[Cites 31, Cited by 0]
Bombay High Court
Sayyad Nadim Sayyad Asad vs The State Of Mah. Thr. Pso Ramdas Peth ... on 7 May, 2026
2026:BHC-NAG:7178-DB
Judgment
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.837 OF 2022
Sayyad Nadim Sayyad Asad,
aged about 20 years, occupation labour,
r/o Marghat, Akola, taluka and
district Akola. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through Police Station Officer,
Ramdas Peth, Akola. ..... Respondent.
================================
Shri Parag Bezalwar, Counsel for the Appellant.
Shri S.S.Doifode, Additional Public Prosecutor for the
Respondent/State.
================================
CORAM : URMILA JOSHI-PHALKE & NIVEDITA P.MEHTA, JJ.
CLOSED ON : 29/04/2026
PRONOUNCED ON : 07/05/2026
JUDGMENT :
(Per : Urmila Joshi-Phalke)
1. By this appeal, the appellant (the accused) has
challenged judgment and order dated 20.10.2022 passed by
learned Extra Joint District Judge and Additional Sessions
Judge, Akola (learned Judge of the trial court) in Special
(POCSO) Case No.133/2021.
.....1/-
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2. By the said judgment impugned, learned Judge of the
trial court convicted the accused for offence under Section
363 of the IPC and sentenced to suffer rigorous imprisonment
for 7 years and to pay fine Rs.5000/-, in default, to suffer
further simple imprisonment for 3 months.
He is also convicted for offence under Section 366 of
the IPC and sentenced to suffer rigorous imprisonment for 10
years and to pay fine Rs.5000/-, in default, to suffer further
simple imprisonment for 3 months.
He is also convicted for offence under Section 376(3)
of the IPC and sentenced to suffer life imprisonment and to
pay fine Rs.50,000/-, in default, to suffer further simple
imprisonment for 3 months.
He is further convicted for offence under Section 323
of the IPC and sentenced to suffer rigorous imprisonment for
1 year and to pay fine Rs.1000/-, in default, to suffer further
simple imprisonment for 1 month.
.....2/-
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He is also convicted for offence under Section 506 of
the IPC and sentenced to suffer rigorous imprisonment for 7
years and to pay fine Rs.5000/-, in default, to suffer further
simple imprisonment for 3 months.
He is also convicted for offence under Section 3
punishable under Section 4 of The Protection of Children from
Sexual Offences Act, 2012 (the POCSO Act) and sentenced to
suffer life imprisonment and to pay fine Rs.50,000/-, in
default, to suffer further simple imprisonment for 3 months.
3. Facts of the prosecution case necessary for disposal of
the appeal, are as under:
The victim has lodged a report against the accused
alleging that when she was proceeding on 26.8.2021, at about
6:00 pm, towards house of her grandmother to bring her
mother back, the accused came near "Kabrastan Masjid" on
the pretext of taking her to meet her father as her father met
with an accident. He took her to the Akola Bus Stand and,
thereafter, Barshitakli in an isolated building, which was
.....3/-
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under construction, and subjected her for forceful sexual
assault by beating her by means of "wire" and thereby
committed an offence. She was also threatened not to
disclose the said incident to anybody. While searching her,
her brother has seen her on Railway Track, Akola. After
seeing her brother, the accused fled away.
On the basis of the said report, the police have
registered the crime against the accused.
4. After registration of the crime, the Investigating
Officer carried out investigation and submitted chargesheet
against the accused.
5. Learned Judge of the trial court has framed charge
vide Exh.8 against the accused. He pleaded not guilty and
claimed to be tried.
6. In support of the prosecution case, the prosecution
has examined in all 9 witnesses, as follows:
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PW Names of Witnesses Exh.
Nos. Nos.
1 Ashiyabee Mohd.Afzal, mother of the victim 20
victim
4 Suraj Londhe, acted as a pancha on seizure 74
memos as well as spot panchanama
8 Sanjivani Pundage, Investigating Officer 103
9 Sajid Ansari, Headmaster 130.
7. In support of the defence, the prosecution has
examined 3 defence witnesses; DW1 Abdul Mahemood
Exh.136; DW2 Javedkhan Lalakhan Exh.140, and DW3 Sheikh
Juber Sheikh Karim Exh.141.
8. Besides the oral evidence, the prosecution placed
reliance on statement recorded under Section 164 of the CrPC
Exh.10, muddemal invoice challan Exh.13, report Exh.22, FIR
Exh.23, statement of the victim taken by the Child Welfare
Committee Exh.24, seizure memo of clothes of the accused
.....5/-
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Exh.75, seizure memo of clothes of the victim Exh.76, spot
panchanama Exh.77, seizure memo as to seizure of samples
Exh.79, seizure memo as to samples of the accused Exh.80,
medical certificate of injuries Exh.83, requisition to the
Medical Officer Exh.84, opinion of the Medical Officer Exh.85,
medical examination papers to determine the age of the
victim Exh.83, medical case record Exh.90, ossification reports
Exhs.91 and 92, Form-B certificate Exh.93, requisitions to
carrier Exhs.94 to 99, requisition to the Medical Officer
Exh.104, requisitions for calling panchas Exhs.106 and 107,
notice to panchas Exh.108, Log-Book Extract Exh.109,
requisition to the Medical Officer Exh.110, arrest memo
Exh.111, medical certificate of the accused Exh.113,
requisition to the Chemical Analyzer Exh.114, requisition to
the Municipal Commissioner for obtaining birth certificate of
the victim Exh.119, letter to the headmaster Exh.121, map of
the spot Exh.124, Chemical Analyzer's Report Exh.128, school
admission extracts Exhs.131 and 132, and school leaving
certificate Exh.133.
