The learned APP appearing on behalf of the State, on the other hand, invited my attention to the evidence of the complainant. He submitted that the Trial Court had recorded the demanour of the witness. He further submitted that there was no reason why the girl, who was 14 years of age, would make a false statement in the Court.
He submitted that the Trial Court had given cogent reasons and no case was made out for setting aside the finding of the Trial Court convicting the appellant herein.
It is not possible to accept the submissions made by the learned Senior Counsel appearing on behalf of the appellant - accused No.4. It is not seriously disputed by the appellant - accused No.4 that the girl was 14 years of age. There is no reason to disbelieve the statement of the complainant that she had left her house and it had taken five days for her to reach Bombay. It is possible that, not knowing where to go, she might have endlessly wandered from place to place in search of an employment and had finally managed to come to Bombay after five days. Merely because it had taken five days for her to reach Bombay, her evidence cannot be said to be unreliable. The demanour of the witness has been recorded by the Trial Court. The Trial Court has recorded that the girl wept after she told the Court that the Station Master was kind enough to give her Rs 50/- when she was found crying in the compartment. The demanour of the witness clearly discloses her state of mind and her anguish on remembering the incident which had taken place on that day. On remembering the trauma through which she had undergone and the kind gesture shown by the Station Master, the witness could not control her feelings and therefore wept in the open court. This conduct itself clearly shows that the witness was not lying but was telling the truth.
Bombay High Court
Noman Abdul Khalid Sunshare vs 2 Suphia Nivati on 30 September, 2008
Bench: V.M. Kanade
1. Heard Mr. Chitnis, the learned Senior Counsel appearing on behalf of the appellant and the learned APP for the State.
2. Appellant is an original accused No.4. He is challenging the judgment and order passed by the Trial Court whereby he has been convicted for an offence punishable under sections 366, 366-A of the Indian Penal code and sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs 5000/- and, in default of payment of fine, to suffer further rigorous imprisonment for two months.
3. Brief facts, in a nutshell, are as under:-
4. One Sofia, who was the girl of 14 years of age, left her house on account of poverty and constant quarrels between the members of family in search of a job and boarded the train which was going to Bombay. It took five days for her to reach Bombay and she got down at Andheri Station where the Station Master helped her and gave her Rs 50/- for purchasing food. When she was on the railway station, accused No.4 inquired with her and he, thereafter, offered to give her a job and, therefore, took her to the house of accused No.1. Prosecution case is that the accused No.4 knew that accused No.1 was carrying on brothel in her house. Accused No.1 allowed the complainant to work for a couple of days as maid servant and, thereafter, forced her to have illicit intercourse with two customers, after giving her cold drink which was laced with drugs. After she regained consciousness, she realized that she was raped and, thereafter, for a period of two months she was continuously forced into prostitution. After getting a suitable opportunity, she fled from that 3
house and made a complaint to T.V. Reporter who took her interview and filed a complaint in the Police Station. Accused No.4 and other accused were arrested. Statements of witnesses were recorded. Charge-sheet was filed and the Trial Court was pleased to convict accused No.4 and original accused No.1 - Shakila and other accused Nos. 2, 3 and 5 were acquitted by the Trial Court. The original accused No.1 had filed separate appeal being Appeal No.1051 of 2004. Since none appears for original accused No.1, in this case, this appeal is separately heard.
5. Mr Chitnis, the learned Senior Counsel appearing on behalf of the appellant, submitted that there was no legal evidence on record to connect the appellant herein with the commission of offence under sections 366 and 366-A of the Indian Penal Code. He submitted that the only role which is attributed by the prosecution to the present appellant is that he had taken the complainant to the house of accused No.1 - Shakila. He submitted that the prosecution has alleged that the appellant herein had informed accused No.1 that he has brought a new item. He submitted that this version of the appellant informing the accused No.1 of a new item being brought, has not been established by the prosecution. He submitted that, on the contrary, the defence has brought on record the contradiction in the FIR and submitted that in her cross-examination the complainant had, in fact, had attributed this sentence to accused No.1 - Shakila. Mr. Chitnis, the learned Senior Counsel, therefore, submitted that in the absence of this evidence, no case has been established against the present appellant for the offence punishable under sections 366 and 366-A. He further submitted that the story of the complainant that it took five days for her to reach Bombay from her native place itself 4
cannot be relied upon. He submitted that it is difficult to believe that a girl aged about 14 years would survive without food for a period of five days or that the Station Master would, out of compassion, give an amount of Rs 50/- to the girl. He, therefore, submitted that the entire case of the complainant was highly suspicious and for want of legal evidence, the appellant could not have been convicted. He submitted that the prosecution had not established that he was the same Salim which the complainant had referred to in her First Information Report. He submitted that the prosecution had not brought anything on record to establish that the appellant, whose name is Noman Abdul Khalid Sunshare, was the same person who was referred to by the complainant. Thirdly, he submitted that no reliance could be placed on the identification parade which was held by the Special Executive Magistrate. He submitted that, firstly, no independent panchas were examined by the prosecution to establish that the identification parade was properly held, as stated by the Special Executive Magistrate. He further submitted that, in the absence of panchas being examined, it had not been established by the prosecution that the complainant was kept in a different room and that the appellant herein was kept in a separate room. He submitted that since this fact had not been established by examining independent panch witnesses, the entire foundation on which the prosecution based its case had become weak and no reliance could be placed on the test identification parade. Fourthly, he submitted that neither the Special Executive Magistrate nor the complainant had stated in her evidence the place where the appellant - original accused No.4 was standing. He submitted that all these discrepancies, therefore did not lend any credence to the test identification parade which is held by the Special Executive Magistrate. He submitted that, therefore, the said evidence ought to 5
