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2024 DIGILAW 652 (BOM)

Sudhir Laxman Sonawane v. State of Maharashtra

2024-06-10

SARANG V.KOTWAL

body2024
JUDGMENT : SARANG V. KOTWAL, J. 1. The Appellant was the original accused in POCSO Case No.490 of 2014. The learned Designated Court under the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘POCSO Act’), Greater Mumbai, vide the Judgment and order dated 26.07.2017 convicted the appellant for commission of the offences punishable under sections 376, 354, 342 and 170 of the I.P.C. along with Sections 4, 10 and 12 of the POCSO Act. Considering the greater degree of sentences provided U/s.376 of the IPC and Section 4 of the POCSO Act than the other offences, the appellant was sentenced to suffer R.I. for 14 years and to pay a fine of Rs.50,000/- and in default of payment of fine to suffer R.I. for six months. Out of the fine amount, Rs.40000/- were directed to be paid to the victim by way of compensation. In addition, since the compensation was not adequate for the victim’s rehabilitation, the District Legal Services Authority was recommended to pay adequate compensation to the victim as per amended Section 357-A, Sub Clause (1) of Cr.P.C. The appellant was in custody from 19.09.2014. He was given set off U/s.428 of the Cr.P.C. 2. The Appellant has challenged this Judgment and order by way of the present appeal. 3. Heard Mr. Pawan Mali, learned appointed advocate for the Appellant, Ms. Ranjana Humane, learned APP for the State/Respondent No.1 and Ms. Prajakta Jagtap, learned appointed advocate for the Respondent No.2. 4. The prosecution case is that the victim was 13 years of age, on the date of the incident i.e. on 09.08.2014. She was present in the house along with her younger brother. Her parents had gone for work. At about 1:30p.m., one unknown person came to her house. Her brother was sent out on some pretext. Thereafter the unknown person told her that he had come at the instance of the victim’s father and that he would help her in getting a job in the police department. For that purpose, he needed to take her measurement. By saying so, he removed her clothes and committed penetrative sexual assault. When the victim raised shouts, he ran away. When the victim’s mother came home, the victim narrated the incident to her; who in turn, informed the victim’s father. For that purpose, he needed to take her measurement. By saying so, he removed her clothes and committed penetrative sexual assault. When the victim raised shouts, he ran away. When the victim’s mother came home, the victim narrated the incident to her; who in turn, informed the victim’s father. The victim and her mother went to the police station and lodged an F.I.R. vide the C.R.No.328 of 2014 at Tilak Nagar police station; at about 2:30p.m. The F.I.R. was registered at 3:30p.m. 5. The Appellant was in custody in connection with some other offence. He was taken in custody in the present case on 19.09.2014. At his instance, his clothes were recovered from his house. The Test Identification Parade (for short ‘T.I.Parade’) was held on 10.10.2014 in which the victim identified the appellant. The victim’s clothes were already recovered after registration of the F.I.R. The articles were sent for chemical analysis examination. The spot panchanama was recorded after registration of the F.I.R. The statements of witnesses were recorded and after completion of the investigation the charge-sheet was filed. The case was tried before the Designated Judge under the POCSO Act as mentioned earlier. 6. During trial, the prosecution examined nine witnesses including the victim, her mother, the Medical Officer, The Naib Tahsildar who conducted the T.I. Parade, the WPSI who recorded the F.I.R., panchas and the Investigating Officer. 7. After recording the evidence and the statement of the accused U/s.313 of the Cr.P.C., arguments were heard and the Appellant was convicted and sentenced; as mentioned earlier. 8. The prosecution case has unfolded through the evidence of the victim herself who is examined as PW-1. At the time of recording of her evidence, she was 15 years of age. The victim’s birth certificate was produced by the Investigating officer at Exhibit-47. Her date of birth was 13.12.2001. The Birth Certificate was collected from the B.M.C. There is no dispute about her date of birth. 