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2013 DIGILAW 295 (BOM)

Devaji Rama Padave v. State of Maharashtra

2013-02-04

SADHANA S.JADHAV, V.K.TAHILRAMANI

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JUDGMENT V.K. TAHILRAMANI, J. 1. The Appellant/Original Accused has preferred this Appeal against the Judgment and order dated 12th April, 2004, passed by the learned Judge, Greater Bombay in Sessions Case No. 750 of 2002. By the said Judgment and order, the learned Sessions Judge convicted the Appellant for the offence under Sections 376 and 506-II of Indian Penal Code. For the offence punishable under Section 376 of Indian Penal Code the Appellant was sentenced to suffer life imprisonment and to pay fine of Rs.2000/- (Rs. Two Thousand only) in default R.I. for six months. For the offence punishable under Section 506-II the Appellant was sentenced to suffer R.I. for seven years and to pay fine of Rs. 2000/- (Rs. Two Thousand only) in default R.I. for six months. The learned Judge further directed both the substantive sentences of imprisonment to run concurrently. 2. The prosecution case, briefly stated, is as under:- P.W. 1 the prosecutrix was residing at Shivshakti Rahivashi Sangh Zopadpatti, Hariyali village, Vikhroli, Mumbai along with her mother Fatima Fernandes, the Appellant, sister of the Appellant, children of the sister of Appellant as well as children of her mother and the Appellant. Fatima was earlier married to one Anthony Fernandes. He expired. Thereafter Fatima mother of the prosecutrix started residing with the Appellant. Fatima and the Appellant had two daughters and one son. They were all minor at the time of the incident. The age of the prosecutrix was about 13 years at the time of the incident. The prosecutrix was residing with the Appellant and others in the house of the Appellant since about five to six years prior to the incident. It is the prosecution case that on 7th December, 2001 i.e. on the birthday of the prosecutrix, Appellant who was like her step father committed rape on her. At that time there was no one in the house. The prosecutrix tried to shout, but the Appellant slapped her face and tied her mouth with cloth. The Appellant removed his own clothes and the clothes of the victim girl and thereafter he committed rape on her. The Appellant threatened her that if she discloses to anyone about this incident, he will throw her under a train. Due to fear, the prosecutrix kept quiet and she did not disclose the incident. Thereafter on 3rd January, 2002 again the Appellant committed rape on the prosecutrix. The Appellant threatened her that if she discloses to anyone about this incident, he will throw her under a train. Due to fear, the prosecutrix kept quiet and she did not disclose the incident. Thereafter on 3rd January, 2002 again the Appellant committed rape on the prosecutrix. This was seen by her mother but her mother did not do anything as the Appellant threatened the prosecutrix as well as her mother. So also on 20th March, 2002, the Appellant committed rape on the prosecutrix. This was seen by Pintya who was minor son of sister of the Appellant. Due to fear on account of threats by the Appellant the prosecutrix kept quiet. Moreover, there was no question of telling her mother as her mother already knew about the incident of rape and yet she did not come to the aid of her daughter. 3. It is the case of the prosecution that the prosecutrix used to go to Church. P.W.2 Mrs. Felcy Fernandes used to reside in the compound of the Church. Mrs. Fernandes used to go to the Church every day and she used to meet poor people and help them by giving clothes and money. During her visit to the Church, Mrs. Fernandes come to know the prosecutrix since about one year prior to the incident. From October 200 I the prosecutrix did not go to the Church therefore, Mrs. Fernandes felt bad that the prosecutrix has not come to the Church. Hence, Mrs. Fernandes decided to go and meet the prosecutrix. When she was going in the direction of the house of the prosecutrix, at that time on the way Mrs. Fernandes met the prosecutrix. She asked the prosecutrix why she is not coming to the Church since long time. The prosecutrix told her that her mother was sending her to do work hence she could not come to Church. Mrs. Fernandes felt bad that the prosecutrix was being sent for work as it is not the age of the prosecutrix to work. Mrs. Fernandes told the prosecutrix whether she should speak to her mother about sending the prosecutrix to school and