sns 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.785 OF 2007 Sameer Ramazan Nadaf Age: 21 years, R/at: S.T.Colony, Chawl No.9, R.No.50, Junamalanaka, Ratnagiri Tal and Dist. Ratnagiri Presently in Ratnagiri Jail ..Appellant. v/s. The State of Maharashtra (At the instance of Special Case No.05/2006 pending Before the Sessions Judge Ratnagiri) ..Respondents. Mr. Rakesh Bhatkar, adv. for the Appellant. Mr. Y.S.Shinde, APP for the respondent/State. CORAM : J.H.BHATIA, J. DATE : 20th September, 2011 ORAL JUDGMENT: 1 The accused has preferred this appeal against the judgment and order passed by the learned Judge Special Court Ratnagiri in Special Case No.5 of 2006, whereby the accused/appellant was convicted for the offences punishable under Sections 376, 377, 342 and 506 IPC and was sentence to undergo R.I. for seven years and to pay fine of Rs.500/- for the charges under Section 376 and 377 of the IPC while no separate sentence was awarded for the offence under Sections 342 and 506 IPC. sns 2 2 Prosecution case, in brief, is that the prosecutrix was aged about 15 years and after her annual examinations for 9th standard, she was preparing for 10th standard. For that purpose, during the summer vacations she used to attend coaching classes. On 26.4.2005 on her way to the coaching classes, she was passing by Hindu Colony and S.T.Colony. On her way, her friend Yogesh Jadhav went away. They talked for sometime and then Yogesh Jadhav . When she was passing by the abandoned building of a godown, one unknown person , who was later on identified as the accused, came from her behind, caught hold of her hands and pulled her into the said godown, gagged her mouth and threatened against shouting. The accused told the prosecutrix that if she would not submit , he would disclose her movements with Yogesh Jadhav to her brother. Having said so, he closed door of the godown and latched it from inside. Thereafter, he stripped off her clothes. He also removed his own clothes and first had intercourse with her by inserting penis in her anus but shortly he made her lie on the ground and had sexual intercourse with her. After the sexual intercourse was over, prosecutrix put on her clothes and ran away, narrated the incident to her mother and she and her mother went to the place of occurrence where the accused was seen in the company of other boys. She pointed out the accused to her mother. Her mother also informed her father about the incident and then she went to the police station and the sns 3 prosecutrix lodged the report Ex.17. At that name of the accused was not known and therefore, it was registered against unknown person. Prosecutrix was immediately referred to the medical examination. Her clothes were seized. Accused was also arrested on the same day. He was also subjected to medical examination and his clothes were seized. Their blood samples were collected. Medical officer also collected vaginal swab of the prosecutrix. All these articles were referred to C.A. Later on, test identification parade was held where the prosecutrix and her mother identified the accused as the culprit. As it was revealed that the prosecutrix was Buddhist by religion, Section 3 (i)(xi) of the Scheduled Castes & Scheduled Tribes ( Prevention of Atrocities ) Act was also added. 3 After the case was committed to the Court of Sessions, the accused was charged for the offence punishable under Sections 376, 377, 342 and 506 IPC as well as under Section 3 (i)(xi) of the Scheduled Castes & Scheduled Tribes ( Prevention of Atrocities ) Act. On behalf of the prosecution in all seven witnesses were examined and several documents were placed on record. According to the accused, he was falsely implicated in this case. After the trial accused was acquitted of the charge under Section 3 (i)(xi) of the Scheduled Castes & Scheduled Tribes ( Prevention of Atrocities ) Act while he was convicted and sentence under the charges as stated above. sns 4 4 The learned counsel for the accused/appellant vehemently contended that the prosecution case is based on the sole testimony of the prosecutrix without any corroboration. According to him, even the medical evidence and the C.A. Report do not provide any corroboration to her. Further, he contended that the test identification parade was not properly held and, therefore, when the case was registered against the unknown person, the accused can not be held guilty and at least benefit of doubt should be given to him. The learned APP contended that conviction in rape case can be based on the sole testimony of the prosecutrix even without any corroboration to her testimony as a woman is not likely to make false charge of rape on her at the cost of her honour or reputation in the society. 