1 CriApl230/10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.230 OF 2010 Rasool Shah S/o Sardar Shah Age 50 years, Occu. Labourer, R/o Baijipura, Aurangabad .. APPELLANT V E R S U S The State of Maharashtra ... RESPONDENT Shri R.K. Temkar, Advocate (appointed) for the appellant Shri N.H. Borade, APP for the respondent / State CORAM : U. D. SALVI, J. DATED : 30th August, 2011 ORAL JUDGEMENT : 1. This is an appeal against the Judgment and Order dated 06-07-2009 passed by the Assistant Sessions Judge-V, Aurangabad, in Sessions Case No. 198/2008, convicting the appellant / accused Rasool Shah, 48 years old man for the offence punishable Under Section 376(2) (f) of the Indian Penal Code, 1860 and consequent sentence of ten years R.I., and fine of Rs. 1,000/- in default to suffer further R.I. of six months. 2 CriApl230/10 2. One Abedabee W/o Akbar Shah, resident of Galli No. 4, Baijipura, Aurangabad lodged a complaint of rape committed on her brother’s daughter, on 24-04-2008 with Jinsi Police Station Aurangabad. According to the prosecution, the victim was mentally retarded girl of six years, and she was found crying and taking the name of the accused “Bade Aba Bade Aba”, in Galli No. 4, Baijipura, Aurangabad, around 3.30 PM on 24-04-2008. Her clothes, frock and knickers were found blood stained and her medical examination revealed injuries on her private part, thereby indicating a case of sexual assault. 3. A Crime-bearing Crime No. I-58/2008 Under Section 376(2) (f) of the Indian Penal Code, 1860, around 16.15 Hrs was registered on 24-04-2008 at Jinsi Police Station, Aurangabad, against the accused on the basis of the statement made by Abidabee. The police caused the seizure of the clothes of the victim as well as the clothes of the accused, and arrested the accused. Statements of witnesses were recorded. The victim and the accused were medically examined. Vaginal swab was collected during the examination of the victim. The blood, nail clippings of the victim and the accused were collected. All biological samples were sent to Forensic Science Laboratory along with the other seized articles. Human blood of group ‘O’ was detected on the 3 CriApl230/10 clothes of victim and accused. Human blood of group ‘O’ was particularly found on the clothes of the victim i.e. frock and knickers, and blood collected from the scene of offence. Both the victim and the accused had blood group ‘O’. 4. The police recorded the observations made at the scene of offence in the form of Panchanama (Exh. 40) and collected blood from the spot. On completion of investigation, the charge sheet was duly filed against the accused in the Court of learned 9th Judicial Magistrate First Class, Aurangabad. The case was committed to the Court of Sessions in due course, and the trial of the accused commenced with framing of charge under Section 376 of Indian Penal Code, 1860 (Exh.3/c). 5. Eight witnesses were examined in support of the prosecution case. However, none amongst them was an eye witness. Eventually, the case rested on the circumstantial evidence. 6. The learned Advocate for the appellant / accused submitted that except the fact that the victim, a mentally retarded girl of six years was found crying and taking the name of “Bade Aba Bade Aba”, there was nothing credible in the prosecution evidence, 4 CriApl230/10 and the evidence is insufficient to prove the guilt of the accused. The learned Advocate for the appellant / accused, took the Court through entire evidence and pleaded for acquittal of the accused. 7. The learned APP submitted that the medical evidence read with outcome of forensic investigation added meaning to the cry of the victim, particularly she taking the name of the accused as “Bade Aba Bade Aba”, and the circumstances brought on record are sufficient to infer the involvement of the accused in the crime, particularly in absence of any explanation offered by the accused regarding the blood stains on his clothes i.e. Lungi (Article 4). 