1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 416 OF 2004 in SESSION CASE NO. 266 OF 2003 Salim Alim Shamsher Shaikh ) residing at Gulshan Nagar hutments ) Jogeshwari (East), Mumbai. ) currently lodged at Kolhapur Central ) Prison. ).. Appellant/orig.accused Versus The State of Maharashtra ) (At the instance of Borivli Railway ) Police Station in C.R.No.153/2002) ) Respondents Shri Arfan Sait, Advocate appointed, for the appellant/accused. Ms. M.H.Mhatre, APP, for the Respondent - State CORAM: J.H.BHATIA, J. DATE : 23rd June, 2010. JUDGMENT : 1. The appellant/accused was in Sessions Case No.266/2003 convicted by the learned Additional sessions Judge, Greater Mumbai, for the offence punishable under Section 376 IPC and was sentenced to undergo R.I.for ten years and to pay fine of Rs.2,000/- and in default to pay fine, to undergo further R.I. for six months. In addition, he was also convicted for the offence punishable under 2 Section 354 IPC and was sentenced to undergo S.I. for two years and to pay fine of Rs.500/- and in default to pay fine, to undergo further S.I. for three months. He challenged the conviction and sentence. 2. The prosecution case, in brief, is that on 14.8.2002 at about 1.50 a.m., the accused was commuting on the local train running between Malad to Borivli. The prosecutrix, a girl aged 17 years, was mentally sick and retarded. She was also in the said local train. The accused without her consent forcibly committed rape on her and outraged her modesty in the running train between Malad and Borivali. There were some commuters in the bogie who had seen the incident. When the train reached Borivali Railway Station, the accused jumped from the train as soon as it had slowed down. The prosecutrix also alighted after the train was stopped. PW-3 - Ambarish J.Mishra, who was a press reporter of "The Times of India" approached a railway police constable, who was present at the platform and informed him that the accused had committed rape on the girl in the running train. Some other passengers also came there. the Police constable with the help of PW-3 - Ambarish Mishra and others caught the accused and took him to the Borivali Railway Police Station. The officer on duty asked the constable to search for the girl and accordingly, the said police constable, PW-3 Ambarish Mishra and some others searched for the girl and found her on a platform. She was also taken 3 to the officer on duty. FIR lodged by PW-3 was reduced to writing and Crime No.153/2002 came to be registered against the accused.They were also referred for medical examination. During investigation, the clothes of the accused as well as the clothes on the person of the victim girl were seized under a panchnmama.The clothes of the accused as well as the prosecutrix as well as the blood samples and blood articles were referred to C.A. The girl was initially referred to Children Remand Home and then to Psychiatric Dept. with J.J. Hospital which confirmed that she was mentally sick and was unable to understand and to reply questions.Later on, sister of the girl was found and she identified her. After investigation, police filed charge-sheet. The case was committed to the Court of Sessions for trial. 3. The accused was charged for the offences punishable under Sections 376, 354, 506 IPC as well as under Sections 3 (10(xi) and 3(2)(v) of Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989. The accused pleaded not guilty. On behalf of prosecution, in all 9 witnesses were examined. After trial, the learned Additional Sessions Judge convicted the accused for the offences punishable under Sections 376 and 354 IPC and sentenced him as stated above. He was acquitted of remaining charges. 4 4. Taking exceptions to the conviction and sentence awarded for the offence punishable under sections 376 and 354 IPC, Mr. Sait, learned Counsel for the appellant vehemently contended that the prosecution suffers from several drawbacks. Firstly, the prosecutrix herself has not been herself examined to prove the offence of rape on her. Secondly, even though there were number of persons in the bogie in the running train, nobody had intervened and thus this creates doubt about the evidence of P.W.3- Ambarish Mishra and P.W.4 - Vasantha Kulai. Thirdly, the medical examination and the C.A. reports do not corroborate the prosecution story. He also contends that if the accused was convicted for the offence punishable under section 376 IPC, he could not be convicted separately for the same offence under Section 354 IPC also which is a minor offence in comparison to the offence under Section 376. He argued that there were no valid reasons to award sentence of rigorous imprisonment for 10 years, particularly when the minimum sentence prescribed under sec. 376 is 7 years' imprisonment. The accused has already undergone about 9 years and 11 months' imprisonment, including the remission given. This is more than sufficient. He, therefore, urged that in case the conviction is to be maintained, the order pertaining sentence be suitably modified. 