IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.290 of 2005. CRIMINAL APPEAL NO.290 of 2005. CRIMINAL APPEAL NO.290 of 2005. Mukesh Ganesh Kumar C/-5148 Occ Labour, R/o. Kataria Marg Zopadpatti, New Ganesh Nagar, Kataria Bridge, Matunga, Mumbai 400 019 ..Appellant versus The State of Maharashtra ..Respondent Mr.Abhaykumar Apte Advocate appointed for the Appellant Mrs.M.M.Deshmukh for the Respondent State CORAM : Smt.RANJANA DESAI & CORAM : Smt.RANJANA DESAI & CORAM : Smt.RANJANA DESAI & R.Y.GANOO, JJ. R.Y.GANOO, JJ. R.Y.GANOO, JJ. JUDGMENT RESERVED ON : 25th August, 2008. JUDGMENT RESERVED ON : 25th August, 2008. JUDGMENT RESERVED ON : 25th August, 2008. JUDGMENT PRONOUNCED ON : 9th Sept., 2008. JUDGMENT PRONOUNCED ON : 9th Sept., 2008. JUDGMENT PRONOUNCED ON : 9th Sept., 2008. JUDGMENT (Per R.Y.Ganoo, J.). JUDGMENT (Per R.Y.Ganoo, J.). JUDGMENT (Per R.Y.Ganoo, J.). 1. The Appellant faced trial in Sessions Case No.450 of 2000 before the learned Addl. Sessions Judge for Gr. Bombay (hereinafter referred to as the learned trial Judge). The appellant faced trial for charges under Section 324 of I.P.C. and under Section 376(2)(f) of the I.P.C. The learned trial Judge conducted the trial and by the -2- Judgement and Order dated 4.11.2004 she convicted the appellant under Section 324 of I.P.C. and sentenced appellant to suffer rigorous imprisonment for 3 years. She also convicted the appellant under Section 376(2)(f) of IPC and sentenced the appellant to suffer imprisonment for life and to pay fine of Rs.2000/- and further ordered that in default of payment of fine the appellant should suffer rigorous imprisonment for two months. The learned trial Judge directed that both the sentences should run concurrently. Being aggrieved by the aforesaid judgment, the appellant has filed this appeal. 2. Prosecution case in gist is as under: . Abedabi Bori - P.W.1 was staying at New Ganesh Nagar Zopadpatti, Kataria Marg, Near Kataraia Bridge, Matunga, Bombay 400 019 along with her married daughter Shabana. Said Shabana had a daughter by name Tanvir, who was aged about 7 years in the year 2000. This Tanvir, at the relevant time used to study in school. On or about 11.1.2000 Tanvir was playing out in the evening and when she was sought to be traced by Abedabi P.W.1, -3- she could not find Tanvir P.W.2 and while search was on for Tanvir, one person called as Shengwala Anna brought Tanvir by lifting her. He told Abedabi-P.W.1 that he had noted Tanvir P.W.2 lying near the gutter and had observed injuries on the face of Tanvir and had further observed that blood was oozing from her private part. Abedabi-P.W.1 asked Tanvir-P.W.2 as to what has happened and Tanvir-P.W.2 is said to have informed Abedabi P.W.1 as to how she was sexually assaulted by one person who is referred to as Uncle. According to prosecution the Appellant had taken Tanvir P.W.2 near gutter behind one building beind T.H.Kataria Marg Zopadpatti, Western Railway Quarters Building No.7, Matunga, Mumbai. By the time TanvirP.W.2 was narrating to Abedabi P.W.1 the incident, many people gathered at the spot where this Tanvir was informing Abedabi and at that time the appellant was present there. Tanvir P.W.2 is said to have identified him as the person who had lifted her and had indulged in the crime. Abedabi-P.W.1 is said to have slapped the Appellant and he was taken to the police station along with Tanvir. FIR came to be lodged by Abedabi P.W.1 on 11.1.2000 vide C.R.No.11/2000 under Section 376(2)(f) and 325 of -4- I.P.C. It is at Exhibit 9. Based on the allegations in the FIR, the appellant came to be arrested on the same day and arrest panchanama at Exhibit 26 was conducted wherein full pant, half pant, nicker and shirt being the clothes of the appellant were taken charge of. The semen stains were found on the shirt. The broken hair were found on the nicker. The investigation was carried out by the police then attached to Dharavi Police Station. Aftrer filing of the chargesheet in due course the case was committed to Sessions Court as the offence alleged against the appellant under Section 376(2)(f) I.P.C. was exclusively triable by the Court of Sessions. The learned trial Judge framed the charge at Exhibit 3 on 7.5.2004 under Section 376(2)(f) and 324 of I.P.C. Appellant pleaded not guilty and claimed to be tried. His defence was that of denial. The learned trial Judge conducted the trial against the appellant and by judgment and order dated 4.11.2004 convicted the appellant and sentenced the appellant as mentioned earlier. 