Firokhan @ Kariya Vahidkhan Vs the State of Maharashtra

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 SIDE JURISDICTION
 CRIMINAL APPEAL NO.242 OF 2005

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 Firozkhan @ Kariya Vahidalli Khan
 R/o Indira Nagar Hutment,
 Behind Faizane Raza Masjid, Near
 common Latrine, Bainganwadi,
 Govandi, Mumbai 43 ...Appellant.
 V/s.

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 The State of Maharashtra
 (through Shivaji Nagar Police Station
 C.R.No.71/99) ...Respondent.
 Shri R.R.Mahagaonkar, adv. appointed for the Applicant
 absent.

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 Smt.V.R.Bhosale, APP for the Respondent/State.

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 CORAM: J.H.BHATIA, J.
 DATE : 10th April, 2007.

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ORAL JUDGMENT:

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 1. The appellant/ accused was convicted by the

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 Additional Sessions Judge, Greater Bombay for the
 offences punishable under Section 376 of the I.P.C. and
 was sentenced to undergo R.I. for 5 years and to pay a
 fine of Rs.500/- and in default to pay fine, to undergo
 further R.I. for three months in Sessions Case No.1065
 of 1999.

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 2. The appellant has preferred this appeal through
 jail. Shri Mahagaonkar advocate is appointed by this
 Court to appear and conduct appeal on behalf of the

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 appellant, but unfortunately he did not appear yesterday
 nor he appeared today when the matter is called out for
 final hearing. Perused the record, impugned judgment,
 prosecution evidence and proceeding of the trial Court
 with the help of Mrs. Bhosale, the learned APP.

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 3. Prosecution case in brief, is that the
 prosecutrix a girl, aged about 18 years, came to Bombay
 alongwith her brother P.W.2 Mohammed Khan and mother
 P.W.3 Husna from Gauriganj, District Gonda in U.P. to
 Mumbai. As they had no place of residence in Bombay and
 as the appellant, who was residing behind the mosque at
 Bainganwadi, Govandi, also hails from the same village
 and was known to the prosecutrix and her family, they
 took shelter in his house. They lived in his house from
 November, 1998 to January, 1999. On 10th February, 1999
 wife and children of the accused came back from their
 native place and about 8 days before that the
 prosecutrix, her mother and brother left the house of
 the accused and went to live at Indira Nagar Hutment in
 the same area. According to the prosecution, next day
 after the prosecutrix, her mother and brother had come
 to live in the house of the accused, her brother went to
 find out some work while her mother went to the market.
 Finding that the prosecutrix was alone at the house, the
 accused appellant approached her and began to chit-chat

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 with her. While chitchatting he offered to marry her

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 but she declined. However, the accused hugged her and
 felled her on the ground and thereafter forcibly
 committed rape on her. After the act was completed, he
 went away. On that day the prosecutrix did not tell
 about this incident either to her mother or anybody
 else. During their stay in that house for a period of 3
 months, the accused committed rape on her repeatedly by
 giving a promise of marriage. This fact was not
 disclosed to anybody by the prosecutrix. On 11-4-1999
 she began to feel abdominal pain and was taken to
 private doctor and on examination, it was revealed that
 she was pregnant for 5 months. After that she disclosed
 the above fact to her mother and brother. Then all
 these persons went to the house of the accused and told
 him about pregnancy and asked him to marry the
 prosecutrix. He took one week’s time to consider but as
 he did not agree to marry, on 19-4-1999 the prosecutrix
 lodged a report at Shivaji Nagar Police Station on the
 basis of which crime no.71 of 1999 came to be
 registered. After registration of the offence, she was
 referred to the medical officer and on examination he
 found that she was pregnant for 24 weeks. After
 investigation chargesheet was filed and the case was
 committed to the Court of Sessions for trial.

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 4. Charge was framed against the accused for the
 offences punishable under Section 376 of the I.P.C. He
 pleaded not guilty. He denied that he had committed
 rape on the prosecutrix or that he had sexual
 intercourse with her. According to him, she was already
 pregnant for one month when she had come from village to
 Mumbai and later on her mother pressurised him to marry
 her but because he declined, the false report was lodged
 against him.

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 5. On behalf of the prosecution in all five
 witnesses were examined. Relying upon the testimony of
 the prosecutrix, the learned trial Court convicted and
 sentenced the accused as stated above.

