{"id":234349,"date":"2009-05-07T00:00:00","date_gmt":"2009-05-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-suresh-shankar-jadhav-on-7-may-2009"},"modified":"2018-04-18T20:33:36","modified_gmt":"2018-04-18T15:03:36","slug":"the-state-of-maharashtra-vs-suresh-shankar-jadhav-on-7-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-suresh-shankar-jadhav-on-7-may-2009","title":{"rendered":"The State Of Maharashtra vs Suresh Shankar Jadhav on 7 May, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The State Of Maharashtra vs Suresh Shankar Jadhav on 7 May, 2009<\/div>\n
Bench: S.C. Dharmadhikari<\/div>\n
                                       1\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY \n\n\n\n\n                                                                    \n                    CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                            \n                     CRIMINAL APPEAL NO.192 OF 1990\n                         (By State against acquittal)\n\n\n\n\n                                           \n     The State of Maharashtra                             )..      Appellant \n\n     Versus\n\n\n\n\n                                \n     Suresh Shankar Jadhav,                               )\n     Age : 21 years, R\/o. Gursale,\n                    ig                                    )\n     Tal. Khatav, Dist. Satara.                           )..      Respondent\n                                                                  (Org.Accused)\n                  \n      Shri P.S. Hingorani, Additional Public Prosecutor for the State. \n     Shri M.K. Kocharekar for the Respondent.\n      \n\n\n                       CORAM : SWATANTER KUMAR, C..J &\n                                S.C. DHARMADHIKARI, J \n   \n\n\n\n           JUDGMENT RESERVED ON     : 15TH APRIL, 2009\n           JUDGMENT PRONOUNCED ON   :  7TH  MAY, 2009.\n\n\n\n\n\n     JUDGMENT : ( PER SWATANTER KUMAR, CJ ) \n\n\n\n\n\n                  The Accused Suresh Shankar Jadhav was charged for\n\n     an offence punishable under Section 376 of the Indian Penal Code\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 14:35:17 :::\n                                               2\n\n     hereinafter referred to as the \"Code\" and Section 57 of Bombay\n\n\n\n\n                                                                            \n     Children Act, 1948.     The learned Trial Court, vide its judgment\n\n\n\n\n                                                    \n     dated   30th  November,   1989,   found   the   accused   not   guilty   and\n\n     acquitted   him   of   the   charge   above-referred.     The   State   being\n\n\n\n\n                                                   \n     aggrieved   from   the   said   judgment   of   acquittal   recorded   by   the\n\n     Trial   Court     (   Iind   Additional   Sessions   Judge,   Satara   )   filed   an\n\n\n\n\n                                      \n     application for leave to appeal which was granted by a Division\n                     \n     Bench of this Court  on 25th  June,  1990.    The case came up for\n\n     regular hearing before another Division Bench of this Court and\n                    \n     the Court, vide its Judgment dated 4th May, 2007 upheld the order\n\n     of the Trial Court acquitting the accused of the offence punisable\n      \n\n\n     under   Section   376   of   the   Code,   however,   convicted   him   for   an\n   \n\n\n\n     offence punishable under Section 376 read with Section 511 of the\n\n\n\n\n\n     Code as well as Section 57 of the Bombay Children Act.  The Court\n\n     sentenced the accused under Section 376 read with Section 511 of\n\n     the Code to suffer rigorous imprisonment for a period of five years\n\n\n\n\n\n     and   to   pay   fine   of   Rs.3,000\/-   in   default   to   suffer   rigorous\n\n     imprisonment for three months.      The Court  also  sentenced  the\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:35:17 :::\n                                             3\n\n     accused under Section 57  of  the Bombay  Children Act   to suffer\n\n\n\n\n                                                                         \n     rigorous imprisonment for two years and to pay fine of Rs.1,000\/-\n\n\n\n\n                                                 \n     in default to suffer rigorous imprisonment for one months.    This\n\n     judgment   of   the   Court   was   assailed   by   the   accused     in   appeal\n\n\n\n\n                                                \n     before   the   Supreme   Court   where   the   leave   was   granted   and\n\n     Criminal  Appeal No.1454 of 2007 was heard and the same  was\n\n\n\n\n                                    \n     disposed of by passing the following order :-\n                    \n            \"THE   Appeal   above-mentioned   being   called   on   for\n                   \n            hearing before this Court on the 22nd  day of October,\n            2007, UPON perusing the record and hearing counsel\n            for the parties herein, THIS COURT, inter alia, PASS the\n            following ORDER: \n      \n\n\n                          xxxxx          xxxxx                  xxxxx\n   \n\n\n\n                    \"Having   heard   the   learned   counsel   for   the\n            respective parties, we are inclined to remit the matter to\n\n\n\n\n\n            the High Court for a fresh decision, but we also make it\n            clear   that   the   appellant   before   us   shall   be   given   a\n            specific date by the High Court on which date he shall\n            appear so that the matter can be taken up and disposed\n            of.    The impugned judgment  is thus  set  aside on  the\n\n\n\n\n\n            aforesaid  ground  alone  and the  matter   is  remitted  to\n            the High Court for fresh consideration.   The appeal is,\n            accordingly, disposed of. \n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                              4\n\n                    Since the appellant has surrendered on 5th  July,\n            2007 and there is an order of acquittal in his favour, he\n\n\n\n\n                                                                          \n            shall   be   set   at   liberty   forthwith   and   the   appeal   may\n            proceed  before the High Court.\"\n\n\n\n\n                                                  \n                   AND THIS COURT DOTH FURTHER ORDER that\n            this   Order   be   punctually   observed   and   carried   into\n            execution by all concerned\"\n\n\n\n\n                                                 \n                                    \n     2.            Resultantly, upon remand, this Appeal has came up for\n                    \n     hearing before this Bench.  Various contentions have been raised,\n\n     the merit or otherwise of which can be examined by this Court but\n                   \n     before that, reference to the facts of case of prosecution would be\n\n     necessary. \n      \n   \n\n\n\n     3.            The   case   of   the   prosecution   reflect   that   the   victim,\n\n\n\n\n\n     lodged  a complaint with Vaduj Police Station on 11th August, 1987\n\n     stating that a person   from her village by name Suresh Shankar\n\n     Jadhav had committed rape on her at 1.30 p.m.  Thereafter, First\n\n\n\n\n\n     Information   Report   was   recorded.     This   complaint   came   to   be\n\n     registered as Crime No.78 of 1987  under Section 376 of the Code\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                             5\n\n     and Entry No.18 was made in the Station Diary.   The victim was\n\n\n\n\n                                                                         \n     examined   during   the   trial   as   P.W.7   where   she   stated   the   facts\n\n\n\n\n                                                 \n     which  are quite  in  line  with  the  complaint lodged  by her.    The\n\n     prosecutrix   was studying in 7th  standard.   Her father is a Tailor,\n\n\n\n\n                                                \n     brother Mahesh is a Painter and elder sister Manjusha was doing\n\n     household   work.     According   to   her,   on   11th  August,   1987,   she\n\n\n\n\n                                    \n     along  with   her  brother  and  sister  was   going  to   Balubai   Devi   of\n                    \n     Umbarda.  She was going on cycle with her brother.  They all met\n\n     in the temple Balubai.   They were returning while walking upto\n                   \n     Umbarda, when Suresh Shankar Patil was coming from behind on\n\n     his cycle.  Brother of the prosecutrix asked Suresh Patil to carry her\n      \n\n\n     on his cycle.  She was sitting on the bar of cycle and he had kept\n   \n\n\n\n     some books etc. on the carrier of the cycle.   The accused instead of\n\n\n\n\n\n     dropping the victim on the hillock of the road, carried her to his\n\n     house.   The house was locked.   The accused   asked her to wait\n\n     there with his books  and went to bring key from his land.   After\n\n\n\n\n\n     nearly 5 to 10 minutes, he returned  and after opening the lock, he\n\n     entered into the house and called the victim and told her that he\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                                6\n\n     would provide her with groundnuts.  