Bombay High Court
Kishor Shankar Palve vs The State Of Maharashtra on 24 March, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.100 OF 2016
Kishor Shankar Palve,
Age 20 yrs., Occ. Labour work,
R/o Mehkari, Tq. Nagar,
Dist. Ahmednagar.
... Appellant
... Versus ...
The State of Maharashtra
Through the Police Inspector
Nagar Taluka Police Station,
Tq. Nagar, Dist. Ahmednagar.
... Respondent
...
Mr. Z.H. Farooqui, Advocate h/f Mr. N.V. Gaware, Advocate for appellant
Mrs. V.S. Choudhari, APP for respondent
...
CORAM : SMT. VIBHA KANKANWADI
Y.G. KHOBRAGADE, JJ.
DATE : 24th MARCH, 2023
JUDGMENT :(PER : SMT. VIBHA KANKANWADI, J.) 1 Appellant is the original accused who faced with trial in Sessions ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 2 Cri.Appeal_100_2016_Jd Case No.167/2014 before Judge, Special Court and Additional Sessions Judge, Ahmednagar. He has been convicted for committing an offence under Section 3 punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "the POCSO Act"). He has also been convicted for the offence punishable under Section 376 of the Indian Penal Code, 1860, however, no separate punishment has been awarded. He has been also held guilty of committing an offence punishable under Section 366A of the Indian Penal Code and no separate sentence has been awarded for the offence punishable under Section 363 of the Indian Penal Code, though held guilty.
2 The prosecution story, in short, was - PW 2 is the father of the victim, who lodged report with Ahmednagar Taluka Police Station on 16.03.2014. On that day the victim was aged 16 years 06 months and she was taking education in 10th standard. On 05.03.2014 the examinations of the 10th standard of the victim were going on and for attending the examination victim left house by wearing school uniform around 9.45 a.m. Informant was at home. He received phone call from the Peon of the school, where the victim was taking education, around 11.00 a.m. and asked him as to why the victim has not come to the school for examination. Informant told that she left the house at 9.45 a.m. by saying that she would be attending the ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 3 Cri.Appeal_100_2016_Jd school for examination. The Peon confirmed that the girl has not come to the school. Therefore, informant and his wife went to her school. They saw the bicycle of the victim near the school. They took search around the school, however, they could not find her. They made inquiry with her friends as well as relatives in the village about the victim. When the girl could not have found, he lodged missing report. Thereafter, when he as well as his relatives were taking search of the girl, they found that since the same date the accused was also missing from his house. The father made further inquiry and came to know that accused used to talk to the victim, whenever she used to attend the school and, therefore, the father got confirmed that the accused has taken the victim under the pretext of marrying and, therefore, he lodged the First Information Report. At that time the First Information Report came to be lodged for the offence punishable under Section 363, 366A of the Indian Penal Code.
3 It is the further prosecution story that the girl as well as accused reported to Ahmednagar Taluka Police Station at about 11.00 p.m. on 24.03.2014. Thereafter, the victim narrated the father that the accused by giving promise to marriage had enticed her away on motorcycle. He had taken her to various places. He had taken her to a lodge near Ellora, Tq. Khultabad and in the room of the said lodge he had sexual intercourse with ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 4 Cri.Appeal_100_2016_Jd her against her wish. Thereafter, they had taken a room on rent at Waluj and stayed there between 06.03.2014 to 24.03.2014. After the statement of the victim was recorded, offence under Section 376 of the Indian Penal Code and under Section 4 of the POCSO Act came to be added.
4 During the course of the investigation panchnama of the spot was conducted. Separate panchnama of the seizure of the articles i.e. clothes was conducted. Statements of witnesses were recorded. Necessary documents from the lodge were collected. The girl was got medically examined and the samples were collected. Accused was also arrested and got medically examined, his samples have also been collected. After the conclusion of investigation charge sheet was filed before the learned Special Judge under the POCSO Act.
