1 apeal 218 of 2007 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 218 OF 2007 Mr. Anil Mitu Pawar, age: 19 years, residing at Indira Nagar Zopadpatti, Turbhe, Navi Mumbai, District: Thane .. Appellant Ori. Accused. -versus State of Maharashtra .. Respondent. Mr.Ganesh Gole, for the Appellant. Mrs. M.M. Deshmukh, Additional Public Prosecutor, for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 22nd June, 2011 Judgment 1. This appeal is directed against the conviction of appellant for the offence punishable under Section 376(f), 342, 352, 504 and 506 of the Indian Penal Code and sentence of R.I. for 10 years and fine of Rs.5,000/- or in default to suffer R.I. for 30 days, imposed upon the appellant by the learned 3rd Additional Sessions Judge, Thane on conclusion of Sessions Case No.272 of 2006. 2. Facts which are material for deciding this appeal are as under:- The victim aged about 3 ½ years was residing with 2 apeal 218 of 2007 her parents in the house near house of appellant. On the evening of 14th May, 2006, she had gone to appellant’s house for watching T. V. After sometime her screams attracted her mother, aunt and others towards house of the appellant. The appellant opened the door and the persons who had gathered there found that the victim was lying on floor was crying. She indicated that she has been sexually assaulted. The appellant tried to run away, but was caught by the mob and taken to police station. The victim as well as appellant had been sent for medical examination after registration of an offence on the report of mother of the victim. The medical examination of the victim as well as appellant led the police to believe that the victim had been raped. Necessary samples had been taken and sent to the Forensic Science Laboratory. The clothing of the victim and appellant were seized. Statements of witnesses were recorded and on completion of investigation, chargesheet was sent to the Court of J.M,.F.C. Washi, Navi Mumbai who committed the case to the Court of Sessions at Thane. 3. The appellant was charged of offences under Sections 342, 376 (2)(f), 352, 504, and 506 of the Indian Penal Code. He pleaded not guilty to the said charge and hence was put on trial at which the prosecution examined as many as 12 witnesses to bring home the guilt of the appellant. 4. Upon consideration of prosecution evidence in the 3 apeal 218 of 2007 light of defence of denial and false implication, the learned Judge convicted and sentenced the appellant as indicated above. Aggrieved thereby the appellant is before this Court. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence tendered. P.W. 1-Farida Banu Akbar Ali Shaikh, is victim’s mother. She states that on 14.5.2006 at about 6.00 p.m. her daughter had gone to the house of accused for watching T.V. She heard cries of her daughter. She came to the house of appellant and found the door closed. She was knocking on the door for about 15 minutes. Neighbours also gathered. Accused opened the door. She went inside the house alongwith her sister in law Hamida Banu, neighbour Asha and others; and found her daughter crying and appellant cleaning the floor. Appellant admitted to P,W. 1 Farida Banu that he had done something wrong to the victim. Farida Banu called her husband. Appellant was trying to run away, but was caught eventually. Farida Banu lodged report which at Exhibit 8 whereupon offence was registered. In the cross examination, the witness stated that her daughter was bleeding and the knicker of her daughter was stained with blood. She denied that there were any quarrels between her and mother of the appellant prior to two months of incident or that the appellant’s mother was not permitting her daughter 4 apeal 218 of 2007 to watch T.V. in their house. 6. P.W.-2, Hamida Banu Shaikh is the sister in law of P.W.1, who substantially corroborated the version of P.W.1. She was exaggerating by stating that there was bleeding from victim’s private part and the appellant was wiping out the same. 7. P.W.3 Nandkishor Goswami is the panch at the search and seizure carried by the police station. The appellant was searched in the presence of this witness and some cash etc. was found. The panchnama is at Exhibit 12 proved by the witness, includes a reference to paper cutting about advertisement for treatment of venereal diseases and also visiting card of an Ayurvedic Dispensary. However, these items seized vide Exhibit 12 are of no consequence since P.W. 9 Dr. Mhatre, who examined the appellant did not find that the appellant was suffering from any venereal diseases. 8. P.W.4, is the victim herself. She was just 3 and half years child. Learned counsel for the appellant may be right in submitting that at such tender age, victim was obviously not in a position to understand anything and therefore could not have been examined as “witness” in the case. All the same it is significant that she states in her cross examination that there were four children which included one Gudiya, watching T.V. alongwith her when the incident occurred. 