Bombay High Court
Mohd Azad Ahmed Ali Khan vs The State Of Maharashtra on 24 April, 2018
Author: A. M. Badar
Bench: A. M. Badar
APPEAL-997-2015-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.997 OF 2015
MOHD. AZAD AHMED ALI KHAN )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Aniket Vagal, Advocate for the Appellant.
Ms.Anamika Malhotra, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 24th APRIL 2018
ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging the judgment and order dated 13 th August 2015 passed by the learned Designated Court under the Protection of Children from Sexual Offences Act, 2012, for Greater Bombay, Mumbai, in Sessions Case No.351 of 2013, thereby convicting the avk 1 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:24 ::: APPEAL-997-2015-J.doc appellant/accused of the offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act for the sake of brevity) as well as under Sections 363 and 366 of the Indian Penal Code. For the offence punishable under Section 4 of the POCSO Act, the appellant/accused is sentenced to suffer rigorous imprisonment for a period of 7 years apart from payment of fine of Rs.2,000/- and default sentence of further rigorous imprisonment for 2 months. For the offence punishable under Section 363 of the Indian Penal Code, the appellant/accused is sentenced to suffer rigorous imprisonment for 7 years apart from payment of fine of Rs.2,000/- and default sentence of rigorous imprisonment for 2 months. For the offence punishable under Section 366 of the Indian Penal Code, the appellant/accused is sentenced to suffer rigorous imprisonment for 10 years apart from payment of fine of Rs.3,000/- and default sentence of rigorous imprisonment for 3 months.
avk 2 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:24 :::
APPEAL-997-2015-J.doc 2 Facts, in brief, leading to the prosecution of the appellant/accused are thus :
(a) Victim of the offence, at the relevant time, was a minor female child, her date of birth being 19 th June 1995. She was taking education in Nyay Sampada School, Shivaji Nagar, Mumbai, and was residing along with her parents and brothers at Shanti Nagar, Bainganwadi, Govandi, Mumbai.
(b) The appellant/accused used to work in a factory making envelopes which was located in front of the house of the prosecutrix/PW1. He used to stare at the prosecutrix/PW1 and thereafter established contact with her. He informed the prosecutrix/PW1 that he is a divorcee and loves her. Then, the couple started talking with each other.
(c) PW2 Ankush is father of the prosecutrix/PW1. He got information that his daughter i.e. the prosecutrix/PW1 is avk 3 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc roaming with the appellant/accused. He had also seen his daughter/prosecutrix/PW1 talking with the appellant/ accused.
(d) It is case of the prosecution that the appellant/accused told the prosecutrix/PW1 to meet him at Shivaji Nagar area of Mumbai on 15th December 2012. Accordingly, the prosecutrix/PW1 met the appellant/accused. He, then, took her to Kurla and thereafter to Mumbra, where they stayed at the room of the friend of the appellant/accused. At that place, the appellant/accused committed rape on the prosecutrix/PW1. The prosecutrix/PW1 was then taken by the appellant/accused to Kalyan and from there to Kasara, Bhusawal and ultimately to Raipur, where they stayed at the house of the friend of the appellant/accused.
