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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO: 450 /2009
Vishnudas s/o Uddhao Bhagade
Aged about : 54 years
Occu: Service ( CTPS Chandrapur)
R/o CTPS Colony,
Qrtr.No. E-32/1, Urjanagar
Colony (Durgapur)
Police Station: Ramnagar
Tah. & Dist. Chandrapur. ... ... APPELLANT
v e r s u s
The State of Maharashtra
Through the PSO Ramnagar
Police Station Ramnagar
Tah.& Dist. Chandrapur. .. .. ...RESPONDENT
............................................................................................................................
Mr D B Walthare, Advocate for appellant
Mr K S Dhote, APP for Respondent
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CORAM: A.P.BHANGALE, J.
DATED: 12th March, 2010
ORAL JUDGMENT :
1 The instant Appeal stems from the judgment and order dated
19th August, 2009 passed in Sessions Case No. 121/2008 by learned
Sessions Judge, Chandrapur, whereby the appellant was convicted as
under :
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For offence under Rigorous Fine In default R.I.
section imprisonment (Rs)
376 IPC Seven years 3000/- Six months
342 IPC One year 1000/- Three months
201 IPC Three years 1000/- Three months
All sentences were directed to run concurrently.
2 Facts briefly mentioned are : Victim school girl "S" (PW 2)
who was born on 21.03.1993, was studying with Prabodhini ( daughter
of the appellant ). On 8.7.2008 at about 11.30 a.m., she went to
Prabodhini’s house. Her father (accused ) informed “S” that Prabodhini had
gone to attend the School. At that time it was raining and, therefore “S”
(victim) requested the accused to provide an umbrella to her. The accused
told “S” that umbrella was taken away by Prabodhini and asked “S” to sit
inside the house as it was raining. “S” went inside house and sat on the
sofa. The accused then offered one book to “S” and asked her to go
through the same and then asked her whether she wants water for drinking.
“S” refused. The accused went ahead ; closed the front door of the house by
bolting it from inside. There was nobody else in the house. The
accused came near “S”, gagged her mouth and made her to lie down on
cot, lifted his lungi by one hand, removed her inner-wear and inserted his
private part in her private part. While “S” tried to push the accused, she
could not. After some time she succeeded to push the accused. “S” found
sticky substance and blood oozing out from her private part. The accused
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asked “S” to wash her private part. Victim who was frightened to the hilt,
washed it in the bathroom. The accused threatened “S” not to disclose the
incident to anybody else she will be defamed. Victim who rushed outside,
tried to contact by phone to her father from a nearby STD booth but her
father was on duty and as such could not be contacted. Her School bag
was inside the house of the accused. Hence she stood outside the house as she
had no courage to enter in house . Later when mother of Prabodhini came,
she asked the victim to come inside as it was drizzling and then gave clothes
of Prabodhini to wear as clothes of the victim were wet due to incessant
rain. Prabodhini who returned from the school, asked “S” as to why she
did not attend the School. “S” told her that she was late and could not
attend and thereafter narrated the incident to Prabodhini who went inside the
house and brought school bag and wet clothes of “S” and also narrated the
incident to her mother. Mother of Prabodhini asked “S” not to disclose
the incident to anybody, and then Prabodhini and her mother accompanied
“S” to her house. As the accused had threatened “S”, she could not
disclose the incident to her mother. Later “S” disclosed it to her friends,
Neha and her mother and Vedashree. After “S” returned from the school
her mother inquired with her about the incident and she narrated it to her
mother. Her mother had gone to question the accused about it but he was
not at home. On the next day, mother of “S” along with few ladies again
went to the house of the accused. In the evening “S” along with her parents
proceeded to Police Station to lodge complaint. The Police had referred “S”
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to the General Hospital, Chandrapur for medical examination. Thereafter,
statement of “S” was recorded. The incident was reported by Smt.Smita
(PW 1), mother of the victim as FIR No. 245/2008 on 12.7.2008 at
Ramnagar Police Station in Chandrapur, who registered offences punishable
under section 342 and 376 of the IPC. API Shri M M Dhande (PW 8)
recorded complaint (FIR :Exh.32) and started investigation. He referred
the victim girl for medical examination to General Hospital, Chandrapur. He
arrested the accused on 12.7.2008 under arrest memo (Exh.14) and sent him
to General Hospital for medical examination. Shri Dhande API recorded
the statement of victim and visited the spot pointed out by the victim and
prepared spot panchnama (Exh.51). During the course of investigation,
he received articles i.e. vaginal swab, blood sample, pubic hair on 13.7.2008
which were seized under Panchnama (Exh.18) on 15.7.2008. He also
received sample of blood, pubic hair of the accused and seized under
Panchnama (Exh.21). The seized articles were sent to C.A. under
forwarding letter (Exh.22) on 1.8.2008. C.,A. reports were received (Exh.25
colly). The accused was charge-sheeted before the Chief Judicial Magistrate
Chandrapur on 10.10.2008 who committed the case to the Court of Sessions
on 4.11.2008.
