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2025 DIGILAW 389 (BOM)

Sk. Jafar Sk. Khalid v. State of Maharashtra

2025-02-18

G.A.SANAP

body2025
JUDGMENT : G.A. SANAP, J. 1. In this appeal, challenge is to the judgment and order dated 21.09.2017, passed by learned Sessions Judge, Amravati in Special Case (POCSO Act) No. 109 of 2015, whereby the learned Judge convicted the appellant for the offences punishable under Section 8 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act” for short) and under Section 451 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for three years and six months and to pay fine of Rs.5,000/- and in default to suffer SI for one year for the offence punishable under Section 8 of the POCSO Act and rigorous imprisonment for one year and to pay fine of Rs.2,000/- and in default to suffer SI for two months for the offence punishable under Section 451 of the IPC. 2. BACKGROUND FACTS : The report in this case was lodged by the victim girl, who on the date of commission of the offence was 14 years old. The prosecution case, which can be unfolded from the report is that the appellant is the neighbour of the victim girl. On 14.02.2015, the victim was alone at her house. The appellant committed house trespass with an intention to commit an offence. The appellant caught hold the shoulder of the victim from front side. The victim girl was frightened. She ran away from the house and went to the house of her friend Roshni Tayade (PW3), residing near to her house, and narrated the incident to Roshni’s grandmother. The mother of the victim had gone to village Mahuli to meet her ailing grandfather. Her younger brother was out of the house for playing. Her father had also gone out for work. At about 5.30 p.m., her father came back to the house. She narrated the incident to her father. The victim accompanied her father to the police station and lodged the report. 3. On the basis of the report, a crime bearing No.55/2015 was registered at Police Station, Shirkhed, Tah. Morshi, Dist. Amravati. PW4 PI Pradip Pullarwar conducted the investigation. The investigation revealed complicity of the appellant and culminated in filing of the charge-sheet. 4. Learned Sessions Judge framed the charge (Exh.2) against the appellant. The appellant abjured his guilt. His defence is of total denial. Morshi, Dist. Amravati. PW4 PI Pradip Pullarwar conducted the investigation. The investigation revealed complicity of the appellant and culminated in filing of the charge-sheet. 4. Learned Sessions Judge framed the charge (Exh.2) against the appellant. The appellant abjured his guilt. His defence is of total denial. The prosecution, in order to bring home the guilt of the appellant, examined four witnesses. Learned Sessions Judge, on consideration of the evidence, held the appellant guilty and sentenced him as above. The appellant is before this Court in appeal. 5. I have heard Mr. R.P. Joshi, learned advocate appointed to represent the appellant and Mr. M K. Pathan, learned Additional Public Prosecutor for the respondent/State. Perused the record and proceedings. 6. Learned advocate for the appellant submitted that the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt. It is pointed out that the conviction and sentence has been based on the sole testimony of the victim girl. The statement of the victim is unbelievable. It is submitted that the report and the evidence of the victim girl even if considered at the face value would show that the alleged act was not done with sexual intention. It is submitted that the act of the accused holding shoulder, by applying any standard, could not be said to be an offence as defined under Section 7 of the POCSO Act. Learned advocate further submitted that the evidence of PW3, the friend of the victim girl, is not the direct evidence and as such not helpful to corroborate the main incident. Learned advocate submitted that the accused in his 313 statement has disclosed his defence and has substantiated the same on the basis of the evidence available on record. Learned advocate submitted that the prosecution has not adduced documentary evidence to prove the birth date of the victim and therefore, the conviction under Section 7 of the POCSO Act is not sustainable. 7. Learned Additional Public Prosecutor submitted that the intention of the accused needs to be gathered from his conduct and the nature of the act committed by him. Learned APP submitted that the daughter of the accused, who is of the same age of the victim, is the friend of the victim girl. 7. Learned Additional Public Prosecutor submitted that the intention of the accused needs to be gathered from his conduct and the nature of the act committed by him. Learned APP submitted that the daughter of the accused, who is of the same age of the victim, is the friend of the victim girl. Learned APP pointed out that the act committed by the appellant was so serious that it frightened the victim girl to the core and she ran away from her house and went to the house of her friend (PW3). Learned APP submitted that there was no reason for the victim girl to falsely implicate the appellant, who is the father of her friend. Learned APP submitted that the evidence adduced is sufficient to presume the culpable mental state of the appellant, as provided under Section 30 of the POCSO Act. Learned APP took me through the evidence of the victim girl and the report and pointed out that the victim was alone in the house and the appellant after opening the door by the victim caught hold her shoulder from front side. Learned APP submitted that the victim girl was terribly frightened and therefore, she ran away from the spot, before any other overt act was committed by the appellant. Learned APP submitted that the facts and circumstances proved by the prosecution are sufficient to prove the sexual intent of the accused while committing the alleged act with the victim girl. Learned APP submitted that learned Sessions Judge has recorded the cogent and concrete reasons in support of his findings. 