Mohammed Ashraf Mohammed Wasir Ansari vs The State Of Maharashtra And Anr
2024 Latest Caselaw 24337 Bom

Bombay High Court

Mohammed Ashraf Mohammed Wasir Ansari vs The State Of Maharashtra And Anr on 19 August, 2024

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2024:BHC-AS:33472



                        Gokhale                             1 of 18                       23-apeal-694-22 (J)


                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                           CRIMINAL APPELLATE JURISDICTION


                                            CRIMINAL APPEAL NO. 694 OF 2022


                      Mohammed Ashraf Mohammed Wasir Ansari                            ..Appellant
                            Versus
                      State of Maharashtra & Anr.                                      ..Respondents
                                                  __________

                      Mr. Ganesh Bhujbal (Appointed Advocate) for Appellant.

                      Smt. Sangita D. Shinde, APP for State/Respondent.

                      Mr. Macchindra A. Patil (Appointed Advocate) for Respondent
                      No.2.
                                               __________

                                                    CORAM : SARANG V. KOTWAL, J.
                                                    DATE : 19 AUGUST 2024

                      ORAL JUDGMENT:

1. The Appellant was the original accused in POCSO

Special Case No.247 of 2015 before the Special Judge under the

Protection of Children from Sexual Offences Act, Greater Bombay.

The learned Judge vide the Judgment and order dated 01.02.2019

convicted and sentenced the Appellant as under:

i) The Appellant was convicted for commission of offence punishable under section 366 of the I.P.C.

and was sentenced to suffer R.I. for one year and Digitally signed by VINOD VINOD BHASKAR BHASKAR GOKHALE GOKHALE Date:

2024.08.21 16:09:55 +0530

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to pay a fine of Rs.500/- and in default to suffer S.I. for seven days.

ii) The Appellant was convicted for commission of offence punishable under section 6 of the Protection of Children from Sexual Offences Act, 2012 and was sentenced to suffer R.I. for 14 years and to pay a fine of Rs.5000/- and in default to suffer S.I. for 30 days.

As the appellant was convicted U/s.6 of the Protection

of Children from Sexual Offences Act, 2012 (for short 'POCSO

Act') he was not sentenced U/s.376 of the I.P.C. as per the

provisions U/s.42 of the POCSO Act. He was also not sentenced

separately U/s.10 of the POCSO Act as the offence punishable

U/s.6 of the POCSO Act is a major offence than the offence U/s.10

of the POCSO Act. The Appellant was granted set off U/s.428 of

the Cr.p.c. All the sentenced were directed to run concurrently.

2. Heard Mr. Ganesh Bhujbal, learned counsel for the

Appellant, Smt. Sangita Shinde, learned APP for the

State/Respondent and Mr. Macchindra Patil, learned counsel for

the Respondent No.2.

3. The prosecution case is that, at the relevant time, the

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victim was around 11 years of age. She was staying on a footpath

because of extreme poverty. The appellant was a taxi driver. On

03.04.2015, her mother had given her Rs.100/- to bring food from

a nearby hotel. She went to bring the food, but did not return.

According to the prosecution case, the Appellant gave her

something to eat; because of which, she felt drowsy. The Appellant

took her to a footpath and committed rape on her. After that, he

took her to his native place in Bihar. The victim's mother lodged a

report about her missing on 07.04.2015. The police got secret

information that the victim was with the Appellant at Bihar.

Therefore, a team of police went to Bihar to the Appellant's native

place. The victim and the appellant were found in his house. They

were brought back to Mumbai. The appellant was arrested. The

victim was sent for medical examination. The investigation was

carried out. The clothes of the victim and the appellant were

seized. After completion of the investigation, the charge-sheet was

filed. The case was committed to the Special Court under the

POCSO Act.

4. During the trial, the prosecution examined seven

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witnesses including the victim, her mother, the police officers who

had gone to Bihar, another taxi driver, the medical officer and the

investigating officer. The charge-sheet contained the ossification

test report. However, that report was not brought on record by the

prosecution. Therefore, the defence made an application U/s.294

of the Cr.p.c., to bring that report on record. The prosecution gave

no objection for taking it on record. The report was taken on

record at Exhibit-36 which mentions the age of the victim between

14 years to 16 years. The defence of the Appellant was of total

denial. According to the appellant, he was falsely implicated. The

learned Judge considered the evidence and the defence of the

appellant, and the appellant was convicted and sentenced, as

mentioned earlier.

