Shubham @ Bhurya Gajanan Shendre vs State Of Maharashtra

Admit. Heard finally with the consent of the learned counsel appearing for the respective parties at the stage of admission.

By the present appeal under Section 374 of the Code of Criminal Procedure, the appellant / accused has impugned the judgment and order dated 28/04/2023 passed by the learned Special Judge (POCSO Act) Wardha, thereby held guilty to the appellant / accused for the offences punishable under Sections 363, 366(A) and 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced to suffer Rigorous Imprisonment for 3 years with fine of Rs.2,000/- for the offence punishable under Section 363 of the IPC, Rigorous Imprisonment for 5 years with fine of Rs.3,000/- for the offence punishable under Section 366(A) of the IPC, Rigorous Imprisonment for 15 years with fine of Rs.15,000/- for the offence punishable under Sections 376(2)(i) of the IPC. But, as per the provisions of Section 42 of the POCSO Act, no separate punishment is imposed for the offence punishable under Section 6 of the POCSO Act.

It is the case of prosecution that the PW-1 victim’s mother lodged a report with Police Station, Ramnagar, Wardha alleging that she is having three daughters and her grand-mother-in-law used to look after her daughters whenever she used to go for catering labour work. On 20/05/2017 at about 9.00 a.m., the informant went for labour work and told her grand-mother-in-law to look after her daughters. On 21/05/2017 at about 1.00 a.m., she returned home after her catering work was over and slept with her daughters. Since she returned home in late night hours, therefore, in morning time, she was sleeping. At about 7.30 a.m., her daughter (victim) was woke up and had visited the neighbour’s house. However, at about 8.00 a.m., her mother-in-law visited her and told that since morning, the victim had left the house under the pretext of taking tea but she did not return. Though the victim’s search was taken but she was not traceable. In the meantime, one person namely; Deva visited her and asked her to accompany him to Loko Shed where something wrong was happened with the victim. Therefore, the informant went there and came to know from one witness Chanda that the accused committed rape on the victim. Further on enquiry, the victim narrated that when she was playing nearby her house, at that time, the accused Bhurya took her for playing in the garden where he removed the clothes of the victim and inserted finger in her private part. Since the victim sustained pain, she was crying and the accused fled away from the spot.

On the basis of said report, FIR No.76/2017 was registered with Ramnagar Police Station, Wardha for the offences punishable under Sections 363, 366(A), 376(2)(i) of the IPC and Section 5 punishable under Section 6 of the POCSO Act.

During the course of investigation, the victim was referred to the medical examination. The Investigating Officer drew the Spot Panchnama. After collecting substantial evidence, the Investigating Officer filed charge-sheet.

The learned Trial Court on 10/06/2019 framed charges at Exh.11 against the accused / appellant for the offence punishable under Sections 363, 366(A) and 376(2)(i) of the IPC and Section 5(1)(m) punishable under Section 6 of the POCSO Act.

In order to prove the charges, the prosecution examined following witnesses as under :-

After the evidence is over, the statement of the appellant / accused was recorded under Section 313 of Cr.P.C. at Exh.113.

The defence of the accused is of total denial and false implication.

On 28/04/2023, the learned Trial Court passed the impugned judgment and order and held guilty to the appellant / accused for the offences punishable under Sections 363, 366(A), 376(2)(i) of the IPC and the offence punishable under Section 6 of the POCSO Act.

Heard Shri K. G. Rathi, learned counsel appearing for the appellant and Shri G. S. Umale, learned APP appearing for the prosecution at length.

