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Fazal Mehmud Jilani Dafedar vs The State Of Maharashtra

Bombay High Court26 November 2020Sadhana S. Jadhav · N.J. Jamadar

Ratio decidendi

The rule this decision rests on

Where a child victim of sexual assault testifies that she was subjected to penetrative sexual assault through digital penetration and touching of breasts, and the victim's testimony is found to be credible and consistent across multiple accounts given to different persons (the first informant, corroborating witnesses, the medical officer, the magistrate under section 164 of the Code of Criminal Procedure, and the court), and the attendant circumstances (the victim's age, condition of helplessness, her isolation in the house with the accused, and her subsequent frightened state and immediate disclosure) are inconsistent with false implication, the absence of physical injury to the victim's external genitalia or hymen does not discredit the victim's evidence, because injury may not occur when there is no forcible resistance and penetration may be incomplete; and the victim's testimony alone, if found worthy of credence and reliable, is sufficient to convict the accused without corroboration in material particulars, though corroboration by the evidence of the first informant and other witnesses may provide assurance to her testimony.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

apeal-845-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.845 OF 2017

Fazal Mehmud Jilani Dafedar R/o. Devashish Society, B wing, Third Floor, R.No. 303 and 304, Amrut Nagar, Ghatkopar (w), Mumbai. ...Appellant v/s. The State of Maharashtra ...Respondent

Ms. Sayed Shabana M. Ali, for the Appellant Ms. P.P. Shinde, A.P.P. for the State.

CORAM : SMT SADHANA S. JADHAV & N.J. JAMADAR, JJ.

JUDGMENT RESERVED ON : 29th OCTOBER, 2020 JUDGMENT PRONOUNCED ON : 26th NOVEMBER, 2020

------------------------

JUDGMENT (Per N.J.Jamadar, J.)

. The challenge in this appeal is to the judgment and order

dated 11th August, 2017 in (Pocso) Case No. 519 of 2014 passed

by the learned Special Judge, Greater Bombay whereby and

whereunder the appellant came to be convicted for the offences

punishable under sections 6 and 10 of the Protection of

Children from Sexual Offences Act, 2012 (Pocso Act) and

sentenced to suffer imprisonment for life and pay fne of Rs.

2,000/- and rigorous imprisonment for fve years and fne of Rs.

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1,000/- respectively, with default stipulation. In view of section

42 of the Pocso Act no separate sentence was imposed upon the

appellant/accused for the offence punishable under section 376

of the Indian Penal, 1860 (the Penal Code) though the accused

was found guilty thereof as well.

2. The background facts necessary for the determination of

this appeal can be stated, in brief, as under:

a] The victim 'M' is a native of Mysore. The victim came to

stay with Mr. Ayaaz Dafedar, who was residing along with his

family consisting of wife, children Arfan, Ali and Wali, brother

Faizal, the accused, and mother at R.No. 303 and 304,

Devashish Society, B wing, Amrut Nagar, Ghatkopar (w). The

wife of Mr. Ayyaz is in relation of the victim from her maternal

side.

b] On 23rd October, 2014 Ayyaz Dafedar and the rest of the

family members had gone for a trip to Gujrat; except Fazal, the

accused. Thus the victim and the accused stayed back in the

house of Ayaaz for four days. Taking undue advantage of the

situation, the accused forced himself upon the victim. The

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accused perpetrated penetrative sexual assault on the victim.

The accused also inserted fnger in the private part of the

victim. The later was thus sexually exploited on 3-4 occasions.

The accused threatened the victim of dire consequences in the

event she disclosed the incident to anybody. The victim got

scared.

c] On 26th October, 2014 while the accused was taking bath,

the victim ran out of the house and apprised the said

harassment to the girl who was playing in the society campus.

The victim was brought to the house of Sonal Suhas Ghate, the

frst informant. The victim narrated the exploitation she was

subjected to, by the accused. Police were apprised. On 27 th

October, 2014 the informant Sonal Ghate lodged frst

information report.

d] Crime was registered at C.R.No.422 of 2014 for the

offences punishable under sections 376(2)(i), 342, 504,

506(ii) of the Penal Code and section 4, 8 and 10 of the Pocso

Act. The victim was sent for medical examination. The accused

came to be arrested. The accused was also subjected to medical

examination. The investigating offcer visited the scene of

occurrence and drew panchanama. The clothes of the victim

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and the bedsheet were also seized under seizure panchanama.

