Pradip @ Golu S/O Suresh Dandge vs The State Of Mah., Thr Pso Ps Old ...
2022 Latest Caselaw 12499 Bom

Judgment                                                  apeal419.19
                                1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH : NAGPUR.


              CRIMINAL APPEAL NO. 419 OF 2019.

APPELLANT :           Pradip @ Golu s/o Suresh Dandge, Aged
                      about 20 years, Occupation - Labour,
                      resident of Shiv Sena Vasahat, Old City,
                      Akola, District Akola.

                            VERSUS


RESPONDENT :          The State of Maharashtra, through Police
                      Station Officer, Police Station Old City
                      Akola, District Akola.

                           ---------------
           Shri R.M. Daga, Advocate for the Appellant.
            Shri H.D. Dubey, A.P.P. for the Respondent.
                          ---------------


                         CORAM : VINAY JOSHI AND
                                 MRS.VRUSHALI V. JOSHI, JJ.

CLOSED FOR JUDGMENT ON :                    16.11.2022.
JUDGMENT PRONOUNCED ON :                    02.12.2022.


JUDGMENT : (PER VINAY JOSHI, J)

Challenge in this appeal is to the judgment and order

of conviction dated 21.02.2019 passed by the Special Judge,

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Akola in Sessions Case No.173/2013, by which the appellant/

accused was held guilty for the offence punishable under Sections

376 [2][i] of the Indian Penal Code and Sections 4 and 6 of the

Protection of Children from Sexual Offences Act, 2012 (POCSO

Act). By virtue of Section 42 of the POCSO Act, the trial Court has

sentenced the appellant/accused for the offence punishable under

Section 376[2][i] of the Code to suffer imprisonment for life,

which shall mean imprisonment for the remainder of his natural

life along with fine of Rs.25,000/- with stipulation of default.

2. At the inception, we may note that the learned

Counsel for the appellant/accused has fairly conceded that the

accused has no case on merits. He has advanced submission only

to the extent of proportionality of punishment. He would submit

that though the offence was committed in the year 2013, the trial

Court has sentenced the accused in accordance with the amended

provisions of the Indian Penal Code and POCSO Act. Apart from

above, he submits that considering the young age and family

background of the accused, the sentence imposed by the trial

Court is too harsh and disproportionate.

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3. The prosecution case as unfolded before the trial Court

is that the minor victim aged 7 years, was daughter of the

informant. On the date of occurrence i.e. 24.09.2013, the

informant, a labourer as usual went for her work. Her husband

was away for the work, whilst her two other daughters had been

to the school in morning hours. Around 11 hours, the informant

returned to her house, however, in the way her sister [P.W.6 -

Dnyaneshwari] met and told that something untoward has

happened about the minor victim. She informed that the victim

is crying and her nicker is full of blood.

4. The informant rushed to her house and enquired the

things with the victim. She started to cry and disclosed that

neighbouring person namely Golu Suresh Dandge [accused]

called her while she was playing. The accused asked her to bring

some articles from nearby shop. The victim bought the things

and went to the house of the accused to deliver the same. The

accused made her to stand on a chair, forcibly removed her

nicker, inserted his penis into her vagina. The victim started

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bleeding, as well as there was paining at her private part. The

accused also told her not to disclose the things to anybody.

5. After realizing the things, the informant and victim

went to the police station, who in turn sent the victim for medical

examination. In the late night, the informant - mother lodged

report regarding the incident. The police registered Crime for

the offence punishable under Sections 376[2][i] of the Code and

Section 3 read with Sections 4, and 5 [m] read with Section 6 of

the POCSO Act. Panchnama of the scene of offence was drawn.

Blood stained clothes of the victim were seized, medical

examination report was procured. The accused was arrested and

his undergarments were seized. Necessary samples were collected

and sent for medical examination. After completing the

formalities of investigation, charge sheet came to be filed.

6. On denial of the charge by the accused, the

prosecution endeavoured in to examining as many as 7 witnesses

to establish the guilt with requisite standard of proof. The

prosecution also relied on certain documents. On appreciating

the oral and documentary evidence, the trial Court held that the

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prosecution has successfully proved the leveled charges and

passed the aforementioned sentence.

7. Though the learned Counsel for the appellant/

accused conceded that there is sufficient evidence, however, we

deem it necessary to re-examine the entire material to find out

whether the conviction is justified. Though the prosecution has

examined as many as 7 witnesses, the entire thrust of the

prosecution is on the evidence of the informant [P.W.1], victim

girl [P.W.2] and Dnyaneshwari [P.W.6]. Besides that the

prosecution has examined headmaster of the School to prove the

age of the victim, panch on spot panchnama, medical officer and

investigating officer.

8. We prefer to directly deal with the evidence of victim

which assumes significance. While recording evidence of the

minor victim, aged 7 years, the learned trial Court has taken

necessary precautions contemplated under Section 33 of the

POCSO Act. It is the evidence of victim that on the date of

occurrence, around 10 a.m. she was playing near her house. The

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accused who was of his acquaintance gave her Rs.5/- and asked

to bring oil pouch. She brought the same and went to give to the

accused. In turn the accused gave her Rs.3/- for chocolate.

Accused made her to stand on the chair and removed her nicker.

The victim stated that the accused removed his pant and inserted

his penis into her vagina. It started paining and blood was oozing

from her vagina. She questioned the accused as to why he is

doing so, on which the later said not to disclose the things to

anybody. She stated that within short time, she met her maternal

aunt Dnyaneshwari, to whom she pointed towards her vaginal

portion and told about the paining. The minor victim is cross

examined at length, but, besides denial there is nothing on

record.

9. The prosecution has examined P.W. 1 - informant,

whose evidence also carries importance. She deposed that when

she returned from work, P.W.6- Dnyaneshwari told her that her

daughter was crying. The informant enquired with the victim to

which she disclosed the act of the accused, as narrated above.

The informant saw blood oozing from vagina of victim, therefore

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took her to the police station and then the victim was examined

by the medical officer.

10. Contextually we have gone through the evidence of

P.W.6 Dnyaneshwari, who met the victim soon after the

occurrence. It is her evidence that when she saw the victim

crying, she enquired the things. It is her evidence that the victim

by touching her vaginal portion started to cry. She informed the

things to her sister i.e. informant, and then both of them enquired

the victim on which the victim repeated the story.

11. Since it is a case of sexual assault on a minor of tender

age, medical evidence bears relevance. The prosecution has

examined P.W.5- Dr.Rujuta Mate, who was attached to the medical

hospital at the relevant time. It is her evidence, that on the date

of occurrence at the instance of police, she has examined the

victim, who stated history about sexual assault by neighbouring

person. Medical officer opined that hymen was torn and

inflamed. Oedema was present. Bleeding was present in victims

vagina and thighs. Nicker of victim was stained with blood, and

accordingly she has issued medical certificate [Exh.43]. We have

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also gone through the medical certificate, which bears reference

as per the version of the medical officer.

12. The prosecution has examined P.W.6- Raju, who was

headmaster of the Municipal School. He has produced birth

certificate [Exh.33] and abstract of admission register [Exh.34],

showing victim's date of birth as 23.02.2006. His examined

remained unshattered during cross examination. Besides that,

there is no reason to discard his testimony, which is supported by

public document. Therefore, it is evident that the victim was 7

years of age at the time of occurrence, meaning thereby she was a

"child" within the meaning of Section 2[d] of the POCSO Act.

13. The prosecution has also examined panch witness, in

whose presence clothes of the victim as well as of the accused

were seized. Chemical Analyzer's report has been produced.

Blood of victim was reported to be of group "B". Chemical

Analyzers report indicates that the blood of "B" group was found

on the nicker of the victim as well as on the undergarment of the

accused. Certainly finding of blood group of victim on the

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undergarments of the accused strongly connects him with the

crime.

14. Having regard to the above evidence, there is no

scintilla of doubt that the accused has sexually assaulted the

minor vulnerable child. Though a faint attempt was made to

show old rivalry, however, the said facile defence is not

acceptable in the context of trustworthy and consistent evidence.

Therefore, on re-appreciation of entire material, we hold that the

prosecution has duly proved the guilt of the accused. The trial

Court has rightly recorded finding of guilt, which calls for no

interference.

15. This takes us to the another chapter which relates to

the proportionality of sentence. The trial Court though held

appellant guilty of the offence punishable under Sections 4 and 6

of the POCSO Act, and Section 376[2][i] of the Code, however,

by virtue of Section 42 of the POCSO Act, has imposed the

sentence under Section 376[2][i] of the Indian Penal Code being

the punishment greater in degree. Accordingly the accused is

sentenced to suffer imprisonment for life, which shall mean

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imprisonment for the remainder of his natural life, along with

fine.

16. The learned Counsel for the appellant/accused would

submit that the alleged incident took place on 24.09.2013 i.e.

prior to the amendment of Sections 4 and 6 of the POCSO Act,

and Section 376 of the Code. There can be no dispute that the

accused is liable for punishment which is prescribed by law and

in force at the time of commission of the offence. Sections 4 and

6 of the POCSO Act suffered an amendment w.e.f. 16.08.2019,

meaning thereby much after the incident. Therefore, the

punishment which was in the statute book prior to said

amendment, is relevant. Punishment prescribed for Section 4

which was existing on the date of commission of offence, was of

imprisonment of either description for a term which shall not be

less than 7 years, but, which may extend to imprisonment for life

along with fine. Likewise, prevailing Section 6 of the POSCO Act

has prescribed punishment of imprisonment of either description

for a term which shall not be less than 10 years, but, which may

extend to the imprisonment for life along with fine. Accordingly,

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the punishment for Section 6 was greater in degree at the

relevant time which shall not be less than 10 years, but, may

extend to imprisonment for life.

17. So far as Section 376[2][i] of the Code is concerned,

Clause [i] has been omitted w.e.f. 21.04.2018, since a new

Section i.e. Section 376 DB has been introduced providing

punishment for rape on women under 12 years of age. Since the

mandate of Section 376 DB came into force from 21.04.2018, the

same is not relevant. Since Section 376[2][i] was existing at the

time of commission of offence, one has to see the then prevailing

punishment prescribed in law for said offence. Category [i] to

Section 376[2] provides for the punishment of rigorous

imprisonment for a term which shall not be less than 10 years,

but, which may extent to imprisonment for life, which shall mean

imprisonment for remainder of that persons natural life.

18. Thus the punishment of imprisonment for life, which

would shall mean imprisonment for the remainder of that persons

natural life, imposed by the trial Court was well within the statute

books at the relevant time. Therefore, the submission that the

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trial Court has imposed a punishment which was not prescribed

at the time of commission of offence, is untenable. Since the

punishment prescribed for Section 376[2][i] of the Code was

greater in degree, it has been imposed by the trial Court.

19. Apart from that, the learned Counsel appearing for the

appellant/accused has submitted that the punishment imposed by

the trial Court is quite harsh and disproportionate. He would

submit that while imposing the maximum punishment prescribed

by law, the trial Court has not assigned adequate reasons to

justify the necessity. He took us through paragraph nos. 82 to 84

of the judgment relating to deliberation on the point of sentence.

No doubt paragraph nos.82 and 83 speaks about the seriousness

of the offence of sexual abuse of a child. In paragraph no.84, the

learned trial Court has stated that the accused has committed a

heinous crime with 7 years 7 months old child, therefore, he does

not deserve for leniency, as well as, if leniency is shown it will

pass a negative message in the society.

20. The learned Counsel for the appellant would submit

that while considering the proportionality of the sentence, the

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Court shall equally weigh the side of accused, including variety of

related factors. He has pointed to the submissions made by the

accused before the trial Court that the accused is the only bread

earner of the family. He has no father, but, has a widowed sister

who along with her minor son, are dependent on him. Besides

that the learned Counsel for the appellant has invited our

attention to the charge sheet to state that the accused was a

young boy of 20 years of age at the relevant time. It is submitted

that the accused is not a hardened criminal, nor there are bad

antecedents. He urged that the punishment of imprisonment of

life that too till the remainder of his natural life, is quite harsh. It

is submitted that if till the end of life the accused is kept behind

bars, then his dependents would also be sufferer. It is submitted

that opportunity of correction be given to the accused.

21. The learned Counsel for the appellant has relied on

the decision of the Supreme Court in case of Manoj Mishra @

Chhotkau .vrs. State of Uttar Pradesh - [2021] 10 SCC 763, to

contend that imprisonment of 7 years for the offence of rape

punishable under Section 376 of the Code, is held to be a

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sufficient deterrence. He has also invited our attention to the

observations made by the Supreme Court in case of Mohd.

Firoz .vrs. State of Madhya Pradesh - [2022] 7 SCC 443, wherein

the punishment for the offence of murder and rape has been

converted into imprisonment for a period of 20 years, instead of

imprisonment for remainder of natural life. Particularly, he has

invited our attention to paragraph no.61 of the judgment which

reads as under :

"61. One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender.

Hence, while balancing the scales of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-accused, the sentence of imprisonment for a period of twenty years instead of imprisonment for the remainder of his natural life for the offence under section 376A, IPC. The conviction and sentence recorded by the courts below for the other offences under IPC and POCSO Act are

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affirmed. It is needless to say that all the punishments imposed shall run concurrently."

22. The entire endeavour of the learned counsel for the

appellant was to convince that the maximum punishment

prescribed in law may not always be necessary as a deterrence,

but, the position of accused, his age, dependency and

surrounding circumstances needs consideration.

23. Sentencing is an important task in the matters of

crime. One of the prime objectives of the criminal law is

imposition of appropriate, adequate, just and proportionate

sentence commensurate with the nature and gravity of crime and

the manner in which the crime is done. There is no straitjacket

formula for sentencing an accused on proof of crime. The courts

have evolved certain principles : the twin objective of the

sentencing policy is deterrence and correction. What sentence

would meet the ends of justice depends on the facts and

circumstances of each case and the court must keep in mind the

gravity of the crime, motive for the crime, nature of the offence

and all other attendant circumstances. The principle of

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proportionality, prescribes that, the punishments should reflect

the gravity of the offence and also the criminal background of the

convict.

24. Since the punishment prescribed for the offence

punishable under Section 376[2][i] of the Indian Penal Code is

greater in degree than the punishment prescribed for the offence

punishable under Sections 4 and 10 of the POCSO Act, the

accused is to be sentenced for the offence punishable under

Section 376[2][i] of the Indian Penal Code. As observed above,

at the relevant time the offence under Section 376[2][i] was

punishable with rigorous imprisonment for a term which shall not

be less than 10 years, but, which may extent to imprisonment for

life, which shall mean imprisonment for remainder of that

persons natural life and shall also be liable to fine. The Section

has put a minimum rider of imprisonment for 10 years, which

may extend further. The Legislature purposefully left the judicial

discretion to the Court to award punishment with a rider of

minimum sentence. The purpose behind leaving discretion with

the Court is to mould the sentence in accordance with the

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prevailing circumstances befitting to the crime and all other

relevant factors.

25. Certainly always the imposition of appropriate

sentence is an issue of delicacy. The Court has to consider variety

of circumstances namely - manner of crime, atrocities committed

by the accused, victims condition, age of the accused and other

related factors. There is no denial that the accused was a young

boy of 20 years shouldering responsibility of his widowed sister

and her son. Moreover, he has no father. There can be no

dispute that the accused has committed an offence relating to

innocent child who has not even seen the world. If he has been

incarcerated for considerable period, that would serve the

purpose. The imprisonment for a term of 14 years would be

adequate, to teach him a lesson. It is not a case that the accused

has already undergone a major portion of sentence so that he

would be freed in the proximity. It reveals from the record that

the accused was in jail from 30.09.2013 to 30.03.2014, and then

from the date of judgment i.e. 21.02.2019, till date he is in jail.

Approximately he is in jail for the period of near about 4 years 2

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months. Imposition of 14 years terms would require him to still

remain behind bars for further considerable period. Therefore,

we are of the considered view to maintain the conviction, but, to

reduce the sentence to undergo rigorous imprisonment for 14

years with fine along with default clause.

26. In view of above, Criminal Appeal is partly allowed

and disposed of. The sentence imposed by the Special Court,

Akola in Sessions Case No.173/2013 vide judgment and order

dated 21.02.2019 is reduced and the appellant/accused is

directed to suffer rigorous imprisonment for a term of 14 years

with fine and default clause, as ordered by the trial Court. The

appellant/accused is entitled for set off under Section 428 of the

Code.

                                            JUDGE                          JUDGE




Signed By:RAKESH GANESHLAL    Rgd
DHURIYA
Private Secretary
High Court of Bombay, at Nagpur
Signing Date:06.12.2022 12:07