Criminal Appeal No.473 of 2010

16th June, 2014

Petitioner Counsel: Mr. ABHAYKUMAR APTE
Respondent Counsel: Mr. A.S. SHITOLE

JUDGMENT

JUDGMENT :- The Appellant stands convicted for the offences punishable under section 363, 376(2)(g) and 376 of the Indian Penal Code and is sentenced to suffer R.I. for three years and fine of Rs.300/- i.d. to suffer R.I. to one month; R.I. for ten years and fine of Rs.400/- i.d. to suffer R.I. for one month and R.I. for 7 years and fine of Rs.400/- i.d. to suffer R.I. for one month, respectively, by the learned Adhoc Additional Sessions Judge, Sewree, Mumbai vide judgment and order dated 23/04/2010 passed in Sessions Case No.685 of 2009. The Appellant by this appeal questions the correctness of his conviction and sentence.

2. Few facts, as are necessary to decide the said appeal are as under :

PW8-PSI-Ravindra Muktaram Shinde was attached to the Vakola Police Station, Mumbai in July 2008. He has stated that on 28/07/2008 at about 1.00 a.m. Rafiqulla (PW2) had come to the police station and lodged a report that his daughter (PW1) was missing since 27/07/2008 from about 9.30 p.m. He has further stated that on 06/11/2008, Rafiqulla (PW2) again came to the police station and lodged a complaint/FIR as against the present Appellant and one Karan, stating that they had kidnapped his daughter (PW1). Accordingly, the FIR was registered as against the present Appellant and Karan for the offence punishable u/s.363 of I.P.C. Pursuant to the registration of the offence, PSI.-Shinde recorded the statement of the owner of the hotel where the Appellant and Karan were working. Thereafter, the investigation was handed over to API-Jitendra Nandkumar Kamble (PW9). PW9-API Jitendra Kamble, who was attached to the Vakola Police Station took over the said investigation on 10/02/2008 and proceeded with the investigation. He has stated that on 03/08/2009 Rafiqulla (PW2) came to the police station along with his daughter and the present Appellant. Accordingly, he recorded the statement of the girl (PW1). As the girl (PW1) had disclosed in her statement that she was raped by the Appellant, section 376 of the Indian Penal Code came to be added. He has stated that during investigation, he seized the clothes of the prosecutrix (PW1) in the presence of panchas vide seizure memo (Exh.31) and thereafter, sent the prosecutrix to the Nagpada Hospital for her medical examination. He has stated that thereafter, he arrested the present Appellant and seized the clothes of the Appellant in the presence of the panchas vide seizure panchanama (Exh.17). The Appellant was also sent to the Nagpada Hospital for his medical examination on 04/08/2009. After the medical examination, the prosecutrix was sent to the Dongari Childrens Home. He has further stated that on 06/08/2009, the Appellant expressed his willingness to show the hotel where he had committed the alleged rape and accordingly, a memorandum panchanama (Exh.20) came to be prepared. On 11/08/2009, P.W.No.9-Kamble sent a police team to Surat, where the Appellant had taken the prosecutrix. The present Appellant is stated to have also accompanied the police team and shown the place where he had stayed with the prosecutrix (PW 1). The said witness sent the seized clothes of the prosecutrix and the Appellant to the Chemical Analyzer and has produced the C.A. report, which is at Exh.35. He has stated that the age of the prosecutrix at the relevant time was 13 years and 3 months. After investigation charge sheet came to be filed as against the Appellant. It appears, that as the other co-accused-Karan was absconding, charge sheet could not be filed as against him and he continued to be absconding till the judgment and order was passed by the Sessions Court.

3. On filing of the charge sheet, the Court of the learned Metropolitan Magistrate, 32nd Court, Bandra, Mumbai, committed the case to the Court of Sessions, Mumbai. The learned Adhoc Sessions Judge, vide Exh.2, framed charge on 16/12/2009 as against the Appellant for the offences punishable under section 363 r/w.34 and under section 376 of the Indian Penal Code. The Appellant was charged for kidnapping and for having committed the offence of rape on the prosecutrix from 30/07/2008 to 02/08/2009 in the hut at Unpatiya, Surat, Gujarat. It is pertinent to note, that during the recording of the evidence of the prosecutrix, the charge came to be altered by the learned Additional Sessions Judge, Mumbai on 21/04/2010 and an additional charge under section 376(2)(g) of the Indian Penal Code came to be framed as against the Appellant. In the altered charge, it was stated that the Appellant alongwith the absconding co-accused-Karan committed gang rape on the prosecutrix, aged about 14 years on 27/07/2008 at 9.00 p.m. and on 28/07/2008 at 1.00 a.m. respectively in the kitchen of 'Uncle's Kitchen' canteen, Vakola Pipeline, Santacruz (E), Mumbai.

