Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 39 (BOM)

Idris Karamsher Shaikh v. State of Maharashtra

2012-01-06

M.L.TAHALIYANI

body2012
Judgment This appeal is directed against the judgment and order dated 2.4.2008 passed by the learned Additional Sessions Judge, Greater Mumbai in Sessions Case No.1030 of 2008. The appellant was charge-sheeted for the offences punishable u/s 376 of I.P.C. and Section 506-II of I.P.C. 2. The appellant had allegedly committed sexual intercourse with his domestic servant namely Miss. Sony who was about 14 years old at the time of alleged incident. 3. The appellant was staying in hut at Shanti Nagar hutment area, near Sai Baba Temple, Gaondevi, Santacruz (E), Mumbai. The victim girl was employed by the appellant on the monthly salary @ Rs.1200/-p.m. She was accommodated in the premises of the appellant and as such she was 24 hours with the appellant and his family members. 4. The F.I.R. was registered on 1.10.2006 on the complaint of the victim girl. It was alleged in the F.I.R. that the appellant, aged about 47 years, had been indulging into sexual intercourse with the victim during the night time when she was sleeping in the same room. It appears from the prosecution case that the fact that the appellant was regularly indulging into sexual intercourse with the victim did not come to light till the victim girl conceived and her physical appearance started changing due to pregnancy. It is obvious that the matter was reported to the Police and investigation was taken up. The statements of the witnesses were recorded. The victim girl was medically examined. Since there was no incident of sexual intercourse in the immediate past of the F.I.R., no medical evidence could be available. The victim had delivered a baby girl on 13.3.2007. The blood sample of the baby girl was collected for determining paternity. It was sent for DNA test. The DNA expert reported that the appellant and the victim girl were the biological parents of the baby girl. It is on the basis of this material, the appellant was charge-sheeted. 5. During the course of trial, the prosecution had examined in all seven witnesses. The said witnesses are -PW-1 Dr. Nilkanth Patil, the Medical Officer who had collected the blood of the child, PW-2 Miss Sony the victim herself, PW-3 Heena L. Shaikh the sister of PW-2, PW-4 Mr. Prakash Daund, Police Officer who had registered an F.I.R. and had collected DNA report from the office of the Chemical Analyzer, PW-5 Mr. The said witnesses are -PW-1 Dr. Nilkanth Patil, the Medical Officer who had collected the blood of the child, PW-2 Miss Sony the victim herself, PW-3 Heena L. Shaikh the sister of PW-2, PW-4 Mr. Prakash Daund, Police Officer who had registered an F.I.R. and had collected DNA report from the office of the Chemical Analyzer, PW-5 Mr. Vijay Tikole, A.P.I. who had forwarded the seized articles to the Chemical Analyzer, PW-6 Dr. Baburao Damawale who had examined the victim on 5.10.2006 and had reported that she was pregnant and that her age was around 15 to 16 years at that time and PW-7 Ms. Radhabai Kanojia, mother of the victim. 6. The evidence of victim recorded in camera. It appears that the victim was terribly disturbed during recording of her evidence and at one stage she started crying and therefore, recording of her evidence was suspended. Since the whole case is based on the evidence of victim girl and DNA report, it would be proper to examine the evidence of victim girl, the Medical Officer who had collected the blood sample and the Police Officer. The evidence of other witnesses is not material for the purpose of determination of issue in the chargesheet. From the narration of the story by victim PW-2, it appears that at one stage there was possibility of consensual sex between the appellant and the victim. In this view of the matter, it is necessary to determine as to what was the age of the victim at the time of alleged sexual intercourse. PW-2 has herself stated that she was 14 years of old when she was sexually molested by the appellant. PW-6 the Medical Officer, who had conducted ossification test had opined that the victim was about 15 to 16 years old when she was examined by him. She was examined on 5.10.2006. It is well settled that there could be margin of error two years on either side of the ossification test opinion. As such, the age of the victim could be in between 13 to 17 years on the date of examination. The benefit of outer limit is always given to the appellant. Therefore, I will proceed on the assumption that the victim girl was about 17 years old on the date when she was examined. This is what is most liberal and most favourable view to the appellant. 7. The benefit of outer limit is always given to the appellant. Therefore, I will proceed on the assumption that the victim girl was about 17 years old on the date when she was examined. This is what is most liberal and most favourable view to the appellant. 