5 Charge came to be framed and thereafter trial has been held. Prosecution has examined in all 16 witnesses to bring home the guilt of the accused. After considering the evidence on record and hearing both sides the learned Special Judge has held the accused guilty of committing offence under Section 3 punishable under Section 4 of the POCSO Act. He was sentenced to undergo imprisonment for life and pay fine of Rs.5,000/- (Rupees Five Thousand only), in default to undergo simple imprisonment for ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 5 Cri.Appeal_100_2016_Jd six months. As aforesaid, he has been held guilty of committing offence punishable under Section 376 of the Indian Penal Code but no separate sentence has been awarded, in view of the sentence under Section 4 of the POCSO Act. Further, the accused was held guilty of the offence punishable under Section 366-A of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for six months. No separate sentence was awarded under Section 363 of the Indian Penal Code as Section 366A is aggravated form of Section 363 of the Indian Penal Code. The said Judgment and order is challenged by the original accused in this appeal. 6 Heard learned Advocate Mr. Z.H. Farooqui holding for learned Advocate Mr. N.V. Gaware for the appellant and learned APP Mrs. V.S. Choudhari for the respondent. With the able assistance of learned Advocates of both sides we have gone through the entire record, which was before the learned Trial Judge.
7 It has been vehemently submitted on behalf of the appellant that PW 3 Bapu Palve, panch to the spot panchnama, PW 4 Balu Deokar, panch to the seizure panchnama of motorcycle, clothes of the girl, PW 5 Kundlik Deokar, panch to the seizure panchnama of motorcycle, clothes of the girl, ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 6 Cri.Appeal_100_2016_Jd PW 6 Ramesh Kakde, panch to the spot panchnama i.e. room, which was taken on rent, have turned hostile to substantial extent and nothing favourable has been extracted by the prosecution from the questions which were put in the nature of cross to all these witnesses. PW 1 is the victim. She has stated that her age on the date of deposition was 16 years, however, she has stated that accused was staying at some distance from her house. He used to talk to her while going and coming from the school. She has tried to impress by saying that accused told her around 5.00 p.m. on 04.03.2014 that they would marry by running away. He had asked her to bring clothes on the next day morning and he had given threats to kill if she does not follow him. She says that around 10.00 a.m. of 05.03.2014 she went in school uniform and the stationery on her bicycle to the school. There was examination of Hindi on that day, which was the SSC Board examination. But when she reached school, the accused was already present with his motorcycle. By talking to her in sweet language asked her to accompany him to perform marriage with him. She has also stated that when she refused to sit on the motorcycle, accused gave threats and then she sat on his motorcycle. Accused had taken her to Aurangabad. She has stated that they both roamed around from 3.00 p.m. to 6.00 p.m. and then went to the lodge where they had taken the dinner and went into the room, where the accused performed sexual intercourse with her against her wish. All these facts would show that ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 7 Cri.Appeal_100_2016_Jd though she is trying to pretend that there was no love affair between herself and accused, these events would not have taken place. Further, in the cross- examination it has come on record that they had gone to Ellora and had roamed around by seeing the caves. It is a public place and, therefore, she had every opportunity to raise hue and cry. She has not tried to escape from that place. That means, she was a consenting party.
8 PW 1 victim has further stated that they had left Ellora/said lodge at about 9.00 a.m. on 06.03.2014 on the motorcycle of the accused. They went to Waluj, Dist. Aurangabad. At that place accused had taken a room on rent and kept her there from 06.03.2014 to 24.03.2014. It is then stated that during that period also the accused has committed sexual intercourse with her frequently. She then states that accused took her to Nagar Taluka Police Station around 6.00 p.m. on 24.03.2014 as the amount with him had finished. Her parents were present in the Police Station and she disclosed entire incident to her parents. She was referred by the Police for medical examination and then she had produced her clothes before the police. This portion of her examination-in-chief also would show that she is not saying that from 06.03.2014 to 24.03.2014 the accused had confined her in the said rented room. There was no hurdle for her to run from that place or disclose the fact to the neighbouring persons. She has not done any such ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 8 Cri.Appeal_100_2016_Jd acts. The girl had sufficient understanding and, therefore, accused cannot be alone held responsible. Her cross-examination would also show that she was the consenting party. Possibility of rupture of hymen due to the riding of bicycle cannot be ruled out. The learned Special Judge, therefore, ought to have acquitted the accused.
9 It has been further submitted that PW 2 - the father of the victim has deposed as per the narration of girl to him and, therefore, his testimony can be restricted to only fact that he had lodged the missing report and after the arrival of the girl he has given the supplementary statement. The supplementary statement and the statement of victim under Section 161 of the Code of Criminal Procedure appears to be the concocted version as they were interested in hiding the actual fact. There was love affair between the accused and the girl and, therefore, it appears that they had left together. 10 Learned Advocate for the appellant has relied on the Three Judge Bench decision in Anversinh alias Kiransinh Fatesinh Zala vs. State of Gujrat reported in (2021) 3 Supreme Court Cases 12, wherein it has been held -
"A perusal of Section 361 of IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 9 Cri.Appeal_100_2016_Jd of a lawful guardian. Such 'enticement' need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home."
