KALAMUDDIN MOHAMMAD ISTEYAR ANSARI @ KOAILversusSTATE OF MAHARASHTRA AND ANR.

                                                      27.APEAL 315-2023.doc



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL APPEAL NO.315OF 2023
                                      WITH
                       INTERIM APPLICATION NO.2823 OF 2025

Kalamuddin Mohammad Isteyar Ansari
alias Koail
Aged : 27 Years, Hill No.3, Kholi No.3,
Near Gati Masjid, Himalaya Society,
Ghatkopar (East), Mumbai                         … Appellant

        V/s.

1. State of Maharashtra
Ghatkopar Police Station,
Mumbai CR No.613/2016

2. XYZ
Hill No.3, Kholi No.3, Near Gati
Masjid, Himalaya Society,
Ghatkopar (East), Mumbai                         … Respondents


                               ------
Mr. O.P. Lalwani a/w Ms. Kunda Gaikwad, Mr. Gypson John, Mr. Suraj
Kunchikorve and Ms. Riya John i/b Mr. Rajesh Sakhare, Advocates for
the Appellant.

Mrs. Kranti Hiwrale, A.P.P. for Respondent No.1-State.

Ms. Shraddha Sawant, Appointed Advocate for Respondent No.2.
                               ------


                           CORAM     : SARANG V. KOTWAL &
                                       SANDESH D. PATIL, JJ.

                          DATE      : 2nd FEBRUARY 2026



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Oral Judgment (Per Sandesh D. Patil, J.)


1)      By the present Appeal, the Appellant has challenged the Judgment

and Order dated 7th December 2020, passed by the learned Special

Judge, under the Protection of Children from the Sexual Offences Act,

2012, at Greater Bombay, in POCSO Special Case No.120 of 2017,

whereby the Appellant was convicted for the offence punishable under

Section 6 of the Protection of Children from Sexual Offences Act, 2012

(in short “POCSO Act”), and was sentenced to suffer imprisonment for

life and to pay a fine of Rs.1000/-, and in default of payment of fine, he

was to undergo simple imprisonment for one month.           The Appellant

was, however, acquitted for the offence punishable under Section 10 of

the POCSO Act.         The Appellant was not separately sentenced for

commission of offence punishable under Section 376 of the Indian Penal

Code, in view of the Section 42 of the POCSO Act. The Appellant was

also to pay compensation of Rs.25,000/- under Section 33(8) of the

POCSO Act, within a month from the date of the impugned Order, and

in default of payment of compensation, he was to undergo imprisonment

of six months.




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2)      The case of the Prosecution is that on 9th December 2016, the

daughter of the Complainant, who was four years old, was residing with

her parents and siblings. It is further the case of the Prosecution that the

mother used to fill water from the tap of the neighbor-Farooq. He used

to give water first to one of the Complainant’s neighbor, namely, Saira

and thereafter, the water used to be given to the Complainant. It is the

case of the Prosecution that the Complainant used to fill the water from

the pipe of her neighbor-Saira. When she was called to fill the water, at

that time, she sent her daughter with a pot. The daughter went along

with the pot to her neighbor’s house. At that time, the Accused was

present at home. He called the daughter inside the house. It is the

prosecution case that he forced the victim to take his private part in her

mouth. The victim came frightened at home and told the Complainant.

When the complainant confronted the Accused about the same, he ran

away.




3)           The charge was framed and the evidence was led.                    The

Prosecution has examined 14 witnesses. The Prosecution has examined

P.W.1 as the victim. Since she was eight years of age at the time of her

examination, the Court had first asked her about the sanctity of the oath.
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The Court was convinced that she understood the sanctity of the oath

and therefore, the oath was administered to her. She stated in her

evidence, about the details of her family. She stated that her mother

used to fill water through the pipe from her neighbor’s house. The

victim further stated that the mother asked her to bring a pot from the

neighbor’s house, when she went there, the accused was in that home.

At that time, the Accused had inserted his private part in her mouth. She

further stated that she narrated the said fact to her mother and her

mother told this fact to her father. After her father came, they went to

lodge a report with the Police Station. She further stated that she was

taken to the doctor at Rajawadi Hospital.           She had also given the

statement in the Court. She had identified the Accused.


