1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1281 OF 2003 Ramsubhash Sakkhu Yadav, ] Age: 35 years, R/o. Chandansar, ] Behind Vishnupura Pump, ] O/R/D Babu Vishnupura, Post Gangar ] Chaurichaura, Tal: Sardarnagar, ] Dist: Gorakhpur (Uttar Pradesh) ] ...Appellant Versus The State of Maharashtra, ] at the instance of Virar Police Station ] ...Respondent Mr. Kedar Patil for the Appellant Dr. F.R. Shaikh, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and A.R. JOSHI, JJ. DATE: AUGUST 4, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- This is a case relating to an unfortunate child, whose name we will not mention, and we will refer her as a victim, who 2 suffered indignity and also scars, which will haunt her throughout her life. Those scars will not only haunt her life but the lives of her parents and other close relatives. Maybe, because this case landed in a Court of law, had a full-fledged trial, and because of that, there might have been sufficient publicity, which may even hamper her chance of having a normal married life after she grows into a woman. 2. This victim was less than 6 years of age when she was playing near the school during the recess. She was lifted by the accused, according to the prosecution, on his bicycle, then taken to a hut, where she was not only brutally raped, but an offence under Section 377 of the Indian Penal Code was also committed against her person. She suffered physical injuries to the extent that she had to be hospitalised and she had to undergo surgeries. If the attack on this poor child was so brutal that needed surgical intervention, we would imagine the scar and the injury it must have left on the psyche and mind of this child. 3 3. The prosecution filed a charge-sheet on the basis of an F.I.R. filed by P.W.1 on 21st March, 2001, and after the investigation, when the charge-sheet was filed, the appellant was charged with offences under Sections 363, 376(2)(f) and 377 of the Indian Penal Code. He pleaded not guilty, and claimed to be tried. The prosecution examined 11 witnesses, and the trial Court convicted the appellant for an offence under Section 376(2)(f), and sentenced him to life imprisonment. The trial Court fined Rs.5,000/-, and in default, he was sentenced to further rigorous imprisonment for one year. He was also sentenced to 7 years’ rigorous imprisonment with fine of Rs.500/- under Section 363 of the I.P.C., and in default, to suffer one month’s rigorous imprisonment, and he was sentenced to 10 years’ rigorous imprisonment with Rs.1,000/- fine under Section 377 of the I.P.C. Out of the total fine, an amount of Rs.3,000/- was ordered to be given by way of compensation to the victim. 4. P.W. 1 is the mother of the victim. She stated that her husband was a painter. They had only one daughter, who was the victim. She had attained the age of 8 years. On the day P.W. 1 4 was examined, the victim was 8 years’ old and was going to primary school, and was studying in 3rd standard. Her school starts at 11.00 a.m. She returns to house for lunch at 2.00 p.m., again attends school at 3.00 p.m., and returns from the school at 5.00 p.m. At the time of occurrence, her daughter was studying in 1st standard. The occurrence took place on 21st March, 2001. Her husband had gone to Goregaon for his routine work. He had left the home at about 6.00 a.m. She and her daughter remained in the house. The victim attended the school from 11 a.m., returned to her house at 2 p.m. for lunch and went back at 3 p.m. She did not return till evening. Therefore, the witness went to search her. When the witness was on Shirgaon Road, she saw that the victim was coming back towards the house and was crying. She was not even in a position to walk properly. The witness enquired from the victim as to what had happened to her, and the victim told her that she was taken at Shirgaon to a hut by one person. The victim told her that the person removed her nicker and fell down on her person. That person inserted his penis in her private part. Then the witness took the victim and other persons with her. They found the person, who had committed rape on the victim, and 5 apprehended him from the same hut. Her daughter had shown her the hut. Then, she, along with the girl and all persons, went to the police station, along with the accused. Police recorded her complaint. After recording the complaint, the police obtained her thumb impression on the complaint. She saw the actual condition of her daughter’s private part and body. Her private part was swollen. The anus of the victim was having injury, and her inner part had come outside. She identified the complaint and her thumb impression. This was marked Exhibit 8. Though this witness was put to a detailed cross- examination with regard to the actual incident and the injuries suffered by the victim which could help the defence, nothing could be elicited from this witness. 5. P.W. 2 is the actual victim who narrated the nightmare that had befallen her. She stated that she was playing near the school during the recess at 4.00 p.m. The accused took her on his bicycle and went in a hut situate by the side of the fields. He removed her nicker and slept on her. He inserted his penis in 6 her place of urinal. Due to that, her private part was swollen. Then he also inserted his private part in her anus. Then she rushed towards the road, and saw her mother on the road. She informed her mother about the incident. Then, people gathered there, and they caught the accused in the hut. Then, she, her mother, father of Arun and Nikhil went to the police station. Her mother lodged complaint against the accused in the police station. The victim was taken to a doctor, but she did not know the name of the doctor. The accused before the Court was the same who had committed offences against her. 6. The victim was put to a very long cross-examination, but all she maintained was what she stated in her examination-in- chief. 7. P.W. 3, Dr. Girish Vidhyadhar Divekar, is the doctor who examined the accused and found following injuries on the person of the accused:- 7 Injury No.1: Contusion on right arm lateral aspect 3 nos. 4’ x ½’, 3’ x ½’ and 3’ x ½’ Injury No.2: Multiple contusion on back Injury No.3: Contusion on right thigh 5 nos. 5’ x ½’ to 3’ x ½’ Injury No.4: Contusion of Left thigh – 4 nos. 4’ x ½’ to 3’ x ½’. It appears that when the accused was apprehended by the private persons, he was also assaulted. 8. P.W.4, Dr. Jostna Milind Kirtane, is the doctor who examined the victim after 10 days. She stated that on 28th March, 2001, the victim was admitted in their hospital. She was brought with the history of alleged sexual assault prior to 8 days of her admission in the hospital. She was first admitted in Borivali Hospital for a day. She was under her care. She examined the victim, and noticed the following:- 8 “Initially after admission her private part was cleaned and she was administered intravenous antibiotics. On 29.3.2001 she was taken up for examination under anaesthesia. I found the following injuries: “There were 3 lacerations in the anal canal. The one at 12 0’clock position was the deepest involving the subcutaneous sphincter. The others were at 4 0’clock and 8 0’clock positions. These were sutured after ascertaining good function of the sphincter muscles.” She treated all the injuries. These injuries were possible due to sexual assault on her. The witness was also shown a letter of Head of Department of Paediatric Surgery, J.J. Hospital, Bombay. It bore the name of J.M. Kirtane as Professor and Head of Department. She had brought the case papers and entire file in respect of the victim’s treatment. She identified the signatures of other doctors. These papers were maintained by the hospital in usual course of its business. 9 9. P.W. 5, Leena Wilyam Ghonsalvis, is a teacher in the school in which the victim was studying. She stated that the school timing was 10.20 a.m. to 5.00 p.m. There was interval at 1.55 p.m. There was an interval of 10 minutes at 3.55 p.m. She stated that on 21st March, 2001, the school started as usual. She took presence of the students in the class. The victim was present. She was studying in the 1st standard of that school. She left the school at 1.55 p.m., but she did not come back. 10. P.W. 6, Harichandra Atmaram Kubal, is the husband of P.W. 1 and father of the victim. He has two wives. Since the first wife could not get him any child, he married P.W. 1. He had gone on 21st March, 2001 to Mumbai to perform his duty. He did not return on that day. He came in the evening of 22nd. The Education Officer phoned him, and informed that there was rape on his daughter. The Education Officer informed him that she might have been admitted in Civil Hospital, Thane. He went to Thane and reached in Civil Hospital at 9.00 p.m. After inquiry, he came to know that the victim was not admitted in Civil Hospital, Thane. 