Shaikh Saddam S/O. Shaikh Kadu vs The State Of Maharashtra
2021 Latest Caselaw 8960 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          CRIMINAL APPEAL NO.341 OF 2018

Shaikh Saddam s/o Shaikh Kadu,
Age : 22 years, Occu. Nil,
R/o Waladgaon, Taluka and
District Aurangabad                                             APPELLANT
                                                             (Original Accused)
       VERSUS

1.     The State of Maharashtra,
       through the Police Station
       Incharge Officer,
       Satara Police Station,
       Tq. and District Aurangabad                                RESPONDENT

2.     Shaikh Rehan Shaikh Ayyub
       Age : 11 years (Minor)
       through Guardian (Mother)
       Jareena Shaikh Ayyub,
       Age : 49 years, Occu. Business,
       R/o C/o Anwarbhai Kacchi,
       Infront of Kasimwali Darga,
       Near Karim Masjid, Padegaon,                              RESPONDENT
       Aurangabad                                                  (Victim)

                                      ----
Mr. Chetan T. Jadhav, Advocate for the appellant
Mr. R.B. Bagul, A.P.P. for the respondent/State
Mr. S.S. Panale, Advocate for respondent No.2
                                      ----

                                     CORAM : MANGESH S. PATIL, J.

                         DATE OF JUDGMENT RESERVED   : 08.07.2021
                         DATE OF JUDGMENT PRONOUNCED : 09.07.2021


JUDGMENT :

This is an appeal under Section 374(2) of the Code of

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Criminal Procedure against the judgment and order dated 02.01.2017 passed

by the Special Judge, Aurangabad in Special Case (POCSO) No. 12 of 2015,

convicting the appellant for the offence punishable under Section 4 read with

Section 3 of the Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as "POCSO Act") and Section 506 of the Indian Penal

Code and sentencing him to suffer rigorous imprisonment for ten years and

to fine of Rs.1000/-, in default to suffer rigorous imprisonment for one

month and rigorous imprisonment for two years and fine of Rs.500/-, in

default to suffer rigorous imprisonment for fifteen days, respectively.

2. Shorn of the verbiage, the allegations against the appellant are

to the effect that the victim (PW2), who was then barely seven years of age,

was flying kite. The appellant was also present there. Under the pretext of

fetching kite string, he asked the victim to fetch it from a nearby house. He

followed the victim, bolted the door from inside and committed penetrative

sexual assault by indulging in carnal intercourse. It is alleged that the

appellant also threatened the victim if the incident was disclosed. The victim

went back home while weeping and narrated the incident to his

grandmother. The landlady Archana (PW3) was also called. The parents of

the victim had gone for work. After their arrival, they were also narrated the

incident. The mother of the victim - Jarina (PW1) then took the victim to

the police station. The victim was sent for medical examination. In the

meanwhile, the FIR (Exh-18) was lodged and the offence was registered.

3 CRIAPL341-2018

3. The victim was medically examined by Dr. Vikas (PW5). The

perianal swabs were taken. A sample of the blood of the victim was also

drawn. The appellant was arrested. He was medically examined by Dr.

Nilesh (PW4). His blood sample was drawn. The jeans pant of the victim was

seized as also underwear of the appellant. All these samples and clothes

were sent for chemical analysis.

4. Though no semen was detected in the peri-anal swab, the blood

group of the victim was found as `O'. The blood group of the appellant was

also found to be `O'. So far as the clothes are concerned, the chemical

analysis report (Exh-63) certified that there were few blood stains ranging

from 0.5 cm to 2 cm in diameter, mostly on back portion of both legs, one

semen stain of 0.5 cm in diameter on back lower portion of right leg of the

victim's pant. Few blood stains were also found on the underwear of the

appellant of about 0.5 cm to 1 cm in diameter on front middle portion. The

semen detected on the pant of the victim was found to be `O' group and

blood stains that had appeared on the underwear of the appellant were also

found to be of `O' group.

5. Dr. Vikas (PW5), on examination of the victim, noticed that there

was a laceration of 6 x 2.5 cm subcutaneous deep, encircling the anal region,

reddish tenderness present and bleeding present at lacerated site. He formed

an opinion that the finding was consistent with recent forceful penetrative

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sexual assault. After receipt of chemical analysis reports, a final opinion was

sought from him and he once again confirmed that the findings were

consistent with recent forceful penetrative sexual assault (Exh-38).