.....6/-
Judgment
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9. All the incriminating evidence is put to the accused
in order to obtain his explanation as to the evidence
appearing against him by recording his statement under
Section 313 of the CrPC. Defence of the accused is of false
implication as well as one sided love affair with the victim.
10. After recording the evidence and appreciating the
same, learned Judge of the trial court has held the accused
guilty and sentenced him as the aforesaid.
11. Being aggrieved and dissatisfied with the same, the
present appeal is preferred by the accused on the ground that
learned Judge of the trial court has not appreciated fact that
the age of the victim is not proved by the prosecution as well
as the entire evidence of the victim and other witnesses
nowhere establishes that the victim was "enticed" or "taken by
the accused from lawful guardianship of her father" and
subjected for forceful sexual assault. It is submitted by
learned counsel for the accused that while awarding the
punishment, learned Judge of the trial court has not
.....7/-
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considered Section 42 of the POCSO Act wherein an alternate
punishment is provided and held him guilty under the
provisions of the IPC and the POCSO Act. For all above these
reasons, the judgment impugned is liable to be quashed and
set aside.
12. Heard learned counsel for the accused and learned
Additional Public Prosecutor for the State. They have taken
us through the entire evidence on record and the judgment
impugned in the present appeal.
13. Learned counsel for the accused submitted that the
age of the victim is not proved by the prosecution, which is an
essential ingredient to offences under Sections 363 and 366 of
the IPC as well as under Section 4 of the POCSO Act. The
evidence of defence witnesses shows that after the incident,
immediately, marriage of the victim was performed with DW2
Javedkhan and DW1 Abdul Mahemood is witness who has
performed the said marriage. This fact itself is sufficient to
show that the victim has attended the age of majority and,
.....8/-
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therefore, her marriage was performed with DW2 Javedkhan.
He further submitted that as the victim was having one sided
love affair with the accused, she herself joined company of the
accused and subsequently, the false report was lodged against
the accused. He submitted that fact of sexual assault on her is
not corroborated by the medical evidence and, therefore, on
that count also, the judgment impugned in the appeal is liable
to quashed and set aside.
14. Per contra, learned Additional Public Prosecutor for
the State has strongly opposed the said contentions and
submitted that the medical evidence or injuries on the person
of the victim is not sine quo non to attract offence under
Section 376 of the IPC or under Section 4 of the POCSO Act.
Absence of mark of injuries on the person of the victim cannot
be adopted as a formula to disbelieve the version of the
victim. It depends on facts and circumstance of each case.
When the evidence of the victim inspires confidence and there
is no reason for her to implicate the accused falsely, her
evidence itself is sufficient to prove the guilt of the accused.
.....9/-
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Nothing has come on record to show that the victim has any
ulterior motive to falsely implicate the accused and, therefore,
independent corroboration to the evidence of the victim is not
required as it inspires the confidence.
15. Learned counsel appearing for the respective parties
have also taken us through the entire evidence adduced and
the entire record.
16. The accused is charged of offence under Section 363
of the IPC on an allegation that when the victim was
approaching to the house of her grandmother, the accused
restrained her and on a false pretext, that her father met with
an accident and she has to come along with him to see him,
took her to Barshitakli in an under construction building and
subjected her for forceful sexual assault and thereby
committed offences under Sections 363 and 366 of the IPC.
17. Before entering into the merits of the case, it is
necessary to refer the definition of "kidnapping" given under
Section 361 of the IPC (137(1)(b) of the BNS), which states
.....10/-
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that, whoever takes or entices any minor under sixteen years
of age if a male, or under eighteen years of age if a female, or
any person of unsound mind, out of the keeping of the lawful
guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation to the said Section states that, words
"lawful guardian" in this section include any person lawfully
entrusted with the care or custody of such minor or other
person.
18. To establish the charge under Section 363 of the IPC,
the prosecution mainly placed reliance on the evidence of
mother of the victim PW1, victim PW2, and brother of the
victim PW3 to prove the age of the victim as well as fact of
"kidnapping."
19. The evidence of mother of the victim PW1,
admittedly, not discloses the age of the victim. She has
nowhere stated that the age of the victim as well as her birth
.....11/-
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date. However, the victim has stated her age, at the time of
her deposition, as sixteen years. She has also narrated her
birth date as 6.8.2007. Recital of the FIR also shows that she
has narrated her age as fourteen years. Admittedly, she has
not stated her birth date in the FIR or the report. However,
during the investigation, the Investigating Officer has sent a
requisition to the Municipal Corporation for obtaining her
birth certificate. He has also issued a letter to the Municipal
Corporation Urdu Girls' Primary School, Akola to obtain the
school record to ascertain the birth date of the victim.
20. The evidence of Headmaster PW9 Sajid Ansari
serving with the Municipal Corporation Urdu Girls' Primary
School, Akola shows that a letter Exh.121 was received by the
school and in response to the said letter, he has issued extract
of Admission Register under his signature, which is at Exh.131.
He prepared the same on the basis of general register. As per
the school record, birth date of the victim is 6.8.2007 and she
took admission in 1st Std. in his school. He has also shown the
original register brought by him. The said school record was
.....12/-
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maintained in Urdu Language. A translation copy is placed on
record. He specifically stated that the extract filed on record is
correct and true copy of the original school record is
maintained in Urdu language. He further deposed that he
being the headmaster is custodian of the school record. At the
time of taking relevant entry in the register, he was not serving
as headmaster in the said school. The said entry was taken
the then headmaster of the school.
21. Though the victim has stated her birth date as
6.8.2007 during her chief-examination and though she was
cross examined at length, except denial that 6.8.2007 is not
her birth date, no other cross examination is carried out to
falsify her version as to the birth date.
