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Bombay HC: Attempt to Kidnap and Outrage Modesty of a Minor Child Proves Must Be Proven Beyond Reasonable Doubt

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The criminal appeal no.249 of 2020 is filed by accused no.1 and 2 and other criminal appeal no.252 of 2020 is filed by accused no.3 against order of Special Judge for charging accused for offence punishable under Section 354-A , 363, 511 read with 34 of IPC and Section 8 of  POCSO Act, 2012.

Brief Facts 

The FIR was registered on 26-01-2016 on the statement of facts that the prosecutrix (informant) was aged 16 years, on the occasion of Republic Day she along with her cousin sister got ready for their school at 6.30 am for Flag Hoisting. While on their way to school from a distance of 200 metres, they acknowledged one white Indica car by the side of the road.

Subsequently, accused 1 and 3 get down the car. The accused 1 and 3 got hold of the prosecutrix and her cousin sister and dragged them inside the car. While both were shouting and resisting, school teachers and other students came outside hearing the voice of the informant.

Thereafter,  accused no.1 and 3 shouted to Sachin (accused no.2) that he must start the car and thereafter, both accused no.1 and 3 got into the car and went speedily to Talkhed village. The informant lodged FIR and investigation initiated with such effect.

The statements of the witness were recorded by police under Section 164. All accused were arrested and a charge sheet was filed for the commission of offence along with recording of their statement under Section 313 of Cr.P.C. 

The Special Judge has convicted accused no 1. and 3 for the offence charged under Section 354-A, 363, 511 r/w 34 of IPC and Section 8 of POCSO Act but accused no.2 was acquitted with charges under Section 354-A and Section 8 of POCSO Act.

Appellant’s Arguments 

The counsel argued before the court that even though the informant has stated 16 years of age in the FIR, such fact is not proven by the prosecution. The informant witness stated the age of informant and not the date of birth during cross examination.

Moreover, while informant statements were recorded under Section 161 and Section 164, she did not provide her date of birth leading to omission. In addition to this, when she was asked during cross examination to answer omission of stating date of birth, she preferred to not assign any reasons for such material omission.

The school records mentioning her birth date neither provided original source of information nor document i.e. exhibit 71 and 72  produced an original birth certificate or corroborating document supporting the relevant facts of the case.

Therefore, in the defect of production of evidence for ascertaining the actual date of birth of the informant, the informant not deserved to be called “child” within the definition of POCSO Act.

The counsel taking the reference of various cases came up to the conclusion that priority and authenticity should be given to school records and in defect of such reliance, the age of the prosecutrix cannot be said as proven or the minority is not proven. Therefore, presumption under Section 29 of POCSO Act will not arise.

The counsel pleads that the PW.4 Tulshiram Sakharam Khote, deemed as eye witness was never at first place, saw the accused in his capacity but instead not know about the accused. The P.W.4 witness came to know from P.W 7 Sikandar Kishanrao Shejul who is the relative of the informant and thus acted in favour of prosecution.

P.W.8  Balaji Anantrao More, principal of the informant school was not appointed when the informant took the admission in the school, therefore, the exhibits 71 and 72 were not made by him nor on his knowledge. In addition to this, medical examination was not conducted under Section 27 of POCSO Act; test of identification parade was not conducted as per Section 54-A of Cr.P.C.

Therefore, on such material default in the legal procedure, it cannot be considered that offence charged against accused no.1 and 3 stands valid beyond reasonable doubt.  

Furthermore, the accused no.1 aged 23 years was released on bail during trial but after conviction order, he is in judicial custody for 107 days, on other hand, accused no.3 aged 22 years was also released on bail at time of trial but remained in jail for 96 days.

They surrender before trial court when it refuses to suspend the sentence. The counsel submits before the court that accused persons are not habitual offenders, the sentence be reduced to punishment already undergone.  

The counsel pleads before the court that evidence presented by prosecution provided that the informant had not seen the accused but only heard the pronouncement of the name as Sachin and not the entire name as they were starting the car in order to escape the disputed place.

The complication continues when in FIR which requires the surname of the accused was missing in case of accused no.2. There was no test of identification parade and even the informant or other witness did not identify accused no.2.

Therefore, on the mere hearing of one word named Sachin, suspicion arised which does not have any relevant proof for corroborating such accusation and thereafter being in jail for 96 days, he must be entitled for reduction of sentence to imprisonment already undergone by accused no.2.

Respondent’s Argument 

The counsel submits before the court that leading from prosecution witness, there is no dispute raised by accused persons regarding date, place and incident.

