Anil S/O. Khandu Gurav vs The State Of Maharashtra
2021 Latest Caselaw 1598 Bom

                                                                          367-2020-Apeal.odt



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO.367 OF 2020

      XYZ
      Age: now 20 years, Occu.: Nil,
      R/o. Changatpuri, Tq. Partur,
      Dist. Jalna                                                   ... Appellant

             Versus

1.    The State of Maharashtra
      Through Police Station Incharge,
      Police Station Ashti,
      Tq. Partur, Dist. Jalna.

2.    Sumitra Prakash Gurav
      Age: 27 years, Occu.: Household,
      R/o. Changatpuri, Tq. Partur,
      Dist. Jalna.                                         ... Respondents

                                     ..........
Mr. R. V. Gore, Advocate for appellant
Mr. S. W. Munde for respondent No.1 - State.
                                     ..........

                                      CORAM : SMT. VIBHA KANKANWADI, J.
                                       RESERVED ON      : 08-01-2021
                                       PRONOUNCED ON : 25-01-2021


JUDGMENT :

. Appellant is the original accused who faced trial in Special Case

(Child) No.69 of 2018 before the learned Judge of the Special Court, under

POCSO Act, Jalna. The appellant has been convicted for the offence punishable

under Section 376(2)(i) read with 511 of the Indian Penal Code and for the

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offence punishable under Section 6 read with Section 18 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO

Act'). He has been sentenced to suffer rigorous imprisonment for 10 years and

to pay fine of Rs.10,000/-, in default of payment of fine, to undergo rigorous

imprisonment for two years for the offence punishable under Section 376(2)(i)

read with Section 511 of the Indian Penal Code. Further, he has been sentenced

to suffer rigorous imprisonment for a term of 10 years and to pay fine of

Rs.10,000/-, in default of payment of fine, to undergo rigorous imprisonment for

two years for the offence punishable under Section 6 read with Section 18 of the

POCSO Act. Since the record of the case shows that the appellant was child-in-

conflict with law, his name is concealed in the judgment; though he has attended

majority during the pendecy of trial itself.

2. Since the arguable points were raised, this Court has admitted the

appeal on 03-07-2020 and with consent, taking into consideration the facts of

the case, took the matter for final hearing.

3. Heard learned Advocate Mr. R. V. Gore for appellant and learned

APP Mr. S. W. Munde for respondent No.1 - State.

4. Learned Advocate representing the appellant submitted that as per

the prosecution story, the offence had taken place on 11-08-2017. The victim is

stated to be 4½ years old girl at that time. It is stated that the appellant took

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two daughters of the informant to his house under promise to give chocolates to

them and ravished victim. Even as per the prosecution story, the appellant was

child-in-conflict with law (aged 17 years old) at the time of the offence, however,

as per the procedure laid down under the Juvenile Justice (Care and Protection

of Children) Act, 2015 (for short hereinafter referred to as the 'Juvenile Justice

Act'), he was treated as adult after the psychiatry report was given by the panel.

This point appears to have not been considered by the learned Special Judge

while imposing sentence on the appellant. The sentence has been imposed as if

the appellant was adult since beginning i.e. from the date of the offence itself.

5. Learned Advocate for the appellant has further submitted that

though the informant, who is the mother of the victim, has stated in the FIR as

well as in her testimony, that the incident had taken place at about 1.00 p.m on

11-08-2017, yet, she has lodged the report on 13-08-2017. She has not

explained the delay caused in lodging the FIR. It creates doubt. Further, at the

time of deposition, P.W.-8 who was the victim herself, was aged 6 years. She has

not given details of the acts done with her by the child-in-conflict with law.

Admittedly, as per the testimony of P.W.1 - informant has not witnessed the

incident and, therefore, what was done with the victim by the child-in-conflict

with law ought to have been extracted from the victim. P.W.-3 is the father of the

victim (husband of the informant), however, his testimony is hearsay, because he

has specifically stated that after he came back to house from his work place, the

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entire incident was told to him by P.W.-1. P.W.2 is the father of a boy of 4 years,

he has stated that the child in conflict with law had taken his son in his house

and had sexually assaulted the son of P.W.-2, about 8 months prior to the present

incident but however, that matter was settled at the village level. In cross also,

he has stated that he had not disclosed about the incident to anybody. Without

any evidence, only on the basis of the statement of this witness, alleged criminal

antecedents of the child-in-conflict with law cannot be considered at all. P.W.-4 is

the panch witness to the seizure panchanama of the clothes of the child-in-

conflict with law, however, if we peruse the Chemical Analyzer's report, it is not

supporting the prosecution. The spot panchanama was admitted by the defence,

so also, the medical report of the victim. Both these documents are at Exhibit-35

and 36. P.W.-5 is the medical officer, the psychiatrist, who had assessed the child-

in-conflict with law and had given psychiatry report Exhibit-38. In his cross-

examination, he has stated that he can opine about the mental illness of the

child-in-conflict with law, particularly during his stay at hospital and under their

observation. He was not able to state whether prior to the alleged incident, the

child-in-conflict with law was suffering from any mental illness or not. P.W.-6 Dr.

