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2019 Supreme(Bom) 2605

IN THE HIGH COURT OF BOMBAY
A.M. Badar, J.
Mahiboob – Appellant
Versus
The State of Maharashtra and Ors. – Respondents
Criminal Appeal No. 660 of 2018
Decided On : 09-10-2019

Advocates:
Advocate Appeared:
For the Appellant :Kartik Garg, Advocate
For the Respondent: A.A. Palkar, APP

Headnote:

Protection of Children from Sexual Offences Act, 2012 - Sections 6, 8, 10 and 12 - Indian Penal Code,1860 - Sections 376(2)(i), 376(2)(n), 363, 366-A - Criminal Procedure Code,1973 - Section 164 – Appeal Against conviction - accused is challenging judgment and order – Offence of Murder - Prosecution case on October victim female child/PW1 was going to school by walk - Appellant/convicted accused came on motorcycle and gave lift to her - When she sat on motor-cycle another boy sat behind her - When they reached school teacher was punishing late comers - Appellant/convicted accused then kidnapped her with aid of another boy sitting behind victim female child/PW1 - She was taken to bus stand by threatening to kill her - At bus stand boy riding on pillion seat went away - She was made to sit in bus by appellant/convicted accused under threats - Then by bus they went to Railway station - By train she was taken to Hyderabad - There they stayed in house - Held, Appellant/convicted accused was years of age when incident took place - There is nothing on record to show that he is a habitual offender or criminal - Incidents of sexual intercourse between him and victim female child/PW1 were consensual in nature though victim female child/PW1 had not attained age of consent - In other words appellant/convicted accused had not committed penetrative sexual assault by using force on victim female child/PW1 - Victim female child/PW1 had eloped with him and kidnapping was not by taking her by applying force - Therefore court am of considered opinion that imposition of sentence of years rigorous imprisonment on appellant/convicted accused so also imposition of fine him is totally disproportionate in facts of case in hand - Evidence of PW2 shows that victim female child/PW1 has already received compensation from State - Appellant/convicted accused is described as a labour in charge-sheet - As such court am of considered opinion that fine imposed on him also needs to be reduced suitably - Appeal is disposed off

JUDGMENT :

A.M. Badar, J.

1. By this appeal, appellant/convicted accused is challenging judgment and order dated 25th April 2018, passed by the learned Designated Court for Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as 'POCSO' Act for the sake of brevity) Additional Sessions Judge, Solapur in Special Case No. 72 of 2015 thereby, convicting him of offences punishable under Sections 6, 8, 10 and 12 of POCSO Act as well as under Sections 376(2)(i), 376(2)(n), 363, 366-A of the Indian Penal Code. For the offence punishable under Section 6 of the POCSO Act, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 15 years apart from direction to pay fine of Rs. 20,000/-, in default to undergo simple imprisonment for six months. For offences punishable under Section 8 of the POCSO Act the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 3 years, apart from direction to pay fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for six months. For offences punishable under Section 10 of the POCSO Act the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 5 years, apart from direction to pay fine of Rs. 4,000/- and in default to undergo rigorous imprisonment for six months. For offences punishable under Section 12 of the POCSO Act the appellant/convicted accused is sentenced to suffer rigorous imprisonment for one year, apart from direction to pay fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for six months. No separate sentence came to be awarded to him for the offence punishable under Section 376(2) of the Indian Penal Code. For offences punishable under Section 363 of the Indian Penal Code, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 2 years apart from direction to pay fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for three months. For offences punishable under Section 366-A of the Indian Penal Code, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 4 years, apart from direction to pay fine of Rs. 3,000/- and in default to undergo rigorous imprisonment for three months. Substantive sentences are directed to run concurrently.

2. Brief facts in brief, leading to the prosecution as well resultant conviction of the appellant/accused can be summarized thus:

    (a) The victim of the crime in question is examined as PW1. She is female child born on 25th December 2000. She was residing alongwith her father PW2 Rajkumar and other family members at Sunil Nagar, Solapur and was taking education at Mahatma Vidyamandir in 9th Standard.

(b) According to the prosecution case, on 30th October 2015, the victim female child/PW1 was going to the school by walk. Appellant/convicted accused came on motorcycle and gave lift to her. When she sat on the motor-cycle, another boy sat behind her. When they reached the school, the teacher was punishing late comers. The appellant/convicted accused then kidnapped her with the aid of another boy sitting behind the victim female child/PW1. She was taken to the bus stand by threatening to kill her. At the bus stand the boy riding on pillion seat, went away. She was made to sit in the bus by the appellant/convicted accused under threats. Then by bus, they went to Railway station. By train she was taken to Hyderabad. There they stayed in the house.

(c) According to the prosecution case, appellant/convicted accused committed penetrative sexual assault on the victim at the tin shed at Chanda Nagar, Hyderabad for two days. Thereafter she was taken to Secunderabad at the house of one Sanjay Jadhav There also, the appellant/convicted accused committed penetrative sexual assault on her. Ultimately, Saifan, brother of appellant/convicted accused alongwith others came and the prosecutrix was taken under threats to MIDC police station, Solapur on 30th October 2015.

(d) In the meanwhile, on finding her f

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