He further relied on the decision in Sadashiv Ramrao Hadbe vs. State of Maharashtra and another reported in (2006) 10 Supreme Court Cases 92, wherein it has been held -
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. The Courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."
Here, the conviction has been awarded under Section 366A of the Indian Penal Code, which provides for the offence for procuration of minor girl. In order to prove offence under this Section it has to be proved by the prosecution that the accused had induced the victim to go from any place ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 10 Cri.Appeal_100_2016_Jd or to do any act with intent that such girl may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person (stress supplied). It is not the prosecution case here that the accused had in any way forced the girl to have sexual intercourse with any other person. Therefore, the prosecution had not proved the offence under Section 366A of the Indian Penal Code. The conviction, therefore, deserves to be set aside. 11 Per contra, the learned APP supported the reasons given by the learned Trial Judge. It is submitted that the girl in her examination-in-chief has given her birth date as 29.11.1998 and, therefore, as on the date of incident i.e. 05.03.2014 she was 15 years and three months old. There is no cross-examination on this point. Further, PW 2 - the father has also stated in his examination-in-chief that the victim was 16 years old on the date of his deposition and same birth date has been stated by him in examination-in- chief. He had admitted in his cross-examination that he had not given the birth date in his First Information Report Exh.21. But then in the cross- examination itself it was asked to him that he had given the age of the girl as 16 years 06 months in First Information Report Exh.21, to which he has answered in the affirmative. The Investigating Officer appears to have not collected the birth certificate, which is a public document, from Ahmednagar Municipal Corporation but the prosecution by application Exh.54 produced ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 11 Cri.Appeal_100_2016_Jd those documents on 07.10.2015. PW 12 Shaikh Iqbal is the Senior Clerk working in Ahmednagar Municipal Corporation. He was working as a Clerk in Birth and Death Registration Department. He had brought the original Birth register of the year 1998. The entry in respect of birth of the girl was taken on 01.12.1998. It is also mentioned in the register that the girl was born in the Civil Hospital, Ahmednagar. Accordingly, he has produced the photo copy of the relevant extract as well as Birth certificate at Exh.56. Those are the public documents and nothing contrary has been extracted in his cross-examination. Therefore, the victim was "child" as defined under Section 2(1)(d) of the POCSO Act. Even if for the sake of argument it is accepted that the girl had gone along with the accused, she was minor at that time and her consent for anything was no consent at all. The accused was major and, therefore, prosecution proved the offence beyond reasonable doubt. He prayed for the dismissal of the appeal.
12 Here, the prosecution case is very much clear. The victim is minor, she was kidnapped by the accused and the accused had sexual intercourse with her. As regards the other witnesses are concerned, the testimony of PW 8 Yogesh Dongare - the lodge owner, PW 9 Dattu Argade, who is owning hotel at Waluj is sufficient to show that accused had taken the girl at the said two places. The entry in the register Exh.42 shows the name ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 12 Cri.Appeal_100_2016_Jd of the accused and that he was along with the person, whose name has also been stated in the bracket and it is the first name of the victim in this case, to which the name of the accused is added, in order to show that she is the wife of the accused. In the cross-examination of this witness suggestions have been given that the victim girl did not make any complaint to them. They had also not suspected with the behaviour of the girl that she would have been kidnapped. It was told that the girl was comfortable, thereby there was an attempt on behalf of the accused that the victim had come with the consent and stayed with accused voluntarily. However, the prosecution story mainly revolves around the testimony of PW 1 - victim and PW 12 Shaikh Iqbal - the employee from Ahmednagar Municipal Corporation, who has produced the birth register of the relevant year and the birth certificate. As aforesaid, while referring the submissions on behalf of the prosecution that the victim, her father have given the birth date of the victim and it has not been challenged in their cross-examination. PW 12 Shaikh Iqbal has produced the original register which supported the contents of the birth certificate Exh.56. Therefore, there was conclusive evidence regarding the minority of the girl on the date of incident. She was around 15 years and 3 months of age at the relevant time. By keeping this point further evidence is now discussed.
