Bombay High Court
Shaikh Atiq Shaikh Khadar vs The State Of Maharashtra And Another on 19 August, 2024
2024:BHC-AUG:18347
{1} CRI APPEAL 195 OF 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 195 OF 2024
. Shaikh Atiq Shaikh Khadar
Age: 29 years, Occu.: Labour,
R/o. Kranti Nagar, Parbhani,
Tq. & Dist.Parbhani. ....Appellant
Versus
1. The State of Maharashtra
2. X - Victim .....Respondents
.....
Advocate for Appellant : Mr. Sudarshan J. Salunke
APP for Respondent no.1 : Mr.N.D.Batule
Advocate for Respondent no.2 : Ms.J.R.Nawale (appointed)
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 02 AUGUST, 2024
PRONOUNCED ON : 19 AUGUST, 2024
JUDGMENT :
-
1. In this appeal exception has been taken to the judgment and
order dated 29-01-2024 passed by learned Special Judge (POCSO
Act), Parbhani in Special Case No.53 of 2020 recording conviction of
the appellant for offence under Section 8 of the Protection of
Children from Sexual Offences (POCSO) Act.
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IN NUTSHELL PROSECUTION CASE
2. On 02-02-2020 victim, aged 6 years, accompanied her mother
in the neighbourhood to see a new born being delivered to their
acquaintance. Appellant, who happens to be cousin maternal uncle
of victim, initially sent PW4 victim to purchase sachet of shampoo.
When she returned with it, appellant dragged her inside the house,
pulled down her Salwar and ejaculated on her person. Victim child
went and reported the act of accused to her mother, who went and
questioned accused and thereafter, reported the occurrence to PW7
Kendre (PSI), a Lady Police Officer, who took cognizance, penned
down the report and registered crime. Investigation was carried out.
Victim was subjected to medical examination. Accused was
apprehended and he too was subjected to medical examination.
Clothes of victim were seized and sent to the CA. Statement of
relevant witnesses were recorded and after gathering evidence,
accused came to be chargesheeted.
Learned Trial Judge conducted trial for commission of offence
under Sections 376-AB of the Indian Penal Code (IPC) and Sections
6 and 8 of the POCSO Act.
On analyzing and appreciating the evidence, learned trial
Judge concluded that prosecution established the case against
{3} CRI APPEAL 195 OF 2024
accused for commission of offence under Section 8 of the POCSO Act
only and guilt and conviction came to be recorded accordingly by
judgment and order dated 29-01-2024, precisely which is challenged
in instant appeal.
SUBMISSIONS
On behalf of appellant :
3. Pleading innocence and false implication learned Counsel for
the appellant would submit that there is no cogent, reliable and
trustworthy evidence. Taking this Court through the evidence of
victim, he would submit that infact here no sexual act has been
committed as the victim merely deposed of urination. Learned
Counsel would submit that there is neither touch nor penetration or
insertion of any body part in any body part of the victim. Thus,
according to him, there was no physical contact and on this count, he
took this Court through the examination-in-chief of victim
paragraph 3. According to him, the child was tutored to depose, and
this is evident from the cross-examination of victim. He would
strenuously submit that testimony of child witness cannot be relied or
acted upon without sufficient corroboration as they are susceptible to
tutoring and exaggeration.
{4} CRI APPEAL 195 OF 2024
4. Inviting attention of the Court to the FIR exh.60 filed by
mother, it is submitted that there was no prompt reporting even
when it was alleged to be case of sexual abuse. Therefore, according
to him, such aspect is fatal for prosecution.
5. He also took this Court through the medical evidence and
would submit that there is no finding about commission of any
offence of sexual assault. He pointed out that clothes of victim were
seized by investigating machinery, but after few days of the
occurrence. That mother of victim admitted that victim was given
bath and her clothes were also washed and therefore, he questions
the so called semen stains appearing on clothes of victim. He also
invited attention of the Court to the answers given by mother in
paragraph 6 of the cross-examination, wherein informant admitted
that she verified the clothes of victim after the incident and except
wetness of pee, she did not notice anything. For all above reasons,
he questions the prosecution version of semen stains detected on the
leggings of the victim.
6. Learned Counsel, while defending the appellant, would further
submit that surely this is not a case to attract charge under Section 8
of the POCSO Act. According to him, it is a case at the most
{5} CRI APPEAL 195 OF 2024
attracting charge under Section 11 and that the case would not travel
beyond it. He pointed out that already accused had spent almost 13
months behind bars.