He proceeded with P.W. 4 Tulshiram Khote, principal of the school even though not know about the name of accused but instead get to know from P.W.7 Sikander and thereafter Sikander was examined who states that his son also goes to the same school and therefore his presence near school premises was evidently natural.

The number of the car was also received during the time of seizing in the presence of P.W.6 Yunus Kabirkhan Pathan. For proving the actual date of birth of the informant, documents/records of primary school were produced and therefore exhibit 71 and 72 are sufficiently proven in support of school records.

The informant falls in the category of child within the definition of POCSO Act, 2012 and on such basis, entitled for the presumption under Section 29 of POCSO Act beside no other defence is proven by appellant except denial of the stated facts.

In lieu of attempting to kidnap the minor girls, they must be liable for full punishment and there is no necessity to reduce the sentence.

Furthermore, the statement of P.W 1 and P.W.3 (victims) are in consistent and supporting to the their testimony beside all prosecution witness named P.W.4, P.W.7 as eye witness approved the facts stated above, thus, all prosecution witness’s statement are corroborating to each other.

The initial part of victims in going school and dragged by accused no.1 and 3 along with their shouting and resisting was unknown by witness P.W.4 and P.W.7 as they could not witness the same but only after shouting was heard by them.

There was no enmity between the family of victims and family of accused persons, therefore allegation on malicious and dishonest intent on part of victims or P.W.2, father of P.W.1 (informant) to falsely charge the accused with the offence stands unreasonable and unjustified.

P.W 1 and P.W.2 denied the allegation that P.W.1 has love affairs with a boy of their village and her parents were of impression that such rumour is spread by accused no.1, therefore she was pressurized  by her parents to lodge the FIR as stated by accused under Section 313 of Cr.P.C.

There was also no enmity between accused persons and P.W.4 and P.W.7. It is clearly evident that the presence of P.W.4 being headmaster of the school on the occasion of Republic Day is natural and his statement cannot be deemed as unjustified as he has given the number of the car.

Moreover, presence of P.W.7 was also natural as his son studied there and even though he does not know the accused no.2 does not proen ideved absence of accused no.2 on the spot beside P.W.9 Suresh Chate, the Investigating Officer, did not perform the test of identification parade shows the failure of his part but that does not give any benefit to accused persons.

The identification of the accused was conducted by showing the photograph of the accused which would be allowed. Therefore, even the identification parade would not have proven to be advantageous as no witness had known the accused persons earlier.

The P.W.2 i.e. father of P.W.1 supporting the statement of FIR was not present at the place of the incident can be considered as hearsay evidence.

Nothing was seized from the incident except one white Indica car in the presence of P.W.6 Yunus Pathan. The Panchanama was attested by eyewitnesses proves to be sufficient and would be admissible.

Court’s Observation

Observation on age of victims through evaluation through evaluation of witness and documents produced

The court was of the opinion that the prosecution statements were proved beyond reasonable doubt and also the prosecution witnesses are reliable and trustworthy.

Upon the authenticity of the age of P.W.1 and P.W.3, P.W.1 has given her date of birth in her testimony but does not mention such information on FIR and Section 164 of Cr.P.C but otherwise provided her age in FIR and Section 164 along with she stated her birth date in front of examination in chief.

Therefore, such improvements are not material root cause for not believing in her age at the time of incident Furthermore, prosecution has proven the age of the prosecutrix independently. The same case falls for P.W.3(cousin sister). The documents show that she has given her age.

It is well settled that the prosecution had examined P.W.5 Dattatraya Walaskar, headmaster when the incident happened. He has produced certificates at Exhibits 69 and 70 and extract of school records Exhibits 71 and 72 which was later presented under Section 173(8) of Cr.P.C. Such documents act in consistency with the testimony given by them in front of their respective examination in chief. 

Prosecution examined P.W.8 Balaji More released documents from exhibit 82 and 83 presented the birth date of P.W.1 as on 21.06.2000 and birth date of P.W.2 as on 15.03.2002. During cross examination of the witness, it was revealed that he has not made the entries in the register and also not mentioned on what basis of documents, the birth dates are recorded.

Even though Law does not require the person to be searched who has made the entry but when the document comes from proper custody and well explained by a witness, it doesn’t require proving the same.

It was noted that in column 20 of school register, the signature of school headmaster was mentioned but extract does not have signature may be because the extract would have been created later and therefore cannot entail the signature. Therefore, the primary documents have been proven by the prosecution.

The court placing reliance upon the decision of Ravinder Singh Gorkhi v. State of U.P., reported in 2006 (5) SCC 584 and Madan Mohan Singh and Ors. v. Rajni Kant and Anr., reported in 2010 AIR SCW 4932, declared that if the extract of school register is produced in accordance with examination of person who issued along with original register coming from proper custody then in such case, document can be considered as valid evidence for date of birth.

The proof of primary document i.e register is sufficient which has been produced in this case. The court referred to the apex court judgment Jarnail Singh v. State Of Haryana, reported in (2013) 7 SCC 263, held that determination of the age of prosecutrix , rules of Juvenile Justice must be the basis for identification of age at the time of the incident.

Looking forward to such declaration, the court under Section 94 of Juvenile Justice “Care and Protection of Children” Act, 2015, delclares that primary importance must be given school certificate or matriculation certificate and in absence of the same to birth certificate issued by the Corporation or the Municipal Authorities or by Panchayat and further on such absence to medical examination. 

Court’s Decision

Ruling on the age of the prosecutrix and sentences of conviction

Taking into consideration the facts and evidence of this case, it can be concluded that the trial court was justified in considering the victim as a child within the definition of POCSO Act.

Therefore, the court in this case held that the prosecutrix was a child under Section 2(d) of POCSO Act, 2012. 

It was concluded by this court that facts and circumstances of the case proves that accused no.1 and 3 attempted to kidnap the victims and while dragging them, they outraged the modesty of the victim and committed the offence under Sec Section 354-A, 363, 511 read with 34 of the Indian Penal Code and along side accused no.2 is charged with attempt to kidnap. 

Holding the hands of the victims by accused no.1 and 3 with the intention of sexual harassment amount to offence under Section 8 of POCSO Act under which ingredients were proved, therefore the presumption under Section 29 of POCSO Act would arise which is the offence under Section 7 of POCSO Act.

Accused no. 1 to 3 were rightly convicted under Section 363, 511 read with 34 of the Indian Penal Code and trial court independently convicted accused no.1 and 3 under Section 354-A of IPC and Section 8 of POCSO Act. 

The provision under Section 354-A states the punishment awarded for the offence which is greater in degree. Therefore, punishment under Section 8 of POCSO Act must be sufficiently greater enough to be awarded without the necessity of section 354-A of IPC.

The Trial Court would have awarded sentence under section 8 of POCSO Act and not separately for the offence punishable under section 354-A of IPC with respect to Section 42 of POCSO Act.

Therefore, appeal deserves to be dismissed as awarding separate sentence for offence punishable under Section 354-A of IPC and punishment sustained under this section need to be quashed and set aside.  

Ruling on perversity of the decision of the special judge

This court does not find any error or authenticity in the decision of the Special Judge for convicting the accused persons for commission of the offence. The learned Advocate for appellant has failed to find perversity of the decision of Special Judge.

However, the basic principle was held by Hon’ble Supreme Court in Govindaraju alias Govinda v. State by Sriramapuram P.S. & Anr., reported in (2012) 4 SCC 722, the person is innocent until proven guilty and unless not guilty of criminal charge, he could avail the benefit of doubt.

The perversity of the decision should be ascertained in finding recorded by the court either by law or appreciation of evidence. Therefore, even if two views can be found from the same facts of the case, the court must not interfere with the view undertaken by the Trial Court unless there is perversity. Thus, the court found no merit of the present appeal.  

Ruling on reducing the quantum of sentence to already undergone

It is stated that the accused no.1 has been in jail since 107 days, accused no.2 in jail since 96 days and accused no.2 surrendered on 01.07.2020 and remained in jail from such date. It is declared by this court that offence under Section 363, 511 read with 34 of the Indian Penal.

Code has been proved along with Section 8 of POCSO Act to protect minor child from sexual harassment.

The Supreme Court in the case of Sham Sunder v. Puran and Anr., reported in (1990) 4 SCC 731, held that while determining the quantum of punishment, emphasis must be given to the nature of the offence, circumstances in which it was committed and degree of commission of the offence. The punishment must be in proportion to the gravity of the offence.

What needs to be emphasized is on the manner and conduct of the offenders at the time of incident as provided that accused no.1 and 3 tried to kidnap the girls from 200 m distance away from school on Republic Day and accused no.2 assisted co-accused being in the driving seat of the car from which girls were to be kidnapped.

Therefore, the sentence awarded by the Trial Court was adequate and proportionate to the crime proved beyond reasonable doubt which does not require any reduction of any kind.  

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