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The State Of Maharashtra vs Allha Abdul Rahim Mohd. And Anr on 17 April, 2018

1 Cri.Al.279-17-I

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 279 OF 2017

The State of Maharashtra
Through Dharangaon Police Station,
Taluka Dharangaon, District Jalgaon. .. Appellant
(Original complainant)
Versus

1. Allha Abdul Rahim Mohd.,
Age 27 years, Occu. Education,
R/o. Ahmadiya Majid, Plot No. 22,
Gajabatti Palestine Nation (Foreigner),
At present R/o. Madni Chowk, Cidco,
N-1, Near Binmazi Complex,
Aurangabad.

2. Parvin (Parsi) Veisi Birgooni Saha Husen,
Age 46 years, Occu. Education,
R/o. Sahar Estan Iran, Isfahan Nation,
At present R/o. Plot No.3,
Hrunanubandh Park, Behind Swimming tank,
217, Anand Nagar, Old Sanghvi, Pune. .. Respondents
(Original accused)


Mr. S. P. Sonpawale, APP for Appellant- State.
Mr. Mohammad Imran Ahemad, Advocate for Respondent No.1
Mr. Vinod P. Patil, Advocate for Respondent No.2

CORAM : K.K. SONAWANE, J.

RESERVED ON : 13th FEBRUARY, 2018.

DELIVERED ON : 17th MARCH, 2018.

JUDGMENT :-

1. The appellant – State of Maharashtra by invoking remedy under

section 378 (1) of the Criminal Procedure Code (for short “Cr.P.C)

preferred the present appeal agitating validity, propriety and legality of

the judgment and order of acquittal of both the respondents – original

accused in Sessions Case No. 07 of 2015 passed by the learned

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Additional Sessions Judge, Jalgaon, dated 16-05-2016. The

respondents-original accused are exonerated from the charges pitted

against them for the offence punishable under sections 328, 506 read

with 34 and 354-A as well as 107 read with section 109 of the Indian

Penal Code (for short, “IPC”) and Section 14(a)(b) of the Foreigners

Act, 1946 (for short, “Act of 1946”). The impugned findings of acquittal

of both respondents -accused is the subject matter of present appeal.

2. It has been alleged on behalf of prosecution that the prosecutrix

was the student of M. Sc. First Year course studying in North

Maharashtra University at Jalgaon (for short, “University”). She took

an admission on 24-07-2014 and since then she started residing in

ladies hostel located within the University Campus itself. Accused No.

2 Parvin (Parsi) Veisi Birgooni Saha Husen, a Iranian nationality, was

also pursuing Ph.D Degree course in Psychology subject in the same

University. She had also occupied the Room No. S-41 in the same

Ladies Hostel of prosecutrix. Accused No. 1 Allha Abdul Rahim Mohd,

a Palestinian nationality, was the friend of accused No. 2 Parvin and

used to visit her frequently. There were other girl students of the

University residing in the ladies hostel. After acquaintance with each

other, on one day some of the inmates of ladies hostel including

prosecutrix and accused No.2 Parvin had been to “Gandhi Tekadi” for

strolling. They took photographs of each other in the cellphone.

Accused No. 2 Parvin insisted the prosecutrix to forward those

photographs of girl students on her cellphone.

According to prosecution, accused No. 1 Allah came in contact

with the prosecutrix at the instance of accused No.2 Parvin under the

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pretext of repairing of her cell phone. The accused offered dinner to

the prosecutrix. Initially, the prosecutrix was reluctant to accompany

with the accused for dinner etc. But, the accused Parvin convinced the

prosecutrix about the accused No.1 Allha, and made her to join them

for dinner. The trio enjoyed the dinner in “Shalimar hotel” and returned

to hostel. In the night hours, accused No.1 Allha sent text message on

the cellphone of prosecutrix that “I like you, I don’t force ladies. I love

you and you are decent”, etc.

3. It has been alleged that, on the day of incident i.e. on 03-08-

2014 in the noon hours, both the accused and prosecutrix had been to

Big Bazar for roaming. They watched the movie and in the wee hours

of evening, they came to Shalimar hotel for meal. In the hotel, after

occupying the seats, accused No.1 Allha left the lunch table and went

towards the waiter. He had some conversation with the waiter in the

hotel. Thereafter, they enjoyed the meal and returned to the University

Campus. There was drizzling at about 5.00 to 6.00 p.m. The accused

No.2 Parvin insisted the prosecutrix for halt at Shikshak Bhavan

building located in the University Campus instead of going to ladies

hostel. Accordingly, accused managed to get two rooms, one on the

ground floor and another on first floor of Shikshak Bhavan building.

