35-apeal 752-13.doc
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
Kavita Page 1 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 2 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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,
Kavita Page 3 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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.
Kavita Page 4 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 5 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 6 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 7 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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.
Kavita Page 8 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 9 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 10 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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.
Kavita Page 11 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 12 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 13 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 14 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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
Kavita Page 15 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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.
Kavita Page 16 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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)
Kavita Page 17 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::
35-apeal 752-13.doc
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 )
Kavita Page 18 of 18
::: Uploaded on – 20/01/2018 21/01/2018 01:33:57 :::