Partly allowed

Chadrakant Vitthal Pawar v. the State of Maharashtra

Bombay HC22 Aug 2011APEAL/780/2006

Case brief

AI extract

What is this about?

In an appeal against conviction for rape of a 14-year-old girl, the High Court held insufficient evidence of penetration despite semen findings on clothes. The rape charge was downgraded to attempt, and the appellant was sentenced to undergo imprisonment as already undergone.

What did the court decide?

Conviction under Sec. 376(2)(a) IPC set aside; accused convicted of attempt under Sec. 376(2)(a)/511 IPC; sentenced to undergo imprisonment as undergone plus fine of Rs. 10,000.

Chadrakant Vitthal Pawar Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2011)

mn780.06

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.780 OF 2006

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 (By accused against conviction)
 arising out of Sessions Case No.32/2006

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Chandrakant Vithal Pawar }
Indian Inhabitant,aged 47
yrs, residing at Andheri}
Versova Road,Seven Bungalow
Police Quarters, Aram Nagar }
Bldg No.4. Room NO.135,
Andheri(West) Mumbai-400 058 }
(Accused is in Kolhapur Central
Prison)} .. Appellant/Accd

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vs

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1. The State of Maharashtra }
(at the instance of Sahar Police
Station C.R.NO.514/2005 (DCB
CID C.R.No.127/05) }

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2. Deepa Kishore Kharwa
aged 15 yrs, Indian Inhabitant }
residing at Hayyat HOtel at Footpath
Sahar Airport Rd, Mumbai .... { .. Respondents

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Mr.Shyam Mehta (Appointed) for Appellant
Ms.S.V.Sonawane APP for Respondent-State

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CORAM: J.H.BHATIA, J
 DATE:22nd August, 2011

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ORAL JUDGMENT

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1. The Appeal is preferred by the original
accused challenging the judgment and order dated

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13th July,2006 in Sessions Case No.32 of 2006
passed by the Additional Sessions Judge,Mumbai
whereby the Accused/Appellant was convicted for
the offences punishable under sections 363, 366,
376 (2) (a) and under section 323 of Indian
penal code and was sentenced as under :

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(i) Under section 363 of Indian penal
code R.I. for one year and fine of Rs.
500/- in default further sentence of 15
days.

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(ii) Under section 366 of Indian penal
code R.I. for 3 years and fine of Rs.
2000/- in default further sentence of
30 days.

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(iii) Under section 376 (2) (a) of
Indian penal code R.I. for 15 years and
fine of Rs.50,000/- in default further
sentence of 1 years.

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(iv) Under section 323 of Indian penal
code R.I for 1 month and fine of Rs.
200/- in default further sentence of 8
days.

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2. The prosecution case in brief is that the

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prosecutrix PW 7, who is the victim of this

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offence, was a girl of aged about 15 years. She
along with her sister Poonam used to beg at the
junction near Leela Hotel at night time. The

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accused was Head constable attached to Sahar
police station and the said junction near Leela
Hotel is within the local limits of that police
station. On 17th October, 2005 at about 9 p.m.
the accused first made some inquiries from the
prosecutrix and went away. At about 11 p.m. he
came in an autorickshaw, caught her wrist and
pulled her into the autorickshaw. Inspite of
the request made by her sister to leave the
girl, he said that he would leave her at the
next signal. He took the prosecutrix up to a
nallah in the autorickshaw. There both of them
alighted and then the accused and the
prosecutrix crossed the road and after jumping
pari (small wall). Then he took her to the
bushes and then near the wall of a temple, there
he made her to lie down and removed her clothes.

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He also removed his pant and underwear and
committed rape. When the prosecutrix and the
accused were returning, PW 6 Satyan Nair, who
was working in the Engineering Department of
SaharInternationalAirportTerminal-II,

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suspected something foul and stopped his bike
and asked the prosecutrix as to what was the
matter. She narrated the incident and therefore

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PW 6 Satyan Nair took the identity card of the
accused and made him sit on his bike and took
him to the police station. The girl was taken
to the police station by PW 11 Kumar Ukirde. At

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the police station she narrated the whole
incident. On the basis of her FIR, offence was
registered and the accused as well as the
prosecutrixwerereferredformedical

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examination to Police Hospital, Nagpada. Both of
them were examined by PW 8 Dr.Shivaji Daund
during the same night.

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3.During investigation, the spot panchanama
was prepared. The clothes of the prosecutrix as
well as that of the accused were seized. Their

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blood samples and vaginal and vulva swabs of the
prosecutrix were sent to the Chemical Analyser.
Evidence was also collected in respect of the
age of the girl.

