Bombay High Court

Mohd. Khatir Shaikh Alias ... vs State Of Maharashtra And Anr on 7 February, 2023

Bench: S. V. Kotwal

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO.917 OF 2022


Mohd. Khatir Shaikh alias
Murgiwala Chacha                             ....Appellant
           Versus
State of Maharashtra and another             ....Respondents

                                   .....

                             WITH
              INTERIM APPLICATION NO.2805 OF 2022
                             WITH
                CRIMINAL APPEAL NO.917 OF 2022

                                -----
Mr. Veerdhawal Kakade, Advocate (appointed) for the Appellant.
Smt. M.R. Tidke, APP, for the Respondent No.1-State.
Mr. R.S. Alange, Advocate for the Respondent No.2.
                                -----


                          CORAM : SARANG V. KOTWAL, J.

                          DATE      : 7th FEBRUARY, 2023
ORAL JUDGMENT :

1. The appellant has challenged the judgment and order

dated 29.1.2021 passed by the Designated Judge under Protection

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of Children From Sexual Offences Act, 2012 (hereinafter referred

to as the 'POCSO Act') for Greater Bombay in POCSO Special Case

No.329/2018. The appellant was convicted and sentenced as

follows :

(i) The appellant was convicted for commission of the

offence punishable under Section 6 of the POCSO Act

and was sentenced to suffer RI for ten years and to pay

fine of Rs.3,000/-; and in default of payment of fine to

suffer RI for one and half months.

(ii) He was further convicted for commission of the offence

punishable under Section 10 of the POCSO Act and was

sentenced to suffer RI for six years and to pay fine of

Rs.1,000/-; and in default of payment of fine to suffer RI

for fifteen days.

The substantive sentences were directed to run

concurrently. He was granted set-off under Section 428 of Cr.P.C.

The appellant was acquitted from the charges of commission of

the offences punishable under Section 377 of IPC and under

Sections 4 & 12 of the POCSO Act.


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2. Heard Shri Veerdhawal Kakade, learned appointed

counsel for the appellant, Smt M.R. Tidke, learned APP for the

respondent No.1-State and Shri R.S. Alange, learned counsel for

the respondent No.2.

3. The prosecution case is that the victim was five years

old. His date of of birth was 12.4.2012. The incident took place

on 4.4.2018 at about 11.30 a.m.. The appellant took him to an

isolated place and committed the offences which were defined

under Section 377 of IPC and under Section 3 of the POCSO Act.

Since the victim was below 12 years of age, the allegations were

in respect of the offences of aggravated penetrative sexual assault.

The victim boy came home and started crying. On enquiries made

by his mother, he told her about the incident. His mother and one

neighbour confronted the appellant who begged for forgiveness.

After that, the victim's mother and the neighbour went to the

police chowki. The FIR was lodged vide C.R. No.115/2018 at

Wadala T.T. Police Station, Mumbai. The appellant was arrested.

The statement of the victim was recorded. Both the appellant and

the victim were sent for medical examination. Their clothes were

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seized and sent for chemical analysis. The statements of witnesses

were recorded and at the conclusion of the investigation, the

charge-sheet was filed.

4. During trial, the prosecution examined eight witnesses

including the victim, his mother, a neighbour, the medical officers,

the carrier who carried the articles to the Laboratory and the

investigating officers. The appellant's defence was that three

women, including the victim's mother, were claiming the land

which was in the appellant's possession. He had kept his articles

in that portion of land. They were pressuring him to remove his

articles from that place. They even set his articles on fire. His

hand-cart and the articles were burnt; and this false case was filed

against him because of this enmity.

5. The victim boy is examined as PW-1. He has deposed

as follows :

His date of birth was 12.4.2012. He was residing with

his parents, a brother and a sister at Wadala. He used to go to a

school. The appellant resided near the creek where lot of articles

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were kept. PW-1 was playing with his friends in the evening. The

appellant made him sleep on a plank in his house. He did

something on his anus. He removed his underwear and

performed some act on that part. When PW-1 came home, he

removed his underwear and started crying. His mother asked him

the reason. He told her that the Murgiwala Chacha had done

something on that part. He showed the house of Murgiwala

Chacha to his mother. He had gone to the police station. His

statement was recorded. His medical examination was conducted.

His statement under Section 164 of Cr.P.C. was recorded. He

identified the appellant from the photograph affixed in the arrest

form.