7. Lastly, he submitted that as essential ingredients for attracting
Section 8 of the POCSO Act are patently missing, he questions the
conclusion and findings reached at by learned trial Judge and prays
to extend benefit of doubt as according to him, prosecution has failed
to establish the charges beyond reasonable doubt.
In support of his submissions, learned Counsel for appellant
relied on the judgment of the Hon'ble Supreme Court in the case of
Attorney General For India v. Satish and Another with connected
matters, (2022) 5 SCC 545.
On behalf of State :
8. Strongly resisting above appeal and submissions, learned APP
would submit that victim, a barely 6 years old child, has been
sexually abused by none other than her cousin maternal uncle.
According to learned APP, sole testimony of child in this case being
trustworthy, and credible, is rightly accepted by the trial Court. He
submitted that immediately after the occurrence, victim reported to
her mother, who went and questioned her own cousin brother and
{6} CRI APPEAL 195 OF 2024
even slapped him for the act. That occurrence is also reported to
Police. Few days delay is because of reluctance to invite shame to the
family which according to learned APP, usually happens in cases of
such nature. That further here even accused was related to
informant. That this might have contributed to little delay but further
according to him, in cases of such nature, delay in lodging report is
insignificant and it has been time and again reiterated by the Hon'ble
Apex Court in numerous cases.
9. On the point of act of accused, learned APP would submit that
admittedly there was no penetration of male organ or any part of the
body, however, according to him, it needs to be appreciated that
victim is barely 6 years of age and she has no understanding of body
parts. That she being unaware of as to what is semen, might have
used the word urination. That on the leggings of the victim, which
were despatched for CA, semen stains were detected. Chemical
Analyzer has detected it to be of 'B' blood group, which is the blood
group of even accused, and therefore, according to learned APP, no
further corroboration or evidence is required to hold act to be of
none other than sexual assault. He also pointed out that the very act
of stripping the victim of her garments, sexual intent of the accused is
{7} CRI APPEAL 195 OF 2024
explicit.
Consequently, he supports findings reached at by learned trial
Judge regarding guilt recorded for offence under Section 8 of the
POCSO Act.
In support of his submissions, learned APP relied on decision of
Hon'ble Apex Court in Ganesan v. State Represented by its Inspector
of Police, AIR 2020 SC 5019 and judgment of this Court passed in
Mohd. Khatir Shaikh alias v. State of Maharashtra and another in
Criminal Appeal No.917 and 2022 with connected matters dated
07-02-2023.
On behalf of Respondent no.2 / Victim :
10. Learned Counsel appointed to espouse the cause and protect
interest of the victim would also submit that, victim has narrated the
deeds of her own cousin maternal uncle to her mother immediately
after the occurrence. That there was clear act of sexual abuse by the
appellant. Even according to her, there is no reason to disbelieve
testimony of victim as well as her mother and she would question
why would there be false implication of close relative and that even
there are no suggestions in that direction for namesake by the
appellant in trial Court. Even she seeks reliance on CA report
{8} CRI APPEAL 195 OF 2024
confirming involvement of appellant. For all above reasons, she too
prays to dismiss the appeal for want of merits.
EVIDENCE BEFORE TRIAL COURT
11. In support of its case, prosecution has examined in all seven
witnesses in the trial Court. Sum and substance of their evidence is
as under :
PW1 Ashok Narhari Savane, Pancha to spot panchanama
exh.29.
PW2 Sandhya Dinkarrao Ippar, Head Mistress of primary
school, who gave date of birth as per school record to be 27-12-2013
by placing exh.35, 36 on record.
PW3 Dr.Sandhyarani Narayan Doli, Medical Officer, who
examined victim on 05-02-2020 at Civil Hospital Parbhani and issued
certificate exh.38.
PW4 Victim testified that she knew appellant, who was her
cousin maternal uncle and that while she was playing outside, he
asked her to bring shampoo from shop and when she went to hand it
{9} CRI APPEAL 195 OF 2024
over to him, he dragged her in the house and passed urine on her
person and she reported it to her mother.
PW5 Informant, mother of victim, deposed that incident took
place on 03-02-2020 when she went to house of Shammo to attend
the programme of child birth. At that time, her daughter came and
reported that accused pulled her Salwar and urinated on her. So she
enquired with him, slapped him in anger and about lodging report
exh.61.
PW6 Ananta Kishanrao Soge, Counselor from ChildLine, who
participated in the seizure panchanama exh.66 i.e. clothes of
accused.