9. P.W.5 Krishna Hegade is a witness at seizure of 5 apeal 218 of 2007 clothes of the appellant vide Exh. 16 and 17. The appellant’s clothes were shirt, Jean Pant and underwear. P.W.6 Chandrashekhar Mishra, witnessed seizure of the clothes of victim girl state. Her clothes were one shirt and underwear. These articles had been sent to Forensic Science Laboratory by the Investigating Officer and the report of Laboratory at Exh.29 shows that the victim’s clothes marked as Exhibit Nos 7 and 8 had stains of semen of blood group ‘O’. Clothes of the accused, which are marked as Exhibit 9 and 10 had stains of human blood group ‘O’ while blood group of stains on Exhibit 11 could not be ascertained. 10. P.W.8, Sindhu Pawar claims to be a social worker residing in the same area and was attracted to the house of accused, on hearing the victim’s cries. She too stated that they banged on the door and on the accused opening the door, she saw blood on the floor of the house. The knicker of the victim was wet. She further stated that the persons who had gathered caught the appellant while running away. 11. P. W. 7 Dr. Shalaka Mohile had examined the victim on the same day at 7.00 p.m. She found that there was congestion on the vaginal wall of dimension 2 cm x 2 cm, as also that the hymen was torn and tear was old. She did not find any other abnormality. She did not find any stains on the clothes of the victim. She did not observe any bleeding. She stated that there was 50 – 50% chances of the bleeding if 6 apeal 218 of 2007 child is raped by a person. She proved her certificate at Exh. 22. 12. P.W.9 Dr. Ravindra Mhatre was one of the two doctors, who examined the appellant. Certificate at Exhibit 26, was signed by the other Dr. Choudhary. Dr. Mhatre stated that the appellant was examined at 9.00 p.m. and issued certificate at exh.26 on the same day. It was found that the appellant did not suffer from any venereal diseases. Dr. Mhatre, found that there was fresh laceration of frenulum of the penis. 13. P.W.10 is Police Inspector, who carried out the investigation in the case, including panchnama of spot which is at exh.28, which was witnessed by P.W.11 Suresh Gaikwad. Police had seized the cloth used for wiping blood from floor in the course of panchnama. 14. Learned counsel for the appellant submitted first, that the evidence of P.W.4 the victim should not have been considered by the trial Judge because of her tender age and the possibility of her being tutored. He next submitted that in the context of possibility of disputes between the appellant’s mother and the victim’s mother, the possibility of appellant being framed up could not be ruled out. Learned Additional Public Prosecutor rightly countered by submitting that there could have been no occasion for not only complainant Farida Babu but her sister in law Hamida Banu as also independent 7 apeal 218 of 2007 witness like P.W.8 Sindhu Gawali, to state about the incident as they saw it. She also pointed out that P.W.6 Chandrashekhar Mishra stated not only about panchnama but also had been attracted by the cries of the victim and corroborates the version of P.W Nos 1, 2 and 8 substantially. 15. Learned counsel for the appellant submitted that there are discrepancies in the evidence of these 3 witnesses and account given by these witness has to be rejected because it is exaggerative. He submits that while witnesses suggested that there was bleeding from the victim’s person, P.W.7 Dr. Shalaka Mohile did not find any blood stains on the body of the patient or bleeding from her body. Exaggeration does not necessarily mean that the grain of truth in the evidence is also to be thrown with exaggerative chaff. There would be no reason that these persons from the locality to state that the appellant was inside his house, opened the door on repeated knocks, that the victim was found inside the house and the zip of the pant was also open when he opened the door. There is also absolutely no reason for the witnesses to falsely state that the appellant had to be caught and carried to the police station. 16. That apart, the evidence of examination of the appellant himself by Dr. Mhatre would show that there was laceration at frenulum which is totally inexplicable except by the fact that appellant tried to force himself on a child of such 8 apeal 218 of 2007 a tender age. Learned counsel for the appellant submitted that certificate was not signed by Dr. Mhatre, but was signed by Dr. Choudhary and therefore, Dr. Mhatre was not competent to depose. This argument has to be rejected because Dr. Mhatre’s name appears on the top of the medical certificate issued. Merely because it is not signed by him, it does not mean that he was not part of the team which examined the appellant. 17. Learned counsel for the applicant next submitted that the observation of laceration of the frenulum of the appellant would be inconsistent with absence of any injuries on the private parts of the victim. He also pointed to an old tear of hymen observed by P.W.7 Dr. Shalaka Mohile, which would be inconsistent with any penetration on the incidental day. Learned APP submitted that this old tear of hymen is in fact inexplicable but is insufficient to hold that there was no molestation tear hymen of the victim. She submitted and rightly in my view, that the congestion of the vaginal wall observed by Dr. Shalaka Mohile was recent and would be consistent with the sexual assault by the appellant. She submitted that there could be no other reason for laceration of the frenulum of the appellant. 