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2019 DIGILAW 442 (BOM)

Saddam Ilai Shaikh v. State of Maharashtra

2019-02-13

A.M.BADAR

body2019
JUDGMENT : A.M. Badar, J. 1. By this appeal, the appellant/accused Saddam Ilai Shaikh is challenging the judgment and order dated 20th April 2017 passed by the learned Additional Sessions Judge, Solapur, in Sessions Case No. 166 of 2014 thereby convicting him of offences punishable under Sections 376 and 363 of the Indian Penal Code as well as under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act for the sake of brevity). For the offences punishable under Section 376 of the Indian Penal Code as well as under Section 4 of the POCSO Act, he is sentenced to suffer rigorous imprisonment for seven years apart from imposition of fine of Rs. 5,000/- and default sentence of rigorous imprisonment for four months. The appellant/accused is sentenced to suffer rigorous imprisonment for two years apart from direction to pay fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for one month for the offence punishable under Section 363 of the Indian Penal Code. The learned trial Court has directed that substance sentences shall run concurrently. 2. Facts in brief, leading to the prosecution and resultant conviction of the appellant/ accused as thus: (a) First Informant/Rajendra @ Rajshekhar Swami was resident of India Nagar area of Solapur. He was having two daughters. The victim of the crime in question is her younger daughter, who at the relevant time was aged about 16 years. The incident in question allegedly took place at about 6.00 p.m. of 23.04.2014. The victim female child/PW-3 had been to the tailoring shop at about 6.00 p.m. for collecting her clothes. When she reached near Timappa Banda Prashala, Solapur at about 6.00 p.m. the appellant/accused came there on his M-80 moped. He assured that he will reach her to her house on the two wheeler vehicle. The appellant/accused then took the victim female child/PW-3 to the open land near yarn mill at MIDC, Solapur. There he committed penetrative sexual assault on her. She was then reached to the house of her maternal uncle PW-4/Mallayya Sharnayya Swami by him. (b) In the meanwhile, upon noticing the fact that his daughter is missing, PW-1/Rejendra Mannath Swami started frantic search of the victim female child/PW-3. Upon getting information that she is at the house of PW-4/Mallayya Sharnayya Swami, he reached there. She was then reached to the house of her maternal uncle PW-4/Mallayya Sharnayya Swami by him. (b) In the meanwhile, upon noticing the fact that his daughter is missing, PW-1/Rejendra Mannath Swami started frantic search of the victim female child/PW-3. Upon getting information that she is at the house of PW-4/Mallayya Sharnayya Swami, he reached there. At that place, the victim female child/PW-3 disclosed them that she was subjected to the penetrative sexual assault by the appellant/accused. (c) The victim female child/PW-3 was then taken to Police Station, Sadar, Solapur where she lodged report Exhibit 18. (d) The victim female child/PW-3 was then sent to the Civil Hospital, Solapur where she was examined by PW-7/Dr. Vijaysing Pradeep Sathe, resident doctor on 24.04.2014. On 26.04.2014 she was examined by PW-8/Dr. Santosh Baburao Bhoi. (e) During the course of investigation, the appellant/accused came to be arrested. Spot of the incident came to be inspected in presence of PW-2/Kumar Madan Alsande. Spot Panchnama Exhibit 21 came to be drawn. Clothes of the victim female child/PW-3 came to be seized vide Panchnama Exhibit 22. In presence of PW-5/Mahesh Nagnath Bhimanpalli, clothes of the appellant/accused came to be seized by preparing Seizure Panchnama Exhibit 28. The vehicle used in commission of the subject crime came to be seized under Panchnama Exhibit 30. Statement of the witnesses came to be recorded and on completion of investigation, the appellant/accused came to be charge-sheeted. (f) The learned trial Court framed the charges and the same was explained to the appellant/ accused. He pleaded not guilty and claimed trial. (g) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eleven witnesses. Defence of the appellant/accused was that of total denial. (h) After hearing the parties, the learned trial Court was pleased to hold that the prosecution has established the guilt of the appellant/accused for offence punishable under Sections 363 and 376 of the Indian Penal Code as well as under Section 4 of the POCSO Act. Accordingly, he came to be convicted and sentenced as indicated in the opening paragraph of this judgment. 3. I have heard Ms. Megha Bajoria, the learned Counsel appointed to represent the appellant/accused at the costs of the State. She argued that evidence of the prosecution is not of a standard required for proving guilt of the accused in such serious offence. 