Partly allowed

Ishvar Nagurao Kamble v. the State of Maharashtra and Anr.

Bombay HC13 Jan 2023APEAL/158/2019

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for offences under the POCSO Act and IPC, the High Court upheld the POCSO conviction but set aside the IPC sentence, correcting the charge section from 354(1)(i) to 354-A(1)(i) to align with the statutory limit.

What did the court decide?

Appeal partly allowed; POCSO conviction and sentence maintained; IPC conviction corrected to S. 354-A(1)(i) and sentence reduced to three years.

Ishvar Nagurao Kamble Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2023)

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208-apeal-158-19 (Judgment)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 158 OF 2019

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Ishvar Nagurao Kamble..Appellant.
Versus

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The State of Maharashtra & Anr...Respondents

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Ms. Neha Maru i/b. Kuldeep S. Patil for Appellant.
Mr. S. R. Agarkar, APP for State/Respondent No.1
Smt. Megha Bajoria (Appointed Advocate) for Respondent No.2.

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CORAM : SARANG V. KOTWAL, J.
DATE : 13 JANUARY 2023

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JUDGMENT:

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1.The Appellant has challenged the Judgment and order

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dated 04/01/2019, passed by learned Special Judge, Raigad-
Alibag, in Special (POCSO) Case No.61 of 2015. The Appellant
was convicted and sentenced as follows:

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i)The Appellant was convicted for commission of
offence punishable U/s.354(1)(i) of the I.P.C. (as
is mentioned in Clause 1 of the operative part of

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the impugned order) and was sentenced to

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Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date: 2023.01.18 11:47:04 Gokhale +0530

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suffer R.I. for 5 years and to pay a fine of
Rs.2000/- and in default of payment of fine to
suffer S.I. for 3 months.

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ii)The Appellant was also convicted for
commission of offence punishable U/s.9(f) of
the Protection of Children from Sexual Offences
Act (for short ‘POCSO Act’) and was sentenced
to suffer R.I. for 5 years and to pay a fine of
Rs.2000/- and in default of payment of fine to
suffer S.I. for three months.

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iii)The Appellant was also convicted for
commission of offence punishable U/s.7 r/w. 8
of the POCSO Act, but no separate sentence was
imposed in view of the sentence imposed
U/s.9(f) of the POCSO Act.

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iv)The Appellant was acquitted from the charges of
commission of offence punishable U/s.9(l) r/w.
Section 10 of the POCSO Act.

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Out of the fine amount of Rs.4000/-, amount of

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Rs.2000/- were directed to be paid to the victim.

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All the substantive sentences were directed to run
concurrently. The Appellant was given set off U/s.428 of the Cr.p.c.

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2.Heard Ms. Neha Maru, learned counsel for the
Appellant, Shri. Agarkar, learned APP for the State/Respondent
No.1 and Smt. Megha Bajoria, learned appointed advocate for the
Respondent No.2.

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3.The prosecution case is that, the victim was aged about 9
years on the date of incident. Her date of birth was 19/05/2006.
She was studying in a Zilla Parishad Primary school. The Appellant
was a teacher in that school. Between the period of January 2015
to 16/03/2015 he used to take the victim to a store room. It is
alleged that, on those occasions, he committed the offence of
sexual assault as defined U/s.7 of the POCSO Act and of outraging
the modesty. On 19/03/2015, some villagers went to the school
because there were complaints from other students of sexual
harassment at the hands of the appellant. On 25/03/2015, the

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F.I.R. was lodged by the victim vide C.R.No.53 of 2015 at Khalapur
police station. The appellant was arrested. The investigation was
carried out. After completion of the investigation, the charge-sheet
was filed and the case was committed to the Special Court.

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4.The defence of the appellant was of total denial.
According to him, he was doing good work, but he was falsely
implicated. Some part of the school building was given to the
police for police chowky and, therefore, the villagers had falsely
involved him due to political reasons. According to him, he was
belonging to a scheduled caste and, therefore, the villagers
deliberately implicated him falsely. According to him, he was
popular amongst the children, but he is falsely implicated in this
case.

