Partly allowed

Nitin Baliram Kamble v. the State of Mah

Bombay HC14 Sept 2010APEAL/177/2010

Case brief

AI extract

What is this about?

In an appeal against conviction for rape and related offences, the High Court held that the prosecution version was well-established despite minor discrepancies and delay in FIR. Convictions for rape (376) and hurt (323) were upheld, but convictions for unlawful assembly (363), insult (504) and intimidation (506) were set aside due to lack of evidence regarding age and specific mental elements.

What did the court decide?

The conviction and sentence for offences under sections 363, 504 and 506 of the I.P. Code were set aside; the convictions for offences under sections 376 and 323 were maintained.

Nitin Baliram Kamble Vs the State of Mah — Criminal Trial and Appeal | Bombay HC (2010)

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( 1 )

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 177 OF 2010

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Nitin s/o Baliram Kamble, R/o Bodhe Nagar, Latur

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APPELLANT

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VERSUS

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The State of Maharashtra, through Shivajinagar Police Station, Latur.

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RESPONDENT

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Mr. Joydeep Chatterjee, advocate holding for Mr. S.P. Urgunde, advocate for the appellant. Mr. B.J. Sonawane, APP, for the respondent/State.

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[CORAM : V.R. KINGAONKAR, J.]

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[DATE OF JUDGEMENT RESERVED : 7th September, 2010] [DATE OF JUDGEMENT PRONOUNCED : 14th September, 2010]

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JUDGEMENT :

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Challenge in this appeal is to judgement rendered by learned Adhoc Additional Sessions Judge, Latur, in Sessions

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Case No. 2/2009 whereby the appellant has been convicted for

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the offences punishable under section 363, 376, 323, 506 and

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504 of the I.P. Code and is sentenced to undergo rigorous

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imprisonment for various terms alongwith separate sentence of

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( 2 )

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fine on each count.

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Narration of the prosecution case depicts somewhat unusual case of alleged rape committed by the appellant on the prosecutrix in a car vehicle. The prosecutrix used to reside alongwith her parents and brother in Bodhenagar locality. The appellant and his family members used to reside in the same locality. Their house is situated on opposite side of the house of the parents of the prosecutrix.

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Briefly stated, the prosecution case is that the

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prosecutrix was aged about 17 years at the relevant time. On 23rd June, 2008, she had left the house around 9 a.m. saying that she would visit Azim College, where she had studied till then, at Ausa and will bring bonafide certificate required by her. She returned to Latur by about 5.30 p.m. She alighted from the Public Transport bus near Shivaji Chowk stop. While she was proceeding towards her house from near stadium, she noticed that the appellant was standing by side of the road. He intercepted her and told her that he wanted to talk to her. She, however, told him that she did not want to talk to him.

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He pulled her back by pulling her dupatta behind and immediately pressed her mouth with his hand. Soon thereafter,

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( 3 )

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he forcibly pushed her inside a car vehicle of Indica brand.

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There were other two (2) inmates in the car, one was the driver whereas the another was occupying the front seat on left hand side. The appellant told the driver to turn the car. The driver took `U' turn and thereafter, drove the car vehicle towards Ausa. The appellant abused her as she had declined to talk to him. He started making advances towards her. He assaulted her on the way. By about 8 p.m., the car vehicle went ahead of a Stone Crushing Centre and was stopped. The appellant asked the driver and another occupant of the car vehicle to get down and fetch petrol from nearby petrol pump.

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They got down, locked the car vehicle and went away. The appellant asked her to gulp down soft drink contained in a bottle with brand-name as " Miranda ". She declined to do so.

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He attempted to forcibly administer the drink to her. When she resisted with both her hands, he assaulted on her hands asking

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her why she was not consuming the soft-drink. She was frightened due to the assault. He got removed her clothes in the backside of the car vehicle, denuded himself, laid her on

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the back seat and ravished her. He threatened her that she would be done to death if she would disclose the said incident

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to anyone else. A little while thereafter, the driver and the another occupant of the car vehicle returned to the place.

