Full Judgment Text
1 apeal936.14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 936 OF 2014
Imran Shamim Khan.
Age :22 years, Occ. Nil,
R/o : Plot No. 44/A/7, Road No. 4.
Shivajinagar, Govandi,
Mumbai 400 043. ..Appellant.
V/s.
State of Maharashtra.
(At the instance of Shivajinagar
Police Station, vide C.R. No. 215 of 2013) ..Respondent.
Ms. Nasareen Ayubi, advocate for appellant.
Mr. S.S. Pednekar, APP for State.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : JANUARY 22, 2019.
JUDGMENT :
1 The appellant herein is convicted for the offence punishable
under section 6 of the Protection of Children from Sexual Offences Act,
2012 and is sentenced to suffer R.I. for 10 years and to pay fine of Rs.
2000/- in default to suffer S.I. for 15 days. The appellant is also
convicted for the offence punishable under section 506(II) of the Indian
Penal Code and is sentenced to suffer R.I. for 1 year and to pay fine of
Rs. 500/- I.d. to suffer further S.I. for 7 days by the Special Judge under
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POCSO Act, Gr. Bombay passed in Sessions Case No. 923 of 2013 vide
Judgment and Order dated 27/11/2014. Hence, this appeal.
2 Such of the facts necessary for the decision of this appeal are
as follows :
(i) It is the case of the prosecution that on 20/7/2013 one Mrs.
Meena Fernandes lodged a complaint at the police station alleging
rd
therein that her grand-daughter i.e. victim studying in 3 standard was
residing with her and attending school.
(ii) On 19/7/2013 her mother had been to take the victim to her
house, but the victim refused. Upon query made by the first informant,
she disclosed that 8 days prior, she was sexually assaulted by Imran who
was residing near the house of her paternal grand-mother. On the basis
of this report, Crime No. 215 of 2013 was registered.
(iii) The statement of the victim was recorded by lady police
officer. Her statement was also recorded under section 164 of the Code
of Criminal Procedure, 1973.
(iv) After completion of investigation, charge-sheet is filed. The
case is committed to Special Court. The case was registered as Sessions
Case No. 923 of 2013. The prosecution examined 5 witnesses to bring
home the guilt of the accused.
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3 Implicit reliance can be placed on the substantive evidence of
the victim. At the time recording of evidence, the victim was 9 years old.
She expressed her inability to give her date of birth, but has stated that
she is 9 years old. She has deposed before the Court that initially, she
was residing with her mother and every Sunday she used to visit her
maternal grand-mother. That Imran was residing as neighbour of
paternal grand-mother. It was a big family. She has uncle to whom she
refers as Mamu and Chacha also. She has stated that she does not
recollect as to whether, she knows Imran, neither name of her uncle nor
the fact that she was taken to hospital. The witness was declared hostile.
She was questioned by the Court. However, she gave evasive answers.
She has resiled from her earlier statement. In answer to the last
question she has stated that she wants to study and lead a good life.
4 P.W.2 Meena Fernandes has also turned hostile.
5 It is pertinent to note that the certificate Exh. 23 pertains to
the medical examination of the victim. It indicates that the hymen was
ruptured. The history was given to the doctor by the victim and her
grand-mother. The remarks of the medical officer are as follows :
“Victim gives alleged history of sexual assault 8 days back by
known person living in same house. Patient gives alleged
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history of sexual assault again two days later.”
6 Perused the statement of the victim and her grand-mother
recorded under section 164 of the Code of Criminal Procedure, 1973. In
the said statement, the victim has categorically narrated the sexual
assault upon her committed by the present appellant. He used to
threaten her of dire consequences. That she had disclosed to her
mother, however, her mother thought that she is referring to some
game and therefore, did not pay attention to it. In June her grand-
mother had taken her to her house and admitted her in a different
school and therefore, she felt that she could disclose her trauma to her
grand-mother and after the said disclosure, her grand-mother had taken
her to the police station. Statement under section 164 of the Code of
Criminal Procedure, 1973 was recorded in the presence of the grand-
mother i.e. P.W.2, as is seen from the statement. It therefore appears
that the victim was pressurised to turn hostile at the time of trial and
resile from her earlier statement. It is a pathetic situation that although
the victim had disclosed to her mother about the heinous act
committed by the appellant by subjecting her to sexual abuse, mother
had not taken her statement seriously.
