Bombay High Court
VIJAY RAMESH DANTANIversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Partly Allowed
Holding
The conviction under Section 376 IPC is upheld, but the conviction under Section 5 r/w Section 6 of the POCSO Act is set aside and replaced with conviction under Section 3 r/w Section 4, with the sentence reduced to twelve years of rigorous imprisonment.
Summary
The appellant, Vijay Ramesh Dantani, was convicted by a Special Judge under the POCSO Act for penetrative sexual assault of an 11‑year‑old girl, receiving life imprisonment and a fine. On appeal, the High Court examined the credibility of the child’s testimony, the four‑day delay in filing the FIR, inconsistencies in statements, and the medical evidence. The Court held that despite minor discrepancies, the victim’s testimony was reliable, corroborated by medical findings of a torn hymen, and thus sufficient for conviction under Section 376 IPC. However, the prosecution failed to prove the offence under Section 5(l) and 5(m) of the POCSO Act, and could not conclusively establish the victim’s age below twelve. Consequently, the conviction under Section 5 r/w Section 6 was modified to Section 3 r/w Section 4 of the POCSO Act, the life sentence was replaced with twelve years’ rigorous imprisonment, and the compensation order was upheld.
Issues considered
- The credibility and reliability of the child victim's sole testimony
- Whether the four‑day delay in lodging the FIR vitiates the prosecution case
- Whether the prosecution proved the offence under Section 5(l) and 5(m) of the POCSO Act (repeated assault and age below twelve)
- Whether the medical evidence corroborates the alleged sexual assault
- Whether the conviction under Section 376 IPC stands despite modifications under the POCSO Act
Legislation cited
- Indian Penal Code, 1860 — s. 376
- Protection of Children from Sexual Offences Act, 2012 — s. 3, 33(8), 4, 42, 5(l), 5(m), 6
Subjects
- POCSO Act
- child sexual assault
- sole testimony
- FIR delay
- age determination
- medical evidence
- corroboration
- life imprisonment
- sentence reduction
- IPC Section 376
Judgment
Cr.A.101-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 101 of 2018
Vijay Ramesh Dantani
(at present in Arthur Road Jail)
Aged 47 years
Add. Room No. 7, Pragati Rahivashi Seva Sangh,
Waghariwada, Dattamandir Road,
Vakola, Mumbai ...Appellant
vs.
1. The State of Maharashtra
(Through the Senior Inspector of Police,
Mahim Police Station)
2. XYZ
(Through the Senior Inspector of Police,
Mahim Police Station) ...Respondents
Ms. Lakshmi Raman, for the Appellant.
Ms. Sharmila Kaushik, APP for the Respondent-State.
Ms. Manisha Devkar, for Respondent No. 2.
VISHAL CORAM: MANISH PITALE &
SUBHASH SHREERAM V. SHIRSAT, JJ
PAREKAR
Digitally signed by
VISHAL SUBHASH
RESERVED ON: 10th JUNE, 2026
PAREKAR
Date: 2026.08.21 PRONOUNCED ON: 21st AUGUST, 2026
15:00:53 +0530
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JUDGMENT: (Per Shreeram Shirsat, J.)
1. The present Appeal has been filed challenging the impugned
judgment and order dated 22.11.2017 passed by the Special Judge under
the Protection of Children from Sexual Offences Act, 2012 (POCSO), Gr.
Bombay in POCSO Special Case No. 41/2015, whereby the Appellant has
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been convicted for the offence punishable under Section 6 of the POCSO
Act, 2012 and has been sentenced to undergo Imprisonment for Life and
pay a fine of Rs.1,000/-, and in default to undergo Simple Imprisonment
for 1 month. As the Trial Court imposed punishment under Section 6 of
the POCSO Act, 2012, no separate punishment was awarded under
Section 376 of the Indian Penal Code (IPC) as per Section 42 of the
POCSO Act, 2012. The Appellant was acquitted for the offences punishable
under Section 10 read with Section 9 (l), (m) of the POCSO Act, 2012.
The Appellant was also directed to pay compensation of Rs.25,000/- to the
Victim-girl as per Section 33(8) of the POCSO Act, 2012 within 1 month of
the date of the order, failing which it was directed that the Appellant shall
undergo Simple Imprisonment for 1 year.
2. Brief facts of the prosecution case are as under:
a] It is the case of the prosecution that the First Informant- Saavji
Kharva, the father of the victim "N", was residing on the footpath at T.H.
Katariya Road, Near Status Hotel, H.P. Petrol Pump, Mahim (West),
Mumbai, along with his daughter "N", aged 11 years and three other
children. He used to earn his livelihood by selling garlands.
b] It is further the case of the prosecution that the Appellant- Vijay
Ramesh Dantani, got acquainted with the First Informant and began
frequently visiting him on the footpath, where the First Informant resided
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with his family. It is also the case of the prosecution that on several
occasions, the Appellant and the used to consume liquor with the First
Informant and sleep on the footpath where the First Informant along with
his family used to reside.
c] It is further the case of the prosecution that on the night of
25.10.2014, the Appellant came to the First Informant, both consumed
liquor, had dinner and went to sleep. Thereafter, on the next morning, a
known "Bhabhi" informed the First Informant that at approximately 2:30
a.m., when she had come to collect garbage, the Appellant was found
sleeping over the victim's body. Upon receiving such information, the
father of the Victim-girl went up to the Appellant and warned him to not
do the same and asked him to go away.
d] It is further the case of the prosecution that on 30.10.2014 at about
2:00 a.m., the Appellant had again come to the footpath, in an intoxicated
condition, where the First Informant resided and remained there till
morning. In the morning, at about 11:30 a.m., the victim was found
suffering from vomiting, and upon being inquired by one Pinki Didi, the
victim disclosed that approximately four days prior, the Appellant had
untied the string of her pajama, shut her mouth, climbed upon her and
committed forcible intercourse with her, causing her pain and bleeding
and that she had been suffering since then.
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e] It is further the case of the prosecution, that while the conversation
was taking place, people gathered at the spot, a police vehicle arrived and
took them to the Police Station. Thereafter, the Station House Officer
registered Crime No. 346/2014 for the offence punishable under Section
376 of the IPC read with Sections 4, 8 and 12 of the POCSO Act, 2012.
3. The Trial Court had framed the charge under Section 6 read with
Section 5 (m), (l) of the POCSO Act, 2012, read with Section 376 of the
IPC. The prosecution had made an application for addition and alteration
of charge and had prayed that Section 10 of POCSO Act, 2012 be added in
the charge. The said application came to be allowed and Section 10 read
with 9 (l), (m) of the POCSO Act, 2012 came to be added.
