Bombay High Court High Court

Edlya @ Eda Pyarsingh Waskale vs Unknown on 17 September, 2010

Bombay High Court
Edlya @ Eda Pyarsingh Waskale vs Unknown on 17 September, 2010
Bench: A.P. Bhangale
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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                                   
                                     BENCH AT NAGPUR, NAGPUR.




                                                                                     
                                   CRIMINAL APPEAL NO:    453   /2009




                                                                                    
    Edlya @ Eda  Pyarsingh Waskale
    Aged  25 years,  R/o  Bhingara 
    Tq.Jalgaon-Jamod Dist. Buldana.                         ...                                  ...APPELLANT




                                                                    
                                         v e r s u s
                                         
    The State of Maharashtra
                                        
    Through   Police Station Officer
    Police Station Jalgaon-Jamod.                                                                ...RESPONDENT
       


    ............................................................................................................................
                        Mr   R M  Patwardhan,  Advocate for appellant
    



                        Mrs.A.R. Taiwade, Addl. Public Prosecutor   for Respondent
    ------------------------------------------------------------------------------------------------------------

                                                            CORAM:   A.P.BHANGALE,   J.





                                                            DATED:    17th  September,2010


     JUDGMENT :   

1. This appeal is directed against the judgment and order dated 7th

February, 2009 passed by learned Ad-hoc Additional Sessions Judge

Khamgaon in Sessions Trial No.4 of 2008 whereby the appellant was

found guilty of offences of kidnapping and raping a minor girl Pinky

aged about 13 years.

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2. It is the case of the prosecution that the victim Pinky on or about

9.10.2007 at 5.00 p.m. had gone to Ghat Bhingara for grinding jwar in a

flour mill, which was closed and, as such, Pinky halted at the house of

her cousin, by name, Radkya Bhilala on that night. On the following

morning, she got the jwar grinded from flour mill and was returning

with her niece Ku. Sangeeta, aged about 5 years, by road. The

appellant/ accused Edlya met her on the road near Bhendi Pahad and

asked her to accompany with him saying that he wants to marry her.

Despite steadfast spurning of the offer by the prosecutrix, he forcibly

took her to his brother’s house who also sided with the accused. Later the

accused took her to the field of one Ramesh Dharme in Sungaon

Shiwar and then to a hut and raped her. The victim had somehow

succeeded in escape and narrated the incident to her father who lodged

report at Jalgaon-Jamod Police Station on 13.10.2007, being FIR No.

114/2007 registered under sections 363, 366 and 376 of the Indian Penal

Code. The accused was arrested on 14.10.2007. The Investigating Officer

proceeded to the spot of incident pointed out by father of the victim girl

and drew Panchnama (Exh.16). During the course of investigation,

clothes of victim as also clothes of accused were seized under Panchnamas.

The seized articles were sent for chemical analysis. Upon completion of

investigation, charge-sheet was laid in the Court of Judicial Magistrate, First

Class, Jalgaon-Jamod who, committed the case to the Additional Court of

Sessions in Khamgaon, for trial.

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3. Charge was framed on 12.8.2008 (Exh.9). The accused

pleaded not guilty and claimed trial. As many as eight witnesses were

examined in support of the prosecution. The defence of the accused was

that of total denial.

4. In support of Appeal, Mr R M Patwardhan, learned Advocate for

appellant, submitted that the trial Court ought to have given benefit of doubt

to the appellant as there may be possibility of false involvement of the

appellant. He made a reference to the evidence of PW 1 -Gulabsingh who

had deposed about an village meeting of Panchas in which father of Pinky

(prosecutrix) demanded Rs.30,000/- from appellant, which was denied by

the appellant. Tatusingh (PW 2), father of prosecutrix, has flatly denied any

quarrel between him and Pyarsingh (father of Idlya). There was no

suggestion in cross-examination about any village meeting as aforesaid.

Prosecutrix Pinky was examined as PW 3 who deposed about the incident.

She stated that while she was returning with jwar flour, near Bhendi Pahad

area, the accused Idlya caught hold of her and insisted upon her to come

with him. On stubborn refusal, she was assaulted by iron chain and was

forced to accompany with the appellant. She was taken to Sungaon-

Shiwar in the field of one Ramesh Dharme and inside the hut of that

field, accused had subjected the prosecutrix to forcible sexual intercourse

thrice during that night. On the following day, the prosecutrix was taken to

the house of Dhansingh. When Idlya went out to bring meal, the

prosecutrix ran away and went back to her parents’ house and narrated the

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incident to them. Thereafter, they decided to lodge report (Exh.19) to the

Police. Prosecutrix was referred for medical examination. Dr Prashant

Sonone, Medical Officer in General Hospital, Khamgaon (PW 4), examined

prosecutrix -Pinky and found the following injuries on her persons :

“(1) Two wounds well epithelialised, black in
colour are seen over medial aspect of right foot of size 0.5

x 0.5 cm. Caused by blunt and rough object.