10 He returned to his home. He reached his house at midnight. He went to Virar Police Station on 23rd March, 2001 in the morning. The police informed him that the victim was admitted in Bhagwati Hospital, Borivali. He went to that hospital, and found his daughter in one ward. 11. P.W. 7, Nayana Vasant Jadhav, is a student who was reading with the victim. She stated that one Bhaiya had taken away the victim on his bicycle. God Hanuman Temple was at some distance away from her house. There was interval in the school at about 4.00 p.m. She did not know as to where that Bhaiya had taken away the victim. The victim was not related to her. 12. P.W. 8, Naresh Kashinath Bhosale, is a neighbour. He identified the victim as daughter of P.W. 1. He lives in the same chawl where P.W.1 lives. He returned from his work in the evening, and the victim told him that she was raped. Mother of the victim came to his house. Then, he, the victim and her mother and four other persons went near the Khadi. The accused was 11 sitting in the hut near the Khadi. They tried to catch the accused, but the accused ran away from that hut. However, they caught him, and took him to the police station. There was one bicycle near the hut, and it was also taken to the police station. The person whom they apprehended at the instance of the victim was present in the Court, and he identified the accused. 13. P.W. 9, Laxman Sakharam Ugalmugale, is the Police Sub Inspector, who registered the case and recorded the statements of the witnesses. P.W. 10, Hajimiya Ibrahim Shaikh, is panch to the seizure of cloths of the victim. 14. P.W. 11, Dr. Anosha Virendra Kokas, is the doctor who examined the victim for the first time. In the month of March, 2001, she was working as Gynaecology Registrar in Bhagwati Hospital, Borivali. On 22nd March, 2001, the victim was referred to Bhagwati Hospital by Exhibit 28. She was an indoor patient. Her number was 412. She was examined by her. She maintained notes of her examination. Her observations are as under:- 12 “On examination her general condition was fair. On local examination, there were injuries on perineum – vulva - injuries present. Pubic hair was not grown, Hymen – torn, breast not developed. External Injuries- 1) Abrasion on the back. 2) bite mark on left cheek. Since patient was minor girl P.R. Examination could not be performed as patient did not allow P.R. Examination.” The witness was shown the notes of examination, and said that the contents were true and correct. These notes were on official paper of Bhagwati Hospital, and the same bore seal of Bhagwati Hospital. She was shown certificate of 31st Mach, 2001. There were findings of her examination. She observed torn hymen, injury on the perineum. It was in the nature of vulva laceration. There were abrasion on the back and bite mark on the left cheek. The patient was admitted on 22nd March, 2001 and discharged on 23rd March, 2001. She was brought to the hospital by Woman Police, B. No. 1981. Accordingly, the witness issued certificate. Due to sexual assault, these types of injuries were possible. Sexual assault in 13 case of a minor girl results in torn hymen. In such process, injuries on the back of a patient are also possible. Bite by opposite sex may result in bloody tooth-mark on cheek. The notes of the examination of the patient were in the hand-writing of house- surgeon Vidhya and singed by Vidya. She identified signature of Vidya also. 15. This evidence does not leave any doubt that the accused raped the minor girl and also committed an unnatural offence under Section 377 of the Indian Penal Code against her person. Nothing has been even suggested in defence while cross- examining the witnesses who were produced by the prosecution. Therefore, we do not find any ground to allow this appeal, which has to be dismissed. 16. The learned counsel for the appellant has, however, contended that minimum sentence under Section 376(2)(f) of I.P.C. is 10 years, and the trial Court has not given any reasons for not giving the minimum sentence. In this connection, he relies on a judgment of the Supreme Court in Dinesh alias Buddha v. 14 State of Rajasthan, reported in (2006) 3 Supreme Court Cases 771. Maybe, it is true that the trial Court has not given specific reasons for giving the maximum punishment to the accused, but the reasons are writ large on the facts of the case itself, and we have narrated the reasons in the 1st and 2nd paragraphs of this judgment. Had the accused been an adolescent of 14 or 15 years, one could understand that a person of that age could, perhaps, commit such a heinous offence. This man was 35 years’ old, a married person, having three children, as he had stated in his statement under Section 313 of the Cr.P.C. at the time of awarding of sentence by the trial Court. He was conscious of what he was doing. After raping that girl, he did not even repent when she was bleeding, and started another offence of committing an unnatural offence under Section 377 of the Indian Penal Code. Therefore, this appellant needs to be given the maximum sentence. 17. For these reasons, we uphold the judgment as far as the convictions and sentence are concerned. Those convictions are appropriate or valid for the reasons already given. The appeal is accordingly dismissed. BILAL NAZKI, J. A.R. JOSHI, J.