Bombay High Court
Hussain Mustak Choudhari vs The State Of Maharashtra on 4 March, 2022
Bench: S.S. Jadhav, S. V. Kotwal
1 of 21 08-apeal-853-19 & 1539-18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 853 OF 2019
WITH
INTERIM APPLICATION NO. 2881 OF 2021
WITH
INTERIM APPLICATION NO. 2996 OF 2021
IN
CRIMINAL APPEAL NO. 853 OF 2019
Hussain Mustak Choudhari ..Appellant
Versus
State of Maharashtra ..Respondent
WITH
CRIMINAL APPEAL NO. 1539 OF 2018
Mohd. Hanif Ahmed Shaikh ..Appellant
Versus
State of Maharashtra & Anr. ..Respondents
__________
Mr. Aniket Vagal for Appellants in both Appeals.
Mr. Amit A. Palkar, APP for State/Respondent.
__________
CORAM : SMT. SADHANA S. JADHAV &
SARANG V. KOTWAL, JJ.
RESERVED ON : 1st MARCH 2022.
PRONOUNCED ON : 4th MARCH 2022.
JUDGMENT: (Per Sarang V. Kotwal, J. )
1. Both these Appeals are decided by this common
Judgment because they arise from the same case and in both these
appeals the same Judgment and Order is challenged.
Gokhale
2 of 21 08-apeal-853-19 & 1539-18
2. In this Judgment, both the Appellants are referred to by
their original status in the trial court.
3. The Appellant Husain Mustak Choudhary in Criminal
Appeal No.853 of 2019 was the Accused No.1 and Appellant Mohd.
Hanif Ahmad Shaikh in Criminal Appeal No. 1539 of 2018 was the
Accuse No.2 in POCSO Special Case No. 363 of 2014. At the
conclusion of the trial the learned Judge of designated court under
The Protection of Children from Sexual Offences Act, 2012 (for
short 'POCSO'), for Greater Bombay, vide her Judgment and order
dated 29/09/2017 convicted both the appellants. The Accused
No.1 was convicted for the offences punishable under sections 363,
376(2)(n) and 506 of the Indian Penal Code, 1860 (for short 'IPC'),
as well as, under section 6 of the POCSO. He was sentenced to
suffer rigorous imprisonment for 20 (twenty) years and to pay a
fine of Rs.50,000/- and in default of payment of fine to undergo
R.I. for further six months.
4. The accused No.2 was convicted for commission of
offences punishable under sections 354, 376(2)(f) and 506(II) of
3 of 21 08-apeal-853-19 & 1539-18
IPC, as well as, under section 6 of the POCSO. He was sentenced to
suffer life imprisonment and to pay a fine of Rs.50000/- and in
default of payment of fine to undergo R.I. for further six months.
Out of the fine amount, Rs.80,000/- were directed to be paid to the
victim. The District Legal Aid Services Authority was recommended
to pay adequate compensation to the victim as per amended
Section 357-A, Sub Clause (1) of Cr.P.C. The benefit of set off under
section 428 of the Cr.p.c. was extended to both the accused.
5. Heard Shri. Aniket Vagal, learned counsel for both the
accused and Shri. Amit Palkar, learned APP for the State.
6. The prosecution case has unfolded through the evidence
of the victim and that of her mother. In short, the prosecution case
was that, in October 2013 the victim who was around 15 years of
age; left her house. The accused No.1 saw her crying. She was
alone. He took her with him to his house. She stayed there for
about seven months. In the meantime, he had sexual intercourse
with her on multiple occasions, because of which, she became
pregnant. She then contacted her mother and came back home.
4 of 21 08-apeal-853-19 & 1539-18
Then she lodged her complaint. At the time of lodging of her F.I.R.
she also made allegations against the Accused No.2 who was her
father. According to her, when she was residing with her parents,
the Accused No.2 took advantage of her vulnerable position and
committed rape on a few occasions. When the investigation was
carried out, both the accused were arrested, the charge-sheet was
filed. They faced the trial.
7. The prosecution examined 11 witnesses in support of its
case. PW-1 was mother of the victim, PW-5 is victim herself, PW-6
Dr. Amruta Jain, PW-7 Dr. Nikita Bhot, PW-8 Dr. Minal Sarmalkar,
PW-10 is Dr. Rajesh Dhere were the Medical Oficers conducting
medical procedures. PW-9 API Wagh was the Investigating officer
and PW-11 was the School teacher who produced school record
showing date of birth of the victim as 15/08/1998. PW-2 Riyaz
Shaikh was a panch for spot panchanama. PW-3 Mahendra Kamble
was a panch for another spot panchanama.
