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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 185 OF 2016
Mohd. Ishtiyak Ismile Shaikh ...Appellant
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Mr.Aashish Satpute, Advocate for the Appellant appointed by the
Legal Aid High Court of Bombay.
Ms.P. P. Shinde, APP for the Respondent – State.
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DATED : AUGUST 05, 2020.
JUDGMENT
1. By this appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”) the appellant seeks to challenge the judgment and order dated 26th August 2014 passed by the Court of Additional Sessions Judge, Sessions Court, Greater Bombay, thereby convicting the appellant for committing offence punishable under Section 376(2)(f) of the Indian RajeP. Penal Code (hereinafter referred to as “the IPC”) and sentencing him to undergo imprisonment for life till his death and further convicting him for the offence punishable under Section 323 of the IPC and sentencing him to suffer rigorous imprisonment for two years. Both sentences were directed to run concurrently.
2. The brief facts of the prosecution’s case are as under: (a) The victim was staying with her father, sister and two brothers. Her father (accused) was working as liftman. Her mother is no more. She was taking education in Municipal School and she is educated upto 7th Std. (b) When the victim was in 4th Std., while she was suffering from cough and cold she was at home. Her brother and sister were not at home. Her father came home and told her to massage his legs and body. He than told her to remove her cloths. She denied. Her father/accused assaulted her with belt and thereafter had forceful sexual intercourse with her.
(c) The accused continued to have forcible sexual relationship with the victim. After two years the accused alongwith victim, her brothers and sister came to Ashiyana building where her father was working as watchman. When they were staying there, her father used to take the victim on the first floor in one room and have sexual relations with her.
(d) When the victim was in 6th standard they started staying on the terrace of Ashiyana Building. At that time the accused was working as liftman. He continued physical relationship with her. She was pregnant and therefore her father gave some tablets to her. At that time her health was not good. After she recovered, the accused continued physical relations with her on the terrace of Ashiyana Building when her sister went for classes in the afternoon. When it was intolerable for her, she disclosed this fact to her friend Muskan. Her friend advised her to lodge complaint. Hence, the victim lodged complaint against her father. (e) On the basis of the complaint of victim Crime No. 71 of 2013 was registered on 03rd March 2013 with Nirmal Nagar Police Station against the accused for the offences punishable under Sections 376 and 323 of IPC. Investigation was assigned to PSI Smt. Savita Sudhakar Gaware. During the course of investigation, the Investigating Officer recorded statement of victim, conducted spot punchnama, arrested accused, recorded arrest panchanama, seized clothes of accused and victim which were on their person, recorded statement of witnesses and sent the victim for medical examination. The seized clothes were also forwarded to CA for examination. On completing investigation chargesheet was filed before the concerned court.
3. The prosecution has examined three witnesses, P.W. No.1 the Victim/Complainant, P.W. No.2 Dr. Kiran Sambhaji Kalyankar who examined the victim and accused, P.W. No.3 Mr.Balwant Vyankath Deshmukh, 2nd Investigating Officer.
4. The prosecution has relied on the documents such as complaint of P.W. No.1 (Exh.10), medical examination certificate of victim (Exh.12), medical examination certificate of accused (Exh.13), spot punchanama (Exh.15), seizure panchanama of clothes of accused (Exh.16), seizure panchanama of clothes of victim (Exh.17), forwarding letter to CA (Exh.18) and CA report (Exh.19).
5. The learned counsel for the appellant Shri Satpute submitted that the appellant has been falsely implicated in this case. The victim-girl who is daughter of the appellant was having affair with some other person, which was objected by the appellant and hence false complaint was lodged against the accused by the victim. There is enormous delay in lodging the First Information Report. According to the victim the incident had occurred about 6 to 7 years ago before lodging complaint. According to her she was repeatedly sexual assaulted by her father, however, she did not lodge complaint at any point of time nor disclosed the incident to any other person for last several years. The evidence of the victim refers to the fact that the accused had gone out for period of two years and even at that point of time victim did not lodge complaint against her father. The medical evidence is not sufficient to establish the offence under Section 376 of IPC. According to the victim the incident was disclosed by her to her friend Muskan who advised her to lodge complaint with Police. However, prosecution has not examined Muskan. The other family members did not notice objectionable behavior of accused. They have not come forward in support of the complainant. CA report with regards to the clothes of victim and accused do not support the prosecution. The evidence of witnesses suffers from contradictions and omission. The complainant is not a reliable witness. Conviction cannot be based on her sole testimony. Investigating Officer, who conducted the investigation, has not been examined by the prosecution. The prosecution case has not been established beyond reasonable doubt.
