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2020 DIGILAW 1031 (BOM)

Dinkar v. State of Maharashtra

2020-09-22

VINAY JOSHI

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JUDGMENT : Vinay Joshi, J. 1. Heard finally by consent of both the learned Counsel appearing for the parties through video conferencing. 2. Appellant/convicted accused has exercised his statutory right of appeal in terms of Section 374 of the Code of Criminal Procedure, to challenge his conviction recorded by the Sessions Court in Sessions Trial No. 56 of 2016 dated 25.06.2019 for the offence punishable under Sections 363, 366, 376(2)(l) of the Indian Penal Code. The Trial Court held accused guilty for aforesaid offences and imposed maximum punishment to undergo rigorous imprisonment for ten years with total fine of Rs. 7000/- with stipulation of default. Though separate punishments were imposed for each offence, the Trial Court directed that all substantive sentences shall run concurrently. 3. The prosecution case, in nut-shell is that, the Informant PW-1-Sudhakar Dalwi was living at village Godhanapur alongwith his son and daughter aged 20 years. Informants' daughter i.e. Prosecutrix was mentally retarded, deaf and dumb. On 28.03.2016, around 7.00 pm, the Informant returned to his house from the field and found that his daughter was missing. He took search for her at nearby places, however, she was not traced. During search, he learnt from PW-4-Prabhakar Khedkar that, his daughter was taken away on Luna moped by the accused. Accordingly, informant alongwith his kins went in-search of the accused. Since the accused was residing in the M.I.D.C. area, he went to village Parkhed and traced the house of accused which was at the outskirts of village. Around 2.00 am (midnight) all of them entered into the house of the accused, and saw accused and Prosecutrix in naked position. They saw that the accused was lying on the person of Prosecutrix. All of them separated both and gave them cloths to wear. Police were telephonically called at the place of occurrence. Then the informant went to concerned Khamgaon Rural Police Station and lodged report (Exhibit 23) regarding the happenings. 4. On the basis of said report, the Police registered Crime vide C.R. No. 71 of 2016. The investigation was entrusted to PW-10-A.P.I. Sanjay Nikumbh. He has visited the place of occurrence and drew the Panchanama of the scene of offence. While drawing the spot Panchanama, he made to seize a blanket which was lying on the spot. He sent Prosecutrix as well as accused for medical examination. The statement of relevant witnesses were recorded. The investigation was entrusted to PW-10-A.P.I. Sanjay Nikumbh. He has visited the place of occurrence and drew the Panchanama of the scene of offence. While drawing the spot Panchanama, he made to seize a blanket which was lying on the spot. He sent Prosecutrix as well as accused for medical examination. The statement of relevant witnesses were recorded. Seized articles including cloths of Prosecutrix and samples were sent for chemical analyzation. After completing the investigation, final report came to be filed. 5. The Sessions Court has framed charge against the accused for the offence punishable under Sections 363, 366, 376(2)(l) of the Indian Penal Code. The accused denied the guilt by claiming innocence. The prosecution has examined in all ten witnesses to establish the guilt of the accused. The defence of the accused is of total denial and in the alternative, the case of consensual sexual intercourse. On appreciation of oral and documentary evidence, the Trial Court held that the prosecution was successful in proving all charged offences with certainty and accordingly, recorded a finding of guilt and passed aforesaid mentioned sentence. 6. Learned State appointed Counsel for the appellant-accused has challenged the judgment and order of conviction. It is submitted that the Trial Court failed in appreciating the evidence in proper perspective. The defence has highlighted that there were no injury marks on the person of Prosecutrix which suggests her passive consent. It is submitted that in terms of Section 164(5)(b) of the Code of Criminal Procedure, the statement of Prosecutrix recorded by the Magistrate has to be treated as chief-examination and therefore, the Trial Court erred in recording her evidence. Besides that, it is argued that the evidence of prosecution witnesses is inconsistent, unreliable and it is risky to base conviction. On the other hand, learned A.P.P. supported the