Ramkisan Surajmal Harijan vs The State Of Maharashtra
2011 Latest Caselaw 277 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

             CRIMINAL APPELLATE JURISDICTION




                                               
                 CRIMINAL APPEAL NO. 600 OF 2008




                                    
     Ramkisan Surajmal Harijan                           ..Appellant
     (Through Jail)   
           Vs.
                     
     The State of Maharashtra                            ...Respondent

                              ---
      


     Mr. Irfan Sait, Advocate appointed for the Appellant.
   



     Ms. R.S. Gadhvi, APP for the State.
                            ----





                         CORAM : M.L. TAHALIYANI, J.

DATED : DECEMBER 23, 2011

JUDGMENT:-

1. The appellant impugns the judgment and

order dated 17.1.2008 passed by the Additional Sessions Judge,

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Greater Mumbai in Sessions Case No.330 of 2006. The

appellant was tried for the offences punishable u/ss 363, 376(2)

(f) and 377 of the Indian Penal Code. He has been acquitted of

the offences punishable u/ss 363 and 376(2)(f) of I.P.C.

However, he has been convicted for the offence punishable u/s

377 of I.P.C. and is sentenced to suffer R.I. for 10 years and to

pay a fine of Rs.5000/- and in default to undergo R.I. for six

months.

2. The appellant feels aggrieved by his conviction and

sentence imposed upon him. Hence, this appeal.

3. Before I advert to the evidence on the basis of

which the appellant has been convicted, let me briefly state the

case of prosecution and the evidence adduced during the course

of trial.

4. The complainant Mrs. Manisha Virednra Gupta

with her husband and three children was staying at Markhurd-

Ghatkopar Link Road, near sub-terminal, Mumbai-400 043.

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Duty hours of her husband were from 12.00 to 8.00 p.m. He

was selling kulfi and ice cream. The youngest child of the

complainant was Miss. Rani aged about 10 months who is

victim of the offence in question. It appears that the appellant

was staying alone and was working as labourer with brick

traders. He was engaged in loading and unloading of the bricks.

He was known to the complainant and her family members. He

used to visit her house and used to play with her child.

5. The incident had occurred on 10.1.2006. The

husband of complainant had returned from his duty at about

7.00 p.m. and had again gone to sell bhel-puri at about 8.00

p.m. After the departure of the husband of complainant, the

appellant had visited complainant's house and started playing

with victim Rani. He took away the victim on the pretext that he

would play with her. It is alleged that taking advantage of the

lonely place near the truck parked by the side of the road, the

appellant had inserted his penis in anus of the victim which

resulted into severe injuries to the victim. The victim started

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crying. The complainant, therefore, rushed to the direction of

the cries of her daughter. She had seen the appellant running

away from the place by the side of the truck. When the

complainant picked up her daughter from the floor, it was

noticed by her that there was bleeding from her vagina and anus

due to injuries. She, therefore, immediately rushed to her

neighbour Tulsadevi Gupta. Both of them took the child to the

Shatabdi Hospital. The victim was referred to Lokmanya Tilak

Hospital, Sion for treatment as injuries were of serious nature.

The matter was referred to the Police on the intervening night of

10th and 11th January 2006, and the offence was registered on

11th January, 2006 at about 5.45 p.m. In the meantime, the

Police had also visited the hospital. The victim was examined

by the doctor. The doctor found multiple cuts on both lateral

walls of anal canal. Two cuts were very prominent. One was 2.5

cm length and other was 1.5 cm. Both cuts were muscle deep

involving superficial layer of sphincter. However, there were no

injuries to vagina, urethra, and labia majora and they were

found intact. Injury was found only in anus. The victim was

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treated by the doctor. The doctor had opined that injuries were

fresh and were caused within 24 hours of the examination. The

statements of the witnesses were recorded and after completion

of the investigation, a chargesheet was filed and he case was

committed to the court of Sessions by the Magistrate.

6. During the course of trial, the Addl. Sessions Judge

had framed charge against the appellant for the offences

punishable u/ss 363, 376(2)(f) and 377 of the I.P.C. The

appellant had pleaded not guilty and claimed to be tried.

