Bombay High Court

Farukh Mukthar Shaikh vs State Of Maharashtra And Anr on 1 July, 2024

Author: Sarang V. Kotwal

Bench: Sarang V. Kotwal

2024:BHC-AS:26171



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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CRIMINAL APPELLATE JURISDICTION

                                    CRIMINAL APPEAL NO.863 OF 2022

              Farukh Mukthar Shaikh                                        ....Appellant
                          Versus
              The State of Maharashtra
              and another                                                  ....Respondents
                                               ....
                                              WITH
                               INTERIM APPLICATION NO.3200 OF 2023
                                               IN
                                 CRIMINAL APPEAL NO.863 OF 2022
                                               ......
                                              WITH
                               INTERIM APPLICATION NO.2490 OF 2023
                                               IN
                                 CRIMINAL APPEAL NO.863 OF 2022

                                          -----
              Mr. Kartik Garg, Advocate (appointed) a/w. Aashka Shell for
              the Appellant.
              Smt. Manisha R. Tidke, APP for the Respondent No.1-State.
              Mr. Subir Sarkar, Advocate (appointed) for the Respondent
              No.2.
                                          -----

                                                        CORAM : SARANG V. KOTWAL, J.

                                                        DATE   : 01st JULY, 2024
              ORAL JUDGMENT :

1. The Appellant have challenged the judgment and

order dated 1.4.2019 passed by the Special Judge under 1 of 19

Deshmane(PS)

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POCSO Act at Greater Bombay in POCSO Special Case

No.289/2017. He was convicted and sentenced as follows :

[i] The Appellant was convicted for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'POCSO Act') and he was sentenced to suffer R.I. for 14 years and to pay fine of Rs.15,000/- and in default to suffer further R.I. for six months.

[ii] The Appellant was convicted for the offence punishable under Section 328 of IPC and he was sentenced to suffer R.I. for five years and to pay fine of Rs.1,000/- and in default to suffer further R.I. for one month.

[iii] He was convicted for the offence punishable under Section 10 of the POCSO Act and he was sentenced to suffer R.I. for five years and to pay a fine of Rs.5,000/- and in default to suffer further R.I. for three months.

2. All the sentences were directed to run

concurrently. Out of the fine amount, Rs.15,000/- were

directed to be given to the victim as compensation, after the

appeal period was over. The Appellant was given set off

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under Section 428 of Cr.P.C. for the period already

undergone as under-trial prisoner.

3. Heard Mr. Kartik Garg, learned appointed

counsel for the Appellant, Smt. Manisha Tidke, learned APP

for the Respondent No.1-State and Mr. Subir Sarkar, learned

appointed counsel for the Respondent No.2.

4. The prosecution case is that the incident in

question took place in the year 2017. According to the

prosecution case the victim was around 15 years of age at

that time. The Appellant was the step-father of the victim.

He kept physical relations with her making her pregnant.

When her mother came to know about it, the victim was

taken for medical examination. Her pregnancy was

confirmed. The Appellant was arrested. MTP was

performed. The blood samples of the victim, the Appellant

and the fetus was sent for DNA testing. It was confirmed

that the Appellant was the biological father of the victim's

child. The Appellant faced the trial. At the conclusion of the

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trial he was convicted and sentenced, as mentioned earlier.

5. During trial, the prosecution examined twelve

witnesses including the victim, her mother, the Medical

Officers confirming the victim's pregnancy, the medical

officer who had taken samples for DNA analysis, the Expert

who had completed the DNA profiling, panchas, the Medical

officer who conducted the ossification test and the

investigating officer. Apart from the oral evidence of the

witnesses, the prosecution produced various documents on

record in the form of panchnamas, C.A. reports, forensic

reports etc..

6. The defence of the Appellant was that he was

falsely implicated. He had sold his room to the parents of

the victim. They did not pay him for that room. Instead

they performed marriage between the victim and the

Appellant. After that she became pregnant. Therefore, he

has not committed any offence.

