Bombay High Court
Suresh @ Pintya Kashinath Kamble vs The State Of Maharashtra on 25 January, 2018
Bench: A.M. Badar
(901)APEALNo.2722017(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.272 OF 2017
WITH
CRIMINAL APPLICATION NO.275 OF 2017
IN
CRIMINAL APPEAL NO.272 OF 2017
Suresh @ Pintya Kashinath Kamble,
C/6533, Age. 43 Years, Occu.
Convict Presently Lodged at
Kolhapur Central Prison. ... Appellant
V/s.
The State of Maharashtra
(At the instance of Chinchani
Vangi Police Station, Sangli
in respect of C.R.No.35/2004
under Section 376(2)(f) of IPC
& POCSO Act. ... Respondent
.....
Ms.Nasreen S.K.Ayubi, Appointed Advocate for the Appellant.
Mr.Prashant Jadhav, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 25th JANUARY 2018.
ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging
the Judgment and Order dated 07/03/2016 passed by the Special
Judge, Sangli in Special POCSO case No.215 of 2014 between the
parties thereby convicting the appellant/accused of the offences
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punishable under Sections 376 of the Indian Penal Code and
under Section 6 of the Protection of Children from Sexual Offences
Act, 2012 (hereinafter referred to as 'POCSO Act' for the sake of
brevity). The appellant is sentenced to suffer rigorous
imprisonment for thirteen years apart from directing to pay fine of
Rs.5,000/- and in default to undergo simple imprisonment for one
month. For the offence punishable under Section 6 of the POCSO
Act similar sentence was imposed on the appellant. The learned
trial Court further directed that the substantive sentences imposed
on the applicant shall run concurrently.
2 As the appeal accompanied by the application for
suspension of sentence was sent through jail by the appellant, this
Court had appointed Ms.Nasreen S.K.Ayubi, the learned Advocate
on the Panel of the Legal Aid of this Court to represent the
appellant at the cost of the State. Thereafter, in due course,
Criminal Application bearing No.275 of 2017 sent by the
appellant/accused through jail was considered. At the time of the
hearing of that application, on 22/01/2018, the learned Advocate
appearing for the appellant/accused as well as the the learned
Additional Public Prosecutor submitted that for the purpose of
deciding the application, considering the peculiar facts of the case,
the entire evidence will have to be examined and appreciated and,
therefore, the appeal itself be heard while deciding the application
for suspension of sentence. This request came to be accepted by
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this Court as the appellant is behind bars right from the year 2014.
Virtually, equal amount of time will be required for hearing the
application as well as for hearing the appeal. That is how the
appeal is taken for final hearing at the request of the parties.
3 Facts in nutshell leading to the prosecution of the
appellant/accused are thus :
(a) P.W.No.1 Gauri is the mother of the alleged victim of the
offence, who is a minor female child aged about six years.
The minor female child is examined as the P.W.No.2.
According to the prosecution case, the incident in question
took place at about 4.00 p.m. of 19/07/2014 at village Vangi
in Kadegaon Taluka, Sangli District. The appellant/accused is
also resident of village Vangi. Name of his daughter is
Priyanka. The P.W.No.2/minor female victim of the crime in
question is friend of Priyanka. The appellant/accused was
residing in the vicinity of the house of the P.W.No.2/minor
female child.
(b) On 19/07/2014, at about 4.00 p.m., the P.W.No.2/minor
female child went to the house of Priyanka for playing.
However, at that time, Priyanka was not present in the house.
The appellant/accused took the P.W.No.2/minor female child
inside the house on the pretext of giving her an amount of
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Rs.1/-. Then he removed nicker of the P.W.No.2/minor
female child, unzipped the chain of his full pant, made the
P.W.No.2/minor female child to sit on the gunny bag.
Thereafter, the appellant/accused touched his penis to the
vagina of the P.W.No.2/minor female child. Thereafter,
P.W.No.2/minor female child pushed the appellant/accused
and ran towards her house and disclosed the incident to her
mother.
