{"id":117203,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-unknown-on-16-october-2009"},"modified":"2015-09-06T08:58:14","modified_gmt":"2015-09-06T03:28:14","slug":"in-the-high-court-of-judicature-at-vs-unknown-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-unknown-on-16-october-2009","title":{"rendered":"In The High Court Of Judicature At … vs Unknown on 16 October, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
In The High Court Of Judicature At … vs Unknown on 16 October, 2009<\/div>\n
Bench: A.P. Bhangale<\/div>\n
                                      1\n\n                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n\n                      NAGPUR BENCH : NAGPUR\n\n\n\n\n                                                                        \n                                                \n     Criminal Appeal No.470 of 2008\n\n\n\n\n                                               \n     Appellant        :   Shiva alias Shivnarayan Bhondaprasad\n\n                          Keskar @ Warma, presently in Jail.\n\n                          versus\n\n\n\n\n                                  \n     Respondent       :<\/pre>\n
                     ig   The State of Maharashtra<\/p>\n
     Mr S.M. Bhangde, Advocate for appellant.<\/p>\n
\n                   \n     Ms Rachana Wasnik, APP for State\n      \n\n\n                                   Coram   :    A.P. Bhangale, J\n   \n\n\n\n                                   Dated   :    16th      Oct 2009\n\n     Judgment.\n\n\n\n\n\n<\/pre>\n
     1.          By this appeal, the appellant has challenged<\/p>\n
     judgment and order passed by learned Ad-hoc Additional<\/p>\n
     Sessions    Judge,    Chandrapur      on   15.1.2008           whereby        the<\/p>\n
     appellant was found guilty and upon conviction, has been<\/p>\n
     sentenced to suffer rigorous imprisonment for seven years<\/p>\n
     for an offence under Section 376 of the Indian Penal<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                               2<\/span><\/p>\n
     Code.      He     was    further       sentenced      to     suffer        rigorous<\/p>\n
     imprisonment for one year for an offence punishable under<\/p>\n
     Section     506    of    the     Indian       Penal     Code      and      rigorous<\/p>\n
     imprisonment for           two months for the offence punishable<\/p>\n
     under Section 352 of the Indian Penal Code.                                 All the<\/p>\n
     sentences were directed to run concurrently.\n<\/p>\n
     2.          Prosecution case, briefly stated, is as under:\n<\/p>\n
                 Prosecutrix Girija, 14 years old girl, resided<\/p>\n
     at   Ghuggus      Faiel,       Ballarsha        at     her       uncle’s       house<\/p>\n
     (appellant).       On 16.5.2007 at about                13.30 hours in the<\/p>\n
     afternoon, her uncle (appellant) lifted her up, took her<\/p>\n
     in the room in the house.               When the prosecutrix tried to<\/p>\n
     raise shouts, he tied dupatta around her mouth, made her<\/p>\n
     lie down on cot and inserted his penis in her private<\/p>\n
     part (vagina).          Thus, according to prosecutrix, her uncle<\/p>\n
     had raped her, eight days earlier also, taking advantage<\/p>\n
     of   the   fact     that    her    parents       were       no    more       living,<\/p>\n
     threatening       her    that     if    she     disclosed         the      fact       to<\/p>\n
     anybody, then he would kill her. Due to fear, the earlier<\/p>\n
     incident was not disclosed, but later, when the appellant<\/p>\n
     committed       rape    again,     the       prosecutrix         disclosed          the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                         3<\/span><\/p>\n
     incident to police.       Offence was registered as Crime No.<\/p>\n
     134\/2007 at Police Station, Ballarsha under Section 376<\/p>\n
     of the Indian Penal Code.\n<\/p>\n
     3.          After     completion       of       investigation,                 the<\/p>\n
     appellant    was      charge-sheeted        before          the       Judicial<\/p>\n
     Magistrate, First Class, Rajura who committed the case to<\/p>\n
     the Court of Sessions.        The charge was framed (exhibit<\/p>\n
     10) to which appellant pleaded not guilty and claimed to<\/p>\n
     be tried.\n<\/p>\n
     4.          The     prosecution    examined         eleven         witnesses.\n<\/p>\n
     Prosecutrix was examined as P.W. 5.                  Her paternal aunt<\/p>\n
     Tijiyabai was examined as P.W. 1. Prosecutrix was taken<\/p>\n
     to Rural Hospital, Ballarsha for medical examination. FIR<\/p>\n
     was recorded by P.W. 4 Head Constable Tejram.                      Dr Subhash<\/p>\n
     (PW   8)    medically      examined     the          prosecutrix             upon<\/p>\n
     requisition.         Dr   Barapatre     (PW            11)      had       issued<\/p>\n
     ossification test report.\n<\/p>\n
     5.          Appellant     denied the    case pleading               innocence<\/p>\n
     and claiming that he was falsely implicated.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                         4<\/span><\/p>\n
     6.           Considering the evidence on record, the trial<\/p>\n
     Court ordered conviction, as aforesaid.\n<\/p>\n
     7.           In support of the appeal, learned Advocate for<\/p>\n
     the appellant submitted that the trial Court erred to<\/p>\n
     believe in the evidence led by the prosecution.                         Age of<\/p>\n
     the    prosecutrix    was   not   proved   beyond        all      reasonable<\/p>\n
