1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1162 OF 2005 Baban Sakharam Davande Aged 37 years, R/o. Ramdeo Park, Mira Road (E), Dist. Thane ...Appellant. v. The State of Maharashtra Through Mira Road Police Station ...Respondents. Mr. S.V.Marwadi, adv. For the Appellant. Smt. A.T.Javeri, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : 4th December , 2009 ORAL JUDGMENT: 1 In this appeal, the accused has challenged his conviction for the offence punshable under section 376 of the I.P.C. and sentence to undergo R.I. for ten years and to pay fine of Rs.1,000/- and in default to pay fine, to undergo further R.I. for three months as per the judgment and order dated 28.11.2005 passed by the learned IVth Additional Sessions Judge, Thane in Sessions Case No.386/04. 2 Prosecution case in brief is that, prosecutrix Radha, a girl aged about 10 years was living with her mother Uma and grandfather, 2 P.W.2 Mansaram. They were living in a room at Ramdev Park Society, Mira Road (East), District: Thane. Her grandfather P.W.2 Mansaram used to work as watchman in the same society while her mother Uma also used to go to work during a day time. On 16.7.2004 in the evening at about 6.00 p.m. prosecutrix was sitting outside her house. At that time accused, who was also residing in the same locality on the first floor, asked her to come alongwith him and he would give biscuits to her. He caught her hand and took her to his house. After taking her into the room, he closed the door. Girl asked him for biscuits. At that time, he removed her clothes and also his own. He made her lie down. Thereafter, he kissed and penetrated his penis in her private part. Because of the pain, she cried and the accused immediately left her and, thereafter, girl ran away to her house. After arrival of her mother, she informed her about the incident. On the next day Uma took her daughter to the house of the accused. Some other ladies in the locality also accompanied them. Girl pointed out the accused as a person, who had committed rape on her. After that Uma took the girl to the Mira Road Police Station and lodged a report. Police referred the girl to the Bhagwati Hospital where she was admitted as indoor patient on 18.7.2004 and was discharged from the hospital on 20.7.2004. She was examined by the Medical Officer. Police 3 registered crime no.226/04 under section 376 of the I.P.C. on 18.7.2004 on the basis of report lodged by Uma. On the same date, police arrested accused under the panchanama. Spot panchanma was also prepared at the house of the accused and some of his clothes and the chadar (bedsheet) were seized from the house. Under the same panchanama, pyjama of the girl was seized from her house. Blood samples , samples of swab and clothes were referred to C.A. and the report was received after investigation. Charge-sheet was filed after the case was committed to the Court of Sessions. Charge under Section 376 of the I.P.C. was framed against the accused. He pleaded not guilty. According to him, he was falsely implicated because people of the locality used to ask him for the contributions for certain programmes but he used to refuse contribution as well as to attend functions, therefore, some quarrel had also taken place. According to him, due to this, witnesses had falsely deposed against him. 3 Prosecution examined in all eight witnesses. It may be noted that the proseuctrix Radha had died about one month before the trial commenced in 2005 and, therefore, her evidence could not be recorded before the Court. Prosecution totally relied upon what the girl had told to her mother and the ladies of the locality to prove the offence. Medical 4 Officer Dr.Reshma, who had examined her was also not available and, therefore, another Doctor P.W.8 Dr. Sapana Desai, who was her Assistant, was examined before the Court only to prove handwriting and the signature of Dr.Reshma. 4 P.W.1 Uma is the mother of the victim girl. P.W.2 Mansaram is the grandfather, P.W.3 Mansiha and P.W.6 Raksha are the two ladies of the same locality who had learnt about this incident from the girl. As per the evidence of P.W.1 Uma, she used to go to her service during the day time. From her evidence, it appears that she came at 7.00 p.m. on the day of the incident. When she returned, she found her daughter Radha crying. On enquiry, she told her mother that Davande uncle, i.e. the accused had taken her to his house on the first floor of the building and, thereafter, closed the door. He had removed her clothes and committed rape. She also told that due to pain she shouted and then accused left her and she came out. She pointed out the house of the accused to her mother but at that time accused was not present and the house was locked . On the next day, she pointed out the accused to her mother and the accused confirmed that his name is Baban Davande. 