201-APPEAL-1174-2012-APPA-247-2014-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1174 OF 2012
WITH
CRIMINAL APPLICATION NO.247 OF 2014
IN
CRIMINAL APPEAL NO.1174 OF 2012

NAGRAJ @ GIDDA SINNASWAMI ARJANYA )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Vikas Singh, Appointed Advocate for the Appellant.

Mr.P.H.Gaikwad-Patil, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 17th OCTOBER 2018

ORAL JUDGMENT :

1 By this appeal, the appellant/accused is challenging

the judgment and order dated 6th June 2012 passed by the learned

Assistant Sessions Judge, Mumbai, in Sessions Case No.133 of

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2012 by which the appellant/accused is convicted of offences

punishable under Sections 363 and 376 of the Indian Penal Code.

For the offence punishable under Section 363 of the Indian Penal

Code, he is sentenced to suffer rigorous imprisonment for 7 years

apart from direction to pay fine of Rs.1,000/- and in default to

undergo simple imprisonment for 3 months. For the offence

punishable under Section 376 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.5,000/- and

in default, to undergo simple imprisonment for 6 months.

2 Brief facts leading to the prosecution of the

appellant/accused and his trial are thus :

(a) The victim of the crime in question/PW1 is a young girl

aged about 15 years. Along with her mother PW2 Razia and

her sisters, she was residing in Shanti Nagar Slum,

Bainganwadi, Govandi, Mumbai. She as well as her mother

used to collect and sell scrap for the purpose of earning their

livelihood.

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(b) The incident in question allegedly took place from 2.00 p.m.

to 8.00 p.m. of 24th October 2011. The prosecutrix/PW1

and her mother PW2 Razia were intending to shift their

residence, and as such, they were packing their household

articles. At about 2 p.m. of 24th October 2011, the

PW1/prosecutrix demanded money from her mother PW2

Razia for making payment of water charges. Her mother

PW2 Razia gave her currency note of Rs.500/- and asked

her to bring change. As such, the PW1/prosecutrix left the

house and went towards shop of one Anna for getting the

change. At that time, the appellant/accused, who was

residing in the neighbourhood, came towards her and told

her to accompany him for some work. They both then went

to New Bus Depot by walking. At that place, the

appellant/accused stopped a auto rickshaw and asked the

PW1/prosecutrix to sit in the auto rickshaw. Accordingly,

she sat in the auto rickshaw along with the appellant/

accused. They remained in that auto rickshaw for half an

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hour and then went to a garden at Chembur. The

appellant/accused, at that place, gave some water to drink

to the PW1/prosecutrix. Then by walking they proceeded

and traveled some distance. The PW1/prosecutrix was then

made to sit near a heap of stones. There she felt giddiness.

Thereafter, the appellant/accused started denuding her. He

told the PW1/prosecutrix that he loved her. In this manner,

the appellant/accused took down her salwar. The

PW1/prosecutrix was undergoing menstrual cycle at that

time. She alleged that then the appellant/accused

committed rape on her. He then asked her to wear her

clothes. Then, by auto rickshaw, the appellant/accused left

her near her house at about 9.00 p.m. of 24th October 2011.

(c) On return to her house, the PW1/prosecutrix told her

mother that the appellant/accused committed rape on her.

Her mother PW2 Razia then took her to Shivaji Nagar Police

Station. From there, she was taken to Rajawadi Hospital for

medical treatment.

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(d) PW5 Shivaji Auti, Assistant Police Inspector, working with

Shivaji Nagar Police station visited Rajawadi Hospital

immediately and recorded statement of the

PW1/prosecutrix. That is how Crime No.278 of 2011 for

offences punishable under Sections 376 and 363 of the

Indian Penal Code came to be registered against the

appellant/accused at about 3.30 a.m. of 25th October 2011.

(e) The appellant/accused was then arrested and his clothes

were seized. The spot of the incident was inspected and

Spot panchnama came to be prepared in presence of PW4

Bande Pathan. Birth certificate of the PW1/prosecutrix was

collected. Report of her medical examination came to be

collected. On completion of routine investigation, the

appellant/accused was charge-sheeted.