(e) In the meanwhile, noticing the fact that his daughter went missing from 15th December 2012, her father PW2 Ankush lodged report Exhibit 9 with Police Station Shivaji Nagar, avk 4 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc Mumbai, on 16th December 2012, which has resulted in registration of Crime No.430 of 2012 for offences punishable under Sections 363, 366 and 368 of the Indian Penal Code against the appellant/accused. The fact of kidnapping the prosecutrix/PW1 by the appellant/accused came to the knowledge of the father of the appellant/accused. He, therefore, went to Raipur and took the couple back to Mumbai on 20th December 2012. They all then had a night halt at Hotel Victoria owned by PW9 Mohd.Yasin. According to the prosecution case, when father of the appellant/accused had been to the bathroom at that hotel, the appellant/accused again committed rape on the prosecutrix/PW1. On the next day i.e. on 21 st December 2012, the prosecutrix/PW1 as well as the appellant/accused was taken to Police Station Shivaji Nagar and the appellant/accused came to be arrested by PW8 Vijay Jadhav, Assistant Police Inspector.avk 5 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc
(f) During the course of investigation, clothes of the prosecutrix/PW1 as well as that of the appellant/accused came to be seized by preparing Seizure Panchnamas Exhibit 17 and Exhibit 20 in presence of PW4 Shahanzbee Anwar Shaikh and PW5 Shabbar Raza respectively. The prosecutrix/PW1 was sent for medical examination at the Police Hospital Nagpada, where she was examined by PW3 Dr.Baban Shinde. The spot of the incident was inspected and Spot Panchnama Exhibit 23 was prepared. The Guest Register of Hotel Victoria came to be seized. Similarly, the Investigating Officer collected the Birth Certificate of the prosecutrix/PW1. On completion of investigation, the appellant/accused came to be charge-sheeted. The learned trial court framed the Charge for offences punishable under Sections 363 and 366 of the Indian Penal Code as well as under Section 4 of the POCSO Act. The appellant/accused pleaded not guilty and claimed trial. His defence was that of total denial and false implication.
avk 6 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc
(g) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eleven witnesses. The prosecutrix is examined as PW1. Her father Ankush is examined as PW2. The First Information Report (FIR) lodged by him is at Exhibit 9. Dr.Baban Shinde of Nagpada Police Hospital is examined as PW3. Panch witnesses Shahanzbee Anwar Shaikh and Shabbar Raza are examined as PW4 and PW5 respectively. PW6 Farid Amir is a panch witness to the Spot Panchnama Exhibit 23. Assistant Police Inspector Salim Khan of Shivaji Nagar Police Station, who registered the FIR is examined as PW7. Vijay Jadhav, Assistant Police Inspector of Shivaji Nagar, who has investigated the crime in question is examined as PW8. Mohd.Yasin - owner of Victoria Guest House is examined as PW9. Chandrakant Dalvi, Assistant Police Inspector, is examined as PW10.
(h) After hearing the parties and after considering the evidence made available on record, the learned trial court, by the avk 7 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc impugned judgment and order dated 13th August 2015 was pleased to convict the appellant/accused of offences punishable under Sections 4 of the POCSO Act as well as under Sections 363 and 366 of the Indian Penal Code. He is, accordingly sentenced, as indicated in the opening paragraph of this judgment.
3 I have heard Shri Vagal, the learned advocate appearing for the appellant/accused at sufficient length of time. He took me through the entire evidence adduced by the prosecution and submitted that the case in hand cannot be a case of kidnapping a minor girl from out of keeping of her lawful guardians. Cross-examination of the prosecutrix/PW1 so also that of the Investigating Officer shows that the couple was in love and it was the prosecutrix/PW1, who had joined the company of the appellant/accused. Hence, no case of taking the prosecutrix/ PW1 is made out by the prosecution. Therefore, in submission of the learned advocate appearing for the appellant/accused, the prosecution has not proved that the prosecutrix/PW1 was taken avk 8 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc by the appellant/accused with an intention of subjecting her to illicit intercourse with him. The learned advocate further argued that age of the prosecutrix/PW1 is not proved by the prosecution and therefore, it cannot be said that at the time of alleged penetrative sexual assault on the prosecutrix/PW1, she was below 18 years of age. Hence, the offence punishable under Section 4 of the POCSO Act is not made out. With this, the learned advocate prayed for acquittal of the appellant/accused. 4 As against this, the learned APP supported the impugned judgment and order of conviction and the resultant sentence by submitting that the prosecution has duly proved the age of the prosecutrix/PW1 by placing on record certificate of her birth issued by the concerned Registrar under the Registration of Births and Deaths Act, 1969. This Birth Certificate is corroborating the version of the prosecutrix/PW1 that her date of birth is 19th June 1995, and as such, she was a minor female child at the time of the incident in question. The learned APP, therefore, submitted that the appeal is liable to be dismissed. avk 9 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc 5 I have carefully considered the rival submissions and also perused the Record and Proceedings including the oral as well as documentary evidence. In the case in hand, the prosecution has alleged that the appellant/accused had taken the prosecutrix/PW1 from lawful custody of her parents with an intention to commit illicit intercourse with her and subsequently, had committed penetrative sexual assault on her. The offence of committing penetrative sexual assault took place, according to the prosecution case, during the period from 15 th December 2012 to 21st December 2012. At this juncture, it needs to be noted that the appellant/accused was not charged for the offence punishable under Section 376 of the Indian Penal Code. Prior to enforcement of the Criminal Law (Amendment) Act, 2013, with effect from 3rd February 2013, as per provisions of Section 375 of the Indian Penal Code, prevalent at that time, a man was said to commit rape if he has sexual intercourse with a woman, with or without her consent, when she was under 16 years of age. Similarly, as provided by Section 361 of the Indian Penal Code, avk 10 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc taking or enticing any minor female under 18 years of age from out of the keeping of the lawful guardian of such minor, without the consent of such guardian, amounts to offence of kidnapping such minor from lawful guardianship. As per provisions of Section 2(d) of the POCSO Act, the child means any person below the age of 18 years. Considering the charge leveled against the appellant/ accused, age of the prosecutrix/PW1 assumes importance and at the outset, let us examine, whether she was proved to be below the age of 18 years, at the time of commission of the alleged offence.
6 During the course of investigation, PW8 Vijay Jadhav, Assistant Police Inspector, had collected Birth Certificate of the prosecutrix/PW1. The original thereof was produced before the learned trial court and it came to be marked as Exhibit 33. Perusal of the Birth Certificate at Exhibit 33 issued by the Sub- Registrar under the provisions of Sections 12 and 17 of the Registration of Births and Deaths Act, 1969, shows that the prosecutrix/PW1 was born on 19th June 1995 at Mumbai to PW2 avk 11 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc Ankush. The learned advocate for the appellant/accused attempted to point out that this Birth Certificate is not proved by the prosecution. The Certificate at Exhibit 33 is issued by Public Health Department of Brihan Mumbai Mahanagar Palika i.e. Municipal Corporation of Greater Mumbai. As per provisions of Rule 9 of the Maharashtra Registration of Births and Deaths Rules, 1976, the Certificate is issued by the Sub-Registrar acting under the provisions of the Registration of Births and Deaths Act, 1969. Section 7 thereof deals with appointment of Registrars for each local area comprising the area within the jurisdiction of the municipality, panchayat or other local authority. It is the duty of the Registrar to register every birth and every death which takes place in his jurisdiction. This Act mandates that the Registrar should discharge his duties carefully. Section 8 of this Act mandates each head of the house to report birth in the family to the Registrar. The Act provides for maintenance of register for recording birth and death within the local area. That is how, Certificate at Exhibit 33 came to be issued by the Sub-Registrar as per provisions of Sections 12 and 17 of the said Act. The avk 12 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc certificate at Exhibit 33, as such, is issued by the Public Officer and it is a document forming the record of the acts of the Public Officer and therefore the same is a public document within the meaning of the said term as per provisions of Section 74 of the Indian Evidence Act, 1872. The same is admissible in evidence by mere production thereof in view of provisions of Section 77 of the Evidence Act. Section 17 of the Registration of Births and Deaths Act, 1969, provides for search of Birth Register and supply of extract thereof by certifying the same by the Registrar or other authorized Officer. Section 17 of the said Act provides that such extract shall be admissible in evidence for the purpose of proving birth or death to which the entry relates. The Birth Certificate Exhibit 33 is, infact, the extract of Birth Register in respect of entry of birth of the prosecutrix/PW1, and as such, admissible in evidence. Section 35 of the Evidence Act, 1872, makes it clear that if entry is made by public servant in the official book in discharge of his official duty, then such entry becomes the relevant fact and admissible in evidence.
avk 13 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc 7 In the case in hand, the defence has not challenged the recorded date of birth of the prosecutrix/PW1. Even this recorded date of birth of the prosecutrix/PW1 is in tune with her date of birth deposed by the prosecutrix/PW1. Thus, the prosecution has established the fact that the prosecutrix/PW1 was born on 19 th June 1995. The alleged offence took place from 15 th December 2012 to 21st December 2012. Thus, the prosecution has proved the fact that at the time of commission of alleged offence, the prosecutrix/PW1 was below 18 years of age.