4. To bring home the guilt of the Accused-Appellant, the prosecution
examined 9 witnesses (P.W. 1 to P.W. 9):
P.W. NAME ROLE
1 Saavji Kharva First Informant
(Father of the Victim-girl)
2 ‘N’ Victim-girl
3 Kisan Dharmpal Sarsar Panch Witness to seizure of the clothes of
the Appellant
4 Sunita Dharamvir Sode Panch Witness to seizure of the clothes of
the Victim-girl
5 Dr. Rajesh Dere Medical O0cer who examined the
Appellant-Accused
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6 PSI Jayshree Sawant O0cer who recorded the statement of the
Victim-girl ‘N’
7 Dr. Amtira Jain Medical O0cer who examined the Victim-
girl ‘N’
8 Dr. Rohan Thorat Medical O0cer
9 API Keshav Dinde Investigating O0cer
5. On completion of the prosecution evidence, statement of the
Appellant under Section 313 Cr.P.C. was recorded, wherein the Appellant
denied the case of the prosecution and further stated that he was falsely
implicated in this case because the father of the Victim-girl owed him
money. The Appellant was also granted an opportunity to lead any
defence evidence, if so desired. The Appellant neither chose to lead any
defence evidence, nor did he examine himself on oath.
6. After hearing the prosecution as well as the defence and upon
appreciation of the evidence on record, the Special Judge under the
POCSO Act, 2012, Gr. Bombay, was pleased to convict the Accused-
Appellant for the offence punishable under Section 6 of the POCSO Act,
2012 and sentenced him to undergo Imprisonment for Life and pay a fine
of Rs.1,000/- and in default to undergo Simple Imprisonment for 1 month.
As the Trial Court imposed punishment under Section 6 of the POCSO Act,
2012, no separate punishment was awarded under Section 376 of the IPC
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as per Section 42 of the POCSO Act, 2012. The Appellant was acquitted
for the offences punishable under Section 10 read with Section 9 (l), (m).
The Appellant was also directed to pay compensation of Rs. 25,000/- to
the victim-girl as per Section 33(8) of the POCSO Act, 2012 within 1
month of the date of the order, failing which it was directed that the
Appellant shall undergo Simple Imprisonment for 1 year.
7. Being aggrieved by the judgment and order of conviction passed by
the Special Judge under POCSO Act, 2012, Gr. Bombay in POCSO Special
Case No. 41/2015, dated 22.11.2017, the Appellant has approached this
Court by way of the present Appeal.
8. Heard the Ld. Counsel Adv. Lakshmi Raman for the Appellant and
Ld. APP Ms. Sharmila Kaushik for the Respondent-State and Ld. Counsel
Adv. Manisha Devkar for the Respondent-Victim-girl ‘N’.
9. The Learned Counsel for the Appellant submitted that the conviction
recorded by the Special Judge at Gr. Bombay is vitiated on account of
several infirmities going to the root of the prosecution case. The Ld.
Counsel for the Appellant submitted that there is an unexplained delay of
four days in the registration of the F.I.R. It was submitted that the alleged
incident took place on the night of 25.10.2014 and that the victim had
disclosed the same to P.W. 4- Sunita Sode on the very next day i.e.
26.10.2014. Despite such disclosure having been made on 26.10.2014, the
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F.I.R came to be registered only on 30.10.2014. It was submitted that the
prosecution offered no explanation whatsoever for this delay of four days
and that the same casts a doubt on the case of the prosecution. It was also
argued by the Ld. Counsel for the Appellant that there is a lack of clarity
insofar as the date of the incident is concerned. It was pointed out by the
Ld. Counsel for the Appellant that the F.I.R registered by the First
Informant stated that the incident occurred on 25.10.2014 at 2:30 a.m.,
however, the statement given by the victim on 30.10.2014, before the
Medical Officer, states that the incident took place two to three days prior.
10. The Ld. Counsel for the Appellant further submitted that the
prosecution failed to establish that the alleged incident occurred on more
than one occasion. It was accordingly submitted that the offence under
Section 5 (l) of the POCSO Act, 2012 is not made out from the evidence
on record and the conviction insofar as it relates to the said provision,
cannot be sustained. It was further argued by the Ld. Counsel for the
Appellant that, given the circumstances that the victim and her family
used to sleep next to one another on the footpath, it is unlikely and
improbable that any attempt or sign of resistance by the victim or her
screaming during the incident would go unnoticed and unheard.
11. The Ld. Counsel for the Appellant further submitted that there exist
inconsistencies in the statement of the victim recorded under Section 164
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of the Cr.P.C and her evidence as P.W. 2. It was submitted that the
deposition of the victim contains material improvements and
inconsistencies when read in contrast to her Section 164 Cr.P.C.
statement, which makes it unreliable. It was therefore submitted by the
Ld. Counsel for the Appellant, that considering the aforementioned
material infirmities and inconsistencies, the case of the prosecution against
the Appellant cannot be said to have been proved beyond reasonable
doubt.
12. In support of her contentions, the Ld. Counsel for the Appellant has
relied upon the following authorities:
I. Nirmal Premkumar and Anr. v/s State represented by
Inspector of Police1
II. Lallu Manjhi and Anr. v/s State of Jharkhand2
III. Radhe Shyam v/s State of Rajasthan3
IV. Roshan v/s State of Maharashtra, through Police Station4
V. Manirul Islam v/s State of Assam and Anr.5
13. Per Contra, the Ld. APP submitted that the conviction recorded by
the Special Judge at Gr. Bombay is well-founded and amply supported by
1 (2024) 20 SCC 293
2 (2003) 2 SCC 401
3 (2014) 5 SCC 389
4 2025 SCC OnLine Bom 3365
5 (2021) 6 GAUHATI LAW REPORTERS 55
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the evidence on record. It was submitted by the Ld. APP, that the
testimony of the Victim-girl on the material aspect that the Appellant
committed penetrative sexual assault on her is consistent and was not
shaken in cross-examination and hence, if there were any such
improvements and inconsistencies, the same are to be treated as
immaterial. The minor inconsistencies as to the peripheral details are
natural variations in the deposition of a child witness aged 11-12 years
who was recounting a traumatic incident after a long period of time and
therefore, it cannot be said to have hampered the foundation of the case of
the prosecution. On the medical and forensic evidence, it was submitted
by the Ld. APP that the absence of external injuries and the negative
Chemical Analyser Reports do not negate the commission of penetrative
sexual assault when the Victim-girl has narrated the incident with
precision. Therefore, the Ld. APP concluded her arguments by submitting
that the conviction of the Appellant, in the light of cogent and convincing
evidence, primarily the reliable sole testimony of the Victim-girl, deserves
to be upheld. Thus, the judgment and order of conviction passed by the
Special Judge under the POCSO Act, 2012 at Gr. Bombay calls for no
interference in this Appeal.
