Bombay High Court
Mohammed Farooq Abdul Rauf vs The State Of Maharashtra on 24 September, 2009
Author: A.P.Bhangale
Bench: A.P.Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO: 538 /2008
Mohammed Farooq Abdul Rauf
Aged 37 years, occu: Agriculturist
and R/o Asadpur, Tal.Achalpur
Dist. Amravati. ( IN JAIL) ... ...APPELLANT
v e r s u s
The State of Maharashtra
Through its Police Station Officer
Asegaon Tq.Chandur Bazar, Dist.
Amravati. .. ...RESPONDENT
............................................................................................................................
Mr Shashikant Borkar, Advocate for appellant
Mr.Anup Parihar, Addl. Public Prosecutor for Respondent
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CORAM: A.P.BHANGALE, J.
DATE OF RESERVING: 14.09.2009
DATE OF PRONOUNCEMENT: 09.2009
ORAL JUDGMENT :
1. By means of this Criminal Appeal, the appellant is challenging the judgment and order of conviction and sentence passed by learned 1st Ad-hoc Additional Sessions Judge, Achalpur, Dist. Amravati in Sessions Trial No. 3/2008 decided on 27th June, 2008. The appellant was found guilty of the offence punishable under section 376(2)(f) of the IPC and ::: Downloaded on - 09/06/2013 15:07:00 ::: 2 sentenced to suffer R.I. for ten years and to pay a fine in the sum of Rs.
500/- in default, to suffer further simple imprisonment for three months.
2. The case of the prosecution, in nutshell, can be summarized as under :
At Asegaon Police Station, Dist. Amravati, First Information Report was lodged by Baby Nandne -(PW 5) reporting offence of rape upon her daughter, by name, Shital-(PW 6), aged about 8 years old, studying in II standard, giving rise to registration of Crime No. 79/2007 lodged on 25.9.20007 against Mohammed Farooq (appellant ), alleging that he had committed rape upon Shital by taking her to a bath-room of an adjacent house. After completion of investigation, the appellant was charge-
sheeted under sections 376 (2)(f) and 506 of the Indian Penal Code before the learned Judicial Magistrate, First Class, Chandur Bazar. The case was committed for trial to Sessions Court at Achalpur.
3. The charge was framed on 5.2.2008 under sections 376(2)(f) and 506 of the IPC to which the appellant pleaded not guilty and claimed to be tried.
4. The prosecution examined as many as seven witnesses in support of its case. After closure of prosecution evidence, the appellant was questioned under section 313 of the Cr.P.C. He denied the prosecution case and pleaded innocence, alleging that since he had closed way from his field by a thorny fencing and parents of Shital had raised a quarrel, the witnesses deposed falsely against him. The appellant however, did not ::: Downloaded on - 09/06/2013 15:07:00 ::: 3 adduce any defence evidence.
5. The learned Additional Sessions Judge, Achalpur, after hearing both sides, found the appellant guilty of the offence punishable under section 376 (2)(f) of the IPC and sentenced him to rigorous imprisonment for ten years and to pay a fine in the sum of Rs. 500/- ,in default, to suffer simple imprisonment for three months.
6. I have heard learned Advocate Shri Shashikant Borkar, for the appellant and Mr Anoop Parihar, learned APP for the Respondent- State and perused the papers.
7. The point which arise for consideration is as to whether the conviction and the sentence passed by the trial Court against the appellant herein is sustainable or not ?
8. Prosecutrix-girl, aged about 8 years old, is examined as PW 6.
Oath was not administered to her. She appeared initially highly reluctant to state about the incident but her examination-in-chief resumed after few days. She narrated that the appellant had taken her to the bathroom of one Ranjana, offering Rupee one or Rupee two; the appellant removed his pant and underwear and also removed her underwear and committed sexual intercourse with her. Thereafter, she placed her hand on private part and went to her house. She narrated the incident to her mother (Baby, examined as PW 5). Later they went to submit a report. She also stated about the incident to the Police along with her mother. Police took her to the Hospital at Asadpur on 26.09.2007. Dr.Revati (PW 1) examined the ::: Downloaded on - 09/06/2013 15:07:00 ::: 4 prosecutrix and found that no secondary sexual characters were developed.
