1 CR.APPEAL.269.2008.doc mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 269 OF 2008 Laxman Janu Kokare ...Appellant/Accused Vs. The State of Maharashtra ...Respondent/Complainant Mrs. A.N. Pathan, Advocate appointed for Appellant Mrs. A.A. Mane, A.P.P for the State CORAM : SMT. ROSHAN DALVI, J. Date of Reserving for Judgment: 3rd May, 2011 Date of Pronouncing the Judgment: 13th June, 2011 JUDGMENT : 1. This is an Appeal against conviction filed by the Appellant who is convicted under Section 376(f) of the I.P.C and sentenced to suffer Rigorous Imprisonment for 10(ten) years and to pay fine of Rs.2000/- and in default of payment of fine to suffer further Rigorous Imprisonment for one month under the judgment in Sessions Case No. 03/2005 passed by the Ad Hoc Additional Sessions Judge-2, Raigad- Alibag. 2. The case of the prosecution is that on 9th July 2004 the victim child, who was of about 9 years at that time, was going to school in the afternoon recess. She was enticed by the Appellant with a chocolate and shev and dragged into a field under a tamarind tree where she was sexually 2 CR.APPEAL.269.2008.doc assaulted, as described by the victim child. After the incident the victim child continued her journey to school. She was bleeding. Blood was noticed by her classmate who reported to her teacher. She was sent back home. She came home and slept. She woke up when her sister arrived. She was asked what happened to her and she narrated her story to her sister who was then 17 years old. She lived with her siblings as her mother had expired and her father lived separately. Her sister took her to the police station and lodged the complaint. 3. Upon the complaint being registered the victim child was sent to the Doctor in Alibag hospital for medical examination. The Doctor prepared her report/certificate upon examination of the victim child which has been produced in the evidence of the Doctor. On the next day she went with her sister in search of the accused. 4. On 11th July 2004 she went with the police officer and showed the accused to the officer upon which the accused was arrested and arrest panchanama was made. 5. Upon the arrest of the accused he was also sent for medical examination. He was medically examined by another Doctor who has made a report which is produced in the evidence of that Doctor. His medical examination shows his physical condition and his blood group. 6. Upon the arrest of the accused a seizure panchanama was prepared showing seizure of his clothes. The clothes have been sent to the Chemical Analyser for examination. 3 CR.APPEAL.269.2008.doc 7. Similarly the clothes of the victim girl have also been seized and sent to the Chemical Analyser for examination along with her blood sample. The Chemical Analyser’s report is relied upon by the prosecution. 8. For proving the charge of aggravated rape upon a minor child on 9th July 2004 the prosecution has examined inter alia the sister of the victim child who is the complainant as P.W.1, the neighbour of the victim child who heard the shouts of the sister of the victim as P.W.2, the husband of P.W.2 who was examined as spot panch as P.W.3, the panchas for seizure of clothes of the victim as well as the accused and arrest of the accused as P.W. 4, 5, 6, 7, 8 and 10. The prosecution has examined the victim herself as P.W.9. The prosecution has examined the teacher of the victim child as P.W.11 and the two Doctors who examined the accused and the victim as P.W.12 and 14 respectively. The two Investigating Officers have been examined as P.W.13 and 15 respectively. 9. The learned Judge has accepted the evidence of the victim child as credible. That evidence has been partly corroborated by the neighbour P.W.2 and the teacher P.W.11. The learned Judge has collated these oral evidences. The clothes of the victim and the accused are considered along with the C.A. report. The essential evidence is of the Doctor P.W. 14 who has examined the victim child made his report/certificate and proved the same in Court. He has explained the medical aspects in his report. The learned Judge has considered the corroborative evidence of the Doctor P.W.14 alongside the evidence of the victim child. 4 CR.APPEAL.269.2008.doc 10.It would be material to consider the evidence about the incident first. P.W.9 the victim child has deposed before the trial Court how she lived and studied. She lived with her sisters and brothers, because her mother had expired and her father lived separate from them. She was in Standard V in a Girls High School. She did not remember the date of the incident, but she has deposed that it was a summer season. At that time she was in Standard III. Her school timing was from 11 am to 5 pm. She used to come home for the lunch break between 2 pm to 3 pm. At the time of the incident she was on her way to the school after taking lunch. One person called her and showed her chocolate and shev. She went near him. He caught both of her hands and dragged her. He made her lie on the ground under a tamarind tree. He removed her clothes. He also lied on her person. Then her private part developed pains. Then that person released her. Then she went to school. In the school her class teacher called her to see her handwritten work. There blood from her person fell on the floor. Her class teacher asked her to go home. She went home and slept in the house. Then her sister returned at 5 pm from work. She woke up. She wept. Her sister asked her what happened. She narrated the entire incident. Her sister and she went to the police station. She narrated the incident to the police. They went in search of that person. She saw him at Katrang. She disclosed to the police that she saw that person. The police arrested him. She was sent to Civil Hospital, Alibag. On the next day they went in search of the accused. She also went to the spot of the offence to show the tamarind tree to the police. She deposed that her school uniform was smeared with blood. She identified the accused in Court. 