Aaditya @ Sadanand Dilip Parab vs The State Of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 367 OF 2016

Aaditya @ Sadanand Dilip Parab,

Aged 23 years, Occ: D.J. Operator,

residing at Bhigargaon Post Aajivali,

Taluka Panvel, Dist. Raigad

(At present is in Nashik Central Prison) ....Appellant.

Vs.

The State of Maharashtra,

(at the instance of Santacruz

Police Station vide C.R. No. 724/2013) ....Respondent.

Mr. Arun Rajput i/by Ms. Anjali Patil for the Appellant. Smt. Rutuja Ambekar, APP for the Respondent-State.

CORAM : A. S. GADKARI, J. RESERVED ON : 11th SEPTEMBER, 2020 PRONOUNCED ON : 6th NOVEMBER, 2020.

JUDGMENT:

-

The Appellant has questioned correctness of Judgment and

Order dated 5th March, 2016, passed in Sessions Case No.49 of 2014 by the

learned Special Judge under POCSO Act, Greater Mumbai, convicting the

Appellant under Section 4 of The Protection of Children from Sexual

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Offences Act, 2012 (for short, "the POCSO Act") and is sentenced to suffer

rigorous imprisonment for Ten years and to pay fine of Rs.2,000/-, in

default of payment of fine, to further suffer simple imprisonment for One

month and under Section 366(A) of the Indian Penal Code (for short,

"IPC") and is sentenced to suffer rigorous imprisonment for One year and to

pay a fine of Rs.1,000/-, in default of payment of fine, to further suffer

simple imprisonment for One month. As the Appellant has been convicted

under Section 4 of the POCSO Act, the Trial Court has not punished him

separately for the offence punishable under Section 376 of the IPC, as per

the provision of Section 42 of the POCSO Act. The Trial Court has directed

that, the substantive sentences imposed upon the Appellant to run

concurrently.

2 Heard Mr. Rajput learned counsel for the Appellant and Smt.

Ambekar, learned APP for the State. Perused entire record.

3 The prosecutrix (P.W. No.2) was aged about 13 years on the

date of commission of the alleged offence and with a view to protect her

identity and in consonance with the provisions of Section 228(A) of the IPC

and Section 33(7) of the POCSO Act, the names of material witnesses and

detailed narration of facts mentioned in the statement of the prosecutrix

and relevant witnesses is hereby avoided.

4 Shorn of unnecessary details, the prosecution case in brief can

be summarized as under:-

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(i) The prosecutrix was aged about 13 years on the date of

lodgment of crime and was studying in 9th Standard in a High School, at

Bandra. The mother (P.W. No.1) of the prosecutrix was a housemaid and

her father was working as a delivery man with one company. They had

mobile phone bearing No.9819418058 at their home. In the month of

November, 2013 the prosecutrix received a missed call from mobile

No.9209832197. The prosecutrix called back on the said number,

whereupon, the person on the other end told his name as 'Aaditya'

(Appellant herein). The Appellant introduced himself as a person taking

education in 12th Standard and working in a private company as Driver. He

also told that, he plays Piano. Thereafter, the prosecutrix and the Appellant

used to talk on mobile phone. The Appellant in due course, asked the

prosecutrix as to whether she likes him. After some days, the prosecutrix

answered him in affirmative. The father of the prosecutrix noticed her

talking on the mobile phone with somebody and therefore, he removed the

sim card from it. The prosecutrix told the said fact to the Appellant. The

Appellant bought a sim card No.9659632383 for the prosecutrix and gave it

to her. At that time, the prosecutrix firstly met Appellant personally. The

prosecutrix used to talk with the Appellant from the new sim card.

Thereafter, on two occasions, the Appellant met prosecutrix. As the

prosecutrix's mother did not allow her to use mobile phone for long time,

she got annoyed. On 4th December, 2013, under the pretext of purchasing a

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sports slacks, the prosecutrix left home and went away with the Appellant.

Appellant took her to his native village, namely Bhingargaon near Panvel.

