Partly allowing an appeal against conviction of an accused under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act as well Section 376 of IPC (rape), the Bombay High Court has said although the accused is held guilty under both counts, he can only be sentenced under one which has greater punishment.
A bench of Justice AM Badar was hearing an appeal filed by one Siddharth Sonde, who challenged a judgment dated May 20, 2015, by a special judge sentencing him to 10-year rigorous imprisonment on each count (both POCSO and IPC).
Suman Gaikwad, a widow with four daughters, was forced to send all her children to their paternal aunt’s house for further education as she was financially incapable. Thereafter, all four daughters started staying with their paternal aunt Vandana and paternal uncle Siddharth Sonde.
The complainant in this case is one of the daughters of Suman, who at the time studied in Class VII. She stated that Siddharth Sonde used to take her to the terrace and touch inappropriately and even attempted rape on her several times.
This was revealed to Suman (mother) by the complainant after she refused to return to her aunt’s house and her mother asked her the reason for it.
What Court Said
Examining all the statements of the complainant as well as other witnesses, the court acknowledged the helplessness of the victim and refused to accept the argument of the appellant’s lawyer that there was inordinate delay in filing of the complaint and thus benefit of doubt could be given to the appellant accused.
The court said: “A girl of tender years, who was virtually left at the mercy of the appellant / accused, is not expected to speak against the appellant / accused, particularly when she had lost her father and there was no male member at her house. Her 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. Because of fear and terror of the appellant / accused, she was virtually prohibited from disclosing anything to her other relatives.”
Medical evidence also pointed towards penetrative sexual assault.
However, the court accepted the contention raised by the accused’s lawyer Yashpal Thakur, that trial court ought not to have sentenced the accused to 10 years under the offence of rape (S.376) when he had already been sentenced to 10 years under S.4 of the POCSO Act.
Setting aside the sentence under S.376, the court noted: “Under Section 42 of POCSO Act, in case of commission of a crime that constitutes an offence punishable under the said Act as well as an offence punishable under Section 376 of the IPC, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under the POCSO Act or under the IPC, as provided for punishment which is greater in degree.”