Shakeel Mastan Pathan vs The State of Maharashtra

M.T. Joshi, J—The present appellant was convicted by the learned Additional Sessions Judge, Aurangabad in Sessions Case No. 68 of 2011, for the offences punishable under section 376(2)(f), 377 and 506 of the I.P. Code. He was sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/- for the offence punishable under section 376(2)(f) of the I.P. Code. He was further sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs. 5000/- for the offence punishable under section 377 of the I.P. Code. Lastly, he was sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs. 1000/- for the offence punishable under section 506 of the I.P. Code. All the sentences were directed to run concurrently. The appellant was, however, acquitted of the offence punishable under section 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Aggrieved by the conviction and sentence, as detailed supra, the present appeal is preferred by the original accused.

The prosecution case, in short, is as under:-

That, an eight years old victim girl resides with her mother PW1, the informant at the same village of the present appellant. They belong to Bhill Tadvi caste. Since the informant is deserted by her husband, she resides with her mother alongwith the victim and one another minor daughter.

On Saturday, the 6th November, 2010, at about 11.00 a.m., the informant went to the field of Vinayak Bambarde for plucking chillies. At that time, the victim was with her. PW4 Kasabai i.e. wife of the land owner was also carrying the same work in the field. The victim -an eight years old girl, while playing in the field, went nearby kavath tree (wood apple/elephant apple tree) in the nearby streamlet. As the sounds of her weeping were heard, the informant mother alongwith PW4 Kasabai rushed towards the victim girl. In the meantime, the present appellant was seen running away from that place from the side of the opposite bank of the streamlet. The informant -mother as well as PW4 Kasabai made enquiry with the victim girl, whereupon, she started weeping and told that the appellant enticed her to come in the streamlet on the promise that he would pluck the kavath fruit (wood apple) from the tree for her. However, when she went in the streamlet, at that time, the appellant gagged her mouth, gave one slap and threatened that the victim girl should keep her mouth shut. Thereafter, he made her to lie on the ground and opened his trouser. He also took out her salwar i.e. trouser. Thereafter, he sat on her person on her private part as well as on her anus, by lifting her both legs upward, he inserted his private part (xkaM) and thereupon, started pushing the same backward and forward. Blood started oozing from the place and therefore, she started crying. At that time, the appellant threatened her.

Upon narrating this incident, the victim girl became unconscious. Thereupon, she was taken to the village and to one Ganesh doctor. There was bleeding from near her anus. Due to the threat given by the appellant, the informant mother did not talk to anybody and on the next day i.e. on 7th November, 2010, she told about the facts to the police patil of the village and reached to the Police Station, Sillod and narrated the incident. The FIR came to be recorded and the crime was registered on 7th November, 2010 at about 3.15 p.m.

PW9 -Sub-Divisional Police Officer Vishwanath Jatale had taken over the investigation with the permission of the Superintendent of Police. The victim was already referred to the Govt. Medical College Hospital, Aurangabad. Her medical examination report at Exhibit-26, issued by PW3 Dr. Sanjay Pagare, was collected which inter-alia showed tear to the perianal skin. On the very same day, the appellant was arrested and he was also referred for the medical examination on 18th November, 2010. On 18th November, 2010, the Investigating Officer visited the spot of occurrence and recorded the panchanama of spot of occurrence at Exhibit-32 in presence of PW5 Samadhan Jadhav. Thereafter, the statements of witnesses were recorded. Medical sample was sent to the Regional Forensic Laboratory. The clothes of the appellant as well as the victim were seized on 13th November, 2010 under the respective panchanamas at Exh-37 and Exh-49. The relevant clothes were sent for chemical analysis. The caste certificate regarding the victim was collected. Thereafter, he recorded the statement of the victim girl on 08.12.2010 in question and answer form and the chargesheet came to be filed.

