SHAIKH MAHEMOOD SK. OSMAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) APPELLANT -original Accused No.1 Shaikh Mahemood has filed this Appeal against the Judgment of conviction and order passed by IVth Additional Sessions Judge, Aurangabad in Sessions Case No.35 of 1997. Vide the Judgment dated 29th February 2000, the Appellant -Accused No.1 (hereinafter referred as "Accused") has been convicted to suffer rigorous imprisonment for ten years under Section 366 of the Indian Penal Code, 1860 (for short "I.P.C."). He has also been convicted under Section 365 and 376 of I.P.C. but no separate sentence has been passed for those offences. Along with Appellant -Accused, one Shaikh Amin @ Shaikh Raju (Accused No.2) and Bibibegum w/o Yusuf Pathan (Accused No.3) were also prosecuted but those Accused Nos. 2 and 3 have been acquitted of the charges which were levelled against them.

(2.) IN brief the case of prosecution is: - Accused Shaikh Mahemood and the Accused No.2 Shaikh Raju were managing a brick kiln at Kagzipura. Complainant Parasram was residing at Kesapuri Tanda, TqKhultabad, Dist -Aurangabad and was working as a labourer. His 13 year old daughter (referred in this Judgment as victim "M") along with his brother Laxman used to work on brick kiln which was owned by the brother of Accused Shaikh Mahemood and which was being managed by Shaikh Mahemood. In the night between 10/04/1996 -11/04/1996 victim M went missing, after she had gone to answer call of nature. The complainant and his brother Laxman searched for her. Complainant Parasram filed missing report No.12 of 1996 on 13th April, 1996. Laxman, brother of complainant 23 times had gone to brick kiln to inform that they will not be able to report for work but it was noticed that even Accused Mahemood and Accused No.2 Shaikh Raju were also missing. Thus out of suspicion, first information report dated 19th April, 1996 at Crime No.72 of 1996 at Police Station Chhavni, Aurangabad, which was filed by the complainant Parasram claiming that Accused Mahemood and Raju must have taken away victim M for immoral purpose. Police searched for the victim M. P.S.I. Chavan came to know on 25th April, 1996 that the victim M was at the house of Bibibegum Yusuf Pathan (Accused No.3) at Kaisar colony. He went there with staff and the Accused Mahemood along with Shaikh Raju and Bibibegum (Accused Nos.2 and

(3.) I have heard learned counsel for the Appellant -Accused and learned A.P.P. for the State. It has been argued by the learned counsel for Appellant -Accused that in the present matter ossification test done on the victim M showed that her age was between 17 to 19 years at the time of incident. Thus, according to learned counsel the victim M could even be of 19 years of age and thus, being more than 18 years of age, she was major at the time of incident. According to the learned counsel, if the case of prosecution and evidence is considered, it is apparent that victim M had voluntarily gone with the Accused and they had even performed registered marriage at Bandra and also before the Kazi. The victim had come along with the Accused by her own will and they had even gone to Khamgaon and she did not at any time raise alarm or try to escape or inform anybody which would indicate that she was forcibly taken or was kidnapped or raped. According to the learned counsel, the victim was major and by her own will had accompanied the Accused as they were having a love affair and wanted to marry. In the present matter, victim was not examined by the prosecution, as after about 8 -10 months of the incident when the victim was at the place of her parents, she committed suicide. Thus, her evidence was not available. The learned counsel referred to the marriage certificate on record at Exhibit 33 and Sayanama Exhibit 34 relating to marriage in front of Kazi in support of his arguments. The submission is that before the trial Court there was virtually no legal material to hold that the Accused had kidnapped and forcibly taken the victim along with him or that against her wish he had forcibly committed intercourse. It was argued that there is no evidence to hold that the Accused committed rape on the victim. The trial Court wrongly read the statement recorded before the Special Judicial Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (for short ''Cr. P.C. '') as if it was substantive evidence and wrongly relied on hearsay evidence given by the complainant and his brother as well as the P.S.I. regarding what the victim allegedly told them. It is argued that the Sessions Judge relied on the statement under Section 164 of Cr. P.C. as if it was admissible under Section 32 of the Indian Evidence Act, 1872 (for short ''Evidence Act '') and as if the same was dying declaration, which was not correct. The counsel submitted that if the evidence of the complainant is perused, it was clear that the victim was a major and at the time of investigation, certificate was got prepared from Gram Panchayat to show that the victim was a minor. According to the learned counsel for Appellant, the present matter is a case of no evidence and the Accused should be acquitted.