Bombay High Court

Ahmedali Khan Shardulla Khan vs State Of Mah on 13 July, 2016

Bench: A.I.S. Cheema

                                                          Criminal Appeal No.15/2005
                                              1


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD




                                                                               
                                                       
                            CRIMINAL APPEAL NO.15 OF 2005



     Ahmedali Khan s/o Shardulla Khan




                                                      
     Age 25 years, Occu. Business,
     R/o Station Road, Gawlipura,
     Nanded, Tq. & District Nanded.                    ...   APPELLANT
                                                       (Orig. Accused)




                                         
              VERSUS

     The State of Maharashtra
                             
     through Vazirabad Police Station,
     Nanded
     (Copy to be served on Public Prosecutor,
                            
     High Court, Bench at Aurangabad)         ...               RESPONDENT


                      .....
      

     Shri T.W. Pathan, Advocate for appellant
     Shri K.S. Hoke Patil, A.P.P. for respondent/ State
   



                      .....


                                     CORAM:       A.I.S. CHEEMA, J.





                                     DATED:       13th July, 2016.

                      Date of reserving judgment : 16th June, 2016
                      Date of reserving judgment : 13th July, 2016.





     JUDGMENT:

1. The appellant - Ahmed Ali Khan was tried along with

other two accused (Mohd. Iqbal Abdul Habib - accused No.2 and

Shaikh Mujaid Shaikh Chand Pasha - accused No.3) before 3 rd

Criminal Appeal No.15/2005

Adhoc Additional Sessions Judge, Nanded in Sessions Case

No.40/2002 for offence punishable under Sections 366-A, 354,

341, 323, 504, 506 read with Section 34 of the Indian Penal

Code, 1860 (IPC in brief). The other two accused came to be

acquitted of all the charges while the appellant - accused

(hereafter referred as accused) came to be convicted for offence

punishable under Sections 341 and 354 of the IPC. For offence

punishable under Section 341, he was sentenced to suffer simple

imprisonment for one month and for offence under Section 354

of IPC, he was sentenced to undergo rigorous imprisonment for

six months and to pay fine of Rs.5000/-, and in default to suffer

simple imprisonment for one month. The sentences were

directed to run concurrently vide judgment dated 29.11.2004.

Thus, this appeal.

2. The case of prosecution in short is as under :

(a) On 30.8.2001, Krutapalli Satyanarayana, the Head

Master of Andhra Samiti Telgu High School,

Gawalipura, Nanded (hereafter referred as

complainant) filed report with the Police Station,

Vazirabad, Nanded, informing that, the timing of their

school is from 8.00 a.m. to 1.00 p.m. Boys and girls

together studying in their school. On that day, 2

Criminal Appeal No.15/2005

boys from the school, Vinay Naresh Lalwani and

Khan, studying in 10th Standard came to him at about

8.00 a.m. and told him that near the gate of the

school, at about 7.45 a.m., girl studying in the school

was coming to the school, at which time an outsider

boy Ahmed, aged about 25 years, along with three

friends, out of whom one had Splender Motorcycle

bearing No.MH-26-F-1569, surrounded the girl and

threatened, and they tried to take her away, at which

time, 40-50 students of the school went behind them,

still said Ahmed referred to the girl as "Kya Maal Hai"

and so saying, he had kissed her, due to which boys

and girls of the school raised shouts and the girl

started shouting "Save-Save", but the boys did not

leave her, at which time, 2-3 boys of the school went

in front and requested them, but those goonda boys

beat them and abused them, threatening that if they

tell anybody, they will be finished. Then they left the

girl and had run away.

As per the F.I.R., then the said boy Vinay told

complainant that he had brought along the girl. The

girl was crying and the complainant pacified her.

When enquired from the Peon Lalitabai, she also

confirmed the incident. The girl was about 14 years

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of age and to safeguard her future, her name was

being withheld. The complainant informed the police

that, because of the incident, there is atmosphere of

fear in the school and action needs to be taken

against the said Ahmed and his three friends and

incident similar to what happened at Ahmedpur

Mahatma Phule Gandhi College due to one sided love

affair was required to be avoided.