5. The victim was examined as PW-2. She is the main

witness. She has deposed that, at the time of the incident, she was

residing with her parents, brothers and sisters on the footpath at

Nagpada, Mumbai. According to her, at the time of the incident,

she was 11 years of age. She was studying in the 2 nd standard. She

knew the appellant because he used to talk with her. He was a taxi

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driver. On the day of the incident, her mother had given her

Rs.100/- for purchasing food. She went to Nagina hotel. The

appellant met her there. He gave some tablet to her. She felt

giddiness. He took her in his taxi and brought her to the footpath

near a station. He spent the night on that footpath with the victim

and committed forcible sexual intercourse with her. On the next

day, he took her to his village Khatangi (Bihar) by train. PW-2 saw

that he had a wife and four children. For about 3 days, the

appellant kept her there and continued to have forcible physical

relations. The Mumbai police came there and they brought back

PW-2 and the appellant to Mumbai. The victim was given in the

custody of her mother. The police recorded her statement. She was

sent for medical examination at J.J. Hospital. Her statement was

recorded U/s.164 of the Cr.p.c. It is produced on record at Exhibit-

17. In the statement recorded U/s.164 of the Cr.p.c. she had not

referred to the incident of rape on the footpath, but she had

referred to the fact that the appellant had taken her to Bihar and

that he had kept her in his house, and had established physical

relations.

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In the cross-examination, some omissions and

improvements from her police statement were brought on record.

She could not explain as to why the police statement did not

mention that the appellant had given her tablet, because of which

she felt giddiness. She also could not explain as to why it was not

mentioned in her police statement that the appellant had taken her

to the footpath near a railway station and for the entire night she

was there. She denied the suggestion that, because of her poverty

she herself went with the appellant to his village. She denied all

other suggestions regarding the main incident.

6. PW-1 was the mother of the victim. She had lodged the

complaint about the victim's missing from 04.04.2015, U/s.363 of

the I.P.C. vide the C.R.No.152 of 2015 at Nagpada police station.

She has deposed that, on that particular day, at about 10:00p.m.

she had given Rs.100/- to her daughter to bring food from Nagina

hotel. Her daughter went to the hotel, but did not return. She

searched for her the entire night. She made enquiries with her

relatives, but the victim could not be found. Ultimately, on

07.04.2015, she gave her F.I.R. about the victim having been

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kidnapped. The F.I.R. is produced on record at Exhibit-15. On

15.04.2015, she was called to the police station. The victim was

handed over to her. PW-1 produced the victim's clothes before the

police. The victim narrated the incident to her in the police station.

In the cross-examination, she deposed that, she was

not knowing the appellant. She did not know his name. Nagina

Hotel was not visible from her place of residence. It was at a

distance of 2 minutes walk.

7. PW-3 PSI Liladhar Patil was one of the police officers

who had gone to Bihar and who had brought the victim and the

appellant back to Mumbai. He has deposed that, he was attached

to Nagpada police station. At the relevant time, he was in Human

Trafficking Cell. He was allotted the duty to enquire in C.R.No.152

of 2015. He received the secret information that the victim was

kidnapped by the appellant and they were in Bihar. Therefore, he,

along with his team, went to Khatangi, Sirdala police station in

Bihar, on 11.04.2015. He went with two lady police officers and

one constable. They took help of Sirdala police and went to the

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house of the appellant. They found the victim and the appellant.

He took noting in the case diary and brought both of them back to

Mumbai on 16.04.2015.

In the cross-examination, he deposed that, he was not

sure of the railway station where they got down, but it could be

Gaya station. From Gaya station to Sirdala police station, they

went by a six seater rickshaw. He did not prepare the arrest

panchanama of the appellant. He did not get the medical

examination of the appellant and the victim done in Sirdala. He

did not record the victim's statement while she was being brought

to Mumbai from Bihar.

8. PW-4 Police Naik Sudhakar Uthale was another team

member who had gone to Bihar with PW-3. He has deposed in the

same manner as that of PW-3.

In the cross-examination, he deposed that, he did not

recollect the correct name of the railway station where they got

down. He stated that, he was standing outside when the secret

informant, a lady police constable and PSI Patil went inside the

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house of the appellant. He deposed that, they had taken the secret

informant from Mumbai.

