Suresh Angloswami Naidu vs The State Of Maharashtra
- CitationAIRONLINE 2020 BOM 2609
Ratio decidendi
The rule this decision rests on
An accused may only be convicted of offences for which he was charged and granted opportunity to defend; convicting him of an offence carrying greater punishment than the charge framed against him, without affording such opportunity, causes irreparable prejudice and is impermissible even where the evidence supports the graver offence, and the conviction must be modified to the lesser offence that was actually charged.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
ssm 1 Appeal865.17-final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO.865 0F 2017
Suresh Angloswami Naidu, Aged about 33 years, at present Undergoing a sentence of Ten years at Kolhapur Central Prison, Kalamba as convict Prisoner No. C-6516. ....Appellant.
Vs. The State of Maharashtra .....Respondent. Mr. Abhaykumar Apte for the Appellant. Mr. S.S. Hulke, APP for the Respondent.
CORAM : A. S. GADKARI, J. RESERVED ON : 14TH SEPTEMBER 2020. PRONOUNCED ON : 25TH NOVEMBER 2020.
JUDGMENT:
-
The Appellant (Original Accused No.1), has impugned
Judgment and Order dated 20 th January, 2016 passed by the learned
Additional Sessions Judge and Special Judge under the POCSO Act,
Ichalkaranji, convicting him under Section 363 of the Indian Penal Code
(for short, "the IPC") and is sentenced to suffer rigorous imprisonment for 3
years and to pay fine of Rs.5,000/-, in default of payment of fine, to further
suffer simple imprisonment for 3 months; under Section 366 of the IPC and
is sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of
Rs.15,000/-, in default of payment of fine, to further suffer simple
imprisonment for 9 months; and also convicting him for the offence under
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Section 5(l) punishable under Section 6 of the Protection of Children from
Sexual Offences Act (for short, "the POCSO Act") and is sentenced to suffer
rigorous imprisonment for 10 years and to pay a fine of Rs.30,000/-, in
default of payment of fine, to further suffer simple imprisonment for 1 year.
The Trial Court has not awarded separate sentence under Section 376 of
the IPC in view of the provisions of Section 42 of the POCSO Act. The Trial
Court has also directed that, all the substantive sentences to run
concurrently.
Kiran Mahadev Mokashi, Original Accused No.2 (for short, "
Org. A-2") has been acquitted by the Trial Court from all the charges by the
same impugned Judgment and Order.
2 Heard Mr. Apte, learned Advocate for the Appellant and Mr.
Hulke, learned APP for the State. Perused entire record.
3 As per prosecution, the prosecutrix was aged about 13 to 14
years on the date of commission of alleged offence i.e. on 4 th July, 2013 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
evidence of the prosecutrix and relevant witnesses is hereby avoided.
4 The prosecution case in brief is that:-
(i) The Appellant was working in the office of Mr.
Kiran Mokashi (Org. A-2). Mr. Kiran Mokashi was working as an agent of a
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Co-operative Society. Prosecutrix (P.W. No.2) along with her father (P.W.
No.1) and other family members was residing in the house of Mr. Kiran
Mokashi (Org. A-2). The Appellant was residing adjacent to the house of
P.W. No.1. The record indicates that, the prosecutrix was acquainted with
the Appellant due to the said reason. The prosecutrix had left education
after passing out of Class 8th examination. Father of the prosecutrix was
running a power-loom factory of one Mr. Badashaha Mujawar on rent,
which was situated at Kagawade Mala, Ichalkaranji. The prosecutrix was
doing household work and also cleaning work in the said factory to help her
father.
(ii) That, on 4th July, 2013, at about 1.30 to 2.00 p.m.,
prosecutrix along with her uncle namely Iresh Gobbur had been to the said
factory for cleaning it. Her father thereafter went for having lunch. The
prosecutrix did not return to house upto 4.30 to 5.00 p.m.. Despite taking
search of the prosecutrix with her friends and relatives, she could not be
traced. Her father, Bamlingappa S. Jeur (P.W.No.1) therefore, lodged a
missing complaint (Exh.27) with Shivajinagar Police Station, Ichalkaranji
on 6th July, 2013.
