In The High Court Of Judicature At … vs Unknown on 16 October, 2009

Bombay High Court
In The High Court Of Judicature At … vs Unknown on 16 October, 2009
Bench: A.P. Bhangale
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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                      NAGPUR BENCH : NAGPUR




                                                                        
                                                
     Criminal Appeal No.470 of 2008




                                               
     Appellant        :   Shiva alias Shivnarayan Bhondaprasad

                          Keskar @ Warma, presently in Jail.

                          versus




                                  
     Respondent       :

ig The State of Maharashtra

Mr S.M. Bhangde, Advocate for appellant.

                   
     Ms Rachana Wasnik, APP for State
      


                                   Coram   :    A.P. Bhangale, J
   



                                   Dated   :    16th      Oct 2009

     Judgment.





1. By this appeal, the appellant has challenged

judgment and order passed by learned Ad-hoc Additional

Sessions Judge, Chandrapur on 15.1.2008 whereby the

appellant was found guilty and upon conviction, has been

sentenced to suffer rigorous imprisonment for seven years

for an offence under Section 376 of the Indian Penal

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Code. He was further sentenced to suffer rigorous

imprisonment for one year for an offence punishable under

Section 506 of the Indian Penal Code and rigorous

imprisonment for two months for the offence punishable

under Section 352 of the Indian Penal Code. All the

sentences were directed to run concurrently.

2. Prosecution case, briefly stated, is as under:

Prosecutrix Girija, 14 years old girl, resided

at Ghuggus Faiel, Ballarsha at her uncle’s house

(appellant). On 16.5.2007 at about 13.30 hours in the

afternoon, her uncle (appellant) lifted her up, took her

in the room in the house. When the prosecutrix tried to

raise shouts, he tied dupatta around her mouth, made her

lie down on cot and inserted his penis in her private

part (vagina). Thus, according to prosecutrix, her uncle

had raped her, eight days earlier also, taking advantage

of the fact that her parents were no more living,

threatening her that if she disclosed the fact to

anybody, then he would kill her. Due to fear, the earlier

incident was not disclosed, but later, when the appellant

committed rape again, the prosecutrix disclosed the

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incident to police. Offence was registered as Crime No.

134/2007 at Police Station, Ballarsha under Section 376

of the Indian Penal Code.

3. After completion of investigation, the

appellant was charge-sheeted before the Judicial

Magistrate, First Class, Rajura who committed the case to

the Court of Sessions. The charge was framed (exhibit

10) to which appellant pleaded not guilty and claimed to

be tried.

4. The prosecution examined eleven witnesses.

Prosecutrix was examined as P.W. 5. Her paternal aunt

Tijiyabai was examined as P.W. 1. Prosecutrix was taken

to Rural Hospital, Ballarsha for medical examination. FIR

was recorded by P.W. 4 Head Constable Tejram. Dr Subhash

(PW 8) medically examined the prosecutrix upon

requisition. Dr Barapatre (PW 11) had issued

ossification test report.

5. Appellant denied the case pleading innocence

and claiming that he was falsely implicated.

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6. Considering the evidence on record, the trial

Court ordered conviction, as aforesaid.

7. In support of the appeal, learned Advocate for

the appellant submitted that the trial Court erred to

believe in the evidence led by the prosecution. Age of

the prosecutrix was not proved beyond all reasonable

doubt and the accused, none other than paternal uncle of

the prosecutrix, was falsely implicated. It is further

submitted that conduct of the prosecutrix was suspicious

to lodge complaint and she did not like parental control

of the accused who was her paternal uncle. Learned

counsel for appellant submitted that the trial Court had

failed to notice the inherent weakness of the prosecution

case that the accused was paternal uncle of the

prosecutrix and could not have committed rape upon her;

nor he would have allowed any other person to commit rape

upon her. It is further submitted that there was no

sufficient corroboration to believe the prosecutrix and

therefore, the trial Court ought to have acquitted the

appellant as there was no legal proof except suspicion

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against appellant. Learned Advocate contended that

suspicion, howsoever strong may be, cannot take the place

of legal proof. In support of his submission, learned

counsel for appellant made reference to the following

rulings :-

(i). Krishna Soma Raut v. State of Maharashtra

reported in 2008 All MR (Cri) 656 (Bombay HC).

(ii). Suresh Govinda Nagdeve v. State of Masharashtra

reported in 2008 (1) Bom CR (Cri) 847.

(iii). State of Maharashtra v. Subhash Haribhau

reported in 2008 (1) Bom CR (Cri) 388.

8. Learned Advocate for the appellant submitted

that when two views may be possible from the evidence on

record, the view which is favourable to the accused is

preferred. Therefore, the accused ought to have been

acquitted. Further, according to learned Advocate for

the appellant, the trial Court ought to have considered

that there was no legal and unimpeachable evidence of

forcible rape upon prosecutrix.

9. Learned Additional Public Prosecutor, on the

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other hand, submitted that evidence of prosecutrix was

trustworthy and reliable. The prosecutrix (PW 7)

deposed that the accused, her parental uncle, had asked

her on the day of incident at about 1.30 p.m. to bring

water and he caught hold of her hand and tied her mouth

by dupatta and tied her both hands and mouth by dupatta.

He tied her both hands on back with cloth and then

removed her brown colour salwar and raped upon her and

threatened prosecutrix
ig not to disclose to anybody,

otherwise he would kill and bury her. He had again raped

on the next Wednesday in the noon time. Accused had

gagged her mouth with clothes and tied her hands near the

cot and committed rape. According to learned APP, the

trial Court had appreciated the entire evidence on record

threadbare and arrived at only conclusion which was

logically available from evidence. According to him, on

the basis of evidence on record, heinous crime rape upon

minor niece by appellant-uncle was established beyond all

reasonable doubt. Learned Additional Public Prosecutor

made reference to –

(i). Madanlal v. State of MP reported in 1997 (2)

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Crimes 210.

(ii). State of UP v. Pappu @ Yunus and another

reported in AIR 2005 SC 1248.

(iii). State of MP v. Dayal Saha reported in AIR

2005 SC 3750.

10. The legal position is well settled. In the

ruling in the State of Rajasthan v. Omprakash reported in

(2002) 5 SCC 745, the Apex Court observed that conviction

can be based on the sole testimony of victim. A woman or

girl subjected to sexual assault is not an accomplice to

the crime, but is victim of another person’s lust and it

is improper and undesirable to test her evidence with

certain amount of suspicion, treating her as if she were

an accomplice. The Apex Court also observed that the

inherent bashfulness of the females and the tendency to

conceal outrage of sexual cases is so vital.

11. I have gone through the rulings cited in the

light of submissions advanced before me. It is well-

settled that a prosecutrix, a victim of rape is not to be

treated as an accomplice after the crime. There is no

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rule of law that her testimony cannot be acted upon

without corroboration in material particulars. Her

evidence stands on higher pedestal than even an injured

witness in the criminal trial. Because injured witness

had received injury which was only physical, while injury

caused to the victim in rape is physical as well as

psychological and emotional. The trial Court can,

therefore, act upon uncorroborated testimony of

prosecutrix and when it may find difficult to
ig accept

such evidence at its face value, it may search for rest

of the evidence which may lend assurance to the testimony

by prosecutrix. Assurance short of corroboration as

understood in the context of an accomplice would do.

12. The trial Court appears to have considered the

legal position fairly and impartially in the background

of facts. The appellant who had vice of drinking,

indulged in inhuman act of rape upon his own niece who

had on the same day lodged complaint about it. The trial

Court has rightly observed thus –

“In the aforesaid facts and circumstances,

though it is seen that she has attained the age

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of discretion, yet it does not extend the

benefit to the accused looking to the

relationship of the accused with the

prosecutrix and occurrence of the offence which

has been admittedly taken place within four

walls of the house of accused where prosecutrix

resides with the accused being his niece..”

It appears clear from the evidence of

prosecutrix Girija and Tijiabai (PW 1) that the incident

of rape on the prosecutrix Girija by the appellant did

occur and was reported without any inordinate delay. The

immediate response of prosecution witness Tijiabai (PW

1), paternal aunt of prosecutrix to go and question her

brother, the appellant as to why he has done such evil

act upon his niece and slapping him, is most natural

response considering that Girija had no parents and she

was minor girl, living under the shelter of her close

relatives from paternal side. Girija had no reason to

falsely implicate the appellant; her own paternal uncle

in such serious accusations of rape. Had the

prosecutrix Girija consented for the act of rape by her

uncle, there was no necessity for her to narrate it to

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others including her paternal aunt and she would have

closed chapter after enjoying the act of sex. Her

evidence in the present case is found reliable,

trustworthy and well corroborated in the background of

facts and circumstances. Combined effect of all the

proved facts taken together leads to only one conclusion

towards guilt of the appellant. There was no reason why

his own real sister would come forward to depose falsely

against appellant.ig Plea of false implication is,

therefore, out of question. Learned trial Judge has

considered pros and cons of the matter to arrive at

conclusion of conviction. The conviction and sentence in

the background of facts is appropriate and well-founded.

There is no legal infirmity in the impugned judgment and

order. The impugned judgment and order is well-founded

on facts and legal position which is well settled, as

above and does not require any interference.

13. In the result, appeal is dismissed.

A.P. BHANGALE, J

joshi

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