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Judgment
G. A. Sanap, J
In this appeal, challenge is to the judgment and order dated 19.03.2020, passed by the learned Sessions Judge, Amravati, whereby the learned Judge convicted the appellant for the offences punishable under Sections 376-AB, 376(2)(i), 354 of the Indian Penal Code and under Sections 4 and 10 of the Protection of the Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for short). He is sentenced to suffer rigorous imprisonment for twenty years and to pay fine of Rs.5,000/- and in default to suffer RI for six months for the offence punishable under Section 376-AB of the IPC. No separate sentence is awarded for the offence punishable under Section 376(2)(i) and 354 of the IPC and under Sections 4 and 10 of the POCSO Act.
BACKGROUND FACTS :-
The informant is the mother of the victim girl. The prosecution case, which can be unfolded from the report (Exh.16) and other materials is that the victim on the date of the incident i.e. 22.08.2019, was three years old. The informant is resident of Kalamjapur, Tah. Chandur Rly., Dist. Amravati. On 22.08.2019 at about 11.00 a.m., she had returned from her mother’s house. She was waiting at Chandur Railway bus stand. The victim and her eight month old son were with her. At that time, she saw the appellant proceeding on his motorcycle. The informant called him. On an inquiry by the informant, the appellant told that he was going to his agricultural field. He was having a sickle for doing work in the field. The informant requested him to search for her husband. The appellant agreed to do the same and told her to wait near the shop of Gopal Florist. When this dialog was on between the informant and the appellant, the victim sat on the motorcycle of the appellant. The informant was reluctant to allow her daughter to accompany the appellant. However, the appellant told her that he would return back after taking search of her husband. The victim, therefore, accompanied the appellant on motorcycle. The informant then went near the shop of Gopal Florist. Her brother-in-law was there. The appellant left the spot with her daughter to search for her husband. After half an hour, the husband of the informant came there. On inquiry by the husband, the informant told that the victim had gone with the appellant to search him. The husband thereafter went to search the appellant, but he could not find the appellant and the victim. He, therefore, came back to the informant.
It is stated that at about 12.00 noon, the appellant returned along with the victim. The victim was crying. Her forehead, hands and legs were smeared with dust. She had sustained injuries on her forehead. On inquiry by the informant with the victim, she told her that “dada ni padle, dada ni marle”. On inquiry with the appellant by the informant, he told that his motorcycle slipped and they fell down. The informant believed the appellant and went home. However, she noticed that the knickers of the victim had come out of her one leg. It is stated that at about 1.30 p.m., one boy by name Saurabh Bhimrao Sirsam came to her house and disclosed that on 22.08.2019 at about 11.30 a.m., he saw that in the field, the appellant had removed the knickers of her daughter and slept on her. He told that the victim girl was crying. He, therefore, went near the appellant and rescued the victim from the appellant. The appellant/accused showed sickle to him and therefore, he left the said place. It is stated that after this disclosure by Saurabh, the informant realized that the appellant has committed sexual assault on the victim girl and therefore, she went to Chandur Railway police station and lodged the report.
On the basis of the report (Exh.16), a crime bearing No. 172/2019 was registered against the appellant. PW6 carried out the investigation. PW6 visited the spot and drew the spot panchanama (Exh.35). PW6 referred the victim for medical examination. The clothes of the victim as well as the clothes of the appellant/accused were seized under panchanamas (Exh.32 and 33). The appellant was arrested. He was also referred for medical examination. The Investigating Officer recorded the statements of the independent witnesses. After completion of the investigation, PW6 filed the charge-sheet against the appellant in the Court of law.
