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
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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.
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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
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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,
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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.
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(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.
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(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
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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
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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.
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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,
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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
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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
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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.
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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
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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
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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
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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
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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
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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 942avk 19
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.)
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