Criminal Appeal No. 611 of 2020 · The High Court
Case Details
2024:BHC-AUG:21254-DB Cri.Appeal No.611/2020:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.611 OF 2020Ram Shrimant PiskeAge 41 years, Occu. Agri.,R/o Talmod, Tq. Omerga,Dist. Osmanabad, At present-Jagdamba Nagar, Tuljapur,Dist. Osmanabad(At present in Jail)… APPELLANT(Orig. Accused)VERSUS1.The State of Maharashtra through its Secretary,Home Department, Mantralaya, Mumbai – 32 (Copy to be served on Public Prosecutor, High Court ofJudicature of Bombay, Bench at Aurangabad)2.X Y Z … RESPONDENTS.......Mr. S.S. Bora, Advocate for appellant Mrs. S.N. Deshmukh, A.P.P. for respondent No.1 – State Mr. D.S. Ingole, Advocate for respondent No.2 (appointed)....…
Facts
Cri.Appeal No.611/2020:: 2 :: CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 21st August, 2024.Date of pronouncing judgment : 9th September, 2024.JUDGMENT (PER R.G. AVACHAT, J.) : This appeal takes an exception to a judgment andorder of conviction and consequential sentence, passed bylearned Special Judge (Trial Court) appointed for trial ofoffences under the Protection of Children from SexualOffences Act (POCSO Act for short), on 2/8/2018 in Special(POCSO) Case No.55/2018. The relevant part of the operativeorder of conviction and consequential sentence reads thus : (1)The accused Ram Shrimant Piske, Age 41 years, R/oTalmod, Tq. Omerga, Dist. Osmanabad at presentJagdamba Nagar, Tuljapur, Tq. Tuljapur, Dist.Osmanabad is found guilty for the offence punishableunder Sections 376(2)(f)(i)(j)(n), 201 and 506 of theIndian Penal Code and Sections 6, 10 and 12 of theProtection of Children from Sexual Offences Act, 2012vide Section 235(2) of the Code of Criminal Procedure.(2)The accused is convicted for the offence punishableunder Section 376(2)(f)(i)(j)(n) of Indian Penal Code videSection 235(2) of the Code of Criminal Procedure andsentenced to undergo rigorous imprisonment for life and Cri.Appeal No.611/2020:: 3 ::pay fine of Rs.1 Lakh (Rs. One lakh only). If default, heshall undergo rigorous imprisonment for Three (3) years.(3)The accused is convicted for the offence punishableunder Section 201 of the Indian Penal Code vide section235(2) of the Code of Criminal Procedure and sentencedto undergo rigorous imprisonment for Three (3) yearsand to pay fine of Rs.5000/- (Rupees Five thousandonly). In default, he shall undergo rigorous imprisonmentfor Five (05) months.(4)The accused is convicted for the offence punishableunder Section 506 of Indian Penal Code vide Section235(2) of the Code of Criminal Procedure and sentencedto undergo rigorous imprisonment for one (01) year andpay fine of Rs.1000/- (Rs. One Thousand only). Indefault, he shall undergo rigorous imprisonment for one(1) month.(5)No separate sentence is inflicted upon the accused forthe offences punishable under Sections 6, 10 & 12 of theProtection of Children from Sexual Offences Act, 2012.(6)The period of inquiry, investigation and trial undergoneby the accused since 25/03/2018 till 02/08/2018, be setoff vide Section 428 of the Code of Criminal Procedure.(7)The substantive sentence of the accused shall runconsecutively vide Section 31(1) of the Code of CriminalProcedure. Cri.Appeal No.611/2020:: 4 ::(8)If fine amount so realized, the compensation ofRs.1,06,000/- (Rs. One Lakh Six Thousand only) be paidto the victim, vide Section 357(1)(b) of the Code ofCriminal Procedure after appeal period is over or subjectto finality of appeal if any.2.The case of the prosecution in short is as follows :- The appellant is the father of victim (P.W.1), Aged15 years at the relevant time. The appellant was a tractordriver by profession. He would live along with his wife “N”(P.W.2) and three daughters. The incident took place on theintervening night of 23 and 24 March 2018. the appellant’swife had just delivered a baby girl. She was, therefore, inGovernment Hospital for about 2 days. According to theprosecution, the victim was a 9th Class student of JijamataGirls High School. The victim was Number Two daughter. By10.00 p.m. on 23/3/2018, the victim and her two sisters, oneelder and the other younger, went to sleep on a floor of the firstroom of two-room premises. Bathroom was outside of thepremises. The appellant returned to his residence. Since hisdaughter had not cooked food for him, he took meal at thehouse of his brother-in-law (husband of wife’s sister). On his Cri.Appeal No.611/2020:: 5 ::return to his residence, he watched programmes on Television.It is the case of the prosecution that he would specially watchcrime serials. He then slept on a cot. By 1.30 a.m., he