5 CR.APPEAL.269.2008.doc 11.Her cross examination showed that she was not with her usual friends on that day while walking from home to the school. The place where the incident happened was on open place where people graze cattle in the fields. The road which she took was not in use in the afternoon on that day by others. She agreed that the person who dragged her was a stranger. She was asked and accepted that she has stated to her sister that on an earlier occasion also that person had dragged her under the tree, but one person who was grazing the cattle had seen them and hence the person who dragged her ran away. He was a stranger. She did not disclose that incident to any one. She has been cross examined on how she felt when she was offered the chocolate. She agreed that she was also frightened on the date of the incident as she was frightened earlier. But she did not feel that she should run away from there. She shouted when the accused dragged her catching her hands. She has further deposed in the cross examination that the search of the accused on the next day lasted for about 5 minutes when they saw accused. They had searched for him at about 6 pm. 12.The evidence of the victim child shows all circumstances rife for sexual abuse and assault on her person. She was a child of about 9 years. Though she had two friends used walk with her to and fro, on that day she walked alone as her friends were in class. The place where the accused dragged her was under a tamarind tree in the fields. No one used the road on which she walked that afternoon. The situation was, therefore, in a desolate place. She was without parental support. The accused was from the locality; he having been arrested without much effort next day though he was a stranger. 6 CR.APPEAL.269.2008.doc 13.The victim child in this case is the kind of target that child molesters and child offenders look out for and attempt to violate. These are the facts of human life and existence of universal application which are required to be headed by the Society at large. These are facts of which judicial notice is required to be taken. Consequently, child psychiatry as well as sociology require general awareness in this behalf to be spread under the principle of the "3 Rs.- Recognise, Resist, Report". It is when the society as also families fail to follow these principles that the offences of the kind alleged by the prosecution in this case take place. These offences are committed in all Societies, countries and localities without barriers. Unfortunately in a rural settings these niceties of life are left unobserved, unattended and untaught. It is, therefore, that the crime persists with regular frequency over the most innocent victims. 14.It appears from the evidence, as shall be pointed out presently, the awareness that is required to be disseminated was absent in the home of the victim girl, her neighbourhood as also her school. The violation on her person was taken in the stride by her siblings, neighbours as also her teacher. The evidence has shown the aftermath of the grievous violence upon her person. 15.The learned Judge has weighed her evidence with a required empathy. However, the criminal justice system, which comes at the top of the ladder of the Society and which comes into play much after the offence is committed, can only deal with the punitive effect of such offence, the preventive and protective measures having failed in the Society. 7 CR.APPEAL.269.2008.doc 16.It is in this conspectus that the aforesaid evidence of the victim child would have to be appreciated for corroboration, if required. It is upon such corroboration that it would have to be seen whether the accused in this case himself is connected with that offence. 17.The evidence of the Complainant P.W.1 is essentially hearsay as having been told by the victim herself. It need not be considered further. The evidence of the neighbour P.W.2 shows that she came to the house of the victim child upon the sister of the victim child, the complainant in this case, who started shouting. Hearing her shouting the neighbour went to their house and asked her. She narrated the incident of rape on her sister. She asked her neighbour to see the blood oozing from her sister. Her clothes were stained with blood. It is their neighbour who advised her to take the victim child to the police station. When the neighbour asked the child herself, she did not utter a single word. 18.Her evidence is the usual evidence of a neighbour. In a village setup persons live in the houses close to one another. They run to the neighbours house upon hearing any distress calls. That witness has deposed what she saw and what she heard. What the neighbour deposed upon hearing is hearsay and not admissible in evidence. The victim child has deposed that her uniform was smeared with blood. That has been corroborated by the neighbour who deposed that her clothes were stained and smeared with blood in the examination-in-chief as also in the cross examination. One intrinsic aspect which emerges from her evidence is that the victim child did not say a single word to her when she asked about the incident. This is the norm amongst children. It 8 CR.APPEAL.269.2008.doc shows natural human behaviour. The victim child had worn the school uniform. She had bled. It was noticed in her school as shall be seen presently. She was sent home from school. She had rested, then she narrated the traumatic experience to her sister. Her sister saw her having bled. She screamed in horror. That is how the neighbour came to her house. The victim is needlessly asked to repeat her horrifying experience by all who came in contact with her. That norm has applied in this case. The neighbour P.W.2 also asked her about the incident. Human conduct shows how the victim cannot repeat such incidents again and again to all. The evidence of the neighbour asking her about the incident and she not uttering a single word shows the natural human conduct of both the persons. 19.Even the very fact that P.W.1 shouted out upon seeing the condition of her younger sister is the most natural human conduct. Her shouting caused her neighbour to come to whom she narrated the incident. 20. The victim was sent to the Doctor P.W.14 for her medical examination. The Doctor’s evidence is the most material corroborative evidence. It shows the extent of the sexual assault upon the person of the victim. The Doctor examined her on 10th July 2004 in OPD Section of the Civil Hospital, Alibag where he served as medical officer. That was a day after the incident when she was brought to the hospital by the police. The evidence of the Doctor shows that she was brought at 11 a.m to be examined on a suspected case of rape. He examined her and wrote his opinion on the OPD papers. He found her in normal condition with no external injuries on her person. He also found no injury to her private part except redness. Libia minora was having redness (erydhemma). He 9 CR.APPEAL.269.2008.doc deposed that her hymen was intact and there was white discharge from her vagina. He identified his handwriting on the medical papers and proved his certificate by direct oral evidence. 21.The certificate shows no complaint of injury marks on face, externity, chest and back. It shows no injury to the hymen also. It further shows erydhemma present over libia minora. The Doctor has described erydhemma as a condition caused if an adult man of about 35 years rapes a minor girl. He has explained that this condition is caused if an attempt is made to penetrate penis in the private part of a minor girl where vaginal orifice is small and there is difficulty in penetrating it. 22.The cross examination of the Doctor shows that intercourse would be necessary to cause profuse bleeding and that intercourse is not complete if the hymen is left intact. 23.The Doctor has of course agreed that redness on the vagina may be due to some infection. No case of infection is even shown or suggested. 24.The doctor has not seen the victim having bled. That is natural because she was taken to the Doctor on the next day and not immediately. This is despite the fact that complaint was registered on the date of the incident itself. It must be appreciated that injuries to children heal very quickly. The evidence of the Doctor would, therefore, be material only to consider the after – effects of the sexual assault on her person. The aspect of the bleeding by the victim would have to be determined upon consideration of other evidence. 10 CR.APPEAL.269.2008.doc 25.The victim was on her way to her school. She was sexually molestated and assaulted on the way. A case of rape is sought to be made out by the prosecution. It would be an aggravated rape given her age. Since she was a school child on her way to school she naturally continued on her way after the incident. Her teacher has noticed her bleeding. It is in the circumstances set out in her evidence. 26. The teacher P.W.11 has deposed that she was a class teacher and headmistress of the school. She took classes of 3rd and 4th standard in a single room with only one other teacher in the school. The victim child was 4th standard student. She was not punctual or regular in her attendance. That was because she had to cook at home. The teacher has shown how she took her class. The teacher deposed further to show how she took the roll call, the relevant part of which has been produced by her and how the victim child had attended the school on that day. The school started at 11 a.m. The recess was from 2 p.m. The victim child had gone home for taking food in the recess. She arrived late after recess. She arrived some time after 2.30 p.m. The students had to write down the lesson which the teacher had given on board and show it to the teacher. The victim child showed this to her teacher in the normal course. The teacher examined it to point out mistakes. Then the victim child returned to her seat. Then another student pointed out to the teacher the blood near her table where the victim child was standing. The teacher thought that because the victim child was 10 years old she might have started her menstruation. So she sent her back with another girl student. However the cross examination of the teacher shows that the fact that she noticed blood as deposed by her was omitted in her 11 CR.APPEAL.269.2008.doc statement before the police. The fact that she had sent the victim child back to her house along with another girl student is also shown to be omitted in her statement. The remainder of the teacher’s evidence is to be considered. 