Non-disclosure of minute details of sexual offence does not absolve the accused of the offence: Bombay High Court

 on 16 07 2021 on 17 07 30 Apeal 725 2019.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 725 OF 2019 Farukh Abdul Raheman Shaikh Age 31 yrs Occ. Nil R o. Room No.1 Patel Chawl Indira Nagar Rani Sati Marg MaladMumbai 400 097...AppellantVersus1. The State of Maharashtra 2. XXXXXXXX ...RespondentsMr. Aniket Vagal for the Appellant Mr. S. V. Gavand A.P.P a w Mr. P. H. Gaikwad Patil A.P.P for theRespondent No.1State Ms. Devyani Kulkarni appointed Advocate for the Respondent No. 2 CORAM : REVATI MOHITE DERE J.FRIDAY 18 th JUNE 2021 JUDGMENT :1By this appeal the appellant has impugned the judgment andorder dated 25th April 2019 passed by the learned Additional Sessions SQ Pathan 1 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docJudge Borivali Division Dindoshi Goregaon Mumbai in Special CaseNo.116 convicting and sentencing him as under: for the offence punishable under Section 363 of the Indian PenalCode to suffer rigorous imprisonment for 5 years and to pay a fineof Rs.3 000 in default of payment of fine to suffer simpleimprisonment for 6 months for the offence punishable under Section 366 of the Indian PenalCode to suffer rigorous imprisonment for 7 years and to pay a fineof Rs.3 000 in default of payment of fine to suffer simpleimprisonment for 6 months for the offence punishable under Section 376 of the Indian PenalCode to suffer rigorous imprisonment for 10 years and to pay a fineof Rs.3 000 in default of payment of fine to suffer simpleimprisonment for 6 months. All the aforesaid sentences were directed to run concurrently. In addition to the aforesaid sentences and fine PW 2wasawarded compensation of Rs. 30 000 under Section 357 of the CriminalProcedure Code r w Victim Compensation Schemeand as such the matter was referred to the District LegalServices Authority Mumbai for compliance. SQ Pathan 2 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc2 The prosecution case in brief is as under : According to PW 1 complainant mother of the prosecutrix(PW 2) the incident took place on 8th January 2016. PW 1 has alleged thatas her daughteraged 21 years and intellectually challenged did not return home she and her family went in search of her and that atabout 10:00 p.m they saw the prosecutrix returning home. When theprosecutrix was questioned as to why she was late she informed that onepersonhad taken her to a fair on his bike and from there in thebushes in Ghosh compound where she was undressed. She disclosed thatthe said person had inserted his finger in her private part. The prosecutrixpointed out to the appellant who was answering the nature s call close by.When the appellant tried to flee from the spot on being pointed out he wasapprehended by the people and assaulted. The police were called andthereafter PW 1lodged an FIR with theDindoshi Police Station Mumbai which was registered vide C.R. No.19 2016 for the offences stated aforesaid. During the course of investigation the statement of theprosecutrix was recorded under Section 164 of the Criminal ProcedureCode and the prosecutrix was sent for medical examination. Aftercompletion of investigation charge sheet was filed as against the appellant SQ Pathan 3 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docin the Court of the learned Metropolitan Magistrate 67th Court Borivali Mumbai. The case was committed to the Court of Sessions since theoffence under Section 376 was exclusively triable by the Court of Sessions. The learned Sessions Judge framed charge as against theappellant to which he pleaded not guilty and claimed to be tried. Theprosecution in support of its case examined 13 witnesses i.e. PW 1 complainant and mother of the prosecutrix who lodged the FIRPW 2 prosecutrix PW 3 PSI Deepak Golatkar who received awireless call about the incident and visited the spot and took the accused tothe police station PW 4 Mrs. Meena neighbour of PW 2 PW 5 Mr.Subhash neighbour of PW 2 who called the police by dialing “100” andgave information of the incident to the police PW 6 Mrs. Kalpana whoaccompanied the complainant and the prosecutrix to the police station PW 7 Ms. PallaviPW 8 Dr. Poornima Medical Officer whoexamined the prosecutrix and prepared the medical reportPW 9 PSI Mr. Yogesh Patilwho recorded the statement of PW 1and registered the FIR and arrested the accused under arrest panchanama(Exhibit 