She went to the house of the\n\n\n\n\n                                                                            \n     accused.   According to the victim, the accused   closed the door,\n\n\n\n\n                                                    \n     caught hold of her, made her lie on the ground on the gunny bag,\n\n     and after lifting her parkar, lowering her nicker and removing his\n\n\n\n\n                                                   \n     pant,   he   inserted     his   penis   in   the   private   part   of   the   victim.\n\n     Because of this, there was bleeding from her private part.   There\n\n\n\n\n                                      \n     was some whitish liquid and blood spread over on gunny bags and\n                     \n     her clothes which were wiped out by the accused by using paper\n\n     from  exercise   book  and   threw   it   near   the   door.     Thereafter,   he\n                    \n     released the victim and opened the door.   When the victim was\n\n     wearing the clothes, her brother came.  Her brother inquired from\n      \n\n\n     her as to what had happened.  When the accused was asked by her\n   \n\n\n\n     brother,   the   accused     told   him   that   the   victim   was   eating\n\n\n\n\n\n     groundnuts in the house and then she went back with her brother\n\n     to the house.  \n\n\n\n\n\n     4.             On reaching their house, her brother told her mother\n\n     that something strange must have happened.   Her mother asked\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                               7\n\n     her what was the matter and then she told about the incident to\n\n\n\n\n                                                                           \n     her mother.  She even washed her clothes and in the evening she\n\n\n\n\n                                                   \n     went to the Police Station with her mother to lodge the complaint.\n\n     To prove this version of the victim, the prosecution examined 12\n\n\n\n\n                                                  \n     witnesses including the Investigating Officer, Doctor, the  panchas,\n\n     brother and mother of the victim and  the victim herself, amongst\n\n\n\n\n                                     \n     other witnesses.\n                     \n     5.            The learned trial Court had framed charge against the\n                    \n     accused for committing an offence punishable under section 376 of\n\n     IPC and under section 57 of the Bombay Children Act vide charge\n      \n\n\n     dated   23rd  October,   1989   (Exhibit   3).     Upon   completion   of   the\n   \n\n\n\n     prosecution   evidence,   statement   of   the   accused   was   recorded\n\n\n\n\n\n     under   section   313   of   the   Criminal   Procedure   Code   (Exhibit   4)\n\n     wherein the accused stated that the prosecution story was false.\n\n     Finally,   the   learned   trial   court   came   to   the   conclusion   that   the\n\n\n\n\n\n     prosecution had failed to prove its case beyond reasonable doubt\n\n     and consequently, acquitted the accused of both the offences. As\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                              8\n\n     already noticed, the State has preferred present appeal against the\n\n\n\n\n                                                                           \n     judgment   of   acquittal   of   which   leave   has   been   granted   by   the\n\n\n\n\n                                                  \n     court.  It is contended on behalf of the State that the learned trial\n\n     court has ignored the relevant piece of oral as well documentary\n\n\n\n\n                                                 \n     evidence.  The evidence of the expert (Doctor PW 11) was in total\n\n     contradiction to the other evidence and ought not to have been\n\n\n\n\n                                     \n     relied upon solely to acquit the accused.   It is also argued in the\n                     \n     alternative while relying upon the judgment of the Supreme Court\n\n     in the case of Premiya @ Prem Prakash v. State of Rajasthan, 2008\n                    \n     All MR (Cri) 3203 (SC)   that the offence under section 354 read\n\n     with section 511 had been proved and the learned trial court in\n      \n\n\n     any case should have convicted the accused for that offence.  The\n   \n\n\n\n     statement of the prosecutrix was fully corroborated and supported\n\n\n\n\n\n     by   the   statement   of   other   witnesses   i.e.   Investigating   Officer   as\n\n     well as the report of the Chemical Analyser (Exhibit 41).  As such,\n\n     there was no justification before the learned trial court to acquit\n\n\n\n\n\n     the accused of a heinous crime like raping a minor girl.  However,\n\n     on the other hand, it is contended  while relying upon Ghurey Lal\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                               9\n\n     v.   State   of   U.P.,   2008   All   MR   (Cri.)   2873   on   behalf   of   the\n\n\n\n\n                                                                           \n     respondent-accused   that   in   case   of   an   acquittal,   normally   the\n\n\n\n\n                                                   \n     Appellate Court should not interfere. It is also contended that there\n\n     was expert and other evidence which has been rightly taken note\n\n\n\n\n                                                  \n     of by the learned trial court in addition to the fact that the FIR\n\n     itself was lodged after great delay and that justifies the acquittal of\n\n\n\n\n                                     \n     the   accused   and   as   such   this   court   should   not   interfere   in   the\n                     \n     finding of the judgment under appeal.\n                    \n     6.            At   the   very   outset,   we   may   look   into   the   reasons\n\n     recorded   by   the   learned   trial   court   for   acquitting   the   accused.\n      \n\n\n     While making reference to the statements of the victim and other\n   \n\n\n\n     witnesses, it placed great emphasis on the evidence of PW11 Dr.\n\n\n\n\n\n     Ashok Jagannath Pawar who stated that there has to be injuries on\n\n     the   body  and   private   parts   of   the  victim  and  it   was   difficult   to\n\n     admit small finger in the private part of the victim and pain has to\n\n\n\n\n\n     be   there   where  penis  penetrated   in  a   private   part   by   force   and\n\n     there has to be rupture   of the hymen which was not noticed by\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                            10\n\n     him   during   the   medical   examination.     While   relying   upon   the\n\n\n\n\n                                                                        \n     judgment   of   Bhagat   v.   State   of   Maharashtra,   1986(2)   Bombay\n\n\n\n\n                                                \n     Crime   Report,   175   and     1980   Cri.L.J.   111   and   particularly\n\n     referring to the evidence of the doctor, the trial court observed:\n\n\n\n\n                                               \n                 \"If   we   see   evidence   of   doctor,   who   examined\n           complainant,   it   is   quite   contrary   to   the   evidence   of\n\n\n\n\n                                   \n           complainant   that   accused   committed   rape   on   her   by\n           inserting his penis in her private part completely.  It is\n                   \n           submitted that witnesses may lie, but the circumstances\n           do not.  If, there was profused bleeding from the private\n           part of the complainant, injuries bound to occur on the\n                  \n           private part as stated by doctor.   When there was no\n           such injuries, there must be bleeding from her private\n           part.  Further, it is submitted that vagina cavity was of\n           small and it was difficult to admit a small finger.\"\n      \n   \n\n\n\n     7.           The   Court   also   noticed   that   the   Investigating   Officer\n\n\n\n\n\n     had not taken the victim to the Public Health Centre which was\n\n     only at the distance of one furlong from the Police Station and had\n\n\n\n\n\n     taken the victim to Satara Civil Hospital.  Primarily based on these\n\n     two factors,  the Court recorded  judgment of acquittal.\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                               11\n\n     8.            We are unable to accept the reasoning recorded by the\n\n\n\n\n                                                                            \n     learned  trial  court  for  variety of  reasons  which  we  shall  shortly\n\n\n\n\n                                                    \n     discuss in some detail.  The victim was examined as PW7 and her\n\n     statement is at Exhibit 22.  The court noticed that the witness was\n\n\n\n\n                                                   \n     studying in the 7th  standard and was aged nearly 13 years.   After\n\n     asking   her   some   formal   questions,   her   statement   was   recorded.\n\n\n\n\n                                      \n     She stood by her version as given in the FIR Exhibit 23 and stated\n                     \n     that on asking of her brother, the accused had made her to sit on\n\n     the rod of the cycle and instead of dropping her at the house at\n                    \n     Hillock, took her to his place.   