The investigating offcer interrogated the witnesses and

recorded their statements. The statement of the victim was

also recorded under section 164 of the Code of Criminal

Procedure, 1973 (the Code). After obtaining the necessary

medical and C.A. reports, and fnding the complicity of the

accused, charge sheet was lodged against the accused for the

offences punishable under sections 376(2)(i), 342, 504,

506(ii) of the Penal Code and section 4, 8 and 10 of the Pocso

Act.

e] The learned Special Judge framed charge against the

accused for the offences punishable under section 10 and 6 of

the Pocso Act and section 342, 506(ii) and 376(2) of the Penal

Code. The accused abjured the guilt and claimed for trial.

3. At the trial, in order to substantiate the indictment

against the accused, the prosecution examined nine witnesses.

The material witnesses are the victim 'M' (P.W.1), Sonal Ghate

(P.W.2), the frst informant, Rajashree Suvarna (P.W.3);

another resident of Devashish building, Dr. Meena Savjani

(P.W.5), the medical offcer, Shobha Aagashe (P.W.7), the social

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worker, and Maya Patil (P.W.8) and Annasaheb Sutar (P.W.9)

who furnished the details of investigation. After closure of the

prosecution evidence, the accused was examined under section

313 of the Code. The accused did not lead any evidence in his

defence which consisted of total denial and false implication at

the behest of Ms. Komal Hake, who was removed from

employment by Ayyaz Dafedar.

4. After appraisal of the evidence and material on record,

the learned Special Judge was persuaded to hold that the

testimony of the victim inspired confdence. The oral evidence

of Sonal Ghate (P.W.2) and Rajashree Suvarna (P.W.3), and the

medical evidence lent necessary corroboration. Thus, the

learned Special Judge entered the fnding of guilt against the

accused for the offences punishable under section 6 and 10 of

the Posco Act and section 376(2) of the Penal Code and

imposed the sentence as indicated above. The learned Special

Judge, however, held that the prosecution did not succeed in

establishing the charge for the offences punishable under

section 342 and 506 of the Penal Code.

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5. Being aggrieved by and dissatisfed with the aforesaid

judgment of conviction and order of sentence, the appellant/

accused is in appeal.

6. We have heard Sayed Shabana M. Ali, the learned counsel

for the appellant and Ms. P.P. Shinde, learned A.P.P for the

State at a considerable length. We have also perused the

evidence and material on record.

7. Assailing the legality and correctness of the impugned

judgment, Ms. Sayed urged that the learned Special Judge

committed a grave error in returning the fnding of guilt sans

legal evidence. The edifce of this submission was built on the

premise that the medical evidence totally ruled out the

possibility of alleged sexual exploitation as no injury was found

on the person of the victim. The medical evidence, according to

the learned counsel for the appellant, in this case, completely

negatives the victim's claim of having been sexually exploited

for 3-4 days immediately preceding the day of her medical

examination. The learned Special Judge, in the circumstances

of the case, ought not to have placed implicit reliance on the

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testimony of the victim who was barely 11 years old at the time

of alleged occurrence. It was further submitted that the

evidence of Sonal Ghate (P.W.2) and Rajashree Suvarna (P.W.3)

is bereft of corroborative value. Furthermore, it was elicited in

the cross examination of Ms.Sonal Ghate (P.W.1) that her

friend Komal Hake was inimically disposed towards Ayyaz

Dafedar, the brother of the accused. This crucial aspect was not

properly appreciated by the learned Special Judge. Thus, the

impugned judgment and order deserves to be set aside, urged

Ms. Sayed.

8. In contrast, Ms. Shinde, learned A.P.P. submitted that the

learned Special Judge was wholly justifed in returning a

fnding of guilt against the appellant. The testimony of the

victim (P.W.1) fnds requisite support in the evidence of Sonal

Ghate (P.W.2), Rajashree Suvarna (P.W.3) and Shobha Aagashe

(P.W.7). Moreover, there is contemporaneous material in the

nature of the statement of the victim (Exhibit 10), recorded

under section 164 of the Code, and the history narrated by the

victim to the medical offcer. The submission based on absence

of injuries on the person of the victim, sought to be canvassed

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on behalf of the accused, is not well founded, urged Ms. Shinde.

