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REPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.143 OF 2007.
Asaram S/o Rangnath Jadhav,
Age 38 years, Occ.Labour,
R/o Kesapuri Camp,
Tq.Majalgaon, Dist. Beed. ... Appellant.
Versus
The State of Maharashtra ... Respondent.
...
Mr.B.N.Palve, advocate for the appellant.
Mrs.R.D. Reddy, A.P.P. for the State.
...
CORAM : V.R.KINGAONKAR,J.
Date : 28.07.2009.
ORAL JUDGMENT
1. Challenge in this appeal is to judgment
rendered by learned Additional Sessions Judge,
Majalgaon, in Sessions Case No.34/2006, whereby
the appellant has been convicted for offences
punishable U/ss 376, 377, 342, 323 and 506 of the
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I.P.C. and has been sentenced to undergo rigorous
imprisonment for ten (10) years and to pay fine
of Rs.1,000/- (Rupees one thousand), in default
to undergo rigorous imprisonment for three (3)
months on first count, rigorous imprisonment for
seven (7) years and to pay fine of Rs.1,000/-
(Rupees one thousand), in default to undergo
rigorous imprisonment for three (3) months on 2nd
count, to undergo rigorous imprisonment for six
(6) months on 3rd count, to undergo imprisonment
for three (3) months on 4th count and to undergo
rigorous imprisonment for six (6) months on the
5th count. The substantive sentences were
directed to run concurrently.
2. The hapless victim is a minor girl. Her
father is an agricultural labour. Her father was
engaged by one Bapurao Gawali to work as a labour
in his agricultural field bearing Gat No.11
situated at Kesapuri. The village Kesapuri is
situated at a distance of about 4/5 Km. away from
township of Majalgaon but is practically part of
the township due to development of the town
towards that side. The father of the victim,
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namely, P.W.6 Sk.Mahboob use to reside in a small
three rooms farm house alongwith other two
servants of his Master. There were two other
servants, namely, P.W.4 Laxman and deceased
Rangnath. The victim had left Schooling in the
midst while she was in 6th standard and had
started residing with her father since few days
prior to the relevant night.
3.
The prosecution case, stated briefly,
is that in the night of June 16, 2006, the victim
(P.W.1 Mumtaj), her father (P.W. 6 Sk.Maheboob)
and other two servants were preparing to go to
bed in the farm house. At about 10-30 p.m.
three persons came to the agricultural field on a
motor-cycle. Those three persons had brought a
piglet with them. They demanded some dry raw
cotton plants. P.W.4 Laxman indicated place
where some stack of dry cotton plants was kept.
Those three persons, including the appellant,
took away some dry cotton plants. They set fire
to a bunch of the dry plants at a place situated
approximately about 150 ft. away from the farm
house. They roasted the piglet on the fire.
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They barbecued the piglet. After a little while,
two of them left the agricultural field on the
motor-cycle, whereas the appellant remained
behind.
4. The appellant went towards the farm
house at about odd hours after the mid-night. He
enquired with father of the victim as to why the
room was locked. He compelled her father to open
the lock put on the door of the room. He
threatened her father and assaulted him by means
of a knife while doing so. He thereafter,
wriggled out the victim from the room and locked
the room. Thus, father of the victim and the
other two agricultural servants were confined in
the room. The appellant dragged the victim
towards a place near Bandh. He asked her to
remove her clothes and lie down on a mattress
which was laid. She refused to do so. He
forcibly removed her garments, placed himself
over her body and forcibly took bites of her lips
and cheek. He ravished her. She started
screaming. He thereafter sodomised her. The
child whimpered He did not leave her even after
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the carnal intercourse in both the ways. He took
her near him and pressed her under his person.
However, after some time he became drowsy and
fell fast asleep. The victim (P.W.1 Mumtaj)
gradually escaped from clutches of the appellant
and rushed towards the room. She asked her
father from outside the room as to where shall
she go. He told her to go to house of a relative
by name Mainuddin, who use to reside in nearby
locality. She took shelter in the house of said
Mainuddin during remaining part of the dark
night. In the next morning, lock of the room was
broken. She narrated the incident to her father.
Her father and his Master took her to the Police
Station where her complaint was reduced into
writing vide FIR (Exh.14). She was subjected to
medical examination. The appellant was arrested.
The Police prepared spot panchanama and recovered
the mattress alongwith a moulded plastic bucket
from that place. The Police also recovered a
knife and under-garment of the appellant at his
instance. The appellant was charge-sheeted after
collecting the necessary material during course
of the investigation.