8 Now let us examine whether by evidence adduced by it, the prosecution has established that the appellant/accused had kidnapped the prosecutrix/PW1 from out of lawful custody of her parents with an intention to commit illicit intercourse with her and had, infact, committed penetrative sexual assault on her. Considering the nature of alleged offence, evidence of the prosecutrix/PW1 is of great importance in the case in hand. Let us, therefore, examine what the prosecutrix/PW1 is stating about avk 14 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc the incident of kidnapping and commission of penetrative sexual assault on her by the appellant/accused.
9 It is in evidence of the prosecutrix/PW1 that she used to reside with her parents at Shivaji Nagar, Govandi, in Mumbai, and the appellant/accused was working in a factory situated in front of her house. As per version of the prosecutrix/PW1, the appellant/accused gave his cell phone number to her and told her that he loves her. He told her that he is a divorcee and asked her to meet him on 15th December 2012. Accordingly, the prosecutrix/PW1 met the appellant/accused on 15th December 2012. The prosecutrix/PW1 further stated that the appellant/accused then took her to Kurla and from there to Mumbra. At Mumbra, they stayed in the room of his friend and during that stay, the appellant/accused had committed forcible sexual intercourse with her. As stated by the prosecution, then on 16th December 2012, the couple went to Kalyan, Kasara, Bhusawal and then to Raipur, where they stayed with the friend of the appellant/accused. The prosecutrix/PW1 was introduced as his avk 15 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc wife by the appellant/accused. The prosecutrix/PW1 further deposed that then the father of the appellant/accused came to Raipur and took them back to Mumbai. At Mumbai, they had a night halt at the lodge located at Masjid Bunder area of Mumbai. Her name was entered as Seema Khan in the register of that hotel. During the night halt at that lodge, as per version of the prosecutrix/PW1, the appellant/accused committed sexual intercourse with her. In the morning, they went to the police station, where her statement came to be recorded. She deposed that then her clothes were seized.
10 During course of her cross-examination, the prosecutrix/PW1 has candidly admitted the fact that she used to meet the appellant/accused since three months prior to the incident in question. Her father then told her that she will be married to somebody else. Cross-examination of the prosecutrix/PW1 further reveals that then on 15th December 2012, she made a telephone call to the appellant/accused and met him of her own accord. She candidly accepted the fact that because of avk 16 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc love affair with the appellant/accused, she had gone with him out of her own will. She did not telephonically contact her parents from 16th December 2012 to 21st December 2012 and even did not disclose either to the friend of the appellant/accused or to the wife of the said friend that she has been raped by the appellant/ accused. She neither made any efforts to return to her home nor told anybody either during the course of her journey or stay, that she had been forcibly taken by the appellant/accused. Thus, in cross-examination, the prosecutrix/PW1 has clearly stated that she joined the company of the appellant/accused of her own by contacting him telephonically and accompanied him to several places and stayed with him without any protest but rather out of her own free will and desire.