PW7 Supriya Subhashrao Kendre (PSI) Police Officer, who
investigated crime and chargesheeted accused.
ANALYSIS
12. Upon trial, Special Judge (POCSO Act), Parbhani, held
appellant guilty for offence under Section 8 of the POCSO Act. For
proper comprehension, clarity and brevity, said provision is
reproduced herein under :
{10} CRI APPEAL 195 OF 2024
"8. Punishment for sexual assault. - Whoever, commits
sexual assault, shall be punished with imprisonment of
either description for a term which shall not be less than
three years but which may extend to five years, and shall
also be liable to fine."
As above provision provides for penal action for sexual assault,
it would be also profitable to reproduce as to what is the import of
phrase "sexual assault".
"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."
13. Here evidence of PW4 victim and her mother PW5 informant is
crucial and of much relevance and significance. Equally, is the
Medical and scientific evidence and therefore, the same is put to
careful sifting and analysis.
PW4 Victim deposed as under :
"1. I know Shaikh Atik. He is my cousin maternal uncle.
An incident had taken place with me. I can not tell at what time
and on which date it took place, however, it took place long back.
{11} CRI APPEAL 195 OF 2024
It took place in the house of Atik Mama. I was playing outside
with my friend. We had been to the house of accused for seeing
new born baby. My mother and grand mother were with me. Atik
Mama (accused) sent me for bringing shampoo from the shop. I
brought shampoo. When I was giving shampoo to him, he drag
me in side the house holding my hand. He dragged my Salwar
down and passed urine on my person. I went to my mother and
disclosed what accused Atik Mama (accused) did with me. My
mother went to accused and quarreled with him. Then my mother
went to police station and reported the incident. I can identify
Atik Mama, if shown to me. (victim is frightened and weeping,
hence recording of her evidence is stopped for sometime. She was
asked whether her mother could be called and she asked to call
her mother. Hence, her mother is called. He father is already
present in the court).
2. After short time, her evidence is resumed. Accused is shown
to the victim, she identified him as Atik Mama. I can not identify
clothes which I was wearing at the time of incident). (the victim
stated that the clothes may be shown to her. Hence, clothes are
shown to her. She is unable to identify the clothes.) I had shown
the house to police where the incident had taken place. My
statement was recorded earlier before the Madam, in Court.
3. It did not happen that, Atik Mama, inserted his penis in my
anus (the victim stated 'Nunnu'. It means penis in English). I had
not stated so before police."
{12} CRI APPEAL 195 OF 2024
PW5 Informant mother deposed as under :
1) Victim-girl (J.F.) PW-4 is my daughter. Her date of birth is
27/12/2013. At the time of incident, my daughter was aged about
06 years. My marriage took place in the year 2012. I know
accused. He is my cousin brother.
2) Incident took place on 03/02/2020. On that day, I had been
to the house of Shammo to see the programme of child. We went
there to see new born baby. Their house is at Kranti Nagar,
Parbhani. There we saw the baby and thereafter had been to the
house of my elder maternal aunt which is adjacent to their house.
At that time my daughter-J was playing outside. At that time
accused gave call to my daughter for bringing shampoo. My
daughter brought shampoo and gave it to accused. At that time
accused pulled her hand. When I was going to home, at that time
my daughter came behind me. At that time I inquired with her as
to what happened. My daughter told that Atik mama pulled down
her salwar and urinate there. Accused did that act when my
daughter had been to him to give the shampoo pouch. When I
heard about it, I was very angry. Therefore, I went to the house of
accused and inquired with him as to why he did such act with my
daughter and also slapped him in anger. Thereafter, I returned
home. At that time all tried to convince me not to file any case as
that would defame my daughter. However, I did not listen them
and lodged report against accused in Kotwali Police Station."
14. Having noted PW4 victim's account and PW5 mother's
testimony, it would also be desirable to see to what extent, their
{13} CRI APPEAL 195 OF 2024
above testimonies have remained intact and unshaken.
PW4, a child of barely 6 years of age, is subjected to extensive
cross-examination and omissions are brought regarding accused
asking her to bring shampoo from the shop and while giving it,
accused holding her hand and dragging her inside. Thereafter, child
complained of not feeling well and to be having nausea and
therefore, further cross-examination was deferred. Examination-in-
chief and first paragraph of cross-examination seems to be concluded
on 15-03-2022. Record shows that after a gap of 8 months and 21
days further evidence was recorded. It is noticed that since then, the
child has not supported prosecution as desired.