22. Similarly, Headmaster PW9 Sajid Ansari serving with
the Municipal Corporation Urdu Girls' Primary School, Akola is
also cross examined. He admitted that the original record in
"Urdu Script" was not prepared by him. He has further
admitted that the birth date mentioned in the school record is
.....13/-
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on the basis of oral information given by parents of the
student.
23. Thus, the birth date of the victim is mentioned on the
basis of the information given by the mother of the victim
while admitting her in the school. Thus, it is clear that her age
is attempted to be proved by the prosecution on the basis of
the evidence of Headmaster PW9 Sajid Ansari.
24. Rule 12(3) of the Juvenile Justice (Care and
Protection of Children) Rules 2007 reads as under:
"12. Procedure to be followed in determination of
age.
(1).....
(2).....
(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall
be conducted by the Court or the Board or, as the
case may be, the Committee by seeking evidence by
obtaining-
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(a) (i)the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii)the date of birth certificate from the school
(other than a play school) first attended; and in
the absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion
will be sought from a duly constituted Medical
Board, which will declare the age of the
juvenile or child."
25. The Hon'ble Apex Court in the case of Jarnail Singh
vs. State of Haryana, reported in 2013 ALL MR (Cri) 2946
observed that, "even though Rule 12 is strictly applicable only
to determine the age of a child in conflict with law, we are of
the view that the aforesaid statutory provision should be the
basis for determining age, even for a child who is a victim of
crime. For, in our view, there is hardly any difference in so far
as the issue of minority is concerned, between a child in
conflict with law, and a child who is a victim of crime.
.....15/-
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Therefore, in our considered opinion, it would be just and
appropriate to apply Rule 12 of the 2007 Rules, to determine
the age of the prosecutrix. The manner of determining age
conclusively, has been expressed in sub-rule (3) of Rule 12
extracted above. Under the aforesaid provision, the age of a
child is ascertained, by adopting the first available basis, out of
a number of options postulated in Rule 12(3). If, in the scheme
of options under Rule 12(3), an option is expressed in a
preceding clause, it has overriding effect over an option
expressed in a subsequent clause. The highest rated option
available, would conclusively determine the age of a minor. In
the scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest rated option.
In case, the said certificate is available, no other evidence can
be relied upon. Only in the absence of the said certificate, Rule
12(3), envisages consideration of the date of birth entered, in
the school first attended by the child. In case such an entry of
date of birth is available, the date of birth depicted therein is
liable to be treated as final and conclusive, and no other
.....16/-
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material is to be relied upon. Only in the absence of such entry,
Rule 12(3) postulates reliance on a birth certificate issued by a
corporation or a municipal authority or a panchayat."
26. Thus, the evidence adduced by the prosecution, on
the basis of the evidence of Headmaster PW9 Sajid Ansari, is in
compliance with the provisions in view of Rule 12(3) Juvenile
Justice (Care and Protection of Children) Rules 2007 and the
evidence as to the age of the victim is not shattered.
27. To corroborate the age of the victim, the prosecution
has also adduced the evidence of Medical Officer PW6
Dr.Chaitanya Kulkarni. As per his evidence, Casualty
Department has received a requisition letter from the police for
age determination of the victim and, therefore, she was
referred to the Radiologist and then to the Dental Department
and, thereafter, to the Forensic Medicine Department. He has
received X-Ray requisition letter along with X-Ray Films, which
is at Exh.89. The X-Ray Films were in custody of hospital
authority and he also received a Dental OPD Paper and referral
.....17/-
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letter. On the basis of all these reports, he ascertained the age
of the victim was above fourteen years and below sixteen
years. Accordingly, he issued certificate Exh.92.
His cross examination shows that at the time of Dental
Examination, he was not present. He explained that, "persons
above fourteen years have their second molar erupted and the
time of eruption of third molar having long span from eighteen
years to forty years. In some cases, third molar does not erupt
throughout life." He further admitted that the other
developments of the girls depend upon diet, nutrition,
heredity, and climate. It further came in his cross examination
that ossification test is an accurate test. The opinion regarding
the age is not conclusively. However, he stated that the
opinion does not vary range of age.
28. Thus, as far as this opinion is concerned, which also
shows that the victim was more than fourteen years, but less
than 16 years of age, this medical evidence also corroborates
.....18/-
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fact that she was below eighteen years of age at the time of the
incident.
29. Second ingredient to be proved to prove the offence
of "kidnapping" is, as to person was "taken" or "enticed"
without consent of such guardian.
30. The evidence of the mother of the victim PW1 shows
that on the day of the incident, she along with two sons and
another daughter, had been to her mother-in-law's house and
the victim was alone at home. The victim started proceeding
to her grandmother's house and on that way the accused met
her and disclosed to her that her father met with an accident
and she should accompany him and on the false pretext, he
took her to Barshitakli and subjected her for forceful sexual
assault. Her evidence further shows that the accused asked
her to marry with him, to which she refused and, therefore,
she was assaulted by the accused and there were injury marks
on her person due to the assault. They noticed that the victim
is not at the house and also has not approached to them at her
.....19/-
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grandmother's house and, therefore, they searched her, but
they could not find her. On 27.8.2021, at about 2:30 pm, the
accused brought the victim to Akola and they were found on
Railway Track and witnessed by her son and, thereafter, the
victim was brought to the home. After seeing brother of the
victim, the accused fled away from the spot. Her evidence
further shows that she accompanied the victim during her
medical examination as well as when her statement was
recorded by Medical Officer PW6 Dr.Chaitanya Kulkarni.
Her cross examination shows that the victim married
prior to three months of her deposition. She denied that the
victim was having one sided love affair with the accused.
31. The victim has also testified that on 26.8.2021, at
about 6:00 pm to 7:00 pm, she was proceeding to her
grandmother's house. On the way, she met with an accused
who told her that her father has met with an accident and she
should accompany him. Thereupon, he took her to Barshitakli
by auto-rickshaw and took her to an isolated place in a
.....20/-
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building which was under construction. He assaulted her by
means of wire and forcibly subjected her for sexual assault.