6. The learned advocate for the appellant placed reliance on the following judgments in support of his submissions, Rajesh Patel Vs. State of Jharkhand[1], Narendra Kumar Vs. State(N.C.T. of Delhi)2, Vijayan Vs. State of Kerala[3], Prahlad Singh Vs. State of
3 (2008) 14 SCC 763, Atender Yadav Vs. State(N.C.T. of Delhi)5, Jagdish Balaram Narangikar Vs. State of Maharashtra[6].
7. Smt. P. P. Shinde, learned APP for the State supported the judgment of the Trial Court. She submitted that there is evidence on record which has established the charge against the appellant. The offence is of serious in nature. The appellant has subjected the victim who is his daughter to sexual assault continuously for a period of about 6 to 7 years. The testimony of the victim is truthful. There is no reason to disbelieve her evidence. The medical evidence clearly supports the prosecution’s case. The evidence on record shows that victim was continuously subjected to sexual intercourse by the accused. She was pregnant. She delivered a child. The father who is supposed to be protector of child has sexually abused the child. The evidence on record has proved the charge under Section 376 of the IPC as well as under Section 323 of the IPC beyond all reasonable doubt.
8. With the assistance of both the sides, we have scrutinized the evidence on record. The prosecution has examined three witnesses. The victim, in her evidence, stated that she has studied upto 7th Std. Her sister is studying in 7th Std., her other
5 (2013) SCC online DEL 322 6 (2012) SCC online BOM 681 siblings are not staying with her. She was staying at Dharavi with her father. One day, her father/accused asked her to massage his legs and body and also told her to remove her clothes. When she refused, he assaulted her with belt. She shouted. He gagged her mouth. Her father had forcible sexual intercourse with her. There was pain in her stomach. He stopped her education and sexually assaulted her. He used to rape her daily in morning and afternoon for one year. When she became pregnant, the accused took her to hospital and gave her medicine. She disclosed this incidents to her friend Muskan, who advised her to lodge complaint to Police Station. She came to know about her pregnancy when her stomach was growing. Her complaint was recorded by the Police. It was marked as (Exh.10). She do not remember the name of hospital where her father took her, but it was at Andheri. In her cross-examination she stated that she left her school before one year. She was not good in studies, and, therefore, left the school. She further states that she was pregnant, and, therefore, left the school. Her younger sister is 3 years younger than her. She disclosed the incident to her elder brother. He did not have faith in her. She talked to her brother one day before lodging complaint. The timing of her father’s work as liftman was between 05.00 a.m. to 10.00 p.m. Her brother Rafeeque was also doing work there. She delivered female child. Child is now 4 years of age and her father kept child in orphanage home. She has not stated in her statement that her father gave her tablets in the hospital. She used to go to the house of Muskan. She has not disclosed about incident to Muskan before giving complaint. Her sister and brother were aware that she gave birth to female child. Her father had not committed anything wrong with her sister. She knows Shakeel Cassetwala. He is resident of Kherwadi. He is not her relative. She denied that she used to go to his house to stay with him. Nobody used to come to relive her though she shouted, as the accused used to lock the door. The cross-examination of the victim does not help the defence in any manner. Although, some minor omission were brought on record, the testimony of the victim that she has been continuously sexually assaulted by the accused has not been shaken in any manner. The motive attributed to the victim for lodging false complaint has been denied by her. We do not find any reason from the evidence of this witness to disbelieve her version and there is nothing in the cross-examination to infer that the victim had lodged a false complaint against her father.
9. P. W. No.2 Dr. Kiran Kalyankar is the medical officer who examined the victim on 4th March 2013. He deposed that he had examined the victim after taking her consent for medical examination. He noted down the history given by her in her own words, wherein she stated that her father repeatedly raped her since she was 14 years old under life threats i.e. for last 6 to 7 years. She became pregnant from him and delivered female child one year ago in Andheri private nursing home. She was not knowing the name of private nursing home where the doctor did not give the delivered child to her. The last sexual contact by her father was on 2nd March
2013. He further stated that hymen was completely torn. Age of tears was old healed. Abdominal examination shows abdomen soft, lax, lineq albicome seen as a sign of post delivery. After physical examination and ossification test, he concluded her age between 17 to 18 years. Accordingly he issued the certificate. He also examined the accused on 4th March 2013. Nothing was found to suggest that he is impotent. His age was around 55 years. Accordingly, he issued the certificate. The certificate and medical examination papers were exhibited in evidence as Exhibit Nos.12 and 13. In the cross examination he stated that the accused was brought by the Police by forwarding letter. The history was given in the forwarding letter. He do not know whether victim’s relative was with her when she was brought for medical check-up. Old injuries were there on private part. There were no fresh injuries on her body. The victim was habituated for sexual intercourse. He denied that history was not given by the victim.
