Sachin Shivaji Borkar vs State of Maharashtra

Sadhana S. Jadhav, J.—Appellant herein is convicted for the offences punishable u/s 376(2)(f) of Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and fine of Rs. 15,000/- in default to suffer rigorous imprisonment for 6 months. He is also convicted for offence punishable u/s 506(II) of Indian Penal Code and sentenced to suffer rigorous imprisonment for 2 years in Sessions Case No. 357/2008 by Additional Sessions Judge, Greater Mumbai vide Judgment and Order dated 15/05/2009. Being aggrieved by the said Judgment and Order, appellant has filed the said appeal. Such of the facts which are necessary for the decision of this appeal are as follows.

On 24/12/2007, Shankar Shinde lodged a report at Versova Police Station alleging therein that he is the father of the victim girl who is studying in Municipal Corporation School in 3rd standard. On 22/12/2007, he had been for work at 6.00 am. He returned from his work at about 5.00 pm. At that time, victim girl was sleeping in the house. His younger daughter Sunita informed him that the salwar on the person of victim was drenched with blood. He inquired with his daughter (victim) about the same. She informed that Sachin (Present appellant) who lives in the neighbourhood has ravished her. She further informed her father that at about 12.00 noon, she had been to watch T.V. to his house. He was alone at home. He closed the door from inside, denuded her of her wearing apparel and had ravished her. He had also asked her to maintain silence. His daughter (victim) was taken to the hospital. She was examined by Dr. Ganesh Shinde. He referred her to Amboli Hospital, Andheri. He had discussed the matter with his relatives and thereafter lodged the F.I.R. On the basis of the said report, crime no. 289/07 was registered at Versova Police Station against present appellant for offence punishable u/s 376 & 342 of Indian Penal Code. After completion of investigation, charge-sheet was filed on 12/03/2008. The case was committed to the Court of Sessions and registered as Sessions Case No. 357/2008. The prosecution examined 9 witnesses to bring home the guilt of the accused.

P.W. 1 is the victim herself. She has deposed before the Court that she attends the school at Sat Bungalow. The timings of her school are from 1.00 pm to 5.00 pm. She has identified the accused in the Court and has deposed that he resides near her house at Sat Bungalow and that he has television set in his house. She has further deposed that she does not attend the school on Saturday. The day of incident was Saturday. At noon, she had been to the house of Sachin for watching television. He was alone at home. He had giver her one packet of biscuits and locked the door from inside. Thereafter, he had gagged her mouth with a piece of cloth and denuded her of her clothes. Thereafter, he had ravished her. She has further stated that he had dressed her and asked her to go home. She had informed her parents when they came back from their work. She had not informed her sister about the said incident. Her sister had inquired with her about the blood stains on her clothes. She has identified her clothes which she was wearing at the time of incident. It is elicited in the cross-examination that the house of the accused is on the way leading to the seashore. She goes to the seashore for playing alongwith other children. It is further admitted that the hut of the accused is covered by plastic paper and goni bags. That one can see what is happening in the house of Sachin from the road. There is another hut in front of his house and one hut near to his house which belongs to a carpenter namely Gangaram Mistri. She has specifically admitted in the cross-examination that on Saturday, she does not attend school since it is half day school. Her mother does not send her school on Saturday. She has further admitted that on that day, in the morning, she had gone to play. She was playing alone. She returned home at about 1.00 pm and at that time, she was wearing her blue school uniform. She has also admitted that her father had taken her initially to private hospital and thereafter, they had returned home. The victim has further admitted that while she was returning home after playing, she stood before the house of Sachin for watching T.V. That there is a pit in front of the house of Sachin. Rest of the suggestions are denied.

P.W. 2 Shankar Shinde is the father of victim. He has deposed before the Court inconsonance with the allegations made in the F.I.R. In the examination-in-chief, he has stated that when he returned home, his younger daughter Sunita informed him about the blood stains on the clothes of the elder daughter (victim). He had inquired with her. However, at that time, she had not disclosed anything to him. Her clothes were drenched with blood. She had already changed her clothes. The mother of the victim returned horn at 5.30 pm. She had also inquired with victim. Thereafter, they had taken her to the hospital. P.W. 2 has further stated that victim girl had informed the doctor about the incident, but, at that time, she had not disclosed the name of the boy who had committed the act. Doctor had referred her for X-ray. She was taken to Amboli hospital. Doctor had informed P.W. 2 that medical fees would be 25,000/- to 30,000/- as it was a rape case. Since, he could not afford the said professional fees, he had taken her to the police station. The police had taken her to Cooper Hospital and from there, she was taken to Oshivara Police Station. P.W. 2 has identified the accused in the Court and has stated that his children used to go to the house of the accused for watching television.

