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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 784 OF 2015
Ali Mohd. Subrati Khan
Age 37 years, residing at Room No.23, Second Floor, Alezanda Building, R.S. Nimkar Marg, Nagpada, Mumbai. .. Appellant
(Orig. Accused No.2)
(at the instance of Nagpada Police Station) vide C.R. No.370/13. .. Respondent
Mobin Sherali Khan .. Appellant
(Orig. Accused No.1)
(at the instance of Nagpada Police Station) vide C.R. No.370/13. .. Respondent
Ms. Mallika Sharma i/by Ms. Anjali Patil, Advocate for Appellant in
Appeal No.784 of 2015.
Mr. Aniket Vagal, Advocate for Appellant in Appeal No.110 of 2016.
Mr. Ajay Patil, APP for Respondent – State.
JUDGMENT
. These are Appeals against convictions filed by original
Accused questioning the Judgment dated 17.07.2015 passed by the
Additional Sessions Judge, City Civil & Sessions Court, Greater
Mumbai in Session’s Case No.287 of 2014, convicting both Appellants/
Accused for offence punishable under Section 376(2) of the Indian
1 of 14
Penal Code (for short “IPC”) and sentencing both of them to suffer imprisonment for life and payment of fine of Rs.5,000/- each and in default of payment of fine to undergo rigorous imprisonment for 2 months; Accused No.2 in addition stands convicted for offence punishable under Section 506(2) and sentenced to suffer 7 years rigorous imprisonment and pay fine of Rs.1,000/- and in default thereof to undergo further rigorous imprisonment for 15 days and both his sentences to run concurrently. Accused No.1 shall be referred to as “Mobin” and Accused No.2 shall be referred to as “Mohammed” for convenience.
2. Prosecution case is entirely based on the sole testimony of prosecutrix Ms.’X’, who has been examined as PW-1.
3. The gist of facts which emerge for consideration are as under:-
3.1. Prosecutrix was in love with Shiraj since she was studying in 7th standard in her village in Bihar. She befriended Siraj in her village where he used to visit intermittently. Parents of victim arranged her marriage with one, Ramesh Paswan on 02.06.2013. As per custom, after her marriage with Ramesh Paswan, for a period of one year prosecutrix resided in her paternal home as her “gauna” was to be culminated after one year of her marriage date only after which she would go to reside with her husband. Siraj and Ramesh Paswan, both 2 of 14 worked in the same company in Bhiwandi, Maharashtra.
3.2. Prosecutrix and Siraj both decided to get married. On 20.11.2013, prosecutrix eloped from her paternal home in Bihar and came to Mumbai. Between 20.11.2013 and 25.11.2013 prosecutrix was put up by Siraj in Mobin’s home at Bhiwandi alongwith his family. On 25.11.2013, prosecutrix’s relatives arrived at Bhiwandi and took her back to Bihar.
3.3. Prosecutrix thereafter communicated with Siraj and he told her to come to Mumbai once again, hence she boarded the train. On 04.12.2013, she deboarded at Kalyan Railway Station, gave a phone call to Siraj, but since Siraj was on duty, he informed her that he was sending Mobin to receive her. Since prosecutrix had already stayed in Mobin’s house in November 2013 for five days and was acquainted with him, she had no reason to doubt or be suspicious. Mobin met her at Kalyan Railway Station and took her by train to a hotel, offered her food and thereafter took her to a building called Alexandra Building situated at Bellasis Road, Nagpada.
3.4. Prosecutrix was put up by Mobin in a small room when she sensed that it was an inappropriate and bad place. On 04.12.2013, at about 10:00 p.m. or 11:00 p.m., prosecutrix went to shut the door of the room but Mobin did not allow her to do so, thereafter at around 2:00 a.m. Mobin ravished her; though she resisted, he shut her mouth 3 of 14 with his hand and threatened to kill her.
3.5. On morning of 05.12.2013, prosecutrix took her bath and was sitting in the room when Mohammed approached her and asked her where was her husband to which she replied that Mobin was not her husband, and she was to marry Siraj. Mohammed asked her whether she knew as to why she was brought to that place to which she replied in the negative. Mohammed told her that she was brought there for wrong work.
3.6. Prosecutrix made a phone call to Siraj from Mohammed's phone and informed him that she was kept in an inappropriate place, but she was unable to give the location as she herself was unaware of it. At that time, Mohammed snatched the mobile phone from the prosecutrix, closed the door of the room, removed a knife and threatened to kill her if she did not listen to him and thereafter ravished her. He then went out of the room. Prosecutrix was too dazed to understand what happened and was lying in the room after closing the door but, 10 to 15 minutes later Mohammed once again barged into the room, knocked the door and issued threats to her that he would kill her if she did not open the door. Being scared, prosecutrix opened the door and allowed Mohammed inside when he slapped her 2 to 3 times and once again ravished her and left.