Bhiwate is also the medical officer who had examined the child-in- conflict with

law and had taken the samples. The report has been given by P.W.-6 Dr. Bhiwate

at Exhibit-41. P.W.-7 is again a medical officer, who had examined the victim. As

regards the victim is concerned, though she has been examined as P.W.-8, her

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statement under Section 161 of the Code of Criminal Procedure was not

recorded. P.W.-7 Dr. Atul Raje, who had examined the victim medically, has not

opined that there was penetrative sexual assault. P.W.-1, the informant has tried

to say that it was penetrative sexual assault. The victim herself i.e. P.W.-8 has not

given details and could not recollect as to what had happened with her. Under

such circumstance, the learned trial Judge erred in holding the appellant guilty

of committing offence under Section 6 read with Section 18 of the POCSO Act.

6. It has been further submitted on behalf of the appellant that the

spot panchanama Exhibit-35 would show that the houses of the informant and

the appellant are in crowded locality. Under such circumstance, the prosecution

ought to have examined independent witness. The investigating officer has not

given any cogent reason as to why he had not recorded the statement of the

victim under Section 161 of the Code of Criminal Procedure. Whatever evidence

that has been given by P.W.-8 the child witness, is unbelievable, as the

prosecution has not ruled out the possibility of tutoring. It has been pointed out

by the learned Advocate for the appellant that the inquiry under Section 14 of

the Juvenile Justice Act, 2015 regarding the age and especially in view of sub

section 5(f) of Section 14 of the said Act has not been held in the mandatory

period of three months. Even now, the appellant can challenge the said order of

the Juvenile Justice Board (for short hereinafter referred to as 'JJB') treating the

appellant as an adult and then transferred the case for trial as per the law to the

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Children's Court at Jalna. That order came to be passed on 25-10-2018. No

proper tests were conducted and in view of cross-examination of P.W-5, he was

not the proper person to state about whether the child-in-conflict with law was

suffering from any mental illness prior to the incident. The opinion that was

given by the panel was wrong. The alleged statements made by the appellant

before the board, that he had already experienced sex with a female of 20 to 23

years of age in the past, has impressed on them to hold the present appellant as

an adult is wrong. In fact, no intentional act has been done by the child-in-

conflict with law and whatever evidence that was adduced by the prosecution

was not sufficient to convict him.

7. In the alternative, learned Advocate for the appellant submitted that

the sentence that has been imposed by the learned Special Judge is wrong in

view of the fact that it was not a penetrative sexual assault. He prayed for

reduction in the punishment and also submitted that the order that has been

passed by the learned Special Judge is not under Section 19 of the Juvenile

Justice Act 2015, which deals with powers of the Children's Court. Therefore, in

the alternative, he prayed for conviction should be under Section 9(m) with

Section 10 of the POCSO Act and since it was an attempt under Section 511 of

the Indian Penal Code or Section 18 of POCSO Act, the quantum of punishment

should be in consonance with those provisions. He relied on following

authorities :-

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(i) Sunil Soma Bhamble Vs. The State of Maharashtra, (2016 ALL MR (Cri.) 2950.

(ii) Devendra s/o Pitambar Sahare Vs. The State of Maharashtra, (2009 (3) B Cr C 320).

(iii) Kailash s/o Madhukar Sandase Vs. The State of Maharashtra, (2008 (4) B Cr C 136).

(iv) Santosh Prasad @ Santosh Kumar Vs. The State of Bihar decided by the Hon'ble Apex Court in Criminal Appeal No.264 of 2020 (Arising out of SLP (Criminal) No.3780/2018) dated 14-02-2020.

(v) Raju Jaishriram Telgote (Langda) Vs. State of Maharashtra decided by this Court Nagpur Bench in Criminal Appeal No.586 of 2017 on 30-07- 2019.

(vi) Sheikh Hafeez @ Bhurya @ Bhuru s/o Sheikh Hasan Vs. State of Maharashtra, (2018 DGLS (Bom.) 121).

