Manoj Harihar Shukla vs The State Of Maharashtra
2023 Latest Caselaw 10202 Bom

2023:BHC-AUG:21581
                                                        1

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                         CRIMINAL APPEAL NO.44 OF 2021

                 Manoj s/o Harihar Shukla
                 Age : 35 years, Occ. Service,
                 At present R/o in Room of Bharat Namdeo Pathare,
                 Tq. Parner, Dist. Ahmednagar.
                 Permanent r/o Bharsal, Tq. Sahejawa,
                 Dist. Gorakhpur (U.P.)                                           ...Appellant

                         VERSUS

                 1.      The State of Maharashtra
                         Through P.P. High Court
                         (copy served on P.P. Office
                         High Court Bench at Aurangabad).

                 2.      X.Y.Z.                                                 ...Respondents

                                                  ...
                 Ms. Surekha G. Chincholkar (Appointed through Legal Aid), Advocate
                 for Appellant.
                 Ms. V.N. Patil Jadhav, APP for the State.
                 Mr. Pratap Mandlik, Advocate for Respondent No.2 (Appointed
                 through Legal Aid).
                                                     ...

                                                       CORAM : S.G. MEHARE, J.

RESERVED ON : JULY 25, 2023 PRONOUNCED ON : OCTOBER 04, 2023

JUDGMENT:-

1. Being dissatisfied with the Judgment and Order of the

learned Special Judge (POCSO), Ahmednagar passed in Special

(POCSO) Case No.199 of 2017 dated 18.12.2019, the accused has

preferred this appeal under Section 374 of the Criminal Procedure

Code.

2. The parties will be referred to their original position.

3. The prosecution case in brief was that the victim was

residing with her family in a chawl. The accused was also residing in

one of the rooms in the same chawl. The victim was six and a half

years old at the time of the incident. On 11.05.2017 at about 10.30

pm, the victim and her family had their dinner. Her mother, who was

the first informant, was cleaning the utensils in the house. The victim

told her that she was getting hot and wanted to sit out in the air. After

finishing her work, she gave a call to the victim, but she did not

respond. Therefore, she searched for the victim. However, she did not

find her. When she was returning home, she noticed that the electric

light in the room of the accused was on. Therefore, she peeped inside

the room from the window. She found the victim in the said room.

Therefore, she went inside the room and brought her out. She also

noticed that her halfpant was blood-stained. She checked her and

found bleeding on her anus. That time, the victim told her by weeping

that the accused took her inside the room, locked the door from

inside, switched off the light, threatened her to beat, pressed her

mouth and inserted his penis into her anus. The first informant called

her husband from his job. He came there and confirmed the facts from

the victim. They slept over the night and lodged the report the next

day, i.e., on 12.05.2017. On the report of the first informant, the Police

Station Raver, District Ahmednagar, had registered the crime bearing

No.88/2017 for the offence punishable under Section 376(2)(i), 377

and 342 of the Indian Penal Code and under Section 6 of the

Protection of Children From Sexual Offences Act (for short 'POCSO

Act').

4. The charges were framed against the accused. He denied

the charges and claimed the trial. The prosecution examined five

witnesses. The accused had a defence of false implication and total

denial. His statements under Section 313 of the Criminal Procedure

Code were recorded. He did not enter the witness box nor examine

any witness in support of his defence.

5. Heard learned counsel for the accused and the learned

APP for the State at length.

