Dismissed

Mohd. Haider Mohd. Khalil Shaikh v. the State of Maharashtra

Bombay HC11 Sept 2019APEAL/253/2016

Case brief

AI extract

What is this about?

In a criminal appeal, the High Court dismissed the challenge to the conviction and sentence of an appellant for offences under the POCSO Act and IPC Section 354. The Court held that the trial court's reliance on the child witness's testimony was legally sound and no miscarriage of justice occurred.

What did the court decide?

The appeal was dismissed; the conviction and sentence imposed by the trial court were upheld.

Mohd. Haider Mohd. Khalil Shaikh Vs the State… — Child Sexual Offences (POCSO) | Bombay HC (2019)

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(207)APEALNo.2532016(J).odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.253 OF 2016

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Mohd. Haider Mohd. Khalil Shaikh Aged about 23 years, Indian Habitant, Occu.: Student, Residing at Room No.9, Jai Bajrangi Chawl, Gautam Nagar, Aarey Road, Powai, Mumbai. Presently in judicial custody at Arthur Road Jail.

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... Appellant

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Versus

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The State of Maharashtra at the instance of Powai Police Station

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... Respondent

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Ms.Megha Bajoria, learned Advocate Appointed for the Appellant.

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Mr.Amit Palkar, APP for the Respondent/State.

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CORAM : A.M.BADAR J.

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DATE : RESERVED ON 4^rd SEPTEMBER 2019. PRONOUNCHED ON 11^th SEPTEMBER 2019.

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ORAL JUDGMENT :

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1 By this Appeal, the appellant/accused is challenging the Judgment and Order dated 1^st March 2016 passed by the learned designated Judge under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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Act' for the sake of brevity), Mumbai thereby convicting him of the offences punishable under Section 354 of the Indian Penal Code (hereinafter referred to as 'the IPC' for the sake of brevity) as well as Section 10 of the POCSO Act. On each count, he is sentenced to suffer rigorous imprisonment for five years apart from direction to pay fine of Rs.5,000/- and to undergo default sentence of rigorous imprisonment for six months in the event of failure to pay the fine. The substantive sentences are directed to run concurrently by the learned trial Court.

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2 Facts in brief leading to the prosecution of the appellant/accused and his resultant conviction can be summarized thus :

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(a) First Informant/P.W.No.2 Shabanabano is mother of the victim female child/P.W.No.1. First Informant/P.W.No.2 Shabanabano along with her family members was residing at the chawl of Goutam Nagar, Powai, Mumbai.

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(b) The incident in question allegedly took place on 16/03/2014. In the afternoon of that day, First Informant/P.W.No.2 Shabanabano was feeding her younger son. At that time, victim female child/P.W.No.1 returned home while weeping. She disclosed her mother that the appellant/accused took her to his house on the pretext of giving Pepsi and made her to lie

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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on a bed. Victim female child/P.W.No.1 further disclosed that the appellant/accused put his penis in her vagina. First Informant/P.W.No.2 Shabanabano noticed redness at vagina of the victim female child/P.W.No.1, who happened to be two and half years old at the time of the incident.

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(c) In the evening of 16/03/2014, First Informant/P.W.No.2 Shabanabano disclosed the incident to her husband and on the next day to her cousin. Then, she went to police station, Powai and lodged the FIR on 17/03/2014 against the appellant/accused which has resulted in registration of Crime No.124 of 2014 for the offence punishable under Section 376 of the Indian Penal Code as well as 4 and 6 of the POCSO Act.

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(d) During the course of investigation, the Investigating Officer arrested the appellant/accused. Spot was inspected in presence of panch witnesses including P.W.No.4 Dinesh Pancholi. Clothes of the victim female child/P.W.No.1 came to be seized in presence of pancha witness P.W.No.3 Nasrin Shaikh. Victim female child/P.W.No.1 was sent to the Rajawadi Hospital for medical treatment and she was examined by Dr.Rachana Shah

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(e) On completion of routine investigation, the appellant/accused came to be charge-sheeted.

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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3 The learned trial Court framed charge for the offences punishable under Sections 376 and 354 of the IPC as well as under Sections 6,10 and 18 of the POCSO Act. The appellant/accused abjured his guilt and claimed trial.

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4 In order to bring home the guilt to the appellant/accused, the prosecution has examined in all six witnesses. The defence of the appellant/accused was that of total denial.

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5 After hearing the parties, the learned trial Court, by the impugned Judgment and Order, was pleased to convict and to sentence the appellant/accused as indicated in the opening paragraph of this Judgment.

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6 I heard Ms.Bajoria, the learned Advocate appointed to represent the appellant/accused at the cost of the State. By taking me through evidence of the victim female child/P.W.No.1, the learned Advocate vehemently argued that the victim female child/P.W.No.1 was incompetent to testify because of young age. Victim female child/P.W.No.1 considering the tender age was prone to the tutoring and, as such, in absence of corroborative evidence, conviction cannot be based on the testimony of the victim female child/P.W.No.1. It is further argued that the prosecution has failed to examine the Medical Officer, who had

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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examined the victim female child/P.W.No.1. Similarly, medical evidence is not favouring the case of prosecution and, therefore, conviction ought not to have been recorded on the basis of discrepant evidence. The learned Advocate further argued that testimony of mother of the victim female child/P.W.No.1 needs to be rejected she being an interested witness.

