APPEAL-660-2018-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.660 OF 2018
MAHIBOOB@TANYA PEERAHAMAD SHABHAI)
Age 32 years, )
Residing at H.No.352, Sunil )
Nagar, M.I.D.C.road, Solapur, )
(at present lodged in Solapur )
Central Prison, Solapur) )…APPELLANT
V/s.
1 THE STATE OF MAHARASHTRA ANR. )…RESPONDENTS
Mr.Kartik Garg, Appointed Advocate for the Appellant.
Mr.A.A.Palkar, APP for State.
CORAM : A. M. BADAR, J.
DATE : RESERVED ON 17th SEPTEMBER 2019
PRONOUNCED ON 9th OCTOBER 2019
JUDGMENT :
1 By this appeal, appellant/convicted accused is
challenging judgment and order dated 25 th April 2018, passed by
the learned Designated Court for Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred as ‘POCSO’ Act for
avk 1/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
the sake of brevity) Additional Sessions Judge, Solapur in Special
Case No.72 of 2015 thereby, convicting him of offences punishable
under Sections 6, 8, 10 and 12 of POCSO Act as well as under
Sections 376(2)(i), Section376(2)(n), Section363, Section366-A of the Indian Penal
Code. For the offence punishable under Section 6 of the POCSO
Act, the appellant/convicted accused is sentenced to suffer
rigorous imprisonment for 15 years apart from direction to pay
fine of Rs.20,000/-, in default to undergo simple imprisonment for
six months. For offences punishable under Section 8 of the
POCSO Act the appellant/convicted accused is sentenced to suffer
rigorous imprisonment for 3 years, apart from direction to pay
fine of Rs.1,000/- and in default to undergo rigorous
imprisonment for six months. For offences punishable under
Section 10 of the POCSO Act the appellant/convicted accused is
sentenced to suffer rigorous imprisonment for 5 years, apart from
direction to pay fine of Rs.4000/- and in default to undergo
rigorous imprisonment for six months. For offences punishable
under Section 12 of the POCSO Act the appellant/convicted
accused is sentenced to suffer rigorous imprisonment for one year,
avk 2/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
apart from direction to pay fine of Rs.1,000/- and in default to
undergo rigorous imprisonment for six months. No separate
sentence came to be awarded to him for the offence punishable
under Section 376(2) of the Indian Penal Code. For offences
punishable under Section 363 of the Indian Penal Code, the
appellant/convicted accused is sentenced to suffer rigorous
imprisonment for 2 years apart from direction to pay fine of
Rs.1,000/- and in default to undergo rigorous imprisonment for
three months. For offences punishable under Section 366-A of the
Indian Penal Code, the appellant/convicted accused is sentenced
to suffer rigorous imprisonment for 4 years, apart from direction
to pay fine of Rs.3,000/- and in default to undergo rigorous
imprisonment for three months. Substantive sentences are
directed to run concurrently.
2 Brief facts in brief, leading to the prosecution as well
resultant conviction of the appellant/accused can be summarized
thus:
avk 3/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
(a) The victim of the crime in question is examined as PW1. She
is female child born on 25th December 2000. She was
residing alongwith her father PW2 Rajkumar and other family
members at Sunil Nagar, Solapur and was taking education at
Mahatma Vidyamandir in 9th Standard.
(b) According to the prosecution case, on 30th October 2015, the
victim female child/PW1 was going to the school by walk.
Appellant/convicted accused came on motorcycle and gave
lift to her. When she sat on the motor-cycle, another boy sat
behind her. When they reached the school, the teacher was
punishing late comers. The appellant/convicted accused
then kidnapped her with the aid of another boy sitting behind
the victim female child/PW1. She was taken to the bus stand
by threatening to kill her. At the bus stand the boy riding on
pillion seat, went away. She was made to sit in the bus by the
appellant/convicted accused under threats. Then by bus,
they went to Railway station. By train she was taken to
Hyderabad. There they stayed in the house.
avk 4/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
(c) According to the prosecution case, appellant/convicted
accused committed penetrative sexual assault on the victim
at the tin shed at Chanda Nagar, Hyderabad for two days.