4. The Appellant denied the said charge and claimed to be tried. The prosecution in support of its case examined 9 witnesses. In order to effectively deal with the submissions advanced by the learned counsel appointed for the Appellant and the learned A.P.P. for the State, it would be useful to refer to the evidence of the prosecution witnesses, that has come on record.

5. The prosecution has examined the prosecutrix as PW1. The prosecutrix has stated in her evidence that her date of birth is 28/04/1995 and at the relevant time, she was studying in the 9th Std. She has stated that there is a hotel by the name ' Kitchen' near their house and that the said hotel was run by one Shankar Shetty. She has deposed that as she used to purchase vada-pav from the said hotel, she got acquainted with the Appellant and co-accused Karan, who were working in the said hotel and would talk to them, when she visited the said hotel. According to the prosecutrix, on 27/07/2008, at about 9.00 p.m. she had visited the shop of her father and on her way back while passing by the hotel, she was pushed by the co-accused Karan inside the kitchen and the door of the kitchen came to be latched from outside. She has stated that the present Appellant was inside the kitchen and that he kept his palm on her mouth and threatened to kill her, if she shouted. She has further stated that she was gagged by a cloth and her hands and legs came to be tied. She has stated that after gagging her mouth and tying her, the Appellant committed forcible sexual intercourse with her. She has further stated that at about 1.00 a.m. co-accused Karan opened the door and also committed forcible sexual intercourse on her. She has further deposed that the Appellant and co-accused Karan threatened her to act as per their say or else she would be killed. According to the prosecutrix, at about 3.30 a.m. the Appellant and co-accused Karan untied her hands and legs and took her to Hansbhugra road and from there in a rickshaw she was brought to the Western Express Highway. She has further stated that she was taken to Haji Ali at Worli by bus and thereafter to the Dadar railway station and from there to the Virar railway station by a local train at about 4.00 p.m. She has stated that thereafter she was taken to Gujarat by train and that when they reached the Surat railway station, she was taken to Unpatiya by an auto-rickshaw, where they reached at about 12.30 a.m. on 29/07/2008. She has further deposed that she was taken by the Appellant to a tenement, which belonged to his friend, where the Appellant and Karan slept with their friend in one room and she and the wife of the Appellant's friend slept in another room. The prosecutrix has stated that on the next day, in the morning, co-accused Karan told her that her parents had come to meet her, but as she did not find her parents, she returned back to the hut along with the Appellant. She has further stated that thereafter, Karan went missing and is absconding till date. According to the prosecutrix, the Appellant had taken one room on rent and that she was residing with him in the said room for about one year and that during her stay, the Appellant had committed sexual intercourse with her daily. She has further stated that the Appellant had also quarreled with her and assaulted her several times. The prosecutrix has further deposed that she contacted her father on phone and gave him their address, pursuant to which her father-Rafiqulla came alongwith their relatives and friends to the said place in Surat, Gujarat on 03/08/2009. She has stated that her father brought her and the Appellant back to Mumbai, pursuant to which her statement came to be recorded by the police and she came to be sent for medical examination.

6. In her cross-examination, the prosecutrix has admitted that she knew the Appellant since May, 2008. She has denied the suggestion that she had taken the Appellant to the Haji Ali Dargah. She has stated that in view of the threat given by the Appellant, she was frightened and therefore, did not know whether there is sea on both sides of the Haji Ali Dargah. It has come in her cross-examination that she had not seen any policeman, when she was taken by the Appellant to Haji Ali and thereafter, to the Virar railway station, nor had she taken any help from any person from the public. She has denied the suggestion that she had willingly accompanied the Appellant. She has admitted in her cross-examination, that during her stay with the Appellant at Satva Bridge, the Appellant was working in a saree company and that he was bringing the salary home and thus maintaining her. It has further come in the cross-examination of the prosecutrix that during her stay of one year with the Appellant, she did not have an opportunity to go out of the hut, as the Appellant used to latch the door of the hut from outside. She denied the suggestion that she had performed marriage with the Appellant in the temple of Amba Goddess in Surat and that during her stay, she would accompany the Appellant to purchase household articles. She also denied the suggestion that the Appellant had committed sexual intercourse after obtaining her consent. She also denied the suggestion that she has falsely disclosed her age, so as to falsely implicate the Appellant. The prosecutrix has also denied the suggestion that the Appellant had told her father on telephone, that he was residing happily with her and that she was deposing at the behest of her parents and falsely implicating the Appellant in the said case.

