{"id":236737,"date":"2010-03-12T00:00:00","date_gmt":"2010-03-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/colony-durgapur-vs-unknown-on-12-march-2010"},"modified":"2016-01-28T02:08:46","modified_gmt":"2016-01-27T20:38:46","slug":"colony-durgapur-vs-unknown-on-12-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/colony-durgapur-vs-unknown-on-12-march-2010","title":{"rendered":"Colony (Durgapur vs Unknown on 12 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Colony (Durgapur vs Unknown on 12 March, 2010<\/div>\n
Bench: A.P. Bhangale<\/div>\n
                                                                 1\n\n\n                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                                                   \n                                     BENCH AT NAGPUR, NAGPUR.\n\n                                    CRIMINAL APPEAL NO:   450   \/2009\n\n\n\n\n                                                                                     \n                                                                                    \n    Vishnudas    s\/o Uddhao  Bhagade\n    Aged about : 54 years\n    Occu: Service ( CTPS Chandrapur)\n    R\/o   CTPS Colony, \n    Qrtr.No. E-32\/1,   Urjanagar\n\n\n\n\n                                                                    \n    Colony  (Durgapur)\n    Police Station: Ramnagar             \n    Tah. & Dist. Chandrapur.         ...            ...                                          APPELLANT\n                                        \n                      v e r s u s\n\n    The State of Maharashtra\n    Through the PSO Ramnagar\n    Police Station Ramnagar\n       \n\n\n    Tah.& Dist. Chandrapur.                                 ..                ..                 ...RESPONDENT\n    \n\n\n\n    ............................................................................................................................\n                        Mr  D B Walthare,   Advocate for appellant\n                       Mr   K S Dhote, APP  for Respondent \n\n\n\n\n\n    ------------------------------------------------------------------------------------------------------------\n\n                                                            CORAM:   A.P.BHANGALE, J.\n<\/pre>\n
                                                            DATED:     12th March,   2010\n\n\n\n\n\n     ORAL JUDGMENT :   \n\n\n     1                 The instant Appeal stems from the   judgment   and order dated \n\n     19th  August,   2009         passed   in   Sessions   Case   No.   121\/2008     by   learned \n\n     Sessions   Judge,   Chandrapur,   whereby     the   appellant     was   convicted     as \n\n     under :\n\n\n\n\n                                                                                      ::: Downloaded on - 09\/06\/2013 15:42:54 :::<\/span>\n                                                    2<\/span>\n\n\n\n\n                                                                                             \n    For offence under            Rigorous                    Fine                 In default R.I.\n\n\n\n\n                                                                     \n         section               imprisonment                  (Rs)\n    376 IPC                 Seven years              3000\/-                   Six months\n    342 IPC                 One year                 1000\/-                   Three months\n    201 IPC                 Three years              1000\/-                   Three months\n\n\n\n\n                                                                    \n    All sentences were directed to run  concurrently.\n\n    2             Facts  briefly       mentioned   are   :     Victim   school   girl   \"S\"   (PW   2) \n\n\n\n\n                                                      \n    who was   born on   21.03.1993,     was studying with Prabodhini ( daughter \n                                 \n    of   the   appellant   ).         On   8.7.2008     at     about   11.30   a.m.,   she   went   to \n\n<\/pre>\n
    Prabodhini’s house.  Her father (accused ) informed “S”   that Prabodhini  had <\/p>\n
    gone to attend the School.    At that time  it was  raining   and, therefore “S”\n<\/p>\n
    (victim)  requested the accused to provide an  umbrella to her.   The accused <\/p>\n
    told  “S”   that umbrella  was taken away by  Prabodhini  and asked “S” to sit <\/p>\n
    inside the   house as it was raining.       “S” went inside house and sat on the <\/p>\n
    sofa.       The accused   then offered   one book to “S”   and asked her to   go <\/p>\n
    through the same and then asked her whether she wants  water for drinking.\n<\/p>\n
