1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.159 OF 2004 Kailash Laxman Khamkar .. Appellant Versus State of Maharashtra .. Respondent Mr.B.G.Tangsali for appellant Ms.A.T.Jhaveri, APP for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th February 2010. ORAL JUDGEMENT:- 1] The appellant is the original accused in Sessions Case No.282 of 1998, which was on the file of the District and Sessions Court, Thane. The appellant challenges the judgement and order dated 31st December 2002 delivered by the Third Additional Sessions Judge, Thane convicting him for the offence punishable under section 366-A of Indian Penal Code and sentencing him to suffer R.I., for three years and fine of Rs.2000/-. In default, he was to suffer R.I., for two months. 2] The appellant is also convicted for offences punishable under section 376 and 377 of IPC and sentenced to suffer R.I. For Ten years and 2 fine of Rs.5000/-. In default, he was to suffer R.I. For six months more for each of the offence. The appellant is acquitted from offence punishable under section 342 of IPC. Both convictions and sentences are under challenge in this appeal. 3] The subject criminal case arose out of a complaint made by the complainant who is mother of the victim. It was alleged that the complainant and the accused are neighbours. They are residing in a slum colony. The victim was about 6 to 7 years of age at the time of incident. The incident had taken place on 15th October 1997. It is alleged that when the complainant was at home and taking rest in the afternoon, she woke up at about 5.00 p.m., when she came to know that her daughter (victim) who had come back from the school was called by the accused to his house under the pretext that some goods were to be brought for him. Therefore, the mother – complainant went to the house of the accused. She noticed that the door was closed from inside. Her other daughter Diksha pushed the door. At that time, the victim came out of the house. She was weeping. Her frock was wet. The accused was found only on underwear. Thereafter, the complainant took the victim to her house, made enquiries, whereupon the victim told that the accused raped her as 3 well as had anal intercourse. It is also alleged that the accused kidnapped the victim by inducing her and detained her and committed the aforementioned act. Therefore, the FIR came to be lodged by the complainant Hirabai, who is mother of the victim. The victim was sent for medical examination. The spot panchanama was prepared on the next date. Statements of witnesses were recorded. Clothes of the victim and underwear were seized. The Medical Officer collected the usual samples and articles and the same were forwarded for chemical analysis. The reports were received. After completion of investigation, the accused was charge sheeted. 4] After committal of the case, the charges were framed. Accused pleaded not guilty to the charges. His defence was of total denial. According to him, there was enemity between the complainant and the accused on account of supply of electricity as well as drawing of tap water. Therefore, he is falsely involved in the case. 5] The charge was framed in this case by the trial court on 16th August 2001. It reads thus:- 4 “I, V.V.Palnitkar, III Addl.Sessions Judge, Thane do hereby charge you; Kailas Laxman Khamkar, Khamkar Chawl, Ramchandra Nagar No.1, Behind Labhesh Building, Wagle Estate, Thane as follows:- On 15.10.97 in between 17-30 to 18-00 hours at Ramchandranagar No.1 within the jurisdiction of Wagle Estate police station, Thane you had kidnapped Reshma D/o complainant Hirabai Sawant a minor aged 6 years with an intention or knowing that she would be likely to force to have sexual intercourse with another and thereby committed offence punishable under section 366(A) of IPC and within my cognisance. At the same date, time and place you have wrongfully confined said Reshma in your house and thereby committed offence punishable under section 342 of IPC and within my 5 cognisance. Thirdly, at the said date, time and place you had committed rape on said Reshma and thereby committed offence punishable under section 376 of IPC and within my cognisance. Fourthly, at the said date, time and place you had voluntarily carnal intercourse with said Reshma against the order of nature and thereby committed offence punishable under section 377 read with 511 of IPC. In the alternative at the said date, time and place you had attempted to commit rape on the said Reshma and also attempted to have carnal intercourse with her against he order of nature and thereby committed offence punishable under section 376, 377 read with 511 of IPC and within my congnisance. And I hereby direct that you be tried by me on the said 6 charge.” 6] To prove the charges, the prosecution examined as many as five witnesses. The defence did not examine any witnesses. After closure of evidence, the learned Judge heard oral arguments and, thereafter, rendered his judgement of conviction and sentence as aforerecorded. 7] It is this decision which is challenged by the appellant accused in appeal. 