1 Cri Appeal No. 211 of 1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 211 OF 1999 1. Pandit s/o Hari Rathod, Aged 26 years, Occupation Service, Resident of Jawahar Colony, Aurangabad 2. Babasaheb s/o Hari Rathod, Aged 28 years, Occupation Service, Resident of as above Appellants V E R S U S The State of Maharashtra Respondent Mr. S. B. Talekar, Advocate for the appellants Mr. S.N. Kendre, APP for the respondent / State CORAM : A.V. NIRGUDE, J. DATED : 22nd December, 2010 ORAL JUDGMENT : 1. This appeal is filed against the Judgment and order dated 4th May, 1999, passed by the learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 150 of 1996, convicting the appellants under Sections 342, 363, 354 read with Section 34 of the Indian Penal Code. 2. The learned Judge of the trial Court sentenced the appellants to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- with a default clause for the offence punishable under Section 363 of the Indian Penal Code. He sentenced the appellants to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- for the offence punishable under Section 354 of the Indian Penal Code and for the offence punishable under Section 342 of the Indian Penal Code he sentenced the appellants to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- with a default 2 Cri Appeal No. 211 of 1999 clause. 3. The prosecution case is that on 3rd May, 1993, the appellants and one of their friends kidnapped the victim-girl, who was then nine years old, took her to a secluded place and then outraged her modesty by putting fingers in her vagina. The unknown friend of the appellants was not found and was not prosecuted. 4. The prosecution case depends on depositions of six prosecution witnesses. The prosecution witness No. 1 is the victim. Her deposition was recorded in the year 1999 when she was 14 years old. She said that the incident taken place in 1993. She said, when the incident taken place, she had passed 3rd standard. She said, on that day, her father was gone out of station for work. She said, at about 11.00 a.m., her mother asked her to bring certain articles of grocery from a nearby kirana shop. She said, she went and brought the articles and came home. She said, when she came home, her mother told her to exchange one article for the other and asked her to go back to the grocery shop. She said, she once again left the house and came to Mondha area, but, she said, before she could reach the grocery shop, the appellants and one unknown person came to her. She said, the appellant No. 1 pressed her mouth and forced her to seat on his motorcycle. She said, the appellant No. 1 was riding the motorcycle while she was made to seat in between the two appellants. She said, she was then taken near Anjali talkies. She said, she was then taken inside the compound of the talkies. She said, the appellant No. 2 offered her ice-cream, but, she threw it away. She said, thereafter, the appellant No. 1 caught her hand and the appellant No. 2 caught her legs and they forced her to sleep on an Ota. She said, the appellant No. 2 then removed her underwear, while the appellant No. 1 put his fingers in her vagina. She said, thereafter, she started crying. She said, the appellant No. 1 then told her not to tell this to anyone. She said, when the appellants saw her 3 Cri Appeal No. 211 of 1999 crying, they left her and went away. She said, she then came up to the road still crying. She said, a Rikshawala asked her as to what had happened. She said, she told him as to what had happened and asked him the way to go to Mondha. She said, Rikshawala indicated her the road towards Mondha. She said, she walked on that road and went up to the Kirana shop. She said, the Kirana shop keeper asked her as to why she was crying. She said, the Kirana shop keeper exchanged the grocery articles as per her request and then send her with his servant. She said, she then started walking back to her house, but, on the way, she met her mother. She said, her mother questioned her as to why she took so much time. She said, she narrated the entire incident to her mother. She said, she knew the appellants because they were her neighbours when she and her family members stayed at Sanjaynagar. She said that they left their residence at Sanjaynagar and came to reside at a new place. She said, at the time of incident, the appellant No. 2 was serving in police department. She said, on the next day of the incident, her father arrived, when he was told about the incident. She said, her father then went to the police station for lodging a complaint. She said, she and her mother did not go to police station because they were scared. She said, on the next day, the police came and recorded her statement. A statement that was shown to her was of 5th May, 1993 and it is treated as ‘First Information Report’ and was marked as Exhibit – 10. 