(iii) While taking search of prosecutrix, Mr. Kiran
Mokashi (Org. A-2) told P.W. No.1 that, the Appellant and his daughter
were talking on phone, when they had been to Barshi. The father of
prosecutrix therefore, got suspicion about Appellant, who was also missing
3/19 ssm 4 Appeal865.17-final.doc
from 4th July, 2013. He, therefore, again went to Shivaji Nagar Police
Station, Ichalkaranji and lodged a complaint (Exh.28) under Sections 363,
366(A) read with Section 34 of the IPC. The said complaint was registered
as CR No. 85 of 2013.
(iv) It is the further prosecution case that, on 4 th July,
2013, the Appellant induced, lured and with a promise to marry
prosecutrix, initially took her at Borgaon S.T. Stand and from there, he took
her at Chikkodi (Karnataka State). They stayed at Hidkal Dam at one
house for 2 nights. During that period, the Appellant established physical
relations with the prosecutrix. The Appellant thereafter took prosecutrix to
village Sipla Puttur, State of Tamil Nadu to the house of his sister namely
Anasiya. The prosecutrix and the Appellant resided there up to 29 th July,
2013. During that period, the Appellant was establishing physical relations
with the prosecutrix by extending promise of marriage with her.
(v) That, on 29th July, 2013, the police along with Mr.
Uttam Mokashi, brother of Org. A-2, visited the said place and brought
them back to Shivajinagar Police Station, Ichalkaranji on 30 th July, 2013.
The statement of prosecutrix was recorded under Section 164 of the Code
of Criminal Procedure (for short, 'Cr.P.C.') by the learned Magistrate. The
Investigating Officer visited the aforestated spots where the Appellant had
taken prosecutrix and prepared spot panchanamas (Exhs. 39 and 40) in
presence of panch witness Mr.Sadiq Pendhari, (P.W. No. 3). The
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Investigating Officer also seized the clothes of Appellant and prosecutrix
under panchanams which are at Exhs. 35 and 45 respectively. Medical
Examination of prosecutrix was conducted by Dr. Vijay Koparde (P.W.
No.5).
(vi) On completion of investigation, the Investigating
Officer Smt. Archana K. Bodhade (P.W. No.9) submitted charge-sheet under
Sections 363, 366, 366(A), 376 and 109 of the IPC against the Appellant
and Kiran Mokashi (Org. A-2) and also under Section 4 of the POCSO Act
against the Appellant before the Trial Court on 26 th October, 2013. The
Trial Court framed charge below Exh-8 on 27 th January, 2014 for the
offence punishable under the aforestated Sections. The contents of the
charge were read over and explained to the accused persons in vernacular
language to which, they denied and claimed to be tried.
(vii) The prosecution in support of its case, examined in
all 9 witnesses viz. P.W. No.1-father of the prosecutrix; P.W. No.2-
prosecutrix; P.W. No.3-Sadiq Pendhari, panch to spot panchanama; P.W.
No.4-Raju Awale, panch for seizure of clothes of accused; P.W. No.5-Dr.
Vijay Koparde, Medical Officer, who examined the prosecutrix; P.W. No.6-
Ravi Gaikwad, friend of Appellant; P.W. No.7-Chandrappa Kodi, a witness;
P.W. No.8- API-Dhananjay Dhone, Investigating Officer and P.W. No.9 PI-
Smt. Archna Bodhade, Investigating Officer.
(viii) The Trial Court after recording evidence and
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hearing the learned Advocates for the respective parties, has convicted
Appellant by its impugned Judgment and Order dated 20 th January, 2016.
The Trial Court was pleased to acquit Kiran Mokashi (Org. A-2) by the same
impugned Judgment and Order.
5 Mr. Apte, learned counsel appearing for the Appellant
submitted that, though the prosecutrix had ample opportunity to tell the
fact of her alleged abduction/kidnapping by the Appellant to the persons in
whose contact she came during the period from 4 th July, 2013 to 29th July,
2013, she did not tell it to anybody. He further submitted that, from the
admissions given by the prosecutrix (P.W.No.2) and her father (P.W.No.1),
a safe inference can be drawn that, the prosecutrix had attained the age of
understanding and discrimination and she had willingly joined the
company of the Appellant on 4th July, 2013 i.e. the date of commission of
the present offence. He submitted that, except bare words of prosecutrix
(P.W. No.2) and her father (P.W. No.1), no other material is produced on
record and proved by the prosecution to show the correct age of the
prosecutrix. He submitted that, the Appellant has not admitted documents,
produced by the prosecution as per Section 294 of Cr.P.C. below Exh.13/C.