(b)

Receiving F.I.R. as above from the complainant

(P.W.1), P.S.I. Vasundhara Borgaonkar (P.W.11)

registered Crime at No.196/2001 and investigated

the offence. She visited the spot and conducted spot

panchanama (Exh.37). Statements of witnesses and

the victim were also recorded. Accused Ahmed came

to be arrested on 4.8.2001. The motorcycle which

was used at the time of incident was recovered from

in front of house of accused No.2 Mohd. Iqbal vide

panchanama Exh.28. After the investigation, charge

sheet came to be filed.

3. In trial Court, the accused persons pleaded not guilty.

The defence of accused Ahmed is that of total denial.

Prosecution brought on record evidence of 11 witnesses and the

trial Court, after considering the oral and documentary evidence

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brought on record, convicted only the accused No.1 Ahmed for

offence under Sections 341 and 354 of the IPC as mentioned

above.

4. I have heard learned counsel for the appellant -

accused. He referred to the evidence which was brought on

record and submitted that, although the victim identified the

accused as the person who had outraged her modesty, no test

identification parade was held. There was variance in the

evidence of P.W.1 complainant and the investigating officer

P.W.11 Vasundhara as to the time when the complaint was filed.

Other than the victim, the rest of the witnesses were hostile and

contradictions mentioned had been proved. The evidence of

P.W.1, the father of victim showed that he was not interested in

filing the F.I.R. According to the learned counsel, the offence

was not established and the accused deserved to be acquitted.

5. Against this, the learned A.P.P. submitted that, the

victim had deposed and her evidence showed that, the appellant

- accused had outraged her modesty after committing wrongful

restraint, when she was going to school. Although the other

witnesses turned hostile, their evidence still did show that the

incident of attempt to take away the girl of the school had indeed

taken place near the gate of the school. The evidence of the

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victim was supported by such other evidence. There was no

reason for the victim to depose against the appellant - accused.

Her evidence showed that even earlier the accused had been

troubling her and she had come to know the name of the accused

before the incident. According to the A.P.P., the appeal deserves

to be dismissed.

6. Having heard counsel for both sides, I have gone

through the evidence available in the matter. Before discussing

the oral evidence, it would be appropriate to keep in view the

spot where the incident took place. The spot panchanama is at

Exh.37. No doubt, the panch P.W.8 Uttam turned hostile and did

not support the prosecution, however, the details of the spot

have come on record from the evidence of other witnesses, who

have been examined, as well as the evidence of P.W.11

Vasundhara. She has proved the spot panchanam Exh.37.

There is no reason why the investigating officer should be

disbelieved, who was merely discharging her duties. The spot

panchanama Exh.37 shows that the incident took place on the

cement way which is sort of a lane (as can be seen from

evidence of witnesses), near gate of Andhra Samiti School. The

gate of the school is towards south of the spot which was on the

way. The way is about 100 metres long, going east-west. There

appears to be History Research Centre nearby. There is I.M.A.

Criminal Appeal No.15/2005

Bhawan to the west of the school and there is open space in

front. There is another building to the south and nearby there is

narrow way and thereafter there is residence of Head Master of

Khalsa High School having compound.

The cross-examination of the complainant shows

that, this Head Master referred to the way as road coming from

Gawalipura towards their school. He deposed that, from

Gawalipura, there is lane of 15 ft. and thereafter Khalsa Colony is

situated. He deposed that, there are 3-4 houses of Khalsa

Colony and then vacant plot and thereafter I.M.A. Bhawan. The

cross-examination of P.W.3 Vinay Lalwani shows that, the

concerned way is actually a lane from Gawalipura towards their

school and the width of the lane is very narrow to the extent that

only motorcycle can go by that lane. The cross-examination of

P.W.10, the victim brought on record the fact that, on the

concerned lane, two wheelers can pass, but there wheelers or

four wheelers cannot pass. Her evidence is that, for four

wheelers there is another road.

7. The above discussion shows particulars of the spot,

which appears to have been a narrow lane from Gawalipura side

area to come towards the school. The incident is stated to have

taken place on such lane.

