Karnataka High Court
Mr Abubaker vs The State Of Karnataka on 19 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF , JANUARY 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL APPEAL NO. 1836 OF 2017
c/w.
CRIMINAL APPEAL NO. 1052 OF 2017
IN Crl.A.No.1836/2017
BETWEEN:
State of Karnataka by
Mandi Police Station,
Mysuru
Represented by State Public Prosecutor,
Bengaluru -01.
... Appellant
(By Sri. B.N. Jagadeesha, Addl. State Public Prosecutor)
AND:
1. Mubhashir Sharif,
S/o. Hafijulla Babu Sharif,
Aged about 22 years,
R/o. No.2145, 19th West Cross,
Ashok Road, Bare Ka Makan,
Lashkar Mohalla,
Mysuru City - 57005.
2. Sri. Abubakar,
S/o. Late Meer Baksh,
Aged 50 years,
No.1939, Akbar Road,
Lashkar Mohalla, Mysuru.
.....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.
IN Crl.A.No.1052/2017
BETWEEN:
Mr. Abubaker, age 47 years,
S/o. Late Meer Baksh,
No.1939, Akbar Road,
Lashkar Mohalla,
Mysuru - 570 021.
... Appellant
(By Sri. S. Victor Manoharan, Advocate)
AND:
1. The State of Karnataka,
Represented by Mandi Police Station,
Mysuru City -570 021.
2. Mr. Mubhashir Sharif, age 20 years,
S/o. Hafijulla Babu Sharif,
No.2145, 19th West Cross,
Ashoka Road, Bare Ka Makan,
Lashkar Mohalla, Mysuru -570021.
.....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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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.
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:
COMMON JUDGMENT
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').
2. The summary of the case of the prosecution is
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
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
to his house, once again, he had repeated anal sexual
intercourse with him against his will and consent in his house
No.2145, 19th 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.
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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3. After perusing the materials placed before it
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 PW-
14, 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.
4. 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
Crl.A.No.1052/2017.
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5. 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.
6. The Special Court records were called for and the
same are placed before this Court.
7. 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.
8. For the sake of convenience, the parties would
be henceforth referred to as per their rankings before the
learned Sessions Judge's Court.
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9. Learned Addl. State Public Prosecutor for the
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.
10. Learned counsel for the appellant in
Crl.A.No.1052/2017 adopted the arguments of the learned
Addl.State Public Prosecutor.
11. 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
with various inconsistencies, the same is not believable.
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.
12. After hearing the learned counsels from both
side, the points that arise for our consideration in this
appeal are:
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
19th 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?
2) Whether the judgment of acquittal
under appeal warrants any
interference at the hands of this
Court?
13. Before proceeding further in analysing the
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.
(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:
" 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."
(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.
(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:
" 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."
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.
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.
14. 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.
15. 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 Xth 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.
16. 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 IXth 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.
17. 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).
18. 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.
19. 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.
Hon'ble Apex Court in the case of JARNAIL SINGH
VS. STATE OF HARYANA reported in (2013) 7 SCC 263
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.
20. 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
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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21. 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.
22. 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.
23. PW-1 (CW-1) Abubaker, the father of the victim
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
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 1st 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.
24. 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.
25. 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.
26. 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.
27. PW-2 (CW-2) - victim boy in his evidence has
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.
28. 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 (CW-
3/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.
29. 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
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.
30. PW-2 was subjected to a detailed cross-
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.
31. PW-3 (CW-3) - Mohammad Touseef, who is also
a minor, said to be studying in 9th 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.
32. 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.
33. 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.
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 cross-
examination 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.
34. 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 brother-
in-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,
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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35. 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.
36. 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,
however, even according to him, he is a hearsay witness
said to have heard from PWs-1 and 2 about the alleged
incident.
37. PW-6 (CW-12) Meer Mujahid Ali in his evidence
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
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.
38. 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.
39. 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.
40. 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.
41. PW-9 (CW-14) Smt. Leelavathi has stated that
she has been working as an Assistant Teacher at Savitri
School, Mysuru. She is also a teacher for 9th 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.
42. 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.
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 cross-
examination from the accused side nothing could be
elicited that was favourable to the accused.
43. PW-12 (CW-11) Syed Tajuddin in his evidence
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,
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).
44. 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
approached their Court for justice.
45. PW-13 (CW-25) Keshavamurthy R. the then
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 CW-
26. The witness has identified the complaint at Ex.P.10.
46. 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.
47. 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.
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
to the accused, is further corroborated by evidence of PW-
3 - 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
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.
49. 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.
50. 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
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.
51. 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.
52. 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.
53. 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.
54. 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.
55. 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
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no power to punish the accused and report given by PW-
12 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.
56. The medical evidence regarding the alleged act
of accused practicing unnatural sex i.e., anal sex with PW-
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2 the victim boy, requires some consideration at this
stage.
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.
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.
57. 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.
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
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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.
58. 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 cross-
examination. 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.
59. The case sheet at Ex.P.9 also shows the same
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 medico-
legal case.
60. 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
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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61. 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
that he was subjected to forcible unnatural sex by the
accused again have no reason to disbelieve the same.
62. Our Hon'ble Apex Court in the case of
LAKSHMAN SINGH Vs. STATE OF BIHAR (NOW
JHARKHAND) and connected matters reported in (2021) 9
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
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".
63. 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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64. The final opinion by the hospital, which is at
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.
65. 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.
66. The Special Court also disbelieved the case of
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.
67. It is held by the Hon'ble Apex Court in the case
of STATE OF MADHYA PRADESH VS. RATAN SINGH AND
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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 duty-
bound 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.
68. 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.
69. 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.
70. 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
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
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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71. 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 PWs-
1, 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.
72. 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
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.
Accordingly, we proceed to pass the following:
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ORDER
i. The Criminal Appeal No.1836/2017 and Criminal Appeal No.1052/2017 stand allowed.
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; iii. The accused Mubhashir Sharif S/o.
Hafijulla Babu Sharif, Aged about 20 years, R/o. No.2145, 19th 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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Crl.A.No.1052/2017under Section 5(i) and 5(l) punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012. To hear on sentence, the matter is passed over.
Sd/-
JUDGE Sd/-
JUDGE BVK
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Crl.A.No.1052/2017Dr. HBPSJ & UMBAJ:
19.01.2024 HEARING ON SENTENCE
73. 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.
74. 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.
75. Per contra, learned HCGP in his submissions submitted that the proven guilt against the accused is a
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Crl.A.No.1052/2017heinous 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.
76. 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.
77. 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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78. 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.
ORDER ON SENTENCE
1. The accused/respondent No.1 Mubhashir Sharif S/o. Hafijulla Babu Sharif, Aged about 20 years, R/o. No.2145, 19th 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.
2. Since accused is sentenced for the offence 5(i) and 5(l) punishable under Section 6 of
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Crl.A.No.1052/2017POCSO Act, no separate sentence for the offence punishable under Section 377 of Indian Penal Code, 1860 is ordered.
3. 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;
4. The victim boy (PW-2) is also entitled for compensation under Section 357A of the Code of Criminal Procedure, 1973;
5. 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.1052/2017compensating 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.
6. The accused - Mubhashir Sharif S/o. Hafijulla Babu Sharif, Aged about 20 years, R/o. No.2145, 19th 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;
7. The accused is entitled for the benefit of set- off for the period, if any, undergone by him in Judicial Custody in the matter, under Section 428 of the Criminal Procedure Code, 1973;
8. A free copy of this judgment be furnished to the accused, immediately by the Registry.
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Crl.A.No.1052/2017Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE BVK