Allowed

State of Karnataka by v. Mubhashir Shariff

Karnataka HC19 Jan 2024CRL.A/1836/2017

Case brief

AI extract

What is this about?

Appeals against acquittal for anal sexual assault on a 14-year-old boy. The High Court held victim's minority was proved by birth certificate, delay in FIR was explained by recourse to Masjid Committee and Islamic Court, medical evidence corroborated sodomy, and convicted the accused.

What did the court decide?

Acquittal set aside; accused convicted under S.6 POCSO Act (S.5(i),(l)) and S.377 IPC, sentenced to 10 years RI plus Rs.25,000 fine, Rs.23,000 to victim, compensation under S.357A CrPC directed.

State of Karnataka by Vs Mubhashir Shariff — Child Sexual Offences (POCSO) | Karnataka HC (2024)

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Crl.A No.1836/2017 c/w. Crl.A.No.1052/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF , JANUARY 2024

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PRESENT

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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AND

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THE HON'BLE MR JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 1836 OF 2017

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c/w.

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CRIMINAL APPEAL NO. 1052 OF 2017

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IN Crl.A.No.1836/2017 BETWEEN:

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State of Karnataka by Mandi Police Station, Mysuru Represented by State Public Prosecutor, Bengaluru -01.

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… Appellant (By Sri. B.N. Jagadeesha, Addl. State Public Prosecutor)

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AND:

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Mubhashir Sharif, S/o. Hafijulla Babu Sharif, Aged about 22 years, R/o. No.2145, 19^th West Cross, Ashok Road, Bare Ka Makan, Lashkar Mohalla, Mysuru City - 57005.

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Sri. Abubakar, S/o. Late Meer Baksh, Aged 50 years, No.1939, Akbar Road, Lashkar Mohalla, Mysuru.

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…..Respondents (By Sri. B. Lathif, Advocate for respondent No.1; Sri. S. Victor Manoharan, Advocate for respondent No.2)

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This Appeal is filed under Section 378 (1) and (3) of Code of Criminal Procedure, praying to (a) grant leave to appeal against the judgment and order of acquittal dated 18.04.2017 passed by the VI Addl. District and Special Judge, Mysuru in S.C.No.155/2015, acquitting the respondent of the offences punishable under Sections 377 of IPC and 5(i) (l) r/w S. 6 of POCSO Act (b) Set aside the judgment and order of acquittal dated 18.04.2017 passed by the VI Addl. District and Special Judge, Mysuru in S.C.No.155/2015, acquitting the respondent of the offences punishable under Sections 377 of IPC and 5(i) (l) r/w S.6 of POCSO Act (c) Convict the respondent above named for the offences under Sections 377 of IPC and 5(i)(l) r/w. S.6 of POCSO Act, for which he was charged, in accordance with law, in the interest of justice.

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IN Crl.A.No.1052/2017

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BETWEEN:

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Mr. Abubaker, age 47 years, S/o. Late Meer Baksh, No.1939, Akbar Road, Lashkar Mohalla, Mysuru - 570 021.

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… Appellant

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(By Sri. S. Victor Manoharan, Advocate)

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AND:

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The State of Karnataka, Represented by Mandi Police Station, Mysuru City -570 021.

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Mr. Mubhashir Sharif, age 20 years, S/o. Hafijulla Babu Sharif, No.2145, 19^th West Cross, Ashoka Road, Bare Ka Makan, Lashkar Mohalla, Mysuru -570021.

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…..Respondents (By Sri. B.N. Jagadeesha, Addl. State Public Prosecutor for respondent No.1 ; Sri. B. Lethif, Advocate for respondent No.2)

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Crl.A No.1836/2017 c/w. Crl.A.No.1052/2017

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This Appeal is filed under Section 372 of Code of Criminal Procedure, praying to (a) grant leave to appeal against the judgment and order of acquittal dated 18.04.2017 passed in Sessions Case No.155 of 2015 on the file of the VI Addl. District and Sessions Judge, Mysuru (b) Set aside the judgment and order of acquittal dated 18.04.2017 passed in Sessions Case No.155 of2015 on the file of the VI Addl. District and Sessions Judge, Mysuru (c) and be pleased to convict and sentence the accused/respondents for the offence punishable under sec.377 of Indian Penal Code and under Sec 5(i)(l) r/w. Section 6 of POCSO Act (d) Issue such other order or direction, as this Hon'ble Court deems fit and proper in the fact and circumstances of the case by allowing this appeal in the interest of justice.

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These Criminal Appeals having been heard through Physical Hearing/Video Conferencing Hearing and reserved for judgment on 11.12.2023 , coming on for pronouncement this day, Dr.H.B.Prabhakara Sastry J . delivered the following:

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COMMON JUDGMENT

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The State has filed Criminal Appeal No.1836/2017 under Section 378 (1) and (3) of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'the Cr.P.C.') and appellant -defacto complainant has filed Criminal Appeal No.1052/2017 under Section 372 of Cr.P.C., both challenging the judgment of acquittal dated 18.04.2017 passed by the VI Additional District & Special Judge, Mysuru (hereinafter for brevity referred to as the 'Special Court') in S.C.No.155/2015 acquitting the accused of the

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offences punishable under Section 377 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’) and Section 5(i) and 5(l) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as 'POCSO Act').

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The summary of the case of the prosecution is

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that on the date 01.01.2015 at about 5.30 p.m. the accused by taking PW-2(CW-2) (henceforth referred to as 'victim boy') who was aged about 14 years, as such minor

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in his age, to the first floor of Bagban Masjid at Akbar Road, Lashkar Mohalla, Mysuru within the limits of complainant Police Station forcibly and against the will and consent of the minor boy had anal sexual intercourse with him, which was against the nature. Thereafter, on the date 04.01.2015 at about 6.00 p.m. accused made the victim boy to come to him and when the victim (PW-2) had gone

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to his house, once again, he had repeated anal sexual intercourse with him against his will and consent in his house No.2145, 19^th West Cross, Ashok Road, Bare Ka Makan,

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Lashkar Mohalla, Mysuru within the limits of complainant Police Station. These facts came to the knowledge of PW-1 (CW-1) Abubaker, the father of the victim boy, on the date 05.02.2015, when the teacher of the victim informed PW-1 about his sickness. It is, thereafter, PW-1 and the victim approached the Bagban Masjid Committee for redressal of their grievance. Which Committee, in turn, advised them to approach Islamic Court. The Islamic Court people advised PW-1 and the victim to approach the Police. It is, thereafter, PW-1 lodged a complaint with the complainant Police Station, against the accused on 10.02.2015.

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The said complaint was registered in the complainant Police Station in Crime No.24/2015 against the accused for the offence punishable under Section 377 of IPC and under Section 5(i) of POCSO Act. After conducting investigation the Investigating Officer (PW-14) filed charge-sheet against the accused for the offences punishable under Section 377 of IPC and under Section 5(i) and 5(l) read with Section 6 of POCSO Act.

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After perusing the materials placed before it

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and hearing both side, the Special Court framed charges against the accused for the offences punishable under Section 377 of IPC and under Section 5(i) and 5(l) read with Section 6 of POCSO Act. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined in all fourteen (14) witnesses as PW-1 to PW14, got produced and marked documents from Exs.P.1 to P.15(a). From the accused side none of the witnesses were examined nor any documents were got marked.

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After hearing both side, the learned Special Court by its judgment dated 18.04.2017 acquitted the accused of the offences punishable under Section 377 of IPC and under Section 5(i) and 5(l) read with Section 6 of POCSO Act. Aggrieved by the same, the State has preferred an appeal in Crl.A.No.1836/2017 and defacto complainant has preferred an appeal in

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Crl.A.No.1052/2017.

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In Crl.A.No.1836/2017 the appellant –State is represented by the learned Addl. State Public Prosecutor and in Crl.A.No.1052/2017 the appellant and respondent/accused are represented by their respective learned counsel. The learned Addl. State Public Prosecutor and the learned counsel for the appellant and learned counsel for respondent (accused) in both appeals are physically appearing in the Court.

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The Special Court records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Special Court records.

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For the sake of convenience, the parties would

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be henceforth referred to as per their rankings before the learned Sessions Judge’s Court.

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Learned Addl. State Public Prosecutor for the

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appellant in Crl.A.No.1836/2017 who is also for respondent No.1/State in Crl.A.No.1052/2017 in his argument submitted that the victim was a minor boy aged 14 years as on the date of the incident. The evidence of PWs-1 and 2 coupled with the Birth Certificate at Ex.P.12 establishes that the date of birth of the victim was 10.09.2000. The evidence of PWs-1 and 2 clearly establishes the occurrence of the incident and the commission of the alleged offence by the accused against the victim boy. The scene of offence panchanama speaks about the place of occurrence of the incident. He further submitted that the medical evidence corroborates the evidence of PW-2- the victim boy. The delay in lodging the complaint has been convincingly explained by PW-1 - father of the victim. The evidence of other witnesses including PWs-2, 3, 5, 6 and 7 also explains the delay in filing the complaint. However, the Special Court disbelieved the case of the prosecution only on the ground of alleged delay in lodging the complaint. As such,

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impugned judgment warrants interference at the hands of this Court and accused deserves to be convicted of the alleged offences.

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Learned counsel for the appellant in

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Crl.A.No.1052/2017 adopted the arguments of the learned Addl.State Public Prosecutor.

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Learned counsel for the accused, who is respondent No.1 in Crl.A.No.1836/2017, and respondent No.2 in Crl.A.No.1052/2017, in his argument submitted that there is an inordinate delay of nearly forty (40) days in lodging the complaint. No explanation has been given by the prosecution as to why PW-2 did not inform at the earliest about the incident to his father or to his cousin i.e., PW-3. The very occurrence of the alleged incident on 01.01.2015 itself is doubtful, since, there were other people in the Masjid on the said day, however, none of them have scene the occurrence of the incident. Even with respect to repetition of the alleged act in the house of

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the accused also, the evidence by prosecution since suffers

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with various inconsistencies, the same is not believable.

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Learned counsel further submitted that there is no confirmed medical opinion to the fact that fisher was only due to sodomy. Since considering these aspects the Special Court has rightly acquitted the accused from the alleged offence and the same does not warrant any interference at the hands of this Court.

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After hearing the learned counsels from both

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side, the points that arise for our consideration in this appeal are:

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1) Whether the prosecution has proved beyond reasonable doubt that on the dated 01.01.2015 at about 5.00 p.m. in the upper floor of Bagban Masjid in Akbar Road, Lashkar Mohalla, Mysuru and on the date 04.01.2015 at about 6.00 p.m. in his house No.2145, on 19^th West Cross, Ashoka Road, Lashkar Mohalla, Mysuru both within the limits of complainant Police Station, the accused committed anal sexual intercourse with the victim boy

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(PW-2) which was against the order of the nature and it was an aggravated penetrative sexual assault upon the victim boy (PW-2) and resulting in the said boy sustaining injury and thereby has committed offences punishable under Section 377 of IPC and under Section 5(i) and 5(l) read with Section 6 of POSCO Act?

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2) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

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Before proceeding further in analysing the

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evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offences punishable under Section 377 of the IPC and under Section 5(i) and 5(l) read with Section 6 of POSCO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that, unless his guilt is proved, the accused has to be treated as an innocent person in the alleged crime. Secondly, the

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accused has already been enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, the evidence placed by the prosecution in the matter is required to be analysed.

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(a) Our Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

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“ 42(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

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42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

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(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

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(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

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“ 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal

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adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in the case of Roopwanti Vs. State of Haryana and others reported in AIR 2023 SUPREME COURT 1199.

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It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed by the prosecution in this matter.

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According to the prosecution PW-2-the victim was minor in his age, as on the date of the alleged offence. In order to prove that the victim boy was minor,

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as on the date of the incident, the prosecution relies upon the evidence of PWs-1, 2 and Exs.P.1 and P.12.

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PW-1 in his evidence has stated that his son, i.e., victim boy, was aged 15 years on the date of his evidence, which was recorded on 13.11.2015 and he was studying in X^th standard of schooling. The victim boy, as PW-2, in his evidence, has stated that his date of birth is 10.09.2000. The said evidence of PWs-1 and 2 that, victim boy was minor in his age, as on the date of alleged incident, has not been specifically denied in their cross examination.

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Ex.P.1 is the complaint lodged by PW-1 and identified by him, wherein also, the complainant has stated that his son, who is the victim boy, was a student of IX^th Standard. Thus, according to complainant the victim boy was minor in his age. The said contention that the victim boy was a student, studying in high school, as on the date of incident is further corroborated by the evidence of PW-9 - Smt. Leelavathi, Assistant Teacher, Savithri Convent,

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Mysuru. She in her evidence has stated that PW-2, the victim boy, was a student in their school who has studied there from LKG to SSLC. The discharge summary of the victim boy issued by CSI Holdsworth Memorial Hospital, is a part of the case sheet of the patient marked at Ex.P.9 also shows that the age of the boy was recorded in the hospital as 14 years.

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PW-11(CW-17) Dr. S.C. Karat, the Director and Head of the Department of Pediatric Department, Mission Hospital, Mysuru has stated that he has issued a case sheet at Ex.P.9 to the Investigating Officer, has identified the case sheet at Ex.P.9 and his signature therein at Ex.P.9(a).

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The Investigating Officer, PW-14 (CW-26) Lakshmikantha Talawar has stated about he collecting the case sheet of the victim boy who was treated in CSI Holdsworth Mission Hospital as per Ex.P.9. He has also stated that he received the Birth Certificate of the victim boy, as produced by his father, i.e., PW-1 as per Ex.P.12. He has identified his signature therein at Ex.P.12(a). The

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said Birth Certificate pertains to the victim boy and shows his date of birth as 10.09.2000.