On the next date, he brought her to Akola Railway Station
whereat her brother has seen them. After seeing the brother of
the victim, he fled away from the spot. Thereafter, when she
came home, she was in a scared condition. She lodged the
report on 28.8.2021, which is at Exh.22 and the FIR is at
Exh.23. She was also referred for medical examination. Her
medical examination was carried out. Her statement was
recorded before the Magistrate.
Her cross examination shows that she was not knowing
the accused prior to the incident. However, she was aware
that he was residing in the said locality.
32. The entire cross examination of the victim nowhere
shows that it was the victim who joined the company of the
accused voluntarily and, thereafter, the accused took her. The
cross examination was also taken to show that she was having
an opportunity to inform the police. However, she has
.....21/-
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specifically stated that no police patrolling vehicle arrived at
the spot of the incident. She has also stated that the persons,
on the next day, present at the spot, have seen them. She
specifically stated that she is not aware where police station is
situated at Barshitakli. She did not see any crowd at Akola Bus
Stand.
Thus, the entire attempt, that she was having an
opportunity to disclose the incident, is denied by her during
the cross examination.
33. The evidence of the brother of the victim PW3 also
shows that when he was searching his sister, on the next day,
he has seen her as well as the accused at the Railway Track,
Akola and after seeing him, the accused ran away.
Despite his cross examination, nothing is brought on
record to show that the victim has joined the company of the
accused voluntarily.
.....22/-
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34. These all witnesses, though are cross examined,
nothing incriminating came on record to shatter their evidence
as far as "taking" or "enticing" is concerned.
35. "Taking" or "enticing" away a minor out of keeping of
lawful guardian, is an essential ingredient of the offence of
"kidnapping."
36. The evidence on record sufficiently establishes that
the accused solicited the victim to come along with him on the
pretext that her father has met with an accident. The victim
categorically stated that though she was not acquainted with
the accused, she was knowing him as he was residing in the
same locality, which may be the reason for her to trust his
words and to go along with him.
37. The ingredients of "taking" or "enticing" are dealt
with by the Hon'ble Apex Court in the case of S.Varadrajan vs.
State of Madras, reported in 1965 AIR 942 wherein it has been
held that, "there is a distinction between "taking" and allowing
a minor to accompany a person. The two expressions are not
.....23/-
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synonymous though we would like to guard ourselves from
laying down that in no conceivable circumstance can the two
be regarded as meaning the same thing for the purposes of
Section 361 of the Indian Penal Code."
It has been further held that, "taking" or "enticing"
away a minor out of the keeping of a lawful guardian is an
essential ingredient of the offence of kidnapping.
38. Thus, the evidence on record sufficiently shows that
the victim was taken by the accused without knowledge of her
parents and, therefore, the prosecution has established the
offences under Sections 363 and 366 of the IPC.
39. Now, let us examine the evidence of the victim and
whether corroboration to the evidence of the victim is
required.
40. The victim has categorically narrated about the
incident that the accused met her, when she was proceeding to
her grandmother's house, and on the pretext of taking her
.....24/-
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towards her father, as her father met with an accident, took
her to Barshitakli in an isolated place in a building, which was
under construction, and subjected her for forceful sexual
assault. She specifically stated that throughout the night, she
was subjected for forceful sexual assault by the accused by
assaulting her.
During her cross examination, the accused has come
with a case that she was having one sided love affair with the
accused, to which she has denied.
Another attempt was made to show that though she
was taken at the Bus Stand by the accused, she has not
disclosed the incident to anybody. Admittedly, she has stated
that while she was leaving the spot of the incident, persons
present there saw her. Admittedly, the victim was fourteen
years girl. She was threatened by the accused and at the
relevant time, except the accused, there was no person along
with her to whom she was having trust and, therefore, she has
not disclosed anything to anybody. She has specifically stated
.....25/-
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that she was threatened and also assaulted by the accused on
earlier day and, therefore, her apprehension of assault again
by the accused could be a reason for her not to disclose the
incident to anybody. She has specifically stated that she did
not see any police station between Bus Stand and Railway
Track, Akola. She was not aware whether there was any police
station at Barshitakli.
Thus, she has sufficiently explained what was reason
for her not to approach the police station and not to disclose
the incident to anybody.
41. To corroborate the version of the victim, her mother
PW1 and brother PW3 were examined. They disclosed about
the disclosure by the victim after the incident when she was
brought by her brother at the house.
42. The evidence of Medical Officer PW5 Dr.Shubham
Sapkal is also material, which shows that the victim has
narrated the history to him when she was referred for medical
examination. He examined the victim in presence of
.....26/-
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Gynaecologist Dr.Shahana. On medical examination, he found
"blunt trauma' on her right fore-arm. He has collected forensic
samples of the victim; sealed the same; and handed it over to
the concerned police official. The possibility of sexual assault
and criminal force was there. Accordingly, he prepared
medical report, which is at Exh.83. He has also opined that
injury observed by him may be caused by an electric wire.
During the cross examination, he has stated that at the
time of examination, a single injury is found on the person of
the victim. He further stated that the "blunt trauma" is an
injury over body caused by any object which will not produce
any injury like laceration of skin or bleeding.
During the cross examination, no any other suggestion
is given to show that there was any other reason for causing
such type of injury. He has admitted that if a wire is used,
such kind of injury may be inflicted. He has further stated that
he cannot make a statement that only this wire can cause such
kind of injury.
.....27/-
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43. Thus, the oral evidence of the victim as to assault by
wire and injury on her person is corroborated by Medical
Officer PW5 Dr.Shubham Sapkal also.
