in the evidence of PW-1 and 2 and hence, their
testimony is unreliable.

16. Investigating Officer did not collect any evidence to

show why there is delay of six days. Investigating Officer did not
record statement of neighbour Maya Tembhurne and Milind. Even
Investigating Officer failed to record statement of guests in the
house of accused and passerby, therefore, investigation is not fair.

17. Evidence of defence witness Gautam Dhoke is more

reliable to falsify prosecution case. Accused is aged person having
family. He resides with his family. There is no case of the
prosecution that the accused is Psychic. Considering all these facts
and circumstances, the accused be acquitted.

18. From above facts and circumstances of the case,

following points arise for my determination. I record my findings
thereon as under :

POINTS FINDINGS
01. Does the prosecution proves that on
29.02.2020 between 1.00 to 1.30 p.m. in
Quarter No.117,MHADA colony, Butibori,
the accused outraged modesty of victim by
use of criminal force? ….Proved.
State..Vs..Dipak 7 Spl. Cri.(Child)Case No.413/2020 (Judgment)

02. Does the prosecution proves that on

aforesaid date, time and place, the accused
sexually harassed victim by physical
contact? ….Proved.

03. Does the prosecution proves that on

aforesaid date, time and place, the accused
asked victim to touch his penis and
thereby committed an offence of sexual
assault? ….Proved.

04. What Order? ...Accused is

convicted.
REASONS

19. Prosecution examined mother-S of the victim

(PW-1) (Exh.7) who proved FIR (Exh.8) and birth certificate of
the victim (Exh.9). Prosecution examined one neighbour namely
Priyanka Pawan Sonwane (PW-2) (Exh.11) as an eye witness.
Third witness is PSI-Varsha Ashok Mate (PW-3) (Exh.14). This
witness conducted investigation. During investigation, she made
correspondence and drawn spot panchnama. The photographs of
scene of offence are taken. Victim and accused are forwarded for
medical examination. She got statement of victim recorded under
section 164 of the Code of Criminal Procedure by making
correspondence. She even collected birth certificate by issuing
letter to Gram Panchayat (Exh.15 to 23). Prosecution closed
evidence vide pursis at Exh.24. On behalf of accused, one Gautam
Charandas Dhoke (DW-1)(Exh.28) is examined as defence
witness. The accused closed evidence vide pursis at Exh.29. With
this background, I discuss available evidence on record.
State..Vs..Dipak 8 Spl. Cri.(Child)Case No.413/2020 (Judgment)

AS TO POINT NOS.1 TO 3 :

20. There are in all three witnesses examined by the

prosecution. Out of them, two witnesses are eye witnesses and
third witness is Investigating Officer.

21. As regards, age of the victim, the prosecution proved

birth certificate of the victim through evidence of her mother (PW-
1). Mother deposed that date of birth of victim is 7.10.2017. Birth
certificate on record shows that date of birth of victim is 7.10.2017.
Incident took place on 29.02.2020. Thus, on the date of incident,
victim was just 3 years and 4 months only. It is due to this reason,
the prosecution could not examine victim before the Court, as she is
too small to narrate incident before the Court.

22. As per mother, when she came out of house to throw

away waste water, the accused was found sitting in the courtyard of
his house. Victim was sitting on chair in front of accused. It is
further deposed that the accused had given his penis in the hands of
victim. It is worth to mention that house of the accused is in front
of house of victim. There is way passing between two houses. The
house and courtyard of house of accused is visible from the house
of victim. Although, both houses has got some fencing, the
courtyard of house of accused is still visible from the house and
courtyard of victim.

23. When mother shouted and scolded the accused, two

women gathered namely Kalyani and Priya. Out of these two
State..Vs..Dipak 9 Spl. Cri.(Child)Case No.413/2020 (Judgment)

women, the prosecution examined Priya.

24. It is deposed by Priya @ Priyanka Pawan Sonwane

(PW-2) that incident took place on 29.02.2020 around 1.00 p.m.
This witness was proceeding to the house of accused only to help
cooking because there was some religious function in the house of
accused. She noticed that mother of victim was shouting. Mother
asked the accused what victim is doing. Mother then called inmates
of house of the accused. One elderly person came out of house of
the accused. Mother lifted shirt of the accused and found that penis
of the accused was out of his clothing. The accused was sitting on
table while victim was sitting in front of him on chair. The distance
between two, was one stretch palm only as deposed by Priyanka
(PW-2).

