High Court dismissed State's application for leave to appeal in a rape and kidnapping case. Trial Court acquitted accused due to discrepancies in age proof and lack of evidence proving lack of consent. Court held acquittal was a reasonable view.
Application for leave to file appeal is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 2.als.139.13.sxw
jdk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 139 OF 2013
The State of Maharashtra
..Applicant
Vs.
Hasnoon Hajiali Khan and Anr.
Respondents
Mrs. V.R. Bhonsale, A.P.P. for the Applicant-State None for the Respondents
CORAM : SMT.V.K.TAHILRAMANI AND MRS. MRIDULA BHATKAR, JJ.
DATED : AUGUST 19, 2013
P.C.:
1 Heard the learned A.P.P. for the Applicant-State of Maharashtra. The applicant-State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 4th December, 2012 passed by the learned District Judge-4 and Additional Sessions Judge, Thane in Sessions Case No. 53 of 2008. By the said judgment and order, the learned Sessions Judge acquitted the respondents-accused nos.1 and 2 of the offence under Sections 363, 366, 376, 506 (II) of IPC and under Sections 4 and 5 of the Child Marriage
2 2.als.139.13.sxw
Restraint Act.
2 The prosecution case briefly stated, is as under:
The prosecutrix who is PW-1 Yasmin was about 14 years of age. She knew the respondent no.1. On 19.8.2007, the respondent no.1 called the prosecutrix to Mira Road Railway Station. From there, they went to various places like Kashimira Hotel, Mahendra Garden. Eventually, the respondent no.1 took the prosecutrix to his house. He came back with three Kazis' and they performed the marriage of the prosecutrix with respondent no.1. Her signature was obtained on Nikahnama'. Thereafter, the prosecutrix stayed with respondent no.1 till 20.10.2007 in his house. During the said period, the respondent no.1 had forcible sexual intercourse with the prosecutrix on 4 occasions. Hence, she filed F.I.R. Thereafter, investigation commenced. It is further the prosecution case that respondent no.2 helped respondent no.1 in kidnapping the prosecutrix.
3 At the outset, it may be stated here that respondent no.1 has not denied that he called the prosecutrix to Mira Road Railway Station and thereafter the prosecutrix stayed with him
3 2.als.139.13.sxw
in his house. However, he denied that any sexual intercourse took place and his defence is that the prosecutrix was over 16 years of age at the time of the incident and she voluntarily ran away with him and stayed with him in his house. In view of the defence taken by the respondent no.1 that the prosecutrix was over 16 years of age at the relevant time, we proceed to examine this aspect minutely.
4 The incident has taken place from 19.8.2007 to 20.10.2007. The prosecutrix in her evidence has stated that her date of birth was 27.12.1992. However, mother of the prosecutrix gave the date of birth of the prosecutrix as 27.12.1993. Thus, it is seen that there is a discrepancy in the evidence on the date of birth of the prosecutrix. The prosecutrix was sent for medical examination and PW-5 Doctor who examined the prosecutrix, has stated that secondary sexual characters of the prosecutrix was well developed and her ossification test shows that at the time of examination, her age was found to be 18 to 20 years. This witness has further stated that there is difference of two years on either side. Though the birth certificate has been relied on by the prosecution, it is seen that the birth certificate was obtained in
4 2.als.139.13.sxw
the year 2005 and there is no record or evidence of the hospital where the prosecutrix was born. Further, it is not known on what basis this birth certificate was issued. Thus, some evidence on record shows that the prosecutrix was below 16 years of age at the relevant time and other evidence shows that the prosecutrix was above 16 years of age at the relevant time. When there are two views, then one which favours the defence, has to be considered. Therefore, adopting such principle, the evidence which shows that the prosecutrix was major, has to be accepted.
5 It is the case of the prosecution that the respondent no.1 kidnapped the prosecutrix. However, scrutiny of the evidence of the prosecutrix shows that infact, she telephoned the respondent no.1, then respondent no.1 told her to meet him at Mira Road Railway Station. From there, they went to various places like Kashimira Hotel and Mahendra Garden and thereafter, the respondent no.1 asked her to come to his house. The evidence on record does not show that the respondent no.1 gave any inducement to the prosecutrix to leave her house. There is no element of enticement to leave the house of her parents. There is no evidence to show that
5 2.als.139.13.sxw
the respondent no.1 pressurized the prosecutrix in any manner. On the other hand, it appears that the prosecutrix left the house of her own accord and she was not physically taken away by force or by inducement or enticement by the accused. The prosecutrix has not even stated that any promise of marriage was given by respondent no.1, hence, she ran away with respondent no.1. She continued to stay with respondent no.1 in his house for about two months. The evidence on record shows that the prosecutrix and respondent no.1 were known to each other and it appears that their friendship was beyond mere acquaintance, and in fact, they were having an affair. The evidence of the prosecutrix shows that she left her house and went to Mira Road Railway Station on her own, thereafter, she accompanied respondent no.1 to various places and thereafter she went to his house. She stayed there from 19.8.2007 to 20.10.2007. During the said period, she did not raise any hue and cry nor made any attempt to run away. Her deposition shows that the respondent no.1 used to go daily for work. The prosecutrix has not stated that she was locked and kept inside the house. If the events were not according to the wishes of the prosecutrix, she would certainly have run away during this period of more than two months. Such evidence
6 2.als.139.13.sxw
leads to the conclusion that the prosecutrix was a consenting party. Thus, we are of the view that the learned trial Judge was right in holding that the prosecution could not establish the charge under Sections 363 and 366 of IPC.
6 The case of the prosecutrix is that during the period from 19.8.2007 to 20.10.2007, when she was residing in the house of respondent no.1, he raped her on 11.10.2007, 14.10.2007, 18.10.2007 and 19.10.2007. If the respondent no.1 had sexual intercourse with the prosecutrix against her will and without her consent on 11.10.2007, then thereafter the prosecutrix would not have continued to stay in the house of the respondent no.1. The fact that even thereafter she continued to stay in the house of the respondent no.1 shows that there was consent on her part. The conduct of the prosecutrix of continuing to reside in the house of the respondent no.1 inspite of the alleged first incident of rape on 11.10.2007, raises serious doubt that there was any objection from her side. In fact, it leaves room to presume that there was no objection from her side. On 20.10.2007 she went to her parents house when the respondent no.1 asked her whether she remembered her parents or not.
7 2.als.139.13.sxw
7 As far as charge of rape is concerned, the prosecutrix was subjected to medical examination. PW-5 Doctor who examined the prosecutrix, stated that no external injuries were found on the person of the prosecutrix. He did not find any injuries on her external genitals, her hymen was intact and it was admitting one finger with difficulty. This Doctor in his cross-examination, has admitted that there may be or there may not be sexual intercourse. Thus, looking to the medical evidence also, there appears serious doubt whether any act of sexual intercourse actually took place.
8 As far as offence under Section 506 (II) of IPC is concerned, there is no evidence to support the same and as far as Sections 4 and 5 of the Child Marriage Restraint Act is concerned, the evidence on record does not conclusively show that the prosecutrix was minor at the time of the incident.
9 Thus, the conduct of the prosecutrix on going on her own and meeting respondent no.1, staying with him from 19.8.2007 to 20.10.2007. According to her, the respondent no.1 committed rape on her on 11.10.2007, yet she continued
8 2.als.139.13.sxw
to stay in his house till 20.10.2007 which makes her story doubtful. She has not stated that she was prevented from going out from the house of the respondent no.1. She has not raised any hue and cry or alarm or made any attempt to run away or any attempt to seek help. Though she has admitted that respondent no.1 used to go out for his work, however, she did not avail the opportunity of fleeing when respondent no. 1 went out for work. Her conduct clearly shows that she was a consenting party to whatever act was committed by the respondent no.1. As discussed above, the medical evidence also does not support the case of the prosecution that rape was committed on the prosecutrix. As far as Respondent no.2 is concerned, there is no evidence at all against him to show his involvement in any of the offences. In such case, we are of the opinion that the view of acquittal taken by the learned Sessions Judge is a reasonable and possible view.
10 It is well settled that if the view of acquittal would have been reasonably arrived at, then the mere circumstance that the Appellate Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew, prolixity we are referring to
9 2.als.139.13.sxw
two of that i.e. A.I.R. 1971 S.C. 66 Khedu Mohton and others Vs. State of Bihar and C. Anthony Vs. K.G. Raghvan Nair (2003) 1 SCC 1. In the case of C. Anthony, the Supreme Court has observed that unless findings of the Trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute it’s findings, merely because another contrary opinion was possible on the basis of material on record. As stated earlier, the view taken by the learned Sessions Judge is a reasonable and possible view, hence, no interference is called for.
11 Application for leave to file appeal, is rejected.
[MRS. MRIDULA BHATKAR, J.] [SMT. V.K.TAHILRAMANI, J.]
kandarkar
3 issues framed by the court
Whether the High Court can interfere with acquittal in murder and rape charges when a reasonable view favouring the accused can be arrived at.
Whether the medical evidence and conduct of the prosecutrix prove rape and kidnapping under IPC 363/376.
Whether the evidence conclusively establishes that the prosecutrix was a minor for offences under Section 4 and 5 of PMR Act.
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
State of Maharashtra
Hasnoon Hajiali Khan
V.K.Tahilramani
Mridula Bhartkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
