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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16-APPEAL-367-2014-J.doc8 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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16-APPEAL-367-2014-J.doctaken 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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16-APPEAL-367-2014-J.doc10 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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16-APPEAL-367-2014-J.docrented 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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16-APPEAL-367-2014-J.doc13 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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