25. Learned Advocate for the accused tried to bring on

record omission in evidence of Priyanka that she did not tell to
police that she was going to the house of accused to help cooking.
What omission is brought forth on record is word 'help'. However,
this witness has narrated before police that she was going to the
house of accused for cooking. Only word 'help' is missing.
Assuming for a moment, there is omission to the extent of word
'help', her presence on the spot is admitted to the accused. The
defence does not dispute that, Priyanka was going to the house of
accused for the purpose of cooking.
State..Vs..Dipak 10 Spl. Cri.(Child)Case No.413/2020 (Judgment)

26. The evidence of mother of victim and Priyanka is

consistent as regards actual act committed by the accused. Mother
deposed that the accused had given his penis in the hand of victim
who is just aged about 2 years and 4 months. In presence of
Priyanka, informant lifted shirt of the accused and noticed penis of
the accused was out of his clothing. This evidence of witness is
sufficient to hold that the accused outraged modesty of victim and
also made her to touch his penis. Said act of the accused amounts to
sexual assault on the victim.

27. Before I discuss evidence of Investigating Officer, I go

to the evidence of defence witness Gautam Dhoke (DW-1). The
testimony of this witness will have to be appreciated by taking into
consideration the evidence of mother of victim and Priyanka. The
house of accused consists of three rooms only. It is a Quarter of
MHADA. Out of these three rooms, one must be kitchen. Thus,
only two rooms are left for accommodation of guests. DW-1
Gautam Dhoke deposed that there were 50 to 60 guests in the house
of accused. It is quite impossible that 50 to 60 guests are
accommodated in two rooms of house of accused. As per his
evidence, the only person in the courtyard were accused and
witness Gautam Dhoke. 'A small girl was playing besides us', as
deposed by this witness. It is further deposed by him that, mother
of victim came and shouted. Nothing happened.

28. First of all, I discard evidence of this witness because

although there was religious function of 'Mound' pooja in the house
State..Vs..Dipak 11 Spl. Cri.(Child)Case No.413/2020 (Judgment)

of accused, there can not be 50 to 60 guests, as deposed by DW-1

Gautam Dhoke. Mother deposed that Gautam Dhoke was not in
the courtyard of house of the accused. Priyanka deposed that
elderly person was inside the house of accused. The evidence of
mother and Priyanka falsifies testimony of defence witness. Had
really there were 50 to 60 guests, some of them might be standing
or sitting in the courtyard of the house of accused.

29. Learned Advocate for the accused attacked on the point

of delay in lodging FIR and therefore it is fatal to the prosecution,
as argued by him. Explanation of delay is not mentioned in FIR.
The above argument is unacceptable because delay is mentioned in
FIR (Exh.8). It is out of fear of defamation, immediate report is not
lodged by mother of victim. It is also mentioned that the accused is
their neighbour. The accused may do similar act either with victim
or any other girl child in the locality and therefore, there is delay in
lodging FIR. The reason for delay is very much mentioned in report
(Exh.8).

30. Further argument of defence is that chair and table are

not seized by Investigating Officer. In fact, non seizure of table and
chair is not fatal to the prosecution case because Investigating
Officer might not have been found seizure of those articles
important for the purpose of investigation, therefore, argument is
unsustainable.
State..Vs..Dipak 12 Spl. Cri.(Child)Case No.413/2020 (Judgment)

31. Learned Advocate for the accused further argued that

there were guests in the house of accused and in presence of those
guests, it is impossible for the accused to commit alleged offence.
Both mother and Priyanka consistently deposed that the accused
was alone present in the courtyard of his house which is invisible
from the house of accused. There were only one guest as deposed
by Priyanka, inside the house of accused, at that time. Assuming
for a moment, there were more guests, those were unable to see
what happened in the courtyard of the house because it is invisible
from the house of accused.

32. Further argument of defence is absolutely fallacious

because there is no reason for mother of victim to implicate the
accused in false case. The argument of defence is that father of the
victim is removed from the job. The accused stopped purchasing
petrol from him, therefore, the accused is implicated in this case. I
am not going to accept this argument because removal of father of
victim from the job has no nexus with crime in question.

33. It is further argued that other neighbours and witnesses

namely Sudhakar and Kalyani are not examined by the prosecution.
In fact, it is a sweet choice of prosecution how much and to whom
to be examined. After all quality of evidence matters and not
quantity.

34. It is also argued that Investigating Officer did not

collect evidence pertaining to delay. I again reiterate that the reason
State..Vs..Dipak 13 Spl. Cri.(Child)Case No.413/2020 (Judgment)

for delay is already mentioned in the report and therefore, there was
no necessity for Investigating Officer to collect any separate
evidence for delay.

35. It is further argued that passerby from the way in front

of the house of accused are not examined. The prosecution
witnesses have deposed that although, there is a way, it has seldom
traffic. Therefore, non examination of passerby is not fatal to the
prosecution case.

36. Last argument is that the accused is old person. He is

psychic. Prosecution failed to bring on record sufficient evidence
to prove his guilt. I am not inclined to accept this argument because
it is not burden of the prosecution but of defence to bring forth on
record mental condition of the accused.