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7 The learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction and resultant sentence.

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8 I have considered rival submissions and also perused the Record and Proceedings including oral as well as documentary evidence.

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9 Though child witness is susceptible to the tutoring, it is not a rule of law that the evidence of child witness cannot be relied upon for basing conviction. Testimony of the child witness is required to be scrutinized carefully and cautiously in order to rule out possibility of tutored version coming from the mouth of the child witness. If on careful examination of evidence of the child witness, it is found that the said witness is a witness of truth, then evidence of the child witness can be relied upon by the Court.

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10 The victim female child/P.W.No.1, as stated by her mother First Informant/P.W.No.2 Shabanabano, was born on

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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29/05/2011. The prosecution has placed on record Birth Certificate of the victim female child/P.W.No.1 issued under Sections 12 and 17 of the Registration of Births and Deaths Act, 1969 by the Registrar and the same is at Exhibit 12. This Birth Certificate also shows that the victim female child/P.W.No.1 was born on 29/05/2011. The incident in question allegedly took place on 16/03/2014. As such, the victim female child/P.W.No.1 was about two years and ten months old at the time of the incident in question. Her evidence was recorded by the learned trial Court after putting several preliminary questions to her in order to ascertain whether the victim female child/P.W.No.1 is in a position to under the questions put to her and to give rational answers to those questions. On being satisfied about competency of the victim female child/P.W.No.1 to testify, she came to be examined as P.W.No.1 without administering oath to her.

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11 It is in evidence of the victim female child/P.W.No.1 that she was knowing the appellant/accused and the appellant/accused had taken her to his house. The victim female child/P.W.No.1 testified that after removing her knicker, the appellant/accused pressed his penis on her vagina. She stated that then she had beaten the appellant/accused after crying and then he left her. The victim female child/P.W.No.1 further stated that she then disclosed the incident to her mother. She identified the appellant/accused in the dock.

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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12 It is brought on record from cross-examination of the victim female child/P.W.No.1 that she had disclosed the incident to the Doctor, who had examined her in presence of her mother and father. She denied the suggestions that the appellant/accused did nothing to her.

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13 Perusal of cross-examination of the victim female child/P.W.No.1 goes to show that she was not even asked as to whether she is deposing before the Court as tutored to her by somebody else. There is nothing in the cross-examination of the victim female child/P.W.No.1 to disbelieve her version regarding the incident.

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14 First Informant/P.W.No.2 Shabanabano has duly corroborated version of the victim female child/P.W.No.1 by stating that the victim female child/P.W.No.1 returned home crying and disclosed her that the appellant/accused has caused pain to her by putting her hand on her private part. It is stated by First Informant/P.W.No.2 Shabanabano that then she inspected private part of her daughter/P.W.No.1 and found redness thereat. She disclosed the incident to her husband in the evening hours and to her cousin on the next day and then lodged report (Exhibit 10).

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15 Evidence of First Informant/P.W.No.2 Shabanabano, as such, makes it clear that soon after the incident her daughter

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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victim female child/P.W.No.1 has narrated the incident to her. Former statement of the victim female child/P.W.No.1 made by her after the incident is proved by the mother of the victim female child/P.W.No.1. There was no chance of tutoring the victim female child/P.W.No.1 by nobody else at that time. This evidence certainly corroborates the testimony of the victim female child/P.W.No.1 regarding sexual assault on her by the appellant/accused.

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16 The victim female child/P.W.No.1 was sent to Rajawadi Hospital for medical examination on 18/03/2014 i.e. after lodging the FIR. The incident had taken place on 17/03/2014. The incident held to be proved is that of sexual assault on the victim female child/P.W.No.1. As such, negative medical report is of no consequence. Even otherwise, it is well settled that if the evidence of the victim female child/P.W.No.1 of the sexual assault is proved trustworthy then the same need not be corroborated by medical evidence.

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17 In this view of the matter, the prosecution has duly proved the fact that the appellant/accused had assaulted the victim female child/P.W.No.1 and with that intention used criminal force to the victim female child/P.W.No.1 intending thereby to outrage her modesty and had committed sexual assault on her which is an aggravated for the reason that the victim emale

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Gaikwad RD

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(207)APEALNo.2532016(J).odt

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child/P.W.No.1 was below 12 years of age. No infirmity, as such, can be proved in the impugned Judgment and Order.

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18 Hence, the Order :

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ORDER

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The Appeal is dismissed.

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(A.M.BADAR, J.)

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Gaikwad RD

Mohd. Haider Mohd. Khalil Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohd. Haider Mohd. Khalil Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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