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Syd. Ali S/O Syd Noor And Another … vs State Of Maharashtra, Thr. P.S. … on 13 February, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.324 OF 2016

1) Syd. Ali s/o Syd. Noor,
Aged 25 years,
Occupation – Labour,
R/o Firdos Colony, Akola.

2) Ibbu @ Syd. Ibrahim s/o Syd.
Raheman, Aged about 25 years,
Occupation – Labour,
R/o Milan Nagar, Naygaon, Akola. …. APPELLANTS

VERSUS

State of Maharashtra,
through P.S. Akot File, Akola,
District Akola.
Crime No.54/2013. …. RESPONDENT

__

Shri A.K. Bhangde, Advocate for the appellants,
Shri A.V. Palshikar, Additional Public Prosecutor for the respondent.
__

WITH

CRIMINAL APPEAL NO.310 OF 2016

Shahidkhan s/o Shibkhan,
Aged about 29 years,
Occupation – Driver,
R/o New Tar File, Akola. …. APPELLANT

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VERSUS

State of Maharashtra,
through P.S. Akot File, Akola,
District Akola.
Crime No.54/2013. …. RESPONDENT

__

Shri R.M. Daga, Advocate for the appellant,
Shri A.V. Palshikar, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 20-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 13-02-2018

JUDGMENT :

Challenge is to the judgment and order dated 28-7-2016

rendered by the learned Additional Sessions Judge, Akola in Sessions

Trial 144/2013, by and under which accused Sayyad Ali Sayyad Noor

is convicted for offence punishable under Section 376(1) of the Indian

Penal Code (“IPC” for short) and is sentenced to suffer rigorous

imprisonment for seven years and to payment of fine of Rs.25,000/-

and is further convicted for offence punishable under Section 417 of

the IPC and is sentenced to suffer rigorous imprisonment for six

months and to payment of fine of Rs.10,000/- and accused Shahidkhan

and Ibbu @ Sayyad Ibrahim are convicted for offence punishable under

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Section 109 read with Section 376 of the IPC and are sentenced to

suffer rigorous imprisonment for seven years and to payment of fine of

Rs.5,000/- each.

Criminal Appeal 324/2016 is preferred by accused Sayyad

Ali and Ibbu @ Sayyad Ibrahim and Criminal Appeal 310/2016 is

preferred by accused Shahidkhan. Both the appeals are taken up for

final hearing and decided by this common judgment.

2 Heard Shri A.K. Bhangde, learned Counsel for the

appellants in Criminal Appeal 324/2016, Shri R.M. Daga, learned

Counsel for the appellant in Criminal Appeal 310/2016 and Shri

A.V. Palshikar, learned Additional Public Prosecutor for the respondent-

State.

3 The gist of the prosecution case is thus :

Accused Shahidkhan was residing near the residence of the

sister of the prosecutrix. Accused Sayyad Ali and accused Ibbu used to

visit the house of accused Shahidkhan. The prosecutrix was acquainted

with one Priya who was also residing near the house of the sister of the

prosecutrix. Priya conveyed to the prosecutrix that accused Sayyad Ali

has expressed love for the prosecutrix and is desirous of talking with

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the prosecutrix. She handed over a mobile phone to the prosecutrix.

The prosecutrix and accused Sayyad Ali used to converse

telephonically. The prosecutrix and accused Sayyad Ali then started

meeting. Sayyad Ali started to visit the house of the prosecutrix at

Morkewadi, Akola. Sayyad Ali took the prosecutrix to Naygaon to the

house of accused Ibbu @ Sayyad Ibrahim. Accused Shahidkhan and

Ibbu locked the door of the house from outside and went away, leaving

the prosecutrix and Sayyad Ali alone in the room. Sayyad Ali sought

sexual favour from the prosecutrix, who refused to oblige. Sayyad Ali,

however, induced the prosecutrix to have sex promising that he will

marry her and will convince his parents to consent. Thereafter, Sayyad

Ali established sexual contact with the prosecutrix on several occasions.

He did not marry the prosecutrix, who lodged report at Police Station

Akola File, Akola. On the basis of the said report (Exhibit 38), offence

punishable under Sections 417, 420, 376, 109 of the and Section 3(1)

(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities), Act, 1989 (“Atrocities Act” for short) was registered.

Investigation was handed over to SDPO Amarsing Jadhav. The caste

certificate of the prosecutrix was collected, she was referred for

medical examination, accused Sayyad Ali was medically examined,

statements of witnesses were recorded and on completion of the

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investigation charge-sheet was submitted in the Court of Judicial

Magistrate First Class (Court 2), Akola, who committed the

proceedings to the Sessions Court. The learned Sessions Judge framed

charge (Exhibit 31) under Sections 376, 109 and 417 of the IPC and

Section 3(1)(xii) of the Atrocities Act. The accused abjured guilt and

claimed to be tried. The defence is of total denial. Accused Sayyad Ali

stated in the statement under Section 313 of the Criminal Procedure

Code that he and the prosecutrix were in love. He, however, denied

having promised the prosecutrix marriage. He further denied having

established sexual contact with the prosecutrix.

