Bombay High Court
Shaikh Mahemood Sk. Osman vs The State Of Maharashtra on 19 March, 2014
Author: A.I.S. Cheema
Bench: A.I.S. Cheema
cria120.00
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IN THE HIGH Court OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.120 OF 2000
Shaikh Mahemood Sk. Osman,
Age-33 years, Occu:Brick Kiln,
R/o-Kagzipura, Tq-Khultabad,
Dist-Aurangabad.
...APPELLANT
(Orig. Accused No.1)
VERSUS
1) The State of Maharashtra.
...RESPONDENT
...
Shri.H.F. Pawar Advocate for Appellant.
Smt. S.G. Chincholkar, A.G.P. for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 7TH MARCH,2014.
DATE OF PRONOUNCING JUDGMENT: 19TH MARCH, 2014.
JUDGMENT :
1. Appellant-original Accused No.1 Shaikh Mahemood has filed this Appeal against the ::: Downloaded on - 29/03/2014 18:58:07 ::: cria120.00 2 Judgment of conviction and order passed by IVth Additional Sessions Judge, Aurangabad in Sessions Case No.35 of 1997. Vide the Judgment dated 29th February 2000, the Appellant-Accused No.1 (hereinafter referred as "Accused") has been convicted to suffer rigorous imprisonment for ten years under Section 366 of the Indian Penal Code, 1860 (for short "I.P.C."). He has also been convicted under Section 365 and 376 of I.P.C. but no separate sentence has been passed for those offences. Along with Appellant-Accused, one Shaikh Amin @ Shaikh Raju (Accused No.2) and Bibibegum w/o Yusuf Pathan (Accused No.3) were also prosecuted but those Accused Nos. 2 and 3 have been acquitted of the charges which were levelled against them.
2. In brief the case of prosecution is :-
. Accused Shaikh Mahemood and the Accused No.2 Shaikh Raju were managing a brick kiln at ::: Downloaded on - 29/03/2014 18:58:07 ::: cria120.00 3 Kagzipura. Complainant Parasram was residing at Kesapuri Tanda, Tq-Khultabad, Dist-Aurangabad and was working as a labourer. His 13 year old daughter (referred in this Judgment as victim "M") along with his brother Laxman used to work on brick kiln which was owned by the brother of Accused Shaikh Mahemood and which was being managed by Shaikh Mahemood.
. In the night between 10/04/1996 -
11/04/1996 victim M went missing, after she had gone to answer call of nature. The complainant and his brother Laxman searched for her. Complainant Parasram filed missing report No.12 of 1996 on 13 th April, 1996. Laxman, brother of complainant 2-3 times had gone to brick kiln to inform that they will not be able to report for work but it was noticed that even Accused Mahemood and Accused No.2 Shaikh Raju were also missing. Thus out of suspicion, first information report dated 19th April, 1996 at Crime No.72 of 1996 at Police ::: Downloaded on - 29/03/2014 18:58:07 ::: cria120.00 4 Station Chhavni, Aurangabad, which was filed by the complainant Parasram claiming that Accused Mahemood and Raju must have taken away victim M for immoral purpose. Police searched for the victim M. P.S.I. Chavan came to know on 25th April, 1996 that the victim M was at the house of Bibibegum Yusuf Pathan (Accused No.3) at Kaisar colony. He went there with staff and the Accused Mahemood along with Shaikh Raju and Bibibegum (Accused Nos. 2 and 3) and the victim M were found there. All the people were brought to the Police Station and the victim M was sent for medical examination to Ghati Hospital. Police seized petticoat of victim on 26th April, 1996. The under- pant of the Accused was also seized.
Panchnama in this regard was drawn. Spot panchnama of Sainath Lodge at Parel, Mumbai was conducted on 14th July, 1996 as it was found in investigation that the Accused had kidnapped and taken victim to Mumbai. Police conducted further investigation and according to prosecution, it was found that the ::: Downloaded on - 29/03/2014 18:58:07 ::: cria120.00 5 Accused Mahemood had forcibly performed registered marriage with victim M at Bandra in Mumbai and also before Kazi. The Accused had sexual intercourse with victim M, repeatedly and had committed rape on her. He had later brought her to Aurangabad and then taken her to Khamgaon and then again brought her back to Aurangabad. Thereafter the Accused had been arrested. The case of prosecution was that in the night of 10th April, 1996 when the victim M had gone for answering call of nature, Accused Mahemood had forcibly taken her in Car to Mumbai and at that time he was accompanied by Accused No.2 Raju and a driver of the Car. The further investigation was completed by the Police. According to the prosecution, victim M was minor at the time of incident.