5 Prosecution case is mainly based on the evidence of the prosecutrix, who was aged about 15 years and two months at the time of incident. As per the evidence of P.W.5 Suman Patne, Head Mistress of the Municipal High School where the prosecutrix had taken education, her date of birth is recorded as 22nd February, 1990. Incident occurred on 19.4.2005. Even medical certificate also shows that the prosecutrix was aged about 15 years. The evidence about her age is not seriously disputed. Prosecutrix has deposed about the facts as narrated above. According to her, when she was proceeding towards A.K. Desai High School for attending the classes for 10th standard via Hindu Colony, her friend Yogesh Jadhav met her. After sns 5 some talk, Yogesh went away. When she was near a godown near the S.T. Colony, one unknown person came from behind, gagged her mouth and pulled her forcibly inside the godown. He was young boy aged about 20-22 years and fair complexion and was wearing red and blue coloured jersey and blue coloured half pant. She identified the accused as the same person. According to her, the accused told her that he would tell her brother that she was frequently moving alongwith Yogesh Jadhav. Giving the threat of disclosure, the accused forcibly took her into the godown and then shut the door and latched it from inside. She deposed that the accused himself stripped off her clothes and then he removed his clothes also. Initially, the accused inserted his penis in her anus and then he withdrew and made her lie on the ground and committed sexual intercourse with her. She deposed that after sometime and having committed sexual intercourse with her, accused put on his clothes and also put on clothes on her person. Thereafter, the accused went away. She also came out of the godown and went to the house where she informed about the incident to her mother. She also deposed that she took her mother to the spot of the incident. 6 P.W.2 Prabhavati is her mother. She deposed on the same line. According to her, the prosecutrix had taken her to the spot of incident and pointed out the accused as one of the three boys, who was present outside godown as the person , who had sexually violated her. sns 6 7 P.W.3 Swapnil was said to be with the accused when the prosecutrix and her mother went to the spot and the accused was pointed out by the prosecutrix to her mother as an assailant. However, P.W.3 Swapnil did not support the prosecution and was declared hostile. 8 P.W.4 Yogesh Korgaonkar runs a shop near S.T.Colony. He deposed that on 26.4.2005, when he was at his shop, he saw a girl running away from near the godown, which was abandoned. The said girl had a red payjama on her person. She was running towards the stadium. Within a short time, the accused Samir Nadaf and P.W.3 Swapnil came to his shop, drank water and went away. Testimony of P.W.4 Yogesh has gone unchallenged. It provides corroboration to the testimony of the prosecutrix that she was taken inside the godown and then after the incident, she ran away from the godown and at about the same time, the accused was also present near the spot of the incident alongwith his friends. 9 The learned counsel for the accused/appellant contended that the offence was registered against unknown person and for want of proper identification, he could not be held guilty. I am unable to accept this contention. As far as identity of the accused is concerned, when the F.I.R. was lodged, the prosecutrix and her mother were not knowing name of the accused but the prosecutrix had seen the accused for sufficient time when the accused had committed the offence in the godown. Not only that within sns 7 a short time, she had come back to the spot of the incident and had pointed out the accused among three boys, who were present there, to her mother. As noted above, the evidence of the prosecutrix finds corroboration from the evidence of P.W.4 Yogesh. He not only saw the prosecutrix running away from the spot of incident but also noted presence of the accused near the spot of the incident immediately after the occurrence of the incident. The evidence of P.W.6 Naib Tehsildar Maruti Kamble shows that the prosecutrix and her mother Prabhavati identified the accused during the test identification parade. Accused was made to stand among certain dummies and he had taken care that the accused was not shown to the prosecutrix and her mother. He deposed that the prosecutrix and her mother were called one after the other for the purpose of identification of the accused, who was standing at different locations among the dummies. After the identification by the prosecutrix, she went away and then accused was allowed to change his clothes and also his location in the queue. In the cross-examination, he admitted that he had not noted in the memorandum of test identification parade that the accused was standing at Sr.No. 3 from the left side of the queue and that he had also not mentioned that the prosecutrix and her mother were called one after the other. Barring these two deficiencies, there appears no other serious deficiency in the test identification parade held by Naib Tehsildar. Taking into consideration the sns 8 prosecution evidence in its totality, I do not find any scope to doubt that the accused was properly identified and that he was also apprehended on the same day. 10 Now coming to the offence allegedly committed by the accused, the immediate disclosure before mother and evidence of mother to that extent provides corroboration to the testimony of the prosecutrix. As far as the main incident is concerned, she is naturally the sole witness of the incident. According to her, firstly, the accused had