SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Mohd Azad Ahmed Ali Khan vs The State Of Maharashtra on 24 April, 2018

APPEAL-997-2015-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.997 OF 2015

MOHD. AZAD AHMED ALI KHAN )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Aniket Vagal, Advocate for the Appellant.

Ms.Anamika Malhotra, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 24th APRIL 2018

ORAL JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 13 th August 2015 passed by the

learned Designated Court under the Protection of Children from

Sexual Offences Act, 2012, for Greater Bombay, Mumbai, in

Sessions Case No.351 of 2013, thereby convicting the

avk 1

::: Uploaded on – 27/04/2018 28/04/2018 01:14:24 :::
APPEAL-997-2015-J.doc

appellant/accused of the offence punishable under Section 4 of

the Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as POCSO Act for the sake of brevity) as

well as under Sections 363 and 366 of the Indian Penal Code. For

the offence punishable under Section 4 of the POCSO Act, the

appellant/accused is sentenced to suffer rigorous imprisonment

for a period of 7 years apart from payment of fine of Rs.2,000/-

and default sentence of further rigorous imprisonment for 2

months. For the offence punishable under Section 363 of the

Indian Penal Code, the appellant/accused is sentenced to suffer

rigorous imprisonment for 7 years apart from payment of fine of

Rs.2,000/- and default sentence of rigorous imprisonment for 2

months. For the offence punishable under Section 366 of the

Indian Penal Code, the appellant/accused is sentenced to suffer

rigorous imprisonment for 10 years apart from payment of fine of

Rs.3,000/- and default sentence of rigorous imprisonment for 3

months.

avk 2

::: Uploaded on – 27/04/2018 28/04/2018 01:14:24 :::

APPEAL-997-2015-J.doc

2 Facts, in brief, leading to the prosecution of the

appellant/accused are thus :

(a) Victim of the offence, at the relevant time, was a minor

female child, her date of birth being 19 th June 1995. She

was taking education in Nyay Sampada School, Shivaji

Nagar, Mumbai, and was residing along with her parents

and brothers at Shanti Nagar, Bainganwadi, Govandi,

Mumbai.

(b) The appellant/accused used to work in a factory making

envelopes which was located in front of the house of the

prosecutrix/PW1. He used to stare at the prosecutrix/PW1

and thereafter established contact with her. He informed the

prosecutrix/PW1 that he is a divorcee and loves her. Then,

the couple started talking with each other.

(c) PW2 Ankush is father of the prosecutrix/PW1. He got

information that his daughter i.e. the prosecutrix/PW1 is

avk 3

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

roaming with the appellant/accused. He had also seen his

daughter/prosecutrix/PW1 talking with the appellant/

accused.

(d) It is case of the prosecution that the appellant/accused told

the prosecutrix/PW1 to meet him at Shivaji Nagar area of

Mumbai on 15th December 2012. Accordingly, the

prosecutrix/PW1 met the appellant/accused. He, then, took

her to Kurla and thereafter to Mumbra, where they stayed at

the room of the friend of the appellant/accused. At that

place, the appellant/accused committed rape on the

prosecutrix/PW1. The prosecutrix/PW1 was then taken by

the appellant/accused to Kalyan and from there to Kasara,

Bhusawal and ultimately to Raipur, where they stayed at the

house of the friend of the appellant/accused.

(e) In the meanwhile, noticing the fact that his daughter went

missing from 15th December 2012, her father PW2 Ankush

lodged report Exhibit 9 with Police Station Shivaji Nagar,

avk 4

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

Mumbai, on 16th December 2012, which has resulted in

registration of Crime No.430 of 2012 for offences

punishable under Sections 363, 366 and 368 of the Indian

Penal Code against the appellant/accused. The fact of

kidnapping the prosecutrix/PW1 by the appellant/accused

came to the knowledge of the father of the

appellant/accused. He, therefore, went to Raipur and took

the couple back to Mumbai on 20th December 2012. They all

then had a night halt at Hotel Victoria owned by PW9

Mohd.Yasin. According to the prosecution case, when father

of the appellant/accused had been to the bathroom at that

hotel, the appellant/accused again committed rape on the

prosecutrix/PW1. On the next day i.e. on 21 st December

2012, the prosecutrix/PW1 as well as the appellant/accused

was taken to Police Station Shivaji Nagar and the

appellant/accused came to be arrested by PW8 Vijay Jadhav,

Assistant Police Inspector.

avk 5

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

APPEAL-997-2015-J.doc

(f) During the course of investigation, clothes of the

prosecutrix/PW1 as well as that of the appellant/accused

came to be seized by preparing Seizure Panchnamas Exhibit

17 and Exhibit 20 in presence of PW4 Shahanzbee Anwar

Shaikh and PW5 Shabbar Raza respectively. The

prosecutrix/PW1 was sent for medical examination at the

Police Hospital Nagpada, where she was examined by PW3

Dr.Baban Shinde. The spot of the incident was inspected

and Spot Panchnama Exhibit 23 was prepared. The Guest

Register of Hotel Victoria came to be seized. Similarly, the

Investigating Officer collected the Birth Certificate of the

prosecutrix/PW1. On completion of investigation, the

appellant/accused came to be charge-sheeted. The learned

trial court framed the Charge for offences punishable under

Sections 363 and 366 of the Indian Penal Code as well as

under Section 4 of the POCSO Act. The appellant/accused

pleaded not guilty and claimed trial. His defence was that of

total denial and false implication.

avk 6

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

APPEAL-997-2015-J.doc

(g) In order to bring home the guilt to the appellant/accused,

the prosecution has examined in all eleven witnesses. The

prosecutrix is examined as PW1. Her father Ankush is

examined as PW2. The First Information Report (FIR)

lodged by him is at Exhibit 9. Dr.Baban Shinde of Nagpada

Police Hospital is examined as PW3. Panch witnesses

Shahanzbee Anwar Shaikh and Shabbar Raza are examined

as PW4 and PW5 respectively. PW6 Farid Amir is a panch

witness to the Spot Panchnama Exhibit 23. Assistant Police

Inspector Salim Khan of Shivaji Nagar Police Station, who

registered the FIR is examined as PW7. Vijay Jadhav,

Assistant Police Inspector of Shivaji Nagar, who has

investigated the crime in question is examined as PW8.

Mohd.Yasin – owner of Victoria Guest House is examined as

PW9. Chandrakant Dalvi, Assistant Police Inspector, is

examined as PW10.

(h) After hearing the parties and after considering the evidence

made available on record, the learned trial court, by the

avk 7

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

impugned judgment and order dated 13th August 2015 was

pleased to convict the appellant/accused of offences

punishable under Sections 4 of the POCSO Act as well as

under Sections 363 and 366 of the Indian Penal Code. He is,

accordingly sentenced, as indicated in the opening

paragraph of this judgment.

3 I have heard Shri Vagal, the learned advocate

appearing for the appellant/accused at sufficient length of time.

He took me through the entire evidence adduced by the

prosecution and submitted that the case in hand cannot be a case

of kidnapping a minor girl from out of keeping of her lawful

guardians. Cross-examination of the prosecutrix/PW1 so also that

of the Investigating Officer shows that the couple was in love and

it was the prosecutrix/PW1, who had joined the company of the

appellant/accused. Hence, no case of taking the prosecutrix/ PW1

is made out by the prosecution. Therefore, in submission of the

learned advocate appearing for the appellant/accused, the

prosecution has not proved that the prosecutrix/PW1 was taken

avk 8

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

by the appellant/accused with an intention of subjecting her to

illicit intercourse with him. The learned advocate further argued

that age of the prosecutrix/PW1 is not proved by the prosecution

and therefore, it cannot be said that at the time of alleged

penetrative sexual assault on the prosecutrix/PW1, she was below

18 years of age. Hence, the offence punishable under Section 4 of

the POCSO Act is not made out. With this, the learned advocate

prayed for acquittal of the appellant/accused.

4 As against this, the learned APP supported the

impugned judgment and order of conviction and the resultant

sentence by submitting that the prosecution has duly proved the

age of the prosecutrix/PW1 by placing on record certificate of her

birth issued by the concerned Registrar under the Registration of

Births and Deaths Act, 1969. This Birth Certificate is

corroborating the version of the prosecutrix/PW1 that her date of

birth is 19th June 1995, and as such, she was a minor female child

at the time of the incident in question. The learned APP, therefore,

submitted that the appeal is liable to be dismissed.

avk 9

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

APPEAL-997-2015-J.doc

5 I have carefully considered the rival submissions and

also perused the Record and Proceedings including the oral as well

as documentary evidence. In the case in hand, the prosecution

has alleged that the appellant/accused had taken the

prosecutrix/PW1 from lawful custody of her parents with an

intention to commit illicit intercourse with her and subsequently,

had committed penetrative sexual assault on her. The offence of

committing penetrative sexual assault took place, according to the

prosecution case, during the period from 15 th December 2012 to

21st December 2012. At this juncture, it needs to be noted that the

appellant/accused was not charged for the offence punishable

under Section 376 of the Indian Penal Code. Prior to

enforcement of the Criminal Law (Amendment) Act, 2013, with

effect from 3rd February 2013, as per provisions of Section 375 of

the Indian Penal Code, prevalent at that time, a man was said to

commit rape if he has sexual intercourse with a woman, with or

without her consent, when she was under 16 years of age.

