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Deepak Ramchandra Koli vs The State Of Maharashtra on 17 January, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 752 OF 2013

Deepak Ramchandra Koli …Appellant
Madala Pada, Near Harbadevi
Temple, Madh Marve Road,
Malad (W).Mumbai.

Versus

The State of Maharashtra and anr. …Respondents

Ms.Nasreen S.K.Ayubi appointed for the appellant

Mr. V.V. Gangurde, APP for the State/respondents.

CORAM: A.M. BADAR, J.
DATED: 17th JANUARY 2018

PC:-

1. The appellant, who was arrested on 3.9.2011 in the crime in

question had sent applications bearing No.721 of 2016 and 31 of

2018 contending that he is languishing in the jail without his appeal

is being heard by this Court. The appellant by these applications

communicated to this Court that he is unable to avail a lawyer to

prosecute his appeal and in desperation submitted that he wants to

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withdraw the appeal. That is how Miss. Nasreen S.K. Ayubi, the

learned advocate on the Panel of Legal Aid came to be appointed to

represent the appellant/accused and as the appellant/accused had

undergone morethan 6 years of rigorous imprisonment, on request

of parties his appeal is taken up for final hearing.

2. By this appeal the appellant/accused has challenged the

judgment and order dated 30th March 2013 passed by the learned

Additional Sessions Judge Boriwali Division, Dindoshi, Mumbai in

Sessions Case No.202 of 2011 thereby convicting the

appellant/accused of the offences punishable under Sections 376(2)

of the Indian Penal Code as well as under Section 506(i) of the

Indian Penal Code. For the offence punishable under Section 376(2)

of the Indian Penal Code, the appellant/accused is sentenced to

suffer rigorous imprisonment for 10 years apart from directing him

to pay fine of Rs.10,000/- and in default to undergo further rigorous

imprisonment for two years. For the offence punishable under

Section 506(i) of the Indian Penal Code, the appellant/accused is

sentenced to suffer rigorous imprisonment for one year apart from

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imposition of fine of Rs.3,000/- and in default, directing him to

undergo rigorous imprisonment for two months.

3. Case of the prosecution in brief is thus:-

The prosecutrix PW-1 is r/w of Chembur, Koliwada, Bandra

(W), Mumbai. She was student of 10th Standard taking education in

St. Joseph School, Hill Road ,Bandra(W). Her date of birth is

2.7.1995. Ramchandra Koli is maternal grand father of the

prosecutrix/PW-1. Ramchandra Koli was residing at Madh Koliwada,

Malad(W), Mumbai. The appellant/accused is maternal uncle of the

prosecutrix/PW-1. He was also residing at Madh island.

4. On 8.5.2011, the prosecutrix/PW-1 had been to the house of

her maternal aunts house. There was engagement ceremony of

Krishna Koli and therefore, the prosecutrix was in the house of her

maternal aunt named Mohini from 8.5.2011. On 12.5.2011,

maternal aunt named Mohini had left the house for purchasing fish.

The prosecutrix /PW-1 alongwith minor daughter of Mohini were

alone in the house of Mohini. At about 8.00 a.m. in the morning,

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the appellant/accused came to the house of Mohini where the

prosecutrix/PW-1 was staying. According to the prosecution case, the

appellant/accused tied both hands of the prosecutrix, gagged her

mouth by means of handkerchief and made her lie on the mattress.

She was then denuded by the appellant/accused. Subsequently, the

appellant/accused committed rape on her. After committing forcible

sexual intercourse on her by the appellant/accused, he threatened

the prosecutrix that if she indulged in shouting, she will be killed.

Thereafter, the appellant/accused again committed forcible sexual

intercourse with the prosecutrix and threatened her that if she dares

to lodge the complaint, he will kill her as well as her mother.

5. As the prosecutrix missed her periods in 3rd week of August

2011, her mother took her to Dr. Gokhale. Said Doctor then

informed her mother that the prosecutrix is carrying pregnancy of

four months duration. The mother of the prosecutrix then took her

to the KEM hospital. The prosecutrix lodged report Exh.9 against

the appellant/accused. Her fetus was then aborted at the KEM

hospital.

