Aslam Rashid Shaikh vs The State Of Maharashtra on 1 September, 2017

16-APPEAL-367-2014-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.367 OF 2014

ASLAM RASHID SHAIKH )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Ms.Rohini Dandekar, Appointed Advocate for the Appellant.

Ms.N.S.Jain, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 1st SEPTEMBER 2017

ORAL JUDGMENT :

1 By this appeal, the appellant / accused is challenging

the judgment and order dated 4 th February 2013 passed by the

learned Additional Sessions Judge, Greater Mumbai, in Sessions

Case No.11 of 2012, thereby convicting the appellant / accused

for the offence punishable under Section 376 of the Indian Penal

Code (IPC) and sentencing him to suffer rigorous imprisonment

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for 7 years, apart from directing him to pay fine of Rs.5,000/-, and

in default directing him to undergo further rigorous imprisonment

for 6 months.

2 Brief facts leading to the institution of the present

appeal can be summarized thus :

(a) The prosecutrix / PW1 was minor at the time of the alleged

incident. She had lost her father. She was taken care of by her

stepmother. However, her stepmother intended to marry her to an

old person. The prosecutrix refused. Hence, her stepmother gave

Rs.500/- to her and asked her to go to Mumbai. As the

prosecutrix was virtually driven out of her house at Bihar by her

stepmother, she came to Mumbai by train. By walking she went to

Seven Bungalows area of Mumbai and started weeping. An old

lady named Suman gave shelter to her. However, soon thereafter,

as said Suman became angry with her because she was unable to

cook food, the prosecutrix took shelter of a person named Iqbal

and started residing at his house with Iqbal and his wife.

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(b) According to prosecution case, Iqbal committed rape on the

prosecutrix by indulging in forcible sexual intercourse with her on

few occasions. Then, the prosecutrix was introduced to the

appellant / accused Aslam. One day, Aslam took her to a cart

selling vada pav and then she was taken to the grocery shop

where the appellant / accused Aslam used to work. Thereafter,

the appellant / accused took her in the nearby washroom and

committed rape on her.

(c) The prosecutrix / PW1 then returned to the house of Iqbal

and his wife. Then again, she started residing with the old lady

named Suman.

(d) In the meanwhile, PW2 Rebeka Bhingardive, A.S.I. working

with Versova Police Station came to know from maid servant

working in the area that a minor girl has come in the slum area

and is wandering here and there. PW2 Rebeka Bhingardive then

traced out the prosecutrix. Upon inquiring with her, the

prosecutrix disclosed the incident which took place and lodged the

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report which resulted in registration of Crime No.307 of 2011 for

the offence punishable under Section 376 read with Section 34 of

the IPC with Police Station Versova. The appellant / accused came

to be arrested. Co-accused Iqbal could not be arrested by police.

The prosecutrix was subjected to medical examination as well as

ossification test. Her clothes and clothes of the appellant /

accused came to be seized and on completion of routine

investigation, the appellant / accused came to be charge-sheeted.

(e) The appellant / accused pleaded not guilty to the charge

framed and explained to him and claimed trial. The prosecution

examined in all six witnesses to prove the charge leveled against

the appellant / accused. PW1 is the prosecutrix and the First

Information Report (FIR) lodged by her on 24th July 2011 is at

Exhibit 13. Rebeka Bhingardive, A.S.I. is examined as PW2. PW3

Dr.Baban Shinde, at the relevant time, was working as Medical

Officer at Nagpada Police hospital. He had examined the

prosecutrix and conducted ossification test on her. PW4 Suresh

Wadke, P.S.I. with Versova Police Station had recorded the FIR

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Exhibit 13. He had seized clothes of the prosecutrix vide

panchnama Exhibit 22 and had conducted spot panchnama

Exhibit 23. PW5 Bapu Bhandalkar, A.P.I., had conducted the

investigation of this crime. PW6 Rajni Salunkhe is a panch

witness to the seizure panchnama Exhibit 27, whereby clothes of

the appellant / accused came to be seized.

(f) Defence of the appellant / accused is that of total

denial. After hearing the parties, by the impugned judgment and

order, the learned Additional Sessions Judge, Greater Bombay,

Mumbai, was pleased to convict the appellant / accused for the

offence punishable under Section 376 of the IPC and he was

sentenced accordingly, as indicated in opening paragraph of the

judgment.

3 I have heard Ms.Rohini Dandekar, the learned

advocate appointed at the cost of the State to represent the

appellant / accused. By taking me through the record and

proceedings, she vehemently argued that entire conduct of the

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prosecutrix is unnatural. The prosecutrix could have disclosed to

wife of Iqbal about commission of rape on her by Iqbal as well as

the appellant / accused Aslam. According to the learned advocate

appearing for the appellant / accused, evidence of the prosecutrix

shows that the appellant / accused had taken a room on rent. If

really the appellant / accused was intending to commit rape on the

prosecutrix, he could have very well done that act in the room itself.

The spot of the incident, as seen from evidence on record, was not

suitable for commission of such an act, as its floor was wet and

evidence of the prosecutrix on this aspect is clear. Therefore, case

of the prosecution suffers from improbability. The learned advocate

further argued that evidence of the prosecutrix and that of PW2

Rebeka Bhingardive, A.S.I., is totally divergent. PW2 Rebeka

Bhingardive deposed that the prosecutrix was found in company of

the appellant / accused whereas according to the prosecution, she

learnt about arrest of accused person while staying with an old lady

named Suman and then she went to Police Station. With this, the

learned advocate submitted that the learned trial court erred in

convicting the appellant / accused.

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4 I have heard the learned APP appearing for the State.

She supported the impugned judgment and order by submitting

that evidence of the prosecutrix establishes the guilt of the

appellant / accused.