3 Charge (Exh.5) for offence punishable under sections 376, 342,
201 IPC was read over and explained to the accused, to which he pleaded
not guilty and claimed to be tried.
4 The prosecution examined a total of eight witnesses and
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closed evidence. The defence admitted genuineness of documents listed at
Exh.9 and examined three witnesses who were Prabodhini (daughter of
accused), Smt Bangubai (mother in law of the accused ); and Rana
Hatesingh ( friend of the accused).
5 In his statement under section 313 of Cr.P.C. the evidence that
in 2008 the victim “S”, aged 15 years was studying in 10 th standard in
Vidya Niketan Vidyalaya, Urjanagar, Chandrapur in the same class of
Prabodhini (daughter of the accused ) is not in dispute.
6 Learned Sessions Judge, Chandrapur, upon recording evidence
and hearing the parties concluded that the accused committed heinous
offence punishable under sections 376, 342 read with with Section 201 IPC
and recorded sentences accordingly.
7 Learned Advocate for the appellant submitted that the finding of
conviction is unreasonable and not justified as according to him, the incident
was not proved by reliable and independent evidence. He also submitted
that the evidence of the victim girl was not trustworthy for to base conviction
upon it. Learned Advocate contended that the evidence of victim suffered
from vice of improvements and her evidence without independent
corroborating evidence ought not to have been accepted by the learned trial
Judge. He further submitted that the incident as alleged occurred on
8.7.2008, but it was reported on 12.7.2008 ; hence delay in reporting the
incident was not explained. It is also contended that the provisions of
Section 164-A Cr.P.C. were not complied before the medical examination of
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victim girl as her consent was not obtained in writing. According to
learned Advocate, the accused was entitled to claim benefit of doubt for
contradictions in evidence, improvements over oral report, and lack of
observance of laid down procedure u/s 164- A of the Cr.P.C. Learned
Advocate submitted that victim stated that after the incident of rape, she
tried to contact her father from STD booth but owner of STD booth was
not examined to corroborate the testimony of “S” in this regard and,
therefore, prosecution did suppress best evidence that could have been
led. Learned Advocate made reference to plethora of rulings in support of
his submissions to argue that the testimony of “S” required independent
corroboration and the trial Court erred in appreciating the evidence of
witnesses. He, therefore, urged to set aside the conviction and to acquit the
accused.
8 Learned APP, on the other hand, supported the impugned
judgment and order contending that the trial Court had considered the
entire evidence including defence evidence in details to conclude that the
appellant was guilty of charges framed against him. The rulings relied
upon by the parties were also perused and referred to in the light of penal
provisions and the legal position. According to him, no case is made out to
disturb the findings of guilt.
9 I have heard submissions at the Bar and also perused written
submissions placed on record as also the number of rulings cited by the
parties.
