1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1003 OF 2004 Kasam Abdul Rahiman Shaikh adult, (age 38) ) of Mumbai Indian Inhabitant residing at Bhagat ) Singh Nagar No.2, Patekar Galli, Goregaon (West)) Mumbai 400 062. ).. Nasik Road Jail. ).. Appellant (Orig. Accused. Versus The State of Maharashtra ) At the instance of Goregaon Police ) Station, Mumbai. ).. Respondent Ms. Irshad I. Shaikh i/b. Shi Imtiyaz Patel, Advocate, for the appellant. Ms. S.V.Gajare, APP, for the respondent- State. CORAM: J.H.BHATIA, J. DATE : 24th June, 2010. JUDGMENT: 1. The appellant has challenged his conviction for the offence of attempt to commit rape punishable under Section 376(2)(f) read with Section 511 IPC and sentence to undergo rigorous imprisonment for seven years and to pay fine of Rs. 3,000/- and in default to undergo R.I. awarded by the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No.80/1996. 2 2. The prosecution case, in brief, is that accused/appellant was a neighbour of Mrs. Valli Amma Armogam Nayar Nadar. They were living in a hutment area at Prabhat nagar, Teen Dongri, Goregaon (W), Mumbai. Mrs. Valli Amma was living there with her husband and three daughters, youngest of them being Saraswati, aged about 3 years. Her husband used to work as a hawker to sell Idlies at Goregaon between 9 a.m. to 12 noon and again from 4 p.m. to 8 p.m. every day to earn livelihood for the family. On 20.10.1995 at about 4 p.m., said Valli Amma heard screams of her youngest daughter Saraswati. from the room of the accused and she immediately rushed to the room of the accused, pushed the door of the room and got it opened. She found her daughter lying on the floor in a sleeping position and her nicker or chaddi was lying aside by her side. The accused had also lifted his Lungi up and was rubbing his penis around the private part of the girl. Seeing this, P.W.1 - Valli Amma became angry and thrashed the accused with her chappel. The accused immediately left the girl and went to the corner. She examined her daughter and found semen stains on her private part and also on her thighs which had become wet and sticky. She took her daughter to her house. At that time, her husband was leaving the house to sell Idlies and therefore, she could not go to he police station immediately. Later on, when her husband's uncle P.W.2 Senni Nadar came to know about the incident, along with him, P.W.1 Valli Amma went to Goregaon Police Station and lodged 3 FIR Exhibit 8 about the incident at about 1.10 a.m. on 21.10.1995. On that basis, Crime No.612/95 was registered for the offence of rape. The police prepared spot panchnama and seized Lungi of the accused under the said panchnama. Frock and nicker of the girl were also seized under a panchnama Ex.17. The girl was referred to the Police Hospital, Nagpada during the same night and was examined. Her vaginal swab and blood samples were taken and sent to C.A. The accused was arrested on 21.10.1995 at about 21.15 hrs. and he was also referred for medical examination. All the articles were referred to C.A. After investigation, charge sheet was filed against the accused. The learned Additional sessions Judge framed the charge under Sec. 276(2)(f) IPC for the offence of rape on a child below the age of 12 years. The accused pleaded not guilty and according to him, he was falsely implicated in the case. 3. After hearing the prosecution evidence and the parties, the learned trial Court found that penetration had not taken place and the accused was guilty of attempt to commit rape and accordingly he was convicted and sentenced. 4. Heard the learned Counsel for the parties. perused the record and proceedings. The prosecution had examined in all 7 witnesses and also placed on record several documents in support of the prosecution case. As the victim girl 4 was hardly 3 years, no purpose would have been served by examining her before the court. Therefore, she was not examined. Her mother PW1 Smt. Valli Amma Nadar is the main witness of the incident. She has deposed that on the date of the incident at about 4 p.m., she was at her house and she heard screams of her daughter from the room of the accused and she immediately rushed to the house of the accused. The door was not closed from inside, She pushed it and it was opened. She found the accused in naked condition and also saw that the under- wear of her daughter was lying by her side. The accused was on the person of the victim girl and he was rubbing his penis around the private part of the girl. She immediately shouted and abused him in Tamil language as the parties are Tamilians. She also began to thrash him with a chappel. The accused left the girl and put on his Lungi. P.W.1 Valli Amma examined her daughter and found that there was sticky substance around her private part and other legs as well as on her frock. She took her daughter to her house. At that time, her husband was about to leave for his day to day business of selling Idlis and therefore she did not go to police station immediately. She wanted some help for this purpose. In that light, P.W.2 Senni Nadar, who is their relative, came there and she narrated the whole incident and hereafter she went to the police station and lodged a report during the following night at about 1.10 a.m. Thus there was a delay of about 9 hours but the delay has been explained. P.W.2 supported the prosecution case naturally on 5 the basis of what was told to him by P.W.1 Valli Amma. 5. The victim girl was examined by Dr. Babulal Damawale. On physical examination, he found that the general condition of the girl was good. She was mentally sound and her gait was normal. On local examination, he found her Labia Majora, Labia Minora and clitoris to be normal. there was no vaginal mucosa. Hymen was circular and was intact and the hymen orifice admitted only tip of little finger which is natural for a girl of such tender age. There were no injures, abrasions or inflammation or the redness marks in or around her private part. 6. The accused himself was examined by P.W.3 and nothing abnormal was found. Naturally, there were no abrasions or injuries on his private part. The penis was circumcised and smegma was absent. The accused had taken bath after the alleged incident as per the information given by him. However, the accused had discharged semen. The evidence of P.W.3 Dr. Kelvekar about the medical examination of the accused does not provide much corroboration to the prosecution story. 7. As per the evidence of P.W.5- Ramchandra Nadar,one Lungi and one 6 chadder were seized from the spot of the incident, being the house of the accused, under a spot panchnama Ex.15. The Lungi was article 4. The evidence of P.W.6 - Joseph reveals that the clothes of the victim were seized under a panchnama Ex.17 on the same day. Article 2 is the frock and article 3 is the nicker. As per the witnesses, these clothes were separately wrapped and sealed at the time of seizure panchnama. All these articles were referred to C.A. with a forwarding letter dated 20.11.95 Ex.19 and the C.A. report Ex.21 was received. C.A. report disclosed that the Lungi of the accused and the frock of the girl bore semen stains. They were semens of human being, though the blood group could not be determined. The presence of semen on the Lungi of the accused and the frock of the girl provide corroboration to the testimony of P.W.1. 8. Though the victim girl was not examined and the prosecution totally relied upon testimony of her mother P.W.1, evidence of P.W.1 Valli Amma cannot be disbelieved. She had no reason to falsely implicate the accused iin such a heinous offence involving her minor daughter. Her evidence is very natural and cogent. 9. Taking into consideration the evidence on record, it appears that the accused had tried to commit rape, but there is no evidence that there was any 7 penetration and therefore, the trial Court found that the offence of rape is not proved but the offence of attempt to commit rape has been proved. Taking overall view of the matter, I find no fault in this finding. The trial Court observed that the maximum sentence for offence of rape is life imprisonment. He had treated the life imprisonment to be imprisonment for 14 years for purpose of calculation and awarded seven years' imprisonment being half of the same to the accused. The accused has already undergone the sentence and, therefore, no purpose will be served by interfering in the sentence. 10. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.)