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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sadhana S. Jadhav, Prithviraj K. Chavan, JJ.
Ramesh Tukaram Vavekar – Appellant
Versus
State of Maharashtra and Others – Respondents
Criminal Appeal No.1430 of 2018
Decided On : 24-02-2022
Protection of Children from Sexual Offences Act, 2012 - Sections (2)(1)(d), 4 and 8 - Indian Penal Code, 1860 - Section 376 and 354 (a) - Code of Criminal Procedure, 1973 – Sections 235 (2), 363(1) and 428 - Rule 7 - Offence of Rape – Crime Against Minor - Period of detention – Appeal against Conviction - whether she has had any love affair and who was responsible for her Pregnancy - Alleged by PW 1 in her F.I.R. that someone had taken disadvantage of her minor daughter who was 17 years of age and committed penetrative sexual assault resulting into her pregnancy - During investigation, it revealed that victim was acquainted with appellant which was substantiated from statements of witnesses as well as from call details record of their respective mobile phones.
Finding of the court :
The child born to victim is indeed her legal heir and also a victim in view of definition of “victim” and therefore, he must be adequately compensated for as it was appellant who is responsible for bringing him in this world and then abandoning him at mercy of an Orphanage - Sub-rule 3 of Rule 7 of POCSO Rules contemplates that though Special Court is empowered to award compensation under Section 33(8) of POCSO Act read with sub-sections (2) and (3) of section 357-A of Cr.P.C to victim by taking into account all relevant factors relating to loss or injury caused to victim, yet in view of sub- rule 4 of Rule 7 of POCSO Rules, compensation awarded by Special Court is to be paid by State Government from Victims Compensation Fund or other scheme or fund established by it for purposes of compensating and rehabilitating victims under Section 357-A of Cr.P.C - No doubt, victim is no more. However, now welfare of child born out of illicit relations between victim girl and appellant would be of paramount importance. As abundant caution as well as in view of public policy, law can not afford to allow such consequence befalling an innocent child only because he was abandoned by a father (appellant) - No fruitful purpose would be served in detaining appellant for his entire life, instead, if amount of compensation to be awarded to child, is adequate, it would serve ends of justice. We are, therefore, inclined to reduce substantive sentence upto 10 years inter alia directing appellant to pay an amount of Rs.2 lakhs towards compensation for welfare of child born out of relations between him and victim girl (mother of child) - Conviction of appellant of offence punishable under Section 4 of Act, 2012, maintained - Compensation Granted – Direction issued.
Result : Appeal disposed of
JUDGMENT :
Prithviraj K.Chavan, J.
1. Challenge in this appeal is to the judgment and order of conviction and sentence rendered by the Special Judge, Greater Bombay under the Protection of Children from Sexual Offences Act, 2012, (for short ‘POCSO Act’) in POCSO Special Case No.8 of 2016 dated 26.09.2018 by which, the appellant has been convicted and sentenced as under;
2. Accused Ramesh Tukaram Vavekar is punished u/s 4 of the Protection of Children from Sexual Offences Act, 2012, there is no need to punish him separately for the offence punishable u/s 376 of the Indian Penal Code, 1860 as per the provisions u/s 42 of the Protection of Children from Sexual Offences Act, 2012.
3. Set off of the period of detention already undergone by the accused be given to him as per Section 428 of the Code of Criminal Procedure.
4. Copy of this judgment be provided to the accused free of cost as per Section 363(1) of Cr.P.C.
5. White colour Gionee mobile @ battery (Article 1 colly.) and mobile of L.G. Company @ battery (Article 3 colly.) be sold in auction as is not claimed and sell proceeds be credited to Government.
6. Label of Article 1 colly. (Article 1 A) and Label of L.G. Mobile (Article 2) be destroyed after expiry of the appeal period.
7. Sealed and unmarked articles if any be destroyed after the expiry of appeal period.
8. Judgment pronounced in the open Court.
9. As the matter is disposed of by this Judgment, the record and proceedings be sent to the record department.
2. Complainant - PW 1 (for short PW 1), is a widow residing with her 3 daughters and one son at Santacruz (West) Mumbai-400 054. Her eldest daughter was married about 2 years before the incident. She was cohabiting with her husband at Khar. Her second daughter who was aged about 19 years and victim herein who was 17 years were residing with their mother. The victim was in 10th standard studying at a High School in Bandra (West), Mumbai.
3. PW 1 was a housemaid who used to leave her home at 11.00 a.m. everyday and used to return in the evening. Two months prior to the incident, she noticed that whenever the victim used to be at home, she always used to sleep. PW 1 had noticed the change in her behaviour and therefore, she asked her elder daughter to talk to her. At that time they realized that the victim was pregnant. The victim was, therefore, taken to the hospital of one Dr.Hikimani on 15.9.2015 at his clinic in Khar. After examination, the doctor confirmed that the victim was pregnant and advised sonography. Victim was taken to the clinic of one Dr.Subodh Mehta on 16.9.2015. Result of sonography test revealed that she was in her 8th month of pregnancy and date of delivery was 11.10.2015. Complainant and the victim alongwith her sister returned home and alongwith son-in-law of the complainant enquired with the victim as to whether she has had any love affair and who was responsible for her pregnancy. However, the victim did not divulge anything. She even did not tell the name of the person who had impregnated her.
4. Before coming to reside at Santacruz (W),Mumbai, the complainant and her family were residing at Narli Agripada. Before that they were residing at Virar. Husband of the complainant had died 6 years ago.
5. On 8.10.2015, at about 3.00 a.m. the victim went to answer nature’s call. When she returned, she experienced giddiness and therefore, complainant called her elder daughter from Khar. Since the victim was experiencing convulsions and unconsciousness she was given first aid at home. As the condition of the victim aggravated and she was intermittently becoming unconscious, she was
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