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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211-APPEAL-369-2012-J.doc6 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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211-APPEAL-369-2012-J.docgagged 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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211-APPEAL-369-2012-J.docthereafter 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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211-APPEAL-369-2012-J.docsearching 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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211-APPEAL-369-2012-J.docthe 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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211-APPEAL-369-2012-J.doc2007 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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211-APPEAL-369-2012-J.doccorroborate 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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211-APPEAL-369-2012-J.docwhich 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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211-APPEAL-369-2012-J.doc(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.avk 16/23
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211-APPEAL-369-2012-J.doc(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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211-APPEAL-369-2012-J.doc15 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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211-APPEAL-369-2012-J.doc16 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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211-APPEAL-369-2012-J.docprosecutrix, 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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211-APPEAL-369-2012-J.docaccused. 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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211-APPEAL-369-2012-J.docversion 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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211-APPEAL-369-2012-J.doc(A. M. BADAR, J.)
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