When State Agencies Fail In Establishing Guilt Of Accused, Onus On Courts To Do Justice: Bombay HC [Read Judgment]

When State Agencies Fail In Establishing Guilt Of Accused, Onus On Courts To Do Justice: Bombay HC [Read Judgment]

The Bombay High Court has refused relief to one Khalil Shaikh, a 25-year-old man from Bandra, Mumbai, who was convicted by a designated court under the Protection of Children from Sexual Offences (POCSO) Act, 2012 under Sections 323, 377 of IPC and sentenced to suffer imprisonment for one year and 10 years, respectively. Shaikh was also convicted under Section 6 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 10 years.

The court directed Shaikh to pay Rs. 10,000 as compensation to the victim of the offence in the said judgment dated February 27, 2014. Shaikh filed an appeal against the said judgment which came up before the bench of Justice SS Jadhav.

The 20-page judgment was pronounced in January but uploaded recently on the high court website.

Case Background

According to the prosecution, on February 14, 2013, when Sujit Mone was on patrolling duty, he received a call from the Nirmal Nagar police station informing him that some suspicious persons had entered the terrace of a building in Railway Colony. When Mone went to the terrace of the said building along with other police personnel, they saw that the victim (child) nude, crying and shouting while the accused was performing an unnatural act with the boy abusing him. The accused was taken in custody thereafter.

Judgment

The court noted that the victim had stated before the trial court that he was 16-year-old and was brought up by his grandparents as his parents have passed away. He further stated that he was on a trip to Mumbai along with his grand­parents. On February 13, 2013, when he got down from the train at Borivali station at 10.30 pm for food, he missed the train. Thereafter, he reached Bandra station on the next day on February 14. This is where the accused lured him with some money and took him to the nearby building and performed carnal unnatural intercourse with him.

Advocate Abad Ponda appeared on behalf of the accused-appellant and APP SS Pednekar appeared for the state.

The court was not pleased with suggestions made during the cross-examination of the victim and observed-

"The victim has been cross­-examined at length. The defence has failed to create any dent in his evidence as stated in the examination-­in-­chief. Unwarranted suggestions were given to the victim such as that he was earning his living by indulging into such acts which the victim has denied. He was taken to the hospital on the next day of the incident. Needless to say, that the suggestions are far from probabilities in the facts of the case."

Dr. Amarsingh Anandrao Rathod had examined the victim and according to him, the victim was 15 years old. The doctor specifically opined that the age of the victim is between 15 to 16 years and that the said opinion was based on the victim's X­-ray and ossification test.

Justice Jadhav observed that the investigating agency failed in obtaining the school leaving certificate of the victim which would help in ascertaining the correct age of the victim.

"The investigating agency was insensitive about the whole issue in question and the only evidence available would be the ossification test report," the court said.

The investigating officer in the case did not prepare the spot panchnama, neither did she take statements of residents of the said building in question.

Finally, the court observed-

"It appears that the pleadings as far as the dispute in determination of age is concerned, is only to escape the sentence under the provisions of Protection of Children from Sexual Offences Act, 2012, as Section 5 of the said Act contemplates minimum punishment of ten years, whereas Section 377 of the Indian Penal Code contemplates the sentence with (imprisonment for life), or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. In any case, the incident in question is undisputed.

It is an essence of criminal jurisprudence that an accused is presumed to be innocent until he is convicted. In several cases, benefit of doubt is extended to the accused, however, time has come to protect the interest of the victims as well. When the state agencies failed in their duties to establish the case against the accused, beyond reasonable doubt, that too by keeping certain lacunae either in the investigation or at the time of trial, the onus would be upon the courts to see that the justice is done to the victim as well."

Thus, the court rejected prayer by the appellant accused's lawyer to set aside conviction of the accused under the POCSO Act on the ground that the prosecution failed to produce a birth certificate of the victim.

Instead, the court decided to uphold the conviction under Section 6 of the POCSO Act and the 10- year sentence. However, it set aside the 10-year sentence under Section 377 of IPC after referring to Section 42 of the POCSO Act.

The accused has till now spent 5 years and 10 months in prison, he will have to complete his 10-year sentence.

Read the Judgment Here