Bombay High Court
Balaji Sarjerao Kamble vs The State Of Maharashtra on 29 August, 2017
Bench: A.M. Badar
202-APPEAL-28-2016-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.28 OF 2016
BALAJI SARJERAO KAMBLE )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Satyavrat Joshi, Advocate for the Appellant.
Mr.Vinod Chate, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 29th AUGUST 2017
ORAL JUDGMENT :
1 By this appeal, the appellant / accused is challenging
the judgment and order dated 15th December 2015 passed by the
learned Special Judge, Pune, in Special (Child) Case No.66 of
2014 thereby convicting him of the offence punishable under
Section 376 of the Indian Penal Code (IPC) so also under Sections
4 and 8 of the Protection of Children from Sexual Offences Act,
2012, (hereinafter referred to as POCSO Act). For the offence
punishable under Section 376 of the IPC, the appellant / accused
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is directed to undergo rigorous imprisonment of 7 years apart
from directing him to pay fine of Rs.5,000/-, in default, to
undergo further rigorous imprisonment of 3 months. Similarly, for
the offence punishable under Section 4 of the POCSO Act, he is
sentenced separately to suffer rigorous imprisonment of 7 years,
apart from directing him to pay fine of Rs.5,000/-, in default, to
undergo further rigorous imprisonment of 3 months. For the
offence punishable under Section 8 of the POCSO Act, the
appellant / accused is sentenced to suffer rigorous imprisonment
of 3 years, apart from directing him to pay fine of Rs.1,000/-, in
default, to undergo further rigorous imprisonment of 1 month.
Substantive sentences are directed to run concurrently.
2 Facts leading to the institution of the present appeal
can be summarized thus :
(a) Informant PW2 Shamalata Gadkari used to reside at
Hargudevasti, Chikali, Pune, with her husband Prashant, son
Pranay and daughter (PW1) aged about 7 years, who is stated to
be the victim of the crime in question. The incident allegedly took
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place on 21st December 2013. The victim female child (PW1) at
the relevant time was taking education in 1 st Standard in
Saraswati English Medium School at Pawarvasti, Chikhali, Pune.
(b) The appellant / accused is stated to be neighbour of First
Informant-PW2 Shamalata Gadkari. He used to visit house of the
First Informant-PW2 Shamalata Gadkari frequently. Children of
First Informant-PW2 Shamalata Gadkari used to play games on
mobile phone of the appellant / accused. Children of the First
Informant-PW2 Shamalata Gadkari used to call appellant /
accused Balaji Kamble as "mama" - maternal uncle.
(c) It is case of the prosecution that the incident in question
took place on 21st December 2013 at about 8.00 p.m. Appellant /
accused Balaji came to the house of PW2 Shamalata Gadkari, and
the minor female child (PW1) who is daughter of PW2 Shamalata
Gadkari, accompanied him for playing games on mobile phone.
She returned to her house after half an hour. On 22 nd December
2013 also, at about 6.00 p.m. appellant / accused Balaji came to
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the house of PW2 Shamalata Gakari to enquire as to where the
minor female victim (PW1) is. Upon being told that she had gone
outside for playing, the appellant / accused left the house of PW2
Shamalata Gadkari. The minor female victim (PW1) then returned
to her house and slept.
(d) In late night hours of 22 nd December 2013, the minor female
victim (PW1) informed her mother PW2 Shamalata Gadkari that
she is suffering pain at abdomen and private part. However, PW2
Shamalata Gadkari did not pay any attention.
(e) In the morning hours of 23rd December 2013, the PW1 /
minor female victim reiterated her complaint of pain at private part
and abdomen to her mother PW2 Shamalata Gadkari. This resulted
in detailed questioning of the minor female victim by her mother. It
was thereafter that the minor female victim (PW1) disclosed to her
mother PW2 Shamalata Gadkari that the day before yesterday,
appellant / accused Balaji took her to the staircase, kissed her, took
out her nicker and committed rape on her.
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(f) PW2 Shamalata Gadkari then called her husband and took
the minor female victim (PW1) to the hospital of PW3 Dr.Neelam
Kale. Ultimately, PW2 Shamalata Gadkari went to Police Station
Nigdi on 23rd December 2012 itself and lodged FIR Exhibit 12
against the appellant / accused which had resulted in registration
of Crime No.3432 of 2013 for offences punishable under Sections
3, 4, 7 and 8 of the POCSO Act.