7. PW-7 had produced a birth certificate issued on 13.3.2008 by the Municipal Corporation of Greater Bombay. It is stated by PW-7 that it is in respect of birth of PW 2. The date of birth mentioned in the said certificate is 17.3.1991. The date of reporting of birth is of 3.5.1991 i.e. one and half month after the birth. The name of the child is not mentioned in the birth registration certificate. PW-7 had admitted that in their family naming ceremony of the child has to take place on 10th day of the birth. It is thus obvious that if this birth registration certificate belonged to PW-2, the name of PW-2 should have appeared in the birth certificate. The name of PW-2 has not been mentioned and only names of the parents of PW-2 are stated in the said certificate. It appears from the cross examination of PW-7 that PW-7 has another daughter by name Surekha. It is suggested that the birth certificate belongs to said Surekha. In view of the said cross-examination of PW-7, it is difficult to say with degree of certainty that birth certificate belongs to PW-2. It could be of any other child of PW-7 and such a suggestion as already been put to her. There is no other evidence to prove that birth certificate produced by P.W. 7 belonged to P.W. 2. As such the Court has to rely on the evidence of the Medical Officer based on ossification test 8. In this regard it is to be noted here that the evidence of PW-1 shows that at some or other point there was a possibility of consensual sex. The matter was reported to the Police on 4.10.2006. The victim had been working with the appellant three years. Here I may give little concession to the appellant and I will count three years from the date of F.I.R. If we go three years back to the date of F.I.R., the first ever incident of molestation could be some time in the month of October 2004. The victim had been working with the appellant three years. Here I may give little concession to the appellant and I will count three years from the date of F.I.R. If we go three years back to the date of F.I.R., the first ever incident of molestation could be some time in the month of October 2004. The victim was around 14 years of old at the time of first alleged molestation. It may be noted here that this figure of 14 years is arrived at after giving all available concession to the appellant. 9. Since the victim girl had delivered on 13.3.2007, the victim must have conceived in the first week of June 2006. Even if the appellant is given concession of consensual sex and even if it is assumed that the conception was due to the sex between the appellant and the victim by consent, the prime question which remains to be determined is whether the first ever sexual intercourse was with consent or without consent. That will determine the fact whether the appellant had committed the offence of rape or not. 10. In this regard the evidence of PW-2 could only help the Court to arrive at right decision. As already stated, PW-2 had stated in the evidence that she was working with the appellant as full time domestic helper. She was staying in the same premises. The victim used to sleep in the same room where the appellant was sleeping. It appears from the evidence of the victim that the appellant was initially touching private parts of the victim and gradually he developed intimacy with her. Though PW-2 has not stated specifically that the appellant had penetrated his penis into vagina of PW-2, the evidence clearly shows that the appellant had been indulging in the sexual intercourse with the victim even before she had attained the age of 15 years. A question of the consent, therefore, does not arise. 11. The learned Trial Court might have given different reasons in the judgment. However, for the reasons stated hereinabove, I am of the view that the finding of guilt of the appellant cannot be reversed. The appellant is rightly held guilty of the offence punishable u/s 376 of the Indian Penal Code. Since there is no appeal against the acquittal for the offence punishable u/s 506 of I.P.C., that issue is left untouched here. The appellant is rightly held guilty of the offence punishable u/s 376 of the Indian Penal Code. Since there is no appeal against the acquittal for the offence punishable u/s 506 of I.P.C., that issue is left untouched here. It is obvious that the appeal needs to be dismissed. 12. At this stage, it may be noted here that the appellant has already undergone punishment imposed by the Trial Court. The prison authorities have reported that the appellant has been released from the prison after having undergone sentence. Hence, I pass the following order: 13. Criminal Appeal stands dismissed. The Superintendent of the Prison be informed accordingly.