3. In the course of trial following witneses came to be examined. P.W.1. Abedabi Bori is the -5- grandmother of Tanvir, who had lodged the FIR, P.W.2 Tanvir is the victim girl. Abdul Razak, P.W.3 is the panch who had acted as such for taking charge of the clothes of victim Tanavir-P.W.2 under panchanama at Exhibit 14. P.W.4. Shahuraj is the panch who acted for the purpose of conducting scene of offence panchanama at Exhibit 17 which was conducted on 12.1.2000 in whose presence the sample of earth stained with blood was collected. P.W.5 Dr.Komal N.Chavan is the medical officer who had examined Tanvir P.W.2 soon after she was taken to Sion hospital. P.W.6 Hanumanta Nandapalli is the Municipal Corporator in whose presence statement of Tanvir P.W.2 was recorded. This was done to give credence to the investigation carried out by the police. P.W.7. Usha Bagal had acted as Investigating Officer and had recorded statement of Tanvir P.W.2 in particular. The clothes of the victim as well as the appellant were sent for chemical examination and Chemical Analyser’s reports are on record at Exhibit 27 colly. 4. Following documents were found relevant viz Charge at Exhibit 3, FIR filed by Smt. Abedabi P.W.1 at Exhibit 9, medical examination papers of -6- appellant at Exhibit 11, panchanama dated 12.1.2000 regarding clothes of victim Tanvir P.W.2 at Exhibit 14, scene of offence panchanama dated 12.1.2000 at Exhibit 17, medical papers concerning admission of Tanvir P.W.2 and treatment given to her at Exhibit 21 colly, medical certificate of the Doctor attached to Sion Hospital showing injuries suffered by Tanvir P.W.2 at Exhibit 22, arrest panchanama of appellant at Exhibit 26, Report regarding Blood group of the appellant as "B" and clothes of the appellant which were taken charge of under arrest panchanama at Exhibit 26 were found to be stained with human blood but the blood group was inconclusive. The clothes of Tanvir P.W.2 which were taken charge of under panchanama at Exhibit 14 were found to be stained with human blood but the blood group was found to be inconclusive. The hair taken from the person of the appellant was found to be human. No semen was detected on the clothes of the appellant or that of the victim Tanvir. 5. With the aforesaid material on record we have heard learned Advocate Mr.Abhay Apte in support of the appeal and learned APP Mrs. M.M.Deshmukh for the State. We have, with the -7- assistance of learned Advocates on both the sides considered the entire record including the judgment and Order impugned in this case. The prosecution case that Abedabi P.W.1 had occasion to file FIR in connection with the incident cannot be disputed by the appellant in as much as the appellant was taken to the police by Abedabi P.W.1. Learned Advocate Mr.Apte had submitted that Anna who is said to have brought Tanvir P.W.2 to Abedabi P.W.1 and who had accompanied Abedabi P.W.1 has not been examined. Same position was pointed out in respect of one Mr. Suresh who had also accompanied Abedabi P.W.1. It is sought to be argued that these two witnesses should have been examined and they have been kept away by the prosecution and therefore adverse inference should be drawn against the prosecution. We are not inclined to accept this argument advanced by learned Advocate Mr. Apte. Prosecution has examined Abedabi P.W.1 to whom Tanvir P.W.2 had narrated the incident. The prosecution has also examined one Mr. Hanumanta Nandepalli P.W.6 the Corporator in whose presence statement of Tanvir P.W.2 was recorded. This is done by the investigating Agency to lend support to the case of the prosecution that Tanvir P.W.2 in -8- fact narrated the incident to police officer Smt. Usha Bagal P.W.7 who had recorded her statement. In our view, merely because Anna and Suresh have not been examined the case of prosecution cannot be discarded when evidence on record otherwise is sufficient to hold that the appellant had committed an overt act which was alleged against him. 6. It was sought to be argued that the prosecution has not fixed identity of the appellant in the proper manner as perpitrator of crime. We do not find any force in this argument because Abedabi P.W.1 has stated in her examination in chief that when Tanvir P.W.2. was narrating to her the incident infront of the house of one Laxmi large number of persons had gathered over there. Tanvir P.W.2 has identified the appellant as the person who had lifted her and biten her on her cheeks. Abedabi P.W.1 has also positively stated that she slapped the appellant and took him to the police station along with Tanvir P.W.2. If this is the manner in which the appellant was taken to the