the prosecutrix showed her willingness to go to school. Then Mrs. Fernandes along with the prosecutrix and one other person went to the house of the prosecutrix and met her mother. Mrs. Mrs. Fernandes told the prosecutrix whether she should speak to her mother about sending the prosecutrix to school and the prosecutrix showed her willingness to go to school. Then Mrs. Fernandes along with the prosecutrix and one other person went to the house of the prosecutrix and met her mother. Mrs. Fernandes told the mother of the prosecutrix that it was not her age to work and the prosecutrix should be sent to school. She told the mother of the prosecutrix that she will put the prosecutrix in a boarding school and that she will bear the expenses. The mother of the prosecutrix agreed to send the prosecutrix in a boarding school. Then Mrs. Fernandes brought the prosecutrix to her house. On the next day Mrs. Fernandes sent the prosecutrix to Tabor Ashram at Kalyan where there is a training programme wherein people are taught good values of life through prayers. The prosecutrix was in the Ashram for about four days. Thereafter, on 17th April, 2002 the prosecutrix returned to the house of Mrs. Fernandes. Mrs. Fernandes told her to go back to her house, whereupon the prosecutrix started crying. On the next day, the mother of the prosecutrix and the Appellant came to the house of Mrs. Fernandes, but the prosecutrix refused to go with them. Thereafter the Appellant threatened Mrs. Fernandes that she should send the prosecutrix to his house otherwise he would see Mrs. Fernandes. The prosecutrix stayed with Mrs. Fernandes for two days. During this time, Mrs. Fernandes and her friend Fatima Marcos discussed as to how to send the prosecutrix to boarding school when the Appellant had threatened them. At that time, they came to know about Women and Children Welfare Department in the office of the Commissioner of Police. Accordingly, they took the prosecutrix there on 20th April, 2002. In the office they met one social worker and her assistant. P.W.4 Anagha Sarpotdar was working in the Special Cell for women and children. Komalika Datta was working with her as social worker. On 20th April, 2002 Mrs. Fernandes, the prosecutrix and Mrs. Fatima went to the Special Cell for women and children and they told P.W.4 Anagha and the other social worker that the prosecutrix was just 13 years old and she wanted to study, however, her mother and step father forced her to work. Mrs. Fernandes and Mrs. On 20th April, 2002 Mrs. Fernandes, the prosecutrix and Mrs. Fatima went to the Special Cell for women and children and they told P.W.4 Anagha and the other social worker that the prosecutrix was just 13 years old and she wanted to study, however, her mother and step father forced her to work. Mrs. Fernandes and Mrs. Fatima asked whether the Special Cell would help them. Thereupon, Anagha told her that first she would like to speak with the prosecutrix alone and find out as to what the prosecutrix wanted. P.W.4 Anagha requested Mrs. Fernandes and Mrs. Fatima to sit outside. P.W.4 Anagha and other social worker started talking to the prosecutrix. 4. During the conversation the prosecturix told P.W.4 Anagha and Komalika that she had been raped by her step father thrice. She told that he tied cloth around her mouth and committed rape on her. She was very scared as the Appellant had threatened her that if she disclosed this fact to anybody, he would kill her by throwing her under a train. She further told that her mother and one boy Pintoo i.e. son of sister of the Appellant had seen the incident but they were not supporting her. The prosecutrix was scared and did not want to go back to her house. Thereupon, P.W.4 Anagha and Komalika told her that they would help her. Though they believed her version but before going to the police they wanted to get it confirmed medically that the prosecturix had been raped. Hence they all went to Cama Hospital for medical examination of the prosecutrix. P.W.5 Dr. Mahana examined the prosecutrix in Cama hospital. She found that the prosecutrix is about 13 years old and had complaint of three earlier sexual assaults on 7th December 2001, 3rd January, 2002 and 20th March, 2002 by her mother's friend. On examination of the prosecutrix, P.W.5 Dr. Mahana found that hymen was ruptured. That was consistent with the history given by the prosecutrix. Thereafter on the same day i.e. on 20th April, 2002 the prosecutrix along with P.W.2 Mrs. Fernandes, P.W4 Anagha and others went to the Vikhroli police station. There the First Information Report of the prosecutrix came to be recorded. Thereafter, investigation commenced. After completion of investigation, chargesheet came to be filed. 