(c) The prosecution averred that upon hearing the incident from
the mouth of P.W.No.2/minor female child, her mother
P.W.No.1 Gauri went to the house of the appellant/accused
along with P.W.No.2/minor female child. She questioned the
appellant/accused, who was all alone in the house. The
appellant/accused started speaking irrelevantly. Then
P.W.No.1 Gauri called her husband and lodged report of the
incident at Chinchani Vangi Police Station. That is how Crime
No.35 of 2014 for offences punishable under Section 376(2)
(f) of the IPC as well as Sections 3,4,8 and 10 of the POCSO
Act came to be registered against the appellant/accused.
(d) Routine investigation followed and the appellant/accused
came to be charge-sheeted for the offences punishable under
Section 376(2)(f) of the IPC as well as under Section 5(m)
read with Section 6 of the POCSO Act. Accordingly, the
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charge was framed and explained to the appellant/accused,
who had abjured his guilt and claimed trial. The defence of
the appellant/accused was that of total denial. As per the
defence version, there was dispute between him and Kumbhar
family in respect of land and at the instance of Kumbhar
family, he is falsely implicated. Similarly, according to the
appellant/accused, on the day of the incident and at the time
of the incident, he was not present at the house, but he was
present at village Lengare for attending funeral rites of father
of D.W.No.1 Shivaji Khilare.
(e) After hearing the parties, by the impugned Judgment and
Order dated 07/03/2016, the learned Special Judge, Sangli
was pleased to convict the appellant/accused of offences
punishable under Section 376 of the IPC as well as under
Section 6 of POCSO Act. He is accordingly sentenced as
indicated in the opening paragraph of this Judgment.
4 I heard Ms.Nasreen S.K.Ayubi, the learned Advocate
appearing for the appellant/accused. She drew my attention to
the evidence of the prosecution witnesses and more particularly to
the cross-examination of P.W.No.2/alleged victim of the crime in
question. It is argued by the learned Advocate for the appellant/
accused that small house of the appellant/accused is inhabited by
his mother and brother, who was residing there with his family.
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As such, it is not possible to commit such an act in presence of
large number of family members. Ms.Ayubi, the learned Advocate
further argued that medical evidence is not supporting the case of
the prosecution. On the contrary, history narrated to the Medical
officer is that of an attempted sexual assault and not that of the
penetrative sexual assault. Ms.Ayubi, the learned Advocate further
placed reliance on evidence of PW.No.5 Dr.Ramnath Khade and
pointed out that evidence of this Medical Officer in no way
demonstrates that he has personally examined the
P.W.No.2/minor female victim. By drawing my attention to the
cross-examination of this witness, Ms.Ayubi, the learned Advocate
further argued that this Medical Officer has candidly admitted the
fact that there was no external injury, swelling, tenderness to the
genital of the victim as reflected from medical case papers at
Exhibit 34. The learned Advocate for the appellant/accused
further argued that though the prosecution has seized clothes of
the appellant/accused, the report of the chemical analysis of those
clothes was not placed on record by the prosecution and as such,
adverse inference needs to be drawn against the prosecution. It is
further argued that evidence of defence witness Shivaji Khilare
goes to show that at the time of the incident, the
appellant/accused was not even present at village Vangi and he
was far away at village Lengare. Therefore, in submission of the
learned Advocate for the appellant/accused, the appellant
deserves acquittal.
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5 As against this, the learned Additional Public
Prosecutor drew my attention to the evidence of P.W.No.2/minor
female victim of the crime in question and argued that there is no
requirement of law that there should be complete penetration.
The learned Additional Public Prosecutor submitted that slightest
penetration is sufficient to establish the offence of such type and
evidence of the minor female victim of the crime in question
coupled with that of her mother points out that there was
penetrative sexual assault on a female child below 12 years of age
making the appellant/accused liable for penal consequences as
mentioned in Section 376(2) of the IPC as well as Section 6 of the
POCSO Act.
6 I have carefully considered the rival submissions and
also perused the Record and Proceedings including depositions of
prosecution witnesses and the documentary evidence adduced on
record.
7 The law regarding appreciation of evidence of the
victim of the sexual offence is set at rest by catena of Judgments
rendered by the Honourable Apex Court. In the matter of State of
Punjab v. Gurmit Singh reported in 1996 SC 1393, it is held that
in the matters of sexual assault on a female, the Court should
examine the broader probabilities of a case and should not get
swayed by minor contradictions or insignificant discrepancies in
the statement of the prosecutrix. In the matter of State of
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Himachal Pradesh v. Mangoram reported in 2000(2) SCALE
652, the Honourable Apex Court has held that in cases of sexual
offences, the Court should display a greater sense of responsibility
and to be more sensitive while dealing with charge of sexual
assault on a woman. It is well settled that the the victim of a
sexual assault is not an accomplice to the crime, but her evidence
carries more weight than that of an injured witness as apart from
physical injury, she suffers mental trauma in such incident. Case
of sexual violence on a minor female child, as such deserves more
importance at the hands of the Court by taking sensitive approach
in the matter.
8 Let us, now examine whether in the case in hand, the
prosecution has established the fact of commission of penetrative
sexual assault/rape by the appellant/accused on the P.W.No.2,
who is alleged victim of the crime in question. It is well settled
that for making out the offence of rape or penetrative sexual
assault on a child what is required is the slightest penetration. In
other words, proof of penetration is sine qua non for such offence.
Section 3 of the POCSO defines the offence of penetrative sexual
assault and it reads thus :
"3. Penetrative sexual assault : A person is said to commit
"penetrative sexual assault" if --
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child to do
so with him or any other person; or
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(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or
any other person; or
(c) he manipulates any part of the body of the child so as
to cause penetration into the vagina, urethra, anus or any
part of body of the child or makes the child to do so with
him or any other person
or
(d) he applies his mouth to the penis, vagina, anus, urethra
of the child or make s the child to do so to such person or
any other person."
9 Similarly, Section 375 of the IPC defining the offence
of rape prescribes that the rape is committed if there is
penetration. It is further made clear by Explanation No.(1) to
Section 375 of the IPC that for the purpose of the said Section,
vagina would also include labia majora. This implies that
penetrating labia majora even to a slightest extent amounts to
rape. Thus partial or slightest penetration is necessary for making
out such offence.
10 In the light of this discussion, let us understand what
the P.W.No.2/minor female victim of the crime in question is
telling against the appellant/accused. As per her version, she had
been to the house of Priyanka for the purpose of playing with her,
but Priyanka was not present in the house. She further deposed
that the appellant/accused, who is father of Priyanka was very
much present in the house watching the television and nobody
else was present in the house. The P.W.No.2 further deposed that
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the appellant/ accused allured her by telling that he will give an
amount of Rs.1/- and called her inside the house. When she
entered in the house, the appellant/accused removed her nicker,
unzipped the chain of his pant, made her to sit on gunny bag and
touched his penis to her private part. As stated by
P.W.No.2/minor female victim of the crime in question, she then
pushed the appellant/accused and ran towards her house and
disclosed the incident to her mother. According to the prosecution
case, this incident took place on 19/07/2014. Evidence of the
P.W.No.2/minor female victim shows that on the very same day
accompanied by her parents, she went to the police station.
