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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. DESHPANDE, MANISH PITALE, JJ.
The State of Maharashtra & Another - Appellants
Versus
Surajprasad @ Rajkumar & Another - Respondents
Criminal Appeal Nos. 67 of 2015 & 48 of 2016
Decided On : 11-08-2017
The aforesaid position of law and a perusal of Section 375 of the Indian Penal Code would show that in order to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen or rupture of hymen. It has been held that even a partial or slightest penetration of the male organ within the labia majora or the vulva without any emission of semen, would be quite enough for the purpose of Sections 375 and 376 of the Indian Penal Code.
Indian Penal Code, 1860 - Sections 376(2)(f)(i)-Protection of Children from Sexual Offences Act, 2012, Sections 4 and 6-Conviction and sentence under.-Accused committing rape on his own step daughter aged 9 years liable to be convicted and sentenced to suffer life imprisonment.
Applying the law as laid down by the Hon`ble Supreme Court, it would be evident that having given the aforesaid findings even on the question of sentence against the accused, the Special Court clearly fell in error in awarding the minimum sentence of rigorous imprisonment of 10 years. That in the facts and circumstances of the present case, the accused has committed a barbaric act of raping his own stepdaughter who was only 9 years old at the time of the incident. The accused was supposed to take care of the prosecutrix and he has not only blatantly violated the trust that the prosecutrix had in him, but he has virtually destroyed the life of the prosecutrix and scarred her physically, mentally and psychologically for the rest of her life. In this situation, the appropriate punishment to be imposed on the accused would be to enhance the sentence to rigorous imprisonment for life as provided under Section 376(2)(f) and (i) of the Indian Penal Code and Sections 4 and 6 of POCSO Act. Accordingly, the appeal filed by the State stands allowed and the accused is sentenced to suffer imprisonment for life.
Indian Penal Code, 1860 - Sections 376(2)(f)(i)-Protection of Children from Sexual Offences Act, 2012, Sections 4 and 6-Conviction for rape on minor.-Since evidence of victim girl aged 9 years is corroborated by evidence of her mother and eye- witnesses as well as by medical evidence hence conviction of accused justified.
It is clear that the Special Court has correctly appreciated the facts on record, while convicting the accused/appellant. The Special Court has correctly found that offence under Section 376(2)(f)(i) of the Indian Penal Code read with Sections 4 and 6 of the POCSO Act stood proved, because the prosecutrix was only 9 years old when the incident took place.
The facts that have been proved on record show that the prosecutrix was a minor at the time of the incident. PW 5, Headmistress of the school where the prosecutrix was studying, proved that the date of death of the prosecutrix was 8.8.2003. This fact was proved on the basis of the school record thereby clearly establishing that the prosecutrix was only 9 years old when the incident took place. Thus, being a minor the requirements for applying the provisions of the POCSO Act were clearly satisfied in the present case and, therefore, the findings given by the Special Court does not deserves any interference. Accordingly, Court confirmed the order of the Special Court of conviction under the said provisions passed against the accused-appellant and dismissed the appeal.
Manish Pitale, J.
1. By this judgment we are disposing of two appeals. Criminal Appeal No. 48 of 2016 has been filed by the accused challenging the judgment and order dated 18.12.2014 passed by the Special Court, Chandrapur in Special (Child) Case No. 8 of 2013, whereby the accused-appellant has been convicted under Section 376(2)(f)(i) of the Indian Penal Code (“IPC”) read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,000/- and in default to suffer rigorous imprisonment for 3 months. Criminal Appeal No.67 of 2015 has been filed by the State praying for enhancement of punishment, claiming that the sentence imposed on the accused of rigorous imprisonment for 10 years is inadequate, in the facts and circumstances of the case.
2. The prosecution case is that on 14.07.2013 the accused, stepfather of the victim/complainant (hereinafter referred to as “the prosecutrix”), came to his house at about 1 p.m. and gave to Rs.10/- to the prosecutrix and Rs.2/- each to her brothers for purchasing snacks from the grocery shop. The children, including the prosecutrix, returned home at about 2.30 p.m., when the accused asked his sons to go and play outside the house.
3. The accused then called the prosecutrix inside the house, closing the door from inside and he put her on a mat on the floor. He then removed her slack and knicker and threatened her. The accused laid the prosecutrix on the mat and upon removing his pant, he inserted his penis in the vagina of the prosecutrix. Due to pain, she started weeping, upon which her mother came to the house and knocked the door. The accused wore his clothes, opened the door and after quarreling with the mother of the prosecutrix, he left the house.
4. The mother (PW2) and a neighbor Vandana (PW4) claimed to have seen the aforesaid incident from gap in the door of the house.
5. The prosecutrix went along with her mother to the Police Station and lodged an oral report on the same day i.e. on 14.07.2013, pursuant to which first information report (FIR Exh.20) was registered on the same day against the accused for having committed the offences under Sections 376(2)(f) and 506 of the I.P.C. and Sections 4 and 6 of the POCSO Act. The allegation by the prosecutrix, being a minor, of rape against her own stepfather was a serious matter and the investigating authority immediately referred her for medical examination.
6. The prosecutrix was medically examined by the Medical Officer Dr. Dipti (PW9) on 14.07.2013 at the General Hospital in Chandrapur. The said doctor issued a medical certificate (Exh.45) certifying that there was redness present on labia majora, labia minora all over and that hymen was freshly torn at the 3, 9 and 6 ‘O’ clock position.
7. The Investigating Officer arrested the accused and seized his clothes and they were sent for chemical analysis. It is relevant to mention here that the accused was also medically examined and it was found that he was capable of sexual intercourse.
8. In order to prove its case, the prosecution examined 10 witnesses, of whom PW2 (mother of the prosecutrix) and PW3 (neighbor) are eyewitnesses to the incident. PW5 is the Headmistress of the School, who has proved the date of birth of the prosecutrix as 8.8.2003 to show that she was aged 9 years on the date of the incident. PW8 is the Investigating Officer and PW9 is the Doctor who had examined the prosecutrix and issued the medical certificate.
9. The Special Court considered the case of the prosecution as well as the defence raised on behalf of the accused. It found that the prosecution had been able to prove its case beyond reasonable doubt and that there was sufficient material on record to prove the guilt of the accused. On this basis, the Special Court convicted and sentenced the accused as aforesaid.
10. As stated above, the accused as well as the State have filed appeals before
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