(g) During course of investigation, the minor female victim
(PW1) was sent for medical examination to the Sassoon Hospital,
Pune, where she came to be examined by PW4 Dr.Swati Kagne -
Junior Resident. The appellant / accused came to be arrested.
Statement of witnesses came to be recorded. Clothes of the
appellant / accused so also that of minor female victim came to be
seized. Seized articles were sent for chemical analysis and on
completion of investigation, the appellant / accused came to be
charge-sheeted.
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(h) The learned trial court framed charges for offences
punishable under Section 376 of the IPC and under Sections 4 and
8 of the POCSO Act. The appellant / accused abjured his guilt
and claimed trial. In order to bring home the guilt to the
appellant / accused, the prosecution has examined in all five
witnesses. The minor female victim of the crime in question is
examined as PW1 whereas her mother - First Informant
Shamalata Gadkari is examined as PW2. Dr.Neelam Kale is
examined as PW3 whereas Dr.Swati Kagne is examined as PW4.
Exhibit 19 is the certificate of medical examination of the PW1
issue by PW4 Dr.Swati Kagne. Investigating Officer Rupali
Bobade, A.P.I. of Nigdi Police Station, is examined as PW5.
(i) Defence of the appellant / accused is that of total denial as
well as false implication. The appellant / accused belongs to
Mang caste. According to him, his family has purchased a piece of
land at Hargudevasti, dominated by people from Maratha
community. Neighbours belonging to Maratha caste were not
happy with this act. His elder brother was kidnapped which has
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resulted in registering of the crime against persons belonging to
Maratha caste. Similarly, one Shrikant Tambe had lodged report
of commission of rape against eldest brother of the appellant /
accused, in which brother of the appellant / accused came be
acquitted. Thus, because of this hostility with people from
Maratha community, the appellant / accused is falsely implicated
in the crime in question. It is the defence of the appellant /
accused that for withdrawing the case of abduction of his eldest
brother, he is falsely implicated in the crime in question. At the
time of the incident, he was giving examination at the Disha
Computers.
3 I heard Shri Satyavrat Joshi, the learned advocate
appearing for the appellant / accused. He argued that entire
evidence of the prosecution is silent about age of the alleged vitim
of the crime in question. The prosecution was duty bound to prove
that the minor female victim was a child within the meaning of
the said term under the POCSO Act. As age of the victim is not
proved, the prosecution case suffers from serious infirmity. He
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further argued that the victim of the crime in question, has not
disclosed the date of the incident. Evidence regarding place of the
incident is also discrepant. History given to the doctor shows that
the incident allegedly took place at the terrace whereas, evidence
suggests that it took place near staircase. According to the learned
advocate for the appellant / accused, conduct of mother of the
victim in not disclosing anything to PW3 Dr.Neelam Kale to whom
she approached first, casts a shadow of doubt on the case of the
prosecution. Alleged sexual assault on the PW1 was not at all
disclosed to this witness. In submission of Shri Joshi, the learned
advocate for the appellant / accused, medical evidence is also not
supporting the prosecution case. Tearing of hymen is attributable
to fingering and the tear was old one. Therefore, it cannot be said
that it was the appellant / accused, who had committed the
offence of penetrative sexual assault on the minor female victim.
4 As against this, according to the learned APP, the
defence has never disputed age of the minor female victim, and as
age of the victim coming on record through the chief examination
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remained unchallenged, the same needs to be accepted. The
learned APP drew my attention to the medical case papers proved
by PW4 Dr.Swati Kagne, reflecting age of the victim. The learned
APP, further argued that evidence of the minor female victim is
cogent and trustworthy and the same is supported by other
evidence on record, and as such, the impugned judgment and
order is perfectly in consonance with the evidence on record.
5 With the help of the learned advocate appearing for
the appellant / accused as well as the the learned APP, I have
carefully gone through the record and proceedings including
deposition of witnesses as well as documentary evidence adduced
by the prosecution. I have carefully considered the rival
submissions.