                 In her cross examination, she stated that she used to reside

near Lalubhai’s house. She stated that her father was doing colouring,

masonry work. She stated that she went to bring the pipe from the

neighbor-Saira’s house.       She further stated that the neighbor used to

wash clothes in front of their house. She had also stated they all used to

wash clothes in front of their house. She stated that, at that time, when

the incident happened, she was five years old. She stated that the said

house of her neighbor where the incident took place, was about two

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houses away from her house. She was specifically asked as to whether

she was tutored. To this particular question, she replied that she was

knowing the facts. She was also asked a question as to whether she was

asked to tell all these facts in the Court, to which she specifically replied

negatively and stated that she was already knowing these facts.




4)      The Prosecution examined P.W. 2, her mother, who stated that she

used to fill water from the house of her neighbor- Farooq.                It was

Farooq’s tap. He used to give water first to her neighbor Saira.

Thereafter, P.W-2 used to fill water from the pipe of Saira. She stated

that on that relevant day, somebody asked her to fill water and hence,

she sent her daughter with a pot.      She went to Saira’s house. At that

time, the Accused, who was the nephew of Saira was present there. He

called the victim inside the house. The victim came home frightened and

narrated to her mother (P.W.2) that the Accused had inserted his private

part in her mouth. She stated that she told this fact to her husband. They,

thereafter, lodged the complaint against the Accused. The complaint was

marked and exhibited through her at Exhibit 26. The victim was sent for

medical examination. She handed over the clothes of her daughter to

the police. She also handed over the copy of the birth certificate of the
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victim to the police, the same was marked at Exhibit 27.


                 In her cross-examination, she stated that the house of Saira

was adjacent to her house. It was a chawl, comprising of six to seven

families. They all were residing in the rented premises. She stated that

her daughter-victim was four years old. She stated that the Accused had

told her that he had given the bottle in the mouth of the victim.

However, she forgot to mention the same in her report. She denied that

there was any quarrel between her and her neighbor- Saira, and

therefore, she had lodged a false report.




5)      The Prosecution examined P.W. 3- A.P.I. Nandini Bansode. She

stated that on 10th December 2016, she recorded the statement of the

informant (P.W.2). She also recorded the statement of the victim, who

was four years as per her say.


                 In the cross-examination, she stated, she recorded the

statement at 01.00 a.m. and that the victim had come to the Police

Station at 00:40 hours.




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6)      The Prosecution examined, P.W.4, who is the father of the victim.

He stated that Saira was his neighbor. He stated that he used to take

water from Farooq.             He stated that the water was taken through the

water pipe.            He also stated that Saira also used to take water from

Farooq bhai. He stated that when he came back from work, he came to

know through his wife that the Accused had inserted his private part in

the mouth of the victim. He stated that the victim went with a pot to

bring water. When she went to bring the water pipe from Saira’s house,

nobody was present, except the Accused. The wife of P.W.4 sent the

victim with a pot to take the pipe. When the victim went there, she came

back crying and she narrated the incident to his wife. Thereafter, they

lodged the F.I.R.


        In the cross-exmination, he stated that Saira was his neighbor. He

and Saira used to take the water from Farooq bhai’s tap. He stated that

their houses were adjacent to each other. He stated that Saira was not

the owner of the pipe. She was their neighbor since last four years. He

stated that he could not tell the time, when his wife went to the Accused

to ask him about the incident. He stated that they went to the police

station at about 10.00 p.m. to 10.30 p.m.



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7)      The Prosecution examined P.W. 5-Dinesh Bodake, who was the

Investigating Officer. The said witness stated that he was attached to

Ghatkopar Police Station and he was on night duty on 10 th December

2016. At about 00:40 hours, P.W. 2-the Complainant came along with

her husband and the victim. She reported that her daughter was sexually

assaulted by the Appellant. WPSI-Nandini Bansode (P.W.3) had recorded

the statement of the Complainant.        The crime was registered under

Section 377 of IPC, read with Sections 4, 12 of the POCSO Act. He

stated that the WPSI-Nandini Bansode (P.W.3) recorded the statement of

the victim in question and answer form. He stated that he had visited

the spot and conducted the spot panchnama, which was exhibited by

him and marked at Exhibit 37.          He further stated that the birth

certificate of the victim was tendered by her father. Her birth date is 25 th

July 2012. He stated that Accused was arrested. The arrest panchnama

was marked at Exhibit 38.


        In his cross examination, he stated that he had asked about the

descriptions of the pot and the pipe. He stated that such descriptions are

not given in the F.I.R. He stated that he had not recorded the statement

of Farooq bhai, who supplied the water. He further stated that he had

not recorded the statement of any independent witnesses seeing the

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victim and the Accused on the spot. He stated he had not recorded the

statement from any witness from the neighborhood to conclude that the

Accused- Koil, Koyal Kalamudin and Koi Bhaiya are one and the same

person.




