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2019 DIGILAW 2069 (BOM)

Aslam Haider Khan v. State of Maharashtra

2019-09-05

A.M.BADAR

body2019
JUDGMENT : A.M. Badar, J. 1. By this appeal, the appellant/accused is challenging the judgment and order dated 10th February 2016 passed by the learned Special Judge, Pune, under the Protection of Children from Sexual Offences Act, 2012 (herein after referred to as POCSO Act for the sake of brevity) in Special Sessions Case No. 26 of 2015, thereby convicting the appellant/accused for the offence punishable under Section 6 of the POCSO Act as well as under Section 363 of the Indian Penal Code. For the offence punishable under Section 6 of the POCSO Act, the appellant/accused is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs. 3,000/- and in default, to undergo further rigorous imprisonment for one month. For the offence punishable under Section 363 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for 2 years apart from direction to pay fine of Rs. 2,000/- and in default, to undergo rigorous imprisonment for fifteen days. 2. Facts, in brief, leading to the prosecution and the resultant sentence of the appellant/accused, can be summarized thus: (a) Victim female child, at the relevant time, was below 16 years of age and was taking education in 8th Standard at Dr. Nanasaheb Parulekar High School, Yerwada, run by Pune Municipal Corporation. She was residing along with her parents. Appellant/accused Aslam Khan was her neighbour. On occasion of festival of Bailpola of the year 2014, the appellant/accused took the victim female child/PW3 to Bund garden and after roaming there for about half an hour, the victim female child returned to her house. Her parents came to know about the incident and accordingly, the appellant/accused was questioned by them. He tendered apology. Therefore, no police complaint was filed in the matter. (b) Thereafter, on 18th November 2014, the appellant/accused called the victim female child/PW3 at the fish market of Vikrantwadi. From there, she was taken by a tempo to the Aashray lodge, located at Alandi Road. The appellant/accused then hired a room in that lodge by mentioning name of the victim female child/PW3 as Pooja Salunke. At that place, the appellant/accused committed penetrative sexual assault on the victim female child. She was then dropped at the fish market of Vikrantwadi by the appellant/accused. The appellant/accused then hired a room in that lodge by mentioning name of the victim female child/PW3 as Pooja Salunke. At that place, the appellant/accused committed penetrative sexual assault on the victim female child. She was then dropped at the fish market of Vikrantwadi by the appellant/accused. As her mother came to know about the incident, the victim female child/PW3 approached the appellant/accused, who left her at Alandi town. At that place, she met an elderly person and stayed in the company of elderly people, who came there for darshan. On the next day, that elderly person reached the victim female child/PW3 to her house. The victim female child/PW3 then disclosed the incident to her parents. Her father PW1 Murlidhar Khadke then lodged report Exhibit 15 to police on 19th November 2014 to Police Station Yerwada, which resulted in registration of Crime No. 622 of 2014 against the appellant/accused, for offences punishable under Sections 363, 376 and 506 of the Indian Penal Code as well as under Sections 5 and 6 of the POCSO Act. Routine investigation followed. The victim female child/PW3 was sent for medical examination to the Sassoon Hospital, Pune, where she was examined by PW7 Dr. Tania Anand. The Investigating Officer collected certificate of age of the victim female child/PW3 from her school. On completion of routine investigation, the appellant/accused came to be charge-sheeted. (c) The learned Special Judge framed Charge for offences punishable under Sections 376, 363 and 506 of the Indian Penal Code as well as under Section 6 of the POCSO Act against the appellant/accused. He pleaded not guilty and claimed trial. (d) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eight witnesses. Defence of the appellant/accused was that of total denial. He, however, did not enter in the defence. After hearing the parties, the learned trial court, by the impugned judgment and order, was pleased to convict the appellant/accused and sentenced him accordingly, as indicated in the opening paragraph of this judgment. 3. I have heard the learned counsel appearing for the appellant/accused. He argued that though in her evidence, the victim female child/PW3 has deposed about commission of the incident at the Aashray Lodge, in her statement under Section 164 of the Code of Criminal Procedure, she has stated that the incident took place at Ambe Hotel of Alandi. 3. I have heard the learned counsel appearing for the appellant/accused. He argued that though in her evidence, the victim female child/PW3 has deposed about commission of the incident at the Aashray Lodge, in her statement under Section 164 of the Code of Criminal Procedure, she has stated that the incident took place at Ambe Hotel of Alandi. The appellant/accused is neither owner of the tempo nor that of the motorcycle and no witnesses are examined by the prosecution to show that the tempo or the motorcycle was being used by the appellant/accused. Manager of the lodge was not examined by the prosecution. It is, further, argued that, the register of the lodge shows that Pooja Salunke was a major woman. The learned counsel argued that had the lady accompanying the appellant/accused was minor, owner of the lodge would have objected and would not have given room to them. It is also argued that age of the victim female child/PW3 is not proved by the prosecution. There is no medical evidence regarding age of the victim female child/PW3. Her father has admitted that he has not recorded her birth in the official record and he was deposing about the age approximately. Mother of the victim female child/PW3 has also not deposed about the age of the victim female child/PW3. It is also further argued that history given to the Medical Officer is also not supporting the prosecution case and evidence of PW7 Dr. Tania Anand shows that no rape was committed on the victim female child/PW3. The learned counsel for the appellant/accused relied on the judgment in the matter of Sunil vs. State of Haryana 2010 (1) SCC 742 and argued that in absence of primary evidence regarding age of the victim, benefit of doubt needs to be given to the accused. 