9. PW-5 Mohd. Asif Shaikh was another taxi driver. He was

examined to show that, there was a love relationship between the

appellant and the victim. According to him, he himself and others

had tried to convince the appellant that the girl was of very young

age. However, his cross-examination shows that, his deposition

was improved over his police statement where all these important

facts were not mentioned. His police statement did not mention

that they had tried to convince the appellant that the girl was of

very young age and that the appellant was knowing that the victim

was only 11 years of age. His evidence does not help the

prosecution case. He has not deposed anything about the incident.

10. PW-6 Dr. Roshani Bang had medically examined the

victim on 16.04.2015. She had found that the victim's hymen was

torn and there were old tears at 3,6,9 O'clock position. Though,

she has stated that the victim's age could be 11 years, it was not

supported by any ossification test conducted by herself. She

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admitted that, she had not sent the victim for ossification test. She

has noted the history given by the victim which is similar to the

victim's deposition in the Court. The report of the medical

examination of the appellant was taken on record wherein there

was nothing to suggest that the appellant was incapable to

perform sexual act.

11. PW-7 P.I. Ahmed Pathan was the investigating officer. He

has deposed about lodging of the F.I.R., bringing the victim and the

appellant back to Mumbai by the police team, recording of victim's

statement U/s.164 of the Cr.p.c., seizure of clothes of the victim

and the appellant and then filing of the charge-sheet. The C.A.

reports are produced on record at Exhibit-33, however, they are

not incriminating in any manner.

12. The prosecution did not produce the ossification test

report on record, though, it was forming part of the charge-sheet.

Therefore, the defence made an application U/s.294 of the Cr.p.c.

to bring it on record. The prosecution gave no objection for

exhibiting that document, hence, that report was produced on

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record at Exhibit-36. That report mentions that the age of the

victim was between 14 years to 16 years when the examination

was conducted on 17.04.2015 at around 4:30p.m.

This, in short, was the evidence led by the prosecution

in this case.

13. The learned Trial Judge, based on this evidence,

convicted and sentenced the appellant as mentioned earlier.

14. Learned counsel for the appellant submitted that the

evidence of the victim does not inspire confidence. It is difficult to

believe that the appellant could give her some tablet in the hotel

and then take her away in his taxi to some footpath, where he had

allegedly committed rape on her during night. In any case, that

was an omission from her evidence. He further submitted that,

there is serious doubt that the victim could be taken to Bihar in a

train, particularly, when there was no allegation that she had

raised shouts and had resisted the appellant from taking her to

Bihar. He submitted that, therefore, the prosecution story does not

appear to be true. The medical evidence is not conclusive. The

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prosecution had deliberately not produced the ossification test

report on record. He submitted that, in such circumstances, benefit

of doubt be given to the appellant.

15. Learned APP, as well as, learned counsel for the

Respondent No.2 submitted that, there is no reason to doubt the

deposition of the victim herself. The fact that she was missing from

03.04.2015 is corroborated by the fact that her mother PW-1 had

lodged her F.I.R. on 07.04.2015. It is further supported by the fact

that the police team had gone to Bihar and had brought the victim

and the appellant back to Mumbai. Both, the appellant and the

victim were found in the house of the appellant himself. These are

all incriminating circumstances. Apart from that, the medical

evidence shows that, hymen was torn at three positions and,

therefore, it is a corroborative piece of evidence.

16. I have considered these submissions. The most important

piece of evidence in this case is, the victim and the appellant

having been found in the appellant's house in Bihar. The police

team, on the secret information, had gone to the appellant's house

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in Bihar. They were accompanied by the secret informant and, in

fact, the appellant and the victim were found in his house. The

appellant had taken a minor girl from the custody of her parents

and had taken her to Bihar. That fact is sufficiently proved through

the evidence of PW-3 and PW-4. The victim was missing from

03.04.2015. This fact is proved through the evidence of PW-1-

mother of the victim. She had lodged her F.I.R. (Exhibit-15) on

07.04.2015.

