1 1 1 [Not reported] IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO. 658 OF 2000. CRIMINAL APPEAL NO. 658 OF 2000. CRIMINAL APPEAL NO. 658 OF 2000. Ravikant Shankarappa Patil ] Resident of 46, Railway Lines, ] Appellant. Solapur. ](Org.Accd.No.1) versus State of Maharashtra : Respondent. WITH WITH WITH CRIMINAL APPEAL NO.644 OF 2000 CRIMINAL APPEAL NO.644 OF 2000 CRIMINAL APPEAL NO.644 OF 2000 1. Amar Jayant Salunke ] age 20 years, resident of 42] New Tirhegaon,Forest,Solapur] 2. Iranna Anappa Dangapur, ] Age 21 years, resident of ] Deotangi, Taluka Aland, ] Dist.Gulbarga Karnataka State] Appellants. 3. Ramesh Arjun Koli, Age 21 ] (Original years, resident of Block ] Accused No.12, Vikas Nagar, Solapur ] Nos. 2 to 5) 4. Shivkumar @ Shafya Bhima- ] shankar Waghmare, Age 21 ] years, resident of Harlayya ] Nagar, Vijapur Road, Solapur] versus 2 2 2 The State of Maharashtra. ] Rspondent Mr.A.P.Mundergi with Mr.V.B.Naik for the appellants. Mr.D.R.More, APP, for the State. Mr.V.V.Purvant for the original complainant. CORAM : D.G.DESHPANDE,J. CORAM : D.G.DESHPANDE,J. CORAM : D.G.DESHPANDE,J. DATED : 10th September 2004. DATED : 10th September 2004. DATED : 10th September 2004. JUDGMENT JUDGMENT JUDGMENT 1. Appeal No.658 of 2000 is filed by original accused No.1 and other Appeal No.644 of 2000 is filed by original accused Nos. 2 to 5. Both the appeal were argued on behalf of all the accused by Mr.Mundergi and replied by Mr.More, the learned APP with Mr.V.V.Purvant, the advocate for the original complainant. 2. Both these appeals have been filed by the original accused Nos. 1 to 5 against their conviction under Sections 148, 452 r/w 149; 366 r/w 149; 342 r/w 149; 323 r/w 149 and 506(2) r/w 149. The accused have been awarded different sentences on each count by the VI 3 3 3 Addl.Sessions Judge, Solapur (S.S.Choudhari) by his judgment dated 28.7.2000. 3. Miss Fatima Sabin Nazir Ahmad Shaikh is the prosecutrix in this case. She was having brilliant education record. She was studying in III year Computer Engineering at Walchand Institute of Technology at solapur. She was residing there with her father, mother and brother, who was getting education at Pune. Many other relatives were also residing at Solapur. Her father was the professor. He was in Libia for some time. He returned to India in 1991 and started staying at plot No.56, at Sahara Nagar, Solapur with his family members. 4. Accused No.1 contested Loksabha election in the year 1996 from Solapur constituency. He was knowing parents of the prosecutrix. From this campaign, he enquired about their coming back to India. He was also friend of one Ibrahim Abu Bakar Shaikh who was the maternal uncle of the prosecutrix. It appears that from that campaign, the old friendship with the father and family of the prosecutrix was revived and renewed. 4 4 4 5. In November 1997 the father of the prosecutrix decided to construct a house at 38, Jule Solapur. Accordingly the work was entrusted to one Jakkal contractor for Rs.9,50,000/-. The father of the prosecutrix paid Rs.8,30,000/- to Jakkal. However, Jakkal left the work incomplete and did not turn back. The father of prosecutrix, therefore, contacted accused No.1, who assured that the amount paid to Jakkal would be recovered. In the mean time intimacy was developing between accused No.1 and the family of the prosecutrix. The accused was allegedly complaining about his wife and he wanted Nazir Ahmad to intervene. Accused No.1 had also asked hand of the prosecutrix in marriage. The father Nazir Ahmad got annoyed and asked accused No.1 not to visit their house again. However, after one month accused No.1 went to them and told them that there was danger to his life and he would stay there. He was carrying revolver and used to put his revolver on table and remove bullets from it. Therefore, the prosecutrix and her father directly came 5 5 5 under the control of accused No.1. 