Partly allowed

Dilip Bharat Gavand @ Kanwa v. the State of Maharashtra

Bombay HC21 Nov 2018APEAL/1185/2013

Case brief

AI extract

What is this about?

Appellant convicted of rape under IPC 376(2)(f). High Court held that prosecution proved only attempt given lack of penetration injuries and evidentiary contradictions in child witness statement. Court quashed rape conviction, convicted appellant of offense under Section 511 read with Section 376(2)(f) as attempt, and awarded seven year rigorous imprisonment.

What did the court decide?

Conviction under Section 376(2)(f) IPC quashed; appellant convicted of offense under Section 511 read with Section 376(2)(f) IPC and sentenced to seven years' rigorous imprisonment.

Dilip Bharat Gavand @ Kanwa Vs the State of… — Child Sexual Offences (POCSO) | Bombay HC (2018)

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(209)APEALNo.11852013(J)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.1185 OF 2013

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Dilip Bharat Gavand @ Kanwa, Aged 22 years of Deonar, Mumbai, Indian inhabitant, currently incarcerated at Kolhapur Central Prison, formerly resided at Hut No.1, Opp. Telecom Factory Arjun Gavand Estate, Deonar, Mumbai – 400 043. ... Appellant V/s. The State of Maharashtra, (Trombay Police Station) ... Respondent

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Ms. Nasreen S. K. Ayubi, Advocate for the Appellant.

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Mr.P.H.Gaikwad-Patil, APP for the Respondent/State.

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CORAM : A.M.BADAR J.

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DATED : 21^st NOVEMBER 2018.

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ORAL JUDGMENT :

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1 By this appeal, the appellant/accused is challenging the Judgment and Order dated 29/06/2013 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.72 of 2013 thereby convicting the appellant/accused of the offence punishable under Section 376(2)(f) of the Indian Penal Code. He came to be sentenced to suffer rigorous imprisonment for seven

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Gaikwad RD

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(209)APEALNo.11852013(J)

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years apart from imposition of fine of Rs.5,000/- and default sentence of rigorous imprisonment for three months.

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2 Facts in brief leading to the prosecution of the appellant/accused are thus :

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(a) First Informant/P.W.No.2 Shantaben is grandmother of the victim female child/P.W.No.1. The victim female child/P.W.No.1 was about seven years of old at the time of the incident which took place on 05/07/2012. She was residing in a rented house along with her brother Varun, parents and grandmother P.W.No.2 Shantaben. Father of the appellant/accused was the landlord. On 05/07/2012, parents of the victim female child/P.W.No.1 went for searching alternate accommodation. The victim female child/P.W.No.1 along with her brother Varun and grandmother P.W.No.2 Shantaben were in the house which ran out of water. Hence, P.W.No.2 Shantaben asked the victim female child/P.W.No.1 to request to landlord Bharat Gavand to start supply of water to the tap. Then, P.W.No.2 Shantaben along with Varun went for fetching the water. At that time, the appellant/accused took the victim female child/P.W.No.1 with him by pressing her mouth to a secluded place. He denuded her, put his finger in her vagina. The appellant/accused then committed rape on the victim female child/P.W.No.1.

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(b) By getting herself freed from the clutches of the appellant/accused, the victim female child/P.W.No.1 ran towards her house. In the meanwhile, her brother Varun told the fact of taking the victim female child/P.W.No.1 by the appellant/accused to P.W.No.2 Shantaben. She also rushed out of the house. The victim female child/P.W.No.1 disclosed the incident as happened with her to P.W.No.2 Shantaben. The appellant/accused also came there and told that he has committed the mistake.

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(c) Parents of the victim female child/P.W.No.1 returned to the house at about 9.30 p.m. They made inquiry from the victim female child/P.W.No.1. Thereafter, police control room was telephonically contacted. The police came. The appellant/ accused was apprehended. P.W.No.2 Shantaben then lodged report of the incident to Trombay Police Station, Mumbai on 06/07/2012. That is how Crime No.133 of 2012 came to be registered against the appellant/accused for the offence punishable under Section 376 of the Indian Penal Code.