(f) Charge for offences punishable under Sections 363 and 376

of the Indian Penal Code was framed against the

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

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In support of the Charge, the prosecution has examined in

all seven witnesses. The prosecutrix came to be examined

as PW1. The First Information Report (FIR) lodged by her is

at Exhibit 9. Her mother Razia is examined as PW2.

Dr.Sachin Kolhe, who examined the prosecutrix at Rajawadi

Hospital is examined as PW3. Exhibit 16 are the documents

of medical examination of the prosecutrix. Panch witness

Bande Pathan is examined as PW4. Exhibit 27 is the Spot

panchnama. Shivaji Auti, Assistant Police Inspector, Police

Station Shivaji Nagar, Mumbai, is examined as PW5. He

had recorded the FIR of the prosecutrix. Investigating

Officer Pradeep Vani, Assistant Police Inspector, is examined

as PW6. Dr.Vinita Jadhav, Sub-Registrar, appointed under

provisions of Registration of Births and Deaths Act, is

examined as PW7. She proved certified copy of Birth

Register Exhibit 35A as well as Birth certificate Exhibit 12

issued under the Registration of Births and Deaths Act

showing the date of birth of the PW1/prosecutrix as 21 st

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September 1996. Defence of the appellant/accused was that

of total denial.

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

order, the learned trial court was pleased to convict the

appellant/accused of offences punishable under Sections

363 and 376 of the Indian Penal Code. He is accordingly

sentenced as indicated in the opening paragraph of this

judgment.

3 I have heard Shri Vikas Singh, the learned counsel

appointed to represent the appellant/accused at the costs of the

State. By taking me through the entire record he argued that the

entire evidence of the prosecution is full of inconsistencies and

discrepancies. It is totally improbable. The driver of the auto

rickshaw, who allegedly took the PW1/prosecutrix, is not

examined. The incident allegedly took place in thickly populated

residential area of Mumbai, in broad daylight. There is no

evidence that the PW1/prosecutrix accompanied the

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appellant/accused. There is no evidence, so far as the offence

punishable under Section 376 of the Indian Penal Code is

concerned. Even the so called missing complaint lodged by PW2

Razia is not placed on record by the prosecution. Therefore, the

appellant/accused is entitled for benefit of doubt.

4 As against this, the learned APP supported the

impugned judgment and order of conviction and the resultant

sentence by contending that evidence adduced by the prosecution

is cogent, consistent and trustworthy. Evidence of the PW1/

prosecutrix is corroborated by other evidence on record adduced

by the prosecution.

5 It is clear from the case of the prosecution projected

through the FIR lodged by the PW1/prosecutrix that when she

was going to the shop of Anna for getting change of Rs.500/-, the

appellant/accused met her on the way and asked her to

accompany him for some work. That is how, she accompanied

him and the couple then traveled some distance by walking and

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thereafter they hired a auto rickshaw. After remaining in that

auto rickshaw for about half an hour, as per the version of the

prosecutrix in the FIR, the appellant/accused made her to alight

the auto rickshaw near a garden at Chembur. They sat in the

garden. She drank the water offered by the appellant/accused.

They then traveled some distance by walk and then sat near the

heap of stones where the incident of commission of rape on her

took place.

6 While in the witness box, the PW1/prosecutrix

deposed that when she was going towards the shop of Anna for

obtaining the change, the appellant/accused directed her to sit in

the auto rickshaw and took her towards the “Gym garden”.

Outside that garden he gave her water to drink and then she felt

giddy. She further deposed that she was then taken towards the

heap of stones where the appellant/accused removed her salwar,

removed his pant and committed rape on her. This act, as per

version of the PW1/prosecutrix, continued for 10 to 15 minutes.

They were on the spot of the incident for about half an hour.

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Then, they were in the garden up to 8.00 p.m. Thereafter, the

appellant/accused reached her to her house at about 8.00 p.m.

7 The PW1/prosecutrix and the appellant/accused were

residents of the same locality. Evidence of the PW1/prosecutrix

shows that she was well acquainted with the appellant/accused.

This fact is also reflected from the FIR Exhibit 9 lodged by her.

