1 CR.APEAL.566.2006.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 566 OF 2006 Shaukatali @ Kanu Abdul Sattar ...Appellant Vs. The State of Maharashtra ...Respondent Ms. Suvarna Avhad Vast appointed as amicus curiae for Appellant Mrs. A.A. Mane, A.P.P for the State CORAM: SMT. ROSHAN DALVI, J. DATED : 28TH APRIL 2011 P.C. 1. The Appellant has been convicted for the offence of rape punishable under Section 376 of the I.P.C and sentenced to suffer R.I for 10 years and to pay a fine of Rs.5000/- i/d to suffer further R.I for 9 months. The fine, if paid, is directed to be paid to the victim. The accused has also been convicted of the offence of criminal intimidation punishable under Section 506 of the I.P.C and sentenced to suffer R.I for 5 years. Both sentences are directed to run concurrently. 2. The accused is the maternal uncle of the victim. 3. The accused has been charged with having committed rape upon her during the period February 2003 to 24 th April 2003. The accused has denied the charge. The accused has also been charged with criminal 2 CR.APEAL.566.2006.sxw intimidation which has been denied. 4. The acts of the accused resulted in pregnancy of the victim. At the time she was pregnant her DNA test was carried out. This revealed the paternity of the child. The accused was seen to be its father. The pregnancy has been aborted. The criminal prosecution commenced. The aforesaid charges were framed, to which the accused pleaded not guilty. The prosecution has examined 4 witnesses. 5. The victim has been examined as P.W.1. She has been found to be mentally as well as physically handicapped. She is described as a dwarf. She is shown not to be able to stand and walk independently. She is observed to suffer from mental dumbness. Certain preliminary questions were put to her upon which her examination on affirmation was carried out. 6. She has deposed that she lived with her maternal aunt. She knows the accused who is from her village. She treated him as a maternal uncle. He has two children. The maternal aunt with whom she lived as also the daughter of the accused who lived with them work as a domestic maids. Hence when they go out to work she was alone in the house. The accused used to come to her house. He used to tickle her, make her lie down on a chatai. He used to kiss her, remove her clothes, press her breasts and commit forcible sexual intercourse. He used to threaten her not to disclose it to anybody. 7. Whilst giving this evidence the witness/victim burst out and wept and called the accused “harami”. She deposed that she was handicapped 3 CR.APEAL.566.2006.sxw and the accused took advantage of her disability. 8. She further deposed that she found herself pregnant. Then the complaint was lodged. 9. Her cross examination has been on extraneous aspects of the marriage of her parents as well as her marriage and divorce and her physical handicap. She has displayed the extent of the handicap in the cross examination. She walked inside the house and did not require help each time. She could go to toilet and bathroom, cook and eat food alone. Her cross examination has revealed how she was intimidated also. Upon the suggestion of the Advocate of the accused she stated that he used to give her Rs.20/- or Rs.30/- each time and force her. He also slapped her. She shouted. He placed cloth in her mouth. She disclosed his acts only when she became pregnant and started vomiting. 10.Her cross examination has not made any dent in her case of forcible sexual intercourse. In fact it has shown how she was enticed by the accused by offer of petty cash and how she was intimidated whilst trying to shout. 11.P.W.3 is the Doctor, who examined the prosecutrix in Nagpada Hospital. The case history stated by the Doctor shows sexual intercourse upon payment of Rs.20/- each time for 3 months willingly with the accused. The Doctor has deposed that her nutrition was poor. The Doctor obtained the opinion of psychiatrist Dr. Katara who also served in the same hospital about her mental status. He has produced the opinion of the said Psychiatrist Doctor and identified the signature of the Doctor 4 CR.APEAL.566.2006.sxw who was known to him. The P.W.3 found her medically handicapped (subnormal) upon examination. The report shows no evidence of major psychosis, but muscular weakness of non-treatable variety. The Doctor deposed that she walked with a forward bend. The Doctor also deposed about the lack of injuries in her private parts. The reports of her pregnancy and her ossification test were taken. 12.Advocate Ms. Suvarna Avhad appointed as amicus curiae for Appellant/accused pointed out that the evidence of the Doctor P.W.3 as well as the report prepared by him which is marked Exhibit-15 shows voluntary intercourse. She, therefore, contended that case for rape is not made out. 13.It may at once be pointed out that under Section 375 of the I.P.C there are 6 specified description of situations in which the offence of rape can be committed. Rape upon a handicapped person unable to understand its nature and consequences for the purpose of giving her consent or willingness falls within the 5 th description thus: “375. Rape – A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First – Against her will. Secondly – Without her consent. Thirdly – With her consent, when her consent has been obtained by putting her on any person in whom she is interested in fear of death or of hurt. Fourthly – With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the 5 CR.APEAL.566.2006.sxw administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly – With or without her consent, when she is under sixteen years of age”. 