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2013 DIGILAW 377 (BOM)

AJMODDIN BABU TAMBOLI v. STATE OF MAHARASHTRA

2013-02-14

ABHAY M.THIPSAY, P.V.HARDAS

body2013
JUDGMENT ABHAY M. THIPSAY, J.: 1. The appellant was prosecuted on the allegation of having committed offences punishable under Sections 376 and 342 of the Indian Penal Code (IPC). The learned Additional Sessions Judge after holding a trial, found him guilty of the said offences and sentenced him to suffer imprisonment for life and to pay a fine of Rs.100/with respect to offence punishable under Section 376 of the IPC. No separate sentence was imposed by the learned Additional Sessions Judge with respect to offence punishable under Section 342 of the IPC. The appellant, being aggrieved by his conviction and the sentence imposed upon him, has approached this court by filing the present appeal. 2. The prosecution case as put forth before the trial court was as follows : The first informant Fatima, her husband, and her daughter (name not mentioned to prevent disclosure of identity) aged about 5 years, were residing in the neighbourhood of the appellant. The daughter of Fatima (hereinafter referred to as the victim) used to go to the house of the appellant to watch Television. That, on 12.1.2004, the husband of Fatima had returned home after doing night duty and had slept. That, at about 9.30 a.m., the victim had gone out for playing. After completing the household chores, Fatima was sitting in the gallery, when she noticed that the door of the house of the appellant closed. That, after sometime, the victim came out of the house of the appellant. She was weeping. She was holding her underwear in her hand. Fatima peeped inside the house of the appellant and noticed that the appellant was naked. Fatima made inquiries with the victim, when the victim narrated to her that the appellant had made her lie down on a bed, had removed her underwear, had also removed his underwear, and had slept on her body and pressed her private part. Fatima noticed that the underwear of the victim was wet. The victim's private part was reddish. Fatima believed that the appellant had committed rape on her daughter, and therefore, reported the incident to the police. 3. In the course of investigation, the victim was referred for medical examination. Her underwear was seized in the presence of panchas. The appellant was arrested. The clothes on his person were seized in the presence of panchas. The appellant was also got medically examined. 3. In the course of investigation, the victim was referred for medical examination. Her underwear was seized in the presence of panchas. The appellant was arrested. The clothes on his person were seized in the presence of panchas. The appellant was also got medically examined. The statement of witnesses were recorded. The seized articles were sent for chemical analysis. 4. After completion of investigation, a chargesheet was filed against the appellant, pursuant to which, he was tried and convicted and sentenced as aforesaid. 5. We have heard Mr.Ujwal R. Agandsurve, the learned counsel for the appellant. We have heard Mr.F.R.Shaikh, the learned APP for the State. With the assistance of the learned counsel, we have gone through the evidence recorded during the trial. We have also gone through the impugned judgment. 6. The prosecution examined totally seven witnesses during the trial. Additionally, a number of documents were tendered in evidence, marked and exhibited. 7. It may be observed that the victim herself was not at all examined during the trial. It was submitted by the learned APP that the victim being a child of five years, was not having sufficient understanding, so as to be able to testify as to what had happened. It is difficult for us to accept this submission, as a justification for not examining the victim as a witness, in as much as, in our opinion, the learned Additional Sessions Judge ought to have examined the victim with the object of ascertaining whether she was competent to testify, and it is only thereafter that, he could have decided whether she should be examined as a witness or not. Since this exercise was not undertaken in the trial court, we cannot accept that the victim, who was the most material witness, could not have testified about what had happened to her. 8. Since the vital evidence of the victim is not available, we have examined the evidence of the other witnesses to see what it establishes. 9. Fatima (PW1) in her evidence has stated that the incident took place at about 7.00 a.m., and that, at that time, her daughter was playing in the gallery and Fatima was working inside the house, and that, when she came out in the gallery, Fatima noticed that her daughter – the victim, was not in the gallery. She, therefore, called for her daughter. She, therefore, called for her daughter. Fatima heard the sound of weeping of her daughter, coming from the house of the appellant. The daughter i.e. the victim, then came out of the house. She was weeping and holding her underwear in her hand. Fatima made inquiries with the victim as to what had happened, when the victim disclosed that the appellant had done “bad act� to her. Fatima started weeping. The neighbours came there. Fatima's husband also woke up. When her daughter had come out from the house of the appellant, Fatima had peeped inside the house of the appellant, and had noticed that he was naked. That, the victim's private part was reddish. Fatima had, however, not stated to the police that she had heard the sound of her daughter weeping, when her statement was recorded by the police, in the course of investigation. This omission to state has been duly proved. 10. The evidence of Jainul (PW2) husband of Fatima, shows that at about 10.00 a.m., Fatima called him and he got up, and that, at that time, Fatima disclosed to him that the appellant did bad act with their daughter. According to him, he had seen the wet underwear of the victim, which was in the hands of Fatima, when Fatima had called him. According to him, he made inquiries with his daughter victim, when she told that the appellant had removed her underwear and made her lie down on the bed. According to Jainul, the victim was bleeding from her private part. 11. The third witness for the prosecution is Jayshri Mhaske (PW3), who was at the material time attached to IGM hospital, as Medical Officer. She was the one who examined the victim medically, after the incident. According to her, on examination, she found the following : Labia Majora Reddish tender and swollen Vagina Patulous white discharge Hymen intact reddish, tender In the cross examination she admitted that if a girl of tender age is subjected to forcible intercourse by a fully grown up person, then the girl would have injuries on her person. She also admitted that she did not notice any injury on the person of the girl, on any other parts of her body. A suggestion was given that she had given a wrong opinion of commission of rape, which suggestion was, however, denied by her. 12. She also admitted that she did not notice any injury on the person of the girl, on any other parts of her body. A suggestion was given that she had given a wrong opinion of commission of rape, which suggestion was, however, denied by her. 12. The fourth witness Salim Shaikh (PW4) is a panch in respect of taking charge of the underwear of the victim by the police. He has, however, not supported the prosecution case, and was declared as hostile. Nothing, which would be useful to the prosecution, could be elicited from him by the learned APP, inspite of having been permitted to put questions in the nature of cross examination to this witness. 