6 The case in hand is a case of rape / penetrative sexual
assault on a minor female child, who according to the prosecution
case, was just about 6 to 8 years, at the time of the alleged
incident. It hardly needs to be mentioned that rape is a ghastly
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act which leaves the victim shattered for the life as it causes not
only physical but emotional and psychological trauma to the
victim. Sexual activities with young girls of immature age have a
traumatic effect on them, which persists throughout their life
leading to several disorders and complications. It is well settled
that the victim of a sexual assault is not an accomplice, but she is
a victim of lust of another person. Her evidence stands at a higher
pedestal than that of an injured witness. Evidence of victim of
rape case is required to receive same weight as is attached to
evidence of an injured witness. If totality of circumstances
emerging on record discloses that the victim of such crime does
not have any motive to falsely implicate the accused, then, it is not
required to seek corroboration to her evidence and the court
generally needs to accept her evidence. While dealing with cases
of sexual assault on females of tender ages, the court is expected
to shoulder great responsibility and is required to deal with such
cases sensibly. Broader probabilities of the prosecution case are
required to be examined in such crimes and the court is not
expected to get swayed by minor contradictions or insignificant
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discrepancies in the evidence of prosecution which does not go to
the core of the prosecution case. At the same time, principle of
criminal jurisprudence requires that the prosecution must
establish its case by cogent and convincing evidence. No matter
how diabolic is crime, the burden always rests on the prosecution
to prove guilt of the accused beyond all reasonable doubts. The
same principle is equally applicable to the cases of sexual offences
against persons of tender years. Keeping in mind these principles
of appreciation of evidence in such cases, let us examine evidence
of the prosecution in order to ascertain whether the prosecution
has established that the appellant / accused had committed
penetrative sexual assault on a female child and whether evidence
adduced by the prosecution justifies conviction of the appellant /
accused.
7 Section 2(d) of the POCSO Act 2012 defines the term
"child". The "child", according to this definition, means a person
below the age of 18 years. Let us, therefore, at the outset examine
whether evidence of the prosecution demonstrates that at the time
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of commission of alleged offence, the victim thereof was a "child".
It is worthwhile to mention here that, though the victim of the
alleged crime was taking school education, the prosecution has
not cared to bring on record documentary evidence of her date of
birth in the form of General Register maintained by the school, her
Birth Certificate as per provisions of Registration of Birth and
Death Act or Bonafide Certificate issued by the school. The
prosecution is contented by adducing oral evidence in this regard.
The PW1, who is alleged victim of the crime, has deposed before
the court that she is 8 years old. She was unable to tell her date
of birth. However, in her entire cross-examination, her version
that she is 8 years old is not at all challenged by the defence. PW2
Shamalata Gadkari is mother of the PW1 / minor female victim.
She deposed that her daughter is 8 years old. This statement was
made by PW2 Shamalata Gadkari while in the witness box on 6 th
August 2015. Leave apart the fact that the defence has not
challenged this version of PW2 Shamalata Gadkari, from cross-
examination of this witness defence has brought on record, date of
birth of the PW1 / minor female victim. As seen from cross-
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examination of PW2 Shamalata Gadkari, date of birth of the
PW1 / minor female victim is 14th August 2007. I see absolutely
no reason to disbelieve version of mother of the minor female
victim regarding her age coming on record from the cross-
examination conducted by the defence. The incident in question
took place allegedly on 21st December 2013. As such, at about the
date of the alleged incident, the PW1 / minor female victim was
certainly below 18 years of age. She was around 6 years and
some months old at the time of commission of alleged offence, as
seen from this evidence adduced by the prosecution.
8 PW3 Dr.Neelam Kale happened to see the PW1 / minor
female victim on 23rd December 2013. This witness deposed that
the minor female victim was about 7 to 8 years old. This version
of PW3 Dr.Neelam Kale went unchallenged. PW4 Dr.Swati Kagne
admitted that she did not conduct ossification test of the PW1, but
the same is of no consequence, as there are no suggestions to this
witness that the minor female victim was more than 18 years of
age. The history recorded by PW4 Dr.Swati Kagne, as reflected
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from the documents of medical examination at Exhibit 19 also
reflects age of the PW1 as 7 years. The same is not challenged in
cross-examination of PW4 Dr.Swati Kagne.
9 This position emerging on record goes to show that
evidence of prosecution witnesses regarding age of the minor
female victim went unchallenged and unrebutted. The cross-
examination is a matter of substance and not that of a procedure.
The effect of non-cross-examination is that the statement of
witness is held to be undisputed. If evidence in chief-examination
is not challenged in cross-examination by the other party, then the
same is required to be accepted and the fact averred thereby is
required to be held as fully established. In the wake of this
position in law, it needs to be held that at the time of the alleged
incident, the PW1 / minor female victim was a child as defined by
Section 2(d) of the POCSO Act, she being below 18 years of age.
