mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.692 OF 2006 Abdul Rehman Mohd. Khan Appellant versus The State of Maharashtra Respondent CRIMINAL APPEAL NO.1176 OF 2003 1. Abdul Rehman Mohammed Khan 2. Khurshidabanoo @ Mala Abdul Rehman Khan Appellants versus The State of Maharashtra Respondent Mrs.B.P.Jakhadi, Advocate for the appellants. Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 28th January 2009 JUDGEMENT : 1. I have heard learned counsel who has been appointed to espouse the cause of the appellant-accused in these two appeals. I have also heard learned Additional Public Prosecutor (hereinafter referred to as "the APP") for the State. The appellants by the impugned order have been convicted. The first accused Abdul Rehman Mohammed Khan has been convicted for the offence punishable under section 376 of the Indian Penal Code and he has been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. The accused no.2 who is wife of the accused no.1 has been convicted for the offence punishable under section 376 read with 34 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.1,000/-. 2. With a view to appreciate the submissions made by the learned counsel appearing for the appellants, it will be necessary to refer to the case of the prosecution in brief. . Briefly stated, the case of the prosecution is that the appellant no.2 (accused no.2) was known to the prosecutrix. She had taken the prosecutrix to her house where appellant no.1 (accused no.1) committed the offence of rape on the prosecutrix. The allegation is that the second appellant-accused helped the first accused in commission of the offence. 3. It will be necessary to refer to the evidence of the prosecution witnesses and in particular the prosecutrix. In her evidence she disclosed that on the date of the incident her age was 16 years. According to her, at the relevant time, she was playing tricky games (Dombari Games) at the bus stop of Bandra (West) in Mumbai. She stated that she knew the second appellant as she was staying in the same locality. The prosecutrix stated that infact the appellant no.2 was her friend. On the date of the incident, at about 10.00 a.m., she was participating in the Dombari games. At that time the second appellant arrived on the spot and took the prosecutrix to her house which was situate at Santoshi Nagar, Juhu. At the relevant time the appellant no.2 was staying with the appellant no.1 with a small daughter. The prosecutrix thereafter proceeded to give her version of the offence as under:- ". When I went to her house alongwith her, her husband was present in the house. Accused no.2 gave me food. I told her that now I will go but accused no.2 requested me that I should wait for sometime and take rest for sometime in her house and she forced me to wait in her house. Then after taking meal accused no.2 slept and asked me to sleep therefore, I also slept near the small daughter of the accused. Then accused no.1 slept besides me without my consent. I shouted that time accused no.2 hold my hands and when I shouted accused no.1 closed my mouth. Door was closed by accused no.2 before that. Accused no.1 was wearing lungi at that time. AT that time I was wearing salwar, kurta and odhani. After removing my clothes, accused no.1 committed rape on me. Then after completing rape both the accused asked me to go away then I went to Bandra Busstop where I was crying. Then I went to my house. Next morning I started stomachache. Next morning again I went to Bandra Bus stop for playing dombari games. Then I went to the house of accused. I told accused no.2 due to act of her husband I am getting pains in my stomach. Therefore, she gave Rs.9/- to me and asked me to go to the house. Then I came back to the busstop and I lodged complaint in the P.Stn. My complaint was signed by me." 4. The second prosecution witness is Kamalabai Bajirao Jadhav, the mother of the prosecutrix. She stated that on the date of incident the prosecutrix left the house at 9.00 a.m.. As she did not return back, she along with her son proceeded to Bandra. AT the bus stop she was told that her daughter was taken to the Police Station for lodging the complaint. Thereafter, she visited the Police Station where her daughter disclosed the incident to her. The third prosecution witness is Tukaram Narsing Shinde. At the relevant time he was attached to Juhu Police Station as Police Sub Inspector. He recorded the First Information Report of the prosecutrix and he investigated into the offence. PW-4 Dr.Vijay Harishchandra Kelvekar is the medical officer. Apart from the evidence of the medical officer, there is documentary evidence in the form of chemical analysis report. The report of the chemical analyser at Exhibit-16 discloses that the blood group of the appellant no.1 was "AB". Another report indicates that the blood group of the prosecutrix was "B". The clothes on the person of the prosecutrix were also sent for chemical analysis. On the Salvar and Oodhani of the prosecutrix blood stains were found. The report of the chemical analyser shows that the blood was human blood but, however, the blood group could not be determined. The medical certificates of the examination of the prosecutrix as well as of the first appellant are placed on record. The medical officer deposed before the Court regarding the medical examination of the prosecutrix as well as first appellant. He opined on the basis of the x-ray of the wrists, elbow and knee taken for ossification test that the age of the prosecutrix was between 14 to 15 years. He also opined that there is evidence of sexual intercourse within 24 to 36 hours. 