[-1-] IN THE HIGH COURT OF JUDICATURE AT BOBBY IN THE HIGH COURT OF JUDICATURE AT BOBBY IN THE HIGH COURT OF JUDICATURE AT BOBBY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1226 OF 2004. CRIMINAL APPEAL NO.1226 OF 2004. CRIMINAL APPEAL NO.1226 OF 2004. Noor Mohammad Khajiya Hussain ] Shaikh @ Babulal Sharma, ] R/o. Sath Rastha, Dhobi Ghat, ] Ganesh Nagar Zopadpatti, ] Mumbai-400 011. ] .. Appellant. versus The State of Maharashtra. ].. Respondent. Mr.S.N. Bhosale, Advocate for Appellant. Mr.K.V. Saste, A.P.P. for State. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 16, 2008 DATE : JUNE 16, 2008 DATE : JUNE 16, 2008. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. Through this appeal, the appellant- original accused has impugned judgment and order dated 30th October, 2003, passed by the Additional Sessions Judge, Greater Mumbai, in Sessions Case No.420 of 2001, By the said judgment and order, the learned Sessions Judge convicted the appellant under section 376 and 506(II) of Indian Penal Code. For the offence under section 376 of I.P.C., the appellant was sentenced to R.I. for 7 years and fine of Rs.5,000/- in default, R.I. for 3 months and for offence under section 506(II) of the Indian Penal Code, the appellant was sentenced [-2-] to R.I. for 3 years and fine of Rs.1,000/- in default, R.I. for 1 month. 2. The prosecution case is stated as under :- The prosecutrix PW.1 - Ruksana is the daughter of the appellant. Ruksana was married lady of 20 years. She had a daughter, aged about 2 years. At the time of the incident, Ruksana was staying alongwith her mother. However, at the relevant time, her mother had gone to Bangalore. The accused had been convicted in a case and after completing the term of imprisonment of about 7 years, he came to be released. After his release from the jail, he had gone directly to the house of the prosecutrix. On the day of the incident, at about, 4 a.m. the accused came home and told Ruksana that she should sleep on the loft and he will sleep outside. Hence, Ruksana went on the loft and slept there alongwith her daughter. Soon thereafter, the accused came on the loft, he switched off the light and took out knife and he threatened Ruksana to kill her daughter. The accused then committed rape on Ruksana. Due to threats given by the accused, Ruksana could not shout. Thereafter, the accused came down from the [-3-] loft. Ruksana also came down from the loft. Ruksana poured kerosene on her person. Her family members were nearby, and asked her what happened. thereupon, she narrated the incident to her grand-mother and maternal aunt -Rashida (PW.2). They went to catch hold of the accused, the accused showed them a knife and ran away. Immediately thereafter, the prosecutrix lodged the F.I.R. at the police station. The clothes of the prosecutrix came to be seized and sent to chemical analyst. The accused came to be arrested on 3rd January 2001. On completion of investigation, charge sheet came to be filed. 3. The charge came to be framed against the appellant-accused for the offence under section 376 & 506(II) of the Indian Penal Code. The appellant pleaded not guilty to the said charge and claimed to the tried. The defence of the accused is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant, as stated in para 1 above. Hence, this appeal. [-4-] 4. I have Heard the learned Advocate appointed for the appellant, Mr.Saste, learned A.P.P. for the State. I have perused the judgment and order as well as the evidence. After carefully considering the matter, I am of the opinion that this appeal deserves to be dismissed. 5. The prosecution case is mainly founded on the evidence of the prosecutrix, PW.1-Ruksana. Ruksana is the daughter of the appellant. At the time of the incident, Ruksana was married and she had a minor daughter of about 2 years. Ruksana has stated that on the day of the incident, the accused came home and told Ruksana that she should sleep on the loft and he will sleep outside. Hence, Ruksana went on the loft and slept there alongwith her daughter. At about 4 a.m., the accused came on the loft, he switched off the light, took out the knife and he threatened Ruksana to kill her daughter. Thereafter, the accused committed rape on Ruksana. Due to threats given by the accused, Ruksana could not shout. Thereafter, the accused came down from the loft. Ruksana also came down from the loft. Thereafter, Ruksana poured kerosene on her person. Her family [-5-] members who were nearby, asked her what happened, Whereupon, she narrated the incident to her grand-mother and maternal aunt -Rashida (PW.2). They went to catch hold of the accused, but the accused showed them a knife and ran away. Immediately thereafter, Ruksana lodged the F.I.R. 6. Mr. Bhosale submitted that the evidence of the prosecutrix cannot be relied upon, because there are material improvements in the evidence of the prosecutrix. He submitted that the prosecutrix has stated in her examination-in-chief that the accused kept a knife on the body of her daughter and he told the prosecutrix that if she shouts, he will kill her daughter. Due to threats, the prosecutrix did not shout. I have carefully perused the evidence and found that the omission is only restricted to keeping the knife on the body of her daughter. There is no improvement in respect of showing the knife by the accused and the accused giving threats that he will kill her daughter if the prosecutrix raises shouts. Thus, it is seen that the improvement is not a major improvement and it not such that it would fatally affect the prosecution case. [-6-] 7. Thereafter, Mr. Bhosale submitted that in her examination-in-chief, the prosecutrix has stated that when her grand-mother and aunt-Rashida went to catch hold of the accused, the accused took out a knife and stabbed her grand-mother. On perusal of the evidence, it is seen that only the word "stabbing" can at the most be said to be an improvement. Because, in the F.I.R., the prosecutrix has stated that when her grand-mother and aunt went to catch hold of the accused, at that time, the accused threatened her with the knife and ran away and in that scuffle, her grand-mother received injury on the forehead. It is seen that the grand-mother has received a minor injury on account of a knife held by the accused but that was during the course of the scuffle and not due to the accused actually stabbing her grand-mother. The fact remains that the grand-mother received injuries by the knife held by the accused. Hence again, this cannot be said to be such a material improvement, so as to affect the prosecution case. On going through the cross-examination of the prosecutrix, no major omissions or contradictions have been brought on [-7-] record and I find the evidence of the prosecutrix, to be totally reliable. 