High Court
Facts
APEAL-641-21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 641 OF 2021Anis Usman SayyedAge: 41 years, Occu.: Labour,R/o Village Tadpimpalgaon,Tq. Kannad, Dist. Aurangabad..APPELLANTVERSUS1. State of Maharashtra2. XYZ..RESPONDENTS....Mr. R.A. Jaiswal, Advocate for appellantMs. U.S. Bhosle, A.P.P. for respondent no.1 – StateMr. G.S. Shinde, Advocate for respondent no.2(appointed through Legal Aid)....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 05th DECEMBER, 2024PRONOUNCED ON : 22nd JANUARY, 2025JUDGMENT ( PER : R.G. AVACHAT, J. )1.The challenge in this appeal is to a judgment of conviction andorder of consequential sentence passed by Special Judge (POCSO),Aurangabad (‘trial Court’) in Special Case, No. 89 of 2017. Vide theimpugned judgment and order, the appellant has been convicted for variousoffences and consequently sentenced to various terms of imprisonment withfine. The material part of the impugned order of conviction and consequentialsentence runs as under :-“1)Accused Anis Usman Sayyed is hereby convicted u/s 235(2)Cr.P.C. for the offences punishable u/sec.376(2), 324 of IPC andu/sec.4, 6, 8 & 12 of the POCSO Act.1 / 11 APEAL-641-21.odt2)For the offence punishable u/sec.376(2) (i) (f) of IPC, he shallsuffer imprisonment for life, which shall mean imprisonment forthe remainder of his natural life and shall pay a fine ofRs.10,000/-(Rupees Ten Thousand only), in default to suffers S.I.for 12 month.3)For the offence punishable u/sec.324 of IPC, he shall undergo R.I.for three years and shall pay a fine of Rs.3,000/-(Rupees ThreeThousand only), in default to suffer S.I. for there months.4)For the offence punishable u/sec.4 of the POCSO Act, he shallsuffer imprisonment for life which shall mean imprisonment forthe remainder of his natural life and shall pay a fine ofRs.10,000/-(Rupees Ten Thousand only), in default to suffer S.I.for twelve months.5)For the offence punishable u/sec. 6 of the POCSO Act, he shallsuffer he shall suffer imprisonment for life which shall meanimprisonment for the remainder of his natural life and shall pay afine of Rs.20,000/-(Rupees Twenty Thousand only), in default tosuffer S.I. for twenty four months.6)For the offence punishable u/sec.8 of the POCSO Act, he shallundergo R.I. for five years and shall pay a fine of Rs.10,000/-(Rupees Ten Thousand only), in default to suffer S.I. for twelvemonths.7)For the offence punishable u/sec.12 of the POCSO Act, he shallundergo R.I. for three years and shall pay a fine of Rs.5,000/-(Rupees Five Thousand only), in default to suffer S.I. for sixmonths.8)The fine amount which would be deposited by the accused foroffence punishable u/sec.6(1) of POCSO Act, Rs.20,000/- (RupeesTwenty Thousand only) shall be paid to P.W.1 victim vide Section6(2) of POCSO Act.9)The accused shall pay total fine amount of Rs.58,000/- (RupeesFifty Eight Thousand only).10)The accused shall undergo all the sentences of imprisonmentconcurrently.11)The period of detention of accused in jail be given as set off videsec.428 Cr.P.C.”2.In short, the case of the prosecution was that the victim (‘A’) is thedaughter of the appellant. She was in third standard at the relevant time.2 / 11 APEAL-641-21.odtShe was around eight years of age. On 09th March, 2017, the appellant tookher out on his bicycle under the pretext of purchasing footwear for her. Itwas little past afternoon. On way, he took her to a secluded place in thefield. He inserted his finger in her private part. Then he took her to hisfriend’s house. Before going there, he purchased mutton for dinner. Thefriend’s wife cooked the same. As it was late in the night and the appellanthad consumed liquor, he stayed overnight at the house of his friend. Thevictim was with him. In the night, the friend and his wife left the house forharvesting cotton. The appellant during the night committed peno-vaginal,peno-anal and peno-oral sex with his daughter. In the morning, he cameback to his house with the victim. He then left the house. The victim relatedher woes to her mother (‘M’). The same was shared with her grand-parents.They immediately approached Deogaon Rangari Police Station.3.The victim’s mother lodged the First Information Report (‘F.I.R.’)(Exh.73). Crime vide C.R. No. 36 of 2017 was registered for the offencespunishable under Sections 376(2)(f)(i), 324 and under Sections 3, 4, 7, 8 and12 of Protection of Children from Sexual Offences Act (‘POCSO Act’). Thevictim was subjected to the medical examination.4.During investigation, the appellant was arrested. Clothes on theperson of both, the appellant and the victim were seized. Their bloodsamples were obtained. Besides simen and vaginal samples, etc. all theseized articles were went to R.F.S.L., Aurangabad. Reports thereof were3 / 11
Legal Reasoning
