1 Cri-Appeal-544-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 544 OF 2007 Ratish @ Satish @ Lamba Shankar Patil, ) ) Indian Inhabitant, aged 26 years, residing ) at Sion-Koliwada, Pratiksha Nagar, ) Room No.189, Chawl No.C-19, ) Mumbai - 22. ). Accused at present in Kolhapur Central ) Prison. ).. Accused/Appellant. Vs. 1 The State of Maharashtra ) (at the instance of Samta Nagar ) Police Station viide C.R.No.332/05) ) 2 Sonu Balu Pawar through her ) mother Mrs. Radha Balu pawar ) Near Saidham Temple, Kaccha Zopda,) Slum Area, Near Highway, ) Kandivali (E), Mumbai 400 101. )..Respondents Mrs. Anjali Patil, Advocate, for the appellant/accused. Mrs. P.P.Shinde, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 12th September, 2011. JUDGMENT : 1. The accused has preferred the appeal against the Judgment and order dated 15.2.2007 passed by the learned Additional Sessions Judge, Greater 2 Cri-Appeal-544-07.sxw Mumbai, in Sessions Case No.940 of 2005 whereby the accused as convicted for the offence of rape punishable under Section 376(2)(f) of IPC and was sentenced to undergo R.I. for ten years and to pay fine of Rs.10,000/- and in default, to undergo further R.I. for one year and for the offence under Section 363 read with Section 366 of IPC for which he was awarded rigorous imprisonment for four years and to pay fine of Rs.2,000/- and in default to undergo further imprisonment for 30 days. 2. Prosecution case, in brief, is that the first informant Radha Balu Pawar, who was examined as PW-1, used to reside with her husband and daughter aged about six yeas who is victim of offence in a hut near Saidham Temple, Kandivali, Mumbai. The accused was living as a tenant in the hut of one Vishnu Kamble. The hut of Vishnu Kamble is at a distance of 10 feet from the house of Radha Pawar (PW-1). On 8.10.2005 at about 5 or 5.30 p.m., PW-1 Radha left her house to fetch milk. Her husband, who was working at Tata Power House had come back home at 4 p.m. and was sleeping in the house. Within half an hour, she came there and she saw her daughter coming and she was weeping. On enquiry, the prosecutrix told her mother that there was bleeding from her private part and on further enqiry, she said that the accused had made her lie on a piece of paper and then he had inserted his male organ into her private part due to which 3 Cri-Appeal-544-07.sxw there was bleeding. She also informed that the accused had cleaned that bleeding with her underwear and then thrown it away in the nalla. PW-1 Radha examined the private part of her daughter and found that it was bleeding. She was taken to a private doctor. Then she she was taken to Samta Nagar Police Station. She was sent for medical examination at Nagpada Police Hospital. At that Hospital, she was examined by doctor and was referred to J.J. Hospital. On the basis of the report given by PW-1, case was registered against the accused for the offence under Section 376 of IPC. Spot panchnama was prepared at the hut of Vishnu Kamble. Clothes on the person of the prosecurix were seized. Similarly, accused was also arrested. His clothes were seized and were referred to the medical examination. Their blood samples as well as the sample of swab of prosecutrix were collected. Muddemal property was referred to the C.A. After investigation, charge-sheet was filed against the accused under Section 376 of IPC. 3. After committal of the case to the Court of Sessions, the learned Addl. Sessions Judge charged the accused for the offence under Section 363 read with Sec. 366 of IPC as well as under Section 376 of IPC to which the accused pleaded not guilty. According to him, he was falsely implicated in this case because of previous enmity. On behalf of prosecution, in all 12 witnesses were examined and several documents were placed on record. The trial Court 4 Cri-Appeal-544-07.sxw convicted the accused for both the offences and sentenced as stated above. 4. The learned Counsel for the appellant vehemently argued that except the evidence of prosecutrix (PW-4) and her mother PW-1 Radha, there is no evidence to corroborate the prosecution case. According to her, medical evidence also does not provide corroboration nor the C.A. reports provide any corroboration to the same. The learned Counsel contended that PW-1 Radha had some grudge against the accused prior to the incident and, therefore, she was examined to falsely implicate the appellant. The learned Counsel also contended that when the prosecutrix was first taken to a private doctor, story of prosecutrix falling from a tree was given and the Medical Officer also opined that the injury could be possible due to fall from a tree and in view of this, the prosecution story cannot be believed and is liable to be rejected. 