9. PW-1 victim has stated that, at the time of the incident, she was 13 years of age. She was residing with her parents and her aunt’s son. She was studying in the 8th standard. The school timing was between 11:30a.m. to 5:00p.m. On the date of the incident, i.e. on 09.08.2014, she had not gone to the school. She was alone in the house with her younger cousin. Her parents had gone for work. She was residing with her parents and her aunt’s son. She was studying in the 8th standard. The school timing was between 11:30a.m. to 5:00p.m. On the date of the incident, i.e. on 09.08.2014, she had not gone to the school. She was alone in the house with her younger cousin. Her parents had gone for work. At about 1:00 to 1:30p.m., one unknown person came to her house and told her that, he was from the police department and that her father had sent him. He further added that since the victim had got good marks in the 10th standard, her father intended to get a job for her in the police department by giving money. He further told the victim that, he had come to take her measurement. He sent the victim’s cousin outside the house. Then, on the pretext of taking measurement, he tried to remove her clothes. The victim resisted, but he used force. He pressed her breast. It is her case that, he penetrated her private parts with his private parts. She raised shouts, therefore, he ran away. She described that person as tall, fair and having round face. PW-1 has identified the accused in the Court as the same person who had committed that offence. After 15-20 minutes, her mother returned home. PW-1 narrated the incident to her. Then both of them went to the police station. The police recorded the statements of the mother and PW-1. She was sent for medical examination. She gave history to the Doctor. She was sent to the Court at Sewree for recording her statement U/s.164 of the Cr.P.C. The statement is produced on record at Exhibit-20. She has further deposed that, she went to Arthur Road Jail for identification of the accused. She identified the accused amongst six dummies. She deposed that the accused was standing between the Dummy No.4 and 5. According to her, the dummies were similar to the accused. Her supplementary statement was recorded. She identified her clothes in the Court which were seized during the investigation. She further deposed that, at the time of incident the accused had shown her key-chain of the Maharashtra Police to prove that he was from the police department. She also identified that key-chain which was recovered from the Appellant. In the cross-examination, she stated that she had not gone to the school on that date. She further deposed that, at the time of incident the accused had shown her key-chain of the Maharashtra Police to prove that he was from the police department. She also identified that key-chain which was recovered from the Appellant. In the cross-examination, she stated that she had not gone to the school on that date. There were other houses adjacent to her house. Her younger cousin was studying in 4th standard. She had not seen the accused before the incident. It was her dream to become a police officer and she used to discuss the same with her parents. The accused was in the house for about half an hour. When she raised shouts they were not so loud to attract the attention of the neighbours. Her mother had informed about the incident to her father telephonically and her father had come to the police station. She could not recollect that her mother and the police had informed her to make a particular statement before the Magistrate. She has added that, at the time of recording her statement U/s.164 of the Cr.P.C. she was alone. She deposed that, at the time of T.I. Parade, the police from the Tilak Nagar police station were not present. She denied the suggestion that, she identified the accused at the instance of police. Her statement recorded U/s.164 of the Cr.P.C. is produced on record at Exhibit-20. It is consistent with her deposition. 10. PW-2 is the mother of the victim. She has deposed that, when she returned home on 09.08.2014, PW-1 called her on mobile phone and told her that police had come to their house. She immediately rushed to her house. PW-1 was crying. She narrated the incident to her. After that, both of them went to the police station. PW-2’s statement was recorded and treated as an F.I.R. It is produced on record at Exhibit-22. After that the police had sent PW-1 to Rajawadi hospital. PW-2 accompanied PW-1. She has further stated that, on 10.10.2014 she had gone to Arthur Road jail with her daughter for the purpose of T.I. parade. There was nothing significant in her cross-examination. The F.I.R. is produced on record at Exhibit-22. It substantially corroborates the evidence of PW-1 and 2. 11. PW-6 WPSI Shobha Diwre was the police officer who had recorded the F.I.R. which is produced at Exhibit-22. There was nothing significant in her cross-examination. The F.I.R. is produced on record at Exhibit-22. It substantially corroborates the evidence of PW-1 and 2. 