8)      After hearing the parties, the learned Trial Court held that the

Prosecution proved that on 9th December, 2016, the Accused had

committed rape upon the victim, aged five years, by forcefully inserting

his private part in the mouth of the victim, thereby, committing offence

punishable under Section 376 of the I.P.C.     The learned Trial Court

further held that the Prosecution had proved that the Accused had

committed aggravated penetrative sexual assault upon the victim,

thereby committing offence punishable under Section 6 of the POSCO

Act. The learned Sessions Judge had observed that the evidence of the

victim was reliable and the defence could not shake the evidence. The

learned Trial Court for the reasons recorded in detail, in the Judgment

and Order dated 7th December 2020 passed the impugned judgment and

order.




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9)      We have heard the learned Counsel Mr. O. P. Lalwani for the

Appellant, Mrs. Kranti Hiwrale, A.P.P for the Respondent No.1-State

and Ms. Shraddha Sawant, Appointed Advocate for the Respondent

No.2. We have also perused the depositions of the parties as well as the

impugned Judgment and Order along with the Exhibits.




10)       The learned Counsel Mr. Lalwani appearing for the Appellant

submitted that there is a difference in version in the time of Complainant

approaching the Police Station. He submitted that P.W. 2 stated that she

along with her husband and daughter reached the Police Station at 10.00

p.m. The husband, P.W.4, however, stated that they reached to the

Police Station at 10:30 p.m. He further submitted that P.W.5 has stated

that the Complainant had reached the Police Station at 00:40 hours.

Therefore, there are different versions of narration as to when the F.I.R.

was lodged. He submitted that the seizure panchnama of clothes, was

exhibited.        However, the panch witnesses, were not examined.            He

submitted that the doctor was also not examined. He further submitted

that none of the independent witnesses from the locality were examined.

He submitted that the Prosecution could not prove the case beyond

reasonable doubt and hence, he submitted that the Appeal be allowed.
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11)     The learned A.P.P as well as the learned Counsel appearing for the

victim and for the respondent No.2, both submitted that the victim had

immediately informed the incident to her mother. They submitted that

the mother had immediately confronted the Accused. They immediately,

thereafter, brought this incident to the notice of the victim’s father and

all of them immediately went to the Police Station. They submitted that

there is no reason why a young girl of 5 years, would make a false

statement.             They submitted that the evidence of the Accused was

trustworthy and that the evidence was not at all shaken in the cross

examination. They submitted that it was not necessary to examine the

panch witnesses, as nothing turned much on the spot panchnama. Both

prayed for dismissing the Appeal.




12)     We have heard the parties appearing for both the sides.              After

perusing the documents and evidence on record, as well as the impugned

Judgment and Order, it would be material to consider the evidence of

P.W.1. P.W. 1 had narrated the incident with clarity. She had stated as to

how the Accused had committed the act. She stated that when she had

told the fact to her mother and others, they all had gone to the Police

Station to lodge the Complaint. She had narrated the entire incident. In
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cross examination, the      credibility of the witness was sought to be

shaken. However, nothing has turned out in the cross-examination in

favour of the accused. The specific question was asked to her, whether

she was taught, as to what she has to say in the Court, to which, she

answered in negative and stated that she was knowing all these facts.

Thereafter, she also identified the Accused. The mother of the victim

had also corroborated the incident and immediately after the incident

had taken place, she had reported the same to the Police.              She had

initially told the same to her husband and they all went to the Police

Station. The F.I.R. was duly exhibited, it was duly proved and for that

purpose, the AP.I., who had taken the said F.I.R. as well as statement of

the victim, was examined. The evidence of the father also corroborates

the statement of the victim as well as evidence of P.W.2 - the mother of

the victim.




13)     Taking into consideration the evidence of the witnesses, it is very

unlikely that a small girl of five years would have any grudge against the

Accused, or would concoct a false story of this nature. The statement of

P.W.1 as well as P.W. 2 appear to be quite natural. They immediately

went to the Police Station and the statement was lodged. The victim was
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a minor girl of five years at that relevant point of time, when the

incident occurred.     She was eight years, when she had entered into

witness box. The evidence recorded clearly shows that she had narrated

the facts very clearly and without any tutoring. We therefore, find that

the Prosecution had proved their case, beyond reasonable doubt, as far

as offences under Section 376 of IPC and Section 6 of the POCSO Act,

are concerned.




