Ashraf Ali @ Ashraf Abdul Shankur ... vs The State Of Maharashtra
2002 Latest Caselaw 912 Bom

JUDGMENT

J.G. Chitale, J.

1. Shri Padam with Shri Rathore for the appellant, Shri Saste, A.P.P. for the respondent. They have been heard at length in context with evidence on record, in the final hearing of the appeal wherein the appellant is assailing correctness, propriety and legality of the order of conviction and sentence passed against him, whereby he has been convicted for the offence punishable under Section 376 of Indian Penal Code and has been sentenced to under go rigorous imprisonment for 7 years and to pay a fine of Rs. 500/-, in default to undergo further rigorous imprisonment for one month.

2. Prosecution case in brief is that on 24/1/1994 at about 8 P.M. or so, the prosecutrix Rajani was asked by her mother to bring firewood from firewood stall and hence, she was proceeding to said stall situated at Shivaji Nagar along with her brother Sandeep. After she walked for some distance from her hut, as per prosecution case appellant Ashraf Ali came from behind and caught Rajani and started dragging her towards the house of his sister Sakina. His friend Karim caught hold of Rajani's brother Sandeep and Sandeep was also taken by Karim by dragging along with Ashraf Ali. Ashraf Ali took Rajani to the upper storey of the house of his sister Sakina, while Karim stayed at ground floor holding Sandeep. Appellant Ashraf Ali asked Rajani to undress herself, which she refused and at that time she heard cries of her brother Sandeep and therefore, she succumbed to the dictum of the appellant and undressed herself. Appellant lay on her body and inserted his penis in her vagina and started sexual intercourse with her forcibly. By the said act of appellant. Rajani sustained pain and she started shouting. Sakina, the sister of the appellant heard it and came to upper storey and after seeing the incident, she asked Ashraf Ali to leave Rajani to which Ashraf Ali was not ready. Good sense prevailed and as Sakina asked him to release Rajani, he at last left Rajani. Rajani escaped herself, she could not get her nicker, Salvar and Kurta. Therefore, Sakina gave her dress which she wore and Sakina took her to her house. In the way the mother of Rajani, her brother Sandeep and her neighbour Tarabai met them. Rajani was handed over to her mother. Thereafter, the F.I.R. was lodged in the police station, which rolled the ball of investigation. After investigation was completed, the charge sheet was filed against the appellant and he was tried before the Additional Sessions Judge who held him guilty of the offence of rape and passed the order of conviction and sentence mentioned above.

3. Shri Padam. Counsel appearing for the appellant submitted that the prosecution evidence is very much discrepant and therefore, it cannot be said that the prosecution has established the guilt of the appellant. He pointed out the discrepancy in the evidence of P.W. Rajani, Sandeep and Tarabai in this context. He further submitted that the medical evidence pointed out that tear of hymen was healed and therefore, it cannot be said by any stretch of imagination that Rajani was raped in recent past from the date of her medical examination. Shri Padam further submitted that there was no sufficient time for appellant to commit sexual intercourse with P.W. Rajani because, the prosecution evidence shows that there was crying of Sandeep, shouting of Rajani and by hearing that, the sister of appellant Sakina had come to the upper storey. He submitted by pointing out these circumstances, that the story told by Rajani deserves to be discarded and disbelieved.

4. Shri Padam submitted that the dress which Rajani was wearing when she had gone as per prosecution case for bringing the firewood was of Pinkish colour and same was the dress on the body of Rajani when as per prosecution case Sakina took Rajani to her mother's house. He further stated that there is discrepancy in the evidence of Sandeep so far as time is concerned and therefore the evidence given by the prosecution witnesses cannot be corelated with each other and that makes an irresistible inference that prosecution evidence is nothing but falsehood. At this juncture, Shri Padam pointed out that though, it was the incident in the midst of a busy area, none came for rescuing Rajani from the clutches of the appellant as per prosecution case and it is also very much unnatural. Finally, he submitted that the learned trial Judge has committed error of convicting and sentencing the appellant and the said judgment and order needs to be set aside and appellant needs to be acquitted.

5. Shri Saste. Additional Public Prosecutor, submitted that the evidence of Rajani by itself is sufficient for conviction and leaving aside anything, if her evidence is appreciated as it is, the conviction can be sustained. He further submitted that the evidence of Rajani has been corroborated by the evidence of Tarabai, Sandeep and Milind Gangaram Dabholkar. He submitted that the Medical Officer might have committed the mistake in forming the opinion of healing of hymen. However, he pointed out that the Medical Officer did notice the injuries on the body of Rajani which shows that she was forced to such sexual intercourse. He justified the order of conviction and sentence is correct, proper and legal and submitted that this appeal be dismissed.