26) PW 10 Mr. Nobendu Roy who sold his motorcycle to theappellant which was used in the commission of the offence PW 11 APISachin Suryawanshi the Investigating Officer who visited the spot and SQ Pathan 4 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docprepared the spot panchanama collected samples of soil took themotorcycle of the appellant in custody seized the clothes of the victim andthe appellant recorded statements of witnesses sent the prosecutrix and theappellant for medical examination sent the samples to the ChemicalAnalyser and after investigation submitted charge sheet PW 12 Mohd.Hussain Choudhary panch to the seizure panchanama of the appellant sclothesand PW 13 Mrs. Sanchita More panch to the seizurepanchanama of the clothes of the prosecutrixin para 1. The defence of the appellant was that of denial and falseimplication. After recording of the 313 statement of the appellant and afterhearing the parties learned Sessions Judge convicted the appellant as statedaforesaid. 3 Mr. Aniket Vagal learned counsel for the appellant does notpress the appellant’s conviction recorded under Sections 363 and 366 of theIndian Penal Code. He submits that as far as the offence under Section 376is concerned the act of the appellant would not fall within the purview ofSection 375 and that at the highest taking into consideration the evidenceon record the act of the appellant would be one under Section 354 of theIndian Penal Code. SQ Pathan 5 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc4 Ms. Devyani Kulkarni appearing for the respondent No. 2vehemently opposes the submissions advanced by the learned counsel forthe appellant. She submits that the evidence of the prosecutrix is dulycorroborated by the medical case papers and that the evidence of PW 8 Dr.Poornima would clearly show that the prosecutrix was sexually assaultedand as such the offence would be one under Section 376. 5Mr. Gavand learned A.P.P reiterated the submissions advancedby the learned counsel for the respondent No.2. 6Perused the evidence and the relevant documents with theassistance of the learned counsel for the parties. As stated aforesaid theappellant is not challenging his conviction under Sections 363 and 366 ofthe Indian Penal Code and hence it is not necessary to delve into theevidence pertaining to the same. 7As far as the submission of the learned counsel for theappellant as to whether the offence would be one under Section 376 orwould be a lesser offence the relevant witnesses which will have to beconsidered are PW 1 complainant PW 2 the prosecutrix PW 8 Dr.Poornima and PW 6 Kalpana Gholap as well as the CA and DNA reports. SQ Pathan 6 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc8 The fact that PW 2 prosecutrix aged 21 years wasintellectually challenged is not in dispute. PW 1 complainant and motherof the prosecutrix has stated that on the date of the incident i.e. 8th January2016 when she returned home she did not find her daughtershe disclosed that one boy had taken her on bike to Ghoshcompound and had sexually assaulted her. When asked to show the boy she pointed out at the boypursuant to which people held himand called the police by dialing 100. She has further stated that the policearrived on the spot and took all of themto thepolice station. A perusal of the cross examination reveals that instead ofgiving any suggestions to the said witness putting up the appellant sdefence the witness was put questions resulting in the witness reiteratingher evidence that has come in her examination in chief and infact more. SQ Pathan 7 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docPara 8 of PW 1 s cross is reproduced hereunder :“8. My daughter is mentally ill doctor told us that jar ti10 varshachi zali tar ticha mendupaach varshachaasel. I can understand whatever she talk. I can understandher language. When my daughter meet me on the road Isaw her position. Her hair was scattered. There was bloodstains on her clothes to back side. I gave her slap wherewere you. She told me not to slap her. She told me thatmala ek mulga gadi varti gheun jangala madhe gela animaze kapade kadhale to mazya angavar aala ani chatidabali ani tyane tyache ling aat madhe ghatle me nakonako bolat hoti.” Cross examination of a witness is to elicit truth or discredit thewitness. Infact having regard to the cross examination of PW 1 there isnothing in the said cross examination to disbelieve her testimony. 