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(d) During course of investigation, clothes of the victim female child/P.W.No.1 so also that of the appellant/accused came to be seized by executing seizure panchanama in presence of panch witness P.W.No.3 Mohammed Mirza and P.W.No.6

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Hussain Shaikh. The victim female child/P.W.No.1 was initially taken to Nagpada Police Hospital where she was examined by P.W.No.4 Dr.Suchita Phad. Thereafter, she was taken to the J.J.Hospital, Mumbai where P.W.No.5 Dr.Deepali Elgire examined her. On completion of routine investigation, the appellant/accused came to be charge-sheeted.

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(e) The learned trial Court framed the charge for the offence punishable under Section 376(2)(f) of the Indian Penal Code. The appellant/accused pleaded not guilty and claimed trial.

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(f) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all seven witnesses. The victim female child was examined as P.W.No.1. Her grandmother First Informant/Shantaben was examined as P.W.No.2. Panch witness to the spot panchanama (Exhibit 16) namely Mohammed Mirza was examined as P.W.No.3. Dr.Suchita Phad was examined as P.W.No.4. Dr.Deepali Elgire was examined as P.W.No.5. Panch witness to the seizure panchanama of clothes of the victim female child/P.W.No.1 (Exhibit 25) namely Hussain Shaikh was examined as P.W.No.6. Investigating Officer Sarika Thorat PSI was examined as P.W.No.7.

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(g) The defence of the appellant/accused was that of total denial.

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He, however, did not enter in the defence. According to the defence, the appellant/accused is falsely implicated in the crime in question as his father was not selling out the tenanted premises to the father of the victim female child/P.W.No.1.

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(h) After hearing the parties, the learned trial Court, by the impugned Judgment and Order, was pleased to convict the appellant/accused of the offence punishable under Section 376(2)(f) of the Indian Penal Code by holding that amended provisions of Section 375(a) and (b) makes the offence of rape complete even if the accused inserted a part of his body not being the penis into the vagina and, therefore, the act committed by the appellant/accused comes under the definition of the term 'rape'. The learned trial Court further held that though evidence of the victim female child/P.W.No.1 about putting his penis by the appellant/ accused in the mouth of the victim female child/P.W.No.1 is coming by way of omission, the said evidence is acceptable. In paragraph 28 of the impugned Judgment and Order of conviction, the learned trial Court categorically held thus :

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“28. There is no question of offence under Section 354, as per the amended act, the act committed by the accused comes under the offence of rape. Hence, the offence is proved

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against the accused.”

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Similarly, in paragraph 30, the learned trial Court observed thus :

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“30. The accused is made aware of the fact that the offence under Section 376 of the IPC is proved against him and Section 376(2)(f) is punishable with imprisonment not less than 7 years or for life imprisonment.”

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Thus, it is seen from the impugned Judgment and Order, that the learned trial Court has relied on the substituted Section 375 defining the term 'rape' by the Criminal Law (Amendment) Act, 2013 which is brought into effect from 03/02/2013. In addition, the learned trial Court has held that the offence under Section 376(2)(f) of the Indian Penal Code is punishable with imprisonment not less than seven years and proceeded to impose sentence of rigorous imprisonment for seven years apart from fine on the appellant/accused by observing that the appellant/accused has committed serious offence of rape on a small girl.

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3 I heard Ms.Ayubi, the learned Advocate appointed to represent the appellant/accused at the cost of the State. She argued that the appellant/accused is falsely implicated in the

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crime in question because of dispute over the property. It is further argued that the prosecution has not adduced any evidence to show that the appellant/accused had taken the the victim female child/P.W.No.1 for commission of the offence alleged against him. She further argued that medical evidence adduced by the prosecution is not corroborating the version of the victim female child/P.W.No.1 and, therefore, the appellant/accused is entitled for benefit of doubt.