8. The accused No.1 examined his mother as the defence
witness. The defence of the accused No.1 was of total denial. The
5 of 21 08-apeal-853-19 & 1539-18
accused No.2 took up a specific defence in his statement recorded
under section 313 of the Cr.p.c. that the victim was holding grudge
against him as he used to scold her for not studying. She was in
love with a boy named Yasin and accused No.2 was opposing that.
On these two counts he was falsely implicated by his daughter.
9. After considering the evidence on record and the
arguments, learned Judge was pleased to convict and sentence both
the accused, as mentioned earlier.
10. PW-1 was the mother of the victim and wife of the
accused No.2. She deposed that, she was residing with the accused
No.2, their two sons and daughter who is the victim in this case.
The victim was 16 years of age at the time of incident. She was
studying in 9th standard in a B.M.C. school. PW-1 has deposed that
the accused No.2 used to get angry with the victim regarding her
studies. The victim left home when PW-1 was not at home. They
searched for her and then lodged a report regarding her missing
from her house. The report was lodged at Nehru Nagar police
station. After about 7 months, the victim made a phone call to her
6 of 21 08-apeal-853-19 & 1539-18
and expressed her desire to meet her. She also had a talk with the
accused no.2 on phone. PW-1 and Accused No.2 requested her to
come back. On the next day the victim came home. She told PW-1
that, she had married accused No.1, but later on, PW-1 came to
know that the Accused No.1 had not married the victim. Her
daughter gave details of her whereabouts. She told the PW-1 that,
when she left the house, she slept in one rickshaw for a night and
on the next day she met accused No.1. He took her to his house. He
used to reside with his children and mother. His wife had left him.
PW-1 has stated that the Accused No.1 was not allowing the victim
to go out of the house as she was below 18 years of age. He used to
commit rape on her in his house. The victim became pregnant. She
told the PW-1 that the accused No.1 had forcible sexual relations
with her, but did not marry her. PW-1 made further inquiries with
her as to why she had left their house. At that time, the victim told
her that, even accused No.2, who was her father, had committed
rape on her. The victim told the PW-1 that, in the night when the
victim used to sleep, the accused No.2 used to commit rape on her.
PW-1 confronted accused No.2, but he denied everything. PW-1 has
7 of 21 08-apeal-853-19 & 1539-18
further stated that the Accused No.2 informed the police that victim
had returned home. After that, police came there and took the
victim to the police station, where her statement was recorded. In
that statement, she made allegations against both the accused. PW-
1's statement was also recorded and was treated as an F.I.R. The
F.I.R. is produced on record at Exh.18. PW-1 has further deposed
that the victim was not willing to give birth to a child and,
therefore, her pregnancy was terminated in the hospital.
In the cross-examination, she admitted that, she did not
know the date of birth of the victim. The victim came back home on
17/05/2014. On that day the victim, PW-1 and accused No.2 had
gone to the police station. At that time, the victim had not told
about the incident to the police. Even PW-1 had not made any
complaint against either of the accused. After 2-3 days they again
went to the police station. PW-1 denied the suggestion that victim
was having an affair with one Yasin and also with accused No.1.
She denied the suggestion that accused No.1 had married the
victim. In her cross-examination by accused no.2, PW-1 admitted
that the accused No.2 used to tell the victim to study sincerely. The
8 of 21 08-apeal-853-19 & 1539-18
victim used to get angry and used to go to her friend Yasin's house.
The victim used to return within 2-3 hours or even on the next day
after visiting Yasin's house. PW-1 also admitted that, on 2-3
occasions the victim had run away from the house. She also
admitted that the victim had never told her about the accused
No.2.
11. PW-5 was the victim herself. Her evidence is important.
She has deposed that, in the year 2013 she left her house. She met
accused No.1 at Kurla. She had slept in one auto rickshaw. The
accused No.1 was owner of that rickshaw. He took the victim to his
house at Andheri (E). He was residing with his mother, two sisters
and three children. His wife had left him. He introduced the victim
to all his family members. She was 16 years of age at that time. The
accused No.1 kept physical relations with her. She was not willing,
as she had told him that she did not want to keep physical relations
without marriage. According to her, accused No.1 forcibly kept
physical relations. She stayed there for 7 months. The accused No.1
did not allow her to go back to her house. She became pregnant.
