Bombay High Court
Ajit @ Lalya Dilip Veer vs The State Of Maharashtra And Anr on 12 March, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
Appln-3712-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3712 OF 2018
IN
CRIMINAL APPEAL NO.329 OF 2018
Ajit @ Lalya Dilip Veer
Age-23 Years, Occu.: Nil
R/o. Alanee, Tal. & Dist.-Osmanabad ... APPLICANT
VERSUS
1. The State of Maharashtra
2. Pratiksha Babasaheb Kadam
Through her natural guardian
Kamlabai Achyut Kadam
Age-Major years, Occu.: Housewife
R/o. Alanee, Tal. & Dist. Osmanabad ... RESPONDENTS
..........
Mr. S. J. Salunke, Advocate for applicant.
Mr. B. V. Virdhe, APP for respondent No.1-State.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 12-03-2020
ORDER :
. Present application has been filed by original accused No.1 for suspension of sentence awarded to him by learned Special Judge, Osmanabad in Special (POCSO) Case No.22 of 2015 dated 28-02-2018.
2. Present applicant has been convicted for the offence punishable under Section 363 read with Section 34 of Indian Penal Code and thereby (1) ::: Uploaded on - 06/05/2020 ::: Downloaded on - 09/06/2020 00:36:54 ::: Appln-3712-2018.odt sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.2000/- (Rs. Two thousand only), in default, to suffer rigorous imprisonment for six months. Further, he has been convicted for the offence punishable under Section 366(A) read with Section 34 of Indian Penal Code and thereby sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.2000/- (Rs. Two thousand only), in default, to suffer rigorous imprisonment for six months. Further, he has been convicted for the offence punishable under Section 376(2)(i)(n) of Indian Penal Code and thereby sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.50,000/-(Rs.Fifty Thousand only), in default, to suffer rigorous imprisonment for two years.
2. Heard learned Advocate Mr. S. J. Salunke for applicant and learned APP Mr. B. V. Virdhe for respondent-State.
3. It has been vehemently submitted on behalf of the applicant that the learned Special Judge has held the present applicant-appellant (original accused No.1) guilty in respect of all the offences, however, failed to consider that the age of the prosecutrix/victim was not proved as per law. The radiologist has opined the age of the victim as between 16 to 17 years and thereby the margin of plus-minus two ought to have been applied which showed that the victim was major. The defence was taken that victim was (2) ::: Uploaded on - 06/05/2020 ::: Downloaded on - 09/06/2020 00:36:54 ::: Appln-3712-2018.odt between 17 to 21 years and was of understandable age. She had attended sufficient understanding. The evidence of the victim would show that no forcible act was done by the accused and though she had every opportunity to escape, she has not done any such act. All these aspects show that she was a consenting party. When these aspects have not been considered by the learned Special Judge, they would be argued at the time of final hearing in the appeal before this Court. The appellant has good case on merits and therefore, during the pendency of the appeal, he be released on bail by suspending the sentence.
4. Per contra, learned APP submitted that a detailed and well reasoned judgment has been written as to why the Special Judge was considering the victim as minor. Further, no contrary evidence has been adduced by the accused to support the defence that the victim was between 17 to 21 years of age. When the victim was minor, there was no question of any talks about her marriage. Further, it has been rightly observed that though there is no proper school record or birth certificate, yet, taking into consideration the fact that the mother of victim is no more and her father used to wander under the influence of liquor and she was brought up by her uncle and aunt who are rustic persons, there may not be a clear documentary evidence. Yet, the birth date was within the knowledge of the victim as well (3) ::: Uploaded on - 06/05/2020 ::: Downloaded on - 09/06/2020 00:36:54 ::: Appln-3712-2018.odt as the fact is told by her aunt-informant that the victim is minor, was sufficient to hold the same. The victim, being minor, could not have given any consent and therefore, the conviction of the accused-applicant is correct. No leniency is required to be shown.
5. At the outset, the fact that is required to be considered is that the present applicant was in jail throughout the trial as he was not at all released on bail. The maximum sentence that has been awarded to him is 10 years and in view of the decision in Kiran Kumar Vs. State of M. P. [(2001) 9 SCC 211] if the facts and circumstances of the case are such that the accused cannot be released on bail, then endeavor should be made to hear the appeal expeditiously. The Hon'ble Supreme Court has given the discretion to the Courts under such circumstance and it cannot be as a rule of law claimed by the accused that under short term of sentence they should be released on bail by suspending the sentence.
6. The main question involved in the case appears to be the age of the victim. Perusal of deposition would show that the victim has given her birth date in her examination-in-chief. Perusal of her cross examination would show that the said birth date is not seriously challenged except that it is stated to be by way of improvement, however, there is supporting school record and, therefore, by taking catena of judgments of this Court as well as (4) ::: Uploaded on - 06/05/2020 ::: Downloaded on - 09/06/2020 00:36:54 ::: Appln-3712-2018.odt Hon'ble Supreme Court, the learned trial Judge has come to the conclusion that the victim is minor. At this stage, we cannot go much deeper into that aspect but can only take note of the fact that after a thorough discussion, the said finding has been recorded by the learned trial Judge. It has also been noted by the learned trial Judge that the defence has not challenged the company of the victim with accused No.1 from village Alanee to Latur, Nanded and thereafter to Aurangabad. Now, whether the victim had chance/ chances to get herself rescued would be a question, yet, that would again be connected to her age. Unless it is held that the victim was major or was of understandable age, the defence that has been tried to be raised that she is a consenting party cannot be appreciated at all. Therefore, at this stage, we cannot go into that aspect. When the accused-present applicant was never released on bail, then case is not made out to suspend the sentence awarded to him only on the basis that the point of age of the victim was challenged by him. Hence, present application is rejected. Appeal is expedited.
[SMT. VIBHA KANKANWADI, J.] SCM (5) ::: Uploaded on - 06/05/2020 ::: Downloaded on - 09/06/2020 00:36:54 :::