{"id":96162,"date":"2007-12-04T00:00:00","date_gmt":"2007-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-datta-zarekar-vs-state-of-goa-on-4-december-2007"},"modified":"2015-11-11T10:52:50","modified_gmt":"2015-11-11T05:22:50","slug":"rajendra-datta-zarekar-vs-state-of-goa-on-4-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-datta-zarekar-vs-state-of-goa-on-4-december-2007","title":{"rendered":"Rajendra Datta Zarekar vs State Of Goa on 4 December, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rajendra Datta Zarekar vs State Of Goa on 4 December, 2007<\/div>\n
Author: G P Mathur<\/div>\n
Bench: G.P. Mathur, G.S. Singhvi<\/div>\n
           CASE NO.:\nAppeal (crl.)  32 of 2007\n\nPETITIONER:\nRajendra Datta Zarekar\n\nRESPONDENT:\nState of Goa\n\nDATE OF JUDGMENT: 04\/12\/2007\n\nBENCH:\nG.P. Mathur & G.S. Singhvi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CRIMINAL APPEAL NO. 32 OF 2007<\/p>\n
G. P. MATHUR, J.\n<\/p>\n
\tThis appeal has been preferred under Section 2(A) of the
\nSupreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
\n1970 against the judgment and order dated 16.8.2006 of Goa Bench of
\nBombay High Court by which the appeal filed by the State was
\nallowed and judgment and order dated 28.7.2004 of First Ad hoc
\nAssistant Sessions Judge, Panaji in Sessions Case No. 1 of 2004
\nacquitting the accused was set aside.  The High Court convicted the
\nappellant Rajendra under Sections 376(2)(f) and 342 IPC and
\nsentenced him to ten years R.I. and a fine of Rs.10,000\/- under the
\nfirst count and one months R.I. and a fine of Rs.1,000\/- under the
\nsecond count.\n<\/p>\n
2.\tThe case of the prosecution, in brief, is that PW-2 Satyam Ahire
\nalong with his wife PW-1 Pushpa and three children was residing in
\nUsgao in Ponda.  He was working as a security officer in Bethora
\nIndustrial Estate.  In the evening of 14.10.2003 his eldest daughter
\nSupriya was studying at her home while the second daughter PW-8
\nSonia, aged about six years, was playing in the courtyard of his house.
\nPW-4 Mohandas Gaonkar, uncle of Pushpa, owned some rooms close
\nby which were given on rent to some boys who were working in the
\nNestle factory.  The accused Rajendra was living on rent in one of
\nthese rooms.  At about 5.00 P.M. on 14.10.2003 PW-1 Pushpa heard
\ncries of her daughter Sonia from inside the room, which was in
\noccupation of the accused Rajendra.  She went to the room and found
\nit closed from inside and, therefore, she knocked at the door.  After
\nsome time the accused Rajendra opened the door of the room.  She
\nenquired from the accused as to what he was doing inside the room
\nalong with her daughter but he kept quiet.  On enquiry Sonia told her
\nmother that the accused Rajendra took her inside his room while she
\nwas playing in the courtyard.  He closed the door, switched off the
\nlight and forced her to lie down on the mat.  Thereafter the accused
\nremoved her panty and also removed his own pant and lied down over
\nher.  He inserted his private part in the private part of Sonia and did
\nsome movement.  Pushpa then brought Sonia to her own house and
\ncalled her sister and other family members.  After Satyam Ahire
\n(father of Sonia) had come back, they went to the Police Station,
\nPonda where they reached at about 9.00 P.M.  The PSI of Ponda
\nPolice Station sent them to Medical College where Sonia was
\nmedically examined and the doctor confirmed that she had been
\nsubjected to rape.  Thereafter a formal FIR was registered at 11.45
\nP.M. on 14.10.2003 at P.S. Ponda.\n<\/p>\n
3.\tAfter the case had been registered at the police station the same
\nwas investigated by PW-11 Shivram Vaigankar, PSI.  He recorded
\nstatements of witnesses under Section 161 Cr.P.C.  The accused
\nRajendra was arrested at 5.00 A.M. on 15.10.2003 and the clothes
\nwhich he was wearing were taken into custody.  He also took in
\ncustody the clothes of the girl Sonia.  He prepared a site plan and
\npanchnama of the scene of occurrence in presence of two witnesses
\nand also seized a bed sheet and nylon mat.  A photograph of the room
\nwas also taken.  After completing investigation he submitted charge-
\nsheet under Sections 342 and 376 IPC against the accused Rajendra.\n<\/p>\n
4.\tThe prosecution in support of its case examined 11 witnesses
\nbefore the trial court and filed some documentary evidence.  The
\nlearned Assistant Sessions Judge, after appraisal of the evidence,
\ncame to the conclusion that the case of the prosecution was not
\nestablished beyond doubt against the accused Rajendra and he
\naccordingly acquitted him by the judgment and order dated 28.7.2004.
