{"id":24820,"date":"2009-07-28T00:00:00","date_gmt":"2009-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/asaram-vs-the-state-of-maharashtra-on-28-july-2009"},"modified":"2018-12-12T08:02:18","modified_gmt":"2018-12-12T02:32:18","slug":"asaram-vs-the-state-of-maharashtra-on-28-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/asaram-vs-the-state-of-maharashtra-on-28-july-2009","title":{"rendered":"Asaram vs The State Of Maharashtra on 28 July, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Asaram vs The State Of Maharashtra on 28 July, 2009<\/div>\n
Bench: V.R. Kingaonkar<\/div>\n
                                    1\n\n\n                             REPORTED\n\n\n\n\n                                                                  \n            IN THE HIGH COURT OF JUDICATURE AT\n\n\n\n\n                                          \n                               BOMBAY\n\n                       BENCH AT AURANGABAD.\n\n\n\n\n                                         \n                CRIMINAL APPEAL NO.143          OF 2007.\n\n     Asaram S\/o Rangnath Jadhav,\n     Age 38 years, Occ.Labour,\n\n\n\n\n                            \n     R\/o Kesapuri Camp,\n     Tq.Majalgaon, Dist. Beed.             ... Appellant.\n                \n               \n                               Versus\n\n     The State of Maharashtra              ... Respondent.\n\n                                    ...\n      \n\n\n     Mr.B.N.Palve, advocate for the appellant.\n   \n\n\n\n     Mrs.R.D. Reddy, A.P.P. for the State.\n\n                                    ...\n\n\n\n\n\n                                CORAM : V.R.KINGAONKAR,J.\n<\/pre>\n
                                Date : 28.07.2009.\n<\/p>\n
     ORAL JUDGMENT<\/p>\n
     1.          Challenge in this appeal is to judgment<\/p>\n
     rendered   by   learned   Additional         Sessions         Judge,<\/p>\n
     Majalgaon, in Sessions Case No.34\/2006, whereby<\/p>\n
     the   appellant   has   been       convicted      for      offences<\/p>\n
     punishable U\/ss 376, 377, 342, 323 and 506 of the<\/p>\n
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\n                                     2<\/span><\/p>\n
     I.P.C. and has been sentenced to undergo rigorous<\/p>\n
     imprisonment for ten (10) years and to pay fine<\/p>\n
     of Rs.1,000\/- (Rupees one thousand), in default<\/p>\n
     to undergo rigorous imprisonment for three (3)<\/p>\n
     months on first count, rigorous imprisonment for<\/p>\n
     seven (7) years and to pay fine of Rs.1,000\/-\n<\/p>\n
     (Rupees     one   thousand),       in    default         to     undergo<\/p>\n
     rigorous imprisonment for three (3) months on 2nd<\/p>\n
     count, to undergo rigorous imprisonment for six<\/p>\n
     (6) months on 3rd count, to undergo imprisonment<\/p>\n
     for three (3) months on 4th count and to undergo<\/p>\n
     rigorous imprisonment for six (6) months on the<\/p>\n
     5th    count.      The    substantive            sentences           were<\/p>\n
     directed to run concurrently.\n<\/p>\n
     2.          The hapless victim is a minor girl. Her<\/p>\n
     father is an agricultural labour.                  Her father was<\/p>\n
     engaged by one Bapurao Gawali to work as a labour<\/p>\n
     in    his   agricultural      field       bearing         Gat      No.11<\/p>\n
     situated at Kesapuri.           The village Kesapuri is<\/p>\n
     situated at a distance of about 4\/5 Km. away from<\/p>\n
     township     of Majalgaon but is practically part of<\/p>\n
     the   township     due   to    development           of     the      town<\/p>\n
     towards that side.            The father of the victim,<\/p>\n
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\n                                          3<\/span><\/p>\n
     namely, P.W.6 Sk.Mahboob use to reside in a small<\/p>\n
     three      rooms    farm     house        alongwith          other        two<\/p>\n
     servants     of     his   Master.        There     were       two     other<\/p>\n
     servants,      namely,       P.W.4        Laxman       and       deceased<\/p>\n
     Rangnath. The victim had left Schooling in the<\/p>\n
     midst      while    she   was   in       6th     standard        and      had<\/p>\n
     started residing with her father since                          few days<\/p>\n
     prior to the relevant night.\n<\/p>\n
     3.<\/p>\n