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Our Hon'ble Apex Court in the case of MAHADEO SON OF KERBA MASKE V. STATE OF MAHARASHTRA AND ANOTHER reported in (2013) 14 SCC 637 was pleased to observe in paragraph -12 of its judgment that in the light of Statutory Rules in the form of Juvenile Justice (Care and Protection of Children) Rules, 2007 (for brevity J.J. Rules 2007), prevailing for ascertaining the age of a juvenile, it is their opinion that the same yard stick could be rightly followed by the Court for the purpose of ascertaining the age of the victim as well.

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Hon'ble Apex Court in the case of JARNAIL SINGH VS. STATE OF HARYANA reported in (2013) 7 SCC 263

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has once again held in paragraph No.23 of its judgment that even though the Rule 12 of J.J. Rules, 2007 is strictly applicable only to determine the age of the child in conflict

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with law, the aforesaid Statutory Provision should be the basis for determining age, even of a child who is a victim of crime. For, there is hardly any difference insofar as issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. With the said observation the Hon'ble Apex Court held that it would be just and appropriate for it to apply Rule 12 of J.J. Rules, 2007 to determine the age of the prosecutrix in the case before it, who was alleged to be a victim of kidnapping and gangrape.

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The date of birth shown in Ex.P.12 - Birth Certificate as 10.09.2000 has not been specifically denied and seriously disputed from the accused side. The alleged

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incident is said to have taken place on the dates 01.01.2015 and 04.01.2015, as such, the age of the victim boy as on the date of the alleged incident stands proved to be less than 15 years. As such, PW-2-the victim boy was minor in his age as on the date of incident.

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The evidence of PW-1 would go to show that the accused was a person known to him and his family. The accused was working under one Sri. Yusuf Shariff, Head of the zamat in Bagban Masjid. The accused used to teach the children, identified by his master Yusuf Shariff, about performing the Namaz and the Holy Quran. The said evidence of PW-1 that accused was known to his family and works in Bagban Masjid has not been denied in the cross-examination of the witness. Similarly, even the victim boy also, as PW-2, has stated that accused is known to him and accused used to take people to Masjid to teach them about the principles of Islam and the Rules. The said evidence is not denied from the accused side. Thus, it is established that accused was not a stranger to PW-1 and the victim boy and that they were known to each other.

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About the alleged incidents, dated 01.01.2015 and 04.01.2015, the prosecution in order to prove that the

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alleged incidents have occurred, relies upon the evidence of PWs-1, 2, 3, 6, 7, 9, 10 and 11.

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PW-1 (CW-1) Abubaker, the father of the victim

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boy, in his evidence has stated that on the date 04.01.2015 he forced his son (CW-2) to go to Meera Park, where, as informed to him by the accused, their religious head was visiting to deliver a discourse. CW-2 was hesitant, but, he pressurized him to go there. After CW-2 returned to home, there was change in his behaviour. He used to sit alone and was preferring to sleep. Later, school teacher of CW-2 telephoned to him over the phone, stating that CW-2 (victim boy) is not keeping well and he is vomiting. He went to school and saw his son. When

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enquired, CW-2 told him that accused has misbehaved with him. After bringing his son to the home when he enquired, the victim boy told him that on 1^st of January, on the pretext of shifting a gas cylinder from the upper floor of the Masjid the accused had taken him to the upper floor of the Masjid and has removed the clothes. Though CW-2

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screamed, accused closed his mouth and inserted his private organ into his (CW-2) anus. It is for the said reason CW-2 was hesitating to go to the accused once again.

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PW-1 further stated that his son (CW-2) also told him that on 04.01.2015 also the accused instead of taking him to Meera Park, but, has taken him to his house on the pretext that he has to change his dress and in his house he repeated the same act of sexual assault, which, he had committed earlier. He also threatened him of killing him, if, in case, he discloses about the incident to anyone. He also threatened that the reputation of the boy would be spoiled if, he discloses the same to anyone. PW-1 also stated that he noticed that CW-2 (victim boy) was finding it difficult to walk normally. When enquired, he told that he is feeling pain. Accordingly, he took CW-2 to Mission Hospital, where, the Doctor examined him and conduced a small operation upon him.

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PW-1 further stated that the Doctor also told him that, since, it was a police case, he has to lodge a complaint with the police.

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However, the people of the Masjid told him that he need not rush to lodge the complaint and the matter be settled by negotiations. PW-1 also stated that the accused confessed his guilt before the people of Masjid. Then people of Masjid suggested him to go to Islamic Court. Even before the Islamic Court also, accused confessed his guilt. However, the people at Islamic Court told that they can, at the maximum, ask the accused to reimburse the medical expenses incurred by him in getting treatment to CW-2. Apart from that, they don’t have any other power. Then, his brother-in-law by name Ashfak Ahmed and Syed Nizam told him to go to Police Station. Accordingly, he lodged a complaint as per Ex.P.1 to the police on 10.02.2015. He also stated that police also drew scene of offence panchanama by taking him and his son to the places as shown by them.

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In his cross-examination, the witness adhered to his contention taken up in his examination-in-chief. He gave more details about the acquaintance with the accused to him and where the accused was working. He also gave

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details as to whom are all he met as Masjid people. He stated that no writing was made by Masjid people in connection with the complaint. He denied the suggestion that before he lodging the complaint CW-2 had undergone treatment at Holdsworth Hospital, Mysuru in connection with the fisher and piles. The denial suggestion made to him in his cross-examination was not admitted as true by the witness.

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PW-2 (CW-2) - victim boy in his evidence has

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stated that he knows the accused, who takes people to Jamat and teaches them principles of Islam in Masjid. The witness stated that he goes to Bagban Masjid to offer his prayer. On the date 01.01.2015 at about 5:15 p.m. also, he had been to Masjid to offer prayer. While he coming out from Masjid at 5:30 p.m., after prayer, the accused asked him to accompany him to shift Gas cylinder from the first floor of the Masjid. After taking him to first floor of the Masjid, the accused started removing the clothes worn by him (this witness), he screamed at the act of the accused,

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however, the accused inserted his penis into the anus of CW-2 (this witness). Though he screamed, but, the accused closed his mouth. After the act, the accused threatened him, asking him not to disclose about the incident to anyone.

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The witness has further stated that three days thereafter, i.e., on 04.01.2015, the accused telephoned his father asking to send him to listen to the discourse of their religious head. Though, he was not interested to go and told his father, however, his father -PW-1 pressurised him to go. Accordingly, while he was going to the house of the accused, on the way he met his cousin Touseef (CW3/PW-3). He disclosed the incident happened on 01.01.2015 to Touseef and asked him to accompany him, so that, accused may not venture to repeat his act. Both of them went to the house of the accused. The accused sent Mohammed Touseef asking him to go to Masjid and do Namaz. The witness stated that the accused pushed him inside his house and taking him to a room, in his house, repeated the ugly act and threatened him that, if, he discloses it to

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anyone, he would kill him and family members cannot move in the area. Therefore, he did not disclose about the incident to his parents in his house. Three or four days after the incident, the blood was oozing out from his anus, however, he used to wipe it and go to school. When he used to feel more pain, he used to visit medical store and bring some tablets and consume the same, which gave him some relief.