\nFeeling aggrieved by the judgment and order of the learned Assistant
\nSessions Judge the State preferred an appeal before the High Court.
\nThe High Court, after a detailed consideration of the evidence,
\nallowed the appeal and reversed the judgment of acquittal recorded by
\nthe Assistant Sessions Judge.  The High Court convicted the accused
\nunder Section 376(2)(f) IPC and sentenced him to ten years R.I. and a
\nfine of Rs.10,000\/- and in default to undergo six months S.I..  He was
\nfurther convicted under Section 342 IPC and was sentenced to
\nundergo one months R.I. and a fine of Rs.1,000\/- and in default to
\nundergo 15 days S.I.\n<\/p>\n
5.\tWe have heard Mr. Vinay Navare, learned counsel for the
\nappellant Rajendra and Ms. A. Subhashini, learned counsel for the
\nState of Goa, and have perused the record.\n<\/p>\n
6.\tPW-4 Mohandas Gaonkar has deposed that he owns three
\nhouses and has four rooms in one of his houses out of which one room
\nhad been given on rent to some boys who were working in Nestle
\nfactory.  The accused Rajendra, who was employed in Nestle factory,
\nhad been given one room on rent and his duty hours were from 8.00
\nA.M. to 4.30 P.M.  On 14.10.2003 he returned from the market at
\nabout 6.30 P.M. when PW-1 Pushpa, her sister and some others were
\npresent there in the house.  Pushpa told him about the incident
\nregarding commission of rape by the accused Rajendra on Sonia
\ninside the room.\n<\/p>\n
7.\tPW-2 Satyam Ahire deposed that Mohandas Gaonkar is his
\nwifes uncle and is a close neighbour.  He had given one room in his
\nhouse to boys working in Nestle factory and the accused Rajendra was
\na tenant in one such room.  On 14.10.2003 he had gone to the market
\nand returned from there after 5.00 P.M.  When he returned home he
\nfound his daughter Sonia sweating and was in a very bad condition.
\nShe was lying in bed.  His wife PW-1 Pushpa informed him that the
\naccused Rajendra had pulled Sonia inside his room and had
\ncommitted rape upon her.  He has further deposed that he then went to
\npolice station by rikshaw and from there he was sent to medical
\ncollege for medical examination of Sonia.\n<\/p>\n
8.\tPW-1 Pushpa has given a detailed version of the incident.  She
\nhas deposed that she has three children and Sonia, who is aged about
\nsix years, is her second daughter.  Her uncle Mohandas Gaonkar lives
\nnearby and he had let out one of the rooms in his house to the accused
\nRajendra.  In the evening of 14.10.2003 her elder daughter was
\nstudying at home while Sonia was playing in the courtyard near the
\nhouse.  While she was preparing some eatables she heard the cries of
\nSonia coming from the side of the house of her uncle Mohandas
\nGaonkar.  She immediately rushed there and found that the room
\nwhich was under the tenancy of the accused Rajendra was closed from
\ninside.  She also heard the cries of Sonia coming from inside the
\nroom.  She then knocked at the door which was opened by the accused
\nafter about five minutes.  She enquired from the accused as to what
\nhad happened but he kept quiet.  Sonia, who had rushed to her mother,
\ninformed her that she was taken inside the room by the accused and
\nthereafter he closed the room from inside and switched off the light.
\nThe accused forced her to lie down on the mat and after removing her
\npanty also removed his pant and lied down over her.  He inserted his
\nprivate part inside her private part and did some movement.  Pushpa
\nthen came to her own house and called her family members.  After her
\nhusband had come back from the market she went to the police station
\nto lodge the report.  The FIR was lodged by her which is Exhibit 8.
