Brijmohan Gokulprasad Jaiswal vs The State Of Maharashtra And Another
2025 Latest Caselaw 2758 Bom

Bombay High Court

Brijmohan Gokulprasad Jaiswal vs The State Of Maharashtra And Another on 21 February, 2025

Author: R.G. Avachat

Bench: R.G. Avachat

2025:BHC-AUG:5117-DB
                                                                 Cri.Appeal No.40/2022
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                       `IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                    BENCH AT AURANGABAD

                               CRIMINAL APPEAL NO.40 OF 2022


                Brijmohan s/o Gokulprasad Jaiswal,
                Age 68 years, Occ. Retired,
                R/o ND-41, Dattanagar, CIDCO,
                Nanded                                      ... APPELLANT

                        VERSUS

                1)      The State of Maharashtra
                        Copy to be served on the
                        Public Prosecutor, High Court
                        of Bombay, Bench at Aurangabad

                2)      XYZ                                 ... RESPONDENTS

                                             .......
                Mr. R.A. Jaiswal, Advocate for appellant
                Mrs. Uma S. Bhosle, A.P.P. for respondent No.1.
                Ms Madhuri B. Jain, Advocate for R.No.2
                                             .......

                                          CORAM : R.G. AVACHAT AND
                                                  NEERAJ P. DHOTE, JJ.

                              Date of reserving judgment : 23rd January, 2025
                              Date of pronouncing judgment : 21st February, 2025

                JUDGMENT (PER : R.G. AVACHAT, J.) :

The appellant was the accused in Special Case

(Atrocity), No.23/2018 before the Additional Sessions Judge-5,

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Nanded. The case of the prosecution was as under :

2. The victim P.W.1 "V" was around 16 years of age in

the year 2017-2018. Her mother and the victim would work as

maid servants. Her mother would serve at the house of the

appellant. A day about six months prior to 19/6/2019, the

victim had been to the house of the appellant to do the

household/ domestic work. It was 10.00 in the morning. The

appellant's son and daughter-in-law had gone to the hospital.

The appellant alone was at his residence. He pulled the victim

close to him. The victim tried to make hue and cry. The

appellant gave her threats. The appellant thereafter undressed

the victim and did sexual intercourse with her. He threatened

the victim of dire consequences, if she reports the matter to

anyone else.

3. The days went by. The victim realized to have

been conceived. Due to advancement of such pregnancy,

medical termination was not possible. The victim delivered a

baby.

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4. While the victim was found to be pregnant, she

lodged the First Information Report (F.I.R. - Exh.14) against

the appellant. The appellant was arrested. Blood samples of

both, the appellant and the victim were obtained. Both of them

were medically screened. On delivery of the baby, its blood

sample too was obtained. The bloods of the trio were

submitted to FSL for DNA profiling.

5. The DNA report indicate the appellant and the

victim to be the biological parents of the new born.

6. It is not in dispute that the victim was a juvenile at

the relevant time. On appreciation of the evidence in the case,

the Trial Court convicted and consequently sentenced the

appellant. The operative order of conviction and sentence

reads thus :

1) Accused Brijmohan Gokulprasad Jaiswal is held guilty and convicted U/Sec.235(2) of the Code of Criminal Procedure for the offence under Section 376(2)(i),506 of the Indian Penal Code, under Section 5(j)(ii) punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 and under Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act,1989 arising out of Crime No.282/2018 of Police Station Nanded Rural.

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2) Accused Brijmohan Gokulprasad Jaiswal is held guilty and convicted for the offence under Section 5(j)(ii) punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 and sentenced to suffer imprisonment for life and shall pay fine of Rs.25,000/ (Rs.Twenty Five Thousands only). In default of payment of fine, he should suffer further rigorous imprisonment for six months.

3) Accused is held guilty and convicted under Section 235(2) of the Code of Criminal Procedure for the offence under Section 376(2)(i) of the Indian Penal Code, but no separate sentence is provided as sentence is imposed under Section 5(j)(ii) punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012.

4) Accused is held guilty and convicted U/Sec.235(2) of the Code of Criminal Procedure for the offence punishable under Section 506 of the Indian Penal Code and sentenced to suffer rigorous imprisonment of two years and shall pay fine of Rs.1,000/- (Rs.One Thousand only). In default of payment of fine, he should suffer further rigorous imprisonment for one month.

