Mohammed Mumtaz Ahamed vs The State Of Maharashtra And Anr
2023 Latest Caselaw 1488 Bom

                                                      1 / 16                  202-APEAL-153-21.odt

                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION

                                              CRIMINAL APPEAL NO.153 OF 2021

                           Mohammed Mumtaz Ahamed
                           Age 50 years, Indian inhabitant,
                           Occ.: Servant, residing at
                           Flat No.11, Fardeen Court,
                           5th Floor, S.B.S. Road, Colaba,
                           Mumbai.
                           Presently lodged at Aruther Road
                           Prison, Mumbai.                                 .... Appellant

                                           versus

                           1.        State of Maharashtra
                                     Through Colaba Police Station

                           2.        XYZ                                   .... Respondents
                                                               .......

                           •       Mr. Jehangir M. Khajotia, Advocate for Appellant.
                           •       Mr. S. R. Agarkar, APP for the State/Respondent No.1.
                           •       Ms. Savita Yadav, (Appointed) Advocate for Respondent No.2.

                                                     CORAM        : SARANG V. KOTWAL, J.
                                                     DATE         : 14th FEBRUARY, 2023

                           JUDGMENT :

1. The Appellant has challenged the Judgment and Order

dated 05/02/2021 passed by the Designated Judge under Digitally signed by MANUSHREE MANUSHREE V V NESARIKAR NESARIKAR Date:

2023.02.17 Protection of Children from Sexual Offences Act, 2012, for 14:39:38 +0530

Nesarikar 2 / 16 202-APEAL-153-21.odt

Greater Bombay, in POCSO Special Case No.283 of 2018. By the

impugned Judgment and Order, the Appellant was convicted

and sentenced as follows ;

(a) He was convicted for commission of offence punishable u/s 354 and 354-A of the Indian Penal Code. But no separate sentence was imposed on him under these sections, in view of section 42 of the Protection of Children from Sexual Offences Act (POCSO), 2012.

(b) He was separately convicted for commission of offence punishable u/s 10 of POCSO and was sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer rigorous imprisonment for one month.

(c) The Appellant was given set off u/s 428 of Cr.P.C.

2. Heard Mr. Jehangir M. Khajotia, learned counsel for the

Appellant, Ms. Savita Yadav, learned counsel for the Respondent

No.2 and Mr. S. R. Agarkar, learned APP for the State.

3 / 16 202-APEAL-153-21.odt

3. The prosecution case is that the victim's date of birth is

26/02/2008. The incident had occurred on 25/03/2018. The

victim along with her mother and aunt was travelling in a taxi

from CSMT to Colaba. On the way, the Appellant requested that

he be taken to Colaba along with them. He sat on the front seat

of the taxi. He suggested to the mother of the victim that the

victim could sit on his lap. It is the prosecution case that while

travelling in the taxi, the Appellant touched her private parts

and breast. When everybody got down at Colaba, the victim

immediately complained to her mother about this Act. The

Appellant was nearby. The victim's mother confronted him. The

mob gathered and caught the Appellant. Somebody from the

crowd took him to the police station. The victim and her mother

also reached the police station. The FIR was lodged and the

Appellant was arrested. The investigation was carried out. The

statements of the witnesses were recorded. At the conclusion of

the investigation, the charge-sheet was filed. The case was

committed to the Special Court.

4 / 16 202-APEAL-153-21.odt

4. During trial, the prosecution examined the victim, her

mother, the victim's aunt, the person who had taken the

Appellant to the police station and the police officers. The

learned Judge believed the prosecution case and convicted and

sentenced the Appellant.

5. The defence of the Appellant was of total denial.

6. The victim was examined as P.W.2. She has deposed

that she was residing at Colaba with her parents and younger

sister. Her date of birth was 26/02/2008. She was studying in 6 th

standard. On 25/03/2018 it was a Sunday. Her family had

decided to go to Panvel to see her grandfather. However, since

the train was too late, they did not go to Panvel, but instead

returned back to CSMT. They hired a taxi to go to Colaba. She

was sitting on the front seat. All the others were sitting at the

back seat with her mother. Her aunt Rajani and her sister were

sitting on the back seat. At that time, the Appellant came there.

He also sat on the front seat. P.W.2 was about to go to the back 5 / 16 202-APEAL-153-21.odt

seat. The Appellant told her mother that P.W.2 could sit on his

lap. During their travel he touched her breast and her private

parts. When she was about to tell that fact to her mother, he

pressed her mouth. They got down at Colaba Sweet market.

P.W.2 started crying. She narrated the incident to her mother.

They saw that the Appellant was present there. P.W.2 shouted.

Crowd gathered there. The Appellant started running. The

crowd caught him. He was brought to the police station. P.W.2

then narrated the incident to the police. She was referred for

medical examination. Her statement was recorded u/s 164 of

Cr.P.C. She identified the Appellant in the Court.

