JUDGMENT- M.F. SALDANHA, J.:---On 5-1-1988, a most gruesome, horryfying and reprehensible incident took place at about 4.30 p.m. at village Gojegaon in Satara District, when a child by the name of Savita Balwant Ghorpade aged hardly 4 years was taken to a lonely place and raped by a young man who ostensibly claimed to be of unsound mind. It is alleged that the accused Umesh Krishna Pawar who is an agriculturist by profession had picked up this girl and taken her on his bicycle to a lonely place near the canal. At that spot he is alleged to have sexually assaulted Savita after which he lifted up the unclothed girl and threw her into the canal. It so happened that just at that point of time P.W. 7 Prakash Khandale happened to have witnessed the incident and on seeing the child being thrown into the canal he raised an alarm. Two of the villagers who were close-by in a bullock cart were immediately alerted. One of them not only jumped into the water and saved the life of the young girl by taking her out, but they also chased the accused who attempted to run away and apprehended him. Both of them were brought to the village and subsequently the grand-father of the girl P.W. 2 Tukaram Ghorpade lodged a complaint at the Satara Police Station. The Police authorities commenced their investigations and sent the minor girl as also the accused to the hospital for medical examination. The clothes of the accused and the underwear of the girl were taken charge of under a panchanama and sent to the Chemical Analyser. On completion of the investigation, the accused was put up for trial and the learned 3rd Additional Sessions Judge, Satara, found the accused guilty of all the five charges and convicted and sentended him as follows. For the offence under section 376 I.P.C., he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default rigorous imprisonment for three months; for the offence under section 366 I.P.C., he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/-, in default rigorous imprisonment for three months, for the offence under section 307 I.P.C., he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default rigorous imprisonment for three months. 500/-, in default rigorous imprisonment for three months, for the offence under section 307 I.P.C., he was awarded rigorous imprisonment for three years and to pay a fine of Rs. 500/- in default rigorous imprisonment for three months. As far as the offence under section 323 is concerned, he was awarded a sentence of rigorous imprisonment for three months and for the offence under section 57 of the Bombay Childrens Act, he was awarded a sentence of rigorous imprisonment for three months. All the substantive sentences were ordered to run concurrently. The judgment in question was pronounced on 31st December, 1991 and we find from the record that the appellant has not preferred any appeal against the convictions and sentences. The State of Maharashtra, however, having regard to the horrendous nature of the offence, has preferred this appeal for enhancement of sentence. 2. Mrs. Randive, the learned A.P.P. has taken us through the evidence on record, as also the judgment of the trial Court. She points out that as far as the commission of the offences are concerned, that the evidence is conclusive and that the State is only aggrieved with the quantum of sentence. However, considering the fact that this is an appeal for enhancement and that the learned Counsel appearing on behalf of the respondent-accused is entitled in law to challenge the conviction itself, the learned A.P.P. has taken us through the entire set of depositions as also the documentary evidence which consists of the panchanamas, medical evidence and the C.A. report. 3. We need to mention at this stage that the learned trial Judge has discussed the defence that was put forward before him which was to the effect that the accused was a person of unsound mind. Insanity when it is established to the extent that the law requires, is an absolute defence in criminal cases provided the Court is satisfied that the accused at the time when he committed the offence was in such a mental condition that he was unaware of the nature and consequences of his act. The case law as far as such defences are concerned is well crystallised and it is necessary for us to record that the onus of establishing that the accused is covered by an exception namely the fact that he is of unsound mind shifts essentially to the defence. The case law as far as such defences are concerned is well crystallised and it is necessary for us to record that the onus of establishing that the accused is covered by an exception namely the fact that he is of unsound mind shifts essentially to the defence. Further more, the case law is very clear with regard to the fact that it must be established that the gravity of the mental illness or ailment is so serious and of such a nature as to disqualify the accused person from being aware of what exactly he is doing and that it must also be demonstrated that he is incapable of being able to distinguish between right and wrong. This burden is a heavy one and unless the burden is fully discharged merely because it is demonstrated that the accused is given to wayward habits or that he has demonstrated pecularities in his behaviour, the law will not take cognizance of such facts nor will he qualify for being declared legally insane. In the present