APEAL-641-21.odtappellant therein was 40 years of age and had already undergone 8 years ofsentence. His financial condition was such that he would not be able to paythe fine amount. Considering these facts and circumstances, the Apex Courtreduced the quantum of sentence to 10 years, retaining the fine amount, butreducing the default sentence from 2 years to 1 year.21.In case of Adu Ram Vs. Mukna & Ors., (2005) 10 SCC 597, ithas been observed thus :-“Criminal Trial – Sentence – Proportionality – sentence should becommensurate with gravity of offence – Relevant factors to be takeninto account while determining proper sentence – Held, no formula of afoolproof nature is possible that would provide a reasonable criterion indetermining a just and appropriate punishment – Due considerationshould be given to facts and circumstances of case, having regard tovarious factors including nature of offence and manner in which it wasexecuted or committed, motive for the crime, conduct of accused and allother attendant circumstances – Aggravating and mitigating factorsshould be delicately balanced – Discretion in determination of quantumof punishment is required to be exercised judiciously and judicially.”22.In case of Bavo alias Manubhai Ambalal Thakore Vs. State ofGujarat, AIR 2012 SC 979, 10 years R.I. was imposed for an offence of rapeon a 7 year old girl. True, the appellant therein was 18-19 years of age at therelevant time.23.The Division Bench of this Court in case of Pradip @ Golu SureshDandge Vs. State of Maharashtra, Criminal Appeal No. 419 of 2019, Dt.02/12/2022, has observed :-9 / 11 APEAL-641-21.odt“24. Since the punishment prescribed for the offence punishable underSection 376(2)(i) of the Indian Penal Code is greater in degree than thepunishment prescribed for the offence punishable under Sections 4 and10 of the POCSO Act, the accused is to be sentenced for the offencepunishable under Section 376(2)(i) of the Indian Penal Code. Asobserved above, at the relevant time the offence under Section 376(2)(i) was punishable with rigorous imprisonment for a term which shallnot be less than 10 years, but, which may extent to imprisonment forlife, which shall mean imprisonment for remainder of that personsnatural life and shall also be liable to fine. The Section has put aminimum rider of imprisonment for 10 years, which may extendfurther. The Legislature purposefully left the judicial discretion to theCourt to award punishment with a rider of minimum sentence. Thepurpose behind leaving discretion with the Court is to mould thesentence in accordance with the prevailing circumstances befitting tothe crime and all other relevant factors.”24.Considering the background of the appellant and keeping on mindthe observations made in the aforesaid authorities, we are of the opinion thatrigorous imprisonment for 14 years would meet the ends of justice. In thisview of the matter, we partly allow the appeal in terms of following order :-ORDER(I)Criminal appeal is partly allowed.(II)Conviction of the appellant for the offences punishableunder Sections 376(2)(i)(f) of the Indian Penal Code videjudgment and order dated 23rd March, 2021 passed by the SpecialCourt (POCSO), Aurangabad in Special Case, No. 89 of 2017 ismaintained. However, the sentence of life imprisonment for life tillhis natural death is reduced to rigorous imprisonment for fourteen(14) years. The quantum of amount of fine to stand unaltered. Indefault of payment of fine, the appellant shall undergo simpleimprisonment for one (01) month.10 / 11 APEAL-641-21.odt(III)Conviction of the appellant for the offences punishableunder Sections 4, 6, 8 and 12 of the Protection of Children fromSexual Offences Act, 2012 vide the impugned judgment and orderis maintained. However, quantum of sentence imposed againstthe appellant for those offences stands withdrawn, as no separatesentence is required.(IV)Rest of the terms of the impugned order to standunaltered.(V)Fees of Mr. Ganesh A. Shinde, learned counselappointed through Legal Aid to represent Respondent No.2 –victim, is quantified to Rs.10,000/- (Rupees Ten Thousand).( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD11 / 11
Arguments
APEAL-641-21.odtreceived. Statements of the persons acquainted with the facts andcircumstances of the case were recorded. On completion of investigation,the charge-sheet was filed against the appellant.5.The trial Court framed the charge (Exh.12). The appellantpleaded not guilty. His defence was of false implication.6.To bring home the charge, prosecution examined nine witnessesand produced in evidence certain documents. On appreciation of theevidence in the case, the trial Court convicted the appellant as stated above.7.Learned counsel for the appellant would submit that the case wasbased on sole testimony of a child witness. The child was prone to tutoring.All was not well between the appellant and his wife and his in-laws.Possibility of the victim giving false evidence at their behest cannot be ruledout. Learned counsel initially urged for allowing the appeal in to-to. In thealternative, he urged for reduction of sentence to minimum term ofimprisonment provided for the relevant offences for which the appellant hasbeen convicted.8.Learned A.P.P. for State and learned counsel appointed throughLegal Aid to represent Respondent No.2 – victim would, on the other hand,submit that it is a heinous offence. The one, who ought to have guarded thevictim, made her prey of his lust. He breached all canons of morality and4 / 11 APEAL-641-21.odthumanity as well. Both of them took us through the evidence on record tocontend the offence was duly proved. According to them, the appellant hasbeen rightly convicted and sentenced as well. They urged for dismissal ofthe appeal.9.Considered the submissions advanced. Perused the evidence onrecord. Let us now advert thereto and appreciate