8. The evidence of the prosecutrix is corroborated by the evidence of PW.2-Rashida, who is aunt of the prosecutrix. Rashida has stated that after his release from jail, the accused directly came to their house. She alongwith her mother were in the down portion of the house and Nazma, the mother of Rashida was residing on the loft alongwith her child. When the accused came home, Nazma had gone to Bangalore. The accused asked them, whether he could stay in their house. They told him that he could stay there. In the morning, at about 4.00 a.m., when Rashida got up, Ruksana was weeping. On making enquiry with Ruksana, Ruksana informed her that the accused had committed rape on her. On hearing this, Rashida started giving abuses to the accused. At that time, the accused took out a knife and ran away. Nothing has been elicited in the cross-examination of this witness, so as to disbelieve her testimony. 9. The clothes worn by the prosecutrix at the [-8-] time of the incident, came to be seized and were sent to the chemical analyst. The C.A. report (Exhibit 28 Colly.) shows that the salwar of the prosecutrix had 3 semen stains, each of about 3 cms. When the prosecutrix was sent for medical examination, her vaginal smear was taken by the doctor, which was sent to the C.A. The C.A. report (Exhibit 15 colly.) shows that semen was detected in the vaginal smear of the prosecutrix. Thus, the C.A. reports also corroborate the case of the prosecutrix. 10. Mr. Bhosale submitted that it is the case of the prosecutrix and after her father, i.e. the accused, committed rape on her, she came down from the loft and poured kerosene on her person. He submitted that the clothes of the prosecutrix were sent to the C.A. However, no kerosene is detected on the clothes of the prosecutrix. This shows that the case of the prosecutrix is false and concocted. As far as this fact is concerned, it is seen that the investigating agency has sent the clothes of the prosecutrix to the C.A., with forwarding letter (Exhibit 27). In the forwarding letter, the investing agency has not asked the [-9-] chemical analyser to give any opinion, whether there was kerosene on the clothes of the prosecutrix. Obviously, when no such query was made, the chemical analyser would not be expected to give any opinion regarding finding of the kerosene on the clothes. 11. Immediately after the prosecutrix lodged the F.I.R., she was sent for medical examination. PW.3-Dr. Daund has examined the prosecutrix. She has stated that the prosecutrix told her that she has been raped by her father. Mr. Bhosale submitted that the case of the prosecutrix is that she was subjected to forcible sexual intercourse is false as no injuries were found on the body of the prosecutrix, nor were her clothes torn. Mr. Bhosale placed reliance on a decision of the Supreme Court, in case of Bibhishan v/s. State of Bibhishan v/s. State of Bibhishan v/s. State of Maharashtra, Maharashtra, Maharashtra, reported in 2008 Cri.L.J. 721. 2008 Cri.L.J. 721. 2008 Cri.L.J. 721. He pointed out that in the said case, there was no injury on the body of the prosecutrix, nor the clothes were torn, nor there was any presence of the hair of the accused on the private part of the prosecutrix. In the said case, the doctor after examining the prosecutrix, deposed that the girl [-10-] was habited to sexual intercourse. In such case, the Supreme Court had acquitted the accused. I have perused the said decision. In the said case, vaginal smear was taken from the body of the prosecutrix, however, no semen was found. However, in the present case, the vaginal smear shows the presence of semen. Moreover, in the present case, the accused had knife and he had threatened the prosecutrix that he would kill her minor daughter, if she raises shout. Hence, the prosecutrix could not put up any resistance. Hence, her clothes would not be torn nor is there any likelihood of finding any injuries on the body of Ruksana. In the case relied upon, the accused had not threatened the prosecutrix, nor he was holding any deadly weapon in his hand, with which he threatened the prosecutrix. It was in the peculiar facts of that case that the observations came to be made and the accused came to be acquitted. The present case does not stand on a similar footing, hence, the decision would not apply to the present case. 12. It is true that no injuries were found on the prosecutrix, however, one has to bear in mind that [-11-] the prosecutrix was a married lady. She was a mother of a minor girl and the accused had threatened her, in which case, it was not expected that the prosecutrix would put up any resistance. In such a case, it would not be expected that there would be any injuries on the body of the prosecutrix. 13. Looking to the evidence on record, I am of the opinion that the learned Sessions Judge has rightly convicted and sentenced the appellant. Hence, no case is made out for interference. 14. In the result, the appeal is dismissed. The conviction and sentence recorded by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.420 of 2001 by judgment and order dated 30th October 2003, is confirmed. The appellant is in jail. He shall serve out the sentence. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]