Bombay High Court
Mohamed Farid Jafar Shaikh vs The State Of Maharashtra on 29 March, 2016
Bench: V.K. Tahilramani
909_apeal_359_2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.359 OF 2014
Mohamed Farid Jafer Shaikh ...appellant
Versus
The State of Maharashtra ...Respondent
Ms Nasreen S.K. Ayubi, Advocate appointed for the appellant.
Mrs. A.S. Pai, A.P.P. for the Respondent -State.
CORAM: SMT. V.K. TAHILRAMANI &
ig SMT. ANUJA PRABHUDESSAI, JJ
DATED: 29th March, 2016
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J]:-
The appellant original accused No.1 has preferred this
appeal against the judgment and order dated 3 rd August, 2013
passed by the learned Sessions Judge, Greater Bombay in Sessions
Case No.699 of 2011. By the said judgment and order the learned
Sessions Judge convicted the appellant under section 376(2) (f),
342, 363 r/w. 34 and 452 r/w. 34 of the IPC. For the offence under
section 376 (2) (f) the appellant was sentenced to suffer rigorous
imprisonment for life and fine of Rs.10000/- i/d rigorous
imprisonment for one year. For offence under section 342 of the
IPC the appellant was sentenced to suffer rigorous imprisonment
for one year and fine of Rs.1000/- i/d rigorous imprisonment for
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three months. For offence under section 363 r/w. 34 of the IPC the
appellant was sentenced to suffer rigorous imprisonment for three
years and fine of Rs.3000/- i/d. rigorous imprisonment for five
months. For the offence under section 452 r/w. 34 of the IPC the
appellant was sentenced to suffer rigorous imprisonment for three
years and to pay fine of Rs.2000/- i/d. rigorous imprisonment for
two months. The learned Sessions Judge directed that all the
substantive sentences shall run concurrently. The learned
Sessions Judge further directed that out of the fine amount
Rs.15,000/-, if recovered be paid to the survivor child under
section 357(3) of the Cr.P.C.
2. The prosecution case briefly stated is as under:-
The first informant- PW 1 Alimabi was residing in Mahim
alongwith her two sons Tahir and Imran and three daughters viz.
Najma-(PW2), Mahijabin, victim girl and wife of Tahir. Her elder
daughter PW2- Najma was married to Arif. Najma alongwith her
husband was residing with Alimabi. Age of the victim girl was 11
years at the time of the incident. On 20.4.2011 at about 1.00 a.m.
Alimabi and others heard the noise of quarrel coming from outside
hence, she came out of the house. She saw quarrel going on
between her son-in-law Arif and the appellant Mohamed Farid
Jafar. Alimabi's son Tarif tried to resolve the quarrel. At that time
the appellant was having 'Dhupatne' (wooden log used for
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washing clothes) in his hand. Scuffle took place between Tahir
and the appellant. At that time both Arif and Tahir received
injuries. Tahir took Arif for treatment. The appellant also left the
place. Due to the incident Alimabi got frightened, hence, she left
her minor son Imran, daughter Mahijabin and daughter in law
Noorjahan at the house of her sister Tarimunnisa. Thereafter only
Alimabi alongwith daughter PW2 Najma and the victim girl were
present in the house. Thereafter at about 4.30 a.m. the appellant
came to the house of Alimabi. He forcefully knocked on the door
of Alimabi, hence, Alimabi opened the door. She saw the appellant
Mohamed Farid Jafer Shaikh standing in her door way alongwith a
sickle in his hand. The original accused No.2 Anna was with the
appellant. The appellant entered into the house of Alimabi and
enquired where her son Tahir was. Alimabi told the appellant that
Tahir had gone to the hospital. Then the appellant caught the hair
of the victim girl, who was sleeping in the house. The appellant
dragged the victim girl and took her with him. The appellant
threatened Alimabi that if she chases him he would kill her with
sickle. Meanwhile neighbours also gathered at the spot on hearing
the hue and cry. As the appellant was a vagabond person the
neighbours did not intervene due to fear. Moreover the appellant
had created fear in the minds of neighbours by showing them the
sickle and saying that he would kill them if they tried to interfere.
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The appellant then took away the victim girl with him in one lane
of the Zopadpatti. Thereafter Alimabai with her daughter Najma
and her sister Tarimunnisa tried to search for the victim girl. The
house of Tarimunnisa was situated near the house of Alimabi.
