Shaikh Anees S/O. Shaikh Hussain ... vs The State Of Maharashtra
2022 Latest Caselaw 7690 Bom

                                                                        Apeal-559-2019.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           CRIMINAL APPEAL NO.559 OF 2019

          Shaikh Anees s/o Shaikh Hussain (Habib)
          Age : 27 years, Occu.:- Labour,
          R/o. Rengtipura, Near Aziz Dal, Aurangabad
          Tq. and Dist. Aurangabad                                     ... Appellant

                   Versus

1.        The State of Maharashtra
          For the Jinsi Police Station, Aurangbad

2.        XYZ                                                          ... Respondents
                                    ...
Mr. A. S. Gandhi, Advocate for appellant.
Mr. S. P. Sonpawale, Advocate for respondent No.1 - State.
Mr. A. A. Mundhe, Advocate for respondent No.2 (Appointed through
legal aid) (Absent).
                                    ...

                                    CORAM           : SMT. VIBHA KANKANWADI, J.

Reserved on : 28.06.2022 Pronounced on : 05.08.2022

JUDGMENT :-

. Present appeal has been filed by the original accused challenging

the conviction under Sections 4, 5(m) and (n) read with Section 6 of the

Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as the "POCSO Act") in Special POCSO Case No.56 of 2018

by the learned Special Judge (under POCSO Act), Aurangabad on

16.05.2019.

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2. The prosecution story is that the informant is the mother of the

victim. Victim was aged 3 years on 04.03.2018. The mother of the

victim lodged the report on 04.03.2018 stating that she was residing

with her husband and four children. On 02.03.2018 when the husband

of the informant was to proceed for Namaz at about 5.15 p.m., the

victim girl was insisting that she would go along with him, but then to

pacify her, her father gave her one rupee and told that she should take

some eatable from the shop. He then went for Namaz. Informant then

asked the victim to bring chowmein from the shop. Victim went running.

She returned after about half an hour along with the amount itself and

started saying as to what the accused has done to her by taking her to

his house. The victim told the informant that the accused had taken out

her pant and has done something with her private part, as a result of

which she was getting burning sensation. The informant thereafter

checked the private part of the victim and she could found that it had

redness and wet and the victim was crying. Informant then went to the

house of accused. Accused is the near relative of the victim and

informant. Mother of the accused was in the house at that time and

when informant asked as to what has been done with the victim, the

mother of the accused told that her son has not done anything.

Informant came back to her house and waited for the arrival of her

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husband. She was not having mobile. He returned around 11.00 p.m.

and then informant told him about the incident. Taking into

consideration the pain to the victim she was taken to Ghati Hospital at

about 2.00 a.m., but it was told that the doctor is not there and,

therefore, they came back to home and again gone to the hospital at

about 10.00 a.m. on the next day. The victim was admitted and then

treatment was started. Thereafter, when police arrived, the FIR was

lodged.

3. After lodging of the FIR, offence vide Crime No.45 of 2018 came

to be registered with Jinsi Police Station, Aurangabad and further

investigation was taken up.

4. P.W.5, P.S.I. - Varsha Kale has carried out the investigation. She

has collected the MLC papers, medical examination papers of the victim

girl as well as samples. Statement of the victim was got recorded in the

presence of lady members of Mahila Suraksha Samiti. Accused came to

be arrested. Panchanama of the spot was executed with the help of two

panchas. The clothes of the victim as well as accused came to be seized

through panchanama. All the seized articles were sent for chemical

analysis. Statement of the victim - girl as well as the informant was got

recorded under Section 164 of the Code of Criminal Procedure. The

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birth certificate of the victim was collected. Statement of other