The defence of the appellant is that of denial. According to him, while the victim might have suffered injury to her perianal region due to falling upon thorns of a kavath (wood apple) tree on the instigation of the police patil of the village and due to the political rivalry, the appellant was involved in the crime falsely.

Before the learned Sessions Judge, in all nine witnesses were examined. While PW1 is the informant and mother of PW2, who is the victim, PW4 Kasabai is the wife of land-owner of the field. PW3 Dr. Sanjay Pagare has examined the victim. The rest of the witnesses are relevant panch witnesses who have turned hostile to the prosecution case. As already narrated, PW9 - Sub Divisional Police Officer Vishwanath Jatale has carried the investigation.

The case papers proved at Exhibit-25 revealed that the alleged history of the incident was narrated by the informant i.e. mother of the victim, giving the details of the name of the appellant, etc. The Medical Officer found the hymen as intact. There was no injury over the genital area. However, fresh tear on perianal skin (abrasion) at 7 O''clock position was found which was admeasuring 1 cm x 0.25 cm. In view of the history given by the mother of the victim, the Medical Officer opined that the history and clinical findings are suggestive of attempt of sexual intercourse.

The learned Sessions Judge found that the prosecution case is proved beyond reasonable doubt except the offence punishable under the relevant sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Therefore, the conviction and sentence, as detailed supra, came to be recorded.

Mr. A.D. Ostwal, learned counsel, holding for Mr. K.D. Jadhav, learned counsel for the appellant, submitted that the learned Sessions Judge did not take into consideration the following facts :-

(I) That, though the police station is only 7 kms. away from the place of occurrence, there is delay of 26 hours in filing the FIR.

(II) The Medical Officer''s deposition would show that not the victim but her mother gave the history. His cross-examination would show that had the history been not given, then the opinion would have been otherwise. Even the period of thirty hours has lapsed in medically examining the victim from the time of the incident.

(III) The history as well as the other oral evidence would suggest that only an attempt to insert the penis was there.

Mr. Ostwal submitted that there is variance in the prosecution evidence as to whether the penis was inserted in the vagina or the anus or at all the penis was inserted in the same.

(IV) The evidence on record would clearly show that PW1 -the mother of the victim was not at all present in the field. Besides PW4 Kasabai, according to the prosecution evidence itself, many more witnesses were available. While the oral evidence would show that the incident had occurred at 12.00 in the noon, the FIR as well as charge read over to the appellant is to the effect that the incident has occurred between 1.00 p.m. to 1.30 p.m.

(V) There are material contradictions between the version of the victim and her mother and PW4 Kasabai as to in what manner the incident has occurred. According to the prosecution evidence, the victim came with salwar in her hand while rushing towards the mother and other woman. In the circumstances, if the salwar was removed, the positive report of the chemical analyser regarding the blood does not conform with the said story.

(VI) The mother of the victim, admittedly, works as maid-servant in a Urdu Madarsa between 1.00 p.m. to 6.00 p.m. Therefore, she could not have remained present in the field either at 12.00 noon or at 1.45 p.m.

(VII) Dr. Ganesh is not examined. The police patil is related to the mother of the victim. The clothes were seized after one week from the date of the incident. Above all, the statement of the victim was admittedly recorded after one month of the incident. Contradictory explanations for belated FIR are given.

(VIII) The learned Sessions Judge has not properly examined the victim and without administering any oath, her statement was recorded though the victim was smart enough to make a detailed statement in the court.

(IX) It was further submitted by Mr. Ostwal that the grandmother of the victim though, according to the prosecution was in the field, is not examined. Further, the defence that the victim was on the tree and the appellant was below the tree of the kavath (wood apple), which admittedly had thorns, is proved by the cross-examination of the victim. Further, the prosecution evidence would show that the fruits of kavath (wood apple) were lying on the ground and therefore, belied the prosecution case that the appellant enticed the minor girl -victim, that he was plucking the fruit from the tree for her and therefore, she entered the streamlet.