The Court had posed question to P.W. 2 as to how he had got knowledge that it was the accused who had committed the said act. The reply given by P.W. 2 is as follows.

When I went to lodge complaint, that time, I was not knowing the name and address of the accused. Police brought 8-10 boys from our locality and have shown them to my daughter. My daughter identified Sachin and therefore, I lodged complaint against him.

He has proved the contents of the complaint/report which is marked at Exhibit 10. It is elicited in the cross-examination that P.W. 2 was in the police station for the whole night. He could not depose in respect of the time when his statement was recorded by police. It is further admitted that one can hear shouts raised in the house of the appellant, however, he has further admitted that one cannot see from outside what is happening in the house of appellant. Suggestions put to P.W. 2 that he had falsely implicated accused since the father of the accused had not given him a room on rent.

P.W. 3 Dr. Vinod Mahale has deposed before the Court that he examined the victim girl when she was admitted in the hospital from 23/12/2007. She was discharged on 04/01/2008. The doctor has deposed before the Court that the mother and daughter had given him history of sexual assault by an unknown person in the evening around 4.00 pm on 22/12/2007. The victim had given the history of pain in abdomen, bleeding from vagina after the act. History of dizziness after the act. On local examination, he had noticed that hymen was ruptured. He had collected and labelled the swabs of the victim girl. He had placed on record the medical papers of the victim girl along with 2 X-ray plates. He has not ruled out the possibility of sexual abuses. In the cross-examination, however, he has opined that hymen can be ruptured by playing, cycling and by falling down. The medical case papers are at Exhibit 12.

P.W. 4 Mohd. Bhanu Maqbool Huque is an electrician by profession. On 23/12/2007 there was a request to act as a panch and he had graciously accepted the same. He is panch for seizure panchanama of articles such as bed-sheet, wearing apparel, one towel seized from house of the accused. He has proved the contents of seizure panchanama which is at Exhibit 14. He has admitted the presence of second panch.

P.W. 5 Oniel Gonsalves has also acted as panch in the present case. He is a panch for recovery of clothes of the victim. He has identified the clothes in the Court.

P.W. 6 Smt. Rajani Salunkhe runs a canteen. On 23/12/2007, she had been to Versova Police Station for her personal work. She was requested by the police to act as panch for the recovery of the clothes of the victim girl. According to her, clothes were soaked with blood and the Salwaar was torn. Her testimony remained unshattered.

P.W. 7 Ganesh Shinde is doctor to whom the victim was taken at the first instance. He has deposed before the Court that he examined the victim girl, she was in agony. He had given her first aid and then referred her to Cooper Hospital as it was a medico legal case. The mother of the victim girl had accompanied her. It is elicited in the cross-examination that on earlier occasion the girl was taken to the wife of P.W. 7. His wife happens to be gynaecologist. However, the patient was referred back to him. The witness has referred to first page of the certificate dated 21/12/2007 and has demonstrated before the Court that in the said certificate, no abnormality was noted by the doctor and in fact, the tests were made to rule out any foreign body or intra abdominal hemorrhage.

There is ambiguity in the name of the victim which is seriously challenged by the learned counsel for the appellant. The witness has deposed that the doctor has stated that the wife is also referred as Veena Shinde.

Learned counsel for the appellant has placed reliance upon Exhibit 20 collectively which are medical certificates of the victim. She was taken to Vital Imaging Centre. The certificate reveals that it was issued on the basis of digital X-ray of the abdomen. There was no evidence of free air under the domes of diaphragm. There was no evidence of obvious foreign body, similarly, there was no evidence of horizontal fluid and no other significant abnormality was noted.

P.W. 8 Shri. Sadanand Rane was attached as P.S.I. at Versova Police Station. He has deposed before the Court that clothes which were seized at the behest of the victim were drenched with blood. In the cross-examination, it is specifically admitted by the witness that at the time of registration of F.I.R., the victim girl was in the hospital. That he had not recorded her statement when he saw her for the first time.

P.W. 9 Smt. Arundhati Rane was attached as Police Inspector to Versova Police Station. According to her at about 12.20 in the midnight, P.S.I. Rane had come to her cabin and had informed her about rape on the girl. Girl was along with parents and maternal uncle. According to her, father of the girl had told her about the rape committed by the neighbouring boy. She had seen victim personally and was assured that she was subjected to sexual assault. It is admitted in the cross-examination that P.S.I. Rane had not informed P.W. 9 that the victim girl had given the history of rape by unknown person, however, in the very next breath, she has admitted that the girl had already told him about the name of accused Sachin when she had inquired with her in the police station. However, her signature does not find place on the papers. Victim girl had informed the police that she had not gone to school.