4. The learned APP supported the impugned judgment and order. 5. I have considered the submissions so advanced and perused the record and proceedings including the oral as well as documentary evidence. The appellant/accused is convicted of the offence punishable under Section 363 of the Indian Penal Code as well as under Section 6 of the POCSO Act and as such, it is necessary to determine whether the victim female/PW3 is proved to be a child within the meaning of the term as defined by Section 2(d) of the POCSO Act. The appellant/accused is convicted of the offence punishable under Section 363 of the Indian Penal Code as well as under Section 6 of the POCSO Act and as such, it is necessary to determine whether the victim female/PW3 is proved to be a child within the meaning of the term as defined by Section 2(d) of the POCSO Act. Therefore, let us examine evidence regarding age of the victim female child/PW3. Her father PW1 Murlidhar so also her mother PW2 Mahananda are labourers by occupation and are illiterate, as seen from their evidence. Similarly, their parents were also illiterate. PW1 Murlidhar was working as a labourer with a contractor in the Public Works Department of the State whereas PW2 Mahananda was working as a maid servant. Evidence of both these witnesses shows that their daughter, who happens to be the victim of the crime in question, was taking education in a Municipal school and at the time of the alleged offence, she was in 8th Standard. Cross-examination of PW1 Murlidhar shows that the victim female child/PW3 is their only daughter and her birth was not recorded in the office of the Municipal Corporation. PW2 Mahananda has stated before the court that she is not in a position to tell the date of birth of the victim female child/PW3. However, as per version of PW1 Murlidhar, the victim female child/PW3 was born in the month of June 2000. 6. On this backdrop, it is in evidence of the victim female child/PW3 that in the year 2014, she was studying in 8th Standard and she disclosed her age as 14 years, when she entered in the witness box on 6th August 2015. She was unable to tell her date of birth. The prosecution, however, has produced Birth Certificate of the victim female child/PW3 issued by Dr. Nanasaheb Parulekar High School run by Pune Municipal Corporation and as per this certificate, the victim female child/PW3 was born on 1st June 2000. Evidence of the victim female child/PW3 that she was 14 years of age as on 6th August 2015 is not shattered in her cross-examination. Thus, oral evidence of PW1 Murlidhar regarding birth of the victim female child/PW3 in June 2000 is gaining corroboration from version of the victim female child/PW3 as well the documentary evidence in the form of Birth Certificate issued by the Municipal School. Thus, oral evidence of PW1 Murlidhar regarding birth of the victim female child/PW3 in June 2000 is gaining corroboration from version of the victim female child/PW3 as well the documentary evidence in the form of Birth Certificate issued by the Municipal School. Incident in question took place on 18th November 2014 and as such, on that day, the victim female child/PW3 was certainly below 18 years of age. The learned counsel for the appellant/accused relied on the judgment in the matter of Sunil vs. State of Haryana (supra). In that case, PW1 Dr. Verma had clinically examined the prosecutrix and found her secondary sex characters well developed. Hence, he referred the prosecutrix for verification to the Dental Surgeon as well as the Radiologist, but the prosecution failed to get the prosecutrix examined from the Dental Surgeon and Radiologist, despite reference by Dr. Sadhna Verma. This was considered to be a serious flaw by the Honourable Supreme Court in the said matter. It is held therein that in the absence of primary evidence, reports of the Dental Surgeon and the Radiologist would have helped the court in arriving at the conclusion regarding the age of the prosecutrix. Such is not the case in hand. In the instant case, father of the victim female child/PW3 as well as the victim female child/PW3 has categorically deposed about age of the victim female child/PW3, which is gaining corroboration from the school record, and as such, no infirmity can be found in the finding of the learned trial court that the victim female/PW3 was a child, at the time of the alleged offence. 7. So far as the incident in question is concerned, evidence of PW1 Murlidhar shows that his daughter i.e. the victim female child/PW3 went missing on 18th November 2014 and therefore, he lodged report Exhibit 14 to that effect. He, further, stated that, on the next day i.e. on 19th November 2014, one person brought his daughter i.e. the victim female child/PW3 back to the house and after hearing from her as to what happened with her, he took her to the police station and lodged report Exhibit 15 on 19th November 2014. In a similar line, PW2 Mahananda has deposed that her daughter went missing on 18th November 2014 and she was brought back by one person on the next day. In a similar line, PW2 Mahananda has deposed that her daughter went missing on 18th November 2014 and she was brought back by one person on the next day. Thereafter, as per version of PW2 Mahananda, her daughter told her that the appellant/accused had committed rape on her. 8. In the light of this evidence of her parents, victim female child/PW3 has stated that she was taken by the appellant/accused by a four wheeler tempo to Aashray Lodge on Alandi Road, where he had committed rape on her in a room. She further deposed that when she returned to her house, she came to know that her mother became aware about the happenings, and therefore, she left the house and met the appellant/accused, who left her at Alandi town. Evidence of the victim female child/PW3 shows that there she joined company of elder persons who came there for religious purpose. On the next day, she was reached to her house. 