14)     As far as the sentence is concerned, the amendment to Section 376

of the I.P.C., was effected on 21st April 2018. At that relevant period of

time, Section 376(2)(i) was operating.        Section 376(2)(i) states as

under :-


(i)   whoever commits rape on a woman when she is under sixteen
years of age; or”
      shall be punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to imprisonment
for life, which shall mean imprisonment for the remainder of that
person’s natural life, and shall also be liable to fine.



15)     It is pertinent to note that this section was deleted by Act 22 of

2018 and at the same time by Act 22 of 2018, more specifically, by virtue


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of Section 5 of the Amendment Act, Section 376AB- Punishment for

rape on woman under twelve years of age, was inserted. It is worthwhile

to mention that the incident had occurred on 9 th December 2016 and

therefore, at that relevant point of time, Section 376(2)(i) was in force.




16)     It is also important to note that Section 6 of the POCSO Act was

amended with effect from 16th August 2019 by virtue of Act 25 of 2019.

Before the the amendment, the minimum sentence was ten years, but

which could extend to imprisonment for life and the accused will also be

liable to pay fine. This in a nutshell is the position of law, which existed

on the day, on which the offence was committed.




17)     After perusing the evidence and carefully considering the

submissions, we affirm the Judgment of the Trial Court that the Accused

has committed offence under Section 376 the I.P.C. and under Section 6

of the POCSO Act. We, however, note that the Accused was only 20

years of age, at the time, when the offence had taken place.           The said

fact is reflected in the F.I.R.    It is also important to note that the

Accused was not released on bail, even during Covid-19.                    He is


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continuously in custody since the date of his arrest from December 2016,

i.e. for more than nine years. There are no criminal antecedents against

the Accused.




18)     The learned Counsel Mr. Lalwani, who is appearing for the

Accused has produced on record copies of various certificates issued by

the various Authorities, where the Appellant had appeared for

examination.           One such certificate is issued by Tilak Maharashtra

Vidyapeeth, Pune, whereby it is certified that the Accused had

participated in the programme for “analysis of the books”. The second

certificate is a certificate issued by Ramchandra Pratishthan Mumbai,

whereby it is certified that the Accused had participated in “Essay

Competition” and the third certificate is issued by Mumbai Sarvodaya

Mandal for studying the thoughts of Mahatma Gandhi, where he had

successfully participated and passed the examination. All these factors

considered cumulatively, would make us show some leniency towards

him for the sentencing part.




19)     We are therefore, inclined to reduce the sentence of the Accused.

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However, taking into consideration the gravity of the offence, we are

imposing the sentence which is more than the minimum sentence of ten

years. In our opinion, the sentence of twelve years would meet the ends

of justice.




20)     We, therefore, pass the following order.




                              :ORDER:

(i)           The Appeal is partly allowed.



(ii)          The conviction of the Accused under Section 376 of
              I.P.C. and Section 6 of the POCSO Act, vide the
              Judgment and Order dated 7th December 2020, passed
              by the learned Special Judge, under the Protection of
              Children from the Sexual Offences Act, 2012, at
              Greater Bombay, in POCSO Special Case No.120 of
              2017, is maintained. However, the sentence of life
              imprisonment is set aside.

                       Instead, the Accused is sentenced to suffer
              rigorous imprisonment for twelve years and to pay a
              fine of Rs.1,000/- for commission of offence punishable
              under Section 6 of the POCSO Act. In default of
              payment of fine, he shall undergo simple imprisonment
              of one month. No separate sentence is imposed for
              offence punishable under Section 376 of the I.P.C., in

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               view of the Section 42 of the POCSO Act.



 (iii)         The direction of the learned Special Court, awarding
               the compensation of Rs.25,000/- under Section 33(8)
               of the POCSO Act, is maintained.



 (iv)          The set off for the period of detention already
               undergone during pendency of trial by the Accused be
               given to him under Section 428 of the Criminal
               Procedure Code.



 (v)           A copy of the Judgment be provided to the Accused
               free of costs, as per Section 363(i) of the Criminal
               Procedure Code.



 (vi)          The Appeal is partly allowed and disposed of in the
               aforesaid terms.



 (vii)         Since the Appeal is disposed of, nothing survives in the
               Interim    Application.     The    connected    Interim
               Application is also disposed of accordingly.




 (SANDESH D. PATIL, J.)                        (SARANG V. KOTWAL, J.)




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RAJESH            Digitally signed by
                  RAJESH VASANT
VASANT            CHITTEWAN
                  Date: 2026.02.09
CHITTEWAN         10:56:14 +0530