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4.After investigation, the charge sheet was
filed and in due course the case was committed
to the Court of Sessions for trial. The accused
pleaded not guilty to the charges. On behalf of
the prosecution, in all 13 witnesses were
examined. A large number of documents were
placed on record. After hearing the parties,
the learned trial Court convicted and sentenced
the accused as stated above.

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5.Heard learned counsel for the Accused-
Appellant and the learned APP. Perused the
record and the proceedings of the trial Court.

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The learned counsel for the Accused vehemently
contended that there is no evidence to show that
the accused had forcibly committed rape. He
took pains to show that the girl must be the
consenting party. Secondly, he contends that
the evidence on record is not sufficient to show
that the girl was less than 16 years of age at
the time of rape. Thirdly, he contended that

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the evidence on record is not sufficient to
establish that actual penetration had taken
place and that rape was committed. According
to him, if the whole prosecution evidence is
also accepted it may be a case of attempt to
commit rape.

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6.On the other hand, the learned APP relying
on the medical evidence as well as the evidence
of the prosecutrix, but contended that it was
not a case of attempt but a clear case of rape
and the girl was less than 16 years of age. Her
consent is irrelevant. She contended that the
Accused, who was posted as a Head constable in
that area had misused his authority and
therefore, the girl could not offer any
resistance to him.

¶45

7.Before coming to the evidence of the

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alleged rape, it would be useful to look to the
evidence about the age of the prosecutrix. PW 7
the prosecutrix deposed that she was aged 15

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years at the time of recording of evidence. The
evidence was recorded in May, 2006. The incident
had occured on 17th October,2005. PW 9 Poonam
is her elder sister. She deposed that she was
aged about 17 years at the time of recording her
age and according to her, the prosecutrix is
younger to her by two years.

¶50

8.Evidence of PW 8 Dr.Shivaji Daund shows
that as per the ossification test by X-Ray,
Epiphyseal union of bones around the elbow,
waist,humerus and knee were not fused. As per
the history given, she had attained her menses
two years before. According to him, there are
different time periods for fusion of Epiphyseal
union with bones. Elbow joint fuses at about 14
years. Wrist joint fuses at about 17 years. Knee
joint fuses at about 15 and half years.
Shoulder joint fuses at about 17 to 18 years.
Since the elbow joint was also not fused he
opined that the age of the girl was 13 to 14
years.

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9.PW. 1 Mrs Hema Desai was the Principal at

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Dr.S.R.K.Marg Municipal Upper Primary Gujrati
school since 1997. She produced the School
Record about the admission of the prosecutrix

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and deposed that as per the school Register, the
prosecutrix was admitted in the said school on

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28th June,2001 and she left the school on 22nd
November, 2005 when she was student of VIth
standard. As per this record, the date of her

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birth was 4th May,1991. Learned counsel for the

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accused vehemently contended that there may be

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number of students with the same name and merely

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on the basis that a girl with a name similar to

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that of the prosecutrix, was admitted in the

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school and her date of birth was 4th May,1991,
it cannot be assumed that the prosecutrix is the
same girl. Contention of the defence counsel

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was turned down by the witness. After perusal of
the record I find that the complete register was
available for inspection at the time of cross-

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examination.Even before this Court, learned

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counsel could not point out that there was any
other student with the same first name,father's
name and surname as well as mother's name in
the Register. Only he could point out the name
of some students having same surname. Merely
with that surname, it is difficult to accept the
contention that there could be more than one

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student with same first name, father's name,
mother's name as well as surname. Therefore, I
find no reason to disbelieve the School Record.
As per the School Record, the date of birth of
the prosecutrix is 4th May,1991. The incident
occured in October,2005. It means that she was
aged about 14 1/2 years at the time of the

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incident. The medical evidence provides
corroboration to it. As she was below 16 years
of age, her consent would be irrelevant for the
purpose of sexual intercourse.