5. On the other hand, the learned APP fully supported the impugned order of conviction and sentence. She contended that even though there might be some dispute between the accused and the PW-1 Radha, the dispute is not such that she could have made a false charge of rape on her daughter against the accused. She also contended that looking to the injury on her private part and the fact that there was no other injury on her person, the story of sustaining that injury 5 Cri-Appeal-544-07.sxw due to fall from the tree cannot be accepted and that defence has been rightly rejected by the trial Court. 6. Evidence of PW-1 Radha shows that she was living with her husband and daughter (PW-4) in a hut. She is the casual labourer and her husband used to work with Tata Power House. They reside in a hut near Saidham Temple. In another hut, which is close by, there is hut of Vishnu Kamble. In that hut, in all six persons were residing, including the appellant Satish Patil who is also known as "Lamba" because of his height. There is no dispute that accused was residing in the said hut of Vishnu Kamble. As per the evidence of prosecutrix (PW-4), she used to call the accused as uncle and he is also known as Lamba. As per the evidence of these two witnesses, it appears that on 8.10.2005 at about 5 or 5.30 p.m., PW-1 Radha had left her house to fetch milk. At that time, the prosecurix was playing outside the hut. According to the prosecutrix, when she was playing, the accused called her in his hut. After she went to his hut, the accused made her sit in the room and then lie don and inserted his penis into her vagina due to which she suffered bleeding. According to her, she immediately rushed out of the hut and started weeping. She deposed that her Jangia stained with blood was thrown away by the accused. After PW-1 Radha returned to her house, the prosecutrix narrated the incident to her mother. PW-1 Radha also deposed that 6 Cri-Appeal-544-07.sxw when she returned home, she found her daughter coming and she was weeping. On enquiry, her daughter told her that the accused had put a paper and had made her lie down on the same. Thereafter, the accused had slept over her body and had sexually abused her. She used Marathi term"Mayan Phadale" which literally means that accused had torn seal or the vagina. She examined her daughter. According to her, her Jangia or underwear was soak with blood. Firstly, she took her to a private clinic at Hanuman Nagar. Doctor gave some medicine,but as there was tear to the private part of the girl and which required stitches. The doctor refused to do it. Hence, she took her to the Police Station where the report was lodged which is FIR Ex.9. After that, the girl was first referred to the Nagpada Police Hospital and from there to J.J.Hospital. 7. The evidence of PW-8 Dr. Shivaji Daund shows hat he was working as Medical Officer at Nagpada Police Hospital. On 9.10.2005, the prosecutrx was brought to him vide outward No. 9193/05 from Samata Nagar Police Station for medical examination. On examination, he found complete tear of perineum with bleeding and, therefore, he immediately referred the prosecutrix to J.J.Hospial for further treatment. Exhibit 39 is a letter by which the prosecutrix was referred to Nagpada Police Hospital and on the same letter, the Medical Officer endorsed to refer to J.H. Hospital. 7 Cri-Appeal-544-07.sxw 8. Evidence of PW-3 Dr. Meena Agarwal, who was working as Medical Officer at J.J.Hospital shows that she was on night duty and on 9.10.2005 at about 1.25 a.m. the prosecutrix was brought to the Hospital by one Woman Head Constable 341 from Samta Nagar Police Station for medical examination with history of the alleged sexually abused by a male. As per her evidence, on local examination of the vulva, she found swelling over perineum and mild bleeding. No other external injuries were noticed. She immediately referred the patient to Emergency Gynecologist and made entries Ex.14 in the original register, cop of which is Ex.14A. 9. PW-5 Dr. Disha Andhiwal deposed that on 9.10.2005, the prosecutrix was brought to her by WHC No.341 of Samta Nagar Police Station. for medical examination. The girl was aged about six years and there was history of alleged sexual assault. At about 5.30 p.m. on 8.10.2005 on local examination of the girl she found one degree perineum tear at 6 O'clock position, size 2 