Bombay High Court
Rashid Sardar Baig vs The State Of Maharashtra And ... on 12 June, 2023
Bench: S. G. Mehare
1 42-CrAn-1422-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1422 OF 2023
IN APEAL/313/2023 WITH APEAL/313/2023
Rashid Sardar Baig,
Age 28 years, Occu. Labour,
R/o. Khospuri, Taluka Nagar,
District Ahmednagar .. Applicant
Versus
1. The State of Maharashtra
2. XYZ (Victim)
Through her Legal Gurdian (Informant)
Mother of the Victim .. Respondents
...
Mr. Shriraj R. Wakale, Advocate for Applicant;
Mr. Y. G. Gujrathi, A.P.P. for Respondent No.1;
Ms. Karishma Sanjay Sarin, Advocate appointed for Respondent
No.2/victim
...
CORAM : S. G. MEHARE, J.
DATE : 12-06-2023
PER COURT :-
1. Heard the learned counsel for the applicant, the learned
A.P.P. for respondent No.1/State and the learned counsel for
respondent No.2/victim.
2. The applicant is seeking suspension of the sentence to suffer
rigorous imprisonment for 20 years imposed upon him by the
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learned Additional Sessions Judge, Ahmednagar, in Special Case
No.549 of 2020, by judgment and order dated 13.02.2023, for the
offences punishable under Sections 376(2)(j), 376(3) of the Indian
Penal Code and Sections 6 and 10 of the Protection of Children
from Sexual Offences Act, 2012 (for short, "POCSO Act").
3. The learned counsel for the applicant has vehemently
argued that the prosecution has a case of penetration, but there
was no evidence with the prosecution. The prosecution alleged
that to cause penetration, the applicant has manipulated the body
of the child/victim to apply the coconut oil on her private part so
as to cause the penetration, but the prosecution did not prove that
the body of the applicant and accused and their clothes were
stained with oil. The C.A. report also not support such contention.
In the absence of corroborative evidence, barely recovery of
articles from the house of the applicant is not sufficient to believe
that the incident happened. The leading questions were put to the
victim about coconut oil bottle. The allegation of finding coconut
oil bottle in the house of informant did not prove the charges. A
coconut oil bottle is available in the house of most people. The
spot panchnama was drawn belatedly i.e. after the alleged
incident and arrest of the applicant. The spot panchanama were
prepared without notice to his mother who was living with him in
the house. Hence, recovery of the so-called articles falls under the
shadow of doubt. He harped upon the medical evidence which is
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not supporting the prosecution. The vulval redness found on the
private part of the victim is possible by itching. The learned
Additional Sessions Judge ignored such material aspect. The
prosecution did not prove the case beyond reasonable doubt.
Therefore, presumption under Section 29 of the POCSO Act would
not attract. He is also tried to point out the character of the
mother of the victim. This Court does not agree with it as it was
an independent case of the sexual assault with a small girl of 8
years. He would submit that in absence of cogent and reliable
evidence, the applicant ought not to have been convicted. The
prosecution did not have the sufficient material for which the case
of applicant has been tried. The prosecution has no case in
alternate of attempting to commit the offence of sexual assault
with a child. The applicant has a strong case on merit. The
evidence needs to be re-appreciated. The statement of the victim
cannot be accepted as a gospel truth. She being a minor is
amenable to tutoring. The mother has grievance that the
applicant did not pay her money when she demanded. Hence she
tutored her daughter to lead the evidence against him. The
applicant is 28 years unmarried boy. The applicant is well
acquainted with the mother of the victim and victim is also known
him. Since there are legal aspects involved in the case, the
sentence may be suspended.
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4. Per contra, the learned A.P.P. for respondent No.1/State and
the learned counsel for respondent No.2/victim have argued that
there were injuries on the right cheek of the victim and the back of
the accused. The first information report was lodged immediately.
So, there is no possibility of implicating the applicant falsely in the
crime. The defence of the accused is improbable. No mother
would put the life of her child at stake merely for non-paying the
money by the accused. The evidence of the victim inspires
confidence. The redness to the vulva supports the contention of
the prosecution. The applicant has manipulated the private part of
the child, so as to cause penetration into her private part, but that
attempt was failed. However, ingredients of Section 3 of the
POCSO Act and Sections 376(2)(j), 375(c) have been proved
against the applicant. The victim was 8 years old. She had no
reason to lie against the applicant. The learned Additional
Sessions Judge has correctly applied presumption under Section 29
of the POCSO Act. They have strongly opposed the application for
suspension of the sentence and prayed to dismiss the same.
5. Perused the papers. It is not in dispute that there was
redness on vulva of the victim. However, the Doctor opined that it
is possible by itching. The statement of the victim as regards the
manipulation of her private part is not corroborated by C.A. report.
The medical expert who examined the victim did not take pains to
form his final opinion by referring the C.A. report. No doubt the
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alleged offence against the accused is serious. Hence, the strict
proof was required.
6. After having gone through the papers and the impugned
judgment and order, the Court is of the view that various points
need to be considered on law and facts. The prosecution had no
case of manipulating the body of the victim or it was an attempt to
commit the sexual assault on the victim. However, the conviction
was imposed on manipulating the body of the victim so as to
cause the penetration into the private part of the victim. That
needs a detail hearing and examination of the evidence.
7. Considering the evidence available on record and little bit
discrepancy about the manipulation of the private part of the
victim by applying oil, the Court is of the view that discretion
under Section 389 of the Code of Criminal Procedure, may be
exercised in this case, though the offence is allegedly serious.
Hence, the order:-
i. The execution, implementation and effect of the sentence to
suffer rigorous imprisonment of twenty years imposed upon
the applicant by the learned Additional Sessions Judge,
Ahmednagar, in Special Case No.549 of 2020, by its
judgment and order dated 13.02.2023, is suspended till the
conclusion of the appeal.
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ii. The applicant be released on bail on executing P.B. and S.B.
of Rs.50,000/- with one solvent surety of the like amount, on
the conditions that,
(a) He shall not contact the victim or her mother till the
conclusion of appeal.
(b) He shall not involve in the similar crime.
(c) He shall not protract the appeal.
iii. Bail before the learned Additional Sessions Judge,
Ahmednagar.
iv. The Secretary, High Court Legal Services Sub-Committee,
Aurangabad, do pay the fee to the learned counsel
appointed for respondent No.2/victim as per the schedule.
v. List the appeal in due course.
( S. G. MEHARE )
JUDGE
rrd
