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An appeal was filed before the High Court against judgment which came up before the bench of Justice SS Jadhav. The 20-page judgment was pronounced in January but uploaded recently on the high court website.
The Bombay High Court has refused relief to Petitioner (Khalil Shaikh, a 25-year-old man from Bandra, Mumbai) who was convicted by a designated court under the Protection of Children from Sexual Offences (POCSO) Act, 2012 under Sections 323, 377 of IPC and sentenced to suffer imprisonment for one year and 10 years, respectively. Shaikh was also convicted under Section 6 of the POCSO Act, 2012 and sentenced to suffer rigorous imprisonment for 10 years. The court directed Shaikh to pay Rs. 10,000 as compensation to the victim of the offence in the said judgment dated February 27, 2014.
According to the prosecution, the facts were, on February 14, 2013, when Sujit Mone was on patrolling duty, he received a call from the Nirmal Nagar police station informing him that some suspicious persons had entered the terrace of a building in Railway Colony. When Mone went to the terrace of the said building along with other police personnel, they saw that the victim (child) nude, crying and shouting while the accused was performing an unnatural act with the boy abusing him. The accused was taken in custody thereafter. The court noted that the victim had stated before the trial court that he was 16-year-old and was brought up by his grandparents as his parents have passed away. He further stated that he was on a trip to Mumbai along with his grandparents. This is where the accused lured him with some money and took him to the nearby building and performed carnal unnatural intercourse with him. The defence has failed to create any dent in his evidence as stated in the examination-in-chief. The victim was 15 years old. The investigating officer in the case did not prepare the spot panchnama, neither did she take statements of residents of the said building in question. The incident in question is undisputed. It is an essence of criminal jurisprudence that an accused is presumed to be innocent until he is convicted.
In several cases, benefit of doubt is extended to the accused, however, time has come to protect the interest of the victims as well. When the state agencies failed in their duties to establish the case against the accused, beyond reasonable doubt, that too by keeping certain lacunae either in the investigation or at the time of trial, the onus would be upon the courts to see that the justice is done to the victim as well." Thus, the court rejected prayer by the appellant accused's lawyer to set aside conviction of the accused under the POCSO Act on the ground that the prosecution failed to produce a birth certificate of the victim. Instead, the court decided to uphold the conviction under Section 6 of the POCSO Act and the 10- year sentence. The accused is spending his punishment in jail.
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