5. On the other hand, Mrs. Mhatre, learned APP contended that the 5 evidence is properly appreciated by the trial Court and the prosecutrix could not be examined because she was mentally sick or retarded and was not in a position to speak and give answer to any question. According to her, merely because in the given circumstances, the prosecutrix could not be examined before the Court, the testimony of the two eye-witnesses could not be completely ignored or rejected. According to her, the medical evidence and the C.A.report, particularly about the clothes of the accused and the prosecutrix provide sufficient corroboration to the testimony of the eye-witnesses and therefore, the conviction under Section 376 is justified. However, she left it to the Court as far as the conviction under Sec. 354 IPC and the sentence part is concerned. 6. On perusal of the prosecution evidence, particularly the evidence of P.W.3 - Ambrish Mishra and P.W.4 Vasantha, it appears that both were eye- witnesses to the incident. The evidence of P.w.3 Ambrish Mishra, who was working as the press reporter for The Times of India, reveals that on 14.8.2002, he boarded a local train of 1.21 a.m. from Dadar to Borivali. and he was in the second class which was close to the first class and third bogie from behind. According to him, there were 10 to 15 passengers in the said bogie. He occupied a seat near window. When the local train left Malad Station, he stopped reading and came near the door of said bogie. At that time, he noticed that towards the end 6 of said bogie, on nine seater bench, one person, who was later on identified as the accused, was forcibly having sexual intercourse with a minor girl. Even though the girl was opposing the intercourse, he continued the same. According to him, he had also objected and asked the accused to stop it, but the accused threatened him and said that he should not see it and go elsewhere. According to him, when the train reached near Borivli Station, the accused stopped his act, got up from the body of the girl, dressed himself and got down from the train when it was running slowly on the platform. P.W.3 Ambrish Mishra deposed that he, along with other passengers, decided to inform the police about this incident and as soon as the train stopped, he got down and saw the accused standing at some distance on the platform No.3. He also found one police constable on that platform. He along with one more person immediately approached that constable and informed him that the accused had committed rape on a minor girl in the train. The constable called the accused and interrogated him, who denied that he had committed any offence. However, he was caught and taken to the police station on the platform No.1. The officer on duty at the police station asked the policemen to search for the victim girl and accordingly P.W.3 Ambrish Mishra and the constable went in search and found her on the platform No.3, from where she was taken to the Railway Police Station. On interrogation, she was unable to say anything, but she was repeatedly pointing finger towards her private part. 7 7. P.W.4 - Vasantha, another eye-witness of the incident, was also travelling by the same train in the same bogie. According to him, he was sitting near the window when the train left Kandivli Station. He heard sound of crying of a girl from the backside. Initially, he did not bother but again he heard cries. One Muslim couple was also travelling and the Muslim man was trying to wake up another person, believing that he was a policeman. Then attention of this witness was drawn towards the backside and he noticed that the accused was lying on the person of a girl and was committing sexual intercourse with her. According to him, after 30 seconds, the accused got up from the person of the girl. At that time he saw even the private parts of the accused as well as the girl. The girl was crying. The accused jumped up from the bogie on the platform when the train was in slow motion. This witness found P.W.3 Mishra and also a constable on the platform. At that time, Mishra approached police constable and told him that a boy had committed rape on the girl. He saw the police constable slapping the accused. P.W.5 - Ganpat Zurunge,a police Head Constable, was on duty at the Borivali Station during the night between 13th and 14th August ,2002. According to him, at about 2 a.m. he was waiting for last local train from Dadar to Borivali. At about 2.05 a.m., the last local train arrived at Boriivli Railway Station . All the passengers got down. P.W.3 Mishra came to him on the platform and pointed out 8 towards accused and informed that he had committed rape on a girl in the running train. P.W.5 Ganpat immediately caught hold of the accused and took him to the officer on duty. The police officer directed him to search for the girl and then he along with P.W.3 and P.W.4 searched for the gil and found her on a platform. She appeared to be mentally sick. The report lodged by P.W.3 Ambrish Mishra was reduced to writing and it is Exhibit 16. 