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10. The evidence of the prosecutrix shows that
she used to beg at the junction of and in front
of Leela Hotel, Her sister PW 9 Poonam also used

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to beg. According to her, on 17th October,2005
at about 9 p.m. the accused came to her, made
some inquiries and went away. At about 11 p.m.
the accused again came in a autorickshaw, caught
her wrists and took her into the rickshaw. Her
sister P W 9 Poonam requested the accused to
leave her but, the accused told that he would
leave her at the next signal. According to PW 9

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Poonam, when she had made this request, the
accused had threatened to charge fine and saying
so, he took the girl by the rickshaw towards the

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direction of Hotel Hayyat police chowky. For
some distance PW 9 Poonam followed them but she
could not find them. Then went to her house,

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and informed her mother and they went to Sahar
police station but, neither the girl nor the
accused were there. Inspite of some search, she
could not be located by them. They again went

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to the said police station. At that time, the
prosecutrix was present and her statement was
being recorded by the police. The evidence of
the prosecutrix in respect of her taking away

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from the junction of Leela Hotel in an
autorickshaw is corroborated by the testimony of
PW 9 Poonam.

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11. Evidence of PW 7 the prosecutrix shows that
after jumping the small wall or a pari,the
accused took her to the bushes but as some

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persons were sleeping, he took her near the wall
of Saibaba temple. At that place, he asked her
to remove her clothes. He also removed his own

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pant and underwear. She lowered down her
salwar. She was made to lie down and thereafter

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the accused put his male organ into her private

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part. According to her, due to this, she had
suffered pains on her back. She also deposed

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that the coins, which she had received as alms
and were tucked in her salwar,were scattered at

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the spot of the incident. She deposed that at

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the time of the incident she had lowered down

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her salwar and not all the clothes. After the
incident, the accused took her near the wall and
told her that he would drop her at the place of

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her sister.

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12. As per the evidence of PW 6 Satyan Nair,
he was working in the Engineering Department of
Sahar International Airport, Terminal-II. On
17th October,2005 at about 11.15 p.m. he was
proceeding towards the terminal on his bike.
When he was taking turn on a signal, he noticed
a police man in uniform with a girl. He became
suspicious and therefore he took a U-turn and
found the accused in the company of the
prosecutrix. After the girl was taken in
confidence, she told him about the incident.
After that PW 6 Satyan Nair asked the accused
to accompany him on his bike, after collecting
his Identity card from him. He took the accused
to the police station and produced him. This
fact is not in dispute.

¶94

13.PW 11 Kumar Ukirde supported the evidence
of PW 6 Satyan on this count. According to
him, he himself and one person had seen the

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accused taking the girl having caught hold of
her arms. They took her to police station. The
evidence of this witness shows that the accused
tried to settle the matter by paying some money
but could not succeed.

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14. After she was taken to the police station,

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the statement of the girl was recorded by PW 10
API Mohan Waghmare. That statement was treated
as FIR Exhibit 26 wherein all the facts are
disclosed. Immediately clothes of the accused
as well as that of the prosecutrix were seized
under panchanama Exhibit 23 and both of them
were sent for medical examination. A spot
panchanama Exhibit 21 was also prepared which
reveals that at the spot some coins were found
scattered and they were seized.

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15.The evidence of PW 8 Dr.Shivaji Daund

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reveals that on 18th October,2005 at about 3.30
a.m. the prosecutrix was brought to him at the
police Hospital Nagpada for medical examination.

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According to him, the prosecutrix had given
history about her taking away by the police man
in a autorickshaw, then removing her clothes and

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committing rape on her. That history was
recorded by him. On physical examination he
found following two injuries on her person :

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(i) Graze abrasion on lower part of
back and above right buttock 4 cm in
vertical into 3 cm horizontally placed.
No oozing of blood seen. Only
superficial epidermal layer peeled.

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(ii) Graze abrasion on occcigeal region
with peeling of superficial epidermal
layer, size of injury 4 cm x 2.5 cm.

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According to him, these injuries could be

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caused due to friction with hard and rough
surface. The age of injuries was within six
hours.

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16.On examination of her private parts, he

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found that hymen circular and was torn at 6,9
and 1'clock position, tears were marginal and
healed. Hymeneal orifice admitted one finger

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easily, it was non-tender. No other injury was
noticed. As two fingers could not be admitted
in torn hymen, there may not be complete
penetration. He also collected vaginal smear,
vulva and posterior vaginal swab and cervical
smears. He also collected control blood sample
of the girl.

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17. As per the evidence of PW 8 Dr.Daund he
had also examined the accused during the same
night at 4 a.m. and found following two injuries
on his person:

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(1) graze abrasion on right knee joint
of tibial tuberosity 1 cmx 1 cm size
superficial, epidermis collected in the
heap at lower

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(2) graze abrasion on left knee on
tibial tuberosity 5 cm x 5 cm
superficial and epidermis collected in
the heap laterally.

