Partly allowed

Mehatab Abdul Rashid Mansuri v. the State of Maharashtra

Bombay HC20 Aug 2014APEAL/402/2013

Case brief

AI extract

What is this about?

This appeal concerned rape committed against a major prosecutrix who left her home due to a promise of marriage. The High Court affirmed the conviction but adopted a straight-jacket formula not to mandate reduction, allowing the sentence from seven to five years due to post-rape marriage and no explicit force to leave.

What did the court decide?

Appellant convicted for 5 years R.I., reduced from 7 years; fine maintained.

Mehatab Abdul Rashid Mansuri Vs the… — Constitutional and Fundamental Rights | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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APPEAL NO.402 OF 2013

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Mehtab Abdul Rashid Mansuri .. Appellant/Accused - Versus - The State of Maharashtra .. Respondent.

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Mr.S.G.Deshmukh i/b. Gautam T.Kanchanpurkar for appellant Mrs.A.A.Mane, APP for State.

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CORAM : MRS.MRIDULA BHATKAR, J. DATE : 20^th August 2014.

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ORAL ORDER:-

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1] The appellant is convicted for the offences punishable under section 376 (1) of the Indian Penal Code and was sentenced to suffer R.I. for 7 years and to pay a fine of Rs.2,000/-, i/d, to suffer R.I. for 3 months. The appellant was acquitted for the offences under sections 363, 366A, 343, 368, 372, 373 r/w 34 of the Indian Penal Code and under sections 3(i)(x) and 3(i)(xii) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 and also under section 5 of the Immoral Traffic (Prevention) Act, by judgment and order dated 30^th August 2012 passed by the Additional Sessions Judge, Pune. It is the case of the prosecution that the appellant is a resident of Loni Kalbhor. In the year 2008, the mother of the complainant was residing on rental basis in front of the house of the accused, who used to sell bakery products. The prosecutrix was studying

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in 6^th standard in the year 2009 and was in St.Andrews school and was in hostel at Pune. She used to visit her mother during vacations. As the appellant was her neighbour and used to sell bakery products, she got acquainted with him. As per her case, when she had visited her mother in Diwali vacation of 2009, on 24^th October 2009, the appellant went to her house and told her that she was beautiful and then proposed her to marry him. She refused. Then he wanted to have sexual intercourse with her, which also she refused. There was one friend with him, whom he asked to wait outside and at that time, he raped her. The girl shouted. However, she was threatened by the appellant that if she would raise her voice or tell about the incident to anybody, he would kill her mother. At that time, he promised her that he would marry her. However, for that purpose, she would have to go to his native place and he forcibly took her to Manjari railway station and booked two railway tickets. The appellant forced the prosecutrix to board the train with his friend. They both travelled to the native place of the appellant. They reached there after 2 to 3 days. Thereafter, they were received by one Doctor uncle with whom she started residing. On the same night, the friend, who had accompanied her to the appellant's native place, raped her. However, she was threatened and told not to tell anybody about the incident. Then, the said Doctor uncle also raped her. At that time, she protested and, therefore, the wife of the Doctor uncle assaulted her with fists and the Doctor uncle used to

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have sexual intercourse with her number of times and thereafter the said Doctor uncle performed her marriage with some other person. Then, she started residing with that person as his wife. She stayed with him for one month and then police came from Mumbai, Maharashtra, as her mother had given a complaint of missing of her minor daughter to the police. Thereafter, she returned with the police. It is the case of the prosecution that the mother is the complainant in this case. On 24^th October 2009, she left her house in the afternoon at 3pm to market. When she came back, she found that the house was open and her daughter was missing. As her daughter did not return, she searched for her and 3 days thereafter, i.e., on 27.10.2009, she reported about the missing of her daughter. Thereafter, her FIR was registered on 22.2.2010 at C.R. No.74 of 2010 at Loni Kalbhor police station, which is marked exhibit 57. The girl was brought back to Pune in the month of 22^nd February, 2010.

