1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO. 20 OF 2009 *** Kailash s/o Shankar Navhekar, age 26 yrs, Occ. Business, R/o Behind Maroti Mandir, Beed, Dist. Beed. ..APPELLANT V E R S U S The State of Maharashtra ..RESPONDENT === Shri S.G.Ladda, Advocate for the petitioner. Shri N.R. Shaikh, Ld. APP For Resp. State. CORAM : V.R. KINGAONKAR, J DATE : 12TH OCTOBER, 2009. ORAL JUDGMENT :- 1. Challenge in this appeal is to judgment rendered by the Additional Sessions Judge, Jalna in S.C.No.93/2007 whereby and where under the appellant has been convicted for offence punishable under section 376, 363 and 362 of Indian Penal Code and has been awarded sentence of 7 years rigorous imprisonment and fine of Rs.1,000/- in default to suffer rigorous imprisonment three (3) months on first count, rigorous imprisonment for three 2 years and fine of Rs.500/- in default rigorous imprisonment for one (1) month each on 2 nd and 3 rd count. 2. A missing report was filed by the father of minor prosecutrix (Akhila) on 22.03.2006 with Sadar Bazar Police Station. He reported that she had not returned home since about 05.00 p.m. on the same day. On next day, his wife lodged First information Report alleging that the minor prosecutrix, aged about 10 years was kidnapped by a man who had put on a white shirt and green coloured pant while she was returning home around 05.00 p.m. from Ful Bazar locality. After some search for the missing girl, she was located at a place near railway station. She was lying in unconscious condition. Her brother shifted her to their residential house. Her mother noticed that there were blood stains on her salvar. Her private part also was stained with blood. So, her mother suspected that the minor prosecutrix was subjected to forcible sexual assault. She lodged the FIR at Sadar Bazar Police Station. An offence of kidnapping and rape was registered against unknown culprit. Initially, there was no clue available and hence ‘A’ summary report was submitted to the Court. 3. The appellant was arrested in connection with the Crime No.I-110/2006 registered with City Police Station, Beed for similar kind of offence. He allegedly gave some statement which indicated his involvement 3 in the crime pertaining to kidnapping and rape of the minor prosecutrix (p.w.Akhila). On basis of fax message received from the Superintendent of Police, Beed the P.S.O. of Sadar Bazar police station reopened the investigation. The appellant was brought to Sadar Bazar police station on the basis of production warrant. He was clinically examined. He was identified by the prosecutrix as the same person who had allured her in the relevant noon to go with him and had taken her to the secluded place where she was ravished. An identification parade was also arranged. He was allegedly identified by the prosecutrix and her younger sister who were returned on way to home, home together, before she was taken away. On basis of material gathered during the course of investigation, the appellant was charge sheeted for the offence punishable under section 362, 363 and 376 of the Indian Penal Code. 4. A charge was framed against him vide Exh.4. He pleaded not guilty to the charge. His defence was of total denial. According to him, he had not visited township of Jalna on the day of incident. He stated that due to his arrest in similar crime, registered with police station at Beed, he was brought to Jalna and the prosecutrix was asked whether he is the same culprit. In fact, she could not identify him as same culprit yet he came to be falsely framed in the criminal case. 5. At the trial, the prosecution examined thirteen (13) witnesses in 4 support of its case. The prosecution also adduced some documentary evidence including the medical certificates pertaining to clinical examination of the prosecutrix after she was found in the relevant evening. The Learned Sessions Judge came to the conclusion that the prosecutrix was way laid by the appellant in the relevant noon while she was coming home from Ful Bazar locality. The Ld. Sessions Judge held that the prosecutrix was subjected to sexual intercourse by the appellant in the relevant evening at the secluded place in proximity of railway station area. The Ld. Additional Sessions Judge held that the identification made by the prosecutrix, her sister and one independent witness, i.e fruit juice vendor, in whose juice center, the appellant had taken the prosecutrix in that evening, provided for sufficient material to infer his complicity. The Ld. Sessions Judge gave finding, therefore, to the effect that the appellant intentionally kidnapped the prosecutrix by taking her away from lawful guardianship of her parents on 22.03.2006, wrongfully confined her and committed sexual intercourse with her. He was accordingly found guilty for the said offence and came to be sentenced as described herein above. 