::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::
13 Cri.Appeal_100_2016_Jd 13 It appears from the testimony of PW 1 - victim that she had developed acquaintance with accused when she used to go to school. She has not stated that there was love affair between them, but that could be so inferred. She then says that accused had met her on 04.03.2014 and told that they would marry by running away. Nobody can believe on a day's representation that they would perform marriage. This appears to be the outcome of the love affair between them, but, now, she might be hesitant in saying that she used to love and, therefore, went along with the accused. She has stated that the accused had given threats to kill her, but her cross- examination would show that she had the opportunities to run away but she did not. She accompanied the accused to see Ellora caves and then went to Waluj, where they had resided in a rented room for a considerable period. Her examination-in-chief is silent on the point that she was confined and restrained by the accused all throughout the said period. Even in the examination-in-chief it has come that they returned home as the amount with accused got exhausted. Therefore, no element of force on the part of the accused to take her away, but certainly he has not come with a case that the girl had given impression to him that she is minor and he believed it to be so. In other words, it can be said that accused had the knowledge that victim was minor and still he had taken the step to take her away from the lawful guardianship of her parents.
::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::
14 Cri.Appeal_100_2016_Jd 14 As regards the offence under Section 366A of the Indian Penal Code is concerned, in which the learned Trial Judge has convicted the accused, the prosecution was required to prove that the minor girl was forced to go from one place to another or to do any act with intent that such girl may be or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person would be liable to be punished. Neither the case of the prosecution is that at any point of time accused had attempted to force her to the prostitution or illicit intercourse with another person nor the examination-in-chief of the victim is indicating the same. Therefore, the conviction for the offence under Section 366A of the Indian Penal Code is not sustainable. But at this stage itself, we want to make it clear that though the learned Trial Judge has held the accused guilty of committing offence under Section 366A of the Indian Penal Code, has not awarded separate punishment stating that Section 366A is the aggravated form of Section 363 of the Indian Penal Code. In order to prove the offence punishable under Section 363 of the Indian Penal Code we will have to consider Section 361 of the Indian Penal Code. It has been explained in the Three Judge Bench decision in Anversinh Zala (supra), which has been quoted above. It has been further held in the said case that -
"A bare perusal of the relevant legal provisions, show that consent of ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::
15 Cri.Appeal_100_2016_Jd the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 IPC, particularly, goes beyond such simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping."
Therefore, though there is evidence in this case also to show that the girl was comfortable with the accused and had roamed around, it does not take away the act of the accused beyond the purview of Section 361 of the Indian Penal Code. In this case the victim has also deposed that on the earlier day around 5.00 p.m. the accused had met her and told her that they would marry by running away and asked her to bring clothes on the next day morning while coming to school. That means, it was the active role which he has played in impressing upon the girl to leave the legal guardianship. This act of the accused would definitely proves the offence. 15 The testimony of the victim further shows that in the lodge near Ellora as well as at the rented premises at Waluj the accused had sexual intercourse with her. The accused cannot take a defence that since she had come along with him voluntarily, she had even given consent for the sexual ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 16 Cri.Appeal_100_2016_Jd intercourse. It has been proved that she is minor and, therefore, her consent is no consent at all. We would like to rely on the decision by Hon'ble Supreme Court having similar facts in Satish Kumar Jayanti Lal Dabgar vs. State of Gujrat reported in (2015) 7 Supreme Court Cases 359. The victim and the accused were from the same community and had eloped together. The record established that there was physical relationship between them at different places and at different times. In fact, in that case there was also a marriage between them which was duly registered in the office of Marriage Registrar and the primary defence of the accused was that of the majority of the prosecutrix, her willing physical relationship as well as matrimonial alliance out of her free will, desire and consent. However, there was also evidence regarding her birth certificate and in order to prove the same employee from Municipal Corporation had testified. It was held that the girl was minor and she was less than 15 years of age. When all these facts were established, Hon'ble Supreme Court observed that -
"It must be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::