7. The prosecution has examined 7 witnesses in

support of its case. PW-1 is mother of the victim, PW-2

Dnyandeo Sathe is the witness who had seen the appellant

carrying the child, PW-3 Pappu Gupta is also on the same point,

PW-4 Annabhau Panjge is a panch witness, PW-5 Dr. Prashant

Adivarekar, the Medical Officer who had examined the victim,

and PW-6 and 7 are the Police Officers who had investigated

the case.

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8. As already stated that the appellant has been

acquitted of the offences punishable u/ss 363 and 376(2)(f) of

the I.P.C. on the basis of the opinion given by the Medical

Officer. The learned Sessions Judge had believed the evidence

of PW-1 and other witnesses to the effect that the victim was

seen with the appellant. The evidence of PW-1 to the effect that

she had seen the appellant running away from the place of

offence was also believed. The learned Trial Court, after

considering the evidence of the witnesses and the Medical

Officer, had come to the conclusion that the accused had

committed unnatural carnal intercourse against the order of

nature.

9. During the course of hearing, it was submitted

before me that none of the witnesses had seen the appellant

indulging into unnatural carnal intercourse with the victim. It

was submitted by Mr. Sait, learned counsel appearing for the

appellant that the nature of injuries found by the Medical

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Officer could be caused by the fall on the ground or by some

other incident of the same nature. It was submitted that even if

the injuries were caused by the appellant, there is no evidence

to show that the appellant had indulged into the carnal

intercourse against the order of nature.

10. I have gone through the evidence of PW-1

Manisha, PW-2 Dnandeo Sathe, and PW-3 Pappu Panchma

Gupta. I do not find anything in the cross examination of PW-1

to show that she had given false statement that the victim was

taken by the appellant and that she had seen the appellant

rerunning away from the place where her daughter was found in

an injured condition. The appellant was known to PW-1. It is

admitted by PW-1 that the appellant had been visiting their

place. There is nothing on record to indicate that PW-1 had any

reason to implicate the appellant in a case of this nature by

making false allegations. It was suggested that PW-1 had taken

loan of Rs.500/- from the appellant and she had not returned the

same and she had no intention to do so. Considering the nature

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of injuries reported by the Medical Officer, it does not appeal to

reason that the complainant would cause such serious injuries to

her own daughter to create a false case against the person from

whom a small amount of Rs.500/- was taken as loan. In my

considered opinion, the evidence of PW-1 is rightly believed by

the Trial Court.

11.

The evidence of PW-2 was also rightly believed.

PW-2 is an independent witness. He knew the appellant and

PW-1. He also knew the victim and he had seen the appellant

carrying the victim with him at about the same time when the

said incident had occurred. PW-2 is a shopkeeper having

grocery shop in the said area. He also knew the appellant and

PW-1 and children of PW-1. He had also seen the appellant

carrying the victim with him. There is very short cross

examination of these two witnesses which had not in any

manner shattered the evidence of any of these two witnesses.

PW-6 was working as Station House Officer. While he was on

duty at Dewnar Police Station, husband of PW-1 visited the

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Police Station and informed the Police regarding the incident.

PW-6, therefore, visited Shatabdi Hospital. He was informed

that the victim was taken to Sion Hospital. When he visited the

Sion Hospital, he was informed that a surgery was being

performed on the victim. He, therefore, returned to the Police

Station. At about 2.15, he received a wireless message from the

Sion Hospital that the victim Rani aged about 10 months old

was allegedly raped by the appellant. He had recorded

statement of PW-1 at about 5.00 a.m. on 11.1.2006. It was

treated as an F.I.R.

12. PW-7 had conducted further investigation and had

recorded statements of the witnesses. After collecting evidence,

he had filed a chargesheet in the court of Magistrate.

13. As already stated, Mr. Sait, learned counsel for the

appellant had submitted that in fact the evidence of PW Nos.1,2

and 3 should have been rejected by the Trial Court. It was

further submitted that even if the appellant was found

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responsible for the injuries sustained by the victim, there is no

evidence to show that he had indulged into the carnal

intercourse against the order of nature.

14. I have already rejected the defence put up by the

appellant before the Trial Court. There is ample evidence that

the victim was with the appellant. P.W. 1 in her evidence has

stated that she had heard cries of her child and she had rushed to

the sport. At the same time, P.W.1 had seen bleeding from

vagina and anus of her child..

