IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.433 OF 2001 Popatlal Jethabhai Shah, age 55 years, residing at Marwadi Chawl, Siddharth Nagar, Kalyan, Dist.Thane. ...Appellant (Yerawada Central Prison, Pune) (Ori.Accd.) Versus 1.State of Maharashtra (Through Kolshewadi Police Station, Kalyan). 2.Sunita Vijay Ambekar, C/o.Vijay Ambekar, Parshuram Wadi, Jimmy Baug, ...Respondents Kalyan, Dist.Thane (No.2-complainant) ...... Mr.Prakash Naik for Appellant. Mr.Y.S.Shinde, A.P.P. for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. SEPTEMBER 21, 2006. SEPTEMBER 21, 2006. SEPTEMBER 21, 2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This Appeal by the accused is directed against the Judgment and Order dated May 30, 2001 : 2 : passed by the 2nd Additional Sessions Judge, Kalyan in Sessions Case No.1307 of 1996. The Appellant/accused has been convicted for having committed offence punishable under Section 376(2)(f) of the Indian Penal Code, 1860 (hereinafter referred to as ‘the Code’) and ordered to undergo sentence of rigorous imprisonment for ten years and to pay fine of Rs.5,000/- (Rupees Five Thousand Only), in default, to suffer further rigorous imprisonment for one year. 2. In short, the prosecution case is that Sunita Vijay Ambekar (PW 2) (hereinafter referred to as ‘the prosecutrix’), who was at the relevant time aged 10 years, after coming from her school on 16th November 1995 at around 12.30 p.m. happened to visit the grocery shop of the Appellant, which was near her house. The Appellant called her inside the shop. After the prosecutrix entered the shop, Appellant/accused closed the front door of the shop. The Appellant had residential premises attached to the shop on the rear side. It is stated that after closing the front door of the shop, the Appellant removed the underwear of the : 3 : prosecutrix. He then removed the chain of his pant and took out his private part. He made the prosecutrix to bend. The accused then stood behind the prosecutrix and lifted the prosecutrix up to his waist by holding the prosecutrix by stomach with both his hands. After lifting her up to his waist height, it is alleged that the accused then placed his penis on the private part of the prosecutrix and then started moving the prosecutrix back and forth and criss-cross, due to which the prosecutrix experienced pain at her private part. As a result, the prosecutrix started shouting, whereupon, the accused put the prosecutrix back on the floor and pressed her mouth. At that time, blood started oozing out from the private part of the prosecutrix. The accused immediately gave paper to the prosecutrix and told her to clean the blood stains. The accused also asked the prosecutrix to wash her underwear, which was bloodstained. As the bleeding did not stop, the accused poured pepsicola on the private part of the prosecutrix. Thereafter, accused gave Rs.3/- (Rupees Three) and toffee to the prosecutrix and threatened her not to disclose the incident to : 4 : anybody and go home and sleep. It is stated that prosecutrix, on reaching home, disclosed the incident to her sister and maternal uncle. Her maternal uncle Sopanrao Marotrao Mahangade (PW 9) immediately took the prosecutrix for medical examination to Dr.Shyam Trimbak Dhonde (PW 7). However, on disclosing that it was a case of rape, the said doctor PW 7 declined to treat the girl and asked her maternal uncle to inform the police as it was a medicolegal case. The maternal uncle (PW 9) along with the prosecutrix returned home and waited for the mother of the prosecutrix who had gone to the market as she was engaged in business of sale of vegetables. The father of the prosecutrix was away from home, as he was serving as peon in New High School at Kalyan. It is stated that the mother Pushpa Vijay Ambekar (PW 1) returned home in the evening at around 7.00 p.m. When the mother returned home, prosecutrix went in the arms of her mother and started weeping. Thereafter, she narrated the incident to her mother. The mother accordingly proceeded to the Police Station and registered the complaint (Exhibit 16). The entire episode as unfolded and disclosed by the : 5 : prosecutrix was given by the mother to the Police which was reduced into writing. After the complaint was registered, the Police Officer commenced investigation. The prosecutrix was referred to hospital for examination on the same night i.e. night between 16th and 17th November 1995. Dr.Vijaya Atul Band (PW 6) examined the patient when the patient was admitted to the Kalyan Municipal Hospital, the history of injury was given as rape. After examining the prosecutrix, Medical Officer of the Hospital issued medicolegal certificate (Exhibit 31) which reads thus : "Medicolegal Certificate 22.11.95 dt.1.30 P.M. This is to certify that I have examined the Pt.Kum.Sangita Vijay Ambekar, aged 10 yrs. residing at Pershuramwadi, Kadam Chawl, Sidharth Nagar, Kolsewadi came on 17.11.95 at 12.45 A.M. with H/o. Rape. (Respeatally since Diwali said by Pt.) O/e - Pallort Rs / NAD CVS P/A : Soft no any injury on body, Primary secondary sex character not developed. Axillary and pubic hairs not developed. Local examination :- No injury on Vulva, except (at abrasion below the vaginal orifice (outside) of 1/2 cm x 1 cm. Blood stains on Vulva present. : 6 : 2) Labia majora labia minora is normal 1) Hymen-slightly distorted. blood stained discharge removed from vaginal orifice as vaginal swab no swelling or injury on vulval area. Opinion- attemption of rape." 3. The Police, in the course of investigation, visited the scene of offence and arrested the accused. Arrest panchanama was prepared in the presence of independent panchas. The police also seized the bloodstained clothes from the person of accused as recorded in the seizure panchanama. The bloodstained clothes of the prosecutrix (frock, skirt and nicker stained with blood) were also seized under panchanama. The seized articles were sent for chemical analysis. The Chemical Analyser’s report would indicate that the bloodstains found on the clothes of the accused were of ‘A’ group which resembled the blood group of the prosecutrix. The blood group of the accused is found to be ‘O’. The bloodstains found on the clothes of the prosecutrix were also of the same blood group ‘A’. On the basis of material collected during investigation, the Police : 7 : proceeded to file charge-sheet against the Appellant/accused for offence under Sections 342, 376(2)(f) and 506 of the Code. The case was committed for trial to the Sessions Court. The Sessions Court framed three charges against the Appellant/accused. The Appellant pleaded not guilty. Accordingly, the prosecution examined, in all, ten witnesses and also produced and proved the relevant documents and articles such as complaint (Exhibit 16), panchanama of arrest of accused (Exhibit 20), panchanama of scene of offence (Exhibit 21), panchanama of attachment of clothes of prosecutrix (Exhibit 23), Chemical Analyser’s reports (Exhibits 25, 26 and 27), medical certificates of prosecutrix (Exhibits 31 and 32), certificate regarding date of birth of prosecutrix (Exhibit 36) and panchanama (Exhibit 45). The Appellant/accused himself entered the box as defence witness No.1. On the analysis of the evidence which came on record during the trial, the Trial Court, by the impugned Judgment and Order proceeded to convict the Appellant for offence under Section 376(2)(f) of the Code. But acquitted him of offence punishable under Section 342 and : 8 : 506(ii) of the Code. The Trial Court passed the following operative order : "O R D E R 1. The accused Popatlal Jethabhai Shah is convicted for the offence punishable under Section 376(2)(f) of Indian Penal Code and sentenced to suffer R.I. for 10 years and to pay fine of Rs.5000/- in default to suffer further R.I. for One year. 2. Out of fine amount recovered amount of Rs.4000/- be paid to p.w.2 Sunita as compensation as per Section 357 of Cr.P.C. The said amount be kept in fixed deposit in bank till Sunita attains age of majority. 3. The accused is acquitted of the offence punishable under section 342 and 506(2) of Indian Penal Code. 4. The accused was in jail since 16.11.95 till 20.11.96, therefore this much period of set off u/s 428 of Cr.P.C. is given. 5. The muddemal property being worthless be destroyed after the period of appeal is over." 4. The Trial Court, in the first place, addressed itself to the fact of age of the prosecutrix on the relevant date as to whether it was below 12 years as asserted by the prosecution. On considering the evidence of mother of the : 9 : prosecutrix (PW 1), Dr.Vijaya Band (PW 6), who had examined the prosecutrix and of the Head of the School (PW 8) who proved the birth certificate and the certificate (Exhibit 36), it was concluded that there was no manner of doubt that the prosecutrix on the relevant date was about ten years of age i.e. below twelve years. Before this Court, the Appellant has not questioned the correctness of the said finding. 