In the cross-examination, he deposed that his school

began at 7.00 a.m.. He used to return alone from the school. On

the date of incident, he had returned home at the lunch time. The

appellant's house was at some distance from his house. His father

did not purchase chicken from the appellant's shop. After the

incident, there was a quarrel between his parents and the

appellant. His mother had beaten the appellant on that day. He

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denied the suggestion that his mother had explained to him about

what to depose before the Court.

6. PW-2 is the mother of the victim. She produced his

birth-certificate which is taken on record at Exhibit-23. It shows

his date of birth as '12.4.2012'. She has deposed that on

4.4.2018, the victim was playing on the road. The appellant

called him. At that time, she was filling water. After some time,

the victim came home crying. He removed his underwear and kept

on crying. She enquired with him. At that time, the victim told

her that the appellant did something at his anus and that he was

having pain. The victim took her to the appellant's house. She

confronted the appellant. He tendered his apology and said that

he had committed a mistake. Then, PW-2 went to the police

station and lodged the FIR. The FIR is produced on record at

Exhibit-24. The police recorded statement of the victim. He was

sent for medical examination. His statement was recorded under

Section 164 of Cr.P.C.. PW-2 had shown the spot of incident to

the police. She handed over clothes of the victim to the police.




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In the cross-examination, she stated that she could not

read the contents of her report. She did not understand Marathi.

The FIR was in Marathi. At the time of filling water, all the doors

were open and there was rush at the water tap. PW-5 Radheshyam

Yadav was the owner of their room. The victim's school timing

was between 7.00 a.m. to 12.00 p.m. The school was fifteen

minutes walking distance from their house. The water was

supplied in their area at about 11.50 a.m.. She had gone to the

police station at 12.00 noon with the victim and Radheshyam.

They were in the police station till 5.00 p.m.. She volunteered

that she first went to the police chowki, then came to the spot and

after that went to the police station. Her husband was not present

in the police station. She deposed that she did not see the incident

but had observed that the victim's half-pant was wet and there

were stains. She had given the victim's clothes to the police. She

denied the suggestion that her husband owed dues to the

appellant.

7. PW-5 Radheshyam Yadav was a neighbour and the

landlord of PW-2's family. He has deposed that on 4.4.2018, PW-2

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approached him with PW-1. The victim-PW1 told him about the

incident. PW-5 along with PWs-1 & 2 went to the appellant's

house and confronted him. He apologized and said that he had

committed a mistake. PW-5 then accompanied the victim and his

mother to the police station. In his presence, PW-2 handed over

the victim's clothes to the police. The seizure panchnama was

prepared in his presence. It is produced on record at Exhibit-33.

He identified the clothes in the Court.

8. PW-6 Sadashiv Shetty was a pancha in whose presence

the clothes of the appellant were seized after his arrest. The

seizure panchnama is produced on record at Exhibit-36. It

mentions that the appellant was given other clothes to wear and

the clothes worn by him were seized.

9. PW-4 WHC Khandekar had carried the clothes and

other articles to the FSL.

10. PW-3 Dr. Narendra Kumar was the Medical Officer. He

had examined the victim and the appellant. He has deposed that

on 4.4.2018, the victim was brought to Sion Hospital. The history

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was given by the victim's mother that on 4.4.2018 at 1.30 p.m.,

the appellant took the victim to a lonely place. He removed the

underwear of the victim and masturbated on the external genitals

of the victim. The victim came home and told about the incident

to his mother. The report was lodged. PW-3 specifically deposed

that there was no history of anal intercourse. The appellant had

tried to shut mouth of the victim to prevent him from shouting.

On general physical examination, he observed that bright seminal

stains were present on groin and monspubis. There was one

abrasion on inner side of left lower lip of the size 0.2 cm x 0.2

cm., which was red in colour. The genitals were normal. There

was no injury on the genitals. The swabs and samples were

collected and handed over to the police. He had given opinion

that evidence of sexual assault could not be ruled out. The

medical report is produced on record at Exhibit-26.

On 5.4.2018, he examined the appellant; and on his

examination he found that there was nothing to suggest that the

appellant was incapable of performing sexual intercourse. His

swabs and samples were collected and handed over to the police.

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In the cross-examination, he admitted that age of the

injury in column No.5 was not mentioned. According to PW-3,

since the colour of the injury was mentioned as red, it meant that

it was a fresh injury.

