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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
Siddharth Dagadu Sonde – Petitioner
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 195 of 2016
Decided On : 28-08-2017
Delay in lodging the FIR cannot be used as ritualistic formula to suspect or discard case of the prosecution. The Court is required to search for explanation, if any, given by the First Informant for lodging the FIR belatedly. If explanation is found to be satisfactory, then the prosecution case cannot be discarded on this ground.
The Court is also required to consider whether the evidence on record indicates adding of embellishments or exaggeration because of the delay in lodging the FIR, or whether the prosecuting party was attempting to bolster up its case by deliberately delaying the lodging of the FIR. Unless and until such factors are established, even by preponderance of probability, mere delay in lodging the FIR cannot render the case of the prosecution brittle.
Indian Penal Code, 1860 - Sections 354 and 376-Protection of Children from Sexual Offences Act, 2012, Section 4-Conviction for rape on minor female child.-Since evidence of victim-minor female child in respect of sexual assault by accused is corroborated by evidence of her mother and medical evidence hence conviction of accused under Section 4 of Act confirmed.
Indian Penal Code, 1860 - Section 376-Conviction for rape.-In order to sustain conviction under Section 376, IPC, even partial or slightest penetration would be enough.
The offence punishable under Section 376 of the Penal Code postulates sexual intercourse by a man with a woman. The word "intercourse" means sexual connection. It can be slightest and not necessarily complete. What is sine-qua-non for constitution of this offence is penetration and to convict the accused for this offence the requirement is that of clear and cogent evidence to establish that some part of the virile member of the accused was within the labia of the victim of the crime in question. No matter how little.
Indian Penal Code, 1860 - Section 376-Protection of Children from Sexual Offences Act, 2012, Section 42-Conviction and sentence for offence of rape.-Offender found guilty of offence under POCSO Act so also offence under Section 376, IPC, liable to be punished under POCSO Act or under IPC whichever is greater in degree.
It needs to be noted that Section 42 of the POCSO Act provides that where an act or omission constitutes an offence punishable under the said Act, so also the offence punishable under Section 376 of the Indian Penal Code, 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 under the POCSO Act or under the Indian Penal Code, as provided for punishment which is greater in degree. In the case in hand, the appellant/accused is sentenced to suffer rigorous imprisonment for 10 years apart from directing him to pay fine of Rs. 5,000/-, in default, to undergo further rigorous imprisonment for 1 year, for the offence punishable under Section 376 of the Indian Penal Code. Similar sentence is imposed upon him separately for the offence punishable under Section 4 of the POCSO Act. The appellant/accused, in the light of provisions of Section 42 of the POCSO Act, cannot be awarded separate sentence for the offence punishable under Section 376 of the Indian Penal Code.
A.M. BADAR, J.
1. By this appeal, the appellant/accused is challenging the judgment and order dated 20th May 2015 passed by the learned Special Judge, Pune, in Special Child Sessions Case No. 42 of 2013 thereby convicting him of offences punishable under Section 376 and 354 of the Indian Penal Code (IPC). The appellant/accused is also held guilty under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act hereinafter). On each count for the offence punishable under Section 376 of the IPC as well as that under Section 4 of the POCSO Act, he has been sentenced to suffer rigorous imprisonment for 10 years apart from payment of fine of Rs. 5,000/- in default to undergo further rigorous imprisonment of 1 year. For the offence punishable under Section 354 of the IPC, the appellant/accused is sentenced to suffer rigorous imprisonment for 1 year, apart from directing him to pay fine of Rs.1,000/- and in default, to undergo further rigorous imprisonment for 1 month. Substantive sentences imposed on these three counts are directed to run concurrently by the learned trial court.
2. Brief facts leading to the institution of the present proceedings are thus:
(a) Informant PW-2 Suman Gaikwad is a widow. She was having responsibility of maintaining four daughters. The PW-1/prosecutrix is one amongst them. PW-2 Suman Gaikwad used to reside at Dattawadi area of Pune along with her mother-in-law PW-3 Kamal Gaikwad as well as her daughters.
(b) PW-3 Kamal Gaikwad is having a daughter named Vandana. The appellant/accused is husband of said Vandana – daughter of PW-3 Kamal Gaikwad. Thus, the appellant/ accused is husband of paternal aunt of the PW-1/prosecutrix.
(c) According to prosecution case, as father of the PW-1/prosecutrix died and her mother was suffering from penury, it was decided to send the PW-1/prosecutrix to the house of the appellant/accused at Yerwada area of Pune for further education. Accordingly, the PW-1/prosecutrix started residing with her paternal uncle i.e. the appellant/accused and her paternal aunt Vandana as well as their children and took admission in 7th Standard at Netaji Subhashchandra Bose High School, Yerwada, Pune.
(d) The prosecution alleged that during her stay at the house of the appellant/accused at Yerwada, Pune, the appellant/accused used to take her to the terrace and used to outrage her modesty. He used to attempt to commit sexual intercourse with her by putting his penis in her vagina.
(e) After completion of academic session 2012-2013, on 9th April 2013, the PW-1/ prosecutrix was brought back to her mother’s house by her grandmother – PW-3 Kamal Gaikwad. As there was urus of God Mhasoba at Dattawadi, Pune, on 14th May 2013, the appellant/accused along with his family members visited house of PW-1 prosecutrix and stayed there for one day. On 15th May 2013, when the appellant/accused along with his family members was returning to his house at Yerwada, Pune, the PW-1/prosecutrix did not accompany him. She was questioned by her mother PW-2 Suman Gaikwad. Thereafter, the PW-1/prosecutrix disclosed her mother that the appellant/accused used to call her at the terrace of the house and used to outrage her modesty so also he used to attempt to penetrate her. She disclosed that he used to threaten her that if she dares to disclose the incident to anybody, he would kill her mother.
(f) After hearing narrations of the PW-1/prosecutrix, PW-2 Suman Gaikwad was frightened and therefore, immediately she did not disclose the incident. Subsequently, she told the incident, as narrated by the PW-1/prosecutrix, to her motherinlaw i.e. PW-3 Kamal Gaikwad. Then, PW-2 Suman Gaikwad accompanied by her mother as well as PW-3 Kamal Gaikwad, went to the house of the appellant/accused on 18th May 2013 and questioned him. At that time, the appellant/accused threatened them that if the complaint is lodged, he would commit suicide. Ultimately, with the aid of PW-5 Lilatai Sonawane, PW-2 Suman Gaikwad lodged repo
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