Bombay High Court
Rafiqbhai Gafurbhai vs State Of Maharashtra on 24 July, 2017
Bench: A. M. Dhavale
1 cri. appeal 184.03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 184 OF 2003
Rafiqbhai Gaffurbhai,
Age : 55 Years, Occu. : Business.
R/o Chaprasipora, Old By pass
Road, Infront of Shukrawar
Bazar, Camp, Amravati 444 602. .. Appellant
VERSUS
1. The State of Maharashtra
2. Baburao Vithalrao Vinkare,
Age : 43 Years, Occu. : Service,
3. Meera Baburao Vinkare,
Age : 12 Years, Occu.: Education,
minor,
Respondent Nos. 2 and 3 both
R/o Nath Nagar, Extension
Brahmasing Nagar, Nanded. .. Respondents
Shri A. M. Gaikwad, Advocate for the Appellant.
Mrs. M. A. Deshpande, Addl.P.P. for the Respondent No. 1.
Shri Y. L. Bidve, Advocate h/f Shri A. R. Rathod, Advocate for the
Respondent No. 2.
The Respondent No. 3 is served.
The respondent Nos. 4 and 5 are removed as per Courts order
dated 27.08.2009.
CORAM : ARUN M. DHAVALE, J.
DATE : 24TH JULY, 2017.
ORAL JUDGMENT :-
. Aggrieved by conviction U/Sec. 294, 354 and 509 of the
2 cri. appeal 184.03
Indian Penal Code and sentences as described in following table,
the accused from Sessions Case No. 85 of 2001 of Sessions
Court, Nanded has preferred this appeal.
Sr. Offence punishable Substantive Fine In default
No. U/Sec. of I. P. Code. Sentence of non
payment of
fine
1 294 I. P. Code R. I. for three Rs. 1000/- R. I. for
(03) months fifteen
days
2 354 I. P. Code R. I. for two Rs. 1000/- R. I. for
(02) years one month
3 509 I. P. Code S. I. for one Rs. 1000/- S. I. for
(01) year one month.
Besides above conviction and sentence, the accused was also
directed to pay compensation of Rs. 1,000/- each to the P.W. 1
(Baburao Vithalrao Vinkare), P.W. 3 (Meera Baburao Vinkare),
P.W. 5 (Parvati Ashokrao Dahiphale), P.W. 6 Rajeshri Madhavrao
Kadam and Bhagyashri Madhavrao Kadam in all Rs. 5,000/-.
The impugned judgment is delivered on 16.01.2003 in Sessions
Case No. 85 of 2001 by the Adhoc Additional Sessions Judge,
Nanded.
2. On 30.04.2001 at 9.20 p.m. P.W. 1/Baburao Vitthalrao
Vinkare lodged First Information Report (FIR) at Bhagya Nagar
Police Station, Nanded. As per the FIR on that day at 2.00 p.m.
one unknown person came on scooter bearing registration No.
MH-26/7061 and called his ten year old daughter and showed her
3 cri. appeal 184.03
obscene photos. Then she was forcibly made to sit on the scooter
and an attempt was made to kidnap her, but as she raised
shouts, the neighbourers gathered there and he was obstructed
and the girl was rescued. The unknown person fled away. P.W. 1
reported the matter to police of Bhagya Nagar Police Station
orally and the police made a search, but no such unknown person
was found. About two hours thereafter, the said unknown person
again came to the said area. His daughter Meera(P.W. 3) and
neighbouring ladies identified him as the same person who had
earlier come. As they started following him, he fled away. P.W. 1
had noted the scooter number and he chased him. The unknown
person entered into one ice factory, near railway station Nanded.
P.W. 1/Baburao followed him into the ice factory and made casual
enquiry regarding rate of ice and confirmed the identity of the
said person. Since he was accompanied by several other persons
of criminal nature no action was immediately taken and
thereafter at 9.20 p.m. FIR was lodged and crime No. 95/2001 for
the offences punishable U/Sec. 363, 366(A) 294, 509 and 354 of
the Indian Penal Code came to be registered with Bhagya Nagar
Police Station Nanded.