reasoning and finding recorded by the Trial Court. It is submitted that, the Prosecutrix being of unsound mind was incapable of giving a consent and therefore the act of accused would squarely fall within the meaning of 'Rape' as defined under Section 375 of the Indian Penal Code and would attract the punishment as provided under Section 376(2)(l) of the Indian Penal Code. 7. It is the prosecution case, that the accused a grownup fellow had kidnapped the Prosecutrix, a person of unsound mind with intent to force her for illicit intercourse and raped her. 7. It is the prosecution case, that the accused a grownup fellow had kidnapped the Prosecutrix, a person of unsound mind with intent to force her for illicit intercourse and raped her. As per the prosecution case, the accused took victim by his Moped to his own house and had sexual intercourse with her. Since, the accused took alternative defence of consensual sex, it is necessary to advert to the aspect of unsoundness of the Prosecutrix which assumes significance as she was 20 years of age. It has come in the evidence of the Informant who is father of the Prosecutrix that, his daughter was deaf and dumb. There is specific mention in F.I.R. (Exhibit 23) that the Prosecutrix was mentally retarded since her birth. In support of said contention, the Informant has produced disablement certificate (Exhibit 70) issued by Civil Surgeon, General Hospital, Buldhana. The Board of three Experts have certified that the Prosecutrix was 100% disabled due to severe mental disorder. The Informant in his evidence has also stated that the Prosecutrix is deaf and dumb. Pertinent to note that, the accused in his statement under Section 313 of the Code of Criminal Procedure, while answering question no. 2 admits that she is deaf and dumb. The unsoundness of Prosecutrix which is coming through documentary evidence is not shattered during cross-examination. During the course of trial, her evidence is recorded through Expert Interpreter i.e. PW-5 who was serving in deaf and dumb school. Therefore, it has amply proved that the Prosecutrix was not only deaf and dumb but suffering from mental unsoundness. 8. In order to establish the charged offences, the prosecution has examined in all ten witnesses. The evidence of PW-1-Sudhakar, PW-4-Prabhakar and PW-7-Kusumbai falls in one compartment which says that they have seen the Prosecutrix and accused in compromising position. Then the prosecution has led evidence of PW-6-Prosecutrix herself with the aid of interpreter. Besides that the prosecution has examined Medical Officer i.e. PW-3-Dr. Ashwini who has examined the Prosecutrix within 24 hours from the occurrence. The evidence of Investigating Officer is of formal nature. 9. It has come in the evidence of PW-1-Sudhakar that, on 28.03.2016, in the evening around 7.00 pm, he found that the Prosecutrix was not at his house. At this juncture, one has to note that the mother of the Prosecutrix i.e. wife of Sudhakar died earlier. The evidence of Investigating Officer is of formal nature. 9. It has come in the evidence of PW-1-Sudhakar that, on 28.03.2016, in the evening around 7.00 pm, he found that the Prosecutrix was not at his house. At this juncture, one has to note that the mother of the Prosecutrix i.e. wife of Sudhakar died earlier. Since, the Prosecutrix was not found, he took search in the Village. He learnt from PW-4-Prabhakar that the accused took the Prosecutrix by his Luna-Moped. The informant, PW-4-Prabhakar, PW-7-Kusumbai and some other villagers by hiring Auto-rikshaw went in-search of accused. They inquired the whereabouts of the accused in the M.I.D.C. area where he was working. Finally, they traced the house of accused at village Parkheda and reached there around 2.00 am midnight. They saw the accused and Prosecutrix in naked condition. The accused was lying on the person of Prosecutrix. All of them separated both, gave cloths to wear and then took both to the Police Station. 10. The evidence of PW-1-Sudhakar is on the point that he has seen the Prosecutrix and accused in compromising position, that too in the midnight, at the house of the accused. The evidence of this witness is well corroborated by PW-4-Prabhakar Khedkar. He has stated that in the evening he informed to PW-1-Sudhakar that he had seen the Prosecutrix proceeding alongwith accused towards Khamgaon by riding on Luna-Moped. Further it has come in his evidence that they searched for the accused and finally when they went to his hut they saw both of them in naked position. The accused was lying on the person of the Prosecutrix. He has made a phone call to Khamgaon Rural Police after seeing the things. 