1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.809 OF 2008 Rajendra Londhu Pawar .Appellant -versus State of Maharashtra .. Respondents Shri A. G. Toraskar, appointed by Legal Aid Committee, Shri Y.G.Yagnik, APP for the states CORAM: A. S. OKA, J DATED: 2nd March,2009 JUDGMENT 1. I have heard the submissions of the learned counsel appointed to espouse the cause of the appellant. I have also heard the submissions of the learned APP. 2. The appellant has been convicted for the offence punishable under section 376(2)(a) and 376(2)(f). He has been sentenced to undergo rigorous imprisonment for l0 years and to pay fine of Rs.5,000/-. In default of payment of 2 fine, he has been sentenced to undergo rigorous imprisonment for six months. The appellant has been also convicted for the offence punishable under section 377 of the Indian Penal Code. He has been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.l000/-. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for three months. The appellant has been also convicted for the offence punishable under section 342 of the Indian penal Code. He has been sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.500/-. In default he has been sentenced to undergo rigorous imprisonment for one month. 3. The case of the prosecution is that at the relevant time, appellant was serving as Police Constable and was attached to Police Head Quarter at Malegaon. The victim girl was staying with her parents and she used to affectionately call the appellant as “Mama”. The house of the parents of the victim girl was situated at a short distance from the house of the appellant. Unfortunate incident occurred on 2nd July,1999 when the age of 3 the victim girl was stated to be 9 years. On that day the victim girl's mother had proceeded to collect fire-wood. While she returned home in the afternoon, her younger son Vishnu came to her and informed that the footwear of the girl Kavita @ Kalpana was at the door steps of the appellant. He informed the mother that the door was closed and shouts of Kavita @ Kalpana cold be heard. 4. The victim girl's mother Bebabai proceeded to the house of the accused and broke open the door by using iron bar. After she opened the door she noticed that her daughter was lying on a bed and appellant was lying on her person and was sexually assaulting her. The mother Bebabai managed to rescue the victim girl and proceeded to police station for lodging the complaint. Thereafter the complaint was lodged and the appellant was arrested. 5. The learned counsel appearing for the appellant submitted that there is no authentic documentary evidence placed on record to show that the age of minor victim girl on the date of commission of offence was less than l2 years. His 4 submission is that there is no evidence on record to show that the ingredients of offence under clause (a) of sub section (2) of section 376 of the Indian Penal Code have been made out. His submission is that the testimony of the prosecutrix does not inspire confidence and in absence of any corroboration, her evidence could not have been believed and relied upon. 6. The learned APP supported the impugned judgment and order by pointing out that on the date of commission of offence, appellant was in service as a Constable. He submitted that the evidence of mother of the victim girl and the entry in the school register clearly prove that on the date of commission of offence, the age of the victim girl was less than l2 years. He submitted that no interference was called for. 7. I have given careful consideration to the submissions. I have also perused the notes of evidence and other material on record. It must be stated here that the offence has been committed on 2nd July, 1999. The perusal of the impugned judgment and order shows that the appellant was not enlarged on bail during the pendency of 5 trial. Even this Court has not enlarged the appellant on bail. The period of l0 years of sentence (without any remission) would be completed on 2nd July,2009. The appellant has undergone almost entire period of sentence. 8. It will be necessary to refer to the evidence of the victim girl. Her evidence was recorded on 3rd July,2007. In the deposition, her age is disclosed to be l5 years. The relevant part of her examination in chief reads thus : “On the day of incident my mother was out of house for collecting fuel wood. Incident occurred before 8 years at 2.30 pm. That time myself ad my neighbourer Sanju-Mami had been to answer the call of nature in the rear portion of adjoining locality. While returning to home, accused Rajendra to whom I used to address, MAMA gave me call. I went to the side of accused and Sanju Mami went to her home. That time acused was inside his own house. Accused told me to provide him bread and vegetable (BHAJI BHAKARI)from his kitchen room. When I went inside his kitchen he closed his outside door. He made me to sleep on his cot. Then accused removed his clothes, pant and so also removed my under garments including knicker. He made me to 6 sleep below him and was sexually assaulting me. I raised shouts and accused has pressed my mouth. He was sexually assaulting me from my front side and from my backside also. He was assaulting my person. At that time my mother and grand mother on entering the house rescued me. My grant mother beat accused by stick. Blood was oozing from my vagina. I narrated the incident to my mother. My mother also had seen the fact of oozing blood from my vagina. Blood was oozing from my vagina on account of sexual assault on me by accused”. 