Alimabi then alongwith her sister went to the police station and
lodged FIR. The said FIR is at Exh.14. While Alimabi was in the
police station, the police caught Anna, i.e. original accused No.2
and brought him to the police station. The police enquired with
Anna the whereabouts of the appellant.
ig Said Anna gave the
whereabouts of the appellant. Then police alongwith Alimabi went
to Naya Nagar, New Basti in a lane near Chamunda Medical shop.
The police went to the mezzanine floor of the construction. The
mezzanine floor did not have a roof. There they saw the victim
girl. She was frightened. The appellant was sleeping on the said
mezzanine floor. A sickle was near his head. The Police then
brought the victim girl and the appellant to the police station. In
the police station the victim girl told her mother Alimabi that the
appellant had committed rape on her. The victim girl was then
sent to Nagpada police hospital. The appellant was also sent to
Nagpada police hospital. PW-8 Dr. Bansod examined the victim
girl. On examination Dr. Bansod noticed that the breasts were not
developed. Axillary hair and pubic hair was absent. On local
examination (private parts) Dr. Bansod found bruises over both
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labia minora of size 0.5 cm x0.2 cm at middle portion, reddish in
colour, tender, age of injuries-within 24 hours. Dr. Bansod noticed
that Hymen was torn and it was bleeding on touch. The injury was
tender, red in colour. Age of tear was within 24 hours. Hymenal
orifice admitted tip of little finger. Ossification test of the victim
was done. Age of the victim as per the ossification test was 11-12
years. According to Dr. Bansod findings are suggestive of recent
forceful sexual assault. Thereafter the supplementary statement
of PW1-Alimabi was recorded. An offence under section 376(2) (f)
was added to the earlier sections, which were 366, 342, 452 and
506 (II) of the IPC. After completion of investigation charge sheet
came to be filed. In due course, the case was committed to the
Court of Sessions.
3. Charge came to be framed against the appellant,
original accused No.1 and original accused No.2- Mahamed Ismail
Kally Shaikh @ Anna. The charge was framed against both the
accused under sections 363 and 452 of the IPC in addition against
the appellant charge was framed under section 376 (2) (f) and 342
of the IPC. Both the accused pleaded not guilty to the charge and
claimed to be tried. The defence is that of total denial and false
implication. After going through the evidence adduced in this
case, the learned Sessions Judge convicted and sentenced the
appellant as stated in para 1 above, hence, this appeal.
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4. We have heard the learned counsel for the appellant
and the learned APP for the Respondent -State. We have carefully
considered their submissions, the judgment and order passed by
the learned Sessions Judge and the evidence in this case. After
carefully considering the matter for the below mentioned reasons,
we are of the opinion that the prosecution has fully proved its case
against the appellant.
5. In order to support the conviction the prosecution has
mainly relied on the evidence of PW1-Alimabi, PW-2 Najma , PW-3
Shabnam and PW 6, who is the victim girl. PW 1, Alimabi was the
mother of the victim girl, PW2 Najma was the sister of the victim
girl. PW3 Shabnam was the neighbour of Alimabi. The first
informant- PW 1 Alimabi has stated that she was residing in Mahim
alongwith her two sons Tahir and Imran and three daughters viz.
Najma-(PW2), Mahijabin, victim girl and wife of Tahir. Her elder
daughter PW2- Najma was married to Arif. Najma alongwith her
husband was residing with Alimabi. Age of the victim girl was 11
years at the time of the incident. According to Alimabi on
20.4.2011 at about 1.00 a.m. Alimabi and others heard the noise
of quarrel coming from outside hence, she came out of the house.
She saw that quarrel was going on between her son-in-law and the
appellant Mohamed Farid Jafer Shaikh. Alimabi's son Tarif tried to
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resolve the quarrel. At that time the Applicant was having
'Dhupatne' (wooden log used for washing clothes) in his hand.
Scuffle took place between Tahir and the appellant. At that time
both appellant and Arif received injuries. Tahir took Arif for
treatment. The appellant also left the place. Due to the incident
Alimabi got frightened, hence, she left her minor son Imran,
daughter Mahijabin and daughter in law Noorjahan at the house of
her sister Tarimunnisa. Thereafter only Alimabi alongwith
daughter PW2 Najma and the victim girl were present in the
house. At about 4.30 a.m. the appellant came to the house of
Alimabi. He forcefully knocked on the door of Alimabi, hence,
Alimabi opened the door. She saw the appellant standing in her
door way alongwith a sickle in his hand. The original accused No.2
Anna was with the appellant. The appellant entered into the
house of Alimabi and enquired where her son Tahir was. Alimabi
told the Applellant that Tahir had gone to the hospital. Then the
appellant caught the hair of the victim girl, who was sleeping in
the house. The appellant dragged the victim girl and took her with
him. The appellant threatened Alimabi that if she chased him he
would kill her with sickle. Meanwhile neighbours also gathered at
the spot on hearing the hue and cry. As the appellant was a
vagabond person the neighbours did not intervene due to fear.
