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IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
A.I.S. Cheema, J.
Bhagwan, s/o Laxman Rakshe - Appellant
Versus
The State of Maharashtra through Police Station, Beed Rural - Respondent
Criminal Appeal No. 889 of 2015
Decided On : 20-09-2016
Kidnapping - Minor - IPC 363, 366, 376, POCSO Act - Section 4, 6 - 363, 366, 376, 4, 6 - The court upheld the conviction of the accused under IPC Section 363 and Section 4 of the POCSO Act. The conviction under Section 366-A of the IPC was converted into a conviction under Section 366 of the IPC. The court also considered the age of the victim and the medical evidence to establish that she was a minor at the time of the incident. The court found the accused guilty of kidnapping and committing repeated forcible intercourse on the minor victim. The court also highlighted the importance of the victim's school record and the medical evidence in determining her age and the nature of the offense committed by the accused.
Fact of the Case:
The victim, a minor, was kidnapped and subjected to repeated forcible intercourse by the accused. The accused claimed a love affair with the victim, but the court found evidence of kidnapping and rape. The victim's age was a crucial factor in the case, and the court considered her school record and medical evidence to establish that she was a minor at the time of the incident. The court also discussed the contradictions in the victim's statements and the evidence of her forcible abduction and rape by the accused.
Finding of the Court:
The court found the accused guilty of kidnapping and committing repeated forcible intercourse on the minor victim. The court upheld the conviction under IPC Section 363 and Section 4 of the POCSO Act. The conviction under Section 366-A of the IPC was converted into a conviction under Section 366 of the IPC. The court also considered the age of the victim and the medical evidence to establish that she was a minor at the time of the incident.
Issues: The key issues in the case revolved around the age of the victim, the nature of the offense committed by the accused, and the evidence of kidnapping and rape. The court also addressed the contradictions in the victim's statements and the defense's claim of a love affair between the accused and the victim.
Ratio Decidendi: The court relied on the victim's school record and medical evidence to establish her age as a minor at the time of the incident. The court also considered the evidence of kidnapping and repeated forcible intercourse to uphold the conviction of the accused under IPC Section 363 and Section 4 of the POCSO Act. The court converted the conviction under Section 366-A of the IPC into a conviction under Section 366 of the IPC.
Final Decision: The court maintained the conviction and sentence of the accused under IPC Section 363 and Section 4 of the POCSO Act. The conviction under Section 366-A of the IPC was converted into a conviction under Section 366 of the IPC. The accused was sentenced to rigorous imprisonment and given the benefit of set off for the period of imprisonment suffered since the date of arrest.
A.I.S. Cheema, J.
The appellant – original accused No. 1 (hereinafter referred as "accused") faced prosecution before the Additional Sessions Judge, Beed in Sessions Case No. 116/2013. Along with him, one Annasaheb Bhagwat Gavhane was arrayed as accused No. 2. In the incident concerned, prosecution alleged involvement of one another juvenile in conflict with law - Dnyaneshwar Kamble. The accused No. 1 and 2 were charged with offence under Sections 363. 366-A, 376 read with Section 34 of the Indian Penal Code, 1860 (IPC in brief). By way of additional charge, the original accused No. 1 and 2 were charged with offence under Section 4 as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 ("Act" in brief). Accused No. 2 was additionally charged with offence under Section 16 of the Act. After the trial, the accused No. 2 came to be acquitted of the charges which were framed against him while the appellant – accused came to be convicted under Sections 363 and 366-A of the Indian Penal Code. For both these Sections, there is sentence of rigorous imprisonment for 5 years and to pay fine of Rs. 1000/-, and in default, to suffer simple imprisonment for one month. The accused has also been convicted under Section 4 of the Act and sentenced to suffer rigorous imprisonment for 10 years with fine of Rs. 1000/-, and in default to suffer simple imprisonment for one month. The Trial Court found that in view of the conviction under Section 4 of the Act, need of invoking Section 376 of the Indian Penal Code became redundant. The trial Court acquitted the accused of the offence under Section 376 of the IPC and also Section 6 of the Act, holding that, accused was not police officer etc.
2. The case of the prosecution in short may be stated to be as under :
(a) P.W.9 is father and P.W.2 is mother of prosecutrix, who has been examined in the trial Court as P.W.14 (hereinafter referred as "victim"). The brother of the victim came to be examined as P.W.8. I am not referring to the names of these persons (which can be seen in the record) so as not to reveal identity of the victim. I will refer to them as father, mother brother and victim.
(b) On 3.5.2013, P.W.9 father of victim filed report with Beed Rural Police Station, claiming that, on 2.5.2013 there was marriage of one Sheetal Nagargoje at Kapildhar, Taluka and District Beed. The victim and her family are residents of Shekta, Taluka Georai, District Beed. The report claimed that, for the marriage of Sheetal (P.W.7) the victim had gone along with the bride to Kapildhar and was present at the time of marriage ceremony till about 4.00 p.m. The mother of the victim had also gone for the marriage. The mother could not find the victim after 4.00 p.m. and started searching for her. She rang up her husband (father of victim) and told the fact. The family searched for the victim at the place of relatives and when the victim was not found, the missing report (Exh.57) was being filed. Photograph of the victim was affixed on the same. In the missing report, the father expressed suspicion rather on P.W.7 Sheetal for the daughter going missing. The father followed up the missing report with a complaint or reminder to the Superintendent of Police on 4.5.2013 sending letter Exh.58 that no action has been taken.
(c) Subsequently, P.W.2, the mother of victim on 6.5.2013, filed F.I.R. Exh.45 reporting to the police that the victim, aged about 15 years, had been studying in Rajmata Jijau Middle School in 9th Standard. There was marriage at Kapildhar in the brotherhood, for which the victim had gone along with bride Sheetal @ Balu (P.W.7). The bride had called the victim on 29.4.2013 itself, and it was reported that, along with the marriage party she and her son (P.W.8), aged about 10 years had gone to Kapildhar. The husband remained back to attend another marriage in the village Shekta. The victim had gone along with the bride in jeep. The marriage took place at around 2.00 p.m. and t
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