The house was locked.   He asked\n\n     her to wait with the books which he was carrying at the carrier of\n      \n\n\n     his cycle. He returned after 5\/10 minutes with the key and asked\n   \n\n\n\n     her to come to his house saying that he will give her groundnuts.\n\n\n\n\n\n     She followed the accused.  He closed the door.  After removing her\n\n     clothes, accused committed rape on her by inserting his penis into\n\n     her   private   part.     Blood   came   out   from   the   private   part   of   the\n\n\n\n\n\n     victim and there was whitish liquid as well.  Her brother had come\n\n     near the house of the accused while she was wearing her parkar.\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                               12\n\n     According   to   her,   her   clothes   as   well   as   clothes   of   the   accused\n\n\n\n\n                                                                            \n     contained blood and semen which was also cleaned by accused by\n\n\n\n\n                                                   \n     using paper from the exercise book. The accused told the brother\n\n     of the victim that she was taking groundnuts.   Then she went to\n\n\n\n\n                                                  \n     her home.  Upon enquiry by her mother, she told the incident and\n\n     then they went to the Police Station at about 7.30  in the evening\n\n\n\n\n                                      \n     where   her   complaint   was   recorded   and   FIR   was   registered   as\n                     \n     Exhibit   23.     It   may   be   noticed   that   in   the   cross-examination,   a\n\n     question was put to the victim that she had sexual intercourse with\n                    \n     the accused even earlier to which she answered as follows:\n      \n\n\n                  \"Still   I   have   not   attained   M.C.   There   was   no\n   \n\n\n\n            occasion of incident of sexual intercourse with me any\n            time prior to the incident with anybody.  All   love me in\n            the house as I was youngest member in the house.\"\n\n\n\n\n\n     She admitted that she did not bite   the accused or scratched her\n\n\n\n\n\n     fingers over the accused and she stated that she tried to escape\n\n     which the accused did not permit.  \n\n     9.            Her  version  has   been  fully  supported   by  her  brother\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                             13\n\n     who was examined as PW8 (Exhibit 24).  According to her brother,\n\n\n\n\n                                                                          \n     he had requested the accused if he could carry the victim on his\n\n\n\n\n                                                  \n     cycle who answered in the affirmative and victim was sitting on\n\n     the rod of  the  cycle.   He asked the accused to drop her near a\n\n\n\n\n                                                 \n     Tekada (hillock).  The accused carried the victim with him.  When\n\n     the brother of the victim reached home, he found that she had not\n\n\n\n\n                                     \n     reached the house.   He, therefore, enquired with the mother and\n                    \n     then went to the fields of the accused where   nobody was there\n\n     and then went to the house of the accused and when he entered\n                   \n     the house of the accused, he saw the accused coming out in a lungi\n\n     and   when   he   made   enquiry   from   him,   he   told   that   victim   was\n      \n\n\n     eating groundnuts and he saw that she was wearing `parkar'.\n                                                                 On\n   \n\n\n\n     enquiry   with   the   victim   as   to   what   had   happened,   she   did   not\n\n\n\n\n\n     speak and was crying.  He took the victim on his cycle to his house\n\n     when   victim   told   her   mother   what   had   happened.   Both   these\n\n     witnesses   had   identified   the   clothes   which   the   accused   was\n\n\n\n\n\n     wearing on the date of occurrence and the victim also identified\n\n     the lungi and other items which were recovered from the house of\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                            14\n\n     the accused.  The mother was also examined as PW10 (Exhibit 29)\n\n\n\n\n                                                                         \n     who supported the case of the prosecution.   Despite the lengthy\n\n\n\n\n                                                 \n     cross-examination,   nothing   material   came   out   from   evidence   of\n\n     these three witnesses.\n\n\n\n\n                                                \n     10.           Three panchanamas, one dated 11th August, 1987 and\n\n\n\n\n                                    \n     two others dated 12th August, 1987 were proved by PW2, PW5 and\n                    \n     PW6 respectively.  The place of incident was shown by the victim\n\n     and from the house it was noticed that there were baskets, four\n                   \n     gunny bags filled with groundnuts and the groundnuts had come\n\n     out of the gunny bags.   The blood stained paper was recovered\n      \n\n\n     from  behind  the   door.     It   had   reddish  and   white   colours.     The\n   \n\n\n\n     gunny bag was found with the mark \"Jai Kishan\". All these items\n\n\n\n\n\n     were recovered vide panchanama Exhibit  11.   It  was proved by\n\n     PW2 Sudhakar.  The clothes of the prosecutrix were recovered by\n\n     panchanama   Exhibit   13.     Vide   Exhibit   15,   the   clothes   of   the\n\n\n\n\n\n     accused viz. pant which was blood stained and an old underwear\n\n     were seized and Lungi of the accused having 2-3 blood stains was\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                             15\n\n     recovered by Exhibit 16 on 18th August, 1987.  All these recoveries\n\n\n\n\n                                                                         \n     were made in the presence of panchas  PW2, PW3, PW4 and PW5.\n\n\n\n\n                                                 \n     The cycle was also recovered and seized vide panchanama Exhibit\n\n     18   and   the   accused   was   arrested   and   upon   his   arrest,   personal\n\n\n\n\n                                                \n     search was conducted in the presence of pancha PW6.   All these\n\n     panchas   have   supported   the   recoveries   and   stood   by   their\n\n\n\n\n                                    \n     respective statements.  PW6 Shingade has even stated that clothes\n                    \n     of the accused were stained with blood which were recovered from\n\n     his person at the time of his arrest.\n                   \n\n     11.           Vide   letter   Exhibit   37,   the   Investigating   Agency   had\n      \n\n\n     sent   the   clothes,   paper,   the   old   gunny   bag,   lungi   and   tubes\n   \n\n\n\n     containing   the   blood   samples   and   semen   of   the   accused   for\n\n\n\n\n\n     Chemical   Analysis.   The   report   of   the   Chemical   Analyser   was\n\n     received by the Investigating Agency and is proved in accordance\n\n     with law in court on 29th  January, 1988 (Exhibit 41).   Relevant\n\n\n\n\n\n     portion of the report reads as under:\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:35:18 :::\n                                            16\n\n                               \"Description of parcel.\n\n\n\n\n                                                                        \n     -Eight sealed parcels seals intact and as per copy sent.\n     -One sealed phial seals intact and as per copy sent.\n\n\n\n\n                                                \n     -One sealed small parcel and two sealed phial seals intact device-\n     -MEDICO LEGAL BOMBAY\" and no copy sent.\n\n                   Description of articles contained in parcel.\n\n\n\n\n                                               \n     1. Paper wrapped in paper labelled .-1\n     2. Gunny bag wrapped in paper labelled .-2\n     3. Petticoat wrapped in paper labelled .-3\n\n\n\n\n                                   \n     4. Petticoat wrapped in paper labelled.-4\n     5. Jangya wrapped in paper labelled.-5\n                    \n     6. Full pant wrapped in paper labelled.-6\n     7. Under pant wrapped in paper labelled.-7\n     8. Lungi wrapped in paper labelled.-8\n                   \n     9. Semen in a phial labelled Suresh Shankar Jadhav.\n     10.Blood in a phial labelled Suresh Shankar Jadhav.\n     11.Pubic hair wrapped in paper labelled Suresh Shankar Jadhav.\n     12.Blood in a phial labelled Kum. Manisha Uttam Chinchalkar.\n      \n\n\n     ----------------------------------------------------------------------------\n<\/pre>\n
                               RESULT OF ANALYSIS<\/p>\n
     –Exhibits (1) is stained with blood-\n<\/p>\n
     –Exhibit (2) has one blood stain about 1 cm in diameter at lower
\n     end-\n<\/p>\n
     –Exhibit (3) has one small blood stain at upper side and appears
\n     to be.-\n<\/p>\n
     -washed-\n<\/p>\n
     -Exhibits (4) and (5) are stained with blood at place and appear to
\n     washed.-\n<\/p>\n
     -Exhibit (6) has two blood stains each of about 1 cm in diameter