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PW-2 further stated that on the date 05.02.2015, when he had been to school and participating in prayer, he got vomiting. School teacher informed the same to his father. His father came to school and enquired him. Before him, he disclosed about the ugly act committed by the accused and his father took him to Mission Hospital and got him medical treatment. His father also revealed about the incident to the people at Masjid. Those people sent them to Muslim Court. In the Muslim Court, the accused confessed his guilt, for which, the people in Muslim Court told his father that he can either forgive the accused or can give a complaint

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against him. The head of the Muslim

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Court also stated that he would come to the Court and state everything. Accordingly, his father has lodged a complaint. Witness also stated further that his father lodged a complaint. At the request of the police he has shown the places of the offence to the police. The police drew scene of offence panchanamas in the spots and PW-2 identified the said panchanamas at Exs.P.2 and P.3.

¶156

PW-2 was subjected to a detailed cross-

¶157

examination, wherein, he adhered to his original version. He gave more details about the manner, how the accused committed the alleged act. He also gave the details that, whenever he was getting pain, in that part of the body, he himself used to go to medical store and purchase tablets. He stated that when the accused took him to first floor of the Masjid on 01.01.2015, there were five to six persons in the ground floor of the Masjid. He attempted to escape from the accused at the time of the incident, however, since accused was holding him firmly by twisting his arms behind his back, he could not escape from the accused. He stated that in the incident, accused did not cause any

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external injuries to him. However, he committed the ugly act on the back part of his body. The witness denied that he was suffering with piles complaint. He also stated that the dress worn by him at the time of incident was washed. He gave more details about the commission of the alleged act by the accused upon him.

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PW-3 (CW-3) - Mohammad Touseef, who is also a minor, said to be studying in 9^th standard and aged about 15 years, in his evidence, has stated that PW-1 is his Uncle, as such, PW-2 (victim boy) is his elder cousin brother. On the date, 04.01.2015 while he was going to the house of the PW-1, on the road PW-2 met him at about 5.30 p.m. and told to him that though he was not willing to go to the accused, however, at the pressure of his father he has to go to the accused to listen to a discourse by a religious head. As such, he requested him to accompany him. The witness stated that PW-2 also revealed before him the incident taken place on 01.01.2015. Accused had committed an ugly act

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against him in the Masjid on the said day, as such, he was scared to go to his house. Since, the accused told him that if he (this witness) accompanies him the accused may not do anything further, hence, he accompanied PW-2. The accused stating that it is time for Namaz, sent him (PW-3) to the Masjid, asking him to offer prayer and dragged PW-2 inside his house.

¶165

The witness has further stated that on 05.01.2015 he had been to the house of PW-2 and saw that PW-2 was sitting alone in his house. When enquired, he told him that on 04.01.2015 also, the accused repeated the ugly act upon him. He also told him about he vomiting in the school and school teacher informing his father about the same.

¶166

In his cross-examination PW-3 gave the details that about twice a week he visits the house of the victim. He stated that he has seen the accused even prior to the incident. He further stated that whenever the religious head would visit the Bagban Masjid to deliver the discourse, accused used to gather Muslim boys and take them to listen to the discourse. Even PW-2 was also used

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to attend such religious preachings. The witness also stated that PW-2 after stating about the incident that took place on 01.01.2015 asked him to not to disclose about the same before anybody. He stated that the house of the accused is in the adjacent lane, where the house of PW-2 is situated. He also stated that nobody has seen him accompanying PW-2 to the house of the accused.

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Thus, nothing material could be brought out in the cross-examination of PWs-1, 2 or 3, which are beneficial to the accused. Since all the three witnesses adhered to their original version and fully supported the case of the prosecution, even in their cross-examination also, nothing favourable to accused was elicited in their crossexamination nor any element leading to disbelieve the evidence or suspect the evidence of PWs-1 to 3 were brought out in the cross-examination of PWs-1 to 3 from the accused side.

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The next witness in the series, upon whom the prosecution relied upon, regarding the incident is, PW-5

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(CW-7) Syed Nizam, bother-in-law of the PW-1. This witness in his evidence has stated that Pw-1 is his brotherin-law. On 05.01.2015 at about 4.00 p.m. or 5.00 p.m. PW-1 telephoned him asking him to come to his house,

¶175

since he was facing a problem. Immediately, he came to Mysuru from Mandya where he was. PW-1 after seeing him, while crying, told him that accused has committed anal sexual intercourse with his son -PW-2, on the first floor of Masjid. The witness stated that he enquired PW-2 also who was in the home. He also stated about the incident as stated by his father i.e., PW-1. PW-2 also stated that on 04.01.2015 also, on the pretext that their religious head has come to deliver discourse, has made him to go to his house. However, while going to his house he (PW-2) took his cousin Touseef also along with him. Accused sent Touseef to Masjid asking him to offer prayer and taking him (PW-2) inside the house, he repeated the act committed by him earlier in the first floor of the Masjid.

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The witness further stated that later-on himself along with PW-1, (CW-6) Ajgar Hussain, brother-in-law of PW-1, went to Masjid and informed the heads in the Masjid about the act committed by the accused. All of them felt very bad and expressed their helplessness and advised to go to Islamic Court. Accordingly, on 10.02.2015 they went to Islamic Court and informed about the incident. The people at Islamic Court stating that it is a big issue, which they cannot solve, had advised them to lodge a complaint. Accordingly, PW-1 lodged a complaint with the police.

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In his cross-examination this witness stated that till he came to the house of PW-1 on 05.02.2015, he was not aware of the incident. He denied the suggestion that PW-2 was suffering from piles complaint, since prior to the alleged incident. He stated that accused was not summoned by the Committee at Masjid, however, the accused had hidden somewhere. In the Islamic Court the accused was summoned and was enquired. He denied that no alleged incident has taken place.

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Thus, even PW-5 also has stated about the incident,

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however, even according to him, he is a hearsay witness said to have heard from PWs-1 and 2 about the alleged incident.

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PW-6 (CW-12) Meer Mujahid Ali in his evidence

¶185

has stated that about a year prior to his date of evidence, when he had been to Bagban Masjid, as usual to offer afternoon prayer at 1:30 p.m,. PW-1 - Abubaker went there and stated that accused has committed sexual assault upon his son PW-2. The written complaint was given to Aftab Hussain, Secretary of the Masjid. The witness stated that he is also the member of Bagban Masjid Committee. These people, including CW-13 and

¶186

other members of the Committee, after seeing the application submitted by the PW-1, stated that they do not know anything about it and directed them to go to Islamic Court and get the matter resolved there.