3. The same was investigated into by P.W. 11/P. I. Mujawar.
During the course of investigation spot panchanama was drawn,
statements of material witnesses were recorded and the accused
was arrested. He was owner of the ice factory. On a voluntary
statement made by him, obscene book was discovered from a
4 cri. appeal 184.03
canal. The investigation also revealed that the employee of the
accused had lodged FIR at Vazirabad Police Station, Nanded at
8.45 p.m. against Shivsena M.L.A. Khedkar and others for
committing mischief and causing damage to the tune of Rs.
50,000/- to ice factory and for assaulting his employees. After
completion of investigation charge sheet was filed. In due course
it was committed to the Court of Sessions.
4. The learned Trial Judge framed charge at Exhibit 24 for
the offences punishable U/Sec. 363, 366-A, 294, 354 and 509 of
the Indian Penal Code. The accused pleaded not guilty. The
prosecution examined eleven witnesses. The learned Trial Judge
believed the witnesses to the extent of charge U/Sec. 354, 509
and 294 of the Indian Penal Code and sentenced the accused as
referred above. Hence this appeal.
5. Learned advocate Mr. A. M. Gaikwad, for the appellant
made following material submissions.
(i) The FIR was against unknown person. No test
identification parade was held. There was no description
of accused. The accused was identified for the first time in
the Court.
(ii) The accused is owner of one ice factory and his manager
has lodged FIR on the same day at 8.45 p.m. against MLA
Mr. Khedkar and other persons and thereafter present FIR
5 cri. appeal 184.03
came to be lodged. There are admissions to show that the
informant/P.W. 1 Baburao had a long discussion with MLA
before lodging the FIR.
(iii) The recovery of obscene book from the accused is not
proved. The panch witnesses P.W. Nos. 8 and 9 have turned
hostile. The recovery is from open place of canal. It is
shown to be made at 5.20 p.m., when the accused was
produced before the learned Magistrate for remand at 5.00
p.m.
(iv) There is no material to show that scooter was belonging to
the accused. It belongs to somebody else.
(v) There are material discrepancies in the evidence of P.W.
3 Meera/victim, her parents P.W. No. 7/Saraswati and
P.W. No. 1/Baburao and two independent witnesses P.W.
No. 5/Parvati and P.W. No. 6/Rajashri. P.W. Nos. 5 and 6
contrary to the prosecution case deposed that the obscene
booklet was shown by the accused to them as well. P.W. 5
and 6 were expected to be in their school or college at the
time of incident.
(vi) There are material discrepancies regarding time of the
incident.
(vii) The FIR was lodged after holding a meeting and having a
6 cri. appeal 184.03
long discussion with the local MLA.
(viii) The evidence is not trustworthy and reliable.
Hence the appeal be allowed and conviction and sentence of the
accused/appellant be set aside.
6. Learned Additional Public Prosecutor Mrs. Deshpande
submitted that, there is consistent evidence showing that the
accused had shown obscene booklet to P.W. No. 3/Meera. It was
seen by her parents and one P.W. No. 5/Rajashri. Even P.W. No.
1/Baburao had chased the accused upto his ice factory and his
identity was verified, and therefore, the conviction and sentence
for the offences punishable U/Sec. 354 and 294 of the Indian
Penal Code should be maintained. She fairly conceded that,
offence punishable U/Sec. 509 of the Indian Penal Code is not
made out.
7. Considering the above, the points for my consideration, my
findings thereon are as follows :
POINTS FINDINGS
A. Whether the accused had out-
raged the modesty of P.W. 3 In the negative.
Meera ?
B. Whether the accused had committed
intrusion on the privacy In the negative.
of P.W. 3/Meera?
7 cri. appeal 184.03
C. Whether accused had shown
obscene book to P.W. 3/ In the negative.
Meera to her annoyance in a
public place ?
D. What sentence and order ? The appeal is allowed
as per final order.
-: R E A S O N S : -
8. The prosecution has examined eleven witnesses, which may
be grouped conveniently as follows :
(a) Group A P.W. 3/Meera the victim girl.
P.W 1/Baburao the informant and father of
Meera.
P.W. 7/Saraswati mother of Meera.