6. Learned counsel for the appellant would argue that the

shawl recovered from the room of the accused was not blood-stained,

nor semen was found on it. The chemical analysis report does not

support the prosecution of this fact. The first informant, in fact, was

not the eyewitness. Considering the spot of the incident, the alleged

crime was impossible in a chawl. Many tenants were residing there,

but the incident was not immediately disclosed to anybody. The

evidence of the victim and the first informant is contradictory. The

victim did not specifically deposed that the accused inserted his penis

into her anus. The F.I.R. was delayed. The medical evidence was

insufficient to believe that there was unnatural intercourse. The

statement of the victim under Section 161 of the Criminal Procedure

Code was not on record. Only her statement under Section 164 of the

Criminal Procedure Code was filed. No semen was detected on the

vaginal swab. There is no direct evidence of penetration of his private

organ or any object. The neighbours were not examined. In his

statement under Section 313 of the Criminal Procedure Code, the

accused answered question no.13 that the light of the room always

remained on. All were sleeping in their rooms. The question nos.14,

15, and 16 have been specifically denied. The aggravated sexual

assault has not been proven. The appellant is 35 years old. He has a

family and small children. The appeal may be allowed since nothing

has been proven against the accused. In case the judgment is not

reversed, considering the facts and circumstances of the case, a lenient

view may be taken, and the sentence may be reduced.

7. Per contra, learned APP opposing the arguments

advanced by the learned counsel for the appellant submitted that the

mother was the witness who saw the victim in the room. She had

noticed the blood on her pants, and she had confirmed the bleeding

from her anus. Her evidence is very specific that when she crossed the

room for the first time, the electric light of the room of the accused

was switched off. But the light was turned on when she was returning

home after giving calls to the victim. She got the suspicion; hence, she

peeped into the room. Her evidence is natural. Considering the age of

the victim, direct evidence of unnatural intercourse can not be

expected. She led the evidence in her own language. Her evidence

indicates that the accused had unnatural intercourse with her forcibly.

The chemical analysis report supports the prosecution case. The blood

was found in the nails of the accused. The victim and her mother were

consistent and proved the incident. The impugned judgment and order

of conviction is legally correct and proper. Hence, the appeal deserves

to be dismissed.

8. The following points arises for the determination of this

Court, and the findings thereon are recorded for the reasons to follow:

Serial No. Points What order 1 Does the prosecution prove that on 11.05.2017 Proved at about 22.30 hours in a room, the accused residing as a co-tenant in a chawl had committed rape on a victim below 12 years?

2 Does the prosecution prove that on the above Proved date, time and place, the accused committed forceful carnal intercourse with the victim and committed the offence punishable under Section 377 and 376(a)(b) of the Indian Penal Code?

3 Does the prosecution prove that on the above date, time and place, the accused wrongfully confined the victim in a room where he was Proved residing, which was an offence punishable under Section 342 of the Indian Penal Code?

4 Does the prosecution prove that on the above Proved date, time and place, the accused committed aggravated sexual assault on a child below 12 years, which is an offence under Section 5(m) and punishable under Section 6 of the Protection of Children From Sexual Offences Act, 2012?

As to Points Nos.1, 2 and 4 together :

9. All these points are intermingled; hence, taken up for discussion

together.

10. The prosecution has examined five witnesses, all as

follows :

  P.W.            Name of Witness             Type of witness          Documents
  Nos.                                                                 Proved and
                                                                       marked as
                                                                        Exh. Nos.


      3   Goraksha Laxman Dere          Panch on the seizure of 20 & 21
                                        clothes of the victim
                                        and accused

      5   Rajendra Dashrath Pawar            The Investigating               24
                                                  Officer

11. The prosecution has a case in which the victim was 6 and

½ (six and half) years old at the time of the incident. The victim and

her family are from Nepal. They admitted the victim to a school at the

place of their residence. The prosecution produced the school bonafide

certificate Exhibit-27, which was exhibited on the evidence of PW-5,

the Investigating Officer. As per the bona fide certificate, the date of

birth was 13.06.2010. The incident happened on 11.05.2017. So, she

was about seven years old at the time of the incident. The accused did

not seriously deny that the victim was not a child below 12 years at

the time of the incident, and he also did not raise the objection

exhibiting the bonafide certificate Exhibit-27.

12. PW-2, the mother of the victim, testified that on the date

of the incident, after dinner, the victim went outside the room, telling

her that she was getting hot; hence, she wanted to sit in the courtyard.