the same.10.The fact that the appellant is the biological father of the victim isnot in dispute. The victim was in 3rd standard in the month of March 2017.She was then of eight years of age is also not in dispute. The victim waseleven years of age when her evidence was recorded. The trial Court, afterhaving interacted with her, found her to be competent witness. The victimtestified that she was residing alongwith the appellant (her father), motherand either siblings at village Denala. On 09th March, 2017, little pastafternoon, the appellant took her out on his bicycle under the pretext ofpurchasing footwear for her. On way, he stopped the bicycle near a field. Heinserted his finger in her private part. Then he took her to one house. A manand a woman were there. Before going there, he purchased mutton fordinner. The women cooked the same. They stayed there overnight. In thenight, the man and woman left the house for harvesting cotton. Theappellant during the night committed peno-vaginal, peno-anal and peno-oralsex with her. In the morning, they came back to their house. After theappellant went away, the victim related her woes to her mother (M).5 / 11 APEAL-641-21.odt11.We have perused the cross-examination of the victim. It wassuggested that the appellant took her on bicycle. She was riding pillion at thematerial time. It was further suggested that the road by which they went wasrough. It was further suggested that due to the same she received variousjerks. This question goes a long way to indicate the appellant to have takenthe victim with him on the given day. This suggestion was given to make outa case for reason for tearing hymen of the victim. On perusal of rest of thecross-examination we did not find anything to infer her to have been tutoredor any reason to have axe to grind against her own biological father.12.PW 2 – ‘M’ (mother of the victim) testified on the lines of theevidence of victim. She testified that the appellant brought the victim backhome by 08:00 in the morning on the following day. He then went out. Thevictim then shared with her mother her ordeal. She related everything whichhas been testified by the victim in her testimony and referred to hereinabove.Nothing fruitful could be elicited through the cross-examination of thiswitness.13.The evidence of victim is reinforced by the evidence of PW 7 -Rekha, wife of the appellant’s friend – Sunil. She testified that the appellantalongwith his daughter (victim) had been to her residence in the evening onthe fateful day. He had phoned his friend before coming to her residence.The appellant had brought mutton. She cooked the same. All of them took6 / 11 APEAL-641-21.odtdinner. The appellant had consumed alcohol. As his mouth was reeked, sheasked the appellant not to go to his residence as it was late in the night. Theappellant, therefore, stayed there overnight. She alongwith her husband leftthe house for plucking cotton balls (harvesting) in the field.14.This evidence indicates that the appellant alongwith the victimstayed overnight at the residence of PW 7 - Rekha. The appellant committedheinous acts with his daughter. He even assaulted her with rolling pin andslaps as well when she shouted.15.Medical examination of the appellant indicates him to be potent.The medical examination report of the victim has also been duly proved bythe evidence of PW 5 – Dr. Megha. She testified to have medically screenedthe victim. The victim gave her history. The medical examination report is atExhibit 41. The witness testified consonant with the medical report.16.Perusal of the screening report of the victim indicates her to havegiven the medical officer history consonant with her case. The medical reportreads thus :-Labia MajoraNormalLabia MinoraEvidence of laceration on left side of labia minoraForchette and introitusEdematous, redness, no bleedingExternal urethral meautsNormalHymen (only if relevant)Fresh torn, edematous, swollen tenderAnus and RectumAnterior anal sphincter torn, no bleeding7 / 11 APEAL-641-21.odtIn her opinion, there were signs of recent forceful penetration ofvagina and annus. Sexual intercourse could not be ruled out.17.In our opinion, the aforesaid evidence make out the offence/sagainst the appellant beyond reasonable doubt. The question is aboutquantum of sentence.18.We are informed that a person convicted for offence of rape is notgranted (not entitled) furlough. Meaning thereby, the appellant would becompleting 10 years of imprisonment, without being out of jail for a singleday. While the offence was committed, the same was punishable withrigorous imprisonment for a term which shall not be less than 10 years, butwhich may extend to imprisonment for life, which shall mean imprisonmentfor the remainder of natural life and shall also be liable to fine.19.The record indicates that the appellant did not have means to paythe fine. The fine remained unpaid.20.In case of Mallan @ Rajan Kani Vs. State of Kerala, SpecialLeave to Appeal (Cri.) No. 7003 of 2024, the appellant therein wasconvicted for the offence punishable under Section 376 of the I.P.C. andsentenced to life imprisonment with fine of Rs.2 lakhs. The appellant thereinwas step father of the victim. He had raped the victim more than once. TheApex Court, therefore, did not interfere with the order of conviction. The8 / 11