10 After concluding that the minor female victim was
below 18 years of age at the time of the incident, let us examine
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whether evidence of the prosecution demonstrates that she was
subjected to rape i.e. penetrative sexual intercourse and sexual
assault at the hands of the appellant / accused. The PW1 being
the victim of the crime in question, her evidence assumes
importance in such cases of sexual assault. She, at the time of the
incident, was about 6 years and a few months old. One may
argue that being a child witness, version of this minor female
victim carries no weight and the same cannot be relied upon to
base conviction in such serious offence. However, it needs to be
kept in mind that as provided by Section 118 of the Evidence Act,
a child is indisputably a competent witness if such child
understands the questions put to her and gives rational answers.
The PW1 being a child witness, due to tender years, is susceptible
to tutoring, her evidence requires close scrutiny and the same is
required to be scanned carefully. If on close scrutiny of the
evidence of a child witness, the court is satisfied about the quality
of the evidence as well as reliability of such witness, then
conviction can be recorded safely. Keeping in mind this important
aspect regarding appreciation of evidence of a child witness, let us
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examine what the PW1/minor female victim states about the
incident in question. The PW1/minor female victim in her
deposition has spoken about the incident in following words :
"I know accused Balaji Kamble present in the court
and I used to refer him as Balaji Mama. I used to
see him in the vicinity of my house. On that day he
met me near my house and had taken me to stairs
near the terrace of my house. He gave me game of
card for playing. Thereafter he lifted my frock.
Thereafter he pulled down my nicker. Thereafter he
removed the chain of his pant. Thereafter he put is
private part (शुची जागा) in my private part (मा÷याशुP या
जागेत). I suffered pain in my private part. I told him
that I am suffering lot of pain in my private part.
Thereafter he left me. Thereafter I went to my
house. I took meal and went to sleep. As I was
suffering pain in my private part and in my
abdomen, I told my mother. She took me to the
doctor. I cannot tell the name of doctor. I went to
the police station with my mother for lodging the
report."
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11 Though this evidence coming on record from the
mouth of the child witness is giving vivid description of all sexual
activities conducted on her by the appellant / accused, without
placing implicit reliance on it, let us examine what is emerging on
record from cross-examination of this child witness. She was
subjected to searching cross-examination by the defence in order
to bring on record that she is a tutored child witness. However,
the PW1 / minor female victim has candidly denied that she is
deposing before the court on instructions of others. This witness
denied that one Dhanawadebai as well as Shailesh More had
narrated the incident to police. The PW1 / minor female victim
further denied the suggestion that she is deposing before the court
what was told to her by her mother as well as Dhanawadebai
before entering into the witness box. This witness candidly denied
the suggestion that the appellant / accused had not done
anything to her. The tone and tenor of evidence of PW1 / minor
female victim reflects that she is a witness who has attained
sufficient maturity and understanding in order to enable her to
give rational answers to the questions put to her. She candidly
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denied suggestion that the appellant / accused did not remove
her nicker. She has candidly stated that when her nicker was being
removed, she was in the standing position. All these aspects
which are reflected from the cross-examination of the minor
female victim show that the incident which took place with her
was clearly imprinted in her brain so as to enable her to recollect
the same upon being asked while in the witness box. There is
nothing in the cross-examination of this witness to disbelieve her
version recording the incident of sexual assault on her by the
appellant / accused. On the contrary, evidence of the child victim
is clear and cogent in respect of the penetrative sexual assault
suffered by her. There is nothing in her evidence to indicate that
she is a tutored witness.
12 True it is that the victim of the crime has not
mentioned the date of the incident but that is inconsequential.
Such a discrepancy cannot touch the core of the prosecution case
which is in respect of the commission of penetrative sexual
assault. Ultimately, the court will have to keep in mind age of the
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PW1 at the relevant time, and therefore, merely because date of
the incident is not stated by the victim, her evidence cannot be
doubted. The PW1 is not expected to have such chronometric
sense at the tender age.
13 According to the learned advocate for the appellant /
accused, there is discrepancy in respect of the place of the
incident. However, the argument so advanced is devoid of merit.