In the said list of documents, prosecution had produced bonafide certificate
of prosecutrix dated 8th July, 2013 at Serial No.6. The Appellant has not
admitted the said document also. He submitted that, the date on Birth
Certificate or other documents depicting correct age of the prosecutrix has
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neither been produced nor proved by the prosecution and therefore, a safe
inference can be drawn that, the prosecutrix was above the age of 18 years
on the date of commission of the present offence.
He submitted that, the Trial Court had framed charge below
Exh-8 against the Appellant under Section 4 of the POCSO Act only.
However, the Trial Court has convicted the Appellant for the offence
committed under Section 5(l) punishable under Section 6 of the POCSO
Act, which is contrary to the settled principles of law. He submitted that,
the Appellant was not granted an opportunity to contest and/or meet with
the said charge. He submitted that, even in the statement of the Appellant
recorded under Section 313 of the Cr.P.C., the material showing
involvement of him for the offence under Section 5(l) of the POCSO Act
was not put to him and therefore, great prejudice has been caused to the
Appellant.
He lastly submitted that, if the Court is not inclined to acquit
the Appellant from the charges framed against him, then the Appellant may
be held guilty under Section 4 of the POCSO Act and a minimum sentence
prescribed therein may be awarded to him. That the Appellant has already
undergone approximately 5 years of actual imprisonment as of today. He
therefore, prayed that, the present Appeal may be allowed by setting aside
the impugned Judgment and Order.
6 Per contra, Mr. Hulke, learned APP vehemently opposed the
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Appeal and submitted that, in view of the evidence of the prosecutrix
(P.W.No.2) and her father (P.W.No.1), the prosecution has successfully
proved that, on the date of commission of the present offence her age was
below 18 years. He however fairly submitted that, except the version of
prosecutrix and her father, no other material has been produced on record
by the prosecution to show the exact age of the prosecutrix on the date of
commission of the offence. He also fairly conceded to the fact that,
bonafide certificate of the prosecutrix produced by the prosecution at Serial
No.6 in Exh.13/C has not been proved by the prosecution. He submitted
that, the Appellant was a married person and lured the prosecutrix by
extending false promise of marriage and has sexually exploited her and
therefore, no leniency be shown to the Appellant. He submitted that, the
present Appeal therefore, may be dismissed.
7 A minute perusal of evidence on record would indicate that,
though the prosecution has examined in all 9 witnesses to substantiate
charges against the Appellant, the evidence of P.W. No.1 i.e. the father of
prosecutrix, P.W. No.2 prosecutrix and P.W. No.5 Dr. Vijay Koparde, who
examined the prosecutrix, is of much importance and relevant for deciding
the present Appeal.
The evidence of P.W. No.6 Ravi Gaikwad, the friend of the
Appellant who met him at Borgaon S.T. Stand is of no avail to the
prosecution as he was declared hostile. P.W. No.7 Chandrappa Kodi, a
8/19 ssm 9 Appeal865.17-final.doc
person who had seen prosecutrix in company with the Appellant on 4 th July,
2013 has also resiled from his statement given to the police and has been
declared hostile. The evidence of P.W. No.3 Sadiq Pendhari, a panch
witness to the spots, where the Appellant and prosecutrix had stayed; the
evidence of P.W. No.4 Raju Awale, a panch witness to the seizure of clothes
of Appellant; P.W. No.8 Dhananjay Dhone, Assistant Police Inspector and
P.W. No.9 Smt. Archana Bodhade, Police Inspector and Investigating Officer
of the present crime, is formal in nature and therefore, their evidence is not
discussed in detail hereinafter.
8 The father of the prosecutrix (P.W.No.1) has deposed about the
facts of prosecutrix leaving her studies after passing out 8 th Standard class,
her help in household work and cleaning work in the factory to help him.
He has also deposed about missing of prosecutrix on 4 th July, 2013 and his
lodgment of missing complaint (Exh.27) on 6 th July, 2013. He has deposed
that, the Org. A-2, Kiran Mokashi had told him to keep watch on his
daughter as the Appellant used to talk with her on phone. That, the
Appellant was also missing from 4 th July, 2013 and therefore, he got
suspicion about him and lodged first information report (Exh.28) on 25 th
July, 2013. He has proved the said documents at Exhs. 27 and 28.
In his cross-examination, he has admitted that, from 4 th July,
2013 his daughter did not contact him or any other member of his family.
