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
avk 1/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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.
avk 2/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
(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
avk 3/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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.
avk 4/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
(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.
avk 5/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 6/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 7/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 8/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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.
avk 9/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 10/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 11/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 12/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 13/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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.
avk 14/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 15/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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. 4027avk 16/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.docsentence, 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
avk 17/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 18/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 19/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 20/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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
avk 21/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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.
avk 22/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::
201-APPEAL-1174-2012-APPA-247-2014-J.doc
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.)
avk 23/23
::: Uploaded on – 19/10/2018 22/10/2018 00:22:26 :::