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5. The appellant pleaded not guilty to the
charge. His defence was of simple denial. He
stated that father of the victim had picked up a
quarrel with his wife on account of grazing of
goats near the agricultural field and, therefore,
he had called for explanation of her father –
(P.W. Sk.Maheboob) about misbehaviour with his
wife. The appellant further stated that he told
father of the victim that in order to teach a
lesson to him, he would lodge a report at the
Police Station about commission of rape on his
wife. It is due to such reason that father of the
victim assaulted him, and lodged a false report
about sexual assault on the victim. Hence, he
sought acquittal from the charge.
6. At the trial, the prosecution examined
in all eight (8) witnesses in support of its
case. The learned Sessions Judge came to the
conclusion that the prosecution case is duly
proved. The learned Sessions Judge believed
version of the victim (P.W. Mumtaj). He noticed
that the victim was minor at the material time
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and was sexually abused by the appellant. It
being a case of child abuse as such, the learned
Sessions Judge held that the appellant did not
deserve any sympathy. In keeping with such
findings, the appellant came to be convicted and
sentenced as described hereinbefore.
7. Mr.Palve, would submit that the entire
story of the prosecution is improbable for the
reason that there were three agricultural
servants in the farm house alongwith the teenager
victim and the appellant was alone. He would
submit that it is unbelievable that
singlehandedly, the appellant managed to confine
the three agricultural servants in the room and
thereafter committed the act of sexual assault on
the victim. He pointed out that two other persons
who had accompanied the appellant upto
agricultural land were not examined and,
therefore, it is contended that genesis of the
incident is not properly proved. Mr.Palve, would
point out further that hymen of victim was found
intact. He would submit that if the victim would
have been subjected to sexual intercourse then
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private part of the appellant would have received
injuries and that the hymen of the victim could
not have remained intact. He urged to dislodge
the testimony of the victim on the ground that
she is a minor witness and was likely to be
tutored by her father. Per contra, learned
A.P.P. Smt.Reddy, supports the impugned judgment.
8. ig The fact that the victim was aged about
14 years is not seriously disputed during the
course of the trial nor such a dispute is raised
before me. The version of P.W.5 Shri Kale, Head
Master of Madhyamik Vidhyalaya, reveals that
birth date of the victim is June 5, 1992 as per
the School record. The School’s record can not
be dislodged without any substantial reason.
There is no iota of evidence to hold that the
entries in the School record were improperly
taken. The medical evidence tendered by P.W.8
Dr. Yende, also shows that age of the prosecutrix
was approximately in the range of 10/15 years.
The ossification test indicated her age between
12/14 years. His version shows that she was below
14 years of age at the relevant time. She gave
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her age as 14 years. Her father also
corroborated this fact. It can be gathered,
without difficulty, that the victim was aged
around 14 years at the relevant time.
9. What emerges from the versions of the
victim (P.W.Mumtaj), P.W. Laxman and P.W.
Sk.Maheboob is that the appellant and his two
friends ig or relatives visited the agricultural
field Gat No.11 in the relevant night at about
10-30 p.m. Their versions categorically show
that the appellant and the other two persons
roasted the piglet at a place situated around 150
ft. away from the farm house. They ate the
piglet and lateron other two persons left the
field, whereas the appellant alone remained
there. Considered together, these three versions
unmistakably show that at about 1-00 a.m., after
midnight, the appellant went towards the farm
house and asked P.W. Sk.Maheboob as to why lock
was put on the room. He asked P.W. Sk.Maheboob
to open the lock. The victim was sleeping inside
the room, whereas her father was sleeping outside
that room. The appellant threatened to kill her
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father by means of a knife. He gave blows of
knife on hands and back of P.W. Sk.Maheboob.
Under spell of fear, P.W. Sk.Maheboob opened the
lock. Thereafter, the appellant confined her
father (Sk.Maheboob), P.W. Laxman and deceased
Rangnath in that room. The appellant chained the
room from outside and locked the same after he
dragged the victim out of the room. The
consistent versions of P.W. Sk.Maheboob and P.W.
Laxman go to establish the fact that the
appellant confined them in the room under
threats. It has been proved that the appellant
assaulted P.W. Sk.Maheboob by means of knife when
resistance was offered. It is under such
circumstances that singlehandedly the appellant
could force P.W.Sk.Maheboob, P.W.Laxman and
deceased Rangnath in the confinement at point of
knife. True, he was alone, whereas they were
three. However, he was armed with knife. He had
exhibited his brutal mentality by knifing P.W.