camedown on the floor. He laid himself nearby the victim andstarted fondling her breast and kissing her as well. He thenremoved his pant and underpant as well. He did the samething with the victim. Appellant then committed sexualintercourse with her, said to be 5-6 times on the floor of thehouse. He then took the victim on the cot. He again did thesame thing with her 2-3 times. Then he took her to thebathroom. He made her wash her undergarments. All thesethings took place within a span of about 4 hours. By 6.00 inthe morning, both, the appellant and the victim woke up. Thevictim woke her sisters up as well. Then they went to thehospital to meet their mother. The appellant continuouslyremained around the victim only with a view to prevent herfrom disclosing anything to anyone. After a while, the victimwent to school. She reached the school somewhat late. Sherelated her friend “S” (P.W.3) what the appellant did with her.The victim left the school midway for the day. On return of themother, she related her about the incident. The maternal unclewas also informed on phone. After having gathered courage,the mother accompanied the victim to the Police Station. The Cri.Appeal No.611/2020:: 6 ::victim’s statement (F.I.R. - Exh.7) was recorded at the PoliceStation.3.A crime vide C.R. No.74/2018 for offencepunishable under Sections 376 of the Indian Penal Code andSections 4, 8, 12 of the POCSO Act was registered at TuljapurPolice Station. The appellant was arrested. The victim wassubjected to medical examination. Clothes of both, that of thevictim and the appellant which were on their person at therelevant time, were seized under different panchanamas. Acrime scene panchanama (Exh.21) was also drawn. All theseized articles were sent to Forensic Science Laboratory,Aurangabad for analysis and report. Statements of personsacquainted with the facts and circumstances of the case cameto be recorded. Upon completion of the investigation, chargesheet was filed against the appellant.4.The Trial Court framed the Charge (Exh.3). Theappellant pleaded not guilty. His defence was of falseimplication on account of his earlier matrimonial dispute.5.To bring home the charge, the prosecutionexamined 8 witnesses and adduced in evidence certaindocuments. On appreciation of the evidence in the case, the Cri.Appeal No.611/2020:: 7 ::Trial Court convicted and consequently sentenced theappellant as detailed above.6.Heard. Learned Advocate for the appellant wouldsubmit that, it was a 10 x 10 ft. room in which the allegedoffence took place. The victim’s elder sister and younger sisteras well were sleeping along with her on the floor. Theallegation that the appellant committed sexual intercourse withthe victim about 8 or 9 times is highly improbable. He wouldfurther submit that, there was matrimonial dispute between theappellant and his wife. The matter had even been to theCourt. The wife had filed proceedings under Section 498-A ofthe Indian Penal Code and application for maintenance. Thematters were settled in Lok Adalat. According to him, althoughthe wife resumed matrimonial tie, there must not have beenmeeting of minds. He meant to say that, when a “broken rope”is tied again, it retains a knot. The learned Advocate would further submit that, itwas just difficult to imagine that the incident lasted for morethan 4 hours, during which none of the sisters of the victim didwake up. The Medical Officer did not notice any injury on theperson of the victim. There was delay in lodging of the F.I.R.The C.A. reports do not support the prosecution case. Cri.Appeal No.611/2020:: 8 ::According to learned Advocate, an Advocate appointedthrough legal aid represented the appellant before the TrialCourt. He had not been properly represented. Our attentionwas drawn to Section 164 statement of the victim and hermother. According to learned Advocate, these witnesses werenot confronted with those statements. The learned Advocateultimately urged for allowing the appeal and acquit theappellant or at least remanding the matter to the Trial Court tooffer the appellant fair opportunity to cross examine certainwitnesses namely the victim, her mother and the doctor whoexamined the victim. He relied on the set of followingauthorities :-(1) Rai Sandeep Vs. State of NCT of Delhi(MANU/SC/0623/2012)(2)Santosh Prasad Vs. The State of Bihar(MANU/SC/0192/2020)(3)Tameezuddin Vs. State of (NCT) of Delhi(MANU/SC/1621/2009)(4)Sadashiv Ramrao Hadbe Vs. State of Maharashtra& ors. [ MANU/SC/06072006 ] (5)State (GNCT of Delhi) Vs. Aleem(MANU/DE/1997/2017)(6)Ramanand Vs. State of Uttar Pradesh(MANU/SC/1324/2022)(7)Ashok Debbarma Vs. State of Tripura(MANU/SC/0164/2014)