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 6. The prosecutrix, who is P.W.1, deposed the
 above facts in her evidence. According to her on the
 next day after they had come to live at the house of the
 accused, her brother had gone out to seek work while her
 mother had gone to the market. Finding her alone at the
 house accused came into the house and committed rape on
 her and also threatened. Therefore, she did not
 disclose this fact to anybody. After that within a
 period of one month, he committed rape on her on 3 or 4
 occasions. Due to the threats given by the accused and

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 because they had no other shelter to live, she did not
 disclose the fact to her mother. According to her later
 on she began to feel pain and was taken to private
 doctor, who disclosed that she was pregnant for three
 months. After that she disclosed before her mother that
 the accused had sexual intercourse with her. After that
 she and her mother approached the accused and requested
 him to marry her but he refused on the ground that he
 was already married. According to her, she was taken to
 the police station Shivaji Nagar where she lodged the
 report in the month of May, 1999. However it appears
 that report Exhibit-8 was lodged by her on 19.04.1999.
 She does not appear to be well conversant about dates
 and months.

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 7. Evidence of P.W.4 Dr. Vijay Kelwekar, who was
 Medical Officer attached to Police Hospital, Nagpada,
 deposed that he had examined the prosecutrix on
 20.04.1999 and as per the history given by the girl she
 was raped about 5 months prior to the examination.
 However on physical examination he found that foetal
 height was of 24 weeks and abdominal pain was felt by
 the prosecutrix. He came to a conclusion that in view
 of the physical examination and the history given, she
 was pregnant for 24 weeks. This fact is not much
 disputed. As she was examined on 20th April, 1999 and

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 she was found pregnant for 24 weeks pregnancy relates
 back to the month of October or atleast it can be stated
 that her last menses had occurred in the month of
 October, 1998.

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 8. About the period during which they lived at the
 house of the accused, there is discrepancy. The
 prosecutrix herself did not state anything about the
 month during which they had lived at the house of the
 accused. However, her brother P.W.2 Mohammed Khan
 deposed that they were living in the house of the
 accused from December, 1998 to March, 1999. On the
 other hand, their mother P.W.3 Husna deposed that they
 had lived in the house of the accused from November,
 1998 to January, 1999. In the F.I.R. also same period
 is given. If they went to live in the house of the
 accused in December, 1998, undoubtedly it has to be held
 that she was pregnant before she came to live in that
 house and if they came to live in that house in
 November, 1998 still it is doubtful whether she was
 pregnant before coming to that house or became pregnant
 afterwards.

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 9. P.W.4 Dr.Kelvekar admitted that he had not

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 advised D.N.A. Test. The learned trial Court noted
 that neither the prosecutrix deposed nor any material

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 was placed on record to show that she had given birth to
 the child. In absence of D.N.A. test except the bare
 words of the prosecutrix, there is no evidence to
 establish that the accused had committed rape on her or
 had sexual intercourse with her from time to time. Even
 though in her evidence before the Court she deposed that
 because of the threats given by the accused, she had not
 disclosed this fact to her mother or anybody else, in
 the F.I.R there is no mention of any threats given by
 the accused. On the other hand, in the F.I.R. it is
 mentioned that on the first occasion, accused hugged her
 and thereafter he felled her on the ground and forcibly
 had sexual intercourse with her. However, in the F.I.R.
 she also stated that thereafter during their stay in the
 house from time to time he used to have sexual
 intercourse with her by giving promise of marriage. In
 view of this, possibility of her consent can not be
 ruled out. Her conduct in keeping silent for a period
 of 5 months and not disclosing the fact to anybody
 including her mother creates suspicion about herself.
 The learned trial Court noted that because she had no
 other place to live and because they were living in the
 house of the accused and because he had given threats,
 she did not disclose the facts and, therefore, her
 testimony before the Court is reliable. It is material
 to note that as per the F.I.R. her age was 18 years but

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 as per her admission in cross-examination and the

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 medical evidence, her age was 17 years, when the alleged
 incident occurred. If she had become pregnant in the
 month of November, she must have come to know about this
 immediately after she missed her next menses. It is
 difficult to believe that if the accused had committed
 rape on her, she would keep silent and would not
 disclose the fact even to her mother even after knowing
 that she had become pregnant. Pregnancy could not be
 concealed for a long period and it appears that they
 lodged report, when she was in advanced stage of
 pregnancy of 24 weeks. It is also difficult to believe
 that her mother could not notice the developments in the
 physique of the prosecutrix in view of the stage of
 pregnancy.