11 Let us now examine the result of medical examination
of the P.W.No.2/minor female victim of the crime in question. It
is seen that immediately on the very next day of the alleged
incident and more particularly, on 20/07/2014, P.W.No.2 -
alleged minor victim was referred for medical examination to
Sangli Civil Hospital. P.W.No.5 Dr.Ramnath Khade made entry of
her arrival in the M.L.C. Register (Exhibit 34) and prepared her
case paper. He then referred P.W.No.2 to the Gynecologist and
the Radiologist Department and obtained reports from both the
Departments. On the basis of those reports, he issued the age
certificate (Exhibit 35) certifying the P.W.No.2 to be aged about 6
to 10 years. This witness also issued Medico-Legal Certificate
(Exhibit 36) on the basis of report sent by several Departments of
the Civil Hospital, Sangli.
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12 Perusal of evidence of P.W.No.5 Dr.Ramnath Khade, as
such, makes it clear that this witness has not at all examined the
P.W.No.2/minor female victim of the crime in question, but had
referred her to various Departments of the Civil Hospital and then
issued certificate on the basis of reports sent by other Departments
of the Hospital. Thus, going strictly by rules of evidence, the
certificate issued by this witness are of no consequence. However,
as this certificate and medical case papers in respect of medical
examination of the P.W.No.2/alleged minor female victim
produced by the prosecution are serving the purpose of the
defence, those needs to be looked into as per the law laid down by
the then Nagpur High Court in the matter of Sheo Prasad v.
Emperor reported in 1939 Cr.L.J. 917.
13 The M.L.C. Register at Exhibit 34 contains history of
the alleged incident. The Medical Officer has reported that there
was an attempt of sexual assault on the P.W.No.2/minor female
victim at 4.00 p.m. on 19/07/2014. Entry in the M.L.C. Register
(Exhibit 34) kept at Sangli Civil Hospital further shows that then
the P.W.No.2/minor female victim came to be examined by the
attending Medical Officer and following findings came to be
noted:
"No any external injury seen over body parts. On gentle
separation of labia majora, no bleeding seen, no injuries
over private parts seen. PSPV not done."
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14 If we compare evidence of P.W.No.2/alleged minor
female victim of the crime in question with the medical evidence,
then it becomes clear that in her thorough medical examination by
the attending Medical Officers, no injuries were seen on her
private parts, nor there was bleeding from it. The medical
examination of the P.W.No.2 was conducted within few hours of
the alleged incident. The findings in the medical examination of
the P.W.No.2 are in tune with her deposition to the effect that
after removing her nicker, the appellant/accused unzipped chain
of his pant and touched his penis to her private part and
thereafter, she ran away by pushing him. The findings of the
medical examination do not reveal any penetration.
15 It is well settled that a child is competent to testify if
she understand the question put to her and give rational answer
thereto. It is broad proposition that as child witnesses are
susceptible to tutoring due to tender years, their evidence requires
close scrutiny and is required to be scanned carefully. In the case
in hand, the P.W.No.2, who is a child witness is candidly stating
the mere act of touching his penis by the appellant/accused to her
private part. Truthfulness of this version is reflected from the
medical examination of the P.W.No.2, which came to be
conducted immediately at the Rural Hospital and subsequently, at
the Civil Hospital, Sangli. The result of medical examination of
the P.W.No.2 shows that there was no penetration.
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16 As against the version of the P.W.No.2 regarding mere
touching of a male organ to her private part by the
appellant/accused, P.W.No.1 Gauri, who is mother of the minor
female victim has stated that at about 4.00 p.m. of 19/07/2014
her daughter/P.W.No.2 returned to the house while crying and
told her that the appellant/accused touched his penis to her
private part and started pressing her. This 'pressing' appears to be
adding embellishments to the narrations of her daughter by
P.W.No.1 Gauri. The P.W.No.2 has not deposed that she disclosed
her mother that after touching the penis to her private part, the
appellant pressed it inside her private part. That apart, medical
evidence on record is not supporting this part of narrations
allegedly made by the P.W.No.2 to her mother P.W.No.1 Gauri
and recited by P.W.No.1 Gauri before the Court. If this portion of
evidence of P.W.No.1 Gauri which is not supported by the victim
of the crime in question is ignored then what remains is touching
his male organ by the appellant/accused to the private part of the
P.W.No.2.