Legal Reasoning
Cri.Appeal No.611/2020:: 23 ::(f)being a relative, guardian or teacher of, or aperson in a position of trust or authority towardsthe woman, commits rape on such woman; or (g). . . . . . . . (h). . . . . . . . (i). . . . . . . .(j)commits rape, on a woman incapable ofgiving consent; or(k)being in a position of control or dominanceover a woman, commits rape on such woman; or . . . . . . . . . . .(n)commits rape repeatedly on the samewoman, shall be punished with rigorousimprisonment for a term which shall not be lessthan ten years, but which may extend toimprisonment for life, which shall meanimprisonment for the remainder of that person’snatural life, and shall also be liable to fine.28.Section 376(2) of the Indian Penal Code providedthe punishment for the offences falling under any of the sub-clause (a) to (n) of Section 376(2) with rigorous imprisonmentfor a term which shall not be less than ten years, but whichmay extend to imprisonment for life, which shall mean,imprisonment for the remainder of that person’s natural life andshall also be liable to pay fine.29.We have perused the judgments relied on bylearned Advocate for the appellant. In our view, there can Cri.Appeal No.611/2020:: 24 ::hardly be a precedent in criminal cases. A variance in factshere and there may change all the equations. The facts incase of Rai Sandeep (supra), indicate that the prosecutrixtherein was not found to be a sterling witness. Paragraph No.9of the said judgment indicate that, after having deposed to inexamination-in-chief against the accused therein, she made aU-turn in her cross-examination.30.In case of Santosh Prasad (supra), the Court foundmaterial contradictions in her deposition. A reference theretowould be found in paragraph No.6 of the judgment.31.The facts in case of Tameezuddin (supra) indicatethe medical evidence therein was not supporting commissionof rape. 2 or 3 persons whose statements were recorded,were not examined.32.In case of Sadashiv Hadbe (supra), it wasobserved that, the accused could be convicted on soletestimony of prosecutrix, if it was capable of inspiringconfidence in the mind of the Court. If the prosecutrix versionis unsupported by medical evidence or whole surroundingcircumstances, the Court shall not act on the solitary evidence Cri.Appeal No.611/2020:: 25 ::of the prosecutrix. The factual difference is found in paragraphNo.7 of the judgment. 33.In case of Ramanand (supra), it has been observedthat, failure to accord fair hearing either to the accused or theprosecution violates even minimum standards of due processof law.34.At the cost of repetition, we need to observe that,close reading of the cross-examination of all the prosecutionwitnesses, we do not find the appellant to have not beenproperly represented by a Legal Aid Advocate. True, one ortwo suggestions were given indicating implied admission. Wehave come across in a number of matters, wherein theconvicts represented by Advocates engaged by them on theirown choice gave such suggestions.35.The crime scene panchanama and delivery ofswords by the wife of the appellant to the police would be oflittle relevance since there is no evidence to indicate theswords were in the room.36.The Trial Court appears to have not given anappropriate and fair opportunity to the appellant to make hissubmissions on the question of quantum of sentence. In Cri.Appeal No.611/2020:: 26 ::paragraph No.25 of the judgment, it has simply been observed,“The accused confessed his blooper and maintained silence.”While the learned defence Advocate prayed for clemency. 37.In the peculiar facts and circumstances of the case,we deem it fit to interfere with the impugned order to the extentof quantum of sentence. In view of the above, the appealstands partly allowed in terms of the following order :-O R D E R(i)The Criminal Appeal is partly allowed.(ii)Conviction of the appellant for the offence punishableunder Section 376(2)(f)(i)(j), recorded by learned SpecialJudge, Osmanabad in Special (POCSO) Case No.55/2018, byorder dated 2/8/2018 is maintained. However, the sentence oflife imprisonment imposed by the Trial Court is reduced torigorous imprisonment to a period of ten years with a fine ofRs.5000/- (Rupees five thousand), in default of payment offine, rigorous imprisonment for 1 month. Cri.Appeal No.611/2020:: 27 ::(iii)Conviction of the appellant for the offence punishableunder Section 376(2)(n) is hereby set aside. The appellant isacquitted thereof.