Dismissed

Wasim @ Rahul Abdul Rahim Shaikh v. the State of Maharashtra

Bombay HC18 Sept 2019APEAL/463/2016

Case brief

AI extract

What is this about?

In an appeal against conviction and sentence for rape under IPC 376(2)(i), the court upheld the trial court's verdict. Relying on DNA evidence and witness testimonies, the court found the victim was below 14 years old at the time of the offence and concluded the accused's identity was properly established, dismissing the appeal.

What did the court decide?

The appeal is dismissed, affirming the conviction and sentence of rigorous imprisonment.

Wasim @ Rahul Abdul Rahim Shaikh Vs the State of Maharashtra — Bombay HC (2019) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.463 OF 2016

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WASIM @ RAHUL ABDUL RAHIM SHAIKH )...APPELLANT

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V/s.

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THE STATE OF MAHARASHTRA )...RESPONDENT

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Ms.Farhana Shah, Advocate for the Appellant.

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Mr.Amit Palkar, APP for the Respondent - State.

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CORAM : A. M. BADAR, J. DATE : 18^th SEPTEMBER 2019

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ORAL JUDGMENT :

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1 By this appeal, the appellant/convicted accused is challenging the judgment and order dated 15^th January 2015 passed by the learned Additional Sessions Judge, Mumbai, in Sessions Case No.1112 of 2013, thereby convicting him of the offence punishable under Section 376(2)(i) of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10

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years apart from directing him to pay fine of Rs.1,000/- and in default to undergo rigorous imprisonment for 1 month.

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2 Facts, in brief, leading to the prosecution and the

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resultant conviction of the appellant/convicted accused, can be summarized thus :

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(a) Appellant/convicted accused Wasim is husband of Nazia – sister of the victim of the crime in question. PW1 Najma is mother of the victim/PW2 as well as Nazia. PW1 Najma along with her four daughters and one son used to reside at Jarimari area of Sakinaka and subsequently, at Vashinaka area of Mumbai. Because of frequent quarrels of the appellant/convicted accused with his mother, Nazia started residing with her mother i.e. PW1 Najma. Subsequently, she had also called the appellant/convicted accused to reside with her, at her mother's place.

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(b) The victim/PW2 was kept at A.D.Gauda Hospital by PW1 Najma for the purpose of taking education. During vacation

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to the school, the victim/PW2 used to come to her mother's house. The victim/PW2 started having love affair with her brother-in-law i.e. the appellant/convicted accused. The love affair ultimately resulted in having sexual relations between them. Because of this act, the victim/PW2 became pregnant and therefore, she was sent back to her home by staff of the hostel, where she used to reside.

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(c) PW1 Najma on noticing pregnancy of the victim/PW2 questioned her in that regard. However, the victim/PW2 instead of disclosing the name of the perpetrator of the crime, told her mother that she had love affair with a boy named Rahul, who used to come on motorcycle and take her to various places from the hostel. The victim/PW2 informed her mother that she became pregnant from said Rahul. To conceal the fact of pregnancy of her daughter, PW1 Najma then kept her at the hostel of “Charity Missioner” and requested the staff of that hostel to keep pregnancy of her daughter secret.

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(d) Ultimately, on 6^th January 2013, the victim/PW2, who at the relevant time was less than 16 years of age, was admitted to the Nair Hospital, Mumbai, for delivery. She delivered a baby boy. Then, her mother i.e. PW1 Najma lodged a report with Police Station Santacruz on 6^th January 2013 itself and accordingly, Crime No.00 of 2013 for the offence punishable under Section 376 of the Indian Penal Code came to be registered by PW7 Ashok Salunkhe, Police Sub-Inspector. He, then, sent the First Information Report (FIR) to jurisdictional police station i.e. Police Station Versova, where PW5 Ramdas More registered Crime No.6 of 2013 for the offence punishable under Section 376 of the Indian Penal Code.

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(e) During the course of investigation, sample of blood of the newly born baby boy was collected so also that of the victim/PW2. It was revealed during investigation that Rahul was none other than appellant/convicted accused Wasim, who happened to be brother-in-law of the victim/PW2.