44. The evidence of the brother of the victim PW3 shows
that he has witnessed the victim in the company of the accused
at Railway Track, Akola and, thereafter, he brought the victim
at house and the accused fled away from the spot.
45. It is not defence of the accused that out of love affair,
the victim joined his company. On the contrary, a suggestion
was given that it was she who was having one sided love affair
with the accused. If that is so, there is no reason for the
accused to accompany her at Barshitakli or even at the Railway
Track.
46. On appreciation of the evidence, question is, whether
testimony of the victim can be relied upon for basing the
conviction.
.....28/-
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47. The Hon'ble Apex Court, in the case of Radheshyam
vs. State of Rajasthan, reported in MANU/SC/0135/2014, has
laid down law regarding appreciation of evidence of child
witness. Paragraph No.12, which reads as under:
"12. In Panchhi & Ors. v. State of U.P. and ors,
reported in MANU/SC/05530/998, after reiterating
the same principles, this Court observed that the
evidence of a child witness must be evaluated more
carefully and with greater circumspection because a
child is susceptible to be swayed by what others tell
him and, thus, a child witness is an easy pray to
tutoring. This Court further observed that the courts
have held that the evidence of a child witness must
find adequate corroboration before it is relied upon.
But, it is more a rule of practical wisdom than of law.
It is not necessary to refer to other judgments cited
by learned counsel because they reiterate the same
principles. The conclusion which can be deduced
from the relevant pronouncements of this Court is
that the evidence of a child witness must be
subjected to close scrutiny to rule out the possibility
of tutoring. It can be relied upon if the court finds
that the child witness has sufficient intelligence and
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understanding of the obligation of an oath. As a
matter of caution, the court must find adequate
corroboration to the child witness's evidence. If
found, reliable and truthful and corroborated by
other evidence on record, it can be accepted without
hesitation. We will scrutinize PW-2 Banwari's
evidence in light of the above principles."
48. Thus, as far as corroboration is concerned, the
evidence of PW4 Suraj Londhe, who acted as a pancha, also
shows that the victim has shown the spot of the incident,
which was under construction building. In their presence, the
police inspected it and seized a blue wire from the spot of the
incident.
Thus, the evidence of the pancha witness also shows
that the said wire was seized from the spot of the incident.
This pancha witness has not cross examined on the fact of
finding of the wire at the spot of the incident. Thus, finding of
the wire at the spot of the incident remained unchallenged.
.....30/-
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49. Similarly, the evidence of Investigating Officer PW8
Sanjivani Pundage also shows that it was the victim who has
shown the spot of the incident to him. At the spot of the
incident, in presence of panchas, he has seized blue colour
wire and drawn the panchanama. The said wire was referred
to Medical Officer PW5 Dr.Shubham Sapkal for obtaining an
opinion and PW5 Dr.Shubham Sapkal has given his opinion
that the injury on the person of the victim is possible by the
said wire. The nature of injury was abrasion with contusion
on right fore-arm.
50. Thus, the evidence of the victim, that she was taken
to an under construction building and the accused asked her to
marry with him to which she refused and on that the accused
assaulted her by means of wire due to which she sustained the
injury on her fore-arm, is corroborated by the fact that the
wire was found at the spot of the incident and the medical
opinion given by the Medical Officer is that the injury is
possible by the said spot.
.....31/-
Judgment
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The finding of the wire at the spot is not challenged by
the investigating agency.
51. It is not the defence of the accused that the victim is
a tutored witness. Even, there is no suggestion that there is
any reason for her to falsely implicate him due to any enmity.
52. As a rule of prudence, let us find out whether the
evidence of the victim is corroborated by other witnesses.
53. As already observed, admittedly, at the time of the
incident, she was fourteen years girl and her age is proved by
the prosecution. The victim has disclosed the incident as soon
as she met her brother at the Railway Track, Akola. Even, if it
is accepted that she was having one sided love affair with the
accused, there is no reason for the accused to accompany her
and took her to Barshitakli, which is far away from Akola.
Even, if the evidence of the prosecution is accepted, in the
light of the defence that she was having one sided love affair
with the accused, there is also no reason for the accused to
accompany her when he was not having any feelings for her.
.....32/-
Judgment
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Moreover, her consent is not relevant. The evidence as to her
age is not only corroborated by ossification test but also by the
evidence of Headmaster of the School PW9 Sajid Ansari and
nothing is on record to falsify the version that the birth date
narrated at the time of admitting her in the school was not
genuine one.
54. Thus, considering the entire evidence on record,
admittedly, it shows that the victim was below eighteen years
of age. She was taken by the accused, when she was
approaching her grandmother's house, on a false pretext and,
thereafter, subjected her forceful sexual assault.
55. The main contention of the accused, that after the
said incident, within a short span of time, the victim performed
marriage with DW2 Javedkhan Lalakhan and to establish the
said fact, the defence relied upon the evidence of DW1 Abdul
Mahemood working as teacher at 'Mothersa," whose evidence
shows that on 22.1.2022 the marriage of DW2 Javedkhan and
the victim was performed by him at the "Mothersa." The
.....33/-
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victim has told her age as nineteen years and Javedkhan has
told his age as twenty one years. He has proved "Nikahnama"
Exh.137. His cross examination shows that he has no age
proof of bride and bridegroom to show that on the day of
"Nikahnama" they were major. He has not taken any
documents to show that on the day of the "Nikahnama", they
both were major. He has further admitted that "Mothersa" is
place of imparting education to children.
56. In the light of this cross examination, the act of DW1
Abdul Mahemood of performing the marriage itself is illegal.
Moreover, he has performed the marriage without obtaining
any documents to show that the victim was major on the day
of the marriage. Whereas, the victim has denied the said
marriage with said DW2 Javedkhan.