The medical offcer has specifcally deposed that there was

attempted penovaginal penetration and injuries may or may

not occur in such a case.

9. Before adverting to deal with the aforesaid rival

submissions, we deem it appropriate to note few

uncontroverted facts.

10. Indisputably, the victim was about 11 years old at the

time of the alleged occurrence. Victim had come to reside with

the brother of the accused, Ayyaz Dafedar, whose wife was a

distant relative of the victim. There is evidence to indicate that

one of the reasons for staying at Mumbai was the fact that the

victim had to take treatment for certain ailments. The precise

nature of the ailment is, however, a matter in contest. There is

not much controversy over the fact that rest of the family

members of Ayyaz Dafedar, except the accused and the victim,

had gone on a trip to Gujrat on 23 rd October, 2014. During their

absence, the victim and the accused were the only inhabitants

in the said house. The prosecution alleged that taking undue

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advantage of the said situation, the accused sexually exploited

the victim.

11. The victim 'M' (P.W.1) unfurled the manner in which she

was allegedly defowered by the accused. After apprising the

Court about the circumstances in which she came to reside in

the house of the brother of the accused and found herself

lodged with the accused since 23rd October, 2014, the victim 'M'

(P.W.1) informed the Court that, during those four days, while

she and the accused were at home, the accused undressed

himself and asked her to undress as well. The accused touched

her breasts. The accused had peno-vaginal penetration.

Accused also inserted his fnger in her private part. She was

thus exploited on 3-4 occasions in a room of the said house. She

further affrmed that the accused took her in a car and pressed

her breasts and fngered as well. The victim 'M' (P.W.1)

asserted that accused had threatened her that if she disclosed

the said incident to anybody he would arrange for four persons,

who would exploit her in similar fashion and, thereafter, kill

her.

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12. The victim 'M' (P.W.1) claimed that on a day when the

accused had been to bathroom, she rescued herself and

disclosed the exploitation at the hands of the accused to one

Didi residing in the said building. She claimed to have stayed

overnight in the house of the said Didi, (Sonal Ghate (P.W.2))

who took assistance of her friend and reported the matter to

police. Victim 'M' (P.W.1) informed the Court that her

statement was recorded under Sec.164 of the Code (Exh-10).

13. Sonal Ghate (P.W.2), the frst informant, professed to lend

support to the version of the victim. Sonal Ghate (P.W.2)

endevoured to impress upon the Court that on the evening of

26th October, 2014 Nakshatra Suvarna, the daughter of her

maternal aunt, brought the victim to her home. The victim was

scared and crying. On being inquired, the victim narrated the

incidents which transpired since 23rd October, 2014, the day

rest of the family members went to Gujrat. According to Sonal

Ghate (P.W.2) the victim had informed her that the accused

was forcing himself upon the victim. The accused undressed

himself, made her to undress, touched her breasts and inserted

his fnger in her private part. Sonal Ghate (P.W.2) further

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affrmed that the victim had also apprised her about the

exploitation by the accused in the car and the threats

administered by the accused, in the event victim disclosed the

incident to anybody.

14. It is in the evidence of Sonal Ghate (P.W.2) that she

related the incident to her friends and neighbours. In a state of

bewilderment, she kept the victim in her home. On the next

day police arrived upon being informed by one of the

neighbours. Sonal Ghate (P.W.2) claimed to have accompanied

the victim to police station and therefrom to the hospital for

medical examination. Thereafter, she lodged the frst

information report (Exhibit 14A).

15. Rajashree Suvarna (P.W.3), the mother of Nakshatra, also

seeks to lend corroboration to the version of the victim.

Rajashree Suvarna (P.W.3) was in unison with Sonal Ghate

(P.W.2) on the point that the victim was scared and, upon being

inquired, narrated the sexual exploitation at the hands of the

accused.

