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2000 DIGILAW 161 (BOM)

Sabhir Noor Shaikh v. State

2000-03-09

R.K.BATTA, R.M.S.KHANDEPARKAR

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JUDGMENT R.M.S. Khandeparkar. J. - This appeal arises from judgment and order dated 21st July. 1999 passed in Sessions Case No.22/95 by the Additional Sessions Judge. Panaji. By the impugned judgment and order the appellant has been convicted for the offence punishable under Sections 366, 354, 376 r /w 511 and 506 of I.P.C. 2. The case of the prosecution is that on 8th February. 1994 the appellant herein induced the minor girl P.W.3 to accompany him while she was on her way to her house from the school where she was studying and thereafter took her to the jungle area of Porvorim and with the use of criminal force outraged her modesty and also threatened her with injury to her person with the use of knife and also attempted to commit rape on her person. The prosecution apart from the complainant examined as many as nineteen witnesses including the cousin brother of the prosecutrix as P.W.6. panchas, doctors as well as Scientific Analyst who was examined as P.W. 11. The learned Additional Sessions Judge after analysing the entire evidence on record held the appellant to be guilty of the offences for which he was tried and further sentenced him to undergo rigorous imprisonment for a term of 5 years for the offence punishable under Section 376 r/w 511 of I.P.C. and a fine of Rs. 1.000/- in default two months simple imprisonment to undergo rigorous imprisonment for a term of 2 years for the offence punishable under Section 366 and a fine of Rs. 500/- in default 15 days Simple Imprisonment, to undergo Rigorous Imprisonment for a 'term of 6 months for the offence punishable under Section 354 of!. P. C. and further Rigorous Imprisonment for a term of one month for offence punishable under Section 506 of I.P.C. All the sentences were ordered to run consecutively under Section 31 Cr. P.C. 3. We have heard Shri P.P. Singh. Advocate for the Appellant and Shri A.P. Lawande, Public Prosecutor for the State at length and have perused the records. The learned Advocate for the Appellant has relied upon the judgment of the Apex Court in the matter of State of Karnataka v. Muddappa1 and unreported judgment of Division Bench in the matter of Narayan Vishnu Naik v. State delivered on 1st July, 1998. The learned Advocate for the Appellant has relied upon the judgment of the Apex Court in the matter of State of Karnataka v. Muddappa1 and unreported judgment of Division Bench in the matter of Narayan Vishnu Naik v. State delivered on 1st July, 1998. On the other hand, the learned Public Prosecutor has sought to rely upon the judgment of the Apex Court in the matter of State of Karnataka v. Mahabaleshwar Gourya Naik2 and in the matter of Madanlal v. State of Jammu And Kashmir3 as well as that of the Division Bench in the matter of Siddarth s/o Atchutrao Sawant v. State4. 4. The testimony of the prosecutrix clearly discloses that the Appellant on the pretext of reaching the prosecutrix and her cousin brother to their residence after they had left the school on 8th February, 1994 made them to accompany him upto the Mahalaxmi Temple at Panaji and once near the temple the Appellant told the cousin brother of the prosecutrix to get down from the scooter on the ground that he was required to fill the petrol in the scooter and for that purpose he asked the cousin brother of the prosecutrix to proceed further on foot and took the prosecutrix along with him on the scooter and proceeded towards Mandovi Bridge instead of going to any petrol pump. The testimony further discloses that the accused took the prosecutrix to the jungle on the right hand side of the road going towards Porvorim after the Mandovi Bridge and near the Maruti Car Station. Once in the jungle the Appellant removed the underwear of the prosecutrix as well as of himself along with his pant and tried to commit rape on her person and in the process he also threatened her with a pen knife when the prosecutrix tried to resist the uncivilized assault of the accused. The accused also kissed the prosecutrix on the said occasion. Her testimony further discloses that the accused also tried to pacify the prosecutrix by offering her a sum of Rs. 100/- which she promptly refused. The accused thereafter reached the prosecutrix near the Fire Brigade Station which is in the neighbourhood of her residential house. Her testimony further discloses that the prosecutrix had narrated the entire incident immediately to her mother PW.7 and thereafter the prosecutrix was taken to the Police Station as well as to the hospital. 