Moreover the appellant had created fear in the minds of
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neighbours by showing them the sickle and saying that he would
kill them if they tried to interfere. The appellant then took away
the victim girl with him in one lane of the Zopadpatti. Thereafter
Alimbai with her daughter Najma and her sister Tarimunnisa tried
to search for the victim girl. The house of Tarimunnisa was
situated near the house of Alimabi. Alimabi then alongwith her
sister went to the police station and lodged FIR. While Alimabi
was in the police station, the police caught Anna, i.e. original
accused No.2 and brought him to the police station. The police
enquired with Anna the whereabouts of the appellant. Said Anna
gave the whereabouts of the appellant. Then police alongwith
Alimabi went to Naya Nagar, New Basti in a lane near Chamunda
Medical shop. The police went to the mezzanine floor of the
construction. The mezzanine floor did not have a roof. There they
saw the victim girl. She was frightened. The appellant was
sleeping on the said mezzanine floor. A sickle was near his head.
Thereafter Alimabi alongwith the police, victim girl and the
appellant came back to the police station. At the police station,
the victim girl informed that the appellant had committed rape on
her. Then the supplementary statement of Alimabi came to be
recorded.
6. PW 2 Najma is the sister of the victim girl and daughter
of the first informant PW 1 Alimabi. Najma has stated that she
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resided alongwith her mother and her husband Arif at Mahim.
Alongwith them her two brothers alongwith wife of one brother
and her two younger sisters were residing. She knew the
appellant as the appellant was residing in their locality. On
20.4.2011 at about 1.00 a.m. the appellant was assaulting her
husband Arif with a wooden log used for washing clothes, hence,
Najma sent her brother Tahir. Tahir tried to resolve the quarrel.
Meanwhile her brother and the appellant fell down on tin sheet,
due to which both of them received injuries.
ig Then Najma's
husband Arif took Najma's brother to the hospital. Thereafter her
mother Alimabi left her sister-in-law Noorjahan, Mahijabin and her
other brother Imran at the house of Tarimunnissa. Najma
alongwith her mother Alimabi and the younger sister i.e. victim girl
remained in the house. Najma has stated that at about 4.30 a.m.
the appellant came to their house and started knocking forcefully
on the door, hence, her mother opened the door. They saw the
appellant and co-accused Anna were present outside the door.
The appellant enquired with Alimabi where her son had gone.
Alimabi replied that her son had gone to the hospital. Thereafter
the appellant enquired about Arif i.e. husband of Najma. Alimabi
told the appellant that Arif had also gone to the hospital. Then the
appellant came into their house. The appellant was holding a
sickle in his hand. The appellant threatened Alimabi with sickle.
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Then the appellant caught hold of the hair of the victim girl and
took her away. While going the appellant threatened that he
would kill anyone if they tried to intervene. Thereafter Alimabi
alongwith Tarimunnisa went in search of the victim girl. However,
the victim girl was not found. Thereafter at about 5.30 a.m.
Alimabi alongwith Tarimunnisa went to the police station.
7. PW 3 Shabnam was the neighbour of the Alimabi. She
has stated that she knew the appellant as he was residing in Naya
Nagar, i.e. the same locality where she was residing. Shabnam
has stated that on 24.4.2011 at about 1.00 a.m. she heard the
voice of the appellant hence, she came outside her house. She
saw the appellant assaulting Arif, who was the son-in-law of
Alimabi. Alimabi's son came and tried to intervene. The
appellant, Son-in-law of Alimabi and Tahir got injured. Arif and
Tahir went to hospital. Shabnam has further stated that at about
4.30 a.m. she heard the noise of someone knocking on the door
forcefully, hence, she opened the door of her house. She saw the
appellant taking away the daughter of Alimabi i.e. she saw that
the appellant was taking away the victim girl. Shabnam has
stated that the appellant had sickle in his hand and he had caught
hold of the victim girl. The appellant showed the sickle and took
away the victim girl. Soon thereafter Alimabi visited the police
station as her daughter was kidnapped. Nothing has been elicited
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in the cross examination of this witness so as to cause us to
disbelieve her testimony. Moreover her room is situated two
rooms away from the house of Alimabi, hence it was possible for
her to easily witness the appellant taking away the victim girl with
him at the point of sickle. Shabnam has also stated that electricity
bulb was on after one or two houses. In such case, it was very
much possible for her to witness the appellant taking away the
victim girl.