(X) Mr. Ostwal further submitted that while the incident is said to have occurred on one side of the streamlet, the appellant was seen running away from the other side of the streamlet and the evidence on record would show that it is not possible to cross the streamlet.

In the circumstances, he submitted that the learned Sessions Judge ought to have extended benefit of doubt to the appellant and ought to have acquitted the present appellant.

On the other hand, Mr. R.P. Phatke, learned A.P.P. submits that there is no delay in filing of the FIR. Anyway, in such case, delay of 26 hours cannot be called as delay, as according to the informant mother, due to the threats given by the appellant, she kept quiet during this period which explains the delay caused in filing the FIR. He further submitted that all the independent witnesses are not required to be examined. In case of sexual assault on an eight years old girl, since the adult penis cannot completely penetrate the private part of a young girl often, the injury is caused to the perineum due to the tearing of the tissues and therefore, the issue as to whether the penis was inserted into vagina or into anus in case of an eight years old child, becomes irrelevant. He submitted that the statements of the victim and her mother as well as PW4 Kasabai are corroborated by the injuries found on the person of the victim. Mr. Phatke, therefore, submitted that the appeal be dismissed.

On the basis of above material on record and the submissions advanced on behalf of both sides, the following points arise for my determination :-

(I) Whether the prosecution has proved that the present appellant, on 6th November, 2010 at about 1.30 p.m., in or about the field of Vinayak Bambarde at village Anvi, Taluka Sillod, District Aurangabad, has committed rape on the victim girl ?

(II) Whether the prosecution has proved that on the given date, time and place, the present appellant had voluntarily committed carnal intercourse against the order of nature with the victim girl ?

(III) Whether the prosecution has further proved that on the given date, time and place, the present appellant has caused criminal intimidation by threatening the victim girl ?

My finding to above point No. (I) is in the negative but attempt is proved. However, findings to the above points No. (II) and (III) are in the affirmative. The appeal is, therefore, partly allowed as regards the conviction and as regards sentence, for the reasons to follow :-

REASONS

All the three relevant prosecution witnesses i.e PW1 -the informant and mother of the victim, PW2 -the victim and PW4 Kasabai generally deposed on the prosecution line. The medico-legal case papers at Exhibit-25 proved by the Medical Officer PW3 Dr. Sanjay Pagare would show that the victim was eight years old at the time of incident. She had suffered abrasion and tear to the perianal skin, as detailed supra.

The submission of Mr. Ostwal, learned counsel for the appellant, that Police Station, Sillod is about 7 kms. away from the spot of occurrence, is not fortified by any evidence on record. The incident has occurred in the noon on 6th November, 2010 and the crime was registered on the next day at 3.15 p.m. In the deposition, PW1 -the informant deposed that as there was no convenient vehicle for going to the Police Station from her village due to evening time, on the next day, the report was lodged. The evidence on record would show that the victim was first taken to one Dr. Ganesh as she had suffered the bleeding injuries. The informant is a lady deserted by her husband and had, therefore, returned to her old mother with two minor daughters. In the FIR, the reason for delay in lodging the FIR was given as the threats given by the appellant. If all these factors are taken into consideration, the delay in filing the FIR cannot be said to be fatal one.

The evidence of the Medical Officer would show that the history was narrated to him not by the victim but by her mother i.e. PW1 informant. The victim was only eight years old. According to the prosecution case, she had even become unconscious after some period of the incident. In those circumstances, narration of history by her to the mother was natural and not to any other stranger like the Medical Officer would not create any doubt.

There is some variance in the evidence as to whether PW1 - the informant was present in the field during the relevant period. Though it was tried to show that PW1 -the informant being an employee as a maid-servant in a Urdu Madarsa, it was explained by her in her cross-examination itself that during the relevant period, there were holidays to the said Madarsa on account of Ramzan festival.