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Accordingly, he came to be arrested. His blood sample was also drawn. The samples so drawn were sent for DNA examination. On completion of routine investigation, the appellant/convicted accused came to be charge-sheeted.

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(f) The Charge for the offence punishable under Section 376 of the Indian Penal Code was framed and explained to the appellant/convicted accused. He pleaded not guilty and claimed trial.

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(g) In order to bring home the guilt to the appellant/convicted accused, the prosecution has examined in all seven witnesses. First Informant Najma is examined as PW1 and the FIR lodged by her with Police Station Santacruz on 6^th January 2013 is at Exhibit 9. The printed FIR of Versova Police Station is at Exhibit 10. Exhibit 11 is the Birth Certificate of the victim/PW2. The victim of the crime in question is examined as PW2. Dr.Charusheela Warke, Assistant Professor, Nair Hospital, Mumbai, is examined as

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PW3. Munira Qureshi – mother of the appellant/convicted accused is examined as PW4. Investigating Officer Ramdas More of Police Station Versova is examined as PW5. Dr.Sanjay Funde, Medical Officer, Health, of the Municipal Corporation of Greater Mumbai is examined as PW6. He proved the Birth Certificate of the victim/PW2 which is at Exhibits 11 and 25. Ashok Salunkhe, Police Sub-Inspector of Santacruz Police Station is examined as PW7. The defence of the appellant/convicted accused was that of total denial. After hearing the parties, the learned trial court by the impugned judgment and order has come to the conclusion that the appellant/convicted accused had committed sexual intercourse with the victim/PW2, who was below16 years of age, and as such, he has committed the offence punishable under Section 376(2)(i) of the Indian Penal Code. Accordingly, he is sentenced, as indicated in the opening paragraph of this judgment.

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3 I have heard the learned counsel appearing for the appellant/convicted accused. She vehemently argued that evidence of the First Informant/ PW1 Najma is not reliable as she had lodged the FIR against a person named Rahul and there is no cogent evidence to establish that said Rahul is the appellant/convicted accused. It is further argued that evidence of the victim/PW2 is not worth reliance as she has informed her mother that the perpetrator of the crime in question is a boy named Rahul. Hence, merely on the basis of guess work, the appellant/accused cannot be convicted. The learned counsel further argued that age of the alleged victim of the crime in question is also not established by the prosecution and even if it is assumed that the case of the prosecution is correct, then it is a case of consensual sex.

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4 The learned APP supported the impugned judgment and order of conviction and the resultant sentence.

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5 I have considered the submissions so advanced and

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also perused the record and proceedings including oral as well as documentary evidence.

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6 By now it is well settled that if evidence of the victim of sexual offence is found to be trustworthy and reliable, then the same can be acted upon for basing the conviction without seeking any corroboration from other material on record. In the case in hand, the fact situation is peculiar in nature. The appellant/convicted accused is, undisputedly, the brother-in-law of the victim/PW2. He was having quarrel with his mother i.e. PW4 Munira Qureshi and this fact is also reflected from evidence of PW4 Munira Qureshi. Hence, according to version of PW1 Najma, her married daughter Nazia took shelter of parental house and started residing with her. PW1 Najma further deposed that her daughter Nazia, therefore, called the appellant/convicted accused to reside with her. This makes it clear that the couple then started residing at the house of PW1 Najma.

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7 PW1 Najma candidly stated that her daughter i.e. the victim/PW2, who was residing at A.D.Gauda Hostel was brought back to her house, as there was vacation to the school. Thereafter, as stated by PW1 Najma, she went to her native place Kanpur. Thus, at that time, the appellant/convicted accused along with his wife Nazia and his sister-in-law i.e. the victim/PW2 were residing at the house of PW1 Najma.