2) Hymen ruptured -laceration red coloured on

right side of size 0.5 cm vertical jut outside hymen is
seen.

                  3)            Per   vaginal   exam:     admits   just   one   finger, 
                  Patient not cooperating for P/V exam.
                  Perineum intact."
      
   



The observations in respect of injuries of rupture of hymen, laceration just

outside hymen, vagina admitting one finger and opinion expressed about

possibility of penetration do corroborate the prosecutrix’s evidence. Dr.

Sahebrao Manwar (PW 7) who conducted radiological examination

(Exh.36) to determine age of the prosecutrix opined that she was aged

between 14 to 15 years. C.A. Report (Exh.14) corroborated the evidence

of prosecutrix. As few bloodstains were detected on skirt ranging from 0.5

cm. to 3 cm. in diameter spread at places; so also two semen stains

detected each about 2 c.m. in diameter, on front middle portion of knicker.

5. Learned Advocate for appellant made reference to the State of

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U.P. vs. Jaggo @ Jagdish and others : 1971 Cri.L.J. 1173 (SC), to

argue that all witnesses of the prosecution need not be called but witnesses

whose evidence is essential to the unfolding of the narrative must be

called. Absence of material witnesses does seriously affect the truth of the

prosecution case. It cannot be disputed that evidence of all available eye

witnesses to the incident is must to determine guilt or innocence of the

accused. Therefore, eye witnesses whose evidence is essential to the

unfolding of narrative on which the prosecution case is based are required to

be examined because absence of an eye witness may affect the fair trial.

Nothing really prevented the accused from insisting upon applying for

production of any witness ( not examined by the prosecution ) to be cross-

examined. No such case was made out to produce any witness for the

purpose of cross-examination. In a rape trial the trial Court as a general

rule, cannot refuse to act upon testimony of victim once it is found that it

is reliable and has a ring of truth. The evidence of prosecutrix in a trial

for offence of rape and kidnapping is like an injured witness deposing

about physical assault upon him or her. Injury to a rape victim is physical,

mental as well as irreparable scar on her reputation as it gets spoiled and

honour is lost in the eyes of members of the society to which she belongs.

6. Learned Advocate for the appellant has submitted that stains of

semen were found on the knicker of the appellant and not on the knicker

of prosecutrix. The trial Court ought to have observed that semen stain

on the underwear of young man is natural. This submission could have been

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appreciated in the absence of evidence of forcible sexual intercourse as

deposed to by the prosecutrix girl to which medical evidence also

corroborated, which leads to an inevitable conclusion that the appellant had

subjected the prosecutrix minor girl, aged about 14 years old to forcible

sexual intercourse after having kidnapped her from her lawful guardianship.

Learned Trial Judge had ample evidence before him to reach the findings of

conviction, in the facts and circumstances of the case..

7. Learned Advocate for the appellant, in the alternative, submitted

that the appellant may be released by taking a lenient view to treat the

sentence as already undergone as sufficient. I cannot agree with the

submission as the Courts are required to show great sensitivity to serious

crime committed of raping a minor girl.

8. I have perused the ruling in State of H P vs. Mange Ram :

2000 Cri.L.J. 4027 (SC) In the said ruling acquittal was set aside

considering that in presence of village people the parties must have buried the

hatchet since acquittal by the courts below, the sentence was reduced in the

interest of justice by the Court to that as already undergone.

9. In the case in hand, a minor girl below 16 years of age, was

physically and sexually ravished. The trial Court had accepted her evidence

which is found reliable. Conviction in such a case can be recorded even

upon sole uncorroborated testimony if testimony is blemishless or worthy

of credence. The other evidence led by the prosecution had provided

necessary corroboration even if it is felt that it was required. The trial

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Court had taken lenient view considering that the appellant hails from a

rural background, impoverished family and that other family members were

dependent on him as also his youth, while directing that all the sentences

were to run concurrently.

10. For the foregoing reasons, therefore, no ground is made out to

reduce the sentence awarded by the trial Court. The appeal, therefore, fails

and is dismissed.

11. Copy of this judgment and order be served upon the appellant-

convict through Superintendent of Jail, concerned.

JUDGE

sahare

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