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
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14 Cri.Al.279-17-Ithe 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
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15 Cri.Al.279-17-Ilook 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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