6. After conclusion of the investigation, a chargesheet was filed in

the Special Court. The learned Special Judge conducted the trial and

convicted and sentenced the appellant as mentioned hereinabove.

7. The learned Advocate for the appellant would submit that there

is a delay in lodging the FIR. Though the incident is alleged to have taken

place at 10.00 a.m. and the mother of the victim Jarina (PW1) had reached

home at 11.00 a.m., it took her 15.10 hours to lodge the FIR though she

admits the distance between her residence and the police station to be of 10

to 15 minutes drive. He would further submit that even the version of the

victim does not appeal to the reasonable mind. Though it was not a holiday,

he had not gone to the school. He says that though other people were

around, it was only the appellant who was flying the kite with him. His

version that he was sent inside the house under the pretext of fetching kite

string is also improbable. The victim even states that the incident was going

on for about an hour, which further improbabalizes his version. Even there

is dispute about the exact place of the incident. There is no evidence to clear

the doubt about the actual place. There are no independent witnesses. The

learned Special Judge has grossly erred in casting the burden on the

appellant. The appellant is innocent and has been falsely implicated. The

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impugned judgment and order is grossly illegal and erroneous.

8. The learned A.P.P. and the learned Advocate for respondent No.2-

victim support the impugned judgment and order. They submit that there is

no material inconsistency in the evidence of the prosecution. Though there is

few hours' delay, no inference can be drawn much less about concoction.

Nothing could be elicited during the cross-examination of the prosecution

witnesses, particularly the victim (PW2) to disprove his version. The medical

evidence clearly corroborates his version. By virtue of Section 29 of the

POCSO Act, there is a presumption in favour of the victim. The appellant has

not been able to dislodge it. The learned Special Judge has rightly

appreciated the evidence and all the above mentioned facts and

circumstances, including in raising a presumption under Section 29 of the

POCSO Act and has rightly convicted and sentenced the appellant.

9. I have carefully considered the rival submissions and perused the

record. At the outset, it is necessary to note that though the appellant has

been convicted for the offence punishable under Section 4 read with Section

3 of the POCSO Act and sentenced to suffer rigorous imprisonment for ten

years. The State has not preferred any appeal for enhancement of the

sentence.

10. To begin with, as far as age of the victim (PW2) is concerned, the

appellant has not seriously disputed it at any point of time. According to the

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prosecution, the victim (PW2) was barely seven years of age on the date of

incident and was of around ten years on the date of his testimony. In fact,

this is an information which has been elicited during the cross-examination of

the victim's mother Jarina (PW1) wherein it has been solicited by way of

information that at the time of incident, her son was seven years of age. The

fact about his age has also not been sought to be disputed during the cross-

examination of victim (PW2) either. Even there is no cross-examination of

Dr. Vikas (PW5) on this point so as to dispute the age of the victim.

Consequently, one can safely proceed on the premise that the victim (PW2)

was indeed a child within the meaning of Section 2(1)(d) of the POCSO Act.

11. As far as the actual incident is concerned, obviously the

testimony of the victim (PW2) would be important. Since other prosecution

witnesses, particularly victim's mother Jarina (PW1) and the landlady

Archana (PW3) being not the eye witnesses, their version as regards the

incident is of no consequence.

12. So far as the testimony of victim (PW2) is concerned, suffice for

the purpose to observe that he has narrated the plight by saying that while he

was flying a kite with the appellant, the latter asked him to fetch kite string

from a nearby house, when he entered into it, the appellant followed him

and closed the door from inside and thereafter he narrated as to how the

appellant indulged in carnal intercourse. He thereafter stated as to how he

went home and narrated the incident to his grandmother and sister and

7 CRIAPL341-2018

thereafter, his parents took him to police station wherefrom he was sent to

Ghati hospital. A careful perusal of his cross-examination clearly shows that

the appellant has not been able to shake his trustworthiness. Inspite of

probing cross-examination, he could stick to the version as narrated in

examination-in-chief. One need to bear in mind that the incident had taken

place when he was barely seven years of age and the testimony was recorded

after about three years thereafter when he was almost ten years of age. If

one bears this fact in mind, his version that the duration of the incident was

about one hour cannot be said to be any exaggeration. It could be a sheer

matter of perception of the victim. No capital can be allowed to be made out

of his such a reply as to the duration of the incident. Pertinently, though it

was suggested to him that he was tutored by his mother and the Advocate, he

flatly denied it. More importantly, he denied the suggestion that he had

sustained the bleeding injury by fall.

