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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
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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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