Thereafter she was taken to Secunderabad at the house of
one Sanjay Jadhav. There also, the appellant/convicted
accused committed penetrative sexual assault on her.
Ultimately, Saifan, brother of appellant/convicted accused
alongwith others came and the prosecutrix was taken under
threats to MIDC police station, Solapur on 30th October 2015.
(d) In the meanwhile, on finding her female child missing, PW2
Rajkumar lodged missing report on 30th October 2015. He
then came to know that the appellant/convicted accused had
enticed her and therefore, FIR (Exhibit 27) came to be lodged
against appellant/convicted accused by him on 30th October
2015. Accordingly, Crime No.253 of 2015 came to be
registered with the Police Station MIDC, Solapur.
avk 5/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
(e) After victim female child/PW1 was brought to the Police
Station, she was referred for medical examination to
Dr.V.M.Medical College, Solapur and on 7th November 2015,
she came to be examined by Dr.Duldev Thengal, Assistant
Professor with the Medical College at Solapur. Two spots of
incidents at Hyderabad came to be inspected in presence of
PW3 Anwar Husain Abdul Hamid and accordingly, Spot
Panchnama, Exhibits 33 and 34 came to be prepared on 10 th
November 2015. Clothes of the victim female child/PW1
came to be seized in presence of PW7 Vithal Tonge, vide
Panchnama-Exhibit 46 on 9th November 2015. Her Birth
Certificate (Exhibit 57) came to be collected from Gram
Panchayat, Akkalkot. On completion of routine investigation,
the appellant/convicted accused came to be charge-sheeted.
(f) Charge was framed and explained to the appellant/convicted
accused by the learned trial court. He pleaded not guilty and
claimed to be tried.
(g) In order to bring home guilt of the appellant/convicted
avk 6/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
accused, the prosecution has examined in all twelve
witnesses. Defence of the appellant/convicted accused was
that of total denial. However, he did not enter in the defence.
After hearing the parties, by impugned judgment and order,
the learned trial court was pleased to convict and sentence
the appellant/convicted accused as indicated in the opening
paragraph of this Judgment.
3 I have heard the learned advocate appointed to
represent the appellant/convicted accused at the costs of the
State. He vehemently argued that there is evidence to show that
the victim female child/PW1 was kidnapped by the
appellant/convicted accused. On the contrary, it is seen from her
evidence that she voluntarily joined company of the
appellant/convicted accused. Even history given by victim female
child/PW1 to the Medical Officer shows that the alleged victim
female child/PW1 was a consenting party. Her evidence is totally
unreliable and is suffering from omissions in material particulars.
Her statement under Section 164 of Criminal Procedure Code
avk 7/35
::: Uploaded on – 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc
recorded by the learned Magistrate is totally at variance with her
version before the Court. It is further argued that the prosecution
has failed to establish the fact that the victim female child/PW1
was below 18 years of age at the time of incident in question.
Birth Certificate sought to be relied by the prosecution is not
having signature of either father or mother of the victim.
Therefore, same can not be relied for determining the age of
victim female child/PW1.
4 The learned advocate for appellant/convicted accused
relied on following judgments:-
i) Ajaykumar Vs. State of Maharashtra1ii) S. Varadrajan Vs. State of Madras2
iii) State of Maharashtra Vs. Surendra Kumar Mevalal Mehesh3
iv) Sat Prakash Vs. State of Haryana4
v) Anmol Ors. Vs.State of Maharashtra5
vi) State of Rajasthan VS. Babu Meena6
1 Cri Appeal No.783/2018
2 AIR 1965 SC 942
3 1999(5)BomCR 777
4 2016(1)ACR 389
5 1999(5) BOM CR 209
6 AIR 2013 SC 2207avk 8/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docvii) Sannaina Subha Rao and Ors. Vs. State of AP7
viii) Narinder Singh Vs. State of Punjab8
ix) Gurmukh Singh Vs. State of Haryana9
x) Satish Kumar Jayanti Lal Dagar Vs. State of Gujrat10
xi) Phul Singh Vs. State of Haryana11
5 The learned APP supported the impugned judgment
and order of conviction and resultant sentence by contending that
evidence of victim female child/PW1 is trustworthy and reliable.