                   The prosecution case, stated briefly,<\/p>\n
     is that in the night of June 16, 2006, the victim<\/p>\n
     (P.W.1 Mumtaj), her father (P.W. 6 Sk.Maheboob)<\/p>\n
     and other two servants were preparing to go to<\/p>\n
     bed   in    the    farm     house.        At     about      10-30       p.m.<\/p>\n
     three persons came to the agricultural field on a<\/p>\n
     motor-cycle.         Those three persons had brought a<\/p>\n
     piglet     with     them.    They       demanded       some      dry      raw<\/p>\n
     cotton      plants.         P.W.4       Laxman     indicated          place<\/p>\n
     where some stack of dry cotton plants was kept.\n<\/p>\n
     Those      three    persons,    including            the     appellant,<\/p>\n
     took away some dry cotton plants. They set fire<\/p>\n
     to a bunch of the dry plants at a place situated<\/p>\n
     approximately about 150 ft. away from the farm<\/p>\n
     house.       They     roasted   the       piglet       on     the     fire.\n<\/p>\n
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\n                                           4<\/span><\/p>\n
     They barbecued the piglet.                  After a little while,<\/p>\n
     two of them left the agricultural field on the<\/p>\n
     motor-cycle,            whereas      the        appellant         remained<\/p>\n
     behind.\n<\/p>\n
     4.               The    appellant        went    towards          the    farm<\/p>\n
     house at about odd hours after the mid-night.                               He<\/p>\n
     enquired with father of the victim as to why the<\/p>\n
     room was locked. He compelled her father to open<\/p>\n
     the   lock       put     on    the   door       of   the     room.          He<\/p>\n
     threatened her father and assaulted him by means<\/p>\n
     of    a    knife       while    doing      so.         He    thereafter,<\/p>\n
     wriggled out the victim from the room and locked<\/p>\n
     the room.           Thus, father of the victim and the<\/p>\n
     other two agricultural servants were confined in<\/p>\n
     the   room.            The    appellant      dragged         the     victim<\/p>\n
     towards      a     place      near   Bandh.       He      asked     her     to<\/p>\n
     remove her clothes and lie down on a mattress<\/p>\n
     which      was     laid.       She    refused        to     do    so.       He<\/p>\n
     forcibly         removed      her    garments,         placed       himself<\/p>\n
     over her body and forcibly took bites of her lips<\/p>\n
     and       cheek.        He     ravished     her.            She    started<\/p>\n
     screaming.             He thereafter sodomised her.                        The<\/p>\n
     child whimpered He did not leave her even after<\/p>\n
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\n                                      5<\/span><\/p>\n
     the carnal intercourse in both the ways. He took<\/p>\n
     her near him and pressed her under his person.\n<\/p>\n
     However, after some time he became drowsy and<\/p>\n
     fell   fast     asleep.     The     victim        (P.W.1     Mumtaj)<\/p>\n
     gradually escaped from clutches of the appellant<\/p>\n
     and    rushed    towards    the     room.         She    asked       her<\/p>\n
     father from outside the room as to where shall<\/p>\n
     she go.     He told her to go to house of a relative<\/p>\n
     by name Mainuddin, who use to reside in nearby<\/p>\n
     locality.       She took shelter in the house of said<\/p>\n
     Mainuddin       during    remaining      part      of     the      dark<\/p>\n
     night.    In the next morning, lock of the room was<\/p>\n
     broken.     She narrated the incident to her father.\n<\/p>\n
     Her father and his Master took her to the Police<\/p>\n
     Station    where    her    complaint        was    reduced         into<\/p>\n
     writing vide FIR (Exh.14).            She was subjected to<\/p>\n
     medical examination.         The appellant was arrested.\n<\/p>\n
     The Police prepared spot panchanama and recovered<\/p>\n
     the mattress alongwith a moulded plastic bucket<\/p>\n
     from   that     place.    The   Police      also     recovered          a<\/p>\n
     knife and under-garment of the appellant at his<\/p>\n
     instance.       The appellant was charge-sheeted after<\/p>\n
     collecting the necessary material during course<\/p>\n
     of the investigation.\n<\/p>\n
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\n                                      6<\/span><\/p>\n
     5.            The appellant pleaded not guilty to the<\/p>\n
     charge.       His defence was of simple denial.                        He<\/p>\n
     stated that father of the victim had picked up a<\/p>\n
     quarrel with his wife on account of grazing of<\/p>\n
     goats near the agricultural field and, therefore,<\/p>\n
     he had called for explanation of her father –\n<\/p>\n
     (P.W.      Sk.Maheboob)    about    misbehaviour           with       his<\/p>\n
     wife.      The appellant further stated that he told<\/p>\n
     father of the victim that in order to teach a<\/p>\n
     lesson to him, he would lodge a report at the<\/p>\n
     Police Station about commission of rape on his<\/p>\n
     wife. It is due to such reason that father of the<\/p>\n
     victim assaulted him, and lodged a false report<\/p>\n
     about sexual assault on the victim.                       Hence, he<\/p>\n
     sought acquittal from the charge.\n<\/p>\n
     6.            At the trial, the prosecution examined<\/p>\n
     in   all    eight    (8)   witnesses     in     support        of     its<\/p>\n
     case.       The learned Sessions Judge came to the<\/p>\n
     conclusion      that   the     prosecution        case       is     duly<\/p>\n
     proved.        The   learned    Sessions        Judge        believed<\/p>\n
     version of the victim (P.W. Mumtaj).                     He noticed<\/p>\n
     that the victim was minor at the material time<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:50:27 :::<\/span>
\n                                      7<\/span><\/p>\n
     and was sexually abused by the appellant.                                 It<\/p>\n
     being a case of child abuse as such, the learned<\/p>\n
     Sessions Judge held that the appellant did not<\/p>\n
     deserve    any    sympathy.          In     keeping         with       such<\/p>\n
     findings, the appellant came to be convicted and<\/p>\n
     sentenced as described hereinbefore.\n<\/p>\n
     7.             Mr.Palve, would submit that the entire<\/p>\n
     story of the prosecution is improbable for the<\/p>\n
     reason     that       there    were        three         agricultural<\/p>\n
     servants in the farm house alongwith the teenager<\/p>\n
     victim and the appellant was alone.                            He would<\/p>\n
     submit         that     it     is          unbelievable                that<\/p>\n
     singlehandedly, the appellant managed to confine<\/p>\n
     the three agricultural servants in the room and<\/p>\n
     thereafter committed the act of sexual assault on<\/p>\n
     the victim. He pointed out that two other persons<\/p>\n
     who      had     accompanied         the         appellant             upto<\/p>\n
     agricultural          land    were    not           examined           and,<\/p>\n
     therefore, it is contended that genesis of the<\/p>\n
     incident is not properly proved.                   Mr.Palve, would<\/p>\n
     point out further that hymen of victim was found<\/p>\n
     intact.    He would submit that if the victim would<\/p>\n
     have been subjected to sexual intercourse then<\/p>\n
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\n                                       8<\/span><\/p>\n
     private part of the appellant would have received<\/p>\n
     injuries and that the hymen of the victim could<\/p>\n
     not have        remained intact.        He urged to dislodge<\/p>\n
     the testimony of the victim on the ground that<\/p>\n
     she   is   a    minor   witness      and    was     likely        to    be<\/p>\n
     tutored    by     her   father.        Per      contra,        learned<\/p>\n
     A.P.P. Smt.Reddy, supports the impugned judgment.\n<\/p>\n
     8.          ig The fact that the victim was aged about<\/p>\n
     14 years is not seriously disputed during the<\/p>\n
     course of the trial nor such a dispute is raised<\/p>\n
     before me.       The version of P.W.5 Shri Kale, Head<\/p>\n
     Master     of    Madhyamik    Vidhyalaya,            reveals         that<\/p>\n
     birth date of the victim is June 5, 1992 as per<\/p>\n
     the School record.           The School’s record can not<\/p>\n
     be    dislodged     without      any    substantial            reason.\n<\/p>\n
     There is no iota of evidence to hold that the<\/p>\n
     entries    in     the   School       record     were      improperly<\/p>\n
     taken.     The medical evidence tendered by P.W.8<\/p>\n
     Dr. Yende, also shows that age of the prosecutrix<\/p>\n
     was approximately in the range of 10\/15 years.\n<\/p>\n
     The ossification        test indicated her age between<\/p>\n
     12\/14 years. His version shows that she was below<\/p>\n
     14 years of age at the relevant time.                        She gave<\/p>\n
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\n                                           9<\/span><\/p>\n
     her    age         as    14     years.             Her       father         also<\/p>\n
     corroborated            this    fact.      It       can     be     gathered,<\/p>\n
     without       difficulty,         that     the       victim        was      aged<\/p>\n
     around 14 years at the relevant time.\n<\/p>\n
     9.            What emerges from the versions of the<\/p>\n
     victim       (P.W.Mumtaj),              P.W.      Laxman          and       P.W.\n<\/p>\n
     Sk.Maheboob is that the appellant and his two<\/p>\n
     friends    ig or    relatives       visited          the      agricultural<\/p>\n
     field Gat No.11 in the relevant night at about<\/p>\n
     10-30 p.m.               Their versions categorically show<\/p>\n
     that    the    appellant          and    the      other       two     persons<\/p>\n
     roasted the piglet at a place situated around 150<\/p>\n
     ft.    away    from       the    farm     house.           They      ate      the<\/p>\n
     piglet and lateron other two persons left the<\/p>\n
     field,    whereas          the     appellant            alone        remained<\/p>\n
     there. Considered together, these three versions<\/p>\n
     unmistakably show that at about 1-00 a.m., after<\/p>\n
     midnight,      the       appellant       went       towards         the     farm<\/p>\n
     house and asked P.W. Sk.Maheboob as to why lock<\/p>\n
     was put on the room.                He asked P.W. Sk.Maheboob<\/p>\n
     to open the lock.               The victim was sleeping inside<\/p>\n
     the room, whereas her father was sleeping outside<\/p>\n
     that room.          The appellant threatened to kill her<\/p>\n
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\n                                           10<\/span><\/p>\n
     father by means of a knife.                          He gave blows of<\/p>\n
     knife    on     hands       and    back    of     P.W.      Sk.Maheboob.\n<\/p>\n
     Under spell of fear, P.W. Sk.Maheboob opened the<\/p>\n
     lock.      Thereafter,            the     appellant         confined       her<\/p>\n
     father    (Sk.Maheboob),            P.W.     Laxman         and    deceased<\/p>\n
     Rangnath in that room.                  The appellant chained the<\/p>\n
     room from outside and locked the same after he<\/p>\n
     dragged       the     victim       out     of        the    room.          The<\/p>\n
     consistent versions of P.W. Sk.Maheboob and P.W.\n<\/p>\n
     Laxman     go       to     establish        the       fact        that     the<\/p>\n
     appellant       confined           them     in       the     room        under<\/p>\n
     threats.        It has been proved that the appellant<\/p>\n
     assaulted P.W. Sk.Maheboob by means of knife when<\/p>\n
     resistance          was     offered.            It     is    under        such<\/p>\n
     circumstances that singlehandedly the appellant<\/p>\n
     could     force           P.W.Sk.Maheboob,            P.W.Laxman           and<\/p>\n
     deceased Rangnath in the confinement at point of<\/p>\n
     knife.        True, he was alone, whereas they were<\/p>\n
     three. However, he was armed with knife.                             He had<\/p>\n
     exhibited his brutal mentality by knifing P.W.\n<\/p>\n
     Sk.Maheboob.              The     three    agricultural            servants<\/p>\n
     became helpless due to the serious threats given<\/p>\n
     by the appellant and more so because they noticed<\/p>\n
     that he dared to actually use the knife against<\/p>\n
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\n                                        11<\/span><\/p>\n
     them.     In this view of the matter, I find it<\/p>\n
     difficult    to        countenance       the       submission            of<\/p>\n
     Mr.Palve about improbability of the genesis of<\/p>\n
     the incident.\n<\/p>\n
     10.         There is no reason coming forth as to<\/p>\n
     why P.W.Laxman, who is an independent witness,<\/p>\n
     should speak against            the appellant.           His version<\/p>\n
     corroborates
\n                ig      a    part     of    the   prosecution            story<\/p>\n
     regarding confinement of P.W. Sk.Maheboob himself<\/p>\n
     and deceased Rangnath in the room.                       His version<\/p>\n
     also corroborates further part of the prosecution<\/p>\n
     story regarding forcible removal of the victim by<\/p>\n
     the    appellant       towards    secluded       place       near       the<\/p>\n
     Bandh in the agricultural field.                       There is no<\/p>\n
     scintilla of evidence to show that P.W.Laxman and<\/p>\n
     P.W.    Sk.Maheboob       had     any    animosity           with       the<\/p>\n
     appellant. Nothing of much significance could be<\/p>\n
     gathered from their cross-examinations.\n<\/p>\n
     11.         The    victim        (P.W.Mumtaj)         narrated          the<\/p>\n
     manner in which she was sexually abused by the<\/p>\n
     appellant.     Her version purports to show that he<\/p>\n
     tore out her clothes.              Made her to lie down on<\/p>\n
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\n                                      12<\/span><\/p>\n
     the   mattress    at    point    of     knife      and      committed<\/p>\n
     sexual intercourse with her.              Her version further<\/p>\n
     reveals that even after the vaginal intercourse,<\/p>\n
     the appellant sodomised her by committing anal<\/p>\n
     intercourse.      He acted like a brute animal while<\/p>\n
     committing the sexual assault.                 He took bites of<\/p>\n
     her cheeks, lips and physically assaulted her.\n<\/p>\n
     The evidence on record clearly shows that there<\/p>\n
     was total exit of reason and the appellant’s mind<\/p>\n
     was working like that of a brute animal.                               The<\/p>\n
     horrendous       act of sexual assault is rather a<\/p>\n
     pathetic story narrated by the victim.                         She was<\/p>\n
     subjected to life time harrowing experience which<\/p>\n
     would shudder her at any              time as and when she<\/p>\n
     would     recollect     the     incident         throughout            her<\/p>\n
     life.\n<\/p>\n
     12.         The medical evidence tendered by P.W.7<\/p>\n
     Dr.Wagh lends corroboration to the eye witness<\/p>\n
     account     tendered by the victim (P.W.Mumtaj) as<\/p>\n
     well as her father (Sk.Maheboob).                       His version<\/p>\n
     purports to show that on 17.6.2006, he examined<\/p>\n
     the   victim     at    about    12-30      p.m.          He    noticed<\/p>\n
     multiple injuries         including abrasions on anal<\/p>\n
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\n                                          13<\/span><\/p>\n
     region, redness around vaginal orifice, abrasions<\/p>\n
     around     right       breast,       right      upper        lip,      right<\/p>\n
     cheek, vertebral column in lower part, vertebral<\/p>\n
     column on right side in upper 1\/3rd, on tip of<\/p>\n
     the    tongue    and       below    the    tongue       on     lower       jaw<\/p>\n
     inside the mouth. These were fresh injuries.                               The<\/p>\n
     injuries revealed that the victim was sexually<\/p>\n
     assaulted       in    brutal       manner.          The      version        of<\/p>\n
     P.W.Dr.    Wagh,
\n                 ig         who    was        attached      to     the      Rural<\/p>\n
     Hospital, Majalgaon, at the relevant time, lends<\/p>\n
     corroboration         to    the    medical       certificate           (Exh.\n<\/p>\n
     43).     His version also indicates that though the<\/p>\n
     hymen was not ruptured, yet, he noticed a tear on<\/p>\n
     the hymen.           He corroborates the findings in the<\/p>\n
     medical certificate (Exh.44) in this behalf.                               His<\/p>\n