That, the prosecutrix was born from his first wife namely Nirmala. He was
9/19 ssm 10 Appeal865.17-final.doc
residing with his wife Vijayalaxmi, with whom he performed marriage prior
to 2½ years. He admitted that, at the relevant time, the settlement of
marriage of prosecutrix was going on with one Mr. Hiresh. He has
admitted that, on the date of lodgment of missing report i.e. on 6 th July,
2013, Mr. Hiresh and one other person had accompanied him to the Police
Station.
9 The prosecutrix in her testimony has deposed that, her date of
birth is 4th May, 2000. She left the school after attending IX Standard. The
house, in which she was residing was owned by Mr. Kiran Mokashi (Org. A-
2). The name of her mother was Nirmala who died in January, 2011. She
got acquainted with the Appellant as she used to go for washing clothes in
front of the office of the Appellant. She has deposed that, on 4 th July, 2013
between 11.30 a.m. to 12.00 noon, she had been to the factory for work as
usual. She was returning home at about 2.30 p.m.. At that time, the
Appellant came on a motor-cycle near her and offered to leave her at her
house. The prosecutrix sat on the motor-cycle as a pillion rider and
thereafter, the Appellant took her near Apana Bazar situated near Sambhaji
Chowk. The Appellant told her that, he likes her and intends to marry her.
He told her that, her father was harassing her and therefore, he took her to
the Nadi Vesh and telephoned someone and called him at Borgaon S.T.
Stand to collect the motor-cycle.
The Appellant, thereafter took her at Borgaon S.T. Stand. Two
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persons came there on motor-cycle. Out of two persons, one person
inquired about the prosecutrix with the Appellant to which, the Appellant
replied that, she was in his relation and he was taking her to drop her at
Chikkodi. The Appellant introduced the said two persons as his friends
namely Ravi (P.W. No.6) and Sachin. The Appellant handed over his
motor-cycle to those persons and thereafter, took prosecutrix at Chikkodi
(Karnataka State). They thereafter proceeded to Hidkal dam by a bus. At
Hidkal dam, they stayed in one house for 2 nights and during that period,
the Appellant committed sexual intercourse with her. The Appellant
thereafter, took her to Tamilnadu State. They were travelling by bus and
train for about 3 days. The Appellant took her in a house at one village.
The said house was of Smt. Anasiya, the sister of Appellant. Smt. Anasiya
was residing along with her husband and two daughters. The Appellant
and prosecutrix stayed there for 12 to 15 days and during the said period,
the Appellant was establishing sexual relations with her under the pretext
that, he would marry with her. That, on 29 th July, 2013, police visited the
said house along with Mr. Uttam Mokashi i.e. the brother of Kiran Mokashi
(Org. A-2). Police brought them back at Shivajinagar Police Station,
Ichalkaranji on 30th July, 2013. Police seized her clothes by effecting
panchnama (Exh.35).
In her cross-examination, the prosecutrix has admitted that, at
the material time of incident, talks of her marriage were going on in her
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house and the marriage proposal had come from her maternal uncle Iresh.
She did not tell the fact of her minor age to her parents. An omission that,
she tried to tell the friends of Appellant at Borgaon S.T. stand that, the
Appellant has taking her forcibly has been brought on record. The
prosecutrix has further admitted that, Apana Bazar at Sambhaji Chowk and
Borgaon S.T. Stand are surrounded by thick population.
10 Dr. Vijay Pandurang Koparde, (P.W. No.5) has examined
prosecutrix on 30th July, 2013. He has deposed that, he did not notice any
external injury on the person of the prosecutrix. Secondary sex characters
were found to be well developed on her examination. He opined that,
intercourse was done with her. He noticed that, the PV Test was not
painful to the prosecutrix. He accordingly made observations in the Medico
Legal Certificate (Exh.49).
In his cross-examination, he has admitted that, he was
informed age of the prosecutrix as 14 years from the record maintained by
the hospital as well as from the appearance of the prosecutrix and
information secured from her. He has admitted that, he did not perform
ossification test to ascertain the age of prosecutrix. He has admitted that,
from the appearance of the prosecutrix, she might have been major also.
