Bombay High Court
Ajmerkhan Fakir Mohd Khan & Anr vs State Of Maha on 5 May, 2016
Bench: A.I.S. Cheema
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.662 OF 2003
1) Ajmerkhan s/o Fakir Mohd. Khan,
Age-22 years, Occu:Labourer,
R/o-Kunjkheda, Tq-Kannad,
Dist-Aurangabad,
2) Kalyan @ Nasibkhan s/o Gulfamkhan,
R/o-As Above.
Age-20 years, Occu: and
...APPELLANTS
(Orig. Accused)
VERSUS
The State of Maharashtra,
Through the Police Sub-Inspector,
Police Station, Kannad,
Tq-Kannad, Dist-Aurangabad.
...RESPONDENT
...
Shri P.F. Patni Advocate for Appellants.
Shri S.M. Ganachari, A.P.P. for Respondent.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 20TH APRIL,2016.
DATE OF PRONOUNCING JUDGMENT: 5TH MAY, 2016.
JUDGMENT :
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1. Appellants are original accused Nos.1
and 2 who have been convicted under Section 354 of
the Indian Penal Code, 1860 ("IPC" in short) to
suffer rigorous imprisonment for two years and to
pay fine of Rs.1000/- each and in default, to
suffer simple imprisonment for three months, in
Sessions Case No.89 of 2003 vide Judgment passed
by Ist Ad-hoc Additional Sessions Judge,
Aurangabad. This Appeal is against said conviction
and sentence.
2. The case of prosecution, in short, is as
follows:-
A). [I will refer to the prosecutrix as
victim and will not name her.] The victim filed
FIR Exhibit 16 on 9th January 2003 in Kannad Police
Station reporting that her mother had separated
from her father since about 8 years and she along
with her mother and two brothers had been residing
at Kunjkheda, at the place of her maternal uncle.
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She had never gone to school. She reported that
on 4th which was Saturday, at about 3.00 p.m. she
had taken three buffaloes to the field of her
maternal uncle Shabbir. Incident took place at
about 5.00 p.m. when she was returning back home.
The accused Ajmerkhan (accused No.1) and Kalya @
Nasibkhan (accused No.2) who were from their
village, put her on the ground and accused No.2
pressed her mouth and held both her hands while
accused No.1 held her from legs and hip and both
of them picked her up and took her in the Nala of
"Bangya". She shouted "BACHAO" i.e. save, but
there was nobody. Accused No.2 Kalya stood on the
embankment of the Nala to keep watch if anybody is
coming and accused No.1 Ajmer opened the string of
her Salwar and removed it and removing his own
pant, committed intercourse on her. She reported
that accused No.2 Kalya also was to violate her
and when he started coming towards her, she
threatened that she would commit suicide and so he
stopped. She wore back her Salwar and accused No.1
threatened that if she tells the incident anybody,
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he would kill her. At that time itself, aunt of
accused No.2 Kalya, namely Baby had reached that
side and called out to father of accused No.2 and
father of accused No.2 also came there. At that
time the accused persons ran away from there. Said
Baby asked victim to go home. Victim reported that
to avoid loss of respect, she did not tell the
incident to anybody at home but her mother came to
know the same from somewhere and on Monday she
inquired about the incident from her and she told
the incident to her mother. FIR mentions that
mother of the victim went to the house of accused
No.1 Ajmer to make complaint but his mother was
not there and the villagers told mother of the
victim not to report the matter to police so that
when mother of accused No.1 comes, they will bring
about marriage between accused No.1 and the
victim. One day before the FIR, when the mother
returned, in the evening there was meeting, but
mother of accused No.1 refused that marriage may
be performed. In the morning also effort was made
but mother of accused did not come. Then the
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villagers advised the victim and her mother to
file complaint and thus victim had come with her
mother and was filing the FIR.
B). The FIR was lodged on 9th January 2003 and
offence came to be registered at Kannad Police
Station vide Crime No.4 of 2003. PSI Manohar
Dabhade (PW-5) investigated the offence. He seized
the clothes of the victim vide Panchnama
Exhibit 22. Spot-Panchnama was drawn vide
Exhibit 23. When the Spot-Panchnama was carried
out, from the spot broken pieces of bangle of the
victim and her hair pin was also seized. Clothes
of the accused persons were also seized, after
they were arrested on 9th January 2003. The
complainant as well as accused persons were got
medically examined and the blood samples and other
samples were collected. The seized articles and
the blood samples etc. were sent to C.A. on 16th
January 2003. C.A. Reports (Exhibit 29 to 33) were
received. Subsequently, charge-sheet came to be
filed.