police station, surely the chance of false implication is required to be ruled out. There is no cross examination so as to discard the evidence -9- of Abedabi, P.W.1 in so far as this aspect is concerned. Tanvir P.W.2 has given evidence and has identified the appellant and her evidence also in no uncertain terms points that she could identify the appellant as the perpitrator of the crime. She has stated in her evidence that she had seen the appellant in her locality for 4-5 days and he had stayed in the house of one lady staying in the locality where Tanvir P.W.2 was staying. Nodoubt, she could not recollect the name of that lady. However, that by itself is not sufficient to discard the evidence of Tanvir P.W.2 as regards the identification of the appellant as perpitrator of crime. 7. Learned Advocate Mr. Apte argued that the prosecution has not been able to prove the guilt of the appellant under Section 376(2)(f) as well as 324 of the IPC and the learned trial Judge has erred in arriving at the conclusion in that behalf. He had taken us through the evidence and had submitted that the learned trial Judge had erred in appreciating the evidence and had erred in convicting the appellant under Section 376(2)(f) and 324 of I.P.C. Learned Advocate Mr. Apte -10- submitted that first and the foremost requirement for conviction of a person under Section 324 is to cause grievous hurt by dangerous weapon or means and in the present case there is no evidence to show that dangerous weapon or means were used by the appellant for the purpose of causing injury to Tanvir P.W.2. He also submitted that the medical evidence on record does not show that Tanvir P.W.2 had suffered grievous hurt as defined in Section 320 of IPC. He further submitted that conviction under Section 324 of I.P.C. cannot sustain and that the appellant is required to be acquitted of the charge under Section 324 of IPC. 8. Learned Advocate Mrs. M.M.Deshmukh appearing on behalf of the State had supported the judgment delivered by the learned trial Judge and had submitted that the evidence of Abedabi P.W.1 and Tanvir P.W.2 clearly shows that the appellant had committed rape on Tanvir P.W.2, who was at the relevant time 7 years old. She had also submitted that the medical evidence led by the prosecution through Dr.Komal P.W.5 supports the case of the prosecution. She further submitted that the C.A reports produced by the prosecution through Exhibit -11- 27 colly. do go to show that human blood was found on the clothes of the appellant as also on the clothes of the victim girl. According to her the C.A. report at Exhibit 27 colly, fully support the case of the prosecution that Tanvir P.W.2 was subjected to rape. She had taken us through the evidence to contend that the evidence on record is sufficient and the prosecution has discharged the burden that the appellant had committed offences for which he was charged and that the prosecution has proved that the appellant had committed the offences for which he was charged. Learned Advocate Mr. Apte had submitted that evidence of Tanvir P.W.2 suffers from omissions in as much as the defence could bring on record omissions as regards the appellant telling Tanvir P.W.2 that the appellant would give chocolate to Tanvir P.W.2 and she should accompany him. He also drew our attention to the further part of the omission as regards laughing of the appellant towards Tanvir P.W.2 and vice versa. He submitted that if the omission is in relation to the manner in which the appellant attracted attention of Tanvir P.W.2 then it is impossible that the appellant got a chance to commit acts alleged against the appellant as -12- regards rape. 9. Learned Advocate Mrs. Deshmukh submitted that the omissions which have been brought on record are insignificant and do not take away the force of evidence of Tanvir P.W.2. 10. Learned Advocate Mr. Apte lastly submitted that if the stand of the appellant that conviction of the appellant under Section 324 as vitiated is accepted by the Court, the sentence imposed upon the appellant under Section 324 of IPC is required to be set aside. He had further submitted that the sentence imposed upon the appellant for imprisonment for life is on higher side and a lenient view is required to be taken by the Court, particularly when the appellant was hardly aged about 25 years at the time of the alleged incident and that he was not convicted in any other case. 11. For the reasons to follow, we are not inclined to accept the arguments advanced by learned Advocate Mr. Apte that the evidence of Abedabi P.W.1 and Tanvir P.W.2 is required to