Bombay High Court
Sudhir Laxman Sonawane vs The State Of Maharashtra And Anr on 10 June, 2024
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2024:BHC-AS:23344
Gokhale 1 of 22 30-apeal-862-22(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 862 OF 2022
Sudhir Laxman Sonawane ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
INTERIM APPLICATION NO. 252 OF 2023
WITH
INTERIM APPLICATION NO. 2846 OF 2023
IN
CRIMINAL APPEAL NO. 862 OF 2022
__________
Mr. Pawan Mali (Appointed Advocate) for Appellant.
Ms. Ranjana D. Humane, APP for State/Respondent.
Ms. Prajakta Jagtap (Appointed Advocae) for Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 10 JUNE 2024
ORAL JUDGMENT :
1. The Appellant was the original accused in POCSO Case
No.490 of 2014. The learned Designated Court under the
Protection of Children from Sexual Offences Act (hereinafter
referred to as 'POCSO Act'), Greater Mumbai, vide the Judgment
and order dated 26.07.2017 convicted the appellant for
commission of the offences punishable under sections 376, 354,
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2024.06.14
14:59:45
+0530
2 of 22 30-apeal-862-22(J)
342 and 170 of the I.P.C. along with Sections 4, 10 and 12 of the
POCSO Act. Considering the greater degree of sentences provided
U/s.376 of the IPC and Section 4 of the POCSO Act than the other
offences, the appellant was sentenced to suffer R.I. for 14 years
and to pay a fine of Rs.50,000/- and in default of payment of fine
to suffer R.I. for six months. Out of the fine amount, Rs.40000/-
were directed to be paid to the victim by way of compensation. In
addition, since the compensation was not adequate for the victim's
rehabilitation, the District Legal Services Authority was
recommended to pay adequate compensation to the victim as per
amended Section 357-A, Sub Clause (1) of Cr.P.C. The appellant
was in custody from 19.09.2014. He was given set off U/s.428 of
the Cr.P.C.
2. The Appellant has challenged this Judgment and order
by way of the present appeal.
3. Heard Mr. Pawan Mali, learned appointed advocate for
the Appellant, Ms. Ranjana Humane, learned APP for the
State/Respondent No.1 and Ms. Prajakta Jagtap, learned
3 of 22 30-apeal-862-22(J)
appointed advocate for the Respondent No.2.
4. The prosecution case is that the victim was 13 years of
age, on the date of the incident i.e. on 09.08.2014. She was
present in the house along with her younger brother. Her parents
had gone for work. At about 1:30p.m., one unknown person came
to her house. Her brother was sent out on some pretext. Thereafter
the unknown person told her that he had come at the instance of
the victim's father and that he would help her in getting a job in
the police department. For that purpose, he needed to take her
measurement. By saying so, he removed her clothes and
committed penetrative sexual assault. When the victim raised
shouts, he ran away. When the victim's mother came home, the
victim narrated the incident to her; who in turn, informed the
victim's father. The victim and her mother went to the police
station and lodged an F.I.R. vide the C.R.No.328 of 2014 at Tilak
Nagar police station; at about 2:30p.m. The F.I.R. was registered at
3:30p.m.
5. The Appellant was in custody in connection with some
4 of 22 30-apeal-862-22(J)
other offence. He was taken in custody in the present case on
19.09.2014. At his instance, his clothes were recovered from his
house. The Test Identification Parade (for short 'T.I.Parade') was
held on 10.10.2014 in which the victim identified the appellant.
The victim's clothes were already recovered after registration of
the F.I.R. The articles were sent for chemical analysis examination.
The spot panchanama was recorded after registration of the F.I.R.
The statements of witnesses were recorded and after completion of
the investigation the charge-sheet was filed. The case was tried
before the Designated Judge under the POCSO Act as mentioned
earlier.
6. During trial, the prosecution examined nine witnesses
including the victim, her mother, the Medical Officer, The Naib
Tahsildar who conducted the T.I. Parade, the WPSI who recorded
the F.I.R., panchas and the Investigating Officer.
