LAXMAN PADAM GIRI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present Appeal filed under Sec. 374 (2) of the Criminal Procedure Code ("Cr.P.C.") assailed the impugned Judgment and Order dtd. 27/03/2019, in POCSO Special Case No.232 of 2017, passed by the Court of the learned Special Judge under P.O.C.S.O. Act, Gr. Bombay. Thereby, the Appellant ("the Accused") was convicted for the commission of an offence of Sec. 376 (2) of the Indian Penal Code, 1860 ("IPC") and Sec. 6 of the Protection of Children from Sexual Offences Act, 2012 ("the Act"). Under Sec. 6 of the Act, the trial Court sentenced the Accused to suffer imprisonment for life and to pay fine of Rs.6,000.00 in default to suffer simple imprisonment for 30 days. However, in view of Sec. 42 of the Act, no separate sentence was imposed on the Accused for the offence of Sec. 376 (2) of IPC.

(2.) Heard Mr. Rane, the learned appointed counsel appearing for the Appellant, Ms. Hivrale, the learned APP appearing for Respondent No.1-State and Ms. Sawant, the learned appointed Advocate appearing for Respondent No.2. Perused the record.

(3.) The prosecution case was that, the Accused is the husband of the informant (P.W.1), who got married with the Accused in the year 2005 and she is his fifth wife. At the time of the incident, the Accused, P.W.1 and their 3 sons and 1 daughter ("the victim") used to reside at XYZ place, Vashi Naka. The victim was a baby, just 9 months old. The accused was habituated to consuming alcohol, which often led to frequent altercations between him and his spouse. After the birth of the victim, the accused frequently quarrelled with P.W.1 and used to exert pressure upon her to sell the victim. On the night of 18/01/2017, the victim was sleeping between P.W.1 and the Accused. At around 02:00 am, P.W.1 heard the cries of the victim due to which she woke up and saw that the Accused was inserting his finger into the genital of the victim. P.W.1 promptly questioned the Accused about the alleged abuse of the victim. In response, P.W.1 was assaulted by the Accused, who also threatened to harm her. This caused the other children to wake up and start crying. Upon daybreak, P.W.1 informed the matter to her sister-in-law (P.W.3 - brother's wife) residing in the vicinity. The latter warned the Accused that the incident would be reported to police. Therefore, the Accused ran away. But, P.W.1 did not report the incident to police, treating it as a family dispute.