     doubt and the accused, none other than paternal uncle of<\/p>\n
     the prosecutrix, was falsely implicated.                   It is further<\/p>\n
     submitted that conduct of the prosecutrix was suspicious<\/p>\n
     to lodge complaint and she did not like parental control<\/p>\n
     of    the   accused   who   was   her   paternal      uncle.           Learned<\/p>\n
     counsel for appellant submitted that the trial Court had<\/p>\n
     failed to notice the inherent weakness of the prosecution<\/p>\n
     case    that    the   accused     was    paternal         uncle       of      the<\/p>\n
     prosecutrix and could not have committed rape upon her;\n<\/p>\n
     nor he would have allowed any other person to commit rape<\/p>\n
     upon her.       It is further submitted that there was no<\/p>\n
     sufficient corroboration to believe the prosecutrix and<\/p>\n
     therefore, the trial Court ought to have acquitted the<\/p>\n
     appellant as there was no legal proof except suspicion<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                    5<\/span><\/p>\n
     against   appellant.   Learned     Advocate         contended           that<\/p>\n
     suspicion, howsoever strong may be, cannot take the place<\/p>\n
     of legal proof.     In support of      his submission, learned<\/p>\n
     counsel for appellant made reference to the following<\/p>\n
     rulings :-\n<\/p>\n
          (i). Krishna   Soma   Raut   v.    State        of     Maharashtra<\/a><\/p>\n
     reported in 2008 All MR (Cri) 656 (Bombay HC).\n<\/p>\n
          (ii). Suresh Govinda Nagdeve v. State of Masharashtra<\/p>\n
     reported in 2008 (1) Bom CR (Cri) 847.\n<\/p>\n
           (iii).    State of Maharashtra v. Subhash Haribhau<\/a><\/p>\n
     reported in 2008 (1) Bom CR (Cri) 388.\n<\/p>\n
     8.        Learned   Advocate for    the appellant              submitted<\/p>\n
     that when two views may be possible from the evidence on<\/p>\n
     record, the view which is favourable to the accused is<\/p>\n
     preferred.     Therefore, the accused ought to have been<\/p>\n
     acquitted.     Further, according to learned Advocate for<\/p>\n
     the appellant, the trial Court ought to have considered<\/p>\n
     that there was no legal and unimpeachable evidence of<\/p>\n
     forcible rape upon prosecutrix.\n<\/p>\n
     9.        Learned   Additional Public        Prosecutor, on               the<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                          6<\/span><\/p>\n
     other hand, submitted that evidence of prosecutrix was<\/p>\n
     trustworthy    and     reliable.          The       prosecutrix            (PW      7)<\/p>\n
     deposed that the accused, her parental uncle, had asked<\/p>\n
     her on the day of incident at about 1.30 p.m. to bring<\/p>\n
     water and he caught hold of her hand and tied her mouth<\/p>\n
     by dupatta and tied her both hands and mouth by dupatta.\n<\/p>\n
     He tied her both hands on back with cloth and                                   then<\/p>\n
     removed her brown colour salwar and raped upon her and<\/p>\n
     threatened    prosecutrix
\n                     ig             not       to     disclose          to     anybody,<\/p>\n
     otherwise he would kill and bury her. He had again raped<\/p>\n
     on the next Wednesday in the noon time.                            Accused had<\/p>\n
     gagged her mouth with clothes and tied her hands near the<\/p>\n
     cot and committed rape.         According to learned APP, the<\/p>\n
     trial Court had appreciated the entire evidence on record<\/p>\n
     threadbare    and    arrived   at       only     conclusion            which      was<\/p>\n
     logically available from evidence.                 According to him, on<\/p>\n
     the basis of evidence on record, heinous crime rape upon<\/p>\n
     minor niece by appellant-uncle was established beyond all<\/p>\n
     reasonable doubt.       Learned Additional Public Prosecutor<\/p>\n
     made reference to –\n<\/p>\n
         (i). Madanlal v. State of MP reported in 1997 (2)<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                     7<\/span><\/p>\n
     Crimes 210.\n<\/p>\n
           (ii).     State of UP v. Pappu @ Yunus and another<\/p>\n
     reported in AIR 2005 SC 1248.\n<\/p>\n
           (iii).     State of MP v. Dayal Saha<\/a> reported in AIR<\/p>\n
     2005 SC 3750.\n<\/p>\n
     10.        The legal position is well settled.                    In the<\/p>\n
     ruling in the State of Rajasthan v. Omprakash<\/a> reported in<\/p>\n
     (2002) 5 SCC 745, the Apex Court observed that conviction<\/p>\n
     can be based on the sole testimony of victim.              A woman or<\/p>\n
     girl subjected to sexual assault is not an accomplice to<\/p>\n
     the crime, but is victim of another person’s lust and it<\/p>\n
     is    improper and undesirable to test her evidence with<\/p>\n
     certain amount of suspicion, treating her as if she were<\/p>\n
     an accomplice.      The Apex Court also observed that the<\/p>\n
     inherent      bashfulness of the females and the tendency to<\/p>\n
     conceal outrage of sexual cases is so vital.\n<\/p>\n
     11.        I have gone through the rulings cited in the<\/p>\n
     light of submissions advanced before me.                It is well-\n<\/p>\n
     settled that a prosecutrix, a victim of rape is not to be<\/p>\n
     treated as an accomplice after the crime.                There is no<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                               8<\/span><\/p>\n