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4 The learned Additional Public Prosecutor argued that evidence of the victim female child/P.W.No.1 and P.W.No.2 Shantaben is consistent and is supported by other evidence on record.

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5 I have carefully considered the rival submissions and also perused the Record and Proceedings including oral as well as documentary evidence.

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6 According to the prosecution case, the appellant/ accused committed rape on the victim female child/P.W.No.1, who happens to be aged about seven years, on 05/07/2012. Thus, if prosecution case against the appellant/accused is held to be proved, then the appellant/accused shall be liable for punishment according to law as it stood on 05/07/2012. Definition of the term 'rape' as found in Section 375 of the Indian Penal Code as it

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Gaikwad RD

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(209)APEALNo.11852013(J)

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stood prior to bringing into the effect the Criminal Law (Amendment) Act, 2013 was thus :

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“375. Rape .—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

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First — Against her will.

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Secondly —Without her consent.

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Thirdly — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

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Fourthly —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Sixthly — With or without her consent, when she is under sixteen years of age.

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Explanation .—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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Exception —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

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7 Thus, to constitute the offence of rape as it stood on 05/07/2012, the prosecution is required to prove that the appellant/accused had sexual intercourse with the victim female child/P.W.No.1. The prosecution is enjoined to establish even partial or slightest penetration of the male organ of the appellant/accused in the female organ of the victim female child/P.W.No.1. The learned trial Court committed error of law in holding that fingering, friction of penis and putting the penis in the mouth of the victim constitute the offence of rape as per amended definition of the said term which is applicable to the case in hand. The amended definition of the term 'rape' introduced by Criminal Law (Amendment) Act, 2013 is made applicable w.e.f. 03/02/2013 and the incident in question took place on 05/07/2012. The amended definition of the term 'rape' cannot be made retrospectively applicable. As on 05/07/2012, fingering or putting the penis in the mouth of the victim were not the act covered by the definition of the rape. Friction of penis would amount to rape if slightest penetration is established. Keeping in mind this legal provision, let us examine the case in hand.

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8 The prosecution has come out with a case that the appellant/accused had committed rape on the victim female child/P.W.No.1. It is well settled that the child witness is prone to tutoring and, therefore, the Court is required to look for corroboration particularly when the evidence betrays traces of tutoring. (See Arvind Singh & Krishna Nanda v. State of Bihar¹ ). It is crystallized that the evidence of child witness must find adequate corroboration before it is relied upon as the rule of corroboration is of practical wisdom than of law (See Prakash v. State of M.P.² ) As a child witness is susceptible to be swayed by others and is an easy prey to tutoring, it becomes duty of the Court to evaluate evidence of the child witness more carefully and with greater circumspection. Keeping in mind these principles of appreciation of evidence of child witness, even evidence of the victim female child/P.W.No.1 is examined, then it is seen from her cross-examination that her grandmother had told her what to say before the police and her mother disclosed her how to give evidence before the Court. The victim female child/P.W.No.1 admitted in her cross-examination that her statement was read over to her before coming to the Court. She admitted that she is deposing on the say of her mother. With all this tutoring to her right from inception, let us see what the victim female child/P.W.No.1 has deposed about the incident. As per her

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1 AIR 1994 SC 1068.

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2 (11992) 4 SCC 225.

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version, she along with her grandmother went to the tap for fetching the water. Thereafter, the appellant/accused lifted her, took her in the jungle, removed her payjama and knicker. She further deposed that then the appellant/accused opened the chain of his pant and put his private part in her private part. The victim female child/P.W.No.1 further deposed that the appellant/accused inserted his finger in her private part and thereafter put his penis in her mouth. She then ran towards her house and told the incident to her grandmother. Thus, the victim female child/ P.W.No.1 has deposed about fingering by the appellant/accused, putting of his penis in her mouth so also commission of forcible sexual intercourse by the appellant/accused by insertion of penis in her vagina. Evidently, this is done as per the tutoring by P.W.No.2 Shantaben regarding what to depose before the police and by her own mother in respect of what to depose before the Court.