Evidence of the PW1/prosecutrix goes to show that she

accompanied the appellant/accused after leaving her house for

getting change of Rs.500/-. She accompanied the appellant/

accused by a auto rickshaw to the place of the incident. Though

the PW1/prosecutrix is claiming to have suffered giddiness

because of drinking water given by the appellant/accused, this

version of the prosecutrix is not at all trustworthy and reliable.

Soon after lodging the FIR on the day of the incident, sample of

blood and urine of the PW1/prosecutrix was collected and it was

sent to the forensic laboratory in order to ascertain whether she

was administered some stupefying substance or drug. The

Chemical Analyzer’s report at Exhibit 24 makes it clear that

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neither blood nor urine of the PW1/prosecutrix was showing

presence of narcotic drugs like heroin, morphine, methaqualone,

cocaine or psychotropic substances such as alprazolam, orazepam,

diazepam, nitrazepam. It was not containing any cannabis

constituents, as seen from the report of the Chemical Analyzer.

Thus, theory of the PW1/prosecutrix that after she suffered

giddiness due to consumption of some stupefying substance

through water, the appellant/accused had committed rape on her

cannot be believed. However, there is no reason to disbelieve her

version that the appellant/accused had committed sexual

intercourse with her at the secluded place where she was taken.

8 Spot panchnama is at Exhibit 27. The spot of the

incident was shown by the PW1/prosecutrix. PW4 Bande Pathan

had proved this spot panchnama. The spot of the incident, as seen

from the Spot panchnama Exhibit 27, appears to be a secluded

place. It was besides Chheda Nagar gymkhana. The Spot

panchnama reflects that it was an open plot of land. On southern

side of the spot of the incident, there was A Wing of Mandvi

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Apartment. On northern side of the spot, Chheda Nagar

gymkhana was situated. On east and west side of the spot of the

incident, there were roads. The Spot panchnama does not show

that the spot of the incident was frequented by locals. Nothing is

elicited from cross-examination of PW4 Bande Pathan to show

that the spot of the incident was visible to the people at large.

9 The PW1/prosecutrix was subjected to medical

examination and she was examined by PW3 Dr.Sachin Kolhe of

Rajawadi Hospital on 24th October 2011. The PW1/prosecutrix

has stated history of her forceful kidnapping and administration of

liquid to her, while narrating the history to this Medical Officer.

However, this appears to be due to instinct of self reservation by

the PW1/prosecutrix. Evidence of the PW1/prosecutrix shows

that she had voluntarily accompanied the appellant/accused to

the place of the incident.

10 In medical examination of the PW1/prosecutrix, PW3

Dr.Sachin Kolhe had not noticed any external injuries or internal

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injuries. However, he noticed openings in the hymen of the

PW1/prosecutrix. Evidence of PW3 Dr.Sachin Kolhe shows that

there was no sign of use of force on the PW1/prosecutrix. This

also indicates that the PW1/prosecutrix was a consenting party to

what had happened with her on the date of the incident i.e. on

24th October 2011. I am inclined to come to this conclusion

because there is nothing in the cross-examination of the

PW1/prosecutrix to disbelieve her version regarding the

appellant/accused taking her to the spot of the incident and then

committing sexual intercourse with her. Ignoring her theory of

administration of stupefying substance, her evidence makes it

clear that she was in company of the appellant/accused from 2.00

p.m. to 8.00 p.m. of 24th October 2011.

11 Thus, evidence of the PW1/prosecutrix proves the fact

that the appellant/accused had committed sexual intercourse with

her on 24th October 2011 near Chheda Nagar gymkhana of

Mumbai. Consent on the part of the PW1/prosecutrix to this act

of the appellant/accused is of no consequence, as by examining

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the Sub-Registrar of Births and Deaths registration, namely,

Dr.Vinita Jadhav as PW7, the prosecution has proved age of the

PW1/prosecutrix. Evidence of PW7 Dr.Vinita Jadhav shows that

date of birth of the PW1/prosecutrix was 21 st September 1996.

