DATE OF JUDGEMENT
29th August, 2017
BENCH
Justice A. M. BADAR
PARTIES
Appellant- Balaji Sarjerao Kamble
Respondent- The State of Maharashtra
SUBJECT
The Bombay High Court held that simply because victim is not able to disclose the date of the crime, her evidence cannot be disregarded.
IMPORTANT PROVISIONS
Section 376 of IPC
Punishment for rape
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Section 4 of POCSO Act
Punishment for penetrative sexual assault
(1)Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than 2[ten years] but which may extend to imprisonment for life, and shall also be liable to fine.
(2)Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine.
Section 8 of POCSO Act
Punishment for sexual assault
Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
OVERVIEW
- The appellant had allegedly committed rape on a minor girl of 6 years and was convicted by the special judge under Section 376 of the Indian Penal Code (IPC) so also under Sections 4 and 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
- He was directed to undergo rigorous imprisonment of 7 years for the offence punishable under section 376 of IPC along with a fine of 5000 rupees, in default of which to under go further imprisonment of 3 months. Similarly, for the offence punishable under Section 4 of the POCSO Act, he was sentenced separately to suffer rigorous imprisonment of 7 years, apart from directing him to pay fine of Rs.5,000/-, in default, to undergo further rigorous imprisonment of 3 months.For the offence punishable under Section 8 of the POCSO Act, the appellant / accused is sentenced to suffer rigorous imprisonment of 3 years, apart from directing him to pay fine of Rs.1,000/-, in default, to undergo further rigorous imprisonment of 1 month.
- The counsel for appellant among other things contended that it was false implication and further argued that the victim was unable to disclose the date of the incident.
ISSUE
Whether the evidence given by the victim can be disregarded if she is unable to disclose the date of incident?
ANALYSIS
- The court held that evidence of a victim of a rape case is supposed to carry the same weight as is attached to evidence of an injured witness.
- The court observed the statement given by the victim and held that she has candidly denied that she is deposing before the court on instructions of others. She also denied that she was saying what her mother had told her. When suggested that the victim had not done anything to her, she vehemently denied the same. She also vividly stated how the accused committed the crime on her and the court found nothing in the cross-examination to disbelieve her version of the sexual assault.
- The court held that evidence of the victim is clear and cogent in respect to the penetrative sexual assault.
- Therefore, the court said that her not mentioning the date of the incident is inconsequential.
- “Merely because date of the incident is not stated by the victim, her evidence cannot be doubted. The PW1 is not expected to have such chronometric sense at the tender age.”, Said the court.
- The court however observed that the appellant had been convicted for the offence punishable under Section 376 of the IPC as well as under Section 4 of the POCSO Act and is sentenced to suffer punishments on both counts. He had been sentenced for 7 years under 376 of IPC and separately for 7 years under section 4 of POCSO Act. “As such, for the same offence i.e., the one under Section 376 of the IPC and another under Section 4 of the POCSO Act, the accused cannot be punished twice,” said the court.
- Therefore, the court maintained the Conviction and sentence of the appellant / accused for offences punishable under Sections 4 and 8 of the POCSO Act and quashed the sentence imposed under section 376 of IPC.
CONCLUSION
It was rightly decided by the court in this case that if the victim remembers the incident and gives sufficient and satisfactory evidence, it would not matter that she cannot disclose the date of the incident. The totality of the evidence in this case clearly implied that the victim could not have any ulterior motive to falsely implicate the appellant.
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