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( 4 )

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The appellant pushed her outside the car and abandoned her there. He and the other two (2) persons returned towards Latur in the same car vehicle. She started weeping and signaled the vehicles going towards Latur, but was unsuccessful to get immediate ride on any vehicle. However, alas one truck vehicle stopped near her after some time. She boarded in the cabin of the truck and came to Latur at about 11.30 p.m. She was dropped near the stadium by the truck driver. She contacted her mother on telephone by using a nearby coin-box telephone service. Her mother, brother and sister came to the place which is situated by side of Raymond's show-room near the stadium. They took her to the house. She was sobbing and frightened. She narrated the ghastly incident to her mother. Her father was not at home. On next day, after the father was appraised of the incident, she and her mother went to the police station. Her mother lodged FIR. The police sent her for medical examination. Her clothes were seized under a panchanama. The appellant was arrested during course of investigation. He too was subjected to medical examination. His clothes were also seized. On basis of material gathered during course of investigation, the appellant was chargesheeted for the offences punishable under section 363, 376, 323, 506 and 504 as well as 363A of the I.P.

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( 5 )

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Code.

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At the trial, the prosecution examined in all six (6) witnesses in order to prove the charge levelled against the appellant whereas he examined himself alongwith three (3) defence witnesses in support of the defence. The defence of the appellant was that he was not present at the place of alleged incident in the relevant evening. He asserted that he was at home at the relevant time. he suggested that the prosecutrix had accompanied with him to a hotel in that evening and was insisting that he shall marry her. He refused to marry her. She was annoyed due to his flat refusal to the marriage proposal. She picked up a bottle of soft-drink and hit it on her hands. Thus, she got self-inflicted injuries on her hands in pursuance to her tantrums. The incident was witnessed by the waiters and other staff members of said hotel styled as "Hotel Garden Court". He took her on his motorcycle and dropped her on the way. He thereafter went home and did not go anywhere after 8 p.m. She concocted a false story and got him implicated in a false case due to revengeful attitude. He, therefore, sought acquittal from the charges.

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The learned Sessions Judge came to the conclusion

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( 6 )

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that the charges were duly proved except the charge for offence punishable under section 363A of the I.P. Code. The appellant was accordingly convicted and sentenced.

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Mr. Chatterji, learned advocate for the appellant,

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would submit that the entire story narrated by the prosecution is inherently improbable. He would point out that the prosecutrix had not received any injury on her private part and that her clothes were also not found to have been torn.

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He contended that if the incident of rape would have taken place in the car vehicle, then her clothes might have been torn during the course of incident because she had offered resistance. He would further submit that single handedly, it was improbable for the appellant to remove clothes of the prosecutrix against her wish, also get himself denuded and thereafter, commit forcible sexual intercourse with her in the short space of the backside of the Indica car vehicle. He argued that conduct of the prosecutrix would show that she is un-creditworthy and might have been indulging in sexual escapades or adventures. He argued that the prosecution story is falsified due to attending circumstances and, therefore,

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the solitary version of the prosecutrix should not have been relied upon by the learned Single Judge. He would submit that

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delay in lodging of the FIR is indicative of time consumed by the prosecutrix and her relatives in concoction of a false story. He urged, therefore, to allow the appeal and acquit the appellant. Per contra, the learned APP supports the impugned judgement.

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The testimony of the prosecutrix (PW5) purports to show that she used to attend Azim College at Ausa during the relevant period. She used to daily commute to Ausa by State Transport bus. She used to catch a S.T. bus near stadium stop and used to alight at the same place after the return. her version reveals that on 23rd June, 2008, she went to the college and obtained her bonafide certificate. She returned to Latur by about 5/5.30 p.m. and alighted at the stadium stop.

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Her version reveals that while she was returning home, the appellant intercepted her and told that he wanted to talk with her. She replied that she did not want to talk to him. She was putting on a scarf covering part of her face. She states that

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the appellant pulled her back by holding her dupatta and pressed her mouth with his hand. She narrated as to how she was forcibly pushed inside the Indica car which was standing by side of the road. She narrated the entire episode which has been stated hereinabove as the prosecution story. She

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corroborates the aftermath of the incident of rape i.e. the

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manner in which she returned home and narrated the incident to her mother. She identified the clothes (articles No. 1 to 5) as the same one which had been put on by her at the relevant time. Her cross-examination reveals that on 5th February, 2009, the MIDC police had arrested herself and one boy in Sai Garden while she was present alongwith some friends. She admits that a crime was registered against her on the allegation that they were making advances at the public place. Her friend by name Nasika was also arrested at the same time and for similar charge. According to her, she was never arrested or charged for any other offence except the said incident. It is important to notice that the so called incident dated 5th February, 2009 was much after the alleged incident of the rape allegedly committed on the prosecutrix by the appellant. There is no relevancy of such incident except to remotely suggest that the prosecutrix was rather a free girl and was found indulging in sexual advances with her friend in the public garden. There is no scintilla-of-evidence to show that she was convicted for any serious charge on such count.

