Dismissed

Munnali @ Mustaqali Subratiali Shaikh v. the State of Maharashtra

Bombay HC26 Jun 2014APEAL/384/2011

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court rejected the appellant's challenge to his conviction for rape and abducting a woman for illicit intercourse. The Court held that the prosecutrix's testimony was reliable and corroborated by medical evidence and witness statements, rejecting defenses regarding inconsistency in the FIR and DNA mismatch.

What did the court decide?

The criminal appeal was dismissed; the conviction and sentence of the appellant under Sections 376(2)(g) and 366A IPC were upheld.

Munnali @ Mustaqali Subratiali Shaikh Vs the State… — Criminal Trial and Appeal | Bombay HC (2014)

¶1

906.apeal384.11.sxw

¶2

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶4

CRIMINAL APPEAL NO. 384 OF 2011

¶5

Munnaali @ Mustaqali Subratiali Shaikh. Adult Indian aged about 18 years. Occ. : Tailor, Resident of Patel Nagar Hutment, Lane No. 3, Bandra (West), Mumbai. & at post Nadini, Taluka-Vidyachal, Dist. Mirzapur, Uttarpradesh. At present lodged at Nasikh Central Prison. ... Appellant.

¶6

Versus

¶7

The State of Maharashtra. At the instance of Kanjur Marg Police Station, Mumbai in Crime No. 444/2009 of Bhandup Police Station C.C. No. 167/PW/2010. ... Respondent.

¶8

Ms. Shweta Sangtani, advocate appointed for appellant.

¶9

Mr. S.S. Pednekar, APP for State.

¶10

CORAM : SMT.SADHANA S. JADHAV,J DATE : JUNE 26, 2014

¶11

P.C.:

¶12

1 The appellant herein is convicted of the offence punishable under Section 376(2)(g) read with 34 of the Indian Penal Code and is sentenced to suffer R.I. for ten years and to pay fine of Rs. 2,000/- i.d.

¶13

Talwalkar 1/14

¶14

2 906.apeal384.11.sxw

¶15

to suffer R.I. for six months vide Judgment and Order dated 26^th October, 2010 in the Sessions Case No. 207 of 2010 by the Additional Sessions Judge, Court Room No. 13, Sewree, Mumbai. He is also convicted of the offence punishable under Section 366A read with 34 of the Indian Penal Code and is sentenced to suffer R.I. for seven years and to pay fine of Rs. 1,000/- i.d. to suffer rigorous imprisonment for three months. Hence, this Appeal.

¶16

2 Such of the facts necessary for the decision of this appeal are as follows :

¶17

It is the case of the prosecution that prosecutrix resides with her parents, elder brother and one elder sister at Bhandup. Her uncle Bharatlal resides in close vicinity. One Bhim Gupta was relative of her uncle and he used to visit the house of her uncle quite often. The present appellant was a friend of Bhim Gupta and since they were visiting the house of her uncle Bharatlal, she knew them.

¶18

3 On 23^rd December, 2009 she received a phone call from the present appellant asking her to meet him at Bhandup Railway Station. She met the appellant at Bhandup Railway Station. There he

¶19

Talwalkar 2/14

¶20

3 906.apeal384.11.sxw

¶21

informed her that wife of Bhim Gupta was pregnant and that they should go and meet her. Initially at the outset, she refused to oblige. However, on subsequent request she agreed. She travelled with the appellant from Bhandup to Bandra. At Bandra Station, Bhim Gupta, the absconding accused was present with an auto rickshaw. From there the trio proceeded to Goregaon. The trio reached to Pragati Welfare Society, Gupta Chawl, Link Road, Bhagat Singh Nagar-II, Goregaon (West), Mumbai. At about 4.30 p.m. they had been to a room. There the absconding accused had tried to converse with her with respect of the marriage of her sister. The present appellant had teased her which was not liked by the prosecutrix. Thereafter, they had offered her mangola to drink. She had the cold drink. When they reached the room, there were two persons in the room who left the room as soon as the trio reached there. In the said room the prosecutrix was ravished firstly by the appellant and then by the absconding accused. They they asked her to dress up and then she was dropped at Bhandup. On the way she met her elder brother Niraj. Upon enquiry as to why she was late to reach home, she disclosed the incident to him. When she reached home, she narrated the incident to her elder sister Uma. Her elder sister informed her

¶22

Talwalkar 3/14

¶23

4 906.apeal384.11.sxw

¶24

mother about the incident and then they went to Bhandup Police Station and lodged a report. On the basis of her report Crime No. 444 of 2009 was registered at Bhandup Police Station against the present appellant for offence punishable under Section 366A, 376(2) (g), 506 and 350 of the Indian Penal Code.

