Bombay High Court
Sameer Shah S/O Salim Shah vs State Of Mha. Thr. Pso Ps Murtizapur City ... on 1 August, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:9258
203. cr.apeal.498.2021 .jud..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL (APEAL) NO. 498 OF 2021
Sameer Shah S/o. Salim Shah,
Aged about 21 yrs, Occ: Labourer,
R/o. Devran Road, Khadakpura,
Murtizapur, Distt. Akola
(At present District Prison, Amravati) .... APPELLANT
// V E R S U S //
1. State of Maharashtra,
Through Police Station Officer,
Police Station, Murtizapur City,
Tq. Murtizapur, Distt. Akola
2. XYZ (Victim),
Through complainant/Informant
in Crime No. 36/2019 registered
with Police Station Murtizapur City,
Tq. Murtizapur, Distt. Akola ... RESPONDENTS
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Mr. Naman Bhangade, Adv. h/f. Mr A.K. Bhangade, Advocate for the appellant
Ms Mukta Kavimandan, APP for the respondent No.1/State
None appears for respondent No.2
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 01/08/2024
ORAL JUDGMENT :
1 Heard finally with the consent of learned Advocates
for the parties.
203. cr.apeal.498.2021 .jud..odt
2 In this appeal, the challenge is to the judgment and
order, dated 25.10.2021, passed by the learned Additional
Sessions Judge, Akola, whereby the learned Judge, held the
appellant/accused guilty for the offence punishable under
Section 354(B) of the Indian Penal Code (for short 'the IPC')
and for the offence under Section 7 punishable under Section 8
and under Section 9 punishable under Section 10 of the
Protection of Children From Sexual Offences Act, 2012 (for
short 'the POCSO Act') and sentenced him to suffer rigorous
imprisonment for seven years and to pay a fine of Rs.10,000/-
and in default to suffer simple imprisonment for one month.
3 Background facts:
The victim involved, in this crime, is an
unfortunate girl, who was three years old at the time of the
incident. The wheels of the prosecution were put into motion
on the report of her grandmother to the Murtizapur police
station. It is stated that the incident occurred on 07.02.2019 at
203. cr.apeal.498.2021 .jud..odt
about 4:30 p.m. The informant is the grandmother of the
victim. She, alongwith the victim and her grandson, went to the
neighbour's house. The victim and grandson were playing in
an autorickshaw in front of her house. After some time, her
grandson came to her and sat with her. She inquired about the
victim girl. Her grandson told her that the victim had returned
to the house. The informant went to the house and found that
the victim was not there. Therefore, she went to search the
victim. On the way, she met her brother-in-law, who at the time
of the incident was nine years old and on inquiry, he told her
that one boy from the locality took the victim with him. The
informant took search of the victim. She noticed the victim
coming out of the house of the said boy. The victim was crying.
She consoled the victim and inquired with her about the cause
of her annoyance. The victim narrated the incident to her. The
informant went to the house of the accused. The informant
saw that the accused was lying naked in his house. The name of
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the said boy, according to the informant, is Sameer Shah S/o.
Salim Shah. The people gathered on the spot when the
informant raised the shouts. The people caught hold of the
accused and took him to the police station. The victim,
thereafter, narrated the incident to her in detail. The informant
went to the police station and lodged the report. On the same
day, at about 9:35 p.m., on the basis of her report, the crime
bearing No. 36 of 2019 was registered against the accused for
the above offences.
4 PW-8- Sangeeta Gawade conducted the
investigation into the crime. She recorded the statements of the
witnesses. She drew the panchanama of the spot. During the
course of the investigation, the clothes on the person of the
victim were seized. The accused was arrested. The coconut oil
bottle was seized from the spot. The victim was sent for
medical examination. On completion of the investigation, she
filed a chargesheet against the accused.