8. It is necessary to point out from the evidence, what it has to offer. PW-1 Abidabee aunt of the victim and sister of the accused deposed that, at the material time, she was busy in selling vegetables on cart, and had to return home on receiving message about the some happening at the house of Sahenshah her brother, who had gone outstation to attend the marriage along with mother of the victim. She had noticed the victm, a mentally retarded girl of nine years, wandering outside her house and she had handed over the clothes of victim girl i.e. frock (Article 2) and knickers (Article 3) which were on the person of the victim, to the police, and thereafter, lodged a complaint (Exh. A). She deposed that she had 5 CriApl230/10 seen many people gathered in front of the house of Sahenshah. Nothing much turned in the cross-examination of PW-1 Abidabee except that she was ignorant about the contents of complaint (Exh. 8). The fact that the clothes on the person of the victim were handed over to the police stood un-demolished. Many people gathered outside the house of victim is also suggestive fact that something amiss had taken place. 9. PW-2 Taherkhan unquestionably brought on record the following facts :- I] The accused was residing in Galli No. 4, Baijipura, Aurangabad, near the house of the victim. II] The accused was beggar and drinking liquor. III] Victim girl was mentally retarded. IV] The victim was crying with blood oozing from her thighs. V] clothes of the victim were blood stained. VI] Blood was found outside the house of the accused and accused was found sitting on the bed. His cross-examination has done no damage to the case offered in his examination-in-chief. 6 CriApl230/10 10. PW-3 Hasina Syed Mohd., deposed that she had seen the victim girl crying and blood oozing from her private part at Galli No. 4, Baijipura, Aurangabad around 3.30 PM and the victim was shouting as “Bade Aba Bade Aba”, signifying reference to the accused. She added that she had seen blood on the floor in the house of Bade Aba i.e. the accused. Her cross-examination yielded no fruit in favour of the defence. 11. PW-4 Ahenoorbi W/o Shahenshah, mother of victim girl deposed that she was living with three daughters, including the victim girl, and her husband along with her two sons had left their residence Baijipura, Aurangabad for Jamner Dist. Jalgaon. Upon getting message from Irphan, nephew about the rape committed on victim girl by the brother-in-law, she returned and met the victim girl in the hospital. According to her, her eldest daughter, aged about 13 years old, was at the residence, at the material time. She further deposed that victim girl was mentally retarded, Accused was also called as “Bade Aba Bade Aba” . What could be gathered from her evidence is the fact that the victim daughter called the accused as “Bade Aba Bade Aba”. 12. PW-5 Erfansha S/o Lookmanshah, was the panch to the spot panchanama (Exh.14). He revealed that he had seen 7 CriApl230/10 blood at the spot in the house of the accused and the police had collected the said blood by means of vaginal swab. His cross- examination did not yield anything for the defence, except the fact that he was not in a position to reveal what was written in the Panchanama (Exh. 14) for the reason of his illiteracy. Pertinently, Panchanama (Exh. 14) shows spot of the incident in the open place from where the blood was collected. 13. PW-6 Arefshah S/o Sardarshah, relative of the accused, deposed about the seizure of the clothes of the victim and the accused (Article Nos. 1 to 4) under Panchanama (Exh. 16 & 17). However, his cross-examination revealed that he had seen the clothes for the first time in the Court and had blindly signed the Panchanama’s (Exh. 16 & 17). 14. PW-7 Dr. Kalawati Jaju deposed that she had examined the victim girl on 24-04-2008, in the Government Medical College & Hospital, Aurangbad, and noticed presence of semen and blood stains on her genital and her hymen was found ruptured, and her posterior vaginal wall was torn. In her opinion, the girl was sexually assaulted, and she added that the victim girl was hospitalized for two days. She denied the suggestion that hymen rupture can be caused, if a girl fell on the hard and blunt 8 CriApl230/10 object and by itching (scratching). It is rather strange that despite noticing blood / semen stains on the genital, PW-7 made no reference to collection of biological samples i.e. semen taken from the genitals of victim or the vaginal swab for further forensic investigation. On the other hand, curiously, there is a C.A. Report (Exh. 33) regarding the result of the Forensic Investigation done in respect of blood, nail clippings and vaginal swab and biological samples collected from the victim girl. C.A. Report (Exh. 33) reveals absence of blood and semen in the nail clippings and vaginal swab and C.A. report indicates that blood of the victim girl and accused belonged to group ‘O’. 