Bombay High Court
Atik Ahmed Nazeer Ahmed Ansari vs State Of Maharashtra on 4 December, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-AS:37625
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 297 OF 1997
Sajjad Ahmed Gulam Yasin Ansari .. Appellant
Versus
The State of Maharashtra .. Respondent
WITH
CRIMINAL APPEAL NO. 235 OF 1997
Atik Ahmed Nazeer Ahmed Ansari .. Appellant
Versus
The State of Maharashtra .. Respondent
...
Mr. Ajinkya Udane with Mr.Prasad Jadhav, appointed Advocate
for the appellant in Criminal Appeal No. 235/1997.
Mr.Amin H. Solkar with Ms.Misbaah Solkar for the appellant in
Criminal Appeal No. 297/1997.
Mr.S.R. Agarkar, APP for the State.
CORAM: BHARATI DANGRE, J.
DATED : 4th DECEMBER, 2023
JUDGMENT:
-
1 The two Appeals are preferred by the two accused
persons who faced the trial in Sessions Case No. 17/1996 before
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the 2nd Addl. District and Assistant Sessions Judge, Malegaon and
are aggrieved by the judgment dated 20/3/1997, convicting them
for distinct offences.
Accused no.1, Atik Ahmed Nazeer Ahmed Ansari and
Accused no.2 Sajjad Ahmed Gulam Yasin Ansari are convicted
for the offences punishable u/s.376(2)(g), 354, 342 and 506 r/w
34 IPC and they are sentenced to Rigorous Imprisonment for 10
years and to pay fine of Rs.5,000/- in default to undergo Simple
Imprisonment for six months. They are also convicted u/s.342
r/w 34 IPC and sentenced to suffer RI for one month and to pay
fine of Rs.100/- each in default to undergo SI for 15 days.
Though convicted u/s.354 r/w 34 of IPC, no separate sentence is
awarded. On being convicted u/s. 506 r/w Section 34, they are
directed to suffer RI for one month and to pay fine of Rs.100/-
each, in default to undergo SI for 15 days.
Accused No.1 Atik is also convicted for offence
punishable u/s.292(1) r/w 292(2)(a) and he is sentenced to suffer
RI for two years and to pay fine of Rs.2,000/- in default to
undergo SI for six months, whereas accused no.2 is acquitted of
the said charge.
By the impugned judgment, the accused no.1 was
given set off from 30/12/1995, whereas accused no.2 is given set
off from 30/12/1995 to 30/12/1996.
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2 On admitting both the Appeals, the appellants are
directed to be released on bail, and the order continue to operate
till date.
On the appeals being ready for hearing, they are taken
for final hearing.
Since the appellant Atik in Appeal No. 235/1997 is
not represented by a counsel, Advocate Ajinkya Udane, whose
name is empanelled with Legal Services Authority was appointed
to represent him. Advocate Amin Solkar along with Misbah
Solkar represented the appellant in Appeal No.297/1997. The
State is represented by the learned APP Mr.S.R. Agarkar.
3 The prosecution case surfaced before the Sessions
Judge through 10 witnesses, and in specific, through PW 1, the
prosecutrix, aged 18 ½ years. Her marriage was solemnized with
PW 3 Nihal at Malegaon on 24/11/1995 and thereafter, she
started residing with him in Zopadpatti at Malegaon. After 15
days from her marriage, she expressed her desire to her husband
of having her photograph clicked in the marriage attire, but her
husband did not show any interest and rather permitted her to
click the photograph alone. She, therefore, approached 'Sunrise
Photo Studio' located in Islampura area of Malegaon for clicking
such photograph.
As per the prosecutrix, when she went to the Studio,
accused no.1Atik was present there, who asked her to apply make -up.
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At that time, accused no.2, Sajjad closed the door of the Studio
from inside and she was dragged to the make-up room and was
made to lie down on a wooden bench inside the Studio. When
she raised shouts, she was slapped by Atik and was asked to pull
her Salwar below her knees and by asking her to lift her legs close
to her body, a photograph was clicked by him. Thereafter, turn
by turn, both the accused persons raped her and she was
threatened not to disclose the incident to anyone or else, the
photograph clicked, would be shown to the members of her
family. Since she was newly married and apprehended that her
husband would divorce her, she did not narrate the incident
either to her husband or to any other person.
