Case: State Of Maharashtra Vs. Rajendra Jawnmal Gandhi

Rajendra Jawanmal Gandhi (the accused) was convicted by this Sessions Judge, Satara for offences under Section 376 India Penal Code (IPC) and Section 57 of the Bombay Children Act, 1948 for having committed rape on a girl of eight years of age and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 5,000/- and in default of payment of fine to undergo rigorous imprisonment for six months and for offence under Section 57 of the Bombay children Act, he was sentenced to undergo rigorous imprisonment for one year and fine of Rs. 500/- and in default thereof rigorous imprisonment for one month. The substantive sentences were ordered to run concurrently. Maruti car in which the offence of rape was committed was ordered to be forfeited and confiscated to the State. The accused appealed to the Bombay High Court against his conviction and sentence. A Division Bench of the High Court by judgment dated October 4, 1994 upheld the conviction of the accused under Section 57 of the Bombay Children Act and upset the conviction under Section 376 IPC and instead convicted him for an offence under Section 354 IPC and sentenced him to suffer rigorous imprisonment which he had already undergone (which was 33 days in all) and to pay fine of Rs. 40,000/-. In default of payment of fine, the accused was sentenced to undergo rigorous imprisonment for three months. It was ordered that out of the fine so realised a sum of Rs. 25,000/- shall be paid to the complainant who was father of the girl. For an offence under Section 57 of the Bombay Children Act, sentence was reduced to imprisonment already undergone and the accused was not required to undergo any separate imprisonment for this offence. The Maruti car was ordered to be returned to the accused and the order of forfeiture and confiscation was set aside.2. The matter did not end at that. Nagrik Kitri Samiti, Kolhapur which had been formed was agitated about the acquittal of the accused for an offence under Section 376 IPC. The Convener of the Samiti, Mr. P.D. Hankare represented to the State Government to file an appeal to this Court against the acquittal of the accused under Section 376 IPC. In the meantime, the accused had deposited the fine of Rs. 40,000/- as ordered by the High Court and out of this amount a sum of Rs. 25,000/- had been withdrawn by the father of the girl. Perhaps this was the consideration for the State Government not to file any appeal in the Supreme Court. Since there was no response from the State Government, Mr. P.D. Hankare, Convener of the Nagarik Kirti Samiti, Kolhapur approached this Court. He was granted permission to file special leave petition against the conviction and sentence on the accused by the High Court and as aforementioned, after notice of this appeal was served upon the State of Maharashtra and the accused, both filed separate appeals in this Court. While the State of Maharashtra filed appeal against the conviction and sentence of the accused by the High Court praying for his conviction under Section 376 IPC and for enhancement of his sentence of minimum of 10 years, the accused filed appeal against his very conviction and sentence under Sections 354 IPC and 57 of the Bombay Children Act.3. Since the State itself has filed an appeal praying for conviction of the accused Section 376 IPC and for his punishment under Section 376(f) as the girl child was less than 12 years of age, leave granted to P.D. Hankare, Convener, Nagrik Kirti Samiti, Kolhapur losses its significance and we direct that the leave be revoked.4. It may be noticed at the outset that the offence was committed at Kolhapur and the accused was to be tried there in the court of Session. But because of public outcry, the plea of the accused that he may not get fair trial at Kolhapur was accepted and the case was transferred to the file of Sessions Judge, Satara.The prosecutrix, a student of 4th class, had gone for tuition at 8.15 a.m. on September 24, 1986 to a private teacher in the colony where she was living with her parents. After her private tuition which was from 8.15 a.m. to 9.15 a.m. she was coming back to her home and then go to school with other children in a cycle rickshaw hired for the purpose. When the prosecutrix was going on the colony road at the intersection of this road and a bye-lane, which was a secluded spot, the accused caught-hold of her on the pretext that her assistance was required for pulling either the pipe or the wires in the Maruti car which was standing there. The girl was pushed inside the car. At that time she was wearing a midi-frock and a nicker. The accused pulled down her nicker and laid her on the seat in the car. She did try to resist by saying that she should be allowed to go and that she would be late in reaching home. The accused then opened the zip of his pant and started pressing his penis on her private part. When the girl cried that she would be late in reaching home, the accused said `wait, `one second. According to her, thereafter the accused urinated. She felt wetness on her private part. After the girl was released she came home weeping. She embraced her father and narrated the whole incident to him. The parents of the girl examined her private part and the garments and noticed the sticky substance (semen) on some part of the midifrock as wells on the nicker. There was redness on her private part. The girl described the person who committed such bashful act on her. Shrikant Deshpande, the father of the girl, took her on his scooter and came to the spot where the incident took place but there was no body. They returned home. The mother of the girl gave her bath and she went her school as usual. Deshpande, however, did not stop at that and he made more enquiries. He went to the spot again and there then he was told by Vishakha