Bombay High Court
Ramkesh Rampyare Kewat vs The State Of Maharashtra And Anr on 16 August, 2017
Bench: A.M. Badar
202-APPEALS-426-2012-449-2012-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.426 OF 2012
RAMKESH RAMPYARE KEWAT )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA AND ANR. )...RESPONDENTS
WITH
CRIMINAL APPEAL NO.449 OF 2012
RAJU SHYAMLAL NISHAD )...APPELLANT
V/s.
THE STATE OF MAHARASHTRA AND ANR. )...RESPONDENTS
Ms.Ameeta Kuttikrishnan, Appointed Advocate for the Appellants
in both the Criminal Appeals.
Ms.P.N.Dabholkar, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 16th AUGUST 2017
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ORAL JUDGMENT :
1 By these appeals, the appellants / accused nos.1 and 2
respectively are challenging the judgment and order dated 10 th
February 2012 passed by the learned Ad-hoc Additional Sessions
Judge, Mumbai, in Sessions Case No.489 of 2010 thereby
convicting both of them of the offence punishable under Section
376(f) read with Section 34 of the Indian Penal Code (IPC) and
sentencing them to suffer rigorous imprisonment for 10 years,
apart from directing payment of fine of Rs.5,000/-, and in default,
to undergo further rigorous imprisonment for 3 months, by each
of them.
2 Brief facts leading to the institution of present appeals
can be summarized thus :
(a) The appellant / accused no.2 Raju Shyamlal Nishad is
neighbour of the minor female child, who is reported to be a
minor girl aged about 3 years. Appellant / accused no.1 Ramkesh
Kewat also resides in the neighbourhood of the victim minor girl.
According to the prosecution case, they all were residing at
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Kajupada locality of Sakinaka, Mumbai. On 14 th April 2010,
according to the prosecution case, both the appellants / accused
took the victim minor girl to the room of appellant / accused no.2
Raju Nishad and there they committed rape on her.
(b) According to the prosecution case, PW4 Masihuljama
Qureshi - a worker in the garment factory came out of the
garment factory to have a cup of tea. When he reached near the
house of appellant / accused no.2 Raju Nishad, he heard noise of
a female child and therefore, he knocked the door of the house of
the appellant / accused no.2. On not getting response, he peeped
inside the said house from the cement grill of the wall to see the
appellant / accused no.1 Ramkesh Kewat committing rape on the
victim minor girl and the appellant / accused no.2 Raju Nishad
sitting near head of the victim minor girl. People from the locality
gathered there and ultimately door of the house came to be
opened. The victim came out of the house and was taken by her
mother to her house. People from the locality confined both the
appellants / accused inside the room.
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(c) Shortly thereafter, PW1 Abu Hasan Ali Hasan Qureshi -
father of the prosecutrix, returned to his house. He took his minor
daughter to the hospital of Dr.Rehman. He was advised to take her
to Rajawadi hospital, Mumbai. Accordingly, after lodging the First
Information Report (FIR), PW1 Abu Hasan Ali Hasan Qureshi
along with mother of the victim minor girl and PW6 Ragini
Waghmare, A.P.I. Sakinaka Police Station, went to Rajawadi
hospital, where PW5 Dr.Shreeram Ayyar examined the victim
minor girl and treated her.
(d) On the basis of the FIR lodged by PW1 Abu Hasan Ali Hasan
Qureshi, Crime No.175 of 2010 for the offence punishable under
Section 376(f) read with 34 of the IPC came to be registered
against the appellants / accused. During the course of
investigation, the spot came to be inspected in presence of PW2
Ajijur Rehman Khan by the Investigating Officer. The blood
stained towel came to be seized while drawing spot panchnama.
Similarly, frock and nicker produced by the father of the
prosecutrix also came to be seized. Statement of witnesses came
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to be recorded and on completion of routine investigation, the
appellants / accused came to be charge-sheeted for the offence
punishable under Section 376 read with 34 of the IPC.
(e) The learned trial Judge framed and explained the charge for
the offence punishable under Section 376(f) read with 34 of the
IPC to both the appellants / accused. They abjured their guilt and
claimed trial.