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16. Nothing material could be elicited in the cross

examination of either Sonal Ghate (P.W.2) or Rajashree

Suvarna (P.W.3), except the fact that one Komal Hake was

residing in the nearby locality and the latter was working with

Ayyaz Dafedar, the brother of the accused prior to the

occurrence. Rajashree Suvarna (P.W.3) conceded that said

Komal Hake was her friend and she was removed from the

employment by Ayyaz Dafedar on account of an issue over

salary. Both Sonal Ghate (P.W.2) and Rajashree Suvarna

(P.W.3), however, did not cave in to the suggestion that the

accused came to be falsely implicated at the instance of Komal

Hake, so as to avenge latter's removal from the employment.

17. It would be contextually relevant to note that the victim

'M' (P.W.1) withstood an incisive and searching cross

examination. A concerted effort was made to draw home the

point that the victim was tutored. An endevour was made to

demonstrate that at the instance of the frst informant Sonal

Ghate (P.W.2) and the caretackers of the Institutional Center,

where the victim was lodged, the victim testifed to suit the

prosecution. However, the victim stoutly denied the

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suggestions and asserted with courage and conviction that she

deposed to the events which transpired.

18. The challenge to the testimony of the victim 'M' (P.W.1) on

the count that, she being a child witness, the possibility of

tutoring can not be ruled out and thus there was an imperative

necessity of corroboration is required to be appreciated in the

light of the attendant circumstances.

19. As indicated above, the victim had come to reside with the

family of the accused, three months ago. At the time of

occurrence, the victim and the accused were the only

inhabitants of the house. On the evening of 26 th October, 2020

the victim was initially found in a scared state by the children

who were playing in the campus of the society. Nakshatra, the

daughter of Rajashree Suvarna (P.W.3), took the victim to the

house of the frst informant. The victim narrated the

exploitation at the hands of the accused to both Sonal Ghate

(P.W.2) and Rajashree Suvarna (P.W.3). The conduct on the

part of Sonal Ghate (P.W.2), the frst informant, to keep the

victim in her home till the matter was reported to police, in the

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circumstances of the case, appears natural and clearly

manifests sensitivity to the plight of a child victim. What is of

critical signifcance is the fact that the victim consistently

narrated exploitation at the hands of the accused before Sonal

Ghate (P.W.2), Rajashree Suvarna (P.W.3), the medical offcer,

the learned Magistrate, when her statement was recorded

under section 164 of the Code of Criminal Procedure, and the

Court. In the totality of the circumstances, the possibility of

tutoring is frmly ruled out. This inference is inescapable if the

multiple explanations which the accused endeavored to offer

for his alleged false implication are considered.

20. We have noticed that the main plank of the defence was

that at the instance of Komal Hake, who was in the

employment of Ayyaz Dafedar, the accused came to be

prosecuted. It was next suggested that the victim was fed up

with the accused taking her to spiritual healers ( Moulanas)

and shrines (Dargas) as it was believed that the victim was

under the control of evil spirit and thus the victim lodged the

report. Thirdly, it was contended that the caretakers of the

orphanage, where the victim was lodged, had threatened that

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they would not allow the victim to go to her parents unless she

deposed against the accused.

21. It does not stand to reason that the victim 'M' (P.W.1), a

11 year old girl, would play into the hands of an utter stranger

Komal Hake, a former employee of Ayyaz Dafedar. Nor it

appeals to human credulity that, within a short span of couple

of months, the victim would develop such an affnity with the

strangers, including the frst informant Sonal Ghate (P.W.2), as

to turn against the family which had patronized her. Even if the

defence is taken at par, we can not loose sight of the fact that

Komal Hake had a grudge against Ayyaz Dafedar, her former

employer, and thus the obvious target to wreck vengeance

would have been Ayyaz Dafedar. Viewed from any perceptive

the defence that the accused came to be falsely implicated at

the instance of Komal Hake appears too shallow.

22. Conversely, the attendant circumstances and

contemporaneous conduct of the accused militate against the

defence version. An 11 year old girl, uprooted from her family

and environment, was in the custody of the accused. The rest of

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the family members were out of the town. The situation was

tailor-made for an evil desired predator. It is not the case that

when the victim rescued herself and stayed overnight, in the

house of the frst informant, the accused made any effort to

ascertain the whereabouts of the victim. Admittedly, the victim

was undergoing some treatment. If such an 11 year old girl

leaves the house and does not return for a while, it was

expected of the person, who happened to be her custodian, to

be concerned about her safety and make an effort to trace her.