be discarded. Nothing has been placed before the -13- Court by way of cross examination of the witnesses examined on behalf of the prosecution that there was enmity between Abedabi P.W.1 or Tanvir P.W.2 on one hand and the appellant. Identity of the appellant as the perpitrator of crime has been confirmed by the evidence of Abedabi P.W.1 and Tanvir P.W.2. Evidence of Abedabi P.W.1 goes to show that the appellant was in the midst of the crowd when Tanvir P.W.2 was narrating to Abedabi P.W.1 the incident in question and Tanvir P.W.2 had identified the appellant as the person who had indulged in the crime. The appellant was then taken to the police station after he received a slap from Abedabi P.W.1. Tanvir, P.W.2 in her examination in chief has clearly stated that she had seen the appellant in the locality as the person residing there for the last 4-5 days. There is no need to doubt the evidence of Tanvir P.W.2. Tanvir P.W.2 was a girl of about 7 years and it is quite natural that she must have observed the appellant in the locality and noted his features. It is not even faintly suggested by the appellant in the cross examination that the appellant was not resident of the locality where Tanvir P.W.2 was residing and that the appellant was staying in a -14- different locality. With this, identification of the appellant as perpitrator of crime has been fixed by the prosecution in proper manner. 12. Tanvir P.W.2 has stated in her evidence in detail as to how the incident had taken place. The perusal of the said evidence in paragraph 1 in examination in chief would clearly go to show that the appellant took Tanvir P.W.2 little away to a secluded place i.e. behind a building. It is seen that though Tanvir P.W.2 resisted, she was taken near the gutter and made to lie down where there were bushes. Her further evidence would go to show as to how the appellant bite her cheeks and as to how he committed sexual intercourse. Said evidence of Tanvir P.W.2 is not shattered at all. In fact, suggestion given to Tanvir P.W.2 that her mother and her grandmother tutored her as to what is to be told to police is positively denied by Tanvir P.W.1. It is true that the defence could bring about the omission as regards Tanvir P.W.2 telling the police that the appellant told her that he will give chocolate and she should accompany him. It is true that the appellant also could bring on record omission about the appellant laughing in the -15- direction of Tanvir P.W.2 and Tanvir P.W.2 responding. In our view, these omissions are inconsequential and cannot be used for the purpose of discarding the evidence of Tanvir P.W.2 particularly, when there is no cross examination whatsoever on the main incident. Perusal of the evidence of Tanvir P.W.2 in the cross examination would clearly go to show that her evidence in examination in chief as regards main incident has not been shattered. In fact, in the cross examination more details were obtained about the place of offence, as to how Tanvir P.W.2 came out of her house, as to how she returned after the rape and as to how many persons had gathered and as to how she narrated the incident to her family. In substance, the evidence of Tanvir P.W.2 clearly implicates the appellant in so far as causing injuries on the face of Tanvir P.W.2 and also committing sexual intercourse against her wishes and with the use of criminal force. 13. Evidence of Abedabi P.W.1 clearly goes to show as to how Tanvir P.W.2 was brought to her by Anna Shengwala and as to how Tanvir P.W.2 narrated to her the entire episode including pointing out in -16- the direction of the appellant who was in the midst of the persons present and watching as to how Tanvir P.W.2 was narrating the incident to Abedabi P.W.1. Here again no successful cross examination was conducted to shatter the evidence of Abedabi P.W.1 and on reading the entire evidence it is clear that Abedabi P.W.1 has given cogent evidence as to how Tanvir P.W.2 was not noticed for some time and as to how she was brought in the injured condition and as to how Tanvir P.W.2 narrated the incident and as to how the appellant was taken to the police station. The suggestion put to Abedabi P.W.1 that the appellant was not acquainted with Abedabi P.W.1 has been denied. The suggestion that the appellant had advanced monies to Abedabi P.W.1 and as Abedabi P.W.1 was unable to return the same to the appellant, a false case has been filed against the appellant by Abedabi P.W.1 is also denied. In substance, we have no difficulty in accepting the evidence of Abedabi P.W.1 and Tanvir P.W.2 on the question of