7. After recording the evidence and the statement of the
accused U/s.313 of the Cr.P.C., arguments were heard and the
Appellant was convicted and sentenced; as mentioned earlier.
5 of 22 30-apeal-862-22(J)
8. The prosecution case has unfolded through the evidence
of the victim herself who is examined as PW-1. At the time of
recording of her evidence, she was 15 years of age. The victim's
birth certificate was produced by the Investigating officer at
Exhibit-47. Her date of birth was 13.12.2001. The Birth Certificate
was collected from the B.M.C. There is no dispute about her date
of birth.
9. PW-1 victim has stated that, at the time of the incident,
she was 13 years of age. She was residing with her parents and her
aunt's son. She was studying in the 8th standard. The school timing
was between 11:30a.m. to 5:00p.m. On the date of the incident,
i.e. on 09.08.2014, she had not gone to the school. She was alone
in the house with her younger cousin. Her parents had gone for
work. At about 1:00 to 1:30p.m., one unknown person came to her
house and told her that, he was from the police department and
that her father had sent him. He further added that since the
victim had got good marks in the 10th standard, her father
intended to get a job for her in the police department by giving
money. He further told the victim that, he had come to take her
6 of 22 30-apeal-862-22(J)
measurement. He sent the victim's cousin outside the house. Then,
on the pretext of taking measurement, he tried to remove her
clothes. The victim resisted, but he used force. He pressed her
breast. It is her case that, he penetrated her private parts with his
private parts. She raised shouts, therefore, he ran away. She
described that person as tall, fair and having round face. PW-1 has
identified the accused in the Court as the same person who had
committed that offence. After 15-20 minutes, her mother returned
home. PW-1 narrated the incident to her. Then both of them went
to the police station. The police recorded the statements of the
mother and PW-1. She was sent for medical examination. She gave
history to the Doctor. She was sent to the Court at Sewree for
recording her statement U/s.164 of the Cr.P.C. The statement is
produced on record at Exhibit-20. She has further deposed that,
she went to Arthur Road Jail for identification of the accused. She
identified the accused amongst six dummies. She deposed that the
accused was standing between the Dummy No.4 and 5. According
to her, the dummies were similar to the accused. Her
supplementary statement was recorded. She identified her clothes
7 of 22 30-apeal-862-22(J)
in the Court which were seized during the investigation. She
further deposed that, at the time of incident the accused had
shown her key-chain of the Maharashtra Police to prove that he
was from the police department. She also identified that key-chain
which was recovered from the Appellant.
In the cross-examination, she stated that she had not
gone to the school on that date. There were other houses adjacent
to her house. Her younger cousin was studying in 4th standard. She
had not seen the accused before the incident. It was her dream to
become a police officer and she used to discuss the same with her
parents. The accused was in the house for about half an hour.
When she raised shouts they were not so loud to attract the
attention of the neighbours. Her mother had informed about the
incident to her father telephonically and her father had come to
the police station. She could not recollect that her mother and the
police had informed her to make a particular statement before the
Magistrate. She has added that, at the time of recording her
statement U/s.164 of the Cr.P.C. she was alone. She deposed that,
at the time of T.I. Parade, the police from the Tilak Nagar police
8 of 22 30-apeal-862-22(J)
station were not present. She denied the suggestion that, she
identified the accused at the instance of police. Her statement
recorded U/s.164 of the Cr.P.C. is produced on record at Exhibit-
20. It is consistent with her deposition.
10. PW-2 is the mother of the victim. She has deposed that,
when she returned home on 09.08.2014, PW-1 called her on
mobile phone and told her that police had come to their house.
She immediately rushed to her house. PW-1 was crying. She
narrated the incident to her. After that, both of them went to the
police station. PW-2's statement was recorded and treated as an
F.I.R. It is produced on record at Exhibit-22. After that the police
had sent PW-1 to Rajawadi hospital. PW-2 accompanied PW-1. She
has further stated that, on 10.10.2014 she had gone to Arthur
Road jail with her daughter for the purpose of T.I. parade.