Initially, trio went in the room located on first floor. The prosecutrix

was feeling some what giddiness, and therefore, she slept on the bed in

the room. The accused No. 2-Parvin divulged the prosecutrix that

accused No. 1-Allha wanted to kiss her. But, prosecutrix shouted and

asked both the accused to go out of the room. Thereafter, both

accused left the prosecutrix alone and came downstairs in the another

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room allocated in the name of accused Allha. However, at about 9.00

to 9.30 p.m. prosecutrix informed to the accused No.2 Parvin that her

menstrual period has commenced. The accused No.1 Allha brought the

sanitary napkins for the prosecutrix from market. The prosecutrix was

alone in the room on the first floor, whereas, both the accused were

chitchatting in the ground floor room. At about 11.00 p.m. prosecutrix

woke up from the bed she felt thirsty. Therefore, she came downstairs

in the room of accused Allha for drinking water. She saw both the

accused were chitchatting in the room. The prosecutrix was feeling

loneliness, therefore, she asked accused No.2 Parvin that she would

sleep on another bed in the room of accused No.1 Allha, and

accordingly, she slept in the room. In the midnight, when prosecutrix

awakened from the bed that time she realized that the accused No.2

Parvin was not in the room and accused No.1 Allha was bolting the

doors of the room. The accused No.1 Allha came near her and

attempted to embrace her. He started kissing her forcibly and made

demand for sexual favours. But, the prosecutrix refused to budge for

such immoral act. Thereafter, accused No.1 Allha went to sleep on

another Bed. In the morning at about 6.00 a.m., accused No.2 Parvin

came in the room and took the prosecutrix back to her room at first

floor. At about 8.00 a.m. they both left the Shikshak Bhavan and

returned to ladies hostel in the University Campus.

4. According to prosecutrix, accused No.1 Allha had given threats of

dire consequences to her for not disclosing the incident to anybody

else. But, after about two and half months i.e. on 09-10-2014, the

prosecutrix ventured to approach to the Police and lodged the First

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Information Report [Exhibit-86].

5. Pursuant to FIR, Police of Dharangaon Police station registered

the Crime No. 184 of 2014 and set the penal law in motion. The

Investigating Officer carried out the investigation. He recorded

statements of witnesses acquainted with the facts of the case. After

completion of investigation, he preferred the charge-sheet against both

the accused for the offence punishable under sections 328, 354A, 107

and 506 read with Section 34 of the IPC and Section 14(a)(b) of the

Foreigners Act of 1946. The offence punishable under section 328 of

the IPC was triable by the Court of Sessions, therefore the matter came

to be transmitted to the Court of Sessions by requisite committal order

from the learned Magistrate at Dharangaon. The learned Additional

Sessions Judge, after procedural formalities, framed the charges

against both the accused. They denied the charges and pleaded not

guilty. In order to bring home guilt of the accused, prosecution

examined in all 20 witnesses. The statements of accused under section

313 of the Cr.P.C. also came to be recorded to afford them an

opportunity to explain incriminating circumstances brought on record.

Both the accused denied the allegations and claimed their false

implication in this case.

6. The learned Additional Sessions Judge considered the factual

aspect in the light of evidence adduced on record and arrived at the

conclusion that prosecution failed to prove the charges pitted against

accused beyond all reasonable doubt. Therefore, learned Sessions

Judge proceeded to absolve the accused from the charges levelled

against them and passed the impugned judgment and order of

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acquittal, which is put in controversy on behalf of prosecution in this

present appeal.

7. The learned APP vehemently submitted that learned Sessions

Judge did not appreciate the evidence adduced on record on behalf of

prosecution in its proper perspective and committed error to acquit

both the accused in this case. According to learned APP, prosecutrix

verbalized in candid manner about the indecent act of accused No.1

Allha for sexual assault. Accused No.2 Parvin abetted commission of

such indecent act by accused No.1 Allha. The version of prosecutrix

that accused attempted to embrace and kissed her forcefully was not

considered by the trial Court in proper manner. There was demand for

physical relations, but the prosecutrix resisted the accused No.1 Allha

for sexual advance. Learned Sessions Judge failed to appreciate the

version of the prosecutrix for adverse inference against accused.

According to learned APP, P.W. 13 Jully was the friend of prosecutrix

and she corroborated the version of prosecutrix on the material aspect

of allegations nurtured against accused. The learned APP submits that

the presence of both accused and prosecutrix during the relevant

period of incident in the room of Shikshak Bhavan building was proved

by the prosecution. Therefore, the sole version of prosecutrix is

required to be taken into consideration for adverse inference against

accused. There was no motive for the prosecutrix to implicate the

accused falsely in this case. Learned APP further added that the delay

in lodging the FIR would not cause any dent in the prosecution case, as

prosecutrix was under duress and mental trauma following threats by

the accused for dire consequence. The prosecutrix did not lodge FIR in

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order to avoid further complication in regard to her character

reputation, etc. The delay would not cause any doubt or create

suspicion in the prosecution case. The learned APP relied on the

citations of the Supreme Court in the case of Vidyadharan Vs. State

of Kerala reported in 2003 Law Suit (SC) 1128 and Kanwar Pal

Singh Gill Vs. State (Appeal Cri. No. 1032 of 1998 decided on

27-07-2005.