8. The victim girl is the star witness of the prosecution. Before proceeding to appreciate the submissions advanced by the learned advocate for the appellant and learned APP for the State, it is necessary to highlight some of the undisputed facts. The accused has not set up the defence of enmity between him and the parents of the victim girl. The appellant has not challenged the birth date of the victim narrated by her. The victim has categorically stated that her birth date is 15.01.2001. The victim girl and the appellant are the neighbours. The daughter of the appellant is the friend of the victim. She is of the age of the victim. PW3 is residing adjoining to the house of the victim. PW3 is the friend of the victim. The victim has categorically stated that her birth date is 15.01.2001. The victim girl and the appellant are the neighbours. The daughter of the appellant is the friend of the victim. She is of the age of the victim. PW3 is residing adjoining to the house of the victim. PW3 is the friend of the victim. All these facts need to be borne in mind while appreciating the submissions touching the aspect of the intention of the appellant while committing the crime. 9. The victim girl, in her evidence, has placed on record the first hand vivid account of the incident. She has stated that on 04.02.2015 at about 3.00 pm, she was alone at the house. The door of the house was closed. She has stated that she was cleaning the house. At that time she heard some voice from outside. She did not pay heed to the same. She stated that the appellant opened the door and entered into the house. She categorically stated that the appellant caught hold her shoulder. She stated that she was terribly frightened and therefore, she pushed the appellant and ran towards the house of her friend Roshni. She stated that the appellant had ill intention to outrage her modesty. She stated that she narrated the incident to her friend Roshni and Roshni’s grandmother. She further stated that her father came back at 5.00 p.m. and she narrated the incident to him. Her father took her to the police station and reported the matter. There was no delay in lodging the report. The cross-examination of the victim girl is very relevant. In her cross-examination, she has reiterated that Heena, the daughter of the appellant, is her friend and she is of her age. In the further part of her cross-examination, the appellant has admitted his presence at the spot of the incident. It was suggested to her that the appellant came to her house for collecting the key of his house kept at her house. She denied the suggestion. It was suggested to her that she was frightened and therefore, she ran away from the spot. She denied this suggestion. She has denied that because she was frightened, she ran away. She has reiterated that after the incident, the appellant went to his house. She has stated that Roshni and her grandmother did not talk to the appellant. It was suggested to her that she was frightened and therefore, she ran away from the spot. She denied this suggestion. She has denied that because she was frightened, she ran away. She has reiterated that after the incident, the appellant went to his house. She has stated that Roshni and her grandmother did not talk to the appellant. It was suggested to her that she was frightened and therefore, false report was lodged against the appellant with the help of her father. She has admitted that she did not narrate this incident to the daughter of the appellant. Perusal of the cross-examination of the victim (PW1) would show that the appellant has admitted his presence at the spot of the incident. According to his defence, he had gone to the house of the victim girl to collect the key of his house. It is to be noted that the victim girl had no reason to falsely implicate the appellant. It is not the case of the appellant that for one reason or the other, he was falsely implicated in this case. The evidence of the victim girl is sufficient to prove the incident as narrated by the victim girl. I do not see any reason to discard and disbelieve her evidence. 10. The evidence of the victim has been corroborated by the evidence of her friend Roshni (PW3). PW3 has stated that the victim girl is her friend. She stated that the incident occurred two years ago at about 2.30 pm to 3.00 pm. She stated that the victim girl came to her house. She was weeping. She was frightened. She categorically stated that the victim girl told them that the appellant came to her house and caught hold her shoulder and thereafter, she came running to her house. PW3 has categorically stated that at that time she noticed that the appellant was standing near the door of the house of the informant. PW3 was subjected to searching cross-examination. Perusal of her cross-examination would show that no material was elicited to discard her evidence. In her cross-examination, PW3 has reiterated that the victim is her friend and her house is at some distance from her house. The evidence of PW3 is very important to prove the conduct of the victim girl. PW3 was subjected to searching cross-examination. Perusal of her cross-examination would show that no material was elicited to discard her evidence. In her cross-examination, PW3 has reiterated that the victim is her friend and her house is at some distance from her house. The evidence of PW3 is very important to prove the conduct of the victim girl. The victim girl immediately after the incident ran towards the house of PW3 in frightened condition and narrated the incident to her and her grandmother. Perusal of her cross-examination would show that her evidence has not been shaken at all. Some of the answers given by her in her cross-examination are sufficient to conclude that she is a trustworthy and credible witness. Perusal of the evidence of PW1 and PW3 together would show that they have narrated before the Court the account of the incident that had occurred on the given date and given time. I do not see any reason to discard and disbelieve their evidence. 