During cross-examination, she explained that her aunt

Rajani was residing in a separate room in the adjacent lane from

their house. She could not give details about the timing when

they started from CSMT station. Her house was at 5 minutes

walking distance from Colaba Sweet Market. There was a gap

between the driver's seat and the passenger's seat in the front

side of the taxi. She could not tell as to how many people had 6 / 16 202-APEAL-153-21.odt

gathered in the crowd when the Appellant was apprehended.

Two persons from the crowd had accompanied them to the

police station. She was not asked to identify the Appellant in any

Test Identification Parade. She had not told the police in her

police statement that her date of birth was 26/02/2008. Then

there were some minor omissions put to her from her police

statement.

7. P.W.1 was the mother of the victim. She has narrated

the incident in the same manner as was narrated by P.W.2. Their

version about the incident was consistent. After going to the

police station, FIR was lodged. It is produced on record at Ex.11.

P.W.1 produced the birth certificate of the victim at Ex.12. It was

issued by the Village Development Officer, Usroli. It mentioned

that the victim's date of birth was 26/02/2008. Her name was

mentioned in the birth certificate and the registration was made

on 07/03/2008. The birth certificate also mentioned the address

of the victim as the same address which is mentioned in her

deposition.

7 / 16 202-APEAL-153-21.odt

8. P.W.1 has deposed that in the taxi she herself, the

victim, P.W.1's sister-in-law Rajani and her other daughter were

travelling. One more lady, to whom P.W.1 referred to as the

maternal aunt, had also boarded the taxi. These three elderly

ladies and the younger daughter were sitting on the rear seat of

the taxi.

The cross-examination was mainly directed towards

the identity of the third lady, who was travelling with them.

P.W.1 could not recall her name immediately. But she stated that

the said lady was her friend and also her maternal aunt. P.W.1

further deposed in the cross-examination that there was a rear

view mirror and two side mirrors in the taxi. After reaching

Colaba, she paid the fare first. They got down and then the

unknown passenger got down. P.W.1 had identified the Appellant

in the Court at the time of recording of her examination-in-chief.

She was further cross-examined on some minor omissions from

her statement which was recorded as her FIR. However, her FIR

substantially corroborated her case.

8 / 16 202-APEAL-153-21.odt

9. P.W.3 Rajani Chordekar was travelling with P.W.1 and

P.W.2 in the same taxi as mentioned earlier. She has deposed

about the incident in exactly same manner as was deposed by

P.W.1 and P.W.2. She has also identified the Appellant before the

Court.

She was cross-examined about the locality of their

residence and about the third lady travelling with them. There

was hardly any cross-examination in respect of the actual

incident. She admitted that she had not noted down the number

of the taxi. She was also not called by anybody for identifying

the Appellant.

10. P.W.7 Mayur Merchande was the person who had taken

the Appellant to the police station after the crowd had

apprehended him. He has deposed that on 25/03/2018 at about

09.45 p.m. he was going to a medical shop from Colaba market.

He was standing opposite Colaba Sweet Market. One taxi was 9 / 16 202-APEAL-153-21.odt

standing there. There were some women and one man near the

taxi. The women were shouting and the crowd gathered there.

He rushed there. One girl, who was about 9-10 years of age, was

telling her mother that the uncle had touched her on her private

parts and breast, when she was in the taxi. The crowd started

manhandling that man. He then apprehended that man and

made him sit on his motorcycle. He also took help of his friend

Sachin. The Appellant was made to sit in between himself and

Sachin on his motorcycle and then he was brought to Colaba

police station. He also identified the Appellant before the Court.

In the cross-examination, he stated that when he had

reached the spot, the women were getting down from the taxi.

There was no other taxi in that vicinity. He did not note down

the taxi number. His police statement shows that it was recorded

on 26/03/2018. Though he has deposed that it was recorded on

25/03/2018.

In his further cross-examination he has deposed that 30 10 / 16 202-APEAL-153-21.odt

to 50 people had gathered at the spot at that time. The police

did not visit the spot afterwards. Though there was a police

booth in Colaba, at that time no police officer was present in

that booth. There was no traffic constable present. He was

confronted with a slightly contradictory statement from his

police statement, where he had stated that he came to know

about the name of the pillion rider at the police station. Whereas

according to him he was knowing the said person Sachin since

before, as they were friends.

11. P.W.4 PSI Babaso Salunkhe was present at Colaba

police station when the informant, the victim and others came to

the police station. P.W.1 then lodged her FIR. He recorded

statements of P.W.7 Mayur Merchande, Sachin Kamble and P.W.3

Rajani Chordekar. The accused was brought to the police station

and was arrested by him. The Arrest Panchanama was produced

on record at Ex.18. Then he referred the victim and the

Appellant for medical examination. Some minor omissions from

P.W.1's FIR were proved by him in his deposition.

11 / 16 202-APEAL-153-21.odt

12. P.W.5, WPSI Kamal Karche, had recorded the victim's

statement on 26/03/2018. She proved some minor

contradictions from the victim's police statement.