8. The learned counsel for the accused assailed that prosecution

has miserably failed to prove the charges pitted against the accused

beyond all reasonable doubt. The sole version of prosecutrix is not

sufficient to hold both the accused guilty. There was a colossal delay in

filing the FIR. The prosecution has failed to explain the delay in lodging

FIR. According to learned counsel for accused, no such incident as

alleged by the prosecutrix was ever occurred, but the accused were

embroiled falsely in this case. The sole version of prosecutrix is not

sufficient to draw adverse inference against the accused. The delay for

lodging FIR was not properly explained. The learned counsel for

accused explained the conduct and demeanour of prosecutrix since the

day of incident till lodging of the FIR in the Police Station. He

submitted that even if it is considered that the accused and prosecutrix

were present in the room, the prosecutrix was one of the consenting

parties for the alleged act. Therefore, accused cannot be held guilty for

the act committed in passion or in excess of his excitement. The

learned Sessions Judge has correctly dealt with the factual aspects of

the matter and exonerated the accused from the charges pitted against

them. Therefore, no interference is warranted in the findings of

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learned trial Court at the instance of prosecution.

9. Admittedly, both the accused are arraigned for the offence

punishable under sections 328 and 506 read with section 34 of the IPC.

In addition, accused No.1- Allha was charge-sheeted for the offence

punishable under section 354-A of IPC whereas accused No. 2-Parvin

blamed for the offence punishable under section 107 read with section

109 of the IPC for abetement of committing offence punishable under

section 354-A of the IPC by the accused No.1 – Allha. Accused No. 2

Parvin was also implicated for commission of offence punishable under

section 14 of the Foreigners Act 1946.

10. At the threshold, it is to be noted that, there are circumstances

which are not seriously put into controversy on behalf of accused. It

was admitted fact that the victim/prosecutrix was the student of M.Sc.

First year course studying in North Maharashtra University, Jalgaon.

She took admission on 24-07-2014 and since then she started residing

in ladies hostel of the University itself. It was not denied that accused

No. 1 – Parvin, a Iranian nationality was also pursuing Ph.D degree in

Psychology subject in North Maharashtra University and resides in the

same ladies hostel of victim/prosecutrix. The accused No. 2 Parvin, get

introduced accused No. 1 Allha to victim/prosecutrix and other inmates

of the ladies hostel being her friend. Prosecution produced relevant

documents i.e. the register of inmates of girl hostel, their movements,

etc., maintained and preserved in the ladies hostel. P.W. 9- Dilip

Govindlal Hundiwale stated about admission of accused No. 2 Parvin in

the North Maharashtra University at Jalgaon for pursuing Ph. D. decree.

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All these circumstances are not seriously agitated on behalf of accused

in this case. These circumstances indicate that accused and

victim/prosecutrix as well as her associates i.e. inmates of ladies hostel

all were well acquainted with each other prior to the alleged incident of

sexual harassment to victim by accused No.1 Allha.

11. The provisions of section 328 of the IPC contemplates

punishment for causing hurt by means of poison or any stupefying,

intoxicating or unwholesome drugs with intent to commit or to

facilitate the commission of an offence or knowing it to be likely that

he will thereby cause hurt. In the matter in hand, it has been alleged

on behalf of prosecution that accused on 03-08-2014 administered

some stupefying, intoxicating substance to victim/prosecutrix while

enjoying lunch in the noon hours at Shalimar Hotel, with an intention to

facilitate accused No. 1 Allha for committing offence of sexual

harassment with victim/prosecutrix.

12. In order to prove the charge under section 328 of the IPC,

prosecution relied upon version of P.W.12-victim/prosecutrix and

P.W.14- Baburao Lokhande, waiter of the Shalimar Hotel. P.W.-12

victim/prosecutrix stated that on 03-08-2014 at about 12.30 p.m.

accused No. 1 Allha brought auto rickshaw for going to Big Bazar.

Thereafter, victim/prosecutrix accompanied with accused no. 1- Allha

and accused No. 2 – Parvin visited to Big Bazar. They watched the

movie and thereafter they came to the Shalimar Hotel for lunch. The

accused placed order for lunch. According to prosecution, accused No.