witnesses were recorded and after the completion of the investigation,

charge-sheet came to be filed before the learned Special Judge (under

POCSO Act). After the accused appeared before the learned Special

Judge (under POCSO Act), Aurangabad, charge came to be framed at

Exhibit-8 under Section 376(2)(f) and (i) of Indian Penal Code and

under Section 4, 5(m) and (n) punishable under Section 6 of the POCSO

Act. The contents of the charge were read over and explained to the

accused - appellant in vernacular. He pleaded not guilty and the trial

has been conducted. Prosecution has examined in all six witnesses to

bring home the guilt of the accused. After considering the evidence

adduced by the prosecution, the learned Special Judge held the accused

guilty of committing offence punishable under Section 376(2)(f) and (i)

of Indian Penal Code as well as Section 4, 5(m) and (n) punishable

under Section 6 of the POCSO Act, however, no separate sentence has

been awarded for the offence under the Indian Penal Code. The accused

has been sentenced thus :-

1. The accused/appellant has been convicted for the offence punishable under Section 4 of the POCSO Act and thereby sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.3,000/- in default to suffer rigorous imprisonment for three months.

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2. The accused/appellant has been convicted for the offence punishable under Section 5(m) and (n) read with Section 6 of the POCSO Act and thereby sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs.5,000/- in default to suffer rigorous imprisonment for five months.

An amount of Rs.7,000/- has been directed to be given to the

victim through the guardian towards compensation from the amount of

fine in view of Section 357(1) of the Code of Criminal Procedure. This

sentence is under challenge in this appeal.

5. Heard learned Advocate Mr. Amol S. Gandhi for the appellant,

learned APP Mr. S. P. Sonpawale for respondent No.1 - State. Learned

Advocate Mr. A. A. Mundhe, who is appointed to represent the cause of

respondent No.2, is absent.

6. It has been vehemently submitted on behalf of the appellant -

accused that the victim, who is admittedly aged 3 at the time of

incident, was the cousin of the accused. It can be seen from the

evidence that has been adduced by the prosecution that the informant

P.W.1 has turned hostile. P.W.2 is the victim aged 3 years. She also

turned hostile, however, in view of some admissions extracted in her

cross-examination by learned APP, she was cross-examined on behalf of

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the accused and in her said cross-examination by the accused, she has

clearly stated that the accused has not done anything to her. He had not

removed her pant. In fact, she has stated that the accused was not at all

present at the said place at the time of incident. In spite of such

evidence, the learned Special Judge has convicted the accused. P.W.3

Supriya Chavan is the social worker in whose presence the spot

panchanama was executed and the clothes of the victim as well as

accused came to be seized. P.W.4 - Dr. Pratima Gaikwad is the medical

officer, who had examined the victim girl. Her testimony would show

that there were no injuries on the body of the victim and, in fact, she has

not stated that there was any injury to the private part of the girl. No

doubt, she had found there was redness to the labia majora, but that

cannot be taken as the only circumstance to prove penetrative sexual

intercourse. In fact, P.W.4 Dr. Pratima has not given any firm opinion

whether sexual intercourse had taken place or not. The medical

certificate cannot be taken as a piece of evidence, which is supporting

the prosecution case. P.W.5 P.S.I. - Kale is the Investigating Officer, who

had collected MLC No.44 of 2018. If the said MLC is perused, then it

has recital that the victim girl was admitted due to burn injuries

sustained on 02.03.2018 at about 6.30 p.m. at her house. If those

injuries are attributable to the alleged burn injuries, then it rules out the

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possibility of sexual intercourse. Further, in the cross-examination of

P.W.5 P.S.I. - Kale, it can be seen that she had informed the District

Women and Child Development Officer, Aurangabad by letter dated

05.03.2018, which was after the registration of the crime. Then how

P.W.3 Supriya could have remained present for execution of the

panchanama on 04.03.2018 in police station. The said panchanama

appears to have been executed afterwords by putting a previous date.

P.W.6 - Dr. Dnyaneshwar Dandegaonkar is the medical officer, who had

examined the accused and had taken the samples.

7. The learned Advocate for the appellant has further submitted that

the prosecution has not explained the delay caused in lodging the

report. The incident is stated to have taken place around 5.15 p.m. of

02.03.2018, but the FIR has been registered at about 17.25 hours on

04.03.2018. The husband of the informant has not been examined for

the reasons best known to the prosecution. Therefore, the learned

Special Judge ought to have acquitted the accused by holding that the

offence has not been proved beyond reasonable doubt. In the

alternative, submission has been made that if at all the medical evidence

was sufficient to show that there was some sexual assault, then at the

most, the case would file under Section 4 punishable under Section 8 of

the POCSO Act and the sentence can be reduced to the sentence which

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has been already undergone up till now. The appellant is in jail since

04.03.2018. In order to support his contentions, the learned Advocate

appearing for the appellant has relied on the decision in Mukesh @

Vicky s/o Suresh Dendule Vs. State of Maharashtra, [2018 DGLS (Bom.)

5], wherein it has been held that even if the evidence is accepted at face

value, the only offence which is made out is under Section 354 of Indian

Penal Code and Section 9 read with section 10 of the POCSO Act and,

therefore, sentence was reduced. Further, in Mohan Ambadas Meshram

Vs. State of Maharashtra, [2018 DGLS Bombay 641], it has been held

that the allegations in respect of sexual intercourse was not supposed to

be taken by the Court only in the backdrop of seriousness of allegations

in the mind. The evidence needs to be convincing and if not proved

beyond reasonable doubt, benefit of doubt to go to accused. When no

injury was found on body and genitals of victim despite the fact that the

accused was full grown man and victim child of merely six years, it was

held that the prosecution failed to prove the case beyond reasonable

doubt and the accused was acquitted in that case.

8. Learned APP strongly opposed the appeal and submitted that

though the informant and the victim have turned hostile, however, their

act of filing of FIR and their statements under Section 164 of the Code

of Criminal Procedure have been proved by the prosecution. Mere

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hostility of witnesses will not absolve the accused. Further, whatever

has been admitted by these two witnesses by way of questions those

were put in the nature of cross to them in their examination-in-chief will

have to be considered. The informant accepts that when the daughter

told her about the incident, she had then removed the pant of the victim

and saw that her private part has become reddish in colour and wet. She

has admitted that her statement was recorded under Section 164 of the

Code of Criminal Procedure by learned Judicial Magistrate First Class.

As regards the girl, who is 3 years, definitely later on when it appears

that the matter was compromised since the accused is the cousin of the

victim, the victim was tutored to say that nothing had happened to her.

When the learned APP had cross-examined the victim, while answering

question No.8, she has answered that she went crying to her mother and

told that the accused has removed her pant and inserted something in

her private part. No doubt, in the cross examination on behalf of the

accused she was bound to say all the things as told as per the accused in

view of the fact that the case was compromised. When heinous crime

has been committed, the hostility of the informant and the victim will

not affect the the prosecution story. P.W.3 - Supriya was the person in

whose presence P.W.1 - informant had given the FIR. The FIR Exhibit-18

bears the signature of P.W.3 also. So also, she was the person in whose

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presence the clothes of the victim as well as the accused came to be

seized. Even though it had come that P.W.5 P.S.I. - Kale had given

intimation to District Women and Child Development Officer on

05.03.2018, it was not the intimation for P.W.3 - Supriya Chavan to

report the police station. P.W.3 Chavan could be asked to remain present

on telephone call also. Further, in her cross-examination, she had stated

that the distance between her house and Jinsi Police Station is only 10 to

15 minutes. Therefore, her presence at the time of recording FIR cannot

be doubted. P.W.4 - Dr. Pratima has denied that the injury that was

noted by her on the victim was possible by fall. She has given clear

opinion that the injury noted by her on the private part of the victim was

the sign suggestive of forceful recent penetration of vagina and sexual

intercourse cannot be ruled out. Therefore, the conviction of the accused

for the offence punishable under Sections 4, 5(m) and (n) read with

Section 6 of the POCSO Act by the learned Special Judge was perfectly

correct and legal and it requires no interference at all.