3.7. Prosecutrix after some time seeing that there was none 4 of 14 outside the room, left the building crying and started running on the road when she met PW-5, a patrolling police personnel to whom she narrated her ordeal. PW-5 took her to the police chowki, First Information Report (FIR) was lodged at 9:00 a.m. in the morning of 06.12.2013 and crime No.370 of 2013 was registered for offence under Section 376-D and 506-II read with Section 34 IPC.
3.8. Prosecutrix was sent for medical examination; both accused were arrested; spot panchanama and seizure panchanama was carried out; samples of accused and prosecutrix were collected during medical examination and sent for chemical analysis and reports were received.
3.9. Chargesheet was filed after completing investigation before the Court of Metropolitan Magistrate, Mazgaon; however, since offence under Section 376 IPC was exclusively triable by Sessions Court, trial was committed to the Court of Sessions. Charge framed against both accused was read out to them in vernacular to which both pleaded not guilty and claimed to be tried.
3.10. To bring home guilt of the accused prosecution examined 10 witnesses to prove its case, whereas defence did not examine any witness.
4. We have heard Ms. Sharma, Advocate for accused No.2, Mr. Aniket Wagal, Advocate for accused No.1 and Mr. Ajay Patil, APP for Respondent – State and with their assistance, perused the evidence on 5 of 14 record.
5. Prosecution’s case is entirely based on testimony of prosecutrix i.e. PW-1 coupled with medical evidence. Facts narrated above have been deposed by the prosecutrix. Cross-examination of PW-1 clearly shows that evidence of prosecutrix is not shaken or shattered.
6. The testimony of prosecutrix is supported and corroborated by evidence of PW-3 - Siraj. PW-3 has deposed that he called her to Mumbai; spoke to her when she arrived at Kalyan Railway Station; told her that Mobin would receive her; further told her that he paid Rs.1,000/- to Mobin to make arrangement for her stay for one or two days; he also spoke to Mobin when she accompanied him and was having food with Mobin. She has identified Mobin as the person who received her at Kalyan Railway Station and took her to the room/building belonging to Mohammed. She identified Mohammed in the court during the trial. In addition there to, corroboration of prosecutrix's deposition the medical evidence and the chemical analysis report supports the prosecution case.
7. The clothes of prosecutrix were seized in the presence of panchas and the seizure report was marked as Exhibit-19. Such clothes that she was wearing at the time of the incident have been identified; she had kept her unwashed clothes in her bags which have 6 of 14 also been identified. As per C.A. report marked as Exhibit-10, the nicker, pyjama and kurta of prosecutrix had bloodstains; there were blood stains on the pyjama and kurta also; further the nicker was found with semen stains of Blood Group ‘B’; her other pyjama was found with blood stains of Blood Group ‘A’ and semen stains; however the blood group is inconclusive; semen on the full pant of accused which is seized is of blood Group ‘B’; hence CA reports assume significance and proves the prosecution's case.
8. It is further seen that, the clothes of both accused were also seized which they had worn, by PW-8 Investigating Officer Mr. Sunil Sonwane; panchanama vide Exhibit-24 was prepared regarding seizure of the clothes of both accused; PW-4 is the panch witness who has identified both accused present before the court as being present at the time of seizure of clothes; clothes of Mobin as identified are green jean pant, bluish colour shirt and one coffee colour nicker with stain; clothes of Mohameed as identified are grey colour full pant with stain towards the thigh side and one grey colour shirt.
9. Chemical Analyzer’s report vide Exhibit-8 is of the samples of Mobin which is mentioned in medical examination report of Mobin and is “O”. Chemical Analyzer’s report vide Exhibit-9 is of the samples of Mohammed vide Exhibit-31, identities his blood group as ‘B’.
10. Prosecution has thereafter made a comparative analysis of 7 of 14 the above seizure evidence; Exhibit-10 is the comparative chart of examination of the samples seized, in which articles at Nos.[2] to 7 are the clothes of prosecutrix. Articles Nos.[8] and 9 are the clothes of Mohammed, Articles No.10, 11 and 12 are the clothes of Mobin, articles Nos.[5] and 6 i.e. nicker and pyjama are of prosecutrix and are found with semen stain; the blood group of Article – 5 is ‘B’, which is of Mohammed; this same blood group is also found at Article-8 i.e. pant of Mohammed. Considering the Chemical Analysis report, blood group of Mohammed is this clearly found on the clothes of the prosecutrix and also detected in semen. However, there is no clear report in respect of presence of blood Group ‘O’ i.e. of Mobin.