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In his cross-examination from the accused side, this witness has stated that he is the Vice President of

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Bagban Masjid Committee, and has reiterated that the Committee has referred the matter to Islamic Court, however, no acknowledgement has been given by the Islamic Court in that regard.

¶191

PW-7 (CW-13) Aftab Hussain in his evidence has stated that he is working as a Secretary at Bagban Masjid. About two years prior to the date of his evidence, went to Masjid in the afternoon. While he was at Bagban Masjid, PW-1 Abubaker gave him an application. In the said application it was mentioned that accused has committed rape upon his son and had requested to decide the matter. About two to three days thereafter, himself and other members of the Committee attempted to secure PWs-1, 2 and accused to Masjid and to enquire into the matter, however, the matter was not decided. Therefore, he told PW-1 to go to Sheriyat Court and to resolve the matter.

¶192

In his cross-examination the witness stated that they had not maintained any record about the complaint which

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the Masjid Committee receives. As such, there is no mentioning in the meeting book of the Committee about the Committee receiving the complaint from PW-1.

¶196

PW-9 (CW-14) Smt. Leelavathi has stated that

¶197

she has been working as an Assistant Teacher at Savitri School, Mysuru. She is also a teacher for 9^th standard in the school. PW-2 was their student from LKG upto SSLC. On one day in February 2015, in the prayer assembly victim boy stated that he is feeling vomiting. Immediately he was administered to drink water and the matter was informed to his parents.

¶198

Since, the witness did not speak anything about the alleged incident of sexual assault upon the victim boy, the witness was treated as hostile at the request of prosecution and prosecution was permitted to cross-examine her.

¶199

However, in her cross-examination from the prosecution side, the witness denied that she came to know that PW-1 - father of PW-2 had lodged complaint alleging that on 01.01.2015 and 04.01.2015 accused had

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practiced unnatural sex with PW-2. In her crossexamination from the accused side nothing could be elicited that was favourable to the accused.

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PW-12 (CW-11) Syed Tajuddin in his evidence

¶204

has stated that he has been working since four years as a Khaji at Islamic Court located near JSS College, at Mysuru. On the date 10.02.2015, PW-1 Abubaker had requested the Islamic Court to punish the accused stating that the accused had committed an ugly act upon his son. At the instructions, PW-1 had brought his son also. PW-1 scolded the accused in abusive language. He (this witness) joined by Secretary of Arabic College told them that Islamic Court had no power to give punishment to the accused, as such,

¶205

they were required to approach the police and the Court. The witness stating that police had collected a report from them identified Ex.P.10 and his signature at Ex.P.10(a).

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In his cross-examination from the accused side the witness stated that except original of Ex.P.10 they do not

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have any document nor any entry to show that PW-1 has

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approached their Court for justice.

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PW-13 (CW-25) Keshavamurthy R. the then

¶212

Police Sub Inspector of the complainant Police Station has stated that on 10.02.2015 at about 10:30 p.m. complainant had appeared before him and lodged a complaint as per Ex.P.1. He registered the same in their Police Station Crime No.24/2015 and prepared an FIR as per Ex.P.11 and handed over further investigation to CW26. The witness has identified the complaint at Ex.P.10.

¶213

The above evidence of PWs-1, 2 and 3 gives a direct account of the alleged incident. The evidence of PWs-1, 2 and 3 go to show that the accused being working in Bagban Masjid was also taking Muslim boys to Masjid and preaching them about the Holy Quran and religious practices. The undenied evidence of PWs-1 to 3, on this point would go to show that accused was identified himself in the religious activities and associated with Bagban Masjid, Mysuru.

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The evidence of PWs-1, 2 and 3 further go

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to show that on 01.01.2015, PW-2 the victim boy had been to the said Masjid to offer his evening Namaz. PW-2 - victim boy has clearly stated that on the pretext of bringing a LPG gas cylinder from the first floor of Masjid, accused took him to the first floor of the Masjid and forcibly removed the clothes worn by him and he practiced unnatural sex with him. PW-2 has given a detailed account on how the accused committed the unnatural sex and how he (the boy) attempted to resist the same, but, failed in his attempt. The boy has given a detailed account about the act. He also shown that he was helpless in the situation, since the accused had held him firmly. The accused who was a grown up adult, had held him firmly, by twisting his hand on his back and when PW-2 screamed he closed his mouth also with his hand, thus, as a minor boy of 14 years, PW-2-the victim, could not able to escape from the clutches of the accused.

¶218

48.The evidence of PW-1 that on 04.01.2015 when he asked his son i.e., PW-2 to go to the accused and then to Meera Park to listen to a discourse by a religious head, it was not

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acceptable by PW-2 and he was very much hesitant to go

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to the accused, is further corroborated by evidence of PW3 - Touseef. The evidence of PW-3 that the victim boy (PW-2) while going to the house of the accused at the insistence of the father, after meeting him on the way to the house of the accused, also requested him to go with him, further corroborates the evidence of PW-2 - the victim boy that the boy was very much scared due to the act on the date 01.01.2015 committed against him by the accused. Though PW-3 joined PW-2 to go to the house of the accused on 04.01.2015, however, the accused being the active worker of Bagban Masjid and being elder in age to PW-2 and PW-3, was successful in sending PW-3 to Masjid asking him to perform Namaz, since it was 5:30 p.m. Accused being a religious activist taking boys to Masjid and preaching them the religious niceties, his words

¶223

and direction to go to Masjid and offer prayer could not be disobeyed by PW-3. Thus, the accused could able to succeed in seeing that PW-3 parted from the company of PW-2. Both PWs-2 and 3 have stated that once accused

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was successful in separating PW-3 from the company of PW-2 and making him to leave the place from his house, he pushed PW-2 inside his house. The incident that took place thereafter has been narrated by PW-2. He being a minor boy of aged about 14 years, stated that the act, that was committed by the accused on 01.01.2015, was repeated by him on that day also.

¶227

Learned counsel for the respondent/accused in his argument submitted that even according to PW-2 on 01.01.2015, when the accused was said to have taken PW-2 to the first floor of the Masjid, there were five to six persons in the ground floor of the Masjid, however, none of them have rushed to the rescue of PW-2, as such, the say of PW-2, that said act of unnatural sex was practiced by the accused, is not safe to believe.

¶228

No doubt that PW-2 has stated that while he was being taken to the first floor by the accused, there were five to six persons in the ground floor of the Masjid. By that itself, it cannot be expected that those persons should have necessarily heard

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the scream of boy and rushed to his rescue, that is for the reason that accused was a person regularly available in the said Masjid, being on full time involved in the activities of the Masjid. When the accused, among his activities was

¶232

also involved in the gathering of Muslim boys and taking them to Masjid, for religious preachings, there was no reason for any of those five persons to suspect the act of the accused taking PW-2 with him to the first floor of the Masjid. As PW-2 stated that when he screamed accused closed his mouth. Thus, it cannot be expected that alleged single act of screaming of PW-2 should have been heard by five to six persons who were in the ground floor and anticipated some incident and should have rushed to the rescue of PW-2. However, the Special Court did not appreciate these aspects in its proper perspective. Therefore, the argument of the learned counsel for the respondent/accused on this point is not acceptable.