Her age is proved by placing Birth Certificate on record apart from
examining Gram Sevak.
6 I have considered the submissions so advanced and
also perused the record and proceedings including oral as well as
documentary evidence.
7 (2008)17 SCC 225
8 2014 CriLJ 2436
9 (2009)15 SCC 635
10 (2015)7 SCC 359
11 AIR 1980 SC 249avk 9/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc7 At the outset, let us examine whether the prosecution
has established the fact that the victim female child/PW1 was
below 18 years of age at the time of commission of the alleged
incident of her kidnapping and penetrative sexual assault on her.
It is case of the prosecution that the victim female child/PW1
came to be kidnapped on 30th October 2015 by the
appellant/convicted accused and thereafter, he committed
penetrative sexual assault on her till 5th November 2015. On this
backdrop, it is in evidence of victim female child/PW1 that her
date of birth is 25th December 2000. Her father PW2 Rajukumar
has also deposed that date of birth of the victim female child/PW1
is 25th December 2000. This oral evidence is not at all challenged
by cross-examining these witnesses on this aspect.
8 In order to prove the fact that the victim female child/
PW1 was below 18 years of age, the prosecution has placed on
record her Birth Certificate at Exhibit 57. The said certificated is
issued under Sections 12 and Section17 of the Registration of Births and
SectionDeaths Act, 1969 read with Rules 8 and 13 of the Maharashtra
avk 10/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docRegistration of Births and SectionDeaths Act, 1976. The said Birth
Certificate is issued by the Registrar appointed under the
Registration of Births and SectionDeaths Act, 1969, on 6th November
2017.
9 In order to prove the Birth Certificate at Exhibit 57,
the prosecution has examined Madhuri Survase, Gram Sevak of
Akkalkot as PW8. She deposed that apart from serving as Gram
Sevak, Akkalkot, she is also Registrar under the provisions of
Registration of Births and SectionDeaths Act, 1969. As per her version,
birth of the victim female child/PW1 is entered at Serial no.13 in
the Birth Register of Akkalkot. Her oral evidence is to the effect
that the Birth Register contains names of parents of the victim
female child/PW1 and she has deposed about those names. While
in the witness box, this witness was equipped with the original
Birth Register and she had placed on record the relevant extract
thereof, which is at Exhibit 56. PW8 Madhuri Survase has also
placed on record Birth Certificate Exhibit 57 of the victim female
child/PW1. She was cross-examined to bring on record that
avk 11/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docinformation about birth of the victim female child/PW1 was given
by employee of the Gram Panchayat by name S.S.Poojari. This
witness further admitted in cross-examination that the Birth
Register is having entries from 1st January to 31st December and
her cross-examination reveals that entry of birth can be taken
within 21 days of the birth. Thus, cross-examination of this
witness goes to show that the Birth Register was maintained in
regular course of business by the Registrar. Extract of Birth
Register at Exhibit 56 is mentioning the fact that birth of the
victim female child/PW1 is reported by employee of the Gram
Panchayat named S.S.Poojari. It is also seen from the Birth
Register that the victim female child/PW1 was delivered at the
house itself. The extract of Birth Register is not containing
signature of the informant or the Registrar / Deputy Registrar.
However, that aspect cannot create doubt because the extract at
Exhibit 56 was prepared from the original register and such
extract cannot bear signature of the person informing the birth or
the Registrar/Deputy Registrar, as the entry was taken in the year
2001 whereas the extract was prepared, for the purpose of this
avk 12/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doccase, in the year 2017.
10 The Birth Certificate Exhibit 57 is issued under the
provisions of Sections 12 and Section17 of the Registration of Births and
SectionDeaths Act, 1969. As per provisions of Rule 9 of the Maharashtra
Registration of Births and Deaths Rules, 1976, this Certificate is
issued by the Sub-Registrar acting under the provisions of the
Registration of Births and SectionDeaths Act, 1969. Section 7 thereof
deals with appointment of Registrars for each local area
comprising the area within the jurisdiction of the Municipality,
Panchayat or other local authority. It is the duty of the Registrar to
register every birth and every death which takes place in his
jurisdiction. SectionThis Act mandates that the Registrar should
discharge his duties carefully. Section 8 of this Act mandates each
head of the house to report birth in the family to the Registrar.
SectionThe Act provides for maintenance of register for recording birth
and death within the local area. That is how, certificate came to be
issued by the Sub-Registrar as per provisions of Sections 12 and
Section17 of the said Act. The Birth Certificate, Exhibit 57, as such, is
avk 13/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docissued by the Public Officer and it is a document forming the
record of the acts of the Public Officer and therefore the same is a
public document within the meaning of the said term as per
provisions of Section 74 of the Indian Evidence Act, 1872. The
same is admissible in evidence by mere production thereof in view
of provisions of Section 77 of the Evidence Act. Section 17 of the
Registration of Births and SectionDeaths Act, 1969, provides for search of
Birth Register and supply of extract thereof by certifying the same
by the Registrar or other authorized Officer. Section 17 of the said
Act provides that such extract shall be admissible in evidence for
the purpose of proving birth or death to which the entry relates.
The Birth Certificate Exhibit 57 is, infact, the extract of Birth
Register in respect of entry of birth of the victim child/PW1, and
as such, admissible in evidence. Section 35 of the Evidence Act,
1872, makes it clear that if entry is made by public servant in the
official book in discharge of his official duty, then such entry
becomes the relevant fact and admissible in evidence. Section 35
of the Indian Evidence Act lays down that entry in any public,
official book, register, record stating a fact in issue or relevant fact
avk 14/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docand made by a public servant in the discharge of his official duty
specially enjoined by the law of the country is itself the relevant
fact. To render a document admissible under Section 35, three
conditions must be satisfied, firstly, entry that is relied on must be
one in a public or other official book, register or record, secondly,
it must be an entry stating a fact in issue or relevant fact; and
thirdly, it must be made by a public servant in discharge of his
official duty, or any other person in performance of a duty
specially enjoined by law. It is, thus, clear that the Birth
Certificate issued by the statutorily appointed competent authority
is relevant and admissible. The same is a public document and it
constitutes primary evidence. Proof of contents of a public
document can be had by production thereof as envisaged by
Section 77 of the Evidence Act. In this view of the matter, no
formal proof of the Birth Certificate issued by the competent
authority under the provisions of the Registration of Births and
SectionDeaths Act, 1969 and Rules framed thereunder is required.
11 This court in the case of Mahadeo S/o Kerba Maske Vs.
avk 15/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docState of Maharashtra and Anr.12 has held that Rule 12(3) of the
Juvenile Justice (Care and Protection of Children) Rules, 2007, is
applicable in determining the age of the victim of rape. Rule 12(3)
reads as under:
"Rule 12(3) : In every case concerning a child or
juvenile in conflict with law, the age determination
inquiry shall be conducted by the court or the Board
or, as the case may be, the Committee by seeking
evidence by obtaining -(a)(i) the matriculation or equivalent certificates,
if available; and in the absence whereof;(ii) the date of birth certificate from the school
(other than a play school) first attended; and in the
absence whereof;(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.In case exact assessment of the age cannot be done,
the Court or the Board or, as the case may be, the
Committee, for the reasons to be recorded by them,12 (2013) 14 SCC 637
avk 16/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docmay, if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year. and, while
passing orders in such case shall, after taking into
consideration such evidence as may be available, or
the medical opinion, as the case may be, record a
finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii),(iii) or in the absence whereof, clause (b) shall be
the conclusive proof of the age as regards such child
or the juvenile in conflict with law."It is, thus, clear that, by this evidence, prosecution has established
date of birth of the victim female child/PW1 as 25 th December
2000. The incident took place at the end of October 2015 and in
the first week of November 2015. As such, the victim female
child/PW1 was below 18 years of age, at the time of the incident,
and as such, was a child, as defined by Section 2(d) of the POCSO
Act.
12 In the matter of Ajay Kumar (supra), evidence of
avk 17/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docparents of the victim was not throwing any light on the aspect of
giving birth to the victim and it was not clear as to, who had
reported about the birth of the victim in that case. Such is not the
case in hand.
13 Now let us examine whether the prosecution has
established penetrative sexual assault on the victim female
child/PW1 after kidnapping her by the appellant/convicted
accused. The victim female child/PW1 deposed that while going
to school on 30th October 2015, the appellant/convicted accused
came and gave lift to her, for dropping to school, by his
motorcycle. When she sat behind him, one boy sat behind her and
they went to the school. However, the teacher was giving
punishment to latecomers. Then the victim female child/PW1 had
spoken about her kidnapping by the appellant/convicted accused.
She deposed that the pillion rider threatened her and closed her
eyes and mouth by means of a handkerchief. The appellant/
convicted accused, then, took her to the bus stand and the pillion
rider went away. She was then made to sit in a bus under threats
avk 18/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docto kill her. In two hours that bus reached the railway station.
Then, she was made to board a train forcibly by the
appellant/convicted accused and after two days journey, they
alighted at a village where she was kept for two days in a house of
one family. Thereafter, as per her version, she was taken to
Hyderabad and in the tin shed of Chanda Nagar area, the
appellant/convicted accused had committed penetrative sexual
assault on her, for two days. She was then taken to the house of
Sanju Jadhav at Secunderabad and there also the appellant/
convicted accused committed penetrative sexual assault on her.
Thereafter, brother of the appellant/convicted accused by name
Saifan came with five persons and she along with the
appellant/convicted accused were brought to MIDC Police Station,
Solapur.
14 Though the theory of "taking" is sought to be made
out by the victim female child/PW1 in her evidence, her cross-
examination shows that she was enticed by the appellant/
convicted accused. Her cross-examination shows that on both
avk 19/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docsides of the road, people used to reside and they were in a
position to see easily what is happening in the locality. Persons
from the locality were known to her as well as the
appellant/convicted accused. The victim female child/PW1
admitted that she never attempted to contact her parents for the
entire period and even Sanju Jadhav was knowing her family
members. It is, thus, clear that, the victim female child/PW1 had
tons of opportunity to escape from the so called clutches of the
appellant/convicted accused. However, she eloped with him on
30th October 2015 and remained in his company till arrival of
Saifan on 5th November 2015 at Hyderabad. However, joining of
company of the appellant/convicted accused by the victim female
child/PW1 is certainly the act of kidnapping from lawful
guardians of the victim female child/PW1. Though reliance is
sought to be made on judgments in the matter of S.Varadrajan
(supra) and Surendra Kumar Mevalal Mehesh (supra), facts of this
case are otherwise. Evidence of PW2 Rajukumar shows that the
appellant/convicted accused used to roam near his house and
apprehending that he had kidnapped the victim female
avk 20/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docchild/PW1, PW2 Rajukumar had lodged report against him on 30 th
October 2015 itself. This is not a case where the victim female
child/PW1 left the house on her own without any allurement to
her and subsequently joined the company of the appellant/
convicted accused. Her elopement was certainly due to
allurement by the appellant/convicted accused with whom she
stayed at far away places from 30th October 2015 to 5th November
2015.
15 The victim female child/PW1 was examined by PW6
Dr.Duldev Thengal, Assistant Professor with the Medical College at
Solapur on 7th November 2015. He noticed that hymen of the
victim female child/PW1 was torn and postero lateral tear was
found present but with no fresh bleeding. He clarified that after
two days of the incident, he examined the victim female
child/PW1. Evidence of PW6 Dr.Duldev Thengal is corroborated
by contemporaneous Medico Legal Certificate at Exhibit 42.
Evidence of the victim female child/PW1, as such, is gaining
corroboration from version of PW6 Dr.Duldev Thengal and torn
avk 21/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.dochymen of the victim female child/PW1 with postero lateral tear
on her private part indicates penetrative sexual assault on her by
the appellant/convicted accused, with whom she was till she was
brought back to Solapur. In the case of SectionState of Punjab vs.
Gurmeet Singh13 the Honourable Apex Court took a view that the
Courts dealing with the rape cases shoulder a greater
responsibility and they must deal with such cases with utmost
sincerity. Relevant paragraph of the said judgment is reproduced
as under :
"....It is an irony that while we are celebrating
women's rights in all spheres, we show little or no
concern for her honour. It is a sad reflection on the
attitude of indifference of the society towards the
violation of human dignity of the victims of sex
crimes. We must remember that a rapist not only
violates the victim's privacy and personal integrity,
but inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a
physical assault - it is often destructive of the whole
personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the
13 1996 Cri.L.J. 172avk 22/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docvery soul of the helpless female. The Courts,
therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The
Courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw
out an otherwise reliable prosecution case. If
evidence of the prosecutrix inspires confidence, it
must be relied upon without seeking corroboration
of her statement in material particulars. If for some
reason the Court finds it difficult to place implicit
reliance on her testimony, it may look for evidence
which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice.
The testimony of the prosecutrix must be
appreciated in the background of the entire case and
the trial court must be alive to its responsibility and
be sensitive while dealing with cases involving
sexual molestations."16 Though the learned counsel appearing for the
appellant/convicted accused relied on judgment in Sat Prakash
avk 23/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc(supra), Anmol and Others (supra), Babu Meena (supra) and
Sannaia Subha Rao (supra), those matters proceeded on their own
facts. In the case in hand, evidence of the victim female
child/PW1, so far as penetrative sexual assault on her, is duly
corroborated by medical evidence coming on record through PW6
Dr.Duldev Thengal.
17 Resultantly, the prosecution is successful in
establishing the offence of commission of rape as well as
penetrative sexual assault on the victim female child/PW1 by the
appellant/convicted accused, after kidnapping her from lawful
guardians. However, the Charge with reference to Section 366A
of Indian Penal Code fails as inducing a minor by seducing her to
illicit intercourse with other person is made punishable by the
penal provision. There is no mention of other person for whom
the victim female child/PW1 came to be kidnapped. Similarly, the
prosecution has also proved that in the course of penetrative
sexual assault on the victim female child/PW1, the
appellant/convicted accused had committed aggravated sexual
avk 24/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docassault on the victim female child/PW1 due to the fact that she
was subjected to sexual intercourse repeatedly by him. As such,
no infirmity cane be found in the conviction of the
appellant/convicted accused for the offence held to be proved by
the learned trial court except for the offence punishable under
Section 366A of the Indian Penal Code.
18 The learned trial court has sentenced the
appellant/convicted accused for the offence punishable under
Section 6 of the POCSO Act. At the same time, he is also
sentenced for offences punishable under Sections 8, 10 and 12 of
the POCSO Act. The learned trial court lost sight of provisions of
Section 71 of the Indian Penal Code. At this juncture, provisions of
Section 71 of the Indian Penal Code can be quoted with
advantage:
"Section 71 - Limit of punishment of offence made
up of several offences -- Where anything which is
an offence is made up of parts, any of which parts is
itself an offence, the offender shall not be punished
with the punishment of more than one of such hisavk 25/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docoffences, unless it be so expressly provided.
Where anything is an offence falling within two or
more separate definitions of any law in force for the
time being by which offences are defined or
punished, or
where several acts, of which one or more than one
would by itself or themselves constitute an offence,
constitute, when combined, a different offence,
the offender shall not be punished with a more
severe punishment than the Court which tries him
could award for any one of such offences."19 It is, thus, clear that when several acts of which one or
more than one would by itself or themselves constitute an offence,
constitute when combined a different offence, then the offender
cannot be punished with a more severe punishment than the court
which tries him could award for any such offence. Hence,
imposition of separate sentence for offences punishable under
Sections 8, 10 and 12 of the POCSO Act by the learned trial court
is unjustified. The appellant/convicted accused, as such, ought
not to have sentenced separately for offences punishable under
avk 26/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docSections 8, 10 and 12 of the POCSO Act.
