Bombay High Court

The State Of Maharashtra vs Anwar Shamim Shaikh on 11 December, 2014

Bench: S.S. Shinde

                                                          cria396.14
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          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

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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.

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,

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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

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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

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(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

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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.

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

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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

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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.

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

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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

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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

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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,

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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

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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

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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

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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

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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)

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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

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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

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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."