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An attempt was made to show that she had written

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some love letters to the appellant. She denied that she wrote those letters. No attempt was made to obtain opinion of an handwriting expert in order to prove that she authored those love letters. It was also suggested to her that she used to contact the appellant on his mobile phone. In this context too, there is no reliable evidence to infer that she used to frequently contact him on the cell phone. She admits that when she was in the 10th standard, the appellant used to follow her up-till the school premises. It is manifest, therefore, that he was behaving like a philander.

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One cannot be oblivious of the fact that there was

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no previous enmity between the appellant and the prosecutrix. Why should she make false accusations against him when the prestige of her parents and her own social image was likely to be tarnished ? No satisfactory answer is available from the record. Her version reveals that she was pushed inside the car when there was no-one else around the place. She was scared due to the sudden force used by the appellant and because he pressed her mouth while pushing her inside the car. She admits that she resisted the appellant while he was removing her clothes. It is true that normally, her resistance could have caused tearing of the clothes. At the

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same time, it cannot be overlooked that he had assaulted her by means of the bottle of soft-drink called "Miranda" and ,therefore, she was injured before he removed her clothes. It is but natural that under such injured condition, the young and inexperienced girl might have been frightened. Her resistance could have been weak. Under the peculiar circumstances, she could not have mustered courage to fiercely resist him.

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The prosecutrix admits that she did not assault the appellant. She admits that she had not received any injury on her private part during the act of forcible sexual intercourse. She did not assault the appellant during the incident. She did not notice whether he had received the injuries below the eyes and the shoulders. Her police statement comprises of omission regarding attempt of the appellant to forcibly administer the soft-drink to her. This omission cannot be treated as vital and one which may tantamount to contradiction. The credibility of the prosecutrix (PW5) is not serious impaired inspite of searching cross-examination. She admits that her brother and other

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relatives did not take her to the Police Station in the same night. She denied that she and the appellant had gone to

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Hotel Garden Court in the noon between 1.30 p.m. to 3.30 p.m.

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She also denied that her boy-friend, namely, Sameer reached there behind them and there was exchange of hot words between him and the appellant. She denied that she had broken the glass and got inflicted injuries on her both the hands during course of such incident. She also denied that the appellant refused to marry her for the reason that she was having relations with other boy-friends and, therefore, she got annoyed and as such, lodged false report with the police. It may be gathered that though the appellant has adopted bold defence of alibi, yet, except his interested version, there is hardly any corroborative evidence to establish such defence.

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The Apex Court in "State of Himachal Pradesh v. Asha Ram" 2006 ALL MR (Cri.) 281 (SC) , held that the testimony of the prosecutrix is more reliable than that of an injured witness. It is observed that even minor contradiction and insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. It is held that the conviction can be founded on testimony of the prosecution

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alone unless there are compelling reasons for seeking corroboration. Needless to say, unless it is noticed that the

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prosecutrix had substantial reason to level false charges against the appellant, or that her version itself is so inherently improbable that it cannot be accepted at all, ordinarily, her version cannot be dislodged on account of minor discrepancies or contradictions.

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There is due corroboration to part of the prosecution story in respect of the subsequent conduct of the prosecutrix. The version of PW4 Shantabai purports to show that the prosecutrix had gone to attend the college at Ausa in the relevant morning and did not return home till about 11 p.m. She is mother of the prosecutrix. Her version reveals that at about 11/11.30 p.m., she received phone call of the prosecutrix that she was standing in front of Raymond's showroom near the stadium. She, her son and daughter Aparna immediately went to the place in front of the Raymond's show-

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room and saw that the prosecutrix was standing beneath a tree and was weeping. She noticed that the prosecutrix was in frightened condition. The prosecutrix told her that she would tell about the incident after reaching home. This conduct of the prosecutrix is relevant. It smacks of a frightened girl

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who had been subjected to lifetime harrowing experience and trauma of the sexual assault on her person. She narrated the

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incident to her mother after reaching home. This fact is also explicit from the version of the prosecutrix.

