Irfan @ Afroz S/O Sannaulla ... vs The State Of Maharashtra
2016 Latest Caselaw 5702 Bom

                                               1                              apeal 364.15.odt



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD




                                                                               
                           CRIMINAL APPEAL NO. 364 OF 2015




                                                       
    Irfan @ Afroz S/o Sannaulla Farooque,
    Age: 34 years, Occ. Painter,
    R.o. Parbhani.                                             ...       Appellant




                                                      
                     Versus

    The State of Maharashtra,




                                             
    Through Police Station Officer,
    Nanalpeth Police Station,
                             
    Parbhani, Taluka & District Parbhani.
                                     ----
                                                               ...       Respondent


    Mr. P.S. Paranjape, Advocate for the Appellant.
                            
    Mr. Priti Diggikar, APP for respondent-state.
                                      ----

                                          CORAM : A.V. NIRGUDE &
      

                                                  V.L. ACHLIYA, JJ.

DATE OF RESERVING THE JUDGMENT : 28-07-2016. DATE OF PRONOUNCING THE JUDGMENT : 29-09-2016.

JUDGMENT (PER A.V. NIRGUDE, J.) :-

1. This appeal challenges judgment and order dated

03/03/2015 passed in Special POSCO Case No. 2 of 2014 by the

learned Additional Sessions Judge, Parbhani, convicting the

appellant for the offences punishable under Sections 376(2)(i) and

302 of the Indian Penal Code (IPC). The appellant was sentenced

to suffer life imprisonment with fine of Rs.5,000/- on each count.

He was further convicted under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 and sentenced to suffer

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rigorous imprisonment for seven years with fine of Rs. 5,000/-. In

addition to this, the appellant was convicted under Section 6 of the

POSCO Act and sentenced to suffer rigorous imprisonment for ten

years with fine of Rs. 5,000/-. The appellant was accused of

committing rape and murder of fourteen year old girl, during the

night between 20/10/2013 and 21/10/2013.

2. In order to prove the case the prosecution examined

twelve witnesses. The most important witness is Yasmeen (PW1)

the sister of the victim. She stated that Nazmin, the victim was 14

years old at the time of incident and was staying with her, they

were residing in the house of one Suvarnabai as tenant. Nazmin

was doing cleaning working in one hospital in the morning and,

thereafter, she would clean utensils and clothes of some

households.

3. On the day of incident Nazmin went to work in the

hospital at about 8.00 a.m. and came back at 10.00 a.m.,

thereafter, she attended her work of washing clothes and utensils,

she returned home at 5.00 p.m. At about 8.00 p.m. Nazmin went

to Suvarnabai's house for watching T.V. Both of them watched T.V.

till 11.00 p.m. After switching off T.V., on one hand, Yasmeen slept

in Suvarnabai's house, on the other hand, Nazmin went to her

house and slept their alone.

4. In the morning when Yasmeen went to her house she

3 apeal 364.15.odt

found Nazmin apparently sleeping under a blanket. When she

removed blanket, she saw Nazmin's odhni in her mouth, a white

cotton belt of her peticot was found tied around her neck, her shirt

was gone up to her neck and on her face and chest bite marks were

seen. Yasmeen touched Nazmin's body and found it cold, Yasmeen

shouted and neighbours gathered. Someone called Dr. Limbekar

who came and checked Nazmin and declared her dead. Dr.

Limbekar also indicated that Nazmin was raped before her murder.

Soon, Police came there and recorded Yasmeen's statement. They

registered an offence at about 9.00 a.m. Yasmeen made another

statement to Police, thereafter on the next day. This time she

disclosed to the police that the appellant used to make phone calls

to her. On 19/10/2013 she had received his call at about 07.00

p.m. during the conversation the appellant asked her as to whether

Nazmin reached puberty? to which Yasmeen answered in

affirmative. The appellant then asked Yasmeen to hand over the

phone to Nazmin. Nazmin had a talk with the appellant but in

angry mood she returned the phone to Yasmeen but said nothing.