Appellant introduced prosecutrix to his mother and sister as his friend and

told them that, her uncle had left her at Panvel station and for her safety, he

had brought her home. That, on the next day, he would leave her to her

house.

(ii) On 5th December, 2013, the Appellant took prosecutrix to

Pen. He booked a room in Kohinoor lodge at Pen and committed sexual

intercourse with her. On 6th December, 2013, the Appellant and prosecutrix

returned to Panvel. The Appellant was running short of money, rather he

was not having money, and therefore, he pawned prosecutrix's gold chain

with Mahendra Kothariya, (P.W. No. 8) a Jeweller, through his friend Balu

H. Bhopi (P.W. No. 13) and received Rs.4,000/- from him. They thereafter,

stayed at Panvel in one lodge where the Appellant committed sexual

intercourse with the prosecutrix. On 7 th December, 2013, they came to

Nagothane and stayed at Anand lodge in Room No.103. There also, the

Appellant established physical relations with the prosecutrix.

(iii) As the prosecutrix did not return to her house on 4 th

December, 2013 and despite search with near relatives in the vicinity, she

could not be traced out, her mother (P.W. No.1) lodged First Information

Report under Section 363 of the IPC with the Santacruz Police Station

bearing No.724 of 2013 (Exh.11) against unknown person. The said First

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Information Report was recorded by Police Sub-Inspector, Mr. Abhijit B.

Thorat (P.W. No.11). He started initial investigation of the present crime.

(iv) From 5th December, 2013 to 7th December, 2013, the

Appellant was receiving phone calls on his mobile. He was falsely

informing the persons on the other side that, the prosecutrix was not with

him. On 7th December, 2013, he received a phone call from his sister

informing him that, police had been to his house. The Appellant therefore,

told the prosecutrix to go back to her home. He dropped her at Bandra

Railway Station. From Bandra Railway Station the prosecutrix went to

Khardanda and called her mother at Khardanda bus stop. Mother of

prosecutrix and police came at Khardanda and took her to police station.

Her statement was recorded by the police and on the basis of the same,

offences punishable under Section 4 of POCSO Act and under Section 376

of the IPC were added to the present crime.

(v) The record indicates that, further investigation was

handed over to Police Inspector, Sanjay P. Patil (P.W. No.14). Assistant Police

Inspector, Mr. Vishal V. Mane (P.W. No.15) was assisting Police Inspector

Sanjay Patil in investigating the present crime. The Investigating Officer got

the Appellant and prosecutrix examined from the Medical Officers. The

investigation of the present crime was subsequently transferred to Police

Inspector Vishwanath T. Kolekar (P.W. No.17) on 10 th December, 2013. The

Investigating Agency also seized clothes of Appellant and prosecutrix.

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Investigating Officer visited Kohinoor lodge at Pen and Anand lodge at

Nagothane and effected necessary seizure of clothes and extracts of Lodge

Registers. They also collected call detail record of mobile phone of the

Appellant bearing No.9209832197. Record indicates that, the statement of

prosecutrix under Section 164 of the Code of Criminal Procedure (for short,

"Cr.P.C.") was also recorded. After completion of investigation, police

submitted charge-sheet before the Trial Court.

(vi) Trial Court framed charge below Exh.4 for the offences

punishable under Sections 376 and 366(A) of the IPC and under Section 4

of the POCSO Act. The said charge was read over and explained to the

Appellant in Marathi vernacular. Appellant pleaded not guilty and claimed

to be tried. His plea was recorded below Exh.5.

The Trial Court after recording evidence and hearing the

learned Advocates for the respective parties was pleased to convict

Appellant by its impugned Judgment and Order dated 5 th March, 2016 as

noted earlier.