Learned Sessions Judge framed the charge (Exh.3) and the additional charge (Exh.59). The appellant pleaded not guilty. His defence is of false implication at the instance of Rushikesh (PW2) and Saurabh (PW3). It was the contention of the appellant that PW2 Rushikesh Shelokar had committed sexual assault on her sister. He was beaten by him. He had threatened to report the matter to the police and therefore, Rushikesh and Saurabh cooked up a story and provided wrong information to the mother of the victim. The prosecution, in order to bring home the guilt of the appellant, examined six witnesses. DW1 examined by the appellant is his sister. Learned Judge, on consideration of the evidence, convicted and sentenced the appellant as above. The appellant is, therefore, before this Court in appeal.
I have heard Mr. R. M. Daga, learned advocate for the appellant and Mr. Ganesh Umale, learned Additional Public Prosecutor for the respondent/State. Perused the record and proceedings.
Learned advocate for the appellant submitted that the evidence of PW1, 2, 3 and 5 does not inspire confidence. They have narrated before the Court a concocted story. Learned advocate tried to demonstrate this fact by taking me through the evidence of the witnesses. Learned advocate submitted that the statement of the victim girl was recorded by a woman police officer. The said statement is part of the record. It does not support the case of the prosecution with regard to the penetrative sexual assault. Learned advocate submitted that PW1, the mother of the victim girl, was not an eye-witness to the incident. Her evidence is hearsay evidence. It is pointed out that even the girl did not tell PW1 that the appellant committed sexual intercourse or bad act with her. It is submitted that on an inquiry, the victim girl told her that the appellant beat her. She also stated that she fell down. Learned advocate submitted that the evidence of PW2 and PW3 is highly unbelievable. They have stated that when they saw the appellant indulging in the alleged incident, they questioned him and separated him from the victim girl. According to the learned advocate, they have stated that they narrated the incident to one Corporator by name Bacchu Wanare and from his house they went to the police station and reported the matter to the police. It is pointed out that the police officer has categorically stated that such matter was not reported to the police. Learned advocate submitted that the evidence of PW2 and PW3 is highly unbelievable and therefore, reliance cannot be placed on their evidence. As far as the evidence of the Medical Officer (PW4) is concerned, learned advocate submitted that it is not sufficient to corroborate the case of the prosecution with regard to the penetrative sexual assault on the victim by the appellant. Learned advocate submitted that the evidence of the Medical Officer (PW4), even if considered as it is, would show that the victim girl was not subjected to penetrative sexual assault by the appellant. Learned advocate in the alternative submitted that the evidence of the Medical Officer, at the most, may be sufficient to conclude that it was a case of an attempt to commit rape or sexual assault, as defined under Section 7 of the POCSO Act. Learned advocate submitted that the medical examination report of the appellant (Exh.53) is not sufficient to conclude that the appellant on the given date had indulged in penetrative sexual assault. Learned advocate submitted that the Investigating Officer in his evidence has categorically stated that his investigation revealed that the appellant slept over the victim girl and committed an offence. The requisition to the Medical Officer for examination of the appellant is at Exh.42, wherein he has stated that the appellant had attempted to commit rape. Learned advocate submitted that the learned Judge has failed to properly appreciate the evidence and came to a wrong conclusion that the offence proved was penetrative sexual assault.
Learned Additional Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge. Learned APP submitted that the evidence of the mother of the victim (PW1) is consistent and as such inspires confidence. The evidence of PW2 and PW3, who are the independent witnesses, is sufficient to prove the alleged incident. They had seen the appellant sleeping over the victim girl. It is submitted that their evidence as to the occurrence of the incident is cogent, concrete and reliable. Learned APP submitted that the evidence of PW1, PW2 and PW3 on the material aspect has been corroborated by the evidence of the Medical Officer (PW4). Learned APP submitted that the evidence of the Medical Officer is sufficient to prove that the appellant had committed the penetrative sexual assault on the victim girl.
