18.appeal.524.2023.Judgment.odt (1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO.524 OF 2023 Rajendra Kisanlal Shahare, Aged about 56 Years, Occupation : Agriculturist, R/o. Kakodi, Taluka Deori, District Gondia. (at present detained in Central Jail, Nagpur, Convict No.C-11244). (through Legal Aid) .... APPELLANT // VERSUS // 1. The State of Maharashtra, through its Police Station Officer, Police Station Chichgarh, District : Gondia. 2. Informant in Crime No.79/2021 registered with Chichgarh Police Station, District Gondia. .... RESPONDENTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms. Sonali Khobragade, Advocate for appellant. Mr. A. A. Madiwale, APP for respondent No.1/State. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : URMILA JOSHI-PHALKE AND RAJ D. WAKODE, JJ. RESERVED ON : 04.09.2026 PRONOUNCED ON : 22.09.2026 JUDGMENT : [Per : URMILA JOSHI-PHALKE, J.] 1. The appellant, who is the original accused challenges the judgment and order of sentence passed in Special Child Case No.113/2021 passed by the Special Judge, Gondia, by which the accused is convicted for the offence punishable under 2026:BHC-NAG:12641-DB 18.appeal.524.2023.Judgment.odt (2) Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”) and sentenced to suffer rigorous imprisonment for life i.e. imprisonment for the remainder of his natural life and to pay fine of Rs.10,000/-. In default of payment of fine to undergo rigorous imprisonment for one year. The accused is further convicted for the offence punishable under Section 506 of the Indian Penal Code (hereinafter referred to as “IPC”) and sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1,000/-. In default of payment of fine to undergo simple imprisonment for one month. 2. Brief facts which are necessary for the disposal of the appeal are as under: On 28.07.2021, the mother of the child victim lodged oral report in Chichgarh Police Station alleging that she is residing along with her daughters aged about 12 and 10 years and doing labour work in a grocery shop. Her husband died nine years back. The victim aged about 10 years and studying in 5th Standard. On 27.07.2021, villager namely Sitabai Shahare informed her that prior to 15 days back accused Rajendra took her daughter victim in a forest. On inquiry with the victim, she disclosed that the accused, who by relations her uncle (father’s sister’s husband), on the pretext of giving sweets to her, took 18.appeal.524.2023.Judgment.odt (3) her in a forest and subjected her for the forceful sexual assault. When the victim made an attempt to shout, he threatened that he would kill her. As per the allegations by the PW-1 – mother of the victim in the FIR, the victim girl was subjected for sexual assault by the accused on various occasions. After receiving the information from her daughter, she initially approached to the accused, but accused denied all the allegations, and thereafter with the help of her brother, she approached to the Police Station and lodged the report. 3. After registration of the crime, the wheels of the investigation started rotating. The Investigating Officer has forwarded the victim for medical examination. He also drawn the panchanama in presence of the panchas, collected the birth certificate, seized the clothes of the victim as well as the clothes of the accused, recorded the relevant statements of the witnesses and after completion of investigation, submitted chargesheet against the accused. 4. Learned Special Judge framed the charge vice Exh.8. The accused pleaded not guilty on reading over the charge and claimed to be tried. In support of the prosecution case, the prosecution has examined in all five witnesses, which are as follows: 18.appeal.524.2023.Judgment.odt (4) (i) PW-1 Exh.18 Mother of the victim (ii) PW-2 Exh.22 Victim (iii) PW-3 Nagina Chandrabhan Sonwane Exh.26 Friend of the victim (iv) PW-4 Dhaneshwari Ramesh Shanichara Exh.27 Friend of the victim (v) PW-5 Manohar Hariji Iskape Exh.29 Investigating Officer 5. Besides oral evidence, the prosecution placed reliance on Medical Certificate of victim Exh.10, Spot Panchanama Exh.11, Arrest Panchanama Exh.12, Medical Certificate of accused Rajendra Exh.13, Birth Certificate of Victim Exh.14, Medical Certificate of accused Rajendra Exh.16, Report Exh.19, FIR Exh.20, requisition to Medical Officer Exh.30, requisition to call panchas Exh.31, Property Seizure Memo Exhs.32, 33 and 37. 6. On the basis of oral as well as documentary evidence, the prosecution claimed that the charge is established against the accused. All the incriminating evidence was put to the accused to obtain his explanation, to which defence of the accused is of a total denial and false implication. 7. After appreciating the evidence, the Special Court held the accused guilty and convicted him as aforesaid, hence the 18.appeal.524.2023.Judgment.odt (5) present appeal. 