4 The prosecution examined the prosecutrix (P.W.1) and the

Investigating Officer Amarsing Jadhav (P.W.2) and relied inter alia on

report (Exhibit 38), printed first information report (Exhibit 39), caste

certificate of the prosecutrix (Exhibit 48), medical examination reports

of accused Sayyad Ali (Exhibit 55 and Exhibit 56) and the medical

examination report of prosecutrix (Exhibit 41). The defence did not

examine any witness.

5 The only material witness from the perspective of the

prosecution, is the prosecutrix herself who is examined as PW 1. The

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only other witness examined is the Investigating Officer. The medical

examination report of the prosecutrix (Exhibit 41) is admitted. PW 1

was medically examined on 3.4.2013. Her hymen was ruptured and

vagina admitted two fingers easily. The medical opinion is that the

prosecutrix may be accustomed to the sexual intercourse.

6 PW 1 has deposed that accused Shahidkhan was residing

near the house of her sister. Accused Sayyad Ali and Ibbu alias Ibrahim

used to visit accused Shahidkhan. PW 1 has proved the First

Information Report Exh. 38 and the printed First Information Report

Exh. 39. She states that she belongs to the Matang community and the

accused are Muslims.

PW 1 states that one Priya who was also residing near the house

of her sister conveyed to the prosecutrix that accused Sayyad Ali loved

her and wished to talk with her. Priya handed over a mobile phone to

the prosecutrix. The prosecutrix and accused Sayyad Ali used to

converse telephonically, they used to meet and Sayyad Ali started

visiting the house of the prosecutrix.

The prosecutrix states that Sayyad Ali took her to Naygaon to the

house of accused 3 Sayyad Ibrahim. Accused 2 and 3 locked the door

from outside and went away. Accused Sayyad Ali forcibly established

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sexual relations with the prosecutrix and told her that nothing would

happen if sexual relationship is established and that he would marry

the prosecutrix. Accused Sayyad Ali established sexual relations with

the prosecutrix 2 to 4 time, however, he did not perform marriage and

hence the prosecutrix lodged report, is the deposition.

In the cross examination, it is extracted that the prosecutrix met

Sayyad Ali in 2012 during Ganesh festival. She met the accused on

several occasions, which meetings were concealed from her parents. It

is elicited that she and accused Sayyad Ali were in love. It is elicited

that many times she accompanied accused Sayyad Ali to view movie

and to stroll in the garden. The prosecutrix and accused Sayyad Ali

used to meet at night hours. She used to leave her house after her

parents retired to bed. It is elicited that till 31.3.2013, the parents of

the prosecutrix were not aware of her relationship with Sayyad Ali. It

is elicited that the prosecutrix was aware that girls from Matang

community never marry Muslim boys. Several suggestions were given

to the prosecutrix to the effect that Sayyad Ali did not establish sexual

contact, which suggestions are denied. She admits that she saw accused

2 and 3 for the first time on the day of the incident. She states that the

accused were shown to her by the police and she identified them.

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7 The learned Sessions Judge observes thus in paragraph 21

of the judgment and order impugned:

“As the M L C Report [Ex. 41] and spot panchnamae

[Ex.42,43, 44 45] are admitted by the defence, it can be
inferred that the defence has admitted that there were sexual
relations between prosecutrix and accused No.1 Syd. Ali. This
inference can also be drawn from the crossexamination
conducted by Ld. Defence counsel. During cross-
examination, Ld. Defence counsel brought on record certain
admissions from prosecutrix that she was having love affair
with accused No. 1 Syd. Ali, on several times, she accompanied
him to see movie and used to wonder with him in gardens and
that they used to meet at night hours”.

The inference drawn by the learned Sessions Judge from the

admission of medico legal report Exhibit 41 and spot panchanamas

Exhibits 42, 43 and 45 that the defence has admitted sexual

relationship between the prosecutrix and accused Sayyad Ali, is

inexplicable. The contents of the spot panchanamas are treated, by the

learned Sessions Judge as substantive evidence. The admission of the

medico legal report, which records that the prosecutrix was habituated

to sexual intercourse, cannot by any stretch of imagination be an

admission of sexual relationship between the prosecutrix and accused

Sayyad Ali. The learned Sessions Judge has invoked section 114-A of

the Indian Evidence Act, which reads thus:-

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“Section 114-A – Presumption as to absence of consent in
certain prosecution were rape – In a prosecution for rape
under clause (a), (b), (c), (d), (e), (f), (g), (h), (I), (j), (k),

(l), (m) and (n) of sub section (2) of section 376 of Indian
Penal Code, where sexual intercourse by the accused is proved
and the question is whether it was without the consent of the
woman alleged to have been rape and such woman
states in her evidence before the Court that she did not
consent, the court shall presume that she did not consent.

