NALIN @ NARENDRA BHAGWAN NITNAWARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present appeal challenges the judgment and order of conviction dtd. 29/4/2022, passed by the learned Special Judge (POCSO) and District and Session Judge-11, Nagpur in Special Case No. 50 of 2019, whereby the appellant (original accused No. 1) was convicted for offenses punishable under Ss. 376(2)(k), 376(2)(n), 376(3), 323 Sknair and 324 of the Indian Penal Code, 1860 (hereinafter referred to as IPC), and Ss. 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act). The trial court by invoking Sec. 42 of the POCSO act held that the punishment as under Sec. 376(3) of IPC is greater in degree and therefore the learned trial court had sentenced the appellant/accused as under:

(2.) For offense punishable under Sec. 376(3) of the IPC, the appellant was sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.10,000.00, and in default of payment of fine, he was to suffer simple imprisonment for one year. For the offense punishable under Sec. 323 of the IPC, the appellant was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs.500.00, and in default of payment of fine, to undergo simple imprisonment for fifteen days. Finally, for the offense punishable under Sec. 324 of the IPC, the appellant was sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.1,000.00, and in default of payment of fine, to undergo simple imprisonment for one month.

(3.) The prosecution's case, in brief, is that the appellant is the biological father of the victim, a minor girl aged about 14 years at the relevant time. The mother of the victim had left the matrimonial home when the victim was around 4 years old. The appellant resided along with his daughter (the victim) and her younger brother. It is alleged that the appellant sexually exploited the victim repeatedly since the time she was in the 8th standard, by forcibly establishing sexual relations with her under threats and physical assault. He allegedly compelled the victim to sleep naked, and he himself slept in the same condition. When the victim resisted, she was beaten by the appellant. The victim has stated that one night, the appellant came home under the influence of alcohol and forcibly had sexual intercourse with her and threatened her not to reveal the incident to anybody. This sexual exploitation allegedly continued until the victim was in 9th standard. On one occasion, the victim requested the appellant to send her to her aunt's house as she was unable to bear the pain. The appellant denied this request. When she persisted, the appellant assaulted her, causing the neighbours to intervene and rescue her. During the summer of 2018, the victim's aunt, Salma, came to live with them, during which time no sexual assault occurred. A quarrel broke between the victim and her aunt Salma over cooking. The victim told another aunt, one Vimal Nitnaware, regarding what she had suffered. Later, her aunt, Vimal Nitnaware, took the victim to her house, where she stayed for one or two months. In the meantime, Salma left the victim's house and returned to her own. The appellant compelled the victim to return home from her aunt's place and the victim reluctantly complied, returning after the festival of Deepavali. Upon returning to her father's house, the victim once again faced sexual assault. The last incident of sexual assault is alleged to have occurred on 31/12/2018.