:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO.863 OF 2007 CRIMINAL APPEAL NO.863 OF 2007 CRIMINAL APPEAL NO.863 OF 2007 Abdul Khalik Abdul Guffar @ Popat Age: 51 years, Presently undergoing sentence being Convict No.C/6173, at Nashik Road Central Prison, Nashik ...Appellant. v. State of Maharashtra At the instance of Azad Nagar Police Station, Malegaon ...Respondents. Mr.Suresh Bhosale adv. appointed for the Appellant. Mr.Y.M.Nakhawa, APP for the Respondent/State. CORAM: CORAM: CORAM: R.V.More,J. R.V.More,J. R.V.More,J. DATE: 18th March, 2009. DATE: 18th March, 2009. DATE: 18th March, 2009. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant/original accused was convicted for the offences punishable under Section 376 of the Indian Penal Code (In short ’I.P.C.’) and sentenced to suffer S.I. for seven years and to pay a fine of Rs.500/- in default of payment of fine, S.I. for a period of six months. Prosecution case in brief is as follows: . P.W.2/Complainant Mohit is resident of Jaitinpura, Lane No.1, Malegaon. The house of the appellant/accused was near the house of the complainant. The complainant Mohit is residing in his house alongwith his wife, six sons and five daughters. On the date of :2: incident, i.e., on 31st July, 2005 at about 10.00 a.m., the complainant Mohit alongwith his wife had gone to attend the funeral ceremony of his brother-in-law, Mukhtar Ahmed and his daughters were at home. He returned back to the house at 4.00 p.m. That time P.W.1 Naushad informed him that at about 3.00 p.m. the appellant/accused called his five years old daughter Rubina @ Sabiya in his house and closed the door. After hearing the noise of weeping of a girl, Naushad went to the house of the appellant, which was situated in front of his house. He saw from the wooden plank of the door that the appellant/accused was committing forcible sexual intercourse with the girl. P.W.1 also told to P.W.2 that he called neighbours to witness the incident. Neighbours came. They saw incident and knocked the door of the house of the appellant. The appellant thereafter opened the door and ran away. P.W.2 thereafter immediately registered F.I.R. with Azad Nagar Police Station. Police sent Rubina to hospital. Medical officer examined Rubina. The police thereafter started investigation. Statements of the witnesses were recorded. Medical certificate and C.A. report was obtained and thereafter, charge-sheet was filed in the Court of J.M.F.C., Malegaon. Since the offence under Section 376 is exclusively tribale by the Court of Sessions, the case was committed to the Court of Sessions at Malegaon. :3: 2. The learned Additional Sessions Judge, Malegaon framed charge against the appellant/accused under Section 376 of the I.P.C. Charge was explained to the accused in vernacular to which he denied and claimed to be tried. Defence of the accused was of total denial. 3. Prosecution in order to establish the guilt of the appellant/accused, examined six witnesses, namely, P.W.1 Naushad neighbour and eye witness to the incident, P.W.2 Mohit father of victim Rubina, P.W.3 PSI Rajput, Investigating Officer, P.W.4 Mohammed Ilyas employee in Municipal Corporation, Malegaon in order to prove birth date, P.W.5 Dr. Mohammed Deshmukh, who examined victim Rubina and P.W.6 is the mother of the victim Rubina. Prosecution also relied upon the medical evidence at Exhibits 35 and 39. The learned Additional Sessions Judge on the basis of above evidence led by the prosecution held that the prosecution proved beyond reasonable doubt that the appellant has committed offence punishable under Section 376 of the Indian Penal Code and consequently, convicted and sentenced him as stated above. 4. Mr.Bhosale learned appointed advocate appearing on behalf of the appellant submitted that the offence under Section 376 is not proved by the prosecution beyond any reasonable doubt. He also submitted that if the evidence of P.W.5 is perused, it does not support :4: the prosecution version of commission of rape by the appellant on the victim Rubina. He also submitted that the evidence of P.W.1 is not trust worthy and, therefore, does not inspire any confidence. He lastly submitted that benefit of doubt requires to be given to the appellant. 