1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Appeal No.1076 of 2002 Shri Bhondu @ Santlal Ramdhar Yadav. .. Appellant (Orig.Accused ) v/s. The State of Maharashtra. .. Respondent Mr.Rajan Salvi for Appellant. Mrs.V.R. Bhosale, APP for State. ----- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 30th September,2009 Date of pronouncing the judgment : 12th November,2009 JUDGMENT :(Per Roshan Dalvi, J.) 1.The Appellant (original accused) has challenged the judgment dated 5.9.2002 of the learned Additional Sessions Judge, Kalyan in Sessions Case No.448 of 2001, convicting the Appellant for offence punishable under Section 377 of the Indian Penal Code (IPC) and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/-. The Appellant has been acquitted of the offence punishable under Section 376(2)(f)of the IPC, under which also he was charged. 2 It is the case of the prosecution brought out in the evidence of PW4, one Sarita, the mother of the victim child, who was 14 months of age, that on 3.3.2001 the Appellant herein had committed carnal intercourse (sodomy) against the order of nature upon her child whilst she was sleeping in the house of her neighbour. The Appellant was the brother-in-law of that neighbour who had come to the house on that day. It has been the prosecution case that PW4, the mother of the victim child, lived next door. As the electricity supply to her house had stopped, she took her child and left her in the house of her neighbour under a fan. The child was put on a short frock and no nicker. PW4 and her neighbour, the sister-in-law of the Appellant, were in the house of PW4 chitchatting. The Appellant was sleeping in the room of her neighbour. After sometime they heard the noise of the cry of the daughter of PW4. A boy playing in the lane also told that her daughter was crying. She as well as her neighbour rushed to the house of the neighbour. They saw that the child was bleeding from her anus. The Appellant had covered his body with a quilt. They entered the house. The Appellant immediately left the house and went outside. PW4 started crying. Neighbours gathered. She wiped out the blood oozing from the anus from her daughter. She called her husband by telephoning him. She lodged the complaint against the Appellant. 3 2.Upon this case, the prosecution has examined 5 witnesses. She has been examined as PW4. The Spot Panch, for seizure of the quilt and other articles in the room as also the frock of the child and the saree of PW4, has been examined as PW1. One neighbour, who heard about the incident and deposed about it as having been told to her, has been examined as PW2. The child as well as the Appellant were taken to the Central Hospital, Ulhasnagar for their respective medical evidence. The doctor, who examined both of them and issued the certificate in her own handwriting, has been examined as PW3. The Investigating Officer (IO), who investigated the case upon the complaint being filed and the Appellant having been arrested, has been examined as PW5. 3.The prosecution case is concise and clear. It is the case of the sexual abuse of an innocent child of tender age by a neighbour who has been shown to have been in close proximity of the child for a short while before the offence was committed. The complaint has been lodged by the mother of the child, who was close to the child, but in the neighbouring house and who, upon hearing the cries of the child, rushed to the child and saw what had happened. Her evidence has been corroborated by the medical evidence of the child as 4 well as the Appellant. 4.It may be mentioned that the evidence of the neighbour is completely hearsay and is required to be left totally unconsidered. The evidence of the IO shows the steps in investigation of the offence upon criminal machinery having been set in motion by the complaint of the mother of the victim child. 5.The case of the Appellant is one of denial. He has denied his presence in the neighbour s (his brother) house at the time of the incident. He has denied that he left the house upon the mother of the victim child and his sister-in-law entering the house. In the statement recorded under Section 313 of the Criminal Procedure Code, his case is that of false implication. He has not shown any reason for false implication. His further case with regard to the FIR lodged against him is that it was lodged under pressure from the public gathered at the spot of the incident. His case may, at once, be considered. If he was not at the spot of the incident i.e. in the house of the neighbour of PW4, he would not know that the complaint was falsely recorded under pressure from the public at the spot. The false implication, therefore, is not stated to be due to any enmity or any previous relations or transactions with PW4, who lodged the complaint, but under pressure from 5 the public. We fail to understand how the public would pressurize PW4 to lodge such a false complaint implicating her innocent child. We may mention that the learned trial Judge has also considered, and rightly, the total absence of any reason or motive for any false complaint being filed or for the false implication of the Appellant. 