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14. The Ld. APP has relied upon Mohammed Ashraf Mohammed Wasir
Ansari v/s The State of Maharashtra6 to buttress her arguments.
15. Before adverting to the grounds raised by the Ld. Counsel for the
Appellant, we find it advantageous to refer to the settled legal principles
on the issue of the sole testimony of the prosecutrix. The Hon’ble Apex
Court in the case of Vijay @Chinee v/s State of Madhya Pradesh 7 held that
the testimony of the prosecutrix, if found to be reliable, need not be
subject to corroboration. The relevant paragraphs are quoted as below:
“13. In State of Himachal Pradesh Vs. Raghubir Singh (1993) 2
SCC 622, this Court held that there is no legal compulsion to
look for any other evidence to corroborate the evidence of the
prosecutrix before recording an order of conviction. Evidence has
to be weighed and not counted. Conviction can be recorded on
the sole testimony of the prosecutrix, if her evidence inspires
confidence and there is absence of circumstances which militate
against her veracity.
14. A similar view has been reiterated by this Court in Wahid
Khan Vs. State of Madhya Pradesh (2010) 2 SCC 9, placing
reliance on earlier judgement in Rameshwar Vs. State of
Rajasthan AIR 1952 SC 54.
15. Thus, the law that emerges on the issue is to the effect that
statement of prosecutrix, if found to be worthy of credence and
reliable, requires no corroboration. The court may convict the
accused on the sole testimony of the prosecutrix.”
16. In this background, let us analyze the deposition of P.W. 2, the
Victim-girl, in order to ascertain whether her evidence can be believed
without looking for any corroboration or whether the evidence is such that
6 2024 SCC OnLine Bom 4495
7 (2024) 20 SCC 293
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the court finds it difficult to believe the witness in absence of any
corroboration.
17. P.W. 2- the Victim-girl ‘N,’ vividly and discernibly described the
incident that occurred. She narrated the incident with clarity and
precision. She also named the Appellant and stated that he was the person
who inflicted penetrative sexual assault upon her. When she was asked as
to what happened to her, she distinctly stated that while she was sleeping,
the Appellant tied her hand and legs and when she started shouting, he
gagged her mouth and opened the string of her pajama and did the act.
Further, she was also asked as to what the Appellant had done to her to
which she has precisely described and this is reflected in her evidence as
answers to Question Nos. 15 to 25. The answers to the aforementioned
questions are not reproduced herein for the sake of judicial decorum. In
fact, while answering one of the questions put to her, the trial court
observed that the witness looked humiliated. What makes her evidence
further believable is that she also manually demonstrated, while
answering Question No. 25 as to how the Appellant tied her mouth. She
further identified the Appellant in the court room. In the cross-
examination, apart from minor discrepancies, the defence could not shake
the testimony of the Victim-girl with respect to the incident in question i.e.
penetrative sexual assault and she withstood the cross-examination.
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18. The Ld. Counsel for the Appellant pointed out that there were
several discrepancies and glaring contradictions in the statement of P.W.
2, thereby raising serious doubts on the credibility of the victim’s
testimony. It was submitted by the Ld. Counsel for the Appellant, that the
victim in her 164 Cr.P.C statement, stated that at the time of the incident,
her father was sleeping next to her, however, in her deposition before the
Special Judge, the victim changed her version and stated that at the time
of the incident, both her mother and father had gone to bring flowers.
Additionally, the presence of the mother entirely is disputed, as during the
cross-examination, when a suggestion was put to P.W. 2 that her mother is
not alive, she replied that it was true. Thus, it was submitted that such a
discrepancy as regards the presence of her own mother diminishes the
reliability of the deposition of the victim. The contention raised was that, if
the Victim-girl can give a false answer to such a basic question, she can
falsely implicate the Appellant as well. No doubt, she answered that the
mother and the father had gone to get flowers when the Appellant
committed the sexual act upon her and in the cross-examination she also
agreed to the suggestion that her mother is not alive, however it cannot be
said to be a major discrepancy which would overturn her deposition about
the actual act of penetrative sexual assault being inflicted upon her by the
Appellant. The ordeal of the Victim-girl aged 11 to 12 years and her
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mental condition recounting a traumatic incident during the cross-
examination also cannot be lost sight of and therefore, even if there are
minor contradictions whilst answering the suggestions raised during cross-
examination, the same will not discredit the testimony of the Victim-girl or
in any manner affect the case of the prosecution, unless the contradiction
is so glaring, that no person of ordinary prudence would believe it to have
occurred.
19. It has come in the evidence of P.W. 2, that she was asked in Q. 46,
whether she had stated the name Vijay Dantani before the Doctor (P.W.
7), to which she deposed that she had told the name of the Appellant to
P.W. 7. However, P.W. 7 in her deposition stated that the victim had given
the history of forceful sexual intercourse by an unknown person. It was
therefore argued that this material discrepancy is of vital importance
which goes to the root of the case. Although it can be said that there is
discrepancy, however weighing the entire evidence of P.W. 2 and P.W. 7,
we are inclined to accept the testimony of P.W. 2 as there is no reason for
P.W. 2 to not give the name of the Appellant when she otherwise
graphically described the incident. Therefore, even if the history of
penetrative assault is given by her to be of unknown person as narrated by
P.W. 7, the same will not be of much significance as P.W. 2 herself, had
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categorically named the Appellant to P.W. 4- Sunita Sode and also before
the court.
20. The Ld. Counsel for the Appellant further argued that P.W. 2 made
several contradictory statements in her deposition when compared with
her previous 164 Cr.P.C statement, as regards the details of the incident.
P.W. 2, in her 164 statement stated that the Appellant tied her mouth with
her T-shirt whereas the victim in her deposition stated that the Appellant
had tied her mouth with the help of an odhani. Further, it has come in the
deposition of P.W. 7, the medical officer, that P.W. 2 told her that a
handkerchief was tied around her mouth. As far as the argument
regarding the type of cloth used to tie the mouth of the victim is
concerned, there is no doubt that P.W. 2 has provided differing statements
at each instance but that, in our opinion, cannot be regarded as a material
discrepancy which was intentionally done by the victim to improve upon
her case. If we consider the answer to Q. 25, the victim has demonstrated
the act of the Appellant gagging her mouth so that she doesn’t shout. What
is important here is the evidence about the act of tying her mouth and
even if there is some discrepancy with respect to the medium used, in our
opinion, considering the age of the Victim-girl, it pales into insignificance.