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C). Charge was framed against accused persons
for offence punishable under Section 376(2)(g) of
I.P.C. (as it then stood) The accused persons
pleaded not guilty. Their defence is of denial.
According to them, as the victim and her mother
wanted that there should be marriage between the
victim and accused No.1 and as the proposal was
not accepted, false case is filed.
3. Before the Sessions Court, State brought
on record the evidence of victim as PW-1. The
doctor Vijay Patil was examined as PW-2. The
mother of victim deposed as PW-3. I am not
mentioning the name of the mother of victim also
and would refer to her as mother of victim or as
PW-3. PW-4 examined was Sarpanch of the village,
namely, Ajmer Khan who has proved Panchnama
Exhibit 22 regarding seizure of clothes of victim
and Spot-Panchnama Exhibit 23. The Panchnamas of
seizure of clothes of accused were admitted by
them at Exhibit 10 and 11. The Investigating
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Officer PSI Manohar has been examined as PW-5. The
Sessions Court considered the evidence brought on
record and although it accepted the evidence to
hold that the incident of use of criminal force
had taken place, it found that offence of rape had
not been proved and thus instead of Section 376 of
IPC, it convicted the accused persons for offence
under Section 354 of IPC.
4. I have heard learned counsel for both
sides. The learned counsel for the accused persons
submitted that the oral evidence of the victim did
not get support from the medical evidence and so
offence under Section 376 of IPC was not proved.
The victim did not have any injury on her person
and the C.A. Reports did not conclusively prove
that offence of rape was made out. According to
the counsel, if offence under Section 376 of IPC
was not found to be proved, there could not have
been conviction under Section 354 and Section 354
of IPC should not have been invoked. It is argued
that if the prosecutrix was disbelieved regarding
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her evidence that accused No.1, with help of
accused No.2, had raped her, then for Section 354
of IPC also she should have been disbelieved. It
is argued that the evidence of the victim and her
mother shows that at the instance of the villagers
the FIR was filed. The offence was registered
because the mother of accused No.1 did not agree
to the marriage of the victim and accused No.1. It
is claimed that there was no evidence of criminal
force being used. The counsel argued that possibly
accused No.1 and the victim may have been seen in
compromising position and said Baby may have
shouted and to avoid defamation the complaint may
have been filed. It is argued that said Baby or
father of accused No.1 were not examined. From
C.A. Report, blood group of the accused could not
be ascertained and even if semen was found on
clothes of accused, that by itself was no
evidence, as the accused persons are young persons
and the clothes were seized after some days of
incident. The offence was registered on 9th January
2003 although the incident occurred on 4th January
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2003 and there was delay. There was dispute of
land between uncle of victim and father of the
accused persons and because of this, there were
strained relations and false case is filed.
According to the counsel, removal of Salwar does
not amount to criminal force. The counsel relied
on Judgment in the matter of Premiya Alias Prem
Prakash vs. State of Rajasthan, reported in 2008
(10) S.C.C. Page 81 to submit that in similar
matter where Section 376 of IPC was reduced to
Section 354 of IPC, the Hon'ble Supreme Court had
released the accused persons reducing the sentence
to that which was already undergone. Reliance is
also placed on the case of Husain Harsing Rathod
vs. The State of Maharashtra, reported in 2014 All
M.R. (Criminal) 3609 to submit that, in that
matter on appreciation of evidence offence was not
found to be proved and accused were given benefit
of doubt. According to the counsel, in present
matter also evidence is not sufficient and the
offence is not established.
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5. Against this, the learned A.P.P.
submitted that PW-3, mother of the victim had been
deserted by her husband and she was living at the
mercy of her brother Shabbir Khan. The FIR itself
gave explanation regarding the delay and there
being no male member to support the victim and her
mother, if there is some delay in filing of the
FIR, that cannot be fatal. The evidence showed
that accused Nos.1 and 2 colluded with each other
to execute the incident but incidentally the aunt
of accused No.2 Baby came in between and she
shouted, attracting father of accused No.2, whose
field was nearby, because of which accused persons
ran away. The A.P.P. submitted that such aunt and
father of accused No.2 would naturally not support
the prosecution and thus they could not be
examined. But the version of the prosecutrix -
victim was reliable and the offence was clearly
proved. Even if the villagers intervened for the
honour of such poor illiterate victim, it cannot
be said that the complaint filed was not true or
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that the incident did not take place. In rural
area, such poor helpless women would not make such
false allegations which relate to the modesty of a
young girl like victim. The Salwar of the victim
had blood stains which had been washed and
according to the learned A.P.P. the incident had
indeed taken place but unfortunately the trial
Court, instead of Section 376 of IPC, convicted
the accused only under Section 354 of IPC. The
A.P.P. submitted that the Judgment of conviction
may not be disturbed and the Appeal may be
dismissed.