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Coming to the version of PW1 Dr. Kranti, who was attached to the civil hospital at Latur, as a lady Medical Officer, it is clear that the prosecutrix was clinically examined on 24th June, 2008 at about 3 p.m. and then, she noticed four (4) injuries on her left and right forearms. The injuries were thus :

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(i) Abrasion on left fore medical surface of size 4 cm x 2 cm superficial;

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(ii) Abrasion on left forearm bear wrist joint 4 x 2 cm superficial;

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(iii) Abrasion on right forearm medical surface of size 3 cm x 1 superficial;

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(iv) Abrasion on right forearm on medical surface of 2 x 1 cm superficial.

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In the opinion of PW Dr. Kranti, the injuries were possible during course of resistance of sexual assault and could have been caused by hard and blunt object. She also noticed that hymen of the prosecutrix was ruptured. There is absolutely nothing on record to show that the prosecutrix was habituated to sexual intercourse. It is admitted, however, by PW Dr.

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( 14 )

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Kranti that there was no medical evidence to give positive finding of sexual intercourse with the prosecutrix. She corroborated the medical certificate (Exh-31). The age of the prosecutrix was determined as between 17 to 19 years. Considering the margin of error of two (2) years on either side, it will have to be said that the prosecutrix was either major or on the verge of majority at the time of the alleged incident.

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It is true that there was no injury found on the private part of the prosecutrix, nor there was semen or blood on her clothes. That by itself cannot be a ground to record negative finding about absence of forcible sexual intercourse with her.

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Significantly, PW Dr. Mushir noticed three (3) injuries on person of the appellant when the latter was examined on 26th June, 2008. One was the contusion below the right eye, an abrasion over the right shoulder and an abrasion over the left shoulder, as indicated in the medical certificate (Exh-33). The testimony of PW6 Mehboob Attar, who was attached to Shivajinagar Police Station, Latur at the relevant time as police officer, purports to show that FIR

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(Exh-39) was received by him for the purpose of investigation. He got prepared the spot panchanama (Exh-36). He admits that the appellant had given a statement to the effect that the prosecutrix was carried on his motorcycle on that day for a ride and, therefore, in pursuance to the memorandum which was drawn on 24th June, 2008, the motorcycle was seized. He admits that the motorcycle was found in damaged condition. What appears from the record is that the male relatives of the prosecutrix had gone to house of the appellant and got damaged the motorcycle on the next day after the incident was reported to them by her. It could be the natural reaction of her relatives. It does not show his innocence.

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The appellant examined himself as DW1 and narrated that he used to frequently meet prosecutrix prior to the alleged incident. He deposed that he had no physical relationship with the prosecutrix. He narrated that the prosecutrix used to contact him on his mobile phone from P.C.O. or by using her cell phone. He states that they had decided to marry in future. According to him, on 23rd June, 2008, the prosecutrix contacted him on cell phone and asked him to meet her. He met her somewhere around 10.30/11.00 a.m. near Polytechnic college. She asked her to give her ride on

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his motorcycle to Ausa. He took her to Ausa on his motorcycle

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and after her work was over, they came back to Latur. They went to a hotel called "Hotel Garden Court" in the noon time and ordered lunch. According to him, by boy-friend by name Sameer came to the place of the hotel and quarrelled with the prosecutrix. Thereafter, there was quarrel between himself and Sameer. He further deposed that the prosecutrix broke a glass and self-inflicted injuries to both her hands by means of that broken glass. He told her that he would not marry her because she was having other boy-friends. He thereafter left the place and went home, whereas the prosecutrix too returned to her house.

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There appears no corroboration to the defence version about return of the prosecutrix to her home in the same noon. There is no reason coming forth as to why her mother and brother were required to go near the Raymond's show-room at about 11/11.30 p.m. for taking the prosecutrix back home. The appellant produced three (3) letters (Exh-56) saying that they are handwritten by the prosecutrix. As stated before, she denied her authorship of the letters. No attempt was made to place on record admitted documents in order to compare the handwriting nor any attempt was made to obtain opinion of the handwriting expert in this behalf. The versions

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of DW2 Kiran, DW3 Laxman and DW4 Ravindra are also of no much significance.

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The testimony of DW Ravindra purports to show that the appellant had gone to his shop a day prior to the day of incident with a girl on the pillion seat of the motorcycle. He did not identify the girl nor his version is of any relevance because he speaks of incident which had occurred one day before the alleged incident. So also, DW Laxman did not specifically identify the prosecutrix as the same girl who had accompanied the appellant to the Hotel Garden Court in the relevant noon. Needless to say, the defence version falls too short to establish the plea of alibi.