PW1 is the mother of the victim girl. She was not an eye-witness to any incident. Similarly, the victim did not narrate any incident of sexual assault on her by the appellant. She has stated that when her daughter came back with the appellant on motorcycle, she was weeping. She has stated that there was abrasion on her forehead. She has also stated that the soil and dust was stuck to the clothes of the victim. She has deposed that on an inquiry with the victim girl, she told her that “dadani padle, dadani marle”. She has stated that on being questioned about it, the appellant told her that his motorcycle slipped and they fell down. She has stated that the knickers of the victim had come out of her one leg. She has stated that she believed the appellant and therefore, her suspicion was satisfied. In her further evidence, she has stated that at about 1.30 p.m., PW2, PW3 and their friend Ravi Lanjewar came to her. They narrated the incident to her. They told her that while coming back from the forest, they heard the sound of weeping of a girl. They went there and saw that one boy was sleeping over the girl. They pulled that boy from the person of the victim girl. The appellant was having sickle. She has stated that after coming to know the incident through PW2 and PW3, she went to the police station and lodged the report. She was subjected to searching cross-examination. She admitted that they were on visiting terms with the appellant. She has stated that when her daughter told her that the appellant beat her, she did not suspect any foul play. She has categorically stated that the appellant used to pamper her children at her house. She has stated that at the time of medical examination of the victim girl, she narrated the history of assault. She has stated that at the police station, the statement of the victim was recorded by the police. At this stage, it is pertinent to mention that the statement of the victim girl is part of the record. The victim girl has not been examined. Perusal of the statement of the victim girl recorded in the presence of PW1 and signed by her, shows that the victim girl told the police that the appellant had slept over her body. At the time of reporting the alleged incident to the police, she did not state that the appellant committed sexual intercourse with her. It is to be noted that some concession will have to be granted to the victim girl inasmuch as on the date of the incident, she was three years old. Therefore, the failure to examine the victim girl may not be a serious difficulty in the case of the prosecution.
In the backdrop of the evidence of the informant (PW1), it is necessary to appreciate the evidence of PW2 and PW3. In the absence of PW2 and PW3, the evidence of the informant would be hearsay evidence. PW2 has stated that the incident occurred on 22.08.2019. He deposed that on 22.08.2019, he, PW3 and Ravi Lanjewar went to the forest near B.P.Ed. College to bring grass for the cattle. He has stated that while returning at about 11.30 am from the forest, near the spot they heard the sound of weeping of a small girl. They went in the direction of that sound. They also saw one two wheeler parked in the agricultural field of Sudarshan Jain. He has stated that one boy, whose pants and underwear were brought down to the level of his thighs, was sleeping on the person of a girl, who was weeping. They saw that the knickers of the girl was lying by the side. They went near the spot and PW3 pulled that person aside. They saw that the girl was beneath the said person. The girl was 2½ to 3 years old. He has stated that PW3 asked the appellant “tula laaj watat nahi ka” He has stated that thereafter, the accused brandished sickle at them. Therefore, they moved some distance away from the spot and stood there. He has stated that thereafter the said boy took the victim on motorcycle and left the said place. He has further stated that when they came back to their village, they informed the said incident to the Corporator Mr. Bacchu Wanare. They have stated that they gave information about the incident to him. They have stated that therefore, along with Bacchu Wanare, they went to Kalamjapur and took search of the said boy. They caught him while sitting on the bridge and inquired with him about the victim girl. At that time the appellant disclosed the name of the girl. He has stated that thereafter they went to the house of that girl and narrated the incident to her parents. He has identified the appellant before the Court.
As far as this part of the incident is concerned, PW3 has reiterated the same in his evidence. In his examination-in-chief, he has stated that when they saw that the appellant was lying on the body of the victim, he pulled him away and asked him “tula laaj watat nahi ka”. His evidence is consistent with the evidence of PW2. It has come on record in their evidence that after conveying this incident to the Corporator namely Bacchu Wanare, they went to the police station and informed the police about the incident. It has come on record in the evidence of the Investigating Officer that such an incident was not reported to the police by any person other than the informant. Perusal of their evidence would show that as far as the occurrence of the incident narrated by them is concerned, there is no doubt. Their evidence is consistent. It is to be noted that conveying the information to the police is natural. Failure on the part of the police to make entry of such an incident by itself would not go against PW2 and PW3. As far as their credibility is concerned, it is sought to be shaken in the cross-examination. It is the defence of the appellant that PW2 was teasing his sister. The sister of the appellant has been examined as DW1. It is the defence of the appellant that when his sister informed about teasing at the hands of PW2, one day he planned to catch hold PW2. It has come on record in the evidence of DW1 that the appellant had caught hold PW2, but at the intervention of the people, the appellant left him. It is the defence of the appellant that on account of this, after few days, PW2 falsely implicated him in this case.