This witness has proved certified copy of extract of the Birth

Register at Exhibit 35A. Birth certificate of the PW1/prosecutrix,

issued as per provisions of Sections 12 and 17 of the Registration

of Births and Deaths Act, 1969, as well as the Rules framed

thereunder, is at Exhibit 12. It shows date of birth of the

PW1/prosecutrix as 21st September 1996. The same is as per

entry in the statutory Birth register. Thus, on the date of the

incident i.e. on 24th October 2011, the PW1/prosecutrix was

below 16 years of age. Her consent, if any, as such, is irrelevant.

In this view of the matter, sexual intercourse by the

appellant/accused with the PW1/prosecutrix amounts to rape.

Thus, I find no infirmity in the finding of the learned trial court

that the appellant/accused had kidnapped the PW1/prosecutrix

and committed sexual intercourse with her.

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12 So far as quantum of sentence is concerned, the

learned trial court was pleased to sentence the appellant/accused

for rigorous imprisonment of 10 years apart from imposition of

fine and default sentence for the offence punishable under Section

376 of the Indian Penal Code. It is well settled that it is the duty

of every court to award proper sentence having regard to the

nature of the offence and the manner in which it was committed.

The sentencing court is expected to consider all relevant facts and

circumstances bearing on the question of sentence and proceed to

impose a sentence commensurate with the gravity of the offence.

The sentence is required to be adequate, just and proportionate

with the gravity and nature of the crime. At the same time,

circumstances of the accused are also required to be kept in mind

while imposing the sentence, as one of the objects of the criminal

justice system is to rehabilitate the transgressors and the

criminals.

13 Prior to substitution by the Criminal Law

(Amendment) Act, 2013, the offence of rape was punishable with

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imprisonment of either description for a term which shall not be

less than 7 years but which may be for life or a term which may

extend to 10 years apart from fine. Sub-section (2) of Section

376 of the Indian Penal Code, however, was prescribing the

punishment of rigorous imprisonment for a term which shall not

be less than 10 years but which may be for life, apart from

imposition of fine. The case in hand is not falling in sub-section

(2) of Section 376 of the Indian Penal Code, as it stood prior to

amendment in the year 2013.

14 In the matter of State of Himachal Pradesh vs.

Mange Ram1 the evidence on record was showing that the

prosecutrix was below 16 years of age. It is held thus in paragraph

16 by the Honourable Apex Court while sentencing the accused in

that case :

“16 In view of the foregoing conclusions, we
reverse the findings of the learned Sessions Judge
which was confirmed by learned Single Judge and
find that the accused is guilty of the offence
punishable under Section 376 I.P.C. As regards the
1 2000 CRI.L.J. 4027

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sentence, we take a lenient view for the reason that
the prosecutrix and accused are related. They were
both teenagers with an age difference of about 2-3
years. Both were immature and young. Evidence
indicates no marks of violence at all on any part of
the body of the prosecutrix. The incident happened
in 1993. After the acquittal by passage of time, the
members of the two families must have buried their
hatchet if any arisen on account of this incident. The
learned Counsel for the respondent argued that a
further order for custodial sentence at this distance
of time may cause rapture to social harmony in the
village life and may only help to rekindle the flames
of anger which have been smouldering for so long
between near relatives. Having regard to all these
matters, we hold that sentence already undergone
by the accused would be sufficient to meet the ends
of justice, and we do accordingly.”

15 In the matter of Zindar Ali SK vs. State of West

Bengal and Another2 there was no love affair between the

prosecutrix and the accused but the accused was after the

prosecutrix requesting her to marry him and ultimately committed

2 2009 CRI.L.J. 1324

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forcible sexual intercourse with the prosecutrix. While dealing

with quantum of sentence, following are the observations of the

Honourable Apex Court in paragraph 15 of the judgment :

“15 This takes us to the last argument about the
quantum of sentence. The Courts below have
awarded 10 years of imprisonment and a fine of
Rs.5,000. In our opinion, considering the fact that
the incident took place about 6 years back and the
fact that the accused is behind the bars for last about
5 years, as also poverty on the part of the accused,
we feel that the sentence already suffered would be
sufficient. The sentence of fine is however,
confirmed. Fine, if recovered shall be paid to the
Prosecutrix. She shall be intimated by sending notice
to her. We, accordingly, modify the sentence. The
appeal is disposed of with this modification.”