100/- which she promptly refused. The accused thereafter reached the prosecutrix near the Fire Brigade Station which is in the neighbourhood of her residential house. Her testimony further discloses that the prosecutrix had narrated the entire incident immediately to her mother PW.7 and thereafter the prosecutrix was taken to the Police Station as well as to the hospital. The F.I.R. was lodged in the matter and she was subjected to medical examination. The clothes which she was wearing at the time of the incident were also attached and were subjected to necessary tests which has been established by the testimony of PW. 11 as well as by the panch witnesses. The testimony of the prosecutrix has not been shaken in any manner and on the contrary the cross-examination of the prosecutrix has lent support to prosecution case. The fact that the accused was driving on the scooter at the relevant time and day has been clearly established by the testimony of the prosecutrix and she has even identified the scooter. In fact, the cross-examination of the prosecutrix further discloses that the fact that the accused was riding the concerned scooter on the relevant day and time was not at all disputed apart from the fact that the same has been clearly established by her testimony. 5. It is well settled that if the testimony of the prosecutrix is found to be truthful and believable, no further corroboration need be insisted upon as the corroboration is only a rule of prudence and the same has been reiterated by the Apex Court in various decisions and the recent one being in the matter of State of Himachal Pradesh v. Lekh Raj5. That apart, the testimony of prosecutrix in the case in hand has been fully corroborated by the evidence on record in the form of testimony of PW.6, the cousin brother of the prosecutrix, PW. 7, the mother of the prosecutrix, and PW. 11 the Scientific Analyst. The testimony of PW.6 disclosed that he along with the prosecutrix had left the school or the classes on 8th February, 1994 and on their Away they were made to accompany the accused on his scooter and when they reached near Mahalaxmi Temple the said witness was asked to get down and to proceed on foot on the pretext that the Appellant had to take the prosecutrix to one Mehaboob. The testimony of P.W. 3 also has remained unshaken even though he was subjected to thorough cross-examination. This witness clearly corroborates the fact that the prosecutrix was taken by the Appellant on his scooter on the relevant day and time from the Mahalaxmi Temple. The fact that she was dropped by the Appellant on the same day late in the evening near the Fire Brigade Station has also been established by the testimony of P.W. 3 itself. 6. Further corroboration of the testimony of prosecutrix is to be found by the testimony of her mother i.e. P.W.7 who has confirmed that the prosecutrix had narrated the entire incident to her immediately after the prosecutrix had returned to her house in the evening of the same day. She has also confirmed the fact that the prosecutrix was immediately thereafter taken to the Medical College and had lodged the necessary complaint. 7. Shri Manohar, PW. 11 Scientific Analyst in Crime Branch C.I.D. Panaji has produced the report in respect of Forensic Science Laboratory in respect of the human semen detected on the skirt and petticoat of the prosecutrix which was attached in the course of the investigation, immediately after the incident and on the very day of the incident. 8. The learned Additional Sessions Judge after taking into consideration the entire evidence recorded in the matter has clearly held that the prosecutrix has in detail revealed how the Appellant after taking her into the jungle area removed her underwear as well as his pant and underwear and thereafter had attempted to commit rape by forcing to penetrate his penis in the vagina of the prosecutrix causing pain to the prosecutrix and as well had kissed her. The acts of the Appellant of taking the prosecutrix in an isolated place from the lawful custody of the guardian and thereafter compelling her to remove her clothes further attempt to commit rape are fully corroborated not only by the testimony of the prosecutrix but by other evidence on record including the chemical report regarding the semen found on the clothes. Undoubtedly, the prosecutrix was of minor age being of 11 years old at the time of the incident. The F.I.R in the case was promptly lodged without any delay. The medical evidence regarding the examination of the prosecutrix carried out immediately after the incident also disclosed some injuries on the person of the prosecutrix. Undoubtedly, the prosecutrix was of minor age being of 11 years old at the time of the incident. The F.I.R in the case was promptly lodged without any delay. The medical evidence regarding the examination of the prosecutrix carried out immediately after the incident also disclosed some injuries on the person of the prosecutrix. The use of knife by the accused in the course of attempt to rape her has also been proved. Even though an attempt was made to suggest that no attempt was made by the accused to put any fear in the mind of the prosecutrix, the fact that the accused was carrying a knife was neither disputed nor the testimony of the prosecutrix in that regard could be shaken by the defence in any manner. 