11 PW8 Vijay Jadhav, Assistant Police Inspector, is the Investigating Officer of the case in hand. In his cross-examination, this Investigating Officer has categorically admitted that during investigation he came to know that there was love affair between the appellant/accused and the prosecutrix/PW1. They were avk 17 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc meeting each other since last three months and it was the prosecutrix/PW1, who telephonically contacted the appellant/ accused on 15th December 2012 and on her own volition went to Mumbra and thereafter to Raipur. The Investigating Officer, further, admitted in his cross-examination that even on 21 st December 2012, the prosecutrix/PW1 was not prepared to come back to Mumbai and no force or threat was given by the appellant/accused to her for establishing physical relationship. From cross-examination of PW8 Vijay Jadhav, the Investigating Officer, it is brought on record that evidence of the prosecutrix/ prosecutrix/PW1, to the effect that the appellant/accused had committed forcible sexual intercourse with her, has come on record by way of omission. She has not disclosed about application of force to her by the appellant/accused in order to commit sexual intercourse with her, to the police, while recording her statement. Cumulative effect of this material elicited on record from the evidence of the prosecutrix/PW1 as well as from the cross-examination of the Investigating Officer, unerringly points out that the prosecutrix/PW1, who was more than 17 years avk 18 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc and 6 months of age, was knowing what was good and what was bad for her. She had undergone school education up to 10 th Standard prior to the incident in question. Out of her free will, she contacted the appellant/accused on 15th December 2012, most probably because her father was settling her marriage with somebody else. Then, she went to Raipur along with the appellant/accused and stayed there for few days, till taking her back to Mumbai by the father of the appellant/accused. 12 At this juncture, it is apposite to quote observations of the Honourable Apex Court in the matter of S. Varadarajan vs. State of Madras1. It reads thus :
"It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a 1 AIR 1965 SC 942 avk 19 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by avk 20 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."
13 Evidence of the prosecutrix/PW1 does not show that prior to the prosecutrix/PW1 leaving the lawful guardianship of her father PW2 Ankush, any active part was played by the appellant/accused. Her evidence does not show that even at some earlier stage, the appellant/accused enticed her by persuading her to leave her house and join his company. Thus, evidence of the prosecution does not make out the case of inducement to the minor female victim of the crime in question to abandon the keeping of her lawful guardian PW2 Ankush. Thus, the prosecution has not established the offence of kidnapping the prosecutrix/PW1 by the appellant/accused for the purpose of commission of illicit sexual intercourse with her. At this juncture, it needs to be noted that the prosecutrix/PW1 had already crossed avk 21 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc the consenting age, as on the date of the alleged offence she being more than 16 years of age. Her evidence indicates consensual sexual intercourse by the appellant/accused with her. 14 Now, let us examine, whether the prosecution has established commission of the offence punishable under Section 4 of the POCSO Act by the appellant/accused. The prosecutrix/PW1 has deposed that she had sexual intercourse with the appellant/accused in the night intervening 15 th December 2012 and 16th December 2012 at the room of the friend of the appellant/accused at Mumbra. Thereafter, the appellant/accused had repeated the similar act in the night intervening 20th December 2012 and 21st December 2012 at the Victoria lodge of Mumbai, where she along with the appellant/accused and father of the appellant/accused, had a night halt prior to approaching the police station. In normal course, as this evidence of the prosecutrix/PW1 is not suffering from any infirmity and has not been dislodged during the course of cross-examination, the same avk 22 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc deserves to be accepted. However, let us search for corroborative evidence, as the prosecution is also relying on forensic evidence as well as medical evidence to prove the fact of penetrative sexual assault on the prosecutrix/PW1 by the appellant/accused. 15 The prosecutrix/PW1 was taken to the police station by father of the appellant/accused on 21st December 2012. On the very same day, she was referred to the Police Hospital at Nagpada by the Investigating Officer. PW3 Dr.Baban Shinde had medically examined the prosecutrix/PW1 on 21st December 2012 itself. During medical examination of the prosecutrix/PW1, the Medical Officer found that hymen of the prosecutrix/PW1 was torn having tears at 3, 5, 7 and 9 O'Clock positions. Those tears were tender, oedematous, were bleeding on touch and were reddish in colour. This medical evidence, as such, unerringly points out that the prosecutrix/PW1 was subjected to sexual intercourse soon before conducting her medical examination by PW3 Dr.Baban Shinde. Her evidence to the effect that it was the appellant/accused who had committed sexual intercourse with avk 23 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc her, thus, gains corroboration from the evidence of PW3 Dr.Baban Shinde and contemporaneous Medico Legal Certificate at Exhibit
