2016 ALL MR (Cri) 705
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)

A. B. CHAUDHARI, J.

Dulandhar @ Premkumar s/o. Narayan Janbandhu Vs. State of Maharashtra

Criminal Appeal No.395 of 2013

8th July, 2015.

Petitioner Counsel: Mr. R.M. DAGA
Respondent Counsel: Mr. P.V. BHOYAR

Penal Code (1860), Ss.376, 506, 354 - Rape and criminal intimidation - Appeal against conviction - Prosecutrix stated that her step father used to fondle with her breasts and committed forcible sexual intercourse with her on daily basis by threatening her to kill - She informed matter to her mother over a period of 14 months - FIR lodged belatedly even after mother came to know about alleged crime - As such, difficult to believe evidence about threat perception - Further, no evidence to show that handwriting found in letter in which appellant allegedly admitted his guilt, was of appellant - Medical evidence that incident of rape took place 8 days before date when prosecutrix was examined i.e. date when FIR was lodged - Thus, even medical evidence did not corroborate with evidence of prosecutrix and of her mother - Offence of rape, not proved - Conviction u/Ss.376 and 506 set aside - However, evidence of prosecutrix as regard incident of fondled with her breasts by appellant was unshaken in her cross examination - Therefore, appellant is liable to be convicted u/S.354 of IPC. (Paras 7, 8, 9, 10, 11)

JUDGMENT

JUDGMENT :- Being aggrieved by the Judgment and Order dated 5th October, 2012 passed by learned Sessions Judge, Chandrapur, in Sessions Case No. 146 of 2011 convicting the appellant of the offences punishable under Sections 376 and 506 of Indian penal Code, and sentencing him to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 25,000-00, in default, to suffer imprisonment for two years, on both counts, the instant appeal has been filed.

2. It is the case of the prosecution that the complainant/informant Madhuri Dulandhar Janbandhu was earlier married to Rajesh Ramteke in the year 1993 and resided with him till 2003 and she gave birth to one daughter and a son from the wedlock with Rajesh. Rajesh deserted her. Thereafter, on 5th September, 2004, she performed another marriage with the present appellant accused Dulandhar. At the time when she performed marriage with him, her daughter was eight years, while the son was six years' old. Both Dulandhar and the complainant Madhuri used to go for labour work. On 12th July, 2011, when she came back to house in the evening, her minor daughter Ku. "S" [PW 1] was weeping and she informed her that the appellant-accused committed rape on her and also had threatened her not to disclose the incident to her mother or anybody. She also informed her that since May, 2010, the accused was doing forcible sexual intercourse with her and was giving threats to her. Due to fear of accused Dulandhar, minor daughter did not disclose the incident to anyone till 12th July, 2011. The complainant then lodged a report with the Police Station on 19th August, 2011. The offence was registered with City Police Station, Chandrapur, under Sections 376 and 506 of Indian Penal Code. Investigation was undertaken. Charge-sheet was filed. Trial was held. Appellant was convicted as above.

3. Trial Judge held that fourteen months prior to 12th July, 2011, the appellant had committed rape on a minor prosecutrix, aged about fifteen years. Hence this appeal.

4. In support of the appeal, learned Adv. Mr. R.M. Daga for the appellant took me through the entire evidence tendered by the prosecution so also the cross-examination and submitted that the evidence of Ku. "S" [PW 1] is probable, unbelievable, particularly when she was of the age of fourteen years on the date of alleged offence of rape, though she was a minor girl. He submitted that the medical evidence does not at all support her evidence and the evidence of PW 1 Ku. S is the only evidence which is the substantive evidence tendered by the prosecution. He submitted that the Trial Judge, therefore, committed an error in recording the conviction for rape and prayed for acquittal of the accused. In the alternative, he submitted that there is no even an offence of attempt to commit rape proved by the prosecution at all and at the most, the offence under Section 354 of Indian Penal Code could be said to have been proved, for which the sentence already undergone can be imposed.

5. Per contra, learned APP supported the impugned Judgment and Order of conviction and sentence and submitted that the offence of rape is a serious offence that has been duly proved by PW 1 - Ku. S, who clearly deposed about the rape committed by the appellant. Not only that, according to prosecution, Exhs. 12 and 13 are the two letters on record which are in the nature of extra judicial confession about the offence of rape. Learned APP, therefore, prayed for dismissal of the appeal.

CONSIDERATION :

6. I have gone through the entire evidence tendered by the prosecution before the Trial Court with the assistance of the learned counsel for the parties, oral as well as documentary. I have seen the letters [Exhs.12 and 13], so also the evidence of PW 1 - Ku. S, who was sixteen years on the date of tendering of evidence. The report, as earlier stated, was lodged with the Police Station on 19th August, 2011 on the information given to PW 2 Madhuri by PW 1 Ku. S on 12th July, 2011 in respect of the offence of rape that had taken place in May, 2010. No doubt, it has been brought on record by the prosecution that the accused-appellant had given threat not to disclose the incident. The said aspect of the matter about threat and silence by the prosecutrix PW 1 - Ku. S cannot be brushed aside lightly. It is in this background, the evidence of PW 1 Ku. S will have to be examined carefully, so also cross-examination. The requirement of law in such cases is that there is a duty cast on the Judge to sift the chaff from the grain and arrive at a concrete conclusion, also keeping in mind the theory of benefit of reasonable doubt. It is in this background, I have carefully examined the evidence of Ku. S who was sixteen years of age on the date of her evidence. I quote relevant portions from of her evidence from paras 2,3,4 and 5 which read thus:-

"2. ....................................................................... ..................After dinner I slept with the accused on one cot. During night hours the accused moved his hand on my breast. Therefore I got up from sleep. I got up from cot and went to sleep with mother of the accused. Thereafter I started sleeping with my grandmother."