(iv)Conviction of the appellant for the offence punishableunder Section 201 of the Indian Penal Code is maintained, withthe quantum of sentence imposed as a substantive sentence.The fine amount is, however, reduced to Rs.2000/-, in defaultof payment of fine, simple imprisonment for 1 month.(v)Conviction of the appellant for the offence punishableunder Section 506 of the Indian Penal Code is maintained, withthe quantum of sentence imposed as a substantive sentence.The fine amount is, however, reduced to Rs.500/-, in default ofpayment of fine, rigorous imprisonment for 1 month.(vi)Clause (7) of the operative order, which directs thesubstantive sentences of the appellant to run consecutively, ishereby withdrawn with a direction that all the substantivesentences to run concurrently. Cri.Appeal No.611/2020:: 28 ::(vii)Clause (8) of the operative order is maintained as it is,except the figure appearing therein, i.e. Rs.1,06,000/- isreplaced by the figure as Rs.7500/-.(viii)Fees of learned Advocate Mr. Ingole, appointed forrespondent No.2 is quantified at Rs.10,000/- (Rupees tenthousand). (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.611/2020:: 9 ::(8)Mohd. Hussain Vs.The State (Govt. of NCT) Delhi(MANU/SC/0700/2012)7.The learned A.P.P. and learned Advocaterepresenting the respondent No.2 – victim would, on the otherhand, submit that, a daughter had no reason to give evidenceagainst her own father. The conduct of the victim narrating theincident to her close friend (P.W.3) reinforces the prosecutionversion. The medical examination report supports theprosecution case. The C.A. reports relating to some of theitems necessarily do not favour the prosecution since thevictim had admittedly taken bath and passed urine many atime. We were taken through the cross-examination of eachand every prosecution witness to submit that the Advocateappointed to represent the victim was competent enough toconduct such a case. The appointed Advocate had 8 yearsstanding at the bar. Both the learned Advocates ultimatelyurged for dismissal of the appeal. The learned A.P.P. relied onthe following two authorities :-(1)Narayanamma Vs. State of Karnataka1994 SCC (CRI) 1573(2)Lalchand Rohra s/o Shri Jhethamal Rohra Vs. State ofChhatisgarh (CRA No.1188/2022, decided on 9/4/2024) Cri.Appeal No.611/2020:: 10 ::8.Considered the submissions advanced. Perusedthe evidence on record and the judgment impugned herein.Let us turn to the evidence on record and appreciate the same.9.The School Transfer Certificates (T.C.) placed onrecord by the prosecution was admitted by the defence in somany words. It was, therefore, marked Exh.23. As per thesaid record, the date of birth of the victim was 29/6/2003. Assuch, on the date on which the crime took place, the victimwas 14 years and about 9 months old (child).10.It is in the evidence of P.W.1 that the incident tookplace by 1.30 a.m. on 24/3/2018 at her residence. She alongwith her two sisters went to sleep on the floor of the house.Her father (appellant) laid himself on the cot. Her mother wasin hospital to take care of her infant sister. The appellant camedown on the floor. He dragged her close to him. He asked hernot to talk. He then started kissing her and fondling herbreast. The appellant denuded himself partly i.e. removed hispant and underpant. He did the same thing with her. Theappellant thereafter committed sexual intercourse with her 5-6times on the floor. He then took her on the cot. Again hecommitted penetrative sexual intercourse 2-3 times. The Cri.Appeal No.611/2020:: 11 ::victim went out of the house for urinating. The appellantfollowed her. He made her wash her knicker and even clean it.She felt sticky substance on her knicker after the occurrence.She could not run away. The appellant again took her on thecot and slept with her.11.It is further in her evidence that, on the followingmorning, both of them woke up. She then made her both thesisters wake up. Then they went to the hospital to meet theirmother. The appellant had accompanied them. She did notdare to relate her mother due to presence of appellant. Shethen requested the appellant to drop her and her sister toschool. She reached the school somewhat late. She startedweeping. Her friend enquired with her. She thereupon relatedher what the appellant did with her on the previous night. It isfurther in her evidence that, she along with her sister left theschool before school time was over as they wanted to relatethe same to her mother. On the way, they met their father. Hetook them to the hospital. She, therefore, could not relate hermother. The appellant then took her and her sister home to dohousehold work. On the