case, before dealing with the prosecution evidence, we would prefer to deal with this aspect of the matter, because it is of some consequence. We have on record the evidence of the two doctors who were examined at the beginning of the trial. The first of them is P.W. 1 Dr. Prafulla Nilkantha Nerlikar who is a Pschyatrist attached to the Yerwada Mental Hospital. This doctor has opined that when she initially examined the accused in June, 1990 that she observed from his mental condition that he was a fit case to be categorised as a lunatic and that she recommended his being admitted to the mental hospital. We also have on record the evidence of another doctor Nirjan Kavare who had examined the accused at more or less the same time i.e. at the beginning of June, 1990. The incident in the present case had taken place in Junary, 1988 and we are essentially concerned with the mental condition of the accused as on the date of the commission of the offence. It is true that these two doctors have opined that the accused appeared to be mentally ill and that it was for this reason that he was admitted to the Mental Hospital. It is true that these two doctors have opined that the accused appeared to be mentally ill and that it was for this reason that he was admitted to the Mental Hospital. It was on these grounds that the trial against the accused did not proceed because it is equally well settled law that if an accused person is not in a position to stand trial, that the Court ought not to proceed with the trial in such cases as he would not be in a fit condition to instruct his counsel. We have taken cognizance of the fact that the accused was treated at the Mental Hospital and that the Superintendent had thereafter certified that as a result of the treatment to which he responded that he had come back to normally and it was only after this recovery that the trial in the present case has proceeded. As far as the conduct of the trial is concerned, therefore, in our considered view there is no infirmity whatsoever and the learned trial Judge was fully justified in having waited until the accused had recovered from his mental ailment. 4. With regard to the more important aspect, namely the question as to whether the accused was insane at the time of the commission of the offence, we do not have anything on record or for that matter even as far as the cross-examination of the witnesses from the village are concerned, no such case has been put to them. The only material on the basis of which this argument proceeds is the evidence of D.W. 1 the wife of the accused. She has stated in her evidence that she comes from a poor family and that even at the time when she was married to the accused he was behaving totally insane. She has recounted how several times he used to leave the house and not return for days together and that she had to go and bring him back. She also states that the behaviour of the accused was extremely unusual in so far as there were occasions when she had put his clothes on him. She has deposed to the fact that as far as their marital life was concerned, that the accused used to behave in an abnormal fashion. She also states that the behaviour of the accused was extremely unusual in so far as there were occasions when she had put his clothes on him. She has deposed to the fact that as far as their marital life was concerned, that the accused used to behave in an abnormal fashion. She goes on to state that on the date of the incident in the afternoon the accused had been in the house; that he had forcible sexual intercourse with her and that he had injured her in the process. This last aspect of the matter has obviously been brought on record for the purpose of explaining certain injuries that were found on the accused and more importantly for explaining the presence of the blood on his clothes which we shall deal with separately. The evidence of the wife D.W. 1 even if taken at face value would at the highest indicate a delinquent irresponsible or accentric traits in the behaviour on the part of the accused but this in our considered view would not bring him any where near the position of being an insane within the meaning of section 84 of the I.P.C. namely that he was medically insane. 5. Mr. Joshi, learned Counsel appointed to appear on behalf of the respondent-accused did make a forceful plea that unless the accused were most certainly in this condition, that his wife would not have given evidence on oath along the aforesaid lines. Mr. Joshi also contended that the evidence of the wife cannot be discarded on the ground that she is coming forward to support the husband on a serious charge and is therefore willing to lie becuase at a subsequent point of time when the accused was examined by the medical personnel he was in fact certified to be a lunatic. Mr. Joshi, therefore, submits that there is considerable substance in the defence plea that the accused was of unsound mind and that therefore the conviction ought to be set aside on this ground alone. 