    “S” refused.  The   accused went ahead ; closed the  front door of the house by <\/p>\n
    bolting       it from inside.     There was   nobody       else in the house.     The <\/p>\n
    accused came near “S”,  gagged  her mouth   and made her to lie down  on <\/p>\n
    cot, lifted his lungi   by one hand,  removed her  inner-wear and inserted his <\/p>\n
    private part in her private part.     While “S”  tried to push  the accused, she <\/p>\n
    could not.   After some time she succeeded to push the accused.     “S” found <\/p>\n
    sticky substance and blood oozing out from her  private part.    The  accused <\/p>\n
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\n                                             3<\/span><\/p>\n
    asked “S” to wash her private part.    Victim who was frightened to the hilt, <\/p>\n
    washed it in  the bathroom.  The accused threatened “S” not to disclose the <\/p>\n
    incident to anybody  else she will be   defamed.   Victim who rushed  outside, <\/p>\n
    tried to contact  by phone to her father  from a nearby STD booth   but her <\/p>\n
    father     was on duty and as such could not be contacted.     Her School bag <\/p>\n
    was inside the house of the accused. Hence she stood outside the house as she <\/p>\n
    had no courage to enter in house .    Later when mother of Prabodhini came, <\/p>\n
    she asked the  victim to come inside as it was drizzling  and then  gave clothes <\/p>\n
    of  Prabodhini  to  wear  as clothes of the victim were  wet due to  incessant <\/p>\n
    rain.    Prabodhini   who returned   from the school,  asked “S” as to why  she <\/p>\n
    did not   attend the School.       “S” told   her that she was late and could not <\/p>\n
    attend and thereafter narrated the incident to Prabodhini who went inside the <\/p>\n
    house and brought school bag  and  wet clothes of “S”    and also narrated the <\/p>\n
    incident to her     mother.       Mother of   Prabodhini asked “S” not to disclose <\/p>\n
    the incident to anybody, and then  Prabodhini  and her mother accompanied <\/p>\n
    “S” to her house.       As the   accused     had threatened “S”,   she could not <\/p>\n
    disclose the incident to   her mother.     Later “S” disclosed it to her friends, <\/p>\n
    Neha and her mother and Vedashree.       After “S” returned  from the school <\/p>\n
    her mother inquired  with her about the incident  and she narrated it to her <\/p>\n
    mother.   Her mother   had gone to  question the accused about it but he  was <\/p>\n
    not at home.   On the next  day,  mother of “S”    along with few ladies   again <\/p>\n
    went to the house of the accused.   In the evening “S” along with her parents <\/p>\n
    proceeded to Police Station to lodge  complaint. The  Police had referred “S”\n<\/p>\n
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\n                                                   4<\/span><\/p>\n
    to the General Hospital, Chandrapur   for medical examination.   Thereafter, <\/p>\n
    statement of “S”   was recorded.     The incident   was reported by Smt.Smita <\/p>\n
    (PW   1),     mother   of   the   victim     as   FIR   No.     245\/2008   on   12.7.2008   at <\/p>\n
    Ramnagar Police Station in Chandrapur,  who registered offences punishable <\/p>\n
    under section 342   and   376  of the  IPC.    API   Shri  M M Dhande (PW 8) <\/p>\n
    recorded complaint (FIR  :Exh.32)  and   started investigation.    He referred <\/p>\n
    the victim girl for medical examination  to General Hospital, Chandrapur. He <\/p>\n
    arrested the accused on 12.7.2008 under arrest memo (Exh.14)  and sent him <\/p>\n
    to General Hospital   for medical examination.   Shri Dhande   API  recorded <\/p>\n
    the  statement of victim  and  visited the spot pointed out by the victim   and <\/p>\n
    prepared spot panchnama   (Exh.51).     During  the course of investigation, <\/p>\n
    he received articles i.e. vaginal swab, blood sample,  pubic hair on 13.7.2008 <\/p>\n
    which   were   seized   under   Panchnama     (Exh.18)   on   15.7.2008.     He   also <\/p>\n
    received   sample   of   blood,     pubic   hair   of   the   accused   and   seized     under <\/p>\n
    Panchnama   (Exh.21).       The   seized   articles     were   sent   to   C.A.   under <\/p>\n
    forwarding letter (Exh.22) on 1.8.2008.  C.,A. reports  were received (Exh.25 <\/p>\n
    colly).     The accused was charge-sheeted before the Chief Judicial Magistrate <\/p>\n
    Chandrapur  on 10.10.2008 who committed the case to the Court of  Sessions <\/p>\n
    on 4.11.2008.\n<\/p>\n
    3             Charge (Exh.5) for offence punishable   under sections 376, 342, <\/p>\n