8. Per contra, the learned APP strongly opposed the appeal and he has

supported the reasons given by the learned Special Judge. It has been stated

that the psychiatry report and the order that was passed by the learned Principal

Magistrate, Juvenile Justice Board, Jalna was never challenged by the present

appellant and he has submitted himself to the jurisdiction of the Children's

Court. The trial has taken place. Under such circumstance, he cannot now

challenge the said order. It was further submitted that the child-in-conflict with

law was found by the panel of the experts to be having sufficient understanding

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capacity and especially, when the history was taken by the panel of experts, he

himself has disclosed about his past sexual act. He has been treated as an adult.

As regards the present case is concerned, the delay in lodging the FIR has been

sufficiently explained by the informant. Naturally, with such incident, the family

would be in shock and might not go to police immediately. It has not been

brought on record in the cross examination of P.W.1 and P.W.3 that there was any

kind of enmity between them and the family members of the appellant, so as to

frame the appellant in such heinous crime. The mental condition of the mother

can be understood that she had allowed the daughters to go with appellant with

confidence under his promise that he would give them chocolates. The second

daughter is still younger to the victim. After the child- in-conflict with law has

done the heinous crime with the victim, when she shouted, the mother has gone

there and under that circumstance, the second girl has been saved. Therefore,

taking into consideration the seriousness of the offence, the sentence has been

imposed and, therefore, it need not be modified. Learned APP, therefore,

strongly canvassed for dismissal of the appeal.

9. At the first place, we are required to consider the admitted fact that

the appellant (even as per the prosecution story) was 17 years of age, therefore,

he was child-in-conflict with law. Therefore, initially the charge-sheet was filed

before the JJB. Thereafter, as per the order passed by the learned Principal

Magistrate on 17-03-2018, he was sent for the psychology test. Further, it

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appears that, after the counseling was done, a detailed report was called in view

of the order dated 19-05-2018. After the entire procedure was over, order was

passed below Exhibit-01 on 25-10-2018 that taking into consideration the

psychiatry report as well as SIR and report of counselor, the JJB has come to the

conclusion that in view of Section 18(3) of the Juvenile Justice Act, the case

should be transferred to Children's Court for trial. It appears that this order was

not challenged by the appellant. That means, he has, thereafter, submitted to

the jurisdiction of the Children's Court. Thereafter, the charge was framed on

04-04-2019 and the entire trial has been conducted. Now, after the trial is over

and the child-in-conflict with law has been convicted, now at the appellate stage

for the first time, it is canvassed that even at this stage, appellant i.e. child-in-

conflict with law can challenge the said order passed by the JJB on 25-10-2018.

This cannot be allowed. When the said order was passed regarding transfer of

the case to the Children's Court in view of Section 18(3) of the Juvenile Justice

Act, then the entire forum to try the child-in-conflict with law would have been

changed. So also, he would have been governed under the provisions of Juvenile

Justice Act 2015 and the JJB would have been the appropriate authority under

the Juvenile Justice Act2015. In the event, he would have been held to be the

'child' (Not as adult). Now, when he had submitted to the jurisdiction of the

Children's Court, allowed the entire trial to be conducted and now, it is not

demonstrated as to what prejudice has been caused to him, he cannot now

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challenge the said order.

10. Independently or alternatively, if it is to be taken that the appellant

can still challenge the said order passed by the JJB on 25-10-2018, yet, it is to be

noted that the JJB had undertaken entire procedure that is contemplated under

the Juvenile Justice Act 2015; as per Section 15 of the Juvenile Justice Act, to

assess his mental and physical capacity, ability to understand the consequences

of the offence and the circumstances in which he has allegedly committed the

offence. It has been considered that the allegations against him are that he had

committed rape on a minor girl of four years. Further, it was considered that the

secondary sexual organs of the child-in-conflict with law are well developed. He

was capable of doing sexual intercourse and in addition to that, the history was

considered which was told by the appellant himself that he had already

experienced sex with one female around 20 to 23 years of age. The JJB has also

considered the report of the counselor and, therefore, it was opined that he is

aware of the consequences of the commission of the offence by him. So, no fault

can be found in the order passed by the JJB on 25-10-2018.