5 P.W.2 Mansaram deposed that on the relevant day at about 6.00 p.m. he had returned home. At that time, girl Radha was not present. 5 After P.W.1 Uma came home, she told her father-in-law Mansaram about the incident. He also deposed that when he enquired Radha, she narrated the incident and pointed out room no.103/B-9 of spot of incident. At that time nobody was present in the house. P.W.3 Manisha and P.W.6 Raksha also supported the evidence of these witnesses to the extent that they had been to the house of the accused at one occasion but he was not present. On the next day again, they went to the house of the accused. At that time accused was present and Radha pointed out the accused as the person, who had committed rape on her. 6 It may be noted that there are discrepancies in the evidence of witnesses about the date of incident, time at which girl informed her mother or grandfather and also about the dates and times on which they had been to the house of the accused on first occasion and again on second occasion. While according to the prosecution story and the F.I.R Exhibit 8 lodged by P.W.1 Uma, incident had occurred on 16.7.2004 at about 6.00 p.m. or so, according to P.W.2 Mansaram, incident had occurred on 15th and on 16th evening Radha had pointed out the accused as culprit. There is also discrepancy about the time at which Uma and Mansaram had come to home on the date of the incident. As per her report on 17.7.2004 at about 1.00 a.m. in the night she had come back 6 from her work and at that time, she found her daughter weeping and on enquiry she told her about the said incident and according to her, incident had occurred on 16.7.2004 at about 6 p.m. However, during the evidence before the Court, she deposed that the time was not correctly recorded in the F.I.R. and infact, she had come back at 7.00 p.m. Even though the report, exhibit 8 appears to have been recorded and the offence was registered on 18.7.2004 at about 1.30 a.m. it appears that girl was actually taken to the police station on 17.7.2004 itself and possibly immediately after the accused was pointed out by the girl. Record reveals that the PSO at Mira Road Police Station had referred the girl to Bhagwati Hosital by the letter bearing outward no.5276/04 dated 17.7.2004 and OPD Card No.26301 of that hospital reveals that Radha was brought to the hospital on 17.7.2004 and after recording the history, Casualty Medical Officer on 17.7.2004 itself advised to admit the girl in ward no.3. The medical report reveals that she was actually examined on 18.7.2004. It appears that after the girl was admitted in that hospital for medical examination and treatment, her mother must have lodged written report or the offence might have been registered after the girl was admitted in the hospital. 7 Dr. Reshma, who was the Registrar at the Bhagwati Hospital 7 was the said Medical Officer on duty on 18.7.2004 . Dr.Reshma could not be examined because according to the prosecution, her whereabouts were not known after she had left the job. P.W.8 Dr.Sapana Desai deposed that during that period she was attached to Bhagwati hospital as junior house officer and was working under Dr. Reshma and, therefore, she was knowing her handwriting and signature. Dr. Sapana Desai identified handwriting and signature of Dr.Reshma on the indoor patient card no.11743 pertaining to prosecutrix Radha K. Parihar and medico legal papers pertaining to Radha were only marked article B during the evidence of Dr.Sapana Desai. Infact, in view of the provisions of Section 32(2) of the Evidence Act, memorandum recorded by Dr.Rashmi on the indoor medical papers of the girl about her examination and condition were prepared by her in the discharge of her professional duty and as she could not be found and her attendance could not be procured before the Court, said medical papers, after proof of her handwriting and signature, could have been admitted in the evidence and exhibited. It appears that Dr. Sapana Desai was cross-examined on the basis of the contents of the medical report prepared by Dr.Reshma. In view of the notings on MLC papers in the handwriting of Dr.Reshma pertaining to medical examination and condition of the girl, it is clear that no injury 8 was found on any part of the body of the girl. She had also noted that ‘Hymen not intact, No bleeding’. Dr. Sapana in the cross-examination admitted