PW5 Mother also faced extensive cross-examination, but aspect
of her daughter on that very day while she was returning from
attending the said programme informing about the deeds of accused,
has not been disturbed.
Thus what is emerging from substantive evidence of
PW4 victim, she has categorically stated that when she brought
shampoo and when she was giving it to appellant, he dragged her
inside the house by catching her hands. He dragged her Salwar
down and passed urine on her person and thereafter, since in
{14} CRI APPEAL 195 OF 2024
paragraph 2 of her examination-in-chief, which was resumed after a
while, she has merely identified the accused and since then, she did
not identify her own clothes and even denied that appellant inserted
his pennis in her anus.
PW5 her mother also stated that her daughter told that Atik
Mama (appellant) pulled down her Salwar and urinated there.
Evidence of both PW4 and PW5 to the above extent has not
been challenged and has thereby remained intact.
15. The three principal grounds of challenge are that, firstly victim
supported defence in the cross-examination rather than supporting
prosecution secondly, child was tutored and therefore, her testimony
is unworthy of credence and thirdly there is no physical contact to
accept prosecution version about sexual assault.
On minute scrutiny of the evidence of victim, it is noticed that
her examination in chief was conducted on 15-03-2022. After
narrating the incident in paragraph 1, she has complained of ill-
health and deposed in paragraph 2 and 3 as reproduced above. It is
pertinent to note that cross-examination commenced on 05-12-2022
i.e after gap of over nine months. Apparently, during such inordinate
delay in cross-examination, tables were turned and it is obvious that
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the child supported defence rather than prosecution and was
resultantly won over. However, about the actual act, the child has
stuck up and her version is finding support from her own mother to
that extent.
16. As regards to the submission that the child did not support, it is
fairly settled position that her entire testimony need not be discarded
and so much part of her evidence, which is useful to the prosecution,
can definitely be taken into consideration for evaluation. Law to this
extent is time and again spelt out in numerous judgments. Reference
to the few citations on which implicit reliance can be placed are as
under :
"(a) Shyamlal Ghosh v. State of W.B., (2012) 7 SCC 646.
"Mere fact that two witnesses had turned hostile in
present case would not affect prosecution case adversely.
Moreover, even statements of these witnesses, who had
turned hostile, partially supported case of prosecution."
(b) Bable v. State of Chhattisgarh, (2012) 11 SCC 181.
"Once registration of the FIR is proved by the Police
and the same is accepted on record by the Court and the
prosecution establishes its case beyond reasonable doubt
{16} CRI APPEAL 195 OF 2024
by other admissible, cogent and relevant evidence, it will
be impermissible for the court to ignore the evidentiary
value of the FIR. Herein, the FIR was duly proved by the
statement of PW10 (SI). According to him, he had
registered the FIR upon statement of PW1 and it was duly
signed by him. The FIR was registered and duly formed
part of the records of police station which were maintained
in normal course of its business and investigation. In any
case, the FIR by itself is not a substantive piece of evidence
but it certainly is a relevant circumstances of evidence
produced by the investigating agency. Merely because
PW1 turned hostile, it cannot be said that the FIR would
lose all its relevancy and cannot be looked into for any
purpose."
(c) Prem Singh v. State (NCT of Delhi), (2023) 3 SCC
372.
"such part of the evidence of a hostile witness which
is found to be credible could be taken into consideration
and it is not necessary to discard the entire evidence.
(d) Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC
731.
"It is for the Judge as a matter of prudence to
consider the extent of evidence which is creditworthy for
the purpose of proof of the case. In other words, the fact
that a witness has been declared "hostile" does not result
{17} CRI APPEAL 195 OF 2024
in an automatic rejection of his evidence. Even the
evidence of a "hostile witness" if it finds corroboration
from the facts of the case may be taken into account while
judging the guilt of the accused. Thus, there is no legal bar
to raise a conviction upon a "hostile witness" testimony if
corroborated by other reliable evidence."
Deriving strength from above precedent, here, so much part of
the testimony of PW4 victim to which her mother has lent support
can safely be relied.
17. The second objection about child witness testimony to be
unworthy of credence in the light of possibility of tutoring, also has
no much substance and merit. Time and again Courts are confronted
with situations wherein there is child witness account also. On this
count also law is loud and clear and dealt in umpteen judgments viz.