The learned counsel appearing for the appellant submitted that the informant is the mother of the victim. She was doing the catering labour work. On 20/05/2017 at about 9.00 a.m., informant left house for catering work and returned on 21/05/2017 at 1.00 a.m. (mid-night). Since she returned from work in late night, therefore, she did not wake up early in the morning and at about 7.30 a.m., her victim daughter had left the house to have tea but at about 8.00 a.m., the informant’s grand-mother-in-law visited her and informed that the victim girl did not visit at her house. Therefore, the victim was searched but she was not found. In the meantime, one person namely; Deva visited her and told to go towards Loko Shed. Therefore, the informant visited there and came to know that, the accused had removed clothes of victim and had lain on the person of the victim. After shouting by the people, the accused ran away. Some persons put clothes on the victim. The victim was frightened and crying. Therefore, Crime No.76/2017 was registered against the present appellant / accused.

However, the evidence of the witnesses does not suggest that the accused has committed several intercourse with the victim but he was found while sexually abusing the victim PW-5. Further, the evidence of PW-8 – Dr.Vandana Waware, Medical Officer, to whom the history was narrated by the PW-1 the victim’s mother but no enquiry was made with the victim. Further, the evidence of PW-8 – Dr.Vandana Waware, Medical Officer does not suggest about sexual intercourse or sexual assault with the victim. Therefore, the learned Trial Court could have extended the benefit of doubt and accused could have been acquitted. However, the learned Trial Court has passed the impugned order solely on the basis of testimony of victim PW-5. Therefore, the impugned judgment and order is illegal, bad in law and liable to be quashed and set aside.

The learned counsel appearing for the appellant further canvassed that the learned Trial Court could have appreciated the evidence of victim - PW-5, her mother - PW-1 and evidence of PW-6 – Chanda Pannalal Barse as well as the statements of PW-1 and PW-5 were recorded under Section 164 at Exh.21 as well as the material omissions and contradictions. However, the learned Trial Court failed to consider the same and passed the impugned order, hence, prayed for quashing and setting aside the same.

It is further canvassed that as per the contents of FIR at Exh.20, the incident was occurred on 21/05/2017 in between 7.30 a.m. to 9.00 a.m. The Section 6 of the POCSO Act was substituted by the Amendment when came in force w.e.f. 16/08/2019, wherein the punishment for the offence punishable under Section 5 for aggravated penetrative sexual assault is imprisonment for not less than 20 years. However, prior to amendment to Section 6 of the POCSO Act, the punishment for aggravated penetrative sexual assault was provided not less than 10 years. However, the learned Trial Court passed the impugned order and sentenced the appellant to suffer Rigorous Imprisonment for 15 years instead of 10 years. Therefore, the impugned order is illegal, bad in law and prayed for quashing and setting aside the same as well as the modification of the punishment.

Per contra, Shri G. S. Umale, learned APP canvassed that the testimony of victim PW-5 is in corroboration with the medical evidence as well as oral testimony of PW-8 Dr.Vandana Waware, Medical Officer. As per the evidence of medical expert, the essential ingredients to constitute an offence of aggravated penetrative sexual assault proved by substantial and cogent evidence. The PW-9-Sachin Yadav, Investigating Officer collected the birth certificate of victim PW-5 at Exh.92, wherein the date of birth of victim is shown as 07/11/2010 and aggravated sexual assault was committed on 21/05/2017. Therefore, on the date of commission of offence, the victim was 6 years, 6 months and 14 days old. Therefore, the victim was a child within the meaning of Section 2(d) of the POCSO Act. The appellant / accused has not brought any substantial material on record to discard the testimony of the prosecution witnesses.

Therefore, considering the evidence as well as oral and documentary evidence available on record, the learned Trial Court passed the impugned order and held guilty to the appellant / accused for the offences punishable under Sections 363, 366(A), 376(2)(i) of the IPC and Section 6 of the POCSO Act and sentenced to suffer Rigorous Imprisonment for 15 years. Therefore, no substantial grounds are set out to interfere with the findings, hence, prayed for dismissal of the appeal.

Having regard to the submissions canvassed on behalf of both the sides, I have gone through the Record and Proceedings.

PW-1 deposed at Exh.18 that since her minor victim daughter was missing, her grand-mother-in-law visited her and disclosed that the victim was not traceable. In the meantime, one boy namely; Deva visited her and asked her to accompany at Loko Shed, hence, she went there and found about gathering of people. At that time, PW-6 - Chanda Barse and Madhavi Hadve disclosed her that, the appellant / accused Bhurya removed victim’s clothes and was laying on victim. The victim was frightened and crying. Thereafter, she enquired with the victim who disclosed that, the accused took her in the garden for playing, where he removed her clothes and laid her down on the floor and the accused inserted his fingers into her private part, due to which she cried, hence, the people gathered there and the accused fled away from the spot. The accused cross-examined PW-1 through his counsel. However, nothing has been solicited to discard the testimony of PW-1 about aggravated sexual assault.

PW-5 victim examined at Exh.68. The victim PW-5 deposed that, her date of birth is 07/11/2010. On the date of accident, she was playing in the courtyard of her grand-mother and at that time, accused visited her and asked her to accompany him to the garden for playing. The accused took her in the garden where the accused removed her clothes and inserted his fingers into her private part (vagina), due to which she suffered pain, hence, she cried. Due to her shout, the people were gathered and accused fled away from the spot.

On perusal of statements of victim PW-5 under Section 164 of the Cr.P.C. recorded at Exh.69 are in corroboration of victim’s testimony. Though, the defence tried to bring on record that no such incident had occurred and the accused neither took the victim in garden nor removed her clothes as well no finger was inserted in private part of victim. But the said suggestion is denied by the victim.

The prosecution examined PW-8 - Dr. Vandana Waware at Exh.81. As per the evidence of PW-8 - Dr. Vandana Waware on 21/05/2017, she examined the victim PW-5 and narrated the history given by victim’s mother. After medical examination, the Medical Officer found abrasions over the chin middle part, left arm lateral part linear and on right wrist medial aspect linear. The PW-8 - Dr.Vandana Waware further found tear size 0.5 cm x 0.5 cm on right labia minora. Readiness was present on paraurethral region on right side. Further, tenderness was present. Hymen injury present on 11 o’clock region small tear. The edges - redness seen. The necessary sample was collected and handed over to the L.P.C. Durga. As per the opinion of medical expert, all the injuries were less than 24 hours.

In cross-examination, the defence counsel tried to suggest that the injuries mentioned in medical report at Exh.83 are self-inflicted but said suggestion has been denied.

The PW-10 - Nilesh Eknathrao Kele proved arrest panchnama at Exh.99, request letter dated 29/05/2017 at Exh.100 and FSL reports at Exhs.103 and 104 in respect of examination of victim’s clothes, vaginal swab and blood test. As per Exh.104, no semen or blood stains of the accused were found on the clothes of the victim.

On conclusion of the trial, on 28/04/2023, the learned Trial Court passed the impugned judgment and order holding that the accused had committed penetrative sexual assault within the meaning of Section 3 of the POCSO Act against the minor PW-5. So also, the appellant / accused kidnapped the victim from the custody of the informant and induced the victim minor girl with an intention to commit illicit intercourse. So also, appellant / accused committed rape on the minor and sentenced him to suffer Rigorous Imprisonment for 3 years with fine of Rs.2,000/- for the offence punishable under Section 363, Rigorous Imprisonment for 5 years with fine of Rs.3,000/- for the offence punishable under Section 366(A) of the IPC, Rigorous Imprisonment for 15 years with fine of Rs.15,000/- for the offence punishable under Sections 376(2)(i) of the IPC.

Needless to say that the alleged offence of aggravated sexual assault within the meaning of Section 5 of the POCSO Act was committed on 21/05/2017. Section 376(2)(i) of IPC provides for punishment of not less than 10 years. The amendment to Section 6 of the POCSO Act came into force w.e.f. 16/08/2019. Prior to amendment, Section 6 of POCSO Act was providing punishment for aggravated sexual assault as under :-

In the case in hand, the alleged crime was occurred on 21/05/2017 which is much prior to amendment to Section 6 of the POCSO Act.