9 PW 2 prosecutrix intellectually challenged and the same is notseriously disputed. She has stated that she had been to Kalimata Mandirand that one person told her “yete ka Mela baghayla” to which she replied“mi nahi yenar Mummy marnar”. She has further stated that the appellantheld her hand and took her to the Mela and thereafter in the bushes disrobed himself as well as the prosecutrix and slept on her. She has statedthat when she returned home she was holding her underwear in her hand. SQ Pathan 8 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docThe prosecutrix has identified the appellant during trial as the same personwho committed sexual assault on her. There is hardly any cross examination of this witness. Thesuggestion that she was falsely deposing has been denied by theprosecutrix. There is also no cross to the evidence of the prosecutrix thather statement was recorded by the Magistrate under Section 164 of theCriminal Procedure Code. The disclosure made by the prosecutrix withrespect to sexual assault on her is duly corroborated by PW 6 Kalpana. 10 According to the learned counsel for the appellant since theprosecutrix had not given the details of the sexual assault in her evidence the offence would not be one under Section 376 of the Indian Penal Codebut would be a lesser offence. 11A perusal of the evidence of PW 8 Dr. Poornima reveals thatthe prosecutrix had given history of sexual assault by the appellant on 8thJanuary 2016 between 7:00 p.m to 11:00 p.m. The history given by theprosecutrix to the doctor and as revealed in the case papersisas under : SQ Pathan 9 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc“Sexual assault by unknown person named FarukhAbdul Rehman Shaikh aged 27 yrs on 8 1 16 at between 7pm 11 pm. Victim has changed clothes but not taken bathsince incidence. Victim gives H o penovaginal sexualintercourse. No h o physical assault. Being mentallychallenged victim is unable to narrate the above incidenceproperly.” The case papers further reveal that there were injuries presentto the hymen and the position of tears was 4 8 O’Clock.12 It appears from the evidence on record that the appellant hadinserted his finger in the prosecutrix s private part which act is squarelycovered under the definition of the offence `rape as defined under Section375 of the Indian Penal Code. The medical papers of the prosecutrix revealthat there was injury to the hymen and the position of tear was 4 8 O Clock.The fact that the appellant had inserted his finger is also duly corroboratedby the DNA report (Exhibit 40). The result of the analysis shows that oneof the mixed DNA profile obtained from Exhibit 1 nail clippings of righthand of appellant matched with control DNA profile obtained from Exhibit2 nail clippings of left hand and Exhibit 4 urethral swab of appellant.Another DNA profile from the mixed DNA profile obtained from Exhibit 1nail clippings of right hand of appellant matched with control DNA profile SQ Pathan 10 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.docobtained from Exhibit 7 nail clippings of right hand and Exhibit 8 nailclippings of left hand of the prosecutrix in F.S.L. ML. Case No. DNA 484 16. Similarly the soil found on the clothes of appellant andprosecutrix matched the earth collected from the spot where the sexualassault took place. The same is evident from the Forensic ScienceLaboratory report (Exhibit 41). The said evidence gives credence to theprosecutrix s case that she was sexually assaulted by the appellant. It hardlymatters in the facts and having regard to the evidence that there was nopenovaginal intercourse. Fingering of the vagina also constitutes an offenceunder the law. 13 What cannot be lost sight of is that the appellant wasapprehended immediately on the very day soon after the incident the factthat the FIR was also lodged on the very same day and the prosecutrix wastaken for medical examination on 9th January 2016 within 24 hours and wasexamined by the doctor. What also cannot be lost sight of is the fact thatthe prosecutrix was intellectually challenged. In the facts having regard towhat is stated aforesaid i.e. the evidence on record merely because theprosecutrix has not given minute details of sexual assault on her would notabsolve the appellant of the offence under Section 376. SQ Pathan 11 12 on 16 07 2021 on 17 07 30 Apeal 725 2019.doc14Considering the material on record the conviction of theappellant under Section 376 of the Indian Penal Code cannot be said to beunwarranted. Accordingly the judgment and order of conviction andsentence is upheld. The Appeal is dismissed. REVATI MOHITE DERE J. SQ Pathan 12 12 

