Shaikh Maksood Shaikh Noor vs The State Of Maharashtra & Anr.

Appellant, original convict hereby challenges the judgment and order dated 21.09.2024 passed by learned Additional Sessions Judge-2, Parbhani in Sessions Case No. 77 of 2023, convicting the appellant for offence under Sections 363, 376(2)(j) and 376(2)(l) of IPC.

In short, case of prosecution in trial court was that, victim-first wife of PW2, a mentally challenged lady, on the night of 07.02.2023 was raped by accused after being taken to a field. Second wife, who went in search of victim, claims to have witnessed the incident and she reported it to her husband, who was out of station and after he reached, accused was caught and given thrashing but he managed to flee.

Therefore, husband PW2 set law into motion resulting into registration of crime for above offence. After completion of investigation, appellant was tried vide above Sessions Case and finally stood convicted. Hence, instant appeal.

Learned counsel for the appellant would plead innocence and claim false implication in the incident of rape. At the first count, prosecution story is attacked and challenged by learned counsel for the appellant on the ground that, there to be delay in reporting. According to him, incident was learnt by informant around 10.30 p.m. on 07.02.2023 itself. That, he also had vehicle of his own, but in spite of allegedly learning about serious offence like rape, the same is not promptly reported to police. According to him, delayed reporting creates doubt about the credibility of accusations and also creates possibility of manufacturing and giving false and afterthought story. On the importance of prompt reporting of FIR, he seeks reliance on the judgment of the Hon’ble Apex Court in the case of Parminder Kaur @ P. P. Kaur @ Soni v. State of Punjab AIR 2020 SC 3815.

Learned counsel would strenuously submit that case of prosecution is inherently improbable. That, prosecution is not sure as to where exactly the incident took place. According to him, vide Exhibit P-5 (page 83), spot is shown to be in the field of informant, but vide Exhibit P-8 (page 90), spot is said to be field of one Rasool Pathan and said owner is not examined. That, even Investigating Officer speaks of occurrence taking place in the field of Rasool. Thus, according to him, different witnesses are giving different versions on the spot of occurrence.

After taking this Court through the testimony of informant husband as well as contents of the report resulting into FIR, he submitted that, the occurrence could at the most be of outraging of modesty and nothing beyond that. He pointed out that, there is no cogent and reliable evidence, either oral or documentary, suggesting rape. Rather, according to him, informant’s evidence is full of material omissions and contradictions. Even testimony of PW3 is unworthy of credence and she does not lend support to the testimony of informant. That, both these witnesses, PW2 and PW3 are at variances on material count.

Learned counsel took this Court through the medico-legal examination report as well as evidence of medical expert PW1, and would submit that, there was no conclusive evidence about any recent sexual intercourse. On this count, he took this court through the cross faced by PW1.

Attacking the evidence of PW3, second wife of accused, he would submit that, her testimony is unworthy of credence. That, moreover she did not knew accused, of which there is clear admission. That, she herself had not seen any incidence as it was admittedly dark at that time. That, on the point of use of torch, there is omission.

Learned counsel further submitted that, when both, PW2 and PW3, claim that neighbours had gathered, no such neighbour is examined by prosecution to strengthen its case. He also pointed out that, the lady allegedly accompanying PW3, namely, Hasinabee, and even very brother of victim are surprisingly not examined by prosecution. According to him, even witnesses are not consistent, and when no two witnesses are identical and consistent, it is unsafe to rely on their testimony, and on this count he seeks reliance on the judgment of the Hon’ble Apex Court in the case of Rambhau Kashinath Waibhat and another v. State of Maharashtra [1998 (1) Mh.L.J. 469].

Lastly, he submitted that, when case of prosecution is not proved beyond reasonable doubt as required by the Hon’ble Apex Court in the case of Latesh @ Dadu v. State of Maharashtra AIR 2018 SC 659, conviction cannot be recorded.

In answer to above, learned APP also took this Court through the evidence of informant PW2 as well as his second wife PW3, and would submit that, they both are consistent that PW3, on finding victim missing from the house in the night, went in search of her and spotted accused indulging in the act of rape. That, victim was mentally challenged lady. That, disadvantage of the same has been taken by appellant. That, he was caught red-handed and even beaten by informant. According to learned APP, there is complete support from medical evidence. That, offence of rape is completely made out by prosecution in the trial court, and hence, according to him, learned trial court committed no error in returning guilt of the accused.

It seems that, prosecution has examined five witnesses in support of its case. Crucial evidence is of PW3 (second wife of informant) followed by that of PW2 (informant) and that of the medical expert PW1.

At the outset, it is to be dealt and ascertained whether victim is proved to be mentally differently abled person. On this count, evidence of husband PW2 is of relevance and in his opening testimony he has deposed that, he had two wives. Victim is his first wife, but she too resides with him. She is mentally ill since 2011 and she does not understand anything and is requires to be taken care of and provide medical treatment by taking her to hospital. On above point, there is no cross in whatever nature or form by the defence in trial court. The Investigating Officer has placed on record medical papers gathered from Civil Hospital, which are marked at Exhibit 15. Therefore, going by such material and in view of there to be no serious challenge on the point of victim to be mentally differently abled, case of prosecution to this extent deserves acceptance.

Accusation of prosecution is that, on the night of 07.02.2023, around 11.00 p.m., victim was raped by accused. In support of such case, heavy reliance is placed by prosecution on the testimony of PW3, who is the second wife of PW2 informant. On carefully appreciating her testimony at Exhibit 29, one comes across she deposing that, victim, who is first wife of her husband, is suffering from mental disease and they had to do all her work, like provide her food, change her clothes, give her a wash and do her other routine works.

Regarding the occurrence, she deposed that on 07.02.2023, around 10.45 p.m., she searched for the victim as she was not found in the house, and then this witness went out of the house with torch, i.e. towards the agricultural field of Rasool. According to this witness, at that time one lady, namely Hasinabee, also accompanied her, and they saw that accused, who had removed his pant, was having sexual intercourse with victim and therefore this witness made phone call to her husband and informed him about it. Her husband, who had gone to Parbhani, came there at 11.00 p.m. Her husband saw accused and gave two-three kicks to him. Thereafter, victim was covered with clothes and brought to their house and at that time, accused ran away from the place and on the next day, they went to Manwat Police Station to lodge complaint.

Above witness is subjected to extensive cross as to till what time victim was in the house, number of rooms in the house, time at which victim was provided meal, room in which she slept, where other family members slept and till what time she was in the front room. Then she is questioned on the point of front door and back room door entry, distance between her house and field of Rasool and his brother’s field. In para 6 of her cross, she answered that, around 10.45 p.m., before searching the victim, she did not hear her sound, but after she answered that there was electricity connection in their house, she volunteered that at that time electricity supply was off throughout the night and even when she was present with the victim in the house till 10.45 p.m. In para 7 she answered that, she saw the incident from a distance of 90 feet and then she shouted. She answered that after that, five to ten persons of the locality gathered. Then she is asked whether she attempted to throw anything at the accused which she denied. She answered that, while searching victim in the torch light, she had mobile which she used to make phone call to her husband.

During further cross, it is noticed that in para 10 she answered that, at the time of giving statement to police she did not state that, she carried torch when she went out of the house. She affirmed that, in her statement to police she had stated that she herself and Hasinabee went to the agricultural field of Rasool Khan, but she is unable to assign any reason as to why it is not so appearing in her statement.

In para 12 she answered that, in her statement to police, she had stated that she had seen accused Maksood after removing his pant was having sexual intercourse with the victim. But when her statement was confronted to her, she answered that it is not so appearing in her statement and she could not assign any reason for the same.

Omissions are also brought in para 14, 15 and 16 on the point of her husband giving kicks to accused and that, victim was made to wear the clothes and brought to their house and that, accused ran away from the place.