Criminal Appeal No.15/2005

8. Coming to the incident, firstly there is evidence of the

complainant. He deposed that, the first shift of the school was

from 7.30 a.m. to 1.00 p.m. and on the day concerned, he was in

his cabin. At that time, the students from his school namely one

Dipak, one Vinayak and Sohel came to his cabin. The cross-

examination of the complainant made it clear that the reference

to Sohel was Sohel Mohsin Khan. This is relevant because in the

F.I.R. he had referred to the names of Vinay Lalwani and Khan

coming and telling him the incident. The evidence of

complainant then shows that, these boys came to him and told

him about the incident. The witness gave details of what was

informed to him by the boys. This I have already referred while

referring to the F.I.R. I am not referring to the details as were

told to this Head Master and regarding which he had given oral

evidence as that would be hear-say for the witness. However,

the relevance remains that immediately after the incident, the

incident was told to this Head Master by students, who had seen

the incident. The boys told the Head Master that, when they had

obstructed the incident taking place, they had been threatened.

The complainant deposed that he made prima facie enquiries and

the incident was confirmed from Peon Lalitabai (P.W.6) also. His

evidence is that, because of the incident there was panic

amongst the students and parents came to know about it and

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met him and expressed their feelings and concern about the

incident and, therefore, he lodged the complaint to the police.

According to him, police wrote down the complainant and he

signed the same. He has proved the document at Exh.26. In the

cross-examination, this complainant accepted that he had not

seen the accused persons on the spot and that he was not eye

witness of the incident.

The cross-examination brought on record admission

of the complainant that initially he did not want to file the

complaint with police and he was thinking and rethinking, but as

the students and parents insisted, he filed the complaint.

Although such admission is taken in the cross-examination, it

would rather explain the small delay, which took place between

the happening of the incident and registration of the F.I.R. which

was done in the evening of 3.8.2001.

The cross-examination further brought on record the

fact that this complainant did call the victim girl to his chamber

and had made enquiries regarding the incident. In the cross-

examination, complainant stated that, he had attended the police

station in the afternoon and not at 7.30 p.m. The accused is

arguing that the evidence of P.W.11 P.S.I. Vasundhara in cross-

examination showed that the Head Master came to the police

Criminal Appeal No.15/2005

station at about 7.00 p.m. and the complaint as dictated by him

was reduced by the witness into writing. Thus, according to the

accused, there are different versions of the complainant and the

P.S.I. The F.I.R. Exh.26 shows that the offence was registered at

about 8.05 p.m. The trial Court has considered the arguments

on this count and found that there was difference of versions of

1-2 hours and it did not mean that the witnesses were speaking

false. I find that, the date of incident was 3.8.2001 and the

recording of evidence started in 2004. Some difference of

version cannot be so doubted, so as to discard the case of

prosecution. With passage of time, such differences are natural.

In F.I.R. this Head Master recorded the time of shift in school as

from "8.00 a.m. to 1.00 p.m.", but in oral evidence, stated it was

"7.30 a.m. to 1.00 p.m." It only shows that witness is not

attentive to details. That does not mean that he is deposing

false.

9. The F.I.R. registered in ordinary course will have to

be upheld specially when there is no material to show that this

complainant had any axe to grind against the accused and rather

there is evidence to show that he was a reluctant complainant.

. Regarding the incident, there is evidence of P.W.3

Vinay Lalwani. He is a student who is supposed to have informed

Criminal Appeal No.15/2005

the Head Master. His evidence shows that, the incident took

place at about 7.30 - 7.45 a.m. when he was going to school

along with his classmate Sohel Khan. He deposed that, there

were 2-3 boys snatching hand of a girl. The girl was shouting

"Bachao Bachao" i.e. "Save Save". This witness deposed that, he

and his friends went near the spot and those boys left the girl

and ran away on motorcycle. According to him, he then went to

the Head Master and narrated the incident. This witness partially

turned hostile and did not support the prosecution with regard to

the fact that the concerned boys had attacked or threatened

these boys. Even regarding the incident of kissing the girl this

witness excused himself saying that it did not happen that the

boy kissed the girl in his presence.

10. Thus, although he did not deny the kissing part of the

incident, he merely wanted to say that it did not take place in his

presence. He was confronted with the statement to police.