7. The next witness examined by the prosecution was Rafiqulla Hasmulla Chudihar i.e. PW 2. Rafiqulla is the father of the prosecutrix. He has stated that in the year 2008, the prosecutrix was studying in the 9th standard and that her date of birth was 28th April, 1995. He has stated in his evidence that he knew the present appellant and that the appellant along with the absconding accused Karan were serving in a hotel 'Uncle's Kitchen' and that both would regularly talk to his daughter. He has stated that on 27th July, 2008, at about 8.30 p.m., his daughter was sitting outside the house after taking meals and that when he came out of the house at about 9.15 p.m., he did not see his daughter. Accordingly, he and his wife searched for their daughter but she could not be found.

Accordingly, on 28th July, 2008, PW 2 lodged a missing report with the Vakola Police Station, Mumbai. He has stated that on 2nd August, 2008, one Rahim met him in the garage and disclosed to him that he had seen his daughter along with two boys on 31st July, 2008 near BKC City park. Pursuant to the said information, he went to the BKC City Park, but did not find his daughter. He has further deposed that he had suspicion on the present appellant and Karan and hence, went to the hotel 'Uncle's Kitchen' for making inquiry about the two. He has stated that the owner of the hotel informed him that his employees Sachin i.e. the present appellant and Karan had left the hotel on the night of 27th July, 2008. On hearing the said information, he has deposed that he was confident that Sachin and Karan had taken his daughter away.

After about ten days, he has stated that one unknown person had called on the mobile of the owner of the hotel 'Uncle's Kitchen' and at that time, he was present in the hotel. He stated that he spoke to the person who made the phone call and on asking his name, the said person started abusing him and disconnected the phone. He has further deposed that after two days, he called on the said number which had come on the mobile of the owner of the said hotel and on inquiry with the person who was talking on the telephone, came to know that the telephone was of a P.C.O. in front of Shivam Hotel at GIDC Naka, Surat. Pursuant to the said information, he immediately informed the police about the same, however, no action was taken by the police. On 6th November, 2008, he lodged a report with the police and the said report i.e. the FIR has been exhibited as Exhibit 15.

On 1st May, 2009 at about 1.40 p.m., PW 2 is stated to have received a call on his mobile, however, he could not attend to the phone call as it was on silent mode, as he was offering prayers at the relevant time. He has further stated that one Shri Tambe , whose shop is next to his residence, had disclosed to him that the appellant and his daughter had called up Shri Tambe on his mobile from a PCO at Surat and that Shri Tambe had asked the appellant as to whether he wished to talk to the family members of the prosecutrix. As the appellant had answered in the affirmative, Shri Tambe called the eldest daughter of PW 2, who asked the appellant on telephone, about the whereabouts of her sister. It is alleged on hearing the same, the appellant disconnected the line.

Thereafter, PW 2 is stated to have dialled on the same number from which the call was made on the mobile of Shri Tambe and on inquiry, the person disclosed that it was a PCO number in Classic Complex, GIDC Road, Surat. Accordingly, on 2nd May, 2009, PW 2 is stated to have informed the police about the said information and on 3rd August, 2009, PW 2 along with his relative Nisar Ahmed and friend Parvindar are stated to have gone to Surat. The said witness has stated that there were huts near the said PCO and on inquiry, by showing the photograph of his daughter, he found his daughter in a hut having tea. He has stated that as soon as his daughter saw him, she came up to him. Thereafter, the prosecutrix and the present appellant accompanied PW 2 to Mumbai, who on reaching Mumbai handed over the appellant and his daughter to the police. The police thereafter sent his daughter to the Childrens Home at Dongri and after 10-15 days, the prosecutrix returned back to her house.