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6. On the basis of report lodged by the prosekcutirx/PW-1 crime

No. 319 of 2011 for the offence punishable under Section 376,

506(II) of the Indian Penal Code came to be registered against the

appellant/accused. The investigating officer collected the samples of

blood of the prosecutrix as well as the appellant/accused. He had

also seized abortus in sealed condition. Samples of blood cells and

seized abortus were sent for DNA examination of the Regional

Forensic laboratory at Kalina. Statement of witnesses came to be

recorded. The certificate regarding date of birth of the prosecutrix

came to be seized. On completion of routine investigation, the

appellant/accused came to be chargesheeted.

7. The appellant/accused pleaded not guilty to the charges

framed and explained to him and claimed for trial. In order to bring

home the guilt to the accused, the prosecution has examined in all

four witnesses. The prosecutrix was examined as PW-1. Assistant

Director of the Forensic Science Laboratory, Kalina namely, Shrikat

Hanumant Lade is examined as PW-2. His report in respect of DNA

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profile is at Exh.18. PSI Raghunath Ghughe who had recorded the

FIR of the prosecutrix is examined as PW-3 . Exh.9 is the report

lodged by the prosecutrix and Exh.10 is the FIR in printed form.

Investigating officer Fuldas Yadav Bhoye is examined as PW-4.

8. In exercise of powers under Section 311 of the Code of

Criminal Procedure, Asha Mahesh Adwani, Medical Officer attached

to Bombay Municipal Corporation of Greater Mumbai, came to be

examined as Court witness No.1. She proved extract of birth register

Exh.27.

9. The defence of the appellant/accused was that of total denial

however, he did not enter in defence. According to the defence

version, the appellant/accused and the prosecutrix were having

affair and the appellant/accused had promised to marry the

proscutrix. However, in the meanwhile, the appellant/accused came

to be arrested. In his statement under Section 313 of the Code of

Criminal Procedure, the appellant/accused has stated so in answer to

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question No.16 and also shown willingness to marry the prosecutrix

even at that time.

10. After hearing the parties, by the impugned judgment and

order the learned Trial Court, came to the conclusion that the

prosecutrix has proved the fact that the appellant/accused had

committed rape on the prosecutrix/PW-1 and her consent, if any, is

of no consequence as she was below 16 years of age. The learned

Trial Court however, concluded that the appellant/accused had

criminally intimated the prosecutrix by threatening to kill her as well

as her mother. That is how appellant/accused came to be convicted

and sentenced as indicated in the opening para of this judgment.

11. I have heard Ms. Nasreen Auyubi the learned advocate

appearing for the appellant/accused. She argued that the entire

story of the prosecution is inherently improbable. The learned

advocate argued that it is not possible for any adult man to tie both

hands of an adult woman and then commit rape on her by denuding

her. The learned advocate further argued that the tone and tenor of

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evidence of prosecurix goes to show that she was in love relations

with the appellant/accused. It seems the appellant/accused,never

applied any force nor misrepresented the prosecutrix in any manner.

Therefore, in submission of the learned advocate for the

appellant/accused, no offences as alleged are proved. In the

alternative, the learned advocate for the appellant/accused argued

that sentence imposed on the appellant/accused is too harsh. The

incident allegedly took place in the year 2011 and the normal

sentence for such type of offence at the relevant time was seven

years.

12. Per contra, the learned APP supported the impugned

judgment and order of conviction and resultant sentence by

submitting that the prosecutrix was minor at the relevant time and

the DNA report fortified the case of the prosecutrix against the

appellant/accused. Evidence of the prosecution is clear and cogent.

Hence according to the learned APP the appeal deserves to be

dismissed.

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13. I have carefully considered the rival submissions and also

perused the record and proceedings, deposition of prosecution

witnesses, the Court witness and documentary evidence. It is the

case of the prosecution that the prosecutrix/PW-1 is a niece of the

appellant/accused Deepak and he is her maternal uncle. As the

prosecutrix was minor at the time of commission of the alleged

offence her consent is of no consequence. Therefore, let us at the

outset examined whether the prosecution has proved with cogent

evidence that the prosecutrix at the time of alleged commission of

the offence i.e. on 12.5.2011 was below 16 years of age. In order to

prove age of the prosecutrix/PW-1, the prosecution has relied on

evidence of prosecutrix/PW-1 as well as that of PW-4 Fuldas Bhoye,

investigating officer. The prosecutrix has deposed her date of birth

as 2.7.1995. This evidence is not at all challenged in the cross-

examination. On the contrary in his statement under Section 313 of

the Code of Criminal Procedure, the appellant/accused in answer to

question No.2 has admitted the fact that date of birth of the

prosecutrix/PW-1 is 2.7.1995 and at the time of the incident,

prosecutrix was studying in 10th Standard at St. Joseph School, Hill

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road, Bandra (W). In cross- examination of PW-4 Fuldas Bhoye,

Police Inspector the defence has brought on record that the

Investigator has collected certificate in respect of date of birth of the

prosecutrix and upon being referred to the Investigator this

certificate is marked as Exh.25.