The history recorded by PW4 Dr.Swati Kagne shows that the
appellant / accused used to take the victim to the terrace. The
PW1 / victim of the crime in her substantive evidence before the
court has disclosed the place of incident as the staircase near the
terrace. Thus, evidence regarding the place of incident reflecting
from the history given to the Medical Officer and coming from the
mouth of the victim is consistent.
14 Now let us examine whether evidence of the minor
female victim is gaining corroboration from the medical evidence
adduced on record. Though initially the minor female victim was
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taken by her mother PW2 Shamalata Gadkari to PW3 Dr.Neelam
Kale, this private medical practitioner had referred her to the
specialist without giving any treatment. What was reported to this
witness is suffering from pain in abdomen and private part.
Except this, nothing was disclosed to this witness - PW3
Dr.Neelam Kale by mother of the victim of the crime. This, in my
opinion, cannot cast a shadow of doubt on the prosecution case.
Upon hearing the incident from the mouth of her minor daughter,
PW2 Shamalata Gadkari had taken the PW1 / minor female victim
to this witness but this private practitioner expressed her inability
to treat the PW1. In such situation, there was no occasion for
PW2 Shamalata Gadkari to disclose history of the patient to PW3
Dr.Neelam Kale. That apart, when PW3 Dr.Neelam Kale was not
to give any medical treatment to the PW1, then it was not
expected of PW2 Shamalata Gadkari to disclose very personal
things regarding offence of rape on a minor daughter to PW3
Dr.Neelam Kale. It is a matter of common knowledge that such
offence affects honour of the family and the victim as well as
relatives of the victim feel embarrassed to disclose commission of
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such offence because of feeling of shame. As such, on this count it
cannot be said that the conduct of PW2 Shamalata Gadkari was
not that of a prudent person, making the case of the prosecution
suspect.
15 After lodging report, the PW1 / minor female victim
was referred to PW4 Dr.Swati Kagne. PW2 Shamalata Gadkari
had accompanied the minor female victim at the Sassoon hospital.
The minor female victim and her mother reached the Sassoon
hospital at about 1.55 a.m. of 24th December 2013 as seen from
cross-examination of this witness. Ultimately, she came to be
examined by PW4 Dr.Swati Kagne at about 6.00 a.m. of 24 th
December 2013. As further seen from cross-examination of PW4
Dr.Swati Kagne, it was the minor female victim who had given the
history of the incident to her. This evidence brought on record
from cross-examination of the Medical Officer needs to be
accepted. As per version of PW4 Dr.Swati Kagne she has recorded
the history given by the victim as well her mother. Then, clinical
examination on the victim came to be conducted. Evidence of
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PW4 Dr.Swati Kagne which is duly corroborated by the
contemporaneous medical record at Exhibit 19 shows that though
the PW1 had not suffered any injury to external part of her body,
her hymen was found to have been torn. Presence of perihymenal
inflammation came to be noticed by PW4 Dr.Swati Kagne. With
these clinical findings, PW4 Dr.Swati Kagne has opined that there
was possibility of penetrative sexual vaginal intercourse with the
PW1.
16 It is seen from cross-examination of PW4 Dr.Swati
Kagne that hymen of the PW1 was having old tear and it can be
caused by inserting finger or foreign body. It is also elicited from
her cross-examination that because of surgical procedures or use
of tampons, hymen can be torn. In the case in hand, the victim has
not attained menarche, she being a female child of about 6 years
of age with rustic background. There are no suggestions either to
her or to her mother to the effect that the minor female victim had
attained the menarche and was using tampons. Similarly, there
are no suggestions to the minor female victim that she was
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indulging in fingering. No suggestions are given to the victim of
the crime in question that she used to indulge in insertion of
foreign body in her vagina. In the wake of this position such
material elicited from cross-examination of the Medical Officer
regarding causes of rupture of hymen is of no assistance to the
defence. Similarly, the incident in question took place on 21 st
December 2013 and the PW1 was examined by PW4 Dr.Swati
Kagne in the morning hours of 24 th December 2013. Thus, there
was gap of more than three days in medical examination of the
PW1. There is no further cross-examination to ascertain what was
the age of the tear to the hymen of the victim. Presence of
perihymenal inflammation at the time of medical examination of
the minor female victim, conducted after about three days
supports the version of the PW1 about the sexual assault on her by
the appellant / accused. Her evidence, as such, is gaining full
corroboration from the medical evidence on record.
