Murgan @ Dilli Ammashi Devendra vs The State Of Maharashtra And Anr on 10 August, 2017

211-APPEAL-369-2012-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.369 OF 2012

MURGAN @ DILLI AMMASHI DEVENDRA )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Ms.Nasreen Ayubi, Appointed Advocate for the Appellant.

Ms.P.N.Dabholkar, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 10th AUGUST 2017

ORAL JUDGMENT :

1 By this appeal, the appellant / accused is challenging

the judgment and order dated 20th December 2008 passed by the

learned Additional Sessions Judge, Greater Bombay, Mumbai, in

Sessions Case No.2 of2008, thereby convicting him of the offences

punishable under Sections 341 and 376(1) read with 34 of the

Indian Penal Code (IPC). The appellant / accused is sentenced to

suffer simple imprisonment for one month for the offence

punishable under Section 341 read with 34 of the IPC, and for the

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offence punishable under Section 376(1) read with 34 of the IPC,

he is sentenced to suffer rigorous imprisonment for a period of 7

years and to pay fine of Rs.5,000/-, in default, to undergo further

rigorous imprisonment for 6 months.

2 Facts leading to the institution of the present appeal

can be summarized thus :

(a) The prosecutrix used to reside in a hostel at village

Lasangaon for the purpose of school education. To celebrate holy

month of Ramzan, she had returned to her parental house located

at Room No.12, New Mhada Transit Camp Chawl No.A/50, Kokari

Agar, Antop Hill, Mumbai. On 2nd October 2007, when she was all

alone at her house, at about 6.00 p.m., the appellant / accused

along with his two associates entered inside her house and with

the help of his two associates committed rape on the prosecutrix /

PW1. The prosecutrix / PW1 then attempted to contact her

mother telephonically, but could not. Because of the horrified

incident, being disturbed mentally, she consumed eighteen tablets

of medicine of her mother and became unconscious.

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(b) At about 10 p.m. of that day, her mother PW2 Kamrunissa

Zuber Khan returned to the house along with father of the

prosecutrix. They saw the prosecutrix lying in the house in

unconscious condition. The prosecutrix was then immediately

admitted to Sion hospital, Mumbai, for medical treatment.

(c) According to the prosecution case, the prosecutrix regained

consciousness on 4th October 2007 and she narrated the incident

to her parents. She did not disclose the same to police on that

day. On the next day i.e. on 5 th October 2007, the prosecutrix

reported the incident to police and accordingly, the First

Information Report (FIR) (Exhibit 10) came to be recorded.

Consequently, Crime No. 206 of 2007 for the offence punishable

under Section 376 read with 34 of the IPC came to be registered

with Wadala T.T. Police Station, Mumbai, against the appellant /

accused and his two associates. After registration of the crime in

question, investigation started. Police recorded spot panchnama

by visiting the spot of the incident. Clothes of the prosecutrix

came to be seized. Statement of witnesses were recorded and the

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appellant / accused came to be arrested. His clothes were also

seized. Papers of medical treatment of the prosecutrix came to be

collected. Seized articles were sent for chemical analysis. On

completion of routine investigation, the charge-sheet came to be

filed.

(d) After committal of the case, Charge for the offences

punishable under Section 341 read with 34 of the IPC and under

Section 376 read with 34 of the IPC came to be framed against the

appellant / accused. He pleaded not guilty and claimed trial.

(e) In order to bring home the guilt of the appellant / accused,

the prosecution has examined in all seven witnesses and also

relied on documentary evidence. PW1 is the prosecutrix and the

report lodged by her is at Exhibits 10 and 10A. PW2 Kamrunissa

Khan is the mother of the prosecutrix. PW3 Mohd. Nasir Shaikh is

panch witness to the seizure panchnama Exhibit 13 whereby

clothes of the prosecutrix were seized on 5 th October 2007. PW4

Dr.Gene Thomas is Medical Officer working with Lokmanya Tilak

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Hospital, Sion. She treated the prosecutrix and subsequently

referred her for further examination to Gynecologist PW6

Dr.Rajesh Dere, working in the said hospital. PW5 Abdul Gafar

Ibrahim Shaikh is a panch witness to the seizure panchnama

Exhibit 17 by which clothes of the appellant / accused came to be

seized on 7th October 2007. Suhas Anant Yadav, P.S.I. who

investigated the crime in question is examined as PW7. Spot

panchnama is at Exhibit 24.