9. The defence of the accused, has not been consistent and different theories had been suggested to different witnesses in that regard. A specific defence of alibi was sought to be raised only during the testimony of the accused. However, the defence has not been able to establish the same. The accused having taken a specific defence of alibi and having failed to establish the same and on the other hand the prosecution having clearly established the present of the accused at the relevant time and day and the commission of offence for which he had been charged for, the necessary ingredients of the offence for which the accused is charged stands clearly established. The evidence on record, independently of such failure on the part of the accused to prove his alibi, establishes the charges against the accused. 10. It has been strenously argued on behalf of the Appellant that considering the circumstances in which the offence is stated to have been committed, at least a lenient view ought to have been taken by the Additional Sessions Judge while awarding the sentence. Grievance is also sought to be made regarding sentences being made to run consecutively and not concurrently. Reliance is sought to be placed on the judgments in the matter of' State of Karnataka v. Muddappa (supra) and in the matter of Narayan Vishnu Naik v. State (supra). The perusal of both the judgments disclose that the same were delivered in the peculiar facts and circumstances of those cases and do not lay down any general proposition of law, as such. The perusal of both the judgments disclose that the same were delivered in the peculiar facts and circumstances of those cases and do not lay down any general proposition of law, as such. Besides, the imposition of sentence would necessarily depend upon the facts and circumstances of each case. Considering the facts of the case in hand, it is abundantly clear that the Appellant had induced the prosecutrix to accompany him to the jungle area and had attempted to commit rape on her person; the prosecutrix not knowing the wicked intention of the accused in taking her to the jungle had accompanied him without any resistance. The evidence on record discloses that the accused had developed sufficient acquaintance with the family of the prosecutrix and, therefore, the prosecutrix had no reason to doubt about the wicked intention of the accused when she was induced to accompany him on the scooter while she was going to her residence along with her cousin brother. It is pertinent to note that the accused was carrying a knife with him. All these things clearly show that the offence was committed with certain amount of preplanning and in that regard which clearly rules out any sympathy, being shown to the Appellant in the matter of imposition of sentence. Being so the decisions sought to be relied upon by the Appellant in support of the contention for reduction of sentences are of no assistance. However, considering the fact, that all the offences committed by the Appellant were in the course of same transaction we are inclined to order the sentences to run concurrently instead of consecutively as ordered by the learned Additional Sessions Judge. In the matter of confirmation of sentences imposed by the learned Additional Sessions Judge we are clearly fortified by the decisions of the Apex Court in the matter of State of Karnataka v. Mahabaleshwar Gourya Naik and Madanlal v. State of Jammu And Kashmir (supra) 11. In the result, the appeal partly succeeds. The impugned order directing the sentences to run consecutively is hereby set aside and the sentences imposed are ordered to run concurrently. With the above modification, the impugned judgment and order is confirmed as no interference therein is called for and the appeal in that regard is hereby dismissed. Order accordingly. Appeal allowed partly. 1. 1999 (9) Supreme 415 . 2. AIR 1992 SC 2043 . 3. With the above modification, the impugned judgment and order is confirmed as no interference therein is called for and the appeal in that regard is hereby dismissed. Order accordingly. Appeal allowed partly. 1. 1999 (9) Supreme 415 . 2. AIR 1992 SC 2043 . 3. AIR 1998 SC 386 . 4. 2000 (1) GLT 205. 5. (1999) 4 Crimes 337.