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18.According to him, the age of the injuries

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was within 6 hours and the injuries could be

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caused due to friction with hard and rough
surface. Dr.Daund further deposed that on

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inquiry the accused could not explain how and
when the injuries were caused. The evidence also
shows that he collected the swab from glance
penis of the accused as well as his control
blood samples. He referred all the samples
report to the Chemical Analyser.

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19. As per the Chemical Analyser's report
Exhibit 42, one semen stain was found on the
backside of the underwear of the accused. One
semen stain of about 2 cm in diameter on front
side of kurta and two semen stains each of about
1 cm in diameter on middle portion of the salwar

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of the prosecutrix were found. As per the DNA
report, Exhibit 42-A, the semen stains on the
kurta and the semen stains on the salwar of the
victim and the semen stains of the victim, semen
stains on the salwar and semen stains on the
underwear of the accused exactly matched with

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the control blood of the accused and the semen
stains on these clothes and the control blood
were of the same biological individual. Thus, it

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shows that the semen of the accused was found
not only on his own underwear but, also on the
clothes of the prosecutrix. The clothes were
seized almost immediately after the incident. In
view of this, the Medical Officer Dr.Daund
opined that the accused was involved in sexual
activity with the prosecutrix.

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20.Taking into consideration the oral

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evidence of the prosecutrix, her sister PW 9
Poonam, PW 6 Satyan Nair and PW 11 Kumar Ukirde,
the spot panchanama, medical evidence and the
C.A.report and particularly DNA report, it is
established that the prosecutrix was kidnapped
with an intention to force her to sexual
intercourse. I find no material to disbelieve
the evidence of these witnesses.

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21. The learned trial Court held the accused
guilty for the offence of rape. The learned
counsel for the Accused vehemently contended
that if the medical evidence with the C.A.

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report are carefully perused, the prosecution
could not establish that the offence of rape was
committed, though there may be evidence of
attempt to commit rape. To appreciate this
contention, it will be necessary to scrutinise
the medical evidence minutely.

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22.Though the prosecutrix was student of
school up to VI standard as she was not

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attending the school and therefore she was
removed. Hence she cannot be treated to be

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educated. In her FIR, it is recorded that the
accused had committed "Sambhog". She admitted

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that she did not understand the meaning of the

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term "Sambhog". In her evidence before the Court

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she deposed that accused had put his organ of

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urination into her place of urination. She did

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not speak about the actual penetration. Some

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latitude may be given to her in this respect due
to natural modesty of a young girl. Evidence of

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PW 8 Dr.Daund shows that there were marginal

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tears of hymen. They were found healed. In the

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cross-examination, he admitted that the healing
period is about 5 to 7 days. It means that the
marginal tears were suffered by her at least 5

¶150

days before the incident and not in this
incident. The tears in this age could be for
any reasons including not necessarily sexual
intercourse. The medical evidence also shows

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that the hymen admitted only one finger easily
but two fingers could not be admitted and hence
there may not be complete penetration. In view
of this, it appears that despite the hymen
tears, she must not have indulged in sexual
activity before the incident.

¶152

23.Explanation to section 375 of the Indian
Penal Code provides that penetration is
sufficient to constitute the sexual intercourse
necessary to the offence of rape. It is now

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settled position of law that even partial
penetration is sufficient to constitute the
offence of rape. In view of the medical
evidence, while complete penetration is ruled

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out, question is whether there was even partial
penetration. Medical evidence shows that hymen
orifice was not tender. No other injury was
found on her private part, though there were
above referred injuries on her back which could
be due to friction with hard surface while lying
down at the time of the incident. Dr.Daund
admitted in cross-examination that he had not
noticed any recent sexual activity on
examination of hymen.

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24.The C.A. Report Exhibit 29 and Exhibit 30
on (vulval swab and vaginal smear slides of the
prosecutrix) reveal that no semen was detected.

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As noted above,as per C.A.report Exhibit 42 and
DNA test report semen of the accused was found
on his underwear as well as on the kurta and
salwar of the prosecutrix. It shows that
ejaculation had taken place. If ejaculation had
taken place after penetration, may be partial,
and penis was still in the area of her private
part, the semen must have been detected in the

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vaginal smear or at least on the vulva which is
the outer part of the vagina.

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25.Absence of semen not only in the vaginal
but also on vulva creates a strong doubt about
the penetration into her private part.