13. The fifth witness Habib Patel (PW5) is the other panch in respect of the panchnama of taking charge of the underwear. In the cross examination he admitted that he had actually not seen anything and had only signed the panchnama. 14. The witness no.6 Abbas Shaikh (PW6) is also a panch in respect of the seizure of the clothes of the accused, but he also did not support the prosecution, and was declared as hostile. 15. The seventh witness Rafiq Shaikh (PW7) is the Investigating Officer. Through him inter alia the report of the chemical analysis (Exhibit 27) was produced in evidence. 16. Since the version of the victim as to what exactly happened is not available, whether the appellant had committed rape of the victim, needs to be decided from the evidence of Fatima and Jainul. Now, even if the evidence of these two witnesses is accepted, ignoring some discrepancies, which are appearing in their evidence, still it is not possible to hold that it shows commission of rape by the appellant. Infact, what they claim to have learnt from the victim is only that the appellant had done bad act to the victim. The evidence of Medical Officer Jayshri (PW3), it may be recalled, indicates that there were no injuries on the person of the victim, except that the Labia Majora was reddish, tender and swollen. Infact, what they claim to have learnt from the victim is only that the appellant had done bad act to the victim. The evidence of Medical Officer Jayshri (PW3), it may be recalled, indicates that there were no injuries on the person of the victim, except that the Labia Majora was reddish, tender and swollen. Since the hymen was also found intact, it is not possible to hold that there had been any penetration of the male organ in the private part of the victim, and therefore, it is not possible to hold that the ingredients of an offence punishable under Section 376 of the IPC could be found in the evidence that had been adduced before the trial court. 17. There is also another aspect of the matter. Though the appellant was subjected to medical examination, the report of his medical examination was not produced before the court, and no evidence, regarding what was found in the medical examination of the appellant, was adduced. No reason or explanation for not adducing the same has been given. The relevancy of such evidence is obvious, in as much as, when a full grown person attempts to have a forcible sexual intercourse with a child of tender years, there is every possibility of his sustaining injuries on his male organ. The withholding of this evidence, together with the fact that neither the evidence of Fatima nor of Jainul, shows what exactly the appellant had done. It is not possible to hold the appellant guilty of having committed an offence punishable under Section 376 of the IPC. 18. The conviction of the appellant with respect to offence punishable under Section 376 of IPC, is therefore, not tenable. 19. There is no evidence that the appellant had wrongfully confined the victim. As a matter of fact, the evidence indicates that the victim had herself gone to the house of the appellant and had come out from his house on her own. There is, therefore, no case for holding the appellant guilty of an offence punishable under Section 342 of IPC either. 20. As a matter of fact, the evidence indicates that the victim had herself gone to the house of the appellant and had come out from his house on her own. There is, therefore, no case for holding the appellant guilty of an offence punishable under Section 342 of IPC either. 20. Though Fatima's omission to state before the police that she heard the sound of weeping of her daughter coming from the house of the appellant has been duly proved, and though Jainul's evidence that the victim was bleeding from her private part is falsified not only by the medical evidence, but also by the evidence of Fatima, we are not prepared to discard the evidence of these witnesses altogether. It is because considering all the relevant evidence and the circumstances of the case, we are of the opinion, that undoubtedly, some incident had happened between the victim and the appellant. The evidence of Fatima that the victim came out from the house of the appellant and that she was weeping and holding her underwear in her hand, which was wet, indicates that the appellant had done some wrong. No motive for cooking up a totally imaginary and a false case can be attributed to Fatima atleast no such motive has been suggested to us. The report of the Chemical Analyser shows that semen stains were found on the underwear of the victim. 21. In our opinion, though, there is no evidence to show commission of rape, there is sufficient circumstantial evidence to indicate that the appellant had committed an offence punishable under Section 354 of the IPC. The circumstance, namely, of the victim coming out of the house of the appellant, weeping, holding her underwear in her hand, which underwear was wet, and was having stains of semen, leads to the conclusion, that the appellant had used criminal force on the victim with the intention of outraging her modesty. 22. We are, therefore, inclined to set aside the conviction of the appellant in respect of the offences punishable under Sections 376 and 342 of the IPC, and the sentence imposed upon him, but convict the appellant of an offence punishable under Section 354 of the IPC. The said offence provides for a maximum punishment of Rigorous Imprisonment for two years, therefor, and in our opinion, the appellant should be awarded that sentence. 23. The said offence provides for a maximum punishment of Rigorous Imprisonment for two years, therefor, and in our opinion, the appellant should be awarded that sentence. 23. The Appeal is partly allowed and the conviction of the appellant for offence punishable under Section 376 of the Indian Penal Code and the sentence of imprisonment for life is hereby set aside and instead the appellant is convicted for an offence punishable under Section 354 of the Indian Penal Code and sentence him to Rigorous Imprisonment for two years and to pay fine of Rs.100/, in default, to undergo Rigorous Imprisonment for ten days. Since the appellant has already undergone the sentence imposed by us, the appellant be released forthwith, if not required in any other case.