13. 16 Clear and cogent evidence of PW4 Shahanzbee Shaikh
- panch witness shows that on 21st December 2012, at the police station, mother of the prosecutrix/PW1 brought another set of clothes for her and the clothes worn by the prosecutrix/PW1 came to be seized by the police by preparing Seizure Panchnama Exhibit
17. Evidence of PW8 Vijay Jadhav, Assistant Police Inspector, is corroborating this version of the panch witness regarding seizure of clothes of the prosecutrix/PW1 and there is nothing in cross- examination of both these witnesses to disbelieve their version regarding seizure of the clothes which were on the person of the prosecutrix/PW1 on 21st December 2012, when she was brought to the police station by the father of the appellant/accused. 17 In the similar way, on 21st December 2012 itself, the T- Shirt and full pant worn by the appellant/accused came to be avk 24 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc seized by the Investigating Officer PW8 Vijay Jadhav, Assistant Police Inspector, in presence of PW5 Shabbar Raza - panch witness, by preparing Panchnama Exhibit 20. From cross- examination of both these witnesses, nothing could be elicited to disbelieve their version regarding seizure of clothes of the appellant/accused. The panchnamas show that the clothes were wrapped in brown paper separately and that packet was duly sealed.
18 PW8 Vijay Jadhav, Assistant Police Inspector, deposed that seized articles were sent by him for chemical analysis. Chemical Analyser's Report at Exhibit 11 shows that blood of the appellant/accused is that of "O" group and semen of the said group was found on kurta, salwar as well as knicker of the prosecutrix/PW1. Thus, the forensic evidence corroborates the version of the prosecutrix/PW1 that it was the appellant/accused, who had committed sexual intercourse with her. avk 25 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc 19 Evidence of PW9 Mohd. Yasin, owner of Victoria Guest House, shows that on 20th December 2012, three guests came to his lodge, out of which, one was a lady aged about 18 years. Through evidence of this witness, the prosecution has proved the extract of the Guest Register at Exhibit 29 disclosing admission of three guests at his Guest House in the night hours of 20 th December 2012. Name of the prosecutrix/PW1 is mentioned in the Guest Register as Seema Khan, as seen from the Guest Register of the Victoria lodge produced by the prosecution. Thus, this evidence also corroborates the version of the prosecutrix/PW1 that she was taken to the Victoria lodge, where her name was entered as Seema Khan.
20 With this evidence, the prosecution has proved beyond all reasonable doubts that the appellant/accused had committed penetrative sexual assault on the prosecutrix/PW1 during the period from 15th December 2012 to 21st December 2012. As discussed in foregoing paragraphs, the prosecutrix/PW1, at the relevant time, was a child as defined by Section 2(b) of the avk 26 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 ::: APPEAL-997-2015-J.doc POCSO Act, she being below 18 years of age. Thus, no infirmity can be found in conviction of the appellant/accused for the offence punishable under Section 4 of the POCSO Act as well as the resultant sentence imposed on him, which is bare minimum, as per the provisions of the said Act.
21 In the result, the following order :
ORDER
i) The appeal is partly allowed.
ii) Conviction as well as resultant sentence imposed on the appellant/accused for offences punishable under Sections 363 and 366 of the Indian Penal Code is quashed and set aside. The appellant/accused is acquitted of offences punishable under Sections 363 and 366 of the Indian Penal Code.
iii) Fine amount, if any paid by him, upon his conviction for these offences, be refunded to him.
avk 27 ::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::
APPEAL-997-2015-J.doc
iv) Conviction of the appellant/accused for the offence punishable under Section 4 of the POCSO Act as well as the sentence imposed upon him on that count by the learned trial court is maintained.
v) Rest of the order of the learned trial court is confirmed.
vi) The appeal is disposed of accordingly.
vii) With disposal of this appeal, Criminal Application No.1135
of 2017 stands disposed of.
(A. M. BADAR, J.)
avk 28
::: Uploaded on - 27/04/2018 ::: Downloaded on - 28/04/2018 01:14:25 :::