Gousoddin Khajasab Shaikh vs The State Of Maharashtra & Anr.

Convict for offence under Section 6 read with Section 18 of the Protection of Children from Sexual Offences Act [POCSO Act] challenges the judgment and order dated 13.09.2024 passed by learned Special Judge, Ahmedpur in Special Case (POCSO) No.7 of 2023.

Accused was charge-sheeted and tried on indictment for offence under Sections 376(2)(f), 376(AB) of Indian Penal Code [IPC] and under Section 4, 6 of the POCSO Act. That, accused committed penetrative sexual assault on his own daughter aged 08 years on 08.04.2023. After investigation, charge was framed and explained to accused, after which trial was undertaken vide above special case. At trial, prosecution adduced evidence of as many as six witnesses including informant mother, victim herself P.W.2 and two medical experts. On appreciation of oral and documentary evidence adduced by prosecution, learned Trial Court accepted the case of prosecution, but only for charge under Section 6 read with Section 18 of the POCSO Act and convicted the accused.

Feeling aggrieved by the judgment and order of conviction, appellant/convict has preferred instant appeal.

Learned Counsel appointed for appellant would submit that there is false implication. According to him, taking disadvantage of bitter relations between father and mother, mother i.e. wife of appellant has levelled false allegations by filing false report. According to him, there is no legally acceptable evidence about occurrence. He pointed out that it was not possible to commit such an act under a blanket and, moreover, no one had an occasion to see the act, including the informant, as she was admittedly out of the house. He further submitted that there is no corroboration from the medical evidence, as there are no signs of violence. He further submitted that the Trial Court has directly accepted the testimonies of the informant and the victim and, moreover, the grandmother, who was also stated to be present in the house, as well as the younger sister of the victim, have not been examined by the prosecution for the reasons best known to it. According to him, there is incorrect appreciation of evidence. There is non consideration of settled law by the Trial Court. For such counts and on such grounds, there is challenge to the judgment and order of conviction.

Learned APP as well as learned Counsel for informant both strongly opposed the appeal by supporting the judgment and order of Trial Court on the ground that false plea of bitter relations between husband and wife is put forth. They both submitted that no mother would falsely implicate her own husband for ravishing their child for no reason. It is pointed out that the informant’s evidence finds support from the evidence of P.W.4. The victim’s testimony is consistent both before the Court as well as before the learned Judicial Magistrate First Class while recording her statement. Therefore, both of them, while canvassing in favour of the impugned judgment and order, urged that the appeal be dismissed for want of merits.

P.W.1 is the informant, who is mother of victim and she deposed at Exhibit-17 that her victim daughter is 8 years of age. Around 10.30 a.m. on 08.04.2023 she went out of the house for washing clothes and she returned back after drying the clothes. That time, she noticed her husband as well as daughter sleeping on a cot by using pull over. She deposed that she tried to pull her daughter outside and at that time, when she removed the pull over, she noticed her husband to be in naked condition and her daughter's frock also being pulled over. Seeing her mother, victim daughter started crying. Informant mother claims that her daughter narrated the act of accused kissing her, pressing her breast and trying to insert his male organ in her private part and, therefore, she called her brother and thereafter, they both approached police and she lodged report Exhibit-18.

Relevant cross-examination is in paragraph No.4 wherein she has stated that in her statement to police there was no reference of the word cot. She answers that her victim daughter did not attend school and that, such incident had not taken place previously. She admitted that her husband was suffering from Asthma. Rest is all denial.

P.W.2 is the victim. Her preliminary assessment has been done by trial Court by putting questions to assess her capacity to depose. She has narrated the occurrence about her father calling her, pulling her towards it, making her sleep with him beneath a pull over, kissing her, removing her clothes as well as his own clothes and trying to attempt force on her and at such time her mother arriving.

In the cross-examination of the victim witness, there are questions regarding the alleged ailment of the accused. She admitted that there used to be quarrels between her father and mother and that her father used to consume liquor, but she stated that, hence, she did not like him. She admitted that her grandmother was also present in the house. She further admitted that there was no bleeding from her private part. She flatly denied that no such occurrence had taken place.

P.W.3 is the medical expert, who examined accused.

P.W.4 is the medical expert, who examined victim and at Exhibit-26 he deposed about victim being referred to the hospital for examination and on 09.04.2025 victim and her mother narrated history alleging commission of rape by the father of victim. Doctor examined her and did not find signs of violence. However, on examination of genital parts, he found hymen perineum ruptured, redness tenderness present and there was slight bleeding. He identified report Exhibit-27.

During cross-examination, he admitted that there was no separate MLC register and that the signature of the person who brought the victim had not been obtained. He further stated that victim narrated that the incident had happened two to three times to a question, when there was sexual assault done multiple times at interval, there would be no signs of bleeding or tenderness ? To which, expert has answered that sexual assault was made by force and if age of the victim is young, so there would be slight bleeding and tenderness. He denied that there was no bleeding to the vagina. In paragraph No.7, he has denied that hymen may be ruptured by cycling or playing other sports, but admitted that there would be redness to the Libia Minora due to allergic conditions. Rest is all denial.

P.W.5 is the panch and P.W.6 is the investigating officer.

There being provisions of the POCSO Act, at the outset, it is required to be seen whether the prosecution has established that the victim was below 18 years of age on the date of the occurrence. Before the Trial Court, the birth certificate issued by the Gram Panchayat is at Exhibit-41, which reflects the date of birth of the victim as 25.06.2015. A birth certificate issued by the local body qualifies for consideration for determining the age, and this position is well settled in law. Therefore, there is conclusive evidence on the point of victim to be minor i.e. going by the date of birth of the victim as 25.06.2015 and occurrence to be taken place on 08.04.2023. Resultantly, victim being minor, provisions under POCSO Act do gravitated.

Papers show that Trial Court framed charge for commission of offence under Section 376(2)(f) read with Section 376(AB) of IPC and under Sections 4, 6 of the POCSO Act. The Trial Court convicted the appellant for offences punishable under Section 6 read with Section 18 of the POCSO Act. It would be appropriate to reproduce the said provisions hereinbelow:

In the light of nature of charge and accusations, evidence of informant, very victim and medical experts, assume importance and, therefore, same is required to be visited for reappreciation and reanalysis. Substance of the evidence of informant mother is already dealt with in aforesaid paragraph No.5. Informant Mother has claimed that her daughter was 8 years of age and on 08.04.2023 when she went out of the house for washing and drying clothes and returned at around 10.30 a.m. she noticed her minor daughter sleeping with her husband beneath a pull over. She claims to have removed the pull over and had seen her own husband in naked condition and even garments of her daughter to be removed and thereafter, her daughter narrated the incident with her about she telling her that accused kissed her, pressed her breast and attempted to force himself on his own daughter. Immediately, thereafter, informant has called her brother and, thereafter, approached police. From the cross-examination of informant mother nothing damaging to the prosecution has been brought, except omission which is not material. Therefore, testimony of informant has stood with cross examination without flinching.

P.W.2-victim, who is examined at Exhibit-20, has also narrated the occurrence in her examination-in-chief. The details of the acts committed by her own father upon her till the arrival of her mother have been stated by the victim in the witness box. Even nothing damaging to the prosecution has been brought on record in her cross-examination. The statement of the victim was also recorded under Section 164 of the Code of Criminal Procedure, which is apparently consistent with her testimony.

Thus, evidence of victim has remained unshaken and find support from evidence of her mother P.W.1.

Prosecution has adduced the evidence of doctor at Exhibit-26, who has examined the victim. This expert has stated that he did not found any signs of violence on the person of victim, but on examination of genital parts, he found hymen perineum ruptured and redness with tenderness present and, therefore, he opined that the act suggested sexual assault on the victim. Though there is sufficient cross-examination of medical expert and attempt is made to test the knowledge of the medical expert, nothing adverse has been brought so as to disbelieve his testimony. Chemical Analyzer’s (CA) report would show that cloth of victim Exhibit-5 is detected with human blood and more particularly, blood group “B”, which is of the victim. Therefore, there is also support from scientific evidence.

Here is an unfortunate case, where a father has attempted to commit penetrative sexual assault on his minor daughter. The defence of false implication on account of bitter relations between husband and wife has no force and no foundation. In spite of being biological father, he has indulged in above acts. Therefore, evidence of P.W.1 informant and P.W.2 victim being consistent, learned Trial Court committed no error whatsoever in recording the guilt for offence under Section 6 read with Section 18 of the POCSO Act. No case is made out to interfere. Hence, I proceed to pass the following order :-

. Criminal Appeal stands rejected.