- 1 - mn780.06 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.780 OF 2006 (By accused against conviction) arising out of Sessions Case No.32/2006 Chandrakant Vithal Pawar } Indian Inhabitant,aged 47 yrs, residing at Andheri } Versova Road,Seven Bungalow Police Quarters, Aram Nagar } Bldg No.4. Room NO.135, Andheri(West) Mumbai-400 058 } (Accused is in Kolhapur Central Prison) } .. Appellant/Accd vs 1. The State of Maharashtra } (at the instance of Sahar Police Station C.R.NO.514/2005 (DCB CID C.R.No.127/05) } 2. Deepa Kishore Kharwa aged 15 yrs, Indian Inhabitant } residing at Hayyat HOtel at Footpath Sahar Airport Rd, Mumbai .... { .. Respondents Mr.Shyam Mehta (Appointed) for Appellant Ms.S.V.Sonawane APP for Respondent-State CORAM: J.H.BHATIA, J DATE: 22nd August, 2011 ORAL JUDGMENT 1. The Appeal is preferred by the original accused challenging the judgment and order dated - 2 - mn780.06 13th July,2006 in Sessions Case No.32 of 2006 passed by the Additional Sessions Judge,Mumbai whereby the Accused/Appellant was convicted for the offences punishable under sections 363, 366, 376 (2) (a) and under section 323 of Indian penal code and was sentenced as under : (i) Under section 363 of Indian penal code R.I. for one year and fine of Rs. 500/- in default further sentence of 15 days. (ii) Under section 366 of Indian penal code R.I. for 3 years and fine of Rs. 2000/- in default further sentence of 30 days. (iii) Under section 376 (2) (a) of Indian penal code R.I. for 15 years and fine of Rs.50,000/- in default further sentence of 1 years. (iv) Under section 323 of Indian penal code R.I for 1 month and fine of Rs. 200/- in default further sentence of 8 days. 2. The prosecution case in brief is that the prosecutrix PW 7, who is the victim of this offence, was a girl of aged about 15 years. She along with her sister Poonam used to beg at the junction near Leela Hotel at night time. The - 3 - mn780.06 accused was Head constable attached to Sahar police station and the said junction near Leela Hotel is within the local limits of that police station. On 17th October, 2005 at about 9 p.m. the accused first made some inquiries from the prosecutrix and went away. At about 11 p.m. he came in an autorickshaw, caught her wrist and pulled her into the autorickshaw. Inspite of the request made by her sister to leave the girl, he said that he would leave her at the next signal. He took the prosecutrix up to a nallah in the autorickshaw. There both of them alighted and then the accused and the prosecutrix crossed the road and after jumping pari (small wall). Then he took her to the bushes and then near the wall of a temple, there he made her to lie down and removed her clothes. He also removed his pant and underwear and committed rape. When the prosecutrix and the accused were returning, PW 6 Satyan Nair, who was working in the Engineering Department of Sahar International Airport Terminal-II, - 4 - mn780.06 suspected something foul and stopped his bike and asked the prosecutrix as to what was the matter. She narrated the incident and therefore PW 6 Satyan Nair took the identity card of the accused and made him sit on his bike and took him to the police station. The girl was taken to the police station by PW 11 Kumar Ukirde. At the police station she narrated the whole incident. On the basis of her FIR, offence was registered and the accused as well as the prosecutrix were referred for medical examination to Police Hospital, Nagpada. Both of them were examined by PW 8 Dr.Shivaji Daund during the same night. 3. During investigation, the spot panchanama was prepared. The clothes of the prosecutrix as well as that of the accused were seized. Their blood samples and vaginal and vulva swabs of the prosecutrix were sent to the Chemical Analyser. Evidence was also collected in respect of the age of the girl. - 5 - mn780.06 4. After investigation, the charge sheet was filed and in due course the case was committed to the Court of Sessions for trial. The accused pleaded not guilty to the charges. On behalf of the prosecution, in all 13 witnesses were examined. A large number of documents were placed on record. After hearing the parties, the learned trial Court convicted and sentenced the accused as stated above. 5. Heard learned counsel for the Accused- Appellant and the learned APP. Perused the record and the proceedings of the trial Court. The learned counsel for the Accused vehemently contended that there is no evidence to show that the accused had forcibly committed rape. He took pains to show that the girl must be the consenting party. Secondly, he contends that the evidence on record is not sufficient to show that the girl was less than 16 years of age at the time of rape. Thirdly, he contended that - 6 - mn780.06 the evidence on record is not sufficient to establish that actual penetration had taken place and that rape was committed. According to him, if the whole prosecution evidence is also accepted it may be a case of attempt to commit rape. 6. On the other hand, the learned APP relying on the medical evidence as well as the evidence of the prosecutrix, but contended that it was not a case of attempt but a clear case of rape and the girl was less than 16 years of age. Her consent is irrelevant. She contended that the Accused, who was posted as a Head constable in that area had misused his authority and therefore, the girl could not offer any resistance to him. 7. Before coming to the evidence of the alleged rape, it would be useful to look to the evidence about the age of the prosecutrix. PW 7 the prosecutrix deposed that she was aged 15 - 7 - mn780.06 years at the time of recording of evidence. The evidence was recorded in May, 2006. The incident had occured on 17th October,2005. PW 9 Poonam is her elder sister. She deposed that she was aged about 17 years at the time of recording her age and according to her, the prosecutrix is younger to her by two years. 