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5.During trial, the Charge was specifically framed
U/s.354(1)(i) of the I.P.C. However, as can be seen, there is no
such section under the Indian Penal Code. The description of the
offence mentioned under that particular head is in respect of
Section 354-A(1)(i) of the I.P.C. It is clearly a typographical error

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while framing of charge and also in the operative part of the
Judgment and order. However, the ingredients of Section 354-A(1)
(i) of the I.P.C. are spelt out in the charge, therefore, it can be
corrected. At the highest it is an irregularity and not an illegality.

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6.During trial, the prosecution examined six witnesses
including the victim, another class teacher, the father of another
victim, the Centre Head of the school and the investigating officer.

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7.The first informant is the victim. She is examined as
PW-2. At the time of deposition, she was 13 years of age. Her
deposition was recorded on 27/09/2018. Before recording her
examination, learned Trial Judge put some preliminary questions
to her and then recorded that she was able to understand the
questions and, thereafter administered oath to her. She has
deposed that, her date of birth was 19/05/2016. She was staying
with her maternal uncle for taking education in Mahad. She
studied there upto the 3rd standard in Z.P. school. There were two
teachers in the school; PW-1 Anita and the Appellant. The school
timing was between 10.30a.m. to 5.30p.m. There were three

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rooms in the school. In the year 2015, she was studying in the 3rd
standard. The 1st standard students would also sit in the same
classroom. Anita madam was her class teacher. The Appellant used
to teach for 2nd and 4th standard students. If either of the teachers
was absent, the other one used to teach all the classes. The
students were given khichadi in the school. The ingredients
required for preparing the khichadi were stored in the store room.
If anything was required from there, the Appellant used to take
one of the girls to that store room to bring those ingredients. In
January 2015, the Appellant had taken PW-2 to the store room to
bring masala. When she started looking for masala the Appellant
sat on a chair. He made her to sit on his lap. He hugged her. He
moved his hand all over her body. He kissed her on her lips. He
told her not to disclose that incident to anybody. Then she went to
her class room. She further deposed that, the said incident was
repeated with one of her friends; who told about it to her father.
PW-2’s friend’s father came to the school on the next day. The
other teacher Anita inquired with the girls as to whether the
Appellant had done anything wrong with any of the girls. At that

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time, PW-2 told her about the incident in which she had suffered.
PW-2 then went home and told her maternal aunt about the
incident. Her maternal aunt took her to the police station. PW-2
narrated the incident to the police. Then the F.I.R. was registered.
It was produced on record at Exhibit 15. PW-2 identified the
appellant. She has further deposed that, she had showed the spot
of incident to the police and her statement was recorded U/s.164
of the Cr.p.c.

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In the cross-examination, she stated that, there were
only 11 to 12 students studying in 3rd standard. The khichadi was
cooked by some lady in her own house. It was not near the school.
That lady used to bring khichadi to the school, but she did not
come to school everyday to collect the ingredients. She further
deposed that the appellant did not come to the school after her
friend’s father had visited the school. She also admitted that, till
her friend’s father had come to the school, she had not disclosed
the incident to anybody. Her maternal uncle had not come to the
school on that day. Apart from that, some minor omissions from
her F.I.R. were brought on record, but those did not really go to

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the root of the matter. Importantly, there was no suggestion that
her date of birth was not 19/05/2016. She was around 9 years of
age at the time of the incident.

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8.PW-1 Anita Chavan was the other teacher. She has
deposed that, she was serving in that school since 2012. Out of the
three rooms of the school, one room was used as a store room. The
school had only two teachers i.e. PW-1 and the appellant. In 2015,
PW-1 was teaching the 1st and the 3rd standard and the appellant
was teaching the 2nd and the 4th standard. On 19/03/2015, one
Sambhaji Patil, Kashinath Patil and others from the village came to
the school. They accused that the appellant was misbehaving with
a girl student. It is PW-1’s case that the appellant had appoligized

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to those people saying that he had committed a mistake. One
Ravindra Dabse had complained to PW-1 that the appellant had
misbehaved with his niece. PW-1 feared that the crowd would
become violent. She informed Shri. Jadhav who was Centre Head
of the school. He came to the school. Shri. Jadhav and others
inquired with the appellant. Again the Appellant admitted his
guilt. PW-1 then inquired with the other girl about the incident.