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9 Now, let us examine what P.W.No.2 Shantaben – grandmother of the victim female child/P.W.No.1 deposed about recitals of the victim female child/P.W.No.1 soon after the incident. This is necessary because as per version of the victim female child/P.W.No.1 immediately after the incident she ran to her house and disclosed P.W.No.2 Shantaben about the incident. On this factual backdrop, P.W.No.2 Shantaben has stated that when her grandson told her that the appellant/accused had taken

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the victim female child/P.W.No.1, she ran outside to see what happened and at that time, the victim female child/P.W.No.1 came running towards her holding salwar in her hand. P.W.No.2 Shantaben then testified that the victim female child/P.W.No.1 then told her that the appellant/accused had put his finger in her private part.

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10 Evidence of P.W.No.2 Shantaben thus makes it clear that the very first version about the incident disclosed to her by her granddaughter i.e. the victim female child/P.W.No.1 was fingering to her by the appellant/accused. The victim female child/P.W.No.1 did not disclose her grandmother/P.W.No.2 regarding forcible sexual intercourse by the appellant/accused or putting of penis by him in her mouth. Section 157 of the Evidence Act makes such immediate recitals about the incident admissible in evidence. Thus, the first version regarding the incident coming from the mouth of the victim female child/P.W.No.1 is not disclosing commission of offence of rape as it stood on 05/07/2012.

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11 Now, let us scrutinize the medical evidence on record. Initially, the victim female child/P.W.No.1 was taken to Nagpada Police Hospital and P.W.No.4 Dr.Suchita Phad examined her and found that there was some injuries on the private part of the victim female child/P.W.No.1. Therefore, the victim female

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child/P.W.No.1 was referred to the JJ.Hospital where she was examined by P.W.No.5 Dr.Deepali Elgire, Assistant Professor in Gynecology. Perusal of evidence of P.W.No.5 Dr.Deepali Elgire shows that she asked the victim i.e. the victim female child/P.W.No.1 about the history of the incident. The victim gives history of fingering and attempt of penile friction. Upon internal examination of the victim female child/P.W.No.1, P.W.No.5 Dr.Deepali Elgire found that there were injuries in the form of scratches over inner side of labia majora and these injuries were not bleeding. Exhibit 24 is the Medico Legal Certificate prepared by P.W.No.5 Dr.Deepali Elgire. This Medico Legal Certificate which is in tune with the version of its author shows that there were normal scratches over inner side of labia majora and hymen of the victim were found to be normal. There was no injury to the perineum of the victim. No external injuries were found on body of the victim female child/P.W.No.1 by P.W.No.5 Dr.Deepali Elgire.

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12 Evidence of Investigating Officer P.W.No.7 Sarika Thorat, PSI shows that version of the victim female child/P.W.No.1 that the appellant/accused had put his penis in her mouth has come by way of omission. Even the history disclosed by the victim female child/P.W.No.1 to Medical Officer P.W.No.5 Dr.Deepali Elgire does not show that the appellant/accused put his penis in the mouth of the victim or had inserted his penis in the vagina of the victim.

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13 This position of the evidence adduced by the prosecution makes it clear that evidence of the child witness/P.W.No.1 is all encompassing embellishment and exaggeration apparently as a result of tutoring to her since inception by her grandmother as well as her mother. However, that by itself is not sufficient to reject the entire evidence of the victim female child/P.W.No.1. This Court in the matter of Gopal Madhukar Bombatkar v. State of Maharashtra¹ has held that making the witness aware about the police statement and telling the witness to narrate the incident properly in the Court does not amount to tutoring. Ultimately, it becomes the duty of the Court to segregate nuggets of truth from embellished version of the victim of the crime in question.