She was cleaning the pots and doing other housework. After finishing

her work, she called the victim but did not respond. Hence, she went

to search her in the chawl where she and the accused were residing.

However, the victim did not respond to her. Hence, she started to

return home. That time, she had noticed that when she crossed the

room of the accused, the electric light of his room was switched off.

But when she was returning back, it was switched on. Hence, she

peeped from the window in the room. She found that the victim was

weeping and the accused was assaulting her by gesture of eyes and

putting his finger on her mouth. She asked the accused to open the

door. She took her daughter out of his room. She noticed that the

mouth of the victim was swollen. When she checked the clothes of the

victim, she found bleeding from her anus. She immediately called her

husband. The victim told her that the accused led her, held her mouth

and committed something with her anus. The accused fled away from

the spot. On the next day morning, she took the victim to the hospital.

The hospital personnel told her to lodge the report, and then they will

treat the victim. Thereafter, she lodged the report Exhibit 16.

13. The victim testified similarly to her mother. She testified

that she resides in a chawl. On the date of the incident, she told her

mother and went away. She played for some time outside the house.

One uncle offered her a chocolate. He held her hand when she refused

and took her to his room. It was an adjoining room to her room. He

removed her clothes and committed bad things (xank xank dh;k). After

some time, her mother started calling her. Thereafter, the said man

switched on the light of the room. He opened the door. Due to the acts

done to her by the said person, there was bleeding from her rectum.

Thereafter, her mother took her away from that room. She again

supported her mother when she narrated the incident to her. She was

taken to the hospital. She was admitted there for three days. She

identified the accused in the Court.

14. The accused cross-examined both witnesses. Cross-

examination of PW-2, the mother of the victim, was on the line that

many people were residing in the chawl. The landlord also resides at a

short distance from the chawl. The mother of the victim went to

somebody's place to watch the T.V. at the alleged time of the incident.

On this material, it has been tried to point out that PW-2 is not the

eyewitness to the incident, and it was not possible for her to peep into

the room. It has also been vehemently argued that considering the

number of families residing in the chawl, the neighbours were to be

examined to corroborate the testimony of the mother and the victim.

15. The cross-examination of PW-1, who has proved the spot

panchnama Exhibit-11 is on the line that there were no windows

through which the mother of the victim could peep. This witness has

given an admission that there was a small gap between the wall and

the tin shade for ventilation. He also admitted that the tenants

occupied around nine rooms at that time.

16. On the next day of the incident, the spot panchnama was

prepared. The specific description of the room has been mentioned,

and the sketch was also drawn. Reading the contents of the spot

panchnama as regards the description of the room with the sketch,

there were two windows. One was on the front and the other on the

back side of the room. No specific cross-examination was done about

the non-existence of the windows in the room. From the fishy cross-

examination, it has been pointed out that since there were no

windows to the room, peeping inside the room was impossible. PW-1

categorically proved the spot panchnama, but in the absence of any

admission affecting the spot panchnama, the indirect defence that PW-

2 could not peep into the room fails.

17. Though it has been suggested to PW-2 that at the time of

the incident, it was not specific at whose place or house she went to

watch the T.V. at the relevant time. Hence, such a defence was

unfounded and mere chance.

18. The cross-examination of the victim was that the room

where she was taken was at some distance. She denied the suggestion.

The accused nowhere denied that he was not residing in the room

where the alleged incident happened. The police also recovered one

shawl stained with blood from the room where the incident happened.

Hence, it cannot be believed that no incident happened in the room

where the accused was residing.

19. The question was also ask, that the victim that before

recording her statement before the Magistrate, the police did not ask

any questions, to which she answered' that police did not record her

statement. PW-5, the Investigating Officer, has denied the suggestion

that she did not give a statement before him.