5. Thereafter on the same day i.e. on 20th April, 2002 the prosecutrix along with P.W.2 Mrs. Fernandes, P.W4 Anagha and others went to the Vikhroli police station. There the First Information Report of the prosecutrix came to be recorded. Thereafter, investigation commenced. After completion of investigation, chargesheet came to be filed. 5. Charge came to be framed against the Appellant under Sections 376 and 506 Part-II of the Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph one above, hence, this Appeal. 6. We have heard the learned advocate appointed for the Appellant and the learned A.P.P. for the Respondent State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocate for the parties, the Judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated herein below, we are of the opinion that the Appellant did commit rape on the prosecutrix and thereafter threatened her that he would kill her by throwing her under a train. 7. The conviction is mainly based on the evidence of the prosecutrix, P.W.1. The prosecutorix was residing at Shivshakti Rahivashi Sangh Zopadpatti, Hariyali village, Vikhroli, Mumbai along with her mother Fatima Fernandes, the Appellant, sister of the Appellant, children of the sister of Appellant as well as children of her mother Fatima and the Appellant. Fatima was earlier married to one Anthony Fernandes. He expired. Thereafter Fatima the mother of the prosecutrix started residing with the Appellant. Fatima and the Appellant had two daughters and one son. They were all minor at the time of the incident. The age of the prosecutrix was about 13 years at the time of the incident. The prosecutrix was residing with the Appellant in the house of the Appellant since about five to six years prior to the incident. It is the prosecution case that on 7th December, 2001 i.e. on the birthday of the prosecutrix, Appellant who was like a step father committed rape on her. At that time there were no one in the house. It is the prosecution case that on 7th December, 2001 i.e. on the birthday of the prosecutrix, Appellant who was like a step father committed rape on her. At that time there were no one in the house. The prosecutrix tried to shout, but the Appellant slapped her face and tied her mouth with cloth. The Appellant removed his own clothes and the clothes of the victim girl and thereafter he committed rape on her. The f Appellant threatened her that if she discloses to anyone about this incident, he will throw her under a train. Due to fear, the prosecutrix kept quiet and she did not disclose the incident to anyone. Thereafter on 3rd January, 2002 again the Appellant committed rape on the prosecutrix. So also on 20th March, 2002, the Appellant committed rape on the prosecutrix. 8. The evidence of the prosecutrix is fully corroborated by the medical evidence which has been deposed to by P.W.s Dr. Mahana. Dr. Mahana has stated that the hymen was ruptured, which is consistent with the history given by the prosecturix of repeated rape being committed on her by her mother's friend. It is pertinent to note that the prosecutrix has referred to the Appellant as her mother's friend because though the mother of the prosecutrix was residing with the Appellant and had borne him children, no marriage had taken place between the mother of the prosecutrix and the Appellant. 9. The evidence of the prosecutrix is also corroborated by the evidence of P.W.2. P.W.2 Mrs. Felcy Fernandes used to reside in the compound of the Church. Mrs. Fernandes used to go to the Church every day and she used to meet poor people and help them by giving clothes and money. During her visit to the Church, Mrs. Fernandes came to know the prosecutrix since about one year prior to the incident. From October 2001 the prosecutrix did not go to the Church and hence Mrs. Fernandes felt bad that the prosecutrix has not come to the Church. Therefore Mrs. Fernandes decided to go and meet the prosecutrix. When she was going in the direction of the house of the prosecutrix, at that time on the way Mrs. Fernandes met the prosecutrix. She asked the prosecutrix why she is not coming to the Church since long time. Therefore Mrs. Fernandes decided to go and meet the prosecutrix. When she was going in the direction of the house of the prosecutrix, at that time on the way Mrs. Fernandes met the prosecutrix. She