    201 IPC    was read over  and explained   to the accused,  to which he pleaded <\/p>\n
    not guilty  and claimed to be tried.\n<\/p>\n
    4             The   prosecution  examined       a  total   of     eight       witnesses  and <\/p>\n
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\n                                                   5<\/span><\/p>\n
    closed evidence.    The defence  admitted genuineness of documents  listed at <\/p>\n
    Exh.9     and examined three witnesses   who   were Prabodhini (daughter of <\/p>\n
    accused),     Smt   Bangubai     (mother   in   law   of   the   accused   );     and       Rana <\/p>\n
    Hatesingh ( friend of the accused).\n<\/p>\n
    5             In his  statement   under section 313 of Cr.P.C.  the  evidence that <\/p>\n
    in 2008 the victim “S”,     aged 15 years  was  studying  in 10 th standard  in <\/p>\n
    Vidya   Niketan     Vidyalaya,     Urjanagar,       Chandrapur   in   the   same   class   of <\/p>\n
    Prabodhini (daughter of the accused ) is not in dispute.\n<\/p>\n
    6             Learned  Sessions Judge, Chandrapur,    upon recording evidence <\/p>\n
    and   hearing   the   parties   concluded   that   the   accused   committed   heinous <\/p>\n
    offence punishable under sections 376, 342 read with with Section 201 IPC <\/p>\n
    and recorded sentences  accordingly.\n<\/p>\n
    7             Learned  Advocate for the appellant submitted that the finding of <\/p>\n
    conviction is unreasonable  and not justified  as according to him, the incident <\/p>\n
    was not proved by reliable and independent  evidence.     He also submitted <\/p>\n
    that the evidence of the victim girl was not trustworthy  for to base conviction <\/p>\n
    upon it.    Learned Advocate  contended that  the evidence of victim  suffered <\/p>\n
    from   vice   of   improvements   and   her   evidence   without     independent <\/p>\n
    corroborating  evidence ought not  to have been accepted by the learned trial <\/p>\n
    Judge.     He   further     submitted   that   the   incident     as   alleged   occurred   on <\/p>\n
    8.7.2008,   but  it was reported on 12.7.2008  ; hence delay    in reporting the <\/p>\n
    incident was not   explained.   It   is   also contended that the  provisions  of <\/p>\n
    Section 164-A  Cr.P.C.  were not complied  before  the medical examination of <\/p>\n
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\n                                                    6<\/span><\/p>\n
    victim girl   as her consent   was not   obtained       in writing.       According to <\/p>\n
    learned Advocate,   the accused was entitled   to claim benefit   of doubt   for <\/p>\n
    contradictions   in   evidence,   improvements     over   oral   report,   and   lack   of <\/p>\n
    observance  of  laid  down   procedure      u\/s 164- A  of  the  Cr.P.C.   Learned <\/p>\n
    Advocate   submitted that victim   stated that after the incident of rape,   she <\/p>\n
    tried to contact her father from STD     booth but owner of  STD booth was <\/p>\n
    not   examined     to     corroborate     the   testimony     of   “S”   in   this   regard   and, <\/p>\n
    therefore,     prosecution   did suppress   best evidence     that could have been <\/p>\n
    led.    Learned Advocate   made  reference to plethora  of rulings in support of <\/p>\n
    his submissions to argue that the testimony of “S”     required     independent <\/p>\n
    corroboration       and   the   trial   Court   erred   in   appreciating     the   evidence   of <\/p>\n
    witnesses.    He, therefore, urged  to set aside the conviction  and to acquit the <\/p>\n
    accused.\n<\/p>\n
    8             Learned   APP,   on   the   other   hand,   supported   the   impugned <\/p>\n
    judgment and order contending that   the   trial Court     had   considered the <\/p>\n
    entire evidence including defence evidence   in details to conclude that the <\/p>\n
    appellant  was  guilty of  charges   framed   against him.  The rulings  relied <\/p>\n
    upon by the parties were also perused  and referred to in the light   of penal <\/p>\n
    provisions and the legal position.   According to him, no case is made out to <\/p>\n
    disturb  the findings of guilt.\n<\/p>\n
    9             I  have  heard   submissions at  the   Bar    and   also  perused   written <\/p>\n
    submissions placed on record as also the number of rulings cited     by the <\/p>\n
    parties.\n<\/p>\n
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\n                                                    7<\/span><\/p>\n