(f) For proving the charge against the appellants / accused, the
prosecution has examined in all eight witnesses. PW1 Abu Hasan
Ali Hasan Qureshi is the father of the victim minor girl. PW2
Ajijur Rehman Khan is a panch witness who proved spot
panchnama Exhibit 19. PW3 Momina Khatun Qureshi is the
neighbour of the victim minor girl and appellants / accused
persons. PW4 Masihuljama Qureshi is also a neighbour, who had
actually witnessed the incident in question. PW5 Dr.Shreeram
Ayyar is a gynecologist working with Rajawadi hospital. He had
examined the victim minor girl and also proved papers of medical
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treatment. PW6 Ragini Waghmare, A.P.I., Sakinaka Police Station,
had conducted part of investigation. PW7 Sanjay Pradhan, A.P.I.,
Sakinaka Police Station has also partly conducted the investigation
of the crime in question. Ultimately charge-sheet against the
appellants / accused came to be filed by PW8 A.P.I. Nanasaheb
Gawali.
(g) After hearing the parties, the learned trial court by the
impugned judgment and order came to the conclusion that both
appellants / accused in furtherance of their common intention,
had committed rape on the victim minor girl, who was less than
12 years of age, and accordingly, they came to be convicted of the
offence punishable under Section 376(f) read with 34 of the IPC
and were sentenced accordingly, as indicated in the opening
paragraph of this judgment.
3 I have heard Ms.Kuttikrishnan, the learned advocate
appearing for both appellants / accused at sufficient length of
time. She contended that appellants / accused could not have
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been convicted of the offence punishable under Section 376(f) of
the IPC with the aid of Section 34 thereof, as even according to
the prosecution, the offence comes under Section 376(2)(g) of the
IPC, it being a case of alleged gang rape. Therefore, the entire trial
vitiates and benefits thereof goes to appellants / accused. She
further argued that mother of the victim minor girl is not
examined by the prosecution, and therefore, evidence of the
prosecution is lacunic. It is further argued that the prosecution
has not examined any disinterested witnesses to prove its case, as
even according to the prosecution, lot of people had gathered in
front of the house of the appellant / accused no.2 Raju Nishad at
the time of the incident in question.
4 As against this, the learned APP supported the
impugned judgment and order by contending that the defence has
not established that because of mentioning incorrect section while
convicting both appellants / accused, there was failure of justice.
The learned APP relied on provisions of Section 215 as well as 464
of the Code of Criminal Procedure for contending that as there is
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no failure of justice, appellants / accused cannot be heard to say
that the trial itself is vitiated. The learned APP placed reliance on
judgment of the Hon'ble Apex Court in the matter of Dalbir Singh
vs. State of Uttar Pradesh1 for contending that appellants /
accused were aware about basic ingredients of the offence and
facts constituting the offence were clearly explained to them. The
learned APP further argued that as the evidence of the prosecution
is sufficient to infer guilt, non-examination of other witnesses
which may be available, cannot cause any prejudice to the case of
the prosecution.
5 I have carefully considered the rival submissions and
also perused the record and proceedings including deposition of
witnesses, so also, documentary evidence. By now, it is well
settled that in case of sexual assault, and particularly on a minor
girl, evidence of the prosecution is required to be considered
keeping in mind broader probabilities of the case of the
prosecution. If evidence on record points out guilt of the accused
in such offence, minor contradictions and inconsistencies are
1 (2004) 5 Supreme Court Cases 334
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required to be overlooked. Keeping in mind these principles, let
us examine evidence of the prosecution in order to infer whether
appellants / accused in furtherance of their common intention,
had committed rape on the victim minor girl, who at the relevant
time, according to the prosecution case, was aged about 3 years.
