Bombay High Court
Sudhir Govindrao Suradkar And Anr vs The State Of Maharashtra on 31 January, 2024
2024:BHC-AUG:2053
{1} CRI APPEAL 642 OF 2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.642 OF 2020
1. Sudhir s/o. Govindrao Suradkar
Age: 38 years, Occ.: Service,
R/o. Mukundwadi, Aurangabad.
2. Santosh s/o. Nathaji Jumbde
Age: 36 years, Occu.: Labour,
R/o. Risod, Tq.Washim. ..Appellants.
Versus
1. The State of Maharashtra
Through Police Inspector,
Police Station, Mukundwadi,
Aurangabad.
2. XYZ
Through next friend ..Respondents
...
Advocate for Appellants : Mr.Ramesh Dhakane h/f. Mr.M.S.Karad
APP for respondent no.1 : Mr.N.D.Batule
Advocate for respondent no.2 : Ms.Sabahat T. Kazi
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 24 JANUARY, 2024
PRONOUNCED ON : 31 JANUARY, 2024
JUDGMENT :
-
1. Aggrieved by the judgment and order of conviction passed
by the learned Special Judge (POCSO Act), Aurangabad dated
{2} CRI APPEAL 642 OF 2020
15-10-2020 in Special Case Child Prot.No.168 of 2017 recording guilt
of the appellants for offence punishable under Sections 376(2)(f)(n)
r/w 34, 506 r/w 34 of the Indian Penal Code (IPC) and under
Sections 4, 6 and 8 of the Protection of Children from Sexual
Offences Act (POCSO Act), original accused has preferred instant
appeal.
BRIEF CASE OF PROSECUTION IN TRIAL COURT
2. Victim, who was studying in 6th standard was noticed crying in
the class on 07-09-2017. Her teacher PW1 Wankhede made enquiry
as to why she is crying. Victim narrated that she was residing with
her maternal uncle as she has no parents. She narrated that accused
persons were forcing her to do all household work and when she
failed to do so, they kept her starving. They used to make her sleep
in washroom. She also narrated that when nobody was in the house,
at that time, accused Sudhir and accused Santosh used to strip her,
move their hands on her body, private parts. They used to threaten
her not to disclose such act to anyone. When she reported to her
aunt accused no.3, she used to threat to driver her out of house. PW1
Waknkhede, teacher on hearing the child, called Head Master of the
School PW5 Tapkire and even he heard what victim narrated and
{3} CRI APPEAL 642 OF 2020
therefore, they had been to Police Station and complaint was lodged
on the strength of which crime was registered and the same was
investigated by PW9 Chavan and on completion of investigation,
accused were chargesheeted and duly made to face trial before the
Special Judge (POCSO Act), who after appreciating the oral and
documentary evidence adduced by the prosecution, convicted
appellants as stated above.
The above judgment is challenged by the appellant on
following grounds :
GROUNDS
(i) Firstly prosecution has failed to establish the charges cogently,
firmly and beyond reasonable doubt.
(ii) Secondly there is no independent corroboration except
testimony of victim.
(iii) Thirdly FIR is on the basis of hearsay information.
(iv) Fourthly prosecution has failed to prove age of the victim.
(v) Fifthly medical evidence does not suggest commission of
offence under the POCSO Act.
(vi) Lastly there is false implication and inspite of no evidence,
conviction is recorded.
{4} CRI APPEAL 642 OF 2020
Submissions on behalf of State and victim :
3. In answer to above grounds, learned APP pointed out that
prosecution has cogently established that victim, who has lost her
parents, was taken care by the accused. However, inspite of victim
being of tender age, she was tortured by making her forced to do all
household work, she had been kept starved for not doing work.
Moreover, accused nos.1 and 2 committed offence punishable under
the provisions of the POCSO Act. That victim has named accused
persons and narrated their deeds. That medical examination proved
their guilt. That independent witnesses like School authorities have
categorically deposed. Therefore, as all ingredients for attracting
offence under the POCSO Act were available on record, it is his
submission that learned trial Court has committed no error in
recording guilt.