7. The important evidence in this case is that of the

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victim, who is examined as PW-2. She has stated that her

date of birth was 22.4.2002. However, no document to

support that claim is produced on record. In April, 2017 she

was staying with her mother, younger brother, sisters and the

present Appellant. She used to go to school. It is her case

that the Appellant used to come home for lunch. He used to

give her vada pav and soft drink and used to give money to

her brother to go out for cycling. After the Appellant used to

give her juice or soft-drink, she used to fall asleep. When

her mother used to return home, she continued to sleep. On

one occasion, she had not taken the juice from the Appellant.

That day, the Appellant removed her clothes and slept on her

person. He threatened her. He told her that he would kill

her mother. In April, 2017 when her mother inquired with

her she told her mother that she had missed her menses

since past two months and she was having pain in her

stomach. The victim's mother took her to Dr. Dalvi who,

after the pregnancy test, opined that she was pregnant and

asked her to undergo sonography. The victim's pregnancy

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was confirmed in the sonography test. It is her case that the

doctor conducting the sonography asked her about the

cause of her pregnancy but she did not tell him anything. He

told her that he would put her mother in jail. At that time

the victim disclosed the name of the Appellant. Her

statement was recorded by the Metropolitan Magistrate

under Section 164 of Cr.P.C. It is produced on record at

Exhibit-4. The procedure for MTP was conducted at Sion

Hospital. Her blood samples were taken. Her medical

examination was conducted.

In the cross-examination, she stated that she

could not assign any reason as to why it was not mentioned

in her statement that the Appellant was bringing vada pav

and soft drink and was giving money to her sister and

brother. She could not assign any reasons as to why it was

not mentioned that she used to fall asleep and her mother

used to wake her up. There were other houses near her

house. The victim's family was staying in one room. The

door of the house used to be always closed but the loud 6 of 19

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noise from her house was audible from outside. She could

not assign any reason as to why the fact that the doctor had

told that he would send her mother to jail was not

mentioned in her statement. Her blood samples were taken

at J.J. Hospital on 18.4.2017.

8. PW-1 was the victim's mother, who had lodged

the FIR. She has stated that the victim's date of birth was

22.3.2002 but she had not brought the birth certificate. The

Appellant was her husband. It was her second marriage.

PW-1 used to go for her work at 10.00 a.m. and used to

return at 5.30 p.m.. When she used to return, the Appellant

used to be at home. The victim was her daughter from her

first marriage. In the month of February the victim missed

her menses. PW-1 asked her about the same. In April she

complained of stomach pain. She was taken to Dr. Dalvi. He

opined that the victim was pregnant. Then Sonography was

performed. PW-1 made inquiries with the victim. At that

time the victim narrated the incident to her. This witness

lodged her FIR on 18.4.2017 vide C.R. No.41/2017 at 7 of 19

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Sewree Police Station, Mumbai. It is produced on record at

Exhibit-18.

9. PW-3 Dr. Dalvi had examined the victim on

14.4.2017. The urine pregnancy test was found to be

positive. Therefore, PW-3 Dr. Dalvi referred the victim to the

Sonography Center at Nagpada for confirmation of the

pregnancy.

10. PW-4 Dr. Atavkar conducted the sonography and

found that the victim was pregnant for 14 weeks. In his

report, the victim's age was mentioned as 15 years. He filled

the PCNDT form. He gave written report of his examination

to the police on his letter-head. The evidence of PW-3 and

PW-4 has remained unchallenged.

11. PW-5 Dr. Sethy had examined the victim after

registration of FIR. She gave history about being sexually

and physically abused by the Appellant and of sexual

intercourse multiple times in the past two years. The victim

was found pregnant of about 12 to 14 weeks.


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12. PW-6 Amin Shaikh was a pancha for the spot

panchnama, which is produced on record at Exhibit-37. It

was regarding the house of the Appellant. The spot

panchnama mentions the situation inside the house. Dr.

Dalvi's dispensary was about 20 ft. away from the spot.

13. PW-7 Dr. Sawardekar had taken samples of

femur bone of abortus of victim for DNA analysis on

17.5.2017. The MTP was done on 16.5.2017. He also took

the blood sample of the victim on 18.5.2017 as per the

procedure for DNA testing. He produced the forwarding

letter to the FSL and identification form of the victim. These

documents are produced on record at Exhibits-41 and 42.