She informed the PW-1 about her pregnancy. She returned home.
9 of 21 08-apeal-853-19 & 1539-18
Accused No.1 himself dropped her at Kurla (W). She has further
stated that her maternal uncle was residing next to her house.
Some times, PW-1 used to visit the victim's maternal uncle. She has
narrated about the accused No.1's alleged indecent behaviour with
her. On one day, she had toothache. The accused No.2 gave her
tobacco to apply to that tooth. After that she felt giddiness and the
accused No.2 committed rape on her. He committed rape on her on
2-3 occasions when she was alone in the house. It is her case that,
because of this, she left the house without telling her mother i.e.
PW-1. It is her case that, she used to tell PW-1 about accused No.2's
indecent behaviour, but the PW-1 never believed her. She has
narrated about her visit to the hospital and her termination of
pregnancy, as well as, recording of her statement under section 164
of Cr.p.c.
During cross-examination she admitted that, Yasin was
her friend. She also admitted that, she had informed her family
members that she wanted to marry Yasin, but they were opposing
that. When she left home, she had called Yasin, but he did not help
her. She stated that, because of the act committed by her father,
10 of 21 08-apeal-853-19 & 1539-18
she had left the house. According to her, accused No.1 told her that,
he would support her and, therefore, she went with him. She has
admitted that the accused No.1 was residing in a crowded locality
and there was Oshivara police station near his house. During her
stay, she used to go out with the family members of the accused
No.1. She was happy with his family, but was not happy with the
accused No.1. She never told his family members about the acts of
the accused No.1. According to her, she had called PW-1 on two to
four occasions when she was staying with the accused No.1, but on
every such occasions the accused No.1 used to be with her. She has
deposed that, because of threats given by accused No.1 she used to
tell her mother that she was happy. She has also admitted that,
during day time the accused No.1 used to go out to ply his
rickshaw. She has admitted that, during day time, she also used to
go out of house, but she did not ask for anybody's help. When she
went back to her house the accused No.2 himself had called the
police. In the cross-examination conducted on behalf of the
Accused No.1, she admitted that, there were important omissions in
her police statement, particularly, in respect of accused No.2 giving
11 of 21 08-apeal-853-19 & 1539-18
her tobacco. She denied the suggestion that, since the accused No.2
opposed her marriage with Yasin, she has falsely implicated him.
12. PW-4 Mohd. Jafar Mohd. Hanif Kazi is brother of PW-1.
He did not support the prosecution case and was declared hostile.
13. Apart from this evidence, there is evidence of Medical
Officers, as mentioned earlier. PW-6 Dr. Amrita Jain had examined
the victim on 22/05/2014. She gave her report at Exh.36. She has
stated that the victim had given history of sexual assault committed
by the accused No.2 in February 2013.
14. PW-7 Dr. Nikita Bhot has stated that, the victim gave
history of penetrative sexual assault committed by the accused No.2
in July 2013.
15. PW-8 Dr. Minal Sarmalkar had examined the victim on
27/06/2014. This witness was attached to Sion hospital, where the
victim's ossification test was done. The victim's age according to
medical examination was 16 years +/- 6 months. On 01/07/2014
this witness terminated pregnancy of the victim and the samples for
DNA testing were sent. The DNA report which is produced at
12 of 21 08-apeal-853-19 & 1539-18
Exh.42 showed that accused No.1 was father of the foetus.
16. PW-10 Dr. Rajesh Dhere has also deposed that the DNA
report at Exh.52 showed that accused No.1 was the biological
father of the foetus.
17. PW-11 Mrs. Khan Shainaz Iqbal Ahmed was in-charge of
BMC school where the victim was studying. She has produced
school record i.e. School Leaving Certificate showing date of birth
of the victim as 15/08/1998.
18. PW-9 A.P.I. Sachin Wagh had conducted the investigation.
He has deposed about various panchanamas carried out by him,
arrest of the accused and recording of statements of the witnesses.
He has proved various contradictions and omissions. He deposed
that, his investigation did not reveal that accused No.1 had
performed marriage with the victim.
19. The defence witness examined on behalf of the accused
No.1 was his mother. She has deposed that, on 26/10/2013 the
victim came to her house with accused No.1. Both of them had
informed this witness that they had performed marriage, but no
13 of 21 08-apeal-853-19 & 1539-18
nikahnama was shown to her. At that time, the victim had informed
her that her age was 20 years, she was an orphan and came from
Pune. The victim used to go out of the house to bring things from
the shop.