11. Again testimony of these two witnesses got corroboration from the evidence of PW-7-Kusum Dalwi who is aunt of Prosecutrix. She also joined PW-1-Sudhakar and PW-4-Prabhakar by Auto-rickshaw in search mission. She deposed that, when all of them went to the house of the accused they found both of them in said hut. All these three witnesses were cross-examined at length. However, nothing emerged to suspect the consistent evidence of these witnesses. Though there are some omissions, they are of inconsequential nature. The evidence of these three witnesses is consistent and firm on the point that they saw Prosecutrix and accused in naked position, rather in compromising position at the house of the accused. 12. However, nothing emerged to suspect the consistent evidence of these witnesses. Though there are some omissions, they are of inconsequential nature. The evidence of these three witnesses is consistent and firm on the point that they saw Prosecutrix and accused in naked position, rather in compromising position at the house of the accused. 12. The prosecution has examined PW-6-Prosecutrix who was deaf and dumb as well as mentally retarded lady. In order to overcome the difficulty of understanding her expression, her evidence was recorded with the aid of a deaf and dumb teacher i.e. PW-5-Kiran Bhagariya. The said witness was serving in Deaf and Dumb School, Khamgaon as a teacher from last 28 years. She was having experience to teach such children and was able to understand and interpret the signs, gestures and leap movements of disabled children. The Trial Court has recorded the evidence of PW-6-Prosecutrix with clarity. Not only the gist of her evidence is recorded, but the Trial Court has aptly recorded the questions put by A.P.P., followed by the answers given by the Prosecutrix by making signs and the interpretation of such signs and leap movements made by the interpreter. The mode of recording evidence of deaf and dumb witness was flow-less. The Trial Court also took pains to record the specification of signs made by the Prosecutrix in best possible manner. 13. In her evidence, the Prosecutrix stated that the accused carried her by motorcycle, embraced her, caused her to lay down, removed her clothes and inserted his penis into her vagina. Her testimony remained intact during cross-examination. She has denied the suggestions that her father had borrowed money from the accused. There is no reason to discard the testimony of mentally retarded Prosecutrix. 14. Then the prosecution has led evidence of PW-3-Dr. Ashwini Jaybhaye. On requisition of Police, she has examined Prosecutrix on 29.03.2016. Since the Prosecutrix was mentally retarded, deaf and dumb, she took history from the aunt of Prosecutrix. On examination, though she has not found external injuries, however, she found that hymen was torn at 4 & 8 O'clock position, approximately of size 0.3 to 0.5 cm, edges reddish, bleeding present, age within 24 hours, probably caused by hard and blunt object. She noted that, vaginal walls reddish in colour. She opined that, the tear Hymen is suggestive of evidence of penetration. She noted that, vaginal walls reddish in colour. She opined that, the tear Hymen is suggestive of evidence of penetration. She has also examined the accused and found some injury marks on his person. 15. The defence Counsel strenuously argued that, in absence of injury marks, the prosecution case became extremely doubtful. According to him, non-finding of injury marks is suggestive of consensual sex. In support of said contention, initially he relied on the decision of this Court in the case of Vishwas Pandurang Dhivar v. State of Maharashtra reported in 2004 LawSuit(BOM) 1663. In said case, there were no injuries on the person of Prosecutrix as well as accused and therefore, it was held that, it is a case of consent. Likewise, reliance is placed on the decision of this Court in the case of Anant @ Anna Shankar Shivde v. The State of Maharashtra passed in Criminal Appeal No. 449 of 2013 on 17.04.2017. In said case also, allegation of forcible sexual intercourse was doubted due to absence of medical evidence. In fact, those conclusions were based on the facts and circumstances of those cases. In later case of Anant, the facts were such that Prosecutrix was dragged into the forest and there was sexual intercourse on rough and stoney surface. The then Prosecutrix traveled with the accused for long time, even up to secluded place and also raised alarm for help. In that context, it was held that story of Prosecutrix appears to be unbelievable, because, though the incident took place in the rough surface at forest still there were no injury marks. In my opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when there are no injury marks, then it should be treated as case is consent. 