She also did not notice external injury ; however found that hymen was torn but no active bleeding was noticed. The Doctor did admit that hymen may be torn by any other reason. PW- 3 deposed about birth date of victim Sumitra @ Shital as 18.12.2000, studying in II standard in the academic year 2007-08. (Certificate: Exh.18) proving that prosecutrix was minor girl aged about 8 years. Baby (PW 5) deposed that Shital, her daughter, narrated the incident of rape by appellant. Learned Advocate for the appellant contended that the trial Court ought to not to have given much importance to observation "hymen was torn" as it can be torn for any reason, as admitted by the Doctor.
9. Learned Advocate for the appellant assailed evidence led in the trial Court, on the ground that prosecutrix when entered in the Witness Box on 4.6.2008 vividly stated that on the date of the incident she had attended the School. She had returned to her house in the evening. She was found not giving answers and did not state anything about the alleged incident.
Her examination-in-chief was deferred to 12.6.2008 when she narrated the alleged incident. According to prosecutrix, she was with one Ankush While playing, she had gone to the house of Kavita with Ankush and Sharda. She stated that the appellant had taken her to the bathroom of Ranjana. She also alleged that the appellant had committed sexual intercourse with her. She alleged that appellant had sent Ankush for watering the plants. Kavita, Ankush and Sharda who could have been ::: Downloaded on - 09/06/2013 15:07:01 ::: 5 material witnesses to corroborate the incident were not at all examined. If prosecutrix went with Sharda and Ankush to the house of Kavita, they were essential witnesses to throw light upon the happening just prior to, at the time of or consequent to the alleged incident of rape. There was clear admission by the prosecutrix in the course of her cross-examination that on the date of the incident, she went to the School at 10.,00 a.m. and returned at 5.30 p.m. She further admitted that when she did not depose about the incident, her father and mother beat her. Evidence of prosecutrix in para 4 runs thus:
" I used to go to School at 10.00 A.M. And return at 5.30 P.M. It is true that as rice (Kichadi) is provided in the school, I remained in the School in the noon. It is true that on the date of incident, I went in the School at 10.00 A.M. and returned at 5.30 P.M. I had attended the court with my mother and father today and previous two dates It is true that as on previous date I had not deposed about the incident, my mother and father beat me. It is true that my mother stated me that I should depose that accused stated to accept Rupee one and Rs. Two and that the accused had removed his pant and underwear and also my underwear and committed sexual intercourse with me It is true that on the say of my mother I had stated the incident to the Police at the time of my statement. It is not true that I do not know the accused. It is true that I deposed today as per say of my mother."
This indicate as to how the prosecutrix was a tutored witness and likely to have given an improved and parrot-like version before police and later on, to the trial Court.
::: Downloaded on - 09/06/2013 15:07:01 ::: 69. PW 5 Baby - mother of the prosecutrix admits in Para 2 :
".................It is true that my daughter is too young she does not understand what is rape. The witnesses whose surnames are Nandne are my relatives. It is true that school hours of my daughter are from
10.30 a.m. till 5.30 p.m. On the day of incident, my daughter Shital had attended the School."
10. In the FIR (Exh.26), it is averred :
"At that time my nephews namely, Kavita Suresh Nandane, Madhuri Mahadeo Nandane and Ankush Sukhdeo Nandane told me that at about 2.30 o' clock in the afternoon, my neighbour Faruq Musalman, the owner of the (Akhar) agricultural land called Shital in the bathroom, of Ranjana Tayade and after removing the knickers of Shital, he removed his own full pant and underwear and thereafter committed forcible sexual intercourse with her. They further told that since they had seen the said incident, they raised shouts and because of that he showed his clean pair of heels."