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2] In the present case, the appellant is charged for the offences of rape on minor girl and other offence. The prosecutrix as per the case of the prosecution was minor at the time of incident and was studying in 6^th standard. However, the learned Sessions Judge did not accept the evidence tendered by the prosecution or the proof of age of the prosecutrix that she was below 16 years of age at the time of occurrence. Her birth certificate Exh.83 was found unreliable so also the evidence of medical officer that her approximate age was between 14 and 16 years.

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The said opinion was not found to the trial Judge believable and for this he has given elaborate reasons. Besides, he has held that if margin of error of two years which is permissible under the medical jurisprudence, is considered, then, the possibility of prosecutrix being 18 years and above cannot be ruled out. The trial Judge has analysed the evidence of the mother at length on the point of her age. The birth certificate Exh.83 was not produced by the prosecution along with charge sheet but it was procured and produced at the end of the trial. Considering all the evidence, the learned Sessions Judge has held that at the time of the occurrence i.e. on 24^th October 2009, the prosecutrix was major i.e. 18 years of age. The appellant, though was charged for various offences including kidnapping, has been acquitted from all the charges. So also is the case of other original co-accused against which the prosecution did not prefer appeal. Therefore, as on today, the finding given by the learned Sessions Judge on the point of the age of the prosecutrix that she was 18 yeas or more at the time of the occurrence cannot be challenged. On this background, the evidence and the case of the appellant is to be examined.

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3] The learned Counsel for the appellant has submitted that the learned Sessions Judge has failed to appreciate the contradictions in the evidence of the prosecutrix. He submitted that the version of the prosecutrix before the court is not believable. She has deposed that on 24^th October 2009, when she was in the house, the appellant visited her

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house and asked the co-accused to stand outside the house and raped her, which is not possible. He further submitted that the appellant, as per the evidence of the prosecutrix, did not force her to go away from her house. She herself travelled with the co-accused to a village in Uttar Pradesh and she stayed there for three months. The learned Counsel submitted that a statement of prosecutrix is recorded on 14^th July 2010 under section 164 of Code of Criminal Procedure, (Cr.P.C.) before the learned Magistrate, which is marked as Exh.27-B. There is variance in respect of place of occurrence in her statement before the Magistrate and her evidence before the Court. He submitted that her evidence is imaginary. She has exaggerated and mixed up all the facts. He further submitted that her evidence in respect of co-accused who were also facing the same charges was not believed by the learned Sessions Judge. He submitted that this shows that the prosecutrix was not telling the truth and her evidence on the point of rape by the appellant ought not to have been accepted.

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4] The learned Prosecutor has submitted that the girl was minor at the time of the incident. She has stated that the appellant accused has raped her. She also has stated that the appellant accused has told her to travel to his native place in Uttar Pradesh and he would marry her then. The learned Prosecutor submits that the prosecutrix who was studying in 6^th standard believed the said promise given by the appellant and, therefore,

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she left the house of her mother. The learned prosecutor further submitted that considering her tender age, undoubtedly the prosecutrix became pray of the promises given by the appellant. The statement of the prosecutrix on the point of rape is rightly believed by the learned trial Judge and the conviction under section 376 of IPC against the appellant is to be maintained. The learned Prosecutor relied upon the evidence of the prosecutrix so also of her mother.

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5] In the case of rape punishable under section 376 of the IPC, the evidence of the prosecutrix is very important. If it is found true, then, conviction can be based on the sole testimony of the prosecutrix. The rationale behind it is very logical, as the act of sexual intercourse is never committed in the public place and it is always a secret act done privately without sight of public. Therefore, in such offences, in many situations, the word of the prosecutrix is the only evidence and, therefore, it is required to be scrutinised with caution as somebody's liberty as well as the honour of the woman is in jeopardy.

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6] On perusal of the evidence of the prosecutrix and that of her mother, it is found that mother Anusuya gave report of her daughter missing three days after she was not found. On 24^th October 2009, when the mother returned from market she found that her daughter was not at home. She searched for her. However, she was not found till 27^th October 2009.