"3. On 19.1.2010 we came back to Chandrapur. I narrated the incident to my mother. I told that the accused moved his hand on my breast. My mother did not accompany us at house of grandmother. Only myself and the accused had been to the house of grandmother. I narrated the incident to my mother on arrival at Chandrapur."

"4. ....................................................................... ..................Again in the month of May of year 2010 , the accused moved his hand on my breast. At that time my mother was not at house. She had been to do labour work. She used to come back at house at late hours. I said to the accused that I would disclose the incident to my mother. At that time the accused warned me not to disclose the incident and threatened me to kill. He had threatened me to kill my mother and brother. Therefore I did not disclose the incident to my mother. In absence of my mother, the accused used to do such type of incident. The accused used to do such type of act with me during night hours when I used to sleep with my brother. The accused used to press my breast."

"5. On one day in the month of May, 2010, my mother went out of house for work of cooking at marriage. During night hour myself and my brother were slept on cot. The accused came on my bed. The accused removed my Salwar and Kamiz. I beat the accused. I tried to raise shouts, but he pressed my mouth by hands. I gave kick blows to him. But he pressed my legs by his legs. Thereafter he removed my all clothes. He pressed my breast. At that time, I beat him by hands. He pressed my hands by his own hands. He inserted his penis in my private part. At that time I had a pain. I raised shouts. I was protesting acts of the accused. However I could not resist him. After discharge of semen he got up from my person. The accused got down from my bed. At that time, I wept. Again I told that I would disclose the incident to my mother. Again accused had threatened me."

7. From the reading of the above evidence and particularly in relation to rape in para 5, it is clear that the incident of rape is said to have taken place in the month of May, 2010. It is stated by her that she, at that time, assaulted the accused, tried to raise shouts, but he pressed her mouth by hands. She gave kick blows to him. She beat him by hands and then he committed the offence. She was threatened not to disclose to her mother. Her mother came back to house at 3.00 a.m., and on the next day, PW 1 S got up at 8.00 a.m. and was about to tell the incident to her mother, but the accused obstructed her and threatened her and he used to do forcible sexual intercourse with her. On 12th July, 2011, she wrote one chit [Exh.12] which I have seen, but it does not lead to any conclusion about the intercourse made with her by the appellant-accused. Hence Exh.12 is of no assistance to the prosecution. On 12th July, 2011, her mother asked her what her father was doing with her and that she told that he was doing forcible sexual intercourse with her. The accused came back to house from the workplace and then her mother PW 2 Madhuri asked the accused about the same and he answered in the negative. She stated that accused was doing intercourse with her on daily basis. He mother then beat the accused. On the next day, namely on 13th July, 2011, the accused went away in the morning hours and did not come back. On 15th July, 2011, PW 1 "S", her mother and brother went to the house of maternal uncle of PW 1 at Amravati. On 10th August, 2011, PW 2 Madhuri took School Leaving Certificate of PW 1 from Chandrapur, and got her admitted in a school at Amravati. On 19th August, 2011, they again came back to Chandrapur and lodged a report with the Police Station. The report was not lodged earlier due to fear of defamation. Cross-examination of this witness in paras 12, 13 and 15 reads thus:-

"12. ....................................................................... ...................It is correct to say that during night hours, I slept with the accused and he embraced me like a daughter. I slept with him just like a daughter. It is correct to say that when I awoke from sleep, I thought that the accused moved his hand on my chest. It is not correct to say that when I got up at the time the accused was in sleep. Witness volunteers that when I got up, the accused was moving his hand on my chest. I did not tell this fact to my grandmother who was slept on floor. On next day, I did not tell this incident to my grandmother. It is not correct to say that the accused did not move his hand from my chest, but I felt so."

"13. It is correct to say that my mother made inquiry from the accused and at the time the accused said that during sleep, his hand might be fallen or touched to my chest. I did not believe his words. My other believed his words."

"15. My mother came at house during night hours. She was late in arrival, therefore, I went to sleep. On next day morning I got up at 8.00 a.m. My other was at house.

Question : You beat the accused as you had no fear for him?

Answer : It is correct to say that I had no fear for the accused."