5 I have carefully considered the rival submissions. I

have also gone through the record and proceedings including oral

as well as documentary evidence adduced by the parties.

6 Case of the prosecution is to the effect that the

appellant / accused had committed rape on the PW1/prosecutrix,

who at the relevant time had not attained the consenting age, she

being below 16 years of age. The prosecutrix was hailing from

Bihar State. After death of her father, she was maintained by her

stepmother for some time and then she was left to fend herself by

asking her to leave the house for Bombay. Considering this

background of the prosecutrix, one cannot expect any

documentary evidence regarding her age. Hence, no infirmity can

be found in the case of the prosecution merely because

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documentary evidence regarding age of the prosecutrix is not

placed on record.

7 Be that as it may, for establishing age of the

prosecutrix, the prosecution has relied on evidence of PW3

Dr.Baban Shinde of Nagpada Police hospital. This witness had

conducted ossification test on the PW1 / prosecutrix in July 2011

and had deposed that the PW1 / prosecutrix was aged about 14 to

15 years at that time. Evidence of this witness is duly

corroborated by contemporaneous certificate issued by him by

conducting ossification test. Evidence of PW3 Dr.Baban Shinde, so

far as it relates to age of the prosecutrix, is not at all challenged in

the cross-examination. The prosecutrix herself had deposed her

age as 15 years. Even if margin of error in ossification test is

considered, then also it appears that the prosecutrix, at the time of

alleged commission of rape on her by the appellant / accused was

below 16 years of age.

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8 Dehors her age, let us examine whether prosecution is

successful in establishing commission of rape on the prosecutrix.

The consent, as understood in law, is an act of reason, mind

weighing as in balance, what is good and what is bad, for oneself.

The theory of consensual sex is not propounded even in cross-

examination of prosecutrix, as defence of the appellant / accused

is that of total denial. In the wake of this situation, it is in

evidence of the prosecutrix that after she reached Mumbai, she

took shelter at the house of an old lady named Suman. She

resided there for about a month and then as that lady was

annoyed with her, she left the house. As per version of the PW1 /

prosecutrix, one Irfan then reached her to the house of one

Bhabhi, who was wife of Iqbal. She stayed with Iqbal and his wife

and during that stay, on a few occasions, Iqbal committed rape on

her. The PW1/ prosecutrix further deposed that then Iqbal

introduced her to the appellant / accused Aslam. His wife asked

her about marriage with Aslam. Said Aslam had hired a room.

The prosecutrix further deposed that on one occasion, said Aslam

took her to a garden and then to a vadapav shop. Then, she was

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taken by Aslam to a bathroom, near the shop, where she was

raped by said Aslam. The prosecutrix deposed that as she was

frightened, she did not shout. Then, wife of Iqbal told her not to

reside in their house. She, therefore, joined company of Suman.

Within one to two months, she learnt about arrest of accused

person and therefore, along with Bhabhi (wife of Iqbal) she went

to police station and lodged report Exhibit 13.

9 The prosecutrix was subjected to searching cross-

examination. Some omissions were pointed out in her version

during cross-examination. However, core of her testimony, so far

as offence of rape is concerned, is not at all shaken. There is no

cross-examination on the point of offence of rape committed on

her by Aslam. Her cross-examination does not indicate that what

had taken place between her and Aslam on that day, was with her

consent and with her free will she submitted her chastity at the

disposal of said Aslam. Consequently, there is no reason to

disbelieve version of the PW1 / prosecutrix about commission of

forcible sexual intercourse with her by Aslam.

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10 The prosecutrix was at the mercy of strangers after she

was literally driven out of her house in Bihar State by her

stepmother. Initially, she took shelter in the house of Suman and

then at the house of Iqbal and his wife. In such a situation, it was

not expected of the prosecutrix to muster the courage to disclose

the incident to either wife of Iqbal or to Suman. The prosecutrix

must have feared that because of such disclosure, she might have

been driven out by those persons, who had offered shelter to her.

Hence, in the fact situation of the instant case, conduct of the

prosecutrix of not disclosing the incident to others, does not make

her version doubtful. Similarly, choice of place of incident, cannot

throw doubt on case of the prosecution. Evidence of the

prosecutrix shows that the appellant / accused had chosen

bathroom to commit the offence. There can be several reasons for

choice of place of offence. Cross-examination of the prosecutrix

does not show that room which was taken on rent by Aslam was

located at a secluded place and as such, was more suitable for

commission of offence. Merely because the act was committed in

the bathroom, though the appellant / accused was having a

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rented room at his disposal, is not sufficient to discard version of

the prosecutrix about the incident.

11 Evidence of the prosecutrix that she was subjected to

forcible sexual intercourse by the appellant / accused is gaining

corroboration from version of PW3 Dr.Baban Shinde who

examined her medically after lodging the FIR. Evidence of PW3

Dr.Baban Shinde shows that upon internal examination of the

prosecutrix, he found her hymen torn at 3, 6 and 9 O' Clock

positions. This medical evidence duly corroborates testimony of

the prosecutrix.

12 Clothes of the prosecutrix came to be seized by seizure

panchnama Exhibit 22 and that of the appellant / accused came

to be seized by panchnama at Exhibit 27, as seen from evidence of

PW4 Suresh Wadke, P.S.I, and that of PW6 Rajni Salunkhe.

However, forensic evidence is not supporting the case of the

prosecution. Evidence of PW5 Bapu Bhandalkar, A.PI., explains

the line of investigation conducted by him.

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13 As the clear, cogent and trustworthy evidence of the

prosecutrix is supported by medical evidence adduced by the

prosecution, no infirmity can be found in the impugned judgment

and order of conviction, and as such, the appeal fails. Hence the

order :

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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