Cri. Appeal No. 237/1998 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 237 OF 1998 AND CRIMINAL APPLICATION No.4528/2010 1. Jalinder s/o. Devidas Muley, Age 24 yrs., Occu. Agril., 2. Sitabai w/o. Devidas Muley, Age 45 yrs., Occu. Agril., Both R/o. Daithana, Tq. Kaij, Dist. Beed. ....Appellants. Versus The State of Maharashtra ....Respondent. Mr. Sandeep S. Deshmukh, Advocate for appellants. Mr. S.G. Nandedkar, APP for respondent/ State. CORAM : T. V. NALAWADE, J. DATED : 25th July, 2011. JUDGMENT : 1. This appeal is filed against judgment and order of Sessions Case No. 56/1997, which was pending in the Court of 2nd Additional Sessions Judge, Ambajogai, District Beed. The appellants are convicted and sentenced for offences punishable under sections 376, 201, 506 r/w. 34 of the Indian Penal Code (IPC). Criminal Application No. 4528/2010 is filed by the prosecutrix and Cri. Appeal No. 237/1998 2 the appellants, for permission to compound the offences. 2. In short, the facts leading to the institution of the appeal and other proceedings can be stated as follows :- The parents of the prosecutrix and both the accused are residents of village Daithana, Taluka Kaij, District Beed. Accused No. 2 is the mother of accused No. 1 and they are neighbours of the father of the prosecutrix. At the relevant time, the prosecutrix was aged about 10 years and the accused No. 1 was aged about 23 years. 2. The incident took place on 24.1.1997. On that day the prosecutrix did not attend the school as she was asked by her mother to do some household work. At about 11 am the parents of the prosecutrix left home for the field. The younger brother and younger sister of the prosecutrix had already left home for school. At about 1 pm prosecutrix was alone in the house. At that time, accused No. 2 came to her house. Accused No. 2 said to the prosecutrix that she would give guava to prosecutrix in the field of accused accused No. 2. Sandeep, grandson of accused No. 2, was with her. Prosecutrix went with accused No. 2 and Sandeep to the Cri. Appeal No. 237/1998 3 field of accused No. 2. In the field there is cattle-shed of accused. Accused No. 2 gave few guava to the prosecutrix and she left by saying that she would return to the shed after collecting firewood. Accused No. 1 was already present in the shed and so, after leaving of accused No. 2 and Sandeep, only accused No. 1 and the prosecutrix were present near the shed. 3. The incident took place at about 2 pm. Accused No. 1 went close to the prosecutrix and after embracing her, he started pressing the chest of the prosecutrix. The prosecutrix became frightened and she started crying. Then accused No. 1 made her to lie on the floor on the shed and he removed her inner garment. Accused No. 1 then opened the zip of the pant and he started to have sexual intercourse with the prosecutrix. Prosecutrix was suffering from severe pain due to this act of accused No. 1 and she started shouting. 4. Kantabai and Dagdu, two villagers, were passing by the road which is adjacent to the shed. They rushed to the shed after hearing the shouting of the prosecutrix. After seeing these two persons, accused No. 1 ran away. The prosecutrix narrated the incident to these two villagers and they reached her to her house. Cri. Appeal No. 237/1998 4 5. The parents of the prosecutrix returned from the field at about 7 pm on that day. They noticed that prosecutrix was crying. When they made inquiry, prosecutrix narrated the incident to them. On the next day the parents of prosecutrix started for Kaij Police Station. The mother of prosecutrix had taken the clothes of the prosecutrix, which were on the person of the prosecutrix at the relevant time, in her hand. Accused No. 2 snatched these clothes from the hands of the mother of the prosecutrix and accused No. 2 threw the clothes in a fire place of sweet mart. Even after the incident, the parents of prosecutrix took the prosecutrix to Kaij Police Station. They noticed that there was no police officer in the police station. When they came out, they noticed that accused No. 1 and his brother were present in Kaij. Accused No. 1 and his brother gave threats to the parents of the prosecutrix that they would fracture their limbs, if the report was given against accused No. 1. The parents then returned to the village with the prosecutrix. 6. On 28.1.1997 the parents of the prosecutrix took her to Beed Police Station. Prosecutrix narrated the incident to the police and report came to be recorded. This report came to be transferred to Kaij Police Station, where the crime at Cr. No. 16/1997 came to be Cri. Appeal No. 237/1998 5 registered for aforesaid offences. Head Constable Repe of Kaij Police Station made most of the investigation. He prepared panchanama of the shed where the incident had taken place. He recorded statements of parents of prosecutrix and two persons like Kantabai and Dagdu. Accused No. 1 came to be arrested on 3rd February 1997 and accused No. 2 came to be arrested on next day. Clothes of accused No. 1 were taken over under panchanama. The prosecutrix was referred for medical examination. The Medical Officer collected pubic hair and vaginal swab for sending them to CA Office. These articles and the clothes of the accused were sent to CA Office. The charge-sheet came to be filed for aforesaid offences. 