NOMAN ABDUL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(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.) 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 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 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, 1962 AIR(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.