1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1549 OF 2004 (Through Jail) Washimmul Hasan alias Munna Samimmul ) Hasan Sayyed, ) Conict No. C/4892. ).. Appellant Vs. The State of Maharashtra ).. Respondent Mr. Arfan Sait, Appointed Advocate, for the Appellant. Smt. A.T.Javani, APP, for the Respondent-State. CORAM: J.H.BHATIA, J. JUDGMENT RESERVED ON : 05.12.2009. JUDGMENT PRONOUNCED ON: 11.12.2009. JUDGMENT: 1. The appellant has challenged the Judgment and order dated 10.8.2004 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No.642 of 2002 whereby the accused was convicted for the offence punishable under Section 376 I.P.C. and was sentenced to undergo R.I. for ten years and to pay fine of Rs.2,000/- and in default to pay fine, to undergo further R.I. for two months. 2 2. The prosecution case, in brief, is that the accused-appellant was residing in a hut at Azmi Nagar, Behind Gausia Masjid, Malwani, Malad, Mumbai. In the same area, the prosecutrix Shehnaz, aged about 10 years, was also residing with her parents. On 11.2.2002 at about 8.30 p.m., the prosecutrix completed her dinner and went out of her house to play. After sometme, she returned home. At that time, her Shirt was blood stained. On enquiry by her mother, she told that while she was playing, the accused had caught hold of her and took her to a hut in front of his residence and latched the door from inside. She also disclosed that thereafter the accused had removed her Salwar as well as his own pant and had forcibly committed rape on her. After completing the intercourse, he had left her. She also disclosed that she was not allowed to shout and cry because her mouth was pressed by the accused at that time. The Salwar was left in the hut itself and she had come back to her house only with the Shirt. She was given another Salwar and Frock and thereafter she was taken to Malwani Police Station. There her mother P.W.1 Tahira Shaikh lodged a report. Statement of the victim girl was also recorded. She was sent to hospital and was examined. Crime No.28/2002 under Section 376 I.P.C. was registered against the accused. Police went first to the house of the victim and seized her blood stained Kurta from her house and thereafter a spot panchnama was prepared and the blood 3 stained Salwar, slippers and other articles were seized. The accused was arrested and referred for medical examination. Statements of witnesses were recorded. Muddemal property and blood samples etc. were referred to the C.A. After investigation, the Police filed the charge-sheet and in due course the case was committed to the Court of Sessions for trial. 3. The charge was framed against the accused under Section 376(2)(f). The accused pleaded not guilty. Though according to the prosecution, the victim girl was aged about 10 years, in view of the medical evidence, the trial Court came to conclusion that she might be aged more than 12 years and therefore, the accused was convicted for the offence punishable under Section 376(1) instead of Section 376(2)(f) and was sentenced accordingly. 4. Heard the learned Counsel for the parties. Perused the record and proceedings of the trial Court. On behalf of the prosecution, in all 11 witnesses were examined and several documents were placed on record. Besides P.W.2 Shehnaz, the victim and her mother P.W.1 Tahira, three neighbours viz. P.W.3 Shabanam, P.W.6 Mohammed Hussein and P.W.7 Kamaroo were examined about the incident. The evidence of Shehnaz shows that after taking her meals, she had left her house to play. At about 8.30 p.m., the accused caught her and took her in a 4 hut in front of his house and latched the door of the hut. Thereafter, he removed her Salwar and made her lie on a cot. She was not even allowed to cry as her mouth was pressed by him. The accused forcibly committed rape on her by penetrating his penis in her private part. Because of this, she felt pain and giddiness.. After the accused had completed the act, he left her and she came out of the hut without Salwar which was left in the hut. She had bleeding from her private part and shirt was stained with the blood. When she returned home, her mother P.W.1 Tahira asker her and she disclosed the whole incident. Immediately, her mother took her to the Police Station. P.W.1 Tahira deposed accordingly. Evidence of P.W.10 PSI Ramesh Borse shows that the girl was frightened and was not in a position to speak. Her clothes were stained with blood. Therefore, she was immediately referred to Bhagwati Hospital. Statement of P.W.1 Tahira was recorded at the hospital and it was treated as F.I.R. Which is Ex.29. 