5. The Trial Court has then examined the relevant evidence, both ocular and documentary, to conclude that the prosecutrix was subjected to sexual intercourse on the relevant date. That finding has been reached on the basis of the evidence of mother of the prosecutrix (PW 1), prosecutrix (PW 2), Dr.Vijaya Band (PW 6), who had examined the prosecutrix, Dr.Shyam T.Dhonde (PW 7), who had also noticed that blood was oozing out from the private part of prosecutrix when she was brought for medical treatment to him by the maternal uncle of the prosecutrix. Reliance is also placed on the evidence of maternal uncle of the prosecutrix (PW 9) as also the evidence of : 10 : Panchas- Mahendra Waman Akhede (PW 4) and Rajaram Tukaram Jadhav (PW 5) who have proved the seizure of bloodstained clothes from the person of the accused as also bloodstained clothes of the prosecutrix and the bloodstained frock from the scene of offence. The Trial Court has also adverted to the Chemical Analyser’s reports. Taking all these factors into account, the Trial Court has recorded finding of fact that the prosecutrix was subjected to sexual intercourse on the relevant date by the accused/Appellant herein. The Trial Court has accepted the evidence of the prosecutrix to be most natural one without there being any kind of exaggeration. The Trial Court has also found that the defence has failed to challenge the version of the prosecution witnesses on material points. Whereas, suggestion is given that the prosecutrix was deposing false as she was tutored by her mother. The Trial Court has also accepted the evidence of PW 1 as trustworthy and held that defence did not bring anything on record to disbelieve her testimony. The Trial Court has also adverted to the medical evidence including the version given by Dr.Vijaya Band (PW 6) to conclude : 11 : that the Appellant was guilty of offence under Section 376(2)(f) of the Code. The Trial Court, however, acquitted the Appellant of further two charges. The State has not challenged the said finding of the Trial Court. 6. In other words, the principal question that needs to be addressed in the present Appeal is: whether the conclusion reached by the Trial Court with regard to the finding of guilt against the Appellant for offence under Section 376(2)(f) of the Code can be sustained? 7. During the course of arguments before this Court, Counsel appearing for the Appellant made no attempt to challenge the finding of fact recorded by the Trial Court regarding the age of the prosecutrix on the relevant date to be below twelve years of age. The thrust of the argument canvassed before this Court is that even if the prosecution case established by the evidence of prosecution witnesses to the effect that the prosecutrix had gone to the shop of the accused in the afternoon after coming from the School and that, the accused : 12 : called the prosecutrix inside his shop, thereafter closed the front door of the shop, is accepted as it is, even then, the Appellant cannot be found guilty for offence under Section 376(2)(f) of the Code; but at best, be proceeded under Section 511 of the Code of one of attempt to commit rape and not of rape itself. This is the only argument canvassed before this Court on merits of the case. 8. According to the learned Counsel for the Appellant, there was no legal evidence about penetration which is the sine qua non for constituting offence under Section 375 and 376 of the Code. According to the Appellant, the reported injury on the private part of the prosecutrix who was examined by the doctor was possible on account of vigorous rubbing (external) of the private part of the prosecutrix or possibly, by scratching of the private part and not necessarily by penetration. It was also argued that the bloodstains noticed on the vulva by the doctor were possible also because of menstruation and not necessarily on account of penetration, which position is accepted by the doctor (PW 6) in her : 13 : evidence. It was contended that on fair reading of the evidence of Doctor (PW 6), it can be safely concluded that in her evidence, the doctor was not certain that the injury noticed on the private part of the prosecutrix was only because of penetration and not possible in any other manner. It was submitted that the evidence of the prosecutrix nowhere mentions that there was penetration during the activity. However, that assertion has come on record only pursuant to the Court question put to the prosecutrix while the prosecutrix was under cross-examination. This assertion was clearly an improvement and will have to be discarded. In that case, there was no evidence of the prosecutrix herself on the factum of penetration. The substance of the argument on behalf of the Appellant was that the evidence on record fell short to establish the fact that the injury caused to the private part was necessarily on account of penetration. In such a case, the accused should be given benefit of doubt and if not a case for acquittal, would, at best, be a case for offence under Section 511 of the Code, of one of attempt to commit rape. : 14 : 9. Counsel appearing for the parties have taken me through the entire evidence in the context of the submissions made on behalf of the Appellant as noted earlier. 