5 Mr. Rajput, learned counsel for the Appellant submitted that,

the prosecutrix at the time of her medical examination by Dr.Kiran

Kalyankar (P.W. No.7) has stated that, she was having love affair with the

Appellant, since past three months. That, she had quarrel with her mother

a week ago and in a fit of rage, she called the Appellant and thereafter, they

fled away on 4th December, 2013 to Vashi/Panvel at his house. That, the

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prosecutrix has admitted that, she had multiple consensual sexual contacts

with the Appellant in the said four days. He submitted that, the

prosecutrix had voluntarily left the house and had joined the company of

the Appellant. The Manager of Kohinoor lodge (PW. No.3), has admitted

that, the prosecutrix disclosed her age as 24 years to him and also told him

that, she was wife of Appellant. The said witness noticed the prosecutrix as

a happily married person. He submitted that, it is therefore clear that, the

prosecutrix willingly joined the Appellant and was a consenting party to the

alleged crime. He submitted that, the statement of Ratnamala Sadanand

Parab (Maiden name Ratnamala Gajanan Bhoir) the wife of Appellant (P.W.

No.16), under Section 161 of Cr.P.C. was not recorded by police and she

was directly examined in the Court by the prosecution and therefore, her

evidence cannot be relied upon. He further submitted that, the prosecution

has not produced on record Chemical Analyser's Report of the clothes of the

prosecutrix. That, no stains or any other incriminating material is found on

the clothes of the prosecutrix. He submitted that, the bill of purchase of

gold chain, which was allegedly worn by the prosecutrix, has not been

produced by the prosecution and therefore, its identity is disputed. He

submitted that, the hand-writing of the Appellant in the Registers of the

said two hotels, is not proved by the prosecution.

While canvassing the point of quantum of sentence imposed

upon the Appellant by the Trial Court, he submitted that, the Appellant has

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already undergone imprisonment of 6 years and 9 months out of the total

sentence of 10 years and taking into consideration his age on the date of

alleged commission of offence, minimum sentence of 7 years, prescribed

under section 4 of the POCSO Act may be imposed upon him.

He therefore, prayed that, the present Appeal may be allowed

by acquitting the Appellant from the charges levelled against him.

6 Per contra, the learned APP vehemently opposed the present

appeal and submitted that, the prosecution has proved through PW. No.1,

the date of birth of prosecutrix as 9 th January, 2000 by producing Birth

Certificate (Exh.12) on record. That, P.W. No.7 i.e. the Medical Officer, who

examined the prosecutrix has stated that, the age of prosecutrix was

between 13 to 14 years. She submitted that, the Appellant is a married

person and father of a child and by suppressing the said fact, he lured the

prosecutrix and has committed the offence under Section 4 of the POCSO

Act. She further submitted that, the omissions pointed out by the learned

counsel for the Appellant are not material and are minor in nature. She

submitted that, the Appellant has been rightly convicted and sentenced by

the Trial Court. She therefore, prayed that, the present Appeal may be

dismissed.

7 P.W. No.1 is the mother of prosecutrix. She has deposed that,

the date of birth of prosecutrix is 9th January, 2000 and has produced on

record and proved Birth Certificate (Exh.12) of prosecutrix issued by the

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Municipal Corporation of Greater Mumbai. That, on 4 th December, 2013,

the prosecutrix went to school as usual and returned at about 2.30 p.m.

P.W. No.1 also returned home at about 3.00 p.m.. Prosecutrix wanted to

purchase a new slacks for participating in the tournament and therefore,

she gave Rs.100/- to her. P.W. No.1 thereafter, went to hospital along with

her daughter Savita who was suffering from Toothache. P.W. No.1 returned

home at about 8.00 p.m.. Prosecutrix did not return home and therefore,

P.W. No.1 took her search at all possible places in the vicinity, however,

prosecutrix could not be found. She therefor,e lodged First Information

Report (Exh.11 colly).

After four days, on Saturday, prosecutrix called her and asked

her to take her from Khardanda, Dhanpada bus stop. Police reached at the

said spot before her reaching. P.W. No.1, prosecutrix and police went to

Santacruz police station by Auto-rickshaw. She asked prosecutrix, whether

she had physical relationship to which, prosecutrix answered affirmatively

and told her that, she had physical relations with 'Aaditya' (Appellant).