Portions A and B have been proved in the evidence of the

investigating officer P.W.11 Vasundhara. It can be said that, this

witness did not come up with the whole truth at the time of

evidence. The evidence of the P.S.I. Vasundhara shows that the

witnesses might not be stating correctly out of pressure. In the

cross-examination of P.W.3 he was asked details regarding the

lane and further admission was taken from him that when he told

Criminal Appeal No.15/2005

the incident to the Head Master, he did not tell any name of the

boy or registration number of the motorcycle and that he did not

know anybody from Gawalipura. Thus, in the cross-examination,

the fact that this witness saw 2-3 boys trying to snatch hand of

girl of the school and the girl shouting "Save, Save" and when

these persons went near the spot, the boys ran away on Hero

Honda motorcycle has not been denied or challenged. The

occurring of incident thus was not disputed.

11. Then there is evidence of P.W.4 Imran Memon, who

also deposed that, on the concerned date and time, the incident

took place near the gate of the school. He claimed that, there

was a crowd of students and he came to know about the incident

regarding outraging modesty of girl of their school. The witness

was declared hostile and portions marked in his statement to

police have been proved against him in the evidence of P.W.11

P.S.I. Vasundhara. Thus, it can be seen that, even this witness

has tried to suppress the truth. Same is the condition of P.W.5

Feroz A. Gani, who was also confronted with the statements to

the police. The Peon P.W.6 Lalita also turned hostile and has

been discredited.

12. P.W.7 Laxmikant, the Laboratory Attendant did not

support the prosecution and the Portion marked A from his

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statement was proved, which showed that the incident had taken

place as is the case of prosecution.

13. The material evidence is of the victim herself, who

stepped into the witness box as P.W.10. Her evidence shows

that, she was studying in the school concerned in 9 th Standard

and timing of the school was 8.00 a.m. to 1.00 p.m. Her

evidence is that, on that day, she went to the school at 7.45 a.m.

The school is in Gawalipura area. According to her, when she

reached up to Indian Medical Association Hall, the accused

Ahmed came there on motorbike. There were 2-3 other boys

also at the place concerned and they started misbehaving with

her. Her evidence is that, 2-3 school boys tried to help her and

the accused persons started fighting with them. Her evidence

shows that, the accused Ahmed along with 2-3 other boys tried

to take her away forcibly by catching her hand. When asked to

specify, this victim stated that, it was accused Ahmed who had

caught her hand. She claims that, when this accused caught her

hand, she told him that her uncle is Inspector and in response,

the accused claimed that, even S.P. was coming to his house for

having tea. She deposed that, thereafter this accused Ahmed

kissed her and nearby people intervened and rescued her. Her

evidence corroborates the complainant that after the incident she

was called to the chamber of the Head Master and enquiries were

Criminal Appeal No.15/2005

made from her. Her evidence further shows that, she identified

the accused Ahmed by naming in the witness box. (See Marathi

version). Her evidence further showed that, prior to the present

incident, for 2-3 days this accused had been troubling her and so

she knew him from prior to the incident.

14. In the cross-examination, the victim was asked if she

had told the police that the accused Ahmed had caught her hand.

She claimed that, she did tell the police. She stated that, she

could not say why this specific portion was not in her statement.

The investigating officer P.W.11 was asked in her cross-

examination if the victim had told her that her hand had been

caught. The investigating officer stated that, the victim did tell

her that, in the course of incident, her hand was caught. The

investigating officer stated that, in the statement it is mentioned

that she was lifted by the boys who were taking her away and

according to the investigating officer, this clearly meant that her

hand had been caught. Thus, victim telling name of the accused

Ahmed was not disputed. Regarding holding of hand, the

investigating officer has explained and thus, it cannot be said

there is any material omission.

The victim was then asked in the cross-examination if

she had told the police that she had told accused Ahmed that her

Criminal Appeal No.15/2005

uncle is Inspector and the accused claimed that even S.P. comes

to his house to have tea. When the victim was asked if she had

made this statement to the police, she deposed that, she could

not assign why police did not record this in her statement.