10. The argument canvassed on behalf of the Appellant seems to be attractive but is devoid of substance. On careful analysis of the evidence, to wit, of prosecutrix (PW 2), who has spoken about the incident; maternal uncle of the prosecutrix (PW 9) to whom the prosecutrix had disclosed about the incident on reaching home; Dr.Shyam T.Dhonde (PW 7) to whose clinic, the prosecutrix was taken for medical treatment by the maternal uncle (PW 9); mother of the prosecutrix (PW 1) who was told about the entire incident by the prosecutrix herself after she had reached home in the evening; Dr.Vijaya Band (PW 6) who was attached to Kalyan Municipal Hospital, where the prosecutrix was taken for medical treatment; and more so, the documentary evidence in the shape of medical certificate (Exhibit 31) issued by the Hospital describing the nature of injury on the private part : 15 : of the prosecutrix coupled with the seizure of bloodstained clothes from the person of the accused, which blood group resembles the blood group of the prosecutrix as well as the bloodstained clothes seized from the prosecutrix. All this evidence, either read in isolation or together, leave no manner of doubt that the prosecution has established beyond doubt that it was a case covered by the definition of rape, the factum of penetration has been not only spoken by the prosecutrix herself but is also established from the medical evidence. This view taken by the Trial Court is unexceptionable. It is not possible to take any other view on the basis of the evidence which has come on record. 11. For the time being, even if we were to keep the oral evidence of prosecutrix aside, as mentioned earlier, medicolegal certificate (Exhibit 31) clearly indicates that the patient was admitted in the Hospital with history of rape. The Certificate notes that the primary secondary sex character of the prosecutrix was not developed. : 16 : The axillary and pubic hairs were also not developed. The prosecutrix was of tender age at the relevant time, about 10 years. On local examination, no doubt, no injury was noticed on vulva, but it was clearly noticed that abrasion below vaginal orifice (outside) of 1/2 cm/1 cm was noticed. It was also noticed that blood stains on vulva were present. Although the labia majora labia minora were found to be normal, the hymen was noticed to be slightly distorted. It is noticed that bloodstained discharge was present on the vaginal orifice, which was removed. The doctor has then noted that no swelling or injury on vulva area was found and on that basis, proceeded to opine that it was attempt of rape. For the present, we will ignore the final opinion recorded by the doctor, one of attempt of rape. Inspite of such opinion, the Court is obliged to consider the efficacy of the other notings made and the medical certificate to ascertain as to whether it is possible to take the view that it was a case of slightest of penetration or otherwise. The fact that abrasion below vaginal orifice (outside) of 1/2 cm/1 cm, bloodstains on vulva was present, : 17 : hymen was found to be in slight distorted position and blood stains were found on vaginal orifice, leave no manner of doubt that it was a case of slight penetration. It is well established position that even slightest penetration is sufficient to constitute offence under Section 376 of the Code. 12. The medicolegal certificate has been proved by Dr.Vijaya Band (PW 6). In her evidence, she has spoken about the fact that the patient was admitted with history of rape and the contents of the certificate have been proved by her in her evidence. The cross-examination of PW 6 was directed towards the point that it was a case of attempt of rape and which opinion was recorded by the Doctor in the medical certificate on the basis of the history of rape given by the patient. The cross-examination was also directed to elicit from this witness that menstrual period can start even at the age of 10/12 years to which this witness has answered that, that is in rare cases. Witness has then deposed that in case of menstruation, there may occur bleeding in private part. It is : 18 : suggested to this witness that a female living in life of unhygienic condition may have itching on private parts and scratching by nails may cause the injuries. The witness has accepted in the cross that the abrasion injury noticed on the private part of the prosecutrix was possible by scratching. She has admitted that she did not examine the nappings of the nails. 