asked the prosecutrix why she is not coming to the Church since long time. The prosecutrix told her that her mother was sending her to do work hence, she could not come to the Church. Mrs. Fernandes felt bad that the prosecutrix was being sent for work as it is not the age of the prosecutrix to work. Mrs. Fernandes told the prosecutrix whether she should speak to her mother about sending the prosecutrix to school and the prosecutrix showed her willingness to go to school. Then Mrs. Fernandes along with the prosecutrix and one other person went to the house of the prosecutrix and met her mother. Mrs. Fernandes told the mother of the prosecutrix that it was not her age to work and the prosecutrix should be sent to school. She told the mother of the prosecutrix that she will put the prosecutrix in a boarding school and she will bear the expenses. The mother of the prosecutrix agreed to send the prosecutrix in a boarding school. She gave the clothes of the prosecutrix and other articles. Then Mrs. Fernandes brought the prosecutrix to her house. On the next day Mrs. Fernandes sent the prosecutrix to Tabor Ashram at Kalyan where training programme is conducted wherein people are taught good values of life through prayers. The prosecutrix was in the Ashram for about four days. Thereafter, on 17th April, 2002 she returned to the house of Mrs. Fernandes. Mrs. Fernandes told her to go back to her house, whereupon the prosecutrix started crying. On the next day, the mother of the prosecutrix and the Appellant came to the house of Mrs. Fernandes, but the prosecutrix refused to go with them. Thereafter the Appellant threatened Mrs. Fernandes that she should send the prosecutrix to his house otherwise he would see Mrs. Fernandes. The prosecutrix stayed with Mrs. Fernandes for two days. During this time, Mrs. Fernandes and her friend Fatima Marcos discussed as to how to send the prosecutrix to boarding school when the Appellant was threatening them. At that time, they came to know about Women and Children Welfare Department in the office of the Commissioner of Police. Fernandes. The prosecutrix stayed with Mrs. Fernandes for two days. During this time, Mrs. Fernandes and her friend Fatima Marcos discussed as to how to send the prosecutrix to boarding school when the Appellant was threatening them. At that time, they came to know about Women and Children Welfare Department in the office of the Commissioner of Police. Accordingly, they took the prosecutrix there on 20th April, 2002. In the office they met one social worker and her assistant. P.W.4 Anagha Sarpotdar was working in the Special Cell for women and children. Komalika was working with her as social worker. On 20th April, 2002 P.W.2 Mrs. Fernandes, the prosecutrix and Mrs. Fatima went to the Special Cell for women and children and they told P.W.4 Anagha and the other social worker that the prosecutrix was just 13 years old and she wanted to study. However, her mother and step father forced her to work. Mrs. Fernandes and Mrs. Fatima asked whether the Special Cell would help them. Thereupon, Anagha told her that first she would like to speak with the prosecutrix alone and find out as to what the prosecutrix wanted. P.W.4 Anagha requested Mrs. Fernandes and Mrs. Fatima to sit outside. P.W.4 Anagha and other social worker started talking to the prosecutrix. During the conversation the proseuctrix told P.W.4 Anagha and Komalika that she had been raped by her step father thrice. She was very scared as the Appellant had threatened her that if she disclosed this fact to anybody, he would kill her by throwing her under a train. She further told that her mother had seen the incident but she was not supporting her. The prosecutrix was scared and did not want to go back to her house. Thereupon, P.W. Anagha and Komalika told her that they would help her. Though they believed her version but before going to the police they wanted to get it confirmed medically that the prosecturix had been raped. Hence they all went to Cama Hospital for medical examination of the prosecutrix. P.W.5 Dr. Mahana examined the prosecutrix in Cama hospital. She found that the prosecutrix was about 13 years old and had complaint of three earlier sexual assaults on 7th December 2001, 3rd January, 2002 and 20th March, 2002. On examination of the prosecutrix, P.W.5 Dr. Mahana found that hymen was ruptured. P.W.5 Dr. Mahana examined the prosecutrix in Cama hospital. She found that the prosecutrix was about 13 years old and had complaint of three earlier sexual assaults on 7th December 2001, 3rd January, 2002 and 20th March, 2002. On examination of the prosecutrix, P.W.5 Dr. Mahana found that hymen was ruptured. This is consistent with the history given by the prosecutrix. Thereafter on the same day i.e. on 20th April, 2002 the prosecutrix along with P.W.2 Mrs. Fernandes, P.W.4 Anagha and others went to the Vikhroli police station. There the First Information Report of the prosecutrix came to be recorded. 