1 – Allha left the lunch table and went towards the waiter. After

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10 – 15 minutes he returned to lunch table. The victim/prosecutrix

further added that after enjoying lunch they returned to University

Campus. There was drizzling, therefore, accused No. 2 Parvin told

victim/ prosecutrix to stay for night in the rooms of Shikshak Bhavan

located in the campus of University itself. Accused No. 1-Allha was

also present with them. Accused No. 2 Parvin managed to get two

rooms in the building of Shikshak Bhavan. The first floor room was

allotted in the name of accused No. 2-Parvin, whereas, another ground

floor room was allotted to the accused No.1 Allha. The

victim/prosecutrix further deposed that while returning from hotel, she

attempted to have conversation with the waiter. He informed her that

the accused persons are foreigners and she should be alert from them.

It has been alleged that when victim/prosecutrix came in the room of

Shikshak Bhavan, she felt some giddiness. Therefore, she slept in the

first floor room, but after some time, her menstruation period

commenced.

13. In addition to version of victim/prosecutrix, prosecution adduced

evidence of P.W. 14 – Baburao Lokhande, waiter of the Shalimar Hotel.

He stated about visit of the prosecutrix accompanied with both accused

for lunch in the Shalimar Hotel during the relevant period. He added

that accused placed order of Veg Biryani for lunch. He served lunch to

both accused and victim/prosecutrix. After lunch, they went away.

P.W. 14 – Baburao did not whisper about the attempt of accused No.1

Allha for administering intoxicating substance to the victim/ prosecutrix

during the course of lunch.

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14. The aforesaid versions of victim/prosecutrix and P.W. 14-

Baburao, waiter of the Shalimar Hotel do not reflect any overt-act of

the accused to prove the circumstance that he attempted to administer

stupefying or intoxicating substance to the victim prosecutrix while

they were enjoying lunch in the hotel during relevant period. Therefore,

it would hazardous to draw adverse inference against accused for

commission of offence under section 328 of the IPC. Prosecution

examined P.W.7 Vinod Chanal and P.W. 8 Bhagwat Thorat who were on

duty as an attendant during relevant period at Shikshak Bhavan

building. But, these witnesses also did not observe any abnormal

behaviour or inebriated state of the victim/prosecutrix. In such

circumstances, there is no need to cause any interference in the

conclusion drawn by learned Sessions Judge to exonerate both the

accused for the charges pitted against them under section 328 of the

IPC.

15. Prosecution further cast allegations about the sexual harassment

by the accused No.1 Allha to victim/prosecutrix. The accused

attempted to make physical contact by sexual overtures and also

insisted for sexual intercourse. At this juncture, it would be profitable

to take into consideration the newly inserted provisions of section 354-

A of the IPC relating to the sexual harassment to woman. It is

reproduced as under:-

” S. 354-A. (1) A man committing any of the following
acts-

(i) physical contact and advances involving
unwelcome and explicit sexual overtures; or

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(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a
woman ; or

(iv) making sexually coloured remarks;

shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in
clause (I) or clause (ii) or clause (iii) of sub-section
(1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with fine,
or with both.

(3) Any man who commits the offence specified in
clause (iv)of sub-section(1) shall be punished with
imprisonment of either description for a term which
may extend to one year, or with fine, or with both.”

16. The provision of section 354-A of the IPC prescribes that an act

of physical contact and advances with sexual overtures as well as

demand or request for sexual favours would be an offence under the

Penal Code. This new provision was introduced under Criminal Law

(Amendment) Act, 2013 to provide stringent punishment for crime

against the women.

17. Now, in regard to allegations of sexual harassment and criminal

intimidation under section 354-A as well as 506 of the IPC against

accused No. 1 is concerned, the evidence of P.W.12 victim/prosecutrix

is available on record. The P.W. 12 victim herself deposed that when

she had slept in the first floor room that time in the wee hours of night

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she woke up for drinking water and came downstair in the room of

accused No. 1 Allha and saw that both the accused were chitchatting in

the room. The victim prosecutrix further stated in paragraphs No. 8

and 9 of her deposition as follows:

“8. At about 11.00 p.m. I was thirsty with water
hence, I had been to the ground floor to take search
of Alla. When I entered in their room, Alla and Parvin
were talking with each other. As I was going to sleep,
I sleep on one cot and Alla and Parvin were talking
with each other on the another cot. On 4.8.2014 at
about 12.00 to 12.30 a.m. I got awakened and that
time Parvin was not present in the room and Alla was
bolting the door of room from inside. Alla closed the
door of room by inside. Thereafter, Alla came to near
me. He caught hold me and forcibly kissed me. He
was also forcibly insisting me to have a physical
relationship with me. I denied him. Thereafter, also
he was forcibly kissing me and insisting for physical
relationship, hence, I was constrained to push him.
My bed sheet was lying near the cot and when I bent
down to collect it I saw that water bottle was there.
After taking the water I feel it little better and
thereafter, I asked to Alla immediately to leave the
room. It was the time at about 3.00 a.m. Alla asked
me that he will take sleep on the another cot and
thereafter, he slept there on the another cot.