27.It may be mentioned that the teacher’s evidence reflects the condition of the society in which adults as well as children spend their days. Primary schools fall short of the basic requirements for child education. Several children attend irregularly and impunctually. It is expected as a matter of course, though roll call is taken, that students such as the victim child are used to cooking in their house. This would be more so because the victim child had no parental cover. On that day the victim child arrived late after recess. The evidence shows that that was expected as a normal conduct and the teacher did not find it necessary to inquire with the victim child. The victim child also accepted her fate and continued with her life immediately after the incident. This is the scenario in which millions of such children grow up. It is imperative for the Court to take notice of the usual social behaviour of the accused, the victim as well as the witnesses. 28.This needs only the evidence of the neighbour P.W.2 who saw the victim child after she went home with her clothes being blood stained and smeared with blood. The extent of the bleeding is not a material part of the evidence because the medical report does not show any bleeding or any injury to her hymen or other parts of the body. It shows redness instead. 29.The evidence of the victim girl herself shows how the accused lay on her 12 CR.APPEAL.269.2008.doc after removing her clothes which caused her private part to develop pains. She has not deposed about bleeding at that time. Her evidence also shows her knowledge of her own bleeding only upon the blood which fell on the floor after her teacher called her to see her work. That evidence has been omitted and hence cannot be considered. However some blood stains have been found on the clothes of the victim and the accused. 30.The clothes of the victim as well as the accused were seized for chemical analysis. The clothes of the accused came to be seized under panchanama proved by P.W.6. It inter alia had a red shirt. The accused is stated to have worn white pant at the time of the offence as described by the victim girl to the police. However the recovery of the clothes of the accused show a red shirt and a black pant. The clothes are recovered after his arrest. Hence they are recovered two days after the incident. They may not be the clothes that were worn by the accused at the time of the offence. 31.The clothes which were seized are, therefore, partly material and partly immaterial. The material part is the red shirt. The immaterial seizure is the black pant. It is not known why just any pair of clothes of the accused is seized under panchanama by the police. The police are required to seize only incriminating evidence. The clothes not worn by the accused cannot be incriminating evidence. 32.The clothes of the victim which are seized are the clothes worn by her. They have also been seized under the panchanama proved by P.W.5 a day after the incident. They are stated to have been washed before. 13 CR.APPEAL.269.2008.doc These clothes have been sent to the chemical analyser. The Chemical Analyst’s report shows the victim’s school short/salvar pant and sleeve- less top/tea shirt which was sent containing blood stains of various dimensions. They did not show semen stains. The group of the blood on the clothes is “B” group. The accused has been examined by the Doctor P.W.12, who proved the report made by him upon medical examination. The report of the Doctor shows the accused’s blood group is “O” hence these clothes per say cannot connect the accused with the blood found thereon. The clothes however contained the blood of the victim child. The clothes of the accused being shirt and pant had human blood. However the group of the blood is shown to be inconclusive. The fact remains that the shirt of the accused had some blood stains. The accused has not explained how those blood stains came to be on his shirt or whose blood it was. His pant and underwear are shown not to have any blood stains or semen stains. This is natural since the pant stated to be worn by the accused at the time of the offence has not been seized – another pant has been seized. 33.The entire evidence is to be read as a whole. The case of sexual assault upon her has to be considered from her evidence and the medical evidence. There is no reason for her to speak the untruth about what happened to her. There is no enmity at all shown. The accused is from the neighbourhood. He was a stranger to her when the incident happened. He caused her pains in the act of violence upon her person. However a reading of the entire evidence shows that this resulted in erydhemma which is inflammatory redness, but shows no bleeding. This could have been because the injury could have healed. However the aforesaid evidence shows redness though no bleeding. 14 CR.APPEAL.269.2008.doc 34.The violence upon the minor child is unmistakable. It would constitute the gross violation of a human rights. It has to be seen whether such violence has constituted the offence of rape or has fallen short of that offence. The offence of rape requires penetration. The evidence of the Doctor shows that the intercourse was not complete since the hymen was in tact and the redness was upon an attempt to penetrate. 35. For whatever is the sexual abuse of the minor child it would have to be seen, if and how the accused is connected with the offence. The victim herself has deposed that the police officer, her sister and she went to search that person. They saw him at Katrang. She told the police after she saw him. She accordingly identified the accused and the accused came to be arrested. The arrest panchanama proved by P.W.8 corroborates this evidence. It is dated 11th July 2004 that is 2 days after the incident. It shows the victim girl having taken the police through Krantinagar and Katrang. It shows the victim girl identifying the red shirt of the accused