Sk.Maheboob. The three agricultural servants
became helpless due to the serious threats given
by the appellant and more so because they noticed
that he dared to actually use the knife against
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them. In this view of the matter, I find it
difficult to countenance the submission of
Mr.Palve about improbability of the genesis of
the incident.
10. There is no reason coming forth as to
why P.W.Laxman, who is an independent witness,
should speak against the appellant. His version
corroborates
ig a part of the prosecution story
regarding confinement of P.W. Sk.Maheboob himself
and deceased Rangnath in the room. His version
also corroborates further part of the prosecution
story regarding forcible removal of the victim by
the appellant towards secluded place near the
Bandh in the agricultural field. There is no
scintilla of evidence to show that P.W.Laxman and
P.W. Sk.Maheboob had any animosity with the
appellant. Nothing of much significance could be
gathered from their cross-examinations.
11. The victim (P.W.Mumtaj) narrated the
manner in which she was sexually abused by the
appellant. Her version purports to show that he
tore out her clothes. Made her to lie down on
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the mattress at point of knife and committed
sexual intercourse with her. Her version further
reveals that even after the vaginal intercourse,
the appellant sodomised her by committing anal
intercourse. He acted like a brute animal while
committing the sexual assault. He took bites of
her cheeks, lips and physically assaulted her.
The evidence on record clearly shows that there
was total exit of reason and the appellant’s mind
was working like that of a brute animal. The
horrendous act of sexual assault is rather a
pathetic story narrated by the victim. She was
subjected to life time harrowing experience which
would shudder her at any time as and when she
would recollect the incident throughout her
life.
12. The medical evidence tendered by P.W.7
Dr.Wagh lends corroboration to the eye witness
account tendered by the victim (P.W.Mumtaj) as
well as her father (Sk.Maheboob). His version
purports to show that on 17.6.2006, he examined
the victim at about 12-30 p.m. He noticed
multiple injuries including abrasions on anal
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region, redness around vaginal orifice, abrasions
around right breast, right upper lip, right
cheek, vertebral column in lower part, vertebral
column on right side in upper 1/3rd, on tip of
the tongue and below the tongue on lower jaw
inside the mouth. These were fresh injuries. The
injuries revealed that the victim was sexually
assaulted in brutal manner. The version of
P.W.Dr. Wagh,
ig who was attached to the Rural
Hospital, Majalgaon, at the relevant time, lends
corroboration to the medical certificate (Exh.
43). His version also indicates that though the
hymen was not ruptured, yet, he noticed a tear on
the hymen. He corroborates the findings in the
medical certificate (Exh.44) in this behalf. His
version also shows that clinical examination of
P.W. Sk.Maheboob revealed presence of three
injuries as stated below :
“1. Contused lacerated wound on his
right leg, below knee joint,
anteriorly placed, having size 1×1/2
cms. x 1/2 cm.
2. Abrasion on left upper lip on inner
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3. Abrasion on right side of back, in
middle 1/3rd near vertebral column,
having size 2 cms. x 1/2 cm.”
He issued injury certificate (Exh.45)
accordingly and opined that the injury No.1 could
be result of assault by knife. The second injury
could have been caused due to blunt object like
handle of the knife.
13. It has come in the evidence of the
victim that she had put up resistance while the
appellant was committing the act of sexual
intercourse. The version of P.W.Dr.Wagh, reveals
that medical examination of the appellant
indicated presence of a contusion on his right
ring finger and abrasion. Thus, there is medical
corroboration available to show that the victim
physically offered resistance and, therefore, the
appellant received minor injuries on his person.
Mere fact that the hymen was not found ruptured
by itself will not be sufficient to infer absence
of sexual intercourse by the appellant with the
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victim. It is well settled that even a small
penetration of the male organ in the vagina of
the victim would amount to the sexual intercourse
within the meaning of Section 375 of the I.P.C.
The Medical Officer explained as to how he
located tear in the hymen. He states that after
separating the vulva, he would be able to see the
hymen’s tear. Needless to say, the version of
the victim is duly corroborated by the medical
evidence.
14. The version of P.W.8 Dr.Yende, goes to
prove the fact that the victim was having eight
(8) injuries including bruises on her tongue,
anus etc. He noticed presence of evidence to
indicate the child abuse. His version reveals
that the victim (P.W. Mumtaj) was aged between
10/15 years. He issued certificate (Exh.52)
accordingly. He admits that there is distinction
between the term “abrasion” and the term
“bruise”. His evidence has remained unimpeached
in so far as his opinion regarding the child
abuse is concerned.