The Appellant's blood was taken for DNA profiling in April,

2017.

14. PW-8 Dr. Sangle had examined the Appellant

medically on 20.4.2017 but found that the Applicant was

addicted to bhang. He collected the Appellant's blood for

grouping and serology. According to him, the Appellant was

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capable of performing sexual intercourse. He did not find

any fresh external injury on his body.

15. PW-9 Neha Bhale is an important witness. She

was the Assistant Chemical Analyzer. She had done the DNA

profiling and matching of the baby of the victim. She

received the blood samples and femur bone sample of baby.

She had received the blood samples. She produced the

identification form of the victim at Exhibit-55.

16. PW-10 PSI Bhange had recorded the FIR. She

had arrested the Appellant. In her cross-examination, she

stated that the Appellant was having one daughter from the

first informant. She had not received any complaint from

the doctor on 14.4.2017. She had also recorded the

statement of the victim before referring her for medical

examination.

17. PW-11 PI Thorat was the investigating officer. He

had sent the samples for DNA examination. He had caused

the victim's statement to be recorded under Section 164 of

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Cr.P.C. He accepted that the first informant had not stated in

which month the incident had taken place. No intoxicating

substance was found in the blood of the victim.

18. PW-12 Dr. Siddharth Savardekar had conducted

the test for determination of the victim's age. He has stated

that on 29.1.2019 the victim was brought to Sion Hospital,

where he was working. He conducted the examination along

with his junior Dr. Bale. He sent the victim for examination.

He conducted the dental examination. According to him, on

the dental examination and radiological examination, the

age of the victim was about eighteen years plus or minus one

year.

In the cross-examination, he deposed that fusion

of epiphysis takes place different in rich diet and poor diet.

The victim was from rich diet category. From puberty until

consolidation of skeleton, fairly close estimate within a range

of one or two years can be made out as per the principle of

variance.


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19. Learned counsel for the Appellant submitted

that the evidence of PW-12 Dr. Savardekar shows that that in

his opinion the victim was in the range which could mean

that at the time of incident she may not be a minor. In that

case, irrespective of the DNA matching, the theory of

consent would have to be considered seriously and benefit of

doubt be given to the Appellant. He submitted that the

theory of consent is most probable because the victim had

not complained about any such incidents to her mother or

anybody else though, according to the prosecution case, it

was going on for many months.

20. Learned APP as well as learned counsel for the

Respondent No.2 submitted that the consent in this case

would be totally immaterial because the medical officer Dr.

Savardekar (PW-12) has clearly opined that the victim's age

could be 'plus or minus one year' from 18 years of age when

he conducted examination in the year 2019. Therefore, at

the time of incident which would be prior to April, 2017, she

would definitely be a minor. They submitted that the 12 of 19

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relationship between the parties show that it is a serious

offence. The prosecution has proved its case beyond

reasonable doubt based on the victim's evidence and the

DNA profiling.

21. Shri Garg submitted that there is no evidence of

the Appellant giving any intoxicating substance to the victim,

and therefore, the conviction under Section 328 of IPC is not

correct.

22. I have considered these submissions. Dr.

Savardekar's examination by the prosecution is important.

He has opined through the medical examination that the

victim was 'plus or minus one year' from 18 years of age. He

has conducted that test on 29.1.2019. Therefore, on that

date, according to him, she could be either 17, 18 or 19

years of age. Assuming that she was 19 years of age as per

his outer limit of age, at the time of the ossification test on

29.1.2019, on the date of incident, which had taken place

prior to February,2017, the victim would still be a minor. In

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the absence of any documentary evidence the ossification

test conducted by Dr. Savardekar assumes importance. His

evidence has proved that the victim was a minor at the time

of incident. The victim's evidence shows that it was not an

isolated incident but it was going on for some months.

23. The next question is whether the Appellant was

responsible for the pregnancy and would it indicate that he

has committed those offences. As discussed above, DNA

report clearly shows that the Appellant was the biological

father of the victim's child. That part of the prosecution

evidence has remained unchallenged. In fact, in his

statement under Section 313 of Cr.P.C., the Appellant has

practically admitted the relationship because he has stated

that the victim's real parents performed her Nikah with him

and she became pregnant. He had not stated that he has

nothing to do with her pregnancy. Therefore, the fact that

she became pregnant because of the act of the Appellant is

proved by the prosecution. As discussed earlier, the samples

of the victim, their child and the Appellant himself were 14 of 19

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taken. Those were immediately sent for DNA profiling. The

report is on record.