9. In the cross examination a suggestion was given to the victim girl that the appellant did not sexually assault her. The correctness of the said suggestion has been denied by the victim girl. In the cross examination the victim girl stated that the appellant happened to be her neighbour and on that day the wife of the appellant had gone out and her children were outside the house. The perusal of the cross examination shows that there is hardly any serious challenge to the version of the prosecutrix and the main challenge seems to be on the issue of age of the victim girl. She admitted 7 that she along with her brother Vishnu were in the same Standard in the school. She admitted that her brother Vishnu was younger to her. She denied the correctness of the suggestion that the present age of Vishnu was l6 years. In the cross examination she admitted that she was married subsequently. However, she denied the correctness of the suggestion that her marriage was performed two years after the date of incident. She denied the suggestion that her age at the time of commission of offence was l7 years. 10. PW-1, Bebabai is the mother of the victim girl. In the examination in chief she stated that at the time of incident, age of her girl was 9 years and she stated that her younger daughter Rani and son Vishnu are younger to the victim girl. In paragraph 2 of her deposition, she stated thus:- “The incident took place before 8 years about 7.00 am or 8.00 am. I had gone out of house to collect fuel woods. I returned home after collecting woods at about .00 to 2.30 p.m. I kept the bundle of wood in Court yard. My son Vishnu approached and 8 told me that door of the house is closed and that footwear of Kavita is in the door steps. Kavita that time was inside the house. He also told noise of Kavita is being listened from inside the house. That time my mother Kunabai was with me and she was having stick. I took iron rod PAHAR. I broke inside latch by using iron rod. All this was carried out by me immediately. On entering house I noticed my daughter lying on the cot on her backside. She was naked. Accused Rajendra present in the Court was on the person of my daughter. Accused Rajendra was also naked at that time. He was sexually assaulting my daughter Kavita. I pushed accused and embrassed my daughter. My mother gave stick blows to accused. This incident took place at the house of accused. House of accused is adjoining my house passing one lane. I brought my daughter at my house. My daughter Kavita told me that accused pressing her mouth was sexually assaulting her. There was discharge of blood from the vagina of my daughter when I took her for Urinal. It was noticed by me. My daughter Kavita told me that she is getting pains inside her private part. I narrated the incident to my husband. Then myself and my husband went to police station for lodging the report. Police recorded report as per 9 my narration and obtained my thumb impression thereon.” 11. She further deposed that at the time of taking admission to the school, age of the victim girl was five years. She stated that in the school record, the name of the victim Kavita has been shown as Kalpana. She produced a copy of school leaving certificate. 12. In the cross examination she stated that entry of the birth of Kavita was not made in the record of Gram Panchayat. She stated that approximate age of her daughter has been entered in the school record. She stated that at the time of admission of her daughter to the school, she did not disclose her birth date. She stated that birth date of her daughter is mentioned approximately. She stated that her own marriage was performed before 25 years. She stated that the victim girl was married and she married about three years back and was having a son aged 2 years. She stated that at the time of her marriage, Kavita had attained majority. About the main incident, apart from two suggestions given 10 to the PW-1 the correctness of which has been denied by her, there is no material brought on record. 13. Apart from the fact that the report of the Chemical Analyser at Exhibit 27 supports the case of the prosecution, on plain reading of the version of the victim girl, it is very difficult to disbelieve her version. It must be remembered here that the appellant was serving as a Constable. The complaint was lodged immediately after the incident. The version of the prosecutrix before the Court appears to be consistent. There are no omissions or contradictions brought on record in her deposition. PW-1, Bebabai entered the house of the appellant accused by breaking open the door. She stated that she had seen the appellant sexually assaulting her minor girl. The evidence of the victim girl certainly inspires confidence. In view of settled position of law, corroboration of testimony of the prosecutrix is not required. However, in the present case her version is fully corroborated by her mother's evidence as well as by the report of Chemical Analyser. Therefore, 11 the commission of the offence of rape has been established. 