6 It is the case of the prosecution that PW4 Masihuljama
Qureshi is an eye witness to the incident of sexual assault on the
victim minor girl. The prosecution has not examined the minor
girl victim of the crime in question, probably because, according to
its case, she was just 3 years old, when the incident in question
took place. Section 118 of the Evidence Act recognizes infancy
and consequent inability to understand the question and give
rational answers. The victim minor female, because of her tender
age, may not be having sufficient intelligence and capacity to
understand the questions and to give rational answers. Non-
examination of such infant victim by the prosecution is of no
consequence, if ultimately by other trustworthy evidence the
prosecution is successful in establishing the offence. The
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prosecution is mainly relying on the eye witness account of the
incident given by its witness. It is worthwhile to note that
evidence of her father - PW1 Abu Hasan Ali Hasan Qureshi, so
also evidence of other witnesses namely PW3 Momina Khatun
Qureshi - neighbour of the victim minor girl and PW4
Masihuljama Qureshi, who claimed to be acquainted with family
of the victim minor girl, is conspicuously silent about age of the
victim minor girl. As the incident in question is allegedly
witnessed by PW4 Masihuljama Qureshi, let us examine his
evidence first.
7 Evidence of PW4 Masihuljama Qureshi shows that at
the time of the incident i.e. on 14 th April 2010, he was working as
a tailor in a garment factory of Shoeb Qureshi. He came out of the
said garment factory at about 7 p.m. of that day, for having a cup
of tea. As seen from his evidence, he heard noise of children from
the locality that the victim minor girl was taken inside the house.
PW4 Masihuljama Qureshi deposed that when he reached near the
house of the appellant / accused no.2 Raju Nishad, he heard
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noise of a girl child and therefore, knocked the door of the house
of the appellant / accused no.2 Raju Nishad. Nobody responded
and therefore, as per version of this witness, he peeped inside the
house from the cement grill window. PW4 Masihuljama Qureshi
testified that then he noticed that appellant / accused no.2 Raju
Nishad was sitting by the side of head of the victim minor girl and
appellant /accused no.1 Ramkesh Kewat was committing sexual
intercourse with the victim minor girl. As per version of this
witness, then, some people from the locality gathered at the door
of the appellant / accused no.2. Subsequently, the door was
opened. The victim minor girl came out and mother of the victim
minor girl picked her up. PW4 Masihuljama Qureshi was very
specific in stating that he had noticed oozing of blood from private
part of the victim female girl. As per evidence of this witness,
both the appellants / accused were then confined inside the room
by people of the locality by locking the door from outside.
8 It needs to be noted that from cross-examination of
this witness also, it is brought on record by the defence that PW4
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Masihuljama Qureshi had actually seen the appellant / accused
no.1 Ramkesh Kewat thrusting his penis inside vagina of the
victim minor girl. From cross-examination of this witness, it is
further brought on record that this witness himself had seen blood
oozing from the private part of the victim minor girl. Apart from
this, from the searching cross-examination of PW4 Masihuljama
Qureshi, nothing is brought on record to disbelieve his version
about the incident or his presence on the scene of the occurrence
at the time of the incident. On the contrary, the defence has got
confirmed presence of this witness on the spot of the incident by
eliciting from this witness that he had actually seen the incident of
commission of rape on the victim minor girl. As such, I see no
reason to disbelieve version of PW4 Masihuljama Qureshi about
the incident in question.
9 One may argue that being an acquaintance of the
family of the victim minor girl, this witness is a partisan witness,
and therefore, his testimony cannot be relied unless it is
corroborated in material particulars by other evidence on record.