24. The next question would be whether in such

case, the theory of consent would help the Appellant. At this

stage, even assuming that there was consent, the fact that

the victim was a minor, which is proved by the prosecution,

would mean that even then the defence cannot take any

advantage and the Appellant cannot take a defence that

because of the consent no offence is made out. Even

otherwise, just because the victim had not complained to her

mother before her pregnancy was detected, it cannot be

assumed that the incident had taken place with her consent.

Looking at the nature of relationship between the victim

and the Appellant; and the fact that the victim was staying

under his shelter would mean that it was not easy for the

victim to make complaint against the Appellant. Therefore,

at this stage the Appellant has not established his defence of

consent within the parameters of probability. Even

otherwise, the consent would be immaterial because the 15 of 19

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victim was proved to be a minor at that point of time. In

either case the Appellant does not get any benefit.

25. As far as the allegations of administering or

giving intoxicating substance is concerned, the evidence of

the victim in that regard is vague. There is no other

independent evidence or forensic evidence showing that any

such intoxicating substance was given to the victim.

Therefore, the prosecution has not been able to prove the

charge under Section 328 of IPC. To that extent, only for

that Section the conviction recorded against the Appellant

will have to be set aside.

26. I have heard the parties for consideration of

quantum of sentence. Learned counsel for the Appellant

submitted that the Appellant is continuously in custody since

18.4.2017. More than seven years have passed. Even

during the spread of COVID-19 pandemic, the Appellant was

not released on temporary bail. The Appellant has an old

mother to look after. He has undergone surgery for arthritis.


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Therefore, leniency be shown to him. He further submitted

that the minimum sentence under Section 6 of POCSO Act

and under Section 376(2) of IPC in the year 2017 was ten

years.

27. Learned APP as well as learned counsel for the

Respondent No.2 agree that in the year 2017 the minimum

sentence provided, in such cases, was ten years. They

submitted that the sentence imposed on the Appellant be

maintained.

28. I have considered these submissions. While it is

true that the offence is serious, but in the year 2017 the

minimum sentence for these offences was of ten years. As

rightly submitted by learned counsel for the Appellant, he is

in custody since 18.4.2017 i.e. for seven years without being

released even for a temporary period during the spread of

COVID-19 pandemic. He had undergone surgery for his

arthritis, as is reflected in paragraph-20 of the impugned

judgment and order. The Appellant has an old mother

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dependent on him. Therefore, some leniency can be shown

to him. However, considering the seriousness of the offence,

some sentence more than the minimum sentence is required

to be imposed on him. In my opinion, the substantive

sentence of eleven years would meet the ends of justice.

29. Hence the following order :

:: O R D E R ::

i. The Appeal is partly allowed. The conviction of the

Appellant under Section 6 of the POCSO Act is

maintained. However, instead of sentence of R.I. for

fourteen years, the Appellant is sentenced to suffer R.I.

for eleven years.

ii. The fine of Rs.15,000/- and in default of payment of

fine to suffer further R.I. for six months is maintained.

iii. The conviction and sentence under Section 10 of

POCSO Act are maintained. In view of sentence under

Section 6 of POCSO Act, no separate sentence is

imposed under Sections 376, 376(f)(i)(n) of IPC,

under Section 4 is imposed though his conviction 18 of 19

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under those Sections is maintained.

iv. All the sentences are directed to run concurrently.

v. The Appellant is acquitted from the charges of

commission of offence under Section 328 of IPC.

Consequently, the sentence imposed on him for that

charge is also set aside.

vi. Out of the fine amount, the amount of Rs.15,000/-

shall be paid to the victim as compensation.

vii. The Appellant is granted set off under Section 428 of

Cr.P.C. from 18.4.2017 for the period undergone by him

during investigation and trial.

viii. With this order, the Appeal is disposed of.

ix. With the disposal of the Appeal, the Interim