Cri. Appeal No. 105/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 105 OF 1998 Aminuraheman Khallil Raheman Kazi, Age Major, Occu. Service, R/o. Ahmednagar, Tq. & Dist. Ahmednagar. .....Appellant. Versus The State of Maharashtra ....Respondent. Mr. V.S. Bedre, Advocate for appellant. Mr. S.G. Nandedkar, APP for respondent/ State. CORAM : T. V. NALAWADE, J. DATED : 6th July, 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 108/1997 which was pending in Court of Sessions, Ahmednagar. By the decision dated 30.3.1998 Additional Sessions Judge, Ahmednagar has convicted and sentenced the appellant for offences punishable under sections 452 and 354 of the Indian Penal Code. 2. In short, the facts leading to the institution of the appeal can Cri. Appeal No. 105/1998 2 be stated as follows :- The prosecutrix is the wife of one Kalyansing, who was working on the post of Naik in the Military Hospital, Ahmednagar. He was occupying a staff quarter situated in a building. The accused was living in another building in the vicinity of the building where Kalyansingh was living. Accused was also in employment of the same hospital. Kalyansingh was living there with the prosecutrix, his three minor issues, who were aged 6 years, 4 years and 2 years. 3. Kalyansingh proceeded on leave on 6th November 1994 and he went to native place which is in Rajastan. The prosecutrix and her three minor issues were present in the staff quarter on 8.11.1994 when incident took place. After 8 pm the accused knocked the door of the quarter of Kalyansingh and when the prosecutrix opened the door, he entered the quarter. There were two rooms to the residential quarter. The accused was holding a liquor bottle and he was already drunk. Prosecutrix told the accused that her husband was not at home and requested to leave her house. In spite of that the accused entered the inner room. There was a cot. The accused then went close to the prosecutrix by saying that there was something on her legs and then he held her. By using force and by closing the mouth of the prosecutrix, the Cri. Appeal No. 105/1998 3 accused committed rape on the prosecutrix. The prosecutrix could scream only in the beginning. One person working in the canteen was occupying a room on the same floor in that building, but nobody went to residential quarter of Kalyansingh at the time of incident. After completing the act, the accused gave threat to the prosecutrix that she should not disclose the incident to anybody and then he left the place of the prosecutrix. 4. Due to aforesaid incident, prosecutrix got mentally disturbed. A lady living in the vicinity noticed on the next day morning that the prosecutrix was mentally disturbed and she was not taking care of her kids. This lady, with the help of others shifted the prosecutrix to military hospital. Treatment was given to the prosecutrix in the hospital and then she disclosed about the incident to the staff of the hospital and to Superior Officer of Kalyansingh. Message was sent to Kalyansingh and he was called back. After arrival of the husband, the prosecutrix disclosed the incident to him also. The department of the accused started inquiry on the basis of allegations made by the prosecutrix and the inquiry was continued for many months. 5. When report of inquiry was received by the office of the accused, a direction was given to Colonel Malik, the first Cri. Appeal No. 105/1998 4 informant, to give report. On the basis of report given by Colonel Malik, crime at Cr. No. 19/1997 came to be registered at Bhingar Camp Police Station for offences punishable under sections 376 and 452 of the Indian Penal Code. The Police Officer who made investigation recorded statement of prosecutrix, her husband and some persons working in military hospital. A copy of inquiry report was also supplied to police. Chargesheet was filed before the Judicial Magistrate, First Class, Ahmednagar and he committed the case to the Court of Sessions. Charge was framed for aforesaid offences. The accused pleaded not guilty. The prosecution examined 8 witnesses for proving the offences. The statement of accused came to be recorded under section 313 of Criminal Procedure Code. The accused took the defence of total denial. The accused filed his written statement also under section 313 of Cr. P. C. The Trial Court has convicted the appellant for offence under section 452 of IPC and he is sentenced to suffer RI for four years. He is also convicted for offences punishable under section 354 of IPC and for the offence, he is sentenced to suffer RI for two years and to pay fine. 6. The record shows that the appellant stopped turning up and his advocate also filed no instruction purshis. No report was received on the process like warrant sent against the accused. The Cri. Appeal No. 105/1998 5 advocate who was representating the appellant in the past as a private counsel was appointed as amicus curie at the cost of Government and he argued the matter for the appellant. APP is also heard. 7. Prosecution has relied upon both direct and circumstantial evidence. The circumstantial evidence is in the nature of disclosures made to staff of the hospital and to the husband by the prosecutrix. There is also circumstance that departmental action was taken against the appellant on the basis of the complaint made by the prosecutrix. Original record was however not brought in the Court and it appears that the record available was not properly confronted to the witnesses. Much was argued in respect of the delay caused in registration of the crime. This delay is explained by the evidence of PW 1 and record which is produced by first informant. The record shows that inquiry was going on and it was done by two different officers one after another and only after receiving direction of the office, the report was given against the appellant to police. The evidence given by prosecution witness Anita (PW 4) shows that on the next day of incident, prosecutrix was admitted in the hospital and there was disclosure made by the prosecutrix about the incident. There is record in respect of examination of the prosecutrix on 9.11.1994 and in view of this Cri. Appeal No. 105/1998 6 circumstance, not much can be made out in favour of the accused due to the delay caused in giving report to the police. 