Yasmeen, then, added that during that night she did not permitted

Nazmin to watch T.V. at Suvarnabai's house. Yasmeen and

Suvarnabai then went outside for buying recharge for Suvarnabai's

mobile phone. While coming back, Yasmeen did not see Nazmin in

their house. She found Nazmin watching T.V. in a neighbour's

house. During the night after switching off the T.V. Yasmeen went

4 apeal 364.15.odt

to bathroom when she came back, she met the appellant, she found

that he was coming from her room's direction. The appellant

gagged Yasmeen's mouth and stopping her from speaking. He,

however, told her that he had raped and killed Nazmin and that she

should not disclose this fact to anyone. He threatened her that if

this is disclosed to anyone the appellant would divorce his wife who

is Yasmeen's elder sister. He also threatened that if his name is

disclosed he would defame all of them. He then left. Thereafter,

Yasmeen went to her room.

5. The next important prosecution witness was Dr. Rodge.

who had performed post-mortem examination of Nazmin's body. He

described number of injuries which he found on Nazmin's body and

he also opined that Nazmin was raped as well as strangulated.

Nazmin died due to Asphyxia. The post-mortem report described

injuries in detail. The significant injuries which were found on

Nazmin's body were various bite marks on her face and on her

chest. Then during the post-mortem photographs were taken of

the bite marks. These photos were then sent for further forensic

examination to K.E.M. Hospital, Mumbai.

6. The prosecution witness no.9, was Dr. Hemlata Pande

who was working as Registrar, Department of Forensic, Medicine

and Toxicology, Mumbai. Dr. Pande, is a dental surgeon but has

studied up to masters level in Forensic Odontology. She received

5 apeal 364.15.odt

phone call from Parbhani Police prior to 29/10/2013 seeking her

opinion about bite marks found on Nazmin's body. On 29/10/2013,

Dr. Pande went to Civil Hospital, Parbhani she took dental

impression and photographs of the accused. She made dental

model of his teeth. She studied the photographs of bite marks vis a

vis the dental model of the appellant. She drew to a conclusion

that most of the bite marks on Nazmin's body were most probably

caused by teeth of the accused. The summary of the conclusion

drawn by her reads as under:

2.1 summary of Conclusion:

The following conclusions are made based on photos submitted by the police

and models prepared from teeth of accused:

> Bite-mark on the left cheek of victim (A), Miss Nazmeen/Munni Shaikh Salim, has been most probably caused by Irfan/Afroz Sannulla Farukhi, as the patter of bite-mark is consistdent with the arrangement of his teeth. However,

this cannot be said beyond reasonable doubt, due to absence of a scale in the photo of bite- mark injury.

> Bite mark on the left breast of victim (B,D,E), Miss Nazmeen/Munni Shaikh Salim, has been possibly caused by Irfan/Afroz Sannulla Farukhi (accused).

> Bite mark on the right breast of victim (F,G,H, I, J), Miss Nazmeen/Munni Shaikh Salim, has been possibly caused by Irfan/Afroz Sannulla Farukhi (accused).

Other bite-marks could not be analyzed due to poor quality of photos, hence

are inconclusive. However, it can be said beyond reasonable doubt that these injuries are human bite-marks caused by an adult.

7. Other witnesses of the prosecution are of less

importance. Witness No.3, Revata Raut proved Nazmin's age

placing reliance on school leaving certificate. Nazmin's date of birth

was 12/04/1994. Prosecution witness no.4 Suvarna Bai, narrated

as to what happened in the morning when Nazmin's dead body was

6 apeal 364.15.odt

found.

8. Prosecution witness no.6, Mohammed Sarafazuddin

stated that, during the fateful evening at about 7.30 p.m., he

noticed the appellant was having a quarrel with a beggar. Appellant

had in his hand a bottle of 'whitener'.(Intoxicant) He found the

appellant under influence of some stupefying substance. He asked

the appellant to go to his house. He then noticed the appellant

then proceeded towards Bharat Nagar. Other witnesses are not

important and, therefore, other evidence is not narrated in this

judgment in detail.