    10            The  prosecution has relied upon   evidence  of   “S”   prosecutrix <\/p>\n
    (PW   2)     to   prove   the   incident   of   rape   and   to   corroborate     her     evidence <\/p>\n
    examined  Smt. Smita  (PW 1)  who   is mother of prosecutrix,  Ujjawala (PW <\/p>\n
    3)  who friend of  Smt.Smita, Vedashree  (PW 6)   and Neha (PW 7) who are <\/p>\n
    friends  of   victim  to  when  victim    had   narrated   the  incident  of  rape.    The <\/p>\n
    prosecution also proved Kumari “S”‘s         date of birth       as     29.3.1993 by <\/p>\n
    examining Municipal Clerk (PW 4)    to positively  establish  that victim  was <\/p>\n
    below   16 years of age on the date of incident.   Investigating Officer Shri <\/p>\n
    Madhav     (PW 8) was examined   to establish   the investigation done in the <\/p>\n
    case.   The   accused   chose   to   lead   defence   evidence   and   examined   three <\/p>\n
    witnesses who are daughter, mother -in-law  and a  friend of the accused. In <\/p>\n
    his statement u\/s 313  of the Cr.P.C., the  accused did not  dispute  that victim <\/p>\n
    was aged about 15 years  studying in 10th standard in Vidyaniketan  Vidyalaya <\/p>\n
    in Urja Nagar,  Chandrapur   along with his daughter Prabodhini  and the fact <\/p>\n
    that he resided in Urja Nagar.   The accused defended    the prosecution case <\/p>\n
    on the ground that  he is falsely implicated because he had opposed  mother <\/p>\n
    of   victim   (PW   1)   while   she   contested   in   Gram     Panchayat   elections.   The <\/p>\n
    suggestions     in   this   regard     were   denied   by   PW     1     stating   that   Gram <\/p>\n
    Panchayat elections were held     after the complaint was filed.   The accused <\/p>\n
    also sought  to prove   that there was alleged  incident of riot when victim’s <\/p>\n
    mother     with   her   friends   (PW   3)     etc.   visited   house   of   the   accused     and <\/p>\n
    questioned   him about incident and allegedly   assaulted him for which he <\/p>\n
    lodged  complaint  with police.   The entire evidence and defence  contentions <\/p>\n
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\n                                                     8<\/span><\/p>\n
    which were raised in this appeal, if  considered in totality,  one  cannot  find <\/p>\n
    that any benefit can be extended   to the accused. It is true that there was four <\/p>\n
    days  delay to report the incident to the Police Station but it  was not fatal in <\/p>\n
    the facts  and circumstances of the case. The victim girl was threatened by the <\/p>\n
    accused not to disclose the incident  to anybody . She had naturally   disclosed <\/p>\n
    it to her girl friends and mother of her   girl friend. Immediately   after the <\/p>\n
    incident,   she tried her level best   to contact her father from nearby       STD <\/p>\n
    booth  but could  not .   The mother of  victim  came to know    of the incident <\/p>\n
    from Ujjawala (PW 3) who is mother of victim’s girl friend  and then inquired <\/p>\n
    with   the victim. She had also decided to question  about the incident  to the <\/p>\n
    accused who offered his apology   for the incident.   In these circumstances <\/p>\n
    there was no unreasonable  delay  to report the incident.\n<\/p>\n
    11            The trial Court could not be blamed for relying  upon genuineness <\/p>\n
    of   the   documentary     evidence   tendered   by   the   prosecution   which   was <\/p>\n
    admitted by the defence in view of   Section 294   of the   Cr.P.Code, as any <\/p>\n
    such   document   may be   read in evidence   in trial without   insisting upon <\/p>\n
    evidence of signatory.\n<\/p>\n
    12            When     a   girl   below     16   years     of   age   is       sexually     ravished <\/p>\n
    corroboration   to     her   evidence         about   the   rape   is   not   always   essential, <\/p>\n
    although  under certain circumstances  when    victim’s evidence  is not  safely <\/p>\n
    reliable,       prudence       may   demand   necessity     of   corroboration   to   her <\/p>\n
    testimony.     Normally in Indian society,   a girl would not venture   to make <\/p>\n
    such serious accusations which may defame the unmarried girl  and ruin her <\/p>\n
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\n                                                    9<\/span><\/p>\n
    prospects     of   finding     suitable     groom   in   life.       In   non-permissive   Indian <\/p>\n
    society, an unmarried  girl   would be most reluctant to level such  accusations <\/p>\n
    that  too  against father    of  her  school-mate.      Every unmarried        girl  has <\/p>\n