8. Evidence of PW 8 Dr.Shivaji Daund shows that as per the ossification test by X-Ray, Epiphyseal union of bones around the elbow, waist,humerus and knee were not fused. As per the history given, she had attained her menses two years before. According to him, there are different time periods for fusion of Epiphyseal union with bones. Elbow joint fuses at about 14 years. Wrist joint fuses at about 17 years. Knee joint fuses at about 15 and half years. Shoulder joint fuses at about 17 to 18 years. Since the elbow joint was also not fused he opined that the age of the girl was 13 to 14 years. - 8 - mn780.06 9. PW. 1 Mrs Hema Desai was the Principal at Dr.S.R.K.Marg Municipal Upper Primary Gujrati school since 1997. She produced the School Record about the admission of the prosecutrix and deposed that as per the school Register, the prosecutrix was admitted in the said school on 28th June,2001 and she left the school on 22nd November, 2005 when she was student of VIth standard. As per this record, the date of her birth was 4th May,1991. Learned counsel for the accused vehemently contended that there may be number of students with the same name and merely on the basis that a girl with a name similar to that of the prosecutrix, was admitted in the school and her date of birth was 4th May,1991, it cannot be assumed that the prosecutrix is the same girl. Contention of the defence counsel was turned down by the witness. After perusal of the record I find that the complete register was available for inspection at the time of cross- examination.Even before this Court, learned - 9 - mn780.06 counsel could not point out that there was any other student with the same first name,father's name and surname as well as mother's name in the Register. Only he could point out the name of some students having same surname. Merely with that surname, it is difficult to accept the contention that there could be more than one student with same first name, father's name, mother's name as well as surname. Therefore, I find no reason to disbelieve the School Record. As per the School Record, the date of birth of the prosecutrix is 4th May,1991. The incident occured in October,2005. It means that she was aged about 14 1/2 years at the time of the incident. The medical evidence provides corroboration to it. As she was below 16 years of age, her consent would be irrelevant for the purpose of sexual intercourse. 10. The evidence of the prosecutrix shows that she used to beg at the junction of and in front of Leela Hotel, Her sister PW 9 Poonam also used - 10 - mn780.06 to beg. According to her, on 17th October,2005 at about 9 p.m. the accused came to her, made some inquiries and went away. At about 11 p.m. the accused again came in a autorickshaw, caught her wrists and took her into the rickshaw. Her sister P W 9 Poonam requested the accused to leave her but, the accused told that he would leave her at the next signal. According to PW 9 Poonam, when she had made this request, the accused had threatened to charge fine and saying so, he took the girl by the rickshaw towards the direction of Hotel Hayyat police chowky. For some distance PW 9 Poonam followed them but she could not find them. Then went to her house, and informed her mother and they went to Sahar police station but, neither the girl nor the accused were there. Inspite of some search, she could not be located by them. They again went to the said police station. At that time, the prosecutrix was present and her statement was being recorded by the police. The evidence of the prosecutrix in respect of her taking away - 11 - mn780.06 from the junction of Leela Hotel in an autorickshaw is corroborated by the testimony of PW 9 Poonam. 11. Evidence of PW 7 the prosecutrix shows that after jumping the small wall or a pari, the accused took her to the bushes but as some persons were sleeping, he took her near the wall of Saibaba temple. At that place, he asked her to remove her clothes. He also removed his own pant and underwear. She lowered down her salwar. She was made to lie down and thereafter the accused put his male organ into her private part. According to her, due to this, she had suffered pains on her back. She also deposed that the coins, which she had received as alms and were tucked in her salwar,were scattered at the spot of the incident. She deposed that at the time of the incident she had lowered down her salwar and not all the clothes. After the incident, the accused took her near the wall and told her that he would drop her at the place of - 12 - mn780.06 her sister. 12. As per the evidence of PW 6 Satyan Nair, he was working in the Engineering Department of Sahar International Airport, Terminal-II. On 17th October,2005 at about 11.15 p.m. he was proceeding towards the terminal on his bike. When he was taking turn on a signal, he noticed a police man in uniform with a girl. He became suspicious and therefore he took a U-turn and found the accused in the company of the prosecutrix. After the girl was taken in confidence, she told him about the incident. After that PW 6 Satyan Nair asked the accused to accompany him on his bike, after collecting his Identity card from him. He took the accused to the police station and produced him. This fact is not in dispute. 