"Victim's Statement Inconsistent": Bombay High Court Acquits Man Convicted Under POCSO Act For Allegedly Raping A 7 Yr Old

Division bench of Justice SS Shinde and Justice MS Karnik were hearing a criminal appeal filed by 28-year-old Ali Muhammad Shaikh who was convicted under Sections 363, 366A, 326, 376 read with Sections 5 and 6 of the Protection of Children From Sexual Offences Act by a Sepcial POCSO Judge at Dindoshi and sentenced to life imprisonment.

Case Background

According to the prosecution, at around 11 pm on August 20, 2014, the victim aged 6 to 7 years, her mother, her 4 year old brother and grandmother were sleeping on the platform near Kala Hanuman Mandir, MG Road at Kandivali (West). The victim and her mother were awake till 2:30 am. Thereafter they fell asleep. In the morning at around 6 am, when the victim's mother woke up she realised that the victim was not in her bed. She went in search of her daughter and found her crying in a nearby lane. The victim's grandmother was by her side. She noticed a broom inside the private part of the victim and the victim was bleeding.

The police came to the hospital and registered a case against the unknown person. According to the victim's mother, who is also the first informant, one person by the name of Anand was eyeing her and her daughter with some 'ill intention'. The informant suspected him to be the perpetrator. The police searched for the person in the light of information disclosed by the informant and they nabbed the appellant Ali Mohammed Shaikh. The informant told the police that he is the same person who was eyeing them with ill intention and that he was the one who took the victim to a lonely place and sexually abused her.

The charges were framed against the appellant thereafter and the appellant claimed that he is being framed in the said case and sought to be tried. The prosecution examined as many as 11 witnesses and relied upon as many as 30 documents in support of its case. Following which the Special Judge convicted the appellant.

Judgment

Advocate Tanveer Khan appeared on behalf of the appellant and submitted that the Special Judge committed an error in convicting the appellant as possibility of false implication cannot be ruled out. It would be unsafe to convict the accused as the prosecution has failed to prove the involvement of the accused beyond all reasonable doubt, Adv Khan said.

On the other hand, Additional Public Prosecutor FR Shaikh submitted that it is the accused who is responsible for the commission of offence alleged. The evidence on record supports the case that the accused has committed the offence beyond all reasonable doubt. Pointing out the findings recorded by the trial Court, APP Shaikh submitted that the said findings are based on a correct appreciation of evidence on record and therefore do not call for any interference.

In cross examination the victim deposed that prior to the date of incident, she never saw the person who committed the act. She further says that it is not true that since the day of sexual assault by her perpetrator, there was no occasion for her to see him again. She deposed that her perpetrator was coming to meet her father. She further says that she knows him very well. She denied that before deposing in the Court, the police and her teacher tutored her.

Moreover, Adv Khan relied upon the decision of the Supreme Court in the case of Raja Vs. State by the Inspector of Police to contend that mere dock identification is no identification in the eye of the law unless corroborated by previous Test Identification Parade before the Magistrate. According to him failure to hold the test identification parade is fatal to the prosecution case.

Court refused to accept Adv Khan's contention and observed-

"In our opinion, in the present case, failure to hold the test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification by P.W.5- victim is undoubtedly a matter for the Courts of fact. However, the Court has to be satisfied that the evidence can be safely relied upon even in the absence of test identification parade. Test identification parades do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. It is trite that substantive evidence is the evidence of identification in Court. We find from the evidence of P.W.5 that she deposed 'accused is a friend of her father'. The accused being known to the victim, probably, could be the reason for not holding the test identification parade."

On the date of the incident, the victim was 6 to 7 years of age. The victim's mother, the first informant stated that she knew the accused as 'Anand'. She suspected him to be the perpetrator as he was trying to talk to her and followed her. It is during the course of her cross examination that she identified the accused as 'Ali'.

Referring to the inconsistencies in the victim's statement regarding identity of the perpetrator, the bench noted-

"The testimony of the victim so far as the identity of the accused is concerned, appears to be inconsistent. When the evidence of the P.W.5 was recorded in the Chamber of the learned Judge, the appellant was shown to her and she identified him in the Court saying that he is a friend of her father. The victim then deposed that she did not see the person prior to the date of offence committed on her, but then goes on to say that he used to meet her father and that she knew him well. It is in her evidence that she had an occasion to see the appellant again since the day she was assaulted. Considering these inconsistencies in her evidence, the version of the victim has to be scrutinized carefully."

Finally, Court said-

"Considering the material inconsistencies brought on record by the defence during the cross examination of PW 5, regarding the identity of the perpetrator, it will be unsafe to rely on her sole testimony as the possibility of tutoring cannot be ruled out."

Allowing the appeal, the bench said the medical evidence in the case though firmly establishes the brutality of the assault, but the forensic reports do not support the prosecution case that appellant is the perpetrator. Court said-

"We find it unsafe to convict the accused only on the basis of the testimony of P.W.5 without there being a further corroboration to her testimony showing the complicity of the accused. It is therefore not possible for us to uphold the conviction of the appellant rendered by the trial Court. The appeal therefore deserves to be allowed."