6. Heard learned counsel and APP. 7. Before I proceed to embark upon scrutiny of the prosecution evidence, it may be stated that the prosecution story about taking away of 5 the minor prosecutrix in the relevant noon is not the subject matter of controversy. The real controversy centers around identity of the culprit/rapist. The appellant adopted plea of alibi. The appellant did not challenge the version of the prosecutrix regarding the incident of her taking away a by man from midst of the road while she was returning home along with her younger sister. There is also no challenge to the prosecution story regarding the incident of sexual intercourse committed by the culprit with the minor prosecutrix. The fact that she was aged about 10-12 years, when the incident occurred is beyond pale of controversy. The age of the prosecutrix was determined by following ossification test. 8. There is also no dispute about the fact that the prosecutrix (p.w. Asima @ Akhila) was deputed by her mother to purchase confectionery required for business in her small shop. The testimony of p.w.1 Tabasum, who is younger sister of the prosecutrix, purports to show that both of them had gone to fetch confectionery items from a shop situated in Ful Bazar locality. They had purchased confectionery items and were returning home at the relevant time. Their house is situated in Mangalwar Bazar locality. Her testimony reveals that when they had reached near corner of Nalgalli area, a stranger male person came from behind. He told the prosecutrix that their father had given him Rs.1,000/- and had called her. He paid Rs.5/- to p.w. Tabasum and told her 6 to go home. After she left for the home, the prosecutrix accompanied that stranger man. Though the family members awaited for return of the prosecutrix, yet she did not return home. She narrated that the stranger was putting on a white shirt and dark chocolate-black coloured pant on his person. An attempt was made during cross examination of Tabasum to show that she is not the real sister of the prosecutrix. However, that is not the issue involved in the present case. 9. It is pertinent to notice that p.w. Tabasum identified the appellant as same culprit who had taken away the prosecutrix with him. Of course, it is the identification made in the “Court”. Her version reveals that, she had not seen the appellant any time before the day of incident. She admitted that, the appellant was shown to her at the police station before the identification was made in the Tahsil Office during the course of the proceedings of the identification parade. She admits that the police instructed her to identify the appellant in the Tahsil office. These admissions go to show that the identification parade (TIP) was a stage managed farce. 10. The version of p.w.2 Salimabee corroborates the First Information Report (Exh.11). She had no business to give false report to the police about missing of the prosecutrix, since the relevant evening on 22.03.2006. She also admitted that, the prosecutrix P.W. Tabasum and others were shown the 7 appellant after his arrest while he was in the police station. She admitted that police had instructed her to take the prosecutrix and P.W. Tabasum to the Tahasil Office, Jalna for identification of the appellant. Thus, the appellant was shown to the prosecutrix P.W. Tabassum and their relatives a day prior to the holding of the T.I.P. The version of P.W.4 Ismail lends corroboration to the missing report given by him at the police station in the relevant evening. He deposed that on next day, the prosecutrix was taken to the police station by his wife because there were blood stains on her clothes. His version reveals that prosecutrix Akhila was the studying in 5 th standard. He gave her age as 9 years. He was unable to locate her birth date. His evidence is not of much significance. 