DW2 Javedkhan has also stated that his marriage was
performed with the victim. He stated that on 20th, he eloped
with the victim and on 22nd, his marriage was performed. He
has also admitted that except Aadhar Card, he has no other
.....34/-
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documents to show that the victim was major on the day of the
marriage.
DW3 Sheikh Juber, who is resident of the same locality
where the victim is residing, stated that he was present at the
time of "Nikah".
Even, accepting this incident as a proof, learned
defence counsel also could not show how this evidence is
helpful to the accused to prove that the victim was major and,
therefore, the marriage was performed. The evidence of all
these witnesses shows that they do not have any documents to
show that the victim was major on the day of the marriage
with Javedkhan. On the contrary, the evidence of prosecution
witnesses, beyond reasonable doubt, proves that the victim
was minor at the time of the incident and she was subjected
for the forceful sexual assault by the accused.
57. Another contention of learned counsel for the
accused was that, the evidence of the victim is not
.....35/-
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corroborated as no single injury was found on the person of
the victim.
58. Admittedly, the victim was taken by the accused on
26.8.2021. On the next day, i.e. 27.8.2021, she was found by
her brother. The FIR was lodged on 28.8.2021 and, thereafter,
she was referred for medical examination. Thus, admittedly,
her medical examination was not carried out immediately after
the incident.
59. It is now well settled that absence of injury on the
person of the victim does not lead to an inference that the
accused has not committed forcible sexual intercourse on the
victim. Absence of mark of injuries on the person of the victim
cannot be adopted as formula to disbelieve the version of the
victim. It will all depend upon the facts and circumstances of
each case. Absence of injuries on the person of the prosecutrix
is not necessarily an evidence of falsity of the allegation or an
evidence of the consent on her part. The absence of visible
marks of injuries on the person of the prosecutrix on the date
.....36/-
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of her medical examination would not necessarily mean that
she has not suffered any injury or that she has offered no
resistance at the time of commission of the offence.
60. In State of Tamil Nadu vs. Ravi @ Nehru, reported in
2006 (10) SCC 534, the Hon'ble Apex Court ruled that "rape"
is crime and not a medical condition. "Rape" is a legal term
and not a diagnosis to be made by the medical officer treating
the victim. The only statement that can be made by the
medical officer is that there is evidence of recent sexual
activity. Whether the "rape" has occurred or not is a legal
conclusion, not a medical one. That is the reason why, even the
opinion of the doctor that there was no evidence of sexual
intercourse or rape and held to be not sufficient to disbelieve
the accusation of the "rape" by victim.
61. In the light of the above discussion, in the present
case, allegations made by the victim are against the accused.
No reason has come forward for false implication. Though it
was suggested that the victim was having one sided love affair
.....37/-
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with the accused, the evidence is contrary which shows that it
was the accused who took the victim on the pretext that her
father met with an accident. The said fact is further
corroborated by the victim's mother PW1 and brother PW3.
There is no other reason brought on record showing any ill-
intention for the victim and her parents to implicate the
accused. Even there is no case that there was any type of
enmity between the victim and the accused and, therefore,
there is a reason for the victim to implicate him falsely.
62. The defence has not disputed the fact that the victim
was along with the accused. The only defence taken is that, as
she was having one sided love affair with the accused, she was
along with the accused. Whereas, the victim categorically
stated that she was taken by the accused on the pretext that
her father met with an accident and she should accompany
him and, thereafter, she was taken to an isolated place in a
building, which was under construction, and subjected her for
forceful sexual assault. At the relevant time, the victim was
only fourteen years of age. Her consent, admittedly, was not
.....38/-
Judgment
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relevant. She was subjected for the sexual assault. Nothing is
on record to show that the victim has any alternative motive to
implicate the accused in a false case. The accused, who is
twenty one years old, is in authoritative position. He was
resident of the same locality. The victim trusted him as he
disclosed her that her father met with an accident and,
therefore, he was under obligation to protect her. However, he
betrayed the trust and subjected her for the forceful sexual
assault. The evidence adduced by the defence by examining
the defence witnesses to state that after the incident, within a
short span of time, she married and, therefore, inference is to
be drawn that she has attended the age of majority, is not
helpful to the defence. Even accepting that the victim is
married with one Javedkhan, it would not be sufficient to
show that she has attended the age of majority when all three
defence witnesses have admitted that they have no
documentary evidence to show that the victim has attended
the age of majority.
.....39/-
Judgment
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63. The basic principle of criminal jurisprudence is that,
the prosecution must establish guilt of the accused by cogent
and reliable evidence and the burden always rests upon the
prosecution to prove guilt beyond all reasonable doubts.
64. The same principle is applicable to cases of criminal
offences against persons of tender age. The presumption
under Section 29 of the POCSO Act is not rebutted by the
accused.
65. After applying all tests, nothing is on record to show
that there was any ulterior motive to implicate the accused
falsely. The evidence of the victim is inspiring confidence and
also corroborated by other evidence.
66. In the light of the foregoing discussion, no infirmity
can be found in the judgment impugned in the appeal.
However, it is apparent that learned Judge of the trial court
has convicted the accused under the provisions of the IPC i.e.
under Section 376(3) of the IPC and under Section 4 of the
POCSO Act without considering Section 42 of the POCSO.
.....40/-
Judgment
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67. Section 42 of the POCSO Act deal with alternative
punishment, which reads as under:
"42. Alternate punishment.-- Where an act or
omission constitutes an offence punishable under this
Act and also under sections 166A, 354A, 354B, 354C,
354D, 370, 370A, 375, 376, [376A, 376AB, 376B,
376C, 376D, 376DA, 376DB], [376E, section 509 of
the Indian Penal Code or section 67B of the
Information Technology Act, 2000 (21 of 2000)],
then, notwithstanding anything contained in any law
for the time being in force, the offender found guilty
of such offence shall be liable to punishment only
under this Act or under the Indian Penal Code as
provides for punishment which is greater in degree."