5) Accused is held guilty and convicted for the offence punishable under Section 3(2)(v) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 and sentenced to suffer imprisonment for life and shall pay fine of Rs.25,000/ (Rs. Twenty Five Thousands only). In default of payment of fine, he should suffer further rigorous imprisonment for six months.

6) Out of the fine amount, an amount of Rs.50,000/ (Rs. Fifty Thousands only) be paid to the victim as compensation, after appeal period is over.

7) All the substantive sentences are to run concurrently.

8) Copy of the order be sent to the Secretary, District Legal Services Authority, Nanded for determination and payment of suitable compensation to the victim, as per rules.

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7. The learned Advocate for the appellant argued the

appeal only for reduction in quantum of sentence. According

to him, the appellant was 66 years of age at the relevant time.

He is now around 74 years of age. He would submit that, the

Trial Court did not hear the appellant on the quantum of

sentence. According to him, the offence was punishable with

minimum imprisonment of ten years, which may extend to

imprisonment for life which shall mean till the end of natural life

of the culprit.

8. The Trial Court convicted the appellant for the

offence punishable under Section 3(2)(v) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989. Close reading of the evidence on record would indicate

that the offence was not committed with a view that the victim

belongs to Scheduled Caste and with a further view to

undermine/ lower down her with her caste. We, therefore, find

the conviction of the appellant and consequential sentence for

offence under the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 to be unwarranted. The

victim had kept mum for over six months. Except her

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testimony that the appellant had threatened her of dire

consequences, there is nothing to indicate that the victim or

her mother had such a fear of the appellant and the appellant

had really extended such threat. We, therefore, set aside the

appellant's conviction for the offence punishable under Section

506 of the Indian Penal Code as well. The appellant's

conviction for offence punishable under Section 376(2)(i) and

under Section 5(j)(ii) read with Section 6 of the Protection of

Children from Sexual Offences Act, 2012 is maintained.

9. Reading of the judgment impugned herein indicate

the Trial Court, in paragraph No.107 of its judgment observed

thus :

"107) The accused committed rape on an innocent, helpless and poor girl of 16 years old. So the offense committed by the accused is heinous crime. Offence is very serious in nature and against the child age of 16 years. It is violation of her right of privacy. It is an assault on the body, mind and privacy of victim. Many such cases are not even brought to light because of social stigma attached thereto. It is to be noted that at the time of incident accused was 66 years old. Accused has chosen helpless poor girl for satisfying his evil lust. The accused is very dangerous for the society. The 66 years old aged person i.e. accused has totally destroyed the precious life of victim girl only to fulfill his evil lust. Because of the evil act of

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accused, victim girl aged 16 years had to undergo unbearable delivery pains without any of her fault. It is a crime against humanity and against entire society. Therefore, the accused is not entitled to show any leniency."

10. It is further observed in paragraph No.109 that,

both these offences were punishable with minimum

imprisonment of rigorous imprisonment for ten years, which

may extend to imprisonment for life which shall mean till the

end of natural life of the culprit, and shall also be liable to fine.

The Trial Court, therefore, preferred to sentence the appellant

to suffer imprisonment for life with fine of Rs.25,000/-, in

default, rigorous imprisonment for six months.

11. The operative order is conspicuously silent to

observe that the imprisonment for life to mean till the end of

natural life of the appellant.

12. In the peculiar facts and circumstances of the case

namely, the appellant was 66 years of age at the relevant time,

and the fact that the offence was not reported for over next six

months until the victim realized to have conceived. She was

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around 16 years of age. We, therefore, propose to reduce the

sentence of appellant to rigorous imprisonment for ten years.

13. With this, the appeal partly succeeds. Hence the

order :

ORDER

(i) The Criminal Appeal is partly allowed.

(iii) Conviction of the appellant for the offences punishable

under Sections 376(2)(i) of the Indian Penal Code and Section

5(j)(ii) punishable under Section 6 of the Protection of Children

from Sexual Offences Act, 2012 is maintained. However, the

sentence of imprisonment for life is reduced to rigorous

imprisonment for ten years. The sentence of fine and the term

of imprisonment in default of payment of fine to stand

unaltered.

(iii) Conviction of the appellant for the offences punishable

under Sections 506 of Indian Penal Code and Section 3(2)(v)

of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 and consequential sentences are hereby

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set aside. Fine amounts, if paid, on that count be refunded to

the appellant.

(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)

fmp/-