13. PW 11 Kumar Ukirde supported the evidence of PW 6 Satyan on this count. According to him, he himself and one person had seen the - 13 - mn780.06 accused taking the girl having caught hold of her arms. They took her to police station. The evidence of this witness shows that the accused tried to settle the matter by paying some money but could not succeed. 14. After she was taken to the police station, the statement of the girl was recorded by PW 10 API Mohan Waghmare. That statement was treated as FIR Exhibit 26 wherein all the facts are disclosed. Immediately clothes of the accused as well as that of the prosecutrix were seized under panchanama Exhibit 23 and both of them were sent for medical examination. A spot panchanama Exhibit 21 was also prepared which reveals that at the spot some coins were found scattered and they were seized. 15. The evidence of PW 8 Dr.Shivaji Daund reveals that on 18th October,2005 at about 3.30 a.m. the prosecutrix was brought to him at the police Hospital Nagpada for medical examination. - 14 - mn780.06 According to him, the prosecutrix had given history about her taking away by the police man in a autorickshaw, then removing her clothes and committing rape on her. That history was recorded by him. On physical examination he found following two injuries on her person : (i) Graze abrasion on lower part of back and above right buttock 4 cm in vertical into 3 cm horizontally placed. No oozing of blood seen. Only superficial epidermal layer peeled. (ii) Graze abrasion on occcigeal region with peeling of superficial epidermal layer, size of injury 4 cm x 2.5 cm. According to him, these injuries could be caused due to friction with hard and rough surface. The age of injuries was within six hours. 16. On examination of her private parts, he found that hymen circular and was torn at 6,9 and 1'clock position, tears were marginal and healed. Hymeneal orifice admitted one finger - 15 - mn780.06 easily, it was non-tender. No other injury was noticed. As two fingers could not be admitted in torn hymen, there may not be complete penetration. He also collected vaginal smear, vulva and posterior vaginal swab and cervical smears. He also collected control blood sample of the girl. 17. As per the evidence of PW 8 Dr.Daund he had also examined the accused during the same night at 4 a.m. and found following two injuries on his person: (1) graze abrasion on right knee joint of tibial tuberosity 1 cmx 1 cm size superficial, epidermis collected in the heap at lower (2) graze abrasion on left knee on tibial tuberosity 5 cm x 5 cm superficial and epidermis collected in the heap laterally. 18. According to him, the age of the injuries was within 6 hours and the injuries could be caused due to friction with hard and rough surface. Dr.Daund further deposed that on - 16 - mn780.06 inquiry the accused could not explain how and when the injuries were caused. The evidence also shows that he collected the swab from glance penis of the accused as well as his control blood samples. He referred all the samples report to the Chemical Analyser. 19. As per the Chemical Analyser's report Exhibit 42, one semen stain was found on the backside of the underwear of the accused. One semen stain of about 2 cm in diameter on front side of kurta and two semen stains each of about 1 cm in diameter on middle portion of the salwar of the prosecutrix were found. As per the DNA report, Exhibit 42-A, the semen stains on the kurta and the semen stains on the salwar of the victim and the semen stains of the victim, semen stains on the salwar and semen stains on the underwear of the accused exactly matched with the control blood of the accused and the semen stains on these clothes and the control blood were of the same biological individual. Thus, it - 17 - mn780.06 shows that the semen of the accused was found not only on his own underwear but, also on the clothes of the prosecutrix. The clothes were seized almost immediately after the incident. In view of this, the Medical Officer Dr.Daund opined that the accused was involved in sexual activity with the prosecutrix. 20. Taking into consideration the oral evidence of the prosecutrix, her sister PW 9 Poonam, PW 6 Satyan Nair and PW 11 Kumar Ukirde, the spot panchanama, medical evidence and the C.A.report and particularly DNA report, it is established that the prosecutrix was kidnapped with an intention to force her to sexual intercourse. I find no material to disbelieve the evidence of these witnesses. 21. The learned trial Court held the accused guilty for the offence of rape. The learned counsel for the Accused vehemently contended that if the medical evidence with the C.A. - 18 - mn780.06 report are carefully perused, the prosecution could not establish that the offence of rape was committed, though there may be evidence of attempt to commit rape. To appreciate this contention, it will be necessary to scrutinise the medical evidence minutely. 