(b) Group B Neighbouring witnesses
P.W. 5/Parwati Dahiphale
P.W. 6/Rajashri Kadam
(c) Group C Other witnesses
P.W. 2/Pravin Biyani a panch to seizure of
scooter panchanama at Exhibit 37.
P.W. 4/Devanand Mandalwad a panch to
spot panchnama at Exhibit 40.
P.W. 8 and P.W. 9 both panch witnesses
(Memo and panchnama at Exhibit 45, 46) have
8 cri. appeal 184.03
turned hostile.
P.W. 10/P.S.I. Dharmadhikari, who
recorded the FIR.
P.W. 11/P.I. Mujawar who is investigating
officer.
The FIR lodged by one Mubaraik Ismail Chauhan at Vazirabad
Police Station is at Exhibit 54.
9. P.W. 3/Meera at the time of incident was aged about ten
years and at the time of deposition was aged about 12 years. She
deposed that on 30.04.2001, she was removing dried clothes. At
that time one unknown person came there by a scooter and called
her by uttering words shuk-shuk. (The learned Trial Judge held
that it amounted to offence punishable U/Sec. 509 of the Indian
Penal Code). He was the accused person before the Court. She
did not pay any attention. When the accused again uttered shuk-
shuk, she went near him. He enquired with her address of one
Mr. Patil. She was not knowing the address. The accused told
her to see the diary with him for the address and when she saw
the diary, it was containing obscene nude photographs.
Thereafter, accused forcibly made her to sit on his scooter. She
cried and her mother came out followed by her father. The
scooter dashed against a temple of idol of Mhasoba on the road
and she jumped from the scooter and rushed to her house. The
accused ran away by his scooter. Her father chased him to know
his address. After two hours the accused again came in the area.
9 cri. appeal 184.03
In the meanwhile police had visited the locality. The persons
from her locality were shouting that accused had come accused
had come. The accused then fled away. Her father P.W. 1 chased
the accused. She has identified the obscene book Article A as the
book shown to her by the accused.
10. P.W. 7/Saraswati Winkare is mother of P.W. 3/Meera. She
narrated the incident. She stated that, she was with Meera
when the accused called her by uttering words shuk shuk. She
went inside and Meera went towards the accused. Then she
heard cries of her daughter. She rushed out and saw that the
scooter rider was forcibly taking away her daughter. She also
raised shouts. The scooter dashed against the temple and her
daughter rescued herself and rushed towards house. Thereafter,
her husband came out of the house and saw the registration
number of the scooter as MH-26/7061. Thereafter her husband
had lodged report with Bhagya Nagar Police Station. The police
had visited the locality and made enquiry about description of
the accused. The accused could not be traced.
11. The evidence of P.W. 1/Baburao Vinkare, father of Meera is
similar. He came out and saw that the accused was taking away
Meera on his scooter bearing registration No. MH-26/7061. The
accused left Meera and ran away, as he and his wife had
proceeded towards him. He did not speak about dash of the
scooter against the temple of Mhasoba. He stated that, he
10 cri. appeal 184.03
reported the incident to Bhagya Nagar Police Station, Nanded.
The police visited the area and search was made and after two
hours, the accused again came to that area. His wife, daughter
and other neighbourers identified him. Then he was chased him
upto Amaratwala Ice Factory. The accused had parked his
scooter outside and walked in the office of ice factory. P.W. 1
made casual enquiry about rate of the ice and verified the
identity of accused, but could not take any action against him.
He reported the matter to the police control room and Bhagya
Nagar police station and thereafter lodged the FIR Exhibit 35.