5. Mr.Nakhawa, learned APP per contra supported the impugned judgment and order. He submitted that sufficient evidence is adduced by the prosecution to establish complicity of the appellant/accused in an offence punishable under Section 376 of the I.P.C. He also submitted that conjoint evidence of P.W.1, who is eye witness to the incident and that of medical officer is sufficient to convict the appellant under Section 376 of the Indian Penal Code. He also submitted that the appeal is devoid of any substance and deserves to be dismissed. 6. As stated above, the prosecution in order to establish the guilt of the accused led the evidence of six witnesses and also relied upon the medical certificate at Exhibit 36 and C.A.Reports at Exhibit 9. Out of these witnesses, evidence of P.W.1 Naushad, who is the eye witness to the incident and evidence of P.W.5 Dr.Mohammed Deshmukh is important. P.W.2 and P.W.6 father and mother of the victim Rubina came to know about alleged incident subsequently at about 4.00 p.m. :5: on the date of incident. However, they are examined to corroborate the evidence of P.W.1. P.W.4 is Mohammed Ilyas, who is examined to prove birth extracts of the victim Rubina. 7. P.W.1 deposed that house of the appellant/accused is situated just in front of his house. At about 3.00 p.m. on 31st July, 2005 while he was standing in front of his window, he heard voice of weeping of a girl and the noise was coming from the house of the appellant and, therefore, he went out of his house. Door of the house of the appellant was closed. From the wooden plank of this door, he saw a girl was lying on the cot and the appellant had pressed her mouth by his hands and the appellant by pressing the mouth of the girl was committing forcible intercourse. Thereafter, he called neighbours. Neighbours also witnessed the incident inside the house from the wooden plank of the door. P.W.1 and neighbours raised shouts and thereafter, the appellant got up, adjusted his clothes, opened the door and ran away from that place. Thereafter, P.W.1 went inside the room and saw that on the vagina of Rubina there were blood dots and dots of human sperm. At about 4.00 p.m. the parents of Rubina went to the police. They also noticed the condition of their daughter, Rubina. P.W.1 narrated the incident to the police. Police took Rubina to the police station and, thereafter to the hospital. However, in :6: cross-examination P.W.1 admitted that he has stated in his statement before the police that the appellant was doing illegal act (’Galat Kam’). He further admitted that he has not stated in the police station that the appellant was doing forcible intercourse. Evidence of P.W.1 is corroborated by the evidence of P.W.2 and 6. They have deposed that on the date of incident, they had gone to attend the funeral of brother-in-law of P.W.2 and when they returned back at about 4.00 p.m., P.W.1 told them about the act committed by the appellant on their minor daughter Rubina. Both the witnesses testified that the bleeding was present from the private part of victim girl Rubina. 8. P.W.5 Dr.Mohammed Deshmukh deposed that on the date of incident at about 6.15 p.m., he examined victim Rubina. On general examination, he found her condition normal. He found that patient was conscious and co-operative. Systematic examination was also normal. On local examination, he found:- 1. Right thigh upper 1/3rd lateral aspect abrasion of six 3 1/2 cm. which is fresh in duration, of simple nature caused by hard and blunt object. 2. On right leg middle 1/3rd abrasion of size 2 x 1/2 cm over anterior aspect, as well as right thigh middle 1/3rd lateral aspect abrasion of size 1x1/4th cm. within 24 hours of duration, having simple nature and caused by hard and blunt object. :7: On examination of private part, he found labia majora was normal but labia minora was congested and tender. P.W.5 specifically deposed that the alleged history of P.V. bleeding was given by mother but there was no detection. Hymen was normal. There was no sticky fluid in and around the vagina. He accordingly, prepared the certificate and issued to Azad Nagar police station, which is at Exhibit 35. He proved certificate. He also deposed that congestion of labia minora can be on account of forcible penetration or forcible attempt. He opined that injury nos.1 and 2 mentioned above are likely to occur in forcible penetration or forcible attempt. 