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Hence, she reported missing of her daughter on 27^th October 2009 in the police station. Thereafter, the police started investigation and the girl was found in the month of February 2010. The mother of prosecutrix was not aware about the incident of rape. Whatever, she came to know about the incident was through her daughter. Thus, the prosecutrix is the only witness on the point of incident of rape.

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7] The victim has deposed that she knew the appellant as he was working in a bakery and used to sell bakery products. She has further stated that the appellant used to tell her that he liked her very much and he wanted to marry her. The appellant used to give her bread free of cost. She has also stated that on the date of the incident, the appellant along with his friend arrived at her house and he told her that she looked beautiful and he wanted to marry her and thereafter assaulted her. He raped her at that time as his friend was standing outside the house. Then the prosecutrix demanded that the appellant should marry her so the appellant told her that they would go to his native place and there he will marry her. The appellant also threatened her that if the prosecutrix did not come to his native place he would kill her mother. She has stated that because of these threats on the same day they travelled to Daund railway station. At Daund station the appellant bought two railway tickets; one for his friend and one for prosecutrix. He handed over the tickets to them. They sat in one train and went to one village. She did not know the name

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of the village. However, they travelled for two to three days to reach the village. At that village one Doctor Uncle came and he took her and the friend of appellant to his residence. She has further stated that she was confined in his house by Doctor Uncle. The said friend of appellant also raped her there. After three to four days, the said Doctor Uncle raped her and at that time the wife of that Doctor Uncle was also present in the house. It is further stated by the prosecutrix that Doctor Uncle time and again used to rape her and he performed her marriage with some other person, with whom she was residing when she was found lastly by the police.

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8] In the cross examination of the prosecutrix the defence has brought on record the contradictions and omissions. Her statement was recorded under section 164 of the Cr.P.C. In her statement, before the Magistrate, she has stated that the appellant had contacted her near Loni railway station and outside the railway station in a distant open place he raped her. However, in her evidence, in the court she was more specific that the incident of rape has taken place in her house, when she left the house. Though the prosecutrix did not state specific date of the occurrence, on considering the sequence of the instance as stated by her and the incident of her mother on the point of the date of the missing of her daughter, the date of the incident can be fixed at 24^th October 2009. Thus, though there is variance in the statements before the Magistrate and before this Court,

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in respect of place of evidence, she has maintained her stand that she was raped by the appellant before she left her house. The Sessions Judge has rightly accepted the evidence of the prosecutrix on the point of rape. Her evidence on the point of rape by the appellant is supported by other circumstances especially the conduct of the prosecutrix and the conduct of the appellant. She has stated that the appellant used to offer her bread free of charge and he used to come to their house to sell bakery products. Thus, there was an acquaintance between the two of them. She has further stated that the appellant used to praise her and use to tell her that he liked her and also used to tell her that he was going to marry her.

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9] This evidence discloses that the appellant was trying to seduce her by promising her to marry with her so also by praising her and giving her bread free of charge. Though it was accepted that the prosecutrix was 18 years of age at the relevant time and major, it cannot be said that she was mature enough to understand the consequences of the acts done and promises given. After the incident of rape, as she has narrated, which took place on 24^th October 2009, she wanted to marry the appellant. However, the appellant told her that they should go to his village in U.P. The faith of the prosecutrix was to such an extent on the appellant that she left the house of her mother without informing her and travelled in train and went to U.P. with the friend of appellant. The learned Trial Judge has