6. We have carefully considered the plea of insanity that has been put forwarded on behalf of the accused, the material that is on record, the circumstances and the probabilities of the case as also the medical and legal position. The scrutiny along all these lines indicates that the accused does not qualify to come within the category of an insane person. The scrutiny along all these lines indicates that the accused does not qualify to come within the category of an insane person. There is nothing on record to indicate that this was his mental condition on the date when the incident took place. As we shall presently illustrate the accused obviously and completely knew everything that he was doing as also consequences of his acts and in these cirrumstances, to our mind the defence of insanity cannot avail him. As an illustration we need to record that the evidence in this case indicates that the accused put the young girl on a bicycle and took her to a lonely place. This is in keeping with the conduct of a sane person and one who was planning an offence of this type rather than a mad man who in a fit of insanity would attack a women or child. Secondly, we do find from the record that after committing the offence and after sexually assaulting the young child that the accused also not merely run away but that he took the precaution of lifting the body and throwing it into the canal with the obvious reason of screening of the evidence or the consequences of his act. This is a carefully thought out and manipulated action and certainly not the act of an insane human being. Tested from these angles therefore, to our mind, the defence of insanity requires to be rejected and the learned trial Judge has rightly done so. 6. As far as the evidence on record is concerned, we need to refer to the deposition of P.W. 4 Rajendra Barge who states that on the afternoon in question, while he was proceeding along the canal in his bullockcart, that he heard something falling into the water, on an alarm being raised he jumped into the water and rescued Savita the girl was in an unconscious condition but had obviously just been thrown into the water as a result of which Rajendra and his brother Tukaram were able to revive her. They wrapped her in a Towel and thereafter placed her in the bullockcart. In the meanwhile, P.W. 7 Prakash Kanjale who had witnesses the entire incident and who had raised the alarm had given an indication of the fact that the accused was the person who had raped the young girl before throwing her into the canel. They wrapped her in a Towel and thereafter placed her in the bullockcart. In the meanwhile, P.W. 7 Prakash Kanjale who had witnesses the entire incident and who had raised the alarm had given an indication of the fact that the accused was the person who had raped the young girl before throwing her into the canel. The Barge brothers apprehended the accused and brought him back to the village in the same cart. They had also taken charge of the bicycle that was with him. In the meanwhile the mother of the girl and P.W. 2 Tukaram Ghorpade the grand father, were looking for her and on hearing what had happened they immediately went to the Satara Police Station and lodged a complaint. It has come in their evidence that Savita was at that time still complaining of intense pain and that she was bleeding rather badly. 7. As far as the evidence of these witnesses is concerned, Mr. Joshi, pointed out to us that it would be impossible to accept that P.W. 7 could have witnessed the incident at all. Mr. Joshi submits that P.W. 7 Prakash is a Government Officer and it is his version that he was passing by on his bicycle when he saw the accused assaulting the four year old girl. Mr. Joshi states that any person who had witnessed an adult man sexually assaulting a four year child, would have most certainly intervened in the matter and would not have just stood there watching the entire incident. He was very critical about the conduct of Prakash who states that after the child was taken from the canal and the accused had been apprehended that he just went his own way. Mr. Joshi submits that the least that one would expect of a person was that he should intervene and that he would accompany the remaining persons and that he would go to the Police. The conduct of Prakash does appear to be slightly unusual and there is no doubt about the fact that one would have expected him to have behave slightly differently. He has however indicated very congent reasons for his presence and the other aspect of the matter which is of some importance, is that as far as the version set out by him before the Court is concerned, even though he has been rigorously cross-examined nothing has been demolished. He has however indicated very congent reasons for his presence and the other aspect of the matter which is of some importance, is that as far as the version set out by him before the Court is concerned, even though he has been rigorously cross-examined nothing has been demolished. He has withstood the cross-examination perfectly and it would therefore be difficult to discard his evidence. 