20. Shri. Vagal, learned counsel for the accused submitted
that, there is no cogent evidence regarding age of the victim.
Therefore, prosecution has failed to prove that she was below 18
years of age during the period of incident. The school record was
based on the information given by the parents who themselves
were not aware about exact age of the victim. He relied on the
observations of Division bench of this court in the case of
Balasaheb v. The State of Maharashtra 1. He submitted that error in
case of age based on ossification test may be +/- 3 years according
to medical jurisprudence. He, therefore, submitted that, since the
ossification test of the victim in this case showed that she was 16
years of age; taking into account the possible range of more than 3
years, would mean that she could be 19 years of age and, therefore,
offence under the POCSO, as well as, under IPC is not proved
1 1994 CRI. L. J. 3044
14 of 21 08-apeal-853-19 & 1539-18
against the accused No.1. He submitted that the victim had stayed
with the accused No.1 for seven months. She was residing happily
with his family and, therefore, the prosecution has failed to prove
that, sexual intercourse committed by the accused No.1 was
without her consent. Thus, according to Shri. Vagal the victim was
above 18 years of age. She was willingly residing with the accused
No.1 and had consensual relations with him. Therefore, no offence
is made out against the accused No.1.
21. Shri. Vagal further submitted that the evidence against
the accused No.2 is false. No particulars in respect of approximate
date of offence is mentioned. In the medical history different dates
are mentioned. Even she had not mentioned to her mother about
the alleged acts of the Accused No.2. She could have complained
to her maternal uncle who was residing at the next door. On the
other hand, there is sufficient reason for her to implicate the
accused No.2 falsely, because he was scolding her regarding her
studies and he was opposing her friendship with Yasin. The
allegations against accused No.2 are made after much delay as an
afterthought. The accused No.2 had taken a specific defence to that
15 of 21 08-apeal-853-19 & 1539-18
effect in his statement recorded U/s.313 of Cr.p.c. It was the
accused No.2 who had called the police after the victim had
returned home. This conduct shows that he had not committed any
offence. Shri. Vagal submitted that, in any case, in the background
of this case the sentence awarded is too harsh.
22. On the other hand, learned APP Shri. Palkar submitted
that, victim's statements are consistent. There is no reason to
disbelieve her story. There is presumption U/s.29 of the POCSO.
The victim was below 18 years of age during that period. It is
proved through medical examination and school record. The DNA
profile has conclusively established that the accused No.1 is the
father of foetus and hence, it is proved that he had established
physical relations with the victim.
23. We have considered these submissions. So far as accused
No.2 is concerned, the evidence against him is weak and
contradictory. The victim had not told about his acts to her mother
or maternal uncle till she returned home. There was a background
for her to hold grudge against accused No.2. The accused No.2
16 of 21 08-apeal-853-19 & 1539-18
used to scold her regarding her studies and he was opposing her
friendship with Yasin. These facts have come on record. The victim
has not given any details regarding date or month of the incident
connected with the accused No.2. At different places she has
mentioned different months for offence allegedly committed by the
accused No.2. There are important omissions in respect of the
incident. Her case was that the accused No.2 had given her tobacco
to apply on her tooth because of which she felt giddiness and
thereafter the accused No.2 committed rape on her. This fact of
giving tobacco because of which she felt giddiness was not told by
her to the police. This is an important aspect because taking
advantage of that situation the accused No.2 had allegedly
committed raper on her.
24. There is inordinate and unexplained delay in making
allegations against the accused No.2 by PW-5. Even after she had
returned home, according to her, on that very day they had gone to
the police station, but she had not complained about accused No.2.
After that, she had stayed at her house for 2-3 days and then for the
first time she came up with the allegations against accused No.2.
17 of 21 08-apeal-853-19 & 1539-18
Prior to her leaving house in October 2013 she never told her
mother or maternal uncle, though she could have complained
about the same. The conduct of the accused No.2 to call the police
after the victim had returned home also contributes to the theory of
his innocence. There is no other corroborative piece of evidence
against the accused No.2. Therefore, story of the victim against
accused No.2 appears to be doubtful. In this view, the defence has
successfully rebutted the presumption U/s.29 of the POCSO, based
on the evidence of prosecution witnesses themselves. Based on this
discussion, the accused No.2 deserves to be given benefit of doubt
and hence, deserves to be acquitted.