23. There is another factor which is of immense salience. The

forensic medical examination report of accused (Exhibit 17)

was admitted in evidence on behalf of the accused. It reveals

that the accused had stated before the medical offcer that, on

the day of incident, the victim came near him and started

rubbing his genitals. The latter remonstrated and slapped the

victim. In the light of such counter version, the inaction on the

part of the accused, when the victim left the home on the

evening of 26th October, 2014 and did not return even on the

next morning, is inexplicable and betrays complicity.

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24. The situation which thus obtains is that the evidence of

the victim (P.W.1), on its own, allures confdence. Furthermore,

the testimony of Sonal Ghate (P.W.2) and Rajashree Suvarna

(P.W.3) renders ample support. On the touchstone of the broad

probabilities, in the peculiar fact-situation, the aforesaid

attendant circumstances also lend necessary support to the

claim of the victim.

25. It is well settled that the victim of a sexual assault is not

an accomplice. Nor is it an immutable rule of law that the

testimony of a survivor cannot be acted without corroboration

in material particulars. A victim stands on higher pedestal

than an injured witness. The injury suffered by the victim is

physical, psychological and emotional. In a given case, if the

Court fnds it diffcult to accept the version of the prosecutrix,

on its own, the Court would be justifed in searching for

evidence, direct or circumstantial, which lends assurance to

her testimony. Such assurance, short of corroboration, is

suffcient.

26. A useful reference in this context, can be made to the

judgement of the Supreme Court in the case of Mohd Imran

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Khan vs. State Government (NCT of Delhi) 1 wherein the legal

position was postulated as under:

22. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfed that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

23. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may 1 (2011) 10 Supreme Court Cases 192.

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not be a serious infrmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191).

24. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

(emphasis supplied)

27. This propels us to the thrust of the submission on behalf of

the accused that the medical evidence belies the alleged sexual

exploitation at the hands of the accused. Inviting the attention

of the Court to the evidence of Dr. Meena Savjani (P.W.5), the

head of Gynecological Department and sexual assault cases,

Rajawadi Hospital, where the victim was medically examined,

it was vehemently urged by the learned counsel for the accused

that the medico-legal examination report (Exhibit 22) records

in black and white that there were no signs suggestive of use of

force and vaginal/anal intercourse. Laying emphasis on the

observations recorded post medico-legal examination of genital

parts and other orifces that there was no damage to external

genitalia, especially hymen, it was urged with tenacity that the

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case of alleged penetration is totally falsifed. In the

circumstances, the testimony of the victim 'M' (P.W. 1) is

unworthy of credence, urged Ms. Sayed, the learned counsel for

the accused.

28. Indeed, the medical examination report (Exhibit 22)

records that there were no signs suggestive of use of force and

vaginal/anal intercourse, nor any external injuries were

noticed on the person of the victim. Dr. Meena Savjani (P.W.5),

however, asserted that in cases where the victim does not offer

resistance, there may not be any injury. She further asserted

that in the case at hand penetration may not have been

completed. During the course of cross examination, Dr. Meena

Savjani (P.W.5) further clarifed that the injury may or may not

occur in the event a 11 year child is subjected to fngering. Dr.

Meena Savjani (P.W.5) replied in the affrmative, to a pointed

question, that it was a case of attempted sexual assault. She

further affrmed that there is no test to detect the instance of

fngering.

29. In addition the medical evidence, Ms. Sayed Ali banked

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upon the forensic laboratory reports which reveal that no

semen was detected on vulval swab, vaginal swab and vaginal

smear. Neither blood nor semen was detected on any of the

clothes of the victim, accused, and bed-sheet.

30. In the backdrop of the aforesaid nature of medical

evidence, the learned Special Judge was persuaded to hold that

there was no material to show that the victim was subjected to

penovaginal intercourse by the accused. However, there was

evidence to indicate that the accused committed penetrative

sexual assault by way of digital penetration and sexual assault

by touching and pressing breasts of the victim.