8. We need to also take note of the fact that the prosecution does not rest solely on the evidence of Prakash Kenjale because it is the two Barge brothers who were also present there who had rescued the girl and who had apprehended the accused on the spot. The evidence of Prakash is therefore fully corroborated by the evidence of the other two witnesses. As far as these persons are concerned, it is Mr. Joshis submission that they might have been instrumental in rescuing Savita from the Canal, but it is Mr. Joshis submission that had the accused been the real culprit that he would most certainly have run away from that spot when he had an opportunity to do so and would not have remained lying under a tree and allowed himself to be caught by these two persons. That the accused is a person given to abnormal behaviour, there is of little doubt about, because the type of incident that he is responsible for being involved in the strongest proof of this fact since it would be difficult to conceive of any normal persons indulging in an offence of the present type. This however, would not be good enough ground for us to discard the evidence that has come on record, more so because it has withstood the test of cross-examination. The learned trial Judge has therefore rightly relied on this evidence and has recorded a conviction against the accused. 9. The learned A.P.P. has drawn our attention to the medical evidence which we do not require to deal with in detail. This evidence more than fully supports the prosecution case. The learned trial Judge has therefore rightly relied on this evidence and has recorded a conviction against the accused. 9. The learned A.P.P. has drawn our attention to the medical evidence which we do not require to deal with in detail. This evidence more than fully supports the prosecution case. Even though the girl Savita was thrown into the water and even though she was taken to the hospital after mid-night on that day it was after the lapse of about 10 to 12 hours, the injuries on her body clearly indicate that she had been subjected to assault and an examination of the genital area establishes that she had been raped. 10. Mr. Joshi pointed out to us that there are certain significant aspects in the medical evidence which would support the defence. He contended that the injuries on the girl were promminatly on the left side of her body, and he further indicated that at the time when the doctor examined her that there was no bleeding present. Also Mr. Joshi pointed out to us that even though the hospital authorities had done a swab test, that there was no evidence of spermatozoa. We have taken note of these factors but to our mind they are of little consequence because where the evidence primarily indicates that it fully supports the oral evidence in this case namely that the girl had been subjected to a sexual assault, the fact that the injuries are on one side of the body and not on the other or for that matter the fact that there was no evidence of spermatozoa at the time when she was examined are quite inconsequential. 11. As far as the C.A. Report is concerned, Mrs. Randive, the learned A.P.P. has pointed out to us that it more than fully establishes the present offence. She has taken us through the material on record which indicates that the B group blood which happens to be the blood group of Savita was found on the Trouser of the accused. A group blood was also found on the clothes of the accused and that is explained by the fact that in the courses of the incident the accused himself had sustained certain injuries. A group blood was also found on the clothes of the accused and that is explained by the fact that in the courses of the incident the accused himself had sustained certain injuries. There is valid explanation for the presence of B group blood on the clothes of the accused from the fact that the heavy bleeding that had occured when Savita was sexually assaulted had resulted in some of that blood getting on to the clothes of the accused. As regards this aspect of the matter, Mr. Joshi, drew our attention to the evidence of D.W. 1 the wife of the accused who has stated that prior to leaving the house, he had forcible sexual intercourse with her, that she had been hurt and that she was bleeding and Mr. Joshi submits that this is the explanation for the presence of the blood as also the injuries on the person of the accused. In our considered view, this explanation is totally worthless for the simple reason that there is nothing on record to indicate that the blood group of the wife of the accused was of B group. Apart from this there are several other circumstances which we do not require to re-count which would be sufficient to totally destroy this head of evidence, the first of them being the fact that the accused was married for several years and that it is most unlikely that any incident of the type conld have taken place on that after-noon at all. 12. On a totality of the consideration of the evidence and after hearing the learned Counsel on both sides, we have no hesitation whatsoever in confirming the findings as also the convictions recorded by the learned trial Judge. The learned A.P.P. at this stage advanced a very valid and very persuasive submission namely that the nature and the character of this offence is so horryfying and so reprehensible that the learned trial Judge ought not to have taken a lenient view. She submitted that it is a total miscarriage of justice but more importantly that even the provisions of the law have been over-looked. Section 376 I.P.C. specifically provides that in case of a rape of a minor person, that the Court is left with no discretion except to award a sentence of not less than 10 years rigorous imprisonment. She submitted that it is a total miscarriage of justice but more importantly that even the provisions of the law have been over-looked. Section 376 I.P.C. specifically provides that in case of a rape of a minor person, that the Court is left with no discretion except to award a sentence of not less than 10 years rigorous imprisonment. It is true for valid reasons, the Court is entitled to award a lessor sentence, but we have gone through the reasons set out by the learned trial Judge which to our mind do not justify having shown leniency. Mr. Joshi advanced the submission that this Court ought to take note of the fact that the accused comes from a very poor strata; secondly that he is a young man and thirdly that there is sufficient material on record, even if his plea of insanity is discarded that he was mentally un-balanced. Mr. Joshi submitted that, having regard to all these factors that the learned trial Judge has exercised his discretion and that in these circumstances, this Court ought not to interfere with the quantum of sentence. 