\nThe police referred her daughter Sonia to Goa Medical College for her
\nmedical examination.  She went there where Sonia was medically
\nexamined.  She was cross-examined at length but nothing material has
\ncome out in the same which may throw any doubt regarding the
\nprosecution version of the incident.  In cross-examination she has said
\nthat her husband was not present and had gone to market and he
\nreturned from the market at about 5.30 P.M.  Sonia was crying loudly
\nand was having great difficulty in passing urine.  She has further
\ndeposed that one day before her statement in court Sandesh, brother of
\nthe accused Rajendra, and his mother had come to her house pleading
\nfor mercy.  She denied the defence suggestion that she had some kind
\nof relations with the accused and used to borrow money from him and
\nhad falsely implicated him as she wanted some more money from
\nhim.\n<\/p>\n
9.\tThe prosecutrix Sonia was examined as PW-8.  The learned
\nAssistant Sessions Judge put questions to her in order to ascertain
\nwhether she was in a position to give statement in court.  After being
\nsatisfied about her mental capacity, her statement was recorded.  The
\nlearned Assistant Sessions Judge has noted that she wanted to be near
\nher mother at the time of recording her statement and that the accused
\nhad been sent little away with the consent of his advocate so that the
\nwitness may be comfortable.  Sonia stated that the accused Rajendra
\nwas residing in the room near her house.  When she was near the
\nhouse of her aunty the accused came near her and pulled her inside his
\nroom and closed it from inside.  He removed her panty and his own
\npant and made her lie down on the mat.  He lied over her, inserted his
\nprivate part in her private part and did some movement.  She cried out
\nof pain.  After few minutes her mother came and knocked at the door.
\nAfter couple of minutes the accused opened the door.  She then
\nnarrated the entire incident to her mother.  She identified the panty
\nand frock, which she was wearing at the time of the incident and were
\nseized by police, during the course of her statement in court.  She
\nfurther said that she was taken to the hospital for her medical
\nexamination.\n<\/p>\n
10.\tPW-10 Dr. E.J. Rodrigues, Associated Professor in Forensic
\nMedicine, Medical College, Goa, examined Sonia at about 11.45 P.M.
\non 14.10.2003 in the presence of Dr. Mrinalini, lecturer in the Medical
\nCollege.  He has deposed that the girl Sonia was of thin built having a
\nheight of 97 cms. and weighing 26 kgs.  The gait of Sonia was slightly
\npainful.  Her genital development was of infant type nature.  Pubic
\nhairs were not erupted and there were no injuries on inner aspects of
\nthighs.  There was a bruise reddish 2 x 1.5 cms. area on right labia
\nmajora and right labia minora, which was tender to touch.  There was
\na laceration of 5 mm x 2 mm on right labia minora near the clitoris
\nwhich was tender to touch.  The hymen was intact.  There were no
\nfresh or old tears to hymen.  Hymnal opening admits tip of little
\nfinger.  Hymnal border was bruised, edematous and tender to touch.
\nThe vaginal contents and vaginal walls were normal.  He opined as
\nunder: –\n<\/p>\n
I certify that on physical genetical examination there is
\nevidence of recent penetration.  Vaginal swabs and smear
\nslides were retained for serological examination.<\/p>\n
11.\tThe same doctor also examined the accused Rajendra at 12.15
\nP.M. on 15.10.2003 at the request of police of Ponda Police Station in
\nthe presence of Dr. Girish Kamat.  There were no injuries on his body.
