Ashok S/O Mahadev Kannake vs State Of Mah. Through Police ...
2021 Latest Caselaw 15309 Bom

  cri.appeal409.2018.odt                                                         1/25


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL No.409 OF 2018


  Ashok s/o. Mahadev Kannake,
  Aged - 43 years, Occupation Mason work,
  R/o. Tembhi, Tq. Kelapur,
  District Yavatmal.
  (At present District Prison, Amravati)                :      APPELLANT

                           ...VERSUS...

  State of Maharashtra,
  Through Police Station Officer,
  Police Station, Pandharkawada,
  District - Yavatmal.                                   :      RESPONDENT


  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
  Shri A.K. Bhangde, Advocate for Appellant.
  Shri S.S. Doifode, Additional Public Prosecutor for Respondent-State.
  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=


                            Coram:    M.S. Sonak And
                                      Smt. Pushpa V. Ganediwala, JJ.

Date: 26th October 2021.

ORAL JUDGMENT : (Per: M.S. Sonak, J.)

1. Heard Shri A.K. Bhangde, learned counsel for the appellant,

and Shri S.S. Doifode learned Additional Public Prosecutor for the

respondent-State.

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2. This appeal is directed against the judgment and order

dated 4.8.2017 made by the Special Judge and Additional Sessions

Judge, Kelapur in Special Case No.28/2015 convicting the appellant for

offenses punishable under Section 376, 376(2)(f)(i) and (n), 354-A,

323, 506 of the Indian Penal Code and for the offenses under Sections

4,6,8,10 and 12 of the Protection of Children from Sexual Offences Act,

2012 (in short, "POCSO Act") and imposing various sentences, including

life imprisonment for the remainder of his natural life and fine.

3. The charge framed against the appellant on 3.3.2016

alleged that the appellant on 21.8.2015 and for a period of 7 to 8

months before said date, raped his minor daughter of 14 years and

thereby committed various offenses, including offenses under Section

376 of the Indian Penal Code and Sections 4,6,8,10 and 12 of the

POCSO Act. The charge was read over and explained to the appellant in

vernacular and he denied the same. The prosecution examined 13

witnesses including PW 13 as a Court witness. The appellant was

questioned under Section 313 of the Criminal Procedure Code and

despite the opportunity, the appellant neither examined himself nor led

any defense evidence in the matter. By the impugned judgment and

order the appellant was convicted and sentenced as aforesaid. Hence,

the present appeal.

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4. Mr. Bhangde, learned counsel for the appellant submitted

that the learned Special Judge has failed to appreciate the evidence on

record in its correct perspective. He submitted that there is evidence

about the enmity between the appellant and his wife, who was living

separately from the appellant for the last several years. He submitted

that a false charge was foisted on the appellant by his wife involving

their minor daughter. He submits that the prosecution version is

inherently improbable and this aspect has not been appropriately

considered by the learned Special Judge.

5. Mr. Bhangde, submitted that there is an unexplained delay

in recording the First Information Report. Mr. Bhangde further

submitted that there is no medical evidence to sustain the charge of

rape against a minor. He submitted that no injuries were noticed on the

private parts of the minor. He submitted that there is a dispute about

the age of the minor. He submitted that the brother, who was staying

along with the appellant and his minor daughter was not examined as a

witness by the prosecution. He submitted that an adverse inference was

liable to be drawn on account of such non-examination. He submitted

that all these vital and relevant aspects were ignored by the learned

Special Judge and the conviction is, therefore, required to be reversed.

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6. Mr. Bhangde, submitted that even the Court witness PW 13

did not support the prosecution version of having witnessed the incident

of rape or at least part of the incident. He submits that even this aspect

has not been appropriately considered by the learned Special Court and,

therefore, the conviction warrants interference.