Charge-sheet was filed before the Judicial Magistrate, First Class, Aurangabad. The matter came to be committed to the Court of Sessions.
3. Before the Sessions Court, prosecution ::: Downloaded on - 29/03/2014 18:58:07 ::: cria120.00 6 brought on record evidence of eight witnesses and other documentary evidence. The Sessions Judge considered the oral and documentary evidence and has convicted the Accused as mentioned above.
4. I have heard learned counsel for the Appellant-Accused and learned A.P.P. for the State. It has been argued by the learned counsel for Appellant-Accused that in the present matter ossification test done on the victim M showed that her age was between 17 to 19 years at the time of incident. Thus, according to learned counsel the victim M could even be of 19 years of age and thus, being more than 18 years of age, she was major at the time of incident. According to the learned counsel, if the case of prosecution and evidence is considered, it is apparent that victim M had voluntarily gone with the Accused and they had even performed registered marriage at Bandra and also before the Kazi. The victim had come along with the Accused by her own will and they ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 7 had even gone to Khamgaon and she did not at any time raise alarm or try to escape or inform anybody which would indicate that she was forcibly taken or was kidnapped or raped. According to the learned counsel, the victim was major and by her own will had accompanied the Accused as they were having a love affair and wanted to marry. In the present matter, victim was not examined by the prosecution, as after about 8-10 months of the incident when the victim was at the place of her parents, she committed suicide. Thus, her evidence was not available. The learned counsel referred to the marriage certificate on record at Exhibit 33 and Sayanama Exhibit 34 relating to marriage in front of Kazi in support of his arguments. The submission is that before the trial Court there was virtually no legal material to hold that the Accused had kidnapped and forcibly taken the victim along with him or that against her wish he had forcibly committed intercourse. It was argued that there is no evidence to hold that the Accused ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 8 committed rape on the victim. The trial Court wrongly read the statement recorded before the Special Judicial Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") as if it was substantive evidence and wrongly relied on hear-say evidence given by the complainant and his brother as well as the P.S.I. regarding what the victim allegedly told them. It is argued that the Sessions Judge relied on the statement under Section 164 of Cr.P.C. as if it was admissible under Section 32 of the Indian Evidence Act, 1872 (for short "Evidence Act") and as if the same was dying declaration, which was not correct. The counsel submitted that if the evidence of the complainant is perused, it was clear that the victim was a major and at the time of investigation, certificate was got prepared from Gram Panchayat to show that the victim was a minor. According to the learned counsel for Appellant, the present matter is a case of no evidence and the Accused should be acquitted.
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5. Learned A.P.P., submitted that the Accused has not disputed that the victim had gone with him. According to the learned A.P.P. the Accused had kidnapped the victim who was a minor.
The statement under Section 164 of Cr.P.C.
recorded by the Special Judicial Magistrate could be relied on as the victim is not alive and there is no other evidence.
6. Points for consideration:-
(1) Whether the prosecution proved that the Accused kidnapped or abducted the victim and if the kidnapping or abduction was with intention to secretly or wrongfully confine her with intention that the victim will be forced or seduced to illicit intercourse?
(2) Whether it is proved that the Accused committed rape on the victim?::: Downloaded on - 29/03/2014 18:58:08 :::
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7. My findings to the above points are in the negative.
8. Judgment of the Sessions Court shows that no specific charge was framed under Section 366 of I.P.C. although the Sessions Judge claimed that ingredients of Section 366-A and Section 366 of I.P.C. are exactly identical and so proceeded to convict the Accused under Section 366 of I.P.C. I have thus not formed point for determination under Section 366 of the I.P.C. as the Sessions Court has not framed charge under that Section.