Thus, from above testimony of PW3, who is star witness for prosecution, though she claims that when she went in search of victim carrying torch and she spotted accused having removed his clothes and having sexual intercourse with the victim, the same is not appearing in her statement to Police and therefore this is material omission going to the very root of prosecution case. Her answer in para 12 of her cross to the above extent knocks at the very bottom of the prosecution case about seeing accused having sexual intercourse with the victim. Even on going through the impugned judgment, it is noticed that learned trial court in para 28 has reached to a finding that her testimony is unworthy of credence for said reason.

Now let us advert to the testimony of PW2-informant husband who is examined at Exhibit 24, wherein he deposed that, on 07.02.2023 he received call from his second wife, while he was returning from Parbhani, about someone dragging victim in the field of Rasool and therefore, he claims that, when he came to the house and he also went with torch, he also saw his first wife without clothes on her body and at that time, he saw accused Maksood having sexual intercourse with victim forcibly and thereafter he gave two kick blows to accused Maksood who ran away from the place and therefore he brought the victim home and in the next morning, he gave complaint at police station.

This witness is also subjected to cross, wherein initial cross seems to be confined to information regarding the family, his own occupation, locality and neighbourhood. In para 13 of his cross, he answered that, he was returning to Parbhani with his daughter, other relatives, including brother of victim. He answered that after receiving phone call from his second wife, he had come near the house and thereafter he himself, second wife and brother of victim went to the agricultural field of Rasool, but he denied that, at that time any of the neighbours were present at the spot, but stated that they were present near his house. In para 14 he answered that, when he reached the spot, he had seen that accused had already removed his pant and while running away, accused carried his pant. He answered that, he gave kick blows to the accused while his brother-in-law was four to five feet away.

In para 16, 17, 18, 19 and 20, omissions are brought to the extent of second wife making call and informing about someone dragging victim to the agricultural field; about he informing in his statement to police that victim was lying in the field of Rasool Khan and he giving two kicks to Maksood Khan; a footwear and rumal (handkerchief) lying on the spot. Similarly omission is brought in his statement under Section 164 Cr.P.C. to the extent that he received phone call from his second wife in the night when he had reached at Sakharwadi Phata. He admitted that, after medical examination of the victim, he did not inquire from the medical expert whether victim was subjected to sexual intercourse, and he also admitted that at the time of giving history to the Medical Officer, he did not state about multiple sexual intercourse. Rest is all denial.

On evaluating above evidence of informant, firstly, he was not in the house or in the company of PW3 when she went for a lookout of victim. According to his second wife PW3, he had been to Parbhani. While under cross, in para 13, he has answered that, when he received phone call from his wife, at that time he was at Tambaswadi which is 8 kms away from his village. Taking his such answer into account, it is obvious that, even if he was traveling in Jeep, it must have taken him at least half an hour to reach his own house. Therefore, it is difficult to comprehend that, even after accused being spotted by PW3, having sexual intercourse with victim, earlier to 11.00 p.m., said act was continued for further half an hour till arrival of PW2 so as to accept his version that even he saw accused indulging in sexual act with his first wife, and therefore he kicking him and accused running away. Prosecution does not seem to have gathered CDR to demonstrate that there was telephonic conversation between PW3 and PW2. For said reason, his above discussed testimony that, he also saw accused having sexual intercourse with his first wife, is not believable. Even very brother of victim, who was in the company of PW2, is also not examined by prosecution. PW2 also stated that other villagers had gathered but, as submitted by learned counsel, no independent witness is examined.

PW1 Medical expert deposed at Exhibit 18 that, on 08.02.2023, he had examined victim who was accompanied by her husband and relatives. He deposed that, he noticed victim to be not mentally sound and rather disturbed. Husband of the lady gave history. He examined the victim and noted following injuries on her person :

He claims to have issued medico-legal certificate and to a question as to whether he found any sexual assault, he answered that, considering the nature of injuries on the body and considering victim’s mental condition, sexual assault may be possible.