13. All in all, inspite of probing attempt, the appellant has not been

able to shake victim's testimony in material particulars. More importantly,

even nothing could be elicited during his cross-examination so as to attribute

some ulterior motive to falsely implicate the appellant.

14. This takes us to the medical evidence. As has been mentioned

hereinabove, Dr. Vikas (PW5), is the Resident Doctor of Government Medical

College and Hospital, Aurangabad. He states to have examined the victim

aged seven years and to have noticed laceration and bleeding from the

8 CRIAPL341-2018

lacerated site, encircling the anal region. He opined about the finding being

consistent with the recent forceful penetrative sexual assault. Though it was

elicited during his cross-examination that the injury is possible by insertion of

some object other than penis, the suggestion and the information elicited is

without any basis or foundation in the cross-examination of the victim

(PW2). It has not been suggested to the victim (PW2) that he had sustained

the injury otherwise than by way of the alleged sexual assault. One can,

therefore, safely ignore this suggestion in the cross-examination of Dr. Vikas

(PW5).

15. As is mentioned hereinabove, the chemical analysis reports turn

out to the effect that blood group of the appellant as well as the victim is `O'.

The blood stains of human blood were found, both on the backside of the

victim's pant and on the front middle portion of the appellant's underwear.

Similarly, a semen spot of `O' group was also found on the backside of the

victim's pant. Such scientific evidence is clearly compatible with the

prosecution version about appellant having caused penetrative sexual assault

on the victim. Needless to state that Dr. Vikas (PW5), in his final opinion,

stuck to his preliminary opinion and certified (Exh-38) that the findings are

consistent with the recent forceful penetrative sexual assault, after going

through the reports of the chemical analysis.

16. In the result, the version of the victim about penetrative sexual

assault stands duly corroborated and confirmed by the medical evidence in

9 CRIAPL341-2018

the form of testimony of the Medical Officer - Dr. Vikas (PW5) and the

chemical analysis reports.

17. In this respect, one can also refer to the testimony of the

landlady Archana (PW3), who though turned hostile to the prosecution,

stated that she noticed some red stains on the back of the victim's pant when

she was called to his house. Her such narration has not been questioned

during her cross-examination. Meaning thereby, her version about having

noticed red stains on the back side of the victim's pant also is a material piece

of evidence corroborating the prosecution version.

18. As far as the legal aspect is concerned, a Special Court

conducting trial under the POCSO Act is expected to draw a presumption

under Section 29 of the POCSO Act, which reads thus :

"29. Presumption as to certain offences. - Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

19. As an exception to the principles which hitherto were governing

the criminal jurisprudence, Section 29 expects an accused person to prove

contrary else the Special Court has to presume that the offences under

sections 3, 5, 7 and 9 of the Act have been committed by the person.

Therefore, no fault can be found with the learned Special Judge in the matter

10 CRIAPL341-2018

in hand, in drawing such presumption and expecting the appellant to have

dislodged it. Apart from the fact that the cross-examination of the victim

(PW2) does not make out anything which would rebut the presumption, even

the appellant has been conspicuously silent about it during his cross-

examination under Section 313 of the Code of Criminal Procedure. If this be

so, the learned Special Judge was right in drawing the presumption and apart

from the evidence, relying upon such presumption to convict the appellant.

He has clearly considered the evidence in the proper perspective and has

come to a correct conclusion about prosecution having proved the guilt and

has rightly convicted and sentenced the appellant. There is no merit in the

appeal and it is liable to be dismissed.

20. The appeal is dismissed.

21. Since learned Advocate Mr. S.S. Panale was appointed by this

Court to represent respondent No. 2, he shall be paid fees of Rs.5000/-

(Rupees Five Thousand).

                                                   [MANGESH S. PATIL]
                                                       JUDGE



npj/CRIAPL341-2018





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