Bombay High Court
Mohd Sharif S/O Latif Rehman ... vs The State Of Maharashtra on 17 March, 2016
Bench: A.M. Thipsay
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1030 OF 2013
MOHD.SHARIF S/o. LATIFUR REHMAN )
SHAIKH @ BILAL )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Shri K.M.Mhatre, Advocate for the Appellant.
Shri A.R.Patil, APP for the Respondent - State.
Shri Satyavrat Joshi, Amicus Curiae, present.
CORAM : ABHAY M. THIPSAY, J.
DATE : 17th MARCH 2016.
ORAL JUDGMENT :
1 This appeal is directed against the judgment and order
dated 14th August 2013 passed by the Additional Sessions Judge,
Greater Bombay, convicting the appellant of an offence punishable
under Section 376 and Section 506 (Part I) of the Indian Penal
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Code (IPC). The learned Additional Sessions Judge sentenced the
appellant to suffer Rigorous Imprisonment for 10 years and to pay
a fine of Rs.10,000/- with respect to the offence punishable under
Section 376 of the IPC, and to suffer Rigorous Imprisonment for 1
year and to pay a fine of Rs.2,000/- with respect to the offence
punishable under Section 506 (Part I) of the IPC. Being aggrieved
by his conviction and the sentences imposed upon him, the
appellant has approached this court by filing the present appeal.
2 I have heard Shri K.M.Mhatre, the learned counsel for
the appellant. I have heard Shri A.R.Patil, the learned APP for the
State. I have gone through the entire evidence adduced during
the trial. I have gone through the impugned judgment.
3 The appellant is alleged to have raped the younger
sister of his wife. The prosecution case, in brief, is that, the sister
of the prosecutrix got married to the appellant on 5 th October
2010. That, as the appellant had no place to stay, he started
residing with his wife in the house of his in-laws. While staying
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there, the appellant used to wake the victim up in the night, take
her to gallery, and used to have sexual intercourse with her.
According to the victim, she never consented for such an act, but
the appellant would forcibly have intercourse with her. The victim
did not disclose the incidents to any of her family members as she
was scared of the appellant and as the appellant had threatened to
the victim that he would divorce her sister.
After a few months, the appellant and the sister of the
victim went to reside at Govandi. The mother of the victim went
to a Darga at Gujarat. The victim's father once went to their
village for some work. The mother of the victim, had, in that
situation, instructed the victim to go to her sister's house, i.e. the
house of the appellant and the victim did accordingly. The brother
of the victim had also accompanied her. While the victim was
staying with the appellant, in the house of the appellant, the
appellant again raped her on a number of occasions. The victim
had some quarrel with her sister, and the sister of the victim had
asked her to leave the house. Apparently, the victim was
searching for a job and had found some work in a house at
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Byculla. The victim then started residing in the house of her
employer. However, once the victim's brother telephoned her and
called her to her sister's house, i.e., the appellant's house. The
victim refused, but the sister telephoned at the place where the
victim was working, and the employer of the victim then asked
her to go back. This is how the victim was forced to go back to
her sister's house. The victim, however, did not like to stay there
and went back to her employer's house at Byculla. The sister of
the victim, however, called the victim back by telling that Noor -
son of victim's sister - was not well. The victim went to her
sister's house, and found that a false reason had been given by her
sister to call her back. The victim continued to stay with her
sister, as she had already lost her job. With the acquaintance of
one Rubina, who was doing a course of beauty parlour, the victim
started going to beauty parlour. She came in contact with a social
worker - Bhavna Kamble (PW3). The victim told Bhavna that she
wanted to stay in hostel, whereafter, Bhavna took her to Children's
Home. The victim narrated what had happened to her, to one
Sunita Madam, who was a Probation Officer attached to the
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Children's Home. Sunita Madam then called the police, enquiries
were made, and a case of offence punishable under Section 376
of the IPC and Section 506 (Part I) of the IPC was registered. The
appellant came to be arrested. He was prosecuted, convicted, and
sentenced, as aforesaid.