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The evidence of PW-2 further go to show that after the act he was now and then suffering from pain near

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his anus and some times he has noticed the oozing of droplets of blood from that part of the body. He also stated that he, himself, was going to medical store and purchasing some pain killers and consuming them, which were giving him some relief from pain. Even though the Investigating Officer has not collected any documents about the boy approaching the medical store and purchasing the tablet by that itself, the evidence of PW-2 cannot be taken as not believable. Like, several of common man and the boys of his age group, even PW-2 has also directly approached the medical store and purchased some tablet for self medication. Thus, no unnatural aspect can be smelt in the evidence of PW-2.

¶236

The evidence of PW-9 - school teacher shows that the boy was not normal subsequent to the alleged incident and he complained or vomiting sensation in the prayer assembly. As such, the school authority telephoned to PW-1 and informed him about the boy, who came to the school and took his son with him. The said evidence of PW-9 corroborates the evidence of PWs-1 and 2, who also have

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stated about PW-2 feeling inconvenience and vomiting sensation in the school, thus, aftermath of the alleged incident has not only stated by PW-2, but, also corroborated by the evidence of PWs-1 and 9. Then, after the victim boy was made to reveal about the incident to his father after the boy was brought back from the school on 04.01.2015, they approached Masjid Committee complaining against the accused and seeking redressal of their grievance cannot be considered as unnatural. It is because as observed above, the accused was working for Masjid and participating in the religious activities of the Masjid, therefore, PW-1 chose to go to Masjid first and then to Police Station. PW-1 has stated that he was not asked to rush to the Police Station but to resolve the matter by negotiations. Accordingly, PW-1 had approached Masjid Committee with the complaint against the accused.

¶240

The evidence of PW-5 the brother-in-law of PW-1 and PW-6 the member of the Masjid and PW-7 the Secretary of the Masjid, corroborates the evidence of PWs-

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1 and 2 that they had been to the Masjid Committee taking their complaint against the accused about the alleged incident. Their evidence have come in uniform manner corroborating the evidence of PWs-1 and 2 on the aspect of they approaching the Masjid for redressal of their complaint. The evidence of PWs - 5 and 6 further go to show that expressing their inability to resolve the matter at Masjid level, they directed the complainant to approach the police and Court.

¶244

PW-5 has gone further stating that he told PW-1 to go to Islamic Court and that he would also come over there and speak about the matter. Thus, the evidence of PWs-1, 2 and 5 that they approached the Masjid Committee, which also expressed its helplessness, was further corroborated by the evidence of PWs-5 and 6.

¶245

The evidence of PW-12, the Khaji of Islamic Court go to show that being referred by the Masjid Committee the complainant had approached the Islamic Court. They also warned the accused and later they advised the complainant to go to the Police and Court, since they had

¶246

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no power to punish the accused and report given by PW12 in that regard, had been identified by the witness at Ex.P.10. The said document go to show that the Islamic Court Darul Quaza Imarat-E-Sharia, Darul Uloom Siddiqia, Arabic College, Mysuru, has addressed a letter to the complainant Police and stated that a meeting with respect to alleged complaint was held by the Islamic Court on 10.02.2015. The meeting was arranged at the request of PW-1 -Abubker. The scholars and elders of their community were present. However, no decision could be taken by the Islamic Court, as such, no record has been developed with respect to said issues. Thus, the evidence of PWs-1 and 2 that as stated by the Masjid Committee they approached the Islamic Court which also in turn directed them to approach Police and Court of Law, stands corroborated by the evidence of PW-12.

¶249

The medical evidence regarding the alleged act of accused practicing unnatural sex i.e., anal sex with PW-

¶250

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2 the victim boy, requires some consideration at this stage.

¶253

PW-10 (CW-16) Dr. Ruben Prakash has stated that as a General Surgeon in Mission Hospital, Mysuru on 06.02.2015 in the mid-day he has examined the victim boy - PW-2, who was brought with the history of Sodomy about 25 days back by an youngman in the mosque who was acquainted with the family of the victim boy. The witness stated that it was also stated that act of Sodomy was repeated by three days after the first act of Sodomy in the accused house itself. Further the victim boy was complaining of pain in anus and bleeding from the anus and difficulty in passing motion and sitting comfortably and was also complaining pain in the abdomen.

¶254

On examination of the victim boy, it was revealed to him that boy was anxious and he was suffering from pain. On medical examination of anus of the victim boy it was found that he was having sphincter spasm and digital examination of rectum was not possible. The boy was got admitted for examination under Anesthesia on the

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following morning. The examination of the victim boy under Anesthesia revealed fissure at 8'o clock position. No mucosal injuries were noted. Rigid Sigmoidoscopy upto 13 centimeters reveal normal mucosal. Left lateral sphincterotomy procedure was done following which his symptoms subsided. The boy was discharged in a stable condition on 09.01.2015. Stating so the witness has identified two certificates at Exs.P.7 and P.8, as issued by him. He has also identified the copy of the case sheet maintained by their hospital with respect to victim boy which was marked at Ex.P.9. He also stated that sphincter spasm always occurs due to Sodomy.

¶258

In his cross-examination from the accused side the witness denied a suggestion that victim boy was suffering from piles since the year 2009. He stated that piles and fistula, Prolapse Rectum and Fissure are all anus related diseases.

¶259

He denied a suggestion that edges of rectum turns black in colour if a person is subjected to massive Sodomy. However, the witness stated that he did not find

¶260

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any type of external injuries on the body of PW-2 except Fissure. Further he did not find any oozing of the blood from the anus of the victim boy. He has also stated that though he intimated the parents of the victim boy that the case was a medico-legal case and the same has to be informed to the Police, but, the parents of the boy were not ready to inform the same to the Police, to protect the interest of the PW-2. In that regard, he has mentioned in the case sheet under the date 07.02.2015.

¶263

The said evidence of the Doctor would go to show that at the earliest point of time when the victim boy was brought to the hospital and examined by PW-10 - Doctor, it was stated before the doctor that the boy was subjected to Sodomy and repeated act of Sodomy by a man in the mosque and at his house, which, in fact, a man who was acquainted with the family of the victim boy. Even PWs-1 and 2 were also stated that accused was also acquainted to them, which was also not denied in their crossexamination. That apart, at the earliest point of time,

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before the doctor, history for the boy suffering pain in his anus was revealed, which is the alleged incident in question. The doctor has not ruled out the possibility of unnatural sex anywhere. He has not stated that the history of Sodomy was found false. On the contrary, he stated that the boy was admitted as inpatient and was medically treated. Even PWs-1 and 2 also have stated that PW-2 was admitted to hospital.

¶267

The case sheet at Ex.P.9 also shows the same

¶268

history as stated by PW-10 - Doctor. Further the said case sheet under the entry dated 07.02.2015 also shows that the alleged nature of offence had to be intimated to the police as it was medico-legal case issue, however, the parents of the victim boy wanted not to make the case a medico-legal case. Thus, the doctor at the earliest point of time has also attempted to educate PW-1 about the necessity to inform the police and did not inform the police at specific request of the parents of the minor boy. Thus, the medical evidence of PW-10 not only supports the

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evidence of PW-2 -victim boy and his father i.e., PW-2, about the victim boy being subjected to an unnatural sex, but, also gives the reason of not making a case a medicolegal case.

¶272

The evidence of PW-8 (CW-15) Dr. Dayanand, Associate Professor at Forensic Medicine Department, MMC Mysuru shows that at the request of Investigating Officer he examined the accused on 12.02.2015 about the capacity of the accused to commit sexual intercourse. The witness has stated that he examined the accused and came to an opinion that there was nothing to suggest that accused was not capable of performing the act like that of sexual intercourse. In that regard, he has issued a medical

¶273

report, which, this witness has identified as Ex.P.4. The witness also got examined accused for dental and radiological test to ascertain his age and by this report he came to know that the age of the accused was more than 20 years. In that regard, he has issued an age estimation certificate, which, the witness has identified at Ex.P.5.

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The said evidence of PW-8 which was not seriously disputed in his cross-examination establishes that the accused was not incompetent to have sexual intercourse, as such, the evidence of PW-2 the victim boy

¶277

that he was subjected to forcible unnatural sex by the accused again have no reason to disbelieve the same.

¶278

Our Hon’ble Apex Court in the case of LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW JHARKHAND) and connected matters reported in (2021) 9

¶279

Supreme Court Cases 191, in sub-paragraphs 9.1 and 9.2 of its judgment, referring to its previous judgment in the case of Abdul Syeed Vs. State of M.P., [(2010) 10 SCC

¶280

259] , was pleased to observe that, the evidence of the injured witnesses is entitled to a greater weight and very cogent and convincing grounds are required to discard their evidence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. It was further observed by their Lordships that, "being injured witnesses,

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their presence at the time and place of occurrence cannot be doubted".

¶284

Thus, the evidence of PW-2 the victim boy alone was sufficient to prove the alleged offence committed by the accused against the victim boy. Still the said evidence of PW-2 proves to be more believable and trustworthy by the evidence of PWs-1, 3, 5, 6, 7, 8, 9 and by medical evidence of PWs-8, 10 and 11. The evidence of PW-1 that with respect of alleged incident, he lodged a complaint before the complainant police as per Ex.P.1, stands corroborated by the evidence of PW-13, however, evidence of PWs-1 and 2 that after PW-1 lodging the complaint as per Ex.P.1, the complainant police visited the spot shown by PW-2 and drew scene of offence panchanama both at the Masjid and house of the accused, as per Ex.P.2 and P.3, is further corroborated by the evidence of PW-4 (CW-4) Syed Hussain who is a pancha for both the panchanamas. His evidence corroborates the evidence of PW-14 - Investigating Officer that he visited the spot ad drew scene of offence panchanama.

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The final opinion by the hospital, which is at

¶288

Ex.P.8, which is collected by PW-14 - Investigating Officer, as per his evidence, would also go to show that the acute fissure in the anus of the victim boy could probably be due to sexual assault. Even PW-10 - Doctor who has noticed Sphincter Spasm with the boy has stated that sphincter spasm always occurs due to fissure and fistula may occur due to Sodomy. Thus, the trustworthy evidence of PW-2 apart from being corroborated from the evidence of other witnesses is also corroborated by the medical evidence, consequently, stand proved that the accused has committed the alleged offence upon the minor victim boy at two different places and more than once. The act of the accused was unnatural of the anal intercourse with the boy of the same sex, which the doctor has called as Sodomy.

¶289

However, the Special Court misread the evidence of PW-10 - doctor and opined that the fistula or piles can also be the reason for the boy suffering pain in the anal region and the alleged oozing of blood.

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In the said process the Special Court did not appreciate the evidence of PW-10 - Doctor in proper perspective and totally ignored the final medical opinion at Ex.P.8. It did not gave its thought in appreciating the evidence of PW-2 - victim boy, rather, it ignored the evidence of victim boy and attempted to search for some reason to disbelieve the evidence of the prosecution witnesses, including that of PW-2 and the medical evidence. However, the said finding given by the Special Court has now proven to be erroneous.

¶293

The Special Court also disbelieved the case of

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the prosecution on the ground of delay in filing the complaint, which is one month nine days. First incident has taken place on 01.01.2015 its repetition was on 04.01.2015, however, PW-1 lodged the complaint as per Ex.P.1 on 10.02.2015. Because of this delay the Court disbelieved the case of the prosecution.

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It is held by the Hon’ble Apex Court in the case

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of STATE OF MADHYA PRADESH VS. RATAN SINGH AND

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Crl.A No.1836/2017 c/w. Crl.A.No.1052/2017

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OTHERS reported in (2020) 12 SCC 630 with respect to Section 154 of Cr.P.C about the delay in lodging the FIR that there is no hard-and-fast rule which can be applied to determine the effect of delay in filing FIR. Court is dutybound to determine whether explanation afforded is plausible enough, based on given facts and circumstances of each case. Courts generally will not disbelieve version of eyewitnesses, even if there is some delay in lodging FIR, if versions of eyewitnesses are reliable and trustworthy. However, delay needs to be explained.

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In the instant case, even though PW-1 came to know about the incident on 04.01.2015, however, he himself has stated that since the Masjid people had advised him not to lodge a complaint and the matter can be negotiated and settled, he did not proceed to lodge the complaint before the Police. Even PW-10 – Doctor has also stated and it is also reflected in Ex.P.9 – case sheet that

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the parents of the victim boy were not aggreeable to treat the case as medico-legal case.

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As observed above, the member of the Masjid Committee and Secretary of Masjid Committee who were examined as PWs – 6 and 7 respectively, have also stated that PW-1 had approached them with the complaint against the accused. The evidence of PW-5 also corroborates the same. Both PWs-6 and 7 have stated that the Masjid Committee expressing its helplessness directed them to approach the Islamic Court and the complaint was referred to Islamic Court. PW-12 the Khaji of the Islamic Court stated about he receiving the complaint and enquiring PW-1 and the accused. He too has stated that the Islamic Court was helpless in resolving the matter, as such, he directed the complainant to approach the police and the Court on 10.02.2015. It is, immediately, thereafter, on the very same day, PW-1 the complainant has approached Police and lodged complaint as per Ex.P.1. Thus, the delay has not just been explained by PW-1

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alone, but, it is explained by other witnesses also including PWs-5, 6, 7 and 12. Nothing has been brought in their cross-examination to suspect their evidence regarding delay in lodging complaint.

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The evidence of these witnesses cannot be doubted to the effect that during the said period of the alleged delay, the complainant and others hatched a plan and tailored a complaint against the accused or that, the accused has falsely implicated. Therefore, when the delay

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has been satisfactorily explained not only by the complainant but also by other uninterested witnesses in the matter, there is no reason to suspect the contents of the complaint on the ground of the delay. However, the Special Court without appreciating the convincing reasons

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shown by the prosecution, explaining the delay, has counted the number of days of the delay and proceeded to disbelieve the case of the prosecution, which has led it in passing an erroneous judgment. As such, impugned judgment warrants interference at the hands of this Court.

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The accused in the form of suggestion made to PWs-1, 2, 4, 10 and PW-14 in their cross-examination had taken a defence that there was financial transaction between PW-1 and accused, therefore, to avoid liability on his part, PW-1 has lodged a false complaint against the accused by making use of his son PW-2. It was also suggested that PW-2 also had fistula and piles since 2009 and making use of the same, a false complaint was lodged against the accused. However, suggestions made to PWs1, 2, 4, 10 and PW-14 in that regard were denied from those witnesses. As such, the defence of the accused confined only to the suggestion made to the witnesses which were not admitted by those respective witnesses.

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Accused has also taken a defence in his statement under Section 313 of Cr.P.C. that the complainant and accused belongs to two different Jamats. The Jamat, to which the accused was belonging was, more popular, as such, in order to spoil the reputation of the Jamat of the accused, the

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complainant has lodged false complaint

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against the accused. Except making the said statement accused has not placed any material to show regarding the alleged two different Jamats and their respective popularity and the intention of PW-1 to spoil the reputation of the Jamat which was said to be popular. Therefore, the defence of the accused in any manner could not able to create any doubt in the case of the prosecution. Consequently, it has to be held that the prosecution has proved beyond reasonable doubt that the accused has committed anal sexual intercourse, which is unnatural sex, punishable under Section 377 of IPC against PW-2 -victim boy and also has committed penetrative sexual assault causing bodily harm and injury to the victim boy repeatedly on 01.01.2015, as well, on 04.01.2015, resulting in he committing aggravated penetrative sexual assault against the victim boy, under Sections 5(i) and 5(l) punishable under Section 6 of POCSO Act.

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Accordingly, we proceed to pass the following:

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ORDER

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i. The Criminal Appeal No.1836/2017 and Criminal Appeal No.1052/2017 stand allowed.

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ii. The judgment in S.C. No.155/2015 dated 18.04.2017 passed by the VI Additional District and Special Judge, Mysuru acquitting the accused of the offences punishable under Sections 377 the Indian Penal Code, 1860 and under Section 5(i) and 5(l) read with Section 6 of Protection of Children from Sexual Offences Act, 2012, stands set aside ;

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iii. The accused Mubhashir Sharif S/o. Hafijulla Babu Sharif, Aged about 20 years, R/o. No.2145, 19^th West Cross, Ashoka Road, Bare Ka Makan, Lashkar Mohalla, Mysuru - 570 021 is convicted for the offence punishable under Section 377 of Indian Penal Code, 1860 and

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under Section 5(i) and 5(l) punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012.

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To hear on sentence, the matter is passed over.

Sd/JUDGE

Sd/JUDGE

BVK

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Dr. HBPSJ & UMBAJ:

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19.01.2024

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HEARING ON SENTENCE

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Heard the submission of learned counsel for the respondent/accused and the learned HCGP and the learned counsel for the appellant in Crl.A.No.1052/2017.

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Learned counsel for the accused/respondent No.1 in his submissions submitted that as on the date of the alleged offence the accused was aged only about 19 years, as such he was a youth and now he is settled in his life with his family. He has old aged parents as his dependents. He further submits that the accused has continued his services in another Masjid and has no complaints against him of any sort. As such, he has totally reformed in his behaviour and character. With this he prays to take most lenient view and a minimal sentence against the accused be ordered.

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Per contra, learned HCGP in his submissions submitted that the proven guilt against the accused is a

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heinous offence in the form of unnatural sex against the same sex that too against a boy of minor age of only 14 years, as such, the most stringent and maximum punishment that can be ordered for the proven guilt in the matter.

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It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.

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In the instant case it is proved that the accused has committed a heinous offence practicing unnatural sex against the victim boy, who was minor in his age. It is proved that the said act of the accused was repeated for more than once. The victim boy who had a bright future, according to the prosecution has now been spoiled, due to the act of the accused. Under the proven facts and circumstances of the case, the accused is not entitled for the benefit under the Probation of Offenders Act, 1958.

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Crl.A No.1836/2017 c/w. Crl.A.No.1052/2017

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Hence after considering the alleged mitigating factor canvassed on behalf of the accused and taking into consideration the facts and circumstances of the case, we proceed to pass the following order on sentence.

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ORDER ON SENTENCE

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The accused/respondent No.1 Mubhashir Sharif S/o. Hafijulla Babu Sharif, Aged about 20 years, R/o. No.2145, 19^th West Cross, Ashoka Road, Bare Ka Makan, Lashkar Mohalla, Mysuru - 570 021 is sentenced to undergo ten (10) years rigorous imprisonment and to pay a fine of `25,000/(Rupees Twenty Five Thousand Only), and in default of payment of fine, to undergo an additional rigorous imprisonment for six (6) months for the offence 5(i), 5(l) punishable under Section 6 of POCSO Act.

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Since accused is sentenced for the offence

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5(i) and 5(l) punishable under Section 6 of

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POCSO Act, no separate sentence for the offence punishable under Section 377 of Indian Penal Code, 1860 is ordered.

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Out of the fine amount, deposited, if any, by the accused, a sum of 23,000/- be paid to the victim boy (PW-2), as victim's compensation under Section 357 of the Code of Criminal Procedure, 1973. The remaining sum of 2,000/- be paid to the State;

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The victim boy (PW-2) is also entitled for compensation under Section 357A of the Code of Criminal Procedure, 1973;

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The District Legal Services Authority, Udupi, is directed to decide the quantum of compensation payable to the victim boy (PW-2) under the Scheme under Section 357A of the Code of Criminal Procedure, 1973, and to take appropriate steps for

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Crl.A No.1836/2017 c/w. Crl.A.No.1052/2017

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compensating the victim boy (PW-2) under the Scheme at the earliest, but not beyond a period of six months from the date of receipt of a copy of this judgment.

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The accused - Mubhashir Sharif S/o. Hafijulla Babu Sharif, Aged about 20 years, R/o. No.2145, 19^th West Cross, Ashoka Road, Bare Ka Makan, Lashkar Mohalla, Mysuru - 570 021 shall surrender before the learned Sessions Judge’s Court, within forty five (45) days from today and serve the sentence;

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The accused is entitled for the benefit of setoff for the period, if any, undergone by him in Judicial Custody in the matter, under Section 428 of the Criminal Procedure Code, 1973;

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