11. PW-7 PSI Amol Salunkhe was the first investigating

officer. He was attached to Wadala T.T. police station as PSI. The

informant came to his police station. Her statement was recorded

by WPSI Vidya Pawar in the presence of this witness. He

identified the FIR at Exhibit-24. He then went to the spot of

incident and prepared the spot panchnama which is produced on

record at Exhibit-34. He seized the clothes of the victim. He

arrested the appellant. The arrest panchnama is produced on

record at Exhibit-38. He seized clothes of the accused. He then

referred the victim and the appellant for medical examination.

12. PW-8 PI Anil Surve was the second investigating

officer. He had referred the victim for recording his statement

under Section 164 of Cr.P.C. He had sent the articles to FSL. He

had filed the charge-sheet after completion of the investigation.



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13. Apart from this oral evidence, the prosecution

produced the CA reports on record at Exhibits-8, 15 and 16. The

CA reports show that there was blood on the clothes of the

appellant. There was no blood on the clothes of the victim.

Semen was not detected on the clothes of the victim and the

appellant. No semen was detected on the swabs taken from the

victim.

14. Learned counsel for the appellant submitted that the

appellant is falsely implicated. The victim has deposed that the

incident had taken place in the evening, whereas the evidence of

PW-2 and the prosecution case is that the incident has taken place

in the morning at around 11.30 a.m. to 2.00 p.m.. He submitted

that the appellant has given explanation as to why he was

implicated falsely. The victim's mother wanted to take possession

of the small place of the appellant where he had kept his articles.

15. He submitted that the medical evidence does not

support the prosecution case. The medical history is different.

There is no independent evidence showing that the victim was

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taken to a secluded place. The spot of incident is not clearly

described.

16. Lastly, he submitted that, at the highest, the case

would not fall under the defining section of 'aggravated

penetrative sexual assault'. He further submitted that the

appellant was acquitted from the charges of commission of offence

under Section 377 of IPC and therefore, it is clear that there was

no penetration.

17. Learned APP as well as learned counsel for the

respondent No.2 submitted that there is no reason to disbelieve

the victim. Though there is some discrepancy about the time of

incident, the learned Trial Judge has properly appreciated the

evidence and has observed that since the FIR was lodged in the

afternoon itself, the incident could not have been taken place in

the evening. They submitted that the act of the appellant falls

within the definition of 'penetrative sexual assault' because he has

manipulated the private parts of the victim causing penetration.


18.          I have considered these submissions.       As far as the


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evidence of the prosecution witnesses is concerned, it does appear

that some incident had taken place. To that extent, the evidence

of PWs-1, 2 and 5 is consistent. The victim had immediately

narrated the incident to PW-2 who along with PW-5 had gone to

the house of the appellant and had confronted him. Thereafter, all

of them had gone to the police station and had lodged the FIR.

Therefore, there was no scope to concoct a false story.

19. Though there is discrepancy about the time of

incident, considering the young age of the victim and the time gap

from the date of incident and the date of deposition, some

concession can be given to the victim, who was five years of age at

the time of the incident and seven years of age at the time of

recording of his evidence. In any case, as rightly observed by the

learned Trial Judge, the FIR was lodged at 1.30 p.m. and the time

of incident mentioned in that FIR was 11.30 a.m. to 11.45 a.m. on

4.4.2018. Therefore, the prosecution has proved that some

incident had taken place at that time on 4.4.2018.

20. The most important question in this case is exactly to

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what extent the appellant had committed this offence and

whether it would amount to penetrative sexual assault as defined

under Section 3 of the POCSO Act. The victim has stated that the

appellant did something on his anus. He performed some acts on

his anus. PW-2 has also deposed that the victim told her that the

appellant had done something on his anus. Though this statement

is vague, the statement of the victim does indicate that the

appellant had committed some act. The history given to the

Medical Officer was that the appellant had masturbated on the

external genitals of the victim and that there was no history of

anal intercourse. Therefore, the evidence regarding penetrative

sexual assault is lacking.

Section 3 of the POCSO Act reads thus :

3. Penetrative sexual assault. - A person is said to commit "penetrative sexual assault" if -

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

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(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."

21. The description of the act mentioned by the victim

read together with the medical history does not show that the

ingredients of Section 3 of the POCSO Act are satisfied. However,

the evidence does show that the offence of sexual assault as

defined under Section 7 of the POCSO Act is made out. Section 7

of the POCSO Act reads thus :

"7. Sexual assault. - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

22. Since the victim was below 12 years and since his age

was not in dispute, the provisions of Section 9(m) of the POCSO

Act gets attracted. It is defined as 'aggravated sexual assault'

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because the victim was below 12 years. It is made punishable

under Section 10 of the POCSO Act.