11. PW-6 WPSI Shobha Diwre was the police officer who had recorded the F.I.R. which is produced at Exhibit-22. She had seized the clothes of the victim in the police station in presence of two panchas. She carried out the spot panchanama as the spot was pointed out by the first informant. She recorded the statement of the other child i.e. younger cousin of the victim. In the cross-examination, she stated that, she did not make any enquiries with the neighbours at the time of carrying out out spot panchanama. She did not make any efforts to get the sketch of the accused drawn as per the description given by the victim. The informant and the victim were at the police station on 09.08.2014 approximately upto 6:00p.m. She produced the spot panchanama at Exhibit-34. A mat was seized from the spot. 12. PW-3 Jitendra Sahane was a pancha in whose presence the Appellant made memorandum statement and produced a black coloured full shirt and blue coloured jeans, as well as, the key- chain from his house. His deposition is not shaken in the cross-examination. 13. PW-4 Dr. Pradnya Supe had conducted the medical examination of the victim. She has deposed that, there was an attempt of penetration in the private parts. Her opinion was that, there was no sign of use of force. Her opinion was that, there was an attempt of penetrative sexual assault. The medical report is produced on record at Exhibit-29, wherein, she had made the same observations. 14. PW-5 Sunil Jadhav was the Naib Tahsildar who had conducted the T.I. Parade on 10.10.2014. He conducted the T. I. Parade at Arthur Road jail at 11:00a.m. in presence of two panchas. The panchanama is produced on record at Exhibit-32. It gives details of the precautions which he had taken. It clearly mentions that the victim had identified the accused standing between Dummy No.4 and 5. Again in the cross-examination, nothing favourable could be elicited by the defence counsel. He stated that, his staff had brought the panchas and he was not knowing them. He did not make any enquiries with the accused regarding the case. It clearly mentions that the victim had identified the accused standing between Dummy No.4 and 5. Again in the cross-examination, nothing favourable could be elicited by the defence counsel. He stated that, his staff had brought the panchas and he was not knowing them. He did not make any enquiries with the accused regarding the case. He had asked the victim as to whether the police had shown the photographs of the accused to her. He denied the suggestion that, he had not conducted the T. I. Parade. 15. PW-7 Sawant was a neighbour. But her evidence shows that, her deposition was in respect of another offence involving another victim and it had nothing to do with the present offence. She was not even cross-examined. She was unnecessarily examined by the prosecution. 16. PW-9 Charu Bharati was the investigating officer. She has stated that the Appellant was already in custody in connection with C.R.No.298 of 2014 of Tilak Nagar police station. She took custody of the appellant from that particular C.R. She submitted that the appellant was convicted and sentenced for three years in connection with that particular offence. She recovered clothes of the appellant and the key-chain from his house at his instance, in presence of panchas. She sent the articles for C.A. examination. The C.A. report was received and it was produced before the court by this witness. This witness made arrangement for conducting the T. I. Parade. She was cross-examined in respect of location of the victim’s house and location of other houses around that particular spot. She was cross-examined in respect of the logbook etc., when they had gone to the house of the appellant to effect seizure of the clothes and key-chain. In the cross-examination, she has deposed that she arrested the appellant on 19.08.2014 and the T. I. Parade was held on 10.10.2014 by offering explanation that there was election during that period and, therefore, the T. I. Parade could not be conducted immediately. She denied the suggestion that before the T. I. Parade, the accused’s photograph was shown to the victim. The C.A. reports are produced on record at Exhibits-13 and 14. They show that, there were some blood spots on the appellant’s pant and there were semen spots on the clothes of the victim. The semen was of ‘O’ group. She denied the suggestion that before the T. I. Parade, the accused’s photograph was shown to the victim. The C.A. reports are produced on record at Exhibits-13 and 14. They show that, there were some blood spots on the appellant’s pant and there were semen spots on the clothes of the victim. The semen was of ‘O’ group. However, as rightly submitted by the learned counsel for the appellant, this incriminating evidence of C.A. report was not put to the appellant when his statement U/s.313 of the Cr.P.C. was recorded. He was not given opportunity to explain this incriminating evidence. Therefore, this particular piece of evidence will have to be excluded from consideration. 