The FIR indicate that Kavita, Madhuri and Ankush were eye witnesses. However, their non-examination by the prosecution create reasonable doubt about genuineness of the incident.
12. PW 5 -Baby also admitted in her cross-examination :
"Para 3: While going to the school house of Ranjana Tayade is not on the way of school. It is true that the accused was not on visiting terms to my house. Beyond Bhoi locality there is 3 acres field of the accused. Thereafter, there is Chadrabhaga river. There is temple of Marimai Goddess in the field of the accused. The accused is not having cordial relations with me, my husband and people of my locality. It is true that the accused was saying that we are damaging his fencing and using his field for nature's call and there is no way from his field to approach the temple in his field. Subhash Nandne is the brother of my husband.
It is true that on the ground of closing of way on ::: Downloaded on - 09/06/2013 15:07:01 ::: 7 24.9.2007 by accused and Subhash Nandne there was quarrel. It is true that on the the next day myself, my husband and some persons of my locality decided in the meeting and then report was submitted"
13. Learned Advocate for the appellant argued that the learned trial Judge was misled by Dr. Revati's observation in regard to torn hymen ; but the same Doctor admitted that it may be torn by any other reason, inasmuch as prosecutrix was playing with one Ankush and others and as such, it was quite possible that hymen may be torn due to playing or because of any other reason.
14. The evidence led in this case do not inspire full confidence to believe it as natural or truthful. The evidence referred above created doubt about genuineness of the version of the prosecutrix and her mother-Baby (PW 5) whose evidence was also of hearsay nature. The prosecutrix had admittedly attended the School on the day of incident and, therefore, trial Court ought to have considered the conspectus of the evidence creating reasonable doubts about the genuineness of accusation against appellant.
The Public Prosecutor concerned did not re-examine the prosecutrix or her mother regarding the admission in cross-examination that prosecutrix attended the School on the day of the incident. The admission gives rise to a serious doubt as to whether the incident of rape really happened on that day, at noon -time, if victim girl had admittedly attended her School for the day.
15. It is common knowledge as well as normal rule that ::: Downloaded on - 09/06/2013 15:07:01 ::: 8 uncorroborated testimony of prosecutrix is accepted to nail a rapist, but the Court cannot shut its eye on probability of false, motivated accusation due to dispute between the complainant's family members and the appellant prior to the alleged incident. A doubt therefore do arise in the facts and circumstances as to whether prosecutrix was persuaded by her mother, father etc, close relative like a gullible or obedient daughter to make false charge of rape against appellant for to avenge closing of a disputed right of way of appellant through the field of the appellant to the temple of deity "Marimai" situated in the field of the appellant. The evidence of prosecutrix and her mother when read as a whole, is intermingled with doubts, discrepancies, shortcomings, and does not inspire full confidence. The evidence in its totality does not warrant a safe finding of guilt.
16. This Court in Suresh Govindra Nagdive and another vs. State of Maharashtra reported in 2008 Cr.L.J. 2943 ( Bombay High Court ) observed in para 12 " It is necessary to bear in mind that although no corroboration to the evidence of the prosecutrix is necessary, still it has to be reliable for basing conviction. If there is any doubt about its reliability and trustworthiness, such evidence cannot be treated as a basis for conviction of the accused."
15. In view of the above, this Court is of the view that the trial Court has misled itself in to error in arriving at a positive finding of guilt.
The judgment and order of the trial Court court cannot be countenanced and is rather indefensible and unsustainable. The conviction, therefore, has to ::: Downloaded on - 09/06/2013 15:07:01 ::: 9 be set aside, for want of proof beyond reasonable doubts. In the result, the appellant is acquitted of the offence punishable under sections 376(2)(f) of the IPC. He shall be set at liberty forthwith, if his detention is not required in any other case. Appeal is,thus, allowed accordingly.
JUDGE sahare ::: Downloaded on - 09/06/2013 15:07:01 :::