inserted his penis in her anus and thereafter, he had committed sexual intercourse by inserting penis in her private part and, therefore, the accused was charged for committing unnatural offence punishable under Section 377 as well as for the offence of rape punishable under section 376 IPC. It is now well settled position of law that the prosecutrix in rape case can not be equated with an accomplice because she is actually a victim of the offence and her evidence is to be tested just like victim of any other offence. Normally a woman is not likely to make false charge of rape on her, because her own reputation and honour in the society is at the great risk. Therefore, conviction in an offence of rape can be based on the sole testimony of the prosecutrix even without any corroboration. In State of Punjab v. Ramdev Singh AIR 2004 SUPREME COURT 1290 and also in Aman Kumar and another v. State of Haryana AIR 2004 Supreme Court 1497, it was held by the Supreme sns 9 Court that if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice. It is also settled that when the case is based on the sole testimony of the prosecutrix, the Court may look for medical evidence or other such evidence to lend assurance to her testimony. In the present case, the prosecutrix is the sole witness of the incident. In my opinion, it will be useful to scrutinise the other evidence on the which the prosecution relies. 11 Prosecution has produced medical certificate of the prosecutrix. It was admitted by the accused under Section 294 and, therefore, it was admitted in the evidence and was given Ex.40 without examining medical officer as witness. The medical certificate shows that Medical Officer could not give any opinion as to whether the prosecutrix was subjected to Sexual Intercourse. He clearly opined that hymen was not torn, which means hymen was intact. There were no injuries either outside or inside private part of the girl. There were no other injuries anywhere on her body. 12 The clothes of the prosecutrix and the accused were referred to C.A. As per C.A.Report, two semen stains were found on the Exh.3 underwear of the prosecutrix and blood stains were found on Exhibits 3 and 5, i.e., underwears of the prosecutrix and the accused respectively. No sns 10 blood stains or semen stains were found on the other articles. Ex.37 is another C.A.Report pertaining to vaginal smear and anus smear as well as pubic hair of the prosecutrix. It should be noted that she was examined on the same day and within a short time after the incident. It is not shown that she had taken bath or wash. The prosecutrix was aged about 15 years. The accused was a young man aged about 22 years. Her evidence shows that the accused had sexual intercourse with her for some time and after the act was over, he put on the clothes and went away. If she was subjected to sexual intercourse by a well grown up young man of that age, hymen could not remain intact. As the medical certificate shows that hymen was intact, it goes against the testimony of the prosecutrix. Absence of semen in the vaginal swab or pubic hair also goes against her testimony. In view of this evidence, it must be held that though the prosecutrix was assaulted by the accused, there is no evidence to lend assurance to her testimony that she was subjected to sexual intercourse and thus, rape was committed on her. 13 According to the prosecutrix, the accused had first inserted his penis in her anus. Medical certificate also shows that penetration of the male organ in her anus could not be ruled out. Besides this, presence of semen stains on her underwear provides corroboration or assurance to her testimony that she was subjected to unnatural offence by the accused. In view of this evidence, in my opinion, prosecutrix may be believed and it may sns 11 be held that the accused had committed unnatural offence punishable under Section 377 IPC. 14 In view of the facts and circumstances noted above, the conviction and sentence for the offences punishable under Section 376 IPC will have to be set aside but the conviction under Section 377 IPC appears to be proper and has to be maintained. The offence under Section 377 is punishable with imprisonment for life or with imprisonment of either description, which may extend to 10 years and also some fine. Accused was in custody from 26.4.2005 to 29.6.2005, when he was granted bail during the trial. He was again taken in custody on 20.7.2007, when he was convicted and sentence by the impugned judgment and order and since then he is in jail. Thus, he has been actually in jail for a period of more than four years and four months. In fact, since 2007, he may also entitled to some remission as per the jail rules. In my opinion, the sentence of imprisonment, as already undergone, is sufficient for the offence punishable under Section 377 IPC. 15 Therefore, the appeal is partly allowed. Conviction and sentence for the offence punishable under Section 376 IPC are hereby set aside. Conviction for the offence under Section 377 of the IPC is maintained, however, he is sentenced to undergo imprisonment as already sns 12 undergone and he be set at liberty forthwith, if not required in any other case. (J.H.BHATIA, J.)