5. The prosecution witness No.2 – Vijaya is the mother of prosecution witness No. 1, the victim. She said that the incident took place on 3rd May, 1993. She narrated the same story as was mentioned above. She said, since her daughter did not return home, soon she went searching for her, and ultimately, found her walking back to house with the servant of Kirana shop. She said, on the next day, her husband came and she narrated the incident to him. She 4 Cri Appeal No. 211 of 1999 also explained as to why she did not go to police station on that day, because, she said, her husband was not at home. 6. The prosecution witness No. 5 is the father of the victim, who stated that earlier to the incident, he and his family members used to reside at Sanjaynagar locality, where the appellants were residing in neighbourhood. He said, both the appellants used to tease young girls. He said that he told the appellants to vacate the room, but since they did not do so, he said, he shifted his house elsewhere. He said, at the time of incident, the victim, his daughter was aged about 7-8 years and was studying in 3rd standard. He said, on the day of incident, he had gone out of station, and he said, he returned on 4th May, 1993 and learnt about the incident. He said, he first went to Jinsi Police Station, where he was told that he should go to Kranti Chowk Police Station. He said, he accordingly went there and made a complaint in writing. He said, the police even recorded his statement there. He said, the police did not give any receipt of the complaint. He also said that the police did not take any action on his complaint. He said, he again made application to police, but no action was taken. He said, in 1994, the appellants again forcibly took his daughter, and, at that time, he again told the police and asked them as to what had happened to his earlier complaint. He said, thereafter, he wrote letters to Prime Minister, Chief Minister, Police Commissioner etc. He said, he even threatened that if no action was taken, he would commit suicide. Thereafter, he said, the police started action against the appellants. 7. The prosecution witness No. 6 is one Police Sub-Inspector Sambhaji. He said, in May, 1993, he was attached to Kranti Chowk Police Station. He said, on 5 th May, 1993 , while he was present in the Police Station, the father of the girl had come to the Police Station with an application. He said, the application was presented to the Police Inspector of the Police Station, and thereafter, the same was 5 Cri Appeal No. 211 of 1999 handed over to Salim, Head Constable for inquiry. He said that on 7 th April, 1994, the complaint was registered. He said, it was he who investigated the case. 8. The prosecution witness No. 4 is Police Sub-Inspector Balaji. He said that on 7 th April, 1994 , he was on duty as Police Station Officer. He said that on that day Head Constable Salim handed him over a complaint. He said, he made his endorsement over it and registered Crime No. 146 of 1994 against the appellants. He said, thereafter, the prosecution witness No. 6 investigated into the case. He also stated that Head Constable Salim had recorded victim’s statement on 5th May, 1993 and same was not forwarded to the Police Station immediately. He said, he taken entry about it in Police Station Diary belatedly on 7th April, 1994, and so saying, he even filed the extract of station diary. (The station diary entry is at Exhibit – 16 and is of 7th April, 1994). He then stated that Police Head Constable Salim had caused delay in forwarding the statement and was subsequently suspended. 9. The prosecution witness No. 3 is the shop keeper, who supported the victim’s statement that she had come to buy grocery articles on that day and he also admitted that after some time the victim had come to him for exchange one of the articles, and, at that time, he said, she was crying and looked frightened. He said, when he questioned her, as to where she had gone, he said, the victim did not tell him the details. He said, he asked his servant to go with the victim as she was frightened. He also admitted that before this, the prosecution witness No.2, the mother of the victim had visited his shop in search of the victim. 10. The learned Advocate appearing for the appellants asserted that this case cannot succeed because of gross delay in registering of the offence. He pointed out that there is nothing on record to show that on 5th May, 1993, the victim’s statement was recorded by a 6 Cri Appeal No. 211 of 1999 policeman. Admittedly, the Head Constable Salim, who allegedly recorded her statement, has not been examined as prosecution witness. There is no explanation coming forward as to why the registration of the crime had taken 11 months. He suggested that the father of the victim, the prosecution witness No. 5 somehow put pressure on the police and got the offence registered. He pointed out further that the prosecution witnesses No. 5 and 2 had admitted in their cross-examination that while the appellants were staying in their neighbourhood, there had been a quarrel between then. He suggested that it is because of such enmity, a false complaint could have been lodged, and due to delay, the prosecution case should fail. I am not inclined to accept this submission mainly because the prosecution has explained the delay properly. The incident allegedly taken place on 3rd May, 1993. No information was given to the police station about it admittedly till 4th May, 1993. For one day, the prosecution witness No. 2, the mother of the victim admittedly did not take any step for lodging of the complaint. But, she explained as to why she could not go to police station and her explanation is quite plausible, when she said that she did not go to police station because her husband was not at home. This explanation is convincing and I am inclined to accept it. The learned Judge of the trial Court also accepted it as plausible. What happened thereafter is rather disturbing. 