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8 Evidence of PW1 Najma shows that on return from her native place Kanpur, her unmarried daughter i.e. the victim/PW2 again went back to the hostel but the staff notice that she is pregnant. Upon being asked by PW1 Najma, her daughter i.e. the victim/PW2 disclosed that a boy named Rahul is the reason for her pregnancy. PW1 Najma, as stated by her in her evidence, then took back her daughter i.e. the victim/PW2 to her house and then sent her to one Ashram for concealing her pregnancy. As disclosed by her, the day on which her daughter i.e. the victim/PW2 was admitted to the Nair Hospital for delivery, she lodged report

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Exhibit 9 with Santacruz Police Station. This witness further stated that her unmarried daughter i.e. the victim/PW2 then eloped with the appellant/convicted accused and as such, she came to know that the appellant/convicted accused is the person behind pregnancy of the victim/PW2. Even in cross-examination of this witness, it is elicited by the defence that PW1 Najma came to know about sexual relations between her daughter/PW2 and the appellant/convicted accused, as her daughter/PW2 was taken by the appellant/convicted accused from her custody.

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9 So far as evidence of the victim/PW2 is concerned, the same is clear and consistent pointing a finger of guilt to the appellant/convicted accused, but at the same time, attempting to protect him. The victim of the crime in question i.e. the victim/PW2 deposed that she had developed a love affair with the appellant/convicted accused, who is husband of her sister Nazia and became pregnant out of that relation. Even in crossexamination, this witness stated that she used to visit house of the appellant/convicted accused frequently and was meeting him

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repeatedly at Dargah and Mumbra. It is elicited from her through her cross-examination that from May to July 2012, she had physical relations with the appellant/convicted accused at her own house. Evidence of the victim/PW2 shows that on 6^th January 2013, she delivered a baby boy at the Nair Hospital, Mumbai, and thereafter, she again eloped with the appellant/convicted accused. Ultimately, as stated by her, she was caught from the Mohammed Ali Road by police and she was residing in that locality with the appellant/convicted accused as husband and wife. With all this, the victim/PW2 stated that she did not want to involve the appellant/convicted accused in the subject crime, and therefore, she was taking the name of the person who impregnated her, as Rahul. Thus, evidence of PW2, who happens to be the victim of the crime in question, shows that she was having consensual sexual relation with her brother-in-law i.e the appellant/convicted accused. She has delivered a baby boy out of her sexual relation with the appellant/convicted accused on 6^th January 2013, at the Nair Hospital, Mumbai, and this fact is vouched by PW3 Dr.Charusheela Warke, Assistant Professor

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working in the said hospital. Now let us examine whether this consensual sexual relationship between the appellant/convicted accused and the victim/PW2 amounts to the offence of rape.

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10 PW1 Najma has produced original Birth Certificate of the victim/PW2 issued by the Registrar as per the provisions of Sections 12 and 17 of the Registration of Births and Deaths Act, 1969. The registering authority is also examined by the prosecution in order to prove the age of the victim/PW2. The same is PW6 Dr.Sanjay Funde, Medical Officer, Health, of the Mumbai Municipal Corporation. This witness has deposed about maintenance of record of births and deaths as per the statutory provision of the Registration of Births and Deaths Act, 1969 and had also produced another Birth Certificate of the victim/PW2, which is marked as Exhibit 25. The recorded date of birth of the victim/PW2 is 9^th January 1999. The incidents of sexual relations between the appellant/convicted accused and the victim/PW2 took place from June to July 2012. As such, at the time of sexual relation with the appellant/convicted accused, the victim/PW2

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was even below 14 years of age. As such, her consent to such act, becomes wholly irrelevant.

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11 The baby boy, born out of sexual relations developed by the appellant/convicted accused with the victim/PW2, was found to be fathered by the appellant/convicted accused. The DNA report placed on record concluded that the victim/PW2 is the biological mother whereas the appellant/convicted accused is the biological father of the baby boy born to the victim/PW2 at the Nair Hospital on 6^th January 2013.

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12 With this evidence, the prosecution has proved the Charge leveled against the appellant/convicted accused and the appeal, as such, is devoid of merits. Therefore, the order :

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ORDER

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The appeal is dismissed.

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Wasim @ Rahul Abdul Rahim Shaikh v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Wasim @ Rahul Abdul Rahim 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

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