In para 17 of her cross-examination, she stated that till 12th July, 2011, i.e., till she told her mother, she did not tell the incident to anybody. In para 17, there is a detailed cross-examination as to her movements and opportunity for her to tell at least to her landlady and mother also. It is, thus, clear that the incident of rape is said to have taken place in May, 2010 and upto 12th July, 2011, over a period of fourteen months, she did not disclose the same to anybody, including her mother or the landlady. There is evidence on record that the appellant used to go for labour work right from morning and come back late in the evening and, therefore, it is difficult to believe that for fourteen months, PW 1 Ku. S was under the perception of threat not to disclose the incident to anybody including her mother.

8. Next document is Exh.13, the letter allegedly written by the appellant. The letter does show that the same discloses at the end that he had committed misdeed with his step-daughter. Perusal of Exh.13 and last portion thereof shown as "affidavit [Shapathpatra]" shows that the handwriting on the Shapathpatra and the entire letter [Exh.13] is totally different. The letter [Exh.13], however, does not show any confusion about any misdeed with the step-daughter. The prosecution did not lead any evidence of any handwriting expert, particularly when there is specific denial of writing on both these documents. She, however, admitted that the handwritings on the affidavit and the letter [Exh.13] are two different handwritings. But she stated that it is the handwriting of the accused only. In this connection, she had some further papers in the handwriting of the accused, but they were never given to police, nor the police sent any papers for examination by handwriting expert. It is, therefore, risky to place any reliance on this [Exh.13] and the Shapathpatra.

9. The next evidence if of PW 2 Smt. Madhuri, mother of the prosecutrix PW 1 - Ku. "S". On the question of aforesaid delay of fourteen months, there is a cross-examination in para 14 of her evidence which I quote hereunder:-

"14. After seeing chit, I became angry. I told this fact to landlady. I knew City Police Station at that time. It is at the distance of ½ km from my house. After getting information from my daughter, I did not go to police station. It is correct to say that I was at Chandrapur for 3 days thereafter. After arrival of my mother, I did not try to file report. At Amravati my mother and brother reside. My brother is driver. I narrated incident to my brother. I did not file report at Amravati Police station. I stayed at Chandrapur for one day when I came to take TC of my daughter. It is correct to say that on finding chit, I made inquiry from the accused and the accused denied the misdeed. It is not correct to say that he told me that he saw Sapana with one boy in corner of Azad Garden. It is not correct to say that he told me that I tried to find out said boy, but I could not find him. It is not correct to say that the accused told me that Sapana is making false accusation to create quarrels between us. It is not correct to say that I did not believe words of my daughter, therefore I did not report in police station. It is not correct to say that I felt that Sapana might have relations with some boy. ....."

The above evidence in the cross-examination, to my mind, shows that no reasonable person would believe that this witness PW 2 Madhuri having become angry on 12th July, 2011 itself when her daughter told her about the incident of May, 2010, did not feel it necessary to lodge the report or to tell anybody else. Not only that, on 15th July, 2011, she left Chandrapur for Amravati by taking School Leaving Certificate from Chandrapur school of her daughter and took admission at Amravati and still even being at Amravati after 15th July, 2011, did not lodge any report till 19th August, 2011. It is extremely difficult to go on believing such type of evidence about threat perception for all the above period. It is not possible for this Court to defy the settled principles in respect of appreciation and marshaling of evidence, that too in a criminal case where benefit of a reasonable doubt is required to given to the accused. In the instant case, I find that the learned Trial Judge has committed an error in not giving any importance to serious infirmity in the prosecution case. This is all the more so if the evidence of doctor is seen. The doctor has clearly opined that the rape might have been committed on the victim before eight days when she was examined on 19th August, 2011 at 4.00 p.m., whereas the incident of rape as stated is said to have taken place in May, 2010 and not eight days before. Thus, evidence of doctor also does not corroborate the theory of rape. I am, therefore, compelled to record a finding that the prosecution failed to prove the offence of rape.

10. In the light of the evidence which I have quoted above, one thing is clear that the appellant has committed the offence under Section 354, Indian Penal Code, since he fondled with PW 1's breasts as is her evidence and that evidence has not been shaken in the cross-examination. That clearly constitutes the offence of outraging modesty and, therefore, I record a finding that the appellant is clearly guilty of offence of outraging the modesty of PW 1. The appellant will have to be convicted of offence punishable under Section 354, Indian Penal Code and will have to be acquitted of the offence under Section 376 and 506 of Indian Penal Code.

11. The next question is about the sentence to be imposed upon the appellant for the offence punishable under Section 354, Indian Penal Code. Maximum punishment for such type of offence under Section 354 is two years and fine. Hence I propose to impose maximum punishment and the fine and in default the sentence which is already undergone. Hence the following order:-

ORDER

[a] Criminal Appeal Nos. 395 of 2013 is partly allowed.

[b] the Judgment and Order of conviction of the appellant dated 5th October, 2012 passed by Sessions Judge, Chandrapur, in Sessions Case No. 146 of 2011 for offences under Section 376 and 506 of Indian penal Code is set aside.

[c] The Appellant Dulandhar @ Premkumar Narayan Janbandhu is, however, held guilty of the offence under Section 354, Indian penal Code, and is sentenced to undergo Rigorous Imprisonment for two years and to pay a fine of Rs. 50,000-00 [fifty thousand only], in default, to undergo Rigorous Imprisonment for three years.

Appeal partly allowed.