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She told PW-1 that the appellant had taken her in the store room.
He had closed the door and he had caught her hands. She started
crying and after that the appellant opened the door and let her go
away.

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In the cross-examination, she admitted that, part of the
building which was previously used for the school, was handed
over to the police and there was a police station in the same
building in the same premises. PW-1 did not know whether some
local politicians wanted that building for some other purpose.
Sambhaji Patil mentioned by her was the Ex-Sarpanch of the
village. The Sarpanch of the village had not come to the school on
that day. She admitted that the situation was such that the crowd
would have thrashed the appellant. She admitted that, none of the
students or their parents had complained to her against the
appellant prior to 19/03/2015. She did not know whether
Sambhaji Patil was holding grudge against the appellant.

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9.PW-3 Santosh Patil was the father of the other victim. He
has deposed that, his wife had told him about the teacher in the

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school touching their daughter inappropriately. He then went to
Sambhaji Patil and told him about the incident. PW-3, his father,
Sambhaji Patil and other 4 to 5 persons went to the school. They
made inquiries with the appellant and told him that his daughter
had complained against him. According to him, the appellant
accepted his mistake and said that he would not repeat it.

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In the cross-examination, he admitted that, Sambhaji
Patil was not the Sarpanch of their village. He had not gone to the
police station. The police had come to his house, but he did not
remember when police had come to his house. He also admitted
that, some part of the premises was converted into the police
chowky. He did not know that Sambhaji Patil wanted that part of
the building for his office. He denied the suggestion that, he was
deposing at the instance of Sambhaji Patil.

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10.PW-4 Datta Jadhav was the Centre Head of all Zilla
Parishad schools in Khalapur Taluka. On 19/03/2015, at about
10.30a.m. he received a phone call from PW-1. He was informed
that the villagers had come to his school and there was a problem.

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He along with one Anant Thakur who was the President of the
Teacher’s Association, went to the school. Sambhaji Patil
complained that the Appellant had misbehaved with a student and
that he should be removed. PW-4 then discussed with PW-1 and
the appellant. According to him, there was substance in the
allegation of misbehaviour. He took note of the incident in the
Visitor’s book maintained at the school. According to him, the
Appellant had admitted his guilt.

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In the cross-examination, he deposed that the Visitor’s
book was given to his superior Surekha Hirve who was the Block
Education Officer. She did not inquire with him. He also admitted
that, amongst the villagers he himself had spoken to Sambhaji
Patil. According to him, Sambhaji Patil was also the Ex-President of
the school.

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11.PW-5 Suresh Atigre, P.S.I. had registered C.R.No.53 of
2015 at Khalapur police station based on the complaint given by
PW-2. On 26/03/2015, on the next day, he visited the spot and
prepared the spot panchanama which is produced on record at

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Exhibit 19. He had also recorded the statement of PW-1. He had
proved the contradiction from her statement, however, as
mentioned earlier, her contradictions are not very material. The
spot panchanama describes three rooms mentioned by PW-1 and
PW-2.

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12.PW-6 Rangrao Pawar was the investigating officer.
During investigation he collected the bonafide certificate of the
victim. He sent the victim for recording her statement U/s.164 of
the Cr.p.c. He recorded the statements of other witnesses and filed
the charge-sheet against the appellant.

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In the cross-examination, he admitted that he himself
had not inquired with the victim regarding the incident. He had
not recorded the statement of the other victim. He proved some
omissions from the police statement of PW-3 Santosh Patil.

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As mentioned earlier, learned Trial Judge did not
accept the defence of the appellant. He relied on the evidence of
the prosecution and convicted and sentenced the appellant, as
mentioned earlier.

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13.Learned counsel for the Appellant made following

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submissions:

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There was a delay from January 2015 to 25/03/2015
in lodging of F.I.R. and that delay is not explained. The victim-PW-
2 has not given the date of incident. The F.I.R. is lodged against the
appellant out of grudge which Sambhaji Patil was holding against
the appellant for giving the premises to police chowky and the
F.I.R. was lodged at the instance of Sambhaji Patil. Apart from the
victim’s F.I.R. there was no other complaint on record. Neither the
victim’s other friend nor anybody else had lodged any complaint or
F.I.R. with the police. The age of the victim is not proved.
According to her, the prosecution should have produced on record
the birth certificate or bonafide certificate from her school.