Medical Examination of the prosecutrix was carried out on the same day.

On 14th December, 2013, she identified gold chain (Article-1) produced by

police, which was on the person of prosecutrix at the time of incident.

In her cross-examination, minor improvements and few

omissions have been brought on record, which according to this Court, are

not at all beneficial to the Appellant and the testimony of P.W. No.1 with

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respect to material points remained unshaken.

8 Prosecutrix (P.W.No.2) has deposed that, she was residing with

father, mother and one sister. She has taken education in Apostolic Carmel

High School at Bandra in 9th Standard. Her date of birth is 9 th January,

2000. There was a mobile phone at her house bearing No.9819418058. In

the month of November, she received a missed call from mobile

No.9209832197. She called back the said number and the person on the

other end told his name as 'Aaditya'. From that phone call, she got

acquainted with 'Aaditya' (Appellant). He used to talk with her on phone

and subsequently asked her, whether she likes him. After few days, she

answered him in affirmative. Her father noticed her talking on phone and

therefore, he removed the sim card from it. She told the said fact to

Appellant and thereafter, he came to give her another sim card bearing

No.9659632383. At that time, she met him for the first time. He told her

that, he was taking education in 12 th Standard and was working with a

private company as a Driver and used to play Piano. Aaditya used to have

conversation with her on the said mobile number. That, on the next day of

4th December, 2013 there was sports day in her school and therefore, she

went to market near the Santacruz station for purchasing slacks. Before

that, the Appellant had called her and told her that, he was coming to

market near Santacruz Railway station. She met him there and thereafter,

they went to Panvel by train and thereafter by a Jeep to the native place of

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Appellant. In the night at around 1.00 a.m., they reached to the native

place of the Appellant and stayed at the house of the Appellant. Appellant

introduced her to his mother and sister as his friend and told them that, her

maternal uncle had left her near Panvel Railway station and therefore, he

brought her to house for safety. When the mother and sister of Appellant

asked her, whether she was having a phone number of her family members,

to which as per the directions of the Appellant, she denied.

9 That, on 5th December, 2013, in the morning, the Appellant told

his mother that, he was going to reach the prosecutrix at Panvel station and

they left house at about 11.30 a.m.. From Panvel station, the Appellant

took prosecutrix to Pen. There he booked one room in Kohinoor lodge. In

the Register of the said lodge, the Appellant entered his name as 'Deepak

Sada Parab' and the name of prosecutrix as 'Mrs. _________ Sada Parab'.

The prosecutrix has identified signatures of Appellant and herself, which

are marked as Q-1 and Q-2 respectively. The said signatures are appearing

from the extract of Register entries (Exh.14) of Kohinoor lodge. The

Appellant committed sexual intercourse with her there. On 6 th December,

2013, they came to Panvel. As no money was left with them, the Appellant

took her gold chain which was on her person, pawned it and received

Rs.4,000/-. Then, he booked a room at Panvel in one lodge and there also

he had sexual intercourse with her. Prosecutrix has identified the gold

chain (Article-1) in Court. That, on 7th December, 2013, they went to

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Nagothane and booked a room in a lodge through the friend of the

Appellant on mobile. The Appellant committed sexual intercourse with her

at that place also. There were phone calls from her family and police on

Appellant's mobile making inquiry about her to which, the Appellant

answered that, he did not know anything about her. On 7 th December,

2013, Aaditya received phone call from his sister and she told him that,

police had been to their house for inquiry. Both of them got frightened and

the Appellant told her to go back to home. Appellant dropped her at

Bandra Railway station and went to his house. She engaged rickshaw, came

to Khardanda and gave phone call to her mother. Her mother came at

Khardanda bus stop. Police were already there at the spot. The prosecutrix

along with her mother, went to Santacruz police station where, police

recorded her statement and send her for Medical Examination. Police

informed her that, the Appellant was married. Before that, she was not

knowing the fact of his marriage. Prosecutrix has identified her clothes

seized by the police bearing Article Nos. 2 to 7.

