Bombay High Court
Shaikh Waseem S/O. Shaikh Fatte Ahmed vs The State Of Maharashtra And Anr on 25 September, 2018
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(Order) (1) Cri. Appln. No. 01462 of 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Application No. 01462 of 2018
(In Criminal Appeal No. 0377 of 2018)
District : Nanded
Shaikh Waseem
s/o. Shaikh Fatte Ahmed,
Age : 25 years,
Occupation : Meson, .. Applicant
R/o. Shemboli, (Original
Taluka Mudkhed, accused)
District Nanded.
versus
1. The State of Maharashtra,
Through Police Station,
Barad, Dist. Nanded.
.. Respondents.
2. "X"
(victim - original
complainant)
...........
Mr. Hamzakhan I. Pathan, Advocate, for the applicant.
Mr. K.D. Munde, Additional Public Prosecutor, for
respondent no.01.
Mr. Pradeep V. Ambade, Advocate, for respondent no.02.
...........
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving
the order : 24th July 2018.
Date of pronouncing
the order : 25th September 2018
(Order) (2) Cri. Appln. No. 01462 of 2018
ORDER :
01. Present application has been filed by the original accused for suspension of sentence and releasing him on bail.
02. The applicant has faced trial in Special (POCSO) Case No. 06 of 2017 before Additional Sessions Judge-1, Nanded, which came to be decided on 19.05.2018 and he has been convited for the offence punishable under Sections 376(2)(i), 506 of the Indian Penal Code and Sections 4, 5 of the Protection of Children from Sexual Offences Act, 2012 [For short, "POCSO Act"].
03. The prosecution story was that, the victim who was stated to be 16 years of age, had a love affair with the accused since four months prior to the report. It was alleged at about 08.30 p.m. on 21.06.2016, she was with her younger sister in the house. Her mother, father and brother were out of the house for work. Her younger sister aged 09 years was sleeping in the house. At that time, accused came, took her forcibly inside room by gagging her mouth and under the pretext that he would perform marriage with her, had committed sexual intercourse. Again after 08 days, accused had repeated the same act around 09.30 p.m. Accused had threatened her, not to disclose the incident to anybody, otherwise she would be killed and, therefore, she had not disclosed it to anybody.
(Order) (3) Cri. Appln. No. 01462 of 2018 Thereafter, when she became pregnant, she had disclosed the same to her parents and then lodged the report. The victim was medically examined. During the course of investigation, she had delivered a male child. After completion of the investigation, charge- sheet was filed.
04. After conclusion of the trial, accused has been held guilty and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 2,000/-, in default of payment of fine rigorous imprisonment for six months, for the offence punishable under Section 376(2)(i) of the IPC. He has been further sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default of payment of fine, rigorous imprisonment for two months, for the offence punishable under Section 506 of the IPC. He has been further sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 2,000/-, in default of payment of fine, rigorous imprisonment for six month, for offence punishable under Section 4 of the POCSO Act. Further, he has been sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 2,000/-, in default of payment of fine, rigorous imprisonment for four months, for offence punishable under Section 5 of the POCSO Act. Out of the fine amount, amount of Rs. 5,000/- is directed to be paid to the victim by way of compensation.
(Order) (4) Cri. Appln. No. 01462 of 2018
05. The applicant - appellant has challenged the said conviction in appeal which has been admitted by this Court on 25.06.2018.
06. The applicant contends that his appeal will take time for adjudication. He contends that the victim had not stated her date of birth in the complaint, but for the first time, it was told before the court on the basis of school record. The prosecution has not examined the parents of the4 victim in order to ascertain her age. A teacher from Zilla Parishad Urdu School, Shemboli, has been examined, but he was not the person who had admitted the victim to the school. There was no birth certificate shown to the competent authority at the time of taking admission. In absence of birth certificate, the learned trial court ought not to have believed the age told by the victim. The prosecution has also not undertaken any procedure to determine the age of the victim, such as, ossification test. The medical examination would show that the victim had no injury to her private part and it was opined that there was consistent sexual intercourse by the victim, which is contrary to the statement of victim herself, who says that it was only for two times. PW 04 Dr. Yogini Karlekar had made delivery of the victim and she has deposed that the age of the patient was told as 19 years at the time of admission as well as at the time of discharge. The learned trial court has only relied on the school record in order to hold her as (Order) (5) Cri. Appln. No. 01462 of 2018 minor. He was on bail throughout the trial and has not misused the liberty. He is hopeful for the success in the appeal and, therefore, he has prayed for suspending the substantive sentence and releasing him on bail.
07. Heard learned Advocate Mr. H.I. Pathan for the applicant. Heard learned Additional Public Prosecutor Mr. K.D. Munde for respondent no.01. So also, heard learned Advocate Mr. P.V. Ambade for respondent no.02.
08. Apart from the points taken in application, learned Advocate appearing for the applicant has relied on the decision of this Court at Nagpur Bench, in the case of Gurudas s/o. Bandu Pendor Vs. State of Maharashtra [2015 ALL MR (Cri) 4494], wherein it was held that, "the entry in admission form, the school records and transfer certificates are not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country. Such entries are not relevant under Section 35 of the Evidence Act for the purpose of determination of age." Similar view was taken by this Court at principal seat, in the case of Mohd. Sharif s/o. Latifur Rehman Shaikh @ Bilal Vs. State of Maharashtra [2016(3) Mah.L.J.(Cri) 313] and in the case of Sandeep Janaji Konde Vs. State of Maharashtra [2016(3) Mah.L.J.(Cri) 766].
09. The respondents have relied on the reasons (Order) (6) Cri. Appln. No. 01462 of 2018 given by the learned trial court while convicting the applicant.
10. It will not be out of place to mention here that, the appeal filed by the applicant is admitted and it is waiting for its turn. The applicant was on bail throughout the trial and no instance of misuse of liberty granted to him is reported. These are the points which are in favour of the applicant. As regards evidence on record is concerned, it appears that the learned trial court has relied on the school record of the victim in order to hold her as minor. That is definitely in question which has to be adjudicated by this Court and at that time, the ratio laid down in the above said authorities would be taken note of. It appears that there was a love affair between the informant - victim and the accused. It is also not in question, that during the pendency of the investigation, she has delivered a child. Therefore, the fact of sexual intercourse is definitely on record. The only thing is that, whether it was with consent, taking into consideration the defence that she was major, will have to be decided. Therefore, a case is made out that, till the appeal is heard, the applicant should be released on bail since he has not misused the liberty granted to him earlier.
11. Hence, the following order :-
(a) The application is hereby allowed.
(Order) (7) Cri. Appln. No. 01462 of 2018
(b) The substantive sentence passed in Special (POCSO) Case No. 06 of 2017, by the Additional Sessions Judge-
1, Nanded, on 19.05.2018, against the applicant - appellant, is hereby suspended till the hearing and final disposal of Criminal Appeal No. 377 of 2018.
(c) The applicant - appellant be released on bail on his executing P.R. of Rs. 30,000/- [Rupees thirty thousand] with two sureties of Rs. 15,000/- [Rupees fifteen thousand] each, during the above said period. Bail be furnished before the trial court.
(d) The applicant - appellant shall not act, in any manner, which would be detrimental to the interest of the prosecution witnesses.
12. Record & proceedings be sent back to the trial court for preparation of paper-book.
( Smt. Vibha Kankanwadi ) JUDGE ...........
puranik / resCRIAPPLN1462.18
Digitally
signed by
Bhagwan
Bhagwan Govindrao
Govindrao Puranik
Puranik Date:
2018.09.25
14:36:43
+0530