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5 Learned Additional Sessions Judge framed the
charge against the accused. The accused pleaded not guilty and
claimed to be tried. His defence is of a total denial. In order to
bring home guilt against the accused, the prosecution examined
eight witnesses. Learned Additional Sessions Judge on
consideration of the evidence held the accused guilty and
sentenced him, as above. The appellant is before this Court
against his conviction and sentence.
6 I have heard the learned Advocate for the appellant
and learned APP for the State. Perused the record and
proceedings.
7 Learned Advocate for the appellant submitted that
except the evidence of the interested witnesses, there is no other
independent evidence to prove the charge against the accused.
Learned Advocate took me through the record and pointed out
that neither the statement of the victim girl was recorded at the
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time of the investigation nor the victim girl has been examined
as a witness. Learned Advocate submitted that the evidence of
PW-1, the medical officer and the report of the medical
examination do not corroborate the version of the informant.
The medical evidence does not lend assurance to the testimony
of the informant. Learned Advocate submitted that the oral
evidence of PW-2, 3 and 5 is not consistent. Learned Advocate
submitted that PW-3 and 5 have tried to exaggerate the
account of the incident just to support the testimony of PW-2.
Learned Advocate submitted that the evidence of PW-2
informant cannot be believed because, on material aspects,
there are inconsistencies in her evidence. Learned Advocate
further submitted that the CA report is of no help to the case of
the prosecution because the prosecution has failed to adduce
cogent and concrete evidence to rule out the possibility of
tampering or manipulation of the samples. Learned Advocate
submitted that the learned Additional Sessions Judge has failed
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to consider all these material inconsistencies and lacunae in the
case of prosecution. In the submission of the learned Advocate
for the appellant, the conviction which has been based on the
evidence of interested witnesses cannot be sustained. Learned
Advocate submitted that the prosecution has miserably failed to
prove the charge against the accused. In his submission, the
accused deserves to be acquitted.
8 Learned APP submitted that there is no material on
record to believe the defence of the accused. In the submission
of the learned APP, the accused, on the basis of the material on
record, is not able to probabalise his defence of false
implication. Learned APP took me through the evidence of the
material witnesses and submitted that no suggestions have been
put to these witnesses about the enmity between the family of
the accused and the family of the informant for one reason or
another. Learned APP submitted that this defence was rightly
rejected by the learned Judge. Learned APP further submitted
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that in ordinary circumstances, the informant had no reason to
involve her granddaughter in such a serious crime. Learned
APP submitted that considering the stigmatic consequences
flowing from such a crime, there is always reluctance on the
part of the family members of the girl to report such a crime to
the police in the first instance. Learned APP submitted that the
evidence of the grandmother of the victim is sufficient to accept
the case of the prosecution. Learned APP took me through her
evidence and pointed out that when the incident was narrated
to her by the victim, she went into the house of the accused and
found that he was lying naked in the house. Learned APP
submitted that there is no delay in lodging the report. It is also
pointed out that the victim was immediately referred for
medical examination and the doctor, on examination, found
that there was redness over the medial aspect of both labia
majora and labia minora. The doctor found minimal redness
outside the hymen. Learned APP submitted that the evidence
203. cr.apeal.498.2021 .jud..odt
has been properly appreciated by the learned Judge. In short, it
is submitted that the well reasoned judgment and order does
not warrant interference.
9 In this case, the victim, on the date of the incident,
was three years old. The victim was not examined. Similarly,
her statement was not recorded either by the police or through
the Magistrate under Section 164 of the Code of Criminal
Procedure. The investigation officer has stated in her evidence
that after the registration of a crime, she made an inquiry with
the victim but she was unable to narrate the incident to her.