9. In the morning at about 6.00 a.m. Parvin
rushed to my room and took me in her room. The
room from which Parvin took me was of Alla. At about
7.30 a.m. When we were proceeding towards hostel
that time Alla had also left the said room of Shikshak
Bhavan when we were approaching towards the
hostel, Alla threatened me that I should not disclose

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the said incident to anyone otherwise he will defame
me and also kill to me and my family members.”

18. It is the settled rule of law that the evidence of a victim of sexual

assault stands on par with evidence of an injured witness. The

evidence of victim of such sex offence is entitled to great weight. If the

evidence of victim does not suffer from any basic infirmity and

probabilities factor does not render it unworthy of credence, as a

general rule, there is no reason to insist for corroboration. The Hon’ble

Supreme Court in the case of State of Maharashtra Vs.

Chandraprakash Kewalchand Jain reported in AIR 1990 SC 658

summarized the position in the following words-

“A prosecutrix of a sex-offence cannot be put on par
with an accomplice. She is in fact a victim of the
crime. The Evidence Act nowhere says that her
evidence cannot be accepted unless it is
corroborated in material particulars. She is
undoubtedly a competent witness under Section 118
of Evidence Act and her evidence must receive the
same weight as is attached to an injured in cases of
physical violence. The same degree of care and
caution must attach in the evaluation of her
evidence as in the case of an injured complainant or
witness and no more. What is necessary is that the
Court must be alive to and conscious of the fact that
it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by
her. If the Court keeps this in mind and feels
satisfied that it can act on the evidence of
prosecutrix, there is no rule or law or practice
incorporated in the Evidence Act similar to
illustration (b) to section 114 which requires it to

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look for corroboration. If for some reason the court
is hesitant to place implicit reliance on the
testimony of the prosecutrix, it may look for
evidence which may lend assurance to her
testimony short of corroboration required in the
case of an accomplice. The nature of evidence
required to lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a prosecutrix
is an adult and of full understanding the Court is
entitled to base a conviction on her evidence unless
the same is shown to be infirm and not trustworthy.
If the totality of the circumstances appearing on the
record of the case disclose that the prosecutrix does
not have a strong motive to falsely involve the
person charged, the Court should ordinarily have no
hesitation in accepting her evidence.”

19. The intense scrutiny of the evidence of victim/prosecutrix

referred above, in the light of aforesaid legal dictum, reflects that the

accused No. 1 – Allha during relevant period of intervening night in

between 03-08-2014 and 04-08-2014 attempted to ravish victim/

prosecutrix. He ventured to grasp her and by physical contact forcibly

kissed her. He was insisting for physical relations. But, the victim

prosecutrix refused to yield to his advances. The aforesaid

unblemished solitary version of P.W.12-victim/prosecutrix demonstrate

that the accused No. 1-Allha committed the crime of sexual harassment

as envisaged under sub-section (i) and (ii) of section 354-A (1) of the

IPC. Her sole version is sufficient to draw inference against the

accused No.1 – Allha.

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20. The learned trial court found reluctant to accept the statement

of victim/prosecutrix for the reason that, in view of her past as well as

subsequent conduct and demeanour, she would be one of the

consenting and voluntary parties to the affairs, and therefore, accused

No.1 Allha cannot be blamed for his obnoxious behaviour. In view of

attending circumstances, it would hard to persuade the conclusion

drawn by the learned trial court for discarding the allegations nurtured

on behalf of victim / prosecutrix against accused No.1-Allha. It would

imperative to appreciate that the victim / prosecutrix had recently

taken admission in the University just prior to ten days of the alleged

incident i.e. on 24-07-2014 and since then she started residing in girl’s

hostel. Accused No. 2-Parvin was also one of the inmates of the girl

hostel of victim/prosecutrix. It is also worth to mention that the

alleged incident of sexual harassment on the part of accused with

victim/prosecutrix occurred within ten days after her admission in the

University Campus. According to prosecution, accused No.2-Parvin

introduced the accused No.1- Allha with victim/prosecutrix within a

span of these ten days under the pretext of repairing of her cellphone.

In view of such short span of period, it would fallacious to appreciate

that the victim/prosecutrix would develop some sort of affairs with

accused No. 1-Allha, so that she would be considered as one of the

consenting parties to the alleged indecent act of sexual harassment.