Dattu Ramrao Sakhare and Others v. State of Maharashtra (1997) 5
SCC 341; Ratansinh Dalsukhbhai Nayak v. State of Gujarat (2004) 1
SCC 64; State of Madhya Pradesh v. Ramesh and Another, (2011) 4
SCC 786, P. Ramesh v. State of Represented By Inspecor of Police,
(2019) 20 SCC 593.
The ratio that has been culled out in above rulings is that,
cautious approach has to be adopted while appreciating child witness
{18} CRI APPEAL 195 OF 2024
account and Courts are expected to get itself ascertained that there is
no element of tutoring. It is just a rule of caution and nothing
beyond it. If the child witness account inspires confidence and is
convincing, corroboration need not be insisted upon.
Very recently the Hon'ble Apex Court in the case of Ganesan v.
State Represented By its Inspector of Police, (2020) 10 SCC 573 and
Rakesh @ Diwan v. State (GNCT of Delhi), 2021 SCC OnLine Del
3957 specifically dealt with child witness account in POCSO cases,
wherein it has been held that, the statement of prosecutrix, if found
worthy of credence and reliable, requires no corroboration and the
Court may convict the accused on the sole testimony of prosecutrix.
18. Having dealt above settled precedent, the objection of learned
counsel for appellant that child witness account is unworthy of
credence does not hold water. Here the child has promptly reported
the act of accused with her to her mother, who also went and
questioned accused. This Court is also more than convinced i.e.
having carefully scrutinized child witness account, that there is no
reason to hold that there was tutoring and so her evidence is
unworthy of credence. The very aspect of she innocently deposing
that accused urinated on her, itself goes to show that she was
victimized. As stated above, her so much part of the evidence, need
{19} CRI APPEAL 195 OF 2024
not be doubted or discarded.
19. As regards to objection raised herein that there was no physical
contact also loses its significance, for the reason that here semen
stains were detected on her leggings. PW5 informant mother has
deposed about noticing wetness. The situation and the mental set up
in which the mother was after hearing the deeds, it is possible that
she may not have noticed the wetness to be due to semen. Mother
had occasion to notice wetness immediately after the occurrence, and
it is common knowledge that, only when the semen gets dried up, it
becomes prominent. Even mother answered in cross-examination
that there was wetness.
Likewise, considering the tender age of the victim i.e. 6 years
age, there is force in the submission of learned APP that, she was
incapable of describing the very act in proper and clear terms. It is
not expected from a girl of such tender age to give detail account and
describe body parts. Consequently, she deposed in above manner
describing the act as urination. She has categorically stated that
accused had pulled down her leggings. Therefore, sexual intent of
accused is explicit and manifest. In the considered opinion of this
Court, when semen stains are detected on her leggings, there was
ejaculation and not urination as is described by the child. His above
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act itself constitutes sexual assault.
20. Much hue and cry is made by learned counsel for appellant on
the point that clothes of the victim were not seized promptly and that
mother had admitted about giving bath to the child and washing her
clothes everyday. True it is that mother had, at subsequent point of
time, handed over the clothes, but advance scientific analysis is
potent enough to even pick up faint stains and analyze it. Here the
fact that sample of accused was collected is not disputed or
challenged. The blood group of accused and the semen stains on
detection does reveal the same group and therefore, accused cannot
escape by advancing above arguments. There is no explanation from
his side, as to how his semen appeared on garments of the child. The
very manner of cross-examination by defence, more particularly, in
paragraph 6 clearly shows that visit of the child to the house of
accused is admitted. Therefore, this amounts to acknowledging the
act.
The facts in the case Attorney General For India v. Satish and
Another with connected matters (supra) and the facts in the case in
hand are quite distinguishable and hence, cannot be applicable to the
case in hand.
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SUMMATION
21. To sum up, here prosecution did succeed in bringing home the
charge of commission of offence under Section 8 of the POCSO Act.
Defence version that, it is not Section 8 of the POCSO Act but at the
most Section 11 of the POCSO Act that could be attracted has no
base or force. Learned trial Court has committed no error in
accepting prosecution version to the above extent. No case being
made out on merits, interference in any manner is uncalled for.
Hence, appeal fails. Accordingly, following order is passed :
ORDER
(I) Criminal Appeal No.195 of 2024 stands dismissed.
(II) Fees of learned Counsel appointed for respondent no.2
is quantified @ Rs.10,000/-, to be paid through the High
Court Legal Services Sub-Committee, Aurangabad.
( ABHAY S. WAGHWASE )
JUDGE
SPT
