206-APPEAL-191-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.191 OF 2016
PRAKASH JAGANNATH SADAMATE )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Ashish Satpute, Appointed Advocate for the Appellant.
Mr.Amit Palkar, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 23rd SEPTEMBER 2019
ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging
the judgment and order dated 28 th January 2016 passed by the
learned Special Judge and Additional Sessions Judge, Sangli, in
Special Case (POCSO) No.97 of 2013 for offences punishable
under Section 376(2(f) of the Indian Penal Code as well as under
Section 6 of the Protection of Children from Sexual Offences Act,
avk 1/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
2012 (hereinafter referred to as POCSO Act for the sake of
brevity) apart from the offence punishable under Section 506 of
the Indian Penal Code. For offences punishable under Section
376(2)(f) of the Indian Penal Code as well as under Section 6 of
the POCSO Act, the appellant/accused is separately sentenced to
suffer rigorous imprisonment for 11 years apart from direction to
pay fine of Rs.2500/- and in default, to undergo simple
imprisonment for 1 month. For the offence punishable under
Section 506 of the Indian Penal Code, he is sentenced to suffer
rigorous imprisonment for 6 months. Substantive sentences are
directed to run concurrently by the learned trial court.
2 Facts, in brief, leading to the prosecution and the
resultant conviction of the appellant/accused, can be summarised
thus :
(a) First Informant/PW3 Dipali is mother of the victim female
child/PW4, who on the date of the incident, was below 10
years of age. The victim female child/PW4 was residing
along with her mother PW3 Dipali and other relatives at
avk 2/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
Vitthalwadi of Palus Taluka in Sangli District. She was taking
education in Fourth Standard at the Zilla Parishad School of
Vitthalwadi.
(b) PW3 Dipali noticed that her daughter i.e. the victim female
child/PW4 remained silent and became introvert. Therefore,
on 6th February 2013, PW3 Dipali took her daughter i.e. the
victim female child/PW4 in confidence and asked her the
reason for her abnormal behaviour. Thereafter, the victim
female child/PW4 disclosed to her mother – PW3 Dipali the
fact that in the afternoon of 31st January 2013, when she was
playing with her friend Nikita in the open place in front of
office of Gram Panchayat, the appellant/accused caller her as
well as her friend Nikita at the temple, by alluring them that
he would give sweets to them. Then, the appellant/accused
committed penetrative sexual assault on her by asking her to
remove her knicker. Then, he gave threat to her not to
disclose the incident to anybody else.
avk 3/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
(c) After hearing the trauma suffered by her daughter, PW3
Dipali disclosed the incident to her relatives. Her husband
and other male members of the family then went to the house
of the appellant/accused for questioning him. However,
inmates of his house did not allow them to meet the
appellant/accused. Then, they all met Sarpanch of Village
Sambhaji Sadamate. The Sarpanch told them that a meeting
would be convened on the next day and then suitable action
would be taken.
(d) On 7th February 2013, father of the victim female child/PW4
and other villagers including the Sarpanch went to the Zilla
Parishad School of the village and disclosed the incident to
teachers. The appellant/accused was found absconding. The
Sarpanch then insisted the father of the victim female
child/PW4 to wait for two days. Despite waiting for two
days, the appellant/accused did not return, and therefore, on
9th February 2013, PW3 Dipali went to Police Station Palus
and lodged the report which has resulted in registration of
Crime No.12 of 2013 against the appellant/accused.
avk 4/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
(e) The victim female child/PW4 was then sent to Rural Hospital,
Palus, where she was examined by PW5 Shivaji Gosavi,
Medical Officer. The spot of the incident came to be
inspected and Spot Panchnama Exhibit 18 was drawn. PW3
Dipali had produced frock and knicker of the victim female
child/PW4 and the same was seized in presence of PW6
Balasaheb Ghadge – panch witness by Police Inspector
Bhausaheb Gondkar – Investigating Officer, by preparing
Panchnama Exhibit 38. Document regarding age of the
victim female child/PW4 came to be collected. The
appellant/accused was arrested. He was also sent for medical
examination and sample of his blood and semen came to be
collected. The seized articles were sent for chemical analysis
to Forensic Science Laboratory at Pune. On completion of
investigation, the appellant/accused came to be charge-
sheeted.