13. P.W.6 API Gawade had conducted the further

investigation and had submitted the charge-sheet.

In the cross-examination he deposed that he did not

record the statement of anyone from Colaba Sweet Mart or the

occupants of that building. He explained that the statement of

one Ishwarsingh Purohit from Colaba Sweet Mart was recorded

by PI Sadanand Mane. He did not conduct any ossification test

of the victim. He had not visited any office or hospital to verify

the date of birth of the victim. He had not recorded the

statement of the Gram Vikas Adhikari to verify genuineness of

Ex.12. He denied the suggestion that the Appellant himself had

gone to the police station to lodge a report because he was

beaten by the mob and instead of taking his complaint, a false

case was lodged against him.

12 / 16 202-APEAL-153-21.odt

This, in short, was the prosecution case.

14. Learned counsel for the Appellant submitted that the

victim's age is not proved beyond reasonable doubt. The identity

of the third lady travelling with the victim and her mother, is not

established. She was a fictitious person. The number of the taxi

was not noted. There is no investigation about that taxi at all. It

was the only taxi parked at the spot. Therefore, the taxi driver's

identity and evidence was necessary. He submitted that even

otherwise it is impossible to believe that the incident could not

have taken place when the victim's mother and aunt were sitting

right behind, on the rear seat of the taxi. The victim did not

raise any shouts at all. He submitted that it can be a case of

mistaken identity because no Test Identification Parade was

held. He submitted that the Appellant's defence is probable. He

was beaten by the mob because of some misunderstanding and

when he had gone to lodge his FIR, instead of taking his FIR, he

was made an accused in the FIR lodged by the P.W.1. He 13 / 16 202-APEAL-153-21.odt

submitted that there were too many omissions and

contradictions in the evidence of the witness P.W.1, P.W.2 and

P.W.3 compared to their police statements.

15. Learned counsel for the Respondent No.2 as well as

learned APP opposed these submissions. They submitted that the

conduct of the victim was absolutely natural. There was no

reason for the victim or her mother to implicate the Appellant

falsely. There was nothing to show that the victim or her mother

held some grudge against the Appellant. The Appellant was

caught immediately. Therefore, there was no scope for arguing

that it was a case of mistaken identity. Holding of Test

Identification Parade was not necessary because the Appellant

was caught at the spot.

16. I have considered these submissions. The most

important feature in this case is the deposition of the victim

P.W.2. At the time of incident, she was about 10 years of age.

Therefore, she had sufficient understanding of the incident and

of the intention of the Appellant. Her conduct was absolutely 14 / 16 202-APEAL-153-21.odt

natural. The victim along with her mother and aunt started from

CSMT in a taxi. The Appellant joined them and on his assurance,

the victim's mother allowed the victim to sit on his lap. The

Appellant took advantage of the situation and touched her on

her private parts and on her breast. Though there was rear view

mirror and side mirrors to the taxi, it was not necessary that the

victim's mother would keep on watching the front seat. When

the victim had tried to utter something, the Appellant had

pressed her mouth. In any case, it was an awkward situation for

the victim. Therefore, as soon as she got down from the taxi, she

immediately told her mother about the incident. There was

absolutely no time gap between getting down from the taxi and

telling her mother about the incident. She had immediately

narrated the incident and the acts of the Appellant to her

mother. Both of them raised shouts and therefore crowd

gathered there and the Appellant was caught at the spot. P.W.7

with the help of his friend took him to the police station. This

sequence of events shows that there was no scope for concocting

a false story. The victim, who was of sufficient understanding, 15 / 16 202-APEAL-153-21.odt

had narrated the incident immediately to her mother and the

Appellant was immediately caught at the spot. There is no gap

in these events, as also, there is no lacuna in the prosecution

case. The identity of the third lady will not make much

difference to the prosecution case. In any case, there is no

reason to disbelieve the P.W.1 that the third lady was also

travelling with them. Non-examination of that third lady will not

make any difference in this case because P.W.1, P.W.2 and P.W.3

have consistently deposed about the incident as mentioned

earlier. The most important evidence is that of the P.W.2, the

victim herself and I do not find any infirmity in her deposition.

There is presumption u/s 30 of the POCSO, which the Appellant

has not discharged. The defence has not shown any possible

reason as to why the Appellant would be implicated falsely by

the victim or her mother.

17. The birth certificate of the victim was produced by

P.W.1. It was a public document. The birth was registered

immediately on 07/03/2008 after the birth of the victim on 16 / 16 202-APEAL-153-21.odt

26/02/2008. Therefore, there is no reason to doubt this birth

certificate, which in any case was a public document and was

admissible.

18. The omissions referred to by the defence counsel were

rightly ignored by the learned Trial Judge by labelling them as

insignificant omissions. I agree with the Trial Judge on that

count. Those omissions are absolutely insignificant and they do

not affect the prosecution case in any manner.

19. With the result, I do not find any merit in the Appeal.

The Appeal is accordingly dismissed.

(SARANG V. KOTWAL, J.)