The defence has conducted an elaborate and searching cross-

examination of prosecutrix. In her cross-examination, except few

omissions, nothing beneficial to the Appellant has been elicited by the

defence. However, in the cross-examination, certain admissions have been

brought on record, which are detrimental to the Appellant. Prosecutrix has

admitted that, the Appellant was calling her and therefore, she used to talk

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with him and because of it, she developed love affair with the Appellant.

The Appellant told her that, he was studying in 12 th Standard and working

in a company. That, the Appellant gave her a sim card bearing

No.9619632383. On the date of incident, she received a call from the

Appellant two hours prior to going to Santacruz. That, the Appellant had

directed her not to tell anything to his family members at his house at

Panvel. She has admitted that, police were calling on the mobile of

Aaditya. After meeting her mother at Khardanda bus stop when she saw

her mother crying, her fear, for her mother, got reduced and she felt that,

she had committed a mistake. In police station, she came to know that, the

Appellant is a married man having one daughter. That, after coming to

know that the Appellant was married, she felt that the person for whom she

left her parents has cheated her. After knowing the fact that, the Appellant

was a married person, she got angry as the Appellant had cheated her and

therefore, she has stated whatever the Appellant had done with her.

The prosecutrix has denied all suggestions given by the defence

counsel and has maintained her version as narrated hereinabove in her

examination-in-chief.

10 The prosecution has established the fact of stay of Appellant

and prosecutrix at Kohinoor lodge at Pen by examining Niket R. Shahane

(P.W. No.3), Manager of Kohinoor lodge. He has proved the entry of the

Appellant from the Hotel Register (Exh.14) and the signatures of Appellant

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and prosecutrix. He has also identified the Appellant as the same person

who had been to his lodge along with prosecutrix on 5 th December, 2013.

Hemant R. Bhoir (P.W. No.4), is the panch witness to the spot and seizure

panchanama (Exh.17) of the Articles from Kohinoor lodge and he has

proved the said document. Irfan Ali Khan Bubere (P.W. No.5) is the panch

witness for seizure of clothes, bedsheet and blankets from Anand lodge,

Nagothane under a panchanama (Exh.19) where, the Appellant and

prosecutrix had stayed on that day. This witness had identified the

Appellant as the person who had been to his lodge on 6 th December, 2013.

He has also proved the said panchanama at Exh.19.

11 Dr. Baban S. Shinde (P.W. No.6) had examined the Appellant on

9th December, 2013 at Police Hospital, Nagpada. From medical examination

of the Appellant nothing was found to him to suggest that, the Appellant

was impotent.

Dr. Kiran Kalyankar, (P.W.No.7) was working at Police Hospital,

Nagpada as a Medical Officer. On 8 th December, 2013, he examined

prosecutrix, who was brought by Santacruz police station. Before

examination, he jotted down history given by the prosecutrix. The

prosecutrix narrated him that, she was having love affair with the Appellant

since last 3 months. She had quarrel with her mother a week ago and in a

fit of rage, she called the Appellant and they fled away on 4 th December,

2013 to Vashi at the house of Appellant. They, thereafter went to Pune,

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Panvel and Nagothane. She had repeated multiple consensual sexual

contacts with the Appellant during the said four days. In her local

examination, he found position of tears at 9, 12, 2, 5 and 6 O'Clock. Large

tears at 5 and 6 O'clock position were in healing stage. That, the injuries

were consistent with the history given by the prosecutrix i.e. 4 to 5 days

prior to Medical Examination she had sexual contracts. He has further

stated that, ossification test of prosecutrix was carried out to determine her

age and thereafter, he concluded her age between 13 to 14 years.

12 Mahendra P. Kothariya (P.W. No.8), was a Jeweller by

profession and was running his business under the name and style 'Pukhraj

Jewellers', at old Panvel. The Appellant through his friend Balu H. Bhopi

(P.W. No.13), had pawned one gold chain of the prosecutrix with P.W. No.8

and had received Rs.5,000/- for it. The said gold chain (Article-) was

seized by the police from the shop of P.W. No.8 in presence of panch witness

Omprakash Jaiswal (P.W. No.9) by effecting seizure panchanama at Exh.30.