14. Asha Mahesh Adwani had brought original birth and death

register in the Court and produced extract thereof which on due

prove thereof is marked as Exh.27. This extract of the register

maintained in the register of Birth and Death duly corroborates

version of the prosecutrix/PW-1 to the effect that her date of birth is

2.7.1995.

15. Register under the provisions of the Registration of Birth and

Death Act 1969 is maintained in official course of business and the

same is provided for as per provisions of Section 7 of the said Act. As

provided by section 8 it is the duty of head of the house to report

the birth occurring in his residential house. Section 17(2) of the

Registration of Birth and Death Act 1969 provides that all

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extracts regarding the birth or death supplied of any person shall be

certified by the Registrar or other authorised officer and such extract

shall be admissible in the evidence as per the provisions of Section

76 of the Evidence Act. Section 76 of the Indian Evidence Act deals

with certified copies of public documents. The extract so given is

considered as certified copy of a public document and section 79 of

the Evidence Act provides for presumption as to genuineness of such

certified copy. Thus, the extract so issued does not even required

any formal proof, as Section 77 of the Evidence Act provides that

certified copies of public documents may be produced in proof of

the contents of the public document. In the case in hand, evidence

of Asha Adwani proves the contents of birth and death register

maintained as per the statute and the same is corroborating the

version of the prosecutrix/PW-1 that her date of birth is 2.7.1995.

Rather it is undisputed position. The incident in question took place

on 12.5.2011. As such the prosecutrix/PW-1 was 15 years 11

months and 10 days old at the time of the alleged incident.

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16. Now let us examine whether the prosecution has established

that the appellant/accused had committed sexual intercourse with

the prosecutrix/PW-1 and as she was below 16 years of age at that

time, her consent becomes irrelevant. It is in the evidence of PW-1

that on 8.5.2011, she had been to the residential house of her

maternal uncle as there was engagement ceremony of her maternal

uncle Krishna. She deposed that the appellant/accused is also her

maternal uncle. The prosecutrix further deposed that on 12.5.2011

when she was at her maternal aunts house, when her maternal aunt

was not at the home, the appellant/accused came, he tied her

hands, gagged her mouth by hands, pushed her on the bed, denuded

her and committed rape on her. She stated that the

appellant/accused had committed sexual intercourse with her at that

time on that occasion for four to five times. When she told him that

she will disclose this fact to her mother, the appellant/accused

threatened her that he will kill her as well as her mother. The

prosecutrix further deposed that after engagement ceremony she

returned to her house at Bandra. As she missed her periods, her

mother took her to the doctor, who informed her that she is

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pregnant. She was then admitted to KEM hospital and hospital

authorities directed her to file a complaint. Her fetus was aborted.

She lodged report Exh.9. In cross-examination, the prosecutrix

denied the suggestions that sexual intercourse in between her and

the appellant/accused took place with her consent and that she had

been to Madh island beach with the appellant/accused on two

occasions before the incident. She denied that there was intimate

relationship between her and the appellant/accused and they used to

meet regularly.

17. Cross-examination of the prosecutrix/PW-1 has not shaken

her version regarding sexual intercourse by the appellant/accused

with her on 12.5.2011. However, it is seen from the evidence of the

prosecutrix that the appellant/accused is maternal uncle and she

used to visit Madh island where the appellant/accused used to reside

frequently during her vacations. The prosecutrix in her chief-

examination itself has stated that the appellant/accused used to visit

her house at Bandra occasionally. It is thus, clear that the

prosecutrix was well acquainted with the appellant/accused. Her

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evidence shows that the appellant/accused is her maternal uncle.