5. The learned counsel for the appellants submitted that the version of the prosecutrix suffers from inherent defects and it is not safe to rely upon the uncorroborated testimony of the prosecutrix. She invited my attention to the evidence of PW-2 who is the mother of the prosecutrix who admitted that her family was always in financial crisis and in need of money. She admitted that they were borrowing money from others and the prosecutrix was always bringing money by way of loan. She also invited my attention to the cross examination of the prosecutrix. She submitted that even the report of the chemical analyser does not support the case made out by the prosecution against the first appellant. She invited my attention to the fact that the second appellant who happens to be the wife of the first appellant has been convicted by applying section 34 of the Indian Penal Code. The learned counsel appearing for the appellants submitted that by no stretch of imagination a case of any common intention on the part of the second appellant can be alleged by the prosecution. She submitted that the second appellant being a woman could not have been roped in on the basis of Section 34 of the Indian Penal Code. She submitted that as section 34 of the Indian Penal Code is not applicable, in any event, the second appellant could not have been convicted. 6. The learned APP submitted that the conviction for the offence under section 376 can always be based on uncorroborated testimony of the prosecutrix. She submitted that there is no reason to discard the testimony of the prosecutrix. She pointed out that it is the second appellant who took the prosecutrix to the house of the appellants. She pointed out that the prosecutrix has deposed that it was the second appellant who closed the door enabling the first appellant to commit the offence. She therefore submitted that section 34 has been rightly applied. In the alternative, the learned APP submitted that the evidence on record shows that the second appellant has abated the offence and therefore, the second appellant is liable to be punished under section 109 of the Indian Penal Code. The learned APP has placed reliance on the decision of the Apex Court in the case of Ram Kumar and Nain Singh vs. State of Himachal Pradesh (1995 Supp [4]-SCC-67) and another decision in the case of Jayaram Vithoba and another vs. The State of Bombay (AIR-1956-SC-146). 7. I have carefully considered the submissions. The offence alleged is under section 376 of the Indian Penal Code. The law is very well settled. The conviction of an accused for the offence under section 376 of the Indian Penal Code can always be based on an uncorroborated testimony of the prosecutrix and only in a given case the Court may draw an assurance from the other evidence on record to the uncorroborated testimony of the prosecutrix. 8. The relevant part of the version of PW-1 is already reproduced in the earlier part of this judgement. The prosecutrix was stated to be sixteen years old at the time of commission of the offence. Close scrutiny of her deposition shows that she has narrated the incident precisely and in a logical manner. She has deposed that after the incident she went to Bandra Bus stop where she was crying. From the bus stop she proceeded to her house and next morning she had stomach pain. On the next day when she visited the house of the appellants she disclosed to the appellant no.2 that due to the acts of her husband she got pains in her stomach. The second appellant paid a sum of Rs.9/- to her. The prosecutrix came back to the bus stop and from there she proceeded to lodge a complaint with the Police Station. In the cross examination she stated that on the date of incident when she went back to her house she informed her mother that while playing the game she had fell down and therefore, she was in pain. The only material brought on the record in the cross examination is that after coming back to her house she did not disclose the incident to her mother and that she did not take her parents or other relatives to the Police Station. Looking to the position in which the prosecutrix was placed, her failure to inform her mother about the incident and her failure to take her mother or relatives to the Police Station is not at all a ground to discard her testimony. According to her version she had not disclosed the incident to her mother and obviously therefore, she could not have taken her mother or any other relative to the Police Station. In the cross examination the prosecutrix stated that she was since married and she was having children. It is highly improbable that a married woman whose age at the time of recording of evidence was 23 years will come before the Court and will give a fabricated version of commission of offence of rape against her person. If the examination in chief of the prosecutrix and cross examination is examined carefully, the version of the prosecutrix does inspire the confidence. In the cross examination of the mother of the prosecutrix it was suggested that even the prosecutrix was borrowing money considering the financial crisis faced by the family, however, not even a suggestion was given to the mother that the prosecutrix had borrowed the money from the second appellant. 