4. Learned Advocate for victim pointed out that accused no.1 is
husband of maternal aunt, accused no.2 is maternal uncle and
accused no.3 is maternal aunt of the victim and they are preparators
of crime. That prosecution has examined nine witnesses and their
evidence has remained unshaken. That charges are successfully
proved. That statements of victim recorded under Sections 161 and
{5} CRI APPEAL 642 OF 2020
164 of the Cr.P.C. are consistent. That there is evidence of
independent witnesses like class teacher and school authorities.
Therefore, on finding guilt, conviction has been recorded on due
satisfaction and careful scrutiny of evidence. Thus, it is submitted
that there is no merit in the appeal and prayers are made to dismiss
the same.
PROSECUTION WITNESSES
5. To support its case, prosecution has examined in all nine
witnesses and their status is as under :
PW1 Harshali Wankhede, informant is Assistant Teacher in Municipal
Corporation School. Her evidence is at exh.38.
PW2 is victim. Her evidence is at exh.45.
PW3 Rajendra Shamrao Suryawanshi pancha to spot panchanama.
His evidence is at exh.57.
PW4 Sunita Pundalik Borse is Teacher in Municipal Corporation
School, Mukundwadi. Her evidence is at exh.61.
PW5 Santosh Vasantrao Tapkire is Head Master in Municipal
Corporation School, Mukundwadi. Her evidence is at exh.63.
PW6 Kamlakar Shyamrao Jagtap is Corporator. His evidence is at
exh.64.
PW7 Sampat Nivrutti Idhate is Head Master in Municipal Corporation
{6} CRI APPEAL 642 OF 2020
School, Mukundwadi. His evidence is at exh.70.
PW8 Dr.Shagufta Fatema Mohammad Fakruddin is Medical Officer at
G.M.C.H. Aurangabad. Her evidence is at exh.81.
PW9 Ganesh Chavan (API) is Investigating Officer. His evidence is at
exh.92.
6. While exercising powers under Section 374 of the Code of
Criminal Procedure, this Court is called upon to re-examine, re-
appreciate, re-analysis the entire evidence adduced by prosecution in
the trial Court.
ANALYSIS
7. It is the case of prosecution that victim, a student studying in
primary school, was found crying and upset and therefore, was
enquired by her class teacher PW1 Wankhede, thereupon, acts of
accused appellants came to light. PW1Wankhede further informed
PW4 Borse as well as PW5 Tapikire, Head Master. Police was
approached and PW1 Wankhede set law into motion resulting into
registration of crime. Hence, sum and substance of above referred
witnesses is required to be visited and dealt at threshold.
PW1 Harshali Wankhede dpeosed that she knew victim who
{7} CRI APPEAL 642 OF 2020
had no parents and was put up with her maternal aunt. On being
asked why she was crying, in presence of PW4 Sunita Borse, victim
narrated that she wants to stay in the school and did not want to go
home. On reason for same being asked, victim allegedly told that she
is residing with her maternal aunt, her husband and their children.
She was made to wash clothes, clean utensils and do entire
household work and on failure to do so, she was assaulted and kept
starved and forced to sleep in the toilet. She further stated that when
nobody was in the house, at that time both accused removed her
clothes, touched her private parts and when she attempted to cry and
shout, they threatened to kill her. Witness deposed that victim
informed that they raped her. When she informed her aunt accused
no.3, she threatened to drive her out of the house.
PW4 Sunita Borse, also a teacher serving in same school,
reiterated about victim student, a pupil of PW1 Wankhede, was
crying and she was not ready to go home and on further enquiry, she
told about treatment mated out to her regarding forced to do all
household work and that uncles i.e. accused nos.1 and 2 after
removing her clothes, moved their hands over her private parts and
on shout being raised, threats were issued and this all going since
one year. She deposed that finding the matter serious, information
{8} CRI APPEAL 642 OF 2020
was passed to PW5 Tapkire Head Master and he was also called and
victim again narrated the episodes happened with her at the hands of
accused persons and therefore, they all visited Police Station and
PW1 Wankhede set law into motion.