10. P. W. No.3 Balwant Deshmukh was attached to Nirmal Nagar Police Station as Police Inspector. He stated that victim came to the police station and lodged the complaint. She came alone while lodging the complaint. Smt. Gaware was station officer at the relevant time. She recorded her statement. He identified the signature of Smt.Gaware as she was working with him. He went to the spot alongwith Smt.Gaware and conducted spot punchanama. The panchanama was signed by the panch witnesses and Smt.Gaware. Accused was arrested. The clothes of the accused and victim were seized. The panchanama of seizure of clothes were exhibited in evidence. He further deposed that the victim was sent for check-up to Nagpada Police hospital. Smt.Gaware recorded statements of witnesses. Clothes of the victim and accused were sent to CA with forwarding letter dated 25th March 2013. On completion of investigation charge-sheet was filed. In the cross-examination he stated that the entire investigation was conducted by Smt.Gaware. He denied that the accused has not committed offence and he has been falsely implicated in this case. He denied that he was not present with Smt.Gaware at the time of conducting spot panchanama. The cross-examination of the witnesses is cryptic. It doesn’t support the defence in any manner. No admission were elicited from the cross-examination of this witness which would create doubt about prosecution case.
11. We find that there is no reason to disbelieve the evidence of victim. Her evidence is sufficient to prove the case against the accused. She was subjected sexual assault by the accused continuously. The medical report also supports the prosecution case. The cross-examination of the witnesses was futile exercise for defence, on the contrary certain facts were revealed by the victim in her cross-examination which supports the prosecution case. No omissions or contradictions were brought on record to discredit version of victim and other witnesses. The victim was minor at the time of the incident. She has deposed that she was continuously subjected to sexual intercourse by the accused for 6 to 7 years. The medical officer has clearly stated that abdominal examination shows abdomen soft, lax, lineq, albicoms seen as sign of post delivery. The hymen was completely torn and age of tears was old healed. This clearly supports the version of the victim that she was pregnant and she had delivered the child and she was continuously subjected to sexual assault by the accused. The medical examination certification of the victim issued by P. W. No.2 refers to the history provided by the victim. It was stated that her father Mohd. Ishtiyak Shaikh repeatedly raped her since she was 14 years old under life threats i.e. since last 6 to 7 years. She became pregnant from him and also delivered female child one year ago at Andheri private nursing home. She is not knowing the name of private nursing home and the doctor did not give the child to her. Last sexual assault by her father was on 2nd March 2013. Thus, the evidence of medical officer, history provided by victim and recorded in the medical examination papers corroborates the version of the victim.
12. The trial Court has appreciated the evidence on record while giving finding of guilt. The trial Court has also taken into consideration the gravity of the offence committed by the appellant/ accused. The appellant was convicted for the offence punishable under Section 376(2)(f) of the IPC and was sentenced to suffer rigorous imprisonment for life till his death. The charge was framed under the amended provision of Section 376 of IPC. Apparently the trial Court has taken into consideration the fact that the amendment came into effect on 3rd February 2013 wherein Section 376 has been amended by incorporating Section 376(2)(f) and the punishment provided for commission of the said offence was rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of persons natural life and shall also be liable to fine. The complaint in the present case was lodged on 3rd March 2013. The victim had stated that she was continuously subjected to sexual intercourse by the accused and the last incident had occurred on 2nd March 2013. The trial Court has awarded the maximum punishment provided for the said offence. It would be relevant to reproduce paragraph Nos.17 and 18 of the impugned judgment which indicate the reasons for the conviction and the punishments imposed upon the accused. Paragraph Nos.17 and 18 reads as follows:
17. The accused is stigma to the word ‘father’. He has committed rape on her own minor daughter, when she was 10 years of age. The father is the person, who protects his child and here, the accused has committed rape on his own daughter and continued it for 6 years. The victim has also delivered a female girl, who is given in adoption. The accused has committed a shameful act. The daughter has no reason to falsely implicate her own father in such a heinous act. The prosecution has rightly relied on the judgment of Hon’ble Chattisgarh High Court reported in CRI. L.J. 2684 in the matter of Kumar Sai Vs. State of Chattisgarh, in which Hon’ble Court has held that - “No reason to disbelieve the testimony of prosecutix. Here the victim is the daughter and the appellant is the father. She has no reason to falsely implicate her father. Why a minor daughter would falsely implicate her father in such a case of sexual molestation. The prosecutrix was aged about 14 years and was studying in 7th standard and thus, she must be aware of the far reaching effects of such allegations in her entire life. In absence of any positive material, there is no reason for the Court to disbelieve her testimony by discrediting her clear and cogent evidence, which inspires the full confidence of Court.”