20 The appellant/convicted accused is sentenced to suffer
rigorous imprisonment for 15 years apart from direction to pay
fine of Rs.20,000/- for the offence punishable under Section 6 of
the POCSO Act. Let us now examine whether this sentence is
proper. It is well settled that it is the duty of every court to award
proper sentence having regard to the nature of the offence and
the manner in which it was committed. The sentencing court is
expected to consider all relevant facts and circumstances bearing
on the question of sentence and proceed to impose a sentence
commensurate with the gravity of the offence. The sentence is
required to be adequate, just and proportionate with the gravity
and nature of the crime. At the same time, circumstances of the
accused are also required to be kept in mind while imposing the
sentence, as one of the objects of the criminal justice system is to
rehabilitate the transgressors and the criminals.
21 In the matter of State of Himachal Pradesh vs. Mange
avk 27/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docRam14 the evidence on record was showing that the prosecutrix
was below 16 years of age. It is held thus in paragraph 16 by the
Honourable Apex Court while sentencing the accused in that
case :
"16 In view of the foregoing conclusions, we
reverse the findings of the learned Sessions Judge
which was confirmed by learned Single Judge and
find that the accused is guilty of the offence
punishable under Section 376 I.P.C. As regards the
sentence, we take a lenient view for the reason that
the prosecutrix and accused are related. They were
both teenagers with an age difference of about 2-3
years. Both were immature and young. Evidence
indicates no marks of violence at all on any part of
the body of the prosecutrix. The incident happened
in 1993. After the acquittal by passage of time, the
members of the two families must have buried their
hatchet if any arisen on account of this incident. The
learned Counsel for the respondent argued that a
further order for custodial sentence at this distance
of time may cause rapture to social harmony in the
village life and may only help to rekindle the flames
of anger which have been smouldering for so long14 2000 CRI.L.J. 4027
avk 28/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docbetween near relatives. Having regard to all these
matters, we hold that sentence already undergone
by the accused would be sufficient to meet the ends
of justice, and we do accordingly."22 In the matter of SectionZindar Ali SK vs. State of West Bengal
and Another15 there was no love affair between the prosecutrix
and the accused but the accused was after the prosecutrix
requesting her to marry him and ultimately committed forcible
sexual intercourse with the prosecutrix. While dealing with
quantum of sentence, following are the observations of the
Honourable Apex Court in paragraph 15 of the judgment :
"15 This takes us to the last argument about the
quantum of sentence. The Courts below have
awarded 10 years of imprisonment and a fine of
Rs.5,000. In our opinion, considering the fact that
the incident took place about 6 years back and the
fact that the accused is behind the bars for last about
5 years, as also poverty on the part of the accused,
we feel that the sentence already suffered would be
sufficient. The sentence of fine is however,15 2009 CRI.L.J. 1324
avk 29/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docconfirmed. Fine, if recovered shall be paid to the
Prosecutrix. She shall be intimated by sending notice
to her. We, accordingly, modify the sentence. The
appeal is disposed of with this modification."23 In the matter of SectionPhul Singh vs. State of Haryana16, the
accused was aged about 22 years and was not a habitual offender.
He was found guilty of the offence punishable under Section 376
of the Indian Penal Code. While dealing with quantum of
sentence, following are the observations of the Honourable Apex
Court found in paragraphs 7 and 8 of the judgment :
"7 He is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife
and a farm to look after. Given correctional courses
through meditational therapy and other measures,
his erotic aberration may wither away. A man like
the appellant has a reasonable prospect of shaping
into a balanced person, given propitious social
environs, curative and congenial work and
techniques of internal stress release or of
reformatory self expression."16 1980 CRI.L.J. 8
avk 30/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.doc"8 In this background, we regard a four year term
of rigorous imprisonment more hardening than
habilitative, even though we deplore the sex
violence the young appellant has inflicted on his
cousin's wife snatching a tricky opportunity. Even so,
the incriminating company of lifers and others for
long may be counter-productive, and in this
perspective, we blend deterrence with correction
and reduce the sentence to rigorous imprisonment
for two years. We wish to emphasise that the special
circumstances of this case constrain us to relent a
little on principle because the restorative approach
to sentencing has been jettisoned by the courts
below."24 Lastly, in the matter of SectionState of Rajasthan vs. N.K.