PW5 Tapkire, Head Master also reiterated whatever was told
by the victim and he is examined at exh.63.
8. After visiting the cross-examination faced by all above three
witnesses, it is noticed that there is virtually no effective cross as
regards to what is heard by them from the mouth of victim. Cross is
found to be merely beating around the bush. Their testimony has not
been touched or shaken on the points of disclosures made by victim
to them.
9. Here star witness is victim herself and she is examined as PW2.
On meticulous re-appreciation of her evidence, it is emerging that
victim was studying in 8th standard and she gave her age as 13 years.
The sum and substance of her evidence is that, after demise of
her parents, she came to reside with her maternal aunt (accused
no.3). She deposed that at relevant time, she was in 5 th standard. In
para 2, she named accused Santosh and Sudhir sleeping over her
{9} CRI APPEAL 642 OF 2020
person in the evening, pressing her breast and touching their male
genitals on her private part after removing their own clothes and also
removing her clothes. She deposed about informing about it to her
maternal aunt accused no.3, but she used to ask her to let them do so
and when she denied liking it, her aunt threatened to kill her. She
stated that accused no.3 made her do all household work, did not
provide her food, confined her in washroom. Witness deposed about
informing regarding it to her class teacher PW1 Wankhede, PW4
Borse and PW5 Head Master and they all taking her to Police Station,
she showing the spot and her statement being recorded. She also
identified her clothes, which were seized.
10. On visiting cross faced by victim, it is emerging that she is
unable to state when her father died. She admitted that after death
of her parents, she came to reside with her maternal aunt. She flatly
denied that even mother resided with her maternal aunt. On being
questioned, she narrated how her mother died. The cross-examiner
asked her whether she knew names of the body parts and she
answered in affirmative. Then she is asked about the
neighbourhood, names of her friends, timings of her uncles going for
work, nature of job, name of the landlord, and she is found to be
{10} CRI APPEAL 642 OF 2020
duly answering the same. She admitted that toilet was outside the
house. She is asked where she slept and who all slept where. In para
5 of the cross, she stated that she understands what is good and what
is bad. Though she admitted that if she did not study, her maternal
aunt beat her, she flatly denied that due to the same she was annoyed
with her aunt. She is unable to give dates of such instances at the
hands of accused nos.1 and 2. She admitted that when she had been
to the hospital, she had not informed the Doctor about the acts of
accused. She is also unable to give date of birth and name of the
hospital. Rest is all denial.
11. Statement of the victim is also got recorded by producing her
before learned JMFC on 20-09-2017. It is apparently recorded within
two weeks of FIR. In Paragraphs 2 and 3, she has narrated the acts
of accused and stated that they did it since she was in 5 th Standard.
She gave the timing at which they did the said acts.
12. On carefully analyzing the above discussed testimony of PW2
victim, it is apparent that she was victimized while she was in 5 th std.
Suggestion in the cross that she was put up with her maternal aunt,
accused no.3 and two uncles accused nos.1 and 2, clearly shows that
{11} CRI APPEAL 642 OF 2020
there is no serious dispute about stay of victim, who had
unfortunately lost her both parents. She has narrated the ordeal
faced by her at the hands of her aunt, who made the child do entire
household work, failed to provide meals to her and made her sleep in
the washroom. She has named both the uncles for violating her body
by disrobing her, sleeping over her, moving their hands over her
private parts and when she raised shouts, they allegedly threatened
her. She very categorically stated that when she reported it to her
maternal aunt, she did not pay heed. Victim has narrated their acts
to her PW1 class teacher, PW4 colleague of her class teacher as well
as PW5 Head Master. They have already deposed whatever was
heard by them and they had promptly taken her to the Police Station
finding the matter serious. As stated above, victim has also reiterated
the acts of accused before learned JMFC before whom she was
produced for recording statement under Section 164 of the Cr.P.C..