It is elicited in the cross-examination of the said witness that he knew the appellant, as he was staying in Uncle's Kitchen, which was 2-3 minutes walking distance from his house. He has stated that he used to regularly place orders for food at the said hotel and that the appellant would some times bring the parcel to his house and some times his daughter would fetch the parcel. He has admitted that two months prior to the date of incident, he had seen his daughter talking to the appellant near the bus stand. It is further elicited in his cross-examination that when he went to Surat and met his daughter, he had not seen any earing, marriage string and anklet on her person, but found that she was wearing a saree. The said witness had denied the suggestion that his daughter had taken the appellant to Haji Ali and that they both had taken an oath to marry each other and that, his daughter had threatened the appellant to perform marriage with her, else, she would commit suicide by writing a letter and that she would involve the appellant in the same. He had also denied the suggestion that he had asked the appellant to convert to Islam and that then, he would perform the marriage of his daughter with him. He has also denied the suggestion that he was knowing that his daughter was in love with the appellant and that she was going to perform marriage with him and that his daughter had not disclosed to him that she had performed marriage with the appellant in Amba Temple and that he had falsely implicated the appellant in the said case.

8. Balkrishna Ramchandra Raul has been examined by the prosecution as PW 3. The said witness has been examined as a Panch to the seizure of clothes of the appellant and the prosecutrix at the time of the Appellant's arrest in the police station.

9. The prosecution has examined Dilip Sitaram Sagvekar as PW 4. The said witness has been examined as a Panch. He has stated that when he went to the Police Station, one panchnama was prepared in his presence, which is Exhibit 20 and which was signed by him. He has stated that the appellant along with the police and him went to the hotel where the appellant showed the spot, where he is alleged to have committed rape on the prosecutrix. It is elicited in the cross-examination of the said witness that he used to sell the children's clothes on the footpath and that he did not hold any license for the same and that on one occasion, he was even challaned by the police. He has admitted in his cross-examination that in his presence, the accused had not made any statement in the police station and that the hotel which was shown by the appellant was in a dilapidated condition and that at the relevant time, it was open and all customers were sitting in the said hotel.

10. PW 5 Jaya Mudanna Kumbhar has been examined by the prosecution as a panch with regard to the seizure of the clothes of the prosecutrix. The said seizure panchnama is at Exhibit 23.

11. The prosecution has examined Dr. Pratap Janardan Pawar as PW 6. Dr. Pawar was working as a Health Officer with the Mumbai Municipal Corporation at the relevant time. The said witness has produced the original Birth Register for the period from April, 1995 to July, 1995. He has deposed that on 17th July, 1995, an entry was made at Serial No. 3183 regarding the birth date of a girl to Rafiqulla Hajmulla Chudihar, a resident of Santacruz, Mumbai and that the prosecutrix's name has been stated in the said Birth Certificate and that the birth of the prosecutrix was shown to have taken place at V. N. Desai Municipal Hospital on 28th April, 1995. The said Birth Certificate has been exhibited as Exhibit 28.

12. The prosecution has thereafter examined PW 7 Dr. Shivaji Narayan Daund, the Medical Officer, who was attached to Nagpada Police Hospital. He has deposed that on 4th August, 2009, he had examined the prosecutrix. He has stated that he noticed certain marks of identification on her body and that the prosecutrix had given history, that one Sachin i.e. the Appellant had taken her forcibly to one hotel in Mumbai, kept her there for a day and thereafter was taken to Surat and kept in one room for a year, where she was subjected to sexual assaults multiple times by the Appellant.

PW 7 has deposed that on examination, he found no injury on the person of the prosecutrix and on examination of her private parts, found that her hymen was torn. He has stated that he had taken the X-ray to determine her age and that the age of the prosecutrix at the time of examination was 16-17 years and accordingly, he has issued a Medical Certificate to that effect, which is at Exhibit 30.

PW 7 has further deposed that on the same day, he examined the appellant and noted certain identification marks on his body. He noted that no injury was noticed on his body and accordingly, issued a Medical Certificate, which is at Exhibit 31.

13. Heard learned Counsel for the appellant and the learned A.P.P. Perused the evidence and all the documents pertaining to the said case. It appears that the prosecutrix at the relevant time was a minor. It has come in the evidence of the prosecutrix who has been examined as PW 1 that on 27th July, 2008 at about 9.00 p.m. she visited the shop of her father and on the way back while passing the hotel, the co-accused Karan pushed her inside the kitchen and locked the door of the kitchen from outside and thereafter, the Appellant and the co-accused Karan committed forcible sexual intercourse with her. It appears from the evidence that she was taken by the appellant and co-accused to several places i.e. Haji Ali Dargah at Worli, railway stations and then was taken to Surat by the appellant, where she was compelled to stay in Surat for almost a year. It also appears from her evidence that when her father came to Gujarat, she and the appellant were brought by her father PW 2 to the Vakola Police Station, pursuant to which both of them were sent for the medical examination.