7. Mr. Bhangde, submitted that the Special Court, without

specific reference has purported to rely on the presumption under

Section 29 of the POCSO Act. He, however, submits that in this case,

the prosecution had failed to establish the foundational facts in the

absence of which the presumption under Section 29 of the POCSO Act

was not at all available. He submits that that even this aspect has not

been considered by the learned Special Court and the conviction

recorded warrants interference.

8. Mr. Bhangde, submitted that even the sentence awarded is

quite harsh and disproportionate. He submits that the provisions which

were not in force on the date of commission of offense have been taken

into account by the learned Special Court thereby violating the

provisions of Article 20 of the Constriction of India.

9. Mr. Bhangde relied on State vs. Pritan Kumar (Major)

2020(1)Mh.L.J. (Cri.) 480, Mohd. Zakir Habib Khan vs. State of

Maharashtra 2021(2)Mh. L.J. (Cri.) 201, Mohan Ambadas Meshram vs.

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State of Maharashtra 2018 ALL MR (Cri) 4362, Sadhu w/o. Motilal

Turra vs. State of Maharashtra 2019 ALL MR (Cri) 342 and Vanita

Vasant Patil vs. The State of Maharashtra and another 2019 ALL MR

(Cri) 1188 in support of his contentions. Mr. Bhangde, based on the

aforesaid submitted that the impugned judgment and order convicting

and sentencing the appellant may be set aside and the appellant be

acquitted of the charges leveled against him.

10. Mr. S.S. Doifode, learned Additional Public Prosecutor

defended the impugned judgment and order based on the reasoning

reflected therein. He submits that the deposition of the minor daughter

of the appellant is quite cogent, clear, and credible. He submits that the

same was quite correctly relied upon by the learned Special Court. He

submits that in such matters not only there is a presumption in terms of

Section 29 of the POCSO Act but further minor variations and

discrepancies here and there are required to be ignored. He submits

that the medical evidence supports the prosecution version and in any

case, if there is any conflict between medical evidence and ocular

evidence, it is the latter that ought to prevail. He submits that the

evidence on record has been properly appreciated by the learned Special

Court and there is no case made out to interfere with the impugned

judgment and order. He, therefore, urges that this appeal be dismissed.

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11. The rival contentions now fall for our determination :

12. In this case the allegations against the appellant are that he

raped his minor daughter for a period of over 7 to 8 months taking

advantage of the fact that his wife was residing with her mother in a

different village (Karanji) because the relationship between the couple

was strained. The daughter was about 14 years old at the time of the

incident and there is no serious dispute on the aspect of age though,

some dispute was attempted to be raised before the learned Special

Court as also this Court. In a matter of this nature, the testimony of the

victim is crucial. It is well settled that if the testimony of the victim

inspires confidence then, a conviction can be based on the same even if

there is no detailed corroboration. Besides, in a matter of this nature,

the issue of consent becomes quite irrelevant once it is established that

the victim was under 16 years of age.

13. The first issue is to be considered concerns the age of the

minor victim daughter of the appellant. The prosecution, in this case,

relied upon the medical evidence that refers to the age of the minor

victim- daughter as around 14 years. However, even if this evidence is

not relied upon, reliance can safely be placed on the deposition of PW 7-

Baliram Atram, the Head Master of the Zilla Parishad High School,

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Tembhi in which the minor victim daughter was studying at the relevant

time.

14. The Head Master, has produced documentary evidence to

establish that the victim was indeed a student of the school of which he

was Head Master and further, he is also produced a school transfer

certificate based on which she was admitted to Zilla Parishad School at

Tembhi. This transfer certificate indicates that the minor's date of birth

is 22.3.2001. This means that on the date of the incident, the minor was

around 14 years old. Significantly, there was no serious cross-

examination of the prosecution witnesses on the aspect of the minor's

age. Therefore, in this case, the learned Special Court was quite

justified in holding that the minor's age was around 14 years at the time

of the incident.

15. Since the prosecution has established the age of the

appellant's minor victim daughter was around 14 years at the time of

the incident, the issue of consent would be quite irrelevant. So also,

there can be no dispute about the applicability of POCSO. Such dispute

about the applicability of POCSO was never even raised by the appellant

before the learned Special Court in this matter.

16. In this case, the prosecution examined the minor's maternal

grandmother Sakhubai Sidam as PW 2. She deposed that the appellant

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was married to her daughter Rekha and were residing along with their

two children at Mandwa. She deposed that the appellant used to

consume liquor and tortured her daughter Rekha, and therefore, Rekha,

along with children used to reside at Mandwa. Thereafter, Rekha along

with PW 2 proceeded to Maregaon where they got a job to work in a

girls hostel and at that time the appellant took the custody of two

children and went to Tembhi.

17. PW 2 deposed that on 21.8.2015 her brother Waman

contacted her and Rekha and informed them that the appellant's

daughter and the witness's granddaughter was crying and he called

them to his home at Kolgaon. On 22 nd August 2015 between 7 to 8

A.M. PW 2 and her daughter Rekha reached Kolgaon and found the

victim crying bitterly. PW 2 deposed that the victim informed them that

the appellant, her father, closed the door of the house removed her

clothes, and raped her. The victim also stated that she was threatened

by the appellant that he will kill her and himself by administering/

consuming poison if she informs anyone about this. The victim also

informed that on 21.8.2015, the appellant raped her.

18. Mr. Bhangde pointed out certain omissions and

improvements in the testimony of PW 2. We have perused the so-called

omissions and improvements but find that the same are trivial and not

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at all sufficient to discard the testimony of PW 2. Merely because PW 2

may not have used the word "Balatkar" in her statement to the Police or

indicated the precise time of the incident that took place on 21st August

2015, it cannot be said that the evidence of PW 2 is not creditworthy.

19. The minor victim-daughter has deposed in this matter as

PW 5. Before administering of oath to the victim learned Special Court

posed her some questions to ascertain whether she was aware of the

consequences of deposing on oath. Only after she gave satisfactory

answers, her evidence was recorded on oath. Even otherwise, PW 5 was

about 14 years old at the time of the incident and about 16 years old at

the time of her deposition. From her deposition, it is quite apparent that

she was aware of the consequences of deposing on oath. Her testimony

is quite clear and cogent and inspires confidence.

20. PW 5 has deposed the relations between her father

(appellant) and her mother were not cordial and, therefore, her parents

were living separately. She has deposed that she was staying along with

her father (appellant) at Tembhi. She has also deposed that her brother

was residing at Tembhi but in the home of their paternal aunt. In her

cross-examination, she clarified that her brother used to stay with the

paternal aunt during the night time, but thereafter returned in the

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morning. There is evidence that her brother was younger than PW 5

and was possibly aged about 12 years at the time of the incident.

21. PW 5 has deposed that the appellant was working as a

mason and used to drink liquor. She deposed that for a period about 7

to 8 months before 21st August 2015, the appellant used to close the

doors of the room in which they were staying, remove her clothes and

have sexual intercourse with her. She has deposed that she attempted

to resist, but the appellant used to beat her and forced himself upon her.

She has deposed that the appellant used to threaten her by saying that if

she disclosed these things to anybody else, then he will kill her by

administering her poison. She deposed that the appellant used to also

state that he will himself consume poison and commit suicide. She has

deposed that the last incident took place on 21.8.2015 at about 8.00

a.m. when the appellant closed the doors of the room, removed her

clothes, and had sexual intercourse with her.

22. PW 5 deposed initially that this incident of 21.8.2015 was

watched by her friend Sonika Bawane. But in the next line, she stated

that Sonika had seen the appellant while wearing the trouser on her

person and she asked her about the same. PW 5 then deposed about

how she went to see her mother at Maregaon but because her mother

was not there, how she went to Kolgaon at her maternal grand-parents

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house where she met her maternal uncle. PW 5 then deposed how his

maternal uncle contacted her mother and grandmother on phone and

how she narrated this incident to her mother and grandmother weeping

at that time.

23. PW 5 has then deposed about how she along with her

mother and grandmother made a report to the Police Station and how,

thereafter, she was referred to the hospital for examination. She has

identified her signatures on various documents produced on record by

the prosecution through her.

24. PW 5, in the course of her cross-examination candidly

accepted that for the last 7 years her parents were residing separately

since their relationship was not cordial. She explained why she did not

inform the incident of rape to her brother by stating that the

relationship with her brother was also not very cordial. According to us,

no dent was made to the crucial aspects of the victim's testimony, and

based upon some trivial and inconsequential omissions or

improvements, no case is made out to discard the clear and cogent

testimony of PW 5.

25. Mr. Bhangde points out the words "Dar Band Karun", "Aai

Alyavar Mi Khup Radat Hoti" are not mentioned in the statement given

by PW 5 to the Police. Such omissions, if at all, can be regarded as

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trivial and inconsequential. Based on the same, there is no case made to

discard clear and cogent testimony of PW 5.

26. Thereafter, in the cross-examination, only suggestions were

put to PW 5 concerning the allotment of hutment in the name of the

appellant or that PW 5 was not doing household and cooking duties

and, therefore, the appellant got angry with her and how PW 5 along

with her mother and grand-mother lodged a false report. Some

suggestions were also put as to how the appellant had not maintained

the victim's mother and, therefore, the mother required PW 5 to lodge a

false complaint against the appellant. PW 5 withstood the cross-

examination and there is no dent made to clear and cogent deposition

on material aspects. This was sufficient to convict the appellant herein

for offenses punishable under Section 376 and various other sections of

POCSO amongst others.

27. In this case, the F.I.R. was lodged on 22.8.2015 soon after

the latest incident of rape that took place on 21.8.2015. Mr. Bhangde,

however, contended that since the prosecution case is that the appellant

used to rape the victim for about 7 to 8 months before 21.8.2015, there

is a delay in lodging of F.I.R. According to us, there is no merit in this

contention. PW 5 has explained why she suffered the sexual abuse for a

period of 7 to 8 months by pointing out that the appellant was her own

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father, who had threatened to kill her as well as himself if she disclosed

the instances of abuse to anybody else. PW 5 was a girl of hardly 14

years and had to suffer sexual abuse by her own father. The delay, if at

all, having regard to such special circumstances is fully explained.

28. Besides, in matters of this nature, the issue of delay in

lodging F.I.R. has to be evaluated with a yardstick different from that

which is employed in cases concerning offenses that have no sexual

overtones. This is more so in the present case when the perpetrator is

the victim's own father and the victim was admittedly a minor. This

position has been explained by the Hon'ble Supreme Court in the case of

Satpal vs. State of Haryana, 2010(8) SCC 714, and such explanation

applies with full force to the facts of the present case.

29. Based on the deposition of PW 2 (grand-mother) and PW 5

(minor victim daughter), we do not think that the appellant had

succeeded in establishing even on a preponderance of probabilities that

the allegation made by PW 5 has any nexus with the strained

relationship between the appellant and his wife. This strained

relationship was for almost 7 years. PW 5 was admittedly staying

almost alone with the appellant during the nighttime at Tembhi. It is

only after the incident of 21.8.2015 when the abuse became quite

unbearable, PW 5 went in search of her mother and grandmother and

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narrated her predicament to them. The mother and grandmother

reported the matter to the Police only thereafter. There is absolutely no

evidence on record to suggest that PW 5 acted at the behest of her

mother or the instigation of her mother. Besides, there is no evidence

on record to establish any contact between PW 5 and her mother so

that PW 5 could get an opportunity to be tutored by her mother or

grandmother.

30. In any case from the deposition of PW 5 we are quite

satisfied that PW 5 would not go to the extent of making serious

allegations against the appellant, her father on account of the strained

relationship between the appellant and his wife i.e. parents of PW 5.

Therefore, on this ground, there is no case made out to discard the clear

and cogent testimony of PW 5 in this matter.

31. The prosecution, in this case, examined Dr. Garima Arora

(PW 8) and Dr. Rama Bajoriya (PW 9) on the aspect of medical

evidence. PW 9 stated that on 23.8.2015, PW 5 was brought for

examination at the Sub-District Hospital, but she was not quite willing

to be examined by him and, therefore, he referred her to a lady

Gynecologist at the Government Medical College at Yavatmal. PW 9.

however. deposed that he examined PW 5 externally and found that she

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had developed secondary sexual character but there was no external

evidence of injury over her breast and vaginal area.

32. PW 8, lady Medical Officer at Yavatmal deposed that she

noted the history after questioning PW 5. She deposed that on

examination she found that her Havel was strong and the possibility of

sexual intercourse could not be ruled out. In her cross-examination, she

deposed that injury is possible to a girl of 14 years of age if a man of 45

or 50 commits sexual assault on her suddenly. She admitted that she

did not find any such injuries on the person of PW 5. She also admitted

that if a girl is habitually fingering herself in her private part, then the

symptoms mentioned in the report may be possible.

33. Now the evidence in the present case indicates a history of

sexual abuse over 7 to 8 months. This is not a case where the appellant

is alleged to have suddenly committed a sexual assault on the victim.

Therefore, according to us, there is nothing in the evidence of PW 8 or

for that matter PW 9 to negate the prosecution version about the

appellant having raped his minor daughter PW 5. The evidence of PW

8, to a certain extent, supports the prosecution version.

34. In any case, reference can usefully be made to the decision

of the Hon'ble Supreme Court in Rathu vs. State of Madhya Pradesh,

2007(12) SCC 57, where it is held that in rape cases the finding of guilt

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can be based even on the uncorroborated evidence of the victim and the

evidence of the victim should not be rejected based on minor

discrepancies and contradictions. The Hon'ble Supreme Court has

further held that the absence of injuries on the private parts of the

victim will not, by itself, falsify the case of rape nor, can it be construed

as evidence of consent. Even the opinion of a doctor that there was no

evidence of any sexual intercourse or rape is not sufficient to disbelieve

the clear and cogent testimony of a victim. However, the Hon'ble

Supreme Court also cautioned that false charges of rape are not

uncommon and there may be some rare instances where a parent has

persuaded a gullible or obedient daughter to make a false charge of

rape either to take revenge or extort money or to get read of financial

liability.

35. The Hon'ble Supreme Court has held that even where there

is some inconsistency between ocular evidence and medical evidence,

the former must prevail provided of course the ocular evidence inspires

confidence. This principle has been quite correctly invoked by the

learned Special Court in the present matter, assuming that there was

indeed some conflict between medical evidence and the victim's

evidence in the present matter.

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36. According to us, no adverse inference is liable to be drawn

against the prosecution for its failure to examine the victim's minor

brother. In the first place, the victim has deposed that her minor

brother used to stay at the paternal aunt's place during the night time

and secondly, her brother was younger to PW 5 and there was no reason

for PW 5 to disclose such matters or discuss such matters with her

younger brother. The decision in Pritamkumar (supra) relied upon by

Mr. Bhangde answers a similar contention raised in the said matter

against the accused therein. Based on similar reasoning, therefore, we

hold that this was not a case for any adverse inference was required to

be drawn against the prosecution.

37. PW 13 was examined as a Court witness. She may not have

entirely supported the prosecution version, but at the same time, we do

not feel that her version is quite sufficient to demolish clear and cogent

depositions of PW 5 in this matter. Even PW 5 stated that PW 13 saw

her father i.e. appellant herein wearing trousers on 21.8.2015 and

questioned her as to what her father was doing. PW 13 appeared a little

confused when questioned about the incident, which, according to us, is

quite natural. The Learned Special Judge who had the opportunity of

witnessing the demeanor of this witness, has quite reasonably evaluated

her testimony. Therefore, based on the testimony of PW 13, we cannot

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hold that the prosecution version is either false or that the testimony of

PW 5 is doubtful.

38. In this case, we are also unable to accept Mr. Bhangde's

contention about inherent improbability. Unfortunately, there is

nothing inherently improbable about what was deposed to in clear and

cogent terms of PW 5. The testimony of PW 5 finds corroboration from

the testimony of other prosecution witnesses like PW 2 her grandmother

and PW 8 doctor, who examined her. The matters of this nature, it is

difficult to find corroboration regards the actual rape because such an

act is rarely performed in the presence of witnesses. The deposition of

PW 5, in this case, inspires confidence and since the foundational facts

have been established by the prosecution, the presumption under

Section 29 of the POCSO was required to be invoked. Even in the

absence of such presumption being invoked, we feel that in the present

case the prosecution has succeeded in proving the guilt of the appellant

beyond a reasonable doubt.

39. In Pritamkumar (supra), the Division Bench was concerned

with an appeal against acquittal. In the said case, most of the

contentions now raised by Mr. Bhangde were rejected by the Court.

However, the prosecution in the said case had failed otherwise to prove

the guilt of the accused person and this is what was held by the Sessions

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Court in the said matter. The Division Bench, therefore, accepted that a

plausible view has been taken by the Sessions Court which warranted no

reversal having regard to the limited jurisdiction while considering an

appeal against acquittal.

40. In Mohd. Zakir Habib Khan (supra) another Division Bench

of this Court accepted the proposition that conviction under Section 376

of the Indian Penal Code can be based on the sole testimony of the

prosecutrix provided of course such testimony inspires confidence. In

the said matter, the allegation was that the father had continuously

raped his daughter for about 6 to 7 years until she attained the age of

14 years. The Division Bench noted that the father, daughter,

step-mother and some others were sleeping in the same room and it was

highly improbable that the father raped the daughter for 6 to 7 years

and further, the step-mother would not object to such rape or outraging

of modesty for 6 to 7 years, but suddenly raised an objection when the

daughter attained the age of 14 years. The Division Bench noted that

even the paternal grandmother was staying in the same house and it is

inconceivable that the daughter would not complain about such

continuous sexual assault spread over 6 to 7 years even to her

grandmother. Therefore, on facts, the evidence of the daughter was

found to be unreliable and the conviction was quashed. The facts in the

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present case are not at all comparable and, therefore, the decision in

Mohd. Zakir Habib Khan (supra) can be of no assistance to the

appellant.

41. The decisions of the learned Single Judge of this Court in

the case Mohan Meshram (supra) and Sadhu Turra (supra) turn on

their facts where the prosecution had miserably failed to even establish

the foundational facts sufficient for invoking the presumption under

Section 29 of POCSO. It is in these circumstances that the learned

Single Judge held that in the absence of prosecution establishing even

the foundational facts, the presumption under Section 29 of the POCSO

ought not to be invoked to sustain a conviction. In the present case, the

foundational facts have been more than established by the prosecution.

Besides, even without invoking the presumption under Section 29 of the

POCSO, the prosecution has succeeded in proving the guilt of the

appellant beyond a reasonable doubt. The two decisions, therefore,

cannot assist the appellant in the present case.

42. Vanita Patil (supra) was a case where the medical evidence

conclusively ruled out, not only sexual assault but also sexual abuse.

The decision turns entirely on facts that are quite peculiar and in no

manner comparable to the facts in the present case. Therefore, even

this decision, can be of no assistance to the appellant herein.

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43. For all the aforesaid reasons, we are quite satisfied that the

impugned judgment and order convicting the appellant warrants no

interference whatsoever.

44. However, on the aspect of sentencing, we find that the

sentence imposed by the learned Special Court under Section 376(2)(f)

(i) and (n) of the Indian Penal Code of life imprisonment for the

remainder of his natural life is rather harsh having regard to the proved

facts and warrants some modification. This is maximum punishment

provided under said section and the consequence of this sentence would

mean that the appellant herein will have to suffer life imprisonment for

the remainder of his natural life, without even aspiring for some

remission after completion of the mandatorily prescribed sentence of 14

years. According to us, though, the crime for which the appellant is

convicted is very serious, the reformative concept of sentencing cannot

be altogether ignored. If the sentence as awarded is maintained then,

possibly the jail authorities or the State Government will be deprived of

their powers to even consider the pre-mature release of the appellant

after completion of a minimum mandatory sentence of 14 years. At

least in the facts of the present case, we feel that such a situation might

be harsh.

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45. Upon consideration of the seriousness of the crime

committed by the appellant including more particularly the

circumstance that the appellant was the father of a minor victim, in

whom she was entitled to and had placed her trust, the ends of justice

would be met if the appellant is sentenced to undergo imprisonment for

a term of 20 years for offenses under Section 376(2)(f)(i) and (n) of the

Indian Penal Code.

46. According to us, the sentence of imprisonment for a term of

20 years will be appropriate in the facts of the present case rather than

a sentence for life imprisonment for the remainder of the appellant's

natural life. The trauma suffered by the minor victim on account of

facts of the appellant is no doubt quite great in this matter and,

therefore, we do not think that this is a case where the appellant needs

to be sentenced for a term of only 14 to 15 years as was proposed

without prejudice on behalf of the appellant. Ordinarily, a sentence for

life imprisonment implies a sentence for the remainder of the natural

life. But subject to the statutory limitations and guidelines, the

government can consider the premature release of a convict.

47. The appellant has already been sentenced to life

imprisonment for offenses punishable under Sections 4 and 6 of the

POCSO Act. However, there is no dispute that Section 6 of the POCSO

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Act before its amendment w.e.f. 16.8.2019 had provided for a sentence

of rigorous imprisonment for a term which shall not be less than 10

years but may extend to imprisonment for life and shall also be liable to

fine. The explanation that the expression "imprisonment for life" shall

mean imprisonment for the remainder of the natural life of that person

was introduced w.e.f. 16.8.2019 i.e. much after the date of commission

of the offense by the appellant herein.

48. Section 42 of the POCSO Act provides that where an act or

omission constitutes an offense punishable under the POCSO Act and

also under certain sections of the Indian Penal Code including Section

376 of the Indian Penal Code, then, notwithstanding anything contained

in any law for the time being in force, the offender found guilty of such

an offense shall be liable to punishment under the POCSO Act or the

Indian Penal Code as provides for punishment which is greater in

degree.

49. Applying the above provision and principle, there may not be

a necessity for separate sentencing for the offenses under the POCSO

Act, now that we find that a greater penalty was prescribed under the

I.P.C. and further, we have sentenced the appellant herein to undergo

imprisonment for a term of 20 years thereby making it clear that the

appellant will have to suffer imprisonment for a term of 20 years in

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accord with the rules and regulations as applicable before his case is

considered for release.

50. For all the aforesaid reasons, we dispose of this appeal by

making the following order :

ORDER

a) The conviction of the appellant in terms of impugned

judgment and order dated 4th August 2017 is hereby

upheld.

b) The sentences imposed upon the appellant for various

offenses for which he stands convicted are maintained

except the sentence for offenses under Section 376(2)(f)(i)

and (n) of the Indian Penal Code is modified to rigorous

imprisonment of 20 years instead of life imprisonment for

the remainder of his natural life.

c) Save as modified as aforesaid. The challenge to the

impugned judgment and order is hereby dismissed.

d) The appeal is partly allowed by upholding the conviction

but modifying the sentence imposed.

             cri.appeal409.2018.odt                                                           25/25


            e)               The record shall be returned to the Learned Special Court

and all steps must be taken to mask the identity of the

minor victim.

            (f)                There shall be no order for costs.



                                  (Pushpa V. Ganediwala,J.)               (M.S. Sonak, J.)




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