have been discarded by the Trial Court. He then submitted that the appellant - original accused No.4 could not have been charged for the offence punishable under sections 366 and 366-A of the Indian Penal Code. He submitted that though some of the ingredients of both these offences were overlapping each other, yet, the two offences were distinct and separate. He submitted that there was no evidence to indicate that the appellant had knowledge that the accused No.1 was running a brothel. He submitted that, even if the theory of prosecution is assumed to be correct without admitting it, even then, the only role attributed by the prosecution to the appellant - accused No.4 was of introducing the complainant to accused No.1. He submitted that there is nothing on record to indicate that the appellant herein had any knowledge about what transpired thereafter in the house of accused No.1. He submitted that, therefore, there was no legal evidence to suggest that the appellant had introduced or forced the complainant to have illicit intercourse or has forced her into prostitution. In support of the said submission, he relied upon the judgment of the Apex Court in the case of Ramesh vs. The State of Maharashtra, reported in AIR 1962 SC 1908. He, therefore, submitted that the prosecution had failed to establish the case against the present appellant beyond the reasonable doubt and, therefore, the appellant was liable to be acquitted of the offences with which he was charged.
6. The learned APP appearing on behalf of the State, on the other hand, invited my attention to the evidence of the complainant. He submitted that the Trial Court had recorded the demanour of the witness. He further submitted that there was no reason why the girl, who was 14 years of age, would make a false statement in the Court. 6
He submitted that the Trial Court had given cogent reasons and no case was made out for setting aside the finding of the Trial Court convicting the appellant herein.
7. It is not possible to accept the submissions made by the learned Senior Counsel appearing on behalf of the appellant - accused No.4. It is not seriously disputed by the appellant - accused No.4 that the girl was 14 years of age. There is no reason to disbelieve the statement of the complainant that she had left her house and it had taken five days for her to reach Bombay. It is possible that, not knowing where to go, she might have endlessly wandered from place to place in search of an employment and had finally managed to come to Bombay after five days. Merely because it had taken five days for her to reach Bombay, her evidence cannot be said to be unreliable. The demanour of the witness has been recorded by the Trial Court. The Trial Court has recorded that the girl wept after she told the Court that the Station Master was kind enough to give her Rs 50/- when she was found crying in the compartment. The demanour of the witness clearly discloses her state of mind and her anguish on remembering the incident which had taken place on that day. On remembering the trauma through which she had undergone and the kind gesture shown by the Station Master, the witness could not control her feelings and therefore wept in the open court. This conduct itself clearly shows that the witness was not lying but was telling the truth. The witness, thereafter, has stated in her evidence that when she was sitting on the platform and was crying, one person viz the appellant herein approached her and made inquiries with her and told her that his name was Salim and he promised her to give her employment. The appellant, thereafter, took her to accused No.1. The complainant, 7
thereafter, has stated that accused No.1 forced her into prostitution. From the said statement, it is clear that the appellant clearly had knowledge that that the accused No.1 was carrying on brothel in her house and had introduced the complainant to accused No.1 after going there on the pretext of giving her job of a maid servant. The complainant was a minor girl of 14 years of age. She was found in helpless condition on the railway station. The appellant had taken her to brothel where she was forced into prostitution racket. In my view, therefore, all the ingredients of sections 366 and 366-A have clearly been established by the prosecution. The second question is regarding the evidentiary value of the test identification parade which was held by the Special Executive Magistrate. It is no doubt true that, ordinarily, it is the duty of the prosecution to examine two independent witnesses to corroborate the statement of the Special Executive Magistrate who has held the test identification parade. However, merely because independent witnesses were not examined, that by itself cannot be a ground to discard the identification of the accused by the complainant in the test identification parade. The Special Executive Magistrate has, in his evidence, clearly stated that he has taken all precautions to ensure that proper test identification parade is held. The Special Executive Magistrate is an independent person and he cannot be said to be under the influence of police. Both, the complainant and the Special Executive Magistrate, have stated that the complainant had identified the appellant as Salim. It is no doubt true that the appellant's true name is Noman Abdul Khalid Sunshare. However, that by itself cannot be the ground to discard his identification by the complainant. It has to be noted that, according to the complainant, the appellant had introduced himself to the complainant as Salim. It is obvious, therefore, that the complainant 8
did not know the true name of the appellant. The complainant, however, has identified the appellant as the person who had taken her to the house of accused No.1 under the pretext of giving her job. The identity of the appellant, therefore, in my view, has been clearly established by the prosecution. The discrepancies, if any, are minor and cannot result in discarding the evidence of identification by the complainant of the appellant.