Explanation – In this section, “Sexual Intercourse”
shall mean any of the acts mentioned in clauses (a) to (d) of
section 375 of the Indian Penal Code’.

The learned Sessions Judge observes thus:

“37. Now, by taking recourse of Section 114- A of Indian
Evidence Act, the court can very well presume that there
was absence of consent when the accused Syed Ali had
established sexual relations with the prosecutrix at first
instance. It is the specific testimony of the prosecutrix that she
did not consent and her consent was obtained deceitfully. To rebut
this presumption, the accused person has not adduced any
cogent or reliable evidence nor put forth any reliable
explanation. Instead, he falsely given his statement before this court
that he had not established sexual relations with the
prosecutrix. With the help of ruling (cited supra), this court
can very well rely on the sole testimony of prosecutrix that she was
raped by accused Syed Ali under the false promise of marriage
as he was never intending to marry with her. As such,
considering the above said facts and circumstances, I am of
the opinion that offences punishable under Section 376 and 417 of
I P C are duly proved against the accused no.1 Syed Ali beyond
all reasonable doubts. Hence, I answer point nos. 1 and 2
accordingly”.

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The learned Sessions Judge, was clearly in error in taking the aid

of statutory presumption under section 114 of the Indian Evidence Act.

The accused was not charged under section 372 (2) (a), or (b), or (c),

or (d), or (e), or (f), or (g), or (h), or (i), or (j), or (k), or (l), or (m),

or (n).

8 It is irrefutable that the prosecutrix and accused Sayyad Ali

were in love. According to the prosecutrix, the first sexual contact was

established at Naygaon in the house of accused Sayyad Ibrahim. No

date, month or year is forthcoming in the evidence. However, it is

elicited in the cross examination that the prosecutrix and accused

Sayyad Ali met in Ganesh festival itself in the year 2012. The

prosecutrix was aware that the girls from Matang community do not

marry Muslims. She has admitted to have been in love with accused

Sayyad Ali. She admits to meeting Sayyad Ali at night hours after her

parents retired to bed. She admits to have accompanied Sayyad Ali to

view movies and to stroll in the garden.

The Apex Court observes thus in Uday Vs. State of Karnataka,

2003 Cr. L.J. 1539(1):

“25. Consent given by the prosecutrix to sexual intercourse
with a person with whom she is deeply in love on a promise
that he would marry her on a later date, cannot be said to be
given under a ‘misconception of act’. A false promise is not a

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fact within the meaning of the Code (Indian Penal Code).
There is no strait jacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of fact.
The Court must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a
conclusion, because each case has own peculiar facts which
may have a bearing on the question whether the consent was
voluntary, or was given under a misconception of fact. It
must also weigh the evidence keeping in view the fact that
the burden is on the prosecution to prove each and every
ingredient of the offence, absence of consent being one of
them.”

Emphasis supplied

It is already noted that the only material witness is PW 1. The

solitary statement in her evidence that when sexual contact was

established at Naygaon, accused Sayyad Ali told her that nothing would

be happen and he will marry the prosecutrix, cannot be the basis of

conviction. The admissions elicited in the cross examination would

suggest that the prosecutrix and accused Sayyad Ali were in love. The

prosecutrix was a mature girl aged 20 years. She is presumed to be

conscious of the implication and consequences of her actions. She was

aware that a Matang girl does not marry a Muslim boy. In the teeth of

evidence on record, the finding recorded by the learned Sessions Judge

that a false promise of marriage was made which has vitiated the

consent, is manifestly erroneous. No evidence is adduced to suggest

that a promise to marry was given, the promise was false from the

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inception to the knowledge of giver and that but for such promise the

prosecutrix would not have consented the sexual relationship. I am not

persuaded to uphold the conviction of accused Sayyad Ali for offence

punishable under section 376(1) and 417 of IPC. Axiomatically,

accused 2 Shahidkhan and accused 3 Ibbu Alias Sayyad Ibrahim against

whom, even if entire evidence is accepted at face value, there is no

material whatsoever to prove the offence under section 109 read with

section 376 of IPC, deserve to be acquitted.

(i) The judgment and order impugned is set aside.

(ii) Criminal Appeal 324 of 2016 and Criminal Appeal 310 of

2016 are allowed.

(iii) Accused Sayyad Ali Sayyad Noor is acquitted of offence

punishable under section 376(1) and 417 of IPC. Accused

Shahidkhan Sahibkhan and Accused Ibbu alias Ibrahim

Sayyad Raheman are acquitted of offence punishable

under section 109 read with section 376 of IPC.

(iv) Bail bonds of the accused shall stand discharged. Fine

paid by the accused, if any, shall be refunded.

JUDGE

RS Belkhede, PA

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