11. The prosecution witness No. 5, the father of the victim said that when he learnt about the incident on 4th May, 1993, he straight went to the police station and lodged his written complaint. This written complaint has not come on record, and Shri. Talekar, the learned Advocate appearing for the appellants rightly pointed out that such complaint should have been treated as ‘First Information Report’ of this case, and in absence of this, case of prosecution would weaken. Indeed, the police admittedly received a complaint of the prosecution 7 Cri Appeal No. 211 of 1999 witness No.5. The Investigation Officer, prosecution witness No. 6 admitted the fact that the father of the victim had come to police station on 4th May, 1993 and had given certain complaint in writing and same was shown to the Police Inspector of the Police Station. This document could not come before the Court, but the appellants cannot take advantage of this lapse. This lapse in the prosecution case is properly explained. The prosecution witness No. 4 admitted that after receiving the complaint of prosecution witness No. 5, one Head Constable Salim was directed to initiate inquiry and he admitted further that on 5th May, 1993, Head Constable Salim recorded the victim’s statement, which was exhibited as ‘First Information Report’ of this case. He further admitted that Head Constable Salim did not come to police station after he recorded the victim’s statement in May, 1993 till April, 1994, and in these 11 months what happened, is stated by the prosecution witness No. 5. He said that realizing that no action was taken despite lodging of the complaint etc, he made several complaints to several authorities, and ultimately, when he threatened the police that he would commit suicide if no action is taken, belatedly the action was initiated. Because of his pressure, the statement of the victim, which was recorded way back in May, 1993, saw the light of the day. On 7th April, 1994, this statement was produced before the police, and on the basis of the same, the offence was registered. In this background, one has to forget about the written complaint, which the victim’s father had lodged on 4th May, 1993. It is quite possible that due to the delay, this complaint could have been lost in the police station. No doubt, the prosecution has not explained as to what happened to the written complaint given by the father of the victim which was given in the hands of the Police Inspector. But, this lapse should fade into insignificance, because at least the statement of the victim, which was recorded immediately after the incident on 5th May, 1993, was produced before the police in original. Had this statement 8 Cri Appeal No. 211 of 1999 been not produced before the police on 7th April, 1994, certainly the case would have failed. 12. The learned Advocate appearing for the appellants then pointed out rightly that the case against the appellant No.2 is not strong enough to sustain the order of conviction. Indeed, the victim admitted that in her statement dated 5th May, 1993, she did not mention the name of the appellant No. 2 as one of her tormentors. She simply described him as the brother of the appellant No.1. Admittedly, no opportunity was given during investigation to the victim to identify the appellant No. 2 in a test identification parade. It was for the first time in 1999, the victim not only identified the appellant No.2 in the Court, but also mentioned his name as ‘Babasaheb’ as one of her tormentors. I think, this evidence as against the appellant No.2 is not sufficient to maintain conviction against him. I am, therefore, inclined to allow the appeal as far as the appellant No. 2 is concerned. 13. The learned Advocate appearing for the appellants then argued that besides the delay in lodging of the complaint etc, the entire incident appears to be improbable. He pointed out that if the girl was forcibly made to seat on a motorcycle, how come no one noticed this incident on the road. He then pointed out that if the girl was taken to a theater at broad day light, how come no one see the incident that had taken place in open, on an Ota, inside the compound of the theater. He pointed out that at that time of the day, the premises of the theater was admittedly a crowded place, and so, the incident, as described, could not have been taken place at all. I am not inclined to accept this submission. One must not forget that the victim was only 9 years old girl when she was made to seat on the motorcycle. There were three grown up men riding on the motorcycle. While she was riding the motorcycle, she was probably not aware that the appellants would harm her at the end. She probably did not suspect any foul play. But, it is clear from her deposition that she did not like the act of 9 Cri Appeal No. 211 of 1999 the appellants of taking her away on a motorcycle. No doubt, if she was aggrieved because of the action, she could have raised alarm and could have attracted an attention of others. But, looking to the age of the victim, she was probably so scared that she could not raise alarm. 