4 Totally six witnesses were examined during the trial.
The first is the victim herself. The second witness is Dr.Baban
Shinde, who had carried out medical examination of the victim.
The report given by him was tendered in evidence (Exhibit 15).
The third witness is, as aforesaid, Smt.Bhavna Kamble - social
worker - who had come in contact with the victim. The fourth
witness P.S.I. Kalpana Sawant is the one who had recorded the
statement of the victim, which was treated as First Information
Report (FIR) (Exhibit 10) and on the basis of which, a crime
report being C.R.No.34 of 2012 was registered. The fifth witness
is also a policeman - P.I. Nandkumar Shirke, who was attached to
Sewree Police Station at the material time, and who had, after
carrying out investigation into the matter, filed a charge-sheet
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against the appellant. The sixth and the last witness is one Khan
Mohd. Javed Moazzam Ali, in-charge Head Master in S.S.Reynolds
Municipal Urdu Secondary School, where the victim, at the
material time, was staying. This witness was examined to prove
the date of birth of the victim. Through him, a 'bonafide
certificate' issued by Madanpura Vocational Municipal Urdu
School, where the victim was initially studying, was produced.
According to this witness, the date of birth of the victim was 4 th
March 1995, which he has stated on the basis of the certificate
issued by the said Madanpura Vocational Municipal Urdu School,
which was available in his school.
5 I have carefully gone through the evidence of the
victim. There is nothing improbable or unbelievable in her
evidence. It does not seem to be suffering from any infirmities. I
find that the victim's evidence can be safely relied upon. There is
nothing in her cross-examination which would make the court
doubt the truth of her version.
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6 The evidence of Dr.Baban Shinde, together with report
of the examination of the victim, as submitted by him, leaves no
manner of doubt that the hymen of the victim was torn, that the
tears were old and healed, and that the victim was habituated to
sexual intercourse. Dr.Baban Shinde had also carried out
Ossification test and had come to the conclusion that the age of
the victim was about 15 to 16 years.
7 The evidence of Smt.Bhavna shows that the victim
would come to the classes conducted by her along with one
Rubina, and that, she used to teach the victim also, but the victim
would 'sit quiet.' What the witness wanted to convey and has
conveyed to the court is that there was something in the
behaviour of the victim which was not normal and probably
indicative of depression. It is when Smt.Bhavna made enquiries
with the victim, that the victim revealed her story to her.
Smt.Bhavna has then stated about her having taken the victim to
Dongri Shelter Home and the victim thereafter narrating about the
acts of the appellant.
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8 The learned counsel for the appellant contended that
the version of the victim cannot be relied upon, and that, it was
highly unlikely that the appellant would be able to perform such
acts against the will of the victim in a small room, which was
occupied by several other persons. He also submitted that there
was no satisfactory evidence of the age of the victim, and that,
considering the margin of error in fixing the age by the
Ossification test, it was not possible to hold that the victim, at the
material time, was below 16 years of age. It was also submitted
that there were no signs of any violence on the body of the victim,
and that, therefore, merely because the victim stated so, the
appellant cannot be held to be guilty of rape.
9 As regards the age of the victim, indeed there is some
force in the contention advanced by the learned counsel for the
appellant. Interestingly, neither the father nor the mother of the
victim, who could have stated about the date of birth of the
victim, was examined during the trial. The age was sought to be
established only on the basis of the Ossification test and the birth
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certificate produced by Khan Mohd. Javed Moazzam Ali (PW6). I
have carefully gone through the evidence of this witness. I find
that the source, on the basis of which the relevant entry recording
the date of birth of the victim was made, has not been disclosed in
his evidence. His evidence also does not disclose the manner in
which the record relating to the date of birth of students was being
maintained in the school. In the absence of any information about
the manner in which the relevant record was being maintained,
and the source on the basis of which the relevant entry came to be
made, it would be hazardous to place reliance on this evidence to
hold that the victim was, at the material time, below 16 years of
age. Similarly, Dr.Baban Shinde has conceded in the cross-
examination that while determining the age on the basis of
Ossification test, a variation of two years would be possible.