\nHis genital development was good.  His pubic hairs were black and
\nnot matted with blood or semen (preserved).  On physical and genital
\nexamination there was nothing to suggest that Rajendra was incapable
\nof sexual intercourse.\n<\/p>\n
12.\tPW-3 Raju Sunktankar is the photographer who took
\nphotographs of the room and he has proved the same.  PW-5 Tarun
\nKumar is a panch witness of seizure of clothes of PW-8 Sonia and of
\naccused Rajendra.  PW-6 Narayan is the panch witness of seizure of
\nmattress and bed sheet.  PW-9 Sanjay had examined the blood group
\nof Sonia and of accused Rajendra.  PW-11 Shivram Vaigankar, PSI of
\nPonda Police Station has deposed about the lodging of FIR by Pushpa
\nand registration of the case after he had received the medical
\nexamination report of Sonia.  He has deposed about the various steps
\ntaken by him during the course of investigation of the case.\n<\/p>\n
13.\tWe have given above the gist of the evidence adduced by the
\nprosecution.  The evidence shows that the accused Rajendra was
\nliving as tenant in a room in the house of PW-4 Mohandas Gaonkar,
\nwho is uncle of PW-1 Pushpa.  The room in which the accused was
\nliving is close to the house of the victim.  In the evening of
\n14.10.2003 when Sonia was playing outside the courtyard of her
\nhouse the accused pulled her and took her to his own room, bolted it
\nfrom inside and after removing the clothes of Sonia and his own pant
\ncommitted rape upon her.  The cries of Sonia attracted her mother
\nPushpa who came there, knocked at the door and after some time the
\naccused opened the same.  Sonia was crying loudly and she narrated
\nthe incident to her mother.  Pushpa went to the police station after her
\nhusband PW-2 Satyam Ahire and some other relations had come
\nthere.  The police sent Sonia to Medical College where she was
\nmedically examined by PW-10 Dr. Rodrigues who certified that she
\nhad been subjected to rape.  Thereafter the FIR of the incident was
\nregistered at the police station at 11.45 p.m. the same night.  In spite
\nof fairly lengthy cross-examination nothing has come out in the
\nstatements of Pushpa and Sonia which may throw even a slightest
\ndoubt on the prosecution version of the incident.  There is no enmity
\nof any kind between Pushpa and the accused Rajendra which may
\nimpel her to falsely implicate the accused.  Though a suggestion
\nregarding taking of some money by Pushpa from the accused has been
\nmade and a further suggestion has been made that she wanted to have
\nsome kind of relationship with the accused but the same has not at all
\nbeen made probable much established by any evidence.  The rape
\nleaves a permanent scar and has a serious psychological impact on the
\nvictim and also her family members and, therefore, no one would
\nnormally concoct a story of rape just to falsely implicate a person.  In
\nthe present case there was not even an iota of evidence to show that
\nPW-1 Pushpa or her husband Satyam Ahire had any reason
\nwhatsoever to falsely implicate the accused Rajendra.  We have
\ncarefully gone through the evidence and in our opinion the evidence
\nlead by the prosecution fully establishes the case against the accused
\nRajendra beyond any shadow of doubt.\n<\/p>\n
14.\tLearned counsel for the appellant has next submitted that the
\ndoctor had found that the hymen of Sonia was intact and, therefore,
\nthe charge for rape under Section 376 IPC as defined in Section 375
\nIPC has not been made out.  An identical question was considered by
\na Bench of this Court in Santosh Kumar vs. State of M.P. JT 2006 (8)
\nSC 171, and para 10 of the report is reproduced below: –
\n10. \tThe question, which arises for consideration, is
\nwhether the proved facts establish the offence of rape.  It
\nis not necessary for us to refer to various authorities as
\nthe said question has been examined in considerable
\ndetail in Madan Gopal Kakkad v. Naval Dubey JT<\/a> 1992
\n(3) SC 270 and paras 37 to 39 of the said judgment are
\nbeing reproduced below:\n<\/p>\n
37. \tWe feel that it would be quite appropriate, in
\nthis context, to reproduce the opinion expressed by
\nModi in Medical Jurisprudence and Toxicology
\n(Twenty First Edition) at page 369 which reads
\nthus:\n<\/p>\n
Thus to constitute the offence of rape it is
\nnot necessary that there should be complete
\npenetration of penis with emission of semen
\nand rupture of hymen. Partial penetration of
\nthe penis within the labia majora or the
\nvulva or pudenda with or without emission
\nof semen or even an attempt at penetration is
\nquite sufficient for the purpose of the law.  It
\nis therefore quite possible to commit legally
\nthe offence of rape without producing any
\ninjury to the genitals or leaving any seminal
\nstains. In such a case the medical officer
\nshould mention the negative facts in his
\nreport, but should not give his opinion that
\nno rape had been committed. Rape is crime
\nand not a medical condition. Rape is a legal
\nterm and not a diagnosis to be made by the
\nmedical officer treating the victim. The only
\nstatement that can be made by the medical
\nofficer is that there is evidence of recent
\nsexual activity. Whether the rape has
\noccurred or not is a legal conclusion, not a
\nmedical one.\n<\/p>\n
38. \tIn Parikhs Textbook of Medical
\nJurisprudence and Toxicology, the following
\npassage is found:\n<\/p>\n
Sexual intercourse.  In law, this term is
\nheld to mean the slightest degree of
\npenetration of the vulva by the penis with or
\nwithout emission of semen. It is therefore
\nquite possible to commit legally the offence
\nof rape without producing any injury to the
\ngenitals or leaving any seminal stains.\n<\/p>\n
39. \tIn Encyclopedia of Crime and Justice (Vol.\n<\/p>\n
4) at page 1356, it is stated:\n<\/p>\n
… even slight penetration is sufficient and
\nemission is unnecessary.