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Learned counsel relied on the Judgment of a Single
Judge of this Court dated 24/05/2018 in Criminal Appeal No.597
of 2005. It was held in the said Judgment that as per the Rules of
Juvenile Justice (Care and Protection of Children) Rules, 2007 the
certificate of the first school which the victim had attended was

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necessary or the birth certificate issued by the Corporation was
necessary to prove the date of birth of the victim. In absence of
these documents, her date of birth cannot be proved.

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Learned counsel also relied on the Judgment of the
Hon’ble Supreme Court in case of Jarnail Singh Versus State of
Haryana, in Criminal Appeal No. 1209 of 2010 dated 01/07/2013
to contend that the Hon’ble Supreme Court has also held that the
procedure laid down in Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 should be followed for proving
the age. According to learned counsel, in this case, no
documentary proof is given to prove that the date of birth of the
victim was 19/05/2006. She further submitted that, PW-1, PW-3
and PW-4 had not witnessed the incident and, therefore, their
evidence is not material. There are also material contradictions
between the evidence of PW-1, PW-2 and others.

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14.Learned counsel for the Respondent No.2, as well as,
learned APP for the State opposed these submissions. They
submitted that the prosecution has not only proved the age of the

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victim, but it has also proved the incident. There was no challenge
to the date of birth of the victim as deposed by her. It was admitted
that, she was studying in 3rd standard and, therefore, it cannot be
said that she was not below 18 years of age. They further
submitted that the evidence of the victim-PW-2 is cogent and
reliable and, therefore, conviction can be recorded on the basis of
her evidence alone. They submitted that, in such cases, it was not
possible for a small child to make complaint against her teacher
immediately, therefore, delay in lodging the F.I.R. was not very
material. They further submitted that the appellant had admitted
his guilt when the villagers had gone to the school. This also is an
incriminating circumstance. Both of them conceded that, there was
no such section as 354(1)(i) of the I.P.C. and it is a typographical
error. The correct section should be 354-A(1)(i) of the I.P.C., for
which the maximum sentence prescribed is for three years. To that
extent the operative part of the impugned Judgment and order
was wrong.

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15.I have considered these submissions. As far as age of the
victim is concerned, she had deposed that her date of birth was

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19/05/2006. In the entire cross-examination, there was not even a
suggestion that said date of birth was not true. Her deposition to
that extent was not challenged in the cross-examination. It was an
admitted fact that the victim was studying in 3rd standard. Learned
Trial Judge has seen this witness when her deposition was
recorded. At that time, she was 13 years of age. Learned Trial
Judge has put preliminary questions to the victim. Thus, the gap
between 9 years and 18 years is too much. Considering the facts
and record of the case, it is not possible to hold that the
prosecution has failed to prove that, she was below 18 years of
age. The age of the victim was not seriously disputed in the entire
cross-examination. In this view of the matter, even in the absence
of documentary evidence, it can be held that the prosecution has
proved that the victim was below 18 years of age.

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16.As far as evidence of PW-3 is concerned, he was the
father of the other victim. But the prosecution has not examined
the other victim, neither any complaint given by her is produced
on record. It is not even the case of the prosecution that she had
given any complaint, therefore, his evidence does not help the

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prosecution in proving the case in respect of the incident involving
PW-3. At the highest, it can be said that there were some
complaints against the appellant, for which the villagers had
gathered in the school on that particular date. To that extent, the
evidence of PW-3, PW-4 and PW-1 support each other’s evidence.
PW-1 and PW-4 have also spoken about the villagers going to the
school complaining about the misbehaviour of the Appellant with
other students. To that extent, all these three witnesses have
consistently deposed about that fact. Therefore, it is a
circumstance against the Appellant which shows that there was
some grievance against him for his misbehaviour with a girl
student. However, the details of such misbehaviour and other
instances are not brought on record. Therefore, this evidence
cannot be stretched any further except to show that the villagers
had gathered in the school on 19/03/2015.

