Bombay High Court
Sunil Ramesh Sathe @ Kalya Mama vs The State Of Maharashtra on 29 June, 2021
Bench: R. G. Avachat
1 Cri-Appeal-25-2021.doc
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 25 OF 2021
Sunil Ramesh Sathe @ Kalya mama ... Appellant
Versus
The State of Maharashtra ... Respondent
....
Mr. G. N. Chincholkar, Advocate for the appellant
Smt. Geeta L. Deshpande, APP for the respondent - State
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 24th JUNE, 2021
PRONOUNCED ON : 29th JUNE, 2021
PER COURT :-
. Heard.
2. The appellant has been convicted for the offence
punishable under Section 506 part II of the Indian Penal Code and
under Section 8 of the Protection of Children from Sexual Offences
(POCSO) Act and sentenced to suffer rigorous imprisonment for
three years and pay fine of Rs.25,000/-, in default of payment of
fine, he is directed to undergo rigorous imprisonment for three
months. For the offence punishable under Section 506 part II of the
Indian Penal Code, he has been sentenced to suffer rigorous
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imprisonment for one year and to pay fine of Rs.1,000/-, in default
of payment of fine, he is directed to undergo rigorous imprisonment
for fifteen days.
3. Shri G. N. Chincholkar, learned Advocate appointed to
represent the appellant, would submit that the trial Court has not
directed that substantive sentences to run concurrently. The
appellant was undertrial prisoner and as of now, he is behind the
bars for over three years and five months. According to the learned
Advocate, the normal rule is to direct the substantive sentences to
run concurrently. The appellant is 28 years of age. The facts and
circumstances of the case would warrant the direction for the
sentences to run concurrently.
4. The learned APP would, on the other hand, submit that
the appellant has committed heinous offence. The victim was about
10 years of age. In the facts and circumstances of the case, the trial
Court was justified in not directing the substantive sentences to run
concurrently.
5. The appellant is not challenging his conviction. I have
perused the evidence in the case and the impugned judgment, as
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well. Section 31 of the Code of Criminal Procedure speaks of
sentence in cases of conviction of several offences at one time. The
section reads as under:-
"31. Sentence in cases of conviction of several offences at
one trial. - (1) When a person is convicted at one trial of
two or more offences, the Court may, subject to the
provisions of section 71 of the Indian Penal Code (45 of
1860), sentence him for such offences, to the several
punishments prescribed therefor which such Court is
competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration
of the other in such order as the Court may direct, unless
the Court directs that such punishments shall run
concurrently.
(2) In the case of consecutive sentences, it shall not
be necessary for the Court by reason only of the aggregate
punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction
of a single offence, to send the offender for trial before a
higher Court:
Provided that -
(a) ......
(b) ......
(3) For the purpose of appeal by a convicted person,
the aggregate of the consecutive sentences passed against
him under this section shall be deemed to be a single
sentence."
6. The Hon'ble Three Judge Bench of the Apex Court, in
the case of O. M. Cherian Alias Thankachan vs State of Kerala and
others - (2015) 2 SCC 501, has observed thus:-
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"20. Under Section 31 CrPC it is left to the full
discretion of the court to order the sentences to run
concurrently in case of conviction for two or more
offences. It is difficult to lay down any straitjacket
approach in the matter of exercise of such discretion by
the courts. By and large, trial courts and appellate courts
have invoked and exercised their discretion to issue
directions for concurrent running of sentences, favouring
the benefit to be given to the accused. Whether a
direction for concurrent running of sentences ought to be
issued in a given case would depend upon the nature of
the offence or offences committed and the facts and
circumstances of the case. The discretion has to be
exercised along the judicial lines and not mechanically."
7. The facts of the case indicate that the appellant was the
neighbour of the victim, 10 years old girl. On 04.01.2018, at about
2.30 p.m., he went to the house of the victim and asked her mother
for leman. While returning home, he asked the victim to accompany
him. It was the case of the prosecution that the appellant removed
the nicker of the victim and committed rape of her. On the same day,
First Information Report (FIR) was lodged by the mother of the
victim. The allegations in the FIR are said to be based on what the
victim narrated to her mother. The victim was medically examined
on the same day. The medical examination report altogether ruled
out offence of rape. In the opinion of the Medical Officer, tip of
vagina was normal and hymen not torn. There was no sexual
violence against the victim girl on 04.01.2018. Opinion of
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gynecologist does not suggest sexual violence. The aforesaid
evidence suggests that allegations of rape have not been proved. The
trial Court, therefore, acquitted the appellant of the charge of
offence of rape. The victim testified that her statement was recorded
as per the say of her mother. The appellant has already served out
sentence for the period of three years and five months. In the
aforesaid factual backdrop, I am inclined to allow the appeal to the
limited extent in terms of the following order:-
ORDER
(I) The appeal is partly allowed.
(II) The substantive sentences of imprisonment imposed
on the appellant for the offence punishable under
Section 8 of the Protection of Children from Sexual
Offences (POCSO) Act and the offence punishable
under Section 506 part II of the Indian Penal Code,
shall run concurrently.
(III) Rest of the terms of order of conviction and sentence
to stand unaltered.
[ R. G. AVACHAT, J. ]
SMS
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