7 It is unfortunate that she had reposed faith in her grand-
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mother and therefore, without fear she could give her statement under
section 164 of the Code of Criminal Procedure, 1973, but at the time of
trial, at the behest of her grand-mother and her mother she had turned
hostile. It is in these circumstances that the learned Counsel appointed
for the appellant has urged that the appellant be acquitted of all the
charges.
8 The said submission cannot be taken into consideration as the
offence is not just against the individual child but is against the society.
In POCSO Act, there is rising trend of the victim turning hostile. It is
apparent that before the trial, elder members of the family are won over
by the accused and hence, minors would turn hostile. It appears that
the accused happens to be close relative and therefore, the family
members wanted to suppress the said act. The Hon'ble Apex Court in
the case of Bhagwan Dass v/s. State (NCT) of Delhi reported in AIR
2011 SC 1863 has observed as follows :
“her subsequent denial in the Court is not believable because
she obviously had afterthoughts and wanted to save the
accused from punishment.”
9 There is ample evidence to indicate that the victim had rather
been sexually assaulted. Most of the times, it is the close relative or
close acquaintance who would sexually abuse a child and subsequently,
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the child is forced to become hostile. Section 29 of the Protection of
Children from Sexual Offences Act, 2012 reads as under :
“29. Presumption as to certain offences.- Where a person is
prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7, and section 9 of
this Act, the Special Court shall presume, that such person has
committed or abetted or attempted to commit the offence, as
the case may be unless the contrary is proved.”
10 Hence, although the victim has turned hostile, onus of proving
the innocence would shift on the accused. In answer to all questions, the
victim has not stated that the incident is not occurred but has stated that
she does not remember. Hence, it would be an evasive answer. She has
not denied that it was the appellant who had sexually assaulted her. The
learned Special Judge has rightly appreciated the intention of the
legislature in introducing the protection of Children from Sexual
Offences Act in the year 2012 and has observed as follows :
“The P.O.C.S.O. Act is enacted with specific object, “The law
should operate in a manner that the best interest and well
being of the child are regarded as being of paramount
importance at every stage, to ensure the healthy, physical,
emotional, intellectual and social development of the child.”
Under this Act the provisions are made to bring such
instances of sexual assault on the child in the light by
protecting the victim. The object is also that the person of
culpable state of mind should be punished for harassing the
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child by bringing instances in the light and keep the society
child friendly.”
11 The learned Counsel for the appellant submits that the
evidence of the grand mother is hearsay evidence and therefore cannot
be believed. The submission would hold no ground as the victim had
disclosed to her grand-mother of horrendous fact, which she had gone
through and therefore, P.W. 2 had at that moment, in a state of shock,
decided to set the law in motion and see that justice is done to the victim
and the accused is punished for the horrendous crime which he had
committed. However, the witness resiled at the time of trial because of
threat or to save family or won over emotionally by the mother of the
victim and the accused. The very fact that the victim had initially
disclosed to her mother who had taken it very lightly and then informed
her grand-mother about the same only after she was outside the purview
of her mother and the accused. At that moment, there was no reason
for a child to falsely implicate the accused, much less any body for that
matter. This was the first hand information received by the grand-
mother which constrained her to set law in motion. It is in these
circumstances that hearsay evidence would fall under the exception. It
would not necessarily preclude the evidence as to a statement having
been made upon which certain action was taken or certain results
followed. In the present case, the registration of crime, recording of
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statement under section 164 of the Code of Criminal Procedure, 1973 of
the victim in the presence of the grand mother and the allegations
levelled by the victim being corroborated by medical evidence, leading to
filing of charge-sheet is the result which followed promptness of the
action taken by the grand-mother.
12 The nature of answers given by the victim at the time of cross-
examination needs to be taken into consideration for taking judicial
approach. The answers are not in denial. She chooses to forget the
incident as she was coerced by her relatives and the accused and she
was pained by the fact that she has to forget the incident to protect the
accused. And therefore, the answers to all the questions are that she
does not recollect. It is for the Court to decide as to whether she does
not really recollect or she is being forced to forget.
13 In the case of Kashmira Singh v/s. State of Madhya
Pradesh, reported in AIR 1952 SC 159 , the Apex Court has held that -
“The proper way to approach a case of this kind is, first, to
marshal the evidence against the accused excluding the
confession altogether from consideration and see whether,
if it is believed, a conviction could safely be based on it. If it
is capable of belief independently of the confession, then it is
not necessary to call the confession in aid. But cases may
arise where the judge is not prepared to act on the other
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evidence as it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event the judge
may call in aid the confession and use it to lend assurance to
the other evidence and thus fortify him-self in believing what
without the aid of the confession he would not be prepared
to accept.”
14 Similarly in the case of Ashok Kumar Raut & anr. v/s. State
of Bihar reported 2006 Cr. L.J. 3362 , it is held that where a witness
turning hostile before the court, his previous statement made before the
Magistrate at the earliest opportunity under Section 164 Cr.P.C. must get
some credence if it is being corroborated on material points by other
evidence.
15 In the present case, the prosecution has examined the
Magistrate who recorded the statement of the victim under section 164
of the Code of Criminal Procedure, 1973 and has proved the contents of
the document recorded under section 164 of the Code of Criminal
Procedure, 1973. It is very easy to say that the prosecution has failed to
prove the guilt of the accused. However, in a case like the present one,
the judicial approach necessarily has to see that justice is imparted to
victim as well. This Court is therefore, of the opinion that there would be
no impediment in upholding the Judgment of the trial Court and
maintaining the conviction recorded by the trial court.
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16 In the above mentioned circumstances, no interference in the
findings recorded in Judgment of the learned Special Court is warranted.
Hence, the Appeal stands dismissed.
17 The learned counsel appointed for the Appellant has put in
the best of her efforts to espouse the cause of the Appellant, hence,
she is entitled for her professional fees as per Rules, to be paid by High
Court Legal Aid Committee.
[SMT. SADHANA S. JADHAV, J.]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 936 OF 2014
Imran Shamim Khan.
Age :22 years, Occ. Nil,
R/o : Plot No. 44/A/7, Road No. 4.
Shivajinagar, Govandi,
Mumbai 400 043. ..Appellant.
V/s.
State of Maharashtra.
(At the instance of Shivajinagar
Police Station, vide C.R. No. 215 of 2013) ..Respondent.
Ms. Nasareen Ayubi, advocate for appellant.
Mr. S.S. Pednekar, APP for State.
CORAM : SMT. SADHANA S. JADHAV,J.
DATE : JANUARY 22, 2019.
JUDGMENT :
1 The appellant herein is convicted for the offence punishable
under section 6 of the Protection of Children from Sexual Offences Act,
2012 and is sentenced to suffer R.I. for 10 years and to pay fine of Rs.
2000/- in default to suffer S.I. for 15 days. The appellant is also
convicted for the offence punishable under section 506(II) of the Indian
Penal Code and is sentenced to suffer R.I. for 1 year and to pay fine of
Rs. 500/- I.d. to suffer further S.I. for 7 days by the Special Judge under
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POCSO Act, Gr. Bombay passed in Sessions Case No. 923 of 2013 vide
Judgment and Order dated 27/11/2014. Hence, this appeal.
2 Such of the facts necessary for the decision of this appeal are
as follows :
(i) It is the case of the prosecution that on 20/7/2013 one Mrs.
Meena Fernandes lodged a complaint at the police station alleging
rd
therein that her grand-daughter i.e. victim studying in 3 standard was
residing with her and attending school.
(ii) On 19/7/2013 her mother had been to take the victim to her
house, but the victim refused. Upon query made by the first informant,
she disclosed that 8 days prior, she was sexually assaulted by Imran who
was residing near the house of her paternal grand-mother. On the basis
of this report, Crime No. 215 of 2013 was registered.
(iii) The statement of the victim was recorded by lady police
officer. Her statement was also recorded under section 164 of the Code
of Criminal Procedure, 1973.
(iv) After completion of investigation, charge-sheet is filed. The
case is committed to Special Court. The case was registered as Sessions
Case No. 923 of 2013. The prosecution examined 5 witnesses to bring
home the guilt of the accused.
Talwalkar
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3 Implicit reliance can be placed on the substantive evidence of
the victim. At the time recording of evidence, the victim was 9 years old.
She expressed her inability to give her date of birth, but has stated that
she is 9 years old. She has deposed before the Court that initially, she
was residing with her mother and every Sunday she used to visit her
maternal grand-mother. That Imran was residing as neighbour of
paternal grand-mother. It was a big family. She has uncle to whom she
refers as Mamu and Chacha also. She has stated that she does not
recollect as to whether, she knows Imran, neither name of her uncle nor
the fact that she was taken to hospital. The witness was declared hostile.
She was questioned by the Court. However, she gave evasive answers.
She has resiled from her earlier statement. In answer to the last
question she has stated that she wants to study and lead a good life.
4 P.W.2 Meena Fernandes has also turned hostile.
5 It is pertinent to note that the certificate Exh. 23 pertains to
the medical examination of the victim. It indicates that the hymen was
ruptured. The history was given to the doctor by the victim and her
grand-mother. The remarks of the medical officer are as follows :
“Victim gives alleged history of sexual assault 8 days back by
known person living in same house. Patient gives alleged
Talwalkar
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history of sexual assault again two days later.”
6 Perused the statement of the victim and her grand-mother
recorded under section 164 of the Code of Criminal Procedure, 1973. In
the said statement, the victim has categorically narrated the sexual
assault upon her committed by the present appellant. He used to
threaten her of dire consequences. That she had disclosed to her
mother, however, her mother thought that she is referring to some
game and therefore, did not pay attention to it. In June her grand-
mother had taken her to her house and admitted her in a different
school and therefore, she felt that she could disclose her trauma to her
grand-mother and after the said disclosure, her grand-mother had taken
her to the police station. Statement under section 164 of the Code of
Criminal Procedure, 1973 was recorded in the presence of the grand-
mother i.e. P.W.2, as is seen from the statement. It therefore appears
that the victim was pressurised to turn hostile at the time of trial and
resile from her earlier statement. It is a pathetic situation that although
the victim had disclosed to her mother about the heinous act
committed by the appellant by subjecting her to sexual abuse, mother
had not taken her statement seriously.
7 It is unfortunate that she had reposed faith in her grand-
Talwalkar
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5 apeal936.14.doc
mother and therefore, without fear she could give her statement under
section 164 of the Code of Criminal Procedure, 1973, but at the time of
trial, at the behest of her grand-mother and her mother she had turned
hostile. It is in these circumstances that the learned Counsel appointed
for the appellant has urged that the appellant be acquitted of all the
charges.
8 The said submission cannot be taken into consideration as the
offence is not just against the individual child but is against the society.
In POCSO Act, there is rising trend of the victim turning hostile. It is
apparent that before the trial, elder members of the family are won over
by the accused and hence, minors would turn hostile. It appears that
the accused happens to be close relative and therefore, the family
members wanted to suppress the said act. The Hon'ble Apex Court in
the case of Bhagwan Dass v/s. State (NCT) of Delhi reported in AIR
2011 SC 1863 has observed as follows :
“her subsequent denial in the Court is not believable because
she obviously had afterthoughts and wanted to save the
accused from punishment.”
9 There is ample evidence to indicate that the victim had rather
been sexually assaulted. Most of the times, it is the close relative or
close acquaintance who would sexually abuse a child and subsequently,
Talwalkar
::: Uploaded on - 16/02/2019 ::: Downloaded on - 01/04/2024 16:43:05 :::
6 apeal936.14.doc
the child is forced to become hostile. Section 29 of the Protection of
Children from Sexual Offences Act, 2012 reads as under :
“29. Presumption as to certain offences.- Where a person is
prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7, and section 9 of
this Act, the Special Court shall presume, that such person has
committed or abetted or attempted to commit the offence, as
the case may be unless the contrary is proved.”
10 Hence, although the victim has turned hostile, onus of proving
the innocence would shift on the accused. In answer to all questions, the
victim has not stated that the incident is not occurred but has stated that
she does not remember. Hence, it would be an evasive answer. She has
not denied that it was the appellant who had sexually assaulted her. The
learned Special Judge has rightly appreciated the intention of the
legislature in introducing the protection of Children from Sexual
Offences Act in the year 2012 and has observed as follows :
“The P.O.C.S.O. Act is enacted with specific object, “The law
should operate in a manner that the best interest and well
being of the child are regarded as being of paramount
importance at every stage, to ensure the healthy, physical,
emotional, intellectual and social development of the child.”
Under this Act the provisions are made to bring such
instances of sexual assault on the child in the light by
protecting the victim. The object is also that the person of
culpable state of mind should be punished for harassing the
Talwalkar
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child by bringing instances in the light and keep the society
child friendly.”
11 The learned Counsel for the appellant submits that the
evidence of the grand mother is hearsay evidence and therefore cannot
be believed. The submission would hold no ground as the victim had
disclosed to her grand-mother of horrendous fact, which she had gone
through and therefore, P.W. 2 had at that moment, in a state of shock,
decided to set the law in motion and see that justice is done to the victim
and the accused is punished for the horrendous crime which he had
committed. However, the witness resiled at the time of trial because of
threat or to save family or won over emotionally by the mother of the
victim and the accused. The very fact that the victim had initially
disclosed to her mother who had taken it very lightly and then informed
her grand-mother about the same only after she was outside the purview
of her mother and the accused. At that moment, there was no reason
for a child to falsely implicate the accused, much less any body for that
matter. This was the first hand information received by the grand-
mother which constrained her to set law in motion. It is in these
circumstances that hearsay evidence would fall under the exception. It
would not necessarily preclude the evidence as to a statement having
been made upon which certain action was taken or certain results
followed. In the present case, the registration of crime, recording of
Talwalkar
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8 apeal936.14.doc
statement under section 164 of the Code of Criminal Procedure, 1973 of
the victim in the presence of the grand mother and the allegations
levelled by the victim being corroborated by medical evidence, leading to
filing of charge-sheet is the result which followed promptness of the
action taken by the grand-mother.
12 The nature of answers given by the victim at the time of cross-
examination needs to be taken into consideration for taking judicial
approach. The answers are not in denial. She chooses to forget the
incident as she was coerced by her relatives and the accused and she
was pained by the fact that she has to forget the incident to protect the
accused. And therefore, the answers to all the questions are that she
does not recollect. It is for the Court to decide as to whether she does
not really recollect or she is being forced to forget.
13 In the case of Kashmira Singh v/s. State of Madhya
Pradesh, reported in AIR 1952 SC 159 , the Apex Court has held that -
“The proper way to approach a case of this kind is, first, to
marshal the evidence against the accused excluding the
confession altogether from consideration and see whether,
if it is believed, a conviction could safely be based on it. If it
is capable of belief independently of the confession, then it is
not necessary to call the confession in aid. But cases may
arise where the judge is not prepared to act on the other
Talwalkar
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9 apeal936.14.doc
evidence as it stands even though, if believed, it would be
sufficient to sustain a conviction. In such an event the judge
may call in aid the confession and use it to lend assurance to
the other evidence and thus fortify him-self in believing what
without the aid of the confession he would not be prepared
to accept.”
14 Similarly in the case of Ashok Kumar Raut & anr. v/s. State
of Bihar reported 2006 Cr. L.J. 3362 , it is held that where a witness
turning hostile before the court, his previous statement made before the
Magistrate at the earliest opportunity under Section 164 Cr.P.C. must get
some credence if it is being corroborated on material points by other
evidence.
15 In the present case, the prosecution has examined the
Magistrate who recorded the statement of the victim under section 164
of the Code of Criminal Procedure, 1973 and has proved the contents of
the document recorded under section 164 of the Code of Criminal
Procedure, 1973. It is very easy to say that the prosecution has failed to
prove the guilt of the accused. However, in a case like the present one,
the judicial approach necessarily has to see that justice is imparted to
victim as well. This Court is therefore, of the opinion that there would be
no impediment in upholding the Judgment of the trial Court and
maintaining the conviction recorded by the trial court.
Talwalkar
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16 In the above mentioned circumstances, no interference in the
findings recorded in Judgment of the learned Special Court is warranted.
Hence, the Appeal stands dismissed.
17 The learned counsel appointed for the Appellant has put in
the best of her efforts to espouse the cause of the Appellant, hence,
she is entitled for her professional fees as per Rules, to be paid by High
Court Legal Aid Committee.
[SMT. SADHANA S. JADHAV, J.]
Talwalkar
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