16. Learned Counsel for the accused made alternate submission that, since the Prosecutrix was deaf and dumb, her act of submitting body to the accused without resistance amounts to passive submission. According to him, the Prosecutrix had not protested to the accused, hence, it amounts to passive consent. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Tukaram v. State of Maharashtra reported in 1978 LawSuit(SC) 259. In said case, it was alleged that the then accused a Police Personnel had rapped victim at Police Station. In this regard, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Tukaram v. State of Maharashtra reported in 1978 LawSuit(SC) 259. In said case, it was alleged that the then accused a Police Personnel had rapped victim at Police Station. Though, the Prosecutrix stated about raising alarm there were no marks of resistance on the body. In absence of injuries on the person of Prosecutrix, it was held that, it is a case of passive submission i.e. a consent by Prosecutrix. The said decision was totally based on the facts of that case. The case in hand has to be looked from a different angle, since the Prosecutrix was mentally retarded, deaf and dumb lady. Pertinent to note that in above cited cases, the then Prosecutrix were not handicapped by such deformity. Therefore, the observations of those cases can not be applied to the case in hand as it is having a distinct feature. 17. According to the defence, when the Informant and others entered into the hut, they saw that the accused was lying naked on the person of Prosecutrix who was also naked. On this point, it is submitted that, it is a case of passive submission. In order to gain strength to said stand, it is argued that there were no marks of injury on the person of the Prosecutrix. One has to appreciate the evidence in context with the facts of each case. Herein, this is a specific case about the rape on mentally retarded lady. Obviously, she being 100% mentally retarded, was incapable of knowing the nature of act and its consequences. Perhaps she may not be aware as to what amounts to sexual intercourse. Due to her mental disorder, she was not in a position to use her faculties to resist the accused. It is highly unrealistic to expect resistance from such mentally retarded lady. Perhaps, she may not know what was being done with her body. Moreover, it has come in her evidence that, the accused has slapped her, which may be the reason for her to keep quiet and submit herself. 18. The evidence of prosecution witnesses is consistent to show that the accused was found lying naked on the person of Prosecutrix. Medical evidence clearly supports the case of sexual intercourse. Moreover, it has come in her evidence that, the accused has slapped her, which may be the reason for her to keep quiet and submit herself. 18. The evidence of prosecution witnesses is consistent to show that the accused was found lying naked on the person of Prosecutrix. Medical evidence clearly supports the case of sexual intercourse. Though blood or seamen stains were not found on the blanket, however, that is not a requirement to constitute an offence of rape. Clause fifthly to Section 375 of the Indian Penal Code says that when at the time of giving consent, by reason of unsoundness of mind, the Prosecutrix is unable to understand the nature and consequences of consent then it amounts to rape. Therefore, the submission about passive consent does not carry any substance. Likewise, Clause seventhly to Section 375 of the Indian Penal Code specifies that, when the Prosecutrix is unable to communicate consent, it amounts to rape. As the Prosecutrix was of unsound mind, her passive submission cannot be construed as consent. Basically due to unsoundness of mind, she was not in position to give consent. Therefore, the act of accused squarely amounts to an offence of rape within the meaning of Section 375 of the Indian Penal Code. 19. The defence Counsel would submit that the body of Prosecutrix was active, she traveled peacefully on two wheeler, therefore, it can be inferred as her tacit consent. I have already observed above that the Prosecutrix was mentally retarded meaning thereby her mental faculty was inactive. Due to mental 100% disorder, she was unable to know the nature of act and its consequence. Therefore, there was no question of passive consent on her part. Likewise, though she traveled on two wheeler, as she was of unsound mind, no different intention can be gathered from her activities. 