     rule   of    law    that    her   testimony      cannot        be      acted     upon<\/p>\n
     without      corroboration        in    material       particulars.                Her<\/p>\n
     evidence stands on higher pedestal than even an injured<\/p>\n
     witness in the criminal trial.                  Because injured witness<\/p>\n
     had received injury which was only physical, while injury<\/p>\n
     caused to the victim in rape is physical as well as<\/p>\n
     psychological       and     emotional.          The     trial        Court       can,<\/p>\n
     therefore,         act     upon        uncorroborated          testimony             of<\/p>\n
     prosecutrix and when it may find difficult to
\n                         ig                                                        accept<\/p>\n
     such evidence at its face value, it may search for rest<\/p>\n
     of the evidence which may lend assurance to the testimony<\/p>\n
     by prosecutrix.             Assurance short of             corroboration as<\/p>\n
     understood in the context of an accomplice would do.\n<\/p>\n
     12.            The trial Court appears to have considered the<\/p>\n
     legal position fairly and impartially in the background<\/p>\n
     of    facts.       The     appellant     who    had    vice       of    drinking,<\/p>\n
     indulged in inhuman act of rape upon his own niece who<\/p>\n
     had on the same day lodged complaint about it. The trial<\/p>\n
     Court has rightly observed thus –\n<\/p>\n
            “In   the    aforesaid      facts       and    circumstances,<\/p>\n
            though it is seen that she has attained the age<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                           9<\/span><\/p>\n
          of     discretion,      yet    it   does     not      extend        the<\/p>\n
          benefit       to   the        accused      looking         to       the<\/p>\n
          relationship          of      the    accused           with         the<\/p>\n
          prosecutrix and occurrence of the offence which<\/p>\n
          has    been    admittedly      taken     place      within        four<\/p>\n
          walls of the house of accused where prosecutrix<\/p>\n
          resides with the accused being his niece..”\n<\/p><\/blockquote>\n
                 It     appears      clear     from        the       evidence           of<\/p>\n
     prosecutrix Girija and Tijiabai (PW 1) that the incident<\/p>\n
     of rape on the prosecutrix Girija by the appellant did<\/p>\n
     occur and was reported without any inordinate delay.                             The<\/p>\n
     immediate response of prosecution witness Tijiabai (PW<\/p>\n<\/blockquote>\n
     1), paternal aunt of prosecutrix to go and question her<\/p>\n
     brother, the appellant as to why he has done such evil<\/p>\n
     act upon his niece and slapping him, is most natural<\/p>\n
     response considering that Girija had no parents and she<\/p>\n
     was minor girl, living under the shelter of her close<\/p>\n
     relatives from paternal side.                Girija had no reason to<\/p>\n
     falsely implicate the appellant; her own paternal uncle<\/p>\n
     in   such        serious     accusations        of     rape.            Had      the<\/p>\n
     prosecutrix Girija consented for the act of rape by her<\/p>\n
     uncle, there was no necessity for her to narrate it to<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>
\n                                              10<\/span><\/p>\n
     others including her paternal aunt and she would have<\/p>\n
     closed    chapter      after     enjoying         the     act      of     sex.         Her<\/p>\n
     evidence       in    the      present        case       is     found         reliable,<\/p>\n
     trustworthy and well corroborated in the background of<\/p>\n
     facts    and    circumstances.          Combined          effect        of    all      the<\/p>\n
     proved facts taken together leads to only one conclusion<\/p>\n
     towards guilt of the appellant.                    There was no reason why<\/p>\n
     his own real sister would come forward to depose falsely<\/p>\n
     against    appellant.ig          Plea        of     false       implication            is,<\/p>\n
     therefore, out of question.                       Learned trial Judge has<\/p>\n
     considered      pros    and    cons     of    the      matter        to      arrive      at<\/p>\n
     conclusion of conviction. The conviction and sentence in<\/p>\n
     the background of facts is appropriate and well-founded.\n<\/p><\/blockquote>\n
     There is no         legal infirmity in the impugned judgment and<\/p>\n
     order.     The impugned judgment and order is well-founded<\/p>\n
     on facts and legal position which is well settled, as<\/p>\n
     above and does not require any interference.\n<\/p>\n
     13.         In the result, appeal is dismissed.\n<\/p>\n
                                                  A.P. BHANGALE, J<\/p>\n
     joshi<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:14:21 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court In The High Court Of Judicature At … vs Unknown on 16 October, 2009 Bench: A.P. Bhangale 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-117203","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nIn The High Court Of Judicature At ... vs Unknown on 16 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/in-the-high-court-of-judicature-at-vs-unknown-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"In The High Court Of Judicature At ... vs Unknown on 16 October, 2009 - 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