Had there been any consent on the part of victim/ prosecutrix for such

immoral act, there would have been more vulgarity and promiscuous

virtue in their activities. But, there were no allegations of any sexual

assault or physical relation in between accused No. 1 – Allha and

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victim/ prosecutrix. Moreover, there was no reason or strong motive

brought on record which goaded the prosecutrix to embroil the

accused by making false allegation in this case.

21. However, in order to lend assurance to the testimony of

victim/prosecutrix, prosecution adduced evidence of P.W. 4- Yogendra

Arekar and P.W. 5-Pundlik Chaudhari, panch witnesses for seizure of

visitor’s register, maintained / preserved in the Shikshak Bhavan

building. The relevant entries in these register indicate that both the

accused and victim during the intervening night of 03-08-2014 and 04-

08-2014 had been to Shikshak Bhavan Building for halt. P.W. 7-Vinod

Chanal and P.W.8 Bhawat Thorat, staff members of Shikshak Bhavan

building disclosed about the visit of accused and victim/ prosecution

during relevant period to Shikshak Bhavan building for stay. These

circumstances corroborate the testimony of victim/ prosecutrix to

establish presence of both the accused and prosecutrix during relevant

night at the scene of occurrence. P.W. 11-Sharda Chavan,

Superintendent of girl’s hostel stated that on the day of incident i.e. on

03-08-2014 accused No. 2-Parvin and victim/ prosecutrix both left the

hostel for going to Jalgaon city. They both submitted application for

going outside the hostel premise. P.W.11-Sharda Chavan made it clear

that both the victim/prosecutrix and accused No. 2-Parvin returned to

the hostel on the following day i.e. on 04-08-2014 at about 10.30 a.m.

They made entry in the relevant register for check in the hostel,

(Exhibit-78). These circumstances are sufficient to point out that

victim/prosecutrix and accused No. 2-Parvin both left the premises of

the girl’s hostel on 03-08-2014 in the noon hours at about 12.30 p.m.

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18 Cri.Al.279-17-I

and returned to the hostel on the following day i.e. on 04-08-2014 at

about 10.30 a.m. This factual aspect fortify the contentions propounded

on behalf of victim/prosecutrix that she was accompanied with both the

accused in Shikshak Bavan building located within University campus

during the relevant night.

22. The evidence of P.W.13-Jully Jayant Agnihotri, one of the hostel-

mate of the victim/prosecutrix is adduced on record. P.W.13 Jully

deposed that she had an acquaintance with accused No. 2-Parvin

being inmate of hostel. In the month of August, she came in contact

with accused No. 1- Allha, after he was being introduced by the

accused No. 2 – Parvin to her. P.W.13-Jully testified about the events

of sexual overtures and advances by accused No.1-Allha with her. But,

she did not respond to his vulgar activities. She further deposed that

on one day she saw that victim/prosecutrix was in nervous mood and

weeping. She took her in confidence and made enquiry. At that time

prosecutrix spill the beans that she was cheated and deceived by

accused No.2- Parvin and accused No.1- Allha. The victim/prosecutrix

further divulged that in the month of August, she had been with

accused in the city for strolling. Thereafter, accused No.2-Parvin

insisted her to stay in Shikshak Bhavan Building for night. She

disclosed about the episode of sexual harassment by accused No. 1-

Allha occurred in the night with her. P.W.13-Jully further added that

they made endeavour to convince the victim/prosecutrix to disclose the

incident to her parents. But, she denied for the same by saying that

accused No.1 -Allha threatened her not to disclose the incident to

anybody else, otherwise he would kill herself and her parents. He had

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19 Cri.Al.279-17-I

also given threats to damage character and educational career of the

victim/prosecutrix. P.W.13-Jully also cast the allegations against the

accused for sexual harassment to herself and consequently her parents

filed complaint to the Police. The evidence of P.W.13-Jully strengthen

the version of victim / prosecutrix on material circumstance of alleged

act of sexual harassment by accused No. 1-Allha to victim/prosecutrix

in connivance with accused No. 2 Parvin. Obviously, the act done by

the accused No.1 Allha with the victim/prosecutrix was lustful

suggestive of sex, and therefore, it must fall within provisions of

section 354-A of IPC.

23. The learned trial Judge considered the discrepancies in the oral

evidence of victim/prosecutrix before the Court as well as in her

statement recorded under Section 164 of the Cr.P.C. before the learned

Magistrate. It is to be noted that, the witness is not like a tape-

recorder. When the victim of sex offence is giving evidence before the

Court under mental stress, her memory may not serve her complete

right. In such mental disposition some sort of discrepancies are bound

to appear in her evidence. But, it does not mean that, her entire

evidence should be thrown at board. The discrepancies brought on

record in the evidence of victim are not of such a nature to devastate

the prosecution case.

