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HIGH COURT OF BOMBAY
A.M. Badar, J
Vaibhav Vyankatesh Deshak – Appellant
Versus
The State of Maharashtra – Respondent
CRIMINAL APPEAL NO.371 OF 2016
For the Appellants/Petitioners: Mr.Jayant Joseph Bardeskar
For the Respondents: Mr.A.R.Kapadnis
The court emphasized the importance of credible witness testimony in child sexual assault cases, reinforcing that identity and circumstances surrounding the act do not detract from a conviction when supported adequately by evidence.
Headnote:(A) Protection of Children from Sexual Offences Act, 2012 - Section 6 - Indian Penal Code - Section 376 - Conviction for sexual assault on minor - The appellant challenged the conviction and sentence of 10 years rigorous imprisonment handed down by the Special Judge under the POCSO Act. (Paras 1, 2, 18)
(B) Testimony of Minors - The court emphasized the need to scrutinize the statements of child witnesses carefully due to their vulnerability and susceptibility to tutoring. (Paras 6, 15)
(C) Exhaustive Evidence Review - The court observed the corroborative nature of the testimony of the victim and the cousin witness indicating credibility despite the appellant's defense of mistaken identity not being substantiated. (Paras 13, 16)
Facts of the case:
The appellant was convicted for committing penetrative sexual assault on an 8-year-old girl in a photo studio where the victim was taken for photographs as part of her school requirements. Parents were not aware of the ownership of the photo studio amidst claims of false implication by the accused related to a tenancy dispute. (Paras 2, 3)
Findings of Court:
The court found no merit in the appeal, reaffirming the convictions based on credible evidence provided by the victim and corroborative statements of witnesses supporting the prosecution case. (Paras 17, 18)
Issues: The court dealt with the credibility of the testimony from minor witnesses and the possibility of false implication, focusing on the sufficiency and reliability of evidence. (Paras 7, 10)
Ratio Decidendi: The judgment underlines reassurance in conviction when victim's testimony aligns with corroborative evidence, dismissing speculative defenses presented by the appellant regarding the incident's occurrence in a visible area. (Paras 16, 17)
Result: The appeal is dismissed.
1 By this appeal, the appellant/accused is challenging the Judgment and Order dated 13/04/2016 passed by the learned Special Judge under Protection of Children from Sexual Offences Act , 2012 (hereinafter referred to as ‘the POCSO Act’ for the sake of brevity) Additional Sessions Judge, Solapur in Sessions Case No.169 of 2015 thereby convicting him of the offences punishable under Section 376 of the Indian Penal Code and as well as Section 6 of the POCSO Act. He is sentenced to undergo rigorous imprisonment for a period of ten years apart from direction to pay fine of Rs.10,000/- and in default he is directed to suffer simple imprisonment for six months.
2 Facts in brief leading to the prosecution and resultant sentence of the appellant/accused can be summarized thus :
(a)The victim of the alleged crime is eight years old female child, who is examined as P.W.No.2. She was taking education in 3rd Standard at Praniti Shinde School of Solapur. Her father P.W.No.1 Iliyas was doing the work of collecting scrap and her mother/P.W.No.3 Naseem is a house-wife.
(b)The alleged incident took place at Jay Photo Studio of Nayi Jindagi Area of Solapur at about 11.30 a.m. of 11/05/2015. As photographs of the victim female child/P.W.No.2 were required for the purpose of making application for Government Scholarship, P.W.No.3 Naseem had sent her daughter the victim female child/P.W.No.2 to the photo studio along with P.W.No.4 Sameer and another boy named Abid. P.W.No.4 Sameer is cousin of the victim female child/P.W.No.2 and had been to her house for spending summer vacation.
(c)According to the prosecution case, the victim female child/P.W.No.2 accompanied by P.W.No.4 Sameer and Abid had been to be Jay Photo Studio where the appellant/accused used to work. The appellant/accused, on the pretext of taking photograph of the victim female child/P.W.No.2 had committed penetrative sexual assault on her by putting his penis in her mouth. The victim female child/P.W.No.2 on returning to her house started vomiting. Her mother P.W.No.3 Naseem questioned her. Thereafter, the victim female child/P.W.No.2 disclosed the incident to her mother in presence of her cousin P.W.No.4 Sameer. Then, P.W.No.3 Naseem telephonically informed the incident to her husband P.W.No.1 Iliyas. They, then went to the photo studio and questioned the appellant/accused. He was then taken to the Police Station, MIDC, Solapur City and P.W.No.1 Iliyas lodged report, which has resulted in registration of Crime No.76 of 2015 against the appellant/accused.
(d)Routine investigation followed. The spot of the incident came to be inspected in presence of P.W.No.7 Ameer Mohd. and spot panchanama (Exhibit 34) came to be recorded. The camera and the memory card came to be seized vide panchanama (Exhibit 32) in presence of P.W.No.5 Abdul Sattar Shaikh. The appellant/accused came to be arrested vide panchanama Exhibit 30 and clothes of the victim female child/P.W.No.2 came to be seized in presence of P.W.No.5 Abdul Sattar Shaikh. On completion of investigation, the appellant/ accused came to be charge-sheeted.
(e)The charge came to be framed and explained to the appellant/accused. He pleaded not guilty and claimed trial.
(f) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all eight witnesses. Defence of the appellant/accused was that of false implication. The appellant/accused is examined as D.W.No.1 and has examined his employer Sushant Shinde as D.W.No.2.
(g)After hearing the parties the learned trial Court was pleased to convict the appellant/accused and sentenced him as indicated in the opening paragraph of this Judgment.
3 I heard Shri.Bardeskar, the learned Counsel appearing for the appellant/accused at sufficient length of time. By taking me through the entire evidence adduced by the prosecution so also by pointing the defence evidence, he argued that the photo studio was having a shutter and then there was a glass partition. The spot of