6. Father Nazir Ahmad shifted to new residence three days prior to Ramjan Id which was celebrated on 20.1.99. the accused came there and questioned them about their right to occupy the house and also asked for Rs.12,00,000/- which he had spent for the construction of the house. Nazir Ahmad paid Rs.4 lakhs. Remaining amount was to be paid by him within 2/3 days. 7. In the last week of April 1999 accused No.1 went to the house of prosecutrix at 1-30 p.m. and asked her mother either to pay Rs.8 lakhs or to perform Nikah of prosecutrix with him. The prosecutrix protested against his proposal. Accused No.1 threatened her. He made a phone call from her residence and called some persons. The mother of the prosecutrix called her husband from Tubba Hotel Solapur which was very near to the residential house. The father of the prosecutrix reached home immediately. Other accused were already there with accused 6 6 6 No.1. At that time accused No.1 was having revolver. The prosecutrix, out of frightened, shut herself in bath room. However, accused Nos. 1 and accused Nos. 2 to 5 broke open the door of the house. Accused No.1 caught hold her and at the point of revolver he brought her outside and asked her to sit in his car. The car was taken towards Pune. The prosecutrix firmly told accused No.1 that she would not marry with him. But accused No.1 threatened her that if she did not marry with him, he would kill her brother Altaf at Pune. He also given fist blows to her. The prosecutrix threatened him that if she was tortured, she would jump down from the car. Accused No,.1 brought her back to her house and left her there. 8. At that time the parents of the prosecutrix were not at home. She went by scooter to the house of her maternal aunt Shahida Begum at Ashiyana Nagar. Her parents were there. She stayed there for 4/5 days. Maternal uncle Ibrahim Shaikh and one Javed approached accused No.1 and tried to convince him to drop the idea of marriage with the prosecutrix. But the accused insisted. 7 7 7 9. On 4.5.1999 Ibrahim Shaikh and Javed again went to the house of accused No.1 and after they returned, they told that accused No.1 was firm to get marry with the prosecutrix. He had also threatened them to hand him over the custody of the prosecutrix within an hour or else she should forget her maternal uncle. Hence the prosecutrix and her parents went to the house of Smt.Shahida Begum. Accused No.1 went there by car. He was having revolver. Accused asked them to take two persons with them and sit in the car or else he would kill them. Everyone got afraid. Therefore, the prosecutrix, her brother Altaf, maternal uncle Javed and his wife sat in the car. Accused No.1 himself drove the car and brought them to Mumbai where they reached at 4 p.m. on 5.5.1999. Then all of them were taken by accused No.1 to the house of Shakil Noorani at Oshiwara, Mumbai, who is allegedly the friend of accused No.1. Accused No.1 had asked the parents of the prosecutrix to come to the residence of Shakil Noorani in Mumbai. The parents of the prosecutrix reached Bombay by train at 11.30 p.m. on the next day. Marriage was arranged. 8 8 8 Accused No.1 purchased clothes and golden ornaments on that day against the wishes of the prosecutrix and, on 6.5.1999, in the morning, accused No.1 asked the prosecutrix to get herself prepared for Nikah after giving threats. He told the prosecutrix that he was converted to Muslim religion and his name was changed. He also showed her affidavit. Thereafter accused No.1 took the prosecutrix, her father, brother and his friend Shakil Noorani at Ashirwad Wiwah Sanstha, Bandra (E), Mumbai. Registered marriage was performed under the threat to the prosecutrix. Then against the wish of the prosecutrix she was taken to Khandala for honeymoon. They stayed there in Dukes Retrit and accused No.1 expressed his desire to have sexual intercourse with her. But she did not allow. 10. Thereafter the prosecutrix left Mumbai with her brother Altaf and returned to Solapure on 9.5.1999. She stayed with her parents. The accused also came there and stayed with her parents and, under the threat of revolver he committed sexual intercourse with her from 9.5.1999 to 17.5.1999. Then on 17.5.1999 he 9 9 9 took her to Hyderabad. They stayed there at Hotel Ramda. He showed some flats to her and asked her to bring a sum of Rs.20,00,000/- from her parents. Forcibly he had committed sexual intercourse with her for three days at that hotel. Then they came back to Solapur. This state of affairs continued up to 4.6.1999. Ultimately the prosecutrix and her parents decided to lodge a complaint to the police. On 5.6.1999 the prosecutrix went to the police and lodged a complaint and offences were registered against all the accused. 11. I have reproduced the case of the prosecution exhaustively, because the very nature of the story that creates strong doubt and suspicion about the prosecution case. Even if there is repetition, the aforesaid story can be narrated as below :- ============================================================== Sr.No. Date Nature of incident alleged. ============================================================== 1. Nov.