(f) Charge for offences punishable under Sections 376(2)(f) and
506 of the Indian Penal Code as well as under Section 6 of
avk 5/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
the POCSO Act was framed and explained to the
appellant/accused. He pleaded not guilty and claimed trial.
(g) In order to bring home the guilt to the appellant/accused, the
prosecution has examined in all eight witnesses. Material
amongst them are PW3 Dipali – mother of the victim female
child/PW4, PW5 Dr.Shivaji Gosavi, PW6 Balasaheb Ghadge –
panch witness to the Seizure Panchnama Exhibit 38 and PW8
Bhausaheb Gondkar – Investigating Officer. Defence of the
appellant/accused was that of total denial and false
implication. According to the defence, the appellant/accused
was working as a Turner in a private company at Palus. He is
absolutely unaware about the incident. The appellant/
accused was not knowing the First Informant as well as the
victim female child/PW4.
(h) After hearing the parties, the learned trial court, by the
impugned judgment and order, was pleased to convict the
appellant/accused and sentenced him accordingly, as
indicated in the opening paragraph of this judgment.
avk 6/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
3 I have heard the learned advocate appearing for the
appellant/accused at sufficient length of time. He argued that
Nikita, who happens to be friend of the victim female child/PW4,
was very much present at the time of the incident. She is not
examined by the prosecution and as such, case of the prosecution
is unbelievable and unacceptable. To buttress this contention, he
has placed reliance on the judgment in the matter of Navin
Dhaniram Baraiye vs. The State of Maharashtra 1. The learned
advocate further argued that complaint to the Sarpanch was that
of eve teasing and not of rape. The First Information Report (FIR)
came to be lodged after due deliberation with Hari Kadam, Police
Sub-Inspector, who happens to be relative of the prosecuting party.
The same is a counterblast to the apprehended case of atrocity
likely to be filed by relative of the appellant/accused. The learned
advocate further argued that cross-examination of the victim
female child/PW4 shows that several boys by name Pakya were
residing in the village and identity of the appellant/accused is not
established. It is further argued that medical evidence is not
1 2018 Cri.L.J. 3393
avk 7/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
supporting the case of the prosecution, and as such, the appellant/
accused is entitled for acquittal.
4 The learned APP supported the impugned judgment
and order of conviction as well as the resultant sentence.
5 I have considered the submissions so advanced and
also perused the record and proceedings including oral as well as
documentary evidence.
6 Law relating to appreciation of evidence of a victim in
a rape case has been crystallized by catena of judgments by the
Hon’ble Apex Court. At this juncture, it is apposite to quote
observations from the judgment in the case of State of Punjab vs.
Gurmeet Singh2 wherein 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 :
2 1996 Cri.L.J. 172
avk 8/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
“….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
very 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
avk 9/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
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.”
It is, thus, clear that, the court is required to consider broader
probabilities of case of the prosecution rather than adhering to the
technicalities of law. Minor contradictions and inconsistencies in
case of the prosecution cannot be given any overbearing
importance.
7 In the case in hand, the victim female child/PW4 was
below 10 years of age, at the time of the alleged incident. Her age
is not disputed by the defence. The prosecution has placed on
record Certificate of Age of the victim female child/PW4 issued by
P.V.P.G.H. Hospital, Sangli. The same is stating age of the victim
female child/PW4 as 10 years. The prosecution has also placed on
record Bonafide Certificate of the victim female child/PW4 issued
avk 10/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
by Zilla Parishad School of Vitthalnagar, Sangli. The said Bonafide
Certificate shows date of birth of the victim female child/PW4 as
11th April 2003. Both these documents are admitted by the
defence and marked as Exhibits 33 and 30 respectively. Both these
documents regarding age of the victim female child/PW4 are fully
corroborating version of PW3 Dipali – mother of the victim female
child/PW4, regarding date of birth of the victim female child/PW4
as 11th April 2003. The incident in question allegedly took place
on 31st January 2013, and as such, on that day, the victim female
child/PW4 was below 10 years of age. Thus, she was a child as
defined by Section 2(d) of the POCSO Act.