12. P.W. 5/Parvati and P.W. 6/Rajashri were examined as
independent witnesses. P.W. 5 stated that on that day at about
12.00 noon the accused had been to that area. When she was
drying her clothes, the accused gave call as tai. When she went
near him, the accused took out the booklet of obscene photos from
the dicky of his scooter and showed obscene photos to her. She
identified booklet Article A as the same booklet. Thereafter she
saw the accused taking away Meera by his scooter. The spot is
near Mhasoba temple. At about 3.00 to 4.00 p.m. the incident has
taken place. Meera rescued herself and registration number of
the scooter was MH-26/7061. P.W. 6/Rajashree is aged about 16
years. She was studying in a school. She stated that, she and
her sister Bhagyashri had gone to a grocery shop for purchase
sugar and tea and while returning back at 10.00 a.m. one
unknown person came there on scooter and asked them to follow
11 cri. appeal 184.03
him as he was having a class of clothes. They refused to
accompany him. Thereupon, he took out booklet from the dicky
and showed nude photographs to them and thereafter the
accused left the spot. Later she learnt about the incident of
Meera. The accused had again entered the said area at 4.00 p.m.
and she and others identified him and P.W. 1 had chased him.
13. After carefully going through the evidence on record and
giving thoughtful consideration to the arguments advanced, I
find that, the evidence on record is totally untrustworthy and
unreliable. Besides the material ingredients of Sec. 354 and 509
of the Indian Penal Code were not made out, even if, the evidence
is taken at its face value. It is very material to note that, the
accused has been acquitted by the learned Trial Judge for the
offences punishable U/Sec. 363 and 366-A of the Indian Penal
Code and thereby disbelieved the evidence of attempt to kidnap
Meera. My reasons for arriving at this conclusion may be stated
as follows :
(I) The FIR was lodged against unknown person. The
description of the said person was not given to the police. No test
identification parade was held.
(II) P.W. 3 has admitted that, her father had gone to the office
of MLA Khedkar and had a long discussion with him and
thereafter the FIR was lodged. In the meanwhile FIR Exhibit 54
was lodged half an hour earlier by Manager of the accused
12 cri. appeal 184.03
against MLA Khedkar and other Shiv sainik. It shows that on
that day at about 5.00 to 5.30 p.m., some persons had entered his
ice factory and wanted to take ice without payment of money.
When he objected to do the same, fifteen to twenty persons
entered the factory and started work of demolition and assault.
The Manager was assaulted with fist and kick blows and damage
to the extent of Rs. 50,000/- was caused to the ice factory. MLA
Khedkar was standing outside. This FIR was lodged at 8.45 p.m.
at Vazirabad Police Station and subsequent FIR of P.W. 1 was
lodged at Bhagyanagar police station at about 9.25 p.m. The
learned Trial Judge observed that P.W. 1 is not an accused in the
earlier FIR but overlooked the fact that, he had long discussion
with MLA Khedkar before lodging the FIR.
(III) If the evidence of P.W. 1, 3 and 7 is considered at the face
value, the incident took place at 2.00 p.m. and identity of the
accused as owner of ice factory came to the knowledge of P.W. 1
at about 4.00 to 5.00 p.m. Then there is no explanation why FIR
was lodged after four hours at 9.25 p.m.
(IV) The evidence on record shows that, the scooter bearing
particular number was the main link to connect the offender
with the crime. The police have not collected documents of
registration of the scooter showing name of the owner. The
accused has categorically denied that the scooter belongs to him.
He has disclosed the name of some other person as owner of the
13 cri. appeal 184.03
scooter.
(V) As far as recovery of obscene book is concerned, it is tainted
with malafides. Both panchas on recovery panchanama i. e. P.W.
8 and P.W. 9 have turned hostile. Both memorandum at Exhibit
45 and recovery panchanama at Exhibit 46 are shown to have
been made by P.W. 11 at 5.15 to 06.05 p.m. The learned Trial
Judge has already held that, the evidence of Investigating Officer
P. I. Mujawar is not trustworthy and reliable. He went to the
extent of saying that, the I. O. had joined hands with the accused
to save him. In this situation the the discovery cannot be held to
be proved on the basis of untrustworthy evidence of I. O. It is
made from open space of canal, which is accessible to the public
at large. Therefore, discovery of obscene book Article A has not
been proved.
(VI) The evidence of P.W. 1, 3, 5, 6 and 7 is full of discrepancies.
If they are to be believed, according to P.W. 6/Rajashri, the
accused came there on scooter at 10.00 a.m. and took out from his
dicky obscene book and showed it to her, which is not the
prosecution case at all. No such allegation is made in the charge
sheet, nor any charge has been framed to that effect. P.W.