-Dec.1998 Ravi entered the house of prosecutrix with revolver. Ravi wanted to stay at house of prosecutrix as some people were chasing him, left the house next 10 10 10 morning. (No rape alleged). 2. Then one day Ravi came to father of prosecutrix (No date with loaded revolver and was mentioned) removing and again loading bullets inside the revolver by revolving the same. Ravi expressed his desire to marry Fatima, as his wife was torturing him. 3. 1999 Ramzan-Id Prosecutrix’s family shifted to Jule Solapur House, Ravi came there after 2-3 days threatened them to vacate or pay Rs.12 lacs. (No revolver). 4. Last week of Ravi came to house at Jule Solapur April 1999 with revolver and started threatening at 1.30 p.m. Insisted to pay Rs.8 lacs or insisted to marry him. 5. Last week of The entire alleged episode of Ravi & April 1999 his henchmen entering house, confining at 7.30 p.m. parents and Ravi pulling prosecutrix to car and driving on Pune high way & returning to Solapur after about an hour. 11 11 11 6. Last week of On returned by scooter alone she went April 1999 to maternal uncle at Ashiyanagar where at 7.30 p.m. her parents were seating. She narrated the incident, they decided to file complaint, but did not. 7. 4th May, 1999 Ravi came to the house with Ibrahim uncle shown revolver and directed prosecutrix, two other family members to seat in car all family members arrived with prosecutrix to Mumbai at 4-5 p.m. 8. 06.05.1999 At Khandala, Dukes Resort demanded To intercourse, beats. Accused threatened 08.05.1999 but no intercourse alleged. 9. 09.05.1999 Prosecutrix and her brother came to Solapur. 10. 09.05.1999 Ravi came at night to the house with revolver in hand and made forcible intercourse. This continued from 95.99 to 16.5.999. 12 12 12 11. 17.5.99 Went to Hyderabad, stayed at hotel Ramda, allegedly raped prosecutrix for 3 days. 12. After 3 days Came back to Solapur, threatened by so about showing revolver to prosecutrix 21.5.99 father and demanded Rs.20 lacs. 13. 04.06.99 Ravi came to the house to fetch at 4-5 p.m. prosecutrix with revolver in hand. She was not ready so he slapped her. 14. 05.06.1999 FIR was lodged for the first time. 12. In order to prove its case, the prosecution has examined the prosecutrix and her mother and a Kazi as important witnesses. The father, maternal uncle and, so many other relatives, who were residing at or living in Solapur, those who accompanied the prosecutrix in car with her, those who came to attend the marriage by train, are not at all examined. 13. The prosecutrix and her mother want the Court should believe that right from 13 13 13 November-December 1998 till 4th May 1999, even though the father of the prosecutrix was a professor, even though she herself was taking education in computer engineering, even though the family was educated, financially well-off and, the father was running a hotel, and number of relatives were consistently in touch with the family of the prosecutrix right from November 1998 till June 1999 and even though accused No.1 was consistently threatening at the point of revolver, none of them could gather courage to lodge report against accused No.1 to the police or to make any complaint to the superior police officers. It is easy for the prosecutrix and her mother to say that they were under constant threat and fear. But six months period is not a small period or short period where not even once, none of her family members could gather courage to report the matter to the police or to the higher authority. It is most difficult for any prudent man to believe that such a huge family of father, mother, prosecutrix, her brother and her so many relatives, residing in close vicinity at Solapur, would be under so much pressure as not to gather courage to lodge their protest by filing complaint to the police or to take any 14 14 14 preventive steps in that regard. 14. Even though the story of forced marriage, on the face of it, appears to be bogus and concocted. Because if the prosecutrix and three of her relatives all were brought by accused No.1 in car from Solapur to Bombay, then it is difficult to believe that during that 12 hours journey, none of them could find any time to run away from the alleged threats of accused No.1 and contact and report to the police. It is still more difficult to believe that others, who came by train to Bombay and who were not under the threats of accused No.1, could not gather courage and report the matter to the police and to make any attempt to stop accused No.1 from carrying prosecutrix to Bombay along with other relatives. 