13. The theory of bloodstains found on the private part of the prosecutrix on account of menstruation, will have to be answered against defence for more than one reason. In the first place, the medical evidence establishes the fact that the prosecutrix was hardly aged 10 years at the relevant time. On medical examination, the primary and secondary sex characters were seen to be not developed. Similarly, axillary pubic hairs were not developed. In such a case, the contention that the prosecutrix had menstrual period at the relevant time, is stretching the argument too far. Dr.Vijaya Band (PW 6) in her evidence has clearly stated that menstruation at the age of 10/12 years is in rare cases. The defence has not been able to : 19 : establish any material beyond that. Moreover, what is overlooked is that in the physical examination, it has been noticed that the hymen was slightly distorted. That has no causal connection with menstruation, but the only possibility of distortion of hymen is on account of penetration. The Trial Court has also rightly noticed that no case, much less, suggestion has been put to Dr.Vijaya Band (PW 6) that bleeding from private part continued for some time. If it was a case of menstrual period, obviously the bleeding would have continued. What is relevant to note is that specific question was put to PW 6 as to when the patient had last menstruation period, to which, she answered that there is no history of menstruation. The next question put to this witness was whether bleeding in the vaginal orifice can be due to menstruation also, to which question, she has replied in the affirmative, but has clearly denied that possibility in the present case. She has asserted that in the present case, it was a case of bleeding. The witness was then read over quotation from Dr.Modi’s Medical Jurisprudence to suggest that the bleeding was possible by menstruation. : 20 : The nature of bleeding of private part of the prosecutrix was possible on account of menstruation and that menstruation was possible to be induced by sexual intercourse. This suggestion clearly overlooks that it presupposes that at the tender age of ten years, ordinarily, there is no possibility of menstruation. But it can be induced by sexual intercourse. Even on critical analysis of evidence of Dr.Vijaya (PW 6), I have no hesitation in taking the view that the attempt of the defence to persuade the Court that the nature of injury found on the private part of the prosecutrix was on account of act other than penetration, to say the least, would be traversity of the notings made during the physical examination of the doctor. The nature of injuries are such that there is no manner of doubt that it was possible only on account of penetration. There is no ambiguity in the version of Dr.Vijaya Band (PW 6) on the factum of penetration. Interestingly, in the cross-examination of Dr.Vijaya Band (PW 6), an unsuccessful attempt is made on behalf of the defence that the injury, particularly, distortion of hymen, noticed on the private part of the : 21 : prosecutrix was possible due to masturbation. Dr.Vijaya Band (PW 6) has accepted that hymen can be distorted by vigorously rubbing private part, at the same time, has answered categorically that there were no sign of vigorous rubbing. Thus understood, from the medical evidence, which has come on record, both the possibilities for cause of bleeding from private part of the prosecutrix sought to be suggested by the defence are ruled out. The first possibility suggested is on account of vigorously rubbing the private part externally or scratching and not penetration. The second possibility was on account of bleeding on account of menstruation. Both these possibilities are ruled out. A priori, there is no manner of doubt that the nature of injury caused on the private part of the prosecutrix is ascribable to penetration. It does not matter whether the penetration is deep or slightest. All that is required to bring home the guilt for offence of rape is to establish slightest penetration. 14. In this case, we have the evidence of : 22 : prosecutrix (PW 2). In the examination-in-chief, she has spoken about the background in which the incident has happened. The material evidence given by her reads thus : "He came to me and had removed my underwear. He opened the chain of his pant. He has taken out his penis and touched it to my backside. He first had rotated his hands over my private parts. he caught hold by his hands at my stomach, bent me and pushed up and down. There was bleeding from my hole." 15. Placing reliance on this evidence, it was argued on behalf of the Appellant that there