6. The evidence of the victim shows that she
is an illiterate labourer. Her evidence is that at
the time of incident, accused No.2 Kalya and
accused No.1 Ajmer caught her near the "Bangya -
Nala" when she was grazing buffaloes. She deposed
that accused No.2 caught her hands and also
pressed her mouth while accused No.1 Ajmer
loosened string of her Salwar. The evidence then
mentions as to how rape was committed on her. Her
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evidence is that at such time accused No.2 was
standing on the top of the embankment of the Nala
keeping watch if anybody is coming that side. She
deposed that because of act of accused No.1, she
felt pain. Accused No.1 also threatened to kill
her if she discloses the incident to anybody. Her
evidence is also that she had shouted, hearing
which lady by name Baby came to that side of the
spot. This Baby is paternal aunt of accused No.2.
Victim deposed that said Baby had helped her to
wear the Salwar. Baby had shouted out as to what
has happened, which had attracted the father of
accused No.2 who also came to the spot hearing the
noise of Baby. At such time the accused persons
had run away. According to her, Baby asked her to
take her buffaloes and go home. This is the
evidence of the victim regarding the incident. She
has proved the FIR Exhibit 16. In material
particulars regarding the incident, the FIR does
support the victim.
7. Now, as regards delay, the evidence of
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victim is that the accused No.1 had threatened to
kill her and so she did not disclose the incident
to anybody, but after 2-3 days her mother came to
know about the incident and then she gave the
details to her mother. She deposed that two
persons had gone to meet the mother of accused
No.1 in connection with this incident. In cross-
examination, she deposed that she does not
understand Marathi and had been to the police
station as advised by the villagers.
8. Regarding the delay, the evidence of
PW-3, the mother of victim also needs to be
considered. She deposed that the incident had
occurred on Saturday which was 4th date, eight
months before her evidence was being recorded.
Thus, even this witness is an illiterate labourer.
She deposed that she came to know about the
incident in the village and inquired about it to
the victim. She had come to know about the
incident on Monday. That would be 6 th January 2003.
Her evidence shows that victim had given her
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details of the incident as can be seen from the
FIR. In cross-examination, she was asked and she
stated that mother of accused No.1 declined to
perform the marriage of the victim and accused
No.1. She deposed that when she came to know about
the incident, she had been to father of accused
No.1 and asked him to arrange for the marriage or
else she would file case against him.
9. Thus, reading evidence of PW-1 victim and
her mother PW-3 along with the FIR Exhibit 16,
what appears is that after the incident became
public knowledge, the mother of the victim, had
tried to persuade the parents of accused No.1 to
bring about marriage between accused No.1 and the
victim, but they did not agree. This caused delay.
Looking to the facts, it must be said to be a
natural conduct of mother like PW-3 who had no
support of her husband to take care of her young
daughter. No fault can be found with her efforts
which when failed, she reported the matter. It
appears that the villagers tried to help but when
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parents of accused No.1 did not agree, the
incident was reported. By that itself, it cannot
be said that false or imaginary incident was
reported.
10. The counsel for accused referred to
cross-examination of the victim, where at one
place she was asked and she deposed that "prior"
to the incident her mother and maternal uncle
Shabbir had expressed the desire that she should
marry with accused No.1 Ajmer but her mother did
not agree to this proposal. The counsel tried to
argue that this shows that even before the
incident, there was such proposal and it was not
accepted and thus according to the counsel, false
case was brought about. I am not convinced. It has
to be remembered that PW-1 is an illiterate rustic
labourer. She was young inexperienced girl. In
witness box, a compound sentence was put to her in
cross-examination and it is not clear from the
evidence that her attention was drawn to the
aspect that this was relating to marriage proposal
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"prior" to the incident and not after the
incident. Apart from this, I will accept it for a
moment that even before incident there was any
such proposal and it was not accepted. Still, I
would not believe that only because marriage
proposal had not been accepted by a family in the
village, a young girl like PW-1 and helpless woman
like PW-3 the mother, would go to such extent
which if they did not succeed, would only leave
the victim defamed and thus injured, putting in
jeopardy her future prospects of marriage.