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 10. It is now well settled that in the case of
 rape, the conviction can be based on the sole testimony
 of the prosecutrix if her testimony is found trustworthy
 and reliable and there are no circumstances which would
 cast doubt on her veracity. In Sudhansu Sekhar Sahoo v.
The State of Orissa 2003 Supreme Court Cases (Cri) 1484,
 the Supreme Court observed as follows in paragraph 11
 and 17:

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 "11. It is true that the sole testimony of the

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 victim of a sexual offence can be a basis for
 conviction provided it is safe, reliable and
 worthy of acceptance. This Court had occasion,
 in many cases, to consider the nature of
 evidence required when the conviction was
 mainly based on the testimony of the victim of
 a sexual offence.

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 17. It is well settled that in rape cases the
 conviction can be solely based on the evidence
 of the victim, provided such evidence inspires
 confidence in the mind of the court. The
 victim is not treated as an accomplice, but
 could only be characterised as injured witness.
 It is also reasonable to assume that no woman
 would falsely implicate a person in a sexual
 offence as the honour and prestige of that
 woman also would be at stake. However, the
 evidence of the prosecution shall be cogent and
 convincing and if there is any supporting
 material likely to be available, then the rule
 of prudence requires that evidence of the
 victim may be supported by such corroborative
 material."

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 In Vimal Suresh Kamble v. Chaluverapinake Apal S.P.
and another 2003 Criminal Law Journal 910, the Supreme
 Court observed as follows in paragraph 21:

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 "On an overall appreciation of the evidence of
 the prosecutrix and her conduct we have come to
 the conclusion that P.W.1 is not a reliable
 witness. We, therefore, concur with the view
 of the High Court that a conviction cannot be
 safely based upon the evidence of the
 prosecutrix alone. It is no doubt true that in
 law the conviction of an accused on the basis
 of the testimony of the prosecutrix alone is
 permissible, but that is in a case where the
 evidence of the prosecutrix inspires confidence
 and appears to be natural and truthful. The
 evidence of the prosecutrix in this case is not
 of such quality, and there is no other evidence
 on record which may even lend some assurance,
 short of corroboration that she is making a

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 truthful statement...."

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 In Ramdas & Ors. v. State of Maharashtra AIR 2007

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Supreme Court 155, the Supreme Court observed as follows
 in paragraph 22:

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 "It is no doubt true that the conviction in a
 case of rape can be based solely on the
 testimony of the prosecutrix, but that can be
 done in a case where the court is convinced
 about the truthfulness of the prosecutrix and
 there exist no circumstances which cast a
 shadow of doubt over her veracity. If the
 evidence of the prosecutrix is of such quality
 that may be sufficient to sustain an order of
 conviction solely on the basis of her
 testimony. In the instant case we do not find
 her evidence to be of such quality.

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 11. In view of the legal position settled in a

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 large number of cases, the conviction in the case of

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 rape can be based solely on the testimony of the
 prosecutrix, provided the Court is convinced about the
 truthfulness of the prosecutrix and there are no
 circumstances to doubt or suspect her own conduct and
 veracity. If her evidence is truthful and of such
 quality, then only conviction can be based on her
 testimony alone. In the present case as pointed out

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 above, evidence of the prosecutrix is not of such a

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 quality which will inspire confidence nor there is any
 other evidence which would lend some assurance that her
 evidence is truthful.

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 12. Taking into consideration the legal position and
 the evidence in its totality, I find that the
 prosecution has failed to prove beyond reasonable doubt
 that the accused had committed rape on the prosecutrix.
 At least he is entitled to get benefit of doubt. In the
 result, impugned judgment and order of conviction and
 sentence are liable to be set aside.

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 13. For the aforesaid reasons , appeal is allowed
 Impugned judgment and order of conviction and sentence
 are hereby set aside. Accused is acquitted and he be
 set at liberty forthwith, if not required in any other

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 case.

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 (J.H.Bhatia,J.)

Firokhan @ Kariya Vahidkhan v. the State of Maharashtra

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Firokhan @ Kariya Vahidkhan v. the State of Maharashtra

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