17 Cross-examination of P.W.No.1 Gauri shows that house
of the appellant/accused is also inhabited by his son Ganesh,
family members of Ganesh, which includes his wife and three
sons. Mother of the appellant/accused is also used to reside in his
house. However, this does not necessarily imply that other family
members must be present in the house at the time of the incident
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in question. There is no such material coming on record through
cross-examination of P.W.No.1 Gauri or from cross-examination of
P.W.No.2. On the contrary, there is positive evidence of the
P.W.No.2 to the effect that at the time of the incident, the
appellant/accused was all alone in the house and evidence of
P.W.No.1 Gauri also shows that when she took her daughter i.e.
P.W.No.2 to the house of the appellant/accused after the incident,
there was nobody in the house except the appellant/accused.
18 During the course of investigation, the Investigating
Officer had seized clothes of the appellant/accused vide seizure
panchanama (Exhibit 30) on 21/07/2014 and P.W.No.4
Panjabarao Kumbhar acted as panch to this seizure. Upon being
produced by the father of the P.W.No.2, clothes of the P.W.No.2
also came to be seized vide seizure panchanama (Exhibit 28) on
20/07/2014 by the Investigating Officer. P.W.No.3 Madhukar
Yadav is a panch witness to this seizure. Seized clothes were sent
for chemical analysis. However, reports of chemical analysis of
seized clothes were not produced before the trial Court. This
aspect casts a shadow of doubt on the case of the penetrative
sexual assault on a minor female.
19 It is defence of the appellant/accused that he was not
present on the spot of the incident at the time of the incident in
question and for establishing this defence, the appellant/accused
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has examined Defence Witness named Shivaji Khilare. This
defence is resident of village Lengare. He deposed that there was
death of his father on 19/07/2015 at village Lengare. This fact
was then intimated to the appellant/accused. D.W.No.1 Shivaji
further deposed that all his relatives came to his house at 2.00
p.m. and funeral rites of his father were performed in between
5.00 to 5.30 p.m. Thereafter, his relatives gathered at his house
and while leaving, all of them met him. D.W.No.1 Shivaji further
deposed that the appellant/accused also met him.
20 Evidence of D.W.No.1 Shivaji is not proving the plea of
alibi attempted to be taken by the appellant/accused. Evidence of
this witness is conspicuously silent about the distance between
village Vangi, where the incident took place and that of village
Lengare. The incident took place at 4.00 p.m. on 19/07/2014.
D.W.No.1 Shivaji has not deposed that the appellant/accused
came to his house at about 2.00 p.m. of 19/07/2014 though he
has spoken that his relatives came to his house by that time.
D.W.No.1 Shivaji has not even stated in his evidence that at the
time of funeral rituals of his father, the appellant/accused was
present. As has been stated by the D.W.No.1 Shivaji, while leaving
village Lengare after funeral of his father, all his relatives
including the appellant/accused met him. This evidence does not
makes out a defence that after commission of offence at 4.00 p.m.
of 19/07/20114 at village Chinchani Vangi, it was impossible for
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the appellant/accused to remain present after 5.30 p.m. at village
Lengare. Thus, the appellant/accused failed to establish or prove
the plea of alibi. That apart, there is positive evidence coming
from the mouth of P.W.No.2 and her mother P.W.No.1 Gauri to
the effect that at the time of the incident and thereafter also the
appellant/accused was present at village Chinchani Vangi.