\n     on left-\n<\/p>\n
     -middle portion.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                           17<\/span><\/p>\n
     -Exhibit (7) has moderate number of blood stains ranging from 0.1
\n     to 5 cms-\n<\/p>\n
     -in diameter spread at places-\n<\/p>\n
     -Exhibit (8) has two blood stains each of about 1 cm in diameter at<\/p>\n
     middle portion.\n<\/p>\n
     –Exhibit (1) has one semen stain about 2 cms. in diameter at one
\n     end-\n<\/p>\n
     –No semen is detected on exhibits (2),(3),(4),(5),(6),(7) and (8)-\n<\/p>\n
     –Blood detected on exhibits (1),(2),(3),(4),(5),(6),(7) and (8) is
\n     human–\n<\/p>\n
     –Semen detected on exhibit (1) is human–\n<\/p>\n
     –Exhibits (3),(4),(5),(6) and (7) are stained with blood of `B’<\/p>\n
     group–\n<\/p>\n
     –Exhibit (1) is stained with semen of blood group `A’–\n<\/p>\n
     –Blood group of blood detected on exhibits (1), (2) and (8) can
\n     not be determined as the results are inconclusive–\n<\/p>\n
     –Exhibits (9) and (10) are of blood group `A’ —\n<\/p>\n
     –Exhibit (12) is of blood group `B’–\n<\/p>\n
     –No semen is detected on exhibit (11)–\n<\/p>\n
                                            Sd\/- F.J. Beriwale.\n<\/p><\/blockquote>\n
                                     Asstt. Chemical Analyser to Govt.\n<\/p><\/blockquote>\n
                                Regional Forensic Science Laboratory, <\/p>\n
                                                  Pune.”\n<\/p><\/blockquote>\n
     12.          From the bare reading of the above report, it is clear<\/p>\n
     that Exhibit 1 the paper was stained with blood and semen and it<\/p>\n
     was the same paper which was recovered from the site in question.\n<\/p>\n
     Blood   was   detected   at   Exhibits   1,2,3,4,5,6,7   and   8   which   was<\/p>\n
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\n                                            18<\/span><\/p>\n
     stated to be the human blood.   The blood group of accused Suresh<\/p>\n
     Shankar Jadhav was `A’ and that of the prosecutrix was `B’  and<\/p>\n
     Exhibit 1, the paper   was found with semen of Group `A’.   This<\/p>\n
     was the report of the Chemical Analyser which largely supported<\/p>\n
     the case of the prosecution except to the extent where it noticed<\/p>\n
     that it was not possible to give a determinative finding.\n<\/p>\n
     13. <\/p>\n
                  The only evidence that did not fully support the case of<\/p>\n
     the prosecution was the statement of the doctor which has been<\/p>\n
     heavily relied upon by the learned trial court.   According to the<\/p>\n
     said doctor (witness No.11 Exhibit 13), prosecutrix was brought to<\/p>\n
     the hospital by the police and he had examined her. He did not<\/p>\n
     notice any external injuries.  Hymen was intact. The doctor stated<\/p>\n
     that   upon   examination   the   age   of   the   girl   was   found   to   be<\/p>\n
     between 8 to 11 years. The Medical Officer also stated that semen<\/p>\n
     and blood stains  get washed away,  if  they  are  washed.  He  also<\/p>\n
     stated   that   bleeding   is   possible   from   private   part   by   mere<\/p>\n
     penetration by penis though hymen is not torn.  He also admitted<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                               19<\/span><\/p>\n
     that he had not collected the swab in the case.  The statement of<\/p>\n
     the doctor does suggest that the hymen was not torn and there<\/p>\n
     were no external injuries on the body of the victim. Firstly, it is<\/p>\n
     difficult   to   rely   upon   this   expert   witness   as   there   seems   to   be<\/p>\n
     apparently   some   contradiction   and   some   unreliability   in   the<\/p>\n
     statement   of   this   witness.     Doctor   himself   has   stated   that   it   is<\/p>\n
     possible that there could be bleeding by insertion of the penis in<\/p>\n
     the   private   part   of   the   female   without   rupture   of   hymen.\n<\/p>\n
     Secondly, there was hardly any occasion for the doctor to record in<\/p>\n
     report Exhibit 31 that it was not a case of rape merely because<\/p>\n
     there were no bodily injuries and there was no discharge from the<\/p>\n
     Vagina and hymen was in tact.   The reliance by the learned trial<\/p>\n
     court mainly upon the statement of this witness is not justifiable.\n<\/p>\n
     The statement of the expert witness should be read with the other<\/p>\n
     ocular and documentary evidence on record of the case.   Merely<\/p>\n
     because there is some doubt created by the expert’s evidence in the<\/p>\n
     case   of   prosecution   it   may   not   necessarily   justify   passing   of   an<\/p>\n
     order of acquittal.   In the present case, the statement of all the<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                             20<\/span><\/p>\n
     other   witnesses   and   the   circumstantial   evidence   clearly   and<\/p>\n
     without doubt  indicate and establish the guilt of the accused.\n<\/p>\n
     14.           We may examine the law laid down by the Supreme<\/p>\n
     Court in relation to various aspects of the present case.\n<\/p>\n
     15.           It   may   be   noticed   that   the   victim   was   examined   by<\/p>\n
     another doctor after two days of the occurrence of the incident and<\/p>\n
     she  had  complained of  severe  back  ache.     This  doctor  was  also<\/p>\n
     produced  as   witness  No.9   at   Exhibit   25.    The   doctor  of  course,<\/p>\n
     admitted that he had not examined her on the point of view of<\/p>\n
     rape but stated that she had come to him on 14.8.1987 and again<\/p>\n
     on 15.8.1987.  He had collected the blood sample and given it to<\/p>\n
     the police.  He stated that the yadi (letter) of the police described<\/p>\n
     it to be a case of rape and that the victim  was complaining of back<\/p>\n
     pain and he gave her medical treatment and opined that such pain<\/p>\n
     is possible in the case of rape.  Merely because the victim was not<\/p>\n
     examined   at   the   Primary   Health   Centre   but   was   taken   to   Civil<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                             21<\/span><\/p>\n
     Hospital later will not support defence of the accused and it cannot<\/p>\n
     be attributed to the victim who had suffered on account of offence<\/p>\n
     committed by the accused.  This could hardly create doubt in the<\/p>\n
     case of the prosecution.  The Civil Surgeon had asked the PSI as to<\/p>\n
     why prosecutrix was not examined in the Primary Health Centre<\/p>\n
     and   it   had   come   on   record   that   there   was   no   female   doctor<\/p>\n
     available,   therefore,   victim   was   not   instantaneously   examined.\n<\/p>\n
     Whatever may be the reason but certainly this cannot be a ground<\/p>\n
     for giving benefit of doubt to the extent of acquittal of accused in<\/p>\n
     the case.\n<\/p>\n
     16.           It is a settled principle now that sole statement of  a<\/p>\n
     victim can be made the basis of conviction of an accused and in a<\/p>\n
     given   case   it   may   not   be   even   necessary   to   have   corroboration<\/p>\n
     from other sources provided the court finds that statement of the<\/p>\n
     witness satisfies the judicial conscience.   Statement of prosecutrix<\/p>\n
     in rape case is not less reliable than that of the injured witness.  It<\/p>\n
     would be more so where it is supported by the statement of other<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                              22<\/span><\/p>\n
     witness as well as expert evidence.  In the case of State of Punjab<\/p>\n
     v.   Gurmit   Singh   and   another,   (1996)   2   SCC   384,   the   Supreme<\/p>\n
     Court while stating the above principle of law even cautioned that<\/p>\n
     in cases involving sexual molestation, the court should deal with<\/p>\n
     such cases with utmost sensitivity and even minor contradiction or<\/p>\n
     discrepancies would not be sufficient to attach unreliability to the<\/p>\n
     statement of the victim.  In the case of Ranjit Hazarika v. State of<\/p>\n
     Assam,  (1998)8 SCC 635   while  following the above judgment,<\/p>\n
     the Supreme Court further emphasized the need for reliance to be<\/p>\n
     placed upon the statement of the prosecutrix and held as under:\n<\/p>\n
                   “6. The evidence of the prosecutrix in this case<\/p>\n
            inspires confidence.  Nothing has been suggested by the
\n            defence as to why she should not be believed or why
\n            she   would   falsely   implicate   the   appellant.     We   are<\/p>\n
            unable   to   agree   with   the   learned   counsel   for   the
\n            appellant   that   in   the   absence   of   corroboration   of   the
\n            statement of the prosecutrix by the medical opinion, the
\n            conviction of the appellant is bad.  The prosecutrix of a
\n            sex   offence   is   a   victim   of   a   crime   and   there   is   no<\/p>\n
            requirement  of  law  which requires that  her  testimony
\n            cannot   be   accepted   unless   corroborated.     In   State   of
\n            Punjab v. Gurmit Singh to which one of us (Anand, J.)