8. The evidence of P.W.1 - Lalita Zhotinge shows that on 14.8.2002 at about 7 a.m.she was called by the Borivali Railway Police to act as a panch witness in respect of the clothes of a victim girl. According to her, the girl did not disclose her name and it appeared that she did not understand. The clothes on her person, incuding one shirt, one jacket and one skirt were seized from her person. There were white stains on the clothes. They were also wrapped and sealed and were seized under a panchnama, Ex.12. The said clothes were identified by her as Articles 3, 4 and 5. 9. The Evidence of P.W.2 - Ramraksha Pandey, who was a hawker, deposed that on 14.8.2002 at about 6.45 a.m., he was called by the Boriivali Railway Police to act as a panch witness for seizure of clothes of a person, who was under arrest. According to him, a shirt and full pant, Articles 1 and 2 respectively, were seized from the person of the accused under a panchnama Ex. 9 14. These clothes were duly wrapped in a paper and sealed. 10. The Evidence of P.W.7 - Dr.Baban Shinde, who was posted at the Police Hospital Nagpada as a Medical Officer, deposed that on 14.8.2002, the accused Salim Alim Shaikh was referred to him for examination. He found him to be potent. He also found certain injuries on his person which he certified as per the medical certificate Ex.24. The injuries were alleged to be self-inflicted, but according to the accused, those injuries were caused by the police. For the decision of the present Appeal, the medical certificate about his injuries is not relevant. As per the evidence of Dr. Shinde, on 14.8.2002 itself, a girl, who appeared to be dumb and who did not disclose her name, was brought to him by Police Constable, Badge No. 298 of Borivli Railway Police Station for medical examination. After examination, he issued a certificate Exhibit 25. As per his report, the girl appeared to be 17 or 18 years old. On local examination of her private parts, he found that labia majora was normal and tender. Hymen was torn with fresh bruises on either side of hymen vertical, 1.5 cm by 0.5 cm reddish, inflamed, tender, redness all around hymen present. According to him, it appeared to be a case of sexual intercourse or rape on her. 11. The evidence of Medical Officer reveals that he had collected Vaginal 10 smear of the girl as well as the blood samples of the victim girl. He had also taken the nail clipping and blood samples of the accused. All these articles were referred to C.A. C.A. report Ex.26 shows that no semen was detected on the vaginal smear and also no blood was detected on the nail clippings f the accused The blood group of the prosecutrix was "B", while that of the accused was"O". 12. The evidence on record shows that the clothes of the prosecutrix as well as accused were referred to C.A.along with a covering letter Ex.35 by the Investigating Officer. Ex.36 is the C.A.report about these clothes. Ex.2 was the pant or jeans seized from the person of the accused. As per the C.A. report, two semen stains of about 1.0 cm in diameter and one semen stain of about 2.5 cm in diameter were found on right front upper portion of the jeans Ex.2. Similarly two semen stains, each of 1.5 cm. in diameter, on one side middle portion of the skirt of the prosecutrix marked Ex.3 were found. No blood was found on any of these clothes. Similarly, no blood or semen was detected on the shirt of the accused and the other clothes of the prosecutrix. The semen stains found on the pant of the accused and the skirt of the prosecutrix were human, but blood group could not be determined. 13. Immediately, FIR was recorded. There was no delay at all on the 11 part of any of the witnesses. There is no material in the evidence on the basis of which the testimoney of P.W.3 - Mshra and P.W.4 Vasantha could be disbelieved. They had no reason to falsely implicate the accused and that too for such a heinous offence. It is not the case of the accused that these two persons and the accused met earlier or that they had any grudge against him or that they wanted to punish him or take some revenge for some enmity. The evidence of the medical officer, particularly in respect of the girl clearly goes to show that the girl must have been ravished. The condition of her private parts revealed that she was subjected to forcible sexual intercourse. It is true that on the vaginal smear as well pubic hair of the accused, no semen was detected, but on the pant of the accused and the skirt of the girl, the stains of semen were detected and they were of human origin. There was no explanation from the accused about the semen stains on his pant. Mere presence of semen stains on the underwear or pant of a young man may not be sufficient to hold that he had committed the sexual intercourse, but the presence of the semen stains on his pant which was seized within short time of the incident and also the presence of the semen stains on the skirt of the girl within a short time after the incident provide corroboration to the testimony of the eye-witnesses. Their evidence also finds corroboration from the medical evidence on record. It is established by evidence on record that she was mentally sick or retarded and therefore, she was unable to express herself. Because of this 12 reason, her evidence could not be recorded. In such circumstances, merely because her evidence could not be recorded, the evidence of two eye-witnesses and other circumstantial evidence corroborating them could not be simply brushed aside or thrown away. Non-examination of the girl in the given circumstances will not be fatal for the prosecution case. In view of the facts and circumstances, I am convinced that the prosecution has satisfactorily proved that the accused had committed rape on the prosecutrix in the running train. 14. The accused was charged, tried and convicted for the offences punishable under Section 376 as well as Sec.354 IPC. Sec. 376 provides punishment for committing the offence of rape on a woman. Section 354 provides for punishment for assault or criminal force to any woman, intending to outrage or knowing it to be likely that the modesty of a woman could be outraged thereby. The Supreme Court in Ramkripal s/o Chyamlal Charmakar vs. State of Madhya Pradesh vs. State of M.P. 2007 Cri.L.J.2302 observed thus : "What constitutes an outrage to female modesty is nowhere defined in IPC. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this 13 Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. Modesty is defined as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions." Section 509 IPC provides punishment if a person intending to insult the modesty of any woman, utters any word, makes any sound or gesture or exhibits any object intending that such word or sound shall be heard or that such gesture or object shall be seen by such woman or intrudes upon the privacy of such woman. Section 509 provides for imprisonment which may extend to one year. Section 354 is attracted when a person assault or uses criminal force to outrage the modesty and the offence is punishable with imprisonment upto 2 years. Offence of rape is actually entering the private part of a man into the private part of woman. Thus, these three offences stand on different grades. The offences under 14 sections 354 and 509 are minor in relation to the offence under Section 376 IPC. The offence under Sec. 509 is complete as soon as the accused makes certain sound or gesture even though he does not assault or uses any force against the woman. Offence under section 354 is complete as soon as assault or criminal force is used against the woman even though no attempt is made to commit rape. Offence of rape punishable under sec.376 is the most serious offence against a woman. Normally, to commit the offence of rape, the accused assaults and uses criminal force and it is followed by the penetration. In view of this, when a person is convicted for the offence under Section 376 IPC there is no logic or reason to separately convict and sentence the accused for the offence punishable under Section 354 also, if it pertains to the same woman and the offence is committed in the same transaction. It is possible that the accused may assault on another, during the same transaction. In that case he may be convicted and sentenced for both the offences separately. But in the present case, the accused committed rape on the prosecutrix.No other woman ore an other transaction was involved in this case. Therefore, there could be no justification for the conviction of the accused for the offence under Sec. 354 also when he is convicted for the offence punishable under Section 376 IPC. In view of these circumstances, in my opinion, the conviction and sentence for the offence under Sec. 354 IPC cannot be sustained. 15 15. Coming to the point of sentence, the offence under Sec.376 is punishable with imprisonment which may extend to 10 years or with fine or imprisonment for life. However, the law prescribes that the sentence of imprisonment shall not be less than 7 years. In the present case, there could be no reason to award sentence for less than 7 years as prescribed by law, but at the same time, there is no justification or reason to award more serious offence than the minimum prescribed by law. The accused was a young man aged 22 years. Merely because the prosecutrix in this case was mentally retarded cannot be a reason to award the sentence of imprisonment for 10 years. Taking into consideration these circumstances, in my considered opinion, the sentence of imprisonment needs to be modified suitably. 16. For the aforesaid reasons, the Appeal is partly allowed. The impugned order stands modified as follows :- The accused is convicted for the offence punishable under Section 376 IPC and is sentenced to undergo imprisonment for seven years and to pay fine of Rs.2,000/- and in default to undergo, further R.I. for six months. 16 The impugned order of conviction and sentence for the offence punishable under Section 354 IPC is hereby set aside. The accused is in jail from 14.8.2002 till this day. If he has completed the sentence, he shall be released forthwith. (J.H.BHATIA,J.)