6. It is well accepted now a days as principle of law and matter of legal jurisprudence in rape cases that the evidence of prosecutrix does not require corroboration as a matter of law. For the purpose of assurance the Courts may look for corroboration to the evidence of prosecutrix. The evidence of witnesses is not to be assessed in a piecemeal way. Over all impression created by the evidence adduced by the prosecution has to be kept in mind and if it satisfies the judicial mind about proving of the guilt of the accused, such evidence can be accepted and be taken as basis for conviction. What is important is to see the over all impact created by the evidence adduced by the prosecution for proving the guilt. The discrepancies of minor nature here and there do not shatter the prosecution case, if the core impires the confidence and make it "sterling sound". The discrepancy of minor variances does not tear down the prosecution case. On the contrary, it makes the evidence natural and therefore, acceptable. The human memory is fallible, rustic villagers, illiterate persons are bound to commit mistakes on small points while narrating the incident. Leave aside them, even educated persons residing in cities are vulnerable to commit such mistakes on account of complex human nature and they may be forgetting something on account of slip of memory. Therefore, whenever a witness is giving evidence in the Court on oath, what is to be seen is the core of his evidence and not the variances on fringes on unimportant points. It is to be kept in mind that those witnesses gave evidence after lapse of days, months and years on account of the unfortunate delay in hearing of the cases, in our Courts for which both the prosecution and defence are equally responsible. A girl of tender age like Rajani who is victim, if examined after 4 years, a small boy like Sandeep, if examined after 4 years from the date of incident, a rustic hut dweller like Tarabai if examined after 4 years from the incident, they are bound to commit some mistakes here and there and only on account of such mistake on small points and on minor fringes, their evidence cannot be thrown out as unreliable and false. The evidence of Milind Dabholkar has also to be looked with a special angle, because, he also happens to be disinterested in coming to the help of poor victim, and preferring to be safe like metropolitan city dwellers. It is now a days on unfortunate habit of metropolitan citizens to be aloof from the things happening around them and not to bother of its seriousness, unless a danger is caused to their safety and their well being. In addition to this, in this case the appellant happens to be a person having criminal history. It is but natural for Milind Dabholkar to be safe and see the security for himself and to pass away. Exactly he has done the same. Besides that, his evidence will have to be accepted as it is but even then it is corroborating the prosecution case, because he is saying that he saw the appellant and Karim dragging both Rajani and Sandeep towards the house of sister of appellant Ashraf Ali, he was honest enough, frank enough to tell that on account of criminal history and criminal reputation of the appellant Ashraf Ali. He was afraid of intervening. At least he was bold enough to tell the truth about his part, when he was examined as a prosecution witness in the Court. In the background of long chain of hostile witnesses to the prosecution, cumulative effect of the evidence of these witnesses will have to be considered for the purpose of coming to the conclusion whether the prosecution has proved the guilty of the appellant as law requires.

7. Dr. Vijay H. Kelvekar, stated in his evidence that when he medically examined victim Ranjani, he found that her hymen was ruptured but it was healed. It may be his error or it may be that the appellant could not achieve the final goal of completing his sexual intercourse against the will and desire of Rajani completely on account of intervention of Sakina. What he could have done must have been just the penetration of penis in her vagina and on account of that there must not have been recent tearing of the hymen. This is the plausible explanation to the evidence of Dr. Kelvekar. Beside that old rupture of the hymen by itself would not be sufficient enough to discard the evidence of victim Rajani when it is satisfying the test of truth because, the rupture of the hymen is possible by many things like riding on bicycle also. The hymen may even rupture on account of riding bicycle or on account of many other factors in that young age of Rajani. He medical examination shows that there were injuries on her body which is consistent with her evidence showing that she was raped against her will and desire. Shri Padam had argued that there was no injuries on the back of Rajani and therefore, her evidence should be discarded. This Court does not agree with him because, it is to be noted that she was lying down on the wooden floor of the upper storey of the house of Sakina and therefore, there may not have been injuries to the back of victim Rajani. In every such cases, it is not necessary that there should be injuries on the back of the victim. The injuries on her arms amounts corroboration to her evidence that she was caught forcibly by the appellant Ashraf Ali by his hands. It also shows that she was dragged forcibly by Ashraf Ali to the house of Sakina.

8. It is important to note that initially Rajani was not ready to undress herself but when she heard the cries of her younger brother, she surrendered herself to the lust of Ashraf Ali. That does not mean that the sexual intercourse was with her consent and was not against her desire. She was put to coercion tactfully by the appellant because, it has come in the prosecution evidence that he told Karim that he should hold Sandeep tightly. His intention must have been that Sandeep should cry which would force Rajani to submit herself to his lust. Thus, the discrepancies pointed out by Shri any are explained.

9. The evidence of Rajani does not suffer from any infirmity, if tested carefully of human behaviour and by human experience. She has stated the truth. She has not attempted to embroider her evidence. Her evidence is consistent with the evidence of Sandeep, Tarabai, Milind Dabholkar and Dr. Kelvekar.

10. The trial Court has appreciated the evidence properly and the conclusions drawn by the learned Additional Sessions Judge are consistent with the evidence on record and circumstances of this case. Her appreciation of evidence is correct and with lawful approach. Thus, her finding and holding appellant guilty of an offnce punishable under Section 376 of I.P.C. is correct, proper and legal. This Court confirms it.

11. Shri Padam prayed for reducing the sentence. In fact the trial Court has inflicted a lenient sentence on the appellant. It deserves to be enhanced. But since no notice has been issued for enhancement of the sentence and no prayer was made by the prosecution prior to this date, this Court does not wish to enhance it. This Court does not find any propriety or necessity of reducing the sentence inflicted on the appellant which is a befitting one at least.

12. Thus, the appeal stands dismissed. The appellant to undergo the sentence which has been inflicted on him in appropriate prison. No interference in the order of the trial Court in respect of the disposal of the property.

The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar of this Court.