    chastity   dear to her heart and would not normally     disclose such incident <\/p>\n
    which can lead to her defamation  or ostracization  by the society. Therefore, <\/p>\n
    like an injured witness in the criminal trial, her testimony   is entitled to a <\/p>\n
    great   weight.   Credibility     of   the   prosecutrix   in   the   present   case   remained <\/p>\n
    unshaken.       There   was   sufficient   corroboration   to   her   testimony     on   the <\/p>\n
    record.     The   evidence   of   the   victim   girl   was   corroborated   by   her   mother, <\/p>\n
    friends,   and   mother   of   her   friend.     Their   evidence   read   together   appears <\/p>\n
    credible and trustworthy.   Medical  witness was not examined in this case as <\/p>\n
    the defence did not dispute genuineness of medico -legal certificates tendered <\/p>\n
    by the prosecution. Therefore, much in defence can   not be said about the <\/p>\n
    procedure stated under section 164-A     Cr.P.C. as the Doctor   was neither <\/p>\n
    summoned nor examined   by the defence, although   defence chose to lead <\/p>\n
    evidence in this case, one  cannot  accept the defence that the appellant was <\/p>\n
    falsely implicated. Learned  Advocate  for appellant  also tried to submit that <\/p>\n
    the trial Court   did not record statement of the accused but   a Clerk of the <\/p>\n
    Court   recorded   it.       This   submission   appears     bald   and   result   of     an <\/p>\n
    afterthought and must be  rejected  as baseless and groundless. The   defence <\/p>\n
    evidence  was  led and there is nothing  to believe    that the  accused would <\/p>\n
    sign each page when  Court did not question  him in statement under section <\/p>\n
    313 of Cr.P.C.\n<\/p>\n
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\n                                                    10<\/span><\/p>\n
    13            Learned counsel  for appellant  placed reliance on Jogi Dan and  <\/p>\n
    others  vs. State of Rajasthan<\/a> (2004 Cri.L.J.  1726) , in order to lay stress <\/p>\n
    on legal aspect with respect to appreciation of evidence of the prosecutrix.  He <\/p>\n
    further relied on   Kiran Yadav   vs.   State of Bihar   (2004 Cri.L.J. 1711) <\/p>\n
    which is the case of   delay in     lodging   the FIR.   He pressed into service <\/p>\n
    Vimal Suresh Kamble   vs.     Chaluverapinake   Apal  and<\/a> another  (2003  <\/p>\n
    Cri.L.J.\/   910),  in   order   to   contend   that   in   view   of     unreliable   , <\/p>\n
    uncorroborated  testimony of  prosecutrix and her highly  unnatural  conduct, <\/p>\n
    no  conviction can be  based.\n<\/p>\n
    14            The   rulings   cited   by   the   learned   Advocate   for   defense   are   not <\/p>\n
    attracted   to   the   facts   and   circumstances   of   the   present   case   to   rescue   the <\/p>\n
    appellant from the clutches of law. He had taken disadvantage   of situation <\/p>\n
    and   in wrongful confinement, committed rape upon minor girl     below 16 <\/p>\n
    years   of   age,       who   was   the   same   age   as   of   his   school   going   unmarried <\/p>\n
    daughter studying  in the same class.  He also tried to ensure  that evidence <\/p>\n
    may disappear  by asking  the victim  to wash her private part.  The trial Court <\/p>\n
    did consider the entire evidence to reach  a right conclusion. The gravity  of <\/p>\n
    the offences do not   warrant   any sympathy or generosity   to award lesser <\/p>\n
    sentence.   The Appeal is without merit and  deserves to be dismissed. In the <\/p>\n
    result,  the Appeal is dismissed.\n<\/p>\n
                                                                                    JUDGE<\/p>\n
    sahare<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 15:42:54 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Colony (Durgapur vs Unknown on 12 March, 2010 Bench: A.P. Bhangale 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR. CRIMINAL APPEAL NO: 450 \/2009 Vishnudas s\/o Uddhao Bhagade Aged about : 54 years Occu: Service ( CTPS Chandrapur) R\/o CTPS Colony, Qrtr.No. E-32\/1, Urjanagar Colony (Durgapur) Police […]<\/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-236737","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nColony (Durgapur vs Unknown on 12 March, 2010 - 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\/colony-durgapur-vs-unknown-on-12-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Colony (Durgapur vs Unknown on 12 March, 2010 - 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