6.The prosecution case must be essentially tested upon the evidence of PW4. She is the mother of the victim child, who would be totally unable to lodge the complaint or depose before the Court. She was in the vicinity of the victim child, though not close to her. She was in the neighbouring room. We may say that she was within an earshot, though not within the eye-sight of the child. It was unfortunate that only because the electricity supply failed in her house that she had to make her child sleep under the fan in her neighbour s house. The Appellant is the brother of the neighbour who lived in that house and the brother-in-law of the neighbour who was friendly with PW4 as neighbours. The examination-in-chief of PW4 shows that both the ladies were in the adjacent room chitchatting while the daughter slept in the neighbour s house. The Appellant was also sleeping in that house. The presence of the Appellant is natural as it was his brother s house. Upon hearing the cries of the child, both ladies rushed 6 to that house from the house of PW4. She saw her daughter bleeding from her anus. She also saw that the Appellant had covered his body with the quilt. She saw that as soon as she entered that house with her neighbour, the Appellant immediately left the house. She raised cries, hearing which the neighbours gathered. 7.This short, precise, concise and brief evidence would be required to be appreciated. It is natural for a mother to leave her daughter under a fan whilst she was sleeping. It is also natural that when the electricity supply fails in one house, the neighbours would help and welcome the neighbour s child. The Appellant being admittedly the brother of the occupant of the neighbouring room, is expected to have been in that house i.e. the residential premises. The Appellant being in such premises had not gone to work on that day. He would be expected to be resting in the house of his brother. Since the child was peacefully sleeping under the fan and the Appellant was resting, the two ladies are expected to go into the neighbouring room to chitchat. This would happen in most neighbouring houses when the neighbours are trusted as well as trustworthy people. The locality in which these neighbours resided is Ramabai Ambedkar Nagar, Ulhasnagar, Camp No.2, a middle class slum. Houses in 7 such localities are close to one another. The neighbours are expected to be freely and on visiting terms on daily basis. The mother of the victim girl could not have expected a beastly behaviour of her neighbour, or for that matter, her neighbour s brother- in-law. Incidentally, the child was wearing only a short frock. So soon she heard her cries, PW4 rushed to her. The child of that age could have cried for any reason. It could have been simpliciter on account of the mother s absence when she woke up from her sleep. It appears that PW4 took a little while to understand the cry of her child to go to her. In the meantime, a boy playing in the lane also told that her daughter was crying. This shows that the house was at the ground floor level in a slum where the children were playing. In this scenario, PW4 saw her child when she rushed to her. The cries of her child were not empty cries for the absence of her mother. PW4 saw her daughter bleeding. The Appellant was covered in a quilt and immediately fled. The child s mother raised cries and people gathered. This would be the scenario in any middle class slum. 8.The learned Advocate on behalf of the Appellant specially invited our attention to the FIR, Exhibit 21- A. In the FIR, PW4 has described the incident a little more graphically. She has stated how she had seen the 8 Appellant in flagrante delicto. The incident of sodomy has been shown to be more detailed. We need not go into the details of the incident in view of the fact that in this case PW4 has specifically deposed, upon identifying her complaint, that it is correct to the extent deposed by her in her evidence. It is settled position in law that substantive evidence before the Court is to be considered. The FIR is to be seen merely for the purpose of corroboration. Hence, if in the evidence of the witness improvisations and additions are made to what has been mentioned in the FIR, it would have to stand rejected, being inadmissible in evidence as omissions or contradictions. In this case, there has been no omission in the evidence of PW4. We may have to see whether there is a contradiction in the case made out by PW4 in her FIR and in her substantive evidence. The cross-examination of PW4 has not brought out any contradictions. No part of the FIR has been shown to the witness for such purpose. No part of the FIR has been marked in evidence. Nonetheless, since we were shown the FIR, we may consider it for its worth. The lack of details of how she saw the Appellant herein as well as her child as reflected in the FIR and as deposed by her in Court does not show in any manner any variance in the incident deposed by PW4 or the offence, for which the Appellant is charged. We would have to 9 consider the evidence of the quilt since the deposition before us shows that the Appellant had covered his body with the quilt. We may mention that in such an event, PW4 would not have been in a position to have seen the Appellant naked. It would be upon the quilt that the truthfulness or otherwise of the case of the prosecution, through the evidence of PW4, would be seen. 9.The quilt (chaddar) has been seized by the Spot Panch, PW1, in the spot panchanama. His evidence shows that it