way they stopped at a petrol pump.That time she related her sister the incident. Then theappellant brought them to the house to do household work. It Cri.Appeal No.611/2020:: 12 ::is further in her evidence that, then she made a phone call toher maternal uncle from neighbour’s cell phone. Both, thevictim and her sister started for the house of their maternaluncle. The uncle met them on the way. He took them to hisresidence. After a while, he brought her maternal aunt to hishouse. She then disclosed the incident. The appellant toowas present at the house of their maternal uncle’s neighbour.The appellant then enquired with the maternal aunt as towhether she had related anything to her. The aunt told him tohave been informed that he beat her up. The appellant thentook her and her sister back to his residence. He asked bothof them not to disclose the incident. He again called P.W.1 tothe bathroom and threatened her with dire consequences ifshe disclosed anything of the incident. It is further in herevidence that, the appellant used to make her sit on his lapand misbehave with her many a time. He was addict ofwatching crime serials on TV. The appellant had kept twoswords in the house. She had, therefore, fear of her father(appellant). It is further in her evidence that, her mother andgrandfather returned to the house in the evening. Same dayshe disclosed them the incident when the appellant was notpresent. The mother felt giddiness. She was required to beshifted to the hospital. The appellant left the house. After a Cri.Appeal No.611/2020:: 13 ::while, the maternal uncle came to their residence. They thenwent to the Police Station. Her statement (Exh.7) wasrecorded thereat. Her statement was recorded twice.According to her, she was medically screened.12.During her cross-examination, it was brought onrecord that the appellant was previously addicted to liquor.There used to be frequent quarrels between him and hermother. The mother had lodged complaint against fatherunder Section 498-A of the Indian Penal Code and even filedapplication for maintenance. On the night of 23/3/2018, sheand her elder sister did not prepare food for dinner at home.The appellant, therefore, went to her maternal uncle’sresidence for dinner. She admitted that, she and her twosisters went to bed on the floor of the room. She denied tohave woke up her father (appellant) to go out for relievingherself. She denied that she took her father to the bathroomdue to fear of darkness. She denied that, she was sufferingfrom bed-wetting since her childhood. She further denied that,she washed the clothes on her person in the bathroom onaccount of bed-wetting. She denied that, she had asked herfather to accompany her out of the house due to darkness. Itwas further brought on record that, she tried to wake up her Cri.Appeal No.611/2020:: 14 ::younger sister. She admitted that, her maternal uncle took herto the Police Station. She, however, denied that, the F.I.R.was lodged at the behest of her maternal uncle. Rest of thequestions are in the nature of suggestions disputing herincriminating evidence against the appellant.13.P.W.2, mother of the victim testified that, on thegiven day, she was in the hospital to take care of her infantdaughter. They were discharged from the hospital on 24March. Little past 2.00 p.m., she came back to her residencealong with her kid and daughter. The appellant was around.She questioned him as to why he did not attend his work. Hetold her not been feeling well. It was further in her evidencethat, P.W.1 started loitering around her. She therefore, madeenquiry with her. She was frightened. She took her intoconfidence. She then disclosed her the appellant to havecommitted rape of her during the previous night. She evenexpressed her desire to die. She (P.W.2 mother), thereby feltgiddiness. She (P.W.2 mother) was, therefore, taken to thehospital. Her brother Pandu called her on phone and informedto have taken the victim (P.W.1) to the Police Station. Heasked her to come to the Police Station. She, therefore, wentthere. She too put her signature on the complaint. Cri.Appeal No.611/2020:: 15 ::14.It was further in her evidence that, the appellantwas hot-tempered. He had kept two swords in the house. Allof them were apprehensive of the appellant. He would viewcrime serial – Crime Diary on TV. He would even read Weekly“Police Times”. He would take her daughters on his lap, kissand fondle them. She even referred to her statement (Exh.15),recorded under Section 164 of the Cr.P.C. She referred to theswords (Articles 9 and 10) which were delivered by her to