8. Heard learned counsel Ms. Sonali Khobragade for the appellant, who submitted that due to the previous enmity between the mother of the victim and the wife of the accused on account of taking income from the land of the ancestral property, the accused is implicated in the alleged offence. She submitted that medical evidence nowhere supports the prosecution case as no injuries are found on the person of the PW-2 victim. The scientific evidence in the form of CA report is also not adduced by the prosecution as Investigating Officer has not forwarded the clothes of the victim and the clothes of the accused for analysis. Thus, the entire prosecution case fails, as the foundational facts that the victim was taken in the forest itself is not established and, therefore, further charge is not proved. 9. Per contra, learned APP strongly opposed the said contention and vehemently submitted that the defence has admitted the medical certificate, wherein the hymen of the victim was shown torn and the spot panchanama. The prosecution has not only adduced the evidence of PW-1 mother of the victim to whom the PW-2 victim has disclosed the incident, but the friends of the victim, PW-3 Nagina and PW-4 Dhaneshwari, who are the witnesses on the aspect that they have seen the accused taking PW-2 victim along with him. Moreover, there is a disclosure by 18.appeal.524.2023.Judgment.odt (6) the PW-2 victim to them also. From their cross-examination nothing was revealed regarding the previous enmity. PW-2 victim was also not cross-examined on the aspect of the previous enmity between the accused and the mother of the PW-2 victim. He submitted that there is nothing on record to show that there is any other ulterior motive for the PW-2 victim to implicate the accused falsely in the alleged offence. The birth certificate of the PW-2 victim is also admitted by the defence and not challenge the age of the victim. Thus, the prosecution has established that the PW-2 victim was a minor at the time of incident. She was subjected for the forceful sexual assault by the accused. The evidence of the PW-2 victim is cogent, reliable and corroborated by the other evidence. For all above these reasons, no interference is called for. 10. After hearing both sides and after going through the entire evidence on record, it reveals that as per the prosecution case, PW-2 victim was a minor at the relevant time and to prove the age of the victim, the prosecution placed reliance on the oral evidence of PW-1 mother of the victim, who testified that PW-2 victim is her younger daughter and her birth date is 20.05.2011. At the relevant time, she was studying in 5th Standard. The birth certificate of the PW-2 victim collected during the investigation issued by the Grampanchayat Deori, District Gondia also 18.appeal.524.2023.Judgment.odt (7) discloses her birth date as 20.05.2011 and immediately within one month of her birth, the said birth date was registered on 15.06.2011. PW-2 victim has also narrated her birth date as 20.05.2011. Neither PW-2 victim nor her mother was cross-examined on the aspect of her birth. Thus, there is consistent evidence regarding the birth date and age of the PW-2 victim. The said birth certificate is issued under Sections 12 and 17 of the Registration of Births and Deaths Act, 1969. 11. As far as the law regarding the birth entries is concerned is settled, the birth certificate was issued by the Grampanchayat Deori, District Gondia under Sections 12 and 17 of the Registration of Births and Deaths Act, 1969 and Rules 8 and 13 of the Maharashtra Registration of Births and Deaths Rules. As per provisions of Rule 9 of the Maharashtra Registration of Births and Deaths Rules, 1976, this Certificate is issued by the Sub-Registrar acting under the provisions of the Registration of Births and Deaths Act, 1969. Section 7 thereof deals with appointment of Registrars for each local area comprising the area within the jurisdiction of the Municipality, Panchayat or other local authority. It is the duty of the Registrar to register every birth and death which takes place in his jurisdiction. This Act mandates that the Registrar should discharge his duties carefully. Section 8 of this Act mandates 18.appeal.524.2023.Judgment.odt (8) each head of the house to report birth in the family to the Registrar. The Act provides for maintenance of register for recording birth and death within the local area. That is how, certificate came to be issued by the Sub-Registrar as per provisions of Sections 12 and 17 of the said Act. The Birth Certificate, as such, is issued by the Public Officer and it is a document forming the record of the acts of the Public Officer and therefore the same is a public document within the meaning