PW2 and PW3 were subjected to the searching cross-examination. It was suggested to them that they had not witnessed any incident as deposed by them. PW2 has denied the suggestion that he was indulged in eve teasing the sister of the appellant. He has also denied the suggestion that one month prior to 22.08.2019, the appellant had assaulted him as he was harassing his sister. PW3 is a labourer. At the relevant time, he was doing work with a mason. It was suggested to him that on the day of the incident, he had gone to attend the work. He has denied the suggestion. In his cross-examination he has categorically stated that he was attending the work with a mason at 12.00 noon and used to come back at 7.00 p.m. On minute scrutiny of the evidence of PW2 and PW3, I am satisfied that their evidence as to the occurrence of the incident cannot be disbelieved.
The defence of the appellant has not been established. The evidence of DW1 does not inspire confidence. She has stated in her evidence that on account of eve teasing at the hands of PW2, she was forced to leave the college i.e. Ashok Vidyalaya, Chandur Railway and shift to the college at Amravati for education. In her cross-examination, she has stated that she does not have any document of admission in Ashok Vidyalaya, Chandur Railway as well as admission in Vinayak Vidyalaya, Amravati. In my view, this defence is not probable. The parents of DW1 and the DW1 herself would not have tolerated the harassment of such a degree. The statement that on account of this harassment and eve teasing at the hands of PW2, she was compelled to shift to Amravati from Chandur Railway, is unbelievable. If such an incident had occurred, then the DW1, who was studying in 1st year of the college, would have reported the matter to the police. She has stated that she had informed about the harassment caused to her at the hands of PW2, to her family members. In my view, therefore, the evidence of DW1 cannot be accepted. DW1 has stepped into the witness box just to support her brother in the case.
The evidence of PW2 and PW3 is consistent. Their evidence inspires confidence as to the occurrence of the incident. At this stage, it is necessary to note that in their evidence they have not stated that they found that the appellant was committing or had committed penetrative sexual assault on the victim girl. They have stated that the girl was lying on the ground. The appellant was lying on her body. The girl was crying. They have stated about the condition of their clothes. They have also not stated that they found any injury to the victim girl to form an opinion that she was subjected to penetrative sexual assault. However, their evidence is sufficient to establish the involvement of the appellant in the incident. The nature of the incident has to be ascertained on perusal of the evidence of the Medical Officer (PW4).