The CA report at Exh. 26 shows that on analysis of the clothes
of the victim and the vulval swab, vegetable oil was detected. It
is the case of the prosecution that the accused carried the victim
into his house and applied coconut oil over her vagina. The CA
report has not been seriously challenged by the accused. The
doctor has stated that save and except the redness over the
medial aspect of both labia major and labia minora, no other
203. cr.apeal.498.2021 .jud..odt
injury was noticed. The doctor found minimal redness outside
the hymen. It needs to be stated that the charge against the
accused is not of penetrative sexual assault. The charge against
the accused is of molesting the modesty of the victim and
aggravated penetrative sexual assault, as provided under Section
9 of the POCSO Act. The victim girl was three years old at the
time of the incident and therefore, could not testify before the
Court. There is nothing wrong in this. A child of 3-4 years is
hardly able to speak or express any act done with him or her.
However, such a child can communicate such incident to her
close persons. The question is whether the evidence of the other
witnesses, coupled with the medical evidence, is sufficient to
prove the charge against the accused or not. In order to find
out the answer to this question, it is necessary to minutely
scrutinise the evidence adduced by the prosecution.
10 PW-2 is the informant and grandmother of the
victim. In her examination-in-chief, consistent with the facts
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stated in her report, she has placed on record the vivid account
of the incident. She has narrated that her grandchildren were
playing in the auto with the victim girl. The said auto, which
was belonging to her, was parked near her house. She has
stated that after some time her grandson Akram came to her
and sat on her lap. She asked him about the victim. He told her
that the victim was playing in the autorickshaw. She went to the
house. On the way, she could not see the victim in the auto.
She has stated that when she went to home, she did not find the
victim at home. She took the search of her granddaughter.
While taking a search, on the way, Ayan met her. On inquiry
with him, he told that the victim was carried by the accused
into his house. They took a search of the victim. While taking
search they saw that the victim came out of the house of the
accused and she was crying. She has stated that, on inquiry, the
victim told her that the accused took her into his house. He
removed her salwar and applied oil to her private part. After
203. cr.apeal.498.2021 .jud..odt
this, the informant went into the house of the accused. She saw
that the accused was completely naked. She raised the shout.
The accused then put on his trouser and started running. She
has stated that the people caught hold of him and took him to
the police station. She has stated that thereafter, they went to
the police station and lodged the report.
11 PW-2 has been cross examined. Perusal of her
cross examination would show that she has not given any
admission of any significance to cause even the slightest dent to
the core of her evidence as to the occurrence of the incident and
the involvement of the accused in the incident. While
appreciating her evidence, it is necessary to keep in mind that
she had no reason to falsely implicate the accused in such a
serious crime. The defence of enmity has not been probablised.
There is no specific suggestion as to the enmity between the
two families for one reason or another. It is not out of place to
mention that the informant, without involving her
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granddaughter, could have concocted a story to falsely implicate
the accused. If she wanted to falsely implicate the accused, then
she would have created an imaginary story of molesting her
modesty at the hands of the accused. It is necessary to mention
that a crime of this nature, if brought into the public domain,
could result in cascading effects and consequences. The parents
or relatives of the girl, involved in such a crime, are always
reluctant to report the matter to the police, considering the
stigmatic consequences attached to such a crime. It is to be
noted that by reporting such a crime to the police not only the
future and career of the girl but also the reputation of the family
is put to stake. The attempt in such a crime by the family
member is to sweep such a matter under the carpet. The
reporting of a crime definitely jeopardise the future of the
victim girl and her reputation. In my view, therefore, this fact is
required to be born in mind while appreciating the evidence of
the relative of the victim.
203. cr.apeal.498.2021 .jud..odt
12 In this case, PW-2 is the grandmother of the victim.
The grandmother had no reason to involve her granddaughter
in such a serious crime. Her evidence, on minute scrutiny, is
found to be of stellar quality. Her evidence has not been
shaken despite gruelling and searching cross examination. No
admission of any significance has been elicited in her cross-
examination to doubt her credibility and truthfulness. The
conduct of the informant is consistent with the conduct of a
person of ordinary prudence placed in a similar situation. She
immediately took the search of her granddaughter.
13 PW-3 is her son and the father of the victim. He
also joined PW-2 to search the victim. PW-4 is a child witness.
