Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
Prithviraj K. Chavan, J.
Khalil Kureshi - Appellant
Versus
The State of Goa - Respondent
Criminal Appeal No. 46 of 2015
Decided On : 11-10-2019
Goa Children’s Act, 2003 - Section 8(2) - Protection of Children from Sexual Offences Act, 2012 - Section 4 - Indian Evidence Act - Section 8 – Indian Penal Code - Section 323 - Constitution of India,1950 - Article 20 – Appeal against conviction - Rigorous imprisonment – Anticipatory bail - PW1 had lodged a report with Police Station - She was residing at Goa along with her husband daughter aged about three and half years and two sons respectively in a rented room - Her husband works as a laborer - Prosecutrix was crying for a chocolate and therefore PW1 asked her to get it from general shop of the appellant by giving her two rupees - Prosecutrix always used to go to appellants shop to buy chocolate and would return within few minutes - Since she did not return for about twenty minutes or so PW1 went to see her in appellants shop and noticed that prosecutrix was inside the shop of appellant along with appellant - Prosecutrix was crying - She brought her outside shop and asked her reason as to why she was crying upon which prosecutrix replied that appellant removed his pant and put his private part in her mouth and said dudu piyo - PW1 brought her daughter home and again asked her in detail to which she replied in a similar manner - It is alleged that appellant removed his pant and put his private part in mouth of prosecutrix and said dudu piyo - He also slapped on her face. PW1 immediately contacted her husband who was on his centering work - Thereafter a written report came to be lodged with police station – Held, All this highlights importance of ensuring as far as possible that there should be no wrongful conviction of an innocent person - Some risk of conviction of innocent of course is always there in any system of administration of criminal justice. Such a risk can be minimized but not ruled out altogether - Ratio would not be applicable for the simple reason that the material on record if tested on the touchstone of law of evidence as well as provisions under the Goa Children’s Act would definitely points towards the complicity of the appellant in the alleged offence - There is no question of he being wrongfully convicted for there was no reason for the mother of the prosecutrix to falsely implicate the appellant in view of fact that her family itself belongs to a very humble and poor background – Appellant on the other hand is quite better off than complainant - Ratio can be distinguished accordingly - Which was a case under Section 376(2)(g) of IPC it is opined by the medical officer about the absence of hymen and did not mention the age of tear of hymen because tear was old - No semen was found on clothes and vaginal swap - It was observed that although the doctor opined possibility of sexual assault upon victim but did not specify whether assault was recent - It was held by Honble Supreme Court that it was highly improbable for accused to have committed offence of rape in his own house in presence of sister mother wife and children - It is observed that the High Court and Trial Court convicted the accused merely on conjectures and surmises and therefore he was acquitted - By no stretch of imagination this ratio would be made applicable to case at hand for the simple reason that the offence has been committed in the room adjoining to the shop of appellant where he was alone and no one else - Act which he did has already been elaborated in the preceding pares – Thus this ratio would be of no help to appellant - Appeal is dismissed
JUDGMENT :
Prithviraj K. Chavan, J.
1. Feeling aggrieved with the judgment and order of conviction dated 31/07/2015 by the Children's Court, Panaji, Goa, the appellant has preferred this appeal.
2. The appellant came to be convicted and sentenced to undergo simple imprisonment for 6 months of an offence punishable under Section 323 IPC. He is sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.2,00,000/-, in default, simple imprisonment for 2 years of the offence punishable under Section 376(2)(i) of IPC and under Section 8(2) of the Goa Children's Act, 2003 and under Section 4 of the Protection of Children from Sexual Offences Act, 2012.
3. Facts of the case in brief are as follows:
4. An offence came to be registered against the appellant under Section 376(2)(i) IPC, Section 8(2) of Goa Children's Act, 2003 and Section 4 of the Protection of Children from Sexual Offences Act, 2012.
5. The Investigating Officer PW9 PI Manoj Mardolkar registered a crime bearing Cr. No. 91/2013 under Sections 377, 323 IPC, 8(2) of the Goa Children's Act and Section 4 of the Protection of Children from Sexual Offences Act. He visited the scene of occurrence and drew a spot panchanama in the presence of two pancha witnesses namely Kisan Satardekar and Gaurish Morajkar. He had recorded the statement of the witnesses. He had also arranged for a photographer, who took photographs of the scene of offence on a digital camera of the Porvorim Police Station. The clothes of the appellant which were on his person at the time of commission of the offence as well as his banyan and underwear were seized under a seizure panchanama. The appellant was referred for medical examination. A statement of the prosecutrix was also recorded.
6. The Investigating Officer vide letter dated 10/07/2013 to the JMFC, Mapusa prayed for addition of Section 376(i) (h) of IPC in the crime and deleting Section 377 of IPC.
7. The seized muddemal property was sent for chemical analysis to CFSL, Hyderabad. He had obtained birth certificate of the victim by writing a letter to the Registrar of Births and Deaths Registration, GMC, Bambolim. After investigation, he filed a charge sheet against the appellant in the Children's Court for the State of Goa.
8. The appellant appeared before the learned President Children's Court on 11/09/2014. A charge was framed against the appellant under Sections 375(a) of IPC read with Section 2(y)(i) of the Goa Children's Act, 2003 and Section 3(a) of the P
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