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14 The appellant/accused at the relevant time was 22 years old young person. The victim female child/P.W.No.1 was just seven years old female child. If really the appellant/accused had inserted his penis in the vagina of the victim female child/P.W.No.1, then such act would have been evident from the medical examination of the victim female child/P.W.No.1. There would have been extensive damage to the private part of the victim female child/P.W.No.1. Version of P.W.No.2 Shantaben shows that the victim female child/P.W.No.1 had immediately disclosed fingering by the appellant/accused to her. Medical evidence is not showing any external or internal injuries on the

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1 2014 ALL MR (Cri.) 2390.

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body of the victim female child/P.W.No.1, but for normal scratches over inner side of labia majora of the victim female child/P.W.No.1. In this view of the matter, evidence of the victim female child/P.W.No.1 to the effect that the appellant/accused has inserted his penis in her vagina or that he put his penis in her mouth cannot be accepted and the appellant/accused needs to be given benefit of this reasonable doubt, which is creeping in the prosecution case. However, evidence of prosecution indicates that when the grandmother of the victim female child/P.W.No.1 was busy in fetching water, the appellant/accused had taken her to a secluded place and has started fingering her. Evidence of the victim female child/P.W.No.1 to the effect that thereafter she ran away from the appellant/accused is also acceptable as it is gaining corroboration from version of her grandmother P.W.No.2 Shantaben. Thus, evidence on record establishes that the appellant/accused had taken the victim female child/P.W.No.1 with an intention to commit rape on her and as a preparation to accomplish this task, he had denuded her and inserted his finger in her private part. This discloses the attempt by the appellant/accused to commit rape on the victim female child/ P.W.No.1. However, the attempt to commit rape failed and the crime was not completed as the victim female child/P.W.No.1 was successful in extricating herself from the clutches of the appellant/accused. In this view of the matter, conviction of the appellant/accused for the offence punishable under Section

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376(2)(f) of the Indian Penal Code cannot be sustained. Instead, he is proved to commit the offence punishable under Section 511 read with Section 376(2)(f) of the Indian Penal Code.

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15 The offence punishable under Section 376 (2)(f), as it stood prior to 03/02/2013, was punishable with the rigorous imprisonment for a term which shall not be less than ten years, but which may be for life. The learned trial Court again erred on this aspect by holding in paragraph 30 of the impugned Judgment and Order that the offence punishable under Section 376(2)(f) of the Indian Penal Code is punishable with imprisonment of not less than seven years and accordingly proceeded to sentence the appellant/accused for seven years only. Though it is held that the offence punishable under Section 376(2)(f) of the Indian Penal Code is proved against the appellant/accused, the learned trial Court, as seen from the impugned Judgment and Order, proceeded to impose the punishment under the premise that the proved offence is punishable with imprisonment for not less than seven years. Be that as it may, the evidence on record unerringly points out commission of offence of attempt to commit rape by the appellant/accused on the victim female child/P.W.No.1. Therefore, the appellant/accused can be sentenced to suffer rigorous imprisonment for seven years on that count. In this view of the matter, the following Order :

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Gaikwad RD

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(209)APEALNo.11852013(J)

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ORDER

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(i) The Appeal is partly allowed.

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(ii) Conviction of the appellant/accused for the offence punishable under Section 376(2)(f) of the Indian Penal Code as well as the resultant sentence imposed on him by the learned trial Court is quashed and set aside.

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(iii) Instead, the appellant/accused is convicted for the offence punishable under Section 511 read with Section 376(2)(f) of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for seven years apart from direction to pay fine of Rs.1,000/- and in default to undergo further rigorous imprisonment for three months.

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(iv) Needless to mention that the appellant/accused shall be entitled for the set off.

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(v) The Appeal is disposed of accordingly.

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(A.M.BADAR J.)

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Gaikwad RD

Dilip Bharat Gavand @ Kanwa v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Dilip Bharat Gavand @ Kanwa v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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