5/Parvati similarly stated that, at about 12.00 noon the accused
came, while she was drying clothes and called her addressing her
as tai. When she went near the accused, he took out from his
dicky a obscene book and showed it to her. Again there is no
14 cri. appeal 184.03
allegation of such nature in charge sheet, nor any charge has
been framed. Besides above, as rightly argued by the learned
advocate for the appellant, P.W. 5 and 6 are school and college
going girls and at the relevant time, they were expected to be in
their school or college. Thereafter, P.W. 1, 3 and 7 have deposed
about the incident at 2.00 p.m. According to P.W. No.
7/Saraswati the scooter number was noticed at 2.00 p.m. only.
According to P.W. 3 and 7 the accused again came at 4.00 p.m.
At that time the scooter number was noticed and same person
was identified. P.W. 3 stated that, when the accused came, the
persons gathered in the lane raised shouts as the accused has
come. "It is obvious that the public will never call the offender as
the accused. Therefore, there was no possibility of shouts by
them as accused had come". The accused is owner of ice factory.
He cannot be so fool to visit the same area at 10.00 a.m., 12.00
noon, 2.00 p.m. and 4.00 p.m.
(VII) As far as the main incident is concerned, P.W. 3 has stated
that, the accused called her by uttering words shuk shuk. P.W.
7/Saraswati has stated that, she was present along with her
daughter. When she went inside the house, P.W. 3 went outside.
This is improbable. Then the accused asked P.W. 3 address and
P.W. 3 told him that, she was not knowing the address, still
accused asked her to see the diary and then showed the obscene
book. Thereafter the accused forcibly made her to sit on scooter.
The English version shows that accused forcibly made her to take
15 cri. appeal 184.03
on his scooter. The Marathi version shows that, she was made to
sit. A child can be taken away on the scooter by keeping standing
on the front side avoiding her escape by two hands holding the
scooter. A child cannot be made to sit on the back seat. There is
evidence of some witnesses that the scooter dashed against the
temple of Mhasoba, while some witnesses have not stated so. It
is not possible that the accused, would visit the same area at
10.00 am., 12.00 noon, 2.00 p.m. and 4.00 p.m. inspite of
knowledge that people had become aware about his misdeeds.
Surprisingly, when at 4.00 p.m. P.W. 1 chased the accused and
had identified him as owner of the ice factory, no immediate FIR
was lodged.
(VIII) The words 'shuk shuk' do not amount to intrusion on
the privacy of a girl. There is no specific evidence as to what was
the act of intentional outraging the modesty of P.W. 3/Meera.
The only allegation worth consideration was attempt to kidnap
and showing obscene book to the annoyance of P.W. 3. The
evidence of P.W. 5 and 6 that the obscene book was shown to
them also is clearly afterthought. The material on record shows
that as the Manager of the accused lodged FIR against Mr.
Khedkar and his party workers, after the incident of ransom in
the factory at 5.00 p.m., there was long discussion between P.W. 1
and Mr. Khedkar and thereafter FIR was lodged. The evidence of
witnesses and the entire prosecution story is untrustworthy and
unreliable. It was shocking to note that, the learned Trial Judge
16 cri. appeal 184.03
went to the extent of granting compensation to P.W. 1/Baburao,
who was not victim and one Bhagyashri Kadam, who was not
examined and to P.W. 5 and 6 when there were no charge on the
accused against P.W. 5, P.W. 6 and Bhagyashri. The appreciation
of evidence by the learned Trial Judge is not proper. The entire
evidence led by prosecution deserves to be disbelieved and the
accused deserves to be acquitted of all the charges. Hence the
order.
O R D E R
A. The appeal is allowed.
B. The conviction of the accused/appellant by way of judgment
dated 16.01.2003 in Sessions Case No. 85 of 2001 delivered by
the Adhoc Additional Sessions Judge, Nanded for the offences
punishable U/Sec. 354, 509, 294 of the Indian Penal Code and
sentence and order of compensation thereunder are set aside.
C. The accused/appellant is acquitted of all the charges.
D. His bail bonds stand cancelled.
Sd/-
[ARUN M. DHAVALE, J.]
bsb/July 17