Details are narrated in paragraphs 2 and 3.
On re-appreciation and reanalysis, testimony of victim and
above three school authorities, who are teaching staff and Head
Master respectively, there is nothing to doubt their versions.
13. Victim is subjected to medical examination and said Doctor
{12} CRI APPEAL 642 OF 2020
PW8 Dr.Shagufta Fakruddin has also testified at exh.81 regarding
victim being forwarded by Mukundwadi Police Station for medical
examination. This independent witness also deposed about noting
the history. This witness has also given the names of accused while
in the witness box. She claims that she carried out physical
examination, but there were no signs of use of force. She also spoke
about possibility of physical intercourse cannot be ruled out.
This medical expert in cross has admitted that for penetration,
force is required and that it is her opinion that there were no signs of
use of force.
14. On critical analysis of evidence of victim and teachers of her
school, there is no reason to doubt their testimonies. On carefully
going through the cross faced by them, their versions in the witnesses
box are not rendered doubtful. Infact there is no serious and
effective cross of the victim on the point of she been ravished. All
attempts by defence while she was under cross seems to have gone
futile.
15. It is to be noted that after losing parents, the child was in the
custody of accused no.3 her maternal aunt. She has narrated that
{13} CRI APPEAL 642 OF 2020
she was victimized since she was in 5 th standard. There is no
challenge for namesake by defence as regards to her age is
concerned. Informant class teacher deposed about child crying and
denying to go home and therefore, on being further questioned,
victim has narrated the acts of accused. She is very categorical about
both her uncles removing her clothes, sleeping over her person and
pressing her breast. She is very categorical that they use to touch her
male genital to her vagina. Admittedly, victim on being examined by
PW8 on 07-09-2017, there are no any signs of injury.
16. Here vide exh.30 charge was framed for Sections 376(2)(f)
r/w 34, 376(2)(n) r/w 34, 506 r/w 34 of the IPC and under Sections
4, 6 and 8 of the POCSO Act. The operative part shows that learned
trial Judge has recorded guilt and conviction for commission of
offence 376(2)(f)(n) r/w 34, 506 r/w 34 of the IPC, Section 4, 6,
and 8 of the POCSO Act.
Therefore, it is desirable to reproduce the said provisions for
proper comprehension to further find out whether as challenged
before this Court, conviction for said offence is justified or not.
Section 376(2)(f)(n) of the IPC :
{14} CRI APPEAL 642 OF 2020
"376. Punishment for rape: (1) ..........
(2) whoever, -
(a) ...........
(b) ...........
(c) ...........
(d) .........
(e) ..........
(f) being a relative, guardian or teacher of, or a person in a
position of trust or authority towards the woman, commits
rape on such woman
(g) ..........
(h) ..........
(i) ...........
(j) ...........
(k) ..........
(l) ...........
(m) ..........
(n) commits rape repeatedly on the same woman, shall be
punished with rigorous imprisonment for a term which shall
not be less than ten years, but which may extend to
imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life and shall also be liable
to fine."
Section 506 of the IPC :
"506. Punishment for criminal intimidation - Whoever commits, the
offence of criminal intimidation shall be punished with imprisonment
of either description for a term which may extend to two years, or
with fine, or with both;
If threat be to cause death or grievous hurt, etc. - and if the
threat be to cause death or grievous hurt, or to cause the destruction
of any property by fire, or to cause an offence punishable with death
or [imprisonment for life], or with imprisonment for a term which
may extend to seven years, or to impute unchastity to a woman, shall
be punished with imprisonment of either description for a term which
may extent to seven years, or with fine, or with both."
{15} CRI APPEAL 642 OF 2020
Section 4, 6 and 8 of the POCSO Act :
"4. Punishment for penetrative sexual assault - [(1)] Whoever
commits penetrative sexual assault shall be punished with
imprisonment of either description for a term which shall not be less
than [ten years] but which may extend to imprisonment for life, and
shall also be liable to fine.