8.
Thus, the evidence of PW 1, PW 2 and PW 3 Shabnam
clearly shows that the appellant at the point of sickle took away
the victim girl with him on 20.4.2011 at about 4.30 a.m. The
evidence of Alimabi also shows that the appellant entered into her
house armed with a sickle and thereafter he caught hair of the
victim girl and took the victim girl alongwith him. The evidence of
Alimabi further shows that her daughter i.e. the victim girl
informed her that the appellant had committed rape on her. The
star witness on the aspect of rape is the victim girl, who is
examined as PW 6. The victim girl has stated that she was
residing alongwith her brother, his wife, her mother, sister Najma
and Najma's husband Arif was also residing with them. On
20.4.2011 the appellant was assaulting Arif, on hearing the noise
they opened the door and on seeing Arif was being assaulted by
the appellant the victim girl's brother enquired with the appellant
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why he was beating Arif. Thereupon the appellant started to beat
Tahir. Both of them fell down and got injured. Then Tahir
alongwith Arif went to the hospital. The appellant went away.
Thereafter her mother left her other brother Imran, Mahajabin and
wife of the brother at the house of maternal aunt Tarimunnisa.
Tarimunnisa was residing near the house of the victim girl. The
victim girl alongwith her mother and sister Najma stayed back in
the house. The victim girl had further stated that at about 3 to
3.30 a.m. the appellant came to their house and enquired about
her brother. The appellant was knocking on the door of their
house forcefully, hence, her mother opened the door. They saw
the appellant had a sickle in his hand and the appellant threatened
saying that he would kill if anybody interferes. The appellant then
asked the whereabouts of Tahir and Arif. At that time the victim
girl was sleeping inside the house. The appellant then came inside
the house and he caught hold of the hair of the victim girl and took
her outside the house. Alimabi started crying and told the
appellant to leave the victim girl. The appellant gagged the mouth
of the victim girl when she tried to shout. He also beat her and
dragged her through the lane by holding her hair. The appellant
took the victim girl at a mezzanine floor and committed rape on
her. The appellant threatened to kill the victim girl with sickle.
The victim girl sat on the mezzanine floor in a state of fear.
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Meanwhile the police came there and then they took the victim girl
and the appellant to the police station.
9. It is the categorical case of the victim girl that the
appellant committed rape on her. This is also borne out by the
medical evidence as stated by PW 8 Dr. Bansod, who examined
the victim girl on 20.4.2011 at about 6.30 p.m. The victim girl
gave him history that the appellant had committed rape on her.
On examination of the victim girl Dr. Bansod found that the breasts
were not developed, Axillary hair and pubic hair was absent. On
local examination (private parts) Dr. Bansod found bruises over
both labia minora of size 0.5 cm x0.2 cm at middle portion,
reddish in colour, tender, age of injuries-within 24 hours.
According to Dr. Bansod hymen was torn and it was bleeding on
touch, it was severely tender and red in colour. Age of tear was
within 24 hours. Hymenal orifice admitted tip of little finger.
Ossification test of the victim was done. Age of the victim as per
the ossification test was 11-12 years. According to Dr. Bansod
findings are suggestive of recent forceful sexual assault. Dr.
Bansod also examined the appellant on 20.4.2011. He noticed
contusion over mid paraetal region and linear finger nail scratches
over right side of neck. According to the Doctor the age of the
injury was within 24 hours. Dr. Bansod noticed that smegma was
absent. This showed that the accused had sexual intercourse
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within 12 to 24 hours prior to examination. Thus, the evidence of
the victim girl and the medical evidence clearly shows that the
appellant had committed rape on the victim girl.
10. On going through the evidence of PW 1, Pw2, PW 3 and
PW 6 we are of the opinion that the prosecution has proved its
case against the appellant beyond reasonable doubt, hence, we do
not find it necessary to advert to any other evidence. On going
through the record we find no merit in the appeal, hence the
appeal is dismissed.
11. We quantify legal fees to be paid to Advocate Ms
Nasreen S.K. Ayubi by the High Court Legal Services Committee at
Rs.5000/-.
(SMT. ANUJA PRABHUDESSAI,J.) (SMT. V.K. TAHILRAMANI,J.)
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