21 Birth certificate of the P.W.No.2 issued by the Registrar
of Birth and Death from Sangli-Miraj-Kupwad Corporation City
Hospital is at Exhibit 56. The said certificate is issued as per
provisions of Section 12 and 17 of the Registration of Births and
Deaths Act, 1969. It is having presumption about correctness of
entries. Therefore, the same does not require formal proof. That
apart, the Birth Certificate is admitted by the defence and it shows
that date of birth of P.W.No.2 is 07/07/2008. As such, she was a
female child below 12 years of age at the time of the incident
dated 19/07/2014. The over all scrutiny of evidence of P.W.No.2
which is also corroborated by other evidence in the form of proof
of her former statement by her mother P.W.No.1 Gauri shows that
the P.W.No.2 is witness of truth and she is not exaggerating her
version in respect of the incident. There is no reason to disbelieve
her evidence in respect of the alleged incident in question.
22 Now, let us examine what offence is committed by the
appellant/accused by touching penis to the private part i.e. vagina
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of the P.W.No.2. The learned trial Court after scanning this
evidence has concluded that a mere touch of the penis to the
vagina is sufficient to constitute rape in the wake of provisions of
Section 3 (1) of the POCSO Act. This observation can be found in
paragraph 24 of the impugned Judgment and Order. With this
reason, the appellant/accused is held to be guilty of the offence of
rape and aggravated penetrative sexual assault on a female child
below 12 years of age.
23 I have already reproduced the definition of penetrative
sexual assault as found in Section 3 of the POCSO Act in the
foregoing paragraph. Clause (a) of Section 3 of the POCSO Act in
clear words states that penetrative sexual assault is committed if a
person penetrates his penis to any extent into the vagina. The
word 'penetration' used in Clause (a) of Section 3 of the POCSO
Act, cannot be construed to mean touching of the male organ to
the vagina. Such an exercise would amount to deleting the word
'penetrates' from the wordings of Clause (a) of Section 3 of the
POCSO Act defining the term 'penetrative sexual assault' and
substituting it by word 'touches'. Such exercise of amending the
Statues is not permissible at the hands of the Courts. The words
used in Clause (a) of Section 3 of the POCSO Act 'if he penetrates
his penis' which implies piercing or puncturing. These words
indicate an entry and signifies a movement into or through the
vagina. In the case in hand, neither the minor female child
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deposed about even slightest penetration of his penis by the
appellant/accused in her vagina, nor the medical evidence
indicates such contingency. In this view of the matter, it cannot be
said that the appellant/accused had either committed the offence
punishable under Section 376(2) of the IPC by committing rape on
minor female child of 12 years of age, nor it can be said that he
had committed the aggravated penetrative sexual assault on the
P.W.No.2 she being a female child below 12 years of age.
24 Ms.Ayubi, the learned Advocate for the
appellant/accused argued that evidence on record indicates that
the appellant/accused, at the most had committed the offence of
aggravated sexual assault because what is proved from the
evidence of prosecution is touching of vagina of the minor female
child by the appellant/accused. At the first blush, such submission
may appear to be impressive, but the deeper scrutiny of the
evidence of the P.W.No.2 does not allow me to hold that only an
act of commission of aggravated sexual assault on the female child
below 12 years of age is proved against the appellant/accused.
Evidence of the P.W.No.2 as narrated and discussed supra shows
that the appellant/accused allured her to enter in his house with a
payment of Rs.1/- to her. Once she entered into the house of the
appellant/accused, he removed her nicker and unzipped the chain
of his full pant. The appellant/accused then touched his penis to
vagina of the P.W.No.2 and thereupon the P.W.No.2 managed to
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escape by pushing him. It, thus, makes it clear that the
appellant/accused determined to satisfy his lust at all times, but
fortunately, P.W.No.2 managed to escape before the
appellant/accused succeeded in commission of act of penetration.
At this juncture, observations of the Honourable Apex Court in the
matter of Koppula Venkat Rao v. State of A.P. reported in AIR
2004 SC 1874 needs to be quoted with advantage and they read
thus :
8- The plea relating to applicability of S. 376 read with
Section 511, I.P.C., needs careful consideration. In every
crime, there is first, intention to commit, secondly,
preparation to commit it, thirdly, attempt to commit it. If
the third stage, that is, attempt is successful, then the
crime is complete. If the attempt fails the crime is not
complete, but law punishes the person attempting the act.