5. P.W.3 Shabanam, who is a neighbour, deposed that at about 8.30 p.m. Shehnaz was playing with the children and the accused had approached her and asked her to show the girl whom she had beaten. Saying so, he took her away. After some time, she saw Shehnaz covered with blood. At that time, she was not wearing Salwar and lower part of her frock was stained with blood & on the way she fell unconscious on the sand. Therefore, P.W.3 Shabanam immediately called 5 the mother of the victim and she took her. Thereafter, she came to know that the accused had committed rape on Shehnaz. P.W.6 Mohammed Hussein deposed that at about 8.30 p.m., he was going towards Gousia Masjid to offer Namaj. At that time, he saw the accused taking away the girl by holding her hand. After he returned from Namaj, he came to know that Shehnaz was raped by the accused. P.W.7 Kamaroo deposed that at about 8.30 p.m. he was sitting outside his house after taking his meals. At that time, he saw the accused Munna running away and some persons were chasing him. He asked the accused as to what had happened, but the accused said “nothing” and ran away. Within a short time thereafter, he saw Shehnaz, who was crying and her frock was ful with blood. Blood was also on her thighs. On enquiry by P.W.7 Kamaroo, she told him that Munna had sexual intercourse with her. After that Kamaroo and several other persons from the locality took her to the Police Station, wherefrom she was taken to hospital. 6. The evidence of P.W.9 Dr. Swapnil Langde reveals that on 11.2.2002, he was on duty as a Registrar at Bhagwati Hospital in Dr. Sharma’s unit. At about 11.05 p.m., Shehnaz was brought to the hospital by her mother and a Police Costable, with history of sexual assault on her. The hisory was given by her 6 mother. On examination, he found lacerations on both sides of labia. There was perineal tear extending in midline reaching upto external anal sphinter. Hymen appeared not to be intact. Minimal bleeding was present and mud was present in the tear area. Suturing of tear was done under general anaesthaesia under the guidance of Dr. Nadkarni. The clothes of the girl were collected, sealed and handed over to the police with a covering letter. The notes of examination were taken down on the case papers Ex.27. Taking into consideration her external features and the Ossification report, the age of the girl was about 12 to 14 years. Dr. Swapnil opined that child was subjected to intercourse leading to injuries. Even though the doctor was cross-examined, nothing could be brought on record due to which his evidence could be shattered. 7. The accused was arrested on 13.2.2002 and he was referred for medical examination. P.W.8 Dr. Baburao Damawale examined at 4.15 hrs. On examination and taking history from the accused, P.W.8 Dr. Baburao found that the accused had washed his genitals and therefore there was no matting of public hair or foreign hair and capable of sexual intercourse. Smegma was absent. 8. Evidence of P.W.4 Abdul Gani Khan, a panch witness and PSI Ramesh Borse goes to show that on 12.2.2003, at about 4.00 a.m. the panch 7 witnesses were called at the Bhagwati Hospital. The police collected grey coloured clothes of the victim girl from the Hospital in a brown paper and seized and sealed them under panchnama Ex.16. The clothes consisted of a Salwar and Kameez of the girl. The clothes were marked articles 3 and 4. Their evidence reveals that from Bhagwati Hospital, the police and panchas went to the house of the prosecutrix. A green coloured frock of the girl was lying there. That frock was stained with blood and according to the mother, the said frock was on the person of the girl at the time of the incident and it was changed before she was taken to the hospital. That frock was seized under a panchnama Ex.17. Thereafter, police and panchas went to the spot of the incident where white coloured Salwar and a pair of chappels were found. The cot was also lying there. The Salwar article 6 and chappels article 5 were seized, wrapped and sealed under panchnama Ex.18. 9. The evidence of P.W.5 Mohammed Hussein and P.W.11 Raghunath Dalvi shows that on 16.2.2002, the accused was interrogated at Malvani Police Station and he agreed to show the place where he had kept his clothes. That statement was recorded and thereafter the police and panchas along with the accused went towards Gausia Masjid. On instruction from the accused, the vehicle was stopped near Sheetal Compound. The accused took the police and panchas to his house. The accused took out his clothes kept in a gunny bag. The 8 clothes consisted of a while coloured shirt with stripes on which there were stains of blood. It was seized, wrapped and sealed. About all this, a seizure panchnama Ex.20 was prepared. The shirt was identified as Article 10. 