11. The age of the prosecutrix is duly proved by virtue of the medical report (Exh.30). The version of p.w.8 Dr. Kulkarni purports to show that he examined the X-ray films pertaining to x-ray examination of the prosecutrix. According to him, she was aged about 10-12 years. Nothing of much significance could be gathered from his cross examination. The version of P.W. 10 Mrs. Rohra, who is head Mistress of M.G. Nathani Sindhi Hindi School at Jalna purports to show that prosecutrix was studying in the said school. Her birth date as per the school record is 18.09.1993. She was given admission in the 5 th standard of said school. The head mistress could not locate who had 8 given information regarding birth date of the prosecutrix while admitting her in the school at the entry point i.e in the first standard. The parents of the prosecutrix immediately informed the police that she was aged about 10 years at the relevant time. Considering the consistent evidence about age of the prosecutrix, it is well proved that she was a minor aged about 12 years when the incident occurred. Coming to the version of the prosecutrix namely ( P.W. 6 Asima @ Akhila), it is explicit that while she and her younger sister were returning home, around 05.00 p.m, one person intersected her in the proximity of Nalgalli. Her version reveals that said person told her that her father had given her Rs.1,000/- and had called her. She identified the appellant as the same person who had intersected her. She narrated that the appellant gave Rs.5/- to P.W. Tabasum and sent her home. Her version reveals that the appellant took her to Lassi Center, situated in front of a temple. He took her near a over bridge of railway line in the proximity of railway station area. She narrated as to how the appellant directed to remove her clothes and when she did not so, he asserted her. She further narrated that the appellant pushed his penis into her vagina and thereafter she became unconscious Her testimony reveals that she and P.W. Tabasum were called at police station after some days of the incident for the purpose of identification of the appellant. She identified the appellant in the Court. 9 12. True, the proecutrix (p.w. Akhila @ Asima) made some exaggerations during her cross examination. She narrated that she had shouted for the help on the way. She also narrated that the appellant was holding a pen knife in his hand. She further stated that no one from the passers by gave attention to her shouts. She also admitted that there was crowd of people and the traffic was going on near Nalgalli and in the area of the temple of Mambadevi and railway station. She admitted that she had not noted special marks of identification of the appellant. 13. One cannot be oblivious of the fact that the prosecutrix was hardly 12 years old at the relevant time. Obviously, she had not attained the age of discretion. Her understanding about the sexual intercourse was poor. She admitted that photograph of the applicant was published in the local news paper before holding of the T.I . P. She also admitted that she and her father had seen the photograph in the newspaper. Needless to say, the holding of the TIP is of no much probative value. 14. Coming to the version of P.W.9 Dr. Mira it can be gathered that the prosecutrix was examined on 23.03.2006 at about 09.45 a.m. The history narrated by the prosecutrix is that an unknown person had taken her to a Lassi Center where they drank lassi and there after he carried her towards a jungle area in Bharat Nagar locality. The prosecutrix narrated to the Medical Officer 10 that she could not know what happened to her thereafter. On clinical examination, p.w. Dr Mira noticed that clothes of the prosecutrix were stained with the blood. She noticed col tar stains on the soles of the prosecutrix. There was no external injuries found on her person or the private part. It was noticed that hymen was torn at 07.00 clock position with minimal bleeding. It was also noticed by p.w. Dr. Mira that there was sign of inflammation. There was a small laceration at vagina and tear at 06.00 clock position of about 1/4 th cms length. She arranged for X-ray examination of the prosecutrix. In the opinion of Dr. Mira the prosecutrix was subjected to intercourse though she was incapable for the same. The Medical Officer agreed that the bruises or minor injuries on person of victim of the rape can be seen up to 24 to 48 hours in case force is used against the victim and same is resisted by her. In the present case, however, such admission of P.W. Dr. Mira are not of much assistance to the defence. The prosecutrix was aged about 11-12 years and was allured by the appellant to go with him. She was not able to resist the sexual assault. As stated before, her clothes i.e Salvar and Khamis were found in torn condition. There is no question of her consent for the sexual intercourse. For, she was then obviously minor below a 16 years of age. 15. Mr. Ladda would submit that identity of the appellant as culprit is not established beyond reasonable doubt. He argued that identification 11 parade itself is farcical and therefore identification of the appellant by the prosecutrix in the Court proceedings is unbelievable. He pointed out that the identification parade was conducted on 14.10.2006, in the premises of Tahsil Office, Jalna, after a time gap of about 7 months