There was nothing significant in her cross-examination.
The F.I.R. is produced on record at Exhibit-22. It substantially
corroborates the evidence of PW-1 and 2.
11. PW-6 WPSI Shobha Diwre was the police officer who
9 of 22 30-apeal-862-22(J)
had recorded the F.I.R. which is produced at Exhibit-22. She had
seized the clothes of the victim in the police station in presence of
two panchas. She carried out the spot panchanama as the spot was
pointed out by the first informant. She recorded the statement of
the other child i.e. younger cousin of the victim.
In the cross-examination, she stated that, she did not
make any enquiries with the neighbours at the time of carrying out
out spot panchanama. She did not make any efforts to get the
sketch of the accused drawn as per the description given by the
victim. The informant and the victim were at the police station on
09.08.2014 approximately upto 6:00p.m. She produced the spot
panchanama at Exhibit-34. A mat was seized from the spot.
12. PW-3 Jitendra Sahane was a pancha in whose presence
the Appellant made memorandum statement and produced a black
coloured full shirt and blue coloured jeans, as well as, the key-
chain from his house. His deposition is not shaken in the cross-
examination.
13. PW-4 Dr. Pradnya Supe had conducted the medical
10 of 22 30-apeal-862-22(J)
examination of the victim. She has deposed that, there was an
attempt of penetration in the private parts. Her opinion was that,
there was no sign of use of force. Her opinion was that, there was
an attempt of penetrative sexual assault. The medical report is
produced on record at Exhibit-29, wherein, she had made the
same observations.
14. PW-5 Sunil Jadhav was the Naib Tahsildar who had
conducted the T.I. Parade on 10.10.2014. He conducted the T. I.
Parade at Arthur Road jail at 11:00a.m. in presence of two
panchas. The panchanama is produced on record at Exhibit-32. It
gives details of the precautions which he had taken. It clearly
mentions that the victim had identified the accused standing
between Dummy No.4 and 5. Again in the cross-examination,
nothing favourable could be elicited by the defence counsel. He
stated that, his staff had brought the panchas and he was not
knowing them. He did not make any enquiries with the accused
regarding the case. He had asked the victim as to whether the
police had shown the photographs of the accused to her. He denied
the suggestion that, he had not conducted the T. I. Parade.
11 of 22 30-apeal-862-22(J)
15. PW-7 Sawant was a neighbour. But her evidence shows
that, her deposition was in respect of another offence involving
another victim and it had nothing to do with the present offence.
She was not even cross-examined. She was unnecessarily
examined by the prosecution.
16. PW-9 Charu Bharati was the investigating officer. She
has stated that the Appellant was already in custody in connection
with C.R.No.298 of 2014 of Tilak Nagar police station. She took
custody of the appellant from that particular C.R. She submitted
that the appellant was convicted and sentenced for three years in
connection with that particular offence. She recovered clothes of
the appellant and the key-chain from his house at his instance, in
presence of panchas. She sent the articles for C.A. examination.
The C.A. report was received and it was produced before the court
by this witness. This witness made arrangement for conducting the
T. I. Parade.
She was cross-examined in respect of location of the
victim's house and location of other houses around that particular
12 of 22 30-apeal-862-22(J)
spot. She was cross-examined in respect of the logbook etc., when
they had gone to the house of the appellant to effect seizure of the
clothes and key-chain. In the cross-examination, she has deposed
that she arrested the appellant on 19.08.2014 and the T. I. Parade
was held on 10.10.2014 by offering explanation that there was
election during that period and, therefore, the T. I. Parade could
not be conducted immediately. She denied the suggestion that
before the T. I. Parade, the accused's photograph was shown to the
victim. The C.A. reports are produced on record at Exhibits-13 and
14. They show that, there were some blood spots on the
appellant's pant and there were semen spots on the clothes of the
victim. The semen was of 'O' group. However, as rightly submitted
by the learned counsel for the appellant, this incriminating
evidence of C.A. report was not put to the appellant when his
statement U/s.313 of the Cr.P.C. was recorded. He was not given
opportunity to explain this incriminating evidence. Therefore, this
particular piece of evidence will have to be excluded from consideration.
17. Learned counsel for the Appellant made following
submissions.
13 of 22 30-apeal-862-22(J)
The victim's evidence is not reliable. The incident is
improbable. It was not possible that the neighbours would not
have gathered after the victim had raised shouts. He submitted
that the offender was unknown and, therefore, he could not have
known about the victim's dreams of becoming a police officer. He
submitted that the T. I. Parade was not held immediately and there
was infirmity in the procedure of T. I. Parade. He heavily relied on
the opinion of the Medical Officer that there were no marks
indicating use of force on the victim and at the highest the opinion
was that there was only an attempt of penetrative sexual assault
and that it was not actual penetrative sexual assault. As mentioned
earlier, he also submitted that the C.A. reports will have to be
excluded from the consideration as no questions were asked to the
Appellant in that behalf when his statement was recorded U/s.313
of the Cr.P.C.
18. On the other hand, learned APP, as well as, the learned
counsel for the victim supported the prosecution case and both of
them relied on the consistent evidence of the victim and her
mother. They submitted that, there was immediate reporting of the
14 of 22 30-apeal-862-22(J)
offence to the police and there was no scope of manipulation or for
concocting a false story. There was no reason to implicate the
appellant falsely.
19. I have considered these submissions. As discussed earlier,
the evidence of PW-1, PW-2 and the statement recorded by the
learned Magistrate of the victim PW-1 U/s.164 of the Cr.P.C. are
absolutely consistent. Even the F.I.R. corroborates the prosecution
story. The incident was immediately reported to the police station
and the F.I.R. was registered without any delay. There was no
scope for concocting a false story. Though, the prosecution has not
examined any neighbours who had heard the victim's shouts, the
victim-PW-1 had explained that she could not raise shouts in loud
voice. It is quite understandable that the victim was under shock
and fear. Therefore, considering her tender age, she could not have
gathered courage to come outside the house. The evidence of PW-2
shows that PW-1 immediately made a phone call to her and she
had rushed home. At that time, PW-1 had narrated the incident to
her. Both of them had immediately gone to the police station. Her
clothes were seized. She was sent for medical examination. All this
15 of 22 30-apeal-862-22(J)
conduct indicates that their evidence is truthful. The statement
recorded U/s.164 of the Cr.P.C. is also consistent.
20. Though, the Medical officer has stated that, in her
opinion an attempt of penetrative sexual assault was made, the
definition of 'penetrative sexual assault' U/s.3 of the POCSO Act is
as follows:-
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.
16 of 22 30-apeal-862-22(J)
The key words in this definition are "to any extent".
21. Even Section 375 of the I.P.C. reads thus:-
375. Rape.-- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes
her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra, anus
or any part of body of such woman or makes her to do
so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,
under the circumstances falling under any of the
following seven descriptions:
First. -- Against her will.
Secondly. -- Without her consent.
Thirdly. -- With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt.
17 of 22 30-apeal-862-22(J)
Fourthly. -- With her consent, when the man knows
that he is not her husband and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully
married.
Fifthly. -- With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally
or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly. -- With or without her consent, when she is
under eighteen years of age.
Seventhly. -- When she is unable to communicate
consent.
Again here the key words are "to any extent".
Therefore, when the victim has deposed that the accused has
committed penetrative sexual assault, then even small penetration
would constitute an offence defined U/s.375 of the I.P.C. and
under Section 3 of the POCSO Act. Therefore, to that extent even,
the Medical Officer's opinion does not destroy the prosecution case
when PW-1 is a reliable witness.
22. As far as, T. I. Parade is concerned, I do not find any
infirmity in the procedure adopted by the Naib Tahsildar. The
18 of 22 30-apeal-862-22(J)
panchanama and PW-1's deposition are consistent. The defence
could not raise any doubt about the T.I. parade. The victim had
sufficient opportunity to see the Appellant at the time of incident.