22. Though the prosecutrix was student of school up to VI standard as she was not attending the school and therefore she was removed. Hence she cannot be treated to be educated. In her FIR, it is recorded that the accused had committed "Sambhog". She admitted that she did not understand the meaning of the term "Sambhog". In her evidence before the Court she deposed that accused had put his organ of urination into her place of urination. She did not speak about the actual penetration. Some latitude may be given to her in this respect due to natural modesty of a young girl. Evidence of PW 8 Dr.Daund shows that there were marginal tears of hymen. They were found healed. In the - 19 - mn780.06 cross-examination, he admitted that the healing period is about 5 to 7 days. It means that the marginal tears were suffered by her at least 5 days before the incident and not in this incident. The tears in this age could be for any reasons including not necessarily sexual intercourse. The medical evidence also shows that the hymen admitted only one finger easily but two fingers could not be admitted and hence there may not be complete penetration. In view of this, it appears that despite the hymen tears, she must not have indulged in sexual activity before the incident. 23. Explanation to section 375 of the Indian Penal Code provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. It is now settled position of law that even partial penetration is sufficient to constitute the offence of rape. In view of the medical evidence, while complete penetration is ruled - 20 - mn780.06 out, question is whether there was even partial penetration. Medical evidence shows that hymen orifice was not tender. No other injury was found on her private part, though there were above referred injuries on her back which could be due to friction with hard surface while lying down at the time of the incident. Dr.Daund admitted in cross-examination that he had not noticed any recent sexual activity on examination of hymen. 24. The C.A. Report Exhibit 29 and Exhibit 30 on (vulval swab and vaginal smear slides of the prosecutrix) reveal that no semen was detected. As noted above,as per C.A.report Exhibit 42 and DNA test report semen of the accused was found on his underwear as well as on the kurta and salwar of the prosecutrix. It shows that ejaculation had taken place. If ejaculation had taken place after penetration, may be partial, and penis was still in the area of her private part, the semen must have been detected in the - 21 - mn780.06 vaginal smear or at least on the vulva which is the outer part of the vagina. 25. Absence of semen not only in the vaginal but also on vulva creates a strong doubt about the penetration into her private part. 26. In view of these circumstances, it appears that the accused had taken the girl to the spot for sexual intercourse with her, made her remove her clothes, made her lie down on the ground and removed his clothes for the purpose of having sexual intercourse with her. However, possibility cannot be ruled out that before he could penetrate he might have ejaculated and therefore, semen was found on his own underwear as well as on the clothes of the girl but, was not found either in the vaginal area or on the outer surface of the vulva. 27. The accused was fully grown up person aged about 47 years. The girl was just 14 1/2 years - 22 - mn780.06 of age. If he would have forcibly penetrated, there was possibility of some injury, at least tenderness but that was also absent. Superficial injuries on the back of the girl and similar injuries on knees of the accused could be possible due to hard and rough surface but, that itself could not go to establish penetration. 28. Taking into consideration this material, it must be held that the prosecution has failed to prove beyond reasonable doubt that the accused had actually committed rape though there is strong evidence that he attempted to commit rape on her. 29. In view of the facts and circumstances noted above, while in respect of conviction and sentences for the charges under sections 363, 366, 323 Indian Penal Code, no interference is called for, he is entitled to be acquitted for the charges under section 376 (2) (a) but is - 23 - mn780.06 liable to be convicted for the offence for attempt to commit rape punishable under section 376 (2)(a) read with section 511 of the Indian Penal Code, because the accused committed that offence within the local limits of the police station where he was appointed as a head constable. 30. If a Police Officer is guilty for the offence of rape under section 376 (2)(a) of the Indian penal code he is liable to be sentenced with rigorous imprisonment for a period not less than 10 years but it may be imprisonment for life and also with fine. 31. Section 511 of the Indian penal code provides that whoever attempts to commit an offence punishable under Indian Penal Code with imprisonment for life or imprisonment shall, where no express provision is made by Indian Penal Code for the punishment of such attempt, be punished with imprisonment of any description - 24 - mn780.06 provided for the offence, for a term which may extend to one-half of the imprisonment for life or as the case may be, on half of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence or with both. 32. As noted above, minimum sentence of imprisonment for the offence of rape under section 376 (2) (a) is rigorous imprisonment for 10 years. Therefore, the minimum sentence which may be awarded for attempt to commit rape would be rigorous imprisonment for five years. 33. However, the maximum sentence for the offence of rape under section 376 (2) (a) of the Indian penal code is life imprisonment. Therefore, the maximum sentence for attempt to commit rape could be half of life imprisonment. 34. Section 57 of the Indian Penal Code provides that in calculating fractions of terms - 25 - mn780.06 of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. In view of this, for the offence of attempt to commit rape punishable under