11. The next important issue that needs deep consideration is with regard to the intent of the appellant. The appellant, on the date of the incident, was 40 years of age. The daughter of the appellant is the friend of the victim girl. They were studying together. The victim girl has stated that at the relevant time, she was alone at the house. She has stated that the appellant opened the door and came inside the house and caught hold her shoulder from front side. The victim girl, on the date of the incident, was 14 years of age. The intention of the appellant has to be ascertained from the nature of the act committed by him. The victim girl, who was 14 years of age, was capable to read the body language and the intention of the appellant on the basis of the act committed by him. The appellant had no reason to go to the house of the victim. The victim was alone in the house. The victim girl was known to the appellant. The victim being 14 years of age, was fully grown up to understand the intention of the appellant on the basis of the body language and the act committed by the appellant. The victim girl was capable to understand the intention of the appellant behind the act. The victim girl was known to the appellant. The victim being 14 years of age, was fully grown up to understand the intention of the appellant on the basis of the body language and the act committed by the appellant. The victim girl was capable to understand the intention of the appellant behind the act. If the appellant had not committed the act with an intention to sexually assault her, there was no reason for her to get frightened and ran away from the spot. The appellant being the father of her friend, the victim girl, on the basis of the act committed by the appellant and his body language, would have formed a judgment about the intention of the appellant. The conduct of the victim girl running towards the house of her friend (PW3) in frightened condition itself shows that the appellant had committed a serious objectionable act with the victim. The victim narrated the incident to her friend (PW3) and the grandmother of her friend. She narrated the incident to her father when he returned back from work. The appellant did not suggest the defence of enmity in her cross-examination. Similarly, no such defence was put to PW3. The intention of the appellant has to be gathered from the nature of the act committed by him and the surrounding circumstances. The appellant had no reason to touch the shoulder of the victim girl. The victim girl being of the same age of his daughter, would not have unnecessarily implicated him in such a serious crime. 12. The above stated facts and circumstances are required to be borne in mind while appreciating the submissions. The evidence is sufficient to prove that the act was done by the appellant with sexual intent. The act committed was a physical contact without penetration. The available evidence, on minute scrutiny, does not permit me to accede to the submissions advanced by the learned advocate for the appellant that proof of the incident by itself would not be sufficient to attribute the required sexual intent to the appellant. In this backdrop, Section 30 of the POCSO Act needs consideration. Section 30 postulates the presumption of culpable mental state. In this backdrop, Section 30 of the POCSO Act needs consideration. Section 30 postulates the presumption of culpable mental state. Section 30 of the POCSO Act is extracted below :- Section 30 – Presumption of cuopable mental state (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.” 13. Perusal of this section would show that in any offence under the POCSO Act, which requires culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state. This presumption is rebuttable. The burden is on the accused to rebut the presumption and prove that he had no such mental state with respect to the act charged as offence in that presumption. In this case, the prosecution has proved the act committed by the appellant with the victim girl. The surrounding circumstances have also been established. The facts and circumstances are sufficient to establish the culpable mental state of the appellant. In my opinion, the presumption under Section 30 of the POCSO Act would get triggered against the appellant. The appellant has not adduced any evidence to rebut the same. 14. In this case, the prosecution has proved the alleged act committed by the appellant. Similarly, the prosecution has proved that the act was committed by the appellant with sexual intent. The evidence is sufficient to establish the basic ingredients of Section 7 of the POCSO Act. It is evident that the appellant has not challenged the birth date of the victim girl. It seems that since the appellant has not challenged the birth date of the victim, the prosecution did not examine further witness and produce document with regard to the birth date of the victim. The victim has categorically stated her birth date. The victim was taking education at the time of the incident. It seems that since the appellant has not challenged the birth date of the victim, the prosecution did not examine further witness and produce document with regard to the birth date of the victim. The victim has categorically stated her birth date. The victim was taking education at the time of the incident. The incident occurred on 14.02.2015. It is, therefore, apparent that on the date of the incident, the victim was around 14 years of age. In the facts and circumstances, I conclude that the learned Sessions Judge was right in rejecting the defence of the appellant. The evidence is sufficient to prove the guilt of the appellant. I do not see any substance in the appeal. The appeal, therefore, deserves to be dismissed. 15. Before parting with the matter, it is necessary to acknowledge the able assistance rendered by Mr. R. P. Joshi, learned advocate appointed to represent the appellant. The valuable assistance rendered to this Court by him is appreciated. 16. The appeal is accordingly dismissed. 17. The fees of the learned advocate appointed to represent the appellant in this case is required to be paid to him as per the Rules. The High Court Legal services Sub Committee Nagpur shall pay the fees of the learned appointed advocate for the appellant as per the rules.