     version also shows that clinical examination of<\/p>\n
     P.W.    Sk.Maheboob          revealed          presence         of     three<\/p>\n
     injuries as stated below :\n<\/p>\n
              “1. Contused lacerated wound on his<\/p>\n
              right        leg,         below       knee          joint,<\/p>\n
              anteriorly placed, having size 1×1\/2<\/p>\n
              cms. x 1\/2 cm.\n<\/p><\/blockquote>\n
              2. Abrasion on left upper lip on inner<\/p>\n
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\n                                    14<\/span><\/p>\n
            side, having size 1 x 1\/2 cms.\n<\/p><\/blockquote>\n
            3. Abrasion on right side of back, in<\/p>\n
            middle    1\/3rd   near      vertebral       column,<\/p>\n
            having size 2 cms. x 1\/2 cm.”\n<\/p><\/blockquote>\n
     He     issued      injury          certificate              (Exh.45)<\/p>\n
     accordingly and opined that the injury No.1 could<\/p>\n
     be result of assault by knife.              The second injury<\/p>\n
     could have been caused due to blunt object like<\/p>\n
     handle of the knife.\n<\/p>\n
     13.         It   has   come   in    the     evidence         of     the<\/p>\n
     victim that she had put up resistance while the<\/p>\n
     appellant    was   committing        the     act       of     sexual<\/p>\n
     intercourse.     The version of P.W.Dr.Wagh, reveals<\/p>\n
     that   medical     examination         of      the       appellant<\/p>\n
     indicated presence of a contusion on his right<\/p>\n
     ring finger and abrasion.          Thus, there is medical<\/p>\n
     corroboration available to show that the victim<\/p>\n
     physically offered resistance and, therefore, the<\/p>\n
     appellant received minor injuries on his person.\n<\/p>\n
     Mere fact that the hymen was not found ruptured<\/p>\n
     by itself will not be sufficient to infer absence<\/p>\n
     of sexual intercourse by the appellant with the<\/p>\n
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\n                                        15<\/span><\/p>\n
     victim.       It is well settled that even a small<\/p>\n
     penetration of the male organ in the vagina of<\/p>\n
     the victim would amount to the sexual intercourse<\/p>\n
     within the meaning of Section 375 of the I.P.C.\n<\/p>\n
     The     Medical       Officer    explained       as     to     how      he<\/p>\n
     located tear in the hymen. He states that after<\/p>\n
     separating the vulva, he would be able to see the<\/p>\n
     hymen’s tear.           Needless to say, the version of<\/p>\n
     the victim is duly corroborated by the medical<\/p>\n
     evidence.\n<\/p>\n
     14.          The version of P.W.8 Dr.Yende, goes to<\/p>\n
     prove the fact that the victim was having eight<\/p>\n
     (8) injuries including bruises                   on her tongue,<\/p>\n
     anus etc.          He noticed presence of evidence to<\/p>\n
     indicate the child abuse.               His version reveals<\/p>\n
     that the victim (P.W. Mumtaj) was aged between<\/p>\n
     10\/15      years.       He    issued    certificate           (Exh.52)<\/p>\n
     accordingly.          He admits that there is distinction<\/p>\n
     between      the       term     “abrasion”       and       the       term<\/p>\n
     “bruise”.        His evidence has remained unimpeached<\/p>\n
     in    so   far   as    his    opinion   regarding          the     child<\/p>\n
     abuse is concerned.\n<\/p>\n
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\n                                       16<\/span><\/p>\n
     15.          The Apex Court in “State of U.P. Vs.<\/p>\n
     Munshi” (AIR 2009 Supreme Court 370), held that<\/p>\n
     evidence    of    the   prosecutrix        can      be     basis       for<\/p>\n
     conviction      even    without       corroboration.              It    is<\/p>\n
     held that the prosecutrix is not an accomplice<\/p>\n
     and she stands on higher footing than injured<\/p>\n
     witness.     In “Rajendra Datta Zarekar Vs. State of<\/p>\n
     Goa” 2007 AIR SCW 7588, the Apex Court held that<\/p>\n
     false implication of accused in case of charge<\/p>\n
     for offence of rape is normally improbable. It is<\/p>\n
     further held that no one would concoct a story of<\/p>\n
     rape just to falsely implicate a person.                         It was<\/p>\n