that there is difference between ‘Hymen not intact’ and ‘Hymen rupture’ . Dr. Sapana admitted that she referred to Modi’s Jurisprudence. However, in the evidence of Dr.Sapana, the learned trial Court did not note down which portion from page number of Modi’s Jurisprudence was referred to by Dr.Sapana Desai. As the books like Modi’s Jurisprudence are revised from time to time, it is always advisable to mention the exact page or portion referred to and also the edition number of the book so that it becomes convenient to find out which particular portion from the book was used by the Medical Officer or expert witness while giving the evidence. In the case of small girl aged about 10 years , hymen is deep inside and it is possible that hymen may not be ruptured even though there is some penetration. For completion of offence of rape under section 375 of the I.P.C. penetration is sufficient and it is now well settled that even slightest penetration would be sufficient to prove the offence of rape. There is possibility that when a small girl aged about 10 years is assaulted for sex by a man aged about 36-37 years as the accused was, it may not be possible to have complete penetration and, therefore, hymen may be left intact and 9 no sign of rupture may be found. However, in such cases, also there may be some injury marks on the private part of the girl. In Aman Kumar v. State of Haryana (2004) 4 SCC 379, B, the Supreme Court observed as follows in paragraph 7: “7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little................................................. ......... The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These viz. labia majora, are the first to be encountered by the male organ. They are subjected 10 to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the female for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under section 376 IPC.” 8 In the present case as Dr.Reshma, who had examined the victim girl was not available, she could not be examined and cross- examined to find out what she meant by ‘Hymen not intact’ . This gets importance when Dr. Sapana Desai admitted before the Court that ‘Hymen not intact’ is different from ‘Hymen torn’ . In view of this, it is doubtful whether hymen was infact ruptured or injured in that incident. In such case, it becomes necessary to find out what other evidence is available to prove penetration. In view of the observations made in Aman Kumar , it would be necessary to find out any injuries on labia majora . However, in the present case, as noted above, no injury was found on her body. Medical papers did not reveal any redness, abrasion or laceration in or around private parts of the girl. Not only this, blood 11 was also not seen. Thus, medical evidence does not provide any corroboration to the allegation of rape. 9 P.W.4 Ganesh Sawant, who was panch witness and P.W.7 PSI Valmiki Patil, who investigated the case deposed that they went to the spot of the incident, which was pointed out by the accused. Accused pointed out a chatai (Mattress), lenga (Payjama), Chadar and blue coloured underwear. These articles were seized and sealed at the house of the accused under the panchanama Exhibit 13. In view of this, it appears that all these clothes were seized from the house of the accused. However, panchanama Ex.13 reveals that Investigating Officer and the panch witness first went to the house of the accused, which was shown by the P.W.2, Mansaram. Accused was present there and after making inspection of the said house, police seized the chadar, blue coloured underwear and the banyan. These clothes were wrapped and sealed with label bearing signatures of the panchas at the spot. After that seizure, the police and the panchas went to the house of the P.W.2 Mansaram and from that house, one green coloured payjama was seized and sealed. Incidentally, neither the Investigating Officer nor the panch witness deposed before the Court that payjama was seized from the house of P.W. 2 Mansaram or the victim. P.W.1 Uma deposed in the examination-in- 12 chief that the pyjama or nickor article 3 before the Court was of her daughter and it was seized by the police. Oral evidence of the panch witness and the Investigating Officer is inconsistent with the contents of the seizure panchanama, Exhibit 13. Infact, in the spot panchanama prepared at the house of the accused, whatever articles were seized from that house should have been shown. There was no justification to record seizure of any clothes or any other articles from the house of the victim in the spot panchanama prepared at the house of the