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2008 Supreme(Bom) 1413
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.M. KANADE, J.
Noman Abdul Khalid Sunshare – Appellant.
Versus
State of Maharashtra and another – Respondents.
CRIMINAL APPEAL NO. 1051 OF 2004
Decided on : 30th September, 2008
Mr. S.R. Chitnis, Senior Counsel i/b D. Mishra & S.V. Marwadi for the appellant.
Mr. Rajesh More, APP for the State.
Headnote:Indian Penal Code, 1860 - Sections 366 and 366-A - Conviction under - Prosecution of minor girl - Complainant, minor girl aged 14 years at relevant time - Found in helpless condition at Railway Station - Her evidence showing that accused took her to brothel and forced her into prostitution racket - All ingredients of Section 366 and 366-A clearly established by prosecution. - 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, therefore, took her to accused No. 1. The complainant, 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 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 main 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.
Indian Penal Code, 1860 - Sections 366 and 366-A - Evidence Act, 1872, Section 3 - Appeal against conviction - Conviction for offence of kidnapping and prosecution of minor girl - Held - Appellant had knowledge of brothel - Carried on brothel under pretext of job, where she was forced to prostitution - All ingredients of Sections 366 and 366-A established.
Indian Penal Code, 1860 - Sections 366 and 366-A - Evidence Act, 1872, Sections 3 and 32 - Wrong name told by complainant in identification parade - Challenged, as ground for discarding evidence - Held - Merely this ground cannot be considered to discard the witness - As the appellant had introduced himself to complainant as Salim. - 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 Kahlid 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 complaint, the appellant had introduced himself to the complainant as Salim. It is obvious, therefore that the complainant did not know the true name of the appellant.
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 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 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