     argued before the Apex Court                   that charge for<\/p>\n
     offence    of    rape   was   not      made    out     because         the<\/p>\n
     hymen of victim Sonia was intact.                  The Apex Court<\/p>\n
     rejected such argument.           It is observed :\n<\/p>\n
           “14.              Learned       counsel        for       the<\/p>\n
           appellant has next submitted that the<\/p>\n
           doctor      had    found    that      the      hymen       of<\/p>\n
           Sonia was intact and, therefore, the<\/p>\n
           charge for rape under S.376, I.P.C. as<\/p>\n
           defined in S. 375, I.P.C. has not been<\/p>\n
           made out.          An identical question was<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:50:28 :::<\/span>
\n                                  17<\/span><\/p>\n
       considered by a Bench of this Court in<\/p>\n
       Santosh       Kumar       Vs.    State        of      M.P.\n<\/p>\n
       2006(8)JT SC 171, and para 10 of the<\/p>\n
       report is reproduced below :\n<\/p>\n
              “10.        The question, which arises<\/p>\n
       for     consideration,          is     whether          the<\/p>\n
       proved facts establish the offence of<\/p>\n
       rape.\n<\/p>\n
          ig        It is not necessary for us to\n\n       refer    to    various       authorities         as     the\n        \n       said    question       has      been    examined          in\n\n       considerable         detail      in    Madan        Gopal\n\n<\/pre>\n
       Kakkad Vs. Naval Dubey, 1992(3) JT (SC)<\/p>\n
       270 and paras 37 to 39 of the said<\/p>\n
       judgment are being reproduced below :\n<\/p>\n
              “37.          We feel that it would be<\/p>\n
       quite appropriate, in this context, to<\/p>\n
       reproduce the opinion expressed by Modi<\/p>\n
       in Medical Jurisprudence and Toxicology<\/p>\n
       (Twenty      First        Edition)     at     page      369<\/p>\n
       which reads thus :\n<\/p>\n
              “Thus to constitute the offence of<\/p>\n
       rape    it    is    not   necessary       that      there<\/p>\n
       should be complete penetration of penis<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:50:28 :::<\/span>
\n                                 18<\/span><\/p>\n
       with emission of semen and rupture of<\/p>\n
       hymen.         Partial     penetration           of     the<\/p>\n
       penis within the labia majora or the<\/p>\n
       vulva     or    pudenda         with     or      without<\/p>\n
       emission of semen or even an attempt at<\/p>\n
       penetration is quite sufficient for the<\/p>\n
       purpose    of    the     law.    It    is     therefore<\/p>\n
       quite possible to commit legally the<\/p>\n
       offence of rape without producing any<\/p>\n
       injury to the genitals or leaving any<\/p>\n
       seminal stains.           In such a case the<\/p>\n
       medical     officer       should        mention         the<\/p>\n
       negative       facts     in     his     report,         but<\/p>\n
       should    not    give     his    opinion       that       no<\/p>\n
       rape had been committed.               Rape is crime<\/p>\n
       and not a medical condition. Rape is a<\/p>\n
       legal term and not a diagnosis to be<\/p>\n
       made by the medical officer treating<\/p>\n
       the victim.        The only statement that<\/p>\n
       can be made by the medical officer is<\/p>\n
       that there is evidence of recent sexual<\/p>\n
       activity.          Whether        the       rape        has<\/p>\n
       occurred or not is a legal conclusion,<\/p>\n
       not a medical one.”\n<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 14:50:28 :::<\/span>
\n                                19<\/span><\/p>\n
           38.      In    Parikh's             Textbook            of\n\n\n\n\n                                                                  \n       Medical    Jurisprudence           and      Toxicology,\n\n       the following passage is found :\n\n\n\n\n                                          \n           \"Sexual       intercourse.             -     In     law,\n\n\n\n\n                                         \n<\/pre>\n
       this term is held to mean the slightest<\/p>\n
       degree of penetration of the vulva by<\/p>\n