10. The evidence of the Investigation Officer reveals that the muddemal property was sent to the C.A. The C.A. report Ex.42 reveals that Kurta and Salwar Exhibits 1 and 2 were stained with human blood of Group “B”. Kurta Ex.3 was stained with human blood and blood mixed with semen. They were of Group “A” & “B”. The above clothes were of the prosecutrix Shehnaz. The C.A. Report reveals that pant Ex.6 was stained with human blood, but its group could not be determined. On Jangya Ex.7 there was human blood of Group “A”. On full bush shirt Ex.8, human blood of Group “B” was found. Similarly, on the same shirt, human semen of Group “A” was detected. As per another C.A.’s report, the blood group of the accused was “A”. As per medical papers of Shehnaz, her blood Group was “B”. Taking into consideration these C.A. Reports, it will be clear that the blood on the clothes of the prosecutrix as well as the clothes of the accused was of “B” Group which must be of the prosecutrix. The semen of Group “A” was also found on the Kurta Ex.3 of the prosecutrix. It is material to note that according to her, her Salwar was removed in the hut while Kurta was still on her person when rape was committed on her and therefore her 9 Kurta Ex.3 was stained with blood as well as semen. 11. Taking into consideration the prosecution evidence in its totality, it would be clear that the prosecutrix herself has deposed that she was raped by the accused by taking her forcibly into the hut. She had informed her mother and some other witnesses immediately after the incident. She was seen with blood on her frock as well as on her legs immediately after the incident. The accused was seen running away immediately after the incident. The medical examination reveals that the prosecutrix was sexually assaulted and raped. She had suffered vaginal tear and perineal tear extending in midline reaching upto external anal sphinter. Such serious tear was possible because she was a girl aged 12 years and was not well grown while the accused was aged about 30 years. It appears that accused must have used severe force in committing rape on the girl. The presence of the blood of “B” Group and semen of “A” Group on the shirt of the prosecutrix as well on the pant and jangya of the accused provide strong corroboration to the testimony of the prosecutrix Taking into consideration all these facts and circumstances, I find that the prosecution has proved beyond reasonable doubt that the accused had committed rape on the prosecutrix. 12. The learned Counsel for the accused contended that the accused was 10 initially charged for the offence punishable under Section 376(2)(f) i.e. a rape on a girl below 12 years of age for which the minimum sentence of 10 years imprisonment is provided by law. However, in view of the medical evidence, the age of the girl appeared to be 12 to 14 years and therefore, the case did not fall under Section 376(2)(f) but only under Section 376(1) I.P.C. According to him, the minimum sentence prescribed under Section 376(1) is seven years’ imprisonment. According to the learned Counsel, when the offence under Section 376(2)(f) is not proved, the learned trial Court should not have awarded the sentence of imprisonment of ten years. Section 376(1) provides that whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and also fine. Under sub-section (2), provisions are made for punishment for rape aggravated circumstances and the punishment provided is imprisonment for a term which shall not be less than ten years, but which may be for life. Even though in the present case, the charge under Section 376(2)(f) was not established, charge of rape punishable under Section 376(1) is proved. Taking into consideration the fact that the girl was aged about 12 years and that she was badly ravished by a grown up person aged 30 years, I find that the trial Court was perfectly justified in awarding the sentence of rigorous imprisonment for ten 11 years. It is not a case where any kind of leniency could be shown to him. Therefore, I do not find any merit in the contentions of the learned Counsel. 13. In the facts and circumstances noted above, there is no merit in the Appeal. In the result, the Appeal stands dismissed. 14. Copy of this Judgment be sent to the Jail for information. (J.H.BHATIA,J.)