14.The prosecutrix is not only claimed to be handicapped; she is medically examined and found to be handicapped. She has also been seen by the Judge himself to be mentally and physically handicapped. Her ossification test shows that she had a built which was subnormal. The questions put by the learned Judge show that she was dwarf , mentally dumb and appeared such as to require questions to be put to her to determine her comprehensiveness of the evidence required to be led by her. Her physical disability was seen by the Court as much as by the Doctor. Her mental dumbness was apparent. There are degrees of mental dumbness. In her case it is shown that she was capable of walking inside the house, requiring help at times and cooking and eating. That much does not make her fully able in soundness of mind. The ossification report shows that in 2003 she was 17 to 18 years old. It was the time when the incident took place. The psychiatrist, Dr. Katara’s report identified by P.W.3 shows that she was mentally handicapped (subnormal). A handicap may not be very intense; there was lack of major psychosis. The report also shows that she never went to school upon the history of atrophy of her muscles, which became weak so that she could not stand or walk alone. She did only domestic chores at home. 15.Upon such a case her capability of giving consent required for sexual intercourse under 5th clause of Section 375 would have to be appreciated. Since she is shown to be a person not full of sound mind, 6 CR.APEAL.566.2006.sxw the consent given by her must be taken to be for reason of unsoundness of mind when she would be unable to understand the nature and consequences of that to which she gave consent. Her evidence shows various acts of the accused which are enumerated above. The sexual intercourse is specifically deposed to be forcible. She explained that term in Hindi thus “mujhe beijjat karta tha”. Her mental position and the acts of the accused show the complete lack of understanding to the act of sexual intercourse which was forcible. The consent of a person of below average mental as well as physical capacity cannot be accepted to have been given as free, informed consent. Hence one word “willingly” in the Doctor’s report which does not even relate to a medical condition cannot adversely effect the case of the prosecution. 16.Upon the prosecutrix having been found to be pregnant and taken to the hospital, DNA report of the foetus as well as the accused has been taken. The DNA report has been marked Exhibit-20 in evidence being a document produced under Section 293(4)(a)(c) of the Cr.P.C. The DNA test was done by the Assistant Chemical Analyser to the Government Forensic Laboratory, Mumbai. The DNA report Exhibit-20 is very clear. The interpretation and the conclusion in the report show that the accused is the putative father of the aborted foetus of the prosecutrix in which 15 different genetic systems analysed with the PCR matched. Similarly 15 genetic systems of the prosecutrix, the mother matched with the foetus. The conclusion is that both are biological parents of the aborted foetus. This report has been obtained upon the blood of the accused as well as prosecutrix sent in the normal course by the Senior Inspector of Police along with aborted foetus to the Forensic Laboratory for DNA analysis. 7 CR.APEAL.566.2006.sxw 17.The circumstances in which the prosecutrix lived coupled with her physical and mental disability and the relationship she had with the accused, which is not disputed, show the evidence after the pregnancy to be fully acceptable and liable. The victim under those circumstances would have no reason to speak the untruth. The very fact that the prosecutrix wept in Court and abused the accused further shows her disturbed mind at the acts of violence of the accused upon her. Unfortunately it is only when she got impregnated that the truth was disclosed. That has been medically and forensically confirmed. 18.The learned Judge has fully appreciated the evidence of the prosecutrix as well as the medical evidence correctly. The sentence imposed upon the accused is just and proper. 19.The argument on behalf of the accused that the acts of the accused would not constitute rape in view of the history stated by the Doctor P.W. 3 is of little use to the accused in view of the mental and physical subnormality resulting in unsound mind of the prosecutrix. 20.The evidence in the case is sufficient to convict the accused sentencing him for the period awarded to him in the impugned judgment. Even the fine awarded is most modest and is required to be paid by the accused as directed, failing which the accused would have to undergo the sentence in default awarded to him. 21.The Appeal is dismissed. (SMT. ROSHAN DALVI, J.)