Omission on this count has been proved in the evidence of

P.W.11 Vasundhara. However, I do not find that, this is material

omission as far as regards the main incident of outraging

modesty is concerned. The victim was then asked if she had told

police that accused was troubling her since last 3-4 days. She

explained that the police asked her what happened on the day

concerned and she told about the incident of that day and as

police did not ask about the past event, she had not told this to

the police. Thus, the victim explained why the concerned fact did

not appear in the statement of police. The evidence appear to be

natural. The victim was hardly in 9 th Standard at the concerned

time. It could be that she stated what she was being asked.

Thus, there is no reason to doubt her evidence when she

deposed that since before the incident the accused had been

troubling her and so she knew him. Thus, the argument that

Test Identification Parade should have been held has no

substance. Victim manhandled in broad daylight is bound to

remember her tormentor.

In the cross-examination, victim was asked and thus

Criminal Appeal No.15/2005

she deposed that, she was knowing name of accused Ahmed

since from one day prior to the incident. Having brought this

detail in the cross-examination, the cross-examiner then wanted

her to explain her statement to police that she had come to know

about names afterwards. Even this was explained by the victim

by deposing that she came to know the name of accused Ahmed

before the incident, but the name of other boys were not known

to her. The cross-examination thus made it rather more clear

that the accused Ahmed had been troubling the victim since

before the incident and the victim had even came to know about

his name and the matter became an issue when on the day of

incident this accused along with other friends tried to forcibly

take her away and matter came to be reported to the Head

Master. In the evidence, the victim did not identify the other

accused or could not tell their names and thus, the other accused

Nos.2 and 3 got the benefit. This can happen as the young

victim may not have paid attention to other supporters of

accused in her effort to ward off the aggressive accused who had

been troubling her. But there was substantive evidence against

accused No.1 Ahmed and the trial Court accepted the evidence.

Going through the reasons recorded by the trial Court, I find that

the evidence of the victim was rightly accepted regarding the

incident as against the present appellant - accused.

Criminal Appeal No.15/2005

15. Lastly, reference needs to be made to the evidence of

P.W.9, the father of victim. (I am not naming him also to keep

identity concealed). His evidence shows that, he was working in

Railways and returned home in the evening of 3.8.2001, when he

got message that police had come and so he went to the police

station. He deposed that, P.I. asked him if he wanted to lodge

the report regarding the incident which had taken place about

the victim. This witness appears to have stated that, he told

police that whatever the Principal had already done was sufficient

and he did not want to lodge any further report. His evidence

shows that, he thereafter came home and his daughter also

reached. He initially deposed that the victim did not tell him

about the incident in the school. He stated that the victim was so

much frightened that she could not tell anything. When he was

declared hostile and confronted with Portion A of his statement,

he deposed that, his daughter had indeed narrated the story as

appearing in the police statement after he came back from the

police station. He deposed that, the victim did tell him that

accused Ahmed had kissed her and others had abused and

threatened her. The cross-examination by the accused brought

further details on record that the victim was so much frightened

that they were subsequently required to accompany her to

school. The accused is trying to say that, it is not clear whether

the victim told her father the incident in the afternoon before he

Criminal Appeal No.15/2005

went to the police or after he came back from the police station.

I find that, this is not material as in any case this witness is not

an eye witness of the incident and when called to the police

station, had declined to file complaint on his own and was

satisfied with the action taken by the police. It shows the

tendency to avoid publicity of such incident. On day of incident,

when victim told her father is not material.




                                         
     16.              In
                             
                              the   cross-examination     of     P.W.11         P.S.I.

Vasundhara, she was shown a certificate dated 3.10.2001, issued

by the Head Master, certifying that the victim had on 3.8.2001

attended the school from 7.30 a.m. to 1.00 p.m. The certificate

was merely shown to the investigating officer in the cross-

examination and the accused claimed and the trial Court marked

the same as Exhibit. It was marked as Exh.55. I do not think

that, by such confronting the investigating officer with the

certificate got issued subsequently from Head Master any benefit

could be taken by the accused. The complainant P.W.1, when he

was in the witness box, was not confronted with any such

statement and contents and signature of the document were not

got proved. The investigating officer was not author of this