The tone-and-tenor of the evidence on record would show that the work of plucking of chillies was not to be carried on daily wages basis but on the basis of share in the chilly plucked by the labours. In the circumstances, when some of the witnesses have deposed that since the beginning of plucking, PW1 - the informant was not in the field, it would not lead us to doubt the prosecution case.

The victim has deposed, in her cross-examination, that she had gone to the field alongwith her grandmother. However, during further cross-examination, she deposed that her mother i.e. PW1 -the informant had not come alongwith grandmother, but she came after sometime in the field.

PW4 Kasabai initially deposed that PW1 - the informant had come to her field on that day. During cross-examination, she resiled from the same. On this count, she was declared hostile and her cross-examination was carried. During cross-examination, she deposed that the father of the appellant had been to her and to her husband on the previous day of recording of examination-in-chief in connection with the case. She further stated that now, she does not re-collect as to whether the informant -PW1 had been to her for plucking chillies. This evidence would suggest that the appellant tried to win this witness but she was innocent enough in stating that she did not recollect whether PW1 -the informant had been in her field.

It is to be noted that all these witnesses are the rural women and therefore, if some discrepancy is found in their testimony, it would not take us to totally disbelieve the prosecution case.

There is also some variance regarding the details. As per the prosecution case, upon hearing the sounds of weeping of PW2 - the victim from the streamlet, her mother i.e. PW1 informant alongwith PW4 Kasabai rushed to the streamlet and thereupon, they questioned the victim girl regarding the incident which was narrated by her.

During the evidence, the informant -PW1 has deposed that she alongwith PW4 Kasabai rushed towards the tree. The victim, however, deposed that her mother and grandmother came at the spot and both of them took her to home. She did not depose about PW4 Kasabai.

PW4 Kasabai deposed that at about 12.00 in the noon, the victim girl came towards them in the chilly field. At that time, she was weeping. Thereupon, her mother and PW4 Kasabai asked her as to what had happened, whereupon, she told them that the present appellant had committed atrocity on her.

It was argued that as according to the prosecution case, the fact that salwar was in the hand of the victim, there would not have been any blood stains to it, holds no water as it is not the prosecution case that the salwar had not, at any time, touched the bleeding and semen on the private part of the victim while it was with her.

It is the prosecution case that while the victim was near the tree, the appellant has enticed her to come in the streamlet by saying that he would pluck a fruit of kavath (wood apple) for her. The victim, however, has deposed that some fruits were fallen on the ground. On the basis of this, it was tried to show that when some fruits were already on the ground in the streamlet, there was no reason for the appellant to entice the victim girl by saying that he would pluck the fruit for her. This statement, however is farfetched and based on the assumptions.

It is no doubt true that the investigation was slipshod. The cloths of the victim as well as the appellant were seized after a period of one week from the date of registration of crime by the Investigating Officer. Further, no reasons are forwarded for delay in recording the statement of the victim by four weeks. It should, however, be noted that the FIR came to be filed just within 26 hours of the incident with explanation for causing the delay wherein the statement of the victim was quoted by the informant -mother. The victim was thereafter, within reasonable period immediately, was medically examined wherein the injury to her perianal skin was found, as detailed supra. In these circumstances, all the above lacunae are inconsequential.

The argument regarding the improbability of the appellant being there that as per the spot panchanama, the streamlet is required to be crossed if one has to go from the side of PW4 Kasabai''s field to the side of the appellant''s field and it is difficult to cross the same, cannot be accepted.

It should be noted that panchanama would show that the water remains in the streamlet only in rainy season and the incident being occurred in the month of November, it would not be at all impossible to cross the streamlet.

Mr. Ostwal, learned counsel, has submitted that the deposition of the victim that the appellant was below the kavath (wood apple) tree and she was upwards would mean that the victim had climbed the tree and in the process of climbing down, she suffered the injury due to the thorns of the kavath tree, is probabilized.