8] Mr.Tangsali learned Counsel appears for the appellant and invites my attention to the deposition of PW-1 and contends that the date of incident is 15th October 1997. The victim is stated to be born on 22nd June 1989. Mr.Tangsali then took me through the depositions of PW-2 and that of the victim who was examined as PW-3. He submits that the incident has taken place allegedly on 15th October 1997 which was a Saturday. The victim was a school going child. The victim returned home after half-day school. On Saturday normally and ordinarily the schools are half day. The incident, according to PW-1 is allegedly of 5.00 7 p.m., whereas the victim was already at home at 2.30 p.m. Mr.Tangsali submitted that from the deposition of the important witnesses of prosecution, it is apparent that the version is full of inconsistencies and material contradictions. The father of the victim to whom the incident was narrated went to the house of the accused but that is not narrated and set out in the deposition of PW-2. When the complaint itself alleges that the complainant went to the house of the accused along with other daughter Diksha and it is Diksha who pushed the door of the appellant’s house so as to let both the complainant and herself in, then non examination of both father and sister is fatal. Mr.Tangsali submits that except mother of the victim, who is the complainant, none was examined. He submits that PW-2 is the complainant and the victim has been examined as PW-3. Apart from them, the other witness is the Vice Principal of the School and she has deposed only about the date of birth. However, the Medical Officer/ Doctor and the I.O., has been examined by the prosecution. Their deposition would show that there is no sign of forceful sexual assault or intercourse. The report of the Chemical Analyser and the Doctor shows that the semen was not detected. The findings as far as blood group are concerned are also inconclusive. He has invited my attention to the medical report, chemical analyser’s report and 8 the report of vaginal swab to urge that in this case, the appellant has been falsely involved. This is a case where parties are residing in slum area. The rooms and houses inhabited by them are close to each other. If such an incident has taken place and indeed statements of various persons were recorded by the prosecution, then, none has been examined. On the other hand, from the suggestions and questions during the course of cross examination, it has appeared on record that the accused used to provide electricity and water to the complainant. The accused was recovering charges for the same. There was dispute between the accused and complainant over payment of charges and drawing of electricity supply and water. It is on account of such disputes which are common in a slum colony that the accused has been framed in a false case. Mr.Tangsali submits that the essential ingredients of Section 366, 376 and 377 are not satisfied. 9] Mr.Tangsali submits that it is pertinent to note that the trial court has acquitted the appellant accused of the charge of wrongful confinement (Section 342 IPC). Mr.Tangsali submits that the incident has allegedly taken place in a closed area/ premises. According to the complainant, the door was closed. If the appellant is acquitted of the 9 charge of wrongfully confining and the incident has allegedly taken place in a closed premises/ area, then, the version of the complainant and victim is unreliable and untrustworthy. There is material contradiction inasmuch as what the victim and the complainant allege are offence punishable under section 376 and 377 of IPC. In other words, when the complainant and the victim states that the appellant ravished the victim, she is not sure as to whether the act complained of would fall under section 376 or not and that is the reason that the prosecution also proceeded to charge the applicant under section 377 of IPC. If such are the state of allegations, then, it is inconceivable that the appellant can be convicted for both offences. Mr.Tangsali finally invited my attention to the opinion of the Doctor and his deposition together with the contents of his report to submit that the Doctor has not noticed anything by which the court can conclude that an offence punishable under the above sections has been committed. In these circumstances, this is a fit case where the judgement and order deserves to be set aside and the accused be set at liberty. 10] On the other hand, Ms.Jhaveri appearing for prosecution submitted that the charge in this case is serious. The victim is a minor. Ordinarily the victim would not like to involve the accused in a false case. She 10 submits that from the date of the incident and on the date when the trial commenced and evidence was recorded, there are bound to be some inconsistencies and errors. Nobody would recollect the incident with complete details after a lapse of nearly five years. However, that does not mean that the prosecution case is totally false. On vital and material ingredients of the offences, the prosecution has led over whelming evidence and proved its case. She submits that medical report in this case is not conclusive and decisive. She submits that the report would only prove medical condition and the opinion of the doctor on examination of the patient. The Doctor cannot depose as to whether an offence has been committed or not. Therefore, whether rape and unnatural intercourse has been committed or not is for the court to decide and nothing turns on the contents of the report. She submits that the incident has taken place in the afternoon. The victim returned from school and was induced by the appellant accused to come to his house where at he committed the aforesaid act. The victim has come and narrated that incident to her mother and naturally they both waited for the father to return home. Even the father was informed about the incident and considering that it was delicate and sensitive matter, it took sometime for them to approach the police station. Therefore, there was some delay in approaching the police 11 station. This delay is not fatal. The prosecution has immediately taken the necessary steps which are required to prove its case. It has investigated the matter promptly by recording statements and thereafter, forwarded the seized articles for examination and report. In such circumstances and when ultimate finding and conclusion is in consonance with the oral and documentary evidence on record, then, this court should not interfere with the conviction and sentence. She submits that as far as rape is concerned, it is not just a physical condition but a crime which completely demolishes or destroys the victim and her family. The victim is a minor girl and when her version itself is enough to bring home the charge, then, all the more this court should not interfere. 