14. Therefore, the entire controversy revolves around the date of birth of the prosecutrix. On this aspect it will be necessary to refer to the evidence of the only defence witness Mr.Ashok Kashinath Patil who at the relevant time was the Head Master of the concerned School at Malegaon. He produced in evidence the school record relating to date of birth of the victim girl and her younger brother Vishnu. According to him the date of birth of victim girl was recorded in the school register as 1st June, l990 and date of birth of her younger brother Vishnu is lst January,1991. In the cross examination he stated that the entries of date of birth of the students are made as per the version of the parents disclosed at the time of admission. He stated that entries of the birth dates are made on the basis of extract of birth supplied by the parents. However, he admitted that the entry of the date of birth of Kalpana was made as per the information provided by her parents. 15. PW-1, the mother of the victim girl stated 12 that she had disclosed the approximate date of birth of the victim girl while securing admission to the school. She admitted that her son Vishnu was younger to the victim girl. As pointed out earlier, in the school register, the birth date of the victim girl is entered as lst June, l990 and the date of birth of her younger brother Vishnu has been mentioned as lst January, 1991. It is obvious that one of the two dates is incorrect. Admittedly entries in the school register of the dates of birth are not made in this case on the basis of birth extract. Therefore, the evidence in the form of entries in the register maintained by school has to be discarded. 16. The learned APP has placed reliance on the opinion of the Medical Officer, who examined the victim girl. Perusal of the record as well as evidence of Doctor shows that the victim girl was not subjected to radiological examination for determination of her date of birth. Therefore, the version of PW-2, that the age of the victim girl was 9 to l0 years is nothing but his opinion based only on clinical examination of the victim. 13 17. Therefore, in the present case the evidence of PW-1 Bebabai will have to be carefully considered. Her evidence was recorded in the Court on 20th June,2007. She stated that her marriage was performed 25 years back. Thus, approximate year of marriage of PW-1, is l982. She disclosed that the victim girl was the eldest issue and she was born two years after her marriage. Going by said version, victim girl must have been born in the year l984 and therefore, her age on the date of incident must be around l5 years. In the cross examination she stated that the victim girl got married three years prior to the date of recording of the deposition and she has a son aged about two years. She also stated that on the date of marriage, her daughter had attained the majority. So according to her version, marriage of the victim girl must have been solemnized in the year 2004 when her age was at least l8 years. Therefore taking the evidence of PW-1 as basis the victim girl must have been born during a period from l982 to l986. 18. Thus, on the date of commission of the offence, her age was more than l2 years but less 14 than l6 years. Thus, in the circumstances the learned Judge has committed an error by applying clause (f) of sub section (2) of section 376. 19. The appellant has been guilty for offence punishable under clause (a) of sub section 2 of section 376. In this behalf it will be necessary to refer to the evidence of the prosecution witnesses. The documents produced by the prosecution especially document at page Nos. 43 and 44 show that at the relevant time, appellant was a Police Constable attached to the Control Room at Malegaon. The said document shows that on the date of commission of the offence, appellant was absent from the duty. 20. PW-4 Shamrao Sattarsing Vavi was at the relevant time attached to Chhavani Police Station. He stated that on the date of commission of offence, appellant was serving as a Police Constable and was attached to Police Head Quarter. Going by his evidence and documents on record (Page Nos43 and 44), it cannot be said that clause (a) of sub section (2) of the Section 376 of the Indian Penal Code was applicable as it is not the case of the prosecution that sub 15 clauses (ii) to (iii) of clause (a) of sub section 2 of section 376 were applicable in the present case. 21. In the circumstances, the evidence against the appellant establishes offence punishable under sub section (l) of section 376 of the Indian Penal Code, for which minimum sentence is 7 years. The sentence may extend to imprisonment for life or for a term which may extend to l0 years unless woman raped is not his own wife and is not under l2 years of age. 22. In the present case the appellant has already undergone sentence for 9 years and 7 months. Considering the aforesaid finding, the appellant deserve to be set at liberty immediately if he is not required in connection with any other offence. 23. Hence I pass the following order. ORDER. i) The impugned judgment and order is modified. ii) The appellant is convicted for the 16 offence under section 376 (l) of the Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-. In default to payment of fine, he is sentenced to suffer rigorous imprisonment for six months. iii)The conviction and sentence of the appellant for the offence punishable under section 377and 342 of the Indian Penal Code is confirmed. iv) Rest of the impugned order is confirmed. v) The appellant shall be set at liberty if he is not required in connection with any other offence. (A.S.OKA, J)