9. The medical certificate on record discloses that the prosecutrix was medically examined by PW-4 on 14th June 1994 at about 2.30 a.m.. As stated earlier, the offence was committed between 12.30 to 13 hours on 12th June 1994. The medical certificate records that there was a tear in the hymen and the age of the tear was described as 24 to 36 hours. The medical certificate also records that during the examination the edges of the tears started bleeding and the same were torn. On the basis of the ossification test, the medical officer had opined that the age of the prosecutrix was 14-15 years. In the cross examination the medical officer stated that the injuries on the person of the prosecutrix appeared subject to the circumstances under which the offence was committed. He denied the correctness of the suggestion that tear of hymen shows that she was accustomed to the sexual intercourse. He opined that if there was sexual intercourse in case of 15 year old girl, there may be or may not be injuries on the penis of offender. In my view, the medical certificate as well as opinion of the medical officer is more than sufficient to draw assurance to the version of the prosecutrix and therefore, it is not possible to accept the contention that the offence punishable under section 376 has not been established against the first appellant without reasonable doubt. 10. That takes me to the case against the second appellant who is the wife of the first appellant. The charge framed against the second appellant reads thus :- "SECONDLY : That on abovesaid date, time and place you accused no.2 Mala @ Khurshida Begum Abdul Rehman Shaikh abetted your husband accused no.1 Abdul Rehman in commission of rape on minor girl Pinky age 16 yrs. by holding her hands and removing her clothes and thereby you have committed an offence punishable u/s 376 IPC r/w 34 of IPC and within my cognizance." The version of the prosecutrix before the Court reveals that it was the second appellant who brought the prosecutrix to the house of the appellants and after offering food to the prosecutrix, the second appellant requested her to stay in her house and take rest in her house. The prosecutrix stated that after taking the meal the second appellant asked her to sleep. She stated that she slept near the small daughter of the appellants. When she noticed that the first appellant was sleeping beside her without her consent, she shouted. At that time, the second appellant held her hands and closed her month. She closed the door of the house. This is the role ascribed to the second appellant by the prosecutrix. 11. As stated earlier, the second appellant has been convicted for the offence under section 34 of the Indian Penal Code. Section 34 reads thus :- "34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." In order to bring a case under section 34 of the Indian Penal Code, the prosecution has to prove that there was a common intention formed while committing the offence by the accused. Normally, the prosecution has to establish meeting of the the minds of accused persons before the overt acts of the accused. The burden lies on the prosecution to prove that the actual participation of more than one person in commission of a criminal act was done in furtherance of common intention. It is true that in a given case there need not be a prior concert and the common intention can be formed on the spur of the moment. In the present case, the offence alleged is under section 376 of the Indian Penal Code. In strict sense, section 34 does not create an offence but the same makes a person liable for the offence which is actually committed by another. Accepting the prosecution case as it is, it is very difficult to accept the existence of common intention on the part of the accused. It is very difficult to justify the conviction of the second appellant under section 34 of the Indian Penal Code. As stated earlier, the charge has been framed for the offence under section 34 of the IPC. 12. At this stage it must be noted that it was the second appellant who brought the prosecutrix to the house of the appellants. The second appellant made the prosecutrix to wait in the house and to sleep in the house. When the prosecutrix raised shouts when she found that the first appellant was sleeping beside her, the second appellant held her hands and closed the mouth of the prosecutrix. Thereafter the second appellant closed the door. Thus, the conduct of the second appellant facilitated the commission of offence under section 376 of the IPC by the first appellant. Thus, the evidence on record clearly establishes that the second appellant intentionally abetted the acts of the commission of the offence u/s 376 of the Indian Penal Code by the first appellant. At this stage it will be necessary to refer to sub section 2 of section 221 of the Code of Criminal Procedure, 1973 which read thus :- "221. Where it is doubtful what offence has been committed.- (1) ... ... (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it." An appeal is a continuation of proceedings and, therefore, the Appellate Court can always exercise its power under sub section 2 of section 221 of the said Code of 1973. It will be also necessary to refer to the power of the Appellate Court incorporated in section 386 of the said Code of 1973 and in particular in clause (b) thereof. Sub clause (ii) of clause (b) provides that in an appeal from conviction, the Appellate Court can alter the finding while maintaining the sentence. In the case of Emperor vs. Ismail Khadirsab ([1928]30-Bom.L.R.