17 PW2 Shamalata Gadkari-mother of the victim of the
crime in question, is not an eye witness to the incident in
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question. She heard what her daughter disclosed to her on 23 rd
December 2013. Evidence of PW2 Shamalata Gadkari is to the
effect that on 21st December 2013, the appellant / accused took
the PW1 / minor female victim with him at about 8.00 p.m. This
was on the pretext of playing games on mobile. PW2 Shamalata
Gadkari further disclosed that on the next day also, the
appellant / accused enquired about the PW1. Then in the night
on 22nd December 2013, the PW1 complained to her mother about
pain in the private part and abdomen. As seen from evidence of
PW2 Shamalata Gadkari, the said complain was repeated in the
morning hours also which resulted in detailed enquiry. Then
comes narration by the PW1 to her mother PW2 Shamalata
Gadkari. What was heard by PW2 Shamalata Gadkari from her
minor daughter is reflected in paragraph 2 of her evidence, the
relevant portion of which needs reproduction. It reads thus :
"She informed me that two days prior, Balaji Mama
had taken her to upstairs (jina) and took her kiss by
putting his mouth in her mouth and she expressed
that she did not feel good and asked him to take kiss
of her cheek. She also informed me that the
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accused had lifted her frock and removed her nicker
and also open his chain of the pant and put his
private part in her private part and she felt pain.
She also informed me that the accused then left
her."
18 Let us consider evidentiary value of this disclosure.
This constitutes former statement of the PW1 made to her mother
PW2 Shamalata Gadkari after the incident. Section 157 of the
Evidence Act deals with such disclosure and reads thus :
"157. Former statements of witness may be
proved to corroborate later testimony as to same
fact -- In order to corroborate the testimony of a
witness, any former statement made by such witness
relating to the same fact, at or about the time when
the fact took place, or before any authority legally
competent to investigate the fact, may be proved."
19 Evidence on record shows that prior to the disclosure
of the incident by the PW1 / minor female victim to her mother
PW2 Shamalata Gadkari, mind of the PW1 / minor female victim
was totally uninfluenced by any external factor prompting her to
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tell something lie or incorrect against the appellant / accused.
This being the position from the evidence on record, particularly
coming on record through the PW1 / minor female victim, her
former statement proved by PW2 Shamalata Gadkari can be used
to corroborate the version of the PW1 / minor female victim.
20 Now let us examine the theory of possibility of false
implication of the appellant / accused at the hands of the persons
from Maratha community residing in his neighbourhood at
Hargudevasti. As stated in foregoing paragraph, the defence of
the appellant / accused is to the effect that he belongs to Mang
caste whereas majority of the residents of Hargudevasti are
Maratha. His younger brother had filed report of abduction of his
eldest brother Rajkumar which resulted in prosecution of some
persons from Maratha community. Similarly, brother of the
appellant / accused is prosecuted at the instance of a person from
Maratha community in a rape case which ultimately resulted in
acquittal. Even if all this is accepted as it is, the question which
falls for consideration is whether PW2 Shamalata Gadkari who is
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totally unconcerned with hostility of the appellant / accused and
his Maratha neighbours, would put future of her minor daughter
at a stake in order to falsely implicate the appellant / accused in
the crime in question. The answer to this question shall certainly
be in negative considering the fact that the victim and her mother
belongs to a tradition bound Indian society. This aspect is
considered by the Hon'ble Apex Court in Bharwada Bhoginbhai
Hirjibhai vs. State of Gujarat 1 wherein atleast twelve reasons are
narrated by the Hon'ble Apex Court as to why generally there are
no chances of false implication in the case of rape. They read
thus :
(1) A girl or a woman in the tradition bound non-
permissive Society of India would be extremely
reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred;
(2) She would be conscious of the danger of being
ostracised by the Society or being looked down by the
society including by her own family members,
relatives,friends, and neighbours;
(3) She would have to brave the whole world;
1 1983 AIR 753
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(4) She would face the risk of losing the love and
respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered;
(5) If she is unmarried, she would apprehend that it
would be, difficult to secure an alliance with a suitable
match from a respectable or an acceptable family;
(6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself;
(7) The fear of being taunted by others will always
haunt her;
(8) She would feel extremely embarrassed in relating
the incident to others being over powered by feeling of
shame on account of the upbringing in a tradition bound
society where by and large sex is taboo;
(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy;
(10) The parents of an unmarried girl as also the
husband and members of the husband's family of a
married woman, would also more often than not, want
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to avoid publicity on account of the fear of social stigma
on the family name and family honour;
(11) The fear of the victim herself being considered to be
promiscuous or in some way responsible for the
incident regardless of her innocence;
(12) The reluctance to face interrogation by the
investigating agency, to face the court, to face the
cross examination by Counsel for the culprit, and the
risk of being disbelieved, acts as a deterrent.