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10 The prosecution has relied upon evidence of “S” prosecutrix
(PW 2) to prove the incident of rape and to corroborate her evidence
examined Smt. Smita (PW 1) who is mother of prosecutrix, Ujjawala (PW
3) who friend of Smt.Smita, Vedashree (PW 6) and Neha (PW 7) who are
friends of victim to when victim had narrated the incident of rape. The
prosecution also proved Kumari “S”‘s date of birth as 29.3.1993 by
examining Municipal Clerk (PW 4) to positively establish that victim was
below 16 years of age on the date of incident. Investigating Officer Shri
Madhav (PW 8) was examined to establish the investigation done in the
case. The accused chose to lead defence evidence and examined three
witnesses who are daughter, mother -in-law and a friend of the accused. In
his statement u/s 313 of the Cr.P.C., the accused did not dispute that victim
was aged about 15 years studying in 10th standard in Vidyaniketan Vidyalaya
in Urja Nagar, Chandrapur along with his daughter Prabodhini and the fact
that he resided in Urja Nagar. The accused defended the prosecution case
on the ground that he is falsely implicated because he had opposed mother
of victim (PW 1) while she contested in Gram Panchayat elections. The
suggestions in this regard were denied by PW 1 stating that Gram
Panchayat elections were held after the complaint was filed. The accused
also sought to prove that there was alleged incident of riot when victim’s
mother with her friends (PW 3) etc. visited house of the accused and
questioned him about incident and allegedly assaulted him for which he
lodged complaint with police. The entire evidence and defence contentions
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which were raised in this appeal, if considered in totality, one cannot find
that any benefit can be extended to the accused. It is true that there was four
days delay to report the incident to the Police Station but it was not fatal in
the facts and circumstances of the case. The victim girl was threatened by the
accused not to disclose the incident to anybody . She had naturally disclosed
it to her girl friends and mother of her girl friend. Immediately after the
incident, she tried her level best to contact her father from nearby STD
booth but could not . The mother of victim came to know of the incident
from Ujjawala (PW 3) who is mother of victim’s girl friend and then inquired
with the victim. She had also decided to question about the incident to the
accused who offered his apology for the incident. In these circumstances
there was no unreasonable delay to report the incident.
11 The trial Court could not be blamed for relying upon genuineness
of the documentary evidence tendered by the prosecution which was
admitted by the defence in view of Section 294 of the Cr.P.Code, as any
such document may be read in evidence in trial without insisting upon
evidence of signatory.
12 When a girl below 16 years of age is sexually ravished
corroboration to her evidence about the rape is not always essential,
although under certain circumstances when victim’s evidence is not safely
reliable, prudence may demand necessity of corroboration to her
testimony. Normally in Indian society, a girl would not venture to make
such serious accusations which may defame the unmarried girl and ruin her
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prospects of finding suitable groom in life. In non-permissive Indian
society, an unmarried girl would be most reluctant to level such accusations
that too against father of her school-mate. Every unmarried girl has
chastity dear to her heart and would not normally disclose such incident
which can lead to her defamation or ostracization by the society. Therefore,
like an injured witness in the criminal trial, her testimony is entitled to a
great weight. Credibility of the prosecutrix in the present case remained
unshaken. There was sufficient corroboration to her testimony on the
record. The evidence of the victim girl was corroborated by her mother,
friends, and mother of her friend. Their evidence read together appears
credible and trustworthy. Medical witness was not examined in this case as
the defence did not dispute genuineness of medico -legal certificates tendered
by the prosecution. Therefore, much in defence can not be said about the
procedure stated under section 164-A Cr.P.C. as the Doctor was neither
summoned nor examined by the defence, although defence chose to lead
evidence in this case, one cannot accept the defence that the appellant was
falsely implicated. Learned Advocate for appellant also tried to submit that
the trial Court did not record statement of the accused but a Clerk of the
Court recorded it. This submission appears bald and result of an
afterthought and must be rejected as baseless and groundless. The defence
evidence was led and there is nothing to believe that the accused would
sign each page when Court did not question him in statement under section
313 of Cr.P.C.
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13 Learned counsel for appellant placed reliance on Jogi Dan and
others vs. State of Rajasthan (2004 Cri.L.J. 1726) , in order to lay stress
on legal aspect with respect to appreciation of evidence of the prosecutrix. He
further relied on Kiran Yadav vs. State of Bihar (2004 Cri.L.J. 1711)
which is the case of delay in lodging the FIR. He pressed into service
Vimal Suresh Kamble vs. Chaluverapinake Apal and another (2003
Cri.L.J./ 910), in order to contend that in view of unreliable ,
uncorroborated testimony of prosecutrix and her highly unnatural conduct,
no conviction can be based.
14 The rulings cited by the learned Advocate for defense are not
attracted to the facts and circumstances of the present case to rescue the
appellant from the clutches of law. He had taken disadvantage of situation
and in wrongful confinement, committed rape upon minor girl below 16
years of age, who was the same age as of his school going unmarried
daughter studying in the same class. He also tried to ensure that evidence
may disappear by asking the victim to wash her private part. The trial Court
did consider the entire evidence to reach a right conclusion. The gravity of
the offences do not warrant any sympathy or generosity to award lesser
sentence. The Appeal is without merit and deserves to be dismissed. In the
result, the Appeal is dismissed.
JUDGE
sahare
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