Learned counsel for the appellant has raised several objections to the prosecution case and has submitted that the prosecution has not established the guilt of the accused beyond reasonable doubt. According to the learned counsel, appellant has been falsely implicated in the present heinous crime as his father has not given a room on rent to the father of the victim. The contentions raised by the learned counsel for the appellant are as follows.

(i) The victim has admitted that on the date of incident, she had not been to school and yet she was wearing the school uniform at the time of incident.

(ii) That the prosecution has placed on record the school leaving certificate which shows that she was studying in Rural School prior to visiting Bombay.

(iii) Prosecution has not established that the present appellant was living in the neighbourhood of the victim.

(iv) That the appellant had television set in his house.

(v) That the victim had visited the house of the appellant at the time of incident.

(vi) That the shouts raised in the house of accused/appellant can be heard on the road.

(vii) That the victim has stated that the house covered by plastic sheets and she has further elaborated that one can see from the road, whatever is happening in the house of the accused.

(viii) That the victim was not knowing the appellant and therefore she had not disclosed the name of the appellant to her father.

(ix) Learned counsel has drawn the attention of this Court to the answer given by P.W. 2 Shankar Shinde to the Court question wherein, the father of the victim has categorically stated that initially the victim had maintained silence. That he did not know identity of the accused before lodging F.I.R.

(x) That there is no Test Identification Parade.

(xi) In the eventuality that identity of the accused was known, there was no necessity for the prosecution to bring ten boys to the hospital. Learned counsel submits that this type of identification has been deprecated by the Hon''ble Apex Court in several cases.

(xii) The answer given by the accused in his statement u/s 313 of Code of Criminal Procedure, 1973 to the question no. 46 that there was a dispute between the parents of the victim and his mother regarding room on rent. Therefore, she had identified him.

(xiii) Learned counsel has drawn the attention of this Court to the admission by doctor that hymen could be ruptured due to fall or any other reason. According to the counsel, there was a pit in front of the house of accused and in all probabilities, the victim must have fallen in the said pit and sustained the said injury.

(xiv) Learned counsel submits that the answer given by the accused to question no. 46 & 96 ought to have been considered by the Sessions Court. According to him the said answers would reflect the reason for implicating the accused in a false and heinous crime.

It is clear that in the eventuality that P.W. 2 had to falsely implicate the present appellant, he would not have named of the accused when he had been to lodge the F.I.R. and that his daughter had informed the doctor about the name of the accused. It is true that there are lacunas in the investigation. However, the accused cannot be entitled to any benefit of doubt for the lacunas in the investigation. The victim was a minor girl when the incident had occurred. Her testimony reflects her innocence. In the case u/s 376 of Indian Penal Code, implicit reliance can be placed on the incorporated testimony of the prosecutrix/victim. No sound reasons are assigned for false implication. It cannot be said that parents would expose the very womanhood of their daughter for a trivial dispute with the mother of the accused.

In any case, in the statement u/s 313, accused has not stated as to when the room was demanded and his parents had denied the same. There is no proximity with the time of incident. It is true that there is no Test Identification Parade and that when the victim disclosed the name of the accused as Sachin, the police had brought 7 to 8 young boys before her and she had specifically identified the present appellant. In any case, the evidence of Test Identification Parade is a corroborative piece of evidence. This Court, cannot be oblivious of the fact that the victim has identified the accused in the Court. Identification in the Court is a substantive evidence and hence, there is no reason to disbelieve the sterling testimony of the victim.

According to learned counsel for the appellant that the victim had been tutored by her father. However, she has denied the suggestion of the defence that she has deposing falsely at the instance of her father. In view of the above mentioned reasons, it can be safely held that the prosecution has established the guilt of the accused beyond reasonable doubt and hence, no interference is warranted in respect of the conviction of the appellant for the offence punishable u/s 376(2)(f) of Indian Penal Code. Appellant was arrested on 23/12/2007 and was enlarged on bail on 07/04/2008. He was taken into custody on 15/05/2009 and has been in custody since then. Appellant has undergone sentence of 5 years and 6 months. For the above mentioned reasons, the sentence imposed upon the appellant deserves to be modified. Hence, following order.

ORDER

(i) Conviction of the appellant for offence punishable u/s 376(2)(f) of Indian Penal Code is upheld. However, sentence imposed upon the appellant is modified as follows.

(ii) Appellant is sentenced to rigorous imprisonment for seven years. Amount of fine is enhanced to Rs. 25,000/- in default, appellant to undergo further imprisonment for one year.

(iii) Upon recovery of the said amount, amount of Rs. 22,000/- be paid to the victim girl as a compensation.

Appeal stands disposed of.