20. On the basis of the above admission of the victim, it has

been vehemently argued that in the absence of a statement of the

victim under Section 161, there shall be no direct statement under

Section 164 of the Criminal Procedure Code. However, the record

reveals that her statement was recorded by the police in question-and-

answer form. Therefore, there is no substance in the arguments of the

learned counsel for the accused that in the absence of her statement

under Section 161 of the Criminal Procedure Code, her evidence is no

evidence in the eye of the law.

21. Though it has been argued that tutoring was possible,

nothing specific was suggested to PW-2 or PW-3 that the victim was

tutored. The child witnesses are vulnerable to their parents, but in this

case, PW-2, the mother of the victim, brought her out of the room

where the incident happened. Reading the evidence of PW-2, the

mother of the victim, she did not state that she witnessed the accused

having unnatural intercourse. When she went into his room, she saw

that the victim was sitting in the room and the accused was

threatening her. When she entered the room, she noticed that her

clothes were stained with blood and there was bleeding from her

anus, and then the victim narrated the incident. So, she cannot be an

eyewitness to the incident. But she was the first person who noticed

the blood on the clothes and anus of the victim. The victim was only 6

and ½ (six and a half) years old at the time of the incident. So,

naturally, she disclosed the entire facts to her mother. Therefore, the

admission of the victim that her mother told her that she should be

deposed in the Court does not damage the factum of the incident.

22. The victim admitted that she did not know who

committed the 'gandha act' with her. She did not see the man at her

home or in the locality. However, she had categorically identified the

accused before the Court. She did not mistake identifying the accused

before the Court. It was not suggested to her that before entering the

Court, somebody showed her the accused. Her admission was natural.

She may not have an opportunity to see him the chawl. Her evidence

was specific: one unlce came, offered her a chocolate and took her in

his room, which speaks much that she did not see him before the

incident. Therefore, the admission of the victim does not make her

testimony doubtful. Considering the nature of the incident that

happened with a girl, she had sufficient time to look at the accused

and that his face must have been printed on her brain. Hence, the

arguments that she had never seen him before, her identification in

the Court was unnatural, and the possibility of showing him before

cannot be ruled out has no force. Nothing suggests that she was

tutored before recording her statement by the Magistrate.

23. The clothes of the victim and the accused were seized

before PW-4. Her mother produced the clothes of the victim before

PW-3, and the clothes on the person of the accused were seized vide

panchnama Exhibit-20. The clothes of the accused were recovered on

the same day by a separate recovery panchnama Exhibit-21 in the

police station. The top of the victim was stained with whitish and light

reddish spots. The half-pants of the victim were also stained with

reddish colour spots, and on the inner side, there were white spots.

The jeans pant of the accused had no stains. However, the T-shirt of

the accused seized bore blood spots in various places. In the same way,

the banyan was also blood-stained. His knicker was also stained with

reddish colour. The shawl recovered from his room was also blood-

stained.

24. PW-5 deposed that the victim was sent for medical

examination at a Rural Hospital. The doctor handed over the samples.

He sent it to the Chemical Analyzer. The victim was sent to the District

Hospital. She was admitted there the next day. The accused was also

sent for a medical examination. The blood samples, nail clippings and

pubic hair collected by the doctor were also sent to the Chemical

Analyzer. He also sent the seized clothes of the victim and accused and

also the shawl recovered from the spot of the incident to the Forensic

Science Laboratory.

25. The chemical analysis report Exhibit-29 reveals that no

semen was detected on the pubic hair of the accused. The nail

clippings of the accused were stained with blood. The blood was

human, and its group was 'A.B.'. Similarly, the chemical analysis report

Exhibit-30 reveals that the blood group of the victim was 'B' tested

from the blood sample sent to it. However, there was neither blood

nor semen on the vaginal and anal swab of the victim. There was no

blood on the shawl. The halfpant of the victim had a few blood stains

ranging from about 0.1 cm to 2 cm in diameter on the middle portion.

It was of blood group 'B'. Similarly, on the top of the victim, a few

blood stains were detected, ranging from about 0.1 cm to 5 cm in

diameter on the lower portion. It was stained with blood group 'B'.

