2017 Supreme(Bom) 1378

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
Balaji Sarjerao Kamble – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 28 of 2016
Decided On : 29-08-2017

Headnote:Indian Penal Code, 1860 - Section 376-Evidence Act, 1872, Section 3-Sexual assault.- Evidence of victim of sexual assault, stands at a higher pedestal than that of injured witness.

       Evidence of victim of rape case is required to receive same weight as is attached to evidence of an injured witness. If totality of circumstances emerging on record discloses that the victim of such crime does not have any motive to falsely implicate the accused, then, it is not required to seek corroboration to her evidence and the Court generally needs to accept her evidence. While dealing with cases of sexual assault on females of tender ages, the Court is expected to shoulder great responsibility and is required to deal with such cases sensibly. Broader probabilities of the prosecution case are required to be examined in such crimes and the Court is not expected to get swayed by minor contra- dictions or insignificant discrepancies in the evidence of prosecution which does not go to the core of the prosecution case.

       Indian Penal Code, 1860 - Section 376-Protection of Children from Sexual Offences Act, 2012, Sections 3 and 4-Conviction for rape on minor.-Since evidence of female child aged 6 years is clear and cogent in respect of penetrative sexual assault by accused suffered by her hence conviction of accused justified.

       It is seen that the appellant/accused on his conviction for the offence punishable under Section 376 of the Indian Penal Code as well as under Section 4 of the POCSO Act is sentenced to suffer punishments on both counts. For the offence punishable under Section 376 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment of 7 years apart from directing him to pay fine of Rs. 5,000/-, in default, to undergo further rigorous imprisonment of 3 months. Separately for the offence punishable under Section 4 of the POCSO Act the appellant/accused is sentenced to suffer rigorous imprisonment of 7 years, apart from directing him to pay fine of Rs. 5,000/-, in default, to undergo further rigorous imprisonment of 3 months. As per provisions of Section 42 of the POCSO Act, where an act or omission constitutes an offence punishable under the said Act as well as under Section 376 of the Indian Penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender/accused found guilty of such offence is liable for punishment under the POCSO Act or under the Indian Penal Code, as provided for punishment whichever is greater in degree. As such, for the same offence i.e. the one under Section 376 of the Indian Penal Code and another under Section 4 of the POCSO Act, the accused cannot be punished twice. However, in this case, the appellant/accused is punished twice-once for offence punishable under Section 376 of the Indian Penal Code, and another for the similar offence punishable under Section 4 of the POCSO Act. On each count, he is imposed punishment separately. Therefore, by maintaining the sentence for the offence punishable under Section 4 of the POCSO Act, which is equivalent to Section 376 of the Indian Penal Code, sentence of the appellant/accused for the offence punishable under Section 376 of the Indian Penal Code, needs to be quashed and set aside.

       Indian Penal Code, 1860 - Section 376-Protection of Children from Sexual Offences Act, 2012, Section 42-Sentence for offence of rape.-Accused found guilty for offence, one under Section 376, IPC and another under Section 4 of POCSO Act, cannot be punished twice.

       Evidence Act, 1872 - Section 137-Cross-examination.-Since cross- examination is a matter of substance and not that of procedure hence effect of non-cross-examination is that statement of witness held to be undisputed.

       This position emerging on record goes to show that evidence of prosecution witnesses regarding age of the minor female victim went unchallenged and unrebutted. The cross-examination is a matter of substance and not that of a procedure. The effect of non-cross-examination is that the statement of witness is held to be undisputed. If evidence in chief-examination is not challenged in cross-examination by the other party, then the same is required to be accepted and the fact averred thereby is required to be held as fully established. In the wake of this position in law, it needs to be held that at the time of the alleged incident, the PW 1/minor female victim was a child as defined by Section 2(d) of the POCSO Act, she being below 18 years of age.