Appeal against conviction under POCSO and IPC Section 354 by a watchman. High Court held evidence of child witness and corroborating testimonies reliable despite no TIDP, dismissing appeal.
The appeal was dismissed acquitting the order of conviction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
(902)APEALNo.4782018(J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.478 OF 2018
Shri.Aizaz Nabban Khan, Chandan Valley, A-B Wing, Watchman Room, Near Brahmadev Temple, Nayanagar, Mira Road (E), Originally R/at : Khanna Katakiya, Lakad Mandi, Hari Singh Firm, Shahdat Ganj, Lucknow, Uttar Pradesh. ... Appellant Versus The State of Maharashtra Through Nayanagar Police Station ... Respondent
Mr.Tejas Hilage, Appointed Advocate for the Appellant.
Mr.Vinod Chate, APP for the Respondent/State.
CORAM : A.M.BADAR J.
DATED : RESERVED ON 30th SEPTEMBER 2019 PRONOUNCED ON 1st OCTOBER 2019.
ORAL JUDGMENT :
1 By this appeal, the appellant/convicted accused is challenging the Judgment and Order dated 13/10/2017 passed by the learned Designated Court under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the
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POCSO Act’ for the sake of brevity) and Additional Sessions Judge, Thane in Sessions Case No.141 of 2017 thereby convicting him of the offences punishable under Section 354(A)(1)(i) of the Indian Penal Code as well as Section 8 of the POCSO Act and sentenced to suffer rigorous imprisonment for a period of three years apart from a direction to pay fine of Rs.1,000/- and in default he is directed to suffer simple imprisonment for one month.
2 Facts in brief leading to the prosecution and resultant sentence of the appellant/convicted accused can be summarized thus :
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missing. She was told by her neighbourer P.W.No.3 Dulali Rai that watchman of the building had taken the victim female child/P.W.No.1. P.W.No.3 Dulali Rai further disclosed P.W.No.2 Malati that her daughter is left by the watchman near the house.
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3 I heard Mr.Hilage, the learned appointed Advocate representing the appellant/accused at the cost of the State. He vehemently argued that evidence on record shows that there were three watchmen for four buildings and no test identification was conducted by the prosecution after arrest of the appellant/ convicted accused. For the first time, the victim female child/ P.W.No.1 has identified the appellant/convicted accused in the witness box and this identification is of no use, as there was no test identification parade. The appellant/convicted accused is, therefore, entitled for benefit of doubt.
4 The learned Additional Public Prosecutor supported the impugned Judgment and Order of conviction and resultant sentence.
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5 I have considered the rival submissions and also perused the Record and Proceedings including the oral as well as documentary evidence.
6 Case of the prosecution is based on oral evidence of the victim female child/P.W.No.1, who happens to be a child witness aged about four years. The incident allegedly took place on 15/03/2017, whereas evidence of the victim female child/P.W.No.1 was recorded on 18/09/2017 i.e. within six months of the incident. The learned trial Court in order to ascertain competency of the victim female child/P.W.No.1 to depose had put some preliminary questions to her. It was found by the learned trial Court that the victim female child/P.W.No.1 is sufficiently intelligent and she is giving rational answers to the questions. Then, her evidence came to be recorded. The victim female child/ P.W.No.1 in her evidence has stated that she used to accompany her mother when her mother used to go to the Chandan Valley Building for work. As per her evidence, there is one watchman at that building and she calls him as ‘uncle’. That watchman calls her as ‘baby’. As deposed by the victim female child/P.W.No.1, on one day, when she was playing at the Chandan Valley Building, that watchman uncle told her that he will take her to her mother. She, therefore, joined company of that watchman. The victim female child/P.W.No.1 further narrated that the watchman then took her to the staircase, removed her knicker and touched her vagina.
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Thereafter, he left her at the ground floor of the buildings. The victim female child/P.W.No.1 duly identified the appellant/ convicted accused while in the witness box. Identity of the appellant/convicted accused is not challenged in the crossexamination. The victim female child/P.W.No.1 denied the suggestion that she is tutored by her mother as to what she should tell to the police. Except this, there is nothing in crossexamination of the victim female child/P.W.No.1.
7 Evidence of the victim female child/P.W.No.1 shows that she was well acquainted with the appellant/convicted accused to whom she used to call as ‘uncle’. The victim female child/ P.W.No.1 used to play at the ground floor of the building, where her mother was working as maid servant. Therefore, it is but natural that she was knowing the watchman in the building. Therefore, it cannot be said that there is possibility of mistaken identity. On behalf of the defence, reliance is placed on the Judgment of the Honourable Supreme Court in the matter of Dana Yadav @ Dahu & Ors. Versus State of Bihar1 . It is held therein that though dock identification is substantive evidence, evidence of test identification can be used for corroborating such substantive evidence. In the case in hand, the victim female child/P.W.No.1 has identified the appellant/convicted accused in the dock. She was knowing him since beginning. She deposed before the Court within six months of the incident and, therefore, it cannot be said
1 (2002) 7 Supreme Court Cases 295.
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that by not conducting the test identification parade, the prosecution case becomes suspects.
8 Evidence of P.W.No.2 Malati is corroborating the evidence of the victim female child/P.W.No.1. She has stated that she found her female child missing and, therefore, asked neighbourer. She came to know that the watchman had taken her daughter. P.W.No.2 Malati has proved former statement of her daughter/the victim female child/P.W.No.1, which is to the effect that the watchman of the building had taken her and by removing her knicker, had fondled her vagina. Thus, evidence of the victim female child/P.W.No.1 is gaining corroboration from evidence of her mother P.W.No.2 Malati. Not collecting the CCTV footage by police cannot create doubt in the prosecution case. Ultimately, the prosecution is required to prove its case beyond reasonable doubt and not by adducing the proof of mathematical precision.
9 P.W.No.3 Dulali Rai is neighbourer of the victim female child/P.W.No.1. She had seen the appellant/convicted accused taking the victim female child/P.W.No.1 with him. This witness has duly identified the appellant/convicted accused as a watchman, who had taken the victim female child/P.W.No.1 with him.
10 P.W.No.4 Imran is Security Contractor, who provides watchmen to the Societies. He had provided three watchmen to
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Chandan Valley Society. His evidence is not of much assistance. P.W.No.5 Pravinkukar Salunkhe, API is the Investigating Officer, who had arrested the appellant/convicted accused.
11 The defence has not disputed age of the victim female child/P.W.No.1. Evidence of the victim female child/P.W.No.1 is clear, cogent and trustworthy. It shows that the appellant/ convicted accused, with sexual intent, involved in physical contact with the victim female child/P.W.No.1. He caused sexual harassment of the victim female child/P.W.No.1 by touching her vagina. Hence, no infirmity can be found in the impugned Judgment and Order of conviction and resultant sentence. The appeal is, therefore, devoid of merit and, therefore, the Order :
ORDER
The Appeal is dismissed.
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3 issues framed by the court
Whether conviction is safe in absence of a test identification parade where the child witness identified the accused in the dock.
Whether the court can rely on the victim child evidence without mathematical precision.
Whether the High Court should allow the appeal against conviction under POCSO and IPC Section 354.
Colour shows how this judgement treated each authority
Dana Yadav @ Dahu & Ors. Versus State of BiharReferred¶42
(2002) 7 Supreme Court Cases 295
2 provisions across 2 enactments
Shri.Aizaz Nabban Khan
The State of Maharashtra
A.M.BADAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