of the said term as per provisions of Section 74 of the Indian Evidence Act, 1872. The same is admissible in evidence by mere production thereof in view of provisions of Section 77 of the Evidence Act. 12. Section 17 of the Registration of Births and Deaths Act, 1969, provides for search of Birth Register and supply of extract thereof by certifying the same by the Registrar or other authorized Officer. Section 17 of the said Act provides that such extract shall be admissible in evidence for the purpose of proving birth or death to which the entry relates. The Birth Certificate is, in fact, the extract of Birth Register in respect of entry of birth of the victim child and as such, admissible in evidence. Section 35 of the Evidence Act, 1872, makes it clear that if entry is made by public servant in the official book in discharge of his official duty, then such entry becomes the relevant fact and admissible in 18.appeal.524.2023.Judgment.odt (9) evidence. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. It is, thus, clear that the Birth Certificate issued by the statutorily appointed competent authority is relevant and admissible. The birth certificate is a public document and primary evidence which can be proved by production in view of Section 77 of the Indian Evidence Act. 13. Thus, considering the evidence on record and considering the fact that the appellant / accused has admitted the birth extract which is at Exh.14, as the birth date of the victim is not challenged. We have no hesitation to hold that the prosecution succeeded in proving that the victim was below 18 years of age i.e. child within the definition given under Section 2 (d) of the POCSO Act. 18.appeal.524.2023.Judgment.odt (10) 14. The aspect of sexual assault on the PW-2 victim by the accused, as per the prosecution case, and to prove the same, the prosecution mainly placed reliance on the evidence of PW-1 mother of the victim, PW-2 victim, PW-3 Nagina Sonwane and PW-4 Dhaneshwari Ramesh Shanichara the friends of the victim. As per the evidence of PW-1 mother of the victim, she is a single parent, as her husband died prior to nine years in the year 2012 of the incident. She is doing a labour work in one grocery shop. On 27.07.2011, one of the villagers Sitabai Shahare disclosed to her that prior to 15 days the accused took her daughter in Uchepur forest, therefore, she made an inquiry and her daughter has disclosed that the accused has taken her on the pretext of giving sweets and subjected her for forceful sexual assault by disrobing her. Though she approached to the accused, but accused denied the allegations. As she is the only adult member in the family, she called her brother from the village Shendepar and thereafter approached to the police and lodged the report. Her evidence shows that she along with her daughter went to the Government Hospital for medical examination. Her cross-examination disclosed that accused is her relative i.e. husband of her sister-in-law. It further reveals that she is having one and half acres land of her husband, which bears the names of her in-laws, husband and her sister-in-law. However, she has shown her ignorance regarding the income received from 18.appeal.524.2023.Judgment.odt (11) the said agricultural land. She also shown the ignorance whether said amount was obtained by her sister-in-law. She denied that there was a dispute between her and her sister-in- law on account of the income of the said land. It further came in her evidence that the villager Sitabai is not related to her, but she is related to the accused. Her evidence further shows that her daughter used to play with the other girls. She also rides a bicycle. The rest of the cross-examination is in the denial form. 15. PW-2 victim has also narrated that the accused is her uncle. She has identified the accused in the Court. She stated that when she was studying in 5th Standard and playing in the courtyard of the house, accused took her in a forest and subjected her for the forceful sexual assault and thereafter dropped her in the village. She further disclosed that accused given her Rs.10/- and threatened not to disclose the incident to anybody. Her evidence further discloses that on the day of incident, she was playing along with her friends namely PW-3 Nagina and Anjali. She has disclosed the incident to her mother. Her further cross-examination shows that she was wearing frock and underwear at the time of incident. She denied that she is disclosing the incident on the say of her mother due to the dispute between her mother and accused. 