18. In case in hand, the victim has tolerated atrocity committed by her own father. There is no reason to disbelieve her statement. There is no reason to disbelieve the evidence of victim. Her evidence is sufficient to prove the case against accused, as she is the only eye witness and she has experienced the dirty act of accused. She has tolerated it since her childhood. The accused did not allow her to go anywhere. He stopped her education and she has specifically stated that whenever her sister was not in home, whenever she went for Mehandi classes, the accused used to commit said act in the afternoon and at night. For 6 years twice a day he used to rape her and she tolerated it and when it has become intolerable, she has disclosed it to her friend and has lodged complaint against her own father.
13. There cannot be more serious crime than rape of minor child and such an offence assumes a degree of severity when committed by none else but by the father of the victim. The father is supposed to protect the dignity and honor of his daughter. This is fundamental facet of human life. If the protector becomes the violator the offence assumes a greater degree of vulnerability. The sanctity of father and daughter relationships gets polluted. It is unpardonable act. This is a grievous sin committed by parent who in the lust of satisfying sexual desire, polluted his relationship with his own daughter. It is apparent that the mother of the victim had died and the victim was in custody of her father, who sexually abused her continuously.
14. The decisions relied upon by the learned counsel for the appellant are of no assistance to the appellant as the same were delivered in the facts of respective cases. In the case of Rajesh Patel Vs. State of Jharkhand (supra) the accused was prosecuted for the offence under Section 376 of IPC was acquitted on the ground that there was delay in lodging FIR and that the victim and the accused were major and acquainted with each other. The medical officer and the Investigating Officer were not examined. In the Narendra Kumar Vs State (NCT Delhi) (Supra) the Court found inconsistency in the evidence of the prosecutrix. It was observed that the statement suffers from serious infirmities, inconsistency and deliberate improvement on material points and no reliance can be placed thereon. In the case of Pralhad Singh Vs. State of MP (Supra) it was observed that even if factum of rape is established beyond reasonable doubt, it has to be established through reliable and acceptable evidence that it was the accused who committed rape. In the case of Atendar Yadav V/s. State Government of NCT of Delhi (Supra) the Delhi High Court was dealing with appeal against the conviction under Section 376 of IPC where the father was prosecuted for having committed the offence by sexually abusing his daughter. The observation of the Court would indicate that there were dispute between the mother of the victim and the accused. The victim was under influence of her mother who was used as tool for lodging the complaint. In the case of Jagdish Narangikar V/s. State of Maharashtra (Supra) decided by this Court, the accused was acquitted on the ground that there was enormous delay in lodging the complaint. The Court observed that the allegation that the two year old child was subjected to sexual assault, was not reliable as the complainant who is the mother of the child, did not lodge complaint immediately. The Court also consider several other infirmities in the evidence and accepted the defence of the accused that on account of monetary dispute between the mother of the accused and the complainant, false complaint was lodged. Thus, the observation in the aforesaid decisions cannot be applied in the facts of the present case.
15. As noted herein above, we are of considered opinion that the testimony of the victim cannot be disbelieved and the prosecution has been able to establish its case against the accused. Although CA report did not help the prosecution, the ocular testimony, the documentary evidence on record, medical examination of the victim, the history provided to medical officer proves that the victim was subjected to sexual assault as stated by her. In her evidence the victim had stated that although the other family members were aware about the sexual assault upon the victim, her brother did not have faith in her. In this circumstances, the other members of family had not come forward. The testimony of the victim is sufficient and it is corroborated by the medical evidence to prove the charge against the accused. She has no reason to lodge false complaint against her own father.