9. In the cross-examination of the victim female child/PW3 it is brought on record that at the time of Bailpola festival, she was taken by the appellant/accused to the Bund garden and subsequently, the document at Article A came to be executed by the accused for settling the matter. Her cross-examination reflects that she was taken to the lodge from the fish market, by a tempo, by the appellant/accused, and then the appellant/accused demanded a room by disclosing her name as Pooja Salunke. It is brought on record from her cross-examination that the person from the lodge had not demanded either age proof or I-Card from them. In the light of this material on record, I find no substance in contention of the learned counsel for the appellant/accused that no witness is examined by the prosecution to show that the appellant/accused was using the tempo or the motorcycle. Similarly, the victim female child/PW3 was not cross-examined in order to bring on record the contradiction from her previous statement recorded under Section 164 of the Code of Criminal Procedure, and therefore, it cannot be said that there is discrepancy regarding name of the lodge where the couple stayed. Similarly, when in cross-examination itself the defence has put up the theory propounded by the prosecution to the victim female child/PW3 regarding her visit to the lodge with the appellant/accused, non-examination of the Manager of the lodge is of no consequence. 10. Similarly, when in cross-examination itself the defence has put up the theory propounded by the prosecution to the victim female child/PW3 regarding her visit to the lodge with the appellant/accused, non-examination of the Manager of the lodge is of no consequence. 10. The victim female child/PW3 was examined on 20th November 2014 by PW7 Dr. Tania Anand, Medical Officer working with the Sassoon Hospital, Pune. She found that hymenal injuries were present in the form of multiple tears and the victim female child/PW3 was suffering from perihymenal inflammation. Upon examination of the victim female child/PW3, this Medical Officer further found mucosal abrasion present posteriorly extending from 5 to 7 O'Clock region associated with swelling, redness and congestion. With these findings, as per PW7 Dr. Tania Anand, the victim female child/PW3 was subjected to sexual intercourse. Statement of this witness in cross-examination to the effect that Chemical Analyser's Reports at Exhibit 47 does not indicate rape on the victim female child/PW3, is of no consequence, because those reports were in respect of examination of sample of blood, pubic hair, vaginal swab as well as clothes. Non-finding of positive forensic evidence is of no consequence, in the light of version of the victim female child/PW3 as well as medical evidence supporting her version. 11. The appellant/accused is convicted by the learned trial court for the offence punishable under Section 6 of the POCSO Act without giving any finding as to how penetrative sexual assault committed by the appellant/accused on the victim female child/PW3 is amounting to aggravated penetrative sexual assault. The victim female child/PW3 was not below 12 years or age and the victim female child/PW3 had not deposed that the appellant/accused had committed repeated penetrative sexual assault on her. The appellant/accused is neither a relative of the victim female child/PW3 nor a staff of the school where she was taking education. The learned trial court has not examined whether case of the prosecution regarding penetrative sexual assault, on the basis of evidence adduced by the prosecution, is falling under any of the category mentioned in Section 5 of the POCSO Act. Evidence on record shows that the victim female child/PW3 was taken to a lodge by the appellant/accused where he had committed penetrative sexual assault on her. Therefore, conviction of the appellant/accused under Section 6 of the POCSO Act cannot be sustained. Evidence on record shows that the victim female child/PW3 was taken to a lodge by the appellant/accused where he had committed penetrative sexual assault on her. Therefore, conviction of the appellant/accused under Section 6 of the POCSO Act cannot be sustained. Rather, evidence on record makes out the offence punishable under Section 4 of the POCSO Act, as after enticing the victim female child/PW3, the appellant/accused had committed penetrative sexual assault on her, at the Aashray lodge on Alandi Road. Therefore, the order: ORDER (i) The appeal is partly allowed. (ii) Conviction and resultant sentence of the appellant/accused for the offence punishable under Section 6 of the POCSO Act is quashed and set aside. Instead, the appellant/accused is convicted of the offence punishable under Section 4 of the POCSO Act and is sentenced to suffer rigorous imprisonment for 7 years apart from direction to pay fine of Rs. 3,000/- and in default, to undergo rigorous imprisonment for one month. (iii) Needless to mention that conviction as well as the resultant sentence imposed on the appellant/accused for the offence punishable under Section 363 of the Indian Penal Code is maintained. (iv) Substantive sentences shall run concurrently. (v) With disposal of the appeal, pending Criminal Application No. 1653 of 2018 stands disposed off.