\n            was   a   party,   while  dealing   with   this   aspect   observed:<\/p><\/blockquote>\n
            (SCC pp. 395-96, para 8)<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                  23<\/span><\/p>\n
               “The courts must, while evaluating evidence,<\/p>\n
       remain alive to the fact that in a case of rape, no
\n       self-respecting   woman   would   come   forward   in   a<\/p>\n
       court jut to make a humiliating statement against
\n       her honour such as is involved in the commission
\n       of   rape   on   her.     In   cases   involving   sexual
\n       molestation,   supposed   considerations   which   have<\/p>\n
       no   material   effect   on   the   veracity   of   the
\n       prosecution   case   or   even   discrepancies   in   the
\n       statement of the prosecutrix should not, unless the
\n       discrepancies are such which are of fatal nature, be<\/p>\n
       allowed   to   throw   out   an   otherwise   reliable
\n       prosecution case.   The inherent bashfulness of the<\/p>\n
       females   and   the   tendency   to   conceal   outrage   of
\n       sexual   aggression   are   factors   which   the   courts
\n       should not overlook.   The testimony of the victim<\/p>\n
       in   such   cases   is   vital   and   unless   there   are
\n       compelling   reasons   which   necessitate   looking   for
\n       corroboration of her statement, the courts should
\n       find   no   difficulty   to   act   on   the   testimony   of   a<\/p>\n
       victim of sexual assault alone to convict an accused
\n       where   her   testimony   inspires   confidence   and   is<\/p>\n
       found to be reliable.  Seeking corroboration of her
\n       statement before relying upon the same, as a rule,
\n       in such cases amounts to adding insult to injury.\n<\/p>\n
       Why should the evidence of a girl or a woman who
\n       complains of rape or sexual molestation be viewed
\n       with doubt, disbelief or suspicion?  The court while
\n       appreciating   the   evidence   of   a   prosecutrix   may
\n       look for some assurance of her statement to satisfy<\/p>\n
       its judicial conscience, since she is a witness who is
\n       interested in the outcome of the charge levelled by
\n       her,   but  there  is  no   requirement  of   law  to  insist
\n       upon   corroboration   of   her   statement   to   base
\n       conviction of an accused.  The evidence of a victim<\/p>\n
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\n                                           24<\/span><\/p>\n
                of sexual assault stands almost on a par with the
\n                evidence of an injured witness and to an extent is<\/p>\n
                even   more   reliable.     Just   as   a   witness   who   has
\n                sustained some injury in the occurrence, which is<\/p>\n
                not found to be self-inflicted, is considered to be a
\n                good witness in the sense that he is least likely to
\n                shield the real culprit, the evidence of a victim of a
\n                sexual offence is entitled to great weight, absence<\/p>\n
                of   corroboration   notwithstanding.     Corroborative
\n                evidence   is   not   an   imperative   component   of
\n                judicial   reliance   on   the   testimony   of   the
\n                prosecutrix   is   not   a   requirement   of   law   but   a<\/p>\n
                guidance of prudence under given circumstances.
\n                It must not be overlooked that a woman or a girl<\/p>\n
                subjected to sexual assault is not an accomplice to
\n                the crime but is a victim of another person’s              lust
\n                and   it   is   improper   and   undesirable   to   test   her<\/p>\n
                evidence   with   a   certain   amount   of   suspicion,
\n                treating   her   as   if   she   were   an   accomplice.\n<\/p>\n
                Inferences have to  be drawn from  a given set  of
\n                facts and circumstances with realistic diversity and<\/p>\n
                not dead uniformity lest that type of rigidity  in the
\n                shape of rule of law is introducted through a new<\/p>\n
                form   of   testimonial   tyranny   making   justice   a
\n                casualty.   Courts cannot cling to a fossil formula
\n                and insist upon corroboration even if, taken as a<\/p>\n
                whole,   the   case   spoken   of   by   the   victim   of   sex
\n                crime strikes the judicial mind as  probable.”\n<\/p>\n
           We are in agreement with the aforesaid viewed.”\n<\/p>\n
     17.        In the case of State of Punjab v. Ramdev Singh, (2004)<\/p>\n
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\n                                             25<\/span><\/p>\n
     1 SCC 421, the Supreme Court emphasized and while interfering<\/p>\n
     with the judgment of acquittal by the High Court stated that the<\/p>\n
     greater sense of responsibility is needed to be provided in cases of<\/p>\n
     charges of sexual assault on women, particularly of tender age and<\/p>\n
     children.  The court even went to the extent and held that this is a<\/p>\n
     crime against basic human rights and violates the protection under<\/p>\n
     Article   21   and   court   should   deal   with   cases   of   sexual   offences<\/p>\n
     sternly   and   severely   to   protect   constitutional   command.     In   the<\/p>\n
     case of Dinesh Alias Buddha v. State of Rajasthan, (2006)3 SCC<\/p>\n
     771, the Supreme Court reiterated the principle that corroboration<\/p>\n
     is not a sine qua non for evidence of the victim which could be the<\/p>\n
     basis   for   conviction.     Once   as   a   whole,   there   is   sufficient<\/p>\n
     circumstantial and other evidence, conviction cannot be avoided.\n<\/p>\n
     In that case, a girl of 12 years was raped and the court held thus-\n<\/p>\n
           “8. The offence of rape occurs in Chapter XVI IPC.  It<\/p>\n
           is an offence affecting the human body.  In that chapter,
\n           there is a separate heading for “Sexual offences”, which
\n           encompasses   Sections   375,   376,   376-A,   376-B,   376-C
\n           and 376-D   IPC. “Rape” is defined in Section 375 IPC.<\/p><\/blockquote>\n
           Sections   375   and   376   IPC   have   been   substantially<\/p>\n
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\n                                        26<\/span><\/p>\n
      changed by the Criminal Law (Amendment) Act, 1983
\n      and  several  new   sections  were  introduced  by  the  new<\/p>\n
      Act i.e. Sections 376-A, 376-B, 376-C and 376-D.   The
\n      fast sweeping changes introduced reflect the legislative<\/p>\n
      intent to curb with iron hand, the offence of rape which
\n      affects the dignity of a woman.   The offence of rape in
\n      its simplest term is “the ravishment of a woman, without
\n      her consent, by force, fear or fraud”, or as “the carnal<\/p>\n
      knowledge of a woman, by force against her will”.  “Rape
\n      or raptus” is when a man hath  carnal knowledge of a
\n      woman by force and against her will (Co. Litt. 123 b);
\n      or,   as   expressed   more   fully,   “rape   is   the   carnal<\/p>\n
      knowledge of any woman, above the age of particular
\n      years, against her will; or of a woman child, under that<\/p>\n
      age,   with   or   against   her   will”   (Hale   P.C.   628).     The
\n      essential words in an indictment for rape are rapuit and
\n      carnaliter   cognovit;   but   carnaliter   cognovit,   nor   any<\/p>\n
      other  circumlocution  without   the  word  rapuit,   are not
\n      sufficient in a legal sense to express rape [1 Hen.6, 1a, 9
\n      Edw.  4, 26 a  (Hale P.C. 628)].   In the crime of rape,
\n      “carnal   knowledge”   means   the   penetration   to   any   the<\/p>\n
      slightest   degree   of   the   male   organ   of   generation
\n      (Stephen’s  Criminal   Law,    9th   Edn.,   p.   262).     In<\/p>\n
      Encyclopedia of crime and Justice  (Vol. 4, p. 1356) it is
\n      stated   “…   even   slight   penetration   is   sufficient   and
\n      emission   is   unnecessary”.     In  Halsbury’s statutes   of<\/p>\n
      England and Wales,  (4th Edn.), Vol.12, it is stated that
\n      even the slightest degree of penetration is sufficient to
\n      prove sexual intercourse.   It is violation, with violence,
\n      of   the   private   person   of   a   woman,   an   outrage   by   all
\n      means.     By   the   very   nature   of   the   offence   it   is   an<\/p>\n
      obnoxious act of the highest order.\n<\/p>\n
      9.     The physical scar may heal up, but the mental scar
\n      will always remain.  When a woman is ravished, what is
\n      inflicted is not merely physical injury but the deep sense<\/p>\n
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\n                                             27<\/span><\/p>\n
