Bombay High Court
The State Of Maharashtra vs Anwar Shamim Shaikh on 11 December, 2014
Author: A.I.S. Cheema
Bench: S.S. Shinde, A.I.S. Cheema
cria396.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.396 OF 2014
The State of Maharashtra,
Through A.S. Kalamkar,
PSI City Police Station, Sangamner,
Dist-Ahmednagar
...APPELLANT
VERSUS
Anwar Shamim Shaikh,
Age-38 years, Occu:Cleaner,
R/o-Rahematnagar, Sangamner,
Tq-Sangamner, Dist-Ahmednagar
...RESPONDENT
...
Mr. V.D. Godbharle A.P.P. for Appellant.
Mr. M.A. Tandale Advocate appointed for
Respondent.
...
CORAM: S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
DATE OF RESERVING JUDGMENT : 1ST DECEMBER,2014.
DATE OF PRONOUNCING JUDGMENT: 11TH DECEMBER,2014.
JUDGMENT [PER A.I.S. CHEEMA, J.] :
1. This Appeal against acquittal was admitted on 7th July 2014, looking to the material ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 2 against Respondent - original Accused in the form of evidence of his wife and daughter alleging serious offence of rape. Action was directed under Section 390 of the Code of Criminal Procedure, 1973 ("Cr.P.C." in brief), but since the Accused did not ask for bail, he was taken in judicial custody.
2.
The case of the prosecution, in short, is as under:
(A) First Information Report ("F.I.R." in brief) was filed on 28th April 2012 by the wife of Respondent - Accused (hereinafter referred as "Accused"). We will also refer to the Complainant not by her name but only as "Complainant"). The Complainant (PW-1) filed F.I.R., alleging that the Accused, daughter (named in the F.I.R. but will be referred as "Victim") aged 8 years, son Rehman, aged 5 years were residing together. Accused works as a driver. The Accused is addicted to liquor, ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 3 cigarette and to indulge in immoral activities.
She works as maid servant in houses of people. In the night of 13th February 2012 the family slept with the son on the side of Accused, then the Complainant and to her side the Victim was sleeping. At about 2.00 a.m. of 14th February 2012 the Victim shouted loudly and so the Complainant got up. At that time zero bulb was on in the house. At that time, Complainant saw that the Accused had removed his undergarment and was naked. He had removed the Salwar of the Victim and in the private part of the Victim he had inserted his private part and was committing rape on her. This was seen by the Complainant. This led to quarrel between the couple. When the Complainant made inquiries with the Victim, the Victim told that since last 8 days the Accused had been committing rape on her in the house or in the bathroom. The Victim informed that the Accused had threatened her that she should not tell the same to anybody and was giving her Rs.10/- after ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 4 committing rape. The Victim showed the swollen and reddish private part of hers to the Complainant.
Thus, between 6th February 2012 to 14th February 2012 the Accused had committed rape on the Victim, aged 8 years and thus the complaint.
(B) Crime was registered at I-51 of 2012 at Sangamner City Police Station under Section 376, 506 of the Indian Penal Code, 1860 ("I.P.C." in brief) on 28th April 2012 at 13.05 hours. The F.I.R. Exhibit 13 was registered by PW-7 A.S.I. Prakash Pande who was Police Station Officer. The investigation was handed over to P.S.I. Ashok Kalamkar (PW-8). He arrested the Accused (Panchnama - Exhibit 19). The clothes of the Victim were also seized (Panchnama - Exhibit 17) and the clothes of the Accused were also seized (Panchnama - Exhibit 20). The Accused and Victim were referred to medical officer for clinical examination and the reports were collected. Police went to the spot and did Spot Panchnama ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 5 (Exhibit 15). Further steps were taken to collect sample of semen and blood of the Accused. The articles seized wee sent to C.A. and reports (Exhibit 21 to 24) were received. Statement of the Victim was recorded on 10th May 2012. Subsequently charge-sheet came to be filed and the Accused was prosecuted. The offence being Sessions triable, matter was committed to the Court of Additional Sessions Judge, Sangamner, Dist-Ahmednagar. Charge was framed under Section 376(2)(f) and 506 of the I.P.C. Accused pleaded not guilty.