7. In the Sessions Court, prosecution examined 10 witnesses. Accused took the defence of total denial. One doctor was examined by defence as a defence witness. Both accused Nos. 1 and 2 are convicted by the Trial Court for offences punishable under sections 376 r/w. 34 of IPC and they are convicted for other offences also. 8. It was argued for the appellants that the Trial Court has committed error in convicting accused No. 2 for the offence punishable under section 376 r/w. 34 of IPC. It was submitted that Cri. Appeal No. 237/1998 6 the evidence is not sufficient to infer the abetment as against accused No. 2. It was submitted that there is no convincing evidence for proving the offence under section 201 or 506 of IPC. It was submitted that the delay of about 4 days caused in giving the FIR and the absence of medical evidence, are such circumstances that the accused are entitled to get benefit of doubt. Alternatively, it was submitted that if the Court comes to the conclusion that there was atleast an attempt of rape, the application filed by the prosecutrix, who is now major, for permission to compound the offence can be considered and atleast a lenient view can be taken in view of the application and the aforesaid circumstances. The APP argued in support of the decision of the Trial Court. 9. The prosecutrix (PW 5) was aged about 11 years when her evidence was recorded. The evidence came to be recorded within one year and two months of the date of incident. The Trial Court found that the prosecutrix is competent witness and the Trial Court has believed the prosecutrix. The evidence of prosecutrix shows that she has given some details of the incident also, the details of the family etc. 10. The prosecutrix has deposed that on that day at about 1 pm Cri. Appeal No. 237/1998 7 she was alone in the house as her mother had asked her to stay at home and do some household work. She has deposed that the parents had gone to the field and her younger brother and younger sister had gone to school. She has deposed that accused No. 2 came to her house with her grandson Sandeep and accused No. 2 invited her to the field by giving promise that she would give guava to prosecutrix. She has deposed that after reaching the field, accused No. 2 gave her two guava and then left her in the shed, by saying that she would return to the shed after collecting fire wood. She has deposed that the grandson of accused No. 2 Sandeep was also taken with her by accused No. 2, but the accused No. 1 was present in the shed. 11. The prosecutrix has given evidence that in the incident accused No. 1 pressed her chest, he made her to lie on the floor on the shed, he removed her inner garment, he opened the zip of his pant and then he put his private part on her private part. The prosecutrix has deposed that the accused inserted his private part into her private part atleast to some extent. She has deposed that when the villagers Dagdu and Kantabai came there, the accused ran away. She has deposed that these two villagers reached her to her house. She has deposed that she narrated the incident to two Cri. Appeal No. 237/1998 8 persons and to her parents, when they returned to home at about 7 pm. 12. The prosecutrix has given evidence that on the next day she, her parents started for Kaij Police Station and at that time, her mother was holding her clothes which were on her person at the time of incident. She has deposed that accused No. 2 snatched these clothes from the hands of her mother and she threw the clothes into a fire place. She has deposed that they went to Kaij Police Station, but no police officer was present in the police station. She has deposed that when they came out of the police station, they noticed that accused No. 1 and his brother were present in the village Kaij and they gave threat that they would cause fracture injuries to their limbs, if the report was given. Prosecutrix has given evidence that on 28th, they went to Beed Police Station to give report and they went to Beed as they wanted to avoid accused persons. She has given evidence that the report at Exh. 24 was given by her. She has given evidence that she was referred for medical examination and she was medically examined. 13. In the cross examination, the prosecutrix has stated that accused No. 1 used force for inserting his private part into her Cri. Appeal No. 237/1998 9 private part and she suffered pains due to this act of the accused. She has deposed that at the time of incident, the accused was virtually lying on her person and the accused was pushing up and down while taking intercourse. She has deposed that the semen had came out from the private part of the accused and some drops of semen fell on the skirt. 14. The prosecutrix was cross examined in respect of alleged threats given to them in Kaij. She could not describe the place where threats were given to them by accused No. 1 and his brother. In FIR, there is no mention about the incident of Kaij. There is also no mention about the snatching of clothes of prosecutrix from the hands of her mother by the accused No. 2. These omissions in FIR are material. In such cases, it needs to be presumed that the parents were in the company of the prosecutrix all the way and even at the time of giving of report. 