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Let us, therefore, examine what another prosecution witness, who
is resident of the said locality, deposed about the incident. She is
PW3 Momina Khatun Qureshi. Her evidence shows that at the
relevant time she was residing in front of room of PW1 Abu Hasan
Ali Hasan Qureshi - father of the victim minor girl. Her evidence
further shows that appellant /accused no.2 Raju Nishad was
residing by the side of the room of PW1 Abu Hasan Ali Hasan
Qureshi and appellant /accused no.2 Raju Nishad is his friend,
who used to visit the house of the appellant / accused no.2 Raju
Nishad, frequently. As per evidence of PW3 Momina Khatun
Qureshi, at about 5 p.m. to 6 p.m. of 14th April 2010, she heard
noise of public and saw PW4 Masihuljama Qureshi as well as wife
of PW1 Abu Hasan Ali Hasan Qureshi standing in front of house of
appellant / accused no.2 Raju Nishad. PW3 Momina Khatun
Qureshi testified that they were knocking the door of the house of
appellant / accused no.2 Raju Nishad, and three to four persons
were also present there. As seen from evidence of PW3 Momina
Khatun Qureshi, then the door came to be opened and daughter of
PW1 Abu Hasan Ali Hasan Qureshi came out weeping. At that
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time, as stated by PW3 Momina Khatun Qureshi, both appellants /
accused persons were present inside the house. This witness
further deposed that she had seen blood oozing from the private
part of the victim minor girl. In cross-examination of this witness,
it is again reaffirmed that PW4 Masihuljama Qureshi was present
on the spot at the time of the incident. It is further brought on
record that after hearing the noise, mother of the victim minor
girl, went to the house of the appellant / accused no.2 Raju
Nishad and knocked the door and subsequently, the victim minor
girl came out and at that time, she was weeping. Thus, presence
of PW4 Masihuljama Qureshi on the scene of occurrence at the
time of the incident is again confirmed in the cross-examination
of PW3 Momina Khatun Qureshi. Thus, I see no reason to
disbelieve version of PW4 Masihuljama Qureshi that upon hearing
noise of a girl, he firstly knocked the door of appellant / accused
no.2 and subsequently, peeped inside to see that the minor girl -
victim of the crime in question, was being raped by appellant /
accused no.1 Ramkesh Kewat, while appellant / accused no.2 Raju
Nishad sitting nearby. Evidence of PW4 Masihuljama Qureshi is
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gaining full corroboration from the testimony of PW3 Momina
Khatun Qureshi.
10 PW1 Abu Hasan Ali Hasan Qureshi has stated in his
evidence that at about 7.45 p.m. of 14th April 2010, he returned to
his home and saw his daughter lying on the floor while blood
oozing from her private part. As per his evidence, he took her to
the hospital of Dr.Rehman, who told him to take her to Rajawadi
hospital, Mumbai. Evidence of PW1 Abu Hasan Ali Hasan Qureshi
further shows that while returning from Rajawadi hospital, PW4
Masihuljama Qureshi told him about the incident of sexual assault
on his daughter by appellants / accused persons. PW1 Abu Hasan
Ali Hasan Qureshi has proved former statement of PW4
Masihuljama Qureshi made to him soon after the incident and
precisely while returning from Rajawadi hospital. This duly
proved former statement of PW4 Masihuljama Qureshi is to the
effect that after hearing noise of a girl emanating from the house
of appellant / accused no.2 Raju Nishad, PW4 Masihuljama
Qureshi peeped inside the house after knocking the door and saw
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appellant / accused no.1 Ramkesh Kewat committing rape on the
victim minor girl while appellant /accused no.2 Raju Nishad
sitting nearby. This duly proved former statement of PW4
Masihuljama Qureshi corroborates the version of PW4
Masihuljama Qureshi and is admissible under Section 157 of the
Evidence Act.
11 The report lodged by PW1 Abu Hasan Ali Hasan
Qureshi is at Exhibit 14. The same came to be lodged in the night
intervening 14th April 2010 and 15th April 2010 and precisely at
00.10 hours. The FIR lodged with promptitude which is at Exhibit
14 duly corroborates version of PW1 Abu Hasan Ali Hasan Qureshi
to the effect that he had noticed his minor daughter bleeding from
private part after his return to his house in the evening hours of
14th April 2010.
12 The minor girl victim of the crime in question is
examined by PW5 Dr.Shreeram Ayyar, a gynecologist working with
Rajawadi hospital, Mumbai, at about 11.50 p.m. of 14th April 2010
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i.e. soon after the incident. Version of this witness, to the effect
that victim minor girl is a 3 years old child, is not challenged in
the cross-examination. As such, there is no reason to disbelieve
the version of this witness, who is an expert to conclude that the
victim of the crime in question is a minor girl. Thus, the void in
evidence of other witnesses regarding age of the minor female
victim is cured and it is seen that the minor female victim at the
time of the incident was below 12 years of age.