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It is true that the FIR (Exh-39) was lodged by PW4 Shantabai i.e. mother of the prosecutrix on next day at about 13.15 Hrs. The question is whether such delay of about 16/17 hours can be regarded as fatal to the case of prosecution. There appears sufficient explanation given by the prosecutrix and her mother for the delayed FIR. She returned home by about midnight and narrated the incident to her mother after the spell of fear had been de-intensified. It is but natural that her mother learnt about the incident during wee hours of

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the night. Her father was not at home. It is but natural that they decided to appraise the father and thereafter, to take appropriate decision. In "B.C. Deva @ Dvaya vs. State of Karnataka" 2007 ALL SCR 2013 , the Apex Court held that conduct of the prosecutrix could be considered as relevant and when she rushed to her mother and disclosed the entire episode to her, it cannot be held that she was a consenting party to the sexual intercourse.

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Mr. Chatterji would submit that there was delay in lodging the FIR and, therefore, version of the prosecutrix is highly doubtful. He would submit that without corroboration, the version of the prosecutrix should not have been accepted by the learned Sessions Judge because the circumstantial evidence goes to indicate that there may not have been any use of criminal force against her.

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In "Santhosh Moolya and another v. State of

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Karnataka" (2010) 5 SCC 445 , the Apex Court held that the delay by itself could not be regarded as sufficient ground so as to dislodge the version of the prosecutrix. The Apex Court observed :

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"Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for."

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In "Sohan Singh v. State of Bihar" (2010) 1 SCC 68 ,

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the Apex Court observed as under :

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"When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR."

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It may be mentioned that Mr. Chatterji cited case of

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"Chimaji @ Babasaheb Dada Shende Vs. State of Maharashtra and

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another" 2008 ALL M.R. (Cri.) 672 and "Bibhishan vs. State of Maharashtra" (2008 Cri.L.J. 721) , in support of his argument that the appellant would be entitled to benefit of doubt having regard to the attending circumstances and particularly, when the clothes of the prosecutrix were not found to be torn and there was no medical evidence to corroborate the story of sexual assault on her. In case of "Chimaji @ Babasaheb Dada Shende" (supra), this Court held that the prosecutrix was armed with an axe whereas the accused i.e. Chimaji @ Babasaheb was unarmed and yet, she did not offer any resistance. There were other circumstances which falsify the prosecution story

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about the alleged rape. So also, in case of " Bibhishan " (supra), the Apex Court noticed that the prosecutrix was habituated to sexual intercourse and there were no signs of semen on her private part or the body and moreover, there was no injury on her body. In the present case, however, there were four (4) injuries on her person which corroborate the story of assault by means of a bottle of soft-drink called "Miranda". The prosecutrix was not found to be habituated to the sexual intercourse.

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Considering all the relevant aspects and taking over all view of the matter, I do not find any substantial reason

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to dislodge the case of prosecution.

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Though the prosecutrix was forcibly taken away in the car vehicle, yet, it is difficult to say that she was below the age of 18 years at the relevant time. The medical evidence shows that she could be probably major at that time. hence, the charge for offence under section 363 of the I.P. Code is unsustainable. Similarly, the version of the prosecutrix indicates that the appellant addressed abuses and assaulted her. Unless it is proved that she felt insulted due to the obnoxious words used by the appellant, the appellant could not be convicted for offence under section 504 of the I.P. Code. So also, mere fact that he had threatened to do away with her life will not bring home the guilt for offence under section 506 of the I.P. Code. Hence, the conviction and sentence for such minor offences will have to be set aside. The conviction of the appellant for offence under section 376 and 323 of the I.P. Code is, however, proper and deserves to be maintained.

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In the result, the appeal is partly allowed. The conviction and sentence to the extent of offences, punishable under section 363, 504 and 506 of the I.P. Code is set aside.

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The remaining part of the impugned judgement and order to the extent of conviction of the appellant and sentence imposed for offences punishable under section 376 and 323 of the I.P. Code is maintained. The remaining part of the impugned order regarding disposal of the muddemal articles and the set-off is maintained.

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[V.R. KINGAONKAR] JUDGE

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NPJ/criapl177-10

Nitin Baliram Kamble v. the State of Mah

Case brief

What is this about?

What did the court decide?

Nitin Baliram Kamble v. the State of Mah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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