The semen of the blood group detected on the half pants of the victim

was 'A.B.'. Full track pant and half T-shirt of the accused was stained

with blood, and it was of blood group 'B'. The underwear of the

accused was stained with blood group 'B'. However, no semen was

detected on the shawl, top of the victim, full track pants, half T-shirt,

sando banyan and underwear of the accused.

26. On the basis of the above evidence, the prosecution

would submit that the blood group of the accused was found on the

clothes. The semen on the blood found on the halfpant of the victim

was of the group 'A.B.', which was of the accused. However, the clothes

of the victim were stained with blood group 'B', which was of the

victim. This circumstantial evidence corroborated the oral testimony of

the victim and her mother. There was no evidence in rebuttal;

therefore, the prosecution may be believed.

27. The learned trial Court has recorded specific findings that

the accused admitted the medical report of the victim and his own.

Therefore, those may also be admitted in evidence. The medical

examination report Exhibit-32 of the victim says that there was

redness around the anus. An opinion has been expressed that the

evidence of sexual intercourse/assault cannot be ruled out. However,

the final opinion was kept reserved until the Forensic Science

Laboratory report was received. The abrasions were also noticed on

her cheek. The medical examination report of the accused reveals that

he was capable of doing sexual intercourse. The evidence that the

victim was admitted to the hospital for three days has not been

denied.

28. Evaluating the oral, corroborative and trace evidence

collected by the prosecution that inspires confidence in the victim and

her mother. The mother was the first witness to the incident. On the

spot of the incident, there were no other objects which may cause

bleeding from her anus. The accused was present there, and he also

never specifically denied that he was not residing in the room where

the incident happened. Therefore, the possibility of bleeding from her

anus due to an object other than his penis has been ruled out.

29. It has been tried to argue that the victim did not

specifically depose about the insertion. The evidence of the victim in

such cases has to be recorded verbatim. Some terms used in society

indicate the actual Act and the intention of the maker of such acts.

Herein the case, the victim has deposed that the accused did dirty acts

(xank xank) with her backside. The words used by her clearly indicates

that the accused did sexual assault with her and penetrated his penis

in her anus. Besides her oral testimony with the particular words for

unnatural sexual assault, her mother had noticed the bleeding from

her anus, and her clothes were blood stained. The chemical analysis

report corroborates her mother. The medical evidence also supports

the mother that her mouth was swollen. The victim identified the

accused before the Court. Nothing has been procured from the cross-

examination of the witnesses to disbelieve them.

30. The prosecution witnesses are consistent on the facts of the

case, and they proved that the accused, on the date of the incident,

raped the victim and also committed aggravated penetrative sexual

assault. The prosecution witnesses are believed. Since the prosecution

has proved the charges against the accused beyond reasonable doubt,

the presumption under Section 29 of the POCSO Act would attract. It

provides for the presumption that the accused had committed the

offence under the POCSO Act. Hence, Points Nos.1, 2 and 4 are

answered as proved.

As to point no. 3 :

31. The evidence of the victim that the accused took her

forcibly to his room, pressed her mouth and opened the door of the

room and the evidence of her mother that when she saw the victim in

the room, she was sitting there and the accused was threatening by

the gesture of his eyes, and the electric light of his room was firstly

switched off and then switched on, is sufficient that, he had

wrongfully confined the victim. There was nothing to disbelieve the

prosecution witnesses. Hence, the point no. 3 is answered as proved.

As to point no. 5 :

32. In this case, the accused has been held guilty for the

offences punishable under Sections 376(2)(i), 377 and 342 and

Section 5(m) and punishable under Section 6 of the POCSO Act.

Section 42 of the POCSO Act provides for the alternate punishment. It

has been provided that where an act or omission constitutes an

offence punishable under this Act and also under the Indian Penal

Code, which includes Sections 375 and 376 of the Indian Penal Code,

the offender found guilty of such offence shall be liable to punishment

under this Act or under the Indian Penal Code as provides for

punishment which is greater in degree.

