CASE NO.: Appeal (crl.) 173 of 2006 PETITIONER: Jameel RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 16/01/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT:
J U D G M E N T
S.B. Sinha, J :
This appeal is directed against a judgment and order dated 27.01.2005
passed by a learned Single Judge of the Aurangabad Bench of the Bombay High
Court in Criminal Appeal No. 23 of 1991 whereby and whereunder the appeal
preferred by the appellant herein against a judgment of conviction and sentence
dated 16.01.1991 was dismissed.
Appellant herein is a resident of Ambedkarnagar, Nanded. He was a
mechanic of two-wheelers. One Shivrani Dhondiba Kshirsagar, aged about 6 years
at that time, was also residing at House No. 14, Ambedkarnagar, Nanded. He
allured the said child to ride with him on his Luna. She was taken towards
Aerodrome. A search was made for her, but she could not be traced. She came
back to her house weeping and crying. It has been noticed by the High Court :
“When her mother made query, she told that the
person who used to repair Luna had taken her towards
aerodrome on Luna and thee, after removing her nicker,
he urinated on his private part. She also told that as a
result of the same, she was having pains at her private
part. After arrival of the father of the prosecutrix,
Vandana, the mother of the prosecutrix narrated the
incident to him. The prosecutrix also narrated the said
incident to her father. Thereafter, father tried to search
the person who had committed the above acts, but he was
not traced”
A First Information Report could not be lodged immediately as night had set
in. On the next day, the girl was taken to the ‘Noor Garage’ where the appellant
was identified as the person who had committed the ‘mischievous act’ against her
on the previous day. The First Information Report thereafter was lodged. The
prosecutrix was medically examined by one Dr. Sheela Kadam. The medical
report reads as under :
“(i) Hymen intact
(ii) No evidence of injury over valva
(iii) External anal spinctor abrasion anteriorly and
laterally about < cm x < cm. Redness of spinctor
PR powerful.
(iv) For vaginal examination not possible.
(v) No semen deposit and hymen intact. So wet smear
for spearm taken from rectum. Negative.
There is evidence of intercourse through rectum.”
Although a chargesheet was filed against the appellant under Sections 363
and 376 of the Indian Penal Code, but the same was altered to one under Sections
363, 376 read with Section 511 and Section 377 thereof.
Before the learned Sessions Judge, not only the prosecutrix but also her
mother Vandana Dhondiba Kshirsagar and father Dhondiba Kishan Kshirsagar
were examined.
Believing the testimonies of the said witnesses, the learned Sessions Judge
found the charges to have been proved as against the appellant. He was convicted
under Sections 363, 376 read with Section 511 and Section 377 IPC. He was
sentenced to suffer rigorous imprisonments for three years, five years and seven
years under Sections 363, 376/511 and 377 IPC respectively and to pay a fine of
Rs.2,000/- under Section 363 and Rs. 3,000/- each under Section 376/511 and 377
IPC respectively.
The appeal preferred by the appellant herein was dismissed by the High
Court by reason of the impugned judgment. Hence, the appellant is before us.
The learned counsel appearing on behalf of the appellant would submit that
the appellant having not been put to test identification parade, which was
imperative having regard to the fact that the prosecutrix did not know him, the
impugned judgment cannot be sustained.
It was furthermore submitted that although the age of the appellant on the
date of the occurrence was more than sixteen years but below eighteen years,
having regard to the provision of the Juvenile Justice (Care and Protection of
Children) Act, 2000, (for short, ‘the 2000 Act), it was imperative on the part of the
court to follow the procedures laid down therein.
The fact that the appellant as also the prosecutrix are of the same town is not
in dispute. It is also not in dispute that the appellant was a mechanic of two-
wheelers. He was working in the ‘Noor Garage’. At about 2.00 p.m. on
16.12.1989, the appellant allured the prosecutrix stating that he would take her on
his Luna for a ride. She was tempted to go along with him. The medical report is
also not in dispute. The identification of the accused by the prosecutrix on the next
day also stands proved.
Having regard to the depositions of the prosecutrix and her parents, the
learned Sessions Judge as also the High Court cannot be held to have committed
any error in arriving at the finding as noticed hereinbefore. The High Court, in our
opinion, has rightly opined :
“Merely because there was no evidence of stains
over perineum or clothes and no semen was detected, it
cannot be concluded that sexual intercourse through
rectum had not taken place. Suggestion in this behalf has
been categorically denied by Dr. Sheela Kadam. So, the
medical evidence, in fact, supp