17. Learned counsel for the Appellant made following submissions. The victim’s evidence is not reliable. The incident is improbable. It was not possible that the neighbours would not have gathered after the victim had raised shouts. He submitted that the offender was unknown and, therefore, he could not have known about the victim’s dreams of becoming a police officer. He submitted that the T. I. Parade was not held immediately and there was infirmity in the procedure of T. I. Parade. He heavily relied on the opinion of the Medical Officer that there were no marks indicating use of force on the victim and at the highest the opinion was that there was only an attempt of penetrative sexual assault and that it was not actual penetrative sexual assault. As mentioned earlier, he also submitted that the C.A. reports will have to be excluded from the consideration as no questions were asked to the Appellant in that behalf when his statement was recorded U/s.313 of the Cr.P.C. 18. On the other hand, learned APP, as well as, the learned counsel for the victim supported the prosecution case and both of them relied on the consistent evidence of the victim and her mother. They submitted that, there was immediate reporting of the offence to the police and there was no scope of manipulation or for concocting a false story. There was no reason to implicate the appellant falsely. 19. I have considered these submissions. As discussed earlier, the evidence of PW-1, PW-2 and the statement recorded by the learned Magistrate of the victim PW-1 U/s.164 of the Cr.P.C. are absolutely consistent. Even the F.I.R. corroborates the prosecution story. There was no reason to implicate the appellant falsely. 19. I have considered these submissions. As discussed earlier, the evidence of PW-1, PW-2 and the statement recorded by the learned Magistrate of the victim PW-1 U/s.164 of the Cr.P.C. are absolutely consistent. Even the F.I.R. corroborates the prosecution story. The incident was immediately reported to the police station and the F.I.R. was registered without any delay. There was no scope for concocting a false story. Though, the prosecution has not examined any neighbours who had heard the victim’s shouts, the victim-PW-1 had explained that she could not raise shouts in loud voice. It is quite understandable that the victim was under shock and fear. Therefore, considering her tender age, she could not have gathered courage to come outside the house. The evidence of PW-2 shows that PW-1 immediately made a phone call to her and she had rushed home. At that time, PW-1 had narrated the incident to her. Both of them had immediately gone to the police station. Her clothes were seized. She was sent for medical examination. All this conduct indicates that their evidence is truthful. The statement recorded U/s.164 of the Cr.P.C. is also consistent. 20. Though, the Medical officer has stated that, in her opinion an attempt of penetrative sexual assault was made, the definition of ‘penetrative sexual assault’ U/s.3 of the POCSO Act is as follows:- 3. Penetrative Sexual Assault - A person is said to commit "penetrative sexual assault" if-- (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or (b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or (c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or (d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person. The key words in this definition are “to any extent”. 21. Even Section 375 of the I.P.C. reads thus:- 375. Rape.-- A man is said to commit "rape" if he-- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First. -- Against her will. Secondly. -- Without her consent. Thirdly. -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. -- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. -- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. -- With or without her consent, when she is under eighteen years of age. Seventhly. -- When she is unable to communicate consent. Again here the key words are “to any extent”. Therefore, when the victim has deposed that the accused has committed penetrative sexual assault, then even small penetration would constitute an offence defined U/s.375 of the I.P.C. and under Section 3 of the POCSO Act. Therefore, to that extent even, the Medical Officer’s opinion does not destroy the prosecution case when PW-1 is a reliable witness. 22. Therefore, when the victim has deposed that the accused has committed penetrative sexual assault, then even small penetration would constitute an offence defined U/s.375 of the I.P.C. and under Section 3 of the POCSO Act. Therefore, to that extent even, the Medical Officer’s opinion does not destroy the prosecution case when PW-1 is a reliable witness. 22. As far as, T. I. Parade is concerned, I do not find any infirmity in the procedure adopted by the Naib Tahsildar. The panchanama and PW-1’s deposition are consistent. The defence could not raise any doubt about the T.I. parade. The victim had sufficient opportunity to see the Appellant at the time of incident. She has also identified him in the Court. 23. Considering all these aspects, it is quite clear that the prosecution has proved its case beyond reasonable doubt. Therefore, I do not find any error in the reasoning of the learned Judge in convicting the appellant. She has rightly relied on the evidence of the victim as the most important piece of evidence. There is hardly any dispute about the age of the victim. 24. The next question is about the sentence imposed on the appellant. In that behalf, learned counsel for the Appellant submitted that the appellant had faced another case vide POCSO Special Case No.442 of 2014, in which, he was convicted by the Special Judge under POCSO vide the Judgment and order dated 22.03.2017. In that case the appellant was convicted U/s.12 of the POCSO Act and under sections 341, 170 and 509 of the I.P.C. In that case, he was imposed the sentence of R.I. for three years as the major sentence. Shri. Mali submitted that, this conviction and sentence were already operating when the conviction and sentence in the present case was recorded on 26.07.2017. He submitted that, at the time of passing of the sentence in the present case, Section 427 of the Cr.P.C. was applicable and the sentence in the present case could commence only after expiration of the sentence of imprisonment in the previous case. He submitted that the appellant was taken in custody in the present case on 19.09.2014. Thus, he is in custody for more than 9 and half years. However, sentence in the present case could only start after completion of three years’ sentence in the previous case. He submitted that the appellant was taken in custody in the present case on 19.09.2014. Thus, he is in custody for more than 9 and half years. However, sentence in the present case could only start after completion of three years’ sentence in the previous case. Shri. Mali submitted that, this fact may be taken into consideration and the sentence imposed on him in the present case be reduced at least by three years. He submitted that, minimum sentence which could be imposed U/s.4 of the POCSO applicable at the time of commission of the offence, was 7 years. Similarly, U/s.376 of the I.P.C. the minimum sentence was 7 years. Therefore, some leniency may be shown. 25. Learned APP, as well as, learned counsel for the Respondent No.2 left the sentencing part to the discretion of the Court. 26. Section 427 of the Cr.P.C. reads thus: 427. Sentence on offender already sentenced for another offence. -- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. From the record it appears that no submissions were made on his behalf to make the subsequent sentence to run concurrently with the previous sentence. Considering this aspect, I am inclined to reduce the sentence by three years because the sentence in the present case could start only after the first sentence in the previous case would get over. 27. Hence, the following order is passed. ORDER i) The Appeal is partly allowed. ii) The conviction under sections 376, 354, 342 and 170 of the I.P.C. along with Sections 4, 10 and 12 of the POCSO Act is maintained. 27. Hence, the following order is passed. ORDER i) The Appeal is partly allowed. ii) The conviction under sections 376, 354, 342 and 170 of the I.P.C. along with Sections 4, 10 and 12 of the POCSO Act is maintained. However, the sentence of R.I. for 14 years imposed on the appellant is modified to 11 years R.I. iii) Imposition of fine of Rs.50000/- and in default sentence for non payment of fine of R.I. for six months is maintained. iv) The direction to pay the compensation of Rs.40000/-, as well as, further compensation U/s.357-A(1) of the Cr.P.C. is maintained. v) Benefit of set off U/s.428 of the Cr.p.c. is granted to the appellant for the period he has undergone as an under trial prisoner. vi) The Appeal is accordingly disposed of. vii) With the disposal of Appeal the companion interim applications are also disposed of.