The prosecution has relied upon the evidence of the Medical Officer (PW4) to seek corroboration to it’s case on the point of penetrative sexual assault on the victim by the appellant. In my opinion, the fate of the case of the prosecution hinges on the evidence of the Medical Officer. The Medical Officer (PW4) has deposed that in terms of the requisition from the police at Exh.26, she had examined the victim girl on 22.08.2019 at about 9.15 p.m. She has stated that the history of assault was narrated by the mother of the victim. She has stated that while narrating the history of assault, the mother told her that the appellant had beaten her. The mother gave this history of assault as informed by the victim girl. PW4, on examination found that there was no external injury over her body. The Medical Officer has stated that she observed reddish abrasion of 1 x 1 cm over vulva of the victim. Except this reddish abrasion, the Medical Officer did not notice any other injury to her genitals. Perusal of the report at Exh.27 would show that hymen was intact. Except the reddish abrasion over vulva, there was no injury to any other part of the genitals. PW4 was subjected to cross-examination. PW4 has admitted that there is a difference between complete intercourse and an attempt of intercourse. She has stated that there was no complete intercourse, but there was an attempt or preparation of committing intercourse. She has stated that in the certificate (Exh.27), she has not stated that the attempt of intercourse could not be ruled out. She was cross-examined as to the corrections made by her in her report as to the final opinion. She has stated that initially she mentioned in the opinion column that ‘exact possibility cannot be ruled out’. She has admitted that after scoring this, she wrote that the possibility of attempt of intercourse cannot be ruled out. She has stated that she did not notice any bleeding or injury of any nature to the vagina and forchette. She has stated that if a person comes into contact with a hard object on vehicle like motorcycle or while falling on the ground, then redness is possible. She has stated that if there is scratching due to itchiness and if nail comes into contact with skin, then such type of injury is possible. In my opinion, the evidence of the Medical Officer does not even remotely suggest that the victim girl was subjected to penetrative sexual assault or partial penetrative sexual assault. At the most on perusal of the evidence of the Medical Officer, it could be said that the appellant touched the private part of the victim. The question is whether such touching would constitute the offence of rape as defined under Section 375 of the IPC and the offence of penetrative sexual assault as defined under Section 3 of the POCSO Act. In my view, unless and until there is penetration or partial penetration, both these offences would not get attracted.
It is necessary to note at this stage that the appellant was examined by the Medical Officer on 23.08.2019 at about 12.00 pm. The appellant has admitted his medical certificate, which is at Exh.53. The requisition letter by the Investigating Officer to the Medical Officer of Rural Hospital, Chandur Railway is at Exh.42. In his requisition letter, the Investigating Officer (PW6) has stated that the report against the appellant was lodged on the allegation that he slept on the person of the victim and tried to commit rape. The medical certificate (Exh.53) is silent about the detailed examination of the private part of the victim. The Medical Officer in his report has not stated that he found any injury on the person or penis of the appellant. It is to be noted that the penis of the appellant was not examined. The Medical Officer did not even give the opinion that the appellant was capable to perform sexual intercourse. It is to be noted that in the case of penetrative sexual assault, the presence or absence of smegma around corona gland of penis is the most important fact. The absence of smegma may suggest indulgence by the person examined by the Medical Officer in sexual intercourse. The Medical Officer, who had examined the appellant, did not give any opinion.
In this backdrop, it is now necessary to see as to whether the learned Judge was right in holding the appellant guilty of the offences punishable under Section 376-AB and under Section 4 of the POCSO Act. It is to be noted that in order to constitute an offence of rape, penetration or partial penetration to any extent is necessary. It is also seen that in order to attract clause (c) of Section 375 of the IPC, the manipulation of any part of the body of a woman must be to cause penetration into the vagina, urethra, anus or any part of body of such woman or vice-versa. The definition of penetrative sexual assault is identical to the definition of rape as provided under Section 375 of the IPC. Even as per Section 3 of the POCSO Act, penetration or partial penetration to any extent is essential to constitute the offence of penetrative sexual assault. In this case, the evidence adduced by the prosecution and more particularly the evidence of the Medical Officer (PW4) is not sufficient to establish even partial penetration by the appellant. Even touching penis to the vagina may not constitute the offence of rape as defined under Section 375 of the IPC or penetrative sexual assault as defined under Section 3 of the POCSO Act. Section 7 of the POCSO Act defines sexual assault. As per Section 7, touching the vagina, penis, anus, breast of a child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent, amounts to sexual assault.
In this context it would be appropriate to refer to the decision of the Hon’ble Apex Court in Madan Lal .vs. State of Jammu and Kashmir, reported at AIR 1998 SC 386. Paragraphs 11, 12 and 13 are relevant for the purpose of this case.