11 It is to be noted here that, though from the evidence of P.W.
Nos.1, 2 and 5 it can be inferred that, on the date of commission of present
offence, the prosecutrix had attained the age of understanding and
12/19 ssm 13 Appeal865.17-final.doc
discrimination, however it does not absolve the Appellant from the offences
charged against him. Though the prosecution has failed to bring on record
the date of birth certificate to reinforce its contention that, the prosecutrix
was minor on the date of commission of the present offence, the version of
prosecutrix and her father that, her date of birth is 4 th May, 2000 has gone
unchallenged. The Appellant is not successful or rather has failed to bring
on record any material even to infer that, on the date of commission of
offence, the prosecutrix was more than 18 years of age and was not a minor
as per the provisions of POCSO Act.
12 At this stage useful reference can be made to two decisions of
the Hon'ble Supreme Court in the case of (i) State of Himachal Pradesh Vs.
Shree Kant Shekari, reported in AIR 2004 SC 4404 and (ii) Aman Kumar &
Ors. Vs. State of Haryana, reported in AIR 2004 SC 1497. The Hon'ble
Supreme Court has held that, the prosecutrix is not an accomplice in the
crime. Mere delay in lodging the FIR does not render prosecution version
brittle. It is held that, the evidence of prosecutrix stands at higher pedestal
than an injured witness and it needs no corroboration.
Thus, it is clear that, the prosecutrix is not accomplice in crime
of sexual assault and her testimony stands on higher pedestal than an
ordinary witness.
13 Perusal of evidence of prosecutrix would clearly indicate that
her testimony is fully reliable and trustworthy. The offence of rape as
13/19 ssm 14 Appeal865.17-final.doc
contemplated under Section 375 of the IPC has been clearly made out. The
Appellant by taking undue advantage of the family background and
adolescent age of prosecutrix, by giving her promise of marriage enticed her
to leave her house and abducted her from the lawful guardianship of her
father. Even if it is presumed that, on the date of commission of the present
offence, the prosecutrix had attained the age of understanding and
discrimination and she herself joined the company of the Appellant without
any demur, technically in the eyes of law an offence under the provisions of
POCSO Act is clearly made out and proved by the prosecution against the
Appellant.
14 This leads me to deal with the contention of the learned
counsel for the Appellant that, though the charge was framed under Section
4 of the POCSO Act, the Appellant has been convicted for an offence under
Section 5(l) punishable under Section 6 of the POCSO Act.
The record reveals that, para No.9 of the charge (Exh.8/C)
framed by the Trial Court reads as under:-
"9) Ninethly on the abovesaid date, time and place you
accused No.1 Suresh Nayadu committed penetrative sexual
assault by penetrating your penis into the vagina of a child
Anita Bamlingappa Jevur or made her to do so with you and
thereby committed an offence punishable U/s. 4 of the
Protection of Children from Sexual Offences Act, 2012 and
14/19 ssm 15 Appeal865.17-final.doc
within the congnizance of Special Court of Sessions."
The Trial Court has formulated point Nos. 4 and 6 for its
determination as under:-
Number POINTS FINDINGS 4. Whether the prosecution proved In the Affirmative that, from 04-07-2013 till 29- 07-2013 accused no.1 committed rape on the victim girl of minor age and committed penetrative sexual assault upon her?
6. What offence, if any, has been Accused No.1 is guilty committed by the accused u/sec. 363, 366, 376 persons? IPC & u/sec 5(l), punishable u/sec 6 of POCSO Act.
15 Section 4 (1) of POCSO Act, prescribes punishment for
penetrative sexual assault with imprisonment of either description for a
term which shall not be less than (ten years) but, which may extend to
imprisonment for life and also with fine.
Section 3 of the said Act defines 'penetrative sexual assault'.
Section 5 defines aggravated penetrative sexual assault and Sub-Section (l)
mentions that, whoever commits penetrative sexual assault on the child
more than once or repeatedly. Section 6 of the POCSO Act prescribes
punishment for aggravated penetrative sexual assault with rigorous
imprisonment for a term which shall not be less than 20 years, (prior to
amendment of 2019, it was 10 years) but which may extend to
15/19 ssm 16 Appeal865.17-final.doc
imprisonment for life and also with fine or with death.
16 In the present case, the Trial Court while holding the Appellant
guilty for an offence committed under Section 5(l) and punishable under
Section 6 of POCSO Act, (though not charged) has held that, the Appellant
was charged under Section 4 for penetrative sexual assault and was not
charged with Section 5(l) punishable under Section 6 of the said Act,
however, perusal of the charge shows that, ingredients of Sub-Section (l) of
Section 5 have been well founded in it, which were made aware to the
Appellant and therefore, no prejudice would be caused if the Appellant is
held guilty under Sub-Section (l) of Section 5 punishable under Section 6 of
the POCSO Act than under Section 4 of the said Act. This is the only
discussion made by the Trial Court in paragraph No. 43 of impugned
Judgment while holding the Appellant guilty under Section 6 of the POCSO
Act.