13. This case represents certain facts that require to be specially high-lighted, the first of them is the fact that this happens to be a sexual assault on a child of tender years. The law has made specific provision for rigorous punishment in respect of offences of this category and it would be a total mockery of the Justice Despensation System if leniency is to be shown to depraved persons in cases of this type. The physical injuries apart, the mental trauma involved are good grounds to categorise it as one of the worst forms of anti-social offences and under these circumstances, in our considered view, the leniency dis-played by the learned trial Judge was totally mis-placed. The argument that the accused was a young man, totally fails to convince us. A human-being of the age of 22 years is sufficiently grown up and even in society it is intolerable for males of this age to indulge themselves in sexual assaults on tender young girls. The argument that the accused was a young man, totally fails to convince us. A human-being of the age of 22 years is sufficiently grown up and even in society it is intolerable for males of this age to indulge themselves in sexual assaults on tender young girls. Under these circumstances, to our mind the provisions for rigorous punishments that have been specially prescribed by the legislature particularly after the amendment of section 376, require to be seriously applied with a degree of muscle as it is expected to act as a social deterrent and an eye-opener to those who have similar inclinations. 14. As regard the last argument of Mr. Joshi namely that the accused was obviously a person who was unbalanced, we have no hesitation in recording that a human being who indulges in an offence of this type certainly possesses sick mind that would not qualify him for leniency of any type but would on the other hand justify an even harsher sentence because it is not permissible to allow maniacs of this type to be let-loose on society, they are better off in jail and women of the outside world in particular would be safer in their absence. 15. Having regard to this situation, as far as the convictions are concerned, we confirm all the five heads of the conviction. The sentence of three years rigorous imprisonment and fine of Rs. 500/- in default rigorous imprisonment for three months awarded by learned trial Judge for the offence under section 376 I.P.C. is set aside. In its place, it is directed that the accused shall undergo a sentence of 10 years rigorous imprisonment and fine of Rs. 1000/- in default rigorous imprisonment for one year. As regards the sentence awarded under section 366 I.P.C. is concerned, the same is confirmed. As regards the conviction under section 307 I.P.C. is concerned, we need to record that this was a case in which the accused obviously attempted to kill the young girl after having raped her and the persons from the village saved her life. This would not in any way minimise the gravity of the offence and it is in these circumstances that for the conviction under section 307 I.P.C. we consider that the sentence of rigorous imprisonment of three years and fine of Rs. 500/- in default rigorous imprisonment for three months is wholly inadequate. This would not in any way minimise the gravity of the offence and it is in these circumstances that for the conviction under section 307 I.P.C. we consider that the sentence of rigorous imprisonment of three years and fine of Rs. 500/- in default rigorous imprisonment for three months is wholly inadequate. This sentence is set aside and in its place it is directed that the accused undergoes rigorous imprisonment for seven years and pays a fine of Rs. 1000/- in default rigorous imprisonment for one year. As far as the conviction under section 323 I.P.C. is concerned, the same is confirmed. Coming to the last head of the conviction namely the one under section 57 of the Bombay Childrens Act, we set aside the sentence of rigorous imprisonment of three months. This is a special provision enacted in order to prevent attacks on minors and in our considered view the accused who stands convicted under section 57 of the Bombay Childrens Act is liable to be sentenced to rigorous imprisonment for one year. 16. The appeal accordingly succeeds and is allowed. The conviction recorded by the trial Court stands confirmed. Normally the Court directs that the substantive sentences awarded shall run concurrently. We have evaluated the special circumstances of this case, one of which is that rape of minor can invite a life sentence. On the special facts of this case we specifically direct that the sentences shall not run concurrently. Appeal allowed.