Saddam Rahim Shaikh vs The State Of Maharashtra & Anr.

This Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) is directed against the Judgment and Order dated 01/06/2023, passed by the Special Judge, Taluka Ambajogai, District Beed (hereinafter referred to as ‘the learned Trial Court’), in Special (POCSO) Case No.23/2018, convicting the Appellant for the offence punishable under Sections 376 - AB (2) (f) (j) (k) of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentencing him to suffer Rigorous Imprisonment for twenty (20) years and fine of Rs.10,000/-, in default to pay the fine, to suffer further Rigorous Imprisonment for a period of six (06) months.

The Prosecution’s case, in brief, is that, the Appellant is the uncle of the Victim / Child. On 27/08/2018, the Appellant raped the Victim, when she had come to his house in the afternoon. The Victim went crying to her mother and narrated the incident. The Victim was taken to the Doctor. On 01/09/2018, the Victim’s mother lodged the report with the Parli City Police Station, District Beed and Crime bearing No.147/2018 came to be registered against the Appellant for the offence punishable under Section 376-A and 376-B of IPC and for the offence punishable under Sections 5(n) and 6 of the of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’). The investigation was done. The Appellant came to be arrested. The clothes of the Victim and that of the Appellant came to be seized. The statements of the Victim and the witnesses were recorded. The seized Articles were referred to the Chemical Analyzer. On completion of the Investigation, the Appellant came to be charge-sheeted.

It is submitted by the learned Advocate for the Appellant that, the evidence of the Victim and that of her mother was material improvement from their previous statements. The place of incident, according to the Victim and her mother, was the matrimonial house of the Victim’s mother, which was occupied by other members of the family, and therefore, it was highly improbable that, the offence of rape would be committed by the Appellant on the Child in the house. It is the specific defence of the Appellant that, the Victim’s mother wanted the partition in the house property, which was opposed by the Appellant, and therefore, he was falsely implicated. The medical evidence though indicate injury on the private part of the Victim, the evidence on record show that, the said injury was due to scratching by the Victim. The Investigating Officer did not record the statement of the other family members of the Appellant. There is no corroboration to the evidence of the Victim. The learned Trial Court did not take into consideration many vital aspects and convicted the Appellant without there being sufficient evidence to prove the Charge. The Appeal be allowed.

It is submitted by the learned APP that, the Victim deposed of the act done by the Appellant on her and the Victim’s mother corroborate her testimony. The defence of alibi is not proved by the Appellant by leading the evidence. The delay in lodging the report with the Police is explained by the Informant, as she was asked by her husband not to report the incident to the Police, as it would result in disrepute to their family. The medical evidence supports the Victim’s testimony. On the basis of evidence available on record, the learned Trial Court has rightly convicted the Appellant and the Appeal be dismissed.

It is submitted by the learned Advocate for Respondent No.2 – Victim that, the age of Victim was proved, the delay in lodging the report was explained and the defence is falsified. The learned Trial Court properly appreciated the evidence on record and passed the impugned Judgment and Order and the Appeal be dismissed.

For the Charge under the provisions of the POCSO Act, it is necessary for the Prosecution to establish that, the Victim was a Child as defined under Section 2(d) of the POCSO Act. The evidence of PW – 1, who is admittedly mother of the Victim show that, the Victim was born on 12/02/2014. The PW – 1 is the biological mother of the Victim. The evidence of PW – 1 further show that, the copy of Birth Certificate showing the said date of birth of the Victim is brought on record at Exhibit – 17. The cross-examination done on behalf of the Appellant show that, the said date of birth of the Victim was not challenged and there is no challenge to the Prosecution’s case that, the Victim was the Child. Considering these aspects and the evidence available on record, the Prosecution proved that, the Victim was the Child at the relevant time.