Similarly, as provided by Section 361 of the Indian Penal Code,

avk 10

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

taking or enticing any minor female under 18 years of age from

out of the keeping of the lawful guardian of such minor, without

the consent of such guardian, amounts to offence of kidnapping

such minor from lawful guardianship. As per provisions of Section

2(d) of the POCSO Act, the child means any person below the age

of 18 years. Considering the charge leveled against the appellant/

accused, age of the prosecutrix/PW1 assumes importance and at

the outset, let us examine, whether she was proved to be below

the age of 18 years, at the time of commission of the alleged

offence.

6 During the course of investigation, PW8 Vijay Jadhav,

Assistant Police Inspector, had collected Birth Certificate of the

prosecutrix/PW1. The original thereof was produced before the

learned trial court and it came to be marked as Exhibit 33.

Perusal of the Birth Certificate at Exhibit 33 issued by the Sub-

Registrar under the provisions of Sections 12 and 17 of the

Registration of Births and Deaths Act, 1969, shows that the

prosecutrix/PW1 was born on 19th June 1995 at Mumbai to PW2

avk 11

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

Ankush. The learned advocate for the appellant/accused

attempted to point out that this Birth Certificate is not proved by

the prosecution. The Certificate at Exhibit 33 is issued by Public

Health Department of Brihan Mumbai Mahanagar Palika i.e.

Municipal Corporation of Greater Mumbai. As per provisions of

Rule 9 of the Maharashtra Registration of Births and Deaths Rules,

1976, the Certificate is issued by the Sub-Registrar acting under

the provisions of the Registration of Births and Deaths Act, 1969.

Section 7 thereof deals with appointment of Registrars for each

local area comprising the area within the jurisdiction of the

municipality, panchayat or other local authority. It is the duty of

the Registrar to register every birth and every death which takes

place in his jurisdiction. This Act mandates that the Registrar

should discharge his duties carefully. Section 8 of this Act

mandates each head of the house to report birth in the family to

the Registrar. The Act provides for maintenance of register for

recording birth and death within the local area. That is how,

Certificate at Exhibit 33 came to be issued by the Sub-Registrar as

per provisions of Sections 12 and 17 of the said Act. The

avk 12

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

certificate at Exhibit 33, as such, is issued by the Public Officer

and it is a document forming the record of the acts of the Public

Officer and therefore the same is a public document within the

meaning of the said term as per provisions of Section 74 of the

Indian Evidence Act, 1872. The same is admissible in evidence by

mere production thereof in view of provisions of Section 77 of the

Evidence Act. Section 17 of the Registration of Births and Deaths

Act, 1969, provides for search of Birth Register and supply of

extract thereof by certifying the same by the Registrar or other

authorized Officer. Section 17 of the said Act provides that such

extract shall be admissible in evidence for the purpose of proving

birth or death to which the entry relates. The Birth Certificate

Exhibit 33 is, infact, the extract of Birth Register in respect of

entry of birth of the prosecutrix/PW1, and as such, admissible in

evidence. Section 35 of the Evidence Act, 1872, makes it clear

that if entry is made by public servant in the official book in

discharge of his official duty, then such entry becomes the relevant

fact and admissible in evidence.

avk 13

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

APPEAL-997-2015-J.doc

7 In the case in hand, the defence has not challenged the

recorded date of birth of the prosecutrix/PW1. Even this recorded

date of birth of the prosecutrix/PW1 is in tune with her date of

birth deposed by the prosecutrix/PW1. Thus, the prosecution has

established the fact that the prosecutrix/PW1 was born on 19 th

June 1995. The alleged offence took place from 15 th December

2012 to 21st December 2012. Thus, the prosecution has proved

the fact that at the time of commission of alleged offence, the

prosecutrix/PW1 was below 18 years of age.