16 In the matter of Phul Singh vs. State of Haryana3, the

accused was aged about 22 years and was not a habitual offender.

He was found guilty of the offence punishable under Section 376

of the Indian Penal Code. While dealing with quantum of

sentence, following are the observations of the Honourable Apex

3 1980 CRI.L.J. 8

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Court found in paragraphs 7 and 8 of the judgment :

“7 He is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife
and a farm to look after. Given correctional courses
through meditational therapy and other measures,
his erotic aberration may wither away. A man like
the appellant has a reasonable prospect of shaping
into a balanced person, given propitious social
environs, curative and congenial work and
techniques of internal stress release or of
reformatory self expression.”

“8 In this background, we regard a four year term
of rigorous imprisonment more hardening than
habilitative, even though we deplore the sex
violence the young appellant has inflicted on his
cousin’s wife snatching a tricky opportunity. Even
so, the incriminating company of lifers and others
for long may be counter-productive, and in this
perspective, we blend deterrence with correction
and reduce the sentence to rigorous imprisonment
for two years. We wish to emphasise that the special
circumstances of this case constrain us to relent a
little on principle because the restorative approach

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to sentencing has been jettisoned by the courts
below.”

17 Lastly, in the matter of State of Rajasthan vs. N.K.

(Accused)4 the Honourable Apex Court has observed thus while

deciding the quantum of sentence for the offence punishable

under Section 376 of the Indian Penal Code.

“19 Now remains the question of sentence. The
incident is of the year 1993. The accused was taken
into custody by the police on 3.11.1993. He was not
allowed bail. During the trial as also during the
hearing of the appeal by the High Court he remained
in jail. It is only on 11.10.1995 when the High Court
acquitted him of the charge that he was released
from jail. Thus he had remained in jail for a little
less than two years. Taking into consideration the
period of remission for which he would have been
entitled and the time which has elapsed from the
date of commission of the offence, we are of the
opinion that the accused-respondent need not now
be sent to jail. It would meet the end of justice if he
is sentenced to undergo imprisonment for the period
already undergone by him and to a fine of Rs.2000/-

4 2000 CRI.L.J.2205

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with further simple imprisonment of one year and
nine months in default of payment of fine as passed
by the Trial Court. The appellant is allowed time till
1st May, 2000 for payment of fine. The accused-
respondent is on bail. The bail bonds shall stand
discharged on payment of fine as directed. Ordered
accordingly.”

18 In the case in hand, because of penury the

appellant/accused was required to be provided with legal aid to

prosecute his appeal before this court. The offence took place in

October 2011. At the relevant time, the sentence procedure for

the offence punishable under Section 376 of the Indian Penal

Code was ranging from 7 years to imprisonment for life. In the

case in hand, the appellant/accused, at the time of commission of

offence was barely 22 years old, as seen from the charge-sheet

itself. Considering age of the appellant/accused and the fact that

the appellant/accused had no criminal antecedents, sentence

imposed on him by the learned trial court appears to be too harsh.

It needs to be scaled down to rigorous imprisonment for 7 years

for the offence punishable under Section 376 of the Indian Penal

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Code. So far as the sentence of imprisonment as well as fine

imposed for the offence punishable under Section 363 of the

Indian Penal Code is concerned, the same is maintained. In the

result, the following order :

ORDER

i) The Appeal is partly allowed.

ii) Conviction and resultant sentence of the appellant/accused

for the offence punishable under Section 363 of the Indian

Penal Code is maintained.

iii) Conviction of the appellant/accused for the offence

punishable under Section 376 of the Indian Penal Code is

maintained. However, his sentence on this count is

modified, and for this offence, he is directed to undergo

rigorous imprisonment for 7 years and to pay fine of

Rs.5,000/- and in default, to undergo further simple

imprisonment for 6 months.

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iv) The appeal is accordingly disposed off.

v) In view of disposal of the appeal, Criminal Application

No.247 of 2014 stands disposed off.

(A. M. BADAR, J.)

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