While under cross, medical expert has answered that, as far as abrasions are concerned, for initial 24 hours, its colour remains red and thereafter from 24 to 72 hours, its colour gets blue to bluish black and after 72 hours, it gets green. He categorically answered that abrasion on the back of victim was 48 to 72 hours old. So far as rest of the abrasions on the ear, thigh, breast, left elbow are concerned, he answered that the age was 48 hours. He admitted that on examining private parts of the victim, he did not notice any sign of recent sexual intercourse. In para 9 of the cross, he admitted that history was given by second wife of informant and it was also noted in the history that there to be multiple sexual intercourse with the victim. In para 10 of the cross, he admitted that he has not given opinion that sexual intercourse on the victim was possible. In para 11 of the cross, he admitted that, if a mentally regarded person or a person of unsound mind wanders in nude condition and falls on the field or other place, the aforesaid abrasions noticed by him are possible. Rest is all denial.

On meticulous re-appreciation of medical evidence on record, it is noticed that alleged occurrence is of the night of 07.02.2023 around 11.00 p.m. or so. In view of testimony of informant, if occurrence was reported in the evening at around 18.00 hours or so, and if thereafter victim was subjected to medical examination on 08.02.2023 itself, said medical examination under any condition, must have been within 24 hours itself. But above discussed testimony of medical expert shows that the injuries narrated by him are over 48 hours to 72 hours old. According to him, the abrasion injuries on ear, thigh, breast, left elbow were 48 hours old (though inadvertently it is typed as 48 years). Further, medical expert has candidly admitted that, there was no sign of recent sexual intercourse and he has, as stated above, admitted that, the abrasion injuries are also possible on account of fall. Therefore, here, medical evidence is not completely corroborating prosecution case about sexual intercourse on the night of 07.02.2023. Even Chemical Analysis report [Exhibit 22] of articles related to the victim does not show any semen over articles 3, 4, 5, 6, 7, 9 and 11.

To sum up, on complete re-appreciation of evidence adduced by prosecution in trial court, this Court has noticed that, firstly, though victim is proved to be a differently abled lady, case of prosecution about she being raped by accused, is not proved beyond reasonable doubt. Testimony of PW3, who is the star witness, on account of material omissions having come in her cross, is unworthy of complete reliance and credence. The omissions brought in her testimony go to the root of prosecution story. Informant husband PW3 cannot be said to be a witness to the act of accused in view of he being out of the house and away at almost half an hour’s distance since he learnt about rape from his second wife. It is improbable that he could also personally see sexual intercourse committed by accused on the victim when witnesses are admitting that there was no reporting of multiple sexual encounters. Medical evidence discussed above also does not fully support prosecution story. Consequently, it is a fit case for extension of benefit of doubt to the accused on account of failure of prosecution to prove its case beyond reasonable doubt.

Perused the judgment impugned herein. Learned trial court has rightly discarded testimony of PW3 and refrained from relying over it, however, testimony of PW2 has not been correctly appreciated. Even medical evidence is incorrectly appreciated. Consequently, indulgence is called for. Hence, following order :

I. The Criminal Appeal is allowed.

II. The conviction awarded to the appellant Shaikh Maksood Shaikh Noor by learned Additional Sessions Judge-2, Parbhani in Sessions Case No. 77 of 2023 for offence under Sections 363, 376(2)(j) and 376(2)(l) of IPC on 21.09.2024 stands quashed and set aside.

III. The appellant Shaikh Maksood Shaikh Noor stands acquitted of the offence punishable under Sections 363, 376(2)(j) and 376(2)(l) of IPC.

IV. The bail bonds of the appellant stand cancelled.

V. Fine amount deposited, if any, be refunded to the appellant after the statutory period.

VI. It is clarified that there is no change as regards the order regarding disposal of muddemal.