           of some deathless shame.  An accused cannot cling to a
\n           fossil formula and insist on corroborative evidence, even<\/p>\n
           if   taken  as  a  whole,   the  case  spoken  to  by  the  victim
\n           strikes a judicial mind as probable.  Judicial response to<\/p>\n
           human rights cannot be blunted by legal jugglery.”\n<\/p>\n
     18.          In the case of State of T.N v.   Ravi alias Nehru, (2006)<\/p>\n
     10 SCC, 534, the court held thus-\n<\/p>\n
           17. In  Encyclopedia of Crime and Justice  (Vol.4) at p.
\n           1356, it is stated:\n<\/p><\/blockquote>\n
                  “…..even   slight   penetration   is   sufficient   and
\n                  emission is unnecessary.”\n<\/p><\/blockquote>\n
           18. It   is   now   well-accepted   principle   of   law   that
\n           conviction   can   be   founded   on   the   testimony   of   the<\/p>\n
           prosecutrix alone unless there are compelling reasons for
\n           seeking corroboration.  It is also well-accepted principle
\n           of   law   that   corroboration   as   a   condition   for   judicial<\/p>\n
           reliance   on   the   testimony   of   the   prosecutrix   is   not   a
\n           requirement   of   law   but   a   guidance   of   prudence.     A
\n           woman   or   a   girl   subjected   to   sexual   assault   is  not   an
\n           accomplice   to   the   crime   but   is   a   victim   of   another
\n           person’ s lust and it is improper and undesirable to test<\/p>\n
           her evidence with a certain amount of suspicion treating
\n           her as if she were an accomplice. (See State of Punjab v.
\n           Gurmit Singh.)<\/p>\n<\/blockquote>\n
           19.    So also in  Ranjit Hazarika v.  State  of Assam  this<\/p>\n
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\n                                                28<\/span><\/p>\n
            Court   observed   that   non-rupture   of   hymen   or   the
\n            absence of injury on the victim’s   private parts does not<\/p>\n
            belie the testimony of the prosecutrix.\n<\/p><\/blockquote>\n
            20. The evidence of a victim of sexual assault stands
\n            on a par with the evidence of an injured witness.  Just as
\n            a witness who has sustained an injury is the best witness
\n            in the sense that he is least likely to exculpate the real<\/p>\n
            offender,  the  evidence   of   a  victim of  a  sex-offender  is
\n            entitled   to   great   weight,   absence   of   corroboration
\n            notwithstanding.  (See Bharwada Bhoginbhai hirjibhai v.
\n            State of Gujarat.)”\n<\/p><\/blockquote>\n
     19. <\/p>\n
                    As far as undue emphasis placed by the learned trial<\/p>\n
     court   on   the   statement   of   the   doctor   is   concerned,   it   is   also   a<\/p>\n
     settled   principle   that   where   the   statement   of   the   prosecution   is<\/p>\n
     corroborated by other evidence and inspires confidence, then even<\/p>\n
     non-examination   of   the   doctor   and   non-production   of   doctor’s<\/p>\n
     report in an offence under section 376 of the IPC would not be<\/p>\n
     fatal to the case of the prosecution. (State of M.P. V. Dayal Sahu,<\/p>\n
     (2005)8 SCC 122).    Similarly, in the  case  of State of Rajasthan<\/p>\n
     v.Biram Lal, (2005)10  SCC, 714, the Supreme  Court again took<\/p>\n
     the view that non-production of Chemical Analyser’s report may at<\/p>\n
     best   deprive   the   prosecution   of   the   corroborative   evidence   but<\/p>\n
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\n                                            29<\/span><\/p>\n
     where   other   evidence   is   sufficient,   it   would   not   in   any   way<\/p>\n
     prejudice   the   case   of   the   prosecution   particularly   when   the<\/p>\n
     evidence of the prosecutrix is duly supported and corroborated by<\/p>\n
     other witnesses.\n<\/p>\n
     20.          In a more recent judgment in the case of   B.C. Deva<\/p>\n
     alias Dyava v. State of Karnataka, (2007)12 SCC 122  the Supreme<\/p>\n
     Court took the view that even where a medical evidence did not<\/p>\n
     disclose evidence of sexual intercourse and where there were no<\/p>\n
     injury  marks  on the  body  of  accused or  the prosecutrix  but  the<\/p>\n
     evidence of the prosecutrix and other witnesses was found to be<\/p>\n
     cogent,  reliable,  convincing   and  trustworthy,   the  conviction  was<\/p>\n
     the correct conclusion.  The court held as under:\n<\/p>\n
           “18. The   plea   that   no   marks   of   injuries   were   found
\n           either on the person of the accused or the person of the
\n           prosecutrix,   does   not   lead   to   any   inference   that   the<\/p>\n
           accused has not committed forcible sexual intercourse
\n           on   the   prosecutrix.     Though   the   report   of   the
\n           gynaecologist pertaining to the medical examination of
\n           the prosecutrix does not disclose any evidence of sexual
\n           intercourse,   yet   even   in   the   absence   of   any<\/p>\n
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\n                                             30<\/span><\/p>\n
            corroboration of medical evidence, the oral testimony of
\n            the prosecutrix, which is found to be cogent, reliable,<\/p>\n
            convincing and trustworthy has to be accepted.\n<\/p><\/blockquote>\n
            19. Though   the   FSL   Report   marked   as   Ext.   C-1
\n            pertaining to the undergarments of the accused and the
\n            victim did not contain any seminal stains, yet the said
\n            report   cannot   be   given   any   importance   because   the<\/p>\n
            underwear of the accused was taken into possession by
\n            the police on the next day of the incident when he was
\n            arrested.     There   is   no   evidence   brought   on   record   to
\n            show that the accused handed over the same underwear<\/p>\n
            to   the   police,   which   he   was   wearing   on   the   day   of
\n            incident or he had handed over some other underwear<\/p>\n
            which   was   seized     under   mahazar   (Ext.   P-5)   by   the
\n            police.   The possibility of absence of seminal stains on
\n            petticoat of the prosecutrix which she was wearing at<\/p>\n
            the time of the incident, could not be ruled out due to
\n            the fact that the petticoat got drenched in the water and
\n            the seminal stains might have been washed away.”\n<\/p><\/blockquote>\n
     21.           A very pertinent principle was stated by the Supreme<\/p>\n
     Court   in   the   case   of  Madan   Gopal   Kakkad   v.   Naval   Dubey   and<\/p>\n
     another,   (1992)3   SCC   204   where   the   court   indicated   that   the<\/p>\n
     medical   evidence   by   itself   could   be   defective   and   could   not   be<\/p>\n
     relied upon in its entirety and held thus-\n<\/p>\n
           “34.  A medical witness called in as an expert to assist<\/p>\n
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\n                                        31<\/span><\/p>\n
      the Court is not a witness of fact and the evidence given
\n      by the medical officer is really of an advisory character<\/p>\n
      given   on   the   basis   of   the   symptoms   found     on
\n      examination.     The   expert   witness   is   expected   to   put<\/p>\n
      before the Court all materials inclusive of the data which
\n      induced him to come to the conclusion and enlighten the
\n      Court on the technical aspect of the case by explaining
\n      the terms of science so that the Court although, not an<\/p>\n
      expert may form its own  judgment on those materials
\n      after giving due regard to the expert’s opinion because
\n      once   the   expert’s   opinion   is   accepted,   it   is   not   the
\n      opinion of the medical officer but of the Court.\n<\/p>\n
            “35. Nariman,  J.  in  Queen  v.  Ahmed Ally    while<\/p>\n