16. The law is well settled in respect to conviction on sole testimony of victim. In the case of Ramkrishna V/s. State AIR 2009 SC 8857 and Motilal V/s. State of M.P. 2008 3 SCC (CRI) 9508 it was observed that the prosecutrix could not be put at par with an accomplice. Her evidence must receive the same weight as attached to the evidence of injured witness. In Ganga Singh V/s. State of MP AIR 2013 SC 30089 it was observed that the prosecutrix is the victim of crime and not an accomplice. Her evidence needs no corroboration. In Radha V/s. State of MP 2007 12 SCC 5710 it was observed that it is now well settled that the finding of guilt in the case of rape can be based on uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix cannot be rejected on the basis of minor discrepancies and contradiction. In the case of State of Rajashtan Vs Vinod Kumar AIR 2012 SC 230111 it was observed that while considering the punishment to be awarded to the accused, the conduct and the state of mind of accused, the age of victim and gravity of criminal act were relevant consideration. In Rajindar V/s. State of H.P. AIR 2009 SC 302212 it was observed that while appreciating the evidence of the prosecutrix, the Court must always keep in mind that no self respect in women would put her honour by falsely alleging commission of rape on her, and, therefore, ordinarily look for corroboration of a testimony is unnecessary and uncalled for. But for high improbability in prosecution case, the conviction in the case of sex crime can be on sole testimony of the prosecutrix.
17. It is a settled legal proposition that once the statement of the prosecutrix inspires confidence and is accepted by the Court as such conviction can be based on evidence of prosecturix unless there are compelling reasons which necessitate the Court for corroboration of her statement. Minor contradictions or insignificant discrepancies should not be aground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as testimony of any other witness. However, if the Court finds it difficult to accept the version of prosecutrix on its face value, it may search for evidence, direct or substantial which may lend assurance to her testimony.
18. The shocking facts in the present case indicate that the victim who was minor and without her mother was sexually assaulted, continuously by none other than the father of victim. She was assaulted, threatened, gagged and continuously sexually abused to satisfy his lust. The testimony of victim cannot be doubted. The other family members did not render support to her. She continuously suffered the abuses at the hands of her father. After suffering for a long time and delivery of child, the victim confided her suffering to her close friend, who adviced her to lodge complaint. It is thereafter, the complaint was lodged by her. She has also stated that before lodging complaint she spoke to her brother about the sexual abuses. Apparently, she did not get any support from him. She had to fight her lone battle and she alone went to police station and lodged the complaint. It is true that there are some defects in the investigation. The investigation machinery did not investigate into the aspect of the place where the child was delivered and in which orphanage the child was kept as disclosed in the evidence of the victim. However, inspite of not lapse of investigation in that regard, the incident of sexual abuses stated by the victim has been established beyond doubt. The manner in which the victim was subjected to sexual assault would definitely invite the punishment as awarded by the Trial Court. In the case of Visveswaran V/s. State the Apex Court has observed that in defective investigation the only requirement is of extra caution by
Courts while evaluating evidence. It would not be just to acquit accused solely as result of defective investigation. The trial Court judgment mentions that, the investigating officer PSI Mrs.Gaware was not available, as she had gone for long leave for delivery. Considering the stage of trial, the investigating officer who can identify the signature of PSI Mrs.Gaware, the prosecution has examined him as P.W.[3] and panchanama conducted by Mrs.Gaware and other documents are exhibited. P.W.[3] in his evidence has stated that he alongwith Mrs.Gaware went on the spot and conducted panchanama. There is cogent evidence on record to prove the guilt of the accused. Thus, we do not find any reason to interfere in the Judgment of the Trial Court.
19. Hence, we pass the following Order: O R D E R
(i) Criminal Appeal No.185 of 2016, is dismissed;
(ii) Fees of the learned counsel appointed to prosecute the cause of the appellant is quantified at rate of Rs.5,000/- (Rupees Five Thousand only). Registry to ensure that the fees are paid to the learned counsel within four week from today;
(iii) Copy of this Judgment be forwarded to the prison authorities, where appellant is detained;
(iv) In view of dismissal of Appeal, no separate order is required to be passed in the Interim Application. Hence, Interim Application No.1 of 2019, stands disposed of accordingly. (PRAKASH D. NAIK, J.) (PRASANNA B. VARALE, J.)