2024:BHC-AUG:23219-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 889 OF 2023 Nivrutti S/o Nagorao Hange, Age: 43 years, Occu: Labourar, At Present R/o Prakashnagar, Lane No.3, Kukundwadi, Permanent R/o Hangewadi, Post Kingaon, Tq. Ahmedpur, District Latur .… Appellant VERSUS

1. The State of Maharashtra Through Police Offcer, Kukundwadi Police Station, Aurangabad

2. X.Y.Z. .… Respondents .....

Appearance :-

Mr. Deoda Mohit Lalit and Mr. Pavan M. Salunke, Advocate for the Appellant Mr. Govind A. Kulkarni, APP for the Respondent No.1 / State Ms. Vinaya Dharurkar, Advocate for Respondent No.2 [Appointed]

..…

CORAM : R. G. AVACHAT &

NEERAJ P. DHOTE, JJ.

Reserved On : 22/08/2024 Pronounced On : 25/09/2024 JUDGMENT : [PER NEERAJ P. DHOTE, J.]

1. This Criminal Appeal, fled under Section 374[2] of the Criminal Procedure Code, 1973 [hereinafter referred to as ‘Cr.PC’] challenges the Appellant’s conviction and sentence awarded by the learned Additional Sessions Judge, Aurangabad, vide Judgment and Order dated 03/03/2022, in Special [POCSO] Case No.43/2016, as under :-

“(i) The accused – Nivrutti Nagorao Hange is convicted under Section 235 of Cr.PC for the commission of offence under Section 3(a) punishable under section 4, and the offences under Sections 5(j) (ii), 5(l), 5(n), 5(p) punishable under Section 6 of the POCSO Act.

(ii) The accused – Nivrutti Nagorao Hange is convicted under Section 235 of Cr.PC for the charge of commission of offence punishable under Section 376 (2)(i) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life, which shall mean imprisonment for the remainder of his natural life and to pay fne Rs.3000/-; in default of payment of fne the accused to undergo simple imprisonment for six months.

(iii) The accused – Nivrutti Nagorao Hange is convicted under Section 235 of Cr.PC for the charge of commission of offence punishable under Section 376(2) of the Indian Penal Code and sentenced to suffer an imprisonment for life which shall mean imprisonment for the remainder of his natural life and to pay fne Rs.3000/-; in default of payment of fne the accused to undergo simple imprisonment for six months.

(iv) All the substantive sentences shall run concurrently.”

2. The Prosecution’s case as revealed from the Police Report is as under :-

[I] The Prosecutrix, hail from Village Martandwadi, Taluka Palam, District Parbhani. For education purpose she had come to reside at Aurangabad with her eldest married sister, from the year 2009. The Appellant was her brother-in-law [husband of sister]. At the relevant time, she was taking education in 8^th standard. Her sister was a working woman and her sister had school going children. The Appellant, taking disadvantage of the situation, committed sexual intercourse with the Prosecutrix. The Appellant threatened the Prosecutrix with the consequence that, he will discontinue her education and kill her sister. Due to the threat, the Prosecutrix did not disclose the repeated sexual intercourse by the Appellant on her. After some months, the Prosecutrix had stomach ache and vomiting, therefore, her sister took her for medical examination.

Sonography was advised by the Doctor. The medical examination revealed that the Prosecutrix was pregnant. On inquiry by the sister, the Prosecutrix disclosed her the sexual act by the Appellant on her. The Prosecutrix was admitted to the Hospital. She aborted naturally a non-viable foetus. On the statement of the Prosecutrix, the criminal law was set in motion and Crime bearing No.275/2013 came to be registered against the Appellant for the offences punishable under Sections 3(a), 4, 5(j)(2), 5(l), 5(n), 5(p), 5(q) and 6 of the Protection of Children From Sexual Offences Act, 2012 [hereinafter referred to as ‘the POCSO Act’]

[II] The Investigating Machinery recorded supplementary statement of the Prosecutrix, statements of the witnesses, conducted the Spot Panchnama, collected the medical papers, referred the P