9. P.W.5 on the same day also examined the appellant. However, he did not notice any local injury over the genital area. 10. The report of C.A. at Exhibit 9 reveals that no semen is detected in vaginal swab of the victim Rubina and pubic heir of the appellant. 11. If the above evidence of the prosecution witnesses is perused, then it is clear that the version of P.W.1, 2 and 6 regarding presence of blood and semen on the private part of victim Rubina is contradicted by P.W.5 Dr.Mohammed Deshmukh. P.W.5 Dr.Mohammed Deshmukh :8: in clear terms testified that in spite of history of bleeding given by the mother of Rubina, he did not notice the same on the private part of Rubina. He also did not find any sticky fluid in or around the vagina of victim Rubina. Evidence of Doctor deserves consideration as he examined victim Rubina within a period of three hours from the time of the incident. In view of the above discussion, evidence of P.W.1 who deposed that the blood and semen were present on the private part of victim Rubina becomes doubtful and can not be accepted. 12. P.W.1 claims to be eye witness to the alleged incident. He witnessed from the wooden plank of the door that the appellant was committing forcible intercourse with the victim Rubina and, therefore, he called neighbours and they also witnessed the said incident. Prosecution did not examine any other neighbour. Statement of P.W.1 that the appellant was committing forcible intercourse is not free from doubt in view of admission he has given in cross-examination. In cross-examination, he admitted that he did not state before the police that the appellant was doing forcible intercourse. He also admitted that he has stated before the police that the accused was doing illegal act (’Galat Kam’). In the above facts and circumstances, the evidence of the P.W.1 regarding commission of forcible sexual intercourse is doubtful and can not be :9: accepted. 13. Evidence of P.W.5 Dr.Mohammed Deshmukh also is not helpful to the prosecution to establish the commission of forcible intercourse by the appellant on the victim Rubina. Dr.P.W.5 in terms deposed that he found hymen of Rubina was normal and there was no sticky fluid in or around the vagina. He also did not find any blood around vagina. He found labia majora normal but labia minora was conjusted. What is important is opinion of P.W.5. He opined that congestion of labia minora can be on account of forcible penetration or forcible attempt. He also opined that in doing so injuries mentioned above on the thigh of the victim Rubina are likely to occur. P.W.5 was not sure about the penetration. Thus, P.W.5 Doctor was not sure that the injuries to the labia minora can be caused by forcible penetration only as he was of the opinion that those injuries can also be caused by forcible attempt. Thus, it becomes extremely doubtful whether the appellant forcibly penetrated his private part into the vagina of the victim Rubina. Benefit of this circumstance must be given to the appellant. In the facts and circumstances discussed above, in my opinion, prosecution failed to prove beyond any reasonable doubt that the appellant has committed forcible sexual intercourse on victim Rubina. :10: 14. Though I have come to conclusion that the prosecution failed to make out any offence under Section 376 of the I.P.C. for want of evidence of the penetration, I find that there is enough evidence on record to establish charge under Section 376 read with Section 511 of the I.P.C. Evidence of P.W.1 beyond any reasonable doubt reveals that the appellant made an attempt to commit rape on the victim Rubina. P.W.5 Dr.Mohammed Deshmukh also corroborated the evidence of P.W.1, as much as he found injuries on the thies of the victim Rubina and labia minora was congested. Evidence of P.W.1 coupled with the evidence of P.W.5, in my view is sufficient to prove the offences against the appellant under the provisions of Section 376 read with Section 511 of the I.P.C. 15. In the facts and circumstances mentioned above, I dispose off the appeal by passing following order: i. Appeal is partly allowed. ii. Appellant’s conviction under Section 376 is quashed and set aside. iii. Appellant is convicted under Section 376 read with Section 511 of the I.P.C. and sentenced to suffer S.I. for a period of five years and fine of Rs.500/- in :11: default of payment of fine, he has to further undergo S.I. for three months. 16. Appeal stands disposed off. (R.V.MORE, J.) (R.V.MORE, J.) (R.V.MORE, J.)