. Defence of accused, as is appearing from the cross-examination of witnesses is that as he is addicted to liquor, the Complainant did not want to reside with him. She had earlier prosecuted him and his relatives under Section 498-A of I.P.C. and had also filed maintenance proceedings. The matter was compromised as Accused was ready and willing to pay maintenance. However, instead of paying maintenance, as he wanted, they ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 6 started residing jointly. As the Complainant does not want to live with him, she falsely brought about this prosecution on ill advice of one Shalan Shelke (PW-5). As regards the incident, his defence is of total denial.
(C) The trial Court considered the evidence of 9 witnesses brought on record, the documents and the law as argued by the parties and for reasons recorded, found that evidence of the Complainant and Victim was totally impeached and belied by medical evidence and thus acquitted the Accused.
3. We have heard the learned A.P.P. for State and learned Advocate appointed for Respondent - Accused and gone through the material available on record. Learned A.P.P. submitted that evidence of the Complainant and the Victim is direct evidence against the Accused and it is unlikely that the wife and minor daughter, hardly ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 7 8-9 years old, would falsely speak against the Accused making such serious allegations. According to the learned A.P.P., the evidence of Doctor shows that if penetration is partial and does not touch hymen then hymen can remain intact.
According to the learned A.P.P. even partial insertion in the private part would amount to rape and the evidence of the Complainant and Victim should not have been discarded only because the medical evidence found that the hymen of the Victim was intact.
4. Against this, the learned counsel for the Respondent - Accused submitted that the trial Court has given various reasons as to how the Complainant was unreliable. The Complainant after the incident, claims to have made grievances to nearby people in the morning and there was no reason why for 2 and 1/2 months she did not file the F.I.R. The medical evidence in the matter is "Nil" as far as regards allegations of rape are ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 8 concerned and in the face of medical evidence, the case of the prosecution was clearly not maintainable that the Victim was raped by her own father - the Accused. Thus, according to the learned counsel for Accused, the acquittal needs to be maintained and present Appeal should be dismissed.
5. The evidence of PW-1 - Complainant and PW-6 - Victim (aged 9 years at the time of evidence) is that the Accused committed rape on Victim for about 8 days. The Victim deposed that when the mother - Complainant was going out for work, the Accused was taking her in the bathroom and removing her Frock and Salwar and then was kissing her and was inserting his private part in her private part. According to the Victim, such acts were committed five times. The evidence of these witnesses is that the last instance took place in the night of incident. According to the Victim, the Accused pushed her Frock upward and ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 9 removed her Salwar and inserted his private part into her private part and she shouted and her mother woke up. Evidence of these witnesses is that this led to the quarrel but Accused threatened the Complainant that she should not disclose the incident to anybody or else he will kill the Victim and the Complainant and the son.
The evidence of the Complainant is that she had examined the private part of her daughter. The same was reddish in colour and there was swelling.
. Now the question is whether such evidence of these witnesses PW-1 and PW-6 is reliable.
6. There are various aspects of the matter which make it difficult to accept the above evidence. First aspect is the fact that the Complainant claims that in the morning of the concerned night when the Accused went out from the house, she raised shouts and some persons gathered at her house and she disclosed the incident to ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 10 those persons who were her neighbours. The cross-
examination of the Complainant and the Spot Panchnama shows that the house of the Complainant was consisting of one room out of three rooms adjacent to Noor Mohammad Masjid. The cross-
examination brought on record various details as well as the Spot Panchnama shows that there were many people of the same community residing nearby and various persons were visiting the Masjid for prayers five times in a day and there was also Dargah nearby where all the time people were visiting. The spot is at Rahematnagar at Sangamner. Thus, it is clearly on record that in such locality in the morning itself the Complainant claims to have raised shouts and told people about the incident. Thus, it is not a case where the family goes in dilemma whether or not to make the incident public. Inspite of making the incident public, the Complainant did not file complaint for about 2 and 1/2 months. The incident dated 14th February 2012 was reported only on 28th ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 11 April 2012.
7. Another aspect of the matter is that the Complainant was not a person naive to the existing system of approaching the police or the Courts.