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26. In view of these circumstances, it appears
that the accused had taken the girl to the spot
for sexual intercourse with her, made her remove
her clothes, made her lie down on the ground and
removed his clothes for the purpose of having
sexualintercoursewithher.However,

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possibility cannot be ruled out that before he
could penetrate he might have ejaculated and
therefore, semen was found on his own underwear
as well as on the clothes of the girl but, was
not found either in the vaginal area or on the
outer surface of the vulva.

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27.The accused was fully grown up person aged
about 47 years. The girl was just 14 1/2 years

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of age. If he would have forcibly penetrated,
there was possibility of some injury, at least
tenderness but that was also absent.
Superficial injuries on the back of the girl and
similar injuries on knees of the accused could
be possible due to hard and rough surface but,
that itself could not go to establish
penetration.

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28.Taking into consideration this material, it
must be held that the prosecution has failed to
prove beyond reasonable doubt that the accused
had actually committed rape though there is
strong evidence that he attempted to commit rape
on her.

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29. In view of the facts and circumstances

¶171

noted above, while in respect of conviction and
sentences for the charges under sections 363,
366, 323 Indian Penal Code, no interference is
called for, he is entitled to be acquitted for
the charges under section 376 (2) (a) but is

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liable to be convicted for the offence for
attempt to commit rape punishable under section
376 (2)(a) read with section 511 of the Indian
Penal Code, because the accused committed that
offence within the local limits of the police
station where he was appointed as a head
constable.

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30.If a Police Officer is guilty for the

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offence of rape under section 376 (2)(a) of the
Indian penal code he is liable to be sentenced
with rigorous imprisonment for a period not less
than 10 years but it may be imprisonment for
life and also with fine.

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31.Section 511 of the Indian penal code
provides that whoever attempts to commit an
offence punishable under Indian Penal Code with
imprisonment for life or imprisonment shall,
where no express provision is made by Indian
Penal Code for the punishment of such attempt,
be punished with imprisonment of any description

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provided for the offence, for a term which may
extend to one-half of the imprisonment for life
or as the case may be, on half of the longest
term of imprisonment provided for that offence
or with such fine as is provided for the offence
or with both.

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32.As noted above, minimum sentence of

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imprisonment for the offence of rape under
section 376 (2) (a) is rigorous imprisonment for
10 years. Therefore, the minimum sentence which
may be awarded for attempt to commit rape would
be rigorous imprisonment for five years.

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33.However, the maximum sentence for the
offence of rape under section 376 (2) (a) of the
Indian penal code is life imprisonment.
Therefore, the maximum sentence for attempt to
commit rape could be half of life imprisonment.

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34. Section 57 of the Indian Penal Code

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provides that in calculating fractions of terms

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of punishment, imprisonment for life shall be
reckoned as equivalent to imprisonment for
twenty years. In view of this, for the offence
of attempt to commit rape punishable under
section 376 (2) (a) read with section 511

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maximum sentence would be rigorous imprisonment
for 10 years.

¶190

35.The accused is in custody since 18th

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October, 2005 and he was convicted on 13th July,
2006. The trial court directed substantive
sentences of imprisonment on all the counts to
run concurrently. The sentence of imprisonment
for the offence under section 363 of IPC is
rigorous imprisonment for one year was awarded,
for the offence under section 366 IPC,
imprisonment for 3 years was awarded, and
Maximum sentence of imprisonment for 15 years
was awarded for the offence of rape.

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36.The accused has actually undergone

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imprisonment for a period of more than 5 years

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and 10 months. After remission, which may be
awarded to him as per jail rules, is taken into
account, the actual sentence of imprisonment
undergone may be much more though less than 10
years. In view of this, in my opinion, sentence
of imprisonment as undergone would be sufficient
to meet the ends of justice.

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37.Therefore, the Appeal is partly allowed.
The conviction and sentence of the appellant-
accused for the offences under section 363,366
and 323 of the Indian penal code are maintained.

¶198

38. Hence, the conviction and sentence for the
offence punishable under section 376 (2)(a) of
the Indian penal Code stand set aside and the
accused is acquitted of that charge but, he is
convicted for the offence of attempt to commit
rape punishable under section 376 (2)(a) read
with section 511 of the Indian penal code and is
sentenced to undergo imprisonment as undergone
from 18th October,2005 till this date, with

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fine of Rs.10,000/-. In default to pay fine, he
shall undergo further imprisonment for three
months.

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39. If fine amount is recovered, the same
shall be paid to PW 7 the prosecutrix as

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compensation.

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J.H.BHATIA, J

Chadrakant Vitthal Pawar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Chadrakant Vitthal Pawar v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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