1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5216 OF 2009 (FOR LEAVE TO FILE APPEAL) IN CRIMINAL APPEAL NO. OF 2009 The State of Maharashtra ..Applicant [Ori. Complainant] Vs. Smt.Najma Ahmed Pasha and Ors. ..Respondents .... Mr.H.J.Dedhia APP for the Applicant-State Mr.Khan Abdul Wahab Adv. for Respondent No.1 .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 01, 2010 ORAL ORDER: [PER SMT.V.K.TAHILRAMANI,J.]: 1 The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 23.12.2008 passed by the learned Additional Sessions Judge, Bombay in Sessions Case No. 5 of 2007. By the said judgment and order, the respondent nos.1 and 2 i.e. original accused nos.1 and 2 came to be acquitted of the offences under Section 366A r.w. 34 of the IPC and respondent no.3- original accused no.3 came to be acquitted of the offence under Section 2 376 of the IPC. 2 The prosecution case briefly stated is as under: The prosecutrix PW1 was a minor at the time of the incident. She was resident of Karnataka State. Prior to about 8-9 months of lodging of FIR, she left her house without informing anybody and came to Mumbai in search of work. When she reached Bombay Central Bus Stand, on seeing the rush at the Bus Stand, she started crying for help. One lady approached her and enquired from her the reason for weeping. Thereupon the prosecutrix told her that she required work. The lady took her to the house of accused no.1 and left the complainant there to work. The prosecutrix was required to do household work in that house. She did household work in the house of accused no.1 for a period of three to four months. Thereafter, if the prosecutrix did not do her work properly, accused no.1 used to beat her, make her sleep outside the house and to sit in the sun. Four months after coming to house of accused no.1, accused no.1 made the prosecutrix wear good clothes and took her to the house of accused no.2. Two persons were in the house of accused no.2. After sometime, the prosecutrix and accused no.1 returned to the house of accused no.1. After about three days, again they went to the house of accused no.2. One person was in the 3 house of accused no.2. Accused no.1 and accused no.2 left the prosecutrix with the said person in the house and went away. The said person started removing clothes of the prosecutrix. The prosecutrix started shouting, whereupon the person contacted accused no.2 on telephone who came back. Then accused nos.1 and 2 forced the complainant to sleep with the said person. The name of that person was Ravi. Ravi gave some money to accused no.2 Jenifer and went away. Accused no.3 was on visiting terms with accused no.1. Hence, the complainant knew him. On 18.9.2006, accused no.1 took the prosecutrix to the house of accused no.3 by taxi. Accused no.3 met them on the way. Then accused no.3 took the prosecutrix to one guest house where he committed rape on her. Thereafter, on 29.09.2006 accused no.1 made the prosecutrix sleep outside the house in the rain. A neighbour made enquiries with her. Thereafter, she disclosed all the events to the neighbour. The neighbour took her to the Police Station and complaint Exh. 19 came to be lodged by the prosecutrix. After completion of investigation, the charge sheet came to be filed against the respondents-accused. 3 We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the 4 learned Additional Sessions Judge. We have also perused the evidence which was produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Judge does not call for any interference. 4 In order to show that the prosecutrix was a minor at the time of the incident, prosecution has examined PW 8 Shahmshadbanu who is the mother of the prosecutrix. PW 8 has stated that date of birth of the prosecutrix was 17.10.1990. If as per the prosecution case, the alleged incident occurred 3 to 4 months preceding the date of the FIR which was lodged on 30.9.2006, it would meant that the prosecutrix was below 16 years of age at the time of the incident. However, on scrutiny of the cross-examination of Shamsadbanu, we find that she has made a material improvement regarding date of birth of the prosecutrix in her evidence before the Court which is duly proved during her cross- examination. Thus, we cannot rely on the improved version given by the mother of the prosecutrix who is obviously an interested witness. 5 Moreover, PW 8 Shamsadbanu has stated in her cross- examination that she had obtained birth certificate of the prosecutrix 5 from the Collector ’s office and handed over to the school authorities. However, the said birth certificate has not been produced on record. The prosecution has also relied on entry in the school register Exhibit-36A regarding date of birth of the prosecutrix to show that her date of birth was 17.10.1990. Reliance was placed on the entry therein at Sr.No.15. However, the extract of the said entry shows that a girl viz. “X ” was admitted in school whose date of birth was 17.10.1990. However, name of the prosecutrix as disclosed by her in her complaint, does not tally with the name mentioned in the entry in the school register on which reliance is placed. The said name also does not tally with the name given by the prosecutrix before the Court. It is also pertinent to note that the FIR Exhibit-19 has been signed by the prosecutrix in English wherein she has given the same name which she gave before the Court which name is different from the school record on which reliance is placed. 6 The prosecution in order to prove that the prosecutrix was a minor at the time of the incident also examined one more witness i.e PW9 Ershad. PW 9 Ershard Pasha is a teacher in the school in which the prosecutrix was allegedly studying. This witness has been examined in order to prove the date of birth of the prosecutrix in the school register. 6 PW 9 Pasha has candidly admitted that he did not have any personal knowledge regarding the entry as he had joined the school much later. He has admitted that the school does not have any basic document or birth certificate or admission form in support of the entry taken in the said register. He has also admitted that whenever the parents of any child were illiterate, they used to mention approximate date of birth of the child. 