1 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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9of 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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10others 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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