Kulkarni, a college student, who was living in the vicinity that a Maruti Car of chocolate colour was seen there which bore registration No. MGR-942. Deshpande went to RTO and came to know that the car was registered in name of Parashuram Jadhav. Thereafter he met Meena Bornvankar, Additional S.P. who at the relevant time was holding the charge of S.P. Kolhapur. She sent him to the police station to lodge a formal complaint. Parashuram Jadhav was traced. From his interrogation, it transpired that the Maruti car had been sold by him and further investigation revealed that at the relevant time it was in the possession of the accused.10. At about 7.30 p.m. on the same day Deshande took her daughter to a family Dr. Mrs. Sahastrabuddha for examination as after returning from the school the prosecutrix was complaining of pain in her private part. Dr. Mrs. Sahastrabuddha had been informed in the morning of the incident of rape. She noticed inflammation of labium minus (labia-minora). It appears, as held by the Sessions Judge, that this doctor did not fully examine the prosecutrix for when she was apprised that Deshpande had lodged a report with the Police she advised him to get the girl examined by the Civil Surgeon as it was a medico- legal case. Dr. Gunda was the Medical Officer at Civil Hospital, Kolhapur and he examined the prosecutrix at 9 p.m. on September 24, 1986 itself. This he did on the basis of Poilce `yadi. On examination he found :(i) Labia-minora was inflamed and reddened.(ii) External urethral meants was reddened and swollen.(iii) Hymen was intact.(iv) P.V. examination was not possible. He therefore took the swab from introtus (opening of the vigina) and not from inside the vigina."11. He, however, did not issue the medico-legal certificate on the same day. On October 2, 1986, he issued the certificate and under the head "Chief complaints" he had written : "Complains of burning micturition since afternoon today". Then on the following day he certified that rape was committed with the following report- Committed rape.This conclusion I have drawn after clinical examination of the girl.Report about the incident appeared in the newspaper of the town on the following day, i.e., September 25, 1986 and there was an immediate outcry in the public and `morchas taken out.13. Dr. Hoshing was the Civil Surgeon, Kolhapur, who, it would appear under intense public pressure, formed a panel of three private doctors to again examine the prosecutrix. The panel examined her on September 29, 1986. This panel consisted of Dr. Naganonkar, M.D. Gynaecologist ; Dr. Kudalkar and Mr. Maladkar, both senior doctors and the result of their examination is as underLabia-minora inflamed.(ii) External urethral meatus inflamed.(iii) Fourchette showed abrasions with signs of inflammation.(iv) Infected linear vertichi tear on right para-urethral region, and(v) Tear of hymen at 3 O Clock - position.The midi-frock and the nicker of the prosecutrix were taken into possession in the course of investigation and so also the underwear, T-shirt and pant which the accused was wearing at the time he was taken into custody. The semen stain of Blood Group B were found on the nicker of the prosecutrix. The semen stains of Blood Group B were also found at the spot where the penis of the accused was touching his underwear. The blood group of the accused is of Group B.15. It may be noticed that the Trial Court came heavily on the conduct of Dr. Gunda, the Medical Officer in his not submitting the Medical report at the earliest and also to an extent of Dr. Houshing, the Civil Surgeon. It justified the medical examination of the prosecutrix on 29.9.1986 by panel of private doctors.16. The Trial Court also noticed the following observations in the commentary on Medical Jurisprudenceredness of the labia minors is not indicative of recent sexual activity and it may no more than an indication of a lack of personal hygine, especially in young girls.After examining the evidence and considering the arguments advanced, it came to the conclusion that it was the accused who indulged in sexual intercourse with the prosecutrix and that there was penetration. The Court, therefore, held that the accused was guilty of an offence of having committed rape on the prosecutrix. The Trial Court also found that it was proved that the accused indulged in immoral behaviour with the prosecutrix. It, therefore, convicted the accused and sentenced him as aforesaid.18. The accused appealed to the High Court. It did not agree with the Trial Court that considering the statement of the prosecutrix, examination of the cloths she was wearing and the medical evidence, any offence of rape within the meaning of Section 375 IPC was committed. The High Court noticed the medical examination of the prosecutrix in the following wordsgirl was taken to the family doctor Shashikala Sahastrabudhe (P.W.7) by her father in the evening at 7.30 p.m. who clinically examined her and found her private part has become reddish. In the night of 24th September, 1986 at about 9 p.m., `X was exaimined by Dr. Gunda (P.W.14) - Medical Officer, Civil Hospital. He has also deposed that the case papers are at Ex. 56. He says that on internal examination of `X, both labia-minora were found inflammed (reddened) and external ursthral meatus was reddned and swollen. Hymen was intact.The High Court then referred to the cloths which the prosecutrix was wearing at the time of the crime and it was found that there were two semen stains on her under-garments. The High Court also exmined the cloths of the accused and it found that semen stains found on the under-garment of the prosecutrix and underwear of the accused were of the same blood group `B which was the blood of the accused. One semen stain on the underwear of the girl was about two centimeter diameter near the waste