Kuppuswami M. Harijan (P.W. No.10) and Mangal R. Tiwari

(P.W. No.12) are the panch witnesses to the seizure panchanamas at Exhs.32

and 35 of the clothes of prosecutrix and Appellant respectively.

13 Ratnamala Sadanand Parab, nee Ratnamala Gajanan Bhoir

(P.W. No.16) is the wife of the Appellant. She has deposed that, she married

with Appellant on 13th June, 2012. After marriage she was residing with

the Appellant, her mother-in-law and sister-in-law at her matrimonial

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house. Appellant had obtained hand-loan at Vashi from some persons.

Those persons were demanding money back and therefore, the Appellant

shifted his family to Bhingargaon, Panvel. They have a daughter from the

wedlock. The date of birth of daughter is 9 th November, 2013. When she

was carrying 7 months, the Appellant had kicked in her abdomen and

therefore, her mother took her to hospital. She has further deposed that,

her marriage with the Appellant is still subsisting. This witness has

produced on record Birth Certificate Exh.46 and two photographs which are

marked as Exhs.47 and 48 respectively. The defence has taken her

searching cross-examination, however, nothing beneficial to it has been

elicited from it. Suggestions given to this witness by defence counsel have

been denied by her.

14 P.W. No.11, P.W. No.14, P.W. No.15 and P.W. No.17 are the

various Police Officers, who have conducted investigation of the present

crime at different stages and their evidence is formal in nature. No

omission or improvement has been brought on record by the defence from

their cross-examinations.

15 The School Leaving Certificate produced by P.W. No.1 (Exh.12)

coupled with the testimony of P.W. No.7 Dr. Kiran Kalyankar clearly

establishes the fact that, the prosecutrix's age on the date of commission of

crime i.e. on or about 5th December, 2013 was 13 to 14 years. Even if an

error of margin of two years in calculating her age is taken into

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consideration, then also, on the date of commission of crime, her age was

below 16 years. Thus, the prosecutrix was a 'child' as contemplated under

Section 2(d) of the POCSO Act. The evidence of Mrs. Ratnamala S. Parab

(P.W. No.16), establishes the fact that, the Appellant was married to her and

was father of a daughter born out of their wedlock. Though her statement

recorded under Section 161 of Cr.P.C. is not available on record, it clearly

appears that, the said witness was thoroughly cross-examined by the

Appellant. Exhs.47 and 48 produced by her are two photographs. Exh.47

is of P.W. No.16 and Appellant as a couple and Exh.48 is a photograph of

four persons i.e. one male and 3 ladies. The Appellant in his statement

recorded under Section 313 of Cr.P.c. has admitted that, in the photograph

at Exh.47, he is the same person in it. As far as photograph at Exh.48 is

concerned, the Appellant has identified the other two ladies as his mother

and sister and has denied to identify P.W. No.16 as unknown person. From

the photographs it clearly appear that, the Appellant was married with P.W.

No.16 Ratnamala S. Parab, prior to the incident in question. Dr. Baban S.

Shinde, (P.W.No.6) has opined that, the Appellant is a potent person. There

is more than sufficient material available on record in the form of Call

Detail Record (CDR) including Tower locations of the mobile phone of the

Appellant to establish the fact that, from 4th December, 2013 to 7th

December, 2013, the Appellant was present at different places mentioned

in the foregoing paragraphs.