(f) After hearing the parties, by the impugned judgment and

order, the learned trial court was pleased to convict the

appellant / accused and he was sentenced as indicated in the

opening paragraph of this judgment.

3 I have heard Ms.Nasreen Ayubi, the learned advocate

appearing for the appellant / accused. By taking me through the

entire record and proceedings, the learned advocate argued that

the evidence adduced by the prosecution goes to show that the

family of the prosecutrix and that of the appellant / accused were

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on hostile terms. Though PW2 Kamrunissa Khan claimed that the

appellant/accused had given threats of dire consequences to her,

strangely enough, no report of such threats came to be lodged by

her at any point of time. The enmity between the parties points out

that the appellant/accused is falsely implicated in the crime in

question by the prosecuting party, because of dispute over electric

connection to the house of the prosecutrix and her mother. It is

further argued that forensic evidence in no manner supports the

case of the prosecution and Chemical Analyser’s reports are

negative. The learned advocate by pointing out evidence of the

prosecutrix as well as her mother PW2 Kamrunissa Khan argued

that the incident in question allegedly took place in a populous

locality of the slum at Antop Hill. However, no independent witness

is examined by the prosecution to show that the appellant/accused

and his associates entered the house or ran away from the said

house because of sound of falling of utensils. Arrest panchnama of

the appellant/accused is not prepared nor proved during the

course of the trial. With this, the learned advocate argued that the

appellant/accused is entitled for benefit of doubt.

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4 The learned APP supported the impugned judgment

and order of conviction by contending that in the offences of this

nature, the court is bound to be sensitive and cannot get swayed

away by minor discrepancies in the evidence of prosecution. It is

further argued by the learned APP that oral evidence of the

prosecutrix is clear and consistent with other evidence adduced by

the prosecution on record. The prosecutrix has clearly deposed

about the incident by giving details thereof while in the witness

box. The evidence of the prosecutrix shows that her mouth was

gagged at the time of the incident. My attention is drawn to the

statement of the prosecutrix in the cross-examination that because

of ramzan nobody came out of the house at the relevant time. It

is further argued that evidence that evidence of PW6 Dr.Rajesh

Dere fully supports and corroborates the version of the

prosecutrix.

5 I have carefully considered the rival submissions and

also perused the record and proceedings.

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6 Evidence on record and particularly coming out from

the mouth of the prosecutrix as well as her mother PW2

Kamrunissa Khan shows that the prosecutrix was residing in a

hostel at Lasangaon for the purpose of education and she had

returned just 20 -22 days back to her parental house to celebrate

holy month of Ramzan. As seen from the evidence of PW2

Kamrunissa Khan, at the time of the incident, her daughter i.e.

PW1 was alone at the house. This fact is also vouched by the

prosecutrix i.e. PW1. There is no material in cross-examination of

both these witnesses to infer that there was somebody else

accompanying the prosecutrix at the time of the incident at her

home. On this backdrop, let us examine what the prosecutrix

deposed about the actual incident.

7 It is evidence of the prosecutrix that at about 6.00 p.m.

of 2nd October 2007, she was preparing food at her house. She

further deposed that the appellant / accused accompanied by his

two associates entered in her house. One of the associates of the

appellant / accused closed the door from inside and another

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gagged her mouth. Her thighs were pressed by both of them and

then, the appellant / accused removed the salwar and committed

rape on her. As per version of the prosecutrix, then she kicked the

appellant / accused causing his fall on the utensils kept in the

house. Because of the sound of falling of utensils, the appellant /

accused and his associates ran away from the spot. The

prosecutrix further stated that, thereafter, she tried to contact her

mother by making a telephone call. Her evidence shows that she

was out of house for that purpose for five minutes. She could not

contact her mother. Then, she decided to commit suicide and

consumed 18 tablets of medicine prescribed to her mother and

became unconscious. The prosecutrix candidly stated that she

regained consciousness on 4th October 2007 at hospital and then

disclosed the incident to her parents on 5 th October 2007. In her

cross-examination, it is elicited from her that on 4 th October 2007

itself, she disclosed the incident to her mother as well as to the

doctor. Her cross-examination further reflects that she was an

indoor patient at the hospital for twelve days. The prosecutrix

further admitted that in front of her room, there is a lane and

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thereafter a chawl. People used to go by that lane. It is