21. Further the Victim-girl, also stated in her examination-in-chief,
while answering Q. 14, that her hands and legs were tied by the Appellant.
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It was urged that the same was a material improvement which was never
previously stated by her in her 164 statement. We are of the considered
opinion that, assuming that the deposition of tying of hands and legs is an
improvement, however, the same was a part of the victim's overall
narration of the incident, to which there is no cross-examination and
therefore the same has gone unchallenged.
22. Although there are some contradictions and discrepancies in the
statements and deposition of P.W. 2, we are of the opinion that these
circumstances by themselves, are insufficient to discredit the testimony of
P.W. 2 on the material aspect of penetrative sexual assault. Having regard
to the tender age of the victim, it would be wholly unrealistic to expect her
to accurately specify the details surrounding the incident. Minor
discrepancies or approximations surrounding the occurrence of the
incident are natural and do not strike at the root of the prosecution case.
The discrepancy, if any, is merely peripheral in nature and does not
undermine the core substratum of the case of the prosecution. The victim's
deposition cannot be discarded on account of such minor discrepancies
when the gravamen of her testimony regarding the occurrence of the
incident stands unshaken.
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23. In this regard, it would also be apposite to refer to the judgment of
the Hon’ble Supreme Court in the case of State of Himachal Pradesh v/s
Asha Ram8. The relevant paragraph is reproduced hereunder:
“5. … It is now a well-settled principle of law that conviction can
be founded on the testimony of the prosecutrix alone unless
there are compelling reasons for seeking corroboration. The
evidence of a prosecutrix is more reliable than that of an injured
witness. The testimony of the victim of sexual assault is vital,
unless there are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty in acting on the testimony of a victim of sexual assault
alone to convict an accused where her testimony inspires
confidence and is found to be reliable. It is also a well-settled
principle of law that corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a requirement
of law but a guidance of prudence under the given
circumstances. The evidence of the prosecutrix is more reliable
than that of an injured witness. Even minor contradictions or
insignificant discrepancies in the statement of the prosecutrix
should not be a ground for throwing out an otherwise reliable
prosecution case.”
24. It is the contention of the Appellant that an unexplained delay in the
filing of the F.I.R raises serious concerns over the genuineness of the said
complaint. This Court finds it appropriate to make a reference to the
judgment in the case of State of Himachal Pradesh Vs. Prem Sing9 which
states as follows:
“6. So far as the delay in lodging the FIR question is concerned,
the delay in a case of sexual assault, cannot be equated with the
case involving other offences. There are several factors which
weigh in the mind of the prosecutrix and her family members
before coming to the police station to lodge a complaint. In a
tradition bound society prevalent in India, more particularly,
rural areas, it would be quite unsafe to throw out the prosecution
8 Criminal Appeal No. 660 of 2008
9 2026 SCC OnLine Bom 983
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case merely on the ground that there is some delay in lodging the
FI R . In that score, learned counsel for the appellant is right that
the High Court has lost sight of this vital distinction.
Additionally, we find that the prosecution has clearly established
commission of offence punishable under Sections 354 and 506
IPC. So far as the offence punishable under Section 376 I PC is
concerned, the basic ingredients are set out in Section 37 5 I PC.
On a reading of the evidence of the prosecutrix, we find that a
case of rape has not been established so far as the respondent is
concerned.”
25. From the above, it can be deduced that delay in filing F.I.R for
sexual offences cannot be equated with the cases involving other offences.
Even if the delay in case of sexual assault has not been properly explained
but is found to be natural, then in such a case the same will not enure to
the benefit of the accused. The court should examine the broader
probability of a case and should not be swayed away by minor
contradictions to discard the case of the prosecution, which is otherwise
found to be reliable. It was argued by the Ld. Counsel for the Appellant
that the prosecution has not been able to establish the date of the incident.
Further analysis of the evidence of P.W. 2 and P.W. 7 shows that there is
inconsistency regarding the date of the incident. P.W. 7, the Medical
Officer, deposed that the victim had informed her that she was subjected
to sexual assault for the first time three days prior to the medical
examination, which, according to P.W. 7, would place the occurrence on
or about 27th or 28th October, 2014. Furthermore, P.W. 7 has stated in the
cross-examination that as per the history given by the victim, she was
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raped three days back. She also stated that there was congestion and the
said congestion could not have been caused due to infection but by use of
force on that part. She further stated that congestion may stay for 4-5
days. P.W. 7 clarified that fresh injury means injury within 3 days and she
also agreed that the forensic expert would be a fit person to opine about
the exact date of the injury and that she cannot state the exact date on
which the victim was sexually assaulted.
26. We find that an incorrect statement given by a minor prosecutrix
regarding the date of occurrence would not be construed as a
contradiction that would result in demolishing the case of the prosecution.
While we are cognizant of the fact that the prosecution has been unable to
establish the exact date on which the offence was committed by the
Appellant, however, we are not inclined to disbelieve the occurrence of the
incident itself, on these grounds. The lack of definite details or minor
contradictions about the incident, in the statement of a minor victim, if it
is not so glaring, does not have such far reaching consequences, that it
would negate the very thrust of the prosecution case, which otherwise can
be believed. In these circumstances, the inability of the prosecution to
prove the exact date of the occurrence with complete precision cannot be
treated as a circumstance fatal to its case, particularly when the
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substantive evidence of the victim is cogent, consistent and inspires
confidence.
27. P.W. 4 deposed that she knew the father of the victim and that he
was residing with his four children. She also deposed that she knew his
daughter ‘N’ who was 8 years old at that time. She further deposed that on
26.10.2014 when she was going to work, she met ‘N’, who was looking
scared and when she asked her what had happened, she told her that one
‘Viju’ harasses her in the night time. She further deposed that ‘N’ told her
that Viju shut her mouth and opened the string of her pajama and slept on
her body. She further identified the Appellant in the Court. Although, it
has come by way of omission that she had stated before the police that
Viju used to harass P.W. 2 in the night time, and that P.W. 2 told that Viju
shut her mouth and opened the strings of her pajama and slept on the
victim’s body, the same has not in any manner been demolished in the
cross-examination. She has admitted in the cross-examination that she has
not seen the incident. Apart from this, there was no cross-examination
which would discredit her testimony.
