Bombay High Court
Damodhar S/O Rambhau Inchal vs The State Of Maharashtra on 1 July, 2010
Author: Shrihari P.Davare
Bench: Shrihari P.Davare
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 643 OF 2009
Damodhar s/o Rambhau Inchal,
age 67 years,occ. Agri. Labour,
r/o Dudhna Kalegaon,
Tq. and Dist. Jalna ...Appellant
ig (original accused)
VERSUS
The State of Maharashtra
through police station, Osmanpura,
Aurangabad ...Respondent
.....
Shri J.V.Deshpande, advocate for the appellant
Shri S.D.Kaldate, A.P.P. for respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING THE JUDGMENT : 15.6.2010 DATE OF PRONOUNCMENT OF THE JUDGMENT : 01.7.2010 ::: Downloaded on - 09/06/2013 16:04:52 ::: 2 J U D G M E N T :-
1 The challenge in this appeal is to the conviction and sentence awarded by learned Additional Sessions Judge-5, Aurangabad in Sessions Case No. 102 of 2008 on 21.11.2009, convicting the appellant (original accused) herein for the offence punishable under Section 376 (2)(f) of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for ten years and to pay fine of Rs.1,000/-, in default of non-payment of fine to suffer further Rigorous Imprisonment for two months; and also convicting him for the offence punishable under Section 342 of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for one year and to pay fine of Rs. 500/-, in default of non-payment of fine to suffer further Rigorous Imprisonment for one month. Both the said substantive sentences were to run concnurrently.
2 The factual matrix of the prosecution case can be summarised as under :-
PW1 i.e. complainant namely Eknath Kashinath Pawar was residing along with his wife PW4 Sunita and their daughter i.e. ::: Downloaded on - 09/06/2013 16:04:53 ::: 3 the victim herein, aged about 5 years and two sons at Ghuge Vasti, Satara Parisar, Aurangabad and they used to do labour work in the agricultural field of one Ghuge, bearing Gat No. 226. They used to reside in the houses built for labourers by said Ghuge. The appellant i.e. accused Damodhar Rambhau Inchal was also residing at some distance from their house along with his daughter and son-
in-law.
3 It is the prosecution case that on 9.1.2008 PW1 Eknath had gone to Pawar Vasti to attend last rites of her cousin father-in-
law, as well as his wife PW4 Sunita had also left the house for agricultural work in the adjacent land with other women. During this period, their daughter i.e. victim was in their house. It is also alleged that daughter of the accused had handed over key of their house to the victim to be given to the accused when he would come. It is further alleged that PW4 Sunita, while doing agricultural work in the field, heard hue and cry of her daughter i.e. victim at about 1.00 p.m. Hence, she rushed towards her house. She also heard cry from the house of the accused. Hence, she rushed towards the house of the accused and went inside the house of the accused and saw victim and accused together and victim was crying and her nicker was ::: Downloaded on - 09/06/2013 16:04:53 ::: 4 blood stained. Hence, PW4 Sunita inquired with the victim.
Thereupon victim disclosed that she had been to the house of the accused to give key of his house, but accused caught hold of her hand and dragged her inside the house and made her to lie flat on the ground and removed her nicker, as well as he removed his dhoti and inserted his penis in her private part. Hence, PW4 Sunita examined private part of the victim and found bleeding injury.
Thereafter PW4 Sunita took her daughter victim towards PW1 Eknath and narrated the whole incident to him. Thereafter PW1 Eknath, PW4 Sunita along with victim went to Osmanpura police station and lodged the complaint at about 5.15 p.m. on the said date and C.R. No. I-6 of 2008 was registered against the accused herein for the offences punishable under Sections 376(F) and 342 of the Indian Penal Code.
4 It is also the case of prosecution that PW10 Police Sub-
Inspector, Jilani Gafoor, was attached to Osmanpura police station at the relevant time and on 9.1.2008 he was entrusted with the investigation of C.R. No. 6 of 2008. Hence, he verified the complaint and went to the place of incident and prepared the spot panchanama (Exh. 16) in presence of panchas including PW2 panch witness ::: Downloaded on - 09/06/2013 16:04:53 ::: 5 Bhimrao Ghandge. Moreover, he also arrested the accused on 9.1.2008 and made inquiry with him and seized his clothes including his dhoti (article 1) under panchanama (Exh.19) in presence of panchas including PW3 panch witness Vijay Patil. Moreover, nicker of victim was produced by PW1 Eknath and same was also seized under seizure panchanama (Exh.20).
5The prosecution case further recites that the victim was taken to the Government Medical College and Hospital for medical examination and PW9 Dr. Anjana Santpure examined the victim and issued the medical certificate to that effect (Exh.31). Moreover, the accused was also referred to the Government Medical College and Hospital for medical examination along with letter dated 9.1.2008 (Exh.36) and examined by PW11 Dr.Pushpa Rokade and she issued the medical certificate (Exh.37) to that effect. Moreover, during the course of investigation, PW10 P.S.I. Jilani Madar recorded the statements of witnesses.
6 It is further the case of prosecution that the seized articles were sent to the Chemical Analyzer's office for examination purpose along with forwarding letter dated 22/1/2008 (Exh.43).
::: Downloaded on - 09/06/2013 16:04:53 ::: 6Moreover, the samples collected by the doctor in respect of victim were also sent to the office of the Chemical Analyser vide letter dated 11.1.2008 (Exh.44), as well as blood sample collected by the doctor pertaining to the accused was sent to the Chemical Analyser's office for examination purpose along with letter dated 11.1.2008 (Exh.45). Pursuant to the same, reports from the office of the Chemical Analyser and the medical reports were received, which are marked as Exhs. 46 and 47, respectively.
7 Accordingly, after completion of investigation, the investigating officer filed the charge sheet before the learned Chief Judicial Magistrate, Aurangabad on 5.3.2008 and the offence being exclusively triable by the Court of Sessions, learned Judicial Magistrate, First Class, Aurangabad committed the said case to the Court of Sessions, Aurangabad on 11.3.2008 for trial.
8 The learned Additional Sessions Judge-5, Aurangabad framed the charge against the accused on 2.9.2008 at Exh.10 under Sections 376 (F) and also under Section 342 of the Indian Penal Code. The accused pleaded not guilty to the said charges and claimed to be tried.
::: Downloaded on - 09/06/2013 16:04:53 ::: 79 To substantiate the charges levelled against the accused, the prosecution examined in as much as eleven witnesses as mentioