Kamlesh S/O. Janardhan Walde(In ... vs The State Of Maharashtra Thr. ...
2022 Latest Caselaw 71 Bom

                               1                       204-J-APPEAL-531-18 (1).doc


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

                  CRIMINAL APPEAL NO. 531 OF 2018

Kamlesh s/o Janardhan Walde,
Aged about 23 years, occ: Labour,
R/o Rajedahegaon, Tahsil and
District - Bhandara.
(In Nagpur Jail)                                                       .... APPELLANT

                                    // V E R S U S //

The State of Maharashtra,
Through Police Station Officer,
Police Station Jawaharnagar,
District - Bhandara.                                                    ... RESPONDENT
------------------------------------------------------------------------------------------------
Shri R. M. Daga, Advocate for appellant.
Ms. Mayuri Deshmukh, Additional Public Prosecutor for
respondent.
------------------------------------------------------------------------------------------------
                               CORAM: V. M. DESHPANDE AND
                                      G. A. SANAP, JJ.

DATED : 04/01/2022.

JUDGMENT : (PER G. A. SANAP, J.)

1. In this appeal, the appellant/accused has

challenged the Judgment and order dated 21/07/2018 passed

by the learned Special Judge in Special Criminal (Child) Case

No.33/2016, whereby the learned Judge convicted the

appellant for the offence punishable under Section 376(2)(i),

354-A, 506 of the Indian Penal Code and under Sections 6, 8 2 204-J-APPEAL-531-18 (1).doc

and 12 of the Protection of Children from Sexual offences Act,

2012 (for short, "POCSO Act") and sentenced him to suffer life

imprisonment. No separate sentence was awarded for the

offence punishable under Section 354-A of the Indian Penal

Code and under Section 6, 8 and 12 of the POCSO Act.

The facts are as follows :-

2. In this case, there are three child victims aged

about 5, 6 and 7 years respectively. In order to protect the

identity of the victims, their names are masked in the

Judgment. The victim children were ravished by the appellant

in a span of one year. The mother of victim 'A' lodged a report

of the incident at Jawaharnagar Police Station. On the basis of

report, a crime bearing No.81/2016 was registered against the

appellant. The informant reported to the police that the

appellant and three victims are residing in the locality namely;

Suyog Nagar, Rajedahegaon. The informant had cordial

relations with the family of the appellant. It is stated that on

24/08/2016, the mother and the brother of the appellant came

to the house of the informant and quarreled with her. They 3 204-J-APPEAL-531-18 (1).doc

alleged that the informant spread the false information about

the appellant and as such, defamed the appellant and their

family. In the said incident, those persons assaulted the mother

of informant. While narrating the prelude to the incident, it is

stated that prior to this incident, daughter of the informant

victim 'A' had informed the informant on 11/08/2016 that 2 - 3

days prior at noon, she had gone to the house of the appellant

and was watching TV in the house of the appellant. The

appellant called the victim 'A' near to him. Nobody was present

in the house of the appellant. The appellant removed his pant

and asked the victim 'A' to shake his private part. The appellant

had threatened the victim 'A' not to disclose the said incident to

anybody, otherwise he would hang her upside down. It is stated

that thereafter, the informant narrated this incident and

conduct of the appellant to his family members. The family

members did not like it and therefore, they quarrelled with the

appellant on 24/08/2016. The appellant, thus outraged the

modesty by sexual harassment and assault on the daughter of

informant.

4 204-J-APPEAL-531-18 (1).doc

3. After the quarrel on 24/08/2016, the incident

became known to the people. The parents of the victims 'P' and

'S', thereafter got emboldened and came forward. The father of

the victim 'P' disclosed that one year ago, his daughter was

ravished by the accused by giving inducement of chocolate. The

appellant took his daughter to the house which was under

construction and asked her to remove her underwear and

thereafter, he committed sexual intercourse with her. The

grand-mother of victim 'A' also came forward. She informed

that her grand-daughter was also subjected to sexual intercourse

by the appellant by giving inducement of chocolate. All the

three victim girls were lured and ravished by the appellant. He

threatened them that he will hang them upside down, if they

disclose the incident to anybody. The informant - mother of

victim 'A' thereafter went to the police station. The father of the

victim 'P' and grand-mother of victim 'S' accompanied her. On

25/08/2016, the mother of victim lodged a report. The report

was signed by the father of the victim 'P' and grand-mother of

victim 'S'. On the basis of this report, the wheels of the

investigating machinery were put into motion.

5 204-J-APPEAL-531-18 (1).doc

4. The Investigating Officer, Priti Kisan Ade

(PW-9) visited this spot and drawn spot panchnama in presence

of two witnesses. The spot was pointed out by the victim girls.

The victims 'P' and 'S' were sent for medical examination. They

were medically examined. The accused was also medically

examined. The seized samples were forwarded to the Chemical

Analyzer by Investigation Officer. After completion of the

investigation, charge sheet was filed against the appellant.

5. The learned Special Judge vide Exh.4 framed

charge against the appellant. The appellant pleaded not guilty.

The prosecution examined 9 witnesses to bring home the guilt

of the accused. The learned Special Judge on consideration of

the materials and evidence held the accused guilty for the above

offences and sentenced him as above. Being aggrieved by this

Judgment and order, the appellant has come before this Court

in this appeal.

6. We have heard Shri R. M. Daga, learned

Advocate for the appellant and Mrs. Mayuri Deshmukh, 6 204-J-APPEAL-531-18 (1).doc

learned Additional Public Prosecutor for the respondent. We

have perused the record and proceedings.

7. Shri Daga, learned Advocate for the appellant

submitted that there is inordinate delay in lodging the First

Information Report. There is no explanation for lodging the

First Information Report after one year from the date of the

alleged incident. In the submission of learned Advocate

unexplained delay in lodging the report creates a doubt about

the case of the prosecution and credibility and veracity of the

witnesses. The learned Advocate submitted that the inference

of false implication needs to be drawn in absence of explanation

for delayed lodging of First Information Report. On this

ground, the appellant is entitled to get the benefit. The learned

Advocate submitted that evidence of the informant clearly

indicates that she had grudge against family of the appellant

and therefore, she concocted the story about her daughter and

instigated the parents of the victim 'P' and 'S' to implicate the

appellant. The learned Advocate submitted that evidence of

victim 'A', victim 'P' and victim 'S' is not believable. There are 7 204-J-APPEAL-531-18 (1).doc

major omissions and inconsistencies in their evidence and

therefore, reliance cannot be placed on their evidence. The

learned Advocate took us through the evidence of the victim

girls and submitted that before stepping into witness box, they

were tutored. The learned Advocate submitted that the

disclosure of alleged incident by the victims after quarrel

between the informant and the mother and brother of the

appellant was the root cause for concoction of the case and false

implication of the appellant. The learned Advocate submitted

that there is no independent witness to corroborate the

evidence of victims as well as the informant. In the submission

of learned Advocate, sufficient doubt has been created about

the case of the prosecution and therefore, the accused is entitled

to be acquitted by giving him benefit of doubt.

8. The learned Additional Public Prosecutor

submitted that considering the nature of crime in this case,

much weightage cannot be given to the delay in disclosure of

the incident and in lodging the First Information Report. The

learned Additional Public Prosecutor took us through the 8 204-J-APPEAL-531-18 (1).doc

report lodged by the informant at Exh.8 and submitted that the

delay for disclosure of the sexual intercourse with the victim 'P'

and victim 'S' as well as delay for lodging the First Information

Report has been explained in the report. The learned

Additional Public Prosecutor submitted that the society has not

come out of the orthodox mindset. In such cases, they treat

such incident as stigma and therefore, such crimes are not

brought in public domain. The learned Additional Public

Prosecutor submitted that the learned Special Judge has made

threadbaring analysis of the oral and documentary evidence and

found the same concrete and cogent. The learned Additional

Public Prosecutor submitted that the evidence of the victims

cannot be discarded. The learned Additional Public Prosecutor

submitted that the oral evidence of victims 'P' and 'S' has been

fully corroborated by the medical evidence. In the submission

of the learned Additional Public Prosecutor in the teeth of the

evidence adduced by the prosecution, the guilt against the

appellant has been proved beyond doubt. His defence is totally

improbable.

9 204-J-APPEAL-531-18 (1).doc

9. The case of the prosecution rests mainly on the

evidence of three victim girls. At the threshold, it would,

therefore, be appropriate to consider the evidence of the

victims. We are conscious of the fact that the child witness is

susceptible to tutoring. We are equally conscious that the

tutored witness cannot stand the scrutiny of searching cross-

examination and can be easily exposed. The Court can easily

notice major inconsistencies in the evidence of tutored witness.

If the witness is not tutored, then it becomes very difficult even

for a seasoned cross-examiner to deviate such witness from the

core and substance of the testimony. The cross-examination of

the witness on behalf of the accused is a prime source to shake

the credibility of the witness and bring on record the truth. The

child witness can be allowed to testify if the Court is satisfied on

preliminary enquiry that the child witness is able to understand

the nature of the oath and give rational answers to the

questions. In this case, the learned Special Judge before

recording the evidence of victims being child witnesses found

them competent to testify on the ground that besides the

importance of oath, they were able to understand the questions 10 204-J-APPEAL-531-18 (1).doc

and give rational answers to those questions. The victim 'A' is

(PW-2). She has identified the appellant in the Court. She has

stated that appellant resides in her neighbourhood. She calls

him 'Kamlesh Dada'. About the incident, she has stated that she

had gone for watching TV at the house of the appellant. When

she was watching the Cartoon Channel on TV, the appellant

removed his pant and asked her to touch his penis. After this

incident, the appellant threatened her that he would hang her

to a fan if the incident is disclosed by her to anybody. The

appellant offered chocolate to her by way of inducement.

10. On the date of recording of evidence, the victim

was hardly 6 years old. In the year 2016, she used to ride on

tricycle while playing with her companions. The Cartoon

Channel is favourite show of the children on TV. On the date

of incident, as can be seen from her evidence, she was of a

tender age without maturity. The victim 'A' treated the

appellant as maternal uncle. They knew each other inasmuch as

they were residing in the same locality. The conduct of the

victim 'A' in narrating the said incident to her mother 11 204-J-APPEAL-531-18 (1).doc

immediately after going back to home is natural. She has stated

that she narrated the incident to her mother as well as to her

grand-mother. Her evidence would show that at the time of

incident, she was studying in KG-II at Ankur Convent.

Attempt has been made during her cross-examination to point

out certain omissions from her statement. It is seen that her

statement was recorded under Section 164 of the Code of

Criminal Procedure before the Judicial Magistrate, First Class.

On perusal of her evidence, we have noticed that the learned

Judge has recorded a particular statement as omission from her

earlier statement. However, perusal of her statement recorded

under Section 164 of the Code of Criminal Procedure at

Exh.9A clearly indicates that it was not omission. This omission

seems to have been recorded without verifying the said fact

from her previous statement. The evidence of this victim child

is consistent. Minute perusal of her evidence clearly indicate

that she has narrated before the Court the first-hand account of

the incident. It is pertinent to mention that even the witness of

matured age is not expected to make parrot like statement

before the Court. He is bound to miss on certain aspects. The 12 204-J-APPEAL-531-18 (1).doc

child witness is naturally bound to get bogged down by the

Court atmosphere. A child witness not used to the Court

atmosphere would feel uncomfortable and disturbed. In our

view, therefore, while appreciating the evidence of child

witness, some latitude is required to be given within permitted

limit. It is pertinent to note that the latitude can be shown

subject to the rider and not merely for asking the rider is that

the Court must be satisfied on analysis of the evidence of child

witness that the witness is the natural witness and there is no

material on record to indicate that the narration of the incident

is due to tutoring and by use of imagination. In our view, this

observation would be applicable to remaining two victims as

well. On minute scrutiny of the evidence of victim 'A', we are

satisfied that her evidence is consistent. No major omissions

and infirmities have been established to doubt her credibility.

11. PW-1 is the mother of victim 'A'. It has come on

record that her daughter narrated the incident to her on

11/08/2016. Perusal of report at Ext.8 would show that her

sister Trushali Shahare is a doctor. She took the victim 'A' to her 13 204-J-APPEAL-531-18 (1).doc

sister. Her sister examined the victim 'A' and informed that

there was no bodily injury and signs of sexual intercourse with

victim 'A'. She has stated that therefore, she neglected the

incident. However, when she went to the house of the appellant

and brought this fact to the notice of his mother and brother,

they quarrelled with her. After few days, they formed an

impression that the informant was spreading misinformation

about the appellant in the locality. They quarrelled with her.

They beat the mother of the informant. She has deposed that

when this incident and the cause of incident became known to

the people in the locality, the father of the victim 'P' and the

grand-mother of victim 'S' came to her and disclosed that one

year prior, the appellant had sexually assaulted the victims 'P'

and 'S'. It is apparent on perusal of the evidence of PW-1

informant that they all gave thought to this and then decided to

lodge the report. The parents of the victims 'P' and 'S' came

forward and supported the informant. In her cross-

examination, attempt has been made to establish the enmity

between the informant and the mother of the appellant on

certain aspect. The money transactions were also brought on 14 204-J-APPEAL-531-18 (1).doc

record. However, despite gruelling and searching cross-

examination, no material has been brought on record to doubt

the credibility of this witness on the main incident. We have no

reason to disbelieve and discard the evidence of the informant

PW-1.

12. The parents of the victim 'P' and 'S' have not

been examined. The statements of the victims 'P' and 'S' were

recorded before the Magistrate under Section 164 of the Code

of Criminal Procedure. The victims 'P' and 'S' were subjected

to sexual intercourse at the hands of the appellant. Their

evidence, therefore, assumes great importance. The spot of

incident was pointed out by the victims 'P' and 'S' to the

Investigating Officer. The victim 'P' is PW-3. At the time of

incident, she was studying in 3rd standard. The victim P has

deposed that the accused resides in the same area at short

distance from her house. They know each other. She calls the

appellant 'Kamlesh Dada'. She has deposed that when she was

playing with other victim 'S' in front of her house, the appellant

called both of them near him. The appellant induced them by

giving chocolate. He took them to toilet of the house, which 15 204-J-APPEAL-531-18 (1).doc

was under construction. While narrating the actual incident,

she has stated that the appellant asked her to remove her nicker.

After removing of her nicker, the appellant penetrated his penis

in her vagina and gave back and fro jerks. She has stated after

seeing this victim 'S' started running away. The boy 'D' who

was playing with the victims on the say of the appellant caught

hold her and brought her into the said house. The victim 'P' has

stated that the appellant committed the similar act with victim

'S'. After this incident, the appellant gave Rs.5/- to them. He

told them to go to shop and purchase chocolate. She has

categorically stated that while giving money, the appellant

threatened to hang them to a fan, if the incident is disclosed to

anyone. She has categorically stated that due to the threat

extended by the appellant, she did not narrate the incident to

anyone about the said till quarrel dated 24/08/2016 between

the mother of the victim 'A' and the mother of the appellant.

The evidence clearly proves that the appellant committed rape

on the victim 'P'.

13. The victim 'P' was medically examined. An

attempt has been made on behalf of appellant to suggest that on 16 204-J-APPEAL-531-18 (1).doc

the point of penetration, the statement of the victim was silent.

There was omission to this effect. This is the crux of the

incident. In order to satisfy ourselves, we have perused her

statement at Exh.11 recorded by the JMFC, Bhandara under

Section 164 of the Code of Criminal Procedure. Perusal of this

statement would show that the victim 'P' had stated about

penetration before the J.M.F.C. The only difference which

could be seen is that it was stated in language understood by

her. Instead of directly referring that part as a penis, she has

stated that it was a part of urination of the appellant and to her

private part, she has referred as her part of urination. Save and

except this difference, her statement is consistent with her

evidence before Court. On minute perusal of her cross-

examination, it is seen that this witness could not be deviated

from the main incident. In searching cross-examination, child

witness, in the absence of being subjected to such kind of

gruesome act, would not be able to stand the scrutiny of the

cross-examination. We do not see any reason to disbelieve and

discard her evidence. No major and material admission or

statement has been elicited in the cross-examination to 17 204-J-APPEAL-531-18 (1).doc

disbelieve and discard her evidence about the incident.

14. The third victim is 'S'. She is examined as PW-4.

On the date of recording of her evidence before the Court, she

was 9 years old. She deposed before the Court on 23/10/2017.

The incident occurred in the year 2016. She has stated that the

victims 'A' and 'P' are her friends. She calls the appellant as

'Kamlesh Dada'. The appellant resides near her house. She has

stated that on the date of incident, she was studying in 3 rd

standard. She has deposed that her friend victim 'P' and she

were playing on the ground. At that time, 'Kamlesh Dada'

called them in bathroom of Nyaymurti. She has stated that the

appellant asked the victim 'P' to remove her pant. The

appellant penetrated his penis in the vagina of victim 'P' and

gave back and fro jerks. She, therefore, ran away. The appellant

told 'D' their male friend to apprehend her. 'D' caught her and

brought to the bathroom. The appellant asked her to remove

her pant. The appellant made penetration of his penis in her

vagina and gave back and fro jerks. The accused offered them

Rs.5/- for buying chocolates. She has deposed that accused 18 204-J-APPEAL-531-18 (1).doc

threatened that he would hang them upside down to a fan, if

the incident is disclosed to anyone. The important common

thread in the evidence of victim 'P' and victim 'S' is that they

consistently deposed about the act with both of them. Her

conduct to ran away from the spot after seeing this dastard act

on the part of the appellant is consistent. The evidence of

victim 'P' and victim 'S' is consistent with each other. They

were sexually ravished by the appellant at the same place and at

the same time. The victim 'S' was older than the victim 'P'. She

was about 7 - 8 years of age at the time of incident. It is

pertinent to note that the matured witnesses are not able to

understand the tricky questions asked in the cross-examination

by the seasoned cross-examiner. The cross-examination of this

witness would show that she was cross-examined at length on

almost all aspects. However, despite the cross-examination by

the seasoned lawyer, the core of her evidence could not be

shattered. On minute scrutiny of the evidence of this witness,

we are not prepared to accept the submissions of the appellant

that no credence can be given to the evidence of this witness.

19 204-J-APPEAL-531-18 (1).doc

15. It is pertinent to note that such incident with the

girl child is treated as stigma in society. The parents as far as

possible make an attempt to sweep such incident under carpet

to save their pride and prestige in the society as well as future of

the victim girl. In this case, the parents of the victims displayed

great courage and came forward. The stigma of this incident

would remain attached to the lives of the victims and their

family throughout. Perusal of the evidence and particularly

cross-examination of (PW-1), victim 'A' (PW-2), victim 'P'

(PW-3) and victim 'S' (PW-4) would show that without

occurrence of serious incident, the parents of the victims would

not put pride, prestige and the life of the victims at stake to

satisfy their ego or to take revenge against the family of the

appellant. It is seen that no material has been elicited in the

cross-examination of these witnesses to believe that their

families without occurrence of serious incident would take such

drastic step which would ultimately become known to the

public at large. There is no material on record to indicate that

the members of the victim's family had a reason to harbour the

grudge against the appellant. Even if they had grudge against 20 204-J-APPEAL-531-18 (1).doc

the appellant and his family members, they would not have

involved the victim girls to take revenge. There would have

been other means available at the disposal to teach lesson to the

appellant and his family members. The difference of false

implication, therefore, appears highly improbable. We,

therefore, conclude that evidence of three victims and the

evidence of PW-1 is consistent, cogent and reliable. We do not

see any reason to disbelieve and discard the evidence. On the

basis of the said evidence, the charge of rape and of offence

under POCSO Act stands proved.

16. The evidence of the victim 'P' and 'S' has been

corroborated by the medical evidence. Dr.Rekha Ramteke

(PW-6) has testified about the examination of victims 'P' and

'S'. She has deposed that she has examined victims 'P' and 'S'.

She has deposed that on examination of victim 'P', she noticed

injury to the hymen of the victim 'P'. The edges of the hymen

were irregular. The injury according to her was suggestive of the

hymenal rupture. As far as victim 'S' is concerned, she has

deposed that she found hymen injury to victim 'S'. The edges 21 204-J-APPEAL-531-18 (1).doc

of the hymen were found torn. The medical examination report

of victim 'S' is at Exh.20 and the medical examination report of

victim 'P' is at Exh.21. Dr. Rekha Ramteke (PW-6) has

categorically deposed that the overall findings of the

examination were consistent with the sexual intercourse. Dr.

Rekha Ramteke (PW-6) was cross-examined. She has admitted

that the rupture of hymen is possible due to accidental fall on

sharp and pointed object. Coupled with the oral testimony of

victim girls, in our view, the possibility of causing such injury to

them due to fall is absolutely ruled out. The attempt made by

the cross-examiner in the cross-examination of the victims to

seek support to this defence has been miserably failed. No

material has been brought on record in the cross-examination

that the victim girls had a fall on sharp and pointed object and

therefore, there were tear to their hymen.

17. The spot panchnama is at Exh.24. Yugantar

Kamble (PW-7) has deposed that the spot panchnama was

drawn in his presence. Yugantar Kamble (PW-7) is the Gram

Sevak. The first spot of incident is the house of the appellant

himself. The second spot where the victims 'P' and 'S' were 22 204-J-APPEAL-531-18 (1).doc

sexually abused is in the house of Nayaymurti. PW-7 has

specifically stated that the victim girls accompanied them and

they pointed out respective spots. The description of the spot

has been noted down in the panchnama. This evidence

corroborates the case of the prosecution. The medical samples

of the victim girls at Exh.26 and 27 were seized in presence of

Gopichand Wanjari (PW-8). It is undisputed that all the three

victim girls were below the age of 9 years when they gave

evidence in the Court. Their birth certificates are at Exhs.33 to

35. Their statements recorded under Section 164 of the Code

of Criminal Procedure by the learned Magistrate are at Exh.37

to 39. This fact would show that the Investigating Officer

considering the serious nature of the crime took all possible care

and collected the relevant evidence. It is further pertinent to

note that the defence of the accused is not at all acceptable

inasmuch as there is no iota of evidence to suggest that the

parents of the victim girls would falsely implicate him in such a

case by putting the life of victims at stake. It is pertinent to

mention that on trivial dispute, no one could stake his pride

and prestige and the future life of the minor girls at risk.

23 204-J-APPEAL-531-18 (1).doc

18. In such cases, delay in lodging the First

Information Report cannot be always held to be fatal to the case

of the prosecution. On the point of delay, we may usefully refer

to the decision in the case of State of Himachal Pradesh Vrs.

Gian Chand1. In this case, the Hon'ble Supreme Court of India

has held that the delay in lodging the First Information Report

cannot be used as ritualistic formula for doubting the

prosecution case and discarding it. Delay has the effect of

putting the Court on its guard to search if any explanation has

been offered and if offered, whether or not it is satisfactory. If

the prosecution fails to satisfactorily explain the delay and there

is possibility of embezzlement in the prosecution version on

account of such delay, the delay would be fatal to the

prosecution case. However, if the delay is explained to the

satisfaction of the Court, it cannot by itself be a ground for

disbelieving and discarding the entire prosecution case. It is

held that delay in filing the First Information Report in rape

cases is normal especially when the perpetrator is a relative. In

1 (2001) 6 SCC 71 24 204-J-APPEAL-531-18 (1).doc

this case, the mother of the victim 'A' has narrated in the report

at Exh.8 the reason for delay in lodging the report. Perusal of

her evidence and report would show that when she came to

know about the incident of 11/08/2016 through her daughter,

she took her daughter to her Doctor sister and got her

examined. Once she found that there was no injury on the

person of victim 'A' and signs of sexual intercourse, she decided

to neglect it. However, when the mother and brother of the

appellant blamed her for discussing the subject in the locality

and quarrelled with her, she went to the police and lodged

report. It is pertinent to mention that the parents of victims 'P'

and 'S' had kept mum for one year though the victims 'P' and'