9. On the basis of this evidence the learned judge

convicted the appellant. The learned counsel for the appellant

asserted that, the evidence which came on record was not sufficient

to convict the appellant. Upon hearing the submissions at bar

following questions arose for our consideration:

Whether the prosecution could prove that victim Nazmin

was raped and murdered during the night between 20 and

21/10/2013 at her house?

Whether the prosecution proves that was it the

appellant who committed these offences?

Point no.1:- There is practically no dispute about the

first part of the prosecution case that Nazmin while she was alone

in her house was first sexually attacked, ravished brutally and then

7 apeal 364.15.odt

strangulated. The prosecution has amply proved this fact.

10. The second question is 'who did it?' the prosecution

tried to place reliance on two important pieces of evidence of which

the second piece is the forensic expert's opinion. Unfortunately, the

expert did not get an opportunity to examine the dead body. Such

opportunity ought have given to the expert. She should have come

to Parbhani at the time of autopsy. She placed reliance only on

photographs of the dead body. This lapse I think is now proving

fatal to the prosecution case. The expert has recorded a finding

that she was not convinced beyond reasonable doubt that it was the

appellant who had caused the bite marks on Nazmin's body. This

evidence, thus, is not sufficient.

11. The second and most important piece of evidence is

Yasmeen's deposition. She asserted that, during that night she had

seen the appellant outside her house. She even asserted that, the

appellant admitted his guilt to her and threatened not to disclose it

to anyone. The question is whether this part of Yasmeen's

deposition is trustworthy? The answer is in negative. The murder

was disclosed early in the morning at about 7.00 a.m. According

to police record Nazmin's statement was recorded at about 9.30

a.m. on 21/10/2013, on the other hand, Nazmin stated in her

deposition that her statement was recorded at about 8.00 p.m. on

that date, this difference deserves to be ignored. Whatever may be

8 apeal 364.15.odt

the time of recording of Nazmin's complaint, admittedly, she did not

disclose to Police in her F.I.R. that she had seen the appellant

during the night and that the appellant disclosed to her as to what

he did.

12. On the next day, an additional statement was recorded.

This time Yasmeen made allegations against the appellant. she

admitted that, her disclosure was belated by about one day. There

is, thus admitted improvement in the version of this important

witness.

What Yasmeen stated about the the appellant is even

otherwise improbable. Yasmeen was with Suvarnabai during the

night. On one occasion during the night, she saw Nazmin at

Suvarnabai's house. She also stated that she saw Nazmin watching

T.V. sitting in the house of another neighbour Both these statements

could be true. A young girl like Nazmin could be glued to TV till late

night. Yasmeen, apparently, asked her younger sister to stop

watching T.V. and go to bed so that she would be able to attend her

duty next morning. Probably because of this snub Nazmin went to

sleep alone in her house and did not join her elder sister who

preferred to sleep in Suvarnbai's house.

13. If during the night Yasmeen saw the appellant, in the

circumstances, that are described above, despite of threats her first

reaction would have been to go to her room and see Nazmin. Had

she gone there she would have raised alarm by which the entire

9 apeal 364.15.odt

neighbourhood would have come to her rescue. Admittedly, despite

knowing sexual assault and murder of her sister she did not go to

her house to verify as to whether her sister was alive or not.

Instead, she said she directly went to the house of Suvarnabai.

Even if she had directly went to Suvarnabai, her natural reaction

could have been to disclose something to Suvarnabai. She could

have taken Suvarnabai with her to go and see the condition of her

sister. She could have avoided to discose the invovlment of the

appellant presuming she was scared. Even this did not happened.

The most important circumstance is despite having an encounter

with the appellant during the night, Yasmeen went and could slept

throughout the night. This in our view is most unlikely and un-

trustworthy. We have no hesitation to discard Yasmeen's deposition

to the extent it implicates the appellant. In absence of Yasmeen's

deposition, there is practically no substance in the prosecution's

case.

14. The appeal deserves to be allowed. The impugned

judgment is set aside. The appellant is acquitted on benefit of

doubt. He shall be released from custody if not required in any

other case.

            (V.L. ACHLIYA, J.)                        (A.V. NIRGUDE, J.)

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