“11. In this context it is appropriate to notice an argument advanced by Mr. Jain, learned senior counsel appearing for the appellant to the effect that in the absence of any penetration into the vagina the offence of rape cannot be said to have been established and it will not be possible to hold that the accused had attempted to commit rape on the prosecutrix, and therefore, it would at the most amount to an offence of indecent assault under Section 354 I.P.C. We are unable to accept this contention. Since, if the evidence of the prosecutrix is to be believed, and we do believe the same, the offence committed cannot but be held to be one of attempt to commit rape. The prosecutrix's evidence clearly establishes the fact that the accused spread the blanket on the floor and forcibly laid her on the blanket and thereupon the said accused forcibly opened the cord of the salvar of the prosecutrix and kept it apart and then forcibly ride upon her and on that point of time caught hold of her head with one hand and closed her mouth with the other and had kept his penis qua her uterus and was doing some thing and then the accused was trying to penetrate his penis but it did not penetrate and had gripped his penis with his hand and was rubbing it against her uterus which he was doing by jumping.
The difference between preparation and an attempt to commit an offence consists chiefly in the greater degree of determination and what is necessary to prove for an offence of an attempt to commit rape has been committed is that the accused has gone beyond the stage of preparation. If an accused strips a girl naked and then making her flat on the ground undresses himself and then forcibly rubs his erected penis on the private part of the girl but fails to penetrate the same into Vagina and on such rubbing ejaculates himself then it is difficult for us to hold that it was a case of merely assault under Section 354 I.P.C. and not an attempt to commit rape under Section 376 read with 511 I.P.C. In the facts and circumstances of the present case the offence of an attempt to commit rape by accused has been clearly established and the High Court rightly convicted him under Section 376 read with 511 I.P.C.
Apart from the trustworthy evidence of the prosecutrix herself we also find several circumstances as found by the High Court which corroborates the prosecutrix evidence and makes her statement wholly reliable. Though PWs 1 and 2 did not support the prosecution and therefore were cross- examined by the prosecution but Ms. Shobha Rani, another classmate of the prosecutrix clearly deposed that Krishan, PW-2 came and called Sunita. PW-1 on behalf of the accused for cooking meal at the residence of Head Master and even thereafter a teacher namely, Sagar Singh informed Sunita that she was wanted by the accused. She further stated that the accused as well as the prosecutrix were absent from the school even till when she left at 1 p.m. The so-called teacher of the school on whose testimony the learned Sessions Judge heavily relied upon only have stated that the accused was present in the school till 1 p.m. but according to the prosecutrix she was confined to the house of the accuse till 3 p.m. and was subjected to sexual harassment and thus the evidence of the prosecutrix does not run counter to the evidence of the so-called teachers of the school who had narrated that the accused was in the school till 1 p.m. That apart the High Court has rightly relied upon the evidence of several other classmates of the prosecutrix like Mst. Rajni D/o Om Prakash, Pooran Chand S/o Nanak Chand, Manzoor Ahmad S/o Hafiz Ahmad and Somavani D/o Kaku who unequivocally stated that on the relevant date after 9 am. the prosecutrix as well as the accused were absent from the school. This lends credence to the story of the prosecutrix that she was sent to the house of the accused for cooking and thereafter the accused came to the house and committed the sexual assault. This would undoubtedly be a corroborating piece of evidence which the High Court has rightly relied upon. Then again the salwar of the prosecutrix was seized and had been sent to the Chemical Examiner for chemical analysis and the Scientific Officer of the Jammu and Kashmir, Forensic Science Laboratory after examining the said salwar reported that chemical and microscopical tests revealed the presence of semen/Human Spermatozoa on the said salwar. This is also a strong corroborative piece of evidence to the prosecutrix version even if it has not been established that the Human Spermatozoa is that of the accused. the statement of the mother of the prosecutrix to the effect that the prosecutrix narrated the entire episode immediately when she arrived at home can also be held to be a corroborative piece of evidence which the learned Sessions Judge excluded from consideration and in our view erroneously.”
In Madan Lal’s case (supra), it is held that if the evidence on record is sufficient to establish that the accused has gone beyond the stage of preparation, then mere absence of penetration would not absolve him from the offence of attempt to commit rape. It is held that it would not be a case of mere assault under Section 354 of IPC.