11] Both Counsel have relied upon certain decisions and rulings to which I will have an occasion to refer during the course of this judgement. 12] In the light of the rival contentions, the only question that falls for determination is whether the judgement and order of the trial court is legal and proper and can be sustained or not. 12 13] For answering this question, it would be necessary to refer to the oral evidence. 14] The prosecution has examined one Manisha Pradip Marathe. She states that she is Vice Principal of the school and she has produced the record of the school for the purpose of proving the age of the victim. She has stated that the victim was studying in VIII standard in E division. She has taken admission in the school, according to this witness, only in the academic year 2001-02. She has also produced the school leaving certificate of the earlier school. She confirms the date of birth as 22nd June 1989. 15] In my view, it is not necessary to refer to this evidence in further details because that the victim is a minor is something which is not seriously disputed. 16] The deposition of PW-2 is important. PW-2 is the mother of the victim. She is a 40 year old lady. She is working as a maid servant. She states that today the victim is of 13 years of age. Five years prior to her deposition being recorded, the victim returned from school at 5.00 pm. 13 When PW-2 woke up from her sleep, she noticed that the victim was not there in the house. She enquired from another daughter Diksha. She was informed that the accused had called the victim. Thereafter, the PW-1 told Diksha to ascertain whether the victim was at the house of the accused. The other daughter Diksha went towards the house of accused, PW-2 followed her and they both found that the door was closed. They knocked at the door but the accused did not open it. Thereafter, the accused opened the door and she noticed that the victim was drenched in water. She has narrated as to what was informed by the victim to her, thereafter. 17] In the cross examination of this witness, it has come on record that the mother of the accused is old and sick and she remained in the house. A suggestion was given that because of illhealth, the mother of the accused is confined to the house. It has come on record that because of her illness neighbouring women go to her almost daily for chit-chatting. It has also come on record that the brother of the accused resides on the first floor in the same tenament where the accused resides. The brother of the accused has two sons who used to play in the house of the accused. PW-2 admitted that she leaves the house in the morning but during the 14 relevant period she was not doing any work. She admits that the houses in the slum locality are adjoining each other. Then she clarifies that there is one room between her house and that of the accused. A suggestion was given to her that even if one speaks in low voice and tone, it can be heard in the adjoining house. She denies this suggestion. She then admits that there is one road adjoining her house and that of the accused. The road is busy with traffic. Children play there. Wagle Estate police station is at very short distance (walking distance). Thereafter, she denies the suggestion that the husband / father of the victim comes back from work at about 9.00 pm. She states that he comes back at about 5.00 pm. The incident was narrated to him and after some discussion, they went to police station. In her further deposition she states as under:- “It is true that my Advocate told me how to depose before the Court as I was inexperienced in the court matter. It is true that accused is a contractor in house building. It is not true that at the time of incident the accused used to leave house in the morning for his business and used to come back in the evening. It is true that at the time of incident we had taken electric supply from the house of accused on rent. It is 15 true that for some period we punctually paid the rent. It is true that sometimes we used to pay a lumpsum rent for 2.-3 months due to shortage of money. It is true that during the period of incident the accused used to quarrel with us on account of electric rent. It is true that he had disconnected electric supply before this incident. Although I feel bad I did not quarrel with him. I took electric supply from someone else. It is true that there was only one tap from which myself and the accused used to draw water. It is true that there used to be quarrels between me and accused on account of tap water. Witness says that there used to be quarrels between all who were drawing water from the tap. It is true that Meera my another daughter had good relations with accused. She used to call the accused as Mama i.e. Maternal uncle. It is true that I used to get angry as Meera was talking with the accused. It is true that there was quarrel between me and accused as there used to be talk between Meera and accused.” 