7 In the present case, there is no material to show as to who gave the date of birth to the school and on what basis the date was so stated. Looking to the fact that admittedly the name of the prosecutrix does not tally with the name mentioned in the register and in view of the decision of the Supreme Court in the case of Birad Mal Singhvi Vs. Anand Purohit; reported in AIR 1988 SC 1796 : 1988 Supp SCC 604, wherein it is observed that the date of birth mentioned in a school register or a school certificate has no probative value unless either the parents are examined or the persons who have special knowledge of the date of birth of the person and on whose information the entry has been made have been examined. We find that there is no evidence to establish that the prosecutrix was below 16 years of age at the time of incident. It is pertinent to note that the prosecutrix has not stated her 7 date of birth in the F.I.R. In fact in the FIR, the prosecutrix gave her age as 16 years. PW 3 Dr. Disha examined the prosecutrix. On radiological examination of the prosecutrix, Dr. Disha gave her opinion that the prosecutrix was 16 years of age with a margin of error on both sides of about six months. 8 As far as the offence under Section 366A of IPC is concerned, there is no material to show that the prosecutrix was a minor at the time of the incident and the respondent no.1-accused has induced the prosecutrix to go from any place or to do any act with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. The gist of offence punishable under Section 366A of the IPC is that a minor girl must be induced to go from any place or to do any act with the intention or knowledge that such minor may be forced or seduced to illicit intercourse with another person. It is not the prosecution case that prosecutrix was procured by accused no.1 Najma from her native place. Nor are the facts of the case such that a minor girl was removed from the custody of her parents by the accused with intention to subject her to illicit sexual intercourse. It has emerged from the evidence of the prosecutrix, that she of her own accord, ran away from the house of her parents in Karnataka to Mumbai 8 in search of work. At the instance of one lady who she met by sheer chance at the bus stop, Najma was placed in the house of accused no. 1 Najma as a maid servant. The prosecutrix has also deposed to the effect that she started to work in the house of accused no.1 Najma as a maid servant and initially for the first four months, nothing happened nor she suspected anything to be amiss. Thus, it is abundantly clear that when the prosecutrix was sent to house of accused no.1 there was no intention of even Najma or accused no.2 Jennifer to forcibly subject the prosecutrix to sexual intercourse. 9 On perusal of the evidence, it is revealed that the prosecutrix came to Mumbai i.e. to house of accused no.1 Najma prior to nine months from the date of complaint meaning thereby, she started to reside with accused no.1 in the month of January, 2006. As per evidence of prosecutrix, after about four months, first incident occurred in the house of accused no.2 Jennifer. This means that in the month of April or May, 2006, there was alleged intercourse by a person by name Ravi with the prosecutrix. It is to be noted that the FIR is lodged in the month of September i.e. after five months from the first incident. It is surprising to note that the prosecutrix had not ventilated her grievance to anybody during such long span of five months. She admits in her cross- 9 examination that she had not disclosed anything even to the other old maid servant who was also living in that very house. Admittedly, there was no grown up male member in the house of Najma at the relevant time. It is not the prosecution case that prosecutrix was confined during that period. Obviously, there was ample opportunity for prosecutrix to disclose the events either to police or anyone else or to run away, if she was forced into illicit intercourse against her will. It is the case of the prosecution that one person by name Ravi had sexual intercourse with the prosecutrix at the house of accused no.2 and thereafter, accused no.3 had sexual intercourse with her in a guest house. This Ravi has not been traced nor any search was made for him. As far as second incident is concerned wherein the prosecutrix has alleged that accused no.3 Pathan took her to a guest house and committed rape on her, in her evidence, it is revealed that the accused no.3 Pathan halted the taxi near the guest house and the prosecutrix was waiting on the road for sometime. She has also admitted in cross examination that after alleged forcible intercourse, she along with accused no.3 Pathan and accused no.1 Najma had food in a nearby restaurant. This conduct of the prosecutrix appears to be unnatural. The incident with accused no.3 Pathan, according to the prosecution, occurred on 18.8.2006, however, it is seen that even thereafter, the prosecutrix has not made complaint to 10 anybody or tried to run away or tried to approach the police till 30.9.2006. The prosecutrix is not an ordinary girl but is a girl who has voluntarily of her own accord left the house of her parents in Karnataka and without telling them had come to Mumbai all by herself. In such case, if any events took place which were not to her liking, she would have run away, as she had every opportunity to do so. In the present case, the delay in lodging FIR is found to be inordinate. There is no reasonable and plausible explanation furnished by the prosecution for the said delay. 10 Admittedly, the prosecutrix was not compelled to go the house of Najma but she went there of her own accord. The prosecutrix was not locked up in the house. Najma was residing in a thickly populated locality. According to the prosecutrix, by way of punishment, accused no.1 Najma compelled the prosecutrix to sleep outside house or sit outside in the sun, in such case, it was very easy for the prosecutrix to seek help or to run away if any event had taken place against her will. 11 On medical examination, the prosecutrix was found to have been subjected to sexual intercourse, however, Doctor could not give 11 opinion as to whether there was forcible sexual intercourse. The medical evidence suggests that the prosecutrix was habituated to sexual intercourse which runs contrary to the prosecution case that only on two occasions she was subjected to rape. 12 In view of the evidence on record, we are of the opinion that the view taken by the trial Court whereby the respondents-accused came to be acquitted of the offences charged, is a reasonable and possible view. 13 In view of the above, leave to file appeal, is refused. Application is rejected. Consequently, the appeal is dismissed. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]