According to the prosecutrix, after 15 days of the
incident, when she and her husband Nihal decided to watch a
movie in the theatre, they decided to collect the photograph and
reached the studio. Atik was present there and he was asked to
click a photograph of both of them together. As the photograph
was about to be clicked, some females entered the Studio and
therefore, Nihal was asked to step out. Atik showed the
prosecutrix her nude photograph and asked her to accompany
him to one lodge at Manmad for filming her and she was
threatened that if she did not agree, he would reveal the
photograph to her husband. She tore the photograph out of
anger and at the same time, her husband who was waiting outside
also discovered her nude photograph in the tray, and when he
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intended to confront Atik, he tore the photograph, and threw
away the pieces which were picked up by her husband and kept in
the pocket of his pant. Looking at her nude photographs, her
husband was furious and he assaulted her, despite an attempt by
her to convince him that she would narrate the incident once they
reach home, and after narrating the incident to his brother Jamal
Ahmed, a decision was taken to lodge a report to Malegaon police
station.
The report was therefore, lodged (which is exhibited
as 'Exhibit-19A') and the Investigating machinery was set rolling.
The pieces of the photograph which was torn and handed over to
the police is shown to her and identified by her as the same
photograph in Article 16.
4 To corroborate the prosecutrix, the prosecution has
examined her husband Nihal as PW 3, who corroborate her by
stating that after 15 days of marriage, his wife expressed her desire
to get snapped in her marriage costume and he gave Rs.20/- to
her for getting the job done. In the evening, when he returned
back, he asked whether the photograph was clicked and she
answered in the affirmative, and informed that the prints would
be delivered after 15 days. Thereafter, on 15 th or 16th day i.e. 29th
December 1995, they intended to watch a movie and decided to
collect the photograph and accordingly, visited the studio of
accused no.1, and Nihal corroborate the prosecutrix on the aspect
of their visit to the studio and about he discovering the nude
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photograph of his wife, in a tray at the counter which was
snatched by accused no.1, who tore it. He picked up the pieces of
the photographs which retained with him and were subsequently
tendered in investigation.
PW 3, Nihal in variance with PW 1, has further
deposed that before reaching the house, he met one Raju
Studiowala and he inquired about the procedure of capturing the
photograph and showed him the pieces of photographs by
informing that they belong to his wife. He was then informed
that unless and until the negatives are destroyed, multiple prints
of the same can be obtained and therefore, he once again visited
Sunrise Photo Studio along with his wife (PW 1) and sought the
negative film which was handed over to him by accused no.1.
Thereafter, they again went to Raju Studiowala and showed the
negatives to him which were collected from Sunrise Photo Studio
and realizing the seriousness of the matter, they were advised to
meet one Naseem Ahmed, PW 8, Journalist of Hindustan Times.
They approached the said person who made necessary inquiries
about the photograph and tried to contact Senior Police Officer
by making a telephone call but could not connect. Naseem
Ahmed therefore, asked them to come next day morning and they
handed over the torn photographs and negatives to him.
As per Nihal, the negative film and torn pieces of
photographs were given to him by Datta Narod and even his wife
had picked up some pieces of photograph from the studio, which
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she had given to him and they were identified by him as Articles
15 and 16.
5 Naseem Ahmed is examined by the prosecution as
PW 8, who supported the case of the prosecution by deposing
that on 29/12/1995, when he was present in his office, one
person came inquiring abut him and disclosed his name as 'Nihal
Ahmed'. He narrated that the naked photographs of his wife
were snapped by the owner of Sunrise Photo Studio and he was
shown the torn pieces of photo print in colour and one negative.
Though he attempted to join the torn pieces, the complete
photograph could not be arranged. He deposed that the pieces of
the photographs were the parts showing naked portion of lady
from waist downward. He was confronted with Article 15 -
negative film, and Article 16 - pieces of torn photograph.
He corroborate PW 3 by stating that he attempted to
seek police help, but could not contact and therefore, asked him
to return the next day, pursuant to which a report was lodged by
the prosecutrix about the rape on her by the owner of Sunrise
Photo Studio and his friend.
6 On the complaint being lodged resulting into an FIR,
invoking Section 376(g) IPC, the prosecutrix was referred for
medical examination on 30/12/1995. PW 4 Dr. Bhimrao Kisan
Tribhuvan, who was on duty at Wadia Hospital, examined her
and noticed that all her secondary sexual characters were fully
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developed. He did not find any positive fact of evidence of rape,
nor did he notice any abrasion or nail marks on her face, neck,
breast, etc. He issued a certificate to that effect (Exhibit 43)
under his signature. He also examined accused no.1 and accused
no.2 and issued a certificate accordingly.