24. The learned trial Court also found reluctant to nod in favour of

prosecutrix on the legal issue of delay in lodging the First Information

Report (Exhibit-86). No doubt, the FIR is extremely vital and valuable

piece of evidence for appreciation of allegations against accused. The

lodging of FIR at belated stage would not only gets bereft of the

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20 Cri.Al.279-17-I

advantage of spontaneity, but danger creeps in introduction of coloured

version, exaggeration of the circumstances or concocted story as a

result of due deliberation and consultation. But, in the instant case, the

delay caused in filing FIR does not prove fatal to the prosecution case.

Admittedly, incident occurred during night hours of 03-08-2014 and

04-08-2014 in the ground floor room No. 108 of Shikshak Bhavan

Building located within the campus of North Maharashtra University,

Jalgaon. The FIR came to be filed on 09-10-2014 i.e. after about two

months of the incident. It cannot be ignored that victim/prosecutrix

was the young unmarried girl and student of North Maharashtra

University pursuing study in the first year M. Sc. degree course. She

would normally be not made to expose herself to shame and ignominy

in the campus of University or in the society. The issue of honour of

family of the prosecutrix was also involved for consideration prior to

make public such indecent incident by lodging FIR. It has been

observed that in tradition bound non-permissive society of India, the

girl or a woman would be extremely reluctant to admit any such

incident would ever occur, which would likely to reflect on her chastity.

25. In the matter in hand, initially the prosecutrix was reluctant to

disclose about the incident because of threats on the part of the

accused as well as her apprehension that lodging of FIR would tarnish

and malign her character and educational career. She did not venture

to disclose all these facts even to her parents and friends. P.W. 13-

Jully deposed that when she had given advice to the victim/ prosecutrix

to inform about the incident to her parents that time victim/

prosecutrix denied for the same and said that she would prefer to

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21 Cri.Al.279-17-I

commit suicide. It would inconceivable that the unmarried college

student would go to the extent of staking her reputation, character and

future by implicating accused falsely. This mental turmoil may be an

cause which would prevent the victim/ prosecutrix to approach to Police

at the earliest. But, however, she mustered the courage and filed the

FIR (Exhibit-86). It could be appreciated that the reluctance to go to

Police Station was because of society’s attitude toward such women,

which always creates doubt and shame upon her rather than confront

and sympathize with her. It is to be borne in mind that the college

student like victim would not put her own character and educational

career at stake by making false allegation against the accused relating

to her own character. In the result, delay in lodging FIR does not

found detrimental to the prosecution case. The findings of learned trial

court for disbelieving the evidence of victim/prosecutrix to bring home

guilt of the accused No.1 – Allha appears erroneous, unjustifiable and

not within the purview of law. The learned trial Court failed to

appreciate the evidence on record in its proper perspective and venture

to absolve the accused No. 1-Allha for the heinous charges of sexual

harassment punishable under sections 354-A of IPC.

26. It is evident on record that since occurrence of incident the

prosecutrix was under duress and mental trauma. P.W. 13 Jully on one

day noticed that the friend victim/prosecutrix was weeping. She took

the victim/prosecutrix in confidence and made enquiry, that time victim

/prosecutrix divulged about the alleged incident to her. These

circumstances are sufficient to draw inference that there were threats

of dire consequences to the victim/prosecutrix on the part of accused,

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22 Cri.Al.279-17-I

and therefore, there was delay in lodging FIR. There is no impediment

to conclude that the accused No.1 Allha is guilty of the offence of

criminal intimidation under section 506 of the IPC.

27. Now, turning to the allegations nurtured against the accused

No.2 Parvin for charges of abetment to commit offence under section

354-A of the IPC by the accused No.1-Allha with victim/prosecutrix

punishable under section 107 read with section 109 of the IPC,

prosecution relied upon the factual score of the matter. According to

prosecution, accused No. 2 -Parvin intentionally aided the accused No.

1- Allha, being one of the conspirators, for illegal act of sexual

harassment with victim/prosecutrix.