33. The penetrative sexual assault has been defined in

Section 3 of the POCSO Act. The penetration of the penis to any

extent into the vagina, mouth, urethra or anus of a child is a

penetrative sexual assault. Similarly, the term 'rape' under Section 375

of the Indian Penal Code has also been redefined in 2013, and a man

is said to commit rape if he penetrates his penis to any extent into the

vagina, mouth, urethra or anus of a woman. The definition of

penetrative sexual assault under the POCSO Act and rape under the

Indian Penal Code is mostly similar.

34. Section 376 of the Indian Penal Code has classified the

punishments for the offence with a woman under different situations.

Herein the case, it has been alleged against the accused that he

committed rape with a woman below 16 years. It was an offence

punishable under Section 376 (i). In this case, the incident happened

in the year 2017. Therefore, the charges were framed against the

accused for the offence punishable under Section 376 (2) (i) of the

Indian Penal Code. However, this clause (i) from Section 376 of the

Indian Penal Code has been omitted by Act 22 of 2018 Section 4

w.r.e.f. 21.04.2018. Since the offence was committed before the

omission of clause (i), the accused was correctly charged. The

punishment for an offence under Section 376 (2)(i) was rigorous

imprisonment for a term which shall not be less than ten years but

which may extend to imprisonment for life, which shall be

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

shall also be liable to fine.

35. In the case of a child as defined under the POCSO Act

below the age of twelve, the accused is punishable under Section 6 of

the said Act as provided under clause (m) of Section 5. The

punishment for such penetrative sexual assault is rigorous

imprisonment for a term not less than twenty years but may extend to

imprisonment for life, which shall mean imprisonment for the

remainder of the natural life of that person and shall also be liable to

fine or with death. The punishment provided for aggravated sexual

assault is greater in degree than the punishment for an offence under

Section 376 (2)(i) of the Indian Penal Code. So, in view of Section 42,

instead of punishing the accused for an offence punishable under

Section 376 (2)(i), he has been correctly convicted under Section 6 of

the POCSO Act.

36. Apart from the penetrative sexual assault and rape, the

accused was also held guilty of the offence punishable under Section

377 of the Indian Penal Code, which provides an independent

punishment. The punishment for an offence of carnal intercourse is

imprisonment for life or imprisonment of either description for a term

which may extend to ten years and shall also be liable to a fine.

37. The question is, can the accused tried for carnal sexual

assault/rape be separately punished for the offence punishable under

Section 377 of the Indian Penal Code or as per Section 42 of the

POCSO Act.

38. Section 71 of the Indian Penal Code speaks of the limit of

punishment of offences made up of several offences. It has been

provided therein that where anything is an offence falling within two

or more separate definitions of any law in force for the time being by

which offences are defined or punished or where several acts, of

which one or more than one would by itself or themselves constitute

an offence, constitute, when combined, a different offence, the

offender shall not be punished with a more severe punishment than

the Court which tries him could award for anyone of such offence. In

view of the definition of 'rape' under Section 375 of the Indian Penal

Code, the accused may be punished for carnal sexual assault under

Section 376 of the Indian Penal Code as well as under Section 6 of the

POCSO Act. Therefore, the Court is of the view that the offender tried

for an offence punishable under Section 377 with Sections 376 of the

Indian Penal Code and Section 6 of the POSCO Act cannot be

separately punished as such an act is an offence falling in two

definitions i. e. in the Indian Penal Code and POSCO Act. Therefore,

the learned Sessions Judge has correctly not imposed a separate

sentence for the offence punishable under Section 377 of the Indian

Penal Code.