Summary: When a victim of a sexual offence does not give out every minute detail regarding the offence, that does not imply that the offence never occurred and this certainly does not mean that the accused is not guilty of the offence under section 376 of the IPC. This was decreed by Hon’ble Justice Revati Mohite Dere in the case of Farukh Abdul Raheman Shaikh Vs. The State of Maharashtra [CRIMINAL APPEAL NO. 725 OF 2019] on the 18th of June 2021 before the Hon’ble High Court at Bombay. The brief facts of the case are, on 8th January 2016, the prosecutrix who is intellectually challenged and aged 21, did not return home. her family went in search of her and that at about 10:00 p.m., they saw the prosecutrix returning home. When the prosecutrix was questioned as to why she was late, she informed that one person (appellant) had taken her to a fair on his bike and from there, in the bushes in Ghosh compound, where she was undressed. She disclosed that the said person had inserted his finger in her private part. The prosecutrix pointed out to the appellant who was answering the nature’s call, close-by. When the appellant tried to flee from the spot on being pointed out, he was apprehended by the people and assaulted. The police were called and thereafter PW 1 (mother of the prosecutrix) lodged an FIR with the Dindoshi Police Station, Mumbai, which was registered vide C.R. No. 19/2016 for the offences under section 363, section 366 and section 376. On April 25th 2019, the learned additional sessions judge issued an order convicting and sentencing the appellant under the above-mentioned sections. Aggrieved by this, the present appeal has been filed by the appellant challenging his conviction under section 376. The counsel for the appellant submits that the appellant does not press the appellant’s conviction recorded under Sections 363 and 366 of the Indian Penal Code. According to the learned counsel for the appellant, since the prosecutrix had not given the details of the sexual assault in her evidence, the offence would not be one under Section 376 of the Indian Penal Code but would be a lesser offence. The defence of the appellant was that of denial and false implication. The counsel for the respondent vehemently opposes the submissions advanced by the learned counsel for the appellant. She submits that the evidence of the prosecutrix is duly corroborated by the medical case papers and the evidence by the doctor would clearly show that the prosecutrix was sexually assaulted and as such the offence would be one under Section 376. The learned judge heard the submissions by both the parties. To analyze as to whether the offence would be one under Section 376 or would be a lesser offence, the learned judge observed, that the prosecutrix was intellectually disabled. It was also observed that the prosecutrix has identified the appellant during trial as the same person who committed sexual assault on her. It was also observed from the evidence on record that the appellant had inserted his finger in the prosecutrix’s private part, which act is squarely covered under the definition of the offence `rape’, as defined under Section 375 of the Indian Penal Code. The said evidence gives credence to the prosecutrix’s case that she was sexually assaulted by the appellant. It hardly matters in the facts, and having regard to the evidence, that there was no penovaginal intercourse. Fingering of the vagina also constitutes an offence under the law.  The learned court dismissed the petition with the above-mentioned observations and decreed, “What cannot be lost sight of, is that the appellant was apprehended immediately on the very day, soon after the incident; the fact that the FIR was also lodged on the very same day and the prosecutrix was taken for medical examination on 9th January 2016 within 24 hours and was examined by the doctor. What also cannot be lost sight of, is the fact that the prosecutrix was intellectually challenged. In the facts, having regard to what is stated aforesaid i.e., the evidence on record, merely because the prosecutrix has not given minute details of sexual assault on her, would not absolve the appellant of the offence under Section 376.”