11. It is then claimed that there were
strained relations between the uncle of the victim
and the accused persons regarding which Court
litigation was pending. If the cross-examination
of PW-1 the victim is perused, she accepted the
suggestion put to her that she has another
maternal uncle by name Ali and some litigations
are going on between said Ali and father of the
accused persons in the Court at Kannad. She
deposed that her both maternal uncles are residing
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nearby. Evidence shows that the victim and her
mother had been living with her maternal uncle
Shabbir Khan. Only because another uncle Ali may
have been having such litigation, details of which
are not known, it is unlikely that the respect of
young girl would be put to stake.
12. It was then argued that the victim was
not knowing Marathi and the FIR was written in
Marathi. In an insensitive manner, two words
relating to private parts of the victim and the
accused from the FIR were put to her and she was
asked if she knows the meaning of those words and
she stated that she does not know meaning of the
same. The evidence of PW-5 PSI Manohar Dabhade,
the investigating officer shows in cross-
examination that the complainant had told him that
she can understand Marathi but cannot speak the
language. He deposed that he translated her
version of the incident given in Hindi into
Marathi while writing the complaint. He even
deposed that he had explained the meaning of the
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words which were used by him in the complaint.
There is no reason not to trust the investigating
officer who was only discharging official duty to
take down F.I.R. of an illiterate woman. The
trial Court while dealing with the evidence on
this count, wrongly appears to have stuck to the
technicality of searching words in evidence that
PSI Manohar Dabhade did not state that he had
explained the complaint to the girl in Hindi. In
fact the FIR Exhibit 16 at the end of the
document, mentioned that the victim had given the
complaint speaking in Hindi and that she
understands Marathi. The FIR mentions that the FIR
had been read over to the victim and had been
correctly recorded. Inspite of this, if one
decides to raise suspicion, such suspicions can
always be raised.
13. Then there is evidence of the victim
stating that police had sent her to the hospital
and the medical officer examined her and took
samples of blood, pubic hair and nails. PW-5 has
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also deposed that on 9th January 2003 itself he had
referred the victim as well as both the accused
persons for medical examination with forwarding
letters like Exhibit 26 and 27. There is evidence
of PW-2 Dr. Vijay Patil stating that he examined
the victim on 10th January 2003 and had found that
the victim had an old rupture to the hymen and
there was no injury of violence found. Doctor
deposed that the blood sample, sample of pubic
hairs and nail of the victim were collected and
handed over to the police. The evidence of PW-4
Ajmer Khan shows that in his presence the clothes
of the victim were attached by police vide
Panchnama Exhibit 22. The evidence of PW-5 PSI
Manohar as well as Panch Ajmer Khan shows that
when the Spot Panchnama Exhibit 23 was drawn on
the spot, broken bangle pieces of the bangle of
the victim and her hair pin was seized from the
spot. Police had also collected the bangle which
the victim was wearing. Evidence of PW-5 PSI
Manohar shows that all these articles and blood
samples etc. were sent to C.A. On the clothes of
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accused persons stains of semen were detected by
C.A., but then that would not be material as the
clothes were collected after so many days of the
incident and the accused persons happen to be
young persons. What is material found is in C.A.
Report Exhibit 29, which shows that on the Salwar
of the victim, there were stains of blood which
appeared to have been washed. This may also be
possible because although the incident took place
on 4th January 2003, the FIR came to be filed only
on 9th January 2003 and meanwhile the victim may
have washed her Salwar.
14. If the Judgment of the trial Court is
perused, it discussed the evidence and observed
that agricultural disputes between the villagers
were common and it cannot be expected that due to
such disputes the mother of victim would risk the
future life and the prospects of the marriage of
the victim. Trial Court also accepted the evidence
that the mother had, after the incident, made
attempts to settle the matter by bringing about
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the marriage between the victim and accused No.1
but did not succeed. The fact that mother tried to
bring about the marriage between the accused No.1
and the victim, was a conduct which trial Court
found, shows that she did not have grudge against
accused No.1 and there was no intention to take
revenge. The trial Court discussed the evidence
regarding alleged delay and concluded that there
were sincere attempts made by the mother to bring
about marriage and thus there was delay, which had
been explained. The trial Court discussed the
evidence regarding radiological test of the victim
and her age. However, this is not a case of
consensual sex and I am not going into discussion
of that evidence. Trial Court discussed the
evidence regarding seizure of various articles and
found that only on the Salwar of the victim, human
blood was detected. The detection of semen on the
clothes of the accused could not be linked to the
rape, was observed by the trial Court.