28. Further analysis of the evidence of P.W. 7 would show that no
external injuries were found on the victim's body and that the Chemical
Analyser Reports are entirely negative for semen and blood and that no
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inflammation, redness or soreness was found on the private part of the
victim. It was therefore contended that the lack of forensic and medical
corroboration creates a reasonable doubt regarding the commission of the
alleged offence. In the present case, P.W. 2 in her deposition, accurately
described the act of penetrative sexual assault. The evidence of P.W. 7,
corroborates the evidence of P.W. 2 in material aspects insofar as the
version of penetrative sexual assault is concerned. P.W. 7 deposed that
when she examined the genitals of P.W. 2, she found that the hymen was
torn at 3’O clock, 6’O clock and 9’O clock positions and that there was
congestion but no active bleeding. She deposed that the overall findings
were consistent with an act of sexual intercourse being inflicted upon her,
however the FSL reports were pending. She identified the reports and the
contents thereof to be correct and stated that the injury, as mentioned in
Column No. VI(g), to the hymen is possible if a person commits forcible
sexual intercourse. Even otherwise, it is a settled position of law that
ocular evidence always prevails over medical evidence.
29. It is well settled that absence of semen in forensic analysis does not
by itself dislodge the theory of penetrative sexual assault. The positive
finding of hymen tear with congestion persisting for 4 to 5 days is
independently corroborative of the victim's testimony and is consistent
with the timeline of the incident. The legal position in this regard stands
Vishal Parekar ….20
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precisely elucidated in Madan Gopal Kakkad v/s Naval Dubey 10. The
Hon’ble Apex Court, in the aforementioned case, held as under:
“37. We feel that it would be quite appropriate, in this context, to
reproduce the opinion expressed by Modi in Medical
Jurispurdence and Toxicology (Twenty First Edition) at page 369
which reads thus:
"Thus to constitute the offence of rape it is not necessary that
there should be complete penetration of penis with emission of
semen and rupture of hymen. Partial penetration of the penis
within the Labia majora or the vulva or pudenda with or without
emission of semen or even an attempt at penetration is quite
sufficent for the purpose of the law. It is therefore quite possible to
commit legally the offence of rape without producing any injury to
the genitals or leaving any seminal stains. In such a case the
medical officer should mention the negative facts in his report, but
should not give his opinion that no rape had been committed.
Rape is crime and not a medical condition. Rape is a legal term
and not a diagnosis to be made by the medical officer treating the
victim. The only statement that can be made by the medical officer
is that there is evidence of recent sexual activity. Whether the rape
has occurred or not is a legal conclusion, not a medical one."
(emphasis supplied)
38. In Parikh’s Textbook of Medical Jurisprudence and Toxicology,
the following passage is found: "Sexual intercourse.- In law, this
term is held to mean the slightest degree of penetration of the
vulva by the penis with or without emission of semen. It is
therefore quite possible to commit legally the offence of rape
without producing any injury to the genitals or leaving any
seminal stains."”
30. P.W. 5 is the Medical Officer who examined the Appellant. This
witness has categorically opined that “there was nothing to suggest that
the person examined was incapable of performing sexual intercourse at
the given time and place”. Nothing was elicited in the cross-examination of
this witness to discredit the said opinion or to cast any doubt upon the
findings recorded in the medical examination to the extent of his ability to
10 (2005) 13 SCC 766
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perform penetrative sexual act. Therefore, the medical evidence does not
indicate any physical incapacity on the part of the Appellant to commit the
act of penetrative sexual assault.
31. It has come in the evidence of P.W. 6, PSI Jayshree, that there were
CCTV cameras installed at the petrol pump and therefore it was contended
that the investigation suffers from serious lapses inasmuch as the
investigating agency failed to collect the CCTV footage from the petrol
pump situated opposite the spot of the incident and did not examine any
independent witnesses, despite the incident having occurred at a public
place. This court is of the considered opinion that the investigation could
have been more comprehensive indeed, on the aforesaid aspects. The
investigating agency ought to have made an endeavour to collect the best
available evidence and to examine all material witnesses. In this backdrop,
the question that falls for consideration is whether these lapses strike at
the root of the prosecution case. We do not find that these lapses are such
as would create any doubt about the prosecution case. It is well settled
that defects or omissions in investigation do not, by themselves, vitiate the
case of the prosecution or entitle the accused to an acquittal. The court is
required to examine whether the evidence brought on record,
notwithstanding such lapses, is sufficient to establish the guilt of the
accused beyond reasonable doubt. We find that in the present case there is
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no reason to doubt the version of P.W. 2 and therefore even if there are
any lapses in investigation, it will not cause any dent to the case of the
prosecution which otherwise inspires confidence.
32. The defence raised by the Appellant in his 313 Cr.P.C statement, is
that the victim's father owed him money and hence the present case was
registered to falsely implicate him. However, the Appellant has not
adduced any evidence to substantiate the said claim. In these
circumstances, such a defence cannot be accepted or considered by the
court, as mere suggestions or explanations, without proof, cannot displace
the case of the prosecution. In this regard, a profitable reference can be
made to the judgment of the Hon’ble Supreme Court in Munish Mubar v/s
The State of Haryana AIR 2013 Supreme Court 912. It states thus:
“25. Moreso, it was the duty of the appellant to furnish some
explanation in his statement under Section 313 Cr.P.C., as under
what circumstances his car had been parked at the Delhi Airport
and it remained there for 3 hours on the date of occurrence. More
so, the call records of his telephone make it evident that he was
present in the vicinity of the place of occurrence and under what
circumstances recovery of incriminating material had been made
on his voluntary disclosure statement. Merely making a bald
statement that he was innocent and recoveries had been planted
and the call records were false and fabricated documents, is not
enough as none of the said allegations made by the appellant
could be established.”
33. Further, in the cross-examination of P.W. 2, the defence suggested
to the victim that she did not like the Appellant as he used to drink liquor
with her father, to which the witness has answered in the negative. This
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court finds that the Victim-girl, P.W. 2, who is a child aged approximately
11-12 years, can have had no conceivable animosity towards the Appellant
so as to falsely implicate him in an offence of such grave nature and it is
also difficult to conceive that the father of the victim would stoop so low
to involve his minor child as a victim in a sexual offence just to take
revenge from the Appellant. It was held similarly by the Hon’ble Supreme
Court in the case of The State of Punjab v/s Gurmit Singh & Ors. 11 has
held as under:
“Even if it be assumed for the sake of argument that there was
some such litigation, it could hardly be a ground for a father to put
forth his daughter to make a wild allegation of rape against the son
of the opposite party, with a view to take revenge. It defies human
probabilities. No father could stoop so low as to bring forth a false
charge of rape on his unmarried minor daughter with a view to
take revenge from the father of an accused on account of pending
civil litigation. Again, if the accused could be falsely involved on
account of that enmity, it was equally possible that the accused
could have sexually assaulted the prosecutrix to take revenge from
her father, for after all, enmity is a double edged weapon, which
may be used for false implication as well as to take revenge.”