The report was lodged without wasting any time to the police.
The panchanama of the spot of the incident was drawn on the
next date i.e. on 08.02.2019. The clothes of the victim and
other articles were seized. It is the case of the prosecution that
the accused had applied coconut oil on the private part of the
203. cr.apeal.498.2021 .jud..odt
victim. The CA report of the analysis of the samples detected
coconut oil on 4-5 articles. The report, therefore, corroborates
the testimony of PW-2 and overall case of the prosecution. The
prompt lodging of the report reflects upon the conduct of the
informant and over all case of the prosecution. Considering the
seriousness of the crime, without any deliberation, the report
was lodged. The prompt lodging of the report, in this case,
therefore, has ruled out the possibility of embellishment and
concoction of an imaginary story after due deliberation. The
evidence of PW-2, if analyzed in the backdrop of all these facts,
would show that there is no reason to discard and disbelieve the
said evidence.
14 The next important witness is PW-4. PW-4 is a
child witness. He has deposed that, he alongwith the victim and
other children, were playing in an autorickshaw. He has stated
that the boy, whom he identified before the Court, came to the
spot. He asked the victim her name and her education. He has
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stated that he carried the victim on the pretext of teaching her.
He has stated that after some time the informant came and
inquired with him about the victim. He narrated the facts
known to him about the victim. He has stated that he told the
informant that the accused had carried the victim with him.
He has stated that thereafter, they took search of the victim. He
has stated that while taking a search they found that the people
had gathered in front of the house of the accused. As far as this
child witness is concerned, he was also put to searching cross-
examination. There is hardly any material in his cross-
examination to doubt his presence on the spot. Perusal of his
cross-examination and some of the answers given by him would
be sufficient to conclude that he was not tutored witness
brought before the Court to extend support to the case of the
prosecution. His basic evidence with regard to his presence on
the spot with the victim, the accused having carried the victim
to his house in his presence and the subsequent search of the
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victim carried out by them has not been shaken.
15 PW-3 is the father of the victim girl. He has stated
that, after coming back home from work, he came to know
about the incident. The victim was missing. They took the
search. He saw that the people had gathered in front of the
house of the accused. His mother PW-2 was abusing the
accused. On inquiry, his mother told him about the incident.
He saw that there was coconut oil on the salwar of his daughter.
He has stated that people in the locality caught the accused and
took him to the police station.
16 PW-5 is the friend of PW-3. He has stated that on
the date of the incident, PW-3 met him at the square. He told
him that his daughter is missing. They went to search his
daughter and on the way, they found that the grandmother of
the victim had brought the victim from the house of the
accused. He has identified the accused. He has stated that he
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went inside the house of the accused and found that he was
nude. He has stated that after this, they went to the police
station and reported the crime.
17 PW-3 and PW-5 are not the eyewitnesses to the
incident, which was witnessed by PW-2. They came on the
scene after some time. However, whatever they have stated
about the part of the incident cannot be disbelieved. It is
apparent on the face of the record that they accompanied the
informant to the police station. The evidence of PW-2, 3, 4
and 5 as to the occurrence of the incident and the involvement
of the accused, is credible and as such, deserves acceptance. No
dent has been caused to their evidence, despite searching cross
examination. I do not see any reason to discard or disbelieve
their evidence.
18 The medical evidence and the CA report are
corroborative evidence relied upon by the prosecution. The
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victim was carried to the hospital after lodging the report. She
was examined at 1:00 a.m. on 08.02.2019. On examination,
the medical officer (PW-1) noticed redness over the medial
aspect of both labia majora and labia minora. There was a
minimal redness outside the hymen. The medical officer has
stated that she did not notice any injury. Her report would
show that before the examination of the victim, the history of
assault was narrated to her by the grandmother of the victim.