31. In our view, the aforesaid approach of the learned Special

Judge is justifable. The evidence can not be appreciated bereft

of the circumstances and context. The hapless and

unsuspecting victim found herself at the mercy of the accused,

with nobody else in the house. The claim of the victim that the

accused threatened her with dire consequences and subjected

her to sexual exploitation thus can not be discarded. The

omission, elicited in the cross examination of the victim, to the

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effect that she did not state before the police that the accused

had threatened her that he would arrange for four persons,

who would exploit her in identical fashion and, thereafter, kill

her, does not detract materialy from her testimony if viewed

through the prism of the circumstances.

32. The situation, age and condition of helplessness would

have forced the victim to resign to her fate. There is no

material to indicate, nor an endevour was made to elicit in the

cross examination of the victim 'M' (P.W.1), that the latter

offered resistance. In the absence of forcible resistance, the

absence of injury on the person of the victim is not suffcient to

discredit her evidence.

33. For the foregoing reasons, we do not fnd any infrmity in

the impugned judgment and order of conviction for the offences

punishable under sections 6 and 10 of the Pocso Act and

section 376 of the Penal Code.

34. Ms. Sayed Ali, the learned counsel for the appellant also

urged that the sentence of imprisonment for life errs on the

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side of severity, in the backdrop of the fnding that there was no

penovaginal penetration. Having regard to the age of the

accused, his situation in life and the circumstances of the case,

according to the learned counsel for the appellant, the sentence

of imprisonment for life for the offence punishable under

section 6 of the Pocso Act deserves to be interfered with. The

learned counsel for the appellant thus prayed for leniency.

35. In opposition to this, Ms. Shidne, learned A.P.P. stoutly

submitted that the accused does not deserve any leniency. The

accused has betrayed the trust and confdence reposed in him

not only by the victim but by his brother and sister-in-law, who

had left the victim with the accused. Accused had preyed a

child of 11 years and left a permanent scar on the mind of the

victim.

36. There can be no duality of opinion that the sexual assault

cases are required to be dealt with sternly and the offenders

deserve no leniency. The situation is exacerbated where the

protector turns predator. However, the principle of just desert

can not be lost sight of. The governing principle in the matter of

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punishment is its proportionality to the gravity of the offence.

37. In the case at hand, the fnding of the learned Special

Judge that there was no evidence of penovaginal penetration is

borne out by the evidence and material on record. The

evidence undoubtedly justifes the fnding of penetrative sexual

assault within the meaning of clause (b) of section 3 of the

Pocso Act, 2012. The act also falls within the dragnet of clause

(b) of section 375 of the Penal Code which defnes the offence of

rape, as substituted by the Criminal Law (Amendment) Act,

2013.

38. Having regard to the entire gamut of the circumstances,

in our view, a sentence of rigorous imprisonment for 10 years,

which is the minimum prescribed by section 6 of the Pocso Act,

would meet the ends of justice. We are, thus, inclined to modify

the sentence and allow the appeal to the aforesaid extent.

Hence, the following order:

ORDER

1] The Appeal stands partly allowed.

2] The impugned judgment of conviction for the offences

Vishal Parekar 24/25 apeal-845-2017.doc

punishable under section 6 and 10 of the Protection of Children

from Sexual Offences Act, 2012 and section 376(2) of the Penal

Code stands confrmed.

3] The sentence for the offence punishable under section 6 of

the Pocso Act, 2012 stands modifed as under:

(a) The impugned sentence for the offence punishable under

section 6 of the Pocso Act, 2012 stands set aside.

(b) Instead, the appellant/accused Fazal Mehmud Jilani

Dafedar is sentenced to suffer rigorous imprisonment for ten

(10) years and pay fne of Rs. 2,000/- and, in default of

payment of fne, the accused shall suffer further simple

imprisonment for three months.

4] Rest of the order stands confrmed.

(N.J.JAMADAR, J.) (SMT SADHANA S. JADHAV, J.)

Digitally signed by V. S. V. S. Parekar Parekar Date: 2020.11.26 16:28:14 +0530

Vishal Parekar 25/25

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