[(2) Whoever commits penetrative sexual assault on a child
below sixteen years of age shall be punished with imprisonment for a
term which shall not be less than twenty years, but which may extend
to imprisonment for life, which shall mean imprisonment for the
remainder of natural life of that person, and shall also be liable to
fine.
(3) The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses and
rehabilitation of such victim.]"
"6. Punishment for aggravated penetrative sexual assault .-
(1) Whoever commits aggravated penetrative sexual assault shall be
punished with rigorous imprisonment for a term which shall not be
less than twenty years, but which may extend to imprisonment for
life, which shall mean imprisonment for the remainder of natural life
of that person, and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just and
reasonable and paid to the victim to meet the medical expenses and
rehabilitation of such victim.]"
"8. Punishment for sexual assault. - Whoever, commits sexual assault,
shall be punished with imprisonment of either description for a term
which shall not be less than three years but which may extend to five
years, and shall also be liable to fine."
{16} CRI APPEAL 642 OF 2020
17. Keeping above legal requirements in mind, this Court has
meticulously gone through the testimony of victim PW2. Obviously,
medical evidence does not come to the aid of the prosecution, as
apparently there is huge gap between alleged incidences and medical
examination. Therefore, it is the testimony of victim alone that
remains for consideration.
18. This Court reproduces the testimony of victim i.e. while she
was in the witness box. Para 2 being relevant is reproduced as
under:
"2. When I was residing in the house of my maternal aunt
Indu, Santosh and Sudhir used to sleep on my person in the
evening, used to press my breast, they used to touch their male
genital on my vagina, they used to remove their clothes, they
use to remove my clothes."
The translated version of statement of victim under Section
164 of the Cr.P.C., which has been recorded by producing her before
the learned 14th JMFC Aurangabad, more particularly, paragraph 2 is
as under.
"2. My maternal uncle and uncle made me sleep on cot. They
use to remove my clothes as well as their clothes. After I shouted
they pressed my mouth and use to say that do not inform any one. If
informed, then they would kill. They touch her urinal place and
{17} CRI APPEAL 642 OF 2020
breast with their hands, they put their male organ in her urinal place.
They did this repeatedly with her."
19. Therefore, on comparing both versions i.e. given in substantive
evidence before the Court and while giving statement under Section
164 of the Cr.P.C., there is variance to the extent of putting male
organ in her urinal place, which is finding place in her statement
under Section 164 of the Cr.P.C., but is apparently missing at the time
of recording her testimony before trial Court.
20. Law is fairly settled that it is the substantive evidence that
would prevail and not statement under Section 164 of the Cr.P.C.
Consequently, on considering her substantive evidence in the
witness box, she is found to be deposing about accused nos.1 and 2
touching their male genital on her vagina and pressing her
chest/breast. While in the witness box, she has not stated about any
penetration or insertion.
21. On going through the operative part of the judgment, it is
emerging that learned trial Judge has recorded conviction for offence
under Section 376(2)(f)(n), which is reproduced above. In the
considered opinion of this Court, for attracting said charge, first and
{18} CRI APPEAL 642 OF 2020
foremost it is expected of prosecution to establish rape. Though
above provision, for which guilt is recorded, binds accused nos.1 and
2, being relatives / guardians, however, testimony of witness is not
about penetration or insertion.
It is fairly settled position that penetration is sine qua non for
constituting offence of rape. Though partial, it is essential that there
has to be penetration or insertion. Law to this extent has been dealt
and discussed in various judicial pronouncements. It would be
fruitful to refer the ruling of the Hon'ble Apex Court in the case of
Aman Kumar and Anr. v. State of Haryana, (2004) 4 SCC 379,
wherein paragraph 7 which is relevant, is reproduced as under:
"Penetration is sine qua non for an offence of rape. In order to
constitute penetration, there must be evidence clear and cogent to
prove that some part of the virile member of the accused was within
the labia of the pudendum of the woman, no matter how little. Partial
penetration also is sufficient to constitute offence of rape. The depth
of penetration is immaterial in an offence punishable under Section
376."