band of her under- garment. From the eximination of the evidence, the High Court also came to the conclusion that it was the accused who indulged in the perpetration of the crime which was committed on September 24, 1986 at about 9.30 a.m. as was the charge laid by the prosecution. On the question, if it was a rape or an offence under Section 354 IPC outraging the modesty of a woman, the High Court referred to the statement of the prosecutrix and that of her father, Deshpande who lodged the FIR. As to what the FIR recorded, we may refer to the following observations of the Highthe FIR, Ex. 26 filed by the father, it is mentioned that the girl informed that the accused slept her on seat and then he slept on her body and began to struggle with her. The accused then pulled away her under-pant and pulled the chain of his pant and took out his male organ and put it on her private part and pressed it. Her private part was then aching. After some time to be passed his urine on her private part and he rubbed his organ to her frock. Then she took her under-pant upwards and came home running. However, the C.A. report, Ex.82, shows that there was no semen found on the frock. The evidence of the girl, her father and the FIR show that the legs of the accused were on the road. The nicker of the girl was only pulled and not removed. This is also clear the from the C.A. report, Ex.82, that her nicker was having two stains of semen. If the nicker would have been removed then there would have been no stains as it is not the case of the prosecution that it was used by the accused for wiping his organ. Her legs were neither separated nor lifted. The evidence shows that he took out his organ and pressed it against her body and within seconds he discharged.The High Court then noticed that the girl was given a bath and she went to school and that she only complained of some pain or burning sensation and that if there was anything serious noticed by the parents on examination, they would not have allowed her to go to school and rather taken her immediately to doctor. When the parents examined her private part, they found only reddishness. Her father took her to the family Doctor Mrs. Sahastrabudde at about 7.30 p.m. on the same day and the doctor only noticed some portion of her private part had become red. No blood was noticed. Then the girl was examined by Dr. Gunda at about 9.00 p.m. on that very day. After examining the report of Dr. Gunda, the High Court concluded that clearly ruled out the actual rape. The High Court disapproved the constitution of the panel of doctors which it held was done under pressure from the public and that Dr. Houshing, civil surgeon succumbed to that pressure. The High Court was critical of the statement of Dr. Nagavkar who was member of the panel. High Court referred to the fact that at the time of examination by the panel of three doctors neither Dr. Sahastrabuddha nor Dr. Gunda was called. Dr. Nagavkar stated that some respectable citizens of Kohalapur had approached him with a request to come for examination of the girl. No reason was recorded as to why it was necessary to re-examine the girl. High Court noticed that Dr. Nagavkar was evasive when he was asked whether he could say that the injuries noticed by the panel were present on September 24, 1986. He however, admitted that if tear was beyond the superficial layer, then it was bound to bleed. As there was no bleeding it was an abrasion involving superficial layer. He admitted that such abrasion was possible due to scratching. He also agreed that rupture of hymen was almost invariably accompanied by bleeding and that bleeding was brisk, immediate and visible. Dr. Nagavkar also agreed with the proposition that cloths put on immediately would have blood stains. High Court commented that Dr. Nagavkar was "required to make various acrobatics just to support the opinion and that while doing so he virtually admitted that there was no rape". The High Court held that there was no rupture of hymen and the girl was virgin. The accused was also examined and there was no injury to his private part. It noticed the statement of Dr. Nagavkar where he agreed with the opinion in Medical Jurisprudence quoted above and further that "exercisation of this type is common in young children as a result of poor local hygiene, scratching due to worm infection". For all these reasons the High Court rejected the conclusion arrived at by the panel of doctors. As to the conduct of Dr. Gunda which we have noticed above, the High Court was of the opinion that it seemed that he was required to bow before public pressure and the internal official pressure. It, therefore, rejected the opinion given by him on 3.10.1986 which certified that the rape was committed. The High Court said that a great disservice had been done to the little girl because of public agitation and which tended to make the future of the girl bleak. The Court, therefore, held that there was no rape as contemplated by Section 375 committed or proved. Then the High Court concluded that in its opinion, the evidence on record would, at the most, show that the accused attempted to commit rape. But then added that "however, as the evidence shows that her nicker was not completely removed, her legs were not separated or lifted and the act was sought to be done standing on the road, we hold that the act of the accused would fall within Section 354 of IPC and that he used criminal force as covered by Section 350 of IPC knowing full well that it would cause injury to the girl. He knew that it would thereby outrage the modesty of the girl. He pulled down her nicker and opened his pant and laid himself on her and discharged. The girl suffered pain. Therefore, we find that the accused guilty under Section 354 of IPC." On the question if an offence under Section 57 of the