       the penis with or without emission of<\/p>\n
       semen. It is therefore quite possible<\/p>\n
       to commit legally the offence of rape<\/p>\n
       without    producing         any     injury        to      the<\/p>\n
       genitals     or      leaving            any        seminal<\/p>\n
       stains.”\n<\/p>\n
           39.      In Encyclopedia of Crime and<\/p>\n
       Justice    (Vol.4)      at    page       1356,        it    is<\/p>\n
       stated :\n<\/p>\n
           “….. even slight penetration is<\/p>\n
       sufficient         and              emission                is<\/p>\n
       unnecessary”. Therefore, the absence of<\/p>\n
       injuries    on    the    private          parts       of     a<\/p>\n
       victim specially a married lady cannot,<\/p>\n
       ipso facto, lead to an inference that<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 14:50:28 :::<\/span>
\n                                          20<\/span><\/p>\n
           no rape has been committed.”\n<\/p>\n
                  Here the victim was a very young<\/p>\n
           girl of six years of age and it is<\/p>\n
           quite likely that full penetration did<\/p>\n
           not    take       place       as    the    accused        is    a<\/p>\n
           grown up person of over 20 years of<\/p>\n
           age.        The        injuries       clearly       indicate<\/p>\n
           that rape, as defined in S. 275, I.P.C.\n<\/p>\n
           did take place.”\n<\/p>\n
     16.          Having          carefully          gone      through          the<\/p>\n
     entire   evidence        of     the       prosecution         and      close<\/p>\n
     scrutiny     of        the     circumstances,             I      have       no<\/p>\n
     hesitation        in     holding           that        the      appellant<\/p>\n
     committed heinous act of sexual intercourse by<\/p>\n
     use of force and also that of unnatural carnal<\/p>\n
     intercourse with the minor child.                            The learned<\/p>\n
     Sessions     Judge,           has        rightly       convicted           and<\/p>\n
     sentenced him for the said offences.                             There is<\/p>\n
     nothing redeeming about the appellant. The child<\/p>\n
     victim was subjected to horrendous crime due to<\/p>\n
     lascivious acts of the appellant.                         His acts are<\/p>\n
     indicative        of         depraved           mind      and        sexual<\/p>\n
     perversity.            Indeed, I feel that the sentence<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:50:28 :::<\/span>
\n                                     21<\/span><\/p>\n
     awarded to him is on lower side. In such a case,<\/p>\n
     one feels that the embargo put on the powers of<\/p>\n
     the Court as per proviso appended to Section 31<\/p>\n
     of    the   I.P.C.   is   required      to    be     uplifted          in<\/p>\n
     suitable cases.\n<\/p>\n
     17.          For the aforestated reasons, I am of<\/p>\n
     the opinion that there is no substance in the<\/p>\n
     appeal.      Hence, the appeal is dismissed.\n<\/p>\n
                  ig                                                      The\n\n     impugned     judgment     of   conviction          and      sentence\n                \n     rendered     in   Sessions     Case     No.34\/2006           by      the\n\n<\/pre>\n
     learned Additional Sessions Judge, Majalgaon, is<\/p>\n
     confirmed.\n<\/p>\n
                                    (V.R.KINGAONKAR,J.)<\/p>\n
     asp\/office\/Crappeal14307<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:50:28 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Asaram vs The State Of Maharashtra on 28 July, 2009 Bench: V.R. Kingaonkar 1 REPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.143 OF 2007. Asaram S\/o Rangnath Jadhav, Age 38 years, Occ.Labour, R\/o Kesapuri Camp, Tq.Majalgaon, Dist. Beed. … Appellant. Versus The State of Maharashtra […]<\/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-24820","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAsaram vs The State Of Maharashtra on 28 July, 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\/asaram-vs-the-state-of-maharashtra-on-28-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Asaram vs The State Of Maharashtra on 28 July, 2009 - 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