21 If evidence of the prosecution is tested on the
touchstone of these contingencies enumerated by the Hon'ble
Apex Court then it becomes clear that PW2 Shamalata Gadkari is
neither concerned with the trial of rape case against the brother of
the appellant / accused nor his hostile relations with Maratha
community. Being a resident of Hargudevasti she may be
knowing some persons from Maratha community but that is not
sufficient to infer that honour of the family and future of the
minor daughter would be put to stake by PW2 Shamalata Gadkari
by indulging in dirty politics of the village with which she has no
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concern. It is not even brought on record that the informant also
belongs to Maratha caste or has close relations with opponents of
the appellant / accused. Hence, the theory of false implication
does not deserve a moment's consideration.
22 In view of foregoing discussion, even on re-
appreciation of the entire evidence on record, I find no infirmity in
conviction of the appellant / accused for offences alleged against
him.
23 At this stage, the learned advocate for the appellant /
accused argued that leniency in punishment should be shown
considering the fact that the appellant / accused is just 22 years
old having responsibility of maintaining his parents. It needs to
be noted that punishment for the offence punishable under
Section 4 of the POCSO Act cannot be less than 7 years. Similarly,
punishment for the offence punishable under Section 376 of the
IPC also cannot be less than 7 years. The State has not filed an
appeal in this matter for enhancement of sentence though the case
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of the prosecution is that of rape on a female child below 16 years
of age warranting punishment under Section 376(2)(i) of the IPC.
24 At the same time, it is seen that the appellant /
accused on his conviction for the offence punishable under
Section 376 of the IPC as well as under Section 4 of the POCSO
Act is sentenced to suffer punishments on both counts. For the
offence punishable under Section 376 of the IPC, he is sentenced
to suffer rigorous imprisonment of 7 years apart from directing
him to pay fine of Rs.5,000/-, in default, to undergo further
rigorous imprisonment of 3 months. Separately for the offence
punishable under Section 4 of the POCSO Act the appellant /
accused is sentenced to suffer rigorous imprisonment of 7 years,
apart from directing him to pay fine of Rs.5,000/-, in default, to
undergo further rigorous imprisonment of 3 months. As per
provisions of Section 42 of the POCSO Act, where an act or
omission constitutes an offence punishable under the said Act as
well as under Section 376 of the IPC, then, notwithstanding
anything contained in any law for the time being in force, the
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offender / accused found guilty of such offence is liable for
punishment under the POCSO Act or under the IPC, as provided
for punishment whichever is greater in degree. As such, for the
same offence i.e. the one under Section 376 of the IPC and
another under Section 4 of the POCSO Act, the accused cannot be
punished twice. However, in this case, the appellant / accused is
punished twice - once for offence punishable under Section 376 of
the IPC, and another for the similar offence punishable under
Section 4 of the POCSO Act. On each count, he is imposed
punishment separately. Therefore, by maintaining the sentence for
the offence punishable under Section 4 of the POCSO Act, which
is equivalent to Section 376 of the IPC, sentence of the appellant /
accused for the offence punishable under Section 376 of the IPC,
needs to be quashed and set aside. Therefore the order :
ORDER
i) The appeal is partly allowed.
ii) Conviction and sentence of the appellant /
accused for offences punishable under Sections
4 and 8 of the POCSO Act is maintained.
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iii)Conviction of the appellant / accused for the
offence punishable under Section 376 of the IPC
is also maintained. However, sentence imposed
on him for the offence punishable under Section
376 of the IPC viz., rigorous imprisonment of 7
years as well as direction to pay fine of
Rs.5,000/-, in default, to undergo further
rigorous imprisonment for 3 months, is quashed
and set aside.
iv)The appeal is disposed of accordingly.
v) Copy of this judgment be sent to the appellant /
accused, who is undergoing jail sentence, at
Yerwada Central Prison.
(A. M. BADAR, J.)
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