The Victim is examined as PW – 2. Her age at the time of evidence is shown as 9 years. Her evidence show that, the Appellant was her paternal uncle. On the day of incident, except the Appellant, no one was present at house. At that time, the Appellant removed her clothes and also removed his clothes and inserted his penis in her vagina and committed rape. When she raised alarm due to pain, the Appellant gagged her mouth. Thereafter, she returned to the house of her maternal grand-mother, where her mother was present. She disclosed the incident to her mother and the grand-mother. Her mother and her maternal uncle took her to the Doctor. The Doctor advised them to go to the Police, and accordingly, they went to the Police Station. The Police made inquiry with her and referred her for medical examination. She identified the Appellant. The Victim was cross-examined by the Appellant. The cross-examination show that, her said evidence in respect of the Appellant committing rape on her by removing his clothes and her clothes in the house was an improvement from the previous statement recorded by the Police and by the learned Magistrate. The said improvements are proved by the defence in the evidence of PW – 6 – Investigating Officer, who recorded her statement. The said improvements / omissions goes to the root of the Prosecution’s case.

The evidence of PW – 1 is that, the Victim was her daughter. On 27/08/2018, the Victim went to her matrimonial house in the same town between 03:00 p.m. to 05:00 p.m. When the Victim returned home, she was crying and complaining of pain at her private part. She saw the private part and noticed bleeding and swelling on the Victim’s private part. On the next day, she took the Victim to the Doctor in the afternoon and the Doctor informed that, the Victim was subjected to sexual assault. When she inquired with the Victim, the Victim disclosed the incident of rape by the Appellant on her. The cross-examination of PW – 1 show that, her said evidence that, she found Victim scared, noticed swelling on the private part of the Victim, and the Victim informed her that, the Appellant raped her by inserting his penis into her vagina, that she narrated the incident to her family members, were omissions / improvements from her previous statement given to the Police and to the Magistrate. The said improvements / omissions are proved by the Appellant in the evidence of PW – 6 – Investigating Officer.

Admittedly, the Prosecution did not examine the Magistrate, who recorded the statements of the Victim and her mother, and therefore, the Appellant had no opportunity to prove the omissions / improvements in the statement under Section 164 of Cr.P.C.

The medical evidence in the nature of testimony of PW – 4, who was the Medical Officer attached to the Sub District Hospital, Parli, show that, the Victim was brought to the Hospital on 01/09/2018 with her guardian. The Victim gave the history that, the Appellant inserted something in her private parts and kissed her private parts and cheek. No external injuries were found at the time of general examination. On local examination of the Victim, he found abrasion on Labia Majora and contusion on Labia Minora and found Laceration on Fourtchette and Introitus and found Laceration Hymen at 10 and 7 ‘o’ clock position. He collected the samples of the Victim and found some injuries suggestive of sexual assault. The cross-examination show that, the Column No.15(a)(vii) of the Medico-legal Examination Report did not mention the name of narrator. Though the Medical Officer denied that, the injuries found on the Victim were possible due to scratch by nails, he volunteered that, the abrasion was possible due to scratching by nails and contusion was not possible by scratching of nail.

Coming back to the testimony of the Victim, it has come in her cross-examination that, in case of itching due to sweating, she rubbed with the help of nails. On the date of incident, she rubbed her private parts by nails and it was bleeding and at that time, she returned home crying as it was paining. This evidence of the Victim, coupled with the above-discussed evidence of the Medical Officer that, the abrasion was possible due to scratching, gives rise to two possibilities for the injury on the private part of the Victim. Even accepting the medical evidence as it is, the material omissions / improvements in the evidence of the Victim and that of her mother gives a big blow to the Prosecution. If the said omissions / improvements are removed from their evidence, nothing remains in their evidence to prove the Charge.

The defence of the Appellant is that, he was opposing the partition in the house, which the Victim’s mother wanted, and therefore, he was falsely implicated. The evidence of the Victim’s mother show that, there was no partition of their matrimonial home and she was residing on rent with her husband. The testimony of the Victim show that, her mother was staying with her parents prior to the birth of her brother and she did not return to the house of her paternal grand-mother, i.e. the matrimonial house of the Victim’s mother. It has come in the evidence of the Victim that, her mother and the Appellant were not on talking terms since prior to the incident. This indicate that, the relations between the Victim’s mother and the Appellant were not cordial. Suggestion is given by the Appellant to the Victim’s mother that, she took disadvantage of the injury caused to the private part of the Victim due to scratching and filed the false case.

The evidence on record show that, the house where the Appellant was residing was in the residential area. It is nowhere the case of Prosecution that, the house of incident was occupied only by the Appellant. The evidence of the Victim show that, the place of incident was four rooms, wherein her grand-mother, paternal aunt, uncle - Rizwan and deceased uncle - Murad were residing. The uncle Murad died two years prior to her testimony and he used to stay in the hall of the house. It has further come in the testimony of the Victim that, her grand-parents used to stay with the Murad. As her grand-parents were old, they used to always stay in the house. The evidence of the Victim further show that, the wife of her uncle – Rizwan was the housewife and available in the house and uncle – Rizwan was having five (05) children. The evidence of the Victim show that, her uncle – Rizwan and the Appellant were doing the work of construction of temple of Rama at Dharmapuri and the said work was going two years prior from the date of filing the case. Her uncle – Rizwan and the Appellant used to go for work at 10:00 a.m., and their work used to end by 06:00 p.m. The Victim’s evidence further show that, on the day of incident, she visited the house of her father, i.e. grand-parents and she was called by Aayesha Didi and she went to the said house, where her grand-parents, paternal aunt, i.e. wife of Rizwan, cousins by name Aayesha, Saniya, Rehan and Murad uncle were present and at that time, Rizwan uncle and the Appellant returned home in the evening after the work at Dharmapuri. With this vital evidence of the Victim, her evidence that, she was raped by the Appellant is shattered and required to be seen with doubt.

The evidence of PW – 1 – Victim’s mother show that, her parents house was one lane after the house of her in-laws, i.e. matrimonial house. Their houses were surrounded by many houses. She admitted that, though she felt that, the Victim should be taken immediately to the Hospital after noting the injury and bleeding on her private parts, she did not take the Victim to the Hospital on the same day. This is really strange. Her testimony show that, the town of Parli, where they were staying and where the incident as deposed by the Victim took place, was having 50 to 75 Hospitals, including Hospitals for children and women and the Government Hospital of Parli was situated at the distance of 30 minutes by walk from her house, and the Tapadia Hospital, where she took treatment during the pendency, was 20 minutes by walk from her house. Despite this, not taking the Victim to the Doctor immediately, raises doubt on the Prosecution’s case of rape.

The above-discussed evidence, upon which the Prosecution’s case rests, do not establish the Charge beyond doubt. Due to the material omissions / improvements in the testimony of the Victim and her mother, the medical evidence, which is the opinion evidence, cannot by itself form the basis to hold that, the Charge is proved. The above-discussed evidence of the Victim and that of her mother is not free from doubt and improbabilities. The relations between the Victim’s mother and the Appellant were not cordial. The Victim being the Child of 5 to 6 years at the time of lodging the report, the possibility of her tutoring cannot be ruled out. Further evidence of the Victim that, the house of the Appellant was occupied by so many members and the Appellant returned in the evening on the day of incident, gives a severe blow to the Prosecution’s case in respect of rape by the Appellant on the Victim. There is no need to discuss the other evidence, which is that of the panch witnesses and the Investigating Officer. As the evidence on record is neither concrete nor inspire confidence and is doubtful, there is no question of presumption under Sections 29 and 30 of the POCSO Act coming into operation. The re-appreciation of the evidence available on record as noted above leads to the only conclusion that, the Appellant is entitled for acquittal. Thus, the impugned Judgment and Order requires interference and the Appeal succeeds. Hence, the following order:

[I] The Appeal is allowed.

[II] The conviction and sentence recorded by the learned Trial Court against the Appellant, in Special (POCSO) Case No.23/2018 by Judgment and Order dated 01/06/2023, is quashed and set aside.

[III] The Appellant is acquitted for the offences for which he was charged and convicted by the learned Trial court.

[IV] The fine amount paid by the Appellant pursuant to the impugned Judgment and Order be refunded to him.

[V] The Muddemal articles be dealt as per the operative order of the impugned Judgment.

[VI] The Record and Proceedings be sent back to the learned Trial Court.

[VII] Appeal stands disposed off accordingly.