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16 It is thus crystal clear from the above that, the Appellant

developed intimacy with the prosecutrix on mobile phone, lured her and

enticed her to leave her parents house on 4th December, 2013 though the

Appellant was married with P.W. No.16, much prior to it. The prosecutrix

was infatuated with the rosy picture of love affair presented before her by

the Appellant. By taking undue advantage of the situation that the

prosecutrix in the fit of rage had left her parents house, the Appellant by

pretending to help her, took her at Pen, Panvel and Nagothane, resided with

her in different lodges and committed sexual intercourse with her. Though

the prosecutrix while narrating history to the P.W. No.7 has admitted that,

she had love affair with Appellant and she indulged into repeated multiple

consensual sexual contacts with him in the said period of four days, her

consent to the said act is irrelevant and immaterial in the eyes of law.

Admittedly, the prosecutrix was minor/child aged about 13 to 14 years on

the date of commission of the present offence.

It is well settled position of law as has been enumerated by the

Hon'ble Supreme Court in the case of Aman Kumar And Anr. vs State Of

Haryana [AIR SC 1497], that the prosecutrix complaining of having been a

victim of the offence of rape is not an accomplice after the crime. That,

there is no rule of law that her testimony cannot be acted without

corroboration in material particulars. She stands at a higher pedestal than

an injured witness. That in the later case, there is injury on the physical

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form, while in the former it is both physical as well as psychological and

emotional. The same view is further expressed by the Supreme Court in the

case of State of Himachal Pradesh Vs. Shree Kant Shekari, AIR 2004 SC

4404.

17 In the present case, the evidence of the prosecutrix is wholly

trustworthy and reliable. The medical evidence on record also corroborates

the version of the prosecutrix. Even otherwise, there was no reason for the

prosecutrix to falsely implicate the Appellant in a crime of present nature

where her reputation in the society was at stake. It appears from record

that, it is only when she realized that the Appellant is a married person and

is father of a daughter, has cheated her only to exploit her sexually, she

revealed all the facts to the police.

18 The Trial Court has rightly observed in paragraph No.9 of the

impugned Judgment that, it is not a matter of simple love affair but of

deliberate planned sexual assault on a school going teenaged girl by a

married man, having one child, who satisfied his lust at the cost of money

of victim by duping her of her gold chain under guise of love, started after

kicking his pregnant wife in her abdomen.

19 The prosecution has thus, proved beyond reasonable doubt

that, the Appellant committed penetrative sexual assault on the prosecutrix

punishable under Section 4 of POCSO Act read with Section 376 of the IPC.

As noted earlier, the Appellant enticed prosecutrix from her parents lawful

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custody and committed sexual assault on her. He has thus, committed an

offence under Section 366 of the IPC.

20 As far as quantum of sentence is concerned, Section 4 of the

POCSO Act, prescribes punishment with imprisonment of either description

for a term which shall not be less than seven years but which may extend to

imprisonment for life, and also with fine. The Trial Court has awarded

sentence of 10 years of rigorous imprisonment to the Appellant under

Section 4 of the POCSO Act. In view of Section 42 of the said Act, the Trial

Court has not awarded separate sentence/punishment under Section 376 of

the IPC.

As noted hereinabove earlier, the Appellant in a planned

manner, lured and enticed the prosecutrix, who was of adolescent age at

the time of offence. She got infatuated by the rosy picture depicted by the

Appellant and left her parents house. The Appellant by suppressing the fact

that, he was a married man, lured the prosecutrix to join him and has

further exploited her. After taking into consideration the mitigating and

aggravating circumstances of the present crime, this Court is of the view

that, the sentence awarded by the Trial Court is just, right and proper. No

leniency can be shown to the Appellant in view of the facts mentioned

hereinabove by reducing the said sentence.

21 In view thereof, this Court is of the opinion that, the Trial Court

has not committed any error either in law or on facts while passing the

20/21 ssm 21 Appeal367.16.doc

impugned Judgment and Order. There are no merits in Appeal.

Appeal is accordingly dismissed.

This Judgment will be digitally signed by the Private Secretary

of this Court. All concerned will act on production by fax or e-mail of a

digitally signed copy of this Judgment.

(A.S. GADKARI, J.) Digitally signed by Sanjiv S. Sanjiv S. Mashalkar Mashalkar Date:

2020.11.10 17:21:37 +0530

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