and hence identity of the appellant could not be firmly made by the witnesses. Though, P.W.11 Sangita Varade, the then Naib Tahasildar corroborated the memorandum of test identification conducted by her yet it has no sanctity in view of the fact that the appellant was already shown to the prosecutrix and p.w. Tabassum before the T.I.P was conducted. The Chart (Exh.43) and panchnama Exh.44 are not of much significance in view of afore stated deficiency. It is true that P.W. Tabassum was tutored to identify the appellant. Therefore, her version about such identification is un acceptable. Moreover, she had seen the appellant only for a minute or two. She could not have noticed the profile of the appellant so as to memorize the same. Still, however, the identification of the appellant by the prosecutrix in the ‘Court’ cannot be lightly brushed aside because the prosecutrix was in the company of the culprit for a considerable period. They had gone to a juice cum lassi center where they had consumed lassi before going towards Bharat Nagar area. I mean to say she had sufficient opportunity to closely see the appellant during the relevant period of her going with him from Nalgalli area to secluded place in Bharat Nagar area. 12 She was a teen ager but due to sufficient opportunity to see the appellant from proximity, she could have recognized him even after a long delay. It is also true that she was called at the police station while the appellant was under arrest. However, her prior confirmation about his identity, before holding of the T.I.P by itself would not wipe out her evidence in this context. 16. This takes me to yet another important version of p.w. 12 Satish Jaiswal. He runs a fruit juice center near Mamadevi temple at Jalna. Since inception, the consistent story given by the prosecutrix was that she was taken to Lassi Center near a temple. The version of P.W. Satish purports to show that he was alone at the juice center in the relevant noon, when a girl and a male person visited the shop. According to him, the girl was aged about 10-11 years where as the man was aged about 20-21 years. The girl was putting on Kurta and Salvar and appeared to be from Muslim community. He served two glasses of Lassi to them. He identified the appellant as the same person who accompanied the minor girl. He deposed that both of them had left his juice center on a bicycle. It is true that he gave time of such incident as 03.30 p.m. The small variation appearing from his testimony is of no importance in as much as he was called upon to depose about the said incident after about couple of years. His version purports to show that he has developed habit of recognizing the customers even after 6-8 months of their visits. He also 13 admitted that the police had shown him the appellant and had given him information about his name. The identification of the appellant by P.W. Satish Jaiswal cannot be dislodged only because he had seen the appellant after about 7 months of the incident and was shown by the police. He is an independent witness. He has no business to speak lie. His version reveals that the appellant was having beard at the relevant time and therefore, he was under the impression that the appellant could be the member of Muslim community. There are two significant aspects. First, P.W. Satish Jaiswal was alone at the juice center when the two odd customers visited the same in the relevant noon. Secondly, he had developed uncanny skill of recognizing the customers even after some months of their visit. It is of common knowledge that some times shop keepers and professionals develop the skill of recognizing their customers/clients even after a long period of seeing them. That becomes necessary for the development of the business or professions in as much as it gives the customer/client a sense of self actualization. Having regard to these aspects, I deem it proper to hold that the Ld. Sessions Judge was right while accepting the testimony of P.W. Satish regarding identity of the appellant. 17. Once, it is found that the identification of the appellant as culprit is acceptable it goes without saying that the offence punishable under 14 section 363, 362 and 376 of the Indian Penal Code have been duly proved against him. For, the incident of taking away of the minor from lawful custody of the parents and sexual assault on her is not the subject matter of the controversy. The only controversy was raised in the respect of identity of the culprit under the circumstances. Hence, I do not find any merit in the instant appeal. The appeal is, therefore, dismissed. Impugned judgment of sentence and conviction is confirmed. ( V. R. KINGAONKAR , J. ) ..... aaa/20.09