x 1 cm. extending upto anus. Sphinter intact, fresh edges, menimal bleeding plus. Stains of blood over labia majora but o evidence of foreign body, hymen intact. She collected swab from vagina, anal area and also collected nail clippings and blood samples. According to her finding suggestive of sexual abused, Pediatric surgery 8 Cri-Appeal-544-07.sxw in view of parineal injury. She referred her to pediatric Surgery to Dr. Ashok Anand. She noted down on this medical report or case papers Ex.9. Dr. Disha clarified in the examination-in-chief that in case of a child of six years, the hymen is intact. It is not in dispute that the hymen is deep inside the vagina and therefore many times in a case of sexual assault, it remains intact. She admitted that where the victim is six years old, if there is complete penetration, chances of tearing of hymen will exist. She also admitted that the position of tears at 6 O'clock position is possible if a pencil or appointed instrument or steam of a tree is inserted in the private part. 10. As per the history given to the doctor by the prosecutrix, it appears that her Jangia which was on her person, just before commission of offence,w as used for cleaning and for wiping the blood from her private part and thrown it away in a nalla. Later on, her mother had provided another jangia when she was taken to police station. She was wearing the jangia or underwear which was given to her by her mother after the incident. The evidence of PW-2 Ramesh Joshi and PW-9 PSI Ashok Rahate reveals that on 9.10.2005 in the morning at 5.30 a.m., the police went to the spot of incident in the presence of panch witnesses as panchnama was drawn. At that time, the mother of the prosecutrix i.e. PW-1 Radha had produced frock and an underwear of the prosecutrix and these articles 9 Cri-Appeal-544-07.sxw were seized under a panchnama Ex.11. No other article was recovered from the spot. 11. As per the evidence of PW-7 PI Prakash Kolamkar, the accused was arrested in the night of 9.10.2005 itself and under an arrest panchnama ex.25 and his clothes were seized. He was referred for medical examination to Police Hospital Nagapada. PW-6 Dr. Baubrao Damawale examined the accused on 10.10.2005 at about 4.00 p.m. He did not find any injury on his person. However, he opined that there was nothing to suggest that he was impotent. He also collected the blood samples, etc. and issued a certificate Ex.23 accordingly. PW-7 referred the Muddemal property including the blood samples to the C.A. along with his covering letter and the property was taken to C.A. b PW-10 Constable Jayprakash Juwatkar. 12. As per the C.A. report, the blood group of accused was "A". As per the C.A. report Ex.33, about the clothes of the prosecutrix and accused, few human blood stains wee found on the underwear and top i.e. frock of the prosecutrix and those blood stains were of "O" Group. On the half pant and full pant of the accused, no blood stains were found. No semen was detected on either of the clothes of prosecutrix or the accused. The C.A. report Ex.32 shows 10 Cri-Appeal-544-07.sxw that some blood stains were detected in the swab from the would and the nail clippings of the prosecutrix. No semen was found in the vaginal swab and anal swab. Thus, the C.A. reports only go to show that there were blood stains on the underwear and frock of the prosecutrix, but no semen was found either on swab or on her clothes or the clothes of the accused who could be related to the prosecutrix. Thus, the C.A. reports do not provide much corroboration to the prosecutoj case. The prosecution story is only based on the oral testimony of the prosecutrix and her mother. which is sought to be corroborated by the medical evidence. 13. As per Medical Jurisprudence and Toxicology, Revised by Prof. T.D.Dogra 11th Edn. 2005 page 492, the learned author observed as under :- "Female external genitalia (Syn : Vulva, Pudendum) : The female external genitalia include the structures placed about the entrance to the vagina. They are located outside the hymen, which is a membrane that lies across the entrance to the vagina. The external genitalia include the mns pubis (also called the mons veneris), the labia majora and minora, the clitoris, the vestibule of the vagina and perineum. They are all visible on external examination." 