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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. Badar, J.
Sarang Malhari Pawar - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 171 of 2018 With Criminal Application No. 244 of 2018 and Criminal Application No. 741 of 2018
Decided On : 27-07-2018
POCSO Act - Juvenile Justice - Indian Penal Code, Section 376(2)(g), Section 506 - POCSO Act, Section 4
Fact of the Case:
The appellant was convicted for offences under Sections 376(2)(g) and 506 of the Indian Penal Code as well as under Section 4 of the POCSO Act for committing penetrative sexual assault and rape on a mentally challenged victim girl. The victim became pregnant as a result of the assault, leading to the prosecution of the accused.
Finding of the Court:
The court found that the appellant was a juvenile in conflict with the law at the time of the offence and therefore entitled to the benefits under the Juvenile Justice (Care and Protection of Children) Act, 2000. The court quashed the sentence imposed on the appellant and directed his release, ordering the case to be placed before the Juvenile Justice Board for appropriate orders.
Issues: The main issue was the determination of the appellant's juvenility at the time of the offence and the subsequent impact on the sentence imposed by the trial court.
Ratio Decidendi: The court relied on the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and relevant case law to establish the appellant's juvenility at the time of the offence, leading to the quashing of the sentence imposed by the trial court.
Final Decision: The appeal was disposed of with directions to release the appellant, place the case before the Juvenile Justice Board, and the appellant was directed to appear before the Juvenile Justice Board on a specified date.
JUDGMENT
A.M. Badar, J. - Appellant/original accused no. 1 Sarang Malhari Pawar, by this appeal, is challenging the judgment and order dated 9th August 2016 passed by the learned Special Judge for the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Greater Bombay, Mumbai, in POCSO Special Case No.512 of 2013, thereby convicting the appellant/accused as well as co-accused for offences punishable under Sections 376(2)(g) and 506 of the Indian Penal Code as well as under Section 4 of the POCSO Act. For the offence punishable under Section 376(2)(g) of the Indian Penal Code, the appellant/accused is sentenced to suffer rigorous imprisonment for 20 years apart from direction to pay fine of Rs. 25,000/and in default, to undergo further rigorous imprisonment for 6 months. For the offence punishable under Section 506 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for 2 years apart from direction to pay fine of Rs. 1,000/and in default to undergo further rigorous imprisonment for 3 days. For the offence punishable under Section 4 of the POCSO Act, he is sentenced to suffer rigorous imprisonment for 20 years, apart from payment of fine of Rs. 25,000/and in default, to undergo further rigorous imprisonment for 6 months.
2. Brief facts leading to the prosecution of accused persons are thus :
(a) Appellant/accused Sarang Malhari Pawar along with co-accused Ajay Gaikwad were prosecuted for committing penetrative sexual assault and rape on victim girl (PW5) on 15th March 2013. According to the prosecution case, the victim girl (PW5) was suffering from mental retardation. She used to reside with her mother, brother and sister-in-law. Because of fits of epilepsy, she had discontinued her studies. Appellant/accused no.1 Sarang Pawar and juvenile in conflict with law Vishal Gorule used to reside in the building where PW5/victim girl used to reside. Accused no.2 Ajay Gaikwad used to reside in another building situated nearby that building.
(b) According to the prosecution, the incident of penetrative sexual assault and rape on the PW5/victim girl took place on 15th March 2013. In the afternoon, PW5/victim girl was watching a movie on the television set in the house of her step sister on first floor of the building, where she used to reside. At that time, juvenile in conflict with law Vishal Gorule called her outside, took her to his room on the ground floor and committed penetrative sexual assault on her. Thereafter, accused no.2 Ajay Gaikwad committed penetrative sexual assault on her. They both threatened her not to disclose the incident to anybody. According to the prosecution case, in the night hours of 15th March 2013, the victim girl was standing in front of her room. At that time, appellant/accused no.1 Sarang Pawar came and took her to the terrace. He threatened her that he will disclose what accused no.2 Ajay Gaikwad and juvenile in conflict with law Vishal Gorule did with her, to her family members, if she fails to allow him to do the same act. With this, appellant/accused no.1 Sarang Pawar had committed penetrative sexual assault on the PW5/victim girl. Because of threats given by accused persons, PW5/victim girl did not disclose the incident to anybody.
(c) According to the prosecution case, this incident of commission of penetrative sexual assaults on the PW5/victim girl resulted in her pregnancy. The incident was then told by her to her mother. Her mother then went to the RCF Police Station, Mumbai, and lodged report against accused persons, which resulted in registration of Crime No.15 of 2016 under Section 376(d) and 506 of the Indian Penal Code as well as under Section 10 of the POCSO Act. Routine investigation followed and ultimately, the appellant/accused along with co-accused Ajay Gaikwad was chargesheeted for offences punishable under Sections 376(2)(g) and 506 of the Indian Penal Code as well as under Section 4 of the POCSO Act.
(d) In order to prove the Charge, prosecution has ex
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