was seized along with the towel and a gamcha (a piece of cloth used by loosely keeping on shoulder) of the Appellant. It has been deposed that the quilt and the towel had blood stains. These articles, inter alia, have been sent to the Chemical Analyser (C.A.) for his report by PW5. The C.A s Report, inter alia, shows the chaddar and the towel as Exhibits 1 and 2. The chaddar has been shown to have one washed blood stain in the middle portion. The towel is shown to be with blood at places. Both these articles have human blood. The blood on the chaddar is of Group O . The victim girl is shown to have the blood Group O . Hence, the fact that the victim girl was bleeding, is established. Her blood had been found on a quilt/chaddar. It is not the prosecution case that the girl was kept under the chaddar. The evidence of PW4 that the Appellant had 10 covered his body with a quilt is, therefore, established. That aspect in her substantive evidence is corroborated by the C.A. Report. The quilt which the Appellant had on his body at the time the mother of the victim child rushed to her a little after she started crying, had the blood of the victim child. The evidence of PW4 is, therefore, seen to be truthful. It must be appreciated that the mother took a little while to rush to the child. In the meantime, another boy, who was playing outside, had heard her crying. He reported to the mother in the adjoining room. After the child started crying and the other boy, who was just outside the room, called out to the mother, the Appellant would be expected to cover his body as has been deposed by PW4. The quilt has been seized. It was lying in the neighbour s house. The Appellant had covered his body with the quilt(chaddar). Further details in the FIR, therefore, do not matter. 10.The Appellant is, thereafter, stated to have immediately left the house and to have gone outside. He is expected to have put on his clothes. The clothes of the Appellant have been seized upon his arrest. One such apparel is a jangia and a banyan. These have been sent to the C.A. They have been described as Articles B1 and B2, which are Exhibits 3 and 4. The jangia of the Appellant is shown to have blood at the middle 11 portion which is reported to have been washed. The banyan of the Appellant is shown to have two blood stains near the left shoulder on the back. This blood is human blood. Jangia has the blood of AB Group. C.A. Report shows the Appellant having blood of AB Group. 11.The blood of the victim child and the Appellant on the respective pieces of clothing used by the Appellant and worn by the Appellant is the strongest corroborative evidence of what the mother saw as soon as she returned to her daughter. The fact that the child was bleeding and that the Appellant also bled is, therefore, established. The oral evidence of the mother as to whether she saw her child bleeding is, therefore, required to be accepted. The place of bleeding shows the unnatural offence committed by the Appellant. 12.Further, the quilt (chaddar) and the jangia of the Appellant shown as Exhibits 1 and 3 are also shown to be having semen stains. The semen is shown to be of human origin. This takes us to the evidence of the doctor, PW3. The doctor has examined the victim child as well as the Appellant. The doctor has produced the certificate in respect of both of them. Her evidence shows that she had examined the child at about 7.15 p.m. and she had examined the Appellant at about 11.40 12 p.m. after he was arrested at 9.30 p.m. on the same day. The doctor did not find any semen stains on the person of the victim child. She found an abrasion of about 1 cm. diameter in the anal region on the upper portion. She also found tenderness at that place and slight blood stain oozing . She has deposed that in her opinion, the injury was caused by penetration of elongated object of about 1 cm. diameter in anal canal. The age of the injury was 5 to 6 hours before the examination. She had collected and sent the swab of the anal region. That was the swab sent to the C.A. by the IO. Her certificate shows that there was no semen. 13.She also examined the Appellant. She found no injuries, no stains of semen or blood and no smegma on the Appellant. She certified the Appellant to be capable of performance of intercourse. 14.The injuries noticed by the doctor certified by her corroborate the evidence of PW4 entirely. The doctor found an abrasion in the anal region where the mother had seen the victim child bleeding. The opinion of the doctor about the object which caused the bleeding shows nothing other than the bleeding having been caused by the precise offence with which the Appellant has been charged, convicted and sentenced. 13 15.The cross-examination of the doctor shows that such injury can be caused by scratching with nail. It may be that such injury may be caused in various ways. What the Court is required to see is whether an injury that is caused corroborates the oral evidence of PW4. It must be remembered that the incident took place 5 to 6 hours before the medical examination of the victim child. The bleeding of the child was expected to have stopped. Hence, the abrasion was seen by the doctor. That abrasion is about the same size in diameter as the object with which the abrasion could have been caused. There is no other weapon used by the Appellant. The abrasion caused which resulted in bleeding and which was seen by the doctor was, therefore, caused by nothing other than the Appellant himself who was found at the scene of the offence. 