18] Thereafter, all suggestions about the other daughter Diksha informing her about the incident are answered in the negative by the 16 witness. She states that she has not filed a false case and to a pertinent suggestion, that she is deposing falsely due to previous quarrels it is denied by her. 19] PW-3 is the victim who has stated that the date of incident is 15th October 1997. She came back, according to her, from school at about 2.30 pm, kept her school bag in the house, whereafter, the accused called her to his house. She states that he was alone in the house. Her further deposition reads thus:- “... Thereafter, the accused removed my clothes, he removed his clothes he made me to sleep and he slept over my body. Then the accused made up down movements. Firstly the accused made me to sleep with my chest down. Then he slept over my body and made forward and backward movements at my backside and then he repeated the movements at my front side after he made me to sleep with face upwards. He had inserted his private part in my person i.e. My private parts i.e. Anus Vagina. I had pain at my private parts and anus at that time. When the door was knocked I 17 opened it and found my mother outside. My mother took me to our house. I narrated the incident to my mother. Sometimes thereafter my father came back from his work. My mother narrated the incident to my father and thereafter he had been to the accused. The accused tried to assault my father and thereafter, we had been to police station where a complaint was filed. I was sent to hospital.” 20] In the cross examination of the victim, she states that the day of incident was Saturday. Therefore, the school was upto 2.30 pm. She denies that she was playing with the friends after returning from school. She denies that it is not true that she was playing and accused came from the front side and when the accused came inside her house, he shouted at her. She admits that he shouted when he was at his house. Thus, to a suggestion that all that transpired between her and the accused was that he shouted at her and therefore, the victim called her mother, the victim answers it is not true. She denied the suggestion that she attended the school on the next day as usual. She stated that she was in hospital on the next day. She states that she went to the police station on 2/3 occasions after the incident. In her cross examination, she states as under:- 18 “.... It is true that I had no experience in the court matter. My Advocate told me how to depose. It is not true that whatever I have deposed was because of the instructions given by my Advocate. Doctor had examined me when I was sent to hospital. It is not true that my statement was not recorded by police. It is not true that I falsely deposed all about the incident on the say of my parents and our Advocate. It is not true that I never had been the house of accused and that I falsely deposed about the incident. It is true that I am angry with the accused as he shouted at me. It is not true that accused was not in his house on the day of incident. It is not true that I was never taken to police station and that no enquiry was made with me. It is true that there were quarrels between accused and we family members.” 21] PW-4 is the Doctor/ Medical Officer, who has in his examination- in- chief stated that there was nothing abnormal noticed on the examination of the victim. He also stated that he has taken vaginal swab. He confirms the contents of the certificate issued. The certificate has 19 been marked in evidence as Exh.35. 22] In the cross examination, he states that he has mentioned in the certificate that clinically there were no signs of penetration. He admits that there were no external injuries on the person of the victim. 23] The next witness is the Investigating Officer who has stated that he had been attached to Wagle Estate police station in October 1997 and PSI Jadhav recorded the FIR and investigation was handed over to him. Mr.Jadhav arrested the accused. However, he states that he visited the place of incident but could not draw the panchanama and it was accordingly drawn on 16th October 1997. He states that he has recorded the statement of relevant witnesses and he has attached the clothes of victim and sent the accused for medical examination. Blood sample was also collected but the other sample could not be collected. He has stated that he recorded the statement of Diksha i.e. Sister of the victim. He also collected the medical certificates. He produced the office copy of the forwarding letter for the purpose of analysis. He produced chemical analysis reports which are exhibited as Exhs. 43 to 46. He states that he has recorded statement of victim. Thereafter, he collected the semen 20 sample of accused and it was sent to chemical analyser on 12 th January 1998. 24] In the cross examination, which was held after the witness was recalled for cross examination, he admits that the victim did not state before him that she came back from school at 2.30 pm. She had stated in her statement that accused was alone in the house. She did not state before him that the door was opened after it was knocked. Nor did she state that after arrival of her father her mother narrated the incident to him, he went to the accused and there was quarrel between her father and the accused. The suggestion, that there was quarrel between the accused and father of the victim and, therefore, false FIR was filed, is denied by him. 25] This is the oral evidence and as far as the documents are concerned,