\nTherefore, the absence of injuries on the private parts of a
\nvictim specially a married lady cannot, ipso facto, lead to
\nan inference that no rape has been committed.<\/p>\n
Here the victim was a very young girl of six years of age and it is
\nquite likely that full penetration did not take place as the accused is a
\ngrown up person of over 20 years of age.  The injuries clearly indicate
\nthat rape, as defined in Section 375 IPC, did take place.\n<\/p>\n
15.\tLearned counsel for the appellant further submitted that the
\nsentence of ten years R.I. awarded by the High Court is very severe
\nand the same may be reduced.  It may be mentioned here that Section
\n376(2)(f) IPC specifically provides that where the victim is less than
\n12 years of age the sentence awarded shall not be less than 10 years
\nbut it may be for life and the accused shall also be liable to fine.  The
\nproviso, no doubt, says that the court may for adequate and special
\nreasons to be mentioned in the judgment, impose a sentence of
\nimprisonment for a term of less than ten years.  Here the victim PW-8
\nSonia was aged about six years and, therefore, the case is fully
\ncovered by clause (f) of sub-section (2) of Section 376 IPC and the
\nsentence awarded cannot be less than ten years unless there are
\nadequate and special reasons for doing so.  We do not find any
\nadequate or special reasons for imposing a sentence of less than ten
\nyears.  Learned counsel for the appellant placed reliance on State of
\nChhattisgarh vs. Derha<\/a> (2004) 9 SCC 699, for reducing the sentence.
\nIn the authority cited what weighed with the court was that the
\naccused was hardly eighteen years of age and had already served
\nabout six and half years imprisonment.  He was married and had a
\nfamily.  In these circumstances the court considered it proper to
\nreduce the sentence to seven years.  Such is not the case here and,
\ntherefore, we are legally bound to award a sentence of ten years R.I.
\nHowever, we feel that the fine of Rs.10,000\/- awarded under Section
\n376(2)(f) IPC is excessive and the same is reduced to Rs.1,000\/- and
\nthe fine of Rs.1,000\/- awarded under Section 342 IPC is set aside.\n<\/p>\n
16.\tIn the result the appeal is dismissed with the modification that
\nthe fine of Rs.10,000\/- imposed under Section 376(2)(f) IPC is
\nreduced to Rs.1,000\/- and the fine of Rs.1,000\/- imposed under
\nSection 342 IPC is set aside.  The substantive sentence of ten years
\nR.I. awarded under Section 376(2)(f) IPC and one month R.I. under
\nSection 342 IPC are maintained.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rajendra Datta Zarekar vs State Of Goa on 4 December, 2007 Author: G P Mathur Bench: G.P. Mathur, G.S. Singhvi CASE NO.: Appeal (crl.) 32 of 2007 PETITIONER: Rajendra Datta Zarekar RESPONDENT: State of Goa DATE OF JUDGMENT: 04\/12\/2007 BENCH: G.P. Mathur & G.S. Singhvi JUDGMENT: J U D G M […]<\/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":[30],"tags":[],"class_list":["post-96162","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRajendra Datta Zarekar vs State Of Goa on 4 December, 2007 - 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\/rajendra-datta-zarekar-vs-state-of-goa-on-4-december-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra Datta Zarekar vs State Of Goa on 4 December, 2007 - 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