14. The evidence of the prosecutrix's father i.e. PW 2 reveals that on 27th July, 2008 at about 9.15 p.m., his daughter was missing, pursuant to which, he lodged a missing complaint. Thereafter, after almost a year, the PW 2 - Rafiqulla found the prosecutrix at Surat and after finding her, he brought her back along with the appellant and took them to the Vakola Police Station.

15. PW 6 Dr. Pratap Pawar, the Health Officer working with the Mumbai Municipal Corporation produced the original Birth Register to show that the date of birth of the prosecutrix was 17th July, 1995, which is at Exhibit 28. Considering the evidence that has come on record i.e. the Birth Certificate and the evidence of PW 1 - the prosecutrix and PW 2 - Rafiqulla, it can be said that the prosecution had successfully proved that the prosecutrix was a minor aged 13 years, at the relevant time. Nothing significant has been brought on record to disbelieve the same even in the cross-examination of the said witnesses.

16. PW 7 Dr. Shivaji Daund, the Medical Officer, who was attached to Nagpada Police Hospital, where the prosecutrix was examined, has deposed that on examining the prosecutrix, he found that her hymen was torn.

17. Section 361 of the IPC deals with kidnapping from lawful guardianship. It is evident that the appellant had taken the prosecutrix who was a minor aged about 13-14 years at the relevant time from the lawful guardianship of her father. Consent of the prosecutrix is immaterial. In the year 2008, the prosecutrix was studying in standard 9th and it has come in the cross-examination of the said witness that she has never failed in any class and thus on 27th July, 2008, she was below 14 years. The Register of Birth i.e. Exhibit 28 also records her date of birth as 17th July, 1995 and that there is no reason brought on record to disbelieve the said evidence. Considering the evidence and the fact that the prosecutrix was below the age of 14 years at the relevant time, her consent was of no consequence. Even otherwise, it has come in the evidence of the prosecutrix that when she was returning home, co-accused Karan pushed her into the kitchen and thereafter the appellant and co-accused Karan committed forcible intercourse on her and therefore took her to various placed in Mumbai and thereafter to Surat, where the Applicant kept her for almost a year in a room. The prosecution has thus established the offence of Section 363 of the IPC as against the Applicant beyond reasonable doubt.

18. As far as Section 376 of the IPC is concerned, the evidence of the prosecutrix, by itself, is sufficient and needs no corroboration. The prosecutrix has categorically deposed the manner in which she was subjected to sexual assault at Uncle's Kitchen and thereafter, when she was taken to a hotel in Mumbai and thereafter in Surat by the appellant. There is nothing in the evidence to show even remotely, that at any point of time, the prosecutrix had consented or had gone on her own accord or will. Even otherwise, the consent of the prosecutrix would be immaterial, considering the fact that the prosecutrix was a minor at the relevant time, as is evident from the evidence that has come on record. Considering the evidence of the prosecutrix and the medical evidence, the appellant has rightly been convicted for the offence under Section 376 of the IPC.

19. Similarly, the evidence of the prosecutrix aged 13-14 years shows that on 27th July, 2008 at about 9.00 p.m., when she was returning from home, co-accused (absconding) Karan pushed her in the kitchen of 'Uncle's Kitchen', latched the door from outside, after which the Appellant gagged and tied her up, committed forcible sexual intercourse with her; thereafter co-accused Karan opened the door, came inside the kitchen and he too committed forcible sexual intercourse with her. There is nothing substantial elicited in the cross-examination of the said witness to disbelieve her testimony. A perusal of the testimony of the prosecutrix shows that she is a truthful witness who was subjected to sexual assault and that the applicant had taken advantage of her young age and vulnerability. The conviction has thus rightly been recorded by the Trial Court even for the offence punishable under Section 376(2)(g) of the IPC.

20. The Trial Court has rightly convicted the Appellant for the aforesaid offences. No interference is therefore warranted. Appeal is dismissed.

Appeal dismissed.