7 Four photographs and two negatives are seized from
accused no.1 by by executing memorandum of panchnama and
Mujjafar Shaikh, a panch to the said panchnama is examined as
PW 6.
As per this witness, accused no.1 lead the
Investigating Officer and the panch to Sunrise Photo Studio and
he removed one plastic packet kept on wooden plank in a
concealed condition which contained four colour photographs of
postcard size which were obscene. The four photographs and the
negatives were placed in a packet which was sealed. They were
numbered as 'Article 2' and PW 6 has identified his signature put
on the back side of the photograph. The same were exhibited as
Exhibit 52, 53, 54 and 55. He was also confronted with the
negative i.e. Article 1, and the witness confirmed it to be a film
having two negatives.
PW 6 also deposed that the prosecutrix was called at
the Studio by the Investigating Officer and she was shown two
bed-sheets and one black colour cloth, which came to be seized.
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Apart from this, one red colour bag was also found
inside the dark room kept above wooden loft like structure
(Article 7), which contained obscene photographs of men and
women in black and white. The photographs were seized after
the panch witness signed on its back side. Further, 13 other
colour photographs of post-card size which were also picked up
from the same packet, were also seized. Six negative photographs,
two packets of Nirodh condom were also found in the bag and it
also contained two passports which were seized.
The Investigating Officer Bapusaheb Palve is
examined as PW 9 who recorded the complaint filed by the
prosecutrix invoking Sections 376(2)(g), 292, 506 IPC. He
deposed about the details of the investigation carried out by him
and specifically stated that on 31/12/1995, the husband of the
complainant had produced one negative film and torn pieces of
photograph which were seized under panchnama (Exhibit 49).
He also deposed that the pieces of the photographs were tried to
be re-arranged and reconciled with a view to get the complete
picture, but some constituting parts of the torn pieces were
missing.
The Investigating Officer also deposed about a
supplementary statement of the complainant being recorded on
31/12/1995 and certain omissions from the statement of
prosecutrix as well as her husband are proved through him, to
which I would make a reference at a later stage.
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Two other witnesses which are examined by the
prosecution is the Police Sub Inspector Srinivas Patil (PW 10),
who was working under Shri Narod, Dy. S.P. Malegaon, who has
deposed about the direction given to him by Dy.S.P. Narod, to
take positive prints of the negatives seized in the case by taking
the films to Nasik. He was also directed to get positive films
developed from the negative roll loaded in the camera which was
seized.
According to the said witness, the seals were removed
from Articles 6, 15 and 16 from the negatives seized in the crime
and one positive film was printed from the Socola Laboratory.
The camera roll was taken out from the camera in the processing
room and put on the processing machine and a positive copy of
nine negatives was prepared. According to him, the positive
copies which were printed from Socola Laboratory were
compared with the seized positive photographs and pieces of
negative. The positive copies, so obtained, were seized and
sealed, and they were numbered as Article 24A, B, C and Article
24 D1 to D6.
PW 2, is a panch who was called by the police at
Socola Laboratory, Nasik as the policemen wanted reprints of
certain photographs from the Laboratory. He has deposed that
the sealed packets were opened at the laboratory in his presence
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and four photographs (prints) were taken from those packets. He
identified Article 2 before the Court as the four positive films,
while Article 1 is the negative film. The second packet containing
three prints and three films was also opened in his presence, but
the witness clarify that the articles which are described at Serial
No.1 of the list of muddemal filed along with the charge-sheet, is
not the muddemal property filed in the present Sessions trial, but
is filed as muddemal articles in Criminal Case No. 34 of 1996.
He is also a panch to the removal of roll from the
camera, which was seized and he depose that the negative films
bearing 36 A - E, 34, 35, 35A, 36 and the films taken out from
the camera were given for developing, to the proprietor Pujari in
his presence, and he was asked to print positive photograph from
each of the negative given. The photographs obtained, were
signed by him as well as another panch of the Laboratory.
8 All the above witnesses are examined by the
prosecution to establish the charge against the two accused
persons for confining the complainant in the cabin of Sunrise
Photo Studio on 18/12/1995 in furtherance of the common
intention, and thus committing an offence u/s.342 r/w Section 34
IPC. They also face a charge of forcibly committing gang rape on
the complainant and thus committing an offence u/s.376(2)(g) of
IPC. Since the nude and obscene photographs of the prosecutrix
and also other pictures were seized, the accused were also charged
for putting into circulation the said photographs which are
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lascivious or appealing to the prurient interest and thus
committing an offence punishable u/s.292(1) r/w Section 292(2)
(a) r/w 34 of the IPC.