      expressing his view on medical evidence has observed as
\n      follows:\n<\/p>\n
             “The   evidence   of   a   medical   man   or   other<\/p>\n
      skilled witnesses, however, eminent, as to what he
\n      thinks   may   or   may   not   have   taken   place   under
\n      particular   combination   of   circumstances,   however,
\n      confidently, he may speak, is ordinarily a matter of<\/p>\n
      mere opinion.”\n<\/p>\n
      36. Fazal Ali, J. in Pratap Misra v. State of Orissa<\/a> has
\n      stated thus :\n<\/p>\n
             “….   (I)t   is   well   settled   that   the   medical
\n             jurisprudence is not an exact science and it is
\n             indeed   difficult   for   any   Doctor   to   say   with
\n             precision   and   exactitude   as   to   when   a<\/p>\n
             particular injury was caused … as to the exact
\n             time when the appellants may have had secual
\n             intercourse with the prosecutrix”.\n<\/p><\/blockquote>\n
                                            ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                              32<\/span><\/p>\n
          37. We feel that it would be quite appropriate, in this
\n          context, to reproduce the opinion expressed by Modi in<\/p>\n
          Medical   Jurisprudence   and   Toxicology   (Twenty-first
\n          Edition) at page 369 which reads thus :\n<\/p><\/blockquote>\n
                  “Thus   to   constitute   the   offence  of   rapte   it   is
\n           not   necessary   that   there   should   be   complete
\n           penetration   of   penis   with   emission   of   semen   and<\/p>\n
           rupture  of   hymen.     Partial   penetratin   of   the  penis
\n           within the labia majora or the vulva or pudenda with
\n           or without emission of semen or even an attempt at
\n           penedtration is quite sufficeint for the purpose of the<\/p>\n
           law.  It is therefore quite possible to commit legally
\n           the offence of rape without producing any injury to<\/p>\n
           the genitals or leaving any seminal stains.  In such a
\n           case the medical officer should mention the negative
\n           facts in his report, but should not give his opinion<\/p>\n
           that nho rape had been committed.   Rape is crime
\n           and not a medical condition.   Rape is a legal term
\n           and   not   a   diagnosis   to   be   made   by   the   medical
\n           officer treating the victim.   The only statement that<\/p>\n
           can be made by thge medical officer is that there is
\n           evidence of recent sexual activity.  Whether the rape<\/p>\n
           has   occurred   or   not   is   a   legal   conclusion,   not   a
\n           medical one.”\n<\/p><\/blockquote>\n
     38. In  Parikh’s  Textbook   of   Medical   Jurisprudence   and
\n     Toxicology, the following passage is found:\n<\/p>\n
                        “Sexual intercourse.-  In law,  this term is<\/p>\n
                 held   to   mean   the   slightest   degree   of
\n                 penetration of the vulva by the penis with or
\n                 without   emission   of   semen.     It   is   therefore
\n                 quite possible to commit legally the offence of
\n                 rape   without   producing   any   injury   to   the<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                       33<\/span><\/p>\n
            genitals or leaving any seminal stains.”\n<\/p><\/blockquote>\n
      39. In  Encyclopedia   of   Crime   and   Justice   (Vol.4)   AT
\n      PAGE 1356, it is stated:\n<\/p>\n
             “….. [E]ven slight penetration is sufficient and
\n             emission is unnecessary.”\n<\/p>\n
      40. In  Halsbury’s  Statutes   of   England   and   Wales,
\n      (Fourth Edition), Volume 12, it is stated that even the
\n      slightest   degree   of   penetration   is   sufficient   to   prove
\n      sexual intercourse within the meaning of Section 44 of<\/p>\n
      the Sexual Offences Act, 1956.   Vide (1) R. v. Hughes;
\n      (2) R. v. Lines and R. v. Nicholls.\n<\/p>\n
               ig           s   Criminal   Law,   (Twenty-second\n      41. See   also  Harris'\n      Edition) at page 465.\n             \n<\/pre>\n
      42. In American Jurisprudence, it is stated that slight
\n      penetration is sufficient to complete the crime of rape.
\n      Code 263 of Penal Code of California reads thus:\n<\/p>\n
            “Rape;   essentials   –   Penetration   sufficient.-  The<\/p>\n
            essential guilt of rape consists in the outrage to
\n            the   person   and   feelings   of   the   victim   of   the
\n            rape.  Any sexual penetration, however, slight,<\/p>\n
            is sufficient to complete the crime.”\n<\/p><\/blockquote>\n
      43. The   First   Explanation   to   Section   375   of   Indian
\n      Penal Code which defines `Rape’      reads thus:\n<\/p>\n
            “Explanation.-   Penetration   is   sufficient   to
\n            constitute   the   sexual   intercourse  necessary   to
\n            the offence of rape.”\n<\/p><\/blockquote>\n
                                            ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                            34<\/span><\/p>\n
           44. In   interpreting   the   above   explanation   whether
\n           complete   penetration   is   necessary   to   constitute   an<\/p>\n
           offence   of   rape,   various   High   Courts   have   taken   a
\n           consistent   view   that   even   the   slightest   penetration   is<\/p>\n
           sufficient to make out an offence of rape and the depth
\n           of penetration is immaterial.  Reference may be made to
\n           (1) Natha v. Emperor<\/a>; (2) Abdul Majid v. Emperor<\/a>; (3)
\n           Mst. Jantan v. Emperor; (4) Ghanashyam Misra v. State;\n<\/p><\/blockquote>\n
           (5) Das Bernard v. State.  In re Anthony it has been held
\n           that   while   there   must   be   penetration   in   the   technical
\n           sense, the slightest penetration would be sufficient and a
\n           complete act of sexual intercourse is not at all necessary.\n<\/p><\/blockquote>\n
           In Gour’ s The Penal Law of India, 6th Edn. 1955 (Vol. II)
\n           page 1878, it is observed, “Even vulval penetration has<\/p>\n
           been held to be sufficient for a conviction of rape.”\n<\/p><\/blockquote>\n
     22.          In the light of these principles, we have to examine the<\/p>\n
     facts of the present case.   There is no doubt that other witnesses<\/p>\n
     including   the   report   of   the   Chemical   Analyser   have   fully<\/p>\n
     corroborated the statement of the victim in its entirety.   Merely<\/p>\n
     because there are some small discrepancies or improvement in the<\/p>\n
     statements would be no ground to disbelieve the statement of the<\/p>\n
     victim and give advantage of acquittal to the accused.  The doctor’s<\/p>\n
     statement is not the ultimate test to prove case of rape.  The court<\/p>\n
     could not rely upon the statement of doctor when the entire case<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                               35<\/span><\/p>\n
     of the prosecution  is otherwise supported by a cogent, reliable and<\/p>\n
     trustworthy evidence.  There is no reason as to why the prosecutrix<\/p>\n
     should come out with false story at this tender age and suffer the<\/p>\n
     pain   and   agony   of   being   subjected   to   such   a   henious   offence.\n<\/p>\n
     According to the doctor the hymen was not torn and there was no<\/p>\n
     apparent injuries on the body of the victim.\n<\/p>\n
     23.           The doctor has nowhere stated that upon examination,<\/p>\n
     he   was   of   the   opinion   that   there   was   no   penetration   of   in   any<\/p>\n
     nature   whatsoever   in   relation   to   the   victim.     Merely   because<\/p>\n
     hymen was not torn and there was no bodily injury by itself would<\/p>\n
     be no ground to reject the case of the prosecution particularly in<\/p>\n
     view of unequivocal and trustworthy statement of the victim and<\/p>\n
     the other witnesses and more particularly in view of the statement<\/p>\n
     of the panchas and Chemical Analyser’s report Exhibit 41.\n<\/p>\n
     24.           The   evidence   in   the   present   case   sufficiently   and<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                             36<\/span><\/p>\n
     undoubtedly indicates towards the guilt of the accused leaving no<\/p>\n
     scope to grant benefit of doubt to the accused. The accused had<\/p>\n
     taken the victim on his cycle at the request of the brother of the<\/p>\n
     victim but instead of dropping her at the stated place, took her to<\/p>\n
     his  house  and  then raped her. The blood stained clothes  of  the<\/p>\n
     accused, the papers torn from an exercise book which was stained<\/p>\n
     with blood and semen were recovered and subjected to Chemical<\/p>\n
     Analysis which fully corroborates the statement of the victim. It is<\/p>\n
     interesting   to   note   that   in   the   statement   made   by   the   accused<\/p>\n
     under section 313 of Criminal Procedure Code, he alleged  that the<\/p>\n
     case   of   the   prosecution   was   false   but   even   opted   to   offer   no<\/p>\n
     explanation as to the fact that blood and semen  of the same group<\/p>\n
     as that of the accused was found on the clothes and papers.  Even<\/p>\n
     he denied in answer to question No.38 that his blood group was<\/p>\n
     `A’. Question No. 40 he answered as follows:\n<\/p>\n
            “Q.40  :-It is in evidence that your semen was collected
\n            and was sent to C.A. It also content blood group `A’    ,
\n            what you have to way?\n<\/p><\/blockquote>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                            37<\/span><\/p>\n
            A.       :-It is false.”<\/p>\n
     25.           This shows that the accused has just taken a stand of<\/p>\n
     total denial during the trial before the court.   We are unable to<\/p>\n
     accept this behaviour of the accused that he even denied collection<\/p>\n
     of   semen   and   blood   which   was   established     by   independent<\/p>\n
     witness i.e. the doctor.\n<\/p>\n
     26.           The   Investigating   Officer   has   provided   a   complete<\/p>\n
     chain of events which resulted in commission of the crime which is<\/p>\n
     duly supported by trustworthy evidence.   The purpose of section<\/p>\n
     313 Criminal Procedure Code  is to put the evidence to the accused<\/p>\n
     and provide him an opportunity of explaining his conduct or offer<\/p>\n
     his case  truthfully before the court.  It is difficult for the court to<\/p>\n
     lose sight of the fact that here is a girl victim of the age of 11 to 13<\/p>\n
     years     who   has   been   subjected   to   such   sexual   assault   by   the<\/p>\n
     accused.  The accused was known to the family of the victim and<\/p>\n
     that is why the brother of the victim requested him to carry her on<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                            38<\/span><\/p>\n
     his cycle and requested that she be dropped at the spot which the<\/p>\n
     accused did not accede to and opted to take her to his house where<\/p>\n
     he committed rape upon her.   The reliance placed by the counsel<\/p>\n
     appearing for the respondent upon the judgment of the Supreme<\/p>\n
     Court in a case of Ghurey Lal (supra)  is  hardly of any help to the<\/p>\n
     accused.  It is true that Supreme Court has held that the finding of<\/p>\n
     acquittal cannot be lightly interfered by the appellate court but has<\/p>\n
     carved out the exception where the court should not hesitate to<\/p>\n
     convert acquittal into conviction in the facts and circumstances of<\/p>\n
     the   given   case.   Some   of   the   circumstances   spelt   out   by   the<\/p>\n
     Supreme Court are :\n<\/p>\n
           (iii) The   trial   court’s
\n                                       judgment   is   likely   to   result   in
\n           “grave miscarriage of justice”;\n<\/p><\/blockquote>\n
           (v) The   trial   court’s
\n                                     judgment   was   manifestly   unjust
\n           and unreasonable;\n<\/p><\/blockquote>\n
           (vi) The   trial   court   has   ignored   the   evidence   or<\/p>\n
           misread the material evidence or has ignored material
\n           documents like dying declarations\/report of the Ballistic
\n           expert, etc.<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                              39<\/span><\/p>\n<\/blockquote>\n
     27.           In our considered view, the trial court has ignored the<\/p>\n
     circumstantial   evidence   including   the   report   of   the   Chemical<\/p>\n
     Analyser as well as evidence of other witnesses without stating any<\/p>\n
     appropriate   reasons.     It   will   be   a   case   of   grave   miscarriage   of<\/p>\n
     justice if the accused who has committed a rape upon 8 to 11 years<\/p>\n
     old girl is permitted to go scot free just because some part of the<\/p>\n
     doctor’s  statement does not support the case of the prosecution.\n<\/p>\n
     The presence of semen of blood group of the accused on some of<\/p>\n
     the incriminating articles seized was a sufficient proof which fully<\/p>\n
     corroborate the statement of the victim as well as other witnesses.\n<\/p>\n
     The trial court should have examined the cumulative effect of the<\/p>\n
     entire ocular and documentary evidence placed before it.\n<\/p>\n
     28.           The accused was also charged with an offence under<\/p>\n
     section  57 of  the Bombay Children  Act,  1948 which  Act was  in<\/p>\n
     force as on the date of commission of offence viz. August, 1987.\n<\/p>\n
     On   the   same   evidence,   the   petitioner   has   to   be   held   guilty   of<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                              40<\/span><\/p>\n
     commission of the said offence in asmuch as he has indulged in<\/p>\n
     immoral behaviour with the girl under the age of 18 years and is<\/p>\n
     liable to suffer imprisonment as described thereunder.  The age of<\/p>\n
     the girl has been proved beyond doubt to be under 18 years and<\/p>\n
     we have already found that accused had committed rape upon the<\/p>\n
     victim.\n<\/p>\n
     29.           In view of our above detailed discussion, we are of the<\/p>\n
     considered   view   that   the   accused   is   guilty   of   the   offence<\/p>\n
     punishable under section 376 of IPC and Section 57 of Bombay<\/p>\n
     Children Act, 1948 and the question of considering the alternative<\/p>\n
     argument that the accused should be punished under section 354<\/p>\n
     read   with   section   511   of   IPC   does   not   require   any   further<\/p>\n
     consideration.     As  we   find   that   the   accused   is  guilty   of   offence<\/p>\n
     under section 376 of IPC and Section 57 of Bombay Children Act,<\/p>\n
     1948,   we   direct   the   matter   be   listed   for   awarding   quantum   of<\/p>\n
     sentence.  Order accordingly.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>
\n                                              41<\/span><\/p>\n
                                                         CHIEF JUSTICE<\/p>\n
                                                  S.C. DHARMADHIKARI, J.\n<\/p>\n
     uday\/judgment09\/criapp192-09.sxwfinal<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:35:18 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The State Of Maharashtra vs Suresh Shankar Jadhav on 7 May, 2009 Bench: S.C. Dharmadhikari 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.192 OF 1990 (By State against acquittal) The State of Maharashtra ).. Appellant Versus Suresh Shankar Jadhav, ) Age : 21 years, R\/o. […]<\/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-234349","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe State Of Maharashtra vs Suresh Shankar Jadhav on 7 May, 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\/the-state-of-maharashtra-vs-suresh-shankar-jadhav-on-7-may-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Maharashtra vs Suresh Shankar Jadhav on 7 May, 2009 - 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