worthwhile to note that evidence of the prosecutrix that the

appellant / accused entered inside her house accompanied by his

two associates and raped her with active assistance of his

associates is not at all challenged in the cross-examination. Even

no suggestion of denials are given to the prosecutrix during the

course of her cross-examination by the defence. This fact assumes

overbearing importance in the matter, as the incident deposed by

the prosecutrix is not challenged in the cross-examination.

8 It is well settled that in sexual offences, the court is

expected to be sensitive and broader probabilities of the case of

the prosecution are required to be considered, rather than giving

importance to minor discrepancies and contradictions. If the

victim of rape states on oath that she was forcibly subjected to

sexual intercourse, her statement needs to be accepted, normally

even if it remains uncorroborated, because the very nature of such

offence makes it impossible to seek corroboration. If the evidence

of the victim of the offence is trustworthy, then there is no need of

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searching for corroboration to her testimony. However, let us

attempt to scan the evidence of the prosecution in order to

ascertain whether version of the prosecutrix gains corroboration

from other evidence on record.

9 The prosecutrix claimed that she regained

consciousness on 4th October 2007. Medical evidence which I

propose to discuss subsequently, do demonstrate that the

prosecutrix regained consciousness on 4th October 2007. She

claims that she lodged report on 5 th October 2007 after narrating

the incident to her mother and the doctor on 4 th October 2007.

The report lodged by the prosecutrix is at Exhibits 10 and 10A.

When it is compared with her substantive evidence before the

court, it is seen that evidence of the prosecutrix is perfectly in

consonance with her FIR and as such, she stands corroborated by

the FIR lodged by her.

10 PW2 Kamrunissa Khan in her chief-examination itself

has stated that she had dispute with the appellant / accused over

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the issue of electric connection and as she could not pay an

amount of Rs.2,000/- demanded by the appellant / accused on

that count, she was subjected to threats and the appellant /

accused threatened her that he will do such an act that she will

remember him throughout her life. No doubt, hostility is a double

edged weapon, but many a times, it acts as a motive for

commission of crime.

11 The mother of the prosecutrix further deposed that

upon finding her daughter unconscious on 2 nd October 2007, she

took her to Sion hospital where she was admitted as an indoor

patient. PW2 Kamrunissa Khan further deposed that on 4 th

October 2007, her daughter (PW1) regained consciousness and

had disclosed to her that on 2nd October 2007, the appellant /

accused Murgan along with two unknown persons entered in the

house and the appellant / accused forcibly committed rape on her.

12 From cross-examination of PW2 Kamrunissa Khan it is

brought on record that it was in the morning hours of 4 th October

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2007 itself that PW1 had disclosed the incident to this witness. It

is also elicited from the cross-examination of PW2 Kamrunissa

Khan that the distance between Wadala T.T. Police Station and her

house can be travelled within a span of five minutes. She also

admitted that she had not disclosed the incident to police on 4 th

October 2007 but with an explanation that she was under the

shock of the incident. This witness has also admitted that her

house is surrounded by other houses where people reside. This

witness further admitted that she had not lodged any complaint

about threats given by the appellant / accused.

13 On appreciation of evidence of PW1 prosecutrix and

her mother PW2 Kamrunissa Khan, it is crystal clear that the

incident in question was disclosed by the prosecutrix to her

mother in the morning hours of 4 th October 2007 when the

prosecutrix regained consciousness. This narration constitutes

former statement of the prosecutrix in respect of the incident

when her mind was unpolluted from the external interference.

Use of such former statement of the prosecutrix can be made to

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corroborate her version as per the provisions of Section 157 of the

Evidence Act. Evidence of PW2 Kamrunissa Khan disclosing

former statement of the prosecutrix made to her immediately after

regaining consciousness after the incident in question, fully

corroborates the version of the prosecutrix.

14 The line of cross-examination of PW2 Kamrunissa

Khan - mother of the prosecutrix is to the effect that despite

knowing about the incident on 4 th October 2007 itself and though

her house is very near to the jurisdictional police station, no

attempts were made by the prosecuting party to lodge the FIR

against the appellant / accused. The testimony of the mother of

the prosecutrix contains answer to this aspect of the matter. She

deposed that she was under mental shock. One may argue that

the incident in question took place on 2 nd October 2007, the

prosecutrix regained consciousness on 4th October 2007, her

parents as well as the doctor were informed about the incident on

4th October 2007 itself, but still the FIR came to be lodged on 5 th

October 2007, and therefore, there is delay in lodging the FIR,

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which is fatal to the prosecution. However, it needs to be kept in

mind that the prosecutrix has deposed that on 4th October 2007

because of pain and agony of the incident she could not lodge

report to the police. Her mother PW2 Kamrunissa Khan has

stated that as she was under mental shock after hearing the

disclosure by the prosecutrix, she could not lodge the report on 4 th

October 2007 itself. If properly explained, delay in lodging the

FIR in the matter of sexual offence is of no consequence. Valuable

reference can be had to this proposition from the judgment of the

Hon'ble High Court in the matter of Bharwada Bhoginbhai

Hirjibhai vs. State of Gujarath 1 wherein the Hon'ble Apex Court

has considered and enumerated several reasons for delay in

approaching police in sexual offences. Those are as under :

(1) A girl or a woman in the tradition bound non-
permissive Society of India would be extremely
reluctant even to admit that any incident which is
likely to reflect on her chastity had ever occurred.

1 AIR 1983 Supreme Court 753

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(2) She would be conscious of the danger of being
ostracised by the Society or being looked down by
the Society including by her own family members,
relatives, friends and neighbours.

(3) She would have to brave the whole world.

(4) She would face the risk of losing the love and
respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered.

(5) If she is unmarried, she would apprehend that it
would be difficult to secure an alliance with a suitable
match from a respectable or an acceptable family.

(6) It would almost inevitably and almost invariably
result in mental torture and suffering to herself.

(7) The fear of being taunted by others will always
haunt her.

(8) She would feel extremely embarrassed in relating
the incident to others being over powered by a feeling
of shame on account of the upbringing in a tradition
bound society where by and large sex is taboo.

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(9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and
family honour is brought into controversy.

(10) The parents of an unmarried girl as also the
husband and members of the husband's family of a
married woman would also more often than not,
want to avoid publicity on account of the fear of
social stigma on the family name and family honour.

(11) The fear of the victim herself being considered
to be promiscuous or in some way responsible for
the incident regardless of her innocence.

(12) The reluctance to face interrogation by the
investigating agency, to face the court, to face the
cross examination by Counsel for the culprit, and
the risk of being disbelieved, acts as a deterrent.

In the light of these observations, though infact a marginal delay

in lodging the FIR finds explanation in the case of the prosecution,

even if it is assumed that there is some delay in lodging the FIR, it

is of no consequence.

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15 As mentioned in foregoing paragraph, enmity is a

double edged weapon and can prove to be a motive for

commission of offence. In the case in hand, the prosecutrix and

her family members were residing in a slum area. As seen from

the evidence of PW2 Kamrunissa Khan, it was the appellant /

accused who had demanded an amount of Rs.2,000/- for getting

electric connection to her room. The appellant / accused is not

an employee of electric supply company. This indicates that the

appellant / accused was in a dominating position to demand an

amount of Rs.2,000/- from the family of the prosecutrix for

getting supply of electricity to their house. Considering the fact

that parents of the prosecutrix were residing in the slum area

having dominance of the appellant / accused, the fact that PW2

Kamrunissa Khan had not lodged report of previous threat by the

appellant / accused to the police, cannot be given any

overbearing importance to reject her testimony. For these reasons,

testimony of the prosecutrix as well as her mother are found to be

reliable and trustworthy.

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16 The next piece of corroborating material to the version

of the prosecutrix is the medical evidence adduced by the

prosecution on record. Evidence of PW4 Dr.Gene Thomas, so also

contemporaneous papers of medical treatment of the prosecutrix

which are at Exhibit 15A congruously shows that it was in the

night intervening 2nd October 2007 and 3rd October 2007 and

precisely at about 2.32 a.m. of 3 rd October 2007, that the

prosecutrix was admitted to Lokmanya Tilak Municipal Hospital.

Evidence of PW4 Dr.Gene Thomas shows that after regaining

consciousness, the prosecutrix /pw1 had given history of sexual

assault, and therefore, she was referred to gynecologist i.e. PW6

Dr.Rajesh Dere. As per version of PW6 Dr.Rajesh Dere, on 4 th

October 2007, he examined the prosecutrix and recorded history

given by her in medical case papers (Exhibit 15A). As per version

of this witness, upon examining the prosecutrix medically, he

found evidence of reddening in surrounding area of introitus

hymen present marginally. There was a bruise mark, pink in

colour on right elbow, medial side of the prosecutrix. PW6

Dr.Rajesh Dere deposed that after medical examination of the

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prosecutrix, he opined (Exhibit 22) that there is evidence of recent

sexual intercourse with the prosecutrix with evidence of sign of

struggle.

17 Evidence of PW4 Dr.Gene Thomas and PW6 Dr.Rajesh

Dere is gaining corroboration from papers of medical treatment at

Exhibit 15A as well as certificate Exhibit 22. Papers of medical

treatment of the prosecutrix show that the attending Medical

Officers i.e. PW4 Dr.Gene Thomas and PW6 Dr.Rajesh Dere had

recorded the history as sexual assault by three persons. Name of

the appellant / accused is figuring as the culprit in the history

recorded at 8.15 a.m. of 4th October 2007 by the Medical Officers

in the medical case papers at Exhibit 15A. These medical papers

also reveal that upon internal examination of the prosecutrix, the

Medical Officers found her hymen absent as well as reddening in

area around introitus hymen. PW6 Dr.Rajesh Dere had recorded

history given by the prosecutrix at 1.15 p.m. of 4 th October 2007,

as reflected in medical case papers Exhibit 15A wherein the

prosecutrix had narrated about sexual assault by the appellant /

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accused. This medical evidence is fully corroborating the version

of the prosecutrix.

18 Clothes of the prosecutrix came to be seized vide

seizure panchnama Exhibit 13 in presence of PW3 Mohd.

Nasir Shaikh by the Investigating Officer PW7 P.S.I. Suhas Anant

Yadav. Evidence of PW3 Mohd. Nasir Shaikh, to the effect that

upon seizure, clothes of the prosecutrix were sealed, is not

challenged in the cross-examination. Those were subjected to

forensic examination and the report of the Chemical Analyser is

at Exhibit 26. It shows that salwar and kurta of the prosecutrix

were stained with human blood. This implies that the prosecutrix

was subjected to violence and corroborates her version about the

incident.

19 Undoubtedly, the place of the incident is

surrounded by several houses. It is a populous area. House

of the prosecutrix was having lane in front of it, which

was used by passers by. The defence has criticized the

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version of the prosecution by stating that, still, no

independent witness who had seen the appellant / accused and

his associates entering in the house or leaving the house, so also

hearing sounds of falling of utensils are examined by the

prosecution. This submission is not having any merit because

evidence of the prosecutrix shows that her mouth was gagged at

the time of the incident in question. It was the month of holy

Ramzan and the prosecutrix has stated that because of this reason,

nobody was coming out of the house. Even otherwise, when

available evidence is sufficient for proving the guilt, the non-

examination of other witnesses, though available, does not render

the prosecution case suspect.

20 In the result, the prosecution has established that the

appellant / accused with the help of his associates wrongfully

restrained the prosecutrix / PW1 and committed rape on her. The

sentence imposed is also legal and appropriate. The appeal is

devoid of merit and the same is dismissed.

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(A. M. BADAR, J.)

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