25. So far as, accused No.1 is concerned, there is no denying
fact that he had physical relations with the victim. This is proved
not only through evidence of PW-5, but more importantly, through
the medical evidence. The DNA report shows that accused No.1
was biological father of foetus of the victim. Therefore, it is
conclusively proved that the accused No.1 had physical relations
with the victim. The next question would be whether that relation
was with consent or whether that consent would be material. In
18 of 21 08-apeal-853-19 & 1539-18
this context, it does appear that the victim had stayed with accused
No.1 for 7 months. In the meantime, she could go out of the house
as per the evidence on record. She was taking part in the festivities.
She was happily residing with other family members of accused
No.1. There was a police station near her locality and yet on none
of these occasions the PW-5 victim had made any complaint or
grievance against the accused No.1. However, in this case the
consent will not matter because prosecution has proved that the
victim was below 18 years of age. Though, Shri. Vagal has relied on
the case of Balasaheb (supra), the medical evidence is not the only
piece of evidence in this case, but the prosecution has brought on
record school record which shows victim's date of birth as
16/05/1998. Thus, she was definitely below 18 years of age when
accused No.1 had established physical relations with her. In this
view of the matter, consent of the victim is not important. The
offences charged against accused No.1 are proved. Therefore, he
cannot be acquitted. However, in the background of the case, the
evidence of PW-5 and other circumstances can be taken into
account to consider the quantum of sentence awarded to the
19 of 21 08-apeal-853-19 & 1539-18
accused No.1. The evidence shows that, when the victim had left
her house, she had willingly gone to reside with the accused No.1.
She was residing with his mother, two sisters and three children. As
mentioned earlier, the victim was staying there as a family member
and was taking part in their activities. She was not confined to the
house and there was no force involved. This will not give any
benefit to accused No.1 for acquittal. But, these factors can be
taken into consideration in awarding sentence. Therefore, we are
inclined to accept the submission of Shri. Vagal that sentence
awarded to the accused No.1 is quite harsh. In this background, it
would be sufficient if the minimum sentence is imposed on the
accused No.1. Therefore, though we are upholding conviction of
accused No.1, we are setting aside the sentence imposed on him
and instead, we are imposing lesser sentence. Though, Shri. Palkar
has submitted that the sentence should not be interfered with, we
are satisfied that, in the facts of these circumstances, minimum
sentence will serve the ends of justice.
26. Hence, the following order:
20 of 21 08-apeal-853-19 & 1539-18
ORDER
(i) Criminal Appeal No. 1539 of 2018
preferred by Accused No.2 Mohd. Hanif
Ahmed Shaikh is allowed.
(ii) Appellant Mohd. Hanif Ahmed Shaikh in
Criminal Appeal No. 1539 of 2018 is
acquitted of all the charges. He is on bail,
his bail bond shall stand cancelled.
(iii) Criminal Appeal No. 853 of 2019 preferred
by accused No.1 Hussain Mustak
Choudhari is partly allowed. His conviction
Under sections 366, 376(2)(n) and 506 of
IPC, as well as, under section 6 of POCSO
is maintained.
(iv) Appellant Hussain Mustak Choudhari in
Criminal Appeal No. 853 of 2019 is
sentenced to suffer Rigorous Imprisonment
for 10 (Ten) years instead of 20 (Twenty)
years and to pay a fine of Rs.80,000/-
(Rupees Eighty Thousand only) instead of
Rs.50,000/-. In default of payment of fine,
he shall suffer further simple
imprisonment for six months.
21 of 21 08-apeal-853-19 & 1539-18
(v) Fine, if paid, be given to the
victim/Respondent No.2.
(vi) The District Legal Service Authority is
recommended to pay compensation to the
victim as per Section 357A of the Cr. P. C.
in accordance with the Government
schemes. At that time, they shall take into
account whether the compensation out of
the fine amount is actually paid to the
victim or not.
(vii) Set off under section 428 of Cr. P. C. be
given to the Accused No.1.
(viii) With this order, both these Appeals are
disposed of.
(ix) With disposal of these Appeals, both the
Interim Applications do not survive and
are disposed of accordingly.
(SARANG V. KOTWAL, J.) (SMT. SADHANA S. JADHAV, J.)
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2022.03.04
11:39:02
+0530