Bombay Children Act was committed, the High Court held that similarly as in the case of the offence under Section 354 IPC, the offence of the accused would also fall under Section 57 of that Act. The Court, therefore, held that the accused acted indecently and was thus guilty under Section 57 of the Bombay Children Act, 1948.21. Both the Sessions Court and the High Court accepted the prosecution evidence as to how and who committed the crime. They, however, differ on the approach as to what offence was committed. While the trial court holds the accused guilty of an offence under Section 376 IPC, the High Court holds him guilty under Section 354 IPC. Both the courts did not attach any importance to the discrepancies in the statements of the witnesses which were insignificant and did not damage or impair the case of the prosecution. The courts have considered all the relevant circumstances to come to the conclusion that crime was committed and it was the accused who did so. The High Court, however, does say that there was attempt to commit rape which would be an offence falling under Section 376 read with Section 511 IPC. But by some curious reasoning, the High Court proceeds to hold the accused guilty for an offence under Section 354 IPC. We think that the High Court is right in its approach that from the medical evidence and the statement of the prosecutrix and attendant circumstances, it cannot be said that there was penetration and there was, therefore, no sexual intercourse though the ingredients of attempts to commit offence of rape are there. The High Court had set aside the order of the Sessions Court confiscating the Maruti Car in which the offence of attempt to rape was committed as the car was owned by a company of which the accused was a Director. Since there is no appeal against this part of the order, we need not go into the scope and intent of Section 452 Cr.P.C. if the court could order confiscation of the car, it having been "used for the commission" of the offence of rape particularly if the car had been owned by the accused.

Reasoning:
34. In our opinion therefore, the High Court after having come to the conclusion that the accused was guilty of an offence under Section 376/511 of the IPC could not have convicted the accused for an offence under Section 354 IPC. Section 511 IPC provides punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. In this case since the girl was under 12 years of age and the Sessions Judge having found that offence of rape had been committed could not have awarded sentence of 7 years when the law prescribes minimum sentence of rigorous imprisonment for a term not less than 10 years, unless exceptional circumstances existed. However, we find that the State or the complainant did not come up in appeal in the High Court for enhancement of the sentence. Though there was no charge under Section 376 read with Section 511 IPC, under Section 222 of the Code of Criminal Procedure when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged.35. Having come to the conclusion that the accused committed an offence under Section 376/511 IPC, the question arises as to what sentence should be imposed upon him. It was submitted before us that the time when the offence was committed the accused had also a daughter of 8 years of age. If that be so perversion of mind of the accused does not appear to have any limit. It was submitted that a long time had elapsed since the offence was committed and that in terms of the judgment of the High Court the accused deposited Rs. 40,000/- out of which Rs. 25,000/- had already been withdrawn by the father of the prosecutrix. It was submitted that if the Court came to the conclusion that the sentence had to be enhanced then amount of fine could be raised. We, however, do not think so. A heinous crime has been committed and the accused must suffer for his consequences. A rapist not only violates the victim personal integrity but leaves indelible marks on the very soul of the helpless female. The girl of 8 years must have undergone an traumatic experience. The question of imposition of sentence after lapse of 11 years of the offence troubled our mind a great deal. Keeping the objects of the amendment to IPC in view and the law as it exists today, the decisions of this Court, referred to above on the question of sentence, the message is loud and clear that no person who commits or attempts to commit rape shall escape punishment.36. We agree with the High Court that a great harm had been caused to the girl by unnecessary publicity and taking out morcha by the public. Even the case had to be transferred from Kohlapur to Satara under the orders of this Court. There is procedure established by law governing the conduct of trial of a person accused of an offence. A trial by press, electronic media or public agitation is very antithesis of rule of law. It can well lead to miscarriage of justice. A judge has to guard himself against any such pressure and he is to be guided strictly by rules of law. If he finds the person guilty of an offence he is then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law. While imposing sentence of fine and directing payment of whole or certain portion of it to the person aggrieved, the court has also to go into the question of damage caused to the victim and even to her family. As a matter of fact the crime is not only against the victim it is against the whole society as well. Since late, there has been spurt in crimes relating to sexual offences.37. Considering the whole aspect of the matter, we are of the opinion that sentence of five years rigorous imprisonment and fine of Rs. 40,000/- will meet the ends of justice. The fine has already been paid, out of that Rs. 25,000/- has been withdrawn by the father of the girl as per direction of the High Court which we uphold.