8 Now let us examine whether by evidence adduced by

it, the prosecution has established that the appellant/accused had

kidnapped the prosecutrix/PW1 from out of lawful custody of her

parents with an intention to commit illicit intercourse with her

and had, infact, committed penetrative sexual assault on her.

Considering the nature of alleged offence, evidence of the

prosecutrix/PW1 is of great importance in the case in hand. Let

us, therefore, examine what the prosecutrix/PW1 is stating about

avk 14

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

the incident of kidnapping and commission of penetrative sexual

assault on her by the appellant/accused.

9 It is in evidence of the prosecutrix/PW1 that she used

to reside with her parents at Shivaji Nagar, Govandi, in Mumbai,

and the appellant/accused was working in a factory situated in

front of her house. As per version of the prosecutrix/PW1, the

appellant/accused gave his cell phone number to her and told her

that he loves her. He told her that he is a divorcee and asked her

to meet him on 15th December 2012. Accordingly, the

prosecutrix/PW1 met the appellant/accused on 15th December

2012. The prosecutrix/PW1 further stated that the

appellant/accused then took her to Kurla and from there to

Mumbra. At Mumbra, they stayed in the room of his friend and

during that stay, the appellant/accused had committed forcible

sexual intercourse with her. As stated by the prosecution, then on

16th December 2012, the couple went to Kalyan, Kasara, Bhusawal

and then to Raipur, where they stayed with the friend of the

appellant/accused. The prosecutrix/PW1 was introduced as his

avk 15

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

wife by the appellant/accused. The prosecutrix/PW1 further

deposed that then the father of the appellant/accused came to

Raipur and took them back to Mumbai. At Mumbai, they had a

night halt at the lodge located at Masjid Bunder area of Mumbai.

Her name was entered as Seema Khan in the register of that hotel.

During the night halt at that lodge, as per version of the

prosecutrix/PW1, the appellant/accused committed sexual

intercourse with her. In the morning, they went to the police

station, where her statement came to be recorded. She deposed

that then her clothes were seized.

10 During course of her cross-examination, the

prosecutrix/PW1 has candidly admitted the fact that she used to

meet the appellant/accused since three months prior to the

incident in question. Her father then told her that she will be

married to somebody else. Cross-examination of the

prosecutrix/PW1 further reveals that then on 15th December 2012,

she made a telephone call to the appellant/accused and met him

of her own accord. She candidly accepted the fact that because of

avk 16

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

love affair with the appellant/accused, she had gone with him out

of her own will. She did not telephonically contact her parents

from 16th December 2012 to 21st December 2012 and even did not

disclose either to the friend of the appellant/accused or to the wife

of the said friend that she has been raped by the appellant/

accused. She neither made any efforts to return to her home nor

told anybody either during the course of her journey or stay, that

she had been forcibly taken by the appellant/accused. Thus, in

cross-examination, the prosecutrix/PW1 has clearly stated that she

joined the company of the appellant/accused of her own by

contacting him telephonically and accompanied him to several

places and stayed with him without any protest but rather out of

her own free will and desire.

11 PW8 Vijay Jadhav, Assistant Police Inspector, is the

Investigating Officer of the case in hand. In his cross-examination,

this Investigating Officer has categorically admitted that during

investigation he came to know that there was love affair between

the appellant/accused and the prosecutrix/PW1. They were

avk 17

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

meeting each other since last three months and it was the

prosecutrix/PW1, who telephonically contacted the appellant/

accused on 15th December 2012 and on her own volition went to

Mumbra and thereafter to Raipur. The Investigating Officer,

further, admitted in his cross-examination that even on 21 st

December 2012, the prosecutrix/PW1 was not prepared to come

back to Mumbai and no force or threat was given by the

appellant/accused to her for establishing physical relationship.

From cross-examination of PW8 Vijay Jadhav, the Investigating

Officer, it is brought on record that evidence of the prosecutrix/

prosecutrix/PW1, to the effect that the appellant/accused had

committed forcible sexual intercourse with her, has come on

record by way of omission. She has not disclosed about

application of force to her by the appellant/accused in order to

commit sexual intercourse with her, to the police, while recording

her statement. Cumulative effect of this material elicited on

record from the evidence of the prosecutrix/PW1 as well as from

the cross-examination of the Investigating Officer, unerringly

points out that the prosecutrix/PW1, who was more than 17 years

avk 18

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

and 6 months of age, was knowing what was good and what was

bad for her. She had undergone school education up to 10 th

Standard prior to the incident in question. Out of her free will,

she contacted the appellant/accused on 15th December 2012, most

probably because her father was settling her marriage with

somebody else. Then, she went to Raipur along with the

appellant/accused and stayed there for few days, till taking her

back to Mumbai by the father of the appellant/accused.