68. Under Section 376 of the IPC, minimum punishment
provided is ten years, but maximum punishment can be
imprisonment for life and also fine. Expression, "but which
may extend to imprisonment for life" occurs under Section 376
of the IPC after a "coma". It, therefore, has to be held that this
expression is disjunctive and while so, while awarding
punishment and that too, the maximum punishment, learned
Judge is required to pause, weigh the aggravating as well as
mitigating circumstances, think and then impose punishment.
.....41/-
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69. By now, it is well settled that maximum punishment
should not be awarded as a matter of course.
70. In view wide discretion vested with the courts
through judicial decisions, it has been held that punishment
should be imposed on an accused after weighing mitigating as
well as aggravating circumstances.
71. In Bavo @ Manubhai Ambalal Thakore vs. State of
Gujarat, reported in AIR 2012 SC 979, the accused is held
guilty under Section 376(2)(f) of the IPC for committing rape
on seven years old girl and was awarded life imprisonment by
the trial judge and confirmed by the High Court. The Hon'ble
Apex Court observed that, "considering the fact that the victim,
in the case on hand, was aged about 7 years on the date of the
incident and the accused was in the age of 18/19 years and
also of the fact that the incident occurred nearly 10 years ago,
the award of life imprisonment which is maximum prescribed
is not warranted and also in view of the mandate of Section
376(2)(f) IPC, we feel that the ends of justice would be met by
.....42/-
Judgment
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imposing RI for 10 years. Learned counsel appearing for the
appellant informed this Court that the appellant had already
served nearly 10 years."
72. The only question requires consideration is that,
whether the conviction of the accused ought to have been
recorded under the IPC or the Special Law or both.
73. Section 42, reproduced above, and 42-A of the
POCSO Act would be relevant to adjudicate this issue. Section
42A of the POCSO Act is reproduced as under:
"42A. Act not in derogation of any other law.-- The
provisions of this Act shall be in addition to and
not in derogation of the provisions of any other law
for the time being in force and, in case of any
inconsistency, the provisions of this Act shall have
overriding effect on the provisions of any such law to
the extent of the inconsistency."
74. A bare perusal of Section 42A of the POCSO Act
makes it clear that when the alleged acts or omission
constitute offence both under the IPC and the POCSO Act, the
.....43/-
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law which prescribes punishment of greater degree would
have to be applied.
75. Section 42 and Section 42A of the POCSO Act are in
completely different spheres. Section 42 specifically deals with
the quantum of punishment mandating that when a particular
act or omission constitutes an offence, both under the POCSO
Act and also under the provisions of the IPC or the Information
Technology Act, 2000 then, the offender found guilty of the
offence would be liable to punishment under the POCSO Act
or under the provisions of the IPC whichever provides a
punishment of a greater degree.
76. Thus, under these provisions, the courts have been
given discretion to award punishment either under the POCSO
Act or under the provisions of the IPC. However, considering
Section 42 of the POCSO Act, it makes clear that when the
alleged acts or omissions constitute offence both under the IPC
and the POCSO Act, the law which prescribes the punishment
of greater degree would have to be applied and, therefore, the
.....44/-
Judgment
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conviction of the accused for offence under Section 376(3) of
the IPC is justified. However, the conviction cannot be justified
under the provisions of the IPC and the POCSO Act. Since
Sections of the IPC provide for higher sentence as compared to
Section 3 or 4 of the POCSO Act, learned Judge of the trial
court ought to have convicted the accused in terms of Section
42 of the POCSO Act. Admittedly, minimum punishment
provided under Section 376 of the IPC is greater than the
minimum punishment provided under Section 4 of the POCSO
Act. Section 376 of the IPC deals with punishment for "rape,"
which is reproduced as under:
"376. Punishment for rape.
(1) Whoever, except in the cases provided for in sub-
section (2), commits rape, shall be punished with
rigorous 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--
(a) being a police officer, commits rape,
(i) within the limits of the police station to
which such police officer is appointed; or
.....45/-
Judgment
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(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody
or in the custody of a police officer subordinate
to such police officer; or
(b) being a public servant, commits rape on a
woman in such public servant's custody or in the
custody of a public servant subordinate to such
public servant; or
(c) being a member of the armed forces
deployed in an area by the Central or a State
Government commits rape in such area; or
(d) being on the management or on the staff of a
jail, remand home or other place of custody
established by or under any law for the time
being in force or of a women's or children's
institution, commits rape on any inmate of such
jail, remand home, place or institution; or
(e) being on the management or on the staff of a
hospital, commits rape on a woman in that
hospital; or
(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; or
(g) commits rape during communal or sectarian
violence; or
.....46/-
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(h) commits rape on a woman knowing her to
be pregnant; or
(i) commits rape, on a woman incapable of
giving consent; or
(j) being in a position of control or dominance
over a woman, commits rape on such woman; or
(k) commits rape on a woman suffering from
mental or physical disability; or
(l) while committing rape causes grievous bodily
harm or maims or disfigures or endangers the
life of a woman; or
(m) 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.
(3) Whoever, commits rape on a woman under
sixteen years of age 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 that person's
natural life, and shall also be liable to fine.
Provided that such fine shall be just and reasonable
.....47/-
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to meet the medical expenses and rehablitation of
the victim.
Provided further that any fine imposed under this
sub-section shall be paid to the victim.
Explanations
(1) For the purposes of sub-section 2
(a) "armed forces" means the naval, military and air
forces and includes any member of the Armed Forces
constituted under any Law for the time being in
force, including the paramilitary forces and any
auxiliary forces that are under the control of the
Central Government, or the State Government;
(b) "hospital" means the precincts of the hospital
and includes the precincts of any institution for the
reception and treatment of persons during
convalescence or of persons requiring medical
attention or rehabilitation;
(c) "police officer" shall have the same meaning as
assigned to the expression "police" under the Police
Act, 1861;
(d) "women's or children's institution" means an
institution, whether called an orphanage or a home
for neglected women or children or a widow's home
or an institution called by any other name, which is
established and maintained for the reception and
care of women or children."