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15. The Apex Court in “State of U.P. Vs.
Munshi” (AIR 2009 Supreme Court 370), held that
evidence of the prosecutrix can be basis for
conviction even without corroboration. It is
held that the prosecutrix is not an accomplice
and she stands on higher footing than injured
witness. In “Rajendra Datta Zarekar Vs. State of
Goa” 2007 AIR SCW 7588, the Apex Court held that
false implication of accused in case of charge
for offence of rape is normally improbable. It is
further held that no one would concoct a story of
rape just to falsely implicate a person. It was
argued before the Apex Court that charge for
offence of rape was not made out because the
hymen of victim Sonia was intact. The Apex Court
rejected such argument. It is observed :
“14. Learned counsel for the
appellant has next submitted that the
doctor had found that the hymen of
Sonia was intact and, therefore, the
charge for rape under S.376, I.P.C. as
defined in S. 375, I.P.C. has not been
made out. An identical question was
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considered by a Bench of this Court in
Santosh Kumar Vs. State of M.P.
2006(8)JT SC 171, and para 10 of the
report is reproduced below :
“10. The question, which arises
for consideration, is whether the
proved facts establish the offence of
rape.
ig It is not necessary for us to
refer to various authorities as the
said question has been examined in
considerable detail in Madan Gopal
Kakkad Vs. Naval Dubey, 1992(3) JT (SC)
270 and paras 37 to 39 of the said
judgment are being reproduced below :
“37. We feel that it would be
quite appropriate, in this context, to
reproduce the opinion expressed by Modi
in Medical Jurisprudence and Toxicology
(Twenty First Edition) at page 369
which reads thus :
“Thus to constitute the offence of
rape it is not necessary that there
should be complete penetration of penis
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with emission of semen and rupture of
hymen. Partial penetration of the
penis within the labia majora or the
vulva or pudenda with or without
emission of semen or even an attempt at
penetration is quite sufficient for the
purpose of the law. It is therefore
quite possible to commit legally the
offence of rape without producing any
injury to the genitals or leaving any
seminal stains. In such a case the
medical officer should mention the
negative facts in his report, but
should not give his opinion that no
rape had been committed. Rape is crime
and not a medical condition. Rape is a
legal term and not a diagnosis to be
made by the medical officer treating
the victim. The only statement that
can be made by the medical officer is
that there is evidence of recent sexual
activity. Whether the rape has
occurred or not is a legal conclusion,
not a medical one.”
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38. In Parikh's Textbook of
Medical Jurisprudence and Toxicology,
the following passage is found :
"Sexual intercourse. - In law,
this term is held to mean the slightest
degree of penetration of the vulva by
the penis with or without emission of
semen. It is therefore quite possible
to commit legally the offence of rape
without producing any injury to the
genitals or leaving any seminal
stains.”
39. In Encyclopedia of Crime and
Justice (Vol.4) at page 1356, it is
stated :
“….. even slight penetration is
sufficient and emission is
unnecessary”. Therefore, the absence of
injuries on the private parts of a
victim specially a married lady cannot,
ipso facto, lead to an inference that
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no rape has been committed.”
Here the victim was a very young
girl of six years of age and it is
quite likely that full penetration did
not take place as the accused is a
grown up person of over 20 years of
age. The injuries clearly indicate
that rape, as defined in S. 275, I.P.C.
did take place.”
16. Having carefully gone through the
entire evidence of the prosecution and close
scrutiny of the circumstances, I have no
hesitation in holding that the appellant
committed heinous act of sexual intercourse by
use of force and also that of unnatural carnal
intercourse with the minor child. The learned
Sessions Judge, has rightly convicted and
sentenced him for the said offences. There is
nothing redeeming about the appellant. The child
victim was subjected to horrendous crime due to
lascivious acts of the appellant. His acts are
indicative of depraved mind and sexual
perversity. Indeed, I feel that the sentence
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awarded to him is on lower side. In such a case,
one feels that the embargo put on the powers of
the Court as per proviso appended to Section 31
of the I.P.C. is required to be uplifted in
suitable cases.
17. For the aforestated reasons, I am of
the opinion that there is no substance in the
appeal. Hence, the appeal is dismissed.
ig The
impugned judgment of conviction and sentence
rendered in Sessions Case No.34/2006 by the
learned Additional Sessions Judge, Majalgaon, is
confirmed.
(V.R.KINGAONKAR,J.)
asp/office/Crappeal14307
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