11. From the above, it is evident that prosecution has proven its case beyond reasonable doubt. We find that evidence given by prosecutrix is totally worthy of credence and is reliable and requires no corroboration for maintaining conviction of both accused on the sole testimony of prosecutrix.
12. To answer the objection raised by Appellants that in the absence of test identification parade no weightage should be given to the testimony of the prosecutrix, we may usefully refer to the observations made by the Apex Court in the case of Malkhansingh and Ors. Vs. State of Madhya Pradesh[1], paragraph Nos. 6, 7 and 17 reads thus:
8 of 14 “6. The principal submission urged before the courts below as also before us is whether the conviction of the appellants can be sustained on the basis of the identification of the appellants by the prosecutrix in court without holding a test identification parade in the course of investigation. While the appellants contend that the identification in court not preceded by a test identification parade is of no evidentiary value, the prosecution contends that the substantive evidence is the evidence of identification in court and, therefore, the value to be attached to such identification must depend on facts and circumstances of each case. No general rule could be laid that such identification in the court is of no value.
7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. …….
17. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In the instant case the courts below have concurrently found the evidence of the prosecutrix to be 9 of 14 reliable and, therefore, there was no need for the corroboration of her evidence in court as she was found to be implicitly reliable. We find no error in the reasoning of the courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad daylight. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame. She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity. The occurrence took place on March 4, 1992 and she deposed in Court on August 27, 1992. The prosecutrix appears to be a witness on whom implicit reliance can be placed and there is no reason why she should falsely identify the appellants as the perpetrators of the crime if they had not actually committed the offence. In these circumstances if the courts below have concurrently held that the identification of the appellants by the prosecutrix in court does not require further corroboration, we find no reason to interfere with the finding recorded by the courts below after an appreciation of the evidence on record.”
13. The Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat[2] in paragraph No.9 has held as under:-
2 AIR 1983 Supreme Court 753 10 of 14
13.1. The Apex Court in the above judgment has further held that a girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbors, she would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial house and happiness being shattered.
14. The Apex Court in the case of Sheikh Zakir Vs. State of Bihar[3], has held that a reading of the deposition of the complainant shows that it has a ring of truth around. The absence of any injury on the person of the complainant may not itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance, she cannot be disbelieved. The Apex Court has further held that if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground.
15. In the case of Moti Lal Vs. State of M.P.4, the Supreme Court while considering a case under Section 376 IPC, referrred to the observations of Vivian Bose, J. in Rameshwar Vs. The State of 3 AIR 1983 Supreme Court 911 4 2008 ALL MR (Cri) 2583 (S.C.) 11 of 14 Rajasthan[5] and has observed that a woman or a girl who is raped is not an accomplice; that corroboration is not the sine qua for conviction in a rape case; that it is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any evidence including the evidence of a doctor; that in a given case even if the doctor who has examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix; that in normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police; the Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family and only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case.
15.1. In paragraph 8 of the above judgment, the Supreme Court has held as under:-
16. From the above, it is seen that rape is not merely a physical assault but it destructs the whole personality of the helpless woman. As seen, the evidence of the prosecutrix in the present case inspires confidence and also stands corroborated in material particulars on the basis of testimony of the other prosecution witnesses.
17. In view of the above discussion and findings, and on appreciation of the evidence, offence committed by the accused stands proved beyond reasonable doubt. The only question that now remains to be considered is as regards the sentence. Appellants have behaved in the most horrific manner and shocked our conscience.
18. We agree with the findings returned by the trial court, on reappreciation of evidence that, acts of both accused are independent. Mobin committed rape on the prosecutrix in the intervening night of 04.12.2013 and 05.12.2013 whereas Mohameed committed the offence in the intervening night of 05.12.2013 and 06.12.2013. It is 6 1996(2) SCC 384 13 of 14 proven in evidence that Mobin completely breached the trust entrusted unto him by the prosecutrix when he took her, left her and sold her to Mohameed in the brothel. The act of the Mohameed of ravishing the prosecutrix by threatening her with a weapon (knife) which has been recovered and exhibited in evidence and taking disadvantage of her helplessness and innocence deserves the appropriate penal consequences stipulated by the statute. Both accused have betrayed the prosecutrix of the trust and faith which was bestowed by her in them and have committed the crime.
19. In the view of the above discussion and findings, we do not find any merit in both Criminal Appeals; conviction and judgment of trial court stands sustained and upheld and does not call for any interference.
20. Criminal Appeal No.784 of 2015 and Criminal Appeal No.110 of 2016 are accordingly dismissed. [ MILIND N. JADHAV, J. ] [ A.S. GADKARI, J.]