-330) a Division Bench of this Court had an occasion to consider the powers of the Appellate Court under clause (b) of sub section 1 of section 423 of the Criminal Procedure Code, 1898 which empowered the Court to alter the finding i.e. alter the conviction under a certain section to one under another section. The Division Bench referred to section 423 of the old Code which is pari materia with section 386 of the Code of 1973. It must be noted here that this Court was dealing with an appeal against acquittal where allegation was of commission of offence under section 302 of the Indian Penal Code. This Court held that it is open for the High Court to uphold the order of acquittal under section 302 and to convict the accused for a lesser offence with which he was not charged in the Court below. 13. The learned APP has relied upon the decision of the Apex Court in case of Jayaram Vithoba and another vs. The State of Bombay (AIR-1956-SC-146) where the Apex Court considered the powers of the Appellate Court under clause (b) of sub section 1 of section 423 of the Old Code of 1898. In paragraph 5 the Apex Court held that clause (b) deals with the case where the finding of the guilt under one section is altered to the finding of guilt under another section. In the case of B.Janakiraman vs. State ([2006]1-SCC {Cri]-442) the Apex Court had an occasion to consider sub-clause (4) of clause (ii) of section 386. In paragraph 33, the Apex Court held thus :- "33. The facts of this case are completely different. The Special Judge convicted and sentenced the appellant under Section 5(1)(e) read with Section 5(2) of the Act. In an appeal by the accused against the said conviction and sentence, the High Court neither modified the finding of guilt under Section 5(1)(e) nor the sentence under Section 5(2). All that it has done is while affirming the finding of guilt recorded by the Special Judge in regard to the disproportionate wealth, to recalculate the exact amount of disproportionate wealth with reference to the evidence which which which is permissible under section is permissible under section is permissible under section 386(b)(ii) 386(b)(ii) 386(b)(ii) which provides that the which provides that the which provides that the appellate appellate appellate court may, in an appeal from a court may, in an appeal from a court may, in an appeal from a conviction, conviction, conviction, alter the finding, alter the finding, alter the finding, maintaining maintaining maintaining the sentence. If an the sentence. If an the sentence. If an appellate appellate appellate court may alter the finding of court may alter the finding of court may alter the finding of guilt guilt guilt of the accused from one section to of the accused from one section to of the accused from one section to another, another, another, while maintaining the sentence, while maintaining the sentence, while maintaining the sentence, we we we see no reason why the extent of the see no reason why the extent of the see no reason why the extent of the offence offence offence should not be changed in an should not be changed in an should not be changed in an appeal appeal appeal against conviction. against conviction. against conviction. We are, therefore, of the view that the High Court did not exceed its jurisdiction in exercising the power of appeal under Section 386 CrPC." (Emphasis added) 14. Therefore, it is permissible under sub clause (ii) of clause (b) of section 386 of the Code of 1973 to alter the finding by maintaining the sentence. Thus, as far as appellant no.2 is concerned, the finding of guilt under section 34 of the Indian Penal Code will have to be altered into a finding of guilt under section 109 read with section 107 of the Indian Penal Code. The second appellant has been sentenced to undergo imprisonment for one year. There is no appeal for enhancement preferred by the State Government. The counsel for the appellants prayed for leniency insofar as second appellant is concerned. It must be stated that in the case of Ashok Nivruti Desai and others vs. State of Maharashtra (1995-Cri.L.J.-826) it is held by this Court that the Court should not make any distinction in quantum of sentence to be awarded to the principal offender and the sentence awarded to the offender who abetted commission of offence. In the present case, leniency has already been shown. Considering the active role played by the second appellant in ruining the life of a fifteen years old girl, it is not a case where sentence should be reduced. 15. Hence, I pass following order :- (a) The conviction and sentence of the first accused is confirmed; (b) The conviction of the second accused for the offence punishable under section 376 read with section 34 of the Indian Penal Code is not upheld and she is held guilty of commission of offence under sections 109 read with section 376 of the Indian Penal Code. However, the substantive sentence of the second accused is confirmed; (c) The appeal is disposed of accordingly. (A.S.OKA, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.692 OF 2006 Abdul Rehman Mohd. Khan Appellant versus The State of Maharashtra Respondent CRIMINAL APPEAL NO.1176 OF 2003 1. Abdul Rehman Mohammed Khan 2. Khurshidabanoo @ Mala Abdul Rehman Khan Appellants versus The State of Maharashtra Respondent Mrs.B.P.Jakhadi, Advocate for the appellants. Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 28th January 2009 JUDGEMENT : For the reasons separately recorded, following order is passed :- (a) The conviction and sentence of the first accused is confirmed; (b) The conviction of the second accused for the offence punishable under section 376 read with section 34 of the Indian Penal Code is not upheld and she is held guilty of commission of offence under sections 109 read with