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discussed and assessed the variance, omissions, contradictions in the evidence of the prosecutrix and has also referred that falsus in uno falsus in omnibus is not applicant in Indian Evidence Act. There can be some falsity in the evidence of the witnesses. However, the said falsity can be chiseled out to find out the truth. The evidence of the prosecutrix was rightly believed by the trial court as the police found the prosecutrix in the village at U.P. in the month of February 2010. They brought the prosecutrix back from where she was residing with the co-accused. As per her evidence, she waited for the appellant in U.P. and thereafter, she started residing with some other person. This shows that unless there was a promise to marry the prosecutrix would not have taken a bold step of leaving her mother's house and going to U.P. The appellant also hails from U.P. On the other hand the appellant did not go to his village; did not contact the prosecutrix through out the time. However, he had establish sexual relationship with her before she was asked to go to UP. The evidence of the girl on this point that why she chose to go to U.P. is corroborated by the factual position that the appellant is from U.P. and the appellant told her that he would marry her at his village in U.P.

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10] It would be a logical inference that as the appellant had established sexual relationship with the prosecutrix on the relevant date and, therefore, the girl was completely under his influence and, therefore, she went away is the evidence to be found true and reliable. Therefore, the

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submission of learned Counsel for the appellant that there is variance in the statement under section 164 and before the trial court is to be discarded are not correct.

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11] Thus, I find that the learned Sessions Judge has rightly convicted the appellant under section 376 of IPC. I, therefore, maintain the finding recorded by the learned Sessions Judge.

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12] On the point of quantum, the learned Counsel for the appellant has submitted that the appellant has undergone the sentence of four and half years out of seven years. He submitted that the appellant in between got married and is having a child of about four years. The prosecutrix is also married with somebody and settled in her life. These factors also need to be considered on the point of quantum. He further submitted that the evidence tendered is also full of variance. These factors are to be considered and the sentence be reduced, in view of the proviso under section 376 (old) of the Indian Penal Code.

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13] The learned Prosecutor opposed this prayer. She submitted that the learned Sessions Judge has considered this aspect and has awarded an appropriate sentence of seven years in view of the Legislative intent of the penalising section for rape.

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14] After the amendment in criminal law, i.e. in section 376 of the IPC which came in effect from 3^rd February 2013, the proviso of section 376 conferring discretion to Judge is deleted. However, the present offence has been committed in the year 2009 and therefore it is governed by the previous old penalising section 376, wherein the proviso gave discretion to the court for adequate and special reasons, the court can reduce the sentence of imprisonment of term less than seven years. This discretion is taken away by the Amendment of 2013.

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15] To reduce the sentence less than seven years, it is necessary to record adequate and special reasons conjunctively and not disjunctively. Obviously, it depends on the facts, circumstances and evidence tendered in each and every case. While weighing the incriminating as well as mitigating circumstances, the number of factors are to be taken into account. The court has to pass just and adequate sentence. While awarding sentence, therefore, conflict is faced in decision taking process, especially when the cases are on the borderline. Though the prosecution has to prove case beyond reasonable doubt and if found any missing links, the benefit of doubt is to be given to the accused, yet it be proved beyond all the doubts. In the present case, age of the prosecutrix was 18 years; she was major when the incident took place. It appears that no force or compulsion used by the appellant on the prosecutrix to run away from the house. As per the case of the prosecutrix the incident of rape

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has taken place once that is on the same date, when she herself left the house of her mother. The rigor of the offence in such cases further varies depending on social, economical factors so also age of both the persons. While weighing these mitigating circumstances, it is necessary to see the degree of atrocity in the crime. It is held that the act might be consensual but consent was obtained under a promise to marry. When a victim is major and consents for sexual intercourse under promise to marry and no marriage is performed thereafter, then also straight jacket formula can not be applied.

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16] In the result, the appeal is disposed of as under:

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i) Appeal is partly allowed. ii) The sentence of conviction is modified only in respect of imprisonment and not in respect of fine. Accordingly, the appellant/convict is hereby convicted for 5 years R.I. Thus, the sentence is reduced from 7 years to 5 years.

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(MRS.MRIDULA BHATKAR, J.)

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Mehatab Abdul Rashid Mansuri v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mehatab Abdul Rashid Mansuri 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

Cases cited

Statutes considered

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Coram

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