17 As noted hereinabove, it is an admitted fact on record that, the
Appellant was charged with Section 4 of the POCSO Act. It is the settled
position of law that, an accused can be tried for the charges framed against
him and not otherwise. Even if a charge is altered or modified, it is
necessary and imperative for the concerned Court to make the accused
aware/understand it and hear him/her on the said charge and thereafter
convict him/her. Convicting an accused for a charge which was not framed
and which attracts higher punishment than the one prescribed for an
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offence of lesser gravity and for which an opportunity to defend was not
granted, would certainly cause irreparable harm and prejudice to the
accused in the eyes of law.
18 In the present case, the evidence of prosecutrix is self eloquent
and needs no further corroboration. Dr. Vijay Koparde,(P.W. No.5) has
corroborated the version of prosecutrix about the sexual assault on her. As
noted earlier, an offence as contemplated under Section 375 of the IPC has
clearly been made out against the Appellant. As the prosecutrix was a
'child' within the meaning of Sub-Section (d) of Section 2 of the POCSO Act
on the date of commission of the offence, the provisions of the said Act are
applicable.
However, as the charge for offence under Section 5(l)
punishable under Section 6 of the POCSO Act was not framed and the
Appellant was not granted an opportunity to defend the same by the Trial
Court, there is no other alternative for this Court than to hold the Appellant
guilty for an offence of lesser gravity i.e. under Section 4 of the POCSO Act.
This Court accordingly modifies the conviction of the Appellant from
Section 6 to Section 4 of the POCSO Act. The Appellant is thus, hereby
held guilty for an offence punishable under Section 4 of the POCSO Act.
19 The date of commission of offence in the present case was 4 th
July, 2013. The prosecutrix was in the company of Appellant from 4 th July,
2013 to 29th July, 2013. The words 'ten years' mentioned in Section 4 and
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as noted hereinabove have been substituted for the words 'seven years' by
an Amendment Act of 25 of 2019 which has been brought into effect from
16th August, 2019. Thus, prior to 16 th August, 2019, the minimum
punishment prescribed under Section 4 of the POCSO Act was seven years
of imprisonment of either description.
20 As per the learned counsel for the Appellant, as of today, he
has undergone approximately 5 years of actual imprisonment. Perusal of
evidence on record would reveal that, all the ingredients of offence under
Section 3 punishable under Section 4 of the POCSO Act have been made
out. In the absence of charge framed under Section 6 of the POCSO Act,
the Trial Court ought to have convicted and sentenced the Appellant under
Section 4 of the said Act. As noted in foregoing paragraphs, the Trial Court
has committed grave error in convicting the Appellant under Section 6 of
the POCSO Act. In view of the above and after taking into consideration
over all view of the present matter, this Court is of the considered opinion
that, the Appellant deserves to be awarded minimum sentence under
Section 4 of the POCSO Act, which was prevailing prior to the amendment
of 2019 i.e. seven years of rigorous imprisonment and is accordingly
awarded.
21 After taking into consideration aforestated discussion, the
Appeal is partly allowed by modifying conviction of the Appellant from
Section 6 to Section 4 of the POCSO Act.
18/19
ssm 19 Appeal865.17-final.doc
Hence the following Order:-
(a) Paragraph No.8 of the impugned Judgment and Order is
hereby set aside and the Appellant is convicted for the
offence punishable under Section 4 of the POCSO Act
and is sentenced to suffer rigorous imprisonment for
seven years.
(b) Rest of the operative Order of the impugned Order
passed by the Trial Court, including the imposition of
fine amount and in default sentences prescribed thereon,
by its impugned Judgment and Order dated 20 th
January, 2016 is hereby maintained.
(c) It is needless to mention that, all the sentences shall run
concurrently and the Appellant will be entitled for the
benefit of Section 428 of the Cr.P.C..
Digitally signed by Sanjiv S.
(d) Appeal is partly allowed, in the aforesaid terms. Mashalkar Sanjiv S. Date:
Mashalkar 2020.11.25 13:51:09 +0530
(A.S. GADKARI, J.)
19/19
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