11 Cri-Appeal-544-07.sxw PW-8 Dr. Shivaji, who is examined the prosecutrix has clarified that the whole body is called Perenium and it is a part of the female external genitalia. As per the evidence of PW-8 Dr. Shivaji, there was complete perenium tear and this fact is supported by PW3 Dr. Meena Agarwal and PW-5 Dr. Disha. Dr. clearly specified that there was perineam tear at 6 O'clock and extending upto anus, Sphincter intact fresh edges. There were blood stains on labia majora. It indicates that there was sexual assault and there must have been some penetration which resulted into tear of the perineum but extending upto Anus though Sphincter which is protecting the ring of the anus was intact. The evidence also shows that hymen was intact. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis. A partial penetration within the labia major of the Vulva is sufficient to constitute the offence. Without some penetration n the vulva, there could not be the tear of perineum and that too extending upto anus. It is also well settled scientific position that when the victim is girl of tender age of about 5 - 6 years, the hymen s situated deep inside and it is very difficult to penetrate completely and therefore the hymen may remain intact inspite of 12 Cri-Appeal-544-07.sxw penetration. Therefore, merely because the hymen remains intact, it cannot be said that there was no penetration. In the present case, PW-3 Dr. Meena deposed that on local examination of vulva,she found swelling over perineum and this was further corroborated by the evidence of PW-5 Dr. Disha. Therefore, in my opinion, it makes no doubt that there was no penetration, though it could not be complete penetration. 14. In the cross-examination, PW-1 Radha Pawar, it has been suggested that she had admitted that prior to this incident, a mobile was lost. Some persons had come to that area in search of the culprit and the accused had pointed out towards PW-1 Radha and therefore those persons had thrashed Radha. She has admitted that a few days before this incident, her iron was stolen away and she suspected that theft might have been committed by the accused. In view of this, the relations between them were strained. In the cross-examination of prosecutrix PW-4 also this fact was tried to be brought. She admitted that the other had some grudge against the accuse. It is also brought in the cross-examination of PW-1 Radha that when she had taken her daughter first to a private doctor, she had informed the doctor that the girl had fallen from a tree and sustained injury. Initially, PW-1 did not admit to have made such statement, but in the later part of 13 Cri-Appeal-544-07.sxw the cross-examination, she admitted this fact, but she explained that she was forced to state so by Vishnu Kamble and by and they had offered her Rs.1000/- to Rs.2,000/- for hushing up the matter and therefore she had not disclosed this fact before the private doctor. PW-5 admitted that the injury could be possible if a pencil or a pointed instrument is inserted in the private part. In view of this admission, the learned Counsel for the appellant contended that PW-1 Radha had strained relations with the accused. here was possibility that the girl had fallen from tree and sustained the injury and taking benefit that Radha wanted to falsely implicate the accused. The learned Counsel contended that when there is no other corroborative piece of evidence, it is not safe to place reliance on the testimony of the proecutrix or her mother. It is to be noted that on behalf of prosecution, three medical officers i.e. PW-8, Dr. Shivaji, PW-3 Dr. Meena and PW-5 Dr. Disha were examined. Each of them spoke about the injury to the perineum. None of them deposed about the incident of any other injury on the person of the prosecutrix. IN fact, Dr. Dish specifically noted that there was o history of any other injury. She also did not find any other injjry. In the cross-examination also nothing was brought to show that besides the injury to the private part, the prosecutrix had suffered any other injury. If a girl aged about 6 years had fallen from a tree and suffered the injuries to her private part in all probabilities she must have suffered some other corresponding injuries on different parts of the body. For example, on 14 Cri-Appeal-544-07.sxw the knees, thighs, face, palm, etc. but there was no such injury no such person. The absence of any other injury except the injury on the private part rules out the possibility of her sustaining that injury to a private part because of a fall from the tree and therefore the defence of the accused that he might have suffered the injury due to fall from the tree cannot be accepted. 