15. The Judgment of the trial Court shows
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that although it was aware that there was no
possibility of Baby, the aunt of accused No.2 and
father of accused No.2 supporting the prosecution,
still it wanted that such witnesses should have
been examined. The trial Court observed that the
evidence of victim shows that she raised noise
only after the act of rape on her was over. The
trial Court, however, ignored the evidence of
victim that she was caught between two young
persons like accused No.1 and accused No.2 and she
had also deposed that accused No.2 had pressed her
mouth and that accused No.1 had threatened her. I
do not know how the trial Court was expecting that
by examining the aunt Baby and father of accused
No.2, the presence of accused on the spot could
have been brought on record. If they are not
likely to support, they will not support to any
extent. Trial Court was aware that sole testimony
of the victim also can be accepted, and also
accepted the evidence of the victim, but observed
that the victim had not deposed that there was any
bleeding from her vagina or that she had sustained
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any injury on other part of the body. Referring to
the medical certificate, trial Court observed that
it mentioned that there was old rupture of hymen
but it was not made clear as to what was the
duration of the rupture or how many days prior to
the incident. I find, the doctor may be able to
tell fresh rupture of hymen but when the doctor
concludes that it is an old rupture, I do not
think that the doctor would be able to tell as to
how many days before examination the rupture
happened. Trial Court observed that it would be
far fetched presumption that every young girl
remains virgin till her marriage. There appears no
relevance of such observation. For such reasons,
the trial Court concluded that medical evidence on
the point of rape does not support the
prosecution. It also observed that the evidence
does not disclose any resistance on the part of
the victim. I am not in agreement with such
reasonings which trial Court recorded to tide over
the evidence regarding rape. I have already
mentioned that prosecutrix was caught between two
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young persons like accused Nos.1 and 2, and both
of them caught hold of her at the same time and in
the circumstances, even if she did not have any
physical hurt on other parts of her body, that by
itself was not evidence against her. In such
situations different persons may react
differently. In fact there is evidence that the
accused persons over powered the victim and her
mouth was pressed and she was threatened and
violated. I have discussed this evidence because
before me the learned counsel for accused argued
that if the accused was to be acquitted for
offence under Section 376 of IPC, the accused
could not have been convicted for offence under
Section 354 of IPC. In fact looking at the
evidence, it would not have been difficult even to
accept that offence of rape had been proved. In
fact it is unfortunate that State, which comes up
in Appeals in petty matters, did not find it
prudent to file appeal against the acquittal under
Section 376 of IPC in the matter like present one,
where helpless women like PW-1 and PW-3 were
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sufferers.
16. The ingredients of Section 354 of IPC are
ingrained in offence under Section 376 of IPC.
When the accused were charged with offence under
Section 376 of IPC, if the trial Court did not
find 376 of IPC spelt out, it convicted the
accused for offence under Section 354 of IPC.
Looking to the evidence, if the trial Court has
convicted the accused under Section 354 of IPC, I
would not interfere with the same.
17. Facts of the case of Husain Harsing
Rathod, referred supra, are clearly different. As
regards the Judgment in the matter of Premiya
alias Prem Prakash, referred above, the Hon'ble
Supreme Court, no doubt, reduced the sentence to
which was already undergone, but that case cannot
be compared with the facts of the present matter.
The Judgment of the Hon'ble Supreme Court itself
shows that accused in that matter had already
undergone nearly two years of sentence. Thus,
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while maintaining the conviction of accused from
376 to Section 354 of IPC, the Hon'ble Supreme
Court observed that custodial sentence shall be
period already undergone. In the present matter
the accused were arrested on 9th January 2003. It
is stated that they were released on bail on 28 th
January 2003. Clearly, there is no comparison
between the period of custody of these accused
with that in the matter of Premiya alias Prem
Prakash.
18. For reasons discussed, I do not find that
there is any substance in the Appeal. The Appeal
is dismissed. The Appellants shall surrender to
their bail bonds before the trial Court on 9th May
2016. In default, the trial Court shall enforce
the sentence as was passed in the Sessions Case
No.89 of 2003.
[A.I.S. CHEEMA, J.]
asb/MAY16