8 Now let us examine whether evidence of the victim
female child/PW4 demonstrates commission of penetrative sexual
offence by the appellant/accused and whether she is a witness of
truth. In the matter of Navin Dhaniram Baraiye (supra) relied by
the learned advocate for the appellant/accused, co-ordinate Bench
of this court has considered the issue of evaluation of evidence of
a child witness. Reliance was placed on judgment of Radhey
avk 11/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
Shyam vs. State of Rajasthan3 and paragraph 12 of the said
judgment was reproduced. It reads thus :
“12 In Panchhi, (1998 SCC (Cri) 1561) after
reiterating the same principles, this Court observed
that the evidence of a child witness must be
evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and, thus, a child
witness is an easy prey to tutoring. This Court
further observed that the courts have held that the
evidence of a child witness must find adequate
corroboration before it is relied upon. But, it is more
a rule of practical wisdom than of law. It is not
necessary to refer to other judgments cited by
learned counsel because they reiterate the same
principles. The conclusion which can be deduced
from the relevant pronouncements of this Court is
that the evidence of a child witness must be
subjected to close scrutiny to rule out the possibility
of tutoring. It can be relied upon if the court finds
that the child witness has sufficient intelligence and
understanding of the obligation of an oath. As a
matter of caution, the court must find adequate
corroboration to the child witness’s evidence. If3 (2014) 5 SCC 389
avk 12/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.docfound, reliable and truthful and corroborated by
other evidence on record, it can be accepted without
hesitation. We will scrutinize PW-2 Banwari’s
evidence in light of the above principles.”
9 It is, thus, clear that, evidence of a child witness is
required to be evaluated carefully as children are prone to
tutoring. However, in the case in hand, not a single question was
put to the victim female child/PW4 in defence in order to
demonstrate that she is a tutored witness. Be that as it may, it is
in evidence of the victim female child/PW4 that on the day of the
incident, after returning from the school at 2.30 p.m., she along
with her friend Nikita were playing in front of office of Gram
Panchayat of Vitthalwadi. The appellant/accused then called both
of them by alluring them with the offer of providing sweets to
them. She deposed that at the instance of the appellant/accused,
they both went towards him. He had taken them to a temple and
asked the victim female child/PW4 to remove her knicker.
Accordingly, she removed her knicker. The appellant/accused
made the victim female child/PW4 to sit on katta of the temple
avk 13/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
and licked her private part. Thereafter, he attempted to insert his
penis in her vagina. She started suffering pain and therefore
shouted loudly. The appellant/accused then left her and while
leaving her, gave threat to kill her, if the incident was disclosed to
anybody else. The victim female child/PW4 further deposed that
because of fret, due to threats given by the appellant/accused, she
did not disclose the incident to anybody and therefore was
frightened. She has then spoken about narration made by her to
her mother – PW3 Dipali, after passage of time. While in witness
box, the victim female child/PW4 identified her frock as well as
her knicker. She also identified the appellant/accused before the
court.
10 It is faintly argued that the offence was not that of
penetrative sexual assault but at the most it can be an attempt to
commit penetrative sexual assault. Section 3 of the POCSO Act
makes it clear that even slightest penetration amounts to the
offence of penetrative sexual assault. The victim female
child/PW4 has categorically stated that the appellant/accused
avk 14/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
attempted to insert his penis in her vagina causing pain to her.
This implies that the appellant/accused tried to insert his penis in
the vagina of the victim female child/PW4, who at the relevant
time was below 10 years of age. This evidence certainly leads to
the conclusion that there was penetration, may not be a full
penetration, leading to the tearing of the hymen.