In the present case, the evidence on record is not sufficient to establish the penetrative sexual assault. The evidence is sufficient to establish that the appellant attempted to commit the offence of rape. The evidence of the Medical Officer would show that the appellant touched the vagina of the victim with sexual intent. In my view, therefore, the offence made out in this case would be an offence of attempt to commit rape and aggravated sexual assault. The offence of attempt to commit rape would be punishable under Section 511 of the IPC. Similarly, the offence of aggravated sexual assault would be punishable under Section 10 of the POCSO Act. In this case, the offence of aggravated sexual assault provided under Section 9 sub-clause (m) of the POCSO Act would get attracted. In view of this factual as well as legal position, the conviction and sentence for the offence punishable under Section 376-AB of the IPC and Section 4 read with Section 10 of the POCSO Act cannot be sustained. In this case, the offence made out on the basis of the evidence would be under Section 376 read with Section 511 of the IPC and offence punishable under Section 10 of the POCSO Act. The appellant has been sentenced to suffer rigorous imprisonment for twenty years. The punishment provided under Section 10 of the POCSO Act is imprisonment of either description for a term which shall not be less than five years, but which may extend to seven years and the fine as well. The offence of rape on a girl below twelve years of age is punishable under Section 376-AB of the IPC. The minimum punishment provided for the said offence is imprisonment for twenty years. It is to be noted that the minimum punishment of twenty years provided under Section 376-AB is for the offence of rape.
Learned advocate for the appellant submitted that on the date of the incident, the appellant was 19 years of age. Learned advocate submitted that from the date of his arrest till date, he has been in jail. It is pointed out that he has till date served the sentence of five years, three months and ten days. Learned advocate submitted that the appellant was a student when he was arrested. It is pointed out that even after his arrest he continued his studies. Learned advocate submitted that the sentence already served by the appellant till date would be sufficient considering the gravity of the proved offence against him. Learned APP submitted that the appellant took advantage of the faith in him by the parents of the victim as well as the victim. Learned APP submitted that if PW2 and PW3 had not timely noticed the incident, then the appellant would have ravished the victim girl. In the submission of the learned APP, the maximum punishment be awarded.
I have given thoughtful consideration to the submissions. In my view, considering the proved offences against the appellant, it would be just and proper to award the sentence to the appellant for the offence punishable under Section 10, in view of the mandate of section 42, of the POCSO Act. In view of Section 42 of the POCSO Act, it would not be possible to award the sentence on both the counts. In my view, in the backdrop of the totality of the facts, the sentence already suffered by the appellant would meet the ends of justice. The sentence already served by him would be proportionate to the gravity of the offence. In view of the above, the appeal deserves to be partly allowed.
Accordingly, the Criminal Appeal is partly allowed.
(i) The judgment and order of conviction and sentence passed against the appellant by learned Sessions Judge, Amravati dated 19.03.2020 in Special (POCSO) Case No. 222/2019, is modified.
(ii) Appellant – Kiran @ Shekhar S/o Rajendra Warhade is acquitted of the offences punishable under Sections 376-AB, 376(2)(i) and 354 of the IPC and under Sec. 4 of the Protection of the Children from Sexual Offices Act, 2012.
(iii). Instead, appellant – Kiran @ Shekhar S/o Rajendra Warhade is convicted of the offence punishable under Section 376 read with Section 511 of the Indian Penal Code and under Section 9(m) punishable under Section 10 of the POCSO Act.
(iv) The appellant is sentenced to suffer the imprisonment already undergone by him till date for the offence punishable under Section 10 of the POCSO Act. No separate sentence is awarded for the offence punishable under Section 376 r/w section 511 of the IPC.
(v) The sentence of fine amount and the default sentence, awarded by the learned Sessions Judge, is maintained.
The appeal stands disposed of in the aforesaid terms.