13 Upon examination of the victim minor girl, PW5
Dr.Shreeram Ayyar has noticed following injuries on her private
part :
i) Laceration present bilaterally, labia majora and labia
minora. Linear laceration present.
ii) Fourchette and intreoitus min. bleeding present from
fourchette, laceration present about 1 c.m. and one
small blood clot on fourchette at intreoitus.
iii)Anus and rectum perianal regions stains present.
Contemporaneous record i.e. medical case papers maintained by
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Rajawadi hospital (Exhibit 27) duly corroborates version of PW5
Dr.Shreeram Ayyar regarding signs of sexual violence on person of
the victim minor girl. Evidence of PW5 Dr.Shreeram Ayyar is duly
corroborated by contemporaneous medical record which shows
that there was laceration of labia majora and labia minora of the
victim minor daughter of PW1 Abu Hasan Ali Hasan Qureshi and
she was bleeding from fourchette and intreoitus. Stains were seen
on her anus and rectum region. This evidence fully corroborates
version of PW4 Masihuljama Qureshi to the effect that he had
seen appellant / accused no.1 Ramkesh Kewat committing sexual
intercourse with the victim minor girl at the house of appellant /
accused no.2 Raju Nishad, making his eye witness account
trustworthy and reliable.
14 As seen from the evidence of Investigating Officer,
seized articles were sent for chemical analysis. Nicker of the
victim minor girl was found to be stained with human blood, as
seen from the Chemical Analyser's Report placed on record by the
prosecution. This evidence further corroborates the version of the
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prosecution regarding the offence of rape on the victim minor
female child.
15 Evidence adduced by the prosecution and discussed in
foregoing paragraphs is sufficient to conclude that the minor girl
victim of the crime in question was subjected to sexual violence
and rape by appellants / accused persons in furtherance of their
common intention. Common intention of appellants / accused
can be inferred from surrounding facts and circumstances as has
come on record from evidence of PW4 Masihuljama Qureshi. This
witness had seen appellant / accused no.1 actually committing
rape on the victim minor girl while the appellant / accused no.2
Raju Nishad sitting by the side of head of the victim minor girl.
The place of offence was the room of appellant /accused no.2
Raju Nishad. Hence the appellant /accused no.2 Raju Nishad
cannot escape the liability under Section 34 of the IPC.
16 It is sought to be made out that the offence was
actually that of gang rape, but charge for the offence punishable
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under Section 376(2)(g) was not framed and charge for the
offence punishable under Section 376(f) read with Section 34 of
the IPC was erroneously framed and therefore, the trial vitiates.
This submission cannot be said to be having any merit. Liability in
terms of Section 376(2)(g) is existence of common intention of
accused persons. In the case in hand, instead of applying Section
376(2)(g) of IPC, the learned trial court had framed and
explained the charge to both appellants / accused persons under
Section 376(f) read with 34 of the IPC as the minor girl victim of
the crime in question was less than 12 years of age. The
ingredients of common intention is common. Section 376(2)(g) of
the IPC implies act done in furtherance of common intention.
Therefore, it cannot be said that appellants / accused persons
were misled by charge so framed. The charge framed against
appellants / accused clearly indicates that they were aware about
basic ingredients of the offence alleged against them and that the
main acts which were sought to be established against both of
them were properly explained to them with an averment that on
14th April 2010 at about 19.00 hours at Room No.3 Kajupada Pipe
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line, they both in furtherance of their common intention
committed rape on the victim minor girl aged about 3 years. This
charge at Exhibit 7 by no stretch of imagination can be said to
have misled appellants / accused persons of the acts sought to be
established against them.
17 In this view of the matter, it cannot be said that error
of charge framed against appellants / accused persons has
occasioned in failure of justice. The same is inconsequential.
18 In the result, both appeals fail and as such, the order :
ORDER
Criminal Appeal Nos.426 of 2012 and 449 of 2012 are
dismissed.
(A. M. BADAR, J.)
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