Section 511 is a general provision dealing with attempts to
commit offences not made punishable by other specific
sections. It makes punishable all attempts to commit
offences punishable with imprisonment and not only those
punishable with death. An attempt is made punishable,
because every attempt, although it falls short of success,
must create alarm, which by itself is an injury, and the
moral guilt of the offender is the same as if he had
succeeded. Moral guilt must be united to injury in order to
justify punishment. As the injury is not as great as if the
act had been committed, only half the punishment is
awarded.
25 It is thus clear that the appellant/accused had intended
to commit penetrative sexual assault on the P.W.No.2 and to
execute his intention, he had made all preparation to commit the
said offence. However, his attempt was unsuccessful and,
therefore, though the offence of aggravated sexual assault or rape
is not made out, the prosecution is successful in proving the
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offence punishable under Section 511 read with Section 376(2) of
the IPC as well the one punishable under Section 18 read with
Section 6 of the POCSO Act.
26 The punishment prescribed for the offence of
aggravated penetrative sexual assault is rigorous imprisonment for
a term which shall not be less than 10 years, but which may
extend to imprisonment for life apart from liability to pay fine.
Similarly, punishment for the offence punishable under Section
376(2) is rigorous imprisonment for a term of not less than 10
years, but which may extend to imprisonment for life apart from
the payment of fine. Section 18 of the POCSO provides for one
half of the longest term of imprisonment provided for the offence
and Section 6 of the POCSO Act provides for longest term of
imprisonment, which is imprisonment for life. Therefore, as the
attempt to commit aggravated penetrative sexual assault by the
appellant/accused on the P.W.No.2, who at the relevant time was
below 12 years of age is proved by the prosecution, the
appellant/accused is liable to undergo rigorous imprisonment for
one half of the imprisonment for life.
27 It is seen from provisions of Section 42 of the POCSO
Act that when act or omission constitutes an offence punishable
under the POCSO Act as well as under Sections 376 of the IPC,
then the offender found guilty of such offence shall be liable for
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(901)APEALNo.2722017(J)
punishment under the POCSO Act or under the IPC as provided for
punishment which is greater in degree. This aspect appears to be
missed by the learned trial Court as the appellant/accused is
punished for the offences punishable under Sections 376 of the
IPC as well as under Section 6 of the POCSO Act by imposing
different punishments.
28 In the result, the following Order :
(i) The appeal is partly allowed.
(ii) Conviction and resultant sentence imposed on the
appellant/accused for the offences punishable under
Sections 376 of the IPC and for the offence punishable
under Section 6 of the POCSO Act is quashed and set
aside.
(iii) Instead, the appellant/accused Suresh @ Pintya
Kashinath Kamble is convicted for the offence punishable
under Section 18 read with Section 6 of the POCSO as
well as for the offence punishable under Section 511 read
with Section 376(2) of the IPC.
(iv) The appellant/accused is sentenced to suffer rigorous
imprisonment for one half of the imprisonment for the
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(901)APEALNo.2722017(J)
life and he shall also be liable to pay fine of Rs.5,000/-
and in default of payment of fine to suffer simple
imprisonment for one month for the offence punishable
under Section 18 read with Section 6 of the POCSO Act.
(v) As the appellant/accused is sentenced for committing the
offence punishable under Section 18 read with Section 6
of the POCSO Act by imposing punishment, which is
greater in degree, no separate sentence for commission of
offence punishable under Section 511 read with Section
376 (2) of the IPC is imposed on him.
(vi) Rest of the impugned Judgment and Order of the learned
trial Court is maintained. The appeal stands disposed of
accordingly.
29 In view of disposal of this Appeal, Criminal Application
bearing No.275 of 2017 therein also stands disposed of.
(A.M.BADAR J.)
Gaikwad RD 22/22
