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2020 Supreme(Bom) 701
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
V.M. DESHPANDE, J.
Sunil – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 655 of 2019
Decided On : 21-01-2020
Advocate Appeared:
For the Appellant : Amit S. Band.
For the Respondent: M.J. Khan.
Headnote:
Indian Penal Code, 1860 - Section 376(2)(i)(j) read with Section 109 - Protection of Children from Sexual Offences Act, 2012 - Sections 3 and 4 - Committed Rape - Appeal against Conviction - Victim is aged about 13 years and she was taking her education in 8th standard - She is having one elder sister and two brothers - Her parents are the labourers - As per the report, she along with her friend Anjali at 5.00 Oclock in the evening was proceeding to their friend Harsha for obtaining homework note book. That time appellant called her - Anjali preceded further - At that time, appellant caught hold the victim and took her to house co-accused, she was pushed by the appellant inside the house of Golu and from outside he latched the room - That time co-accused Golu was present in house. As per the first information report, from the outside appellant stated, as per first information report, co-accused Golu removed clothes of victim and committed rape on her – Held, Evidence of the prosecution witnesses would clearly establish that it is the appellant who has intentionally extended aid to the co-accused to commit rape on the victim. The evidence on record has established that when the victim was pushed inside by the appellant, he latched the door from outside and not only that; he guarded the house from outside. Further, he tried to prevent Kajal from taking entry inside the house - That shows that appellant was having active role in commission of the offence of rape by co-accused - Acts committed by the appellant which are duly proved by the victim and other prosecution witnesses, in my view, proves that the appellant was abettor and he abetted co-accused to commit rape on the victim, a minor girl - am of the view that there is no error in the impugned judgment and on re-appreciation of the entire prosecution case, I am of the view that the prosecution has proved its case against the appellant in its entirety and he is sentenced correctly by the learned Judge. Consequently, I pass the following order - Criminal appeal is dismissed.
JUDGMENT :
V.M. DESHPANDE, J.
1. This appeal is filed by the appellant, who is in jail, through his Advocate Mr. Amit S. Band. The appellant along with co-accused Rohit @ Golu were convicted by the learned Extra Joint Additional Sessions Judge, Nagpur in Special Child Protection Case No. 246/2017 by its judgment and order dated 25.03.2019.
2. The appellant/accused no. 1 was convicted for the offence punishable under section 376(2)(i)(j) read with Section 109 of the Indian Penal Code and under Sections 16 and 17 read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for the sake of brevity) and he was sentenced to suffer rigorous imprisonment for Ten years and to pay a fine of Rs. 2,000/- however no separate sentence was imposed on him for his conviction under Sections 16 and 17 read with Sections 3 and 4 of the POCSO Act. He was also convicted for the offence punishable under Sections 354 and 354A of the Indian Penal Code and was directed to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-. He was also convicted for the offence punishable under Section 342 of the Indian Penal Code and was directed to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-. All the sentences were directed to run concurrently.
Accused no. 2 Rohit @ Golu was convicted for the offence punishable under Section 376(2)(i)(j) of the Indian Penal Code read with under Sections 3 and 4 of the POCSO Act and directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs. 2,000/-. He was also convicted for the offence punishable under Section 506 of the Indian Penal Code and directed to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-. He was also convicted for the offence punishable under Section 342 of the Indian Penal Code and was directed to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-. It is informed to this Court that the said co-accused chose not to file any appeal before this Court.
3. In view of the aforesaid, this Court is required to assess the prosecution case qua the appellant only, who was accused no. 1 in Special Child Protection Case No. 246/2017.
4. The prosecution case as it was disclosed during the course of trial, can be narrated as under:-
(a) Smt. Swati Lokhande, a Woman Police Naik, was attached to Weltur Police Station on 10.8.2017 and when she was discharging her duties on the said day, at 11.30 a.m. the victim along with her grandmother came to police station. The victim gave her oral report. It is at Exh.19. After recording the said report as per the victim's version, the said was signed by the victim herself. Subsequently, on the basis of said report, the offence was registered with the said police station vide Crime No. 79/2017. The printed first information report is at Exh.86. Smt. Swati Lokhande also recorded the statement of some witnesses after registration of the crime.
(b) As per the report (Exh.19), the victim is aged about 13 years and she was taking her education in 8th standard at Bhartiya Dnyanpeeth School at village Fegad. She is having one elder sister and two brothers. Her parents are the labourers. As per the report, on 05.8.2017, she along with her friend Anjali at 5.00 O'clock in the evening were proceeding to their friend Harsha for obtaining homework note book. That time, Sumit Ramteke (appellant) called her. Anjali proceeded further. At that time, the appellant caught hold the victim and took her to the house of Golu Barsagade (co-accused). Thereafter, she was pushed by the appellant inside the house of Golu and from outside he latched the room. That time co-accused Golu was present in the house. As per the first information report, from the outside appellant stated. ^^xksyq yk terq ns] rwyk fdrh iSls ikyhts rs eh nsrksA** Thereafter, as per the first information report, co-accused Golu removed the clothes of the victim and com