12 At this juncture, it is apposite to quote observations of

the Honourable Apex Court in the matter of S. Varadarajan vs.

State of Madras1. It reads thus :

“It must, however, be borne in mind that there is a
distinction between “taking” and allowing a minor to
accompany a person. The two expressions are not
synonymous though we would like to guard
ourselves from laying down that in no conceivable
circumstance can the two be regarded as meaning
the same thing for the purposes of Section 361 of
the Indian Penal Code. We would limit ourselves to a
1 AIR 1965 SC 942

avk 19

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

case like the present where the minor alleged to
have been taken by the accused person left her
father’s protection knowing and having capacity to
know the full import of what she was doing
voluntarily joins the accused person. In such a case
we do not think that the accused can be said to have
taken her away from the keeping of her lawful
guardian. Something more has to be shown in a case
of this kind and that is some kind of inducement
held out by the accused person or an active
participation by him in the formation of the
intention of the minor to leave the house of the
guardian. It would, however, be sufficient if the
prosecution establishes that though immediately
prior to the minor leaving the father’s protection no
active part was played by the accused, he had at
some earlier stage solicited or persuaded the minor
to do so. In our, opinion if evidence to establish one
of those things is lacking it would not be legitimate
to infer that the accused is guilty of taking the minor
out of the keeping of the lawful guardian merely
because after she has actually left her guardian’s
house or a house where her guardian had kept her,
joined the accused and the accused helped her in
her design not to return to her guardian’s house by

avk 20

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

taking her along with him from place to place. No
doubt, the part played by the accused could be
regarded as facilitating the fulfillment of the
intention of the girl. That part, in our opinion, falls
short of an inducement to the minor to slip out of
the keeping of her lawful guardian and is, therefore,
not tantamount to “taking”.”

13 Evidence of the prosecutrix/PW1 does not show that

prior to the prosecutrix/PW1 leaving the lawful guardianship of

her father PW2 Ankush, any active part was played by the

appellant/accused. Her evidence does not show that even at some

earlier stage, the appellant/accused enticed her by persuading her

to leave her house and join his company. Thus, evidence of the

prosecution does not make out the case of inducement to the

minor female victim of the crime in question to abandon the

keeping of her lawful guardian PW2 Ankush. Thus, the

prosecution has not established the offence of kidnapping the

prosecutrix/PW1 by the appellant/accused for the purpose of

commission of illicit sexual intercourse with her. At this juncture,

it needs to be noted that the prosecutrix/PW1 had already crossed

avk 21

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

the consenting age, as on the date of the alleged offence she being

more than 16 years of age. Her evidence indicates consensual

sexual intercourse by the appellant/accused with her.

14 Now, let us examine, whether the prosecution has

established commission of the offence punishable under Section 4

of the POCSO Act by the appellant/accused. The prosecutrix/PW1

has deposed that she had sexual intercourse with the

appellant/accused in the night intervening 15 th December 2012

and 16th December 2012 at the room of the friend of the

appellant/accused at Mumbra. Thereafter, the appellant/accused

had repeated the similar act in the night intervening 20th

December 2012 and 21st December 2012 at the Victoria lodge of

Mumbai, where she along with the appellant/accused and father

of the appellant/accused, had a night halt prior to approaching

the police station. In normal course, as this evidence of the

prosecutrix/PW1 is not suffering from any infirmity and has not

been dislodged during the course of cross-examination, the same

avk 22

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

deserves to be accepted. However, let us search for corroborative

evidence, as the prosecution is also relying on forensic evidence as

well as medical evidence to prove the fact of penetrative sexual

assault on the prosecutrix/PW1 by the appellant/accused.

15 The prosecutrix/PW1 was taken to the police station

by father of the appellant/accused on 21st December 2012. On

the very same day, she was referred to the Police Hospital at

Nagpada by the Investigating Officer. PW3 Dr.Baban Shinde had

medically examined the prosecutrix/PW1 on 21st December 2012

itself. During medical examination of the prosecutrix/PW1, the

Medical Officer found that hymen of the prosecutrix/PW1 was

torn having tears at 3, 5, 7 and 9 O’Clock positions. Those tears

were tender, oedematous, were bleeding on touch and were

reddish in colour. This medical evidence, as such, unerringly

points out that the prosecutrix/PW1 was subjected to sexual

intercourse soon before conducting her medical examination by

PW3 Dr.Baban Shinde. Her evidence to the effect that it was the

appellant/accused who had committed sexual intercourse with

avk 23

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

her, thus, gains corroboration from the evidence of PW3 Dr.Baban

Shinde and contemporaneous Medico Legal Certificate at Exhibit

13.