¶25

4 On 25^th December, 2009, the accused appellant was arrested in a case of robbery by Goregaon Police Station and then he was transferred to Bhandup Police Station in Crime No. 444 of 2009.

¶26

5 On 24^th December, 2009 the prosecutrix was examined at Police Hospital, Mumbai. The medical certificate is at Exh. 27. On 26^th December, 2009, the appellant was examined by the police hospital at Nagpada, Mumbai.

¶27

6 After completion of investigation, charge-sheet was filed in January, 2010. The case was committed to the Court of Sessions and registered as Sessions Case No. 207 of 2010. Charge was framed against the accused on 4^th May, 2010. The prosecution examined 12 witnesses to bring home the guilt of the accused.

Talwalkar

4/14

906.apeal384.11.sxw

7 P.W. 1 is the prosecutrix. She has deposed before the Court in

¶33

consonance with her first information report and has proved the contents of the first information report which is marked at Exh. 13. She has admitted in the cross-examination that the accused Munnaali used to come to house of her uncle Bharatlal Gupta and therefore, she was well-acquainted with him. She has further admitted that she had not enquired with the passangers in the train. She has clarified that since the accused appellant was acquainted to her, she did not enquire with the passengers. It is further elicited in the crossexamination that she had not stated before the police in her report under Section 154 of the Code of Criminal Procedure, 1973 that when they reached the room in Pragati Welfare Society building two persons were already in the room. Although it is a material omission, it cannot be taken into consideration since it does not pertain to the actual incident of rape. As far as the allegation against the accused are concerned, the defence has failed to make a dent in her testimony and therefore, it can be fairly relied upon.

¶34

Talwalkar 5/14

¶35

6 906.apeal384.11.sxw

¶36

8 P.W. 8 Dr. Shivaji Narayan Daud had examined the prosecutrix at Nagpada Police Hospital. He has specifically stated that the prosecutrix had disclosed to him that on 23^rd December, 2009 at about 12 noon, she was going to college. She met the appellant at Bhandup Railway Station who asked her to come with him to meet Bhim Gupta at Bandra. She accompanied him. They met Bhim Gupta at Bandra who was waiting in his auto-rickshaw. They had taken one room somewhere in Juhu area and there she was forced to have sexual intercourse with the present appellant and thereafter, she was left at Kanjurmarg station at 8 p.m. The history was noted by Dr. Shivaji Daud. He has deposed before the Court that her clothes were examined by them and found bloodstains five in number on left trunk of salwar and three stains marks over central and frontal portion of salwar. Dried blood was seen on under pant. Matting of pubic hair due to blood was noticed and dried bloodstains seen around lower half portion of both sides of vagina with mating of public hairs due to blood. On examination of her private part it was found that the hymen was torn at 3, 5, 7, 11 O'clock positions. Age of tears was within 24 hours. Tears reddish in colour, edges odcmatous severely tender & tears bleeding on touch. Hymenal orifice admits one finger

¶37

Talwalkar

¶38

6/14

¶39

7 906.apeal384.11.sxw

¶40

& was painful. Vaginal smear, vaginal swab, valval swab, blood for grouping and matted pubic hair were collected and were sent to C.A. for examination. Accordingly, Dr. Shinde prepared the certificate and both of them signed on the said certificate. P.W. 8 has proved the contents of the medical certificate which is at Exh. 27. It is elicited in the cross-examination of the P.W. 8 that the victim had attained majority at the time of examination. The doctor has denied the suggestion that tears and pain was an usual thing during the period of menstruation. He has specifically stated that the injuries sustained by the prosecutrix could not have been caused due to masturbation and fingering. She had complaint of severe pain at the time of examination. Tenderness was noticed which can be caused only due to sexual intercourse. Hence, the testimony of the P.W. 1 has been corroborated by medical evidence through the substantive evidence of P.W. 8.