23. The CA report also does not support the theory of

penetrative sexual assault. There was neither any blood nor any

semen stains on the clothes, including half pant of the victim. The

blood on the clothes of the appellant was not connected with the

victim. The medical examination of the victim does not show that

he had suffered any bleeding injury. The evidence of PW-3 also

shows that the genitals were normal and no injury was present on

genitals. PW-3 had observed minor abrasion on the inner side of

the lower lip; and he had concluded that it could be because the

victim's mouth was pressed. The opinion was also that the

evidence of sexual assault could not be ruled out. However, there

was no opinion expressed about the penetrative sexual assault.

The observation of the medical officer about semen stains on groin

of the victim is not supported by the CA reports.

24. The learned Trial Judge in paragraph-23 of her

judgment has observed that touching the anus by the appellant

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show that he intended to cause penetration and, therefore, his act

would fall under Section 3(c) of the POCSO Act. However,

touching the private parts would fall within the definition

provided under Section 7 and not under Section 3 of the POCSO

Act. To that extent, the learned Trial Judge was not right.

She has further observed that the offence under

Section 377 of IPC was not proved but since the appellant had

manipulated the private parts of the victim, the offence under

Section 6 of the POCSO Act was committed. This reasoning also

does not show as to how the ingredients of Section 3 of the

POCSO Act were fulfilled.

In paragraph-28, the learned Judge has further

observed that the appellant had manipulated the private parts of

the victim so as to cause penetration but actually there was no

penetration. Based on this observations, the minimum sentence of

ten years was awarded. This observation again is contradictory

and, therefore, cannot be sustained. With the result, I am of the

opinion that the prosecution has not proved that the appellant had

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committed an offence of aggravated penetrative sexual assault

punishable under Section 6 of the POCSO Act but he has

committed the offence of sexual assault which was aggravated

under Section 9 because the victim was below 12 years of age. It

was punishable under Section 10 of the POCSO Act. Therefore,

the conviction and sentence recorded under Section 6 of the

POCSO Act will have to be set aside.

25. I have heard the parties for the quantum of sentence

for the offence punishable under Section 10 of the POCSO Act.

Learned APP and learned counsel for the respondent No.2

submitted that the maximum sentence under Section 10 of the

POCSO Act be imposed. Learned counsel for the appellant invited

my attention to the discussion in the Trial Court's judgment

regarding the mitigating circumstances in this case. Learned

Judge has observed that the appellant had a family consisting of

his wife and five daughters. Three daughters were married and

he had the responsibility of two daughters and wife. He also was

looking after his brother who was blind. He was from a poor

financial background. These circumstances are already mentioned

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in the Trial Court's judgment. They are mitigating circumstances

in favour of the appellant. The minimum sentence under Section

10 of the POCSO Act is five years and it could extend to seven

years. The learned Trial Judge has sentenced the appellant to RI

for six years. Considering the mitigating circumstances, the

minimum sentence provided under Section 10 of the POCSO Act

will meet the ends of justice. Hence, the following order :

:: O R D E R ::

     i.     The appeal is partly allowed.


     ii.    The conviction and sentence under Section 6 of the

Protection of Children From Sexual Offences Act, 2012

recorded by the Designated Judge under the POCSO

Act for Greater Bombay vide judgment and order

dated 29.1.2021 passed in POCSO Special Case

No.329/2018 are set aside.

iii. The conviction of the appellant under Section 10 of

the POCSO Act is maintained. However, instead of

sentence of six years, the appellant is sentenced to

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suffer RI for five years and to pay fine of Rs.1,000/-

and in default of payment of fine to suffer RI for

fifteen days.

iv. The appellant is granted set off under Section 428 of

Cr.P.C.

v. The rest of the clauses in the operative part of the

impugned order which are not inconsistent with this

order are maintained.

vi. Criminal Appeal is accordingly disposed of. With the

disposal of the appeal, nothing survives in the interim

application. It is also disposed of.

Digitally signed by PRADIPKUMAR PRADIPKUMAR PRAKASHRAO PRAKASHRAO DESHMANE

(SARANG V. KOTWAL, J.) DESHMANE Date: