Mohd. Imran Mohsinben Ali And Anr vs The State Of Maharashtra Anr
2022 Latest Caselaw 8032 Bom

                                               1 of 16               203-apeal-634-17 (Judgment)


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 634 OF 2017

                     1. Mohd. Imran Mohsinben Ali
                     2. Kamrunisabegam Mohsinben Ali                       ..Appellants

                            Versus

                     The State of Maharashtra & Anr.                       ..Respondents

                                                    __________

                     Ms. Manisha Jagtap a/w. Shubham Gade a/w. Mayuresh Ingale for
                     Appellants.
                     Smt. Veera Shinde, APP for State/Respondent No.1.
                     Mr. Veerdhawal Deshmukh, Appointed Advocate for Respondent
                     No.2.
                                                __________

                                              CORAM : SARANG V. KOTWAL, J.
                                              DATE : 19th AUGUST 2022
                     JUDGMENT :

1. The Appellants have challenged the Judgment and order

dated 15/07/2017 passed by the Designated Court under

Protection of Children from Sexual Offences Act, 2012, Greater

Bombay, in POCSO Case No.1136 of 2013. The Appellant No.1 was

original accused No.1. The Appellant No.2 was original accused

No.2. The Appellant No.2 is mother of accused No.1. The

Appellant No.1 was convicted for commission of offence Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2022.08.23 11:13:48 +0530 Gokhale 2 of 16 203-apeal-634-17 (Judgment)

punishable U/s.363, 366 and 376 of I.P.C. r/w. Section 4 of the

Protection of Children from Sexual Offences Act, 2012 (for short

'POCSO'). He was sentenced to suffer R.I. for 7 years and to pay a

fine of Rs.50000/- and in default of payment of fine to suffer R.I.

for six months. The Appellant No.2 was convicted for commission

of offence punishable U/s.363 of IPC and was sentenced to suffer

R.I. for one year and to pay a fine of Rs.2000/- and in default of

payment of file to suffer R.I. for two months. The Appellant No.2

was acquitted from the charges of commission of offence

punishable U/s.109 of IPC and Section 17 of POCSO Act. Out of

the fine amount, Rs.15,000/- was directed to be paid to the victim.

The benefit of set off U/s.428 of Cr.p.c. was extended to both the

appellants.

2. The record shows that the appellant No.1 has already

completed his sentence and he was released on 19/06/2020.

3. Heard Ms. Manisha Jagtap, learned counsel for the

appellants, Smt. Veera Shinde, learned APP for the

State/Respondent No.1 and Shri. Veerdhawal Deshmukh, learned 3 of 16 203-apeal-634-17 (Judgment)

counsel for the Respondent No.2.

4. The prosecution case is that the victim in this case was

about 12 and half years of age at the time of lodging of F.I.R. She

was having love affair with the Appellant No.1. In the month of

September 2013 they had established physical relations. The

Appellant No.1 told about their affair to the Appellant No.2, who

in turn, approached the victim's mother and put-forth a proposal of

marriage after the victim attained majority. However, the victim's

mother refused. It is the prosecution case that, on 10/10/2013 the

Appellant No.1 and the victim eloped and went to West Bengal

which was the native place of the Appellant No.1 and 2. The

Appellant No.1 and the victim stayed there for 4 to 5 days. On

15/10/2013, police came there and took the Appellant No.1 and

the victim back to Mumbai. This was done pursuant to

investigation carried out in C.R.No.271 of 2013 registered at Sahar

police station under section 363 and 366 of IPC. The F.I.R. was

lodged by the victim's mother at about 12.05a.m. on 11/10/2013.

During investigation, both appellants were arrested. The

statements of victim and other witnesses were recorded. The 4 of 16 203-apeal-634-17 (Judgment)

victim was sent for medical examination and at the conclusion of

investigation, charge-sheet was filed. The case was committed to

the Special Court. During trial, the prosecution examined eight

witnesses and at the conclusion of the trial, the Appellants were

convicted and sentenced as mentioned earlier. The main witnesses

for the prosecution were the victim, her mother, the Medical

Officer, the Head of School where the victim studied and the

Investigating Officer.

5. Learned trial Judge relied on the evidence of these

witnesses and convicted both the appellants. As far as, the

Appellant No.2 is concerned, learned Judge also relied on the

statement of the victim recorded U/s.164 of Cr.p.c. in reaching the

conclusion that the Appellant No.2 had helped the Appellant No.1

in abducting her to West Bengal.

6. Learned counsel for the Appellant submitted that, even

as per the prosecution case, it was a consensual relationship. The

age of the victim was not established by cogent material and,

therefore, both the appellants should be acquitted. According to 5 of 16 203-apeal-634-17 (Judgment)

learned counsel for the Appellants, in any case, the Appellant No.2

has not played any role and the prosecution has not proved the

offence against her.

7. Learned counsel for the Respondent No.2/victim, as well

as, learned APP, on the other hand submitted that, there is no

reason to disbelieve the evidence of the victim and her mother.

Apart from that, there are corroborative pieces of evidence

supporting their evidence. The date of birth of the victim is

properly established through the evidence of school record. Even

the role of the Appellant No.2 is deposed by material witnesses,

therefore, conviction and sentence should be maintained.

8. The main witness in this case, obviously, is the victim

herself. She is examined as P.W.1. She has stated that, she had four

brothers and one sister. Her father was driving auto rickshaw for

livelihood. Her mother was working as a maid servant. Her date of

birth was 02/01/2001. In the year 2013 she was studying in 8 th

standard in a school at Sakinaka, Mumbai. She used to go to

school at 6.30a.m. and used to return at 12.45p.m. She has 6 of 16 203-apeal-634-17 (Judgment)

deposed that, the Appellant No.1 was her friend. She knew him

since three years before the incident. He was residing in the

neighbourhood. She along with her friends used to go to his house.

At that time, the Appellant No.2 was at her native place. She has

deposed that the Appellant No.1 established physical relations on

2-3 occasions with her in his house. He told about this to the

Appellant No.2. The Appellant No.2 brought a pregnancy testing

kit, but the PW-1's test was negative. The appellant No.1 had

consumed phenyl. The Appellant No.2, therefore, came to PW-1's

house and told her mother that the Appellant No.1 and PW-1 were

having love affair and that both families should perform their

marriage. PW-1's mother refused. The Appellant No.2 insisted for

their marriage, but PW-1's mother was firm in her refusal. PW-1

has further deposed that the Appellant No.2 told her mother that,

they had booked tickets for Kolkata. PW-1's mother told her that,

she would not sent PW-1 with them. On the next day, the

Appellant No.2 and her husband left for Kolkata. PW-1 has further

deposed that on 10/10/2013, the Appellant No.1 booked the

tickets for Kolkata for himself and PW-1. The PW-1 eloped with 7 of 16 203-apeal-634-17 (Judgment)

him. They started from Kurla railway station. They changed many

trains and reached Kolkata. She went to the house of the Appellant

No.1's grand-mother. In the meantime, the Appellant No.2 had

called the Appellant No.1 asking for their whereabouts. At that

time, the Appellant No.1 had told her that, they were coming to

Kolkata. The Appellant No.1 and PW-1 stayed with Appellant

No.1's grand-mother for two days. On 15/10/2013, police from

Mumbai came there and took them to the Court and then they

were brought to Mumbai on 18/10/2013. On that day, her

statement was recorded. Her clothes were seized. She was sent for

medical examination on 19/10/2013. Her statement was recorded

U/s.164 of the Cr.p.c. PW-1 was shown her School Leaving

Certificate.

In the cross-examination, she accepted that, before

giving her deposition in the Court, the police had readover her

statement to her and she was told to depose as per the statement.

She was asked about certain omissions from her police statement

and the statement recorded U/s.164 of Cr.p.c. But the omissions

are not of much significance. She agreed that, when the Appellant 8 of 16 203-apeal-634-17 (Judgment)

No.1 took her with him, she did not raise any shouts. She did not

know the address of the Appellant No.1's house. She has explained

that, under the pressure of her parents she had lodged complaint

against the accused and at the instance of her mother she had

given her statement to the police.

9. PW-2 is mother of PW-1. She has deposed that, on

02/10/2013 the Appellant No.2 approached her. PW-2's husband

had gone to Bengaluru. The Appellant No.2 told her about love

affair between the Appellant No.1 and PW-1 and that the

Appellant No.2 wanted to perform their marriage. PW-2 has

deposed that, she had refused. She also deposed that the Appellant

No.1 had consumed phenyl and, therefore, on that day the

Appellant No.2 had approached her with a proposal of marriage.

The Appellant No.2 told her that, they could wait for 3 to 4 years.

She told the PW-2 that, they had booked tickets for Kolkata and

they had also booked ticket for PW-1, but again PW-2 refused. Her

neithbours also tried to convince the Appellant No.2. After that,

the appellants left.

9 of 16 203-apeal-634-17 (Judgment)

10. On 10/10/2013, PW-1 had left for school, but she had

not returned. PW-2 then suspected that the appellants must have

taken PW-1 to Kolkata. PW-2 approached the police and gave her

F.I.R., which was registered U/s.363 and 366 of IPC. The F.I.R. is

produced on record at Exhibit 40. It was registered at Sahar police

station vide C.R.No.271 of 2013. She has further deposed that,

PW-1 returned on 18/10/2013 with police and Appellant No.1.

In the cross-examination, she accepted that the police

had read-over her statement to her in the Court. She also accepted

that, in her F.I.R. she had not mentioned the Appellant No.2 as one

of the suspects. She had not informed the police between

02/10/2013 to 11/10/2013 i.e. from the date when the Appellant

No.2 had approached her and the date on which the victim had

eloped with the Appellant No.1. The documents regarding victim's

age were produced by this witness at Exhibit 45. The documents

were the School Leaving Certificate and the Aadhar Card. Both

these documents show the victim's date of birth as 02/01/2001.

11. PW-3 Mangila Prajapati was the owner of a medical 10 of 16 203-apeal-634-17 (Judgment)

shop. In October 2013, the Appellant No.2 had purchased

pregnancy testing kit from his shop.

In the cross-examination, he admitted that, he has not

told the police as to when the Appellant No.2 had purchased the

pregnancy testing kit and he did not have any proof of such

purchase. His statement was recorded belatedly on 27/10/2013.

Even this witness was read-over his police statement before his

deposition.

12. PW-4 Dr. Ashok Aanand was the H.O.D. of Gynecology at

Grant Medical college. He had examined the victim along with Dr.

Kiran Yadav on 19/10/2013. He has deposed that, victim's hymen

was torn and based on that, he opined that sexual intercourse

could not be ruled out. He admitted that, during interaction with

the victim, it was revealed that, it was a case of love affair. The

medical papers are produced on record at Exhibit 48.

13. PW-5 Mohan Waghmare, P.I. was the police officer who

had filed the charge-sheet.

14. PW-6 Bhagwan Khare, P.S.I. had carried out major part of 11 of 16 203-apeal-634-17 (Judgment)

the investigation. He had arrested the Appellant No.1 on

16/10/2013 at West Bengal. The victim and the Appellant No.1

were brought to Mumbai in October 2013 by him. He has deposed

that, train tickets were recovered at the instance of Appellant No.1.

In the cross-examination, he was asked questions as to

why F.I.R. was not immediately sent to the Magistrate. He has

produced the panchanama showing recovery of tickets, but

contrary to his deposition, panchanama mentions that the tickets

were produced by the Appellant No.2. Those tickets do not bear

reservation in the name of a particular person. The panchamama is

produced at Exhibit 55.

15. PW-7 P.S.I. Padma Aalgundi had recorded statement of

the victim.

16. PW-8 Ram Motilala was the in-charge Head Master of

B.M.C. School. He produced the School record showing the date of

birth entered in the register. The date of birth was mentioned as

02/01/2001.

This is the evidence led by the prosecution.

12 of 16 203-apeal-634-17 (Judgment)

17. So far as, age of the victim is concerned, there is

sufficient material on record in the form of documentary evidence

produced by mother of the victim, as well as, by PW-8. There is no

reason to doubt this documentary evidence, which was maintained

during the course of business. The date of birth of the victim was

02/01/2001 and the incident had taken place since September

2013 to October 2013. At that time, she was below 18 years of

age. That fact is established. Therefore, though, it is submitted that

the relationship was consensual, but even if the Appellant No.1

had established physical relations with her consent, her consent is

immaterial and the offence charged against him is proved. The fact

of establishing physical relations is deposed by the victim-PW-1

herself. There is no reason, whatsoever, to doubt her version. Her

case was consistently that, there was consensual relationship

which had resulted in the Appellant No.1's establishing physical

relations on few occasions in and around September 2013.

Though, the medical evidence does not reveal much, there is no

reason to doubt PW-1's version in that behalf. There is nothing in

her cross-examination which would suggest that, she was not 13 of 16 203-apeal-634-17 (Judgment)

telling the truth. Her deposition to that extent is corroborated by

her statement recorded U/s.164 of Cr.p.c. The victim's love affair

with the Appellant No.1 is consistently deposed by PW-1 herself

and her mother PW-2. The fact of sexual intercourse is also

corroborated by the evidence of PW-3 who has deposed that the

Appellant No.2 had bought a pregnancy testing kit. The victim's

case is that, after the Appellant No.1 told the Appellant No.2 about

relationship between PW-1 and the Appellant No.1, the Appellant

No.2 had bought that kit and had performed the test; which was

negative. All these factors do show that, there was physical contact

between the Appellant No.1 and PW-1. Thus, as PW-1 was below

18 years of age, her consent is absolutely immaterial and the

offence charged against the Appellant No.1 stands proved against

him.

18. As far as, Appellant No.2 is concerned, she is convicted

only for commission of offence punishable U/s.363 of IPC. The

evidence shows that the Appellant No.1 had consumed phenyl and

the Appellant No.2 being a helpless mother had to approach PW-2

with a proposal of marriage. In that situation, her conduct was 14 of 16 203-apeal-634-17 (Judgment)

natural. The question is whether she had helped the appellant

No.1 in taking PW-1 to West Bengal. In that behalf the deposition

of PW-1 is important. She has specifically stated that when the

Appellant No.1 had established physical relations, the Appellant

No.2 was residing at her native place in West Bengal. After the

Appellant No.1 told the Appellant No.2 about his love affair, she

approached PW-2 and put-forth proposal for marriage. After PW-2

had refused, she had come back. PW-1 has specifically stated that,

after this, the Appellant No.2 had left for West Bengal with her

husband. That was somewhere around 03/10/2013. After all this,

the Appellant No.1 suggested to the PW-1 that they should elope

together to West Bengal and they in fact, went by different trains

to West Bengal starting from Kurla railway station on 10/10/2013.

In this, the Appellant No.2 has not played any role. Even after

reaching Kolkata, the couple had stayed at the house of Appellant

No.1's grand-mother. In her deposition, the PW-1 has nowhere

stated that the Appellant No.2 had in any manner helped the

Appellant No.1 in taking the PW-1 to Kolkata. Only on one

occasion she had made an inquiry regarding their whereabouts.

15 of 16 203-apeal-634-17 (Judgment)

But she had not taken any active part in the Appellant No.1 taking

away the victim to Kolkata. The prosecution has not brought on

record any contradiction by putting a specific question to PW-1

about her version in her statement recorded U/s.164 of Cr.p.c.

Therefore, reading only deposition of PW-1, it does not show that

the Appellant No.2 had played any role in taking away PW-1 to

West Bengal. The evidence of prosecution in that behalf falls short

of establishing the case against the Appellant No.2 beyond

reasonable doubt. To that extent, benefit of doubt must go to the

Appellant No.2. The Appellant No.2 was acquitted from the

allegation of commission of offence punishable U/s.109 of IPC and

U/s.17 of POCSO. This also is significant. This also means that she

had not helped the Appellant No.1. No further charge was

specifically framed against the Appellant No.2 under POCSO.

19. Considering the above discussion, following order is

passed:

ORDER

i) The Appeal on behalf of the Appellant No.1 16 of 16 203-apeal-634-17 (Judgment)

Mohd. Imran Mohsinben Ali is dismissed.

ii) The Appeal on behalf of the Appellant No.2

Kamrunisabegam Mohsinben Ali is allowed.

iii) The Appellant No.2 is acquitted of all the

Charges framed against her.

(SARANG V. KOTWAL, J.)