(Accused)17 the Honourable Apex Court has observed thus while
deciding the quantum of sentence for the offence punishable
under Section 376 of the Indian Penal Code.
"19 Now remains the question of sentence. The
incident is of the year 1993. The accused was taken
into custody by the police on 3.11.1993. He was not17 2000 CRI.L.J.2205
avk 31/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docallowed bail. During the trial as also during the
hearing of the appeal by the High Court he remained
in jail. It is only on 11.10.1995 when the High Court
acquitted him of the charge that he was released
from jail. Thus he had remained in jail for a little
less than two years. Taking into consideration the
period of remission for which he would have been
entitled and the time which has elapsed from the
date of commission of the offence, we are of the
opinion that the accused-respondent need not now
be sent to jail. It would meet the end of justice if he
is sentenced to undergo imprisonment for the period
already undergone by him and to a fine of Rs.2000/-
with further simple imprisonment of one year and
nine months in default of payment of fine as passed
by the Trial Court. The appellant is allowed time till
1st May, 2000 for payment of fine. The accused-
respondent is on bail. The bail bonds shall stand
discharged on payment of fine as directed. Ordered
accordingly."25 In the case in hand also, the appellant/convicted
accused was 29 years of age when the incident took place. There
avk 32/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docis nothing on record to show that he is a habitual offender or
criminal. The incidents of sexual intercourse between him and
the victim female child/PW1 were consensual in nature, though
the victim female child/PW1 had not attained age of consent. In
other words, the appellant/convicted accused had not committed
penetrative sexual assault by using force on the victim female
child/PW1. The victim female child/PW1 had eloped with him
and the kidnapping was not by taking her by applying force.
Therefore, I am of the considered opinion that imposition of
sentence of 15 years rigorous imprisonment on the appellant/
convicted accused, so also imposition of fine of Rs.20,000/- on
him, is totally disproportionate in the facts of the case in hand.
Evidence of PW2 Rajukumar shows that the victim female
child/PW1 has already received compensation from the State.
The appellant/convicted accused is described as a labour in the
charge-sheet. As such, I am of the considered opinion that fine
imposed on him also needs to be reduced suitably.
26 In the result, the following order :avk 33/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docORDER
i) The appeal is partly allowed.
ii) The impugned order and judgment is modified thus :
ii-a) Conviction of the appellant/convicted accused for offences
punishable under Sections 6, 8, 10 and 12 of the POCSO Act
is maintained.
ii-b) For the offence punishable under Section 6 of the POCSO
Act, the appellant/convicted accused is sentenced to suffer
rigorous imprisonment for 10 years and to pay a fine of
Rs.5,000/-, in default, to undergo further rigorous
imprisonment for 6 months.
ii-c) No separate sentence is imposed on the appellant/convicted
accused for offences punishable under Sections 8, 10 and 12
of the POCSO Act.
ii-d) Conviction of the appellant/convicted accused for the
offence punishable under Section 376(2) of the Indian Penal
Code is maintained but no separate sentence is awarded to
him on this count.
avk 34/35::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
APPEAL-660-2018-J.docii-e) Conviction and sentence imposed on the
appellant/convicted accused for the offence punishable
under Section 363 of the Indian Penal Code is maintained.
ii-f) The appellant/convicted accused is acquitted of the offence
punishable under Section 366A of the Indian Penal Code.
iii) On recovery of the fine amount, the same be paid to the
victim female child/PW1.
iv) Rest of the impugned order is maintained.
v) The appeal is disposed off accordingly.
(A. M. BADAR, J.)
avk 35/35
::: Uploaded on - 09/10/2019 10/10/2019 02:31:06 :::