14. The incident that took place in the compound of Anjali theater, was certainly an unexpected assault on the victim. She described the incident in detail. The scene of offence panchnama mentioned that the place where the molestation took place was behind the Cinema theater. If the Cinema show was going on, at that time, there was no possibility of the patrons coming in the rear side of the Cinema theater. So, it seems that this place was secluded at that time, and so, there was an opportunity for the molesters to commit the heinous crime. The victim specifically stated that it was the appellant No. 1 who inserted his finger in her vagina. There is practically no cross- examination on this point. 15. The learned Advocate appearing for the appellants then pointed out that besides the solitary statement of the victim, there is no corroborative evidence against the appellants, more particularly against the appellant No. 1 that he was he who took the victim away. Indeed, there is no corroborative evidence and even the opportunity of getting victim examined medically and clinically was lost due to the delay in registration of the crime. But, it seems, despite of inserting of finger in the vagina of the victim, she did not sustain any bleeding injury. It is not her case that she sustained any injury, and so, probably there was no need to get the victim examined medically and clinically. 16. The question still remains, as to why the victim should be believed. Shri Talekar pointed out that she was then only 9 years old and so vulnerable to tutoring. He said, since the appellants had the inimical relations with the victim’s parents, they could have tutored her 10 Cri Appeal No. 211 of 1999 to lodge a false complaint. I am not inclined to accept this possibility. The prosecution witnesses No. 5 and 2 stated that after they suffered at the hands of the appellants in Sanjaynagar area, they meekly changed their place of residence rather than continuing the quarrel with the appellants. This indicates that the appellants were stronger than the victim’s parents. It is common knowledge that once a person changes his locality in order to escape the harassment of his neighbour, he would tent to forget the problem rather than to be vengeful. Besides, the prosecution witness No. 5 was a Government servant and was apparently more interested in his duties. There is nothing on record to show that the prosecution witness No. 5 before lodging of the complaint had made any frivolous complaint against the appellants. In such background, making the complaint of this nature only because of spite, appears improbable. So, I am inclined to believe the victim when she implicated the appellant No. 1 in this case. 17. The learned Judge of the trial Court committed no mistake in believing the case of the prosecution in relation to appellant No. 1. The offences of wrongful confinement, kidnapping and outraging modesty is proved against the appellant No. 1. I confirm his conviction for having committed those offences. 18. At this stage, the learned Advocate appearing for the appellants requested to reduce the substantive sentences awarded to the appellant No.1. He pointed out that the incident took place way back in 1993. He said, the appellant No.1 has no previous criminal record nor his conduct after the incident is blameworthy. He said, he has been attending his duty and has unblemished record. I think, the mitigating circumstances narrated above, would allow me to reduce the substantive sentences awarded to the appellant No. 1. 11 Cri Appeal No. 211 of 1999 ORDER 1. The appeal is partly allowed. 2. The appellant No. 1 is convicted for the offence punishable under Section 342 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.500/-. In default of payment of fine amount, he should undergo further rigorous imprisonment for one month. 3. The appellant No. 1 is convicted for the offence punishable under Section 363 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for nine months and to pay fine of Rs.1,000/-. In default of payment of fine amount, he should undergo further rigorous imprisonment for two months. 4. The appellant No. 1 is convicted for the offence punishable under Section 354 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/-. In default of payment of fine amount, he should undergo further rigorous imprisonment for three months. 5. The substantive sentences shall run concurrently and the appellant No. 1 is also entitled to set off under Section 428 of the Code of Criminal Procedure. 6. Bail bonds of the appellants shall stand cancelled. 7. The appellant No. 1 is taken in custody and sent to jail. ( A.V. NIRGUDE, J. ) SRM/criapl/211/99/22/12/10/ok