11 In cross-examination of the victim female child/PW4,
an attempt was made to dispute identity of the appellant/accused
as the perpetrator of the crime in question. It was sought to be
suggested to her that several boys by name Pakya are residing in
Village Vitthalwadi and therefore, she is unable to identify the
appellant/accused. However, at the same time, questions were put
to the victim female child/PW4 to show that she was knowing the
appellant/accused very well, even prior to the incident. In
paragraph 2 of the cross-examination of the victim female
child/PW4, it is elicited from her mouth that she was knowing the
appellant/accused prior to the incident, as he happened to be
residing in the same village where she was residing and as the
avk 15/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
appellant/accused was residing near the house of the victim
female child/PW4. The victim female child/PW4 has answered
these questions in affirmative but has stated that she did not know
full name of the appellant/accused as well as name of his father.
With this material elicited from cross-examination of the victim
female child/PW4 vis-a-vis her evidence in chief-examination that
the appellant/accused sitting in the dock is the very same person,
who had committed rape on her, question of mistaken identity
does not arise.
12 From cross-examination of the victim female
child/PW4, it is further brought on record that she along with her
friend Nikita were allured by offering sweets to them and as the
appellant/accused tempted her as well as her friend, they
followed him to the secluded temple in the village. This material
brought on record from cross-examination of the victim female
child/PW4 is cementing evidence of the victim female child/PW4.
13 It was attempted to demonstrate from cross-
examination of the victim female child/PW4 that after the alleged
avk 16/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
incident dated 31st January 2013, the victim female child/PW4
was following her normal pursuits till disclosure of the incident to
her mother – PW3 Dipali. However, on this aspect, evidence of
her mother – PW3 Dipali makes the position clear. PW3 Dipali has
candidly stated before the court that her daughter i.e. the victim
female child/PW4 was behaving abnormally and she became
introvert, requiring her to ascertain as to what happened with her.
14 At the time of lodging the FIR by PW3 Dipali, knicker
of the victim female child/PW4 was not handed over to the police.
The FIR was lodged on 9th February 2013. Knicker of the victim
female child/PW4 came to be seized by the police on 10 th February
2013 under Panchnama Exhibit 38. It was attempted to
demonstrate that the victim female child/PW4 used to hand over
her clothes to her mother – PW3 Dipali regularly for washing.
However, so far as the knicker was concerned, the victim female
child/PW4 made it clear in her evidence that after the incident in
question, as her knicker became white, she had kept it concealed
in her bed and after six days, she had given it to the police. It is
avk 17/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
further seen from her evidence that the said knicker was produced
before the police only when police made inquiry in respect of the
knicker. The victim female child/PW4 was below 10 years of age.
Her mother – PW3 Dipali is a rustic female residing in Village
Vitthalwadi and was doing housework. In such situation, it is not
expected of them to know intricacies of law in production of
knicker of the victim female child/PW4 to support their case. It
was after inquiry of police that the knicker came to be produced
by the mother of the victim female child/PW4 and as such, this
aspect cannot be construed to doubt case of the prosecution.
15 PW3 Dipali has corroborated version of the victim
female child/PW4 by stating that since prior to eight days of
lodging the FIR, she was observing abnormal behaviour of her
daughter i.e. the victim female child/PW4 and therefore, she
enquired from her, about her such behaviour, on 6 th February
2013. Thereafter, her daughter i.e. the victim female child/PW4
had disclosed about the penetrative sexual assault by the
appellant/accused on her. Evidence of PW3 Dipali shows the steps
avk 18/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
taken by her as well as her family members for taking recourse to
law. Initially, house of the appellant/accused was visited by them
for questioning the appellant/accused. His family members
prevented them. Evidence of PW3 Dipali further shows that then
Sarpanch of the village was approached and he kept them waiting
for two days with an assurance that the appellant/accused would
be found out and would be questioned in the matter. Ultimately,
as the appellant/accused was not found in the village, FIR came to
be lodged by PW3 Dipali on 9th February 2013. No doubt, this FIR
was lodged after having a talk with Hari Kadam, Police Sub-
Inspector, who happens to be relative of the prosecuting party, but
that by itself, would not amount to a circumstance which may
create doubt in case of the prosecution. In such eventuality, it is
but natural, for a layman, to get information about further course
of action to be taken in the matter. This is reflected from conduct
of the members of the prosecuting party in approaching the
Sarpanch of the village as well as teachers from the school, where
the victim female child/PW4 was taking education. In the similar
manner, relative – who happens to be a Police Sub-Inspector, was
avk 19/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
also contacted by members of the prosecuting party. This seems to
be a natural conduct.
16 Some minor inconsistencies and minor contradictions
were sought to be pressed in service. Whether the victim female
child/PW4 had shouted or not at the time of the alleged incident
and whether non-disclosure of such shouting to the Investigator
casts a shadow of doubt on the prosecution case, is a matter to be
considered by the court. The victim female child/PW4 was below
10 years of age at the time of the incident and it is but natural for
her to shout when pitted against a young boy. Non-disclosure of
shouting by her to police does not amount to omission, which goes
to the root of the prosecution case.
17 PW5 Dr.Shivaji Gosavi had examined the victim female
child/PW4 on 9th February 2013. He could not find any injury
marks on the person of the victim female child/PW4. This,
according to the learned advocate for the appellant/accused,
negates the case of prosecution. However, the law is otherwise. It
is a settled legal position that the medical evidence is also a
avk 20/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
corroborative piece of evidence but where the medical evidence
does not support the otherwise clinching and trustworthy ocular
evidence of any material witness then, the testimony of such
ocular evidence will prevail on the medical opinion and not vice
versa. In the case of Ranjit Hazarika v. State of Assam4, the
opinion of the doctor was that no rape appeared to have
committed because of the absence of rupture of hymen and
injuries on the private part of the prosecutrix, the Apex Court took
a view that the medical opinion cannot throw over board an
otherwise cogent and trustworthy evidence of the prosecutrix.
18 The Honourable Apex Court in B.C.Deva v. State of
Karnataka5, inspite of the fact that no injuries were found on
person of the prosecutrix, yet finding her version to be reliable
and trustworthy, the Honourable Apex Court upheld the
conviction of the accused. The Court observed that :
“18 The plea that no marks of injuries were
found either on the person of the accused or the
person of the prosecutrix, does not lead to any
4 (1998) 8 SCC 635
5 (2007) 12 SCC 122
avk 21/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
inference that the accused has not committed
forcible sexual intercourse on the prosecutrix.
Though the report of the gynaecologist pertaining to
the medical examination of the prosecutrix does not
disclose any evidence of sexual intercourse, yet even
in the absence of any corroboration of medical
evidence, the oral testimony of the prosecutrix,
which is found to be cogent, reliable, convincing and
trustworthy has to be accepted.”
Thus, non-finding of injury on the person of the victim or on the
private part of the victim, after a lapse of eight or nine days
cannot be a circumstance to throw out the testimony of the victim
female child/PW4.
19 Evidence of PW6 Balasaheb Ghadge – panch witness
so also that of PW3 Dipali makes it clear that on 10 th February
2013, PW3 Dipali had produced knicker of her female child i.e.
the victim female child/PW4, before the police. PW6 Balasaheb
Ghadge deposed that the frock as well as the knicker produced by
PW3 Dipali came to be seized by police by preparing Seizure
Panchnama Exhibit 38. This fact is also vouched by PW8
avk 22/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
Bhausaheb Gondkar, Investigating Officer. Contemporaneous
panchnama at Exhibit 38 also shows that blue frock and a knicker
came to be seized by the police on 10 th February 2013. The
Seizure Panchnama Exhibit 38 further shows that the said knicker
was having white stain. Evidence of PW8 Bhausaheb Gondkar,
Investigating Officer, shows that after his arrest, the
appellant/accused was medically examined and sample of his
blood as well as semen came to be collected. His evidence further
shows that seized samples were sent for chemical analysis at the
Regional Forensic Laboratory at Pune. The Chemical Analyser’s
Report at Exhibits 15 and 12 shows that blood of the
appellant/accused was that of “A” Group and semen of “A” Group
was found on seized knicker of the victim female child/PW4. It is
argued that, according to the prosecution case, the victim female
child/PW4 was asked to remove her knicker, and as such, there
cannot be any possibility of the said knicker staining with semen.
It is further argued that evidence of the victim female child/PW4
does not show that there was discharge of semen. The victim
female child/PW4 was below 10 years of age at the time of
avk 23/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
incident and as such, it is not expected of her to know nature of
sexual act, and more particularly, the act of emission of semen.
Similarly, her evidence shows that after the act, she put on her
knicker and returned back to her house. In that process, there is
every likelihood of staining of the knicker by semen. No plausible
explanation can be found in this regard in statement of the
appellant/accused recorded under Section 313 of the Code of
Criminal Procedure. With this, foundational facts are proved by
the prosecution.
20 With this evidence, the prosecution has certainly
proved that the appellant/accused had committed penetrative
sexual assault on the victim female child/PW4 and as she was
below 12 years of age at the time of commission of the offence,
the penetrative sexual assault takes shape of aggravated
penetrative sexual assault. Evidence of the victim female
child/PW4 shows that she was threatened by the appellant/
accused to not to disclose the incident with a consequence to kill
her. So far as non-examination of Nikita is concerned, position of
avk 24/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
law is settled that where available evidence makes out the offence,
non-examination of other witnesses, who may be available, cannot
create dent in prosecution case. However, when available
evidence is discrepant and insufficient to prove the offence, then
availability of other evidence and non-production of the same
before the court, assumes importance. Such is not the case in
hand. Available evidence is certainly sufficient to establish the
guilt of the appellant/accused.
21 With this, I conclude that the prosecution has
established the offence with which the appellant/accused was
charged. Now let us examine sentencing part of the impugned
judgment and order. The appellant/accused though rightly
convicted of offences punishable under Sections 376(2)(f) of the
Indian Penal Code as well as under Section 6 of the POCSO Act,
he is sentenced separately for both these offences, as indicated in
the opening paragraph of this judgment. Section 42 of the POCSO
Act deals with alternate punishment. It provides that where an act
or omission constitutes an offence punishable under the said Act
avk 25/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
and also under Section 376 of the Indian Penal Code, then,
notwithstanding anything contained in any law for the time being
in force, the offender found guilty of such offence shall be liable to
punishment under the said Act or under the Indian Penal Code as
provided for punishment which is greater in degree. In this view
of the matter, the appellant/accused ought not to have been
punished twice by the learned Special Judge. The appeal,
therefore, needs to be partly allowed. Hence, the order :
ORDER
i) The appeal is partly allowed.
ii) Conviction of the appellant/accused for offences punishable
under Sections 376(2)(f) and 506 of the Indian Penal Code
as well as under Section 6 of the POCSO Act is maintained.
However, in view of inflicting of punishment to the
appellant/accused for the offence punishable under Section
6 of the POCSO Act, sentence of 11 years of rigorous
avk 26/27
::: Uploaded on – 24/09/2019 24/09/2019 23:13:28 :::
206-APPEAL-191-2016.doc
imprisonment, fine of Rs.2500/- and default sentence of
simple imprisonment for 1 month imposed on the appellant/
accused for the offence punishable under Section 376(2)(f)
of the Indian Penal Code is quashed and set aside.
iii) Needless to mention that the sentence imposed on the
appellant/accused for the offence punishable under Section
6 of the POCSO Act as well as under Section 506 of the
Indian Penal Code is maintained.
iv) Rest of the part of the impugned judgment and order of the
learned trial court is maintained.
v) The appeal is accordingly disposed off.
vi) Copy of this judgment and order be sent to the
appellant/accused in the jail.
(A. M. BADAR, J.)
avk 27/27
::: Uploaded on - 24/09/2019 24/09/2019 23:13:28 :::