8. The said submission of the learned Senior Counsel appearing on behalf of the appellant that the test identification parade has not been properly held, cannot be accepted.
9. Mr. Chitnis, the learned Senior Counsel for the appellant, has then relied upon the judgment of the Supreme Court in the case of Ramesh (Supra). In the said case, the facts were that one Anusaya, who was 18 years of age, was a prostitute and used to entertain two or three customers every day. She was under the guardianship of one Patilba. On the date of the incident, Patilba accompanied the complainant to the theatre and, from there, she was taken to a room by the other accused. The High Court convicted Patilba for committing an offence of abetment under section 366-A. The Apex Court, however, acquitted Patilba from the offence of abetment under section 366-A. Mr. Chitnis, the learned Senior Counsel appearing on behalf of the appellant invited my attention to para 7 of the said judgment and submitted that the facts of the present case are similar to the facts of the said case. He submitted that the appellant had merely accompanied the complainant to the house of accused No.1. It was not established that he had either told accused No.1 that he had brought a new item or that accused No.1 had vice-versa asked 9
him. He submitted that, therefore, the ingredients of section 366-A were not attracted.
10. I am afraid, it is not possible to accept the above submission on the point of abetment made by the learned Senior Counsel appearing on behalf of the appellant. In my view, facts of the said case were entirely different. The complainant in the said case, admittedly, was a prostitute and she had gone to the theatre in search of customers. Patilba had merely accompanied her to the theatre. Under the said circumstances, the Apex Court came to the conclusion that there was no abetment on the part of Patilba. The Apex Court has observed in para 7 of its judgment in the case of Ramesh (supra) as under:-
"7. .......................But where a woman follows the profession of a prostitute, that is, she is accustomed to offer herself promiscuously for money to "customers",
and in following that profession she is
encouraged or assisted by someone, no
offence under S. 366 A is committed by
such person, for it cannot be said that the
person who assists a girl accustomed to
indulge in promiscuous intercourse for
money in carrying on her profession acts
with intent or knowledge that she will be
forced or seduced to illicit intercourse. Intention of the part of Patilba or knowledge
that Anusaya will be forced to subject
herself to illicit intercourse is ruled out by
10
the evidence......................."
The facts of the said case were entirely different. In the said case, Anusaya was a prostitute and she was almost 18 years old. But the complainant herein was a young girl of 14 years of age and was a destitute who had travelled from her native place, all alone, to a big City like Bombay and she, relying on the statement of the appellant, had accompanied him who had straightaway taken her to brothel where she was forced to be a prostitute. Thereafter, with great difficulty, after two months, she had managed to escape clutches of accused No.1 and, thereafter, she was sent to remand home. The ratio of the said case, therefore, would not apply to the facts of the present case.
11. The second question which is now required to be considered is the question of sentence. Mr. Chitnis, the learned Senior Counsel appearing on behalf of the appellant, submitted that the appellant was in jail for more than four years and if the period of remission, for which the appellant is entitled to, is taken into consideration, he had almost completed more than 3/4th of the sentence. He submitted that, therefore, the sentence imposed by the Trial Court may be reduced.
12. There is much substance in the submission made by Mr. Chitnis the learned Senior Counsel appearing on behalf of the appellant on the point of sentence. Taking into consideration, the peculiar facts and circumstances of the case and also taking into consideration the fact that the appellant had not taken any active role or had not committed forcible intercourse with the complainant and, further, was also not responsible in giving drug laced cold drink to the complainant 11
in the subsequent event which transpired in the house of accused No.1, the sentence imposed by the Trial Court is liable to be reduced.
13. Accordingly the following order is passed:-
O R D E R
In the result, the appeal is partly allowed. The conviction imposed by the Trial Court is confirmed. The appellant/accused No.4, however, is sentenced to undergo rigorous imprisonment for a period for which he had already undergone. The appellant was arrested on 21/8/2004 and he is in jail since then. He has already undergone 4 years and one month in jail. The appellant, therefore, be released forthwith on the sentence which he has already undergone. The appellant/accused No.4, however, shall pay the fine if he has not paid within two days. The Police shall find the address of the complainant and send the fine amount to her as directed by the Trial Court which is Rs 3000/-.
The learned APP has informed me that after the complainant was rescued from the clutches of accused No.1, she was kept in remand home initially at Dongri from 22/8/2002 and, thereafter, she was kept in Special Home i.e. Deonar Child Rehabilitation Centre from 24/9/2008 and, thereafter, on 27/2/2003 she was shifted to St. Cathrine Home, Veera Desai Road, Andheri (West) Mumbai and after she attained the age of 18 years in the year 2006, her custody was handed over to her mother who has taken her to her native place.
Appeal accordingly is disposed of in the aforesaid terms. 12
Office is directed to send the writ forthwith.
(V.M. KANADE, J.)
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