11. Now, turning towards the evidence that has been adduced against

the child-in-conflict with law, it is to be seen that the prosecution has examined

in all ten witnesses to support its case. P.W.-1 is the mother of the victim and

from her cross-examination taken on behalf of the appellant, it can be certainly

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said that there is absolutely no dispute regarding the age of the victim. It has

come in her cross-examination that the house of the appellant is at a distance of

about ten feet from her house. That means, child-in-conflict with law was well

aware about the age of the victim. P.W.-1 has stated that she has three

daughters. Victim was four years, at that time. On the day of incident at about

1.00 to 1.15 p.m., she herself, victim and her another daughter (then aged 2 ½

years) were in front of their house. After about half an hour, the child-in-

conflict with law came there and asked both her daughters to accompany him

and he promised that he would give them chocolates. Accordingly, the victim

and her another daughter went along with the child-in- conflict with law to his

house and she came inside her house. After about 10 to 20 minutes, she heard

cries of her another daughter. Therefore, she came out of the house and she

again heard the voice of that daughter from the house of the child-in-conflict

with law, which was closed. She, thereafter, went to the house of the child-in-

conflict with law and knocked the door. The child-in-conflict with law opened it,

at that time, she saw that the another daughter was crying and the victim was

lying on the cot. She asked the child-in-conflict with law as to what he has done

with her daughter and why another daughter is crying; at that time, the child-in-

conflict with law pushed her and ran away from that place. The victim was

frightened and was not able to walk. She found some sticky liquid on both

thighs and private part of the victim. She also found that the knicker of the

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victim was lying near the cot. Thereafter, the mother says that she came in her

house along with her two daughters and had even brought that knicker along

with her. Thereafter, she made enquiry with her daughter - victim and she told

that the child-in-conflict with law tried to insert his private part into her private

part. Victim also told her that the child-in-conflict with law had pressed her

mouth, so that she should not raise shouts. The another daughter also gave the

same version. The mother then says that as per the request of the victim, she

gave her bath. P.W.-1 says that her husband arrived at about 4.00 to 5.00 p.m.

and then she narrated the entire incident to him. According to her, her husband

had gone to police station and then police came to her house on 13-08-2017 and

then recorded her statement, which is the FIR Exhibit-18. In her cross-

examination, she has stated that the distance between her house and Police

Station, Ashti is about 15 Kms.. She has stated that after she had narrated the

entire incident to her husband, she and her husband had gone to the house of

the child-in-conflict with law. About 8 to 10 people had gathered. She has

stated that it did not happen that the mother and sister of the child-in-conflict

with law had given threat and asked her not to take any action against child-in-

conflict with law. She has reiterated that her husband had gone to Police Station

on 11-08-2017, but then she says that he came back immediately. She did not go

along with her husband and other persons from village to Police Station on 12-

08-2017. She has also stated that she had not gone to Police Station on 13-08-

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2017. According to her, her husband has lodged FIR with the police on 13-08-

2017. It can be seen that the informant being a rustic lady may not be

understanding what is FIR, but then she has admitted her signature on Exhibit-

18. Even if for the sake of argument we accept that there is delay in lodging the

FIR, yet, it is absolutely not fatal, taking into consideration the fact that there

was no direct dispute or quarrel between informant, her husband on one part

and the child-in-conflict with law and his family on the other part. In her cross-

examination, it has been tried to be suggested that Ramu Gurav, who is the

brother of her husband and appellant had quarreled with each other on the

count of Udid (Uard) Crop about 10 days prior to the incident. The said

suggestion has been denied by her. She admitted that the agricultural land

belonging to the child-in-conflict with law is situated in front of the land of

Ramu Gurav. Further, she has denied that about 10 days prior to the incident,

her husband and Ramu Gurav had stolen 5 gunny bags of Udid and, at that time,

child-in-conflict with law had told that he would lodge a report against them.

But, at that time, other people had intervened and, therefore, child-in-conflict

with law had not lodged the report. It is also suggested to the informant that

there was fear in the mind of the informant and her husband that still the child-

in-conflict with law can lodge a report against the husband and, therefore, he

has been falsely implicated. Important point to be noted is that the age of the

child-in-conflict with law is 17 years even at that time, how much part he would

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have been taking in the agricultural activities, is a question. If at all, there would

have been some such incident, then he would have involved his father in the

same and he would not have dared to say anything to the husband of the

informant or his brother. A 17 year old boy will not do such activities. It is not

his case that even at that age he was the only earning member of the family and

was therefore looking after his lands. In his statement under Section 313 of the

Code of Criminal Procedure, he has not given any such story. Thus, it can be

seen that all these are the fishing questions and not based on any fact. Even for

such incident of alleged theft, it is hard to imagine that the informant and her

husband would have involved their daughter, who was then aged 4 years.

Therefore, there is absolutely no substance in the said defence about false

implication.

12. At this stage itself, the testimony of the victim is required to be

noted. Her testimony was recorded on 05-12-2019, when she was 5-6 years old.