'S were subjected to sexual intercourse by the accused. They

also came forward when they came to know the incident

occurred with the daughter of the informant victim 'A'. It is

pertinent to note that in such a crime to save the prestige of the

family and to save the future of girl child, the parents are bit

hesitant to come forward. If there is delay in such cases, in our

opinion, there is nothing unnatural about it. Ultimately, in this

case, the medical evidence proved beyond doubt that the 25 204-J-APPEAL-531-18 (1).doc

victims 'P' and 'S' who at the relevant time were below 6 years

of age were sexually abused by the appellant. In our view,

therefore, the delay in this case would not stand in the way of

prosecution. The explanation placed on record is to the

satisfaction of the Court. The case would be covered by the law

laid down in the case of State of Himachal Pradesh Vrs. Gian

Chand (supra).

19. In our view, the prosecution by leading cogent

and reliable evidence has proved the guilt of the accused. The

learned Judge awarded the sentence of imprisonment for life.

The learned Advocate for the appellant submitted that the

punishment provided for the offence was Rigorous

Imprisonment which shall not be less than 10 years but which

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

fine. The punishment was increased w.e.f. 21/04/2018.

However, since this crime was committed in the year 2016, the

punishment provided at the relevant time would be applicable.

The learned Advocate submitted that the learned Trial Judge

erred in the matter of awarding imprisonment for life. The 26 204-J-APPEAL-531-18 (1).doc

learned Advocate submitted that the learned Judge has not

recorded the reasons in support of his conclusion to award the

imprisonment for life. The learned Advocate submitted that in

this case, the appellant is of young age. There is no criminal

antecedent. He has been in custody since 26/08/2016. At the

time of commission of crime under the POSCO Act, the

punishment prescribed was Rigorous Imprisonment for a term

which shall not be less than 10 years but which may extend to

imprisonment for life and shall also be liable to fine. The

learned Advocate submitted that the appellant has old aged

parents. He has one unmarried sister by name Kalyani. The

learned Advocate submitted that the abovestated mitigating

circumstances ought to have been taken into consideration

while awarding sentence.

20. We have perused the relevant part of the

Judgment. The learned Trial Judge has taken into consideration

the serious nature of the offence and the age of the victim girls

while awarding the sentence. It is pertinent to note that while

awarding the punishment, Court has to take into consideration 27 204-J-APPEAL-531-18 (1).doc

not only the crime but also the criminal. The mitigating

circumstances placed on record requires due consideration

while awarding punishment. In our view, in this case, if the

crime and criminal are balanced in the backdrop of the crime

and the mitigating circumstances qua the criminal, in our view,

the sentence of imprisonment for life would be

disproportionate. In our view, considering the above facts, the

sentence of Rigorous Imprisonment for 10 years would meet

the ends of justice. Therefore, to the extent of sentence, the

Judgment and order would require modification. As far as the

conviction is concerned, the same is required to be upheld.

Hence, the following order :-

ORDER

i] The criminal appeal is partly allowed.

ii] The Judgment and order of conviction

dated 21/07/2018 passed by learned Special Judge,

Bhandara in Special Criminal (Child) Case

No.33/2016 is hereby confirmed. However, there

shall be modification in the quantum of sentence.

28 204-J-APPEAL-531-18 (1).doc

Instead of life imprisonment, the appellant is directed

to suffer rigorous imprisonment for ten years.

iii] The criminal appeal is partly allowed and

disposed of.

            (G. A. SANAP, J.)                       (V. M. DESHPANDE, J.)



Choulwar   VITHAL      Digitally signed by
                       VITHAL MAROTRAO
           MAROTRAO    CHOULWAR
                       Date: 2022.02.26
           CHOULWAR    13:08:05 +0530