2019 Supreme(Bom) 528

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.M. Gavhane, J.
Pintu - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 515 of 2016
Decided On : 12-04-2019

Headnote:

Indian Penal Code, 1860 - Sections 376 (2)(n), 376(2)(i), 376(2)(h),506 – Criminal Procedure Code,1973 - Section 313 - Protection of Children from Sexual Offences Act – Sections 3,4,5(j)(ii),5(l) – Rape Case - Resident of, Tq., Dist. lodged a report in Mantha Police Station that victim girl (PW-2) aged about 13 years and 6 months is her daughter and she was taking education in 8th std. at relevant time of incident and her date of birth is - Accused/appellant is educated unemployed and he is from her community - He is residing in same locality - It is alleged that appellant used to promise victim girl that he would get job as a teacher and would perform marriage with her. By taking disadvantage of her tender age accused used to call her and used to commit sexual intercourse against her will - Due to which victim girl remained pregnant and was carrying pregnancy of seven months - Informant came to know about said fact about two months prior to lodging report with police station - She enquired with her daughter victim about her pregnancy and victim girl disclosed informant about the act of accused – Thereafter informant along with her daughter victim girl went to house of appellant/accused and requested his parents to perform marriage of accused with victim girl - Thereupon they said that victim should cause abortion or she (informant) should kill victim as she has become characterless and refused to marry with victim girl - On the report crime under Section 376(2)(h) and 506 of Indian Penal Code and under Sections 3 & 4 of POCSO Act was registered against appellant/accused and investigation was commenced - Whether prosecution has proved that appellant has committed rape on victim girl under 16 years of age that he committed rape repeatedly on her and that he has committed penetrative sexual assault on her as alleged by the prosecution - Held, Prosecution has relied upon evidence of PWs.1,2,5,6,8,9 and DNA report Exh.72 with opinion - As regards incident the evidence of victim girl (PW-2) is that in month of March, 2013 when she was in 8th std. he (appellant) called her in his house - He removed her clothes - He committed rape on her - He called her at his house which is opposite to their house – Court hold that prosecution has proved aggravated penetrative sexual assault as appellant committed penetrative sexual assault on victim girl/child within meaning of Section 5(j)(ii) i.e. of making child (victim girl) pregnant as a consequence of sexual assault and further committed penetrative sexual assault on child/victim girl more than once or repeatedly within meaning of Section 5(l) punishable under Section 6 of POCSO Act - Moreover on basis of aforesaid evidence Court find that prosecution has proved offence of penetrative sexual assault under Section 3 punishable under Section 4 of POCSO Act against appellant/accused - Court hold that on proper appreciation of evidence adduced by prosecution learned Sessions Judge has rightly held appellant guilty for aforesaid offences and rightly convicted and sentenced for offences punishable under Section 376(2)(n) of IPC and under Section 5(j)(ii) punishable under Section 6 of POCSO Act and it has rightly not awarded separate sentences for offence under Section 376(2)(i) of IPC under Section 3 punishable under Section 4 and under Section 5(l) punishable under Section 6 of POCSO Act - Considering punishments provided for the offences punishable under Section 376 (2)(n) of IPC and under Section 5(j)(ii) of POCSO Act that rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also liable to fine and in case of offence under Section 376 (2)(n) of IPC imprisonment for life mean imprisonment for reminder of that persons natural life punishment imposed for these offences on appellant by learned Sessions Judge of rigorous imprisonment for ten years with fine is the minimum and proper punishment and therefore said punishment cannot be reduced to period undergone by appellant in light of alternative submissions made by learned counsel for appellant - Appeal dismissed