39. The next question is, the learned trial Court held the

accused guilty for the offence punishable under Section 342 of the

Indian Penal Code but did not impose the sentence or punishment

independently. The learned trial Court in clause 1(b) of the operative

part of the impugned judgment and order has observed thus:

"b) In view of sentence imposed for offence under Section 5(m) punishable under Sec.6 of the Protection of Children From Sexual Offences Act, no separate sentence is awarded to the accused for offence under Section 376(2)(i), 377, 342 of Indian Penal Code, though he is found guilty for the same."

40. The offence under Section 342 of the Indian Penal Code

is not defined in the POCSO Act. It has been independently defined in

the Indian Penal Code. Considering the evidence against the accused,

it would be difficult to accept that the offence of wrongful

confinement punishable under Section 342 of the Indian Penal Code is

either an offence made up of parts or any of this part is itself an

offence. It is an independent offence and not part of the offence of

rape or sexual penetrative assault. It is evident that before committing

the crime of rape/penetrative sexual assault, the accused took the

victim forcibly to his room and wrongfully confined her and then

committed rape. Till he committed rape, his acts were the offence of

wrongful confinement. Therefore, this Court is of the view that the

accused was to be convicted independently for the offence punishable

under Section 342. Here, the learned trial Court committed the error

of law in not imposing a sentence upon him as he has been convicted

under Section 6 of the POCSO Act as provided under section 42 of the

said Act.

41. Now, the question is, what is the power of the appellate

Court under Section 386 of the Criminal Procedure Code in an appeal

from conviction?

42. As per clause (b) of Section 386 of the Criminal

Procedure Code, the appellate Court, in an appeal from a conviction,

may reverse the finding and sentence and acquit or discharge the

accused or order him to be re-tried by a Court of competent

jurisdiction subordinate to such Appellate Court or committed for trial,

or alter the finding, maintaining the sentence, or with or without

altering the finding, alter the nature or the extent, or the nature and

extent, of the sentence, but not so as to enhance the same. The

provision is very specific that the appellate Court, in any case, shall

not enhance the sentence unless the appeal for enhancement of the

sentence has been filed.

43. Appreciating the evidence, this is not a fit case to order

the retrial. Section 31 of the Criminal Procedure Code mandates that

the accused, subject to the provisions of Section 71 of the Indian Penal

Code, shall be sentenced for each offence proved against him. Under

Section 386 of the Code of Criminal Procedure, the appellate Court

cannot enhance the sentence imposed upon the accused in an appeal

from conviction. But in a case where the accused has been held guilty

for a particular offence and has not been punished for the same as has

been sentenced for the other offence, in the absence of any provision

like Section 42 of the POSCO Act, is an illegal order. Where the Court

cannot order the accused to be re-tried, in such circumstances, the

Court is of the opinion that if the maximum punishment for the

offence for which the accused has not been punished though held

guilty is lesser than the punishment for the other offences for which he

has been convicted, the Court may impose the punishment exercising

the powers under Section 386 of the Indian Penal Code. Hence, clause

1(b) of the impugned judgment and order needs to be modified.

Hence, the following order :

ORDER

(I) Criminal Appeal stands dismissed.

(II) The accused is convicted for the offence punishable under

Section 376(2)(i), 377 and 342 of the Indian Penal Code and under

Section 5(m), punishable under Section 6 of the Protection of Children

From Sexual Offences Act.

(III) In view of the sentence imposed for the offence punishable

under Section 5(m) punishable under Section 6 of the Protection of

Children From Sexual Offences Act, no separate sentence is awarded

to the accused for the offence punishable under Section 376(2)(i) and

377 of the Indian Penal Code, though he has been held guilty for the

same.

(IV) The accused is sentenced to suffer R.I. for six months and a fine

of Rs.200. In default to pay the fine, he shall further suffer R.I. for one

month.

 (V)          All the sentences shall run concurrently.

 (VI) Rule stands discharged.

(VII) The Secretary, High Court Legal Services Sub-Committee at

Aurangabad, shall pay the legal service charges to the learned counsel

appointed for the appellant and respondent no.2/victim, as per

schedule.

(S.G. MEHARE. J.)

Mujaheed//