The record shows that on earlier occasion she had not only brought about maintenance case by approaching the Courts but had also brought about prosecution under Section 498-A of I.P.C. against the Accused. She had pursued the prosecution under Section 498-A of I.P.C. for about 2-3 years.
Inspite of thus knowing the system, she did not go and file a complaint.
8. The evidence of Complainant is that after 2-3 days of the incident she went to PW-4 Julekha but Julekha informed her that she was contesting election and to come to her after 2-3 days, but thereafter could not meet Julekha as she was busy in meetings. PW-4 Julekha has been examined. Her evidence is that after 2-4 days of election, ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 12 Complainant had come to her and disclosed incident to her and she had advised the Complainant to go to one Shalan Shelke. Evidence of PW-4 Julekha does not disclose as to when was the election and what exactly was informed to this witness. The evidence is not of any help to the prosecution.
. The Complainant has deposed that she had met this PW-4 Julekha after two months and at that time was told to go to Shalan Shelke and so she went to Shalan Shelke and then went to the police station.
9. Evidence of PW-5 Shalan Shelke shows the witness is claiming to be a social worker and the witness has deposed that Complainant came to her for legal advice and so she took the Complainant to police station but as P.I. was not there, they again went after two days and then the offence was registered. The cross-examination of PW-5 Shalan Shelke shows that when the Complainant came to ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 13 her, discussion took place between them as to what steps should be taken against the Accused and the witness admitted that as per discussion taken place in her office, the complaint was lodged against the Accused in the police station. Thus, not only the F.I.R was delayed but it was filed after due deliberation.
10. Evidence of Complainant further shows that one Anwar Hajam is her brother and she also knows person namely, Nasir Mulla. She admitted in cross-examination that when ever there was quarrel in her house, her brother Anwar Hajam and said Nasir Mulla were making efforts to settle the quarrel. She admits that they were taking decision for taking necessary steps whenever quarrel was taking place in between her and Accused. At one point in the cross-examination, the Complainant admitted that when she went to file complaint to the police, she was accompanied by not only PW-5 Shalan Shelke but also this Anwar Hajam. Of ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 14 course, she immediately retracted, claiming that her brother was not with her. The evidence shows that this Complainant was having support from near relative also who was all the time intervening in the alleged quarrels. Inspite of this, the Complainant did not file the complaint for 2 and 1/2 months.
11. Coming to the other aspects, apart from the delay in filing of the F.I.R., there is evidence of PW-9 Dr. Sanjay Ghogare. Record shows that after registration of F.I.R. On 28th April 2012, the Victim was referred to this Doctor. This witness has deposed (in Para 4) as under:
"4. Secondarily sexual characters were not developed due to less age of the prosecutrix. As per my local examination, labia majora and labia minora were present.
Hymen was intact. No tear, blooding or discharge was noticed. There was no ::: Downloaded on - 11/12/2014 23:47:40 ::: cria396.14 15 evidence of any fresh or old injury on body or genitelia."
. The Doctor PW-9 had accordingly issued certificate Exhibit 36. The A.P.P. asked this Doctor and he deposed that if penetration is partial and does not touch the hymen, then hymen can remain intact. Although such evidence was brought, if the case of prosecution is seen as stated by the Complainant and Victim, it is not a case of partial penetration. Both, the Complainant and Victim deposed that the Accused had inserted his private part in the private part of the Victim. Had it been a matter where single instance was claimed, one could have thought that may be at the stage of partial penetration itself the Victim shouted and so Accused got caught. However, even this is not the case of the prosecution, as the Complainant and Victim claimed that there were multiple encounters. In the night of incident concerned, of course the Complainant was there but ::: Downloaded on - 11/12/2014 23:47:41 ::: cria396.14 16 if on earlier occasions the Victim was alone at home, there would have been nothing to prevent the Accused from committing a complete act. If really the Accused had the perversity to violate his own daughter and on multiple occasions was indulging in such acts, it is not appealing that he would just stop at partial penetration. Although the Complainant deposed that she had seen swelling and reddishness to the private part of the Victim, the Doctor PW-9 did not find that there were any old injuries to the private part of the Victim. The evidence is that old injuries of private part of female can be identified at late stage inspite of the fact that injuries were healed. Doctor did not find any fresh or old injury on body or area of private part. The cross examination of the Doctor shows that if 38 years old person (like the Accused) was to penetrate his private part into the private part of girl of 8 years, then the hymen of the girl would rupture and there would be tear on the private part of the girl.
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12. The substance of the above discussion is that the hymen of the Victim was intact and there were no fresh or old injuries to her private part.
Thus, the medical evidence in this matter does not at all match with the oral evidence of the Complainant and Victim that the Accused was on multiple occasions penetrating his private part into the private part of the Victim.
13. Coming yet to the aspect of the manner in which the investigation has been done, even here there are reasons to doubt the approach. Evidence has been collected that after the offence was registered on 28th April 2012, the Accused was arrested and police collected the clothes of the Accused as well as the Victim under Panchnamas.
Evidence has been brought that these articles were sent to C.A. It is surprising that for incident dated 14th February 2012, and clothes seized on 28th April 2012, the C.A. Report (Exhibit 22) ::: Downloaded on - 11/12/2014 23:47:41 ::: cria396.14 18 finds the underwear of the Accused and Kurta of the Victim having semen on the same. This is found in the face of the evidence of Complainant herself who admitted in the cross-examination that the clothes of her daughter were washed by her and kept separately before producing the same before the police. There is substance in the suggestion made in the cross-examination to the Investigating Officer PW-8 Ashok that after seizing the clothes of Accused and Victim, he sprinkled semen of other person on the underwear of the Accused and Kurta of Victim. It is unlikely that if such incident had happened, Accused would continue to wear or keep the same underwear with semen on it and would not wash the same for so long. Thus, the investigation does not appear to have been fair.
Yet another aspect regarding the approach of the Investigating Officer PW-8 can be seen from his cross-examination that although the offence was registered on 28th April 2012 and Victim was on multiple occasions available for recording ::: Downloaded on - 11/12/2014 23:47:41 ::: cria396.14 19 statement, he did not record her statement till 10th May 2012. The cross examiner brought on record various details to show that the statement of the Victim could have been recorded earlier but the Investigating Officer did not choose to do so.
14. Learned counsel for Accused relied on the case of Md. Jamiruddin Ahmed vs. State of Assam, reported in 2008 CRI. L.J. Page No.586. In that matter also there was allegation of rape on a girl less than 12 years of age by an adult boy and it was found that the evidence of prosecutrix was impeached and belied by medical evidence since there was no symptom of sexual intercourse or any sexual assault. Reliance was placed by the learned counsel for Accused also on the case of Yerumalla Latchaiah vs. State of A.P., reported in (2006) 9 Supreme Court Cases Page No.713. Para 3 of the Judgment reads as under:
"3. In the present case, age of the victim ::: Downloaded on - 11/12/2014 23:47:41 ::: cria396.14 20 was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K. Sucheritha (PW 7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction."
. Looking to these aspects, Hon'ble Supreme Court allowed the Appeal, and conviction and sentence of the Appellant therein was set aside.
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15. We find that the Judgments relied on by the learned counsel for Accused are material. The facts of the present case also are similar and in the present matter also medical evidence belies the case of the prosecution that there were multiple encounters of inserting of private part by the Accused in the private part of his 8 years old daughter.
16. We have gone through the various reasons recorded by the trial Court for acquitting the Accused. We agree with the trial Court that the Complainant and Victim are totally impeached and belied by the medical evidence. We do not find any perversity in the Judgment of the trial Court.
The view taken by the trial Court is clearly a possible view. We do not find any reason to interfere.
17. The Appeal is rejected. The Accused -
::: Downloaded on - 11/12/2014 23:47:41 :::cria396.14 22 Respondent be released forthwith, unless required in any other offence.
. Fees of the appointed counsel for Respondent- Accused is fixed at Rs.8,000/- (Rupees Eight Thousand only).
[A.I.S. CHEEMA, J.] [S.S. SHINDE, J.] asb/DEC14 ::: Downloaded on - 11/12/2014 23:47:41 :::