She has only stated that on the day of incident, she was playing in front of her

house. Child-in-conflict with law took the herself and her sister on the promise of

giving chocolate to his house. She further says that the child-in-conflict with law

removed her knicker and did something. She was not able to say what

'something' means and thereafter, she had shouted. It is to be noted that she was

the innocent girl of 5-6 years and was deposing almost after two years. May be

due to the environment of the Court, though precautions might have been taken

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by the Special Court while recording her evidence, she could not have given

proper answers. Her statement was not recorded under Section 161 of the Code

of Criminal Procedure and the Investigating Officer has tried to give his own

reasons for not recording it, but ultimately what the girl can convey to her

mother immediately after the incident could not have been conveyed it to

somebody else. The relationship of a mother and a daughter would always be of

confidence and the mother would be having her own skill to extract about the

things which have happened with her child. It will not be an exaggeration, if it

can be observed that the mother has that divine power to understand the

feelings like happiness or sorrows of the child and many times she understands it

without being conveyed in words. She understands the mood of the child from

his or her appearance and/ or actions also. She can understand the agony that

the child undergoes and she would be the first person to offer security to the

child. The child also after getting that security would open up and would convey

what he or she want or went through. In the extreme childhood of any child, his

or her mother would understand the language of the child even if he or she may

not be talking properly. Mother of deaf-and-dumb or even mentally challenged

child can understand his/her language and, therefore, in the present case, even if

the child was not able to tell before the Court as to what had happened with her

on the day of incident, yet, the other evidence that has been produced by the

prosecution is required to be considered here by keeping aside the testimony of

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the child. Before considering the other evidence once again, however, it is

required to be observed that the child-in-conflict with law will not get any kind

of advantage, when the victim in this case was not able to convey the happenings

that had happened with her on the day of incident.

13. Informant was the only person, who could give as to what had

happened on that day. The other daughter, who was with the victim on that day

was still younger to the victim. As per the FIR, the age of another daughter was

two years. We would expect least from that daughter. What the informant has

stated that she went to the house of the child-in-conflict with law and knocked

the door after she had heard the noise of her second daughter. Then she says that

the child-in-conflict with law had opened the door. It will not be out of place to

mention here itself that the learned APP conducting the matter has not tried to

extract how much time, the child-in-conflict with law had taken to open the door

and what were the clothes on the person of the child-in-conflict with law at that

time, if she would have noticed. These questions or fact were important from

the point of view as to guess which act could have been done inside the house by

the child-in-conflict with law. But then, that fact has not been extracted and,

therefore, it will now be required to be considered as to which offence could be

made out against the child-in-conflict with law. The informant further says that

she saw the another daughter crying, whereas the victim was lying on the cot.

Though she had tried to ask the child-in-conflict with law and did ask him as to

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what he has done with the daughter, the child-in- conflict with law had pushed

her and ran away. Here it can be said that definitely he would have put on cloths

before he ran away. The informant further says that the victim was in frightened

condition and was not even able to walk. The mother could find out some sticky

liquid on the thighs and private part of the victim. She found that the knicker of

the victim was lying near the cot. As regards those events or facts which have

been told by the informant, except denial in the cross, there is nothing. It will

not be out of place to mention here that while making submissions, the learned

Advocate for the appellant has stated that in the cross-examination of the

informant it has come that the house of the child-in-conflict with law is

consisting of only one room. Then the question arises and the prosecution has

not clarified, where the family members of the child-in-conflict with law were at

the relevant time. Important point to be noted is that this point appears to have

been raised for the first time at the appellate stage. Perusal of the cross-

examination would clearly show that the informant had stated that when she

went inside the house of the child-in-conflict with law, nobody else was present.

None of the family members of the child-in-conflict with law have been

examined by the him in defence to state that they were inside the house at the

relevant time. Therefore, it will have to be accepted that when the incident took

place, child-in-conflict with law was the only person in his house.

14. P.W.-1 has further stated in her examination-in-chief that after she

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had brought the victim to her house, upon enquiry, victim told her that the child-

in-conflict with law had tried to insert his private part into her private part. The

learned APP has not further got any clarification about this statement, because

word "tried" has been used. Even if we consider the marathi deposition, the

word that has been used is "iz;Ru dsyk", that means and it indicates that there was

no penetration as required for the offence under Section 3(a) of the POCSO Act.

In absence of details of happening inside the house, medical evidence also not

clearing it and said statement by P.W.-1 that victim had told her that Child-in-

conflict with law had "tried" to penetrate his penis, we will have to infer that

there was no complete act of 'penetration', and therefore, it is "attempt".

Further, when Child-in-conflict with law had removed knicker of the victim and it

appears from the testimony of P.W-1 that there was discharge of semen; it can

definitely be inferred that Child-in-conflict with law had intention to commit

rape on victim. Therefore, the said act is definitely "sexual assault" defined

under Section 7 of the POCSO Act. Section 3(a) of the POCSO Act i.e. the

relevant part is reproduced here, which reads thus :-

"3. Penetrative Sexual Assault. -

(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"

15. Thus, only after the penetration is complete, it would attract the

said offence, which is then made punishable under Section 4 of the said Act.

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Thus, it was the 'attempt' and, therefore, the learned Special Judge also invoked

Section 511 of the Indian Penal Code i.e. the attempt, when it came to the

conviction for the offences under Indian Penal Code and Section 18 of POCSO

Act, when it came to the Sections in respect of the POCSO Act. Another fact

which we will have to consider is that when learned Special Judge has held that

the offence that has been proved by prosecution in this case is "attempt" to

commit rape, and prosecution has not challenged this finding by filing an appeal;

then the said finding by learned Trial Judge to the extent of act being "attempt"

will have to be upheld. It will not be out of place to mention here itself that the

learned Special Judge failed to consider the provisions of Section 42 of the

POCSO Act, which reads thus :-

"42. Alternate punishment. - Where an act or omission constitutes an offence punishable under this Act and also under sectiosn 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370- A, 375, 376, [376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB], 376-E or section 509 of 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 this Act or under the Indian Penal Code as provides for punishment which is greater in degree."

When this Section 42 of the POCSO Act covers Section 376 of

Indian Penal Code in its entirety, then by virtue of this alternate punishment, the

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child-in-conflict with law, after he has been found guilty of such offence, should

have been either punished under POCSO Act or under Indian Penal Code, as

provides for punishment, which is greater in degree. He has awarded

punishment under both, which is wrong.

16. It is to be further noted that the child-in-conflict with law was

acquitted of the offence under Section 3(a) punishable under Section 4 of the

POCSO Act, however, the learned Special Judge has held him guilty under

Section 6 of the POCSO Act. Section 6 of the POCSO Act provides for

punishment for aggravated penetrative sexual assault. Learned Special Judge

forgot to consider that Section 5 provides for aggravated penetrative sexual

assault. If we peruse the observations in the impugned judgment, then it can be

seen that he has not considered the facts of the case covering under Section 3(a)

as well as Section 5(m) of the POCSO Act. The entire judgment is thereafter

silent as to which offence has been made out against the child-in-conflict with

law defined under Section 5 of the POCSO Act. Basically, when there was no

penetrative sexual assault covered under Section 3(a) of the POCSO Act, there

was no question of having the case covered under aggravated penetrative sexual

assault, which is then made punishable under Section 6 of the POCSO Act.

Therefore, it is now required to be seen as to under which provisions, the case

has been made out. Again going back to the testimony of the informant, it can

be seen that what was disclosed by the victim to her was that the child-in-conflict

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with law had tried to insert his private part into her private part, that means it

was an attempt. Section 7 of the POCSO Act, reads thus :-

"7. Sexual assault. - whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

17. Further, as regards Section 9 of the POCSO Act, which covers

various types of aggravated sexual assaults, subsection (m) would be relevant,

which reads thus :-

"9. Aggravated sexual assault.-

(m) whoever commits sexual assault on a child below twelve years; or"

18. Section 9(m) of the POCSO Act has been made punishable under

Section 10 of the said Act, which reads thus :-

"10. Punishment for aggravated sexual assault. - Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine."

19. Therefore, the case would be governed under the POSCO Act under

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that Section, however, as regards Section 376 of Indian Penal Code is concerned,

the learned Special Judge has rightly held that offence under Section 376(2)(i)

of Indian Penal Code has been made out. It will not be out of place to mention

here that the offence was committed on 11-08-2017 and Section 376(2)(i) was

omitted by Act of 22 of 2018 with effect from 21-04-2018. The said Section was

as follows :-

"Section 376(2)

(i) commits rape on a women when she is under 16 years of age; or."

Thus, the offence that is made out is Section 376 (2) (I) r/w. Section

511 of Indian Penal Code and Section 9 (m) punishable under Section 10 r/w. 18

of POCSO Act. The further effect of Section 18 and 42 of the POCSO Act would

be considered later.

20. Now, turning towards the rest of the evidence that has been

adduced by the prosecution, it can be seen that though by examining P.W.-2, the

prosecution had tried to bring criminal antecedents of the child-in-conflict with

law on record, yet, since the said witness had not lodged any report, it cannot be

taken as criminal antecedents. P.W.-3, the father of the victim, has also stated

about the entire incident, but as submitted by the learned Advocate for the

appellant, his testimony is hearsay. The only fact that is required to be

considered is that he says that he had gone to police station along with victim on

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the day of the incident itself and had narrated the incident to Police Head

Constable Nagargoje. But then according to him, some persons from his village

and relatives had not allowed him to lodge the FIR and they had brought him

back to village. In his cross-examination, he says that he has not lodged any

report against those persons who had prevented him from lodging report. As

aforesaid, though there appears to be delay in lodging the FIR, yet, that is not

fatal. The testimony of the panch witness would only show the seizer the clothes

of the child in conflict with law in his presence, but then since the case is made

out for attempt, that evidence is not required to be considered further.

21. The testimony of P.W.-5 Dr. Nitin Pawar, who had assessed the child-

in-conflict with law and had given psychiatry report Exhibit-38, was the

opportunity for the child-in-conflict with law to bring many facts on record,

however, if we consider the cross-examination conducted on behalf of the child-

in-conflict with law, it is very cryptic. Whatever observations have been made

and findings those have been arrived at, are on the basis of the observations

made by the team between 22-12-2017 to 30-12-2017 as indoor patient. No

doubt, the report says that as per the psychiatric examination and the history

narrated by the mother of the child-in-conflict with law, the child-in-conflict with

law had history of psychiatric illness of 8 months prior to the incident and the

child-in-conflict with law had taken treatment from Shanti Nursing Home,

Aurangabad for 10 days. The child-in-conflict with law had every opportunity to

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produce those documents on record, but it has not been done. Further, in the

report itself it is stated that after such narration by his mother, she has stated

that the child-in-conflict with law was alright. Thereafter, there was no

psychiatric complaints by him. Therefore, it has been stated that now the child-

in-conflict with law has no complaint suggestive of psychosis, depression, mood

disturbances, anxiety, sleep disturbances or substance used. Therefore, the

testimony of the medical officer would support the findings arrived at by the JJB

for taking action under Section 18(3) of the Juvenile Justice Act. P.W.-6 Dr.

Bhiwate had examined the child-in-conflict with law and found that he is capable

of doing sexual intercourse. There is no negative question in his cross. P.W.-7 Dr.

Raje had examined the minor victim. The entire testimony and his report

Exhibit-47 is not suggesting the complete act of rape. No doubt, the incident had

taken place on 11-08-2017 and the victim was examined by him on 14-08-2017

and, therefore, it appears that he has stated that there were no external injuries,

especially on the genital area. Again at the cost of repetition, it can be said that

the case is of 'attempt' and, therefore, his testimony may not even be considered.

P.W.9 and 10 are the police officers. So far as the ratio laid down in the aforesaid

authorities relied by the learned Advocate for appellant are concerned, the facts

in the aforesaid cases and the present case, are different.

22. Taking into consideration the entire evidence and for the reasons

aforesaid, it can be seen that the prosecution has proved offence under Section

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376(2)(i) read with Section 511 of Indian Penal Code as well as, as regards

POCSO Act is concerned, the prosecution has proved offence under Section 9(m)

punishable under Section 10 read with Section 18 of the POCSO Act against the

appellant, beyond reasonable doubt. The punishment that can be awarded

under Section 10 of the POCSO Act is not less than five years, but which may

extend to seven years and shall also be liable to fine. Taking into consideration

Section 18 of the POCSO Act, the said punishment would come to one-half of the

longest term of imprisonment provided for that offence or with fine or with both.

So, the longest punishment provided under Section 10 is seven years, and half of

it will come to three and half years. The punishment that is provided under

Section 376(2)(i) is the rigorous imprisonment for a term which shall not be less

than ten years, but which may extend to imprisonment for life, which shall be

imprisonment for the remainder of that persons natural life.... Section 511 of

India Penal Code also provides for half of the longest term of the imprisonment

provided for that offence which is on the similar line of Section 18 of the POCSO

Act. Now, as regards imposition of the punishment is concerned, as aforesaid,

the learned Special Judge had totally ignored Section 42 of the POCSO Act. He

could not have imposed punishment to the child-in-conflict with law under both

the provisions. Further, it can also be seen that the provisions of Juvenile Justice

Act were altogether not considered by the learned Special Judge, especially

Section 19(3) of the Juvenile Justice Act, which reads thus :-

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"19. Powers of Children's Court.-

(3) The Children's Court shall ensure that the child who is found to be in conflict with law is sent to a place of safety till he attains the age of twenty-one years and thereafter, the person shall be transferred to a jail:"

Further beneficial provisions for the child have been provided under

the said Act and then the Act also provides for what treatment is to be given to

such child-in-conflict with law, after he attains the age of 21 years. Those are

also not considered by the learned Special Judge. It will not be out of place to

mention here that the said Court was not only the Special Court under the

POCSO Act, but also was the Children's Court under Juvenile Justice Act, 2015

and, therefore, proper consideration ought to have given to all the Acts involved

in the case and ultimate operative order ought to have been given. Since the

learned Special Judge has failed to do that, being the first Appellate Court, it is

required to be done by this Court. As per the papers, especially one of the order

passed by the learned Principal Magistrate, JJB, Jalna on 09-11-2017, it can be

seen that the school leaving certificate of the child-in-conflict with law was

considered, which gives his birth date as 27-05-2000. Therefore, as on today he

is aged 20 years 7 months 29 days and therefore, the provisions of Section 19(3)

of the Juvenile Justice Act are required to be considered and the benefit of the

same is required to be given. It is stated that at present the appellant has been

lodged in regular jail which is against the provisions of Juvenile Justice Act. He

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is required to be kept in a place of safety i.e. Pandit Jawaharlal Nehru

Government Special Home at Yerwada, Pune (Yerwada Industrial School) and

accordingly, further directions are required to be given to keep him there till he

attains 21 years of age and thereafter, to shift him to the regular jail. Further,

taking into consideration the provisions of Section 42 of the POCSO Act

providing for alternate punishment and the punishments provided under Indian

Penal Code and POCSO Act governing this case, as aforesaid punishment under

Indian Penal Code is having greater degree. Though Section 376(2)(i) provides

for the longest punishment of imprisonment for life, yet, taking into

consideration the age of the child-in-conflict with law minimum punishment is,

therefore, required to be imposed i.e. it shall not be less than ten years and when

it is coupled with Section 511 of Indian Penal Code, half of it would be five

years. Accordingly, the modification is required to be made and, therefore,

appeal deserves to be partly allowed. Hence, the following order :-

ORDER

1) Appeal is hereby partly allowed.

2) The findings given by the learned Judge of the Special Court, Jalna in Special Case (Child) No.69 of 2018 dated 04-03-2020 holding the appellant / child-in-conflict with law guilty of committing offence under Section 6 read with Section 18 of the POCSO Act, is hereby set aside and the child-in-conflict with law stands acquitted of that offence.

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3) The findings of the learned Special Judge holding the child-in- conflict with law guilty of committing offence punishable under Section 376(2)(i) read with Section 511 of the Indian Penal Code, is hereby confirmed. Further, the child-in-conflict with law is hereby held guilty of committing offence under Section 9(m) punishable under Section 10 read with Section 18 of the POCSO Act, however, in view of Section 42 of the POCSO Act, no separate sentence is awarded for the offence punishable under Section 9(m) punishable under Section 10 read with Section 18 of the POCSO Act.

4) The punishment awarded by the learned Special Judge to the appellant / child-in-conflict with law under Section 376(2)(i) read with Section 511 of Indian Penal Code is hereby set aside and modified as follows :-

"The child-in-conflict with law is sentenced to suffer rigorous imprisonment for five years and shall pay fine of Rs.10,000/-, in default of payment of fine, he shall suffer rigorous imprisonment for one year."

5) The child-in-conflict with law is entitled for set off under Section 428 of the Criminal Procedure Code.

6) The order in respect of payment of compensation is hereby set aside and modified as follows :-

"The fine amount recovered be paid to the informant under Section 357(1) of the Code of Criminal Procedure after the appeal period is over."

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7) Today, the child-in-conflict with law is aged 20 years 7 months 29 days. He will complete the age of 21 years on 27-05-2021. Till completion of his 21 years of age, he be kept in a place of safety i.e. Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School).

8) The Superintendent, Central Jail, Aurangabad to make immediate arrangements to shift the child-in-conflict with law to said Institution at Pune, under proper supervision.

9) The Superintendent of Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School) is directed to admit the child-in-conflict with law in the Institution till he attains 21 years of his age.

10) The Superintendent of Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School) is directed to keep away the child-in-conflict with law from other children in the Institution.

11) The Superintendent of Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School) is directed to provide all re-formative services to the child-in-conflict with law, including educational services and skill development, etc.

12) The District Probation Officer, Pune is directed to send periodic follow-up report to Special Court, Jalna every month to evaluate the progress of the child-in-conflict with law till the attainment of age of 21 by him.

13) The Superintendent of Pandit Jawaharlal Nehru Government Special

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Home at Yerwada, Pune (Yerwada Industrial School) is directed to transfer the child-in-conflict with law to the Central Jail, Aurangabad after the child-in-conflict with law attains 21 years of age.

14) The copy of this operative order be sent to the Superintendent of Pandit Jawaharlal Nehru Government Special Home at Yerwada, Pune (Yerwada Industrial School), the District Probation Officer, Pune, the Central Jail Aurangabad and Boys Observation Home, Parbhani.

15) It is clarified that there is no change in the order of disposal of muddemal property.

[SMT. VIBHA KANKANWADI, J.]

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