Bombay High Court: A Single Judge Bench comprising of A.M. Badar, J., heard an appeal filed against the order and judgment of a Special Judge passed in a Special Child Sessions case, wherein the appellant-accused had been convicted under Sections 376 of the Penal Code of 1860 (rape) as well as under Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act) (Punishment for penetrative assault). He had been sentenced to ten years of rigorous imprisonment under each count of offence punishable under the POCSO Act and IPC concurrently.
Brief facts of the case are that in order to ensure good educational facilities for one of her four daughters, the mother of the victim agreed to let her daughter, the victim, stay at her paternal aunt’s house. The victim disclosed to her mother on one of her visits at home that the accused, the husband of the aunt, hence the victim’s uncle, used to take her on the terrace, touched her inappropriately and even attempted to rape her. Relying on the medical evidence that indicated penetrative assault, the Special Judge found the accused guilty and sentenced him as aforementioned.
Appealing against the said judgment, the appellant stated that due to delay in filing the FIR, the appellant should be given the benefit of the doubt. However, relying on the categorization of reasons for non-reporting sexual offences in Indian settings in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217, the Court held that the victim’s “conduct appears to be normal conduct of a helpless girl of tender age enmeshed in cobweb of adverse circumstances and as such, this fact does not cast shadow of doubt on version of the prosecutrix”.
The Court partly allowed the appeal. Maintaining the conviction of the accused, the Court set aside the sentence under the Penal Code due to Section 42 of the POCSO Act which states that if found guilty under POCSO Act as well as under any other law, then the offence shall be liable for punishment under that Act which is greater in degree. [Siddharth Dagadu Sondu v. State of Maharshtra, 2017 SCC OnLine Bom 7985, dated 28.08.2017]