The FIR(Exh.9) lodged by the prosecutrix shows that both hands of

the prosecutrix were tied at back side and then she was pushed on

the bed for committing sexual intercourse. The prosecutrix/PW-1 at

the relevant time was just below 16 years of age. She stated in her

chief-examination itself that on 12.5.2011, the appellant/accused

had committed sexual intercourse with her for 4-5 times. The

incident as such must have lasted for fairly large period. She

claimed that the appellant/accused had even gagged her mouth by

means of handkerchief. There is serious doubt as to whether a

single person can over power a woman to such extent by tying her

hands at back side gagging her mouth and then committing sexual

intercourse with her repeatedly. Be that as it may, it is seen that,

though the appellant/accused was closely related to the prosecutrix,

the prosecutrix had not chosen to disclose this incidence to her

mother even after her return from Madh island to Bandra to her own

house. For a period of four months the prosecutrix kept mum. She

disclosed the incident when she was admitted to KEM hospital for

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abortion of her fetus as she was carrying pregnancy for four months

duration.

18. The fetus/abortus was sent by PW-4 Fuldas Bhoye, Police

Inspector to Forensic Science Laboratory at Kalina, where it was

examined for DNA profile by PW-2 Shrikant Lade, Assistant Director,

Forensic Laboratory , Kalina, Mumbai. It is seen that sample of

blood of the appellant/accused as well as that of the prosecutrix

came to be collected and forwarded to the Forensic Laboratory by

covering letter dated 13.9.2011. Evidence of PW-2 Shrikant Lade,

Assistant Director, shows that he extracted DNA of abortus and

the blood samples of the prosecutrix as well as of the

appellant/accused. The DNA came to be extracted from those

samples and was amplified at 15 STR locus. After amplification of

DNA profile of the abortus and blood samples, the profiles were

analysed and PW-2 Shrikant Lade came to the conclusion that the

prosecutrix as well as the applicant/accused are biological parents of

the abortus. There is no material in cross-examination of PW-2

Shrikant Lade to disbelieve his version. Evidence of PW-2 Shrikant

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Lade, Assistant Director as well as report of DNA profile at Exh.18

thus unerringly points out that the appellant/accused had sexual

intercourse with the prosecutrix which resulted in conceiving the

prosecutrix.

19. It is thus clear from this evidence adduced by the prosecution

that the appellant/accused had committed sexual intercourse with

the prosecutrix who at the relevant time was below 16 years of age.

The incident in question took place on 12.5.2011 and as such at that

time, the prosecutrix was minor by 20 days. Therefore, her consent,

if any, is irrelevant.

20. With this evidence, the prosecution has certainly proved the

offence punishable under Section 376(2) of the Indian Penal Code as

the rape was committed on the prosecutrix when she was under 16

years of age. Minimum punishment prescribed for this offence is

rigorous imprisonment for 10 years. As such no infirmity can be

found even in punishment imposed on the appellant/accused for the

said offence.

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21. The learned trial Court has convicted the appellant/accused

for the offence punishable under Section 506(i) of the Indian Penal

Code by holding that the appellant/accused criminally intimated the

prosecutrix after commission of rape on her by threatening to kill her

as well as her mother. Evidence adduced on this aspect by the

prosecutrix does not appears to be probable and acceptable. The

appellant/accused is her near relative and she was well acquainted

with the appellant/accused. He used to visit Madh island where,

the prosecutrix/PW-1 used to reside. The prosecutrix/PW-1

maintained silence about the incident even after returning to her

house. Mother of the prosecutrix is sister of the appellant/accused.

The prosecutrix could have very well disclosed the incident to her

mother. She had not done so. Evidence regarding the alleged

threatening by the appellant/accused to the prosecutrix seems to be

totally improbable and unworthy of credit. The same appears to be

out of instinct of self preservation. Hence, conviction of the

appellant/accused for the offence punishable under Section 506(i)

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of the Indian Penal Code and the resultant sentence can not be

justified. In the result, the following order:-

ORDER

i) The appeal is partly allowed.

ii) The conviction as well as the resultant sentence imposed on the

appellant/accused for the offence punishable under Section 376(2)

of the Indian Penal Code is maintained. However, the

appellant/accused is acquitted of the offence punishable under

Section 506(i) of the Indian Penal Code.

iii) Fine amount, if any paid by him for the offence punishable

under Section 506(i) of the Indian Penal Code be refunded to him.

(A.M. BADAR, J )

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