17 Cri.Appeal_100_2016_Jd reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as a mitigating circumstance."
It is further observed in view of the fact that the accused had married the girl, it cannot be taken as mitigating circumstance or even the consent of the minor cannot be taken as mitigating circumstance as it would lead to disastrous consequences. It was observed that this view gets strengthened when keeping in mind the letter and spirit behind the Protection of Children from Sexual Offences Act, 2012. The decision in Satish Kumar (supra) has been affirmed in Anversinh Zala (supra). The ratio in Sadashiv Hadbe (supra) is not applicable to the facts of the case, as the prosecutrix therein was major and it was observed that she was capable of understanding the consequences of her acts. The provisions of POCSO Act ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 18 Cri.Appeal_100_2016_Jd are more stringent when prosecution had proved the age and the fact that there was sexual intercourse by the accused with the victim, then presumption under Section 30 of the POCSO Act got invoked which allows the Courts to presume that there was culpable mental stress on the part of the accused. The accused has not produced any evidence on record in rebuttal of the said presumption. It has now been tried to be contended on behalf of the accused that the medical evidence is not supporting the testimony of the victim. PW 13 Dr. Kirti is the Medical Officer, who had examined the victim. She has specifically stated that per vaginal findings itself suggestive of that the victim had undergone the sexual intercourse. In the cross-examination she admitted that she had not expressly mentioned that there was sexual intercourse or rape committed on the prosecutrix. She volunteers that her findings itself are suggestive of the sexual intercourse. Therefore, there is no substance in the submission that the medical evidence is not supporting the ocular evidence. It will not be out of place to mention here that the girl had eloped on 05.03.2014 and was examined by the Doctor on 25.03.2014. Accused cannot blow hot and cold at the same time. He cannot say in one breath that there was consent of the victim and in another breath he cannot expect injuries on the person of the victim as signs of sexual violence. In respect of this point also we would like to rely on State of U.P. vs. Pappu alias Yunus and another reported in AIR 2005 SC 1248, wherein it ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 19 Cri.Appeal_100_2016_Jd has been observed that "absence of injury on the prosecutrix may not be a factor that leads the Court to absolve the accused". Except denial in the cross of victim there is nothing in respect of her specific statement that the accused had sexual intercourse with her at those two places. We are, therefore, of the view that the prosecution has proved that the accused has committed offence under Section 3 punishable under Section 4 of the POCSO Act. There is no question of showing any kind of leniency on the basis of the age of the accused. He was 19 years of age at that time. He was not of the legal marriageable age on that day. We would again rely on Satish Kumar (supra), wherein Hon'ble Supreme Court went on to consider the issue of sentence only. In paragraph Nos.14 and 15 following are the observations :
"14) First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows :
"375. Rape - A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::
20 Cri.Appeal_100_2016_Jd sexual intercourse necessary to the offence of rape."
15) The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.
16 It is further observed that the purpose and justification behind sentencing is not only retribution, incapacitation, rehabilitation but deterrence as well. Hon'ble Supreme Court reminded the Courts in this case that it is the duty of the Courts to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. It was emphasized that the ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 21 Cri.Appeal_100_2016_Jd punishment should be proportionate. The maximum sentence that could be awarded under Section 4 under the POCSO Act was imprisonment for life. The life of a girl has ruined and there are no mitigating circumstances in the present case. However, as aforesaid, offence under Section 366A of the Indian Penal Code was not made out, but Section 363 of the Indian Penal Code has been proved. We would like to correct the sentence that has been imposed by the learned Trial Judge. To that extent the appeal needs to be partly allowed. Hence, following order.
ORDER 1 The appeal stands partly allowed.
2 The findings of the learned Special Judge, under the POCSO Act and Additional Sessions Judge, Ahmednagar in Sessions Case No.167/2014 dated 30.12.2015 holding that the appellant/accused viz. Kishor Shankar Palve has committed offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 376 of Indian Penal Code, stands confirmed. However, the sentence awarded i.e. to undergo imprisonment for life stands set aside and substituted to the rigorous imprisonment for eight years.
::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::
22 Cri.Appeal_100_2016_Jd 3 We clarify that the imprisonment for the offence under Section 4 of the POCSO Act in respect of payment of fine and in default sentence, is confirmed. We also make it clear that in view of Section 42 of the POCSO Act, no separate sentence is awarded in respect of offence punishable under Section 376 of Indian Penal Code.
4 The appellant Kishor Shankar Palve stands acquitted of the offence punishable under Section 366A of the Indian Penal Code, however, the findings of holding him guilty of offence under Section 363 of Indian Penal Code by the learned Trial Judge, stands confirmed. In view of the fact that the learned Trial Court considered the punishment awarded under Section 366A of Indian Penal Code to be the aggravated form of Section 363 of Indian Penal Code and now the appellant/accused being acquitted of the offence punishable under Section 366A of Indian Penal Code, he stands convicted for the offence punishable under Section 363 of Indian Penal Code and is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for six months. 5 Both the sentences to run concurrently.
6 As it is observed that the accused is in jail from the date of his arrest i.e. 25.03.2014 till today, he is entitled for the set off under Section ::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 ::: 23 Cri.Appeal_100_2016_Jd 428 of the Code of Criminal Procedure.
7 There is no change in the order in respect of disposal of muddemal.
(Y.G. Khobragade, J.) ( Smt. Vibha Kankanwadi, J. )
agd
::: Uploaded on - 19/04/2023 ::: Downloaded on - 12/06/2023 10:04:39 :::