37. Now, I turn to the evidence of Investigating Officer

PSI-Varsha Ashok Mate (PW-3). She promptly carried out
investigation. She even drawn panchnama of scene of offence and
took photographs. After arrest, the accused is forwarded for medical
examination. She collected birth certificate of victim during course
of investigation. She even recorded statement of neighbour of the
accused although all of them are not examined before the Court.
Except Gautam Dhoke (DW-1) she did not record statement of any
other guests in the house of accused. She deposed that scene of
offence is invisible from the house of accused, therefore, guests
inside the house of accused are unable to see what had happened in
State..Vs..Dipak 14 Spl. Cri.(Child)Case No.413/2020 (Judgment)

the courtyard. She did not record statement of passerby because

during investigation those witnesses are not found to her.

CONCLUSION

38. What is deposed by mother of victim and Priyanka is

sufficient to hold that the accused has committed an offence with
which he is charged. Both witnesses are eye witnesses. Priyanka
and mother of victim had seen penis of the accused. Penis of the
accused was given in the hands of victim. When shirt of the accused
was lifted by mother of victim, Priyanka noticed that penis of the
accused was out of his clothing. This evidence is sufficient to
establish the prosecution case. The accused through evidence of
defence admits his presence with the victim in the courtyard. In
such circumstances, I record my findings to the point nos.1 to 3 in
affirmative.

39. From the above discussions, I hold that the prosecution

has proved the offences beyond all reasonable doubts. In that view
of the matter, I am of the opinion that the accused is liable for
conviction. However, before inflicting any punishment on the
accused, I must give him an opportunity to submit on the point of
sentence. Here, I take a pause to give an opportunity to both parties
to submit on the point of sentence.

( R. P. Pande )
Extra Joint Additional Sessions Judge,
Date :- 22.06.2022. (Special Judge, POCSO Court),
Nagpur.
State..Vs..Dipak 15 Spl. Cri.(Child)Case No.413/2020 (Judgment)

40. On the point of sentence, it is submitted on behalf of

the prosecution that offences are serious in nature. It is against the
society. Maximum punishment provided under the law be awarded.
The accused be dealt severely to make him realize consequences of
his act.

41. Advocate for the accused submitted that he is old

person having family and children. Considering his age and status,
lenient view be shown.

42. Taking into consideration facts and circumstances of

the case, and submissions made on behalf of the accused, I am of
the opinion that following punishment will meet the ends of justice.

AS TO POINT NO.3:
43. The Court has held accused guilty for the offence of
outrage of modesty and sexual assault under sections 354 and 354-
A of the Indian Penal Code as well as under section 8 of the
Protection of Children from Sexual Offences Act, 2012. However,
the punishment provided under Section 8 of the Protection of
Children from Sexual Offences Act, 2012 is greater in degree as
compared to the punishment provided under Sections 354 and 354-
A of the Indian Penal Code. Hence, in view of Section 42 of
Protection of Children from Sexual Offences Act, 2012, the Court
propose to impose punishment only under Section 8 of the
Protection of Children from Sexual Offences Act, 2012, although
accused is also held guilty under Sections 354 and 354-A of the
State..Vs..Dipak 16 Spl. Cri.(Child)Case No.413/2020 (Judgment)

Indian Penal Code. No separate punishment is awarded for the

offences under Sections 354 and 354-A of Indian Penal Code. In the
result, I pass following order-
ORDER

1. The accused is convicted for the offence under

Section 8 of the Protection of Children from Sexual
Offences Act, 2012 vide Section 235(2) of the Code
of Criminal Procedure and is sentenced to suffer
Rigorous Imprisonment for three years and to pay
fine of Rs.5,000/- (Rs. Five Thousands only) in
default to suffer further Rigorous Imprisonment of
03 (Three) months.
2. Fine, if recovered, be paid to the Victim-L by way
of compensation, after appeal period is over.
3. Accused is entitled for set off under section 428 of
the Code of Criminal Procedure.
4. Accused to surrender his bail bond.
Pronounced in open Court.
Digitally signed by
RAJARAM PURUSHOTTAM
PANDE
Date: 2022.06.22 16:14:37
+0530
( R. P. Pande )
Extra Joint Additional Sessions Judge,
Date :- 22.06.2022. (Special Judge, POCSO Court),
Nagpur.

Endorsement

Case argued on : 15.06.2022

Judgment dictated on : 22.06.2022
Transcription ready on : 22.06.2022
Judgment checked and signed on : 22.06.2022
State..Vs..Dipak 17 Spl. Cri.(Child)Case No.413/2020 (Judgment)

: CERTIFICATE:

I affirm that the contents of this PDF Judgment are same word
for word as per original order.
Name of Stenographer : Shri A.M. Bhagat
Stenographer Grade­I
Court Name : (R.P.Pande)
Extra Joint Additional Sessions Judge,
( Special Judge, POCSO Court)
Nagpur.