thepolice under panchanama (Exh.16).15.During her cross-examination, she testified that,she had filed private complaint under Section 498-A of theIndian Penal Code and maintenance proceedings against theappellant. The cases were pending for about 3 years. Sheadmitted that, both the proceedings were compromised in LokAdalat. For some time the appellant and herself had stayed atSolapur. It was suggested to her that the appellant used todrink intermittently (implied admission of drunkardness). Shedenied that, her daughter (victim) was suffering from bed-wetting since her childhood. It was her brother who securedthe appellant job as a tractor driver. It was further in herevidence that, her three daughters were at her residence on23/3/2018. The daughters did not prepare food for dinner. As Cri.Appeal No.611/2020:: 16 ::a result thereof, there was bickering between them and theappellant. The appellant, therefore, took dinner at the house ofher brother. Rest of the questions were in the nature of denialof her incriminating evidence against the appellant.16.P.W.3 was a classmate of P.W.1 (victim). It was inher evidence that, the victim was Monitor of the Class. P.W.1did not attend the school on time on that that day i.e. on 24March. She came to the Class somewhat late. She wasweeping. On enquiry, she related her the appellant to havecommitted rape of her. It was further in her evidence that, afterrecess, P.W.1 left for her residence.In her cross-examination, a suggestion was put toher that, P.W.1 (victim) left the school after recess. This isnothing but an admission, which reinforces the prosecutioncase. 17.P.W.4 is a sister of P.W.1. She was categorical tostate that, P.W.1 (victim) related her the appellant to havecommitted rape of her on the given night. Perusal of herevidence appears to be consistent with the evidence of P.W.1.According to her, the appellant dropped P.W.1 to school. By11.00 in the morning, the appellant brought her both the sisters Cri.Appeal No.611/2020:: 17 ::to the hospital. On the way back to residence, they halted forfilling petrol in the motorcycle. That time the victim (P.W.1)related her the appellant to have committed rape of her on theprevious night. 18.During her cross-examination, it was brought onrecord that the appellant had picked up quarrel with her as shedid not prepare food for dinner on 23 March. She admitted tohave had not personally seen the appellant committing rape ofher sister. She denied to have deposed untrue against herown father. 19.P.W.6 Chhaya is a witness to the statement givenby the appellant that he would take out the clothes which wereon his person on the given day. The said statement is atExh.28. Then he took them to his residence and took out theclothes. Those were his underpant, banian and night pant.Those were seized under panchanama (Exh.29).20.P.W.7 Dr. Kiran was a Medical Officer, Sub-DistrictHospital, Tuljapur. She examined the victim on 25 March by1.40 a.m. It was in her evidence that the victim gave history ofsexual assault by her father. Her medical examination report isat Exh.32. Her findings were consistent with the sexual Cri.Appeal No.611/2020:: 18 ::intercourse with the victim. She noticed absent and rupture ofhymen and laceration at forchetti and spotting on vagina, labiaminora-redness present, lebia majora-redness plus. Perineum-redness plus. She took vaginal swab, blood sample, nailclipping and pubic hair of the victim. She sealed all thosearticles in bottle and container and handed over to the policefor chemical analysis. She then referred C.A. reports (Exhs.35and 36). It was further in her evidence that, the victim had toldher to have taken bath and changed clothes. The same wasnoted in her medical certificate (Exh.32). The certificate alsocontained post incident activities of the victim namely changingof clothes, passing urine, cleaning and washingundergarments. She examined the victim 24 hours after theoccurrence. She denied that the injuries noticed at the victim’sprivate part were possible by urinal infection and itching.21.True, the C.A. reports (Exhs.35 and 36) do notindicate semen stains on the vaginal swab. No semen wasalso detected on pubic hair of the appellant and that of thevictim as well. Cri.Appeal No.611/2020:: 19 ::22.True, the appellant was represented before theTrial Court by an Advocate appointed through Legal Aid. It is,however, not in dispute that the said Advocate had 8 yearsstanding. From the tenor of cross-examination of all theprosecution witnesses, we do not find the appellant to have notreceived a fair trial. He has been behind the bars