In the case of Satauram Mandavi Vrs. The State of Chhattisgarh and another, 2025 AIR (SC) 3439 : 2025 6 Supreme 318, wherein, the Hon’ble Supreme Court considered the provisions of Section 6 of the POCSO Act prior to 2019 amendment and held in Para Nos.11, 12 and 13 as under :-

In the present case, the offence of penetrative sexual assault occurred on 21/05/2017 prior to amendment to Section 6. The evidence of the prosecution witnesses are in corroboration with evidence of PW-1 victim’s mother as well as the evidence of the victim PW-5 are in corroboration with the evidence of PW-8 – Dr.Vandana Waware, Medical Officer. The appellant / accused has brought any material on record to discard the testimony of the prosecution witnesses. On perusal of evidence of the prosecution witnesses, it prima facie appears that it does not appear contradictions and omissions. The evidence of PW-5 victim inspired the confidence and the accused did not shake the testimony of the prosecution witnesses.

The learned Trial Court passed the impugned order and held guilty to the appellant / accused for the offences punishable under Sections 363, 366(A), 376 (2) (i) of the IPC and the offence punishable under Section 6 of the POCSO Act. Section 376(2)(i) provides for a minimum punishment of 10 years.

Since prior to Amendment of 2019, Section 6 of the POCSO Act provided Rigorous Imprisonment of not less than 10 years for aggravated penetrative sexual assault but after coming into force of Amendment to Section 6, Rigorous Imprisonment of 15 years is provided.

It is well settled law that the amendment to the penal code is not applicable with retrospective effect unless it is specifically provided. However, in the case in hand, it appears that, offence under Section 5 punishable under Section 6 of the POCSO Act and Sections 363, 366(A) and 376(2)(i) of the IPC committed prior to the Amendment of 2019, wherein punishment of 10 years is provided. However, the Trial Court passed impugned order holding guilty to the appellant for the offences punishable under Sections 363, 366(A) and 376(2)(i) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and sentenced to suffer Rigorous Imprisonment for 3 years with fine of Rs.2,000/- for the offence punishable under Section 363 of the IPC, Rigorous Imprisonment for 5 years with fine of Rs.3,000/- for the offence punishable under Section 366(A) of the IPC, Rigorous Imprisonment for 15 years with fine of Rs.15,000/- for the offence punishable under Sections 376(2)(i) of the IPC. But, as per the provisions of Section 42 of the POCSO Act, no separate punishment is imposed for the offence punishable under Section 6 of the POCSO Act but awarded punishment of 15 years for offence under Section 5 punishable under Section 6 of the POSCO Act, despite offence was committed prior to Amendment to Section 6 of the POSCO Act. Needless to say that, the learned Trial Court awarded minimum punishment of 10 years under Section 376(2)(i) of the POCSO Act but no separate sentence has been awarded as per the provisions of Section 42 of the POCSO Act. Therefore, it would be just and proper to modify the sentence of 15 years to 10 years as per the provisions of Section 6 prior to Amendment of 2019.

Accordingly, I am of the view that the conviction of the appellant under Section 6 of the POCSO Act and the sentence of the appellant is liable to be modified to the extent of Rigorous Imprisonment for a period of 10 years as provided prior to amended the POCSO. In view of above discussion, I proceed to pass the following order :-

i] The appeal is partly allowed.

ii] The impugned judgment and order dated 28/04/2023 passed in Special (Child Act) Case No.38/2017 by the learned Special Judge (POCSO Act) Wardha is hereby maintained except to the extent of Rigorous Imprisonment, which is modified to the extent of 10 years instead of 15 years.

iii] Pending applications, if any, stand disposed of.

iv] R and P be remitted back to the Trial Court.