¶77

17.Though other instances are not proved, the prosecution
has been successful in proving that the villagers had some
grievance against the appellant and for that purpose they had
gathered in the school. That gave courage to PW-2. On specific

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inquiry with her, she narrated the incident which she had to suffer.
Thereafter she went to the police station and lodged the F.I.R.
Though there is a gap of six days from 19/03/2015 to
25/03/2015, in the facts of this case, it cannot be said to be fatal
to the prosecution case. The appellant was a teacher in the school.
The victim was studying in the same school. She was under his
pressure and, therefore, it was not unusual that she did not make
her grievance immediately.

¶80

18.Though, the F.I.R. mentions the incidents taking place on
more than one occasion, her deposition is restricted to only one
instance which had taken place in January 2015. Learned Trial
Judge has considered only that particular incident. Because of this,
the appellant was acquitted from the charges of commission of
offence punishable U/s.10 r/w. Section 9(l) of the POCSO Act.

¶81

19.As far as quality of the evidence of PW-2 is concerned, I
find that she has given clear, cogent and reliable evidence. There is
absolutely no reason to disbelieve her. There is not even a
suggestion that she was deposing on the basis of some tutoring. A

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vague suggestion was given to her that Sambhaji Patil wanted
some part of the building and, therefore, he was holding grudge
against the appellant. However, that line of cross-examination and
the defence was not taken further to show the connection between
Sambhaji Patil and PW-2. There is nothing to show that PW-2 was
deposing at the behest of Sambhaji Patil or that any of her family
members were under pressure of Sambhaji Patil. In this view of the
matter, no reason is spelt out from the evidence to show as to why
PW-2 could have deposed against the Appellant. So far as the
incident is concerned, she has narrated it clearly as mentioned
earlier, in relation to fulfillment of ingredients of Section 354-A(1)
(i) of the I.P.C. and Section 9(f) of the POCSO Act which is
punishable U/s.10 of the POCSO Act.

¶84

20.It is not possible to accept learned APP’s submission that
the appellant had admitted his guilt. The evidence shows that the
villagers were angry and were about to assault him. His acceptance
of guilt was therefore because of this situation. Based on the
evidence of PW-2, I am of the opinion that the Appellant is rightly
convicted U/s.9(f) r/w. 10 of the POCSO Act. However, as

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mentioned earlier, the conviction U/s.354(1)(i) of the I.P.C. is not
correct. It is a typographical error. The Charges indicate
ingredients of Section 354-A(1)(i) of the I.P.C., therefore, this
irregularity can be cleared and the appellant can be convicted
U/s.354-A(1)(i) of the I.P.C. The maximum sentence provided
under that section is three years. Learned Judge has sentenced the
Appellant for a period of five years under that particular head.
That sentence will have to be set aside and the maximum sentence
of three years at the most can be imposed on him under that
section. The conviction and sentence U/s.9(f) of the POCSO Act
will have to be maintained.

¶87

21. Hence, the following order:

¶88

O R D E R

¶89

i)The Appeal is partly allowed.

¶90

ii)The conviction of the Appellant recorded by the
Trial Court for commission of the offence
punishable under section 9(f) of the POCSO Act
and sentence of five years R.I. with payment of

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fine of Rs.2000/- and in default of payment of
fine S.I. for three months are maintained.

¶93

iii)The conviction and sentence recorded
U/s.354(1)(i) of the I.P.C. are set aside. Instead,
the Appellant is convicted U/s.354-A(1)(i) of the
I.P.C. and he is sentenced to suffer R.I. for three
years and to pay a fine of Rs.2000/- and in
default of payment of fine to suffer S.I. for three
months.

¶94

iv)The conviction U/s.7 r/w. 8 of the POCSO Act is
maintained. However, the trial Court has not
imposed the separate sentence in view of
sentenced passed U/s.9(f) of the POCSO Act.
That position is retained in this order, as well.
v)The amount of Rs.2000/- was directed to be
paid to the victim out of the realized fine
amount of Rs.4000/-. That part of the impugned
Judgment and order is retained.

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¶96

vi)All the substantive sentences are directed to run
concurrently.

¶97

vii)The Appellant is granted set off U/s.428 of the
Cr. P. C.

¶98

viii)With this modification, the Appeal is disposed

¶99

of.

¶100

(SARANG V. KOTWAL, J.)

Ishvar Nagurao Kamble v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Ishvar Nagurao Kamble v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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