34. Further, the victim has categorically described the act of penetrative
sexual assault committed upon her by the Appellant and her testimony on
this material particular has remained unshaken in the cross-examination.
This Court, by any stretch of imagination, is unwilling to believe that the
victim would go to the extent of falsely implicating the Accused-Appellant
taking into consideration the societal implications that the victim herself is
likely to face. In the light of the aforesaid, it would be apposite to refer to
11 CRL.REF. 2/2024
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the judgment of the Hon’ble Apex Court in the case of Bharwada
Bhoginbhai Hirjibhai v/s The State of Gujarat.12 The court held that :
“10. … Without the fear of making too wide a statement, of of
overstating the case, it can be said that rarely will a girl or a
woman in India make false allegations of sexual assault on
account of any such factor as has been just enlisted. The
statement is just generally true in the context of the urban as also
rural society. It is also by and large true in the context of the
sophisticated, not-so sophisticated,and unsophisticated society.
Only very rarely can one conceivably come across an exception or
two and that too possibly from amongst the urban elites.
Because:- (1) A girl or a woman in the tradition-bound non-
permissive society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her chastity
had ever occurred. (2) She would be conscious of the danger of
being ostracised by the Society or being looked down by the
society including by her own family members, relatives, friends,
and neighbours. (3) She would have to brave the whole world.
(4) She would face the risk of losing the love and respect of her
own husband and near relatives, and of her matrimonial home
and happiness being shattered. (5) If she is unmarried, she
would apprehend that it would be difficult to secure an alliance
with a suitable match from a respectable or an acceptable family.
(6) lt would almost inevitably and almost invariably result in
mental torture and suffering to herself. (7) The fear of being
taunted by others will always haunt her. (8) She would feel
extremely embarrassed in relating the incident to others being
over powered by feeling of shame on account of the upbringing
in a tradition-bound society where by and large sex is taboo. (9)
The natural inclination would be to avoid giving publicity to the
incident lest the family name and family honour is brought into
controversy. (10) The parents of an unmarried girl as also the
husband and members of the husband’s family of a married
woman would also more often than not, want to avoid publicity
on account of the fear of social stigma on the family name and
family honour. (11) The fear of the victim herself being
considered to be promiscuous or in some way responsible for the
incident regardless of her innocence. (12) The reluctance to face
interrogation by the investigating agency, to face the court, to
face the cross-examination by Counsel for the culprit, and the
risk of being disbelieved, acts as a deterrent.”
12 AIR 2009 SC 1010
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35. Further, a suggestion was also put to P.W. 4 in order to insinuate
that there was an ongoing quarrel between the victim’s father and the
Appellant. It was put to her that due to the quarrel on the count of money
between ‘N’s father and the Appellant, ‘N’s father had lodged a false
complaint against the Appellant. However, the suggestion was denied.
This suggestion was not put to the victim who would have been a more
appropriate witness to answer this question. This court finds that neither
of the aforesaid grounds of false implication merits acceptance. This court
accordingly holds that the plea of false implication taken up by the
Appellant is not worthy of credence.
36. Further, in an attempt to dislodge the reliability and sufficiency of
the testimony of the Victim-girl, the Ld. Counsel for the Appellant has
placed heavy reliance upon the judgment of the Hon'ble Supreme Court in
the case of Nirmal Premkumar and Anr. v/s State represented by Inspector
of Police13. The relevant observations according to the Ld. Counsel, from
the said judgment are reproduced hereunder:
“20. Law is well settled that generally speaking, oral
testimony may be classified into three categories viz.:
(i) wholly reliable;
(ii) wholly unreliable;
(iii) neither wholly reliable nor wholly unreliable
The first two category of cases may not pose serious
difficulty for the Court in arriving at its conclusion(s).
However, in the third category of cases, the Court has to be
13 (1992) 3 SCC 204
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circumspect and look for corroboration of any material
particulars by reliable testimony, direct or circumstantial, as
a requirement of the rule of prudence.
21. In Ganesan v. State, this Court held that the sole
testimony of the victim, if found reliable and trustworthy,
requires no corroboration and may be sufficient to invite
conviction of the accused.
….. …...
23. In Krishan Kumar Malik v. State of Haryana, this Court
laid down that although the victim's solitary evidence in
matters related to sexual offences is generally deemed
sufficient to hold an accused guilty, the conviction cannot be
sustained if the prosecutrix's testimony is found unreliable
and insufficient due to identified flaws and lacunae. It was
held thus: (SCC p. 138, paras 31-32).
"31. No doubt, it is true that to hold an accused guilty for
commission of an offence of rape, the solitary evidence of
the prosecutrix is sufficient provided the same inspires
confidence and appears to be absolutely trustworthy,
unblemished and should be of sterling quality. But, in the
case in hand, the evidence of the prosecutrix, showing
several lacunae, which have already been projected
hereinabove, would go to show that her evidence does not
fall in that category and cannot be relied upon to hold the
appellant guilty of the said offences.
32. Indeed there are several significant variations in material
facts in her Section 164 statement, Section 161 statement
(CrPC), FIR and deposition in court. Thus, it was necessary
to get her evidence corroborated independently, which they
could have done either by examination of Ritu, her sister or
Bimla Devi, who were present in the house at the time of her
alleged abduction. The record shows that Bimla Devi though
cited as a witness was not examined and later given up by
the Public Prosecutor on the ground that she has been won
over by the appellant.”
37. The Ld. Counsel for the Appellant has also placed reliance upon the
judgment of Lallu Manjhi and Anr. v/s State of Jharkhand (citation) and
Roshan v/s State of Maharashtra, through Police Station , in support of the
same contention, to contend that the testimony of the victim-girl is
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unreliable and does not inspire confidence so as to form the sole basis for
conviction.
38. There can be no doubt about the proposition of law laid down by
the Hon’ble Supreme Court in the aforementioned case laws, however,
upon a careful perusal of the same, we are of the view that they do not
advance the case of the Appellant. The aforementioned judgments lay
down the settled principles governing the appreciation of oral evidence
and testimony of a solitary witness and the circumstances in which such
testimony may form the sole basis of conviction. Applying the said
principles to the facts of the present case, this Court is of the considered
view that P.W. 2 has consistently and in unambiguous terms deposed
about the act of penetrative sexual assault committed upon her by the
Appellant, describing the act of penetration resulting in pain and bleeding.
In the present case, there is direct evidence of the victim herself as regards
the acts of the appellant. Further, her testimony on the gravamen of the
act of penetrative sexual assault by the Appellant was wholly unshaken in
her cross-examination. The minor variations urged by the Appellant relate
only to the peripheral details, which the law consistently recognises as
natural in the deposition of a traumatised child witness. The testimony of
P.W. 2 accordingly falls squarely within the first category identified in the
aforementioned authorities i.e. that of a ‘ wholly reliable testimony’.
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Therefore, both judgments relied upon by the Ld. Counsel for the
Appellant do not support the case of the Appellant.
39. At this stage it will be apposite to refer to the judgment passed by
this Court in the case of Ramesh Dada Kalel v The State of Maharashtra
and another14 wherein it is observed as under:
“35. There is substance in the contention raised by the learned
APP, by relying upon the judgments of the Supreme Court in the
cases of State of Punjab vs. Gurmit Singh and others (supra),
Ranjit Hazarika vs. State of Assam (supra), State of Himachal
Pradesh vs. Asha Ram (supra) and Deepak Kumar Sahu vs. State of
Chhattisgarh (supra). In the aforesaid judgments, the Supreme
Court has questioned as to why the evidence of a girl, who
complains about the offence of rape, is to be viewed with doubt,
disbelief or suspicion. It is laid down that once the judicial
conscience of the Court is satisfied that the evidence of the
prosecutrix inspires confidence, further corroboration is not
necessary. It is emphasized that the evidence of a victim of sexual
assault, is entitled to great weight, absence of corroboration
notwithstanding.
“36. The Supreme Court has held in the said judgments that if, for
some reason, the Court finds it difficult to place implicit reliance
on the testimony of the prosecutrix, it may look for evidence that
would lend assurance to her testimony, short of corroboration
required in the case of an accomplice. The Supreme Court has
indicated that in cases where victims are minor, appropriate
sensitivity is to be observed and the evidence of such a minor
victim of sexual offence, needs to be taken into account without
showing undue suspicion or hyper technicality.”
40. This Court now proceeds to consider the submission advanced by
the Ld. Counsel for the Appellant placing reliance upon Radhe Shyam v.
State of Rajasthan15 to the effect that the testimony of a child victim, while
being primary in nature, must be found credible and trustworthy before it
can be acted upon and that such testimony, irrespective, may necessitate
14 (2021) 6 GLR 55
15 (2014) 5 SCC 389
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independent corroboration. The Ld. Counsel invited the attention of the
court to the following observations:
“12. In Panchhi2 , after reiterating the same principles, this Court
observed that the evidence of a child witness must be evaluated
more carefully and with greater circumspection because a child
is susceptible to be swayed by what others tell him and, thus, a
child witness is an easy prey to tutoring. This Court further
observes that the courts have held that the evidence of a child
witness must find adequate corroboration before it is relied
upon. But, it is more a rule of practical wisdom than of law. It is
not necessary to refer to other judgments cited by the learned
counsel because they reiterate the same principles. The
conclusion which can be deduced from the relevant
pronouncements of this Court is that the evidence of a child
witness must be subjected to close scrutiny to rule out the
possibility of tutoring. It can be relied upon if the court finds
that the child witness has sufficient intelligence and
understanding of the obligation of an oath. As a matter of
caution, the court must find adequate corroboration to the child
witness’ evidence. If found reliable and truthful and
corroborated by other evidence on record, it can be accepted
without hesitation. We will scrutinize PW 2 Banwari’s evidence
in light of the above principles.”
41. A similar principle has also been laid down in Manirul Islam v/s
State of Assam16.
42. While there is no doubt about these established principles of law,
the same do not assist the case of the Appellant. In the present case, this
court finds the testimony of P.W. 2, the Victim-child, to be wholly reliable,
consistent and free from any indication of tutoring or material
contradiction. Her sole testimony is therefore sufficient to sustain the
conviction. In any event, even assuming corroboration to be necessary, the
requirement also stands fully satisfied if we peruse the evidence of PW 7.
16 1996 SCC 2 (384)
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The testimony of P.W. 2 is independently corroborated by the medical
evidence of P.W. 7, who found a torn hymen with congestion and opined
that the injuries were consistent with forcible sexual intercourse. The
medical findings thus lend material corroboration to the version of the
victim regarding penetrative sexual assault. Even PW 4 has deposed what
PW 2 had narrated to her about the incident. The narration of PW 2 to
PW4, may not be verbatim, but evidence of PW 4 certainly lends
corroboration to the testimony of PW 2 to establish the presence of the
Appellant and as the perpetrator of the act.
43. In a catena of judgments of the Hon’ble Supreme Court it has been
held that the testimony of the victim of sexual assault is independently
sufficient unless there are compelling reasons which necessitate looking
for corroboration of her statement. A profitable reference can be made to
the judgment of the Apex Court in the case of State of Punjab v/s Gurmit
Singh (supra) wherein it is held that:
“The testimony of the victim in such case is vital and unless
there are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony inspires
confidence and is found to be reliable.
The courts should examine the broader probabilities of a case
and not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which are not
of a fatal nature, to throw out an otherwise reliable prosecution
case. If evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. If for some reason the court finds it difficult
Vishal Parekar ….31
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to place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short of
corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the trial court must be alive to
its responsibility and be sensitive while dealing with cases
involving sexual molestations.”
44. Thus, it is made clear that the courts should find no difficulty in
acting on the testimony of the victim of the sexual assault alone to convict
the accused where the testimony inspires confidence and is found to be
reliable and even if there are minor contradictions or insignificant
discrepancies, the same should not be a ground for throwing out an
otherwise reliable prosecution case. Thus, seeking corroboration of the
victim’s statement before relying upon the same, as a rule, in such cases
amounts to adding insult to injury and that corroboration as a condition
for judicial reliance on the testimony of the victim is not a requirement of
law but a guidance of prudence.
45. Taking into consideration, the overall conspectus of the matter, we
are of the opinion that the testimony of the Victim-girl inspires confidence
and that there is nothing to disbelieve her. It is very unlikely that a young
girl of 11-12 years would have a grudge against the Appellant-Accused
and would concoct a false story of such nature. The evidence recorded
clearly shows that she has narrated the incident in a very transparent and
natural manner and without any tutoring. We, therefore, find that the
prosecution has proved its case beyond reasonable doubt and therefore as
Vishal Parekar ….32
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far as offence under Section 376 IPC is concerned, the same stands
proved.
46. It was argued by the Ld. Counsel for the Appellant that the offence
under Section 5 (l) of the POCSO Act, 2012 is not conclusively established
by the prosecution. Section 5 (l) of the POCSO Act, 2012 reads as:
(l) whoever commits penetrative sexual assault on the child more
than once or repeatedly.
47. It was contended that the prosecution has not been able to establish
that the penetrative sexual assault happened on more than one occasion.
