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IN THE HIGH COURT OF BOMBAY
S.S. Shinde, M.S. Karnik, JJ.
Mohd Zakir Habib Khan - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Appeal No. 516 of 2016
Decided On : 12-08-2020
POCSO Act - Conviction under Sections 354, 376, and 504 of IPC and Sections 4 and 8 of POCSO Act - Unsustainable - Acquittal ordered
Fact of the Case:
The victim, a minor, alleged sexual abuse by her father over several years. The appellant denied the allegations, claiming false implication due to objections to the victim's relationship with another individual. The victim's testimony was the primary evidence.
Finding of the Court:
The court found the victim's testimony unreliable and lacking credibility. It noted discrepancies and inconsistencies in her statements, including her relationship with her stepmother and interactions with other individuals. The court concluded that the evidence did not inspire confidence.
Issues: The primary issue was the credibility of the victim's testimony and the reliability of the evidence presented. The court also considered the applicability of the POCSO Act to the alleged incidents.
Ratio Decidendi: The court held that the victim's testimony lacked credibility and did not inspire confidence. It also ruled that the POCSO Act did not apply to incidents alleged to have occurred before its enactment. As a result, the conviction under the POCSO Act was deemed unsustainable.
Final Decision: The court allowed the appeal, quashed the judgment, and acquitted the appellant of all charges. The fine amount was ordered to be refunded, and the appellant was directed to execute bail bonds for release.
Certainly. Based on the provided legal document, here are the key points:
The court emphasized the importance of credible and reliable evidence in cases involving serious allegations, especially when the testimony of the victim is the primary evidence (!) (!) .
The conviction under Sections 354, 376, and 504 of the IPC and Sections 4 and 8 of the POCSO Act was found to be unsustainable due to the unreliability of the victim's testimony and inconsistencies in her statements (!) (!) (!) .
The court noted that the alleged incidents of sexual abuse purported to have occurred over several years, starting when the victim was around six years old, lacked corroborative evidence and were marred by discrepancies (!) (!) (!) (!) .
The medical examination of the victim suggested she was approximately 17 to 18 years old at the time of the examination, and there was no conclusive evidence of recent sexual intercourse (!) (!) (!) .
The court observed that the victim's version of continuous abuse from a young age was not consistent with her own admissions and the evidence on record, leading to doubts about the veracity of her claims (!) (!) (!) .
Discrepancies in the victim’s statements regarding her knowledge of Rahul, her friendship, and her interactions with other individuals further undermined her credibility (!) (!) (!) (!) .
The evidence suggested possible false implication of the appellant, potentially motivated by personal or familial disputes, especially considering the appellant's denial and the defense of false implication (!) (!) (!) .
The court clarified that the POCSO Act’s provisions, particularly Section 6 concerning aggravated penetrative sexual assault, could only apply to acts committed after the Act's enactment date. Since the alleged incidents occurred prior to this date, the appellant could not be prosecuted under the POCSO Act for those acts (!) (!) (!) (!) .
The court highlighted that the allegations did not meet the legal criteria for penetrative sexual assault under the POCSO Act, especially considering the nature of the alleged conduct on the specific date of the latest incident (!) (!) (!) .
Ultimately, the court acquitted the appellant of all charges, quashed the conviction, and ordered the release of the appellant, refund of the fine amount, and execution of bail bonds (!) (!) (!) (!) (!) (!) (!) (!) (!) .
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JUDGMENT
M.S. Karnik, J. - The appellant by this Appeal challenges the judgment rendered by the Special Court for the Protection of Children from Sexual Ofences Act, 2012, Greater Bombay (hereinafter referred to as 'the Special Court' for short) convicting the appellant for the ofences punishable under Sections 354 and 376d of the Indian Penal Code, 1860 ('IPC' for short) and Section 6 of the Protection of Children from Sexual Ofences Act, 2012 ('POCSO Act' for short). The appellant is sentenced to sufer R.I. for fve years and to pay a fne of Rs.5,000/-, in default of payment of fne, he is further sentenced to sufer R.I. for one week in respect of the ofence punishable under Section 354 of the IPC. The appellant is sentenced to sufer imprisonment for life and to pay a fne of Rs.50,000/-, in default of payment of fne, he is sentenced to sufer further R.I. for one year in respect of the ofence punishable under Section 376 of the IPC. The appellant is sentenced to sufer imprisonment for life and to pay a fne of Rs.50,000/-, in default of payment of fne, he is sentenced to sufer R.I. for one year in respect of the ofence punishable under Section 6 of the POCSO Act.
2. The prosecution case in brief is that the victim was subjected to sexual abuse by her father - the appellant - original accused since she was six years of age. This abuse continued till she was 14 years of age. Even thereafter the appellant tried to sexually abuse the victim but she resisted. The victim started residing separately in a rented room since the year 2013. Even in this room the father tried to sexually abuse the victim but the victim resisted and did not allow her father to have his way. She informed about the sexual advances made by her father on 13/2/2013 to Ruksar Ovez Batatewala (PW-3). She then narrated the entire ordeal faced by her since childhood to PW-3. The complaint came to be fled on 14/2/2013. The statement of the victim was recorded frstly on 14/2/2013 and then on 20/2/2013 at Exhibit 25 by SEO Smt. Tara Soppian (PW-8). She was medically examined by Dr. Baban Shripati Shinde (PW-5) on 14/2/2013. Shekhar Prabhakar Tawde (PW-7), IO carried out the investigation and recorded the statements of the witnesses. Upon completion of investigation, PW-7 then fled the chargesheet before the Special Court.
3. The charge was framed by the Special Court under Section 354, 376 of the IPC and Section 6 of the POCSO Act at Exhibit 2 on 9/7/2013. The appellant pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses before the Special Court. The victim is examined as PW-1. The defence of the appellant / accused is of total denial. In the statement made under Section 313 of the Code of Criminal Procedure ('Cr.P.C.' for short) the appellant took up a defence of false implication at the instance of PW-3. According to the appellant, he was falsely implicated by PW-3 as he had an objection to victim marrying PW-3's brother Rahul.
4. The case of the victim (PW-1) is that she was sexually abused by her father - the appellant. She was born on 26d/6d/1995. Her parents divorced sometime in the year 2000. Her father - the appellant remarried in 2001. Thereupon, the appellant, victim's step-mother, her elder step-brother, younger stepbrother, the victim started residing in one room. At the relevant time, the victim was six years of age. The victim's real mother started residing in her native village after divorce. After appellant's remarriage in 2001, he started making sexual advances towards her. It is the case of the victim that her father - the appellant from time to time had forcible sexual intercourse with her. The victim says that she was sexually abused since she was six years old till she was 14 years of age. In the year 2006d, when her step-mother gave birth to twins, the family shifted to a bigger room. As she was afraid of her father, she started sleeping in the kitchen. The victim's father - the appellant continued to misbehave with
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