Zidan@Mohammad Sharukh Mohammad Rafiq Shaikh v. The State Of Maharashtra And ANR.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION INTERIM APPLICATION NO.362 OF 2021 IN CRIMINAL APPEAL NO.109 OF 2021 Digitally signed by MEGHA S PARAB Date:

2021.11.24 13:56:29 +0530 MEGHA S PARAB Zidan @ Mohammad Sharukh Mohammad Rafi Shaikh ...Applicant

Versus

The State of Maharashtra and Anr.

...Respondents

....

Ms Jyoti R. Salve for the Applicant.

Mr. S.V. Gavand, APP for Respondent No.1-State. Ms Ameeta Kuttikrishnan for Respondent No.2.

CORAM : SMT. ANUJA PRABHUDESSAI, J.

DATED: 18th NOVEMBER, 2021.

P.C.:- This is an application under Section 389 of the Code of Criminal Procedure, 1973 for suspension of substantive sentence imposed by judgment dated 07/02/2020 passed by the learned Special Judge, POCSO Act, Greater Bombay in POCSO Special Case No.166 of 2017 and for release of the Applicant on bail. 2.

By the impugned judgment the learned Judge held the Applicant guilty of ofences under Sections 363 and 376 of the IPC and Sections 4 and 6 of the Protection of Children from Sexual Ofences Act, 2012 (POCSO Act). He has been sentenced to undergo rigorous 1/5

imprisonment for 10 years with fne of Rs.10,000/- i/d. rigorous imprisonment for three months for ofence punishable under Section 6 of the POCSO Act, rigorous imprisonment for 7 years with fne of 7,000/- i/d. rigorous imprisonment for two months for ofence under Section 4 of the POCSO Act, rigorous imprisonment for 5 years with fne of Rs.5,000/- i/d. to sufer further rigorous imprisonment for one month for ofence under Section of 363 of the IPC. No separate sentence has been imposed in respect of ofence under Section 376 of the IPC in view of the provisions of Section 42 of the POCSO Act. 3.

The case of the prosecution in brief is that the victim, who was about 16 years of age at the time of the incident was aciuainted with the Applicant. On 22/06/2016 she had called the Applicant. The Applicant had told her that he was indisposed and asked her to visit him. On 23/06/2016 after her father dropped her to school, instead of going to school she went to meet the Applicant. It is stated that the Applicant took her to a secluded place at Bandra Band Stand and had sexual intercourse with her against her wish. She was in the company of the Applicant till 26/06/2016. On the said date at about 10.00 p.m. the Applicant had brought her outside GTB Nagar Police Station. Father of the victim found her near the railway station, took her at home and later lodged the FIR.

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4.

The evidence of PW1 indicates that date of birth of the victim was 29/01/2001. He has produced the birth certifcate, a perusal of which prima facie substantiates that victim was born on 29/01/2001 and hence as on the date of the incident she was below 18 years of age and a child within the meaning of Section 2(d) of the POCSO Act. 5.

Ms Jyoti Salve, learned counsel for the Applicant states that the Applicant has disputed the said birth certifcate. She states that the birth certifcate indicates that the father of the victim was one Devidas whereas in the evidence before the Court, PW2 has stated his name as Devdas. She states that the discrepancy in the name casts a doubt on the genuineness of the certifcate. She further states that prosecution has not examined the person issuing the said certifcate. The prosecution has not produced school leaving certifcate and has also not adduced medical evidence to prove the age of the victim. 6.

A perusal of the evidence of PW1 and PW2 reveals that the Applicant had neither challenged the date of birth of the victim nor challenged the genuineness of the birth certifcate. Moreover, the birth certifcate records the name of the victim as well as the names of her parents as Devidas Birappa Salian and Netravati. The only discrepancy 3/5

pointed out by learned counsel for the Applicant is in spelling the name of the father as Devidas instead of Devdas. This minor discrepancy or the error in spelling the name can hardly be a ground to discard this certifcate, when all other details clearly indicate that the birth certifcate relates to the victim. The said birth certifcate being an entry made by a public servant in the course of his public duty is presumed to be correct and conclusive evidence unless disproved. Since the birth certifcate is a public document, it is not necessary to examine the person who made the entry or the person who issued the certifcate. It is admissible without further proof and prevails over an entry in the school register or medical evidence.

7.

The evidence on record prima facie reveals that the victim was a minor and a child within the meaning of Section 2(d) of the POCSO Act. The evidence of the victim prima facie proves that the Applicant had subjected her to penetrative sexual assault. The medical evidence also supports the case of the victim. Though the material on record prima facie indicates that the act was consensual, the victim was a minor hence her consent is immaterial.

8.

Learned counsel for the Applicant contends that the Applicant is entitled for bail on medical grounds. No such grounds are 4/5

raised in the application and no particulars of health issues have been specifed. Under the circumstances, the Applicant is not entitled for bail on medical grounds.

9.

Considering the nature of accusations and the material in support thereof, in my considered view this is not a ft case for suspension of substantive sentence and enlargement of the Applicant on bail. Hence, the application is dismissed. (SMT. ANUJA PRABHUDESSAI, J.) 5/5