accused. Procedure adopted by the Investigating Officer, if it is rightly depicted in the panchanama, was certainly incorrect. He should have prepared separate seizure panchanama of pyjama of the girl at her house. All these articles alongwith other material were referred to C.A. by the I.O. alongwith covering letter, Exhibit 21 dated 18.7.2004/18.8.2004. It indicates that even though the said covering letter was prepared on 18.7.2004 , it must have been actually sent on 18.8.2004. C.A.Report, Exhibit 22 reveals that said four articles were given Exhibits 1,2,3,and 4. On the underwear Exhibit 1 blood mixed semen stains, on Banyan Exhibit 2 blood stains, on the chadar Exhibit 3 stains of semen and on Pyjama Exhibit 4 blood and semen stains were detected. Blood and semen was human but the grouping was inconclusive. In view of this, it 13 appears that not only blood and semen was found on the underwear and chadar at the house of the accused but it was also found on the pyjama, which is claimed to be of the girl. However, it needs to be noted that the clothes were lying in the police station for about one month before they were sent to the C.A. No explanation has been given about the delay. Further the panchanama does not show that any seal was put on the articles. Only labels bearing signatures of the panchas were put and again there is dispute as to whether payjama was seized at the house of the accused as deposed by the witnesses or at the house of the girl as indicated by the panchanama. Therefore, it would not be safe to place implicit reliance on the C.A.Reports. 10 There is nothing on record to show that any of the prosecution witnesses had any reason to falsely implicate the accused. Accused had taken a plea that witnesses had falsely deposed against him because they used to ask him for the contribution for certain functions which he had refused and, therefore, he had quarrel with some witnesses . It is impossible to believe that even if accused had refused to make any contribution and had some quarrel with some members of the society, witnesses and particularly, mother and grandfather of the minor girl would go to an extent of making a charge of rape falsely and thereby 14 to humiliate their own girl at such a tender age. Therefore, it is impossible to accept the contention of the accused. At the same time, it needs to be remembered that the girl was not available to give evidence before the Court and, therefore, the accused did not have the benefit of cross-examination of the girl. She was sole witness of the whole incident and she was not available before the Court. Evidence of other witnesses is based on what she had told them. In view of these circumstances and in view of the medical report indicating that no mark of injury on her person and particularly in or around her private parts was seen, it is difficult to hold that prosecution has proved beyond reasonable doubt that penetration had taken place. In view of this, it cannot be held that accused had committed rape but possibility of an attempt to commit rape cannot be ruled out. These circumstances were not considered by the trial Court. Taking into consideration all these facts and circumstances, in my opinion, conviction for the offence punishable under Section 376 is liable to be converted into Section 376 r/w Section 511 of the I.P.C. 11 The learned counsel for the accused as well as the learned APP pointed out that the accused was taken in custody on 18.7.2004 and was granted bail on 30.8.2004 and again on 28.11.05, when the learned trial Court passed judgment and convicted him, he was taken in custody 15 and since then he continues to be in jail. In view of this, it appears that he has been actually in jail for a period of four years and 1 ½ months till this date. Infact, under the provisions of jail rules, he would also be entitled to some remission and if that is counted, it may be stated that he has actually undergone sentence of more than 5 years including remission. In my considered opinion, for an offence of an attempt to commit rape, this sentence is sufficient. 12 For the aforesaid reasons, appeal is partly allowed. Conviction and the sentence for the offence punishable under Section 376 of the Indian Penal Code are hereby set aside. However, the accused is convicted for the offence punishable under Section 376 read with Section 511 of the I.P.C. and is sentenced to imprisonment which he has already undergone from 18.7.2004 to 30.8.2004 and again from 28.11.2005 till this date. Therefore, if the accused is not required in any other case, he be set at liberty forthwith. (J.H. BHATIA,J.)