15. The marriage ceremony at Bombay, is performed fully in the company of important relatives of the prosecutrix. It is in broad day light where everybody has freedom to move in Bombay and to attend or not to attend the marriage and go to the police. This marriage ceremony is supported by the following documents. 15 15 15 (i) Two forms filled in Urdu for the purpose of Nikah duly signed by the Kazi himself. (ii) Affidavit of accused No.1. (iii) Urdu form of Muslim Marriage Register marked at Exh.55. (iv) English Translation of that information noted in the Register written at Exh.58. (v) Affidavit at Exh.59 signed by Kazi himself before Shri. Gaytonde, the Notary. (vi) Exhibit 55 bearing the signature of the father of the prosecutrix as a Vakil at column No.3. (vii) Shakil Noorani, signed as a witness for accused No.1 in column No.4. 16 16 16 (viii) Altaf i.e. the brother of the prosecutrix signed as her witness in column No.5 in Exhibit 55. (ix) Admitted acceptance of Rs.25,000/- towards Meher amount. 16. In spite of the aforesaid documents executed by the prosecutrix, her parents, her brother etc., she wants this Court to believe that it was a forced marriage or a marriage under the threats to her life at the point of revolver or gun or pistol whatever that may be. 17. I have given list of dates and events above, apart from narrating the case of the prosecution at length. The dates and events show that the prosecutrix wants the Court to believe that right from November-December 1998 herself and her entire family was under the threats of revolver of accused No.1. In all the events that have followed subsequently there is a wide gap of time sufficient for any one in the family to go to the police or to the higher authorities. But 17 17 17 even then she wants the Court to believe that she could not gather courage, in spite of her family being well educated, to lodge a report to the police. She also wants the Court to believe that her father, who was the professor; doing hotel business; running a restaurant and who had assistance of so many persons working in the hotel and had the facility of telephone in the hotel, could not gather the courage to go to the police at any time from November-December 1998 to May 1999. The prosecutrix wants the Court to believe that even though everything she had narrated in her case, in her evidence, as per the prosecution case was known to her relatives at Solapur, but none of them, in spite of attempt of forcible kidnapping and abduction; forcible marriage, forcible intercourse, could gather courage to go to the police. She also wants the Court to believe that all the documents referred to above, executed by her, by her parents, by her relatives, were obtained by accused No.1 at the point of revolver. She also wants the Court to believe that her story that her parents and other relatives came by train, but even then they could not and did not take any steps to prevent the marriage; to prevent accused No.1 from 18 18 18 proceeding to Bombay, to report the matter to the police or to the Press at any time. 18. Therefore, this is a case where even if the prosecutrix was not cross examined at all, her case was liable to be rejected by the Court outright as a total lie and false implication and full of improbabilities which no court could have accepted or should have accepted. This is apart from the facts that in their cross examination the prosecutrix and her mother are fully exposed and shattered to pieces making entire prosecution story highly improbable, suspicious and ultimately false and full of lies. 19. The evidence of the prosecutrix was recorded in this case firstly on 3.5.2000. She was 25 years of age at that time. After giving her evidence in Chief as per her police complaint, following is the material that is brought on record in her evidence. While taking the prosecutrix to Bombay in the car, accused No.1 showed revolver to uncle Ibrahim and then herself, her uncle Javed and her brother sat in the car and, accused then gave one address of Bombay to her father and asked them to come by 19 19 19 train. Accused took the prosecutrix to Khandala for their honeymoon. There he severely bet her and demanded sexual intercourse with her which she refused. She concealed herself in the toilet. Thereafter they came back to Bombay at the house of Shakil Noorani. Her brother came there and accused No.1 directed him to take her to Solapur and, on 9.5.1999 the prosecutrix and her brother came to Solapur. If what is stated in the evidence is true, then in spite of severe beating given by accused No.1 at a time when the prosecutrix went to celebrate her honeymoon and even though she came to Solapure all alone with her brother, she did not lodge any report to the police. 