28. It was not denied that the accused No. 2-Parvin was one of the

inmates of girl’s hostel, and therefore, she was familiar with girls

residing in the hostel. P.W. 12-victim/prosecutrix blamed the accused

No. 2- Parvin for alleged incident, as she was an instrumental for

introduction of accused No.1-Allha with her under the garb of repairing

of cellphone. There were endeavour by the accused No. 2 -Parvin to

bring the victim/prosecutrix nearer to the accused No. 1-Allha. The

victim/prosecutrix came in contact with accused No. 1- Allha only

because of accused No. 2 Parvin. The evidence of victim/prosecutrix

adumbrates that the accused initially tried soft approach for wooing the

prosecutrix and attempted to win her confidence. The accused No. 2

Parvin on the day of incident took the prosecutrix to Shikshak Bhavan

building for halt in that night. It has brought on record that the accused

No. 2-Parvin ventured to persuade to the victim/prosecutrix to allow

the accused No.1 – Allha to kiss her. She conveyed the victim that

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23 Cri.Al.279-17-I

accused No.1 Allha has an desire to kiss her. The victim/ prosecutrix

became aggressive and shouted on them. The victim asked both the

accused to go outside the room. This conduct and demeanour of

accused No. 2- Parvin reflects that she had intentionally and knowingly

aided the accused No. 1-Allha to facilitate him for physical contact and

sexual overtures with victim/prosecutrix to slack his sexual urges.

29. The evidence of victim/prosecutrix further reveals that when she

had slept in room No. 108 of accused No. 1 located on the ground floor

of Shikshak Bhavan building, that time, both the accused were

chitchatting in the room. Thereafter, when she woke up, she realized

that the accused No. 2 -Parvin left the room allowing the accused No.1-

Allha alone to remain in the room with victim/prosecutrix. She did not

prefer to take the victim to accompany with her for going to sleep in

upstairs room. In contrast, the accused No.2 Parvin left the victim

alone in the room at the mercy of accused No.1- Allha. These

circumstances are sufficient to draw adverse inference that accused

No. 2 Parvin was one of the members of conspiracy for doing illegal act

of sexual harassment with victim/prosecutrix. Therefore, there is no

impediment to arrive at the conclusion that prosecution has succeeded

to prove the offence under section 107 read with section 109 of the IPC

against accused No.2- Parvin for abetment to commit offence by

accused No.1 Allha. Therefore, the finding of acquittal of accused No.1

Allha for the charges under section 354-A and 506 of the IPC as well as

charges under section 107 read with section 109 against accused No. 2

Parvin deserve to be set aside and quashed. The accused are required

to be held guilty for these offences.

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24 Cri.Al.279-17-I

30. However, in regard to offence punishable under section 14 of

the Foreigners Act, 1946 is concerned, there are no material on record

to prove that accused No. 2 violated the terms and conditions of visa

and passport issued in her favour for stay in India. Therefore,

circumstances does not warrant any interference in the conclusion

drawn by the learned trial Court for absolving the accused No. 2-Parvin

for the offence punishable under section 14 of the Foreigners Act,

1946.

31. In view of aforesaid discussion, there is no impediment to allow

the appeal partly. The impugned judgment and order dated 16-05-

2016 passed by learned Additional Sessions Judge, Jalgaon in Sessions

Case No. 07 of 2015 is hereby modified. Accordingly, the accused No.

1 – Allha is convicted for the offence punishable under sections 354-A

and 506 of the IPC whereas accused No. 2-Parvin is convicted for the

offence punishable under section 107 read with section 109 of IPC. In

regard to sentence to be imposed for the offence punishable under

sections 354-A and 506 of the IPC against accused No. 1 – Allha and

offence under section 107 read with section 109 of the IPC against

accused No. 2-Parvin, it would justifiable to appreciate that both the

accused were arrested in this crime on 09-10-2014 and since then they

were in jail being under trial prisoners. The learned Additional Sessions

Judge, Jalgaon by impugned judgment and order of acquittal dated 16-

05-2016 directed the Jail Authority to set both the accused at liberty in

the present crime. It does appear that both the accused were detained

in jail for a period more than one and half year being under trial

prisoners. However, in view of nature of offence committed by both

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25 Cri.Al.279-17-I

the accused and gravity of the allegations, I find that, the period

undergone by the respondents/ accused during the course of

investigation/trial, would be sufficient and shall sub-serve the purpose

to meet the ends of justice. Hence, no need to impose any more

sentence of imprisonment or fine, in addition to the period already

undergone by the respondents-accused during the trial of this case. In

the result, I convict the accused No. 1-Allha for the offence punishable

under section 354-A and 506 of the IPC and accused No. 2 -Parvin for

the offence punishable under section 107 read with section 109 of IPC

and impose the sentence of imprisonment to the period already

undergone by them pending trial. The respondents / accused are on

bail pending appeal, their bail bonds stand cancelled. The rest of the

order of acquittal of both the accused under section 328 of the IPC and

acquittal of accused No. 2 Parvin under section 14 of the Foreigners Act

as well as order relating to muddemal properties is hereby maintained

and made confirmed. In sequel, the appeal stands partly allowed in

above terms and disposed of accordingly.

[ K. K. SONAWANE ]
JUDGE

MTK.

****

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