9. It would be appropriate to first refer to the evidence as was brought regarding the age of victim. Complainant PW-1 Parasram in his evidence claimed that the victim at the time of incident was 13 or 14 years old. Cross examination of Parasram shows that he has a son, Bhagwan who he claimed to be of 11 years of age at the time of ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 11 incident and according to the complainant victim was 13-14 years of age at that time. His cross examination shows that at the time of incident Bhagwan was studying in Matric. If this is so, it is rightly argued by the learned counsel for the Appellant-Accused that Bhagwan at the concerned time should have been at least 16 years of age to be in Matric and if Bhagwan was about 16 years of age, victim who was admittedly 2-3 years older than Bhagwan, would clearly be a major.
10. Then there is evidence of PW-6 Devidas Sitarampant Kulkarni, Professor and Head of Department of Radiology, Government Medical College Hospital, Aurangabad. He examined victim on 25th April, 1996 and had taken her X-rays and has given medical opinion which is at Exhibit 24, that at that time the age of victim should be between 17 to 19 years. Looking to such evidence of prosecution itself, giving benefit of doubt to the Appellant-Accused, it has to be held that ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 12 victim could be even 19 years of age on the basis of medical evidence.
11. PW-8 P.S.I. Dhondiram Chavan in his evidence proved birth certificate Exhibit 32 where the date of birth was entered into the Gram Panchayat record as 7th October, 1982. However, the certificate itself mentions that the date of taking entry was 26th April, 1996, which is after the date of incident, dated 10th April, 1996. The Sessions Court has itself discarded this birth certificate. Looking to the evidence thus, it has to be held that the victim was major at the time of incident.
12. Regarding victim going missing in the night of 10/04/1996 - 11/04/1996 there is evidence of PW-1 Parasram (complainant) and his brother Laxman, PW-2. Both of them have stated that the girl went missing during the concerned night and that they were searching for her. There is missing ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 13 report filed on 13th April, 1996 which is at Exhibit 19. The document has been proved by PW-4, Police Head Constable Jairam Tawade. As per this document, on 10th April, 1996 the incident took place around 8.30 p.m. It was informed by the complainant Parasram that around that time when after having food victim went to answer the call of nature, they slept thinking that she may have came back, but in the morning of 11th April, 1996 it was found that she was not there. Missing report claims that victim was searched by the relatives but was not found and hence the report.
PW-1 and PW-2 are supported by PW-3 Vinayak Jadhav who appears to be related to complainant Parasram.
He also deposed that victim was missing and they had searched for her but could not be traced for 12-15 days.
13. Evidence of PW-1 and PW-2 is that as victim was working at brick kiln of Accused Mahemood where Accused No.2 Raju was also working, ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 14 PW-2 Laxman had gone to inform that victim was missing and so they could not attend the work but it was noticed that Accused Mahemood was also missing along with Accused No.2 Raju. The evidence of these brothers shows that out of suspicion, PW-1 filed report Exhibit 12 to Police on 19th April, 1996 and Crime No.172 of 1996 was registered at Police Station Chhavni. In the F.I.R. It was alleged that the family had slept on 10th April, 1996 at about 10.30 p.m. and victim had also slept. At about 6.00 a.m. on 11th April, 1996 it was noticed that victim was not there. She was searched at the place of relatives but was not found. The Accused Mahemood and Accused No.2 Raju of Kagzipura were also missing since the time victim was missing and so they only must have taken her with immoral intentions, was the suspicion.
14. Evidence of PW-8 P.S.I. Dhondiram Chavan shows that the offence had been registered and the ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 15 same was being investigated. The witness claims that on 25th April,, 1996 he received message that victim was detained at the place of Accused No.3 Bibibegum Yusuf Pathan and along-with staff, he went there and found the victim along with Accused Nos. 1 to 3, and brought them to the Police Station. Evidence of P.W.'s 1 to 3 shows that even they came to know that the victim had been found and was brought to the Police Station Chhavni and evidence of these witnesses is that they had gone to the Police Station and from the victim came to know details of the incident. PW-8 has also given evidence as to what the victim told him and that he recorded her statement. He also appears to have taken her thumb impression on the statement although it was her statement being given in the course of investigation and as per Section 162 of Cr.P.C., the statement was not required to be signed.
15. Evidence of PW-5 Special Judicial ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 16 Magistrate Malhar Sambhaji Deshmukh is that the victim was referred to him for recording statement under Section 164 of Cr.P.C. and he recorded her statement Exhibit 22 on 6th May, 1996. The evidence of this witness records various details as to what the victim had told him as regards her abduction and rape and to which of the places she was taken by the Accused.
16. The prosecution evidence shows that PW-8 took PW-3 Vinayak Jadhav as Panch for seizure of petticoat of victim and under-pant of the Accused for conducting Panchnama Exhibit 16. The same witness was taken as a Panch for the spot at Mumbai where Panchmana Exhibit 17 was drawn. The Spot Panchnama is of Sainath Lodge, Parel at Mumbai. PW-8 has proved entry from the register of the concerned lodge at Exhibit 41 and 42 to claim that the Accused had stayed at the concerned lodge in the name of Shaikh Mahemood Sultana giving his address as resident of Shahanurwadi, Aurangabad ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 17 although he was resident of Kagzipura.
17. C.A. Reports proved at Exhibit 38, 39 and 40 are not much helpful. There was a blood stain on the petticoat of the victim but if the evidence of PW-7 Dr. Bhakti Vijay Kalyankar who had done the clinical examination of the victim is perused, it can be seen that at the time of examination the victim was in her menses. In the clinical examination PW-7 Bhakti found that the hymen of the victim was found to have been ruptured and the tear was fresh.
18. If the Judgment of the Sessions Court is perused, in Para 11 of the judgment, the Sessions Judge referred to the evidence of P.W.'s 1 and 2 as to how they had gone to the Police Station, Chhavni and how victim disclosed to them details how she had gone for easing herself and Accused who was hiding, came there, gaged her mouth, bodily lifted her in the Car to Mumbai. In Para 13 ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 18 of the Judgment, the Sessions Judge again referred to what these witnesses came to know from victim and has then recorded that there is no reason to disbelieve the version of PW-1 and PW-2 to the effect that victim narrated entire incident to them after she was brought to the Police Station.
The Sessions Judge thus held that the version of PW-1 Parasram and PW-2 Laxman in respect of the fact that Accused Mahemood forcibly removed victim from her house at the relevant time and this fact disclosed by the victim to them cannot be doubted.
I find that the Sessions Judge has forgotten that what is relevant is only that victim stated about the incident. What was the actual incident of kidnapping or forcibly taking is something that the victim herself could have deposed. No doubt it is sad that subsequently the victim committed suicide and she was not available at the time of evidence. However, only because of this what the victim told to PW-1 and PW-2 would still remain hear-say as far as regards PW-1 and PW-2 are ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 19 concerned. The Sessions Judge in Para 14 of the Judgment referred to the statement recorded by PW-5 of the victim under Section 164 of Cr.P.C.
and has observed as under:-
"................................... He then recorded her statement u/s 164 Cr.P.C. Meerabai disclosed entire facts before him and he reduced her statement into writing vide Exhi.27. There is no reason to disbelieve his version as regards statement made by Meera, which was reduced into writing. Since Meera is no more alive statement u/s 164 Cr.P.C. would be admissible as per the provisions of Section 32 of Evidence Act. The statement recorded by Special Judicial Magistrate fully corroborates oral version of Parasram and Laxman to the effect that Meerabai was forcibly removed by accused Mahemood at the relevant night when she had came out for easing. It is also borne out from their evidence that accused Mahemood ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 20 threatened Meera to cut her into pieces in case she shouts. Therefore it clearly reveals that Meerabai was taken away against her wish........"
. Such reasoning and finding is not at all maintainable.
19. As regards statement under Section 164 of Cr.P.C., reliance can be placed on the case of Ram Kishan Singh vs. Harmit Kaur and another, reported in A.I.R. 1972 Supreme Court, Page 468, where it has been observed that statement under Section 164 of Cr.P.C. is not substantive evidence and it can be used only to corroborate the statement of the witness or to contradict him.
. Reliance can also be placed on the case of R. Shaji vs. State of Kerala, reported in A.I.R. 2013 Supreme Court, Page 651. Relevant portion of Para 14 and Para 15 and 16 are as under:-
::: Downloaded on - 29/03/2014 18:58:08 :::cria120.00 21 "14. Evidence given in a Court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section 161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C.
can be used for both corroboration and contradiction......
15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak and Ors. v.
State of Orissa and Ors. AIR 1999 SC ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 22 2566: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. and Ors. AIR 2000 SC 2901):(2000 AIR SCW 3150).
16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C.
can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross- examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence."
20. Even Section 32 of the Evidence Act could not have been applied in the manner in which the Sessions Judge has done. Part of Section 32 of the Evidence Act relevant for present purpose needs to be reproduced:-
::: Downloaded on - 29/03/2014 18:58:08 :::cria120.00 23 "S.32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 24 the proceeding in which the cause of his death comes into question."
21. Victim committed suicide after some months of the incident dated 10-11th April 1996 and the statement under Section 164 of Cr.P.C.
recorded, did not relate to circumstances of the transaction which resulted in her death or were cause of her death. The statement under Section 164 of Cr.P.C. could not be said to be statement admissible under Section 32 of the Evidence Act.
It was not at all her dying declaration. She was not anticipating her death on 6th May 1996, when the statement was recorded. It is quite clear that the Sessions Judge did not understand the concept of Section 164 of Cr.P.C. or Section 32 of the Evidence Act. He appears to have got swayed by what P.W.'s 1 to 3 as well as the PW-5 Special Judicial Magistrate and PW-8 have stated. He permitted these witnesses to depose in Court all the details Victim M told them and seems to have ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 25 got carried away by the same. Conviction cannot be based on hear-say evidence and there has to be substantive evidence for holding Accused guilty.
22. The conviction cannot be based on sentiments that the victim has subsequently committed suicide. In the evidence of PW-1 Parasram it is revealed that after the incident when the victim returned home, he did not allow her to go anywhere outside. His evidence is that she committed suicide after eight months of the incident, by consuming poison.
23. In the present matter, the prosecution could have collected evidence of persons at the lodge concerned at Mumbai and other places where the Accused and victim are stated to have resided.
Investigating officer does not appear to have collected any such evidence nor the same has been brought on record. In the cross-examination, PW-8 admitted that enquiry revealed that the Accused ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 26 had performed marriage with the victim. The Investigating Officer volunteered that it was forcibly done. The Investigating Officer admitted that he did not feel it necessary to record statement of Kazi or to even record statements of the employees of Bandra Court (rather Registrar of Marriage), who had issued the memorandum of marriage Exhibit 33. Had such evidence been brought, prosecution could have proved offence as alleged. The evidence would have showed if the victim had gone around voluntarily or was forced.
There is no reason why such witnesses were not brought on record. Only because the victim has unfortunately passed away, the Sessions Judge could not have simply read the hear-say evidence of PW-1, PW-2 and the Special Judicial Magistrate, PW-5, to hold the Accused guilty. There is no legal evidence on record to show that the victim was forcibly taken away or that there was a forcible marriage or that against her wish intercourse was committed with her. For want of ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 27 legal evidence on record, the Accused could not have been convicted for the offences with which he was charged. Points for consideration are thus answered in the negative.
24. For the reasons stated above, I pass following order:-
ig O R D E R (A) Criminal Appeal No.120 of 2000 is allowed.
(B) The conviction and sentence as imposed on Appellant by the Additional Sessions Judge, Aurangabad in the Sessions Case No. 35 of 1997, on 29th February, 2000 is quashed and set aside. The Appellant-Accused No.1 Shaikh Mahemood s/o Shaikh Osman is acquitted of the offences punishable ::: Downloaded on - 29/03/2014 18:58:08 ::: cria120.00 28 under Section 365, 366, 376 of I.P.C., for which he was convicted and sentenced.
( c) Fine if paid, may be returned to the Appellant-Accused.
(D) The bail bonds are discharged.
(E) Property clothes in the matter be destroyed.
[A.I.S. CHEEMA, J.] asb/FEB14 ::: Downloaded on - 29/03/2014 18:58:08 :::