16. To corroborate the version of the PW-2 victim, 18.appeal.524.2023.Judgment.odt (12) prosecution has examined PW-3 Nagina Chandrabhan Sonwane and PW-4 Dhaneshwari Ramesh Shanichara, who are also the child witnesses. Their evidence was recorded after satisfying regarding their competency. They have stated that the accused has taken PW-2 victim along with him twice when they were playing with the victim. They have specifically stated that PW-2 victim has also disclosed to them regarding the incident and PW-2 victim was taken by the accused forcefully. As far as their cross-examination is concerned, nothing incriminating is brought on record. They have specifically denied that they are deposing on the say of mother of the victim and the police. Thus, the evidence of PW-2 victim shows that she was taken when she was playing with her friends. Similarly, PW-3 Nagina and PW-4 Dhaneshwari, who are the friends playing along with PW-2 victim at the relevant time also discloses that PW-2 victim was taken by the accused when they were playing with each other and PW-2 victim disclosed about the incident. 17. PW-5 Manohar Hariji Iskape is the Investigating Officer, who has narrated about the investigation carried out by him. The sum and substance of his evidence is that after registration of the crime, he visited the alleged spot of incident, drawn spot panchanama in presence of the panchs. He also referred PW-2 victim as well as the accused for medical examination and 18.appeal.524.2023.Judgment.odt (13) collected medical certificates. He has also seized the clothes of the PW-2 victim as well as the clothes of the accused and collected the birth certificate. Despite the cross-examination, nothing incriminating was brought on record. Learned defence counsel placed reliance on the admission which shows that at the time of arrest there was no injury on the person of the accused. 18. Besides the oral evidence, the prosecution placed reliance on the medical certificate of the PW-2 victim, which is admitted by the defence, which shows that PW-2 victim was referred to the Government Hospital i.e. Rural Hospital, Chichgarh on 29.07.2021. The PW-2 victim was examined. The history narrated by the PW-2 victim that uncle by relation used to take her in jungle of Uchepur and subjected her for the sexual assault twice. On medical examination, the Medical Officer has noted that the hymen of the victim was found torn at 12 to 6 O’ clock position. Accordingly, the Medical Officer has issued the certificate. Similarly, the accused was also examined by the Medical Officer and the opinion of the Medical Officer shows that the accused is capable of performing forceful effective sexual intercourse. Both the medical certificates are admitted by the defence. The panchanama as to the spot of incident was also carried out in presence of the panchas. Admittedly, nothing incriminating is found at the spot of incident. On the basis of the 18.appeal.524.2023.Judgment.odt (14) above evidence, the prosecution claimed that the prosecution has proved its case beyond reasonable doubt. As already observed that the age of the PW-2 victim is already proved by the prosecution that she was below 18 years of age at the time of incident. The aspect of sexual assault on the victim as per the prosecution is established not only by the evidence of PW-2 victim, but by the evidence of PW-1 to whom one villager Sitabai disclosed that accused has taken her daughter in the forest, therefore, she made inquiry with the PW-2 victim and PW-2 victim corroborated the same. PW-2 victim further disclosed that she was taken twice by the accused when she was playing with her friends. Admittedly, the prosecution has not examined the said Sitabai, but mere her non-examination, whether would be sufficient to discard the entire evidence. 19. The medical evidence on record establishes the fact that she was subjected for the sexual assault. The hymen tear 12 to 6 O’ clock position crystal clear that sexual activity was conducted with the PW-2 victim. An attempt was made by the defence also to show that due to the previous enmity, the accused is implicated in the alleged offence. The attempt was made to show that the husband of the PW-1 was having only one and half acres of land and the names of the other legal heirs were also mentioned in 7/12 extract, they were getting an 18.appeal.524.2023.Judgment.odt (15) amount of Rs.6,000/- from the Government and wife of the accused has taken the said amount and, therefore, there is a dispute. PW-1 herself has shown ignorance regarding the receipt of the said amount. There are no specific instances put by the defence to show that the enmity is of a such nature that PW-1 any how wants to keep the accused behind bars. On the contrary, the evidence of PW-2 victim corroborated by the evidence PW-3 Nagina and PW-4 Dhaneshwari specifically shows that on two occasions accused has taken the PW-2 victim in a forest. The medical certificate corroborates the version to the extent that there was sexual activity with the victim. Admittedly, the mother of the victim is the single parent and for the survival, she was working in one grocery shop, therefore, the victim and her sister used to be alone at the home. Taking disadvantage of the said fact, it is apparent that accused has taken the PW-2 victim along with him and subjected for the forceful sexual assault. Thus, the totality of circumstances emerging from the record discloses that PW-2 victim was sexually assaulted by the accused. As far as the contention of the accused that he is falsely implicated is concerned, which is not supported by any material which can be ascertained from the cross-examination. At this stage, we are satisfied on the fact that the prosecution has succeeded in proving that PW-2 victim was below 18 years of age and subjected for the forceful sexual assault by the accused. 18.appeal.524.2023.Judgment.odt (16) The contention of the accused regarding the false implication is not supported by any material. On the contrary, it reveals that ten years old girl was subjected for the sexual assault by the accused, who is her uncle. Non-disclosure of the incident by the PW-2 victim at an initial stage is justified in the light of the fact that victim is having the only her mother as a parent and she was threatened by the accused. There was no support to the family and the victim was completely dependent on her mother. Therefore, it was natural on her part not to disclose the incident, however, she has disclosed the incident to her friends, who are of the similar age, therefore, the conduct on the part of the PW-2 victim not to disclose the incident is natural. 20. The POCSO Act is enacted with a specific object that the law should operate in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage to ensure the healthy, physical, emotional, intellectual, and social development of the child. The object is also that the person of culpable state of mind should be punished for harassing the child and keeping the society child friendly. From the evidence on record, it reveals that the accused who is uncle of the victim subjected her for the sexual assault at her tender age. 21. The evidence further discloses that the PW-2 victim has 18.appeal.524.2023.Judgment.odt (17) not disclosed the incident due to threatening to her. She could not disclose the incident to anybody as her relative i.e. aunt’s husband is involved. The trust which a child carries about his or her relatives i.e. uncle is betrayed by the accused. In fact, accused should have been a protector when victim has already lost her father at her childhood, but the accused has ruined the physic as well as state of mind of the victim and also destroyed her future life. He had degraded the very soul of helpless girl. 22. It is to be borne in mind that, the accused is the person who has violated the victim’s privacy and personal integrity and also caused serious psychological as well as physical harm to the victim. Rape is not merely a physical assault but it is often destructive to whole personality of the victim and, therefore, the matters of such allegations must be dealt with utmost sensitivity. 23. The entire case revolves around the evidence of the PW-2 victim, medical certificate and the corroborative evidence in the nature of the depositions of her friends, who were along with her, when she was taken by the accused. As already observed that though the PW-2 victim and PW-3 Nagina and PW-4 Dhaneshwari cross-examined at length, but nothing incriminating to falsify the version of these witnesses came on record. It is well settled law that the evidence of the PW-2 victim if inspires the confidence requires no further 18.appeal.524.2023.Judgment.odt (18) corroboration. Here in the present case, the evidence of the PW-2 victim not only inspires the confidence, but it is also corroborated by the evidence of the other independent witnesses. After appreciating all the facts and evidence on record, the prosecution established the involvement of the accused in the said crime. 24. Learned counsel for the appellant placed much stress upon the delay in lodging the FIR. As per her contention, despite the fact was disclosed to the PW-1 mother of the victim on 27.07.2021, but the FIR was lodged by her on 28.07.2021 at about 09.13 p.m. and the said delay is not explained. On perusal of the FIR, it reveals that in column No.8 itself it is mentioned that she received the information on 27.07.2021 and as there is no male member in the family, she approached to the Police Station belatedly. Her oral evidence before the Court also shows that after she came to know about the incident, she called her brother and thereafter she lodged the report. It is well settled that delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is 18.appeal.524.2023.Judgment.odt (19) possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. 25. As far as delay in lodging of the FIR in sexual offence is concerned, the Hon’ble Apex Court in the case of State of Punjab vs. Gurmit Singh and ors reported in (1996) 2 SCC 384 held that the grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth Class. It is further held that the trial court fell in error for discrediting the testimony of the prosecutrix on that account. If there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. 26. Here, in the present case, the accused is also the close relative of the PW-2 victim i.e. her uncle. The mother of the victim obviously was not having support of anybody, as she lost her husband prior to nine years. She was waiting for arrival of her bother and after she disclosed the incident to her brother 18.appeal.524.2023.Judgment.odt (20) and thereafter the FIR came to be lodged. The column No.8 of the FIR itself shows that the reason is mentioned for delayed FIR. If the facts and circumstances of the present case and sequence of the events are taken into consideration, it properly explains the delay. It is common knowledge that the incident like rape, more so when the perpetrator of the crime happens to be member of family or related therewith, which involves honour of the family and, therefore, there is reluctance on the part of the victim’s family to report the matter to the police and carry it to the court and, therefore, there is delay in the present case. It is an obvious on the part of the mother of the victim that she was initially reluctant to lodge report due to apprehension of defamation or stigma to her family as well as to the victim. 27. After appreciating all the facts and evidence on record, the prosecution has established the involvement of the accused in the said crime. Admittedly, the victim has a ‘fundamental’ and ‘human’ right to live free from any kind of fear, threat, danger or security at the hands of the members of the society. The trial Court after appreciating the evidence rightly come to the conclusion that the offence was established against the accused and considering the nature of the offence, convicted the accused by sentencing him for imprisonment for life. Admittedly, when the offence was proved against the accused, he is to be 18.appeal.524.2023.Judgment.odt (21) sentenced and while sentencing the doctrine of proportionality and suitable and deterrent punishment requires to be imposed. While awarding the punishment, a balance between the two sides and count upon the twin test of (i) deterrent effect, or (ii) complete reformation for integration of the offender in civil society requires to be striked. The criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The 'Victim' - the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the Court as a mute spectator. The cries of the victim should not go unheard. 28. Considering the above principles and by applying the same to the facts of the present case, it reveals that a victim girl of 10 years was subjected for sexual assault by the accused, who is her uncle in a very tender age and the victim has undergone the mental trauma. The accused, being in a position of trust and dominance over the victim, took undue advantage of these circumstances and committed heinous crime to fulfill his lust. The evidence on record sufficiently shows that a small girl who is subjected for the sexual assault and she has to lead remaining life with permanent scar as well as psychological impact on her life. 29. Children are the greatest gift of humanity and the 18.appeal.524.2023.Judgment.odt (22) sexual assault on children is most heinous crime. Section 5 of the POCSO Act, deals with aggravated penetrative sexual assault. Clause (n) of Section 5 states that whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child is said to commit aggravated penetrative sexual assault. The punishment for aggravated penetrative sexual assault given under Section 6 of the POCSO Act, which reads as under: 6. Punishment for aggravated penetrative sexual assault.—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous 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, or with death. Thus, minimum punishment provided is imprisonment which shall not be less than 20 years. 30. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories 18.appeal.524.2023.Judgment.odt (23) of sexual assaults on children. The Hon’ble Apex Court in the case of State of U.P. Vs. Sonu Kushwaha reported in AIR 2023 SC 3210, wherein it is observed that “Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology “shall not be less than….”, the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. It is further observed that apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim-child will be life-long. The impact is bound to adversely affect the healthy growth of the victim.” 