9 With the able assistance of Mr.Ajinkya Udane and
Mr.Amin Solkar, I have perused the evidence led before the Addl.
Sessions Judge in support of the above charge.
The star witness is the prosecutrix, who had testified
that her marriage was solemnized on 24/11/1995 and about 15
days from her marriage, she visited the Sunrise Photo Studio as
she intended to obtain her photograph in her marriage attire. She
categorically deposed that it was Monday, after about 14 days
from her marriage. Accused no.1 was present in the Studio and it
is her version that accused no.2 closed the door of the studio from
inside and she was dragged outside the make-up room in the
Studio and she was made to lie down on the wooden bench lying
in the studio and she raised shouts, but was coerced by accused
no.1 not to raise voice and by removing her apparel below her
knee, a photograph was clicked by Atik.
It is her version that she was initially raped by him
no.1 and then by Sajjad. As per the prosecutrix, after committing
rape, Atik clicked her picture in the same condition and
thereafter, Sajjad raped her. She has identified the post card size
photo Article 2/1, 2/4, but the perusal of the said exhibit would
reveal that they are the photographs of private part of a woman,
but it cannot be identified that they belong to the prosecutrix.
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10 As per the prosecutrix, after 15 days when she visited
the Studio along with her husband, Atik confronted her with the
said photograph which she tore out of anger, and thereafter even
her husband, found her nude photograph in the tray which was
torn by accused no.1, but collected by her husband and retained
with him. The said photograph which was attempted to be
collated, is also on record as 'Article 16', but on its perusal, it is
noted that it is in a tattered condition, and in the said picture, it is
seen that there is a young woman wearing red colour attire
revealing her private part.
PW 3 Nihal has narrated that he had given these
pieces of photograph which was torn by accused no.1, to PW 8
which was in several pieces. PW 8 has also deposed that the
pieces of photograph were parts of the photograph, showing
naked portion of lady from waist downwards., whereas Article 15
was negative film of the said photograph. From Article 16, it
cannot be conclusively held that it is the prosecutrix in the picture
as what is seen, is a red apparel and some portion of the body
below waist. It is difficult to conclude from the photograph that
it is of the prosecutrix. PW 3 has deposed that, at the say of PW
8, he went back to the Studio and requested for negative of the
nude photograph, which Atik had torn in his presence, and it is
surprising to note that accused no.1, who had torn the photograph
to destroy the evidence, handed over the negative to PW 3.
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11 The prosecution case is full of inconsistencies as PW
1 and PW 3, the wife and the husband have given inconsistent
version. As per Nihal, his wife, after 15 days of marriage
expressed desire to have a photograph of the couple and she
insisted that she should get the photograph clicked in marriage
costume. He, therefore, gave Rs.20/- to her and in the evening,
his wife informed that she had gone alone to click the photograph
and it is likely to be delivered within next 15 days. She remained
completely silent and normal in these 15 days and Nihal, her
husband did not notice any abnormality in her behaviour.
Despite the incident having been taken place, the
prosecutrix chose to visit the same photo studio for clicking the
joint photograph as it was her suggestion that the joint
photograph should be clicked and PW 3, Nihal categorically
deposed that this suggestion came from his wife when they
reached the photo studio. However, he is not aware whether the
photograph was clicked, as three ladies entered the studio. As per
PW 3, he asked Atik to deliver the previous photograph and he
was asked to wait outside, whereas according to the prosecutrix,
when they were about to click the photograph, some women
entered and therefore, her husband was asked to step out.
PW 3 state that Atik told him that he would search
for the print afterwards and take snap of the three ladies, but
when he approached the counter of the studio, he found some
photographs lying in the tray and he noticed naked picture of his
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wife in the various photographs lying there. He picked up the
said photograph, when Atik came there and snatched the
photograph and tore it and pieces were thrown there. This is also
highly unbelievable as if the photograph was torn, there was no
reason that the accused should have thrown the pieces there and
let him pocket the same as the photograph was torn, so that PW 3
had no access to it.
12 There is some missing link in the evidence tendered
by the prosecution, as the prosecutrix has narrated that after 15
days, she went to Sunrise Photo Studio when the incident is
alleged to have taken place and again after 15 days on a Friday,
she visited the Studio once again. She was shown the nude
photograph and was asked to accompany her in a lodge, whereas
it is her own version that when she was asked to sit next to her
husband for a photograph to be clicked, two to three females
came to the studio and after their photograph was snapped, they
left the studio.