The history of assault was recorded by her in her report. Perusal
of the history of assault recorded by PW-1 in her report would
show that it is consistent with the facts stated in the report
lodged with the police by the informant. In her cross-
examination, she has admitted that she did not notice any
coconut oil on the private part of the victim. The CA report
clearly shows that the analysis of the vulval swab of the victim
detected coconut oil. The doctor with the open eyes might not
have observed the coconut oil. The doctor in order to rule out
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any possibility on this count took the samples. The analysis of
the samples corroborate the case of the prosecution on this
aspect. The medical evidence fully corroborates the evidence of
the witnesses.
19 In this case, on the basis of the evidence, the
prosecution has proved the foundational facts to trigger the
provisions of Section 29 of the POCSO Act. The presumption
provided under Section 29 of the POCSO Act is not an
absolute presumption. The presumption is triggered if there is
sufficient evidence to prove the foundational facts vis-a-vis the
charge. If the presumption gets triggered, then the accused has
to rebut the said presumption. In this case, the presumption
was triggered. The accused has not adduced any evidence to
rebut the said presumption. Learned Additional Sessions Judge,
in my view, was right in concluding that in the backdrop of the
proof of the foundational facts the presumption under Section
29 of the POCSO Act was triggered in this case.
203. cr.apeal.498.2021 .jud..odt
20 As a result of above discussion, I conclude that the
evidence on record is sufficient to prove the charge against the
accused. Learned Judge has recorded cogent reasons in support
of his findings. In the teeth of the evidence on record, no
interference is warranted in the finding of the guilt of the
accused recorded by the learned Additional Sessions Judge.
21 Learned Advocate for the appellant submitted that
the accused, on the date of the incident, was 18 years old. He
was doing work for his livelihood and helping his family.
Learned Advocate submitted that a prayer for leniency was
made before the learned Judge. It is pointed out that the
learned Judge has not properly appreciated the same. It is
pointed out that the appellant has been in jail since the date of
his arrest. It is submitted that as on date, he is 23 years old. He
has undergone imprisonment for five years and five months.
In the submission of the learned Advocate the sentence
undergone by him, in the facts and circumstances, would be
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sufficient punishment. It is pointed out that the minimum
sentence provided under Section 9 of the POCSO Act is five
years and it may extend up to seven years. It is submitted that
lenient view may be taken and sentence already undergone by
him be awarded. Learned APP submitted that, considering the
fact that the victim girl was 3 years old on the date of the crime
and the brutality displayed by the accused, he does not deserve
leniency.
22 I have given a thoughtful consideration to the rival
submissions. The accused has undergone imprisonment for
five years and five months. The minimum sentence provided
for the offence under Section 9 of the POCSO Act is five years.
It may extend up to seven years. Learned Judge has awarded
the maximum sentence prescribed under Section 9. The
accused, on the date of the offence, was doing the work for his
livelihood. He is unmarried. On the date of the incident, he
was 18 years old. The punishment undergone by him is five
203. cr.apeal.498.2021 .jud..odt
years and five months. The fine imposed by the trial Court is
Rs.10,000/- and in default, he is directed to undergo simple
imprisonment for one month. In my view, considering the
facts and circumstances and particularly the age of the accused,
it would be just and proper to sentence him to undergo the
imprisonment which he has already undergone. As far as the
fine and default sentence is concerned, no interference is
warranted. Accordingly, the criminal appeal is party allowed.
23 The conviction of the accused vide judgment and
order dated 25.10.2021 for the offence punishable under
Section 354(B) of the Indian Penal Code and for the offence
under Section 7 punishable under Section 8 and under Section
9 punishable under Section 10 of the Protection of Children
From Sexual Offices Act, 2012 is maintained. However, the
substantive sentence is modified.
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24 The appellant- Sameer Shah Salim Shah is directed
to undergo imprisonment which he has already undergone i.e.
five years and five months.
25 The sentence of fine is maintained.
26 The criminal appeal stands disposed of,
accordingly. Pending applications, if any, also stand disposed
of.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 21/08/2024 11:46:42
