WASIM MOHIDDIN SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this appeal, the appellant/convicted accused is challenging the judgment and order dated 29 th November 2016 passed by the learned Designated court under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act for the sake of brevity), Greater Mumbai, in POCSO Special Case No.667 of 2013, thereby convicting him of avk offences punishable under Sections 376(2)(i) of the Indian Penal Code as well as under Section 4 of the POCSO Act. For the offence punishable under Section 376(2)(i) of the Indian Penal Code, the appellant/convicted accused is sentenced to suffer rigorous imprisonment for 10 years apart from direction to pay fine of Rs.20,000/- and in default, to undergo further rigorous imprisonment for 6 months. For the offence punishable under Section 4 of the POCSO Act, he is sentenced to suffer rigorous imprisonment for 7 years apart from direction to pay fine of Rs.20,000/- and in default, to undergo further rigorous imprisonment for 6 months. Substantive sentences are directed to run concurrently by the learned trial court.

(2.) Facts, in brief, leading to the prosecution and the resultant conviction of the appellant/convicted accused, can be summarized thus : (a) The PW1 is the alleged victim of the crime in question. She was born on 29th June 1997. The incident in question took place allegedly from April 2012 to March 2013. It is case of avk the prosecution that after death of father of the victim female child/PW1, her mother started residing with her boyfriend. The victim female child/PW1 was, therefore, constrained to take shelter in house of her grandmother. (b) The victim female child/PW1 fell in love with the appellant/convicted accused and from April 2012 for a few months, she started residing with him at his house in Morarji Nagar, Powai, Mumbai. Thereafter, sexual relations came to be established between them. This resulted in pregnancy of the victim female child/PW1 in the year 2013. Thereafter, she had aborted her foetus, after her mother took her to the Rajawadi Hospital, Mumbai. (c) PW3 Seema is mother of the victim female child/PW1. On 18th April 2013, she lodged report Exhibit 35 alleging commission of rape on the victim female child/PW1 by the appellant/convicted accused. On the basis of this report, Crime No.00 of 2013 came to be registered at Sakinaka Police Station and the First Information Report (FIR) was then sent to Police Station Powai, where Crime No.213 of 2013 came to be registered against the appellant/convicted accused. (d) During the course of investigation, the appellant/convicted accused came to be arrested. Routine investigation followed. Clothes of the victim female child/PW1 as well as that of the appellant/convicted accused came to be seized. They were sent for chemical analysis. The spot of the incident came to be inspected and Spot Panchnama Exhibit 12 came to be prepared. Birth Certificate of the victim female child/PW1 came to be collected and on completion of routine investigation, the appellant/convicted accused came to be charge-sheeted. (e) The learned trial court framed and explained the Charge for the offence punishable under Section 376(i) of the Indian Penal Code as well as under Section 4 of the POCSO Act to the appellant/convicted accused. He pleaded not guilty and claimed trial. (f) In order to bring home the guilt to the appellant/convicted accused, the prosecution has examined in all six witnesses including the victim female child as PW1 and her mother Seema as PW3. Other witnesses are official witnesses, who investigated the crime in question. Defence of the appellant/ convicted accused was that of total denial. (g) After hearing the parties, the learned trial court was pleased to convict the appellant/convicted accused and sentenced him accordingly, as indicated in the opening paragraph of this judgment.

(3.) I have heard Ms.Megha Bajoria, the learned advocate appointed to represent the appellant/convicted accused at the costs of the State. She vehemently argued that the appellant/convicted accused came to be convicted for the offence punishable under Section 376(2)(i) of the Indian Penal Code when he was not even charged for that offence. He was charged for commission of the offence punishable under Section 376(i) of the Indian Penal Code. It is further argued by the learned advocate for the appellant/convicted accused that the prosecution has failed to establish the Charge in view of the fact that the victim female child/PW1 and her mother have not supported the prosecution case, in any manner. Therefore, the appellant/ convicted accused is entitled to acquittal.