9. At the outset, it is to be noted that P.W.1 - informant and P.W.2 -

victim have turned hostile. In fact, P.W.2 is aged only 3, however, for

both of them, the prosecution had sought permission to put question in

the nature of cross and then what was extracted from them under that

procedure is also required to be considered. In other words, merely

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because a witness turns hostile, his entire testimony cannot be

discarded. It has to be scrutinized and then it is required to be assessed

as to whether it is supporting the prosecution story or it is supporting

accused or there is any reason for the hostility of such a witnesses. P.W.2

- the victim is the person with whom the crime is stated to have been

committed. The concerned Special Judge had asked certain questions to

the child witness to ascertain whether she knows the importance of the

oath, however, when it was found that she does not understand

importance of the oath, her deposition has been recorded without

administering oath. In P. Ramesh Vs. State Represented By Inspector of

Police, [(2019) 20 SCC 593], the Hon'ble Supreme Court has held that :-

"Section 118 of the Indian Evidence Act 1872 deals with the competence of a person to testify before the Court. Section 4 of the Oaths Act, 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of 12 years. Therefore, if the Court is satisfied that the child witness below the age of 12 years is a competent witness, such a witness can be examined without oath or affirmation".

Further, after relying on the earlier decisions of the Hon'ble Apex

Court, it has been held that,

"16. In order to determine the competency of a child witness, the Judge has to form her or his opinion. The Judge is at liberty to test the capacity of a child witness

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and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the Court. In criminal proceedings, a person of any age is competent to give evidence is she/he is able to (i) understand questions put as a witness; and

(ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined".

10. Thus, it is seen that, in this case, after putting certain questions,

when the learned Special Judge found that the child witness does not

understand the importance/sanctity of oath, but it appears that it was

found that still her testimony can be recorded; the testimony has been

recorded without administering oath. Initially, the victim has stated that

the accused had not done anything to her, but when permission was

granted to learned APP to put questions in the nature of cross as

contemplated under Section 145 of the Indian Evidence Act, she has

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given certain favourable answers to the prosecution. She has admitted

that when her father was to go for Namaz, she was crying to go along

with him and, therefore, the father had given one rupee for purchasing

some sweet to her. Then further she admits that she went to her mother

while crying and told that the accused had removed her pant and

inserted something in her private part. She then identified her clothes

which were then seized. Thereafter, the cross has been conducted on

behalf of the accused. Major part of the same appears to be in the form

of defence that she along with another boy were playing near the

staircase and she slipped on the rounded pipe of the staircase causing

injury to her private part. Then she admits that the accused had not

done anything to her. Now, it is required to be considered as to whether

those admissions thereafter taken in the cross have wiped the evidence

given by her earlier or not. In order to assess the same, we cannot rely

only on the said testimony before the Court. But, it would depend on

the assessment of the testimony of her mother, the history that was

given by the mother to the medical officer when P.W.2 - victim was

medically examined, her statement recorded under Section 161 of the

Code of Criminal Procedure as well as Section 164 of the Code of

Criminal Procedure. It is to be noted from the record that her statement

under Section 164 of the Code of Criminal Procedure was not exhibited

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in the trial. It was not extracted from P.W.1 - the mother/informant as

to whether she was present when the victim's statement under Section

164 of the Code of Criminal Procedure was recorded by the learned

Magistrate. Therefore, we may not lay our hand to the said statement of

the victim under Section 164 of the Code of Criminal Procedure.

However, the other pieces of evidence are required to be considered.

11. P.W.1 - the mother/informant has deposed that the incident had

taken place on the second day, but she was unable to give the year and

month of the day. She has stated that on that day, the victim was

insisting to go to Namaz with father, but then father gave one rupee to

her and he left for Namaz. The victim had gone for taking sweet, but

returned after about half an hour while crying. She had asked the victim

as to what had happened, thereupon the victim told that she had gone

to the house of accused and then slipped. According to her in the

midnight, the victim woke up while crying and, therefore, they had

taken her to Ghati Hospital. Doctor gave medicine and they had gone to

their house. But again, in the morning, the victim started crying and

then she was again taken to hospital. According to her, except these

things nothing had happened to the victim. Thereafter, the prosecution

had sought permission to put questions in the nature of cross to the

informant and then she has admitted that the informant had removed

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the pant of the girl and could see that the private part of the victim had

become reddish and wet. She has admitted that she has signed the

consent form, but then denies that she had given history to the medical

officer stating that the accused has done heinous act with the victim.

She then admitted that her statement was recorded in the Court and in

her said statement (she was referring to her statement under Section

164 of the Code of Criminal Procedure), she has stated that heinous act

was committed by the accused with the victim and then she has signed

the said statement. She admitted the contents of her statement under

Exhibit-19. In her cross conducted on behalf of the prosecution, she has

clearly submitted that her relatives started insisting her to compromise

the matter with the accused by saying that the custody period of the

accused is sufficient for his punishment and this appears to be the

reason as to why P.W.1 was not supporting the prosecution story.

Thereafter, she went on to give admissions as desired by the accused in

the cross conducted on behalf of the accused. Therefore, with the

background that the victim has also turned hostile, the possibility of

victim being tutored by the mother as well as other relatives cannot be

ruled out. The admissions those have been given and the other facts

independently supporting the prosecution story will have to be taken

note of by the Courts in such situation.

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12. P.W.1 - informant has admitted her signature on FIR Exhibit-18.

The FIR Exhibit-18 also bears the signature of P.W.3 - Supriya. Merely

because a letter was sent to the District Woman and Child Development

Officer on 05.03.2018, we cannot doubt the presence of P.W.3 at the

time of reducing fir Exhibit-18. P.W.3 - Supriya has clearly stated that

she was present when the FIR reduced into writing and it was reduced

as per the narration of P.W.1 and then the informant had signed on

Exhibit-18. It has rather been extracted in the cross of P.W.3 - Supriya by

the accused that her house is situated at a distance of about 10-15

minutes and as a member Mahila Suraksha Committee, she used to visit

Jinsi Police Station frequently. She has specifically stated that the police

had called her at about 5.00 to 5.15 p.m. Therefore, her presence at the

time of narration of the FIR by P.W.1 has been rather supported from the

story extracted in the cross itself. All those facts, which have been then

extracted, have been tried to be denied by the accused in her further

cross-examination, which cannot be allowed. The testimony of P.W.4 -

Dr. Pratima, the medical officer, who had examined the victim, would

show that she had taken the history of the victim as narrated by the

mother. That history is then appearing in medical certificate Exhibit-34

which is corroborating to the FIR Exhibit-18. Thus, the prosecution

story and the contents of the FIR Exhibit-18 have been got proved

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through P.W.3 - Supriya as well as P.W.4 - Dr. Pratima. Under such

circumstance, the hostility of the informant is not at all fatal to the

prosecution. At the cost of repetition, it can be said that in view of

compromise and may be the pressure from the relatives of the husband,

the informant has resiled from her FIR. The other independent evidence

which is on record will have to be taken into consideration.

13. P.W.4 - Dr. Pratima has clearly stated that on examination of the

victim, she found no signs of injury on her body. But on examination of

genital region, she found that there was evidence of linear injury of

approximately 0.5 x 0.5 cm on right labia majora surrounded by

redness. She has opined that there were signs suggestive of forceful

recent penetration of vagina and, therefore, she has opined that the

sexual intercourse cannot be ruled out and then she issued the

certificate under Exhibit-34. In her cross-examination, she has denied

the suggestion that evidence on the linear of labia and majora of the

victim can be possible if the victim slipped from the rounded iron pipe.

She also denied that the injury found on the private part was not

confirmed and she has not given any confirm opinion about the sexual

intercourse. Again she has reiterated by denying that there was no such

incidents of forcible recent penetration on the person of the victim.

Thus, it can be seen from her testimony that she was very much confirm

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in saying that the injuries noted by her were sufficient to form the

opinion that it was penetrative sexual intercourse. We cannot under the

circumstance that P.W.2 - victim was tutored; try to tag her admissions

about slip on rounded pipe to her injury to the private part in view of

clear denial of the said suggestion by an expert and also in view of the

proof of contents of Exhibit-18 as well as the history that was got

narrated by P.W.4 - Pratima. This is the exact difference in the evidence

in Mukesh @ Vicky Suresh Dendule (Supra) and Mohan Ambadas

Meshram (Supra), where on the basis of the evidence before the said

Court, it was held that there was no penetrative sexual intercourse.

Those decisions are not helpful to the present appellant.

14. P.W.6 - Dr. Dandegaonkar, who had examined the accused, had

opined that the accused was found to be medically poor to perform

sexual intercourse. Though this witness had taken the samples and those

samples were sent for chemical analysis and the report of the chemical

analysis says that it was inconclusive and no semen was detected on the

clothes of the victim, we cannot give much importance to those reports.

The basic nature of the reports of a chemical analyzer are corroborated

in nature and not conclusive. The other evidence on record is then

sufficient to come to the conclusion that the victim was subjected to

penetrative sexual intercourse by the accused. With ulterior motive, the

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accused has tried to win over the informant and victim, but taking into

consideration the other evidence on record, still it can be said that the

prosecution had proved the offence beyond reasonable doubt. With this

kind of evidence, when there is evidence to prove the offence under

Section 5(m) and (n) of the POCSO Act, it was for the accused to rebut

the presumption which got conducted under Section 29 of the POCSO

Act. The defence that has been taken by the accused that the injury to

the victim was the result of slipping on the rounded iron rod of the

staircase cannot be considered as a piece of rebuttal. The accused has

not examined any other child, who was playing along with the victim at

the relevant time. Non examination of the husband of the informant

was not at all fatal. So also, when the contents of the FIR Exhibit-18

were proved, it can be said that the delay that was caused in lodging the

FIR was properly explained. Further, it can also be said that when the

delay could have been explained by the informant herself and she has

been won over by the accused, accused cannot blame the prosecution by

saying that the delay has not been explained. Much has been said about

the MLC that was initially given that the victim has sustained burn

injuries to the private part, but it is to be noted that no such suggestion

has been given in the cross either to P.W.1 - informant, P.W.2 - Victim

and P.W.4 - Dr. Pratima. If some Police Constable had taken a wrong

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entry that does not mean that the said MLC was correct and the further

acts by the informant are with some intention. The statement of the

accused under Section 313 of the Code of Criminal Procedure is totally

silent about the reason as to why a false case was filed against him. It

was absolutely not suggested to P.W.1 - informant that there was any

dispute between the informant and/or her husband with the parents of

the accused. The statement of the accused under Section 313 of the

Code of Criminal Procedure is also silent on the point that why police

should actively involve him. In other words, reason for his false

implication has not been given by the accused. Under such

circumstance, it can be certainly said that the learned Special Judge was

right in holding that the offences have been proved against the accused

beyond reasonable doubt.

15. For the offence under Section 4 of the POCSO Act, the accused

has been sentenced to suffer seven years of rigorous imprisonment and

for Section 5(m) and (n) punishable under Section 6 of the POCSO Act,

he has been sentenced to suffer rigorous imprisonment for ten years. In

fact, if we consider Section 6 of the Protection of Children from Sexual

Offences (Amendment) Act, 2019, it prescribes that whoever commits

aggravated penetrative sexual assault shall be punished with rigorous

imprisonment for a term which shall not be less than twenty years, but

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which may extend to imprisonment for life. Here, in this case, the

offence was committed on 02.03.2018 and, therefore, we are required to

consider the punishment that was prescribed prior to the substitution of

the punishment under Section 6 of the POCSO Act w.e.f. 16.08.2019.

Therefore, the minimum sentences have been imposed in this case,

which require no alteration at all in view of the fact that the age of the

victim at that time was only 3 years. There is no merit in the present

appeal. It deserves to be dismissed. Accordingly, it is dismissed.

[SMT. VIBHA KANKANWADI, J.]

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