Mr. Mohammed Furkhan Mohammed ... vs The State Of Maharashtra ...
2003 Latest Caselaw 1277 Bom

JUDGMENT

1. These two appeals are being herd and decided by this common judgment as they are filed by one and the same accused who happens to be the accused in Sessions Case No. 1995. for the appellant Shri Prakash Naik and Shri Arfan Sait have been heard. For the prosecution Shri K.V. Saste, Additional Public Prosecutor, has been heard. The appellant is assailing the correctness, propriety and legality of the judgment and order passed by the Additional Sessions Judge for Greater Bombay in Sessions Case No. 1499 of 1995 whereby he convicted the appellant for the offence punishable under Section 376 of IPC and sentenced him to under go RI for ten years and to pay fine of Rs. 10,000/-, in default t suffer RI for one year.

2. The prosecution case in brief is that prosecutrix Benzir, daughter of Abdulla Siddiki, was at the relevant time staying with her parents sister Rehmant at Gate No. 7, Plot No. 60, Malvani, Malad, Mumbai and was 18 years of age at the relevant time. She was not keeping well and used to feel giddy often and used to get unconscious often. She was medically treated but she could not come up from such physical disability. On account of this, her mother Salma requested her sister's husband Salim Maniyar PW-7 to do something. Said Salim Maniyar was the resident of Roorki, District Haridwar, Uttar Pradesh and was knowing the present appellant Mohamad Furkhan Mohd. Bashir Joza. The appellant was known to said Salim Maniyar through one Hakimuddin who used to reside at National Bakery, Kurla. Mohamad Furkhan Mohd. Bashir Joza was brought to their house through Hakimuddin on 28.8.1999 at 6.00 p.m. The appellant examined physically victim Benzir, felt her pulse and thereafter he lighted a small lamp (chirag) and told all of them that Benzir was haunted by a ghost and appellant would do some treatment to her. By saying so, he asked the family members of Benzir to bring water from seven houses and nails and told them that he would come on the next day. On the next date i.e. 29.8.1999 he went to the house of the parents of Benzir. Thereafter he took lunch at their house. He was accompanied by PW-7 Salim Maniyar and one Gulzar, his brother. After taking the lunch, in the evening, the appellant told everybody including Rehmant PW-3, Salma PW-3, Gulzar and the brother of Benzir to go out of the house. PW-7 Salim Maniyar and brother of vicitim Benzir went to Goregaon to see their relatives because it was told to all of them by the appellant that as Benzir has been haunted by a ghost, the ghost would release her and would enter in their person and would haunt them. On account of this, PW Rehmant also went to her maternal uncle's house. The brother of Rehmant Gulzar sat outside the house. After that the appellant closed the door of the house and told victim Benzir to sprinkle water all over the house and affix nails in the house. Thus, he kept himself and victim alone the said house.

3. After those nails were affixed, the appellant asked the victime to tell her mother to bring "ajwayan" (locally called as Ova). The said article was brought by the mother of the victim and she gave it to appellant. At 4.45 p.m. victim Benzir opened the door and at that time she was crying and was frightened. When her mother Salma asked her as to what had happened with her, she did not give any reply to her. Then when the sister Rehmant came and at that time victim Benzir told her the incident of sexual intercourse committed by appellant with her under the pretext of giving treatment to her. PW Rehmant in turn told this to her mother and PW-3, her mother Salma, told about this to PW-7 Salim Maniyar and to her brother who arrived at the house sometime immediately after the said incident. PW-2, PW-3, PW-7 and brother of PW-3 talked about the said incident with each other and as they were talking, appellant heard then talking so and he thereafter ran away from the house. PW-7 and brother of PW-3 went out for searching the appellant and they caught him and brought him to Bandra Police Station in the early morning of 30.8.1999. They were to Malvani Police Station and lodged complaint against the present appellant. The Police Station Incharge PSI Bhausaheb Gaykar PW-8 recorded the FIR Exhibit-7 of PW-1, registered crime and thereafter started the investigation. After the investigation was complete, a charge sheet was filed against the appellant and he faced the trial in which he has been convicted and sentenced as mentioned above which is the subject matter of challenge in this appeal.

4. Sarvashree Prakash Naik and Arfan Sait pleaded Cehemently for the appellant. They submitted that there is no other witness to the incident of rape except PW-1 Benzir. They submitted that the evidence of Benzir is also not proving the offence of rape. Both submitted that the medical evidence does not support the prosecution case and appellant has been falsely implicated in this case. While making the submissions this way they made reference to the evidence on record.

5. They pointed out that the appellant was not found at the house of PW-1 and he was caught by PW-7 and brother of PW-3 Salma. Both of them submitted that the appellant has been falsely implicated on account of the property dispute between the family members as he happened to be the resident of Roorkie, District Haridwar, U.P. They submitted that the appellant has been erroneously and illegally convicted and sentenced by the trial Court and, therefore, the said order of conviction and sentence be set aside and he be acquitted by allowing these appeals.

6. Shri Saste, Additional Public Prosecutor, vehemently justified the impugned judgment of conviction and sentence. He submitted that the weak mental condition of PW-1 has to be understood and by understanding that, her evidence is to be assessed. He submitted that she immediately narrated the incident of sexual intercourse with her without consent and against her will to her sister and her sister told it to her mother. Therefore evidence of PWs. 2 and 3 lends strong corroboration to the evidence of PW-1. Shri Saste submitted that the medical evidence corroborates the evidence of PW-1. It is his submission that the evidence of other witnesses also lends strong corroboration to the prosecution evidence and by totality of this evidence, the prosecution has proved the guilt of the appellant beyond reasonable doubt.

7. This Court finds force in the submissions advanced on behalf of the prosecution and comes to the conclusion that the order of conviction recorded against the appellant is correct, proper and legal for the reasons stated hereinunder.

8. Section 375 of IPC fifthly provides that with her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent happens to be the rape in accordance with the definition given by Section 375 of IPC which defines the offence of rape. Here, PW-1 stated that the appellant asked her to sprinkle the water in all corners of the house and asked her to affix the nails and thereafter told her mother through her to bring some Ajwayan. He thereafter as per the evidence of PW-1 gave something to her to smell under the pretext of said Ajwayan and she became sleepy. It is her evidence that after she regained consciousness she noticed that her clothes were open and the blood was coming out from her private part and she was getting pain there. It has been criticized by the defence counsel that PW-1 Benzir did not give the description of the sexual intercourse committed with her and did not tell in her evidence that the said sexual intercourse was without her consent and against her will. There is no basis for this criticism because her evidence shows that she was given something to smell and she felt sleepy and during the stage of that sleepiness, the appellant did something which was her dress open and her private part bleeding. It means that by administering the stupefying drug or intoxicent she was brought to that condition by somebody and that somebody could not be anybody else but the appellant because as per the evidence on record at that time the appellant was also in the said house. Not only that, but he had made all of them to go out by false pretext. Some persons were sent out for bringing some articles and all of them were told that the ghost would release Benzir and would haunt them. The evidence on record shows that all the prosecution witnesses except the doctors were illiterate persons and come from the lower strata of the society.

9. When the appellant was also with the victim at the relevant time, it becomes his duty to discharge the burden of bringing such material on record which would show to the point of probability that it was the victim alone in the said house at the relevant time and he was caught by PW-7 and brought by PW-3 at same place and was falsely implicated. The appellant should have been the best witness to state about this. But he did not enter in the witness box. Nor he examined any person in his defence as defence witness.

10. Thus, the evidence of PW Rehmant that when she came to the house of the victim, the victim told her that the appellant committed sexual intercourse with her by making her to smell said Ajwayan or something. Benzir told Rehmant that she was made sleepy by giving her to smell something under the pretext of Ova. It is her evidence that when Benzir alleged that the appellant was committing sexual intercourse with her, she kicked the appellant. She also told her sister Rehmant that appellant tore her salvar bottom portion near the legs. At the time of committing the said inter course, he had threatened Benzir that Benzir should not tell about that to nobody or he would make her a cat. The evidence of PW-3 Salma is consistent with the evidence of PW-2 Rehmant. She stated that Rehmant stated all these things to her so far as the allegation of committing rape of PW Benzir is concerned. These three women uneducated, coming from the lower strata of the society were cross-examined at length but the cross-examination could not shatter their evidence. The total effect of their evidence is that the appellant gained the confidence of the family who started calling the appellant "Andhakhalu" (blind maternal uncle). He made everybody to go out of the said house by threatening them that the ghost which haunted PW Benzir would release her and would haunt anybody of them. Being uneducated, illiterate, poverty stricken those persons withdrew themselves away from the said house. However, PW-3 Salma, mother stuck up to the said house and was present in the court yard. The appellant must have felt it and thereafter he told her mother PW-3 that some Ajwayan was required. He got that ajwayan and under the pretext of smelling ajwayan he must have given Benzir something to smell which was in fact a sleeping drug and that created the effect on PW Benzir and by taking disadvantage of such bodily condition of Benzir, who was already feeble, weak under the pressure of the magic treatment of the appellant, was easy prey to the lust of the appellant. Significantly that has been brought on record by the prosecution through the evidence of PWs-2 and 3.

11. The Counsel for the appellant submitted that the appellant has been falsely implicated by the said family as there were property disputes between the members of the family at Roorkie, District Haridwar. It that was so, why the appellant would have been called to the house of PW-3 Salma and why he would be asked to give such magical treatment to Benzir PW-1 by remaining alone in the house. No family members were under the influence of the appellant so far as his capacity to drive away so called ghost was concerned. He had created such influence on them and by putting them under such influence, the appellant took the advantage of the situation and helplessness, of PW Benzir and committed the said sexual intercourse without her consent and against her will.

12. The evidence of Salim Maniyar also supports the evidence of PWs 2 and 3.

13. Evidence of Dr. Baban Shinde shows that he had examined the victim on 30.8.1999 between 6.30 p.m. to 7.30 p.m. It is his evidence that when he examined PW-1, he found that her hymen was raptured at point 3, 6, 9 and 12 O'clock. His evidence shows that the said tears and bleeds on touch were within 24 hours. That is the reason of the blood present on the clothes. But that does not explain the blood stains found on her salwar. The blood group of Benzir was "O". It that blood was of Benazir on the clothes, then there would not have been blood of "A" group present on the said clothes. Unfortunately for the appellant and fortunately for the prosecution the appellant's blood group happens to be "A". This medical evidence corroborates the evidence of PWs. 1, 2, 3 and 7 as well as corroborates the evidence brought forth by the prosecution through the certificate of Chemical Analyzer which shows that the blood stains found on the clothes of victim Benzir were of "A" group.

14. When this evidence is assessed carefully, it positively establishes that the appellant must have committed sexual intercourse with victim Benzir without her consent and against her will. It is to be noted at this stage that law does not require corroboration as such to the evidence of prosecutrix in rape case but court looks for such corroboration for assurance. In this case such evidence is available, above level of sufficiency. The prosecution evidence in its total effect proves the charge against the appellant beyond reasons doubt and dispels the theory of enmity brought forth by the appellant.

15. The trial Court has appreciated the evidence on record properly and the conclusions drawn by it are borne out by evidence on record. He has rightly come to the conclusion that the appellant has been proved to have committed the offence punishable under Section 376 of IPC. Thus, the order of conviction deserves to be confirmed and is hereby confirmed.

16. Sarvashree Naik and Arfan Sait submitted that the appellant be shown leniency as he happens to be a blind. Shri Saste opposed it by submitting that the appellant has committed anti-social act and has committed a heinous crime.

17. At the time of considering the plea of leniency, the Court has to keep in view number of factors:-

(a) The age of the accused, the age of the victim;

(b) The physical condition of the accused as well as the victim;

(c) Physical disability suffered by the accused as well as by the victim before commission of the crime and after the crime.

(d) The social stigma or mental trauma which the victim is to suffer therefor, his or her life on account of the offence committed against him by the accused.

(e) The social impact which is likely to be created by the offence committed by the accused in respect of the victim.

(f) The deterrence of the punishment for alarming the like-minded persons.

(g) The social strata of the victim and the accused when the offence was committed.

(h) The larger interest of the society.

18. In this case, the accused happens to be blind. At the same time the victim happens to be manually weak and disabled girl who was unable to go to school on account of physical and mental weakness of which the appellant took the advantage. She was coming from a poor and illiterate strata of the society and was blindly believing the appellant and started restricting him immediately by addressing him "Andha Khalu". At this stage it is important to note that the appellant was so shrewd enough, weaked enough to misuse the confidence and respect shown towards him by Benzir and her family members. The family members of Benzir, the victim, were, as shown by the evidence on record, clean minded persons and they were so simple that they accepted as gospel truth whatever was spoken by the appellant. They believed him that PW-1 Benzir was haunted by ghost. They believed gimmicks played by the appellant by asking them to bring water from seven houses and nails from seven houses. They believed when mother of PW-1 Benzir was asked to bring ajwayan. They never suspected that the appellant was likely to take disadvantage of their respect and faith in him which unfortunately the appellant did.

19. Had Rehmant not been alert, the crime committed by the appellant would have gone unnoticed and perhaps it may not have been taken and accepted by the family members of Benzir that she was so sounded by the said imaginary ghost and appellant would have been dreaming to destroy the house of another family.

20. Such persons canvass their magic power to loot innocent members of the society in cash kind, in virtues and on some occasions making such "believers" to sacrifice their wives, children or the parents. Some of them make them to believe that on account of their such extra-ordinary power, they are capable of removing the poverty, illness, bad luck and by giving them false promise by putting them under such improper influence they loot them by all means. Even they loot such persons of their lives also. Very few surface and come to the notice of the society at large.

21. It the appellant is allowed to be free by reducing his sentence, he would carry on his mission for the purpose of ruining some other family. Who knows that would go the extent of sacrifice of some members also. The appellant happens to be a blind person. But he is having the passion of pacifying his lust. He forgets at such time that he has been unfortunate of being blind. Therefore, his blindness cannot be treated as a matter of sympathy to him in these circumstances. His crime is heinous and more unfortunate than the disadvantage which the appellant is suffering. The appellant has ravished a young girl by putting her under the influence of intoxicant by making her sleepy under the pretext of smelling ajwayan. He played gimmicks for the purpose of stupefying all the members of PW Benzir's family though the appellant himself happens to be a blind person. By playing such influence, he made the members of the family of PW Benzir blind in their wisdom. Therefore, the appellant does not deserve any leniency whatsoever. The crime committed by him on person coming from poor and illiterate strata of the society has to be punished with hammer hand which should herald an alarm to like minded persons when unfortunately the society at large is being cornered by blind people and magical charmers and quacks.

22. Thus, the order of conviction and sentence stands confirmed. Both the appeals stated dismissed. The appellant to suffer the punishment in appropriate prison. No interference in the order of the sentence. Rule in both the appeals stands discharged.

23. Parties to act on ordinary copy of this judgment duly authenticated by the Private Secretary/Sheristedar of this Court.