.....48/-
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77. Thus, under this provision, the courts have been
given discretion to award punishment of sentence of
minimum ten years or imprisonment for life where the
sentence awarded in the discretion of the courts is for life.
The same shall be the imprisonment for the remainder of the
person's natural life. Hence, there is no mandate of law that
under these provisions, the convict must be awarded life
imprisonment.
78. The principle of proportion between crime and
punishment is a principle of just desert that serves as the
foundation of every criminal sentence, that is justifiable. As a
principle of criminal justice it is hardly less familiar or less
important than the principle that only the guilty ought to be
punished. The criminal law adheres in general to the principle
of proportionality in prescribing liability according to the
culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the judge in arriving at a
sentence in each cases. The theory behind awarding the
sentence is that wrong doer is to be deterred from committing
.....49/-
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a similar crime. Sometimes, the sentence is awarded looking
to the desirability of keeping the accused out of circulation i.e.
the preventive theory and sometimes the reformative theory or
the retributive theory is to be applied.
79. Thus, the measure of punishment in a given case
must depend upon the nature of the crime, the conduct of the
criminal and the defenceless and unprotected state of the
victim. Imposition of appropriate punishment is the manner in
which the courts respond to the society's cry for justice against
the criminals. Justice demands that courts should impose
punishment fitting to the crime. The courts must not only
keep in view the rights of the criminal but also the rights of the
victim of crime and the society at large while considering
imposition of appropriate punishment. Showing undue
sympathy and imposing inadequate sentence would do more
harm to the justice system to undermine the public confidence
in the efficacy of law and society could not long endure under
serious threats. If the courts do not protect the victim, the
victim will lose the faith in the judicial system and, therefore,
.....50/-
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awarding lesser punishment when the offence is proved, would
affront to the society. Therefore, it is the duty of the every
court to award proper sentence having regard to the nature of
the offence and the manner in which it was executed or
committed and the circumstances of the offender. The object
of sentencing to see that the crime does not go unpunished
and the victim of the crime as also the society have the
satisfaction that the justice has been done to it.
80. While considering the case involving the offences
under the POCSO Act as well as under the provisions of the
IPC, i.e. Section 376 of the IPC and the punishment in view of
Section 42 of the POCSO Act, which states that the law which
prescribes the punishment of greater degree would have to be
applied. The penal code prescribes the maximum punishment
for "rape" as imprisonment for ten years which may extend to
life. Thus, legislative's intent is that in extreme cases of "rape"
the sentence to be imposed should be of imprisonment for life.
Obviously, in cases less than the extreme, the sentence should
be less. What would be instances of extreme cases of "rape";
.....51/-
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first and foremost would be the acts of brutality which may
accompany a "rape".
Second would the "trauma" inflicted other than the
"trauma" of "rape", e.g. where the "rape victim" is beaten and
threatened with death etc...
Third would be, whether the offender is in a
dominating position and breaches the confidence of the victim,
e.g. in near relation of the victim being the offender.
81. In this background, considering the circumstances
under which the alleged incident has taken place, the tender
age of the accused at the time of incident and the case would
not cover under the extreme circumstances, we feel that the
ends of justice would be served by reducing the sentence of life
imprisonment awarded by learned Judge of the trial court to
the accused for offence under Section 376(3) of the IPC and to
a term of ten years.
.....52/-
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Similarly, maximum punishment awarded, for offences
under Sections 363, 366, and 506 of the IPC, is without
assigning any reasons. Therefore, the said punishment is also
required to be reduced.
82. In view of the above, we, therefore, dispose of the
appeal by modifying the sentence as per order below:
ORDER
(1) The criminal appeal is partly allowed.
(2) The judgment and order of conviction and sentence dated
20.10.2022 passed by learned Extra Joint District Judge and
Additional Sessions Judge, Akola in Special (POCSO) Case
No.133/2021 is hereby modified.
(3) The accused is convicted for offence under Section 363 of
the IPC and sentenced to suffer rigorous imprisonment for 5
years and to pay fine Rs.5000/-, in default, to suffer further
simple imprisonment for 3 months.
.....53/-
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(4) The accused is convicted for offence under Section 366 of
the IPC and sentenced to suffer rigorous imprisonment for 5
years and to pay fine Rs.5000/-, in default, to suffer further
simple imprisonment for 3 months.
(5) The accused is convicted for offence under Section 376(1)
of the IPC and sentenced to suffer rigorous imprisonment for
10 years and to pay fine Rs.50,000/-, in default, to suffer
further simple imprisonment for 3 months.
(6) The accused is convicted for offence under Section 323 of
the IPC and sentenced to suffer rigorous imprisonment for 1
year and to pay fine Rs.1000/-, in default, to suffer further
simple imprisonment for 1 month.
(7) The accused is convicted for offence under Section 506 of
the IPC and sentenced to suffer rigorous imprisonment for 2
years and to pay fine Rs.5000/-, in default, to suffer further
simple imprisonment for 3 months.
.....54/-
Judgment
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(8) In view of Section 42 of the POCSO Act, no separate
sentence is required for offences under Sections 3 and 4 of the
said Act.
(9) All the sentences shall run concurrently.
(10) As the accused is in jail since 28.8.2021, set-off under
Section 428 of the CrPC be given to him.
(11) Muddemal property being worthless be destroyed after
the appeal period is over.
Appeal stands disposed of.
JUDGE JUDGE
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge .....55/-
Date: 08/05/2026 10:30:46