20. True on chemical analyzation neither blood nor semen was detected on blanket, however, mere penetration is sufficient to constitute the offence of rape, which is evident from Clause-(a) to Section 375 of the Indian Penal Code. Besides that it is worthwhile to note that, human blood was found on the garments of Prosecutrix. Though Prosecutrix was unable to identify the cloths in Court, however, the cloths were came to be seized on the very day after her medical examination. Therefore, there is nothing to raise doubt about the seizure of her cloths. Besides that it is worthwhile to note that, human blood was found on the garments of Prosecutrix. Though Prosecutrix was unable to identify the cloths in Court, however, the cloths were came to be seized on the very day after her medical examination. Therefore, there is nothing to raise doubt about the seizure of her cloths. Finding of blood stain on cloths leaves traces about the occurrence. The Prosecutrix has not only stated about the occurrence, but she has identified the accused in Court. It requires to be noted that the Prosecutrix was mentally retarded woman, however, she has specifically identified the accused in Court which reaffirms truthfulness of her version. 21. The defence has argued that, in view of the amended Clause (5-A)(b) of Section 164 of the Code of Criminal Procedure, there was no necessity to record examination-in-chief of the Prosecutrix in Court. True, as per amended provision, if, the victim of sexual assault is mentally or physically disabled woman then her statement recorded by the Magistrate under Section 164 of the Code of Criminal Procedure shall be considered as her examination-in-chief. In present case, the statement of Prosecutrix was recorded by the Magistrate in compliance with Section 164(5-A)(a) of the Code of Criminal Procedure. However, the Trial Court has again recorded her evidence in Court. It appears that, in order to save Prosecutrix from reiterating her misery before the authority, the amendment has been effected to treat her statement before the Magistrate as chief-examination. However, recording of her chief-examination once again in Court would not nullify her evidence nor there is any statutory bar. At the most it can be termed as mere irregularity. On the other hand, defence got an opportunity to hear the statement of the Prosecutrix in Court which would certainly assist to coach the questions in cross-examination. No prejudice has caused to the accused by recording examination-in-chief of the Prosecutrix once again in Court. This being irregularity, it has no impact on the evidence of the Prosecutrix. 22. The prosecution evidence unerringly points out that the accused took disadvantage of a disabled woman, took her out of her lawful guardianship with the sole intention to commit illicit intercourse and raped her. All the essential ingredients of aforesaid offences are established beyond any manner of doubt. The Trial Court has rightly appreciated the entire oral as well as documentary evidence. All the essential ingredients of aforesaid offences are established beyond any manner of doubt. The Trial Court has rightly appreciated the entire oral as well as documentary evidence. On the point of sentence, the Trial Court has imposed punishment of undergoing rigorous imprisonment for the period of 10 years for the offence punishable under Section 376(2)(l) of the Indian Penal Code. The offence of committing rape on woman who is suffering from mental or physical disability is punishable for a term of imprisonment which may extent to the imprisonment for life, with rider of minimum punishment for the period of ten years. The Trial Court has imposed the minimum punishment of ten years permissible under law and therefore, no fault can be found on said front. In view of above, the judgment and order of conviction is well justified, and accordingly, appeal being merit-less, stands dismissed. 23. Fees payable to the learned Counsel appointed for the Appellant-accused be quantified as per Rules. 24. This order be communicated to the Counsel appearing for the parties, either on the email address or on WhastApp or by such other mode, as is permissible in law.