18. Since the appellant and the victim were immediately examined by doctors, there is absolutely no scope for any mischief being played. And, since the 9 apeal 218 of 2007 appellant’s clothes as well as victim’s clothes were seized immediately and sent to the Forensic Science Laboratory, the report of Forensic Science Laboratory could also be decisive. The report lends corroboration of the medical observation since victim’s clothes had stains of semen of blood group ‘O’ and the appellant’s clothes had stains of blood as well as semen of blood group ‘O’ which is appellant’s blood group. This finding of blood on the appellant’s clothes is consistent with the observation of Dr. Mhatre that there was laceration of frenulum. In the face of these findings, it would have been impossible for the learned Judge to come to any other conclusion than that the appellant sexually assaulted the victim. 19. Learned counsel for the appellant submitted that except for congestion in vaginal wall of the victim, there was no other injury to the victim’s private parts and therefore, this would rule out that complete sexual intercourse or penetration. Learned counsel, therefore, submitted that it could at worst be case of attempted rape, which could be dealt with under Sections 511 of the Indian Penal Code. I do not see as to how would this amount to attempt to rape since complete penetration or complete intercourse is not at all required for proving rape. Therefore, the congestion on vaginal wall would be indicative of penetration and consequently the appellant’s conviction for the offence 10 apeal 218 of 2007 punishable under Section 376 (2)(f) cannot be faulted considering the tender age of the victim. 20. Learned Counsel, for the appellant next submitted that at the time of incident the appellant himself was just 19 years old and therefore, though he may have committed some indiscretion, he should not be visited with punishment of imprisonment for 10 years. Learned counsel for the appellant submitted that the appellant has already been in a prison for almost five years and therefore, the punishment suffered should be adequate to chastise the appellant to keep him on proper track in future. He submitted that in fact in view of the age of the applicant and absence of previous criminal history, appellant should be dealt with more leniently and he should not be stigmatized. 21. Learned APP on the other hand, submitted that for such a heinous crime of molesting a child of 3 ½ years has to be dealt with by imposing deterrent sentence and therefore the sentence imposed which is the prescribed minimum under the law does not call for any interference. 22. I have carefully considered all these contentions. There could be no doubt that the assault on a child of 3 ½ years has to be dealt with sternly, but it does not follow that there could be no deviation from the sentence of R.I. for 10 years, prescribed under Section 376(2) (f) of the Indian Penal Code. Section 376 (2) (f) itself provides that for good and 11 apeal 218 of 2007 adequate reasons sentence could be less than 10 years. In this context just as the gravity of the offence would demand stringent sentence, age of accused at the time of commission of offence and absence of criminal history cannot also be ignored. Therefore, it would be appropriate to reduce the sentence imposed on the appellant to R.I. for 7 years from R. I. for 10 years inflicted by the learned Judge. 23. As far as the offence under Sections 342, 504 and 506 are concerned though the learned Judge has convicted the appellant, except for wrongful confinement there appears no intentional insult or intimidation warranting conviction for the offences punishable under Sections 504 and 506 of the Indian Penal Code. The conviction for these offences would have to be set aside, though no separate sentence has been imposed by the learned Judge for these offences. 24. As far as Section 352 of the Indian Penal Code is concerned, again there is nothing to show that there was any assault apart from rape committed by the appellant on the victim. Therefore, conviction for the offence punishable under Section 352 of the Indian Penal Code would also have to be set aside. 25. In view of this appeal is partly allowed by passing following order. ORDER. I) The conviction of the appellant for the 12 apeal 218 of 2007 offences punishable under Sections 352, 504 and 506 of the Indian Penal Code is set aside. II) Appellant’s conviction for the offences punishable under Section 342 and 376 of the Indian Penal Code is maintained. However, sentence of R.I. for 10 years imposed for offence punishable under Section 376 (2)(f) of the Indian Penal Code is reduced to R. I. for 7 years and fine of Rs.5,000/- or in default to suffer R.I. for 30 days, and for offence punishable under Section 342 of the Indian Penal Code the appellant would suffer R.I. for one month without any fine. III) Substantive sentences shall run concurrently. (R. C. CHAVAN, J.)