10. The evidence of the prosecutrix is also corroborated by the evidence of P.W.4 Ms. Anagha who was working as a social worker, in the joint project of Tata Institute of Social Science and Government of India and Unicef. The name of the project was Special Project for Women and Children. On 20th April, 2002 P.W.2 Mrs. Fernandes, the prosecutrix and Mrs. Fatima went to the Special Cell for women and children and they told P.W.4 Anagha and the other social worker that the prosecutrix was just 13 years old and she wanted to study. However, her mother and step father forced her to work. Mrs. Fernandes and Mrs. Fatima asked whether the Special Cell would help them. Thereupon, P.W. 4 Anagha told her that first she would like to speak with the prosecutrix alone and find out as to what the prosecutrix wanted and they told P.W. 2 Mrs. Fernandes and Mrs. Fatima to sit outside. P.W.4 Anagha and other social workers started talking to the prosecutrix. 11. During the conversation the proseuctrix told P.W.4 Anagha and Komalika that she had raped by her step father thrice. She told that he tied cloth around her mouth and committed rape on her. She was very scared as the Appellant told her that if she disclosed this fact to anybody, he would kill her by throwing her on railway tracks. She further told that her mother and one boy Pintoo i.e. son of sister of the Appellant had seen the incident but they were not supporting her. The prosecutrix was scared and did not want to go back to her parents house. Thereupon, P.W.4 Anagha and Komalika told her that they would help her. She further told that her mother and one boy Pintoo i.e. son of sister of the Appellant had seen the incident but they were not supporting her. The prosecutrix was scared and did not want to go back to her parents house. Thereupon, P.W.4 Anagha and Komalika told her that they would help her. Though they believed her version but before going to the police they wanted to get it confirmed medically that the prosecturix had been raped. Hence they all went to the Cama Hospital for medical examination of the prosecutrix. P.W.5 Dr. Mahana examined the prosecutrix in Cama hospital. She found that the prosecutrix is about 13 years old and had complaint of three earlier sexual assaults on 7th December 2001, 3rd January, 2002 and 20th March, 2002. On examination of the prosecutrix, P.W.5 Dr. Mahana found that hymen was ruptured which was consistent with the history given by the prosecutrix. Thereafter on the same day i.e. on 20th April. 2002 the prosecutrix along with P.W.2 Mrs. Fernandes, P.W.4 Anagha and others went to the Vikhroli police station. There the First Information Report of the prosecutrix came to be recorded. 12. The learned advocate for the Appellant submitted that there are large number of omissions in the evidence of the prosecutrix. It is noticed that the prosecutrix has been cross-examined at length. The prosecutrix was a young girl of hardly 13 years of age. Thus some discrepancies are bound to occur in her evidence. However, it is noticed that as far as three incidents of rape are concerned and the role played by the Appellant is concerned, no omissions or contradictions have been brought on record. Thus, as far as the incidents of rape are concerned, we are of the opinion that we can safely rely on the evidence of the prosecutrix. 13. Thereafter, the learned counsel for the Appellant submitted that the first instance of rape took place on 7th December, 2001 and the FIR has been lodged on 20th April, 2002 i.e. more than four months after the incident. As far as this aspect is concerned, it is seen that the last incident of rape took place on 20th March, 2002. The prosecutrix was a young girl of about 13 years of age. She was residing with the Appellant and her mother. As far as this aspect is concerned, it is seen that the last incident of rape took place on 20th March, 2002. The prosecutrix was a young girl of about 13 years of age. She was residing with the Appellant and her mother. Though her mother was not married to the Appellant, her mother was