15. Dagdu (PW 2) and Kantabai (PW 9) have turned hostile. Dadarao (PW 3), father and Suchitrabai (PW 4) mother of the prosecutrix, have given evidence that on the day of incident they learnt about the incident from the prosecutrix at about 7 pm when they returned from the field. Dadarao (PW 3) has given evidence Cri. Appeal No. 237/1998 10 that after learning about the incident, he approached the accused No. 2 to inquire about the incident, but the accused gave threats to fracture his limbs. Similar evidence is given on this incident by Suchitrabai (PW 4). Both of them have given evidence that when on the next day, they started for Kaij Police Station and when the clothes of the prosecutrix were in the hands of the mother, the clothes were snatched away by accused No. 2 and accused No. 2 threw the clothes in to a fire place of sweet mart. Suchitrabai has given evidence that when this incident took place Dadarao was not in her company as he had gone ahead. In the cross examination, Dadarao has admitted that he learnt about the incident from Suchitrabai (PW 4). 16. Dadarao (PW 3) has given evidence that they went to Beed Police Station on 28.1.1997. He has given evidence in the cross examination that they had gone to Kaij on the next day of incident, but the report could not be given. Suchitrabai has given evidence that at Kaij, accused No. 1 and his brother gave threats to them and then they returned to the village. Such evidence is not given by Dadarao. It can be said that these witnesses have tried to say that they did not given the report as nobody was present in the police station. They have tried to say that they met accused No. 1 and his Cri. Appeal No. 237/1998 11 brother only when they came out of the police station. 17. In the present case, Dagdu and Kantabai have turned hostile. It can be said that there is evidence that the incident was disclosed at about 7 pm by the prosecutrix to her parents on 24th, but the report came to be given on 28th. The parents of the prosecutrix have not given evidence that they contacted Dagdu and Kantabai to inquire about the incident. In view of the nature of evidence given by the prosecutrix, it needs to be presumed that the prosecutrix must have suffered some injuries or she was still suffering due to pain at about 7 pm. The mother of the prosecutrix has not given evidence that after learning about the incident, she examined the prosecutrix and she tried to ascertain the truth. The defence has admitted the record of medical examination of the prosecutrix which is at Exh. 12 and it shows that no injury at all was found on the person of the prosecutrix. There was no tear of hymen and there was no injury of any kind or near the private part of the prosecutrix. These circumstances need to be kept in mind at the time of giving weightage to the delay caused in giving report. 18. The defence has examined Dr. Goli to show that whenever such incident takes place, there is probability of causing injury like Cri. Appeal No. 237/1998 12 contusion, rupture of hymen, injury to vagina etc. Doctor has deposed that when the age of the girl is 8 to 10 years, the severity of injury depends upon the force used against her at the time of incident. Doctor has further deposed that whenever there is such a case, there is further probability of causing injury to the private part of the male, the accused. The prosecution has not come with the record of medical examination of the accused to show that he had sustained some injuries. The prosecutrix has given evidence that there was some oozing of the semen and some drops fell on her skirt also. Doctor has given evidence that if semen falls on vaginal part, dead sperms can be found in the private part, even up to three weeks period. There is no such circumstantial evidence in the present case. In the present case, evidence is given that there was atleast some penetration, there was use of force and even jerks were given by the accused. The prosecutrix came to be medically examined within five days of the incident and so in ordinary course, if there was a penetration and there was use of such force as against the private part, some injury would have been noticed by the doctor. Thus, there is no support of medical evidence to the case of the prosecution. 19. The evidence of prosecution in the form of recovery of inner Cri. Appeal No. 237/1998 13 garment of accused No. 1 on 3.2.1997 cannot be given much weight. CA report shows that there was stain of semen on the inner garment of the accused. But it needs to be kept in mind that the incident took place on 24.1.1997 and the inner garments came to be seized on 3.2.1997. The panch witness has given evidence that the inner garment was present on the table of the police station when the panchanama was prepared. Accused No. 1 was a boy of 23 years and in view of these circumstances, not much weight can be given to the circumstances that there were some semen stains on the inner garment which was allegedly recovered after 7 to 8 days of the incident from the accused. 20. Though there are aforesaid circumstances, which can be called as lacuna in the case of the prosecution, no probability is created of false implication. It is not the case of the defence that there was attempt to extract money. There is no record of previous enmity. No parents would involve the daughter, aged about 10 years, in such a case falsely, as such case can ruin the entire future of the girl. However, the circumstances like delay of about 4 days caused in giving of the report and other circumstances like absence of medical evidence to corroborate the version have created a probability that there was no rape and so the things were not taken Cri. Appeal No. 237/1998 14 that seriously. There is clear probability that there was attempt of rape and accused No. 1 could not rape. This probability needs to be accepted. 