Similar law is also reiterated in the case of S.P.Kohli (Dr.) v.
High Court of Punjab and Haryana, (1979) 1 SCC 212.
Therefore, in the considered opinion of this Court, conviction
recorded by learned trial Judge for this offence is improper.
{19} CRI APPEAL 642 OF 2020
22. Likewise, operative part further goes to show that guilt is also
recorded for commission of offence under Sections 4 and 6 of the
POCSO Act, however, on going through the said provisions, it is
incumbent upon the prosecution to prove that there was penetrative
sexual assault and aggravated penetrative sexual assault.
As to what amounts to penetrative sexual assault and
aggravated penetrative sexual assault is also dealt and defined in
Sections 3 and 5 of the POCSO Act and hence, the same are
reproduced as under :
"3. Penetrative sexual assault.-
A person is said to commit "penetrative sexual assault" if--
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra
or anus of a child or makes the child to do so with him or any other person;
or
(b) he inserts, to any extent, any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of the child or makes the child to
do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause
penetration into the vagina, urethra, anus or any part of body of the child or
makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or
makes the child to do so to such person or any other person."
"5. Aggravated penetrative sexual assault.
(a) Whoever, being a police officer, commits penetrative sexual assault on a
child --
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(i) within the limits of the police station or premises at which he is
appointed; or
(ii) in the premises of any station house, whether or not situated in
the police station, to which he is appointed; or
(iii) in the course of his duties or otherwise; or
(iv) where he is known as, or identified as, a police officer; or
(b) whoever being a member of the armed forces or security forces commits
penetrative sexual assault on a child--
(i) within the limits of the area to which the person is deployed; or
(ii) in any areas under the command of the forces or armed forces;
or
(iii) in the course of his duties or otherwise; or
(iv) where the said person is known or identified as a member of the
security or armed forces; or
(c) whoever being a public servant commits penetrative sexual assault on a
child; or
(d) whoever being on the management or on the staff of a jail, remand
home, protection home, observation home, or other place of custody or care
and protection established by or under any law for the time being in force,
commits penetrative sexual assault on a child, being inmate of such jail,
remand home, protection home, observation home, or other place of
custody or care and protection; or
(e) whoever being on the management or staff of a hospital, whether
Government or private, commits penetrative sexual assault on a child in
that hospital; or
(f) whoever being on the management or staff of an educational institution
or religious institution, commits penetrative sexual assault on a child in that
institution; or
(g) whoever commits gang penetrative sexual assault on a child.
Explanation.-- When a child is subjected to sexual assault by one or more
persons of a group in furtherance of their common intention, each of such
persons shall be deemed to have committed gang penetrative sexual assault
within the meaning of this clause and each of such person shall be liable for
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that act in the same manner as if it were done by him alone; or
(h) whoever commits penetrative sexual assault on a child using deadly
weapons, fire, heated substance or corrosive substance; or
(i) whoever commits penetrative sexual assault causing grievous hurt or
causing bodily harm and injury or injury to the sexual organs of the child;
or
(j) whoever commits penetrative sexual assault on a child, which--
(i) physically incapacitates the child or causes the child to become
mentally ill as defined under clause (l) of section 2 of the Mental
Health Act, 1987 (14 of 1987) or causes impairment of any kind so
as to render the child unable to perform regular tasks, temporarily
or permanently;
(ii) in the case of female child, makes the child pregnant as a
consequence of sexual assault;
(iii) inflicts the child with Human Immunodeficiency Virus or any
other life threatening disease or Infection which may either
temporarily or permanently impair the child by rendering him
physically incapacitated, or mentally ill to perform regular tasks;
[(iv) causes death of the child; or]
(k) whoever, taking advantage of a child's mental or physical disability,
commits penetrative sexual assault on the child; or
(l) whoever commits penetrative sexual assault on the child more than once
or repeatedly; or
(m) whoever commits penetrative sexual assault on a child below twelve
years; or
(n) whoever being a relative of the child through blood or adoption or
marriage or guardianship or in foster care or having a domestic relationship
with a parent of the child or who is living in the same or shared household
with the child, commits penetrative sexual assault on such child; or
(o) whoever being, in the ownership, or management, or staff, of any
institution providing services to the child, commits penetrative sexual
assault on the child; or
(p) whoever being in a position of trust or authority of a child commits
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penetrative sexual assault on the child in an institution or home of the child
or anywhere else; or
(q) whoever commits penetrative sexual assault on a child knowing the
child is pregnant; or
(r) whoever commits penetrative sexual assault on a child and attempts to
murder the child; or
(s) whoever commits penetrative sexual assault on a child in the course of
[communal or sectarian violence or during any natural calamity or in
similar situations]; or
(t) whoever commits penetrative sexual assault on a child and who has
been previously convicted of having committed any offence under this Act
or any sexual offence punishable under any other law for the time being in
force; or
(u) whoever commits penetrative sexual assault on a child and makes the
child to strip or parade naked in public,
is said to commit aggravated penetrative sexual assault."