¶41

9 P.W.3 Niraj Gupta is the elder brother of the prosecutrix. He has deposed before the court that he was knowing Bhim Gupta as he used to visit the house of his uncle. He was also acquainted with the present appellant as he also used to visit the house of uncle alongwith

¶42

Talwalkar

¶43

7/14

¶44

8 906.apeal384.11.sxw

¶45

Bhim Gupta. He has further deposed that on 23^rd December, 2009 at about 7.30 p.m. while he was going to tuition class, he met his sister i.e. the prosecutrix near Nutan Nagar Naka. He enquired as to why she had come late. At that time, she told him that the accused Munnaali Shaikh and Bhim Gupta had taken her to Goregaon and had committed rape on her. She had also disclosed that the accused had threatened her to defame and assault to him. She was crying while she was narrating incident. However, she asked him to leave for tuition class. The prosecutrix then informed the incident to elder sister who in turn informed the mother about the same. The defence has not been able to shatter the witness in cross-examination.

¶46

10 P.W. 10 Dr. Khan Rehan Ali Razak has deposed before the Court that the room in which the incident had occurred belongs to his brother Mohd. Rizwan Ali. Since Rizwan Ali does not reside there, he used to maintain the said room. He used to give the said room on rent. From October, 2008 the said room was given on rental basis to Fagulal Choudhary and since then he and his wife are residing in the said room. He had learnt from the police that Bhim Gupta and Munnaali Shaikh who were related to Fagulal Choudhary had

¶47

Talwalkar

¶48

8/14

¶49

9 906.apeal384.11.sxw

¶50

committed rape on the prosecutrix in the said room. He has admitted in the cross-examination that the said room is situated in hutment area. His brother had not given Power of Attorney of the said room to P.W. 10 and Fagulal is residing in that room with his wife but some times his wife used to go to his native place.

¶51

11 P.W. 11 is the Investigating Officer who was posted at Bandra Police Station, Mumbai. At the time of incident, he was attached to Kanjur Marg Police Station. He has deposed before the Court that the prosecutrix alongwith lady police constable had come to Kanjur Marg Police Station alongwith first informant i.e. the victim and the informant in Crime No. 444 of 2009 which was registered at Bhandup Police Station. Since the incident had allegedly occurred in the jurisdiction of Bandra Police Station, the constable had handed over the first information report and the clothes of the victim to P.W. 11. He had seized the clothes of the victim in presence of panchas on 24^th December, 2009. On 25^th December, 2009, the prosecutrix had led him to the places of incident which was in Pragati Welfare Society, Gupta Chawl, Bhagat Singh Nagar No. II, Goregaon. He had deposed that he had conducted proper panchanama. In the cross-examination

¶52

Talwalkar

¶53

9/14

¶54

10 906.apeal384.11.sxw

¶55

he has specifically stated that he had received information from Ghatkopar Crime Unit on phone that accused Munna was arrested in this Crime. On the same day, he had taken custody of the accused from Ghatkopar Crime Unit. He had no knowledge as to whether the accused Munnaali Shaikh was arrested in the case of robbery by Ghatkopar Crime Unit.

¶56

12 P.W.12 Tabaji Pavde was working as police inspector. He has deposed before the Court that he has carried out the investigation in accordance with law and has filed charge-sheet against the accused Munnaali Shaikh. It is elicited in the cross-examination that at the time of investigation he was not Senior Police Inspector in Kanjur Marg Police Station. He has recorded statement of witness Fagulal Choudhary. He has admitted that he has not gone to the school of the victim for verifying her age.

¶57

13 Perused the evidence on record adduced by the prosecution. Heard the submissions of the learned Counsel for the appellant. Learned Counsel for the appellant has drawn the attention of this Court to the omissions in the evidence of the prosecutor to the extent

¶58

Talwalkar 10/14

¶59

11 906.apeal384.11.sxw

¶60

that it is not stated in the first information report that when they reached the said room in Pragati Society, two persons were already sitting there. She has submitted that it is an improvement at the time of recording of substantive evidence and since it goes to the root of the matter, the prosecutrix does not deserve to be believed. The learned Counsel for the appellant has further drawn the attention to the history narrated by the prosecutrix to the doctor where the place of incidence has been shown as Juhu and therefore, the investigation was carried out buy Bandra Police Station. In the substantive evidence also the doctor has specifically stated that the prosecutrix had disclosed to him the place of incident as Juhu. According to the learned Counsel, since the very scene of offence would change, the prosecutrix cannot be believed. The learned Counsel has further drawn attention of this Court to the medical certificate of the prosecutrix which is at Exh. 27. She has urged that in column No. 5 it is specifically noted that there was no injury on her private part. According to her, this very aspect would belie that the prosecutrix was forced into the sexual intercourse against her wish and the possibility that it was a consensual act cannot be ruled out.

¶61

Talwalkar 11/14

¶62

12 906.apeal384.11.sxw

¶63

13 On the basis of the report of the Chemical Analyser, the learned Counsel has submitted that the blood group of the accused as well as the prosecutrix is of “O” group. However, the Chemical Analyser report would show that the semens found on the clothing of the prosecutrix is of “A” group. There were bloodstains on her clothes which are also of “A” group. According to the learned Counsel therefore, it was accused Bhim Gupta whose semen was found on the clothes of the prosecutrix and therefore, the prosecution has failed to established guilt of the accused under Section 376 of the Indian Penal Code.

¶64

14 The Court cannot be oblivious of the fact that the prosecutrix has specifically stated in her examination-in-chief that she was ravished by both the accused persons. They were facing the charge under Section 376 (2)(g) of the Indian Penal Code. The learned Counsel submits that the Investigating Officer has filed the chargesheet against the absconding accused. He was not available for medical examination and therefore, it cannot be said that the appellant was perpetrator of the crime. The evidence of the prosecutrix is fully corroborated by the medical evidence as well as

¶65

Talwalkar 12/14

¶66

13 906.apeal384.11.sxw

¶67

the evidence of her brother and P.W. 8 doctor who examined her. The testimony of the prosecutrix inspires confidence of the Court. In a case under Section 376 of Indian Penal Code, sterling testimony of the prosecutrix/victim/survivor is sufficient to record conviction as long as it inspires confidence of the Court and is corroborated by material particulars. The prosecutrix has identified the

¶68

accused/appellant in the Court as the person who ravished her. Identification in court is substantive evidence and can be relied upon. The prosecution has established the guilt of the accused beyond reasonable doubt. Hence, there is no reason to interfere with the Judgment and Order dated 26^th October, 2010 in the Sessions Case No. 207 of 2010 passed by the Additional Sessions Judge, Court Room No. 13, Sewree, Mumbai. The appeal being sans merit deserves to be dismissed. Conviction of the appellant is upheld.

¶69

15 The Appeal stands dismissed.

¶70

16 Before parting with the Judgment, this Court record appreciation for the efforts taken by Counsel Ms. Shweta Sangtani. The Court had appointed Advocate Ms. Shweta Sangtani on

¶71

Talwalkar 13/14

¶72

14 906.apeal384.11.sxw

¶73

17/6/2014. She has graciously accepted to plead for the appellant and espouse the case of the appellant. She has put her best of efforts. The Court cannot refrain from recording appreciation in favour of Ms. Shweta Sangtani. The legal fees to be paid to her by the High Court Legal Services Committee are quantified at Rs. 5000/-. The said fees be paid to Advocate Ms. Shweta Sangtani within three months from today.

¶74

( SMT. SADHANA S. JADHAV , J)

¶75

Talwalkar 14/14

Munnali @ Mustaqali Subratiali Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Munnali @ Mustaqali Subratiali Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kunal Anant Jadhav and Ors. Vs Suryali Kunal Jadhav and Ors.

The State of Maharashtra Vs Prabhakar Krishnarao Pawar

Kunal Anant Jadhav and Ors. Vs Suryali Kunal Jadhav and Ors.

Deepak Ramchandra Choudhary and Anr. Vs the State of Maharashtra

Munnali @ Mustaqali Subratiali Shaikh Vs the State of Maharashtra

Kishore Vishnu Daroge Vs the State of Maharashtra