Thereafter, Atik showed her the nude photograph,
and one of her photograph was found in tray by her husband and
even she tore the photograph. Thus, there were distinct
photographs which were torn, as she has deposed that her
husband had picked up the torn pieces of the photograph.
13 In the cross-examination, prosecutrix has admitted
that there are shops adjacent to Sunrise Photo Studio and one old
man used to sit in front of the Photo Studio of Atik though she
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was not aware whether it was his father. She has deposed that she
was not knowing the accused Atik prior to the incident, but she
also deposed that 1 ½ year back, she had her photograph clicked
by Atik in Kashmiri dress and one more occasion, she along with
her paternal uncle and family members, had been to Sunrise
Photo studio and he took pictures. She admit that she had not
given description of accused Sajjad as the police had not asked
about the same.
She also admit that accused had clicked her
photograph in marriage attire, which she wanted, whereas her
husband had deposed that the photograph that was clicked, was
in the red colour marriage attire, which he destroyed as he was
furious, and even in her complaint, prosecutrix has narrated that
she had gone to the Studio as she wanted to click her photograph
in wedding dress which was red in colour.
In the complaint, she narrates that her husband while
in the studio had noticed a photograph of her face cut and
noticing that the photograph was in a nude condition, he had
picked up the same which was torn by Atik. In her complaint,
she has failed to narrate that her husband had collected the pieces
of photograph which were retained by him and handed over to
PW 8.
As per Nihal, immediately, on leaving Sunrise studio,
he went to meet Raju Studiowala and disclosed to him about the
torn photograph of his wife and thereafter, as per his say, for the
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purpose of collecting the negatives, he along with his wife went to
Sunrise Photo studio and demanded the negatives which were
handed over by Atik. PW 1 is, however, silent on this aspect of
the negative and that she accompanied her husband to Sunrise
Photo Studio once again after visiting Raju Studiowala. It is Raju
Studiowala who had directed the couple to meet Naseem Ahmed,
Journalist (PW 8) and according to PW 3, both of them i.e. PW 1
and 3, had gone to Naseem Ahmed and showed him the
negatives and pieces of torn photographs and he attempted to call
the Senior Police Officer, but the call could not be connected. As
per PW 3, the torn photographs and negatives were given to
Naseem Ahmed.
14 What is pertinent to note is, when PW 3 Nihal has
deposed before the Court about the happenings when he reached
home on noticing the nude photographs of his wife and inquired
with her, she narrated the events which had occurred and he was
angry. He deposed that in the hit of anger, he tore off the red
marriage attire of his wife and threw the pieces in the river and
did not sleep.
Worth it to note that Nihal do not speak of rape
having been committed upon his wife.
Nihal in utter contrast to the version of his wife,
deposed before the Court that even his wife had picked up some
torn pieces of photographs at Sunrise Photo Studio, which she
had given to him on 29th, while they had gone to the Studio, but
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the prosecutrix never spoke about she picking up any pieces of
photographs. In fact, what is marked as Articles 15 and 16, are
two photographs in torn condition, one reflecting a face and
another without face, but reflecting of some red colour apparel.
The two photographs, however, cannot conclusively
establish that they belong to the prosecutrix.
15 Another relevant aspect of the matter is the location
and the position of the Sunrise Photo Studio. PW 3 Nihal in
cross-examination, was specifically confronted with the location
of the Sunrise Photo studio, and he admit that there are shops
adjoining both sides of Sunrise Photo Studio and there are shops
on the other side at Nishad Road opposite Sunrise Photo Studio.
He also admit that Sunrise Photo Studio is divided into two parts
and there is a way joining these two parts for going to the studio
and the outer portion in the Studio and the inner portion is
divided by a curtain and there is one bench inside the studio. He
also admit that Islampura where the studio was located, was a
densely populated area. He also deposed that Raju Photo Studio
is situated in the close proximity of Sunrise Photo Studio i.e. 1000
ft and the office of Hindustan Times i.e. PW 8, is situated in the
same compound of Raju Photo Studio.
It has come on record that there is a common shutter
to the studio and shop and when the prosecutrix had raised
shouts, in a densely populated area, it is surprising as to how
nobody could hear the shouts and no one came to her rescue.