It should, however, be noted that the spot of occurrence is a streamlet having bundh from both sides. In the circumstances, when the appellant was below the tree and the victim was upwards would not mean that she had climbed the tree, but she would be on the bundh i.e. on the upward direction.

The police patil appears to be the relative of PW1 - the informant as the victim has called her as grandfather. However, there is nothing further to show that there was an animosity between the police patil and the appellant or his relatives to such an extent that eight years old victim would be compelled to keep her honour at stake by making a false statement.

The learned Sessions Judge had an opportunity to note the demeanor of all the witnesses and more particularly the child victim. He has taken every care while examining the child witness and upon finding that she did not understand the importance of oath, it was not administered to her. Merely because she was able to answer the questions prudently, would not take us to brand her as a conspiring girl, as has been tried to be shown by the defence.

As regards the alleged activity of the appellant, the victim has used the Marathi word "xkaM" which may mean private part or the anus by saying that the said part was used by the appellant to put in her said private part. It should be noted that the victim was eight years old. Her private part was relatively very small. Mr. R.P. Phatke, learned A.P.P., therefore, relied on Parikh''s Text Book of Medical Jurisprudence and Toxicology. Section (IV) thereof would show that as regards the rape on children, by insertion of the penis in the vagina, the penis cannot be completely penetrated and in case of violence, often, the perineum of the anus may be injured.

Taking into consideration all these facts, since there was no insertion in the vagina, the conviction of the present appellant for the offence punishable under section 376(2)(f) of the I.P. Code cannot be accepted. At the most, it was an attempt to commit rape alongwith actual commission of offences punishable under section 377 and 506 of the I.P. Code.

Mr. Ostwal, learned counsel for the appellant submits that the appellant was only 19 years old at the time of incident, as per the prosecution case itself. He also comes from the poor strata of the society. The act committed by him would not show any depravity but the sexual illiteracy, which is rampant in the rural area. In the circumstances, he submits that the sentence of rigorous imprisonment for seven years for the offence punishable under section 376 read with section 511 of the I.P. Code in place of conviction for the offence punishable under section 376(2)(f) and 377 of the I.P. Code, would be harsh one.

Learned A.P.P., however, submits that this is a case where eight years old girl was tried to be ravished by the present appellant causing injury to her perianal skin, as detailed supra. He, therefore, submits that no leniency is required to be shown to the appellant.

Having considered all the material on record that the appellant was only 19 years old at the time of incident, from the rural background, in my view, sentencing him to suffer rigorous imprisonment for three years would be a sufficient punishment. In the result, the following order :-

The criminal appeal is partly allowed. The impugned order of conviction and sentence of the present appellant, passed by the learned Sessions Judge, for the offence punishable under section 376(2)(f) of the I.P. Code is hereby set aside. Instead, the appellant is convicted for the offence punishable under section 376 read with section 511 of the I.P. Code and under section 377 and 506 of the I.P. Code.

It is hereby directed that the appellant shall suffer rigorous imprisonment for a period of three years and to pay fine of Rs. 5000/- (rupees five thousand only), in default to suffer rigorous imprisonment for three months, for the offence punishable under section 376 read with section 511 of the I.P. Code.

The appellant shall also suffer rigorous imprisonment for a period of three years and to pay fine of Rs. 5000/- (rupees five thousand), in default to suffer rigorous imprisonment for one month, for the offence punishable under section 377 of the I.P. Code.

The appellant shall also suffer rigorous imprisonment for a period of six months and to pay fine of Rs. 1000/- (rupees one thousand), in default to suffer rigorous imprisonment for fifteen days, for the offence punishable under section 506 of the I.P. Code.

All the above sentences to run concurrently.

The appellant will be entitled for set-off as per the Rule.

The property involved in the offence be disposed of as per the direction issued by the learned Sessions Judge, vide the impugned order.

The present appeal accordingly stands disposed of.