15. In the cross-examination, dr. Disha admitted that the tear could be possible if a pencil or pointed instrument was inserted in the private part. Thiis admission is given in the cross-examination. This goes to show that insertion or penetration to the private part was necessary for the purpose of this tear and it goes to prove the prosecuton case that there was a penetration though it might be partial and not complete. 16. If for a moment, it is presumed that the injury was intentionally caused by inserting the some instrument with intention to take revenge from the accused, immediately further injury was caused. PW.1 Radha would have taken her daughter to the police station and lodged a report against the accused, but it appears that initially she took her to a private doctor, though according to her, she was made to take her to a private doctor by Vishnu Kamble. As she took her daughter to a private doctor for treatment for the injuries on the private part, it 15 Cri-Appeal-544-07.sxw indicates that her intention was not to falsely implicate the accused in a false case. Only after the private doctor refused to give further treatment which requires stitching to the tear, she took her daughter to the police station and police referred her to the Nagpada Police Hospital and then to J.J.l Hospital. This conduct of PW-1 Radha also does not provide corroboration to the plea of the accused. Therefore, I do not find any substance in the contention of the accused that she may have suffered the tear to the perineum due to fall from a tree or that it was an attempt to falsely implicate him by causing injury by some instrument, etc. 17 In view of the evidence discussed above, I find no fault or mistake in the order of conviction for the offence under Section 376(2)(f) of IPC. The sentence of imprisonment of ten years is minimum prescribed by law. Therefore, no fault can be found with the sentence of imprisonment also. 18. As far as the charge under Section 363 read with Sec. 366 of IPC is concerned, it was never the prosecution case that the prosecutrix was taken away by the accused from her lawful guardianship. In fact, the parents of the prosecutrix and the hut of Vishnu Kamble are situated very near to each other and per the oral evidence, the distance is only 8 - 10 feet as per admission of PW-1 Radha Pawar. The girl was playing outside the house. The accused called her and 16 Cri-Appeal-544-07.sxw she went to the house. There is not an iota of evidence that accused had allured or enticed her and had taken her from the lawful guardianship. The charge was also under Sec. 376(2)(f) only and not under Sec. 363 read with Sec. 366 of IPC and the learned trial Court however charged and convicted the accused for the offence under Sec. 363 read with Sec. 366 of IPC. In view of the prosecution evidence on record, I do not find any material on the basis of which the accused could be convicted for the offence of kidnapping punishable under Sec. 363 read with Sec. 366. It wass a simple case of rape and not a kidnapping. 19 In view of the above, while the conviction for the for the offence under Section 376(2)(f) of IPC is to be maintained, conviction under Section 363 read with Section 366 of IPC cannot stand and has to be set aside. The offence of rape on as child below 12 years is punishable with minimum sentence of ten years and fine. Therefore, the substantive sentence of imprisonment as awarded by the trial Court cannot be interfered with. However, in my opinion, the sentence of further imprisonment of one year in default to pay fine is harsh, particularly when the accused comes from a very poor strata of the society. Admittedly, he was living as a tenant in the small hut of Vishnu Kamble in the slum area. Therefore, in my opinion, long sentence of imprisonment in default to pay fine would be punishing him only for his poverty which is not desirable. 17 Cri-Appeal-544-07.sxw 20. In view of the above, the appeal is partly allowed. While the conviction for the offence under Section 376(2)(f) of IPC is maintained, the sentence stands modified to rigorous imprisonment for ten years and fine of Rs. 10,000/- and in default to pay fine, further rigorous imprisonment for two months. The order of conviction and sentence for the offence under Section 363 read with Section 366 of IPC stands set aside. (J.H.BHATIA,J.) 18 Cri-Appeal-544-07.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 544 OF 2007 Ratish @ Satish @ Lamba Shankar Patil, ) Indian Inhabitant, aged 26 years, residing ) at Sion-Koliwada, Pratiksha Nagar, ) Room No.189, Chawl No.C-19, ) Mumbai - 22. ). Accused at present in Kolhapur Central ) Prison. )..