living with the Appellant and they have begotten three children. Thus, the Appellant is almost like the step father of the prosecutrix. It is noticed that immediately after the first instance of rape, the Appellant threatened the prosecutrix that he would throw her under a train. This threat was enough to cause grave apprehension in the mind of the prosecutrix regarding her life and due to this threat she kept quiet. As far as the second incident of rape is concerned, it was seen by her mother, yet her mother did not come to her help on account of the threat given by the Appellant to the prosecutrix and to her mother. Thus, it is seen that the prosecutrix had nowhere to go because her siblings were minor and her own mother was not willing to help her. Thus, the prosecutrix had nowhere to go and no one to turn to. It is in these circumstances that she has not disclosed about the incident to anyone. As far as the aspect of delay in lodging the FIR is concerned, it was not a single isolated act of rape committed on 7th December, 2001, but even thereafter the Appellant committed rape on her on 3rd January, 2002 and 20th March, 2002. Thus, the last incident was about a month prior to the lodging of FIR. In cases of rape, there is invariably delay in lodging the FIR, it is to be borne in mind that in a rape case the prosecutrix is worried about her future. She is in a traumatic state of mind. The family of the victim generally shows reluctance to go to the police station because of societies attitude towards the victim. Society casts doubts and shame upon her rather than comfort or sympathise with her. The family remains concerned with honour and reputation of the prosecutrix and that of the family. 14. As far as delay in lodging FIR in rape cases is concerned no straitjacket formula can be laid down in this regard. Society casts doubts and shame upon her rather than comfort or sympathise with her. The family remains concerned with honour and reputation of the prosecutrix and that of the family. 14. As far as delay in lodging FIR in rape cases is concerned no straitjacket formula can be laid down in this regard. In case of sexual offences, the criteria may be different altogether. As honour of the family is involved, its members have to decide whether to take the matter to the Court or not. In such a fact situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken judicial notice of the fact that:- "Ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the first information report in a case of this nature is a normal phenomenon." 15. In State of H.P. vs. Prem Singh (2009) 1 SCC 420 : (2009) 1 SCC (Cri) 351: 2009 ALL MR (Cri) 1855 (SC) the Supreme Court considered the issue of delay in lodging FIR at length and observed as under:- "6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR." 16. Thus, in view of the above, the delay in lodging FIR in sexual offences has to be considered with a different yardstick. In a tradition-bound society prevalent in India, more particularly rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR." 16. Thus, in view of the above, the delay in lodging FIR in sexual offences has to be considered with a different yardstick. If the instant case is examined in the light of the aforesaid settled legal proposition, we are of the considered opinion that the delay in lodging the FIR has been satisfactorily explained i.e. the prosecutrix was a young girl of 13 years, the Appellant had threatened her with death and most importantly her own mother was not willing to come to her help in such circumstances it is not expected that a young girl of 13 years of age would go on her own to the police station and lodge FIR. 17. Thus, looking to the above facts, we are of the opinion that no importance can be given to the fact that there was delay in lodging the FIR. 18. Looking to the evidence on record, we are of the opinion that the prosecution has proved that the Appellant committed rape on the prosecutrix and thereafter threatened to throw her under a train and kill her. Thus, we find no merit in the Appeal. Appeal is dismissed. 19. At this stage, we wish to place on record our appreciation for the way in which the learned appointed Advocate Mr. S.Y. Katkade conducted the Appeal. He very ably argued the Appeal. We quantity his fees to be paid by the High Court Legal Services Committee, Bombay at Rs. 2,500/- (Rupees Two Thousand Five Hundred only). The same to be paid to the learned Advocate Mr. S.Y. Katkade within three months from today. Appeal dismissed.