3. I have heard Ms. Megha Bajoria, the learned Counsel appointed to represent the appellant/accused at the costs of the State. She argued that evidence of the prosecution is not of a standard required for proving guilt of the accused in such serious offence. Age of the alleged victim is not proved by the prosecution as extract of birth register produced by PW-11/Sherikar Abdul Hamid Dastagir is showing name of father of the victim female child/PW-3 as Rajshekhar whereas while in the witness box, father of the victim female child/PW-3 has stated his name as Rajendra. Apart from this, the prosecution has not adduced any evidence to establish age of the victim female child/PW-3. The learned Counsel further argued that evidence of the victim female child/PW-3 shows that she herself had accompanied the appellant/accused. Her evidence regarding commission of rape on her is not acceptable in view of the fact that spot of the incident was situated at a populous area. It was not probable that the victim female child/PW-3 would have been kidnapped from a populous place and she was subjected to rape in a populous area of MIDC, Solapur. 4. The learned Additional Public Prosecutor supported the impugned judgment and order of conviction and resultant sentence by contending that evidence of the victim female child/PW-3 is corroborated by medical evidence adduced by the prosecution on record. Similarly, entry in the birth register is sufficient to establish birth of the victim female child/PW-3 on the date mentioned in the birth register. 5. I have carefully considered the submissions so advanced and also perused the record and proceedings including oral as well as documentary evidence. 6. As the learned trial Court has held that the offence punishable under Section 4 of the POCSO Act is proved by the prosecution, let us at the first place examine whether the prosecution has proved the fact that the victim female child/PW-3, at the relevant time was below 18 years of age. The learned Counsel for the appellant/accused had drawn my attention to the cross-examination of the victim female child/PW-3 where she had admitted that age of her elder sister is about 20-21 years and she herself was born one year after birth of her elder sister. The learned Counsel for the appellant/accused had drawn my attention to the cross-examination of the victim female child/PW-3 where she had admitted that age of her elder sister is about 20-21 years and she herself was born one year after birth of her elder sister. With this, according to the learned Counsel for the appellant/accused, in all probabilities the victim female child/PW-3 was more than 18 years of age at the time of commission of offence. It is seen from the evidence of the victim female child/PW-3 that she is not aware about her date of birth. While in the witness box in January 2016, she had stated her age as 16 years. Her father PW-1/Rejendra Mannath Swami has stated in his deposition that the victim female child/PW-3 is aged about 16 years. He has also not stated date of birth of his daughter. Thus, oral evidence in respect of age of the victim female child/PW-3 is far from satisfactory. However, in order to prove her age, the prosecution has examined record keeper from the Municipal Corporation, Solapur. He is PW-11/Sherikar Abdul Hamid Dastagir. This witness had produced original birth register before the Court and had placed photocopy of the relevant page of the birth register during the course of recording of his evidence. That photocopy was tallied from the original birth register by the learned trial Court and the photocopy of relevant page of the birth register is at Exhibit 57. It is seen from the document at Exhibit 57 that the victim female child/PW-3 was born on 23.03.1998. Name of her father is stated to be Rajshekhar Mannath Swami in the birth register. However, it is seen that in the year 2016, father of the victim female child/PW-3 had made necessary application to the Registering Authority and had got his name changed from Rajshekhar to Rajendra in the said birth register. The victim female child/PW-3 while in the witness box has stated that name of her father is Rajendra @ Rajshekhar Swami. As such, it cannot be doubted that the entry in the birth register Exhibit 57 is not of birth of the victim female child/PW-3. Birth register is maintained by the Registrar as per provisions of the Registration of Birth and Death Act, 1969 and there is presumption of correctness of entries made in the birth register. As such, it cannot be doubted that the entry in the birth register Exhibit 57 is not of birth of the victim female child/PW-3. Birth register is maintained by the Registrar as per provisions of the Registration of Birth and Death Act, 1969 and there is presumption of correctness of entries made in the birth register. There is nothing in cross-examination of the record keeper to doubt the entry regarding birth of the victim female child/P W-3, nor it can be said that the birth register is not maintained as per the prescribed procedure under the relevant statute. Similarly, oral evidence regarding age of the victim female child/PW-3 is not challenged by the accused in cross-examination of either PW-1/Rejendra Mannath or the victim female child/PW-3. Thus, it needs to be held that the victim female child/PW-3 was born on 23.03.1998 and as such at the time of the incident in question, she was below 18 years of age and as such was a child as defined by Section 2(d) of the POCSO. 