31. There is no dispute that the age of the victim was less than 12 years at the time of the incident. Here, in the present case, the trial Court has awarded the maximum sentence i.e. imprisonment for the remainder of his natural life. Admittedly, 18.appeal.524.2023.Judgment.odt (24) the trial Court has not assigned any reason why the maximum punishment is imposed. Under Section 6 of the POCSO Act, the minimum sentence provided is imprisonment up to 20 years. The courts have been given discretion to award punishment of sentence of minimum 20 years or imprisonment for life. Where by using discretion punishment awarded is life, the same shall be imprisonment for the remainder of the person’s natural life. Hence, there is no mandate of law that under these provisions, the convict must be awarded life imprisonment. 32. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence, that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the judge in arriving at a sentence in each cases. The theory behind awarding the sentence is that wrong doer is to be deterred from committing a similar crime. Sometimes, the sentence is awarded looking to the desirability of keeping the accused out of circulation i.e. the preventive theory and sometimes the reformative theory or the retributive theory is 18.appeal.524.2023.Judgment.odt (25) to be applied. 33. Thus, the measure of punishment in a given case must depend upon the nature of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering position of appropriate punishment. Showing undue sympathy and imposing inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts do not protect the victim, the victim will lose the faith in the judicial system and, therefore, awarding lesser punishment when the offence is proved, would affront to the society. Therefore, it is the duty of the every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed and the circumstances of the offender. The object of sentencing to see that the crime does not go unpunished and the victim of the crime as also the society have the satisfaction that the justice has been done to it. 18.appeal.524.2023.Judgment.odt (26) 34. The penal code prescribes the maximum punishment for “rape” as imprisonment for ten years which may extend to life. Thus, legislative’s intent is that in extreme cases of “rape” the sentence to be imposed should be of imprisonment for life. Obviously, in cases less than the extreme, the sentence should be less. What would be instances of extreme cases of “rape”; first and foremost would be the acts of brutality which may accompany a “rape”. Second would the “trauma” inflicted other than the “trauma” of “rape”, e.g. where the “rape victim” is beaten and threatened with death etc… Third would be, whether the offender is in a dominating position and breaches the confidence of the victim, e.g. in near relation of the victim being the offender. 35. In this background, considering the circumstances under which the alleged incident has taken place, the tender age of the accused at the time of incident and the case would not cover under the extreme circumstances, we feel that the ends of justice would be served by reducing the sentence of life imprisonment for remainder of life awarded by learned Judge of the trial Court to the accused for offence under Section 6 of the POCSO Act and to a term of 20 years. Similarly, maximum punishment awarded, for offence 18.appeal.524.2023.Judgment.odt (27) under Section 6 of the POCSO Act, is without assigning any reason. Therefore, the said punishment is also required to reduced. 36. In view of the above, we, therefore, dispose of the appeal by modifying the sentence as per order below: ORDER (i) The criminal appeal is partly allowed. (ii) The judgment and order of conviction and sentence dated 23.01.2023 passed by learned Special Judge, Gondia in Special Child case No.113/2021 is hereby modified. (iii) The accused is convicted for the offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 and sentenced to suffer rigorous imprisonment for 20 years and to pay fine Rs.10,000/-, in default, to suffer further simple imprisonment for 1 years. (iv) In view of Section 42 of the Protection of Children from Sexual Offences Act, 2012, no separate sentence is required for offences under Sections 376(AB), 376(2)(f)(n) of the Indian Penal Code. (v) All the sentences shall run concurrently. (vi) The appellant is entitled for set-off in view of Section 428 of the Code of Criminal Procedure. (vii) Muddemal property being worthless be destroyed after the appeal period is over. Appeal stands disposed of. (RAJ D. WAKODE, J) (URMILA JOSHI-PHALKE, J) Sarkate. Signed by: Mr. A.R. Sarkate Designation: PA To Honourable Judge Date: 23/09/2026 20:11:53