She has also identified him in the Court.
23. Considering all these aspects, it is quite clear that the
prosecution has proved its case beyond reasonable doubt.
Therefore, I do not find any error in the reasoning of the learned
Judge in convicting the appellant. She has rightly relied on the
evidence of the victim as the most important piece of evidence.
There is hardly any dispute about the age of the victim.
24. The next question is about the sentence imposed on the
appellant. In that behalf, learned counsel for the Appellant
submitted that the appellant had faced another case vide POCSO
Special Case No.442 of 2014, in which, he was convicted by the
Special Judge under POCSO vide the Judgment and order dated
22.03.2017. In that case the appellant was convicted U/s.12 of the
POCSO Act and under sections 341, 170 and 509 of the I.P.C. In
that case, he was imposed the sentence of R.I. for three years as
19 of 22 30-apeal-862-22(J)
the major sentence. Shri. Mali submitted that, this conviction and
sentence were already operating when the conviction and sentence
in the present case was recorded on 26.07.2017. He submitted
that, at the time of passing of the sentence in the present case,
Section 427 of the Cr.P.C. was applicable and the sentence in the
present case could commence only after expiration of the sentence
of imprisonment in the previous case. He submitted that the
appellant was taken in custody in the present case on 19.09.2014.
Thus, he is in custody for more than 9 and half years. However,
sentence in the present case could only start after completion of
three years' sentence in the previous case. Shri. Mali submitted
that, this fact may be taken into consideration and the sentence
imposed on him in the present case be reduced at least by three
years. He submitted that, minimum sentence which could be
imposed U/s.4 of the POCSO applicable at the time of commission
of the offence, was 7 years. Similarly, U/s.376 of the I.P.C. the
minimum sentence was 7 years. Therefore, some leniency may be
shown.
25. Learned APP, as well as, learned counsel for the
20 of 22 30-apeal-862-22(J)
Respondent No.2 left the sentencing part to the discretion of the
Court.
26. Section 427 of the Cr.P.C. reads thus:
427. Sentence on offender already sentenced for
another offence. --
(1) When a person already undergoing a sentence of
imprisonment is sentenced on a subsequent conviction
to imprisonment or imprisonment for life, such
imprisonment or imprisonment for life shall commence
at the expiration of the imprisonment to which he has
been previously sentenced, unless the Court directs
that the subsequent sentence shall run concurrently
with such previous sentence:
Provided that where a person who has been sentenced
to imprisonment by an order under section 122 in
default of furnishing security is, whilst undergoing
such sentence, sentenced to imprisonment for an
offence committed prior to the making of such order,
the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of
imprisonment for life is sentenced on a subsequent
conviction to imprisonment for a term or imprisonment
for life, the subsequent sentence shall run concurrently
with such previous sentence.
From the record it appears that no submissions were
made on his behalf to make the subsequent sentence to run
concurrently with the previous sentence. Considering this aspect, I
21 of 22 30-apeal-862-22(J)
am inclined to reduce the sentence by three years because the
sentence in the present case could start only after the first sentence
in the previous case would get over.
27. Hence, the following order is passed.
ORDER
i) The Appeal is partly allowed.
ii) The conviction under sections 376, 354, 342 and
170 of the I.P.C. along with Sections 4, 10 and 12
of the POCSO Act is maintained. However, the
sentence of R.I. for 14 years imposed on the
appellant is modified to 11 years R.I.
iii) Imposition of fine of Rs.50000/- and in default
sentence for non payment of fine of R.I. for six
months is maintained.
iv) The direction to pay the compensation of
Rs.40000/-, as well as, further compensation
U/s.357-A(1) of the Cr.P.C. is maintained.
v) Benefit of set off U/s.428 of the Cr.p.c. is granted
to the appellant for the period he has undergone
as an under trial prisoner.
22 of 22 30-apeal-862-22(J)
vi) The Appeal is accordingly disposed of.
vii) With the disposal of Appeal the companion
interim applications are also disposed of.
(SARANG V. KOTWAL, J.)