21. There is no convincing evidence to prove the incident of snatching of the clothes of prosecutrix by accused No. 2 from the hands of mother of the prosecutrix on the next day. It is already observed that this incident is not mentioned in the FIR. The owner of the sweet mart or other person could have been examined to corroborate this case, but there is no such corroboration. The version that even after this incident the parents took the prosecutrix to police station shows that the parents want to hide something and their story in this regard is not natural. The evidence is also not sufficient to prove that threats were given and due to that the report was not given on the next day of incident. If it was not possible to give the report on 25th, the report could have been given on 26th. Evidence is given that a day after the incident the report was given to Beed Police Station, but the date of report is shown as 28th. Thus, there is no explanation in respect of the delay of about 4 days caused and due to this delay, reasonable doubt is created about the case of rape. This delay and and the absence of medical evidence has created doubt about the case of prosecution Cri. Appeal No. 237/1998 15 for offences under sections 201 and 506 of IPC. 22. The aforesaid evidence, if considered as it is, cannot lead to an inference that accused No. 2, mother of accused No. 1, had taken the prosecutrix to the field to facilitate the act of rape by accused No. 1. She had taken her grandson Sandeep also with her. She was expected to return to the shed after collecting the fire wood and it does not look probable that there was meeting of minds of accused No. 2 with accused No. 1. It has not come in the evidence of the prosecutrix that before leaving the shed, accused No. 2 had said anything to accused No. 1. For convicting accused No. 2 for offence of abetment, it was necessary for the prosecution to prove that accused No. 2 did facilitate the act in question. Accused No. 2, a lady, could not have been convicted for offence punishable under section 376 r/w. 34 of IPC and in view of the aforesaid circumstances, she cannot be convicted for offence under section 376 r/w. 109 of IPC. Thus, the judgment and order of conviction of the Trial Court as against the accused No. 2 needs to be set aside. Similarly, accused No. 1 can be convicted only for the offence of attempt of rape and he cannot be convicted for other offences. Cri. Appeal No. 237/1998 16 23. Some reported cases were cited for the appellants. The cases reported as AIR 2007 SC (Supp) 1436 [ Bibhishan Vs. State of Maharashtra ] and 2007 AIR (SC) 155 [ Ramdas and others Vs. State of Maharashtra ] are on the point of delay caused in giving report. The facts and circumstances of each and every case are always different and the delay has been considered in view of the facts of the present case by this Court. In the case reported as AIR 2006 SC 2639 [ Priya Patel v. State of M.P. and Anr. ], the Apex Court has laid down that women cannot be convicted for offence punishable under section 376 of IPC. There cannot be any doubt about this proposition and this Court has also made similar observations. In the case reported as 1973 AIR (SC) 343 [ Rahim Beg Vs. State of Uttar Pradesh ], benefit of doubt was given to the accused as no injury was found on the person of prosecutrix, who was aged about 10 to 12 years. It is already observed that all these points needs to be considered in relation to facts and circumstances of a particular case. 24. One case reported as 2010 CRI. L. J. 795, Rajasthan High Court, [ Jhinguriya v. State of Rajasthan ] was cited. In this case when there was delay caused in filing FIR and when there was no Cri. Appeal No. 237/1998 17 injury on the private part of prosecutrix and there was no other circumstantial check, the accused was acquitted. In the case reported as 2009 CRI. L. J. 1332, Supreme Court, [ Arjun Singh v. State of H.P. ], when there was no medical evidence, the conviction was given for attempt of rape. In this case, the Apex Court has further observed that abetment requires something more than criminal conspiracy. These points are also already discussed. In the case reported as AIR 2004 SC 4660 [ State of Rajasthan v. Bhanwar Singh ], when there was delay caused in lodging FIR and when there was inconsistency in medical evidence and ocular evidence, the accused was given benefit of doubt. It is already observed that the facts and circumstances of each and every case are different. In view of the facts of the present case, this Court has come to the conclusion that accused No. 1 needs to be convicted for offence of attempt of rape. 25. Prosecutrix has filed application for permission to compound the case and she has requested to this Court to take lenient view. The father of the prosecutrix has filed similar application. This Court has heard the father and his application is also taken in writing. In view of the aforesaid circumstances and the application filed by the prosecutrix in favour of the Cri. Appeal No. 237/1998 18 accused/appellants, this Court holds that lenient view can be taken and sentencing the accused No. 1 with imprisonment for the period undergone would be just and sufficient. This period is around eight months. So the order. O R D E R 1. Appeal of appellant No. 2 Smt. Sitabai w/o. Devidas Mulay is allowed. Judgment and order of conviction and sentence against her for offences punishable under sections 376, 201, 506 r/w. 34 of IPC stands set aside and she stands acquitted of the offences for