15. The only question which needs to be examined is

whether it was the appellant or somebody else who had caused

the injuries to the victim. If one examines the evidence narrated

by the witness, the only conclusion which can be drawn is that

it was the appellant who had caused the injuries to the victim. In

the present situation, the appellant was under obligation, in

view of the provision of Section 106 of the Evidence Act, to

explain has to how the victim has suffered the injuries. There is

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no explanation on the part of the appellant in his statement

under Section 313 of the Cr. P.C. Since the victim was in the

custody of the appellant, the cause of injuries can be said to be

especially within the knowledge of the appellant. He was,

therefore, under obligation to explain the same. If he has not

given any explanation, the court can drawn only one conclusion

that he himself is responsible for the said injuries. The other

question which needs to be examined is whether the injuries

were caused due to some assault of other nature or by carnal

intercourse. The Medical Officer has stated that injuries could

be caused by force. This evidence has come in the cross

examination of the witness. Considering the nature of the

injuries, it can be safely said that the injuries were caused by

penetration of some object of the size bigger than the size of the

anus of the victim child. Since the appellant has not given any

explanation of the injuries and since there does not appear to be

possibility of any other penetration, the only conclusion Court

can draw is that perverse mind of the appellant was responsible

for the alleged sexual assault on child of 10 months. I do not

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think that in the present circumstances it possible to draw the

conclusion that the penis was not penetrated but any other

object was penetrated. As such in my considered opinion, the

Trial Court has rightly come to the conclusion that the appellant

had committed an offence punishable u/s 377 of the I.P.C.

16. I have heard learned counsel for the appellant and

learned A.P.P. on the point of sentence. Learned A.P.P. has

submitted that considering the age of the victim, it can be said

that the appellant had exhibited the height of perversity and that

the punishment of 10 years imprisonment imposed by the Trial

Court was not out of proportion to the offence committed by the

appellant.

17. Mr. Sait, learned counsel for the appellant has

submitted that the appellant is from the poor strata of the

society and he was leaving alone much away from his native

place and therefore probably he lost control over himself and

indulged into act alleged against him. It is submitted Mr. Sait

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that the severe punishment imposed by the Trial Court may not

serve the purpose, and may proved to be counter productive. He

has relied upon the judgment of the Orissa High Court in the

case of Mihir alias Bhikari Charan Sahu Vs. State reported in

1992 CRI L.J. 488 and submitted that the Orissa High Court

had come to the conclusion that since the appellant has a broken

family life and belongs to the lower strata of the society and

since the offence definitely was one relating to perversity and

deprivation of mind, the sentence was reduced to two years

from three years. It is submitted the appellant has already

undergone sentence from 16.1.2006 till today which is more

than sufficient for the offence committed by him. It is submitted

that it is not the case of the prosecution that the appellant had

been indulging into such activities in past also. The present

incident is solitary incident and in the circumstances court may

consider reducing of sentence imposed by the Trial Court.

18. I have gone through the judgment of the learned

Trial Judge. It is seen from the said judgment that the learned

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Trial Judge was aware of the fact that the appellant was married

and having two children and his family was staying in Uttar

Pradesh. This particular fact does not appear to be considered

by the learned Trial Court. No doubt, this by itself may not be a

reason for lenient sentence. However, had it been considered in

the proper perspective, the learned Trial Court probably would

have imposed lesser sentence that ten years. In my considered

opinion, the view expressed by the Orissa High Court in the

case of Mihir alias Bhikari Charan Sahu(Supra) can be made

applicable to the present set of circumstances, and benefit of

that judgment can be given to the appellant.

19. I subscribe the view expressed by the Orissa High

Court in the aforementioned judgment and I pass the following

order:

(i) The criminal appeal is partly allowed.

(ii) The conviction of the appellant for the offence

punishable u/s. 377 of IPC is maintained. However,

the substantive sentence is reduced to seven years

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from ten years. The substantive sentence, in default

of payment of fine of Rs.5000/-, is also reduced

from six months to two months.

(iii) As such, the appellant stands convicted for the

offence punishable u/s. 377 of IPC and is sentenced

to suffer RI for seven years and to pay a fine of Rs.

5000/-, in default, to suffer R.I. for two months.

(iv) The appellant is in custody from 11th January,

2006 till today. Set off be given for the custody

period.

(v) The property be destroyed in accordance with

the order passed by the trial court.

20. Criminal Appeal No.600 of 2008 is accordingly

disposed of.

(M.L. TAHALIYANI, J.)