16 Clear and cogent evidence of PW4 Shahanzbee Shaikh

– panch witness shows that on 21st December 2012, at the police

station, mother of the prosecutrix/PW1 brought another set of

clothes for her and the clothes worn by the prosecutrix/PW1 came

to be seized by the police by preparing Seizure Panchnama Exhibit

17. Evidence of PW8 Vijay Jadhav, Assistant Police Inspector, is

corroborating this version of the panch witness regarding seizure

of clothes of the prosecutrix/PW1 and there is nothing in cross-

examination of both these witnesses to disbelieve their version

regarding seizure of the clothes which were on the person of the

prosecutrix/PW1 on 21st December 2012, when she was brought

to the police station by the father of the appellant/accused.

17 In the similar way, on 21st December 2012 itself, the T-

Shirt and full pant worn by the appellant/accused came to be

avk 24

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

seized by the Investigating Officer PW8 Vijay Jadhav, Assistant

Police Inspector, in presence of PW5 Shabbar Raza – panch

witness, by preparing Panchnama Exhibit 20. From cross-

examination of both these witnesses, nothing could be elicited to

disbelieve their version regarding seizure of clothes of the

appellant/accused. The panchnamas show that the clothes were

wrapped in brown paper separately and that packet was duly

sealed.

18 PW8 Vijay Jadhav, Assistant Police Inspector, deposed

that seized articles were sent by him for chemical analysis.

Chemical Analyser’s Report at Exhibit 11 shows that blood of the

appellant/accused is that of “O” group and semen of the said

group was found on kurta, salwar as well as knicker of the

prosecutrix/PW1. Thus, the forensic evidence corroborates the

version of the prosecutrix/PW1 that it was the appellant/accused,

who had committed sexual intercourse with her.

avk 25

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

APPEAL-997-2015-J.doc

19 Evidence of PW9 Mohd. Yasin, owner of Victoria Guest

House, shows that on 20th December 2012, three guests came to

his lodge, out of which, one was a lady aged about 18 years.

Through evidence of this witness, the prosecution has proved the

extract of the Guest Register at Exhibit 29 disclosing admission of

three guests at his Guest House in the night hours of 20 th

December 2012. Name of the prosecutrix/PW1 is mentioned in

the Guest Register as Seema Khan, as seen from the Guest Register

of the Victoria lodge produced by the prosecution. Thus, this

evidence also corroborates the version of the prosecutrix/PW1

that she was taken to the Victoria lodge, where her name was

entered as Seema Khan.

20 With this evidence, the prosecution has proved beyond

all reasonable doubts that the appellant/accused had committed

penetrative sexual assault on the prosecutrix/PW1 during the

period from 15th December 2012 to 21st December 2012. As

discussed in foregoing paragraphs, the prosecutrix/PW1, at the

relevant time, was a child as defined by Section 2(b) of the

avk 26

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc

POCSO Act, she being below 18 years of age. Thus, no infirmity

can be found in conviction of the appellant/accused for the

offence punishable under Section 4 of the POCSO Act as well as

the resultant sentence imposed on him, which is bare minimum,

as per the provisions of the said Act.

21 In the result, the following order :

ORDER

i) The appeal is partly allowed.

ii) Conviction as well as resultant sentence imposed on the

appellant/accused for offences punishable under Sections

363 and 366 of the Indian Penal Code is quashed and set

aside. The appellant/accused is acquitted of offences

punishable under Sections 363 and 366 of the Indian Penal

Code.

iii) Fine amount, if any paid by him, upon his conviction for

these offences, be refunded to him.

avk 27

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

APPEAL-997-2015-J.doc

iv) Conviction of the appellant/accused for the offence

punishable under Section 4 of the POCSO Act as well as the

sentence imposed upon him on that count by the learned

trial court is maintained.

v) Rest of the order of the learned trial court is confirmed.

vi) The appeal is disposed of accordingly.

vii) With disposal of this appeal, Criminal Application No.1135

of 2017 stands disposed of.

(A. M. BADAR, J.)

avk 28

::: Uploaded on – 27/04/2018 28/04/2018 01:14:25 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation