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Prakash Jagannath Sadamate vs The State Of Maharashtra on 23 September, 2019

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,

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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

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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.

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(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.

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(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

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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.

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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

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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

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“….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

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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

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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

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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. If

3 (2014) 5 SCC 389

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found, 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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.)

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