20. Thereafter, the prosecutrix admitted that on 9.5.1999 after her arrival to her house at Solapur, the accused No.1 came there within two hours. Accused No.1 stayed with her parents and from 9th May to 16th May he had intercourse with her with revolver in one hand. She stated that all the while she was crying during this period and her parents knocking the door from outside requesting accused NO.1 to release the prosecutrix. Even then it is surprising to note 20 20 20 that when the chastity of their girl is being ravished in their own house at the point of revolver, the prosecutrix wants the Court to believe that her parents were quiet in spite of their resistance in the form of knocking the door from outside requesting accused No.1 to release her. 21. Then she stated that on the night of 17th accused No.1 took her forcibly to Hyderabad. They stayed there for three days where accused No.1 raped her. There threats of bringing Rs.20/- lacs from her father were given to her. Then they came back to Solapur. Again also no report, no action, either by the prosecutrix or by her parents or by her relatives or well wishers against accused No.1. 22. She admitted in para 12 of her cross examination that there was a phone at her house and the Phone Number was 600053. The distance between her house and that of her maternal aunt was about 2 to 3 minutes by scooter. She also admitted that her maternal aunt was having a house at Mumbai and in that house her maternal brother Imtiyas was staying where there was a 21 21 21 phone in the house of Imtiyaz. There was phone facility available at the house of Shakil Noorani and also at Hotel Tubba run by the father of the prosecutrix. 23. Therefore, even though there was a phone at the house of prosecutrix, at the hotel of her father, at the house of Shakil Noorani, where the marriage party was stayed, at the house of house of maternal brother Imtiyaz, no attempt whatsoever to inform the police about the so called kidnapping, abduction, forcible marriage at the point of revolver was made. Ibrahimmamu, the near relative of the prosecutrix, was residing at Solapur at a distance of about more than one kilometre. There was telephone at his house. The grand parents of the prosecutrix from her mother side, having phone facility, were residing in Solapur itself. Grand father was running transport business at Solapur and he was known as a highly dignified personality in their community and social worker. But no steps whatsoever was taken by any of these highly influenced persons or the so called relatives of the prosecutrix at any time from November-December 1998 to May 1999. 22 22 22 24. She further admitted that she went to Bangalore along with her father and mother, but that too, according to her, was under distress and against their wishes. My attention was drawn by Mr.Mundergi to certain photographs taken at Bangalore and other places visited, and he rightly argued that in none of the photographs, in one of which the prosecutrix is seen cutting the birthday cake, also the prosecutrix is seen under tension. She is seen enjoying the moments in the photographs. 25. In para 13 of her cross examination she admitted that apart from the aforesaid relatives, there were other relatives of her residing at Solapur. There were suppliers, cooks and waiters in her father’s hotel Tubba at the relevant time and, the persons other than her relatives, used to visit her house at Solapur. She has also stated that she had her female friends and her friends used to visit her house occasionally and she also used to visit their house occasionally. At Bangalore they visited the places like Ooti and Mysore and they stayed at hotel and their photographs were taken. Those photographs are at 23 23 23 Exhibits 50 and 51 and those photographs were taken by her father and brother. She also admitted that accused No.1 accompanied her in Vrindavan garden and Mysore and, they wandered in Vrindavan with accused No.1. She admitted that they stayed in the southern Star hotel at Mysore and in Holiday-in at Ooti and that, there accused No.1 had taken photographs. All of them travelled from Ooti to Bangalore along with accused No.1. 26. Thereafter she admitted that her birthday was celebrated at Bangalore where accused No.1 was residing and where he was present. The photographs (Exhibit 52) is about the said celebration. 27. Regarding conduct of accused No.1, the prosecutrix,