The analysis of the evidence of P.W. 7, the Medical Officer, shows that the
victim had informed her that she was subjected to sexual assault for the
first time three days prior and for the second time two days prior to the
medical examination. Furthermore, P.W. 7 has stated in the cross-
examination that as per the history given by the victim, she was raped
three days back. However the same does not find corroboration in the
testimony of P.W. 2. Victim-girl, in her cross-examination, deposed that:
“Q. 47 I put it to you that accused Vijay had not done such act with you,
what you have to say?
Ans. He had done the act once with me.”
48. The above answer by the victim, herself clarifies that she was
subjected to penetrative sexual assault at the hands of the accused only
once and that there is nothing else in her deposition to point out that the
Vishal Parekar ….33
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penetrative sexual assault took place more than once. Additionally, there
is no other evidence brought on record by the prosecution to establish the
frequency of the penetrative sexual assault as alleged. Thus, in the light of
discrepancy in the evidence regarding the occurrence of the penetrative
sexual assault more than once, we hold that the ingredients of Section 5
(l) of the POCSO Act are not satisfied.
49. P.W. 8, the Medical Officer, has deposed that the age of the victim is
11 to 12 years which is an estimated age and not conclusive in nature.
Hence, the prosecution has failed to establish beyond reasonable doubt
that the victim was below twelve years of age so as to attract Section 6
r/w Section 5 (m) of the POCSO Act. The prosecution has relied upon the
deposition of P.W. 8, who submitted that he is neither a radiologist nor a
dentist and therefore, he could not conclusively establish that the age of
the victim to be 11-12 years. While this Court takes into consideration the
aforesaid submission, it is also pertinent to note that, P.W. 8 deposed that
the age of the victim was assessed as being between 11-12 years on the
basis of the ossification test conducted. It would be apposite to refer to the
judgment of the High Court of Delhi in Court on its own motion v/s State
of NCT of Delhi17, wherein the Court has comprehensively dealt with the
17 (1983) 3 SCC 217
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application of the margin of error in determining age on the basis of an
ossification test. The Court held that:
“40. Thus, the Hon’ble Supreme Court in Rajak Mohammad
(supra), held that the age established by a radiological
examination might not be precise and, therefore, sufficient
margin of error must be allowed. It also considered the upper
estimated age observing that the accused must get the benefit of
doubt.
……..
42. In Ram Suresh Singh v. Prabhat Singh 9, Jyoti Prakash Rai v.
State of Bihar10, it has been observed by Hon’ble Supreme Court
that the age determined by ossification test is not a precise one
and, therefore, two-year margin of error/ flexibility needs to be
applied on either side. Of course, these judgments were in
context of juvenile in conflict with law but the principle of
applying ‘margin of error’ shall be no different while considering
a case of child-victim.
43. In Karan v. State of Madhya Pradesh, it has been observed
by Full Bench of Supreme Court that ossification test gives only
a broad assessment of the age and it cannot give an exact age. It
also observed that there is also element of margin of plus or
minus one to two years.”
50. In view of the aforesaid, it is evident that an ossification test
furnishes only an approximate age and cannot be regarded as a conclusive
proof thereof. In the facts of the present case, the prosecution has not
adduced any cogent evidence to establish, beyond reasonable doubt, that
the victim was below twelve years of age. In such circumstances, the
benefit of doubt regarding the age of the victim must enure to the
Appellant and consequently, the conviction, particularly under Section 5
(m) of the POCSO Act, 2012 cannot be sustained.
51. On the aspect of sentencing, a reference could be made to the
judgment in the case of Kalamuddin Mohammad Isteyar Ansari alias Koail
Vishal Parekar ….35
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v/s State of Maharashtra and Anr18 wherein whilst confirming the
conviction of the accused under Section 376 of IPC and Section 6 of the
POSCO Act, 2012, the Court had reduced the sentence after taking into
consideration various factors such as no criminal antecedent, conduct of
the accused etc. and the Court had imposed sentence of 12 years which
was more than the minimum sentence of 10 years by observing that it
would meet the ends of justice.
52. After perusing the evidence on record and carefully considering the
submissions advanced by both the parties, we affirm the judgment of the
Trial Court, which holds that the accused has committed the offence under
Section 376 of the IPC. However, for the reasons recorded hereinabove,
the conviction under Section 5 r/w Section 6 of the POCSO Act, 2012
cannot be sustained, as the prosecution has failed to establish the
ingredients of section 5(l) and 5(m), so as to attract Section 5 of the Act.
Accordingly, the conviction and sentence under Section 5 r/w Section 6 of
the POCSO Act, 2012 is modified to a conviction and sentence under
Section 3 r/w Section 4 of the POCSO Act, 2012.
53. We however note that the Appellant has suffered incarceration for
almost 12 years and has no antecedents. We therefore deemed it fit to call
18 2026 SCC OnLine Bom 220
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for a report from the Jail authority with regards to his behaviour and other
considerations including remissions.
54. We have perused the report. From the report, we find that the
behavior of the appellant in the jail was satisfactory. There is no untoward
incident reported. The Appellant has undergone the sentence of 11 years 9
months since the date of his arrest, that is, from 30th October 2014,
without availing any parole or furlough. It is also mentioned in the report
from the jail authority that the Appellant is entitled for remission.
55. Taking into consideration all these aspects, we are of the opinion
that the sentence can be reduced. However, taking into consideration the
gravity of the offense, we are imposing more than the minimum sentence
of 7 years. We find that imprisonment for a period of 12 years would meet
the ends of justice. The Appellant has already undergone 11 years 9
months since the date of his arrest, that is, from 30th October 2014.
Hence, the following order.
ORDER
(i) The Appeal is partly allowed.
(ii) The conviction of the Appellant under Section 376 of the IPC
passed by the Special Judge under POCSO Act, 2012 in POCSO
Special Case No. 41 of 2015 is maintained. The conviction and
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sentence under Section 5 r/w Section 6 of the POCSO Act, 2012 is
modified to a conviction and sentence under Section 3 r/w Section
4 of the POCSO Act, 2012. However, the sentence of life
imprisonment is set aside. Instead, the Appellant is sentenced to
suffer Rigorous Imprisonment for 12 years and to pay a fine of Rs.
1,000/- for commission of offence punishable under Section 4 of
the POCSO Act, 2012. In default of payment of fine, he shall
undergo simple imprisonment of one month. No separate sentence
is imposed for the offence punishable under Section 376 of the IPC,
in view of Section 42 of the POCSO Act, 2012.
(iii) The direction of the Special Court awarding the compensation
of Rs. 25,000/- under section 33(8) of the POCSO Act is
maintained.
(iv) Since the appeal is disposed of, all pending applications stand
disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
Vishal Parekar ….38
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