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2009 Supreme(Bom) 1409
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
State, Through Police Inspector - Appellant
Versus
Shaikh Mohammad Rafiq, S/o Shaikh Amrul Hassan - Respondent
Criminal Appeal No.67 of 2009 and Criminal Appeal No.53 of 2009
Decided on : 16-10-2009
For the Appellant: C.A. Ferreira, Public Prosecutor.
For the Respondent:Mike Mehta, Advocate.
Headnote:Goa Children’s Act, 2003 - Section 8(2) - Probation of Offenders Act, 1958, Sections 4(1) and 5 - Indian Penal Code, 1860, Section 363 - Kidnapping of 15 years old boy - Having sexual intercourse with him - Accused kidnapped boy stated he was limp with his leg - Further it was a false case against him - Children’s Court found boy trustworthy - Witnesses also found reliable - Accused was given a lift with no intention to kidnap - Sate appeal - One against acquittal and other against sentence - Accused could not explain how boy got scratches on his head - Boy alleged to have pissed in side car - Not reliable - There is chance of acquittal - Case of prosecution also having substance - No reason why a minor boy will falsely implicate accused - Children’s Court not justified in acquitting accused - Accused convicted under Section 363 of IPC. - The offences committed by the accused involves moral turpitude or moral delinquency. The accused is educated man over 40 years of age. The accused has committed offences obviously because he has propensity or tendency to commit such offences and facts show that it was committed with due deliberation and there is no reason at all that he will not commit it again.
Both the appeals are hereby allowed. The acquittal of the accused under Section 363, IPC is hereby set aside and the accused convicted under Section 363, IPC. Likewise, the sentence i.e. order releasing the accused under Section 4(1) with fine under Section 5 of the P.O. Act is hereby set aside.
The benefit of probation extended to the accused be maintained and further submits that the mother of P.W. 2 could be exaggerating, the effects of the action of the accused.
The statutory provision provides a fixed amount to be the fine and once the offence is established, there is no discretion to the Court to impose fine of less than Rs. 1,00,000/-.
Considering the facts and circumstances of the case, ends of justice will be met by. sentencing the accused under Section 363, IPC to undergo S.I. for three months and directing him to pay a fine of Rs. 5000/- in default to undergo S.I. for one month.
Probation of Offenders Act, 1958 - Section 4(1) - Giving benefit to accused - Appeal against - Held - One of requirements for extending the benefit of Act is character of accused - No report of Probation Officer was called for - Without calling the same release of accused was wrong exercise of discretion granted under Act - Calling of report from Probation Officer is absolutely necessary in interest of offender and society - Same should be considered by Court before releasing offender on probation of good conduct - Impugned order set aside.
1. Heard Shri C.A. Ferreira, learned Public Prosecutor on behalf of the Appellant and Shri Mike Mehta, learned Counsel on behalf of the Respondent/accused.
2. These appeals can be conveniently disposed of by this common judgment.
3. The Second Appeal is directed against the acquittal of the accused under Section 363 IPC, and, the First Appeal is directed against the sentence imposed upon the accused under Section 8(2) of the Goa Children's Act, 2003 (Act, for short) i.e. the accused has been dealt with under Section 4(1) and 5 of the Probation of Offenders Act, 1958, (P. O. Act, for short).
4. The case of the prosecution is that the respondent – accused on or about 21.12.2006 at about 8.15 hours at Green Park Junction at Guirim, kidnapped the victim boy i.e. to say PW2 from the lawful guardianship and thereafter committed sexual abuse on him, thereby committing offences punishable under Section 363 of IPC and Section 8(2) of the Act.
5. The case of the accused is that on that day, he was going to Mapusa from Panaji with his red colour Alto car, and as the battery was weak, he parked the car near Bodgeshwar Temple. At that time he saw a boy, PW2 urinating, so he slapped him. Accused stated that he limps with his left leg as he has paralysis. He stated that this is a false case filed against him. Accused did not examine any witnesses.
6. To support the charge framed against the accused, the prosecution examined six witnesses which included the said PW2, a minor boy, who at the relevant time was of 15 years, 3 months of age, having been born on 28.9.1992; PW1 Dr. Kuncolienkar who medically examined him subsequently; his mother PW3 Shobha Padgaonkar; and PW4 Namdev Mandrekar who happened to reach the scene and who informed the said mother; PW5 Rajesh Kerkar who acted as a pancha witness to the scene of offence panchanama, as well as arrest panchanama of the accused, which took place at about 16.15 hours on the same day. PW6 PSI Prajyot Fadte not only recorded the complaint of PW2 but also investigated the case.
7. The State having filed both these appeals, one against the acquittal and the other against the sentence, on behalf of the accused, it is submitted that the accused is entitled for an acquittal or in the alternative, for the sentence to be maintained, if required, after calling for a report of the Probation Officer.
8. PW2, who at the relevant time was below 16 years of age was residing at Bastora and was studying in Saraswat Vidhyalaya at Mapusa, in IXth standard. As stated by him, on 21.12.2006, he left his house at Bastora to go to school at about 7.45 a.m. and as he was waiting for the bus, at the bus stop near Green Park Junction at Guirim, at about 8.15 a.m., he saw a red colour Alto car going to Mapusa and the said car stopped near him. Then he described the accused and the clothes he was wearing. He further stated that on stopping the car, he opened the left side front door thinking that the car had stopped for him, and when he went to see, the accused caught him by his hand and pulled him inside. He further stated that he was frightened as there was no one around him but he sat in quietly and he sustained scratches on his right hand and on reaching near Bodgeshwar Temple, as there was traffic jam, the accused took the car in the field and he started to drive the vehicle slowly, and started kissing him on his face and also attempted to remove his short pant and he screamed for help, when he saw that one person was coming towards him. According to him, the accused was holding his right hand tightly, but he managed to free himself from his hand, opened the door of the car, and escaped and he pulled his pant up and went running towards one person who was nearby and on seeing him crying, the said person, whose name he came to know later as Namdev Mandrekar, and he inquired with him as to what had happened and told him everything and in the meantime the driver of the car i.e. the accused disappeared, leav