17. In this background, the evidence of the victim herself

will have to been seen. She was examined as PW-2. According to

her, the appellant had given her some tablet in hotel Nagina,

because of which she felt giddiness. It is her case that the appellant

took her to the footpath near the railway station and committed

rape on her. However, that particular version was not stated by her

in her police statement. Even in her statement U/s.164 of the

Cr.p.c. that particular part was missing. Therefore, it can be seen

that the incident in the night of 03.04.2015 and 04.04.2015 which

had allegedly taken place on the footpath appears to be an

exaggeration and improvement from her story. However, the rest of

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her deposition about the appellant taking her to Bihar and staying

with her in his house for three days is sufficiently corroborated by

the evidence of police witness. Therefore, to that extent, her

deposition is believable. According to her, during that period, the

appellant had forceful physical relations with her. Therefore, even

taking into account the submission on behalf of the appellant that

there was an element of consent, it will not help the defence,

because the prosecution has proved that the victim was below 18

years of age. Therefore, consent in this case will not make any

difference. The victim's narration about the forcible physical

relations is supported by the medical evidence, as discussed above.

All these factors show that the prosecution has proved that the

victim was taken to Bihar by the appellant from the custody of her

parents. She was a minor girl. She was kept in his house and the

appellant had established physical relations with her. Thus, the

prosecution has proved the offences, for which, he was charged.

The instance of physical relation was on more than one occasion,

therefore, the offence would fall within the meaning of 'aggravated

penetrative sexual assault' and hence, the conviction is correctly

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recorded by the learned Trial Judge.

18. Learned counsel for the appellant submitted that,

though, the offence is held to be proved, some leniency be shown

by reducing the sentence imposed on the appellant. He submitted

that the appellant was arrested on 16.04.2015 and since then he is

continuously in custody for more than 9 and half years. Therefore,

some leniency be shown to him. According to the victim, the

appellant was married, having four children. Therefore, his entire

family was dependent on him.

19. Learned APP and the learned counsel for the Respondent

No.2 opposed these submissions. According to them, the offence is

serious. The victim was 11 years of age. Therefore, no leniency be

shown to him.

20. I have considered these submissions. The ossification test

report shows that the victim was between 14 years to 16 years of

age. Therefore, considering the margin for error the victim's age

could be slightly more than 16 years. It will not give any benefit to

the appellant, as far as, conviction part is concerned because she

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was below 18 years of age. The appellant is in custody for more

than 9 and half years. The trial has taken a long time to reach its

conclusion. The Judgment and order was delivered by the Trial

Court on 01.02.2019. The Appeal was filed through the Legal Aid

counsel and, there was delay in filing the Appeal. Ultimately, the

appeal could reach the final hearing only at this stage. Therefore,

at every stage there was considerable delay in deciding the

appellant's case. I am taking these factors in consideration to show

leniency. Moreover, the Appellant is in custody continuously for

more than nine and half years. In between, there was spread of

Covid-19 pandemic. At that point also, the appellant was never

released, even on temporary bail. Considering all these factors, I

am inclined to show some leniency to the appellant. At the same

time, seriousness and gravity of the offence cannot be lost sight of.

Therefore, in my opinion, sentence of 12 years instead of 14 years

would serve the ends of justice.

21. Hence, the following order:

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ORDER

i) The Appeal partly is allowed.

ii) The conviction of the Appellant under sections 366 and 376 of the I.P.C., as well as, the conviction under sections 6 and 10 of the POCSO Act are upheld.

iii) The Appellant is now convicted and sentenced as under:

i. The Appellant's conviction U/s.366 of the I.P.C. and sentence of one year Rigorous Imprisonment and fine of Rs.500/- and in default Simple imprisonment for 7 days are upheld.

ii. The Appellant's conviction U/s.6 of the POCSO Act is upheld. However, instead of sentence of 14 years of Rigorous Imprisonment, the Appellant is sentenced to suffer Rigorous Imprisonment for 12 years and he is further sentenced to pay a fine of Rs.5000/- and in default to suffer Simple Imprisonment for 30 days.

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iv) In view of the sentence imposed U/s.6 of the POCSO Act, no separate sentences U/s.376 of the I.P.C. and U/s.10 of the POCSO Act are imposed.

v) The substantive sentences shall run concurrently.

vi) The appellant is given benefit of set off U/s.428 of the Cr.p.c.

vii) The Clause No.9 of the impugned Judgment and order directing the State Government to award compensation to the victim as per the rules, is maintained.

viii) With these observations and directions, the Appeal is disposed of.

(SARANG V. KOTWAL, J.)