8. The prosecutrix (PW 7) has given evidence that on that day her husband was out of station and she was in the residential quarter with her three issues. It is brought on the record that the age of eldest issue was 6 years at the relevant time. She has deposed that her issues were sleeping in the house at the relevant time. She has given evidence that accused came to her quarter at about 8 pm and there was no electricity at that time. She has deposed that when she opened the door, the accused straight way entered the room and sat on the chair. She has deposed that she noticed that the accused had already taken liquor as there was smell of liquor and he was also carrying bottle of liquor. She has deposed that she asked the accused to leave the house by saying that her husband was not at home, but the accused did not leave. She has deposed that the accused then came closer to her by saying that there was something on her leg and then he held her. Prosecutrix has deposed that first she raised a scream, but the accused gaged her mouth and virtually throttled her to prevent her from shouting. The prosecutrix has given evidence that the accused then committed rape on her and after rape, he gave threat not to disclose the incident to anybody and he left her quarter. Cri. Appeal No. 105/1998 7 9. The prosecutrix has given evidence that due to the aforesaid incident she was got disturbed mentally. She has deposed that on the next morning she went to Subhedar, but she could not disclose anything and she returned to the quarter. She has deposed that the wife of cook Suresh noticed her condition and then she was shifted to hospital. Prosecutrix has deposed that in the hospital she narrated the incident to nurse Anita (PW 4). She has deposed that when her husband returned after few days, she disclosed the incident to her husband also. She has deposed that on the same floor, where her quarter was situated, a person working in a canteen was occupying a room, but nobody turned up when she first raised the scream. It is only suggested to the prosecutrix for the accused that due to the incident of 4th January in which her husband had given beating to accused, the accused is falsely implicated in this case. The suggestion is denied. The other evidence shows that the incident of assault on the accused took place after the aforesaid incident and so there is no force in the defence taken by the accused. 10. Captain Anita (PW 4) has given evidence that on 9.11.1994 after 1 pm she examined prosecutrix in military hospital and at that time the prosecutrix disclosed that the accused had molested Cri. Appeal No. 105/1998 8 her. It appears that due to this part of the evidence, the accused is not convicted for offences punishable under section 376 of IPC. However, her evidence corroborates the version of prosecutrix that accused had entered her place and the offence was committed. 11. Kalyansingh (PW 6), the husband of the prosecutrix, has given evidence that when he returned from native place on 18th November, he learnt from the prosecutrix that there was such an incident. He has given evidence that he approached Superior Officer and he was informed that his office was taking action against the accused. In the cross examination, it is suggested to PW 6 that on 3rd January 1995 he had given severe beating to the accused and department had taken action against PW 6. Kalyansingh (PW 6) has admitted this incident and also the fact that action was taken by department against him. However, it needs to be kept in mind that this incident took place only after the incident of rape. 12. Suggestions are given to aforesaid witnesses for defence that the prosecutrix was mentally disturbed from prior to 8th November 1994. These suggestions are denied. The medical record shows that the prosecutrix was first time taken to military hospital on 9th November 1994. There is also circumstance that some Cri. Appeal No. 105/1998 9 witnesses have admitted that the prosecutrix was in mentally disturbed condition for 2 to 3 days. However, this part of evidence has the base of so called disclosure made by the prosecutrix to the witnesses. It needs to be kept in mind that there were three kids in the house and they were of the age of 6 years, 4 years and 2 years and only when the neighbourer realized that prosecutrix is not taking care of kids, the steps were taken to shift prosecutrix to hospital. Kalyansingh would not have left the place, if the prosecutrix was already mentally disturbed or she had such history. No record at all is produced and no witnesses has admitted that there was such history. In view of these circumstances, it does not look probable that the prosecutrix was already mentally disturbed and in that condition she made complaint against the accused to the Superior Officer. 13. Due to the delay caused in giving of the report, there was no question of examination of the prosecutrix medically. However, Anita (PW 4) has also not given evidence that there were some injuries on the person of the prosecutrix. She examined her on the next day of incident. In view of these circumstances and in view of the evidence of Anita (PW 4), the Trial Court has convicted the accused for offence punishable under section 354 of IPC and not for the offence punishable under section 376 of IPC. The aforesaid Cri. Appeal No. 105/1998 10 evidence shows that there was no reason for prosecutrix or her husband to falsely implicate the accused in such a case. Indian lady, who is married, who is having 3 issues and who is living with her husband, generally does not make false allegations and get involved in such a case. Thus, the aforesaid prosecution evidence is sufficient to prove the offences punishable under sections 354 and 452 of IPC. The Trial Court has not committed any error in holding the accused guilty of both the offences. 14. It was submitted for the appellant that the sentence of imprisonment of four years is harsh. There is some force in this submission. Considering the aforesaid circumstances and the fact that the accused probably lost his job due to complaint made against him in the department, the punishment can be reduced. This Court holds that sentencing accused with imprisonment for two years would be just and sufficient. In view of the specific provisions, fine, however, needs to be imposed for both the offences. So the judgment and order of the Trial Court needs to be modified accordingly. Hence, the order. 1. Appeal is partly allowed. The judgment and order of Trial Court is modified as under :- (a) The accused stands convicted for offence punishable under Cri. Appeal No. 105/1998 11 section 452 of the Indian Penal Code and he is sentenced to suffer RI for two year and to pay fine of Rs. 1,000/- (Rupees one thousand), in default of payment of fine, he is to further undergo RI for two months. (b) The accused stands convicted for offence punishable under section 354 of the Indian Penal Code and he is sentenced to suffer RI for one year and to pay fine of Rs. 5,000/- (Rupees five thousand), in default of payment of fine, he is to further undergo RI for six months. (c) The entire fine amount, if recovered, is to be given to the prosecutrix as compensation. (d) Both the substantive sentences are to run concurrently. (e) The accused is entitled to get set off in respect of the period for which he was behind bars i.e. from 9.4.1997 to 6.7.1998 during trial and after the decision given by the Trial Court. [ T. V. NALAWADE, J.] ssc/cria105.98