involvement of the appellant in the matter causing injuries to the face of Tanvir P.W.2 and committing sexual intercourse with her. -17- 14. The investigating agency had recorded statement of Hanumanta Nandepalli P.W.6. This witness is the Corporator and the job of recording statement of Tanvir P.W.2 was conducted in the presence of Hanumanta Nandepalli P.W.6 by P.W.7 Smt. Usha Bagal P.S.I. The cross examination of this witness would clearly go to show that job of recording of statement of Tanvir P.W.2 was done in his presence and this witness has stood the test of the cross examination. In fact when Tanvir P.W.2 has stood the test of cross examination there is hardly anything which can be said to doubt the prosecution case. In the substance, Investigating Agency had brought on record sufficient material to show that the job of recording statement of P.W.2 Tanvir was done in an independent manner. We have no difficulty in accepting the case of the prosecution in that behalf. 15. We now turn to the evidence of Dr.Komal P.W.5, who had examined Tanvir P.W.2. Tanvir P.W.2 was brought to Sion Hospital in the night at about 11.20 p.m. and Dr.Komal P.W.5 had occasion to examine her. Dr.Komal P.W.5 has stated in her examination in chief that she observed swelling and -18- tenderness on upper lip and teeth mark. She also observed laceration on the inner aspect of the upper lip. She also found bite mark on the cheek near the ear and bite mark on the chin on the left side. Dr.Komal P.W.5 had examined the private part of Tanvir P.W.2 and her evidence in that behalf is as follows: "On examination of her private part I have noticed second degree perennial tear in the mid line extending upto the anus but not involving anus and there was minimal bleeding and tenderness. There was one single hair found on her private part which was collected and send for chemical analysis". Dr.Komal P.W.5 has opined that possibility of sexual assault cannot be ruled out. She has further stated that considering the history given by the patient injuries given (observed) by her corroborate the story of rape. So far as the cross examination of Dr.Komal P.W.5 is concerned, an attempt was sought to be made to show that lot of pressure is required for entering the male organ -19- inside the vaginal orifice. It was also sought to be suggested that in such case injury may occur on the private part but not on the thighs. Sugggestion was given to the witness that in the absence of bruises, internal lubrication and contigun it cannot be a case of sexual assault. This suggestion was denied by Dr.Komal P.W.5. Reading the entire evidence of Dr.Komal P.W.5 it is clear that she speaks in favour of the prosecution on two points (1) presence of injury to the face of Tanvir P.W.2 and (2) injuries on the private part of Tanvir P.W.2 leading to the conclusion that she was subjected to sexual assault. The evidence of Dr.Komal P.W.5 would clearly go to show that prosecution has brought on record the appropriate evidence to show that Tanvir P.W.2 was raped. 16. Reading the evidence of Abedabi P.W.1, Tanvir P.W.2 as well as Dr.Komal P.W.5 we are inclined to observe that the prosecution has been able to prove that Tanvir P.W.2 was subjected to injuries so far as her face is concerned as well as Tanvir P.W.2 was subjected to rape. 17. The prosecution has been able to show that -20- Tanvir P.W.2 was aged about 7 years at the time of incident. Tanvir P.W.2, has while giving evidence on 24.8.2004 had stated her age is 11 years. The incident is of 11.1.2000. This will go to show that Tanvir P.W.2 was aged about 7 years at the time when the incident is said to have been committed. If this is so, the age of the victim girl Tanvir P.W.2 will be relevant for the purpose of deciding whether the learned trial Judge was right in framing the charge under Section 376(2)(f) and as to whether the learned trial Judge was right in convicting the appellant accordingly. We have already indicated that the prosecution has proved that the appellant had committed rape on Tanvir P.W.2. If the age of the appellant as mentioned above was 7 years at the time of the incident, the conviction of the appellant under Section 376(2)(f) was proper and we are inclined to hold that the appellant was rightly convicted under Section 376(2)(f) of the IPC. 18. In the course of investigation clothes of the victim girl Tanvir P.W.2 were taken charge of vide panchanama Exhibit 14- i.e. open shirt and underwear. Both these clothes were found to be -21- stained with blood and the report of the Chemical Analyser also states that they were found