from dayone of his arrest. We do not find it a case fit to remand thematter back to the Trial Court and give the appellantopportunity to cross-examine certain witnesses.23.True, as per the case of the victim, the appellantdid have sexual intercourse with her 8 times during a period of4 hours. The same may sound improbable. In our view, sincethe medical examination report of the victim reinforces hercase and the fact that she related the same to her friend andsister as well, we do not find her to have filed a false case toteach her father a lesson. In our view, her case that theappellant had sexual intercourse with her 8 times is anexaggeration. We have reason to observe so because thehistory given by her to the Medical Officer is as under :History of Sexual Violence Date of incident/sbeing reported : 24/3/18 (ii) Time of incident/s : Around 1.30 a.m.(iii) Location/s : at homeEstimated duration : 1 day Cri.Appeal No.611/2020:: 20 ::Multiple : NoChronic (> 6 months) No.Unknown : No.(v) Number of Assailant(s) and name/s : Ram Piske(vi) Sex of assailant(s) : Male Approx. Age of assailant(s) : 41 yrs.If known to the survivor – relationship with the survivor : Father (vii) Description of incident in the words of the narrator : Narrator of theincident, survivor/ informant (specify name and relation to survivor )History narrated by victim herself.15 yrs. Female adolescent child giving H/o sexual intercourse/ rape byher father at their home only on 24/3/18 around 1.30 a.m. She told thather father removed her clothes & kissed her all over body & theninserted penis inside vagina & . . . . . . . . . . . She also told that hermother was not at home. 24.The victim had changed her clothes, cleaned andwashed them as well. She had taken bath before her medicalexamination. She passed urine number of times. This couldbe the reason, according to the Medical Officer, as to the C.A.reports not disclosing semen stains on pubic hair or vaginalswabs. The Medical Officer had noticed on local examinationof genital parts/ other orifices as under :18. Local examination of genital parts/ other orifices :A. External Genitalia : Record findings and state NA where not applicableBody parts to be examinedFindingsUrethral meatus & vestibule(N)Labia majoraNo cuts, abrasions, bleeding onlyredness present.Labia minoraRedness (+)Fourchette & IntroitusLaceration over the fourchetteHymenRupturedPerineumRedness (+)External Urethral MeatusNo injury or laceration Cri.Appeal No.611/2020:: 21 ::25.In our view, for all aforesaid reasons, though wefind the victim to have exaggerated her version that theappellant to have committed sexual intercourse 8 times withher, the medical history given by her undoubtedly indicates theappellant to have had sexual intercourse with his owndaughter, who was below 16 years of age at the relevant time.He, is therefore, guilty of offence punishable under section376(2)(f)(j)(k) of the Indian Penal Code. We also uphold theconviction of the appellant for offences punishable underSections 201 and 506 of the Indian Penal Code (sinceevidence is there as to made her wash undergarment andthreatened with dire consequences, if went public with theincident) and under sections 6, 10 and 12 of the POCSO Act,recorded by the Trial Court. Since we find it to be not a case ofrepeated rape on the same woman, the appellant standsacquitted of the offence punishable under Section 376(2)(n) ofthe Indian Penal Code.26.While hearing the appellant on the question ofquantum of sentence, it appears that, no appropriateopportunity was given to him. A fine of Rs.1 Lakh has beenimposed without taking into consideration whether he wasfinancially sound enough to pay the amount. In default of Cri.Appeal No.611/2020:: 22 ::payment of fine, he was directed to undergo sentence of threeyears rigorous imprisonment. Moreover, after havingsentenced him to suffer imprisonment for life, he has beensentenced to various terms of imprisonment as stated abovewith a direction that those terms of imprisonment to runconsecutively. The same is impermissible in law in view ofSection427(2) of the Code of Criminal Procedure, which readsthus : “427. Sentence on offender already sentenced foranother offence.—(1). . . . . . .(2)When a person already undergoing asentence of imprisonment for life is sentenced ona subsequent conviction to imprisonment for aterm or imprisonment for life, the subsequentsentence shall run concurrently with suchprevious sentence.”27.Section 376(2) of the Indian Penal Code readsthus: 376(2) Whoever,(a). . . . . (b). . . . . . .(c). . . . . . . (d). . . . . . . (e). . . . . . .