10 The learned Additional Sessions Judge has held that,
that the victim was below 16 years of age at the material time, had
not been satisfactorily established. This aspect would be material
as, had the victim been below 16 years of age, the question of her
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being a consenting party, would not have arisen in determining the
guilt of the appellant. However, as aforesaid, this point has been
held in favour of the appellant, that is, it has been held that the
fact that the victim was below 16 years of age at the material time,
was not satisfactorily proved. This conclusion, arrived at by the
learned Additional Sessions Judge, does not seem to be suffering
from any error.
11 Though it is not possible to hold that the victim was
certainly below 16 years of age at the material time, it is also not
possible to come to a conclusion that the victim was, possibly, a
consenting party to the acts of intercourse.
12 All the contentions raised before this court were raised
before the trial court also by the learned counsel for the appellant,
and in my opinion, the learned Additional Sessions Judge has dealt
with those contentions properly. The appreciation of evidence, as
done by the learned Additional Sessions Judge, does not seem to
be suffering from any error.
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13 The conclusion arrived at by the learned Additional
Sessions Judge, therefore, appears to be sound and correct.
14 It may only be briefly observed that, that the room that
was being occupied by the appellant and the victim was too small,
and that, when there were other persons residing in that room,
the appellant would not have been able to commit the act of
sexual intercourse with the victim, does not appeal to me. Infact,
it appears that the appellant was doing such acts regardless of the
consequences and without being afraid of the consequences.
Infact, the appellant appeared to be in such a position that
nothing serious would happen to him, even if such acts would be
disclosed to his wife and other members of his wife's family. The
evidence indicates that even the wife of the appellant was aware
of what the appellant was doing, but she could not do anything to
prevent the same. This appears from the evidence of PW3
Bhavna. As the wife of the appellant has not been examined, even
if the matter is left at that without arriving at any conclusion in
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that regard, the fact remains that the version of the victim cannot
be disbelieved on the basis of the contentions raised by the
learned counsel for the appellant. The learned Additional
Sessions Judge, in that regard, has observed that the victim was
quite helpless in the situation and had no other alternative but to
suffer the wrongs silently. It cannot be overlooked that the victim
did not even have an inclination to report the matter to the police,
and it is only after coming in contact with Bhavna, who took her
to Children's Home, that the incidents came to light. Thus, the
victim cannot be attributed with any motive, for falsely
implicating the appellant.
15 The medical evidence leaves no manner of doubt that
the victim had, had repeated acts of sexual intercourse. According
to the victim, she had had sexual intercourse with the appellant
on a number of occasions, and that, she was not a consenting
party to any of the said acts.
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16 Upon considering the evidence adduced during the
trial, there seems to be no reason to doubt the version of the
victim. In my opinion, the order of conviction of the appellant, as
recorded by the learned Additional Sessions Judge, is proper and
legal, warranting no interference.
17 The learned counsel for the appellant, however, urged
that the sentences imposed upon the appellant be reduced. He
submitted that at the material time, the minimum sentence that
was required to be imposed for an offence punishable under
Section 376 of the IPC, was only 7 years, and that the case being
not of any brutal act of rape, it would be sufficient to award the
sentence prescribed as minimum, to the appellant.
18 After carefully considering the matter from all angles,
after hearing the learned APP, and after considering the
circumstances in which the alleged offences were committed and
the reaction of the victim towards the offence, I think it proper to
reduce the sentence imposed by the learned Additional Sessions
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Judge in respect of the offence punishable under Section 376 of
the IPC.
19 It is accordingly ordered that the substantive sentence
of Rigorous Imprisonment for 10 years imposed by the learned
Additional Sessions Judge with respect to the offence punishable
under Section 376 of the IPC shall be reduced to a period of
Rigorous Imprisonment for 8 years.
20 Subject to the reduction in the substantive sentence, as
aforesaid, the appeal is dismissed.
(ABHAY M. THIPSAY, J.)
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