Case Note & Summary
The High Court of Judicature at Bombay, Nagpur Bench, heard a death sentence confirmation reference and two criminal appeals arising from Special (POCSO) Case No. 27 of 2019 decided by the Special Judge, Buldhana. The trial court had convicted two accused persons, Sagar Vishwanath Borkar and Nikhil Shivaji Golait, for offences under the Indian Penal Code and the Protection of Children from Sexual Offences Act, 2012, and had sentenced them to death, life imprisonment, and other terms. The proceedings arose from an incident on the night of 26-27 April 2019, in which a nine-year-old girl was allegedly kidnapped, gang-raped, and threatened. The victim's father, a coolie working at APMC, Chikhli, lodged an oral report at Police Station, Chikhali, which led to registration of Crime No. 245/2019. The prosecution case was that at about 11:00 p.m. on 26 April 2019, accused no.1 and an unknown boy came near the family's tin shed on a scooty, consumed liquor, and later returned at about 1:00 a.m., took the sleeping victim away, and sexually assaulted her in a dark area near a burial ground. They inserted their urinary organs into her urinary place turn by turn, caused bleeding, and then threatened to kill her and her family if she disclosed the incident. The victim was left near Mounibaba temple and found by her parents. After medical examination, the victim's statement was recorded, and investigation was conducted by Police Inspector Gulabrao Wagh. The trial court framed charges under Sections 363, 366-A, 376(2)(j), 376(2)(m), 376(DB), 506 read with Section 34 of the IPC and Section 6 of the POCSO Act, and in respect of accused no.2, under Sections 3(1)(w)(i), 3(1)(w)(ii) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After trial, the Special Judge convicted both accused under Sections 363, 376(2)(m), 506 read with Section 34 IPC, Section 376(DB) read with Section 34 IPC, and Section 6 of the POCSO Act. Accused no.2 was additionally convicted under the Atrocities Act. The accused were acquitted under Section 366-A IPC. For the conviction under Section 376(DB) IPC, both accused were sentenced to death and ordered to be hanged by neck till dead. For Section 376(2)(m) IPC, they were sentenced to rigorous imprisonment for life. For kidnapping, criminal intimidation, and the Atrocities Act offences, separate terms of rigorous imprisonment and fines were imposed. The trial court made a reference to the High Court for confirmation of death sentence, which was registered as Criminal Confirmation Case No. 01 of 2020. The accused filed separate appeals, registered as Criminal Appeal No. 370 of 2020 (by Nikhil Shivaji Golait) and Criminal Appeal No. 423 of 2020 (by Sagar Vishwanath Borkar), challenging their convictions and sentences. The High Court admitted the appeals on 1 October 2020 and 28 October 2020 respectively and heard the reference and appeals together. The judgment was reserved on 5 August 2021 and pronounced on 7 September 2021. The provided text excerpt does not include the High Court's final findings, reasoning, or operative order; it only narrates the trial court proceedings and the prosecution case up to the stage of arranging panch witnesses for recording the victim's statement. The court's ultimate decision on the death reference and appeals is not stated in the excerpt.
Headnote
A) Criminal Law - Aggravated Penetrative Sexual Assault and Gang Rape - Sections 376(2)(m), 376(DB) IPC; Section 6 POCSO Act - Trial court convicted both accused for gang rape and aggravated penetrative sexual assault of a nine-year-old victim, sentencing them to death under Section 376(DB) IPC and life imprisonment under Section 376(2)(m) IPC. The death sentence was referred to High Court for confirmation. Held that the trial court convicted the accused for these offences. (Paras 1-2) B) Criminal Law - Kidnapping and Criminal Intimidation - Sections 363, 506 IPC read with Section 34 - Both accused were convicted for kidnapping and criminal intimidation, with sentences of rigorous imprisonment and fine. Held that the trial court convicted the accused for these offences. (Paras 1-2) C) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act - Offences of Atrocities - Sections 3(1)(w)(i), 3(1)(w)(ii), 3(2)(v) - Only accused no.2 was convicted under these provisions and sentenced to imprisonment and fine. Held that the trial court convicted accused no.2 for these offences. (Paras 1-2) D) Criminal Procedure - Death Sentence Reference - Section 366 CrPC - The Special Judge made a reference to High Court for confirmation of death sentence; High Court heard it together with appeals. Held that the reference was registered as Criminal Confirmation Case No. 01 of 2020. (Paras 3-4) E) Criminal Trial - Prosecution Case - Victim's Abduction and Sexual Assault - The prosecution alleged that accused took a nine-year-old girl on a scooty, raped her, and threatened her; the victim's father lodged an FIR. Held that the prosecution case was based on the victim's disclosure and medical evidence. (Paras 9-12)
Issue of Consideration
Whether the trial court's conviction of both accused under Sections 363, 376(2)(m), 376(DB), 506 read with Section 34 IPC and Section 6 POCSO Act is sustainable; whether accused no.2's conviction under Sections 3(1)(w)(i), 3(1)(w)(ii), 3(2)(v) of the Atrocities Act is sustainable; whether the death sentence imposed on both accused under Section 376(DB) read with Section 34 IPC should be confirmed or commuted; whether the trial court correctly appreciated the evidence of the victim and other witnesses.
Law Points
- Section 363 IPC kidnapping
- Section 376(2)(m) IPC aggravated rape
- Section 376(DB) IPC gang rape of minor
- Section 506 IPC criminal intimidation
- Section 6 POCSO Act aggravated penetrative sexual assault
- Sections 3(1)(w)(i)
- 3(1)(w)(ii)
- 3(2)(v) SC/ST Act
- death sentence reference
