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2011 Supreme(Bom) 384
2011 ALL MR (Cri) 1868
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
A. P. LAVANDE, J.
State of Goa
Versus
Joaquim Oliver s/o. Lawrence Oliver
Criminal Appeal No.72 of 2009
Decided on : 28th/29th March, 2011.
Mr. M. S. JOSHI, Special Public Prosecutor for the Appellant.
Mr. G. TELES, Advocate for the Respondent.
Headnote:Goa Children’s Act, 2003 - Sections 2(y)(i), 2(y)(ii), 26 and 30-Penal Code, 1860, Section 376-Criminal Procedure Code, 1973, Section 374-Conviction-Sentence under-Of-fences, sexual assault-Rape-Appeal against-Seeking enhancement of sentence-Appellate Court, normally not interfere with sentence imposed unless it is fatally inadequate or contrary to law.
Goa Children’s Act, 2003 - Sections 2(y)(i), 2(y)(ii), 26 and 30-Penal Code, 1860, Section 376-Offences under-Sexual assault-Rape-Accused can be prosecuted for both offences under IPC as well as under Act, 2003-However, accused cannot be punished twice for same offence.
Goa Children’s Act, 2003 - Sections 2(y)(i), 2(y)(ii) and 30-Penal Code, 1860, Section 376-Grave sexual assault-Rape-Jurisdiction of Special Court-Special Court under Section 30 of Act has jurisdiction to try an offence of ’Rape’ against accused although not specifically included in definition of ’grave sexual assault’ in terms of Section 2(y)(i) of Act-Evidence of prosecutrix disclose that private part of accused touched body of prosecutrix-Offence of ’sexual assault’ as defined under Section 2(y)(ii) of Act clearly made out.-Section 30 of the Act provides that subject to the provisions of the Act, the Children’s Court shall have jurisdiction to try all offences against the children whether such offences are specified under this Act or not. This being the position, in considered opinion of the Court, the Special Judge had jurisdiction to try an offence of rape against the accused although it was not specifically included in the definition of ’grave sexual assault’ in terms of Section 2(y)(i) of the Act. The act attempting to commit rape on the victim would also constitute sexual assault as defined under Section 2(y)(ii) of the Act. As stated above, the evidence of the prosecutrix dearly discloses that the private part of the accused touched the body of the prosecutrix and, therefore, there is no doubt that sexual assault as defined under Section 2(y)(ii) is dearly made out. In view of Section 26 of the General Clauses Act, it is evident that an accused can be prosecuted for both the offences under Indian Penal Code as well as under the Act. However, he cannot be punished twice for the same offence.
Heard Mr. Joshi, learned Special Public Prosecutor for the appellant and Mr. Teles, learned Counsel for the respondent.
2. By this appeal preferred by the State of Go a under Section 377 of Cr. P.C., the appellant takes exception to the judgment and order dated 5th December, 2008 on the ground that the sentence imposed on the respondent is inadequate. By the impugned judgment and order, the respondent has been convicted for the offence punishable under Section 376 read with Section 511 of I.P.C. and Section 8(2) of the Goa Children's Act, 2003 ('The Act' for short) and sentenced to undergo R.I. for two years and to pay fine of Rs.5,000/-.
3. Indisputably, the respondent has undergone substantive sentence imposed upon him and he has not paid fine. The respondent was prosecuted for the offence punishable under Section 376 read with Section 511 of I.P.C. and Section 8(2) of The Act for having committed rape on the prosecutrix on 2.10.2004 at about 4.00 p.m. at Chinchawada, Ambaulim in the veranda of Anganwadi school. The prosecutrix was aged about 7 years at the time of commission of offence. The First Information Report was lodged by the mother of the prosecutrix on 3.10.2004 at Quepem Police Station. Pursuant to the report lodged by the mother of the prosecutrix, investigation was taken out by officer in-charge of Quepem Police Station, who conducted spot panchanama, attached the clothes of the prosecutrix which according to prosecution were stained with semen. The statements of several witnesses were recorded. The accused was arrested on 3.10.2004. The articles seized were sent for analysis. The prosecutrix and the accused were referred for medical examination to Dr. Madhu Ghodkirekar - PW -3.
4. After completion of investigation, the charge -sheet was filed against the accused, for the offence punishable under Section 376 of I.P.C. and Section 8(2) of The Act.
5. In Special Case No.19/2005 before the Children's Court, the prosecution examined 7 witnesses. The defence of the accused was of total denial. The statement of the accused under Section 313 of Cr. P.C. was recorded. The accused did not lead any evidence. The learned Children's Court upon appreciation of the evidence led by the parties, held the accused guilty as stated above and sentenced him as mentioned hereinabove.
6. Mr. Joshi, learned Special Public Prosecutor submitted that the sentence imposed on the accused is inadequate and considering the nature of the crime committed and the fact that the prosecutrix was hardly 7 years of age, the Children's Court erred in awarding light punishment. Mr. Joshi further submitted that the Children's Court ought to have awarded sentence of five years Rigorous Imprisonment upon the accused considering the age of the prosecutrix and the manner of commission of the offence. In support of his submissions, Mr. Joshi placed reliance upon the following judgments:
(i) Md. Kalam Vs. The State of Bihar; 2008(7) SCC 257 : [2008 ALL MR
(Cri) 2892 (S.C.)].
(ii) State of Maharashtra Vs. Rajendra Jawanmal Gandhi; (1997)8 SCC 386 : [1997 ALL MR (Cri) 1767 (S.C.)].
(iii) Koppula Venkat Rao Vs. State of A.P.; (2004)3 SCC 602.
7. Mr. Teles, learned Counsel for the respondent/accused submitted that since the appeal is preferred under Section 377 of Cr. P.C., the accused is entitled to argue for acquittal. Learned Counsel further submitted that the entire evidence led by the prosecution does not establish the commission of offence of attempt to commit rape and, therefore, conviction of the accused for the said offence is unsustainable in law. He further submitted that at the time of commission of the alleged offence, rape was not included in the definition of sexual offences and it was introduced only by way of amendment in the year 2005 arid as such the accused could not have been charged for the offence punishable under Section 376 of I.P.C. and consequently, could not have been convicted for the offence of attempting to commit rape. He further sub