15. PW-8 Hanumant Laxman Urlagondwar, Police Sub- Inspector recounted the progress of the investigation from the time the crime was registered against the accused. He deposed that the clothes of the victim girl frock and knickers as well as clothes of the accused-Lungi and underwear having lot of blood stains were seized under Panchanama and the same were sent to C.A. for the purpose of forensic investigation under his letter (Exh. 30). He referred to sending of semen, blood and nail clipping samples taken from the accused to the C.A. According to him, samples of pubic hair of the victim were collected by the Medical Officer, and were sent to C.A., he referred to (Exh. 31 to 34) which were 9 CriApl230/10 received after forensic investigation. However, C.A. reports (Exh. 31 & 32) revealed detection of human blood on clothes of the victim girl as well as Lungi of the accused. Scientific investigation did not reveal any blood or semen on the pubic hair or in the nail clippings. Semen was also not found on the clothes of either victim or the accused. His evidence further revealed that when he drew the spot panchanama (Exh. 40), he found it to be the busy place. 16. It is true that the victim girl was not examined. However, the reasons for non examination have clearly emerged from the testimonies of the witness that the girl was mentally retarded. The accused in his statement recorded Under Section 313 of Criminal Procedure Code admitted that the victim girl called him as “Bade Aba” and his Lungi was seized. These undisputed circumstances along with the results of scientific investigation do point out that the victim girl was sexually assaulted and had immediately indicated the involvement of the accused by calling him as “Bade Aba Bade Aba”, and involvement of the accused in the sexual assault surfaced as a result of the finding of the blood on Lungi of the accused and the open place near the residence of the accused. However, these revelations in the evidence are not sufficient to conclude that there has been forcible sexual 10 CriApl230/10 intercourse, particularly for want of any direct evidence coming from the either the victim or from a person witnessing it. 17. It can be seen from the explanation to Section 375 of Criminal Procedure Code that mere penetration is sufficient to constitute sexual intercourse necessary to establish the offence of rape. Consequently, ejaculation of semen is not necessary, and therefore, absence of semen cannot cast doubt on the correctness of the prosecution case. However, in the instant case, there is no medical evidence regarding potency of the accused to perform the sexual act or injuries on the male organ of the accused. Medical opinion in that regard, and particularly regarding the possibility of injuries on the male organ of accused, in a case of mere sexual penetration into the minor victim girl could have thrown light on the involvement of the accused in rape on the victim girl. However, circumstances do reveal a fact that the accused did use criminal force to the victim girl to cause injury to her genitals and obviously with intention to outrage her modesty an offence punishable under Section 354 of Indian Penal Code, 1860. 18. Parties were heard on the point of sentence. Certainly, even the lesser offence of outraging modesty committed by the appellant / accused vis-a-vis mentally retarded minor girl is a 11 CriApl230/10 vicious act and deserves to be dealt with heavily. However, maximum punishment for the said offence is two years R.I. and fine. The appellant / accused. in given circumstances, deserves maximum punishment. The accused Rasool Shah s/o Sardar Shah is sentenced to suffer R.I. for two years and to pay fine of Rs. 1,000/-. Nothing more can be imposed and the accused having undergone sentence in the prison for more than three years, would have to be released forthwith by the Prison authorities subject to the payment of fine. The learned Advocate Mr. R.K. Temkar has done commendable job as a amicus curie and the office shall arrange for the payment of Rs. 5,000/- (Rs. Five thousand only) as fees to him. The Appeal stands partly allowed. ( U.D. SALVI, J. ) SDM*August-11