CONCLUSION
23. On comparing substantive evidence of victim, which is
reproduced above, with above legal requirements, in the considered
opinion of this Court, even charge under Sections 4 and 6 of the
POCSO Act would not be attracted for the simple reason that, in
substantive evidence, victim has deposed about accused nos.1 and 2
touching her private parts and chest with their hands and they
sleeping over her person. Resultantly, when such is her testimony, in
the considered opinion of this Court, neither penetrative sexual
assault nor aggravated penetrative sexual assault can be said to be
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established. Resultantly, in the considered opinion of this Court
neither the charge of Section 376(2)(f)(n) nor Section 4 and 6 of the
POCSO Act can be said to be getting attracted.
24. However, definitely here evidence of victim clearly shows that
there was sexual assault with sexual intent.
As to what amounts to sexual assault is defined in the Statute
in Section 2(i) which is as under :
"sexual assault"- Has the same meaning as assigned to it in Section 7.
Section 7 reads as under :
"7. Sexual assault. - Whoever, with sexual intent touches the vagina,
penis, anus or breast of the child or makes the child touch the vagina,
penis, anus or breast of such person or any other person or does any
other act with sexual intent which involves physical contact without
penetration (emphasis laid) is said to commit sexual assault."
25. Taking above provision into consideration and applying it with
the testimony of the victim, definitely offence of Section 7 r/w
Section 8 of the POCSO Act is attracted and made out.
26. In view of above discussion, interference at the hands of this
appellate court is necessary in modifying the judgment and order of
trial Court. Accordingly, I proceed to pass following order :
{24} CRI APPEAL 642 OF 2020
ORDER
(i) Criminal Appeal No.642 of 2020 is partly allowed.
(ii) The conviction and sentence awarded by the Special
Judge (POCSO Act), Aurangabad in Spl. Case Child Prot.
No.168 of 2017 on 15-10-2020 to appellant nos.(1) Sudhir
s/o. Govindrao Suradkar and (2) Santosh s/o. Nathaji
Jumbde for the offence punishable under Section 376(2)
(f)(n) r/w 34 of the IPC and Sections 4, 6 and 8 the
POCSO Act, stands set aside.
(iii) Instead, appellant nos.(1) Sudhir s/o. Govindrao
Suradkar and (2) Santosh s/o. Nathaji Jumbde are hereby
convicted for commission of offence under Section 7
read with Section 8 of the POCSO Act and are hereby
sentenced to suffer rigorous imprisonment for five years.
(iv) Conviction of appellant nos.1 and 2 under Section
506 r/w 34 of the IPC vide clause (6) of the operative part
of the impugned order is hereby maintained. However, no
separate sentence is awarded.
(v) Order of the trial Court as regards to payment of fine
amount is maintained.
(vi) It is clarified that there is no change in rest of the
order of the trial Court.
( ABHAY S. WAGHWASE )
JUDGE
SPT