7. Now let us examine whether the prosecution has proved that the victim female child/PW-3 was subjected to penetrative sexual assault by the appellant/accused after kidnapping her from lawful custody of her guardian. Evidence of the victim female child/ PW-3 shows that at about 6.00 p.m. of 23.04.2014 when she was near Timappa Banda Prashala, the appellant/accused accosted her and told her that he would reach her to her house. At that time, the appellant/accused was on M-80 moped. The victim female child/ PW-3 deposed that initially she showed her reluctance, but because the appellant/accused forced her, she sat on his moped. This witness further testified that the appellant/accused then took her to one hotel where he offered her cold drink. After having that cold drink, the appellant/accused took her behind a yarn mill. In the open land behind that yarn mill, he committed penetrative sexual assault on her. The victim female child/PW-3 further stated that he then dropped her to house of PW-4/Mallayya Sharnayya Swami. She had also spoken about narration of the incident to her parents. As per her version, then she was taken to the police station where her father PW-1/Rejendra Mannath lodged report. Thereafter, she was sent to the Civil Hospital. The victim female child/PW-3 has duly identified the appellant/accused while in the talk. 8. She had also spoken about narration of the incident to her parents. As per her version, then she was taken to the police station where her father PW-1/Rejendra Mannath lodged report. Thereafter, she was sent to the Civil Hospital. The victim female child/PW-3 has duly identified the appellant/accused while in the talk. 8. In cross-examination, it was suggested to the victim female child/PW-3 that the place from which she was taken by the appellant/accused is a populous place having houses of both sides of the road, there used to be heavy traffic from which they proceeded, she admitted that she did not raise any alarm while accompanying the appellant/accused. The victim female child/PW-3 denied that the appellant/accused did not commit forcible sexual intercourse on her. 9. The victim female child/PW-3 was enticed by the appellant/accused on the pretext of reaching her to her house by a two wheeler vehicle. As such, not raising hue and cry by her during the journey with the appellant/accused is of no consequence. 10. Now let us examine whether evidence of the victim female child/PW-3 is gaining corroboration from other evidence on record. She was examined immediately on the next day by PW-7/Dr. Vijaysing Pradeep Sathe of the Civil Hospital, Solapur. Evidence of this medical officer shows that upon examination of the victim female child/PW-3, he found that there was hymen tear at 9 O'clock position and the edges of the tear were fresh. Evidence of this medical officer is duly corroborated by contemporaneous medical certificate at Exhibit 33 which is also reflecting the very same position. With the finding of torn hymen having fresh tear, the medical officer opined that the findings are consistent with sexual intercourse with the victim. In cross-examination, it was suggested to this PW-7/Dr. Vijaysing Pradeep Sathe that victim of such offence can suffer injuries on back as well as legs. However, no further question was asked to the medical officer as the victim female child/PW-3 was not having any injuries on her. Hence, such half part cross- examination of PW-7/Dr. Vijaysing Pradeep Sathe is of no consequence. Even if it is assumed that the victim female child/PW-3 had not offered any resistance leading to external injuries on her as she was below 18 years of age, her consent, if any, is otherwise irrelevant. 11. Hence, such half part cross- examination of PW-7/Dr. Vijaysing Pradeep Sathe is of no consequence. Even if it is assumed that the victim female child/PW-3 had not offered any resistance leading to external injuries on her as she was below 18 years of age, her consent, if any, is otherwise irrelevant. 11. On 26.04.2014 the victim female child/PW-3 was medically examined by another doctor of Civil Hospital, Solapur. This medical officer PW-8/Dr. Santosh Baburao Bhoi has stated in his evidence that he found contusion of size 3 x 1 cm at outer aspect of lower end of right arm of the victim female child/PW-3. Finding of this injury certainly indicates that the victim female child/PW-3 was ravished on the open plot of land causing injury to her. 12. Evidence of PW-4/Mallayya Sharnayya Swami fully corroborates version of the victim female child/PW-3. As per version of this witness, upon coming to know the fact of the victim female child/PW-3 going missing, he as well as other relatives of the victim female child/PW-3 searched her. As per version of PW-4/Mallayya Sharnayya Swami, at about 10.30 p.m. the appellant/accused came alongwith the victim female child/PW-3 and left her. It is thus clear that the victim female child/PW-3 was in company of the appellant/ accused soon after the incident. PW-4/Mallayya Sharnayya Swami as well as PW-1/ Rejendra Mannath have heard narration of the victim female child/PW-3 immediately after the incident. She had spoken about penetrative sexual assault on her by the appellant/ accused before both these witnesses. Thus, evidence of the victim female child/PW-3 is corroborated by evidence of PW-1/Rejendra Mannath as well as PW-4/Mallayya Sharnayya Swami. 13. The net result of the forgoing discussion requires me to hold that the prosecution has successfully proved that the victim female child/PW-3 was kidnapped by the appellant/ accused on 23.04.2014 and thereafter she was subjected to the penetrative sexual assault by him. As such, no infirmity can be found in the impugned judgment and order of conviction and resultant sentence. In the result, the appeal is devoid of merits and therefore the order: ORDER: The appeal is dismissed.