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From the photographs, (Article 24A, 24B and 24C), which are
alleged to be of the prosecutrix, which according to her, are taken
before and after committing rape upon her, do not disclose any
fear on the face of the woman in the photograph and from the
said photographs, it cannot be said that definite conclusion that it
is clicked after she was raped by accused no.1.
The medical evidence on record also do not support
the case of rape, as she is medically examined 15 days after the
alleged incident. Except the version of the prosecutrix that she
was raped by accused no.1 and 2, and the fact that for 15 days, she
did not report about the incident to anyone, nor did she disclose
such a serious incident to her husband and even the husband do
not speak of the rape committed on his wife, when he deposed
that while returning from the Studio, when he found the nude
photographs of his wife and after going home, she narrated the
entire incident to him, he did not even whisper about she
complaining to him about rape. It is surprising as to by looking at
the photographs and only after visiting PW 8, they decided to
lodge a report and the prosecutrix alleged that she was raped by
accused no.1 and 2.
16 It is also important to note that accused no.1 Atik led
to some photographs and negatives which were recovered under
discovery panchnama and marked as Article nos.52, 53, 54 and
55. They are some nude photographs, but none of the
photograph belong to the prosecutrix. The camera which was
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seized and the roll therein which was developed through Socola
Laboratory also do not have any obscene photographs or films,
which were taken out from the camera.
17 PW 7 Vilas Pujari deposed before the Court, who has
developed the films and obtained the photographs at Article
24D(1) to 24D(5). In any case, the photographs which are
otherwise seized from the Photo studio do not belong to the
prosecutrix and though Atik is convicted for committing an
offence punishable u/s.292 (2)(a) of the IPC which punishes an
act for purpose of sell, hire, distribution, public exhibition or
circulation, producing or making or being in possession of any
obscene book, pamplet, paper, drawing, painting, representation
of figure of any other obscene object whatsoever.
The prosecution has utterly failed to demonstrate any
circumstance to establish that the photographs seized from
accused no.1, was intended for the purpose of sale, distribution,
public exhibition or circulation and as such, no charge u/s.292(2)
(a) is proved even against accused no.1.
18 From perusal of the evidence placed before the trial
Court, the case of the prosecution appears to be doubtful, in the
wake of the inconsistency which surfaced through the evidence of
its key witnesses. The prosecution accused both the appellants of
committing rape by invoking clause (g) of sub-section (2) of
Section 376, but in absence of any cogent material to establish the
said charge, with several lacunae and inconsistencies appearing
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in the case of the prosecution, the said charge is not proved. As far
as charge u/s.354 is concerned, which punishes an act of assault or
criminal force to woman with an intent to outrage her modesty,
since the prosecution has failed to establish by convincing
evidence that the photographs which are seized during
investigation and are placed on record, are taken by use of
criminal force, even the ingredients of the said section are not
made out and the appellants deserve acquittal on that count.
19 The impugned judgment has failed to take into
consideration the gross lacunae and the loopholes in the case of
the prosecution which affect its credibility and only on the
ground that the prosecutrix did not report the incident as she was
newly married, the trial Judge has believed her version despite
there is a delay of about 15 days in filing the report.
In fact, the delay in lodging the report has not so
much affected the case of the prosecution as the inconsistency in
the version of the prosecutrix and her husband and about the
serious offence of rape having been proved or inferred, merely on
the basis of the photograph of the prosecutrix collected during
investigation in an objectionable position. There is no cogent
evidence to establish the incident which is alleged to have
occurred in 'Sunrise Photo Studio', nor it is established with
certainity on what date the incident occurred. The offence of
rape is not conclusively established as the testimony of
prosecutrix do not inspire confidence by itself, and there is no
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corroboration for her version on the incident of rape and her
illegal confinement though it appear some photographs having
been clicked, but once again, it is not clear whether they are of the
date when she allege rape as even prior, she has visited the Studio.
In any case, there is no material to prove that the same was
intended for sale, exhibition of it as per requirement of Section
292 of IPC.
The impugned judgment therefore, cannot be
sustained and for the reasons recorded above, it is quashed and set
aside.
The appellant Atik Ahmed Nazeer Ahmed Ansari in
Criminal Appeal No.235/1997 and the appellant Sajjad Ahmed
Gulam Yasin Ansari in Criminal Appeal No. 297/1997, deserve
an acquittal though they have undergone a portion of the
sentence as an under trial prisoner.
The bail bonds of the appellants stand cancelled.
( SMT. BHARATI DANGRE, J.)
Tilak