16.The medical certificate of the doctor shows, inter alia, that there was no smegma upon the person of the Appellant. This shows that the Appellant had engaged in sexual intercourse within 24 hours of the medical examination. The Appellant is shown to have been at the house of his brother at that time. It was during these hours that the incident took place. The resultant absence of smegma is, therefore, directly linked with the incident. It could have been wiped off during the incident. The smegma was seen to have been 14 absent on the same day and within 24 hours of the incident. The importance of the absence of smegma is, therefore, the best circumstantial evidence against the accused. (See Dr.S.P. Kohli vs. The High Court of Punjab and Haryana, AIR 1978 SC 1753 and State of Karnataka vs. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043.) 17.Further evidence of the doctor shows that the tenderness could not exist for 5 to 6 hours at the spot which the bleeding occurred, if it was cleaned with pressure by some cloth. The Doctor s certificate, Exhibit-17, in evidence shows that tenderness was present as also the slight oozing. Since oozing had not stopped, the tenderness would remain for even 5 to 6 hours or more. The cross-examination of the doctor, at best, shows that tenderness was not possible after some hours. However, the fact that there was an abrasion at the same spot where the mother had seen her child bleeding has been left untouched in the cross- examination of the doctor. That aspect must, therefore, be accepted. 18.The evidence led by the prosecution being the oral evidence of the mother of the victim child supported and corroborated by the medical evidence as also the report of the C.A. clearly and conclusively shows the 15 unnatural offence of sodomy committed by the Appellant who was present at the scene of the offence and in the house of his brother at that time. 19.This evidence has been correctly appreciated by the learned trial Judge. 20.In the case of Jamal vs. State of Maharashtra, AIR 2007 SC 971, an unnatural offence committed upon a 6 year old child, who was raped and ravaged by the accused, was considered. In that case, the medical evidence of the doctor as well as the medical case papers were considered alongside the oral evidence of the victim child. The evidence of the 6 years old child was that the accused had taken her on his scooter and had forcibly removed her nicker. She deposed that he had urinated on her private part. The medical evidence showed that her hymen was intact. There was no semen or sperm or injury over the valva. There was an abrasion and redness. The medical evidence showed that there was intercourse through the rectum. She had also deposed that the act of the accused had pained her in her private part. Appreciating the evidence of the child of such tender years, who would not be able to depose about such an incident, a case of an unnatural offence was imputed upon the accused. Appeal of the accused was dismissed. 16 In this case also, the aforesaid medical evidence of the absence of smegma showed the act having been committed by the accused, though the complete penetration may have not resulted only because the child cried out in pain which was heard by outsiders and also her mother in the adjoining house. Further damage to the child was prevented. The commission of the unnatural offence, has been clearly shown. If the accused was not prevented by the cries of the child or the other boy who called the mother and coming of the mother, the offence would have been more grevious. The intention to commit such an offence, therefore, is clearly seen. The act of the accused has resulted in the unnatural offence being committed. The extremely tender age of the child makes the acts of the accused even more deplorable calling for stringent punishment. 21. It has been held in the case of State of U.P. vs. Kishan, 2005 (1) Crimes 40 (SC) that sentencing policy of the Court must be such as would reflect the conscience of the society. The society must treat the offence against children resulting in such sexual abuse with empathy as well as sentipathy. In this case, the say of the accused itself shows the agitated crowd that had gathered who wanted the accused to be brought to the book. That itself reflects the demands of the 17 society from the criminal justice system. The offence, which has been clearly established, calls for punishment of at-least 10 years rigorous imprisonment to be awarded to the accused. It is only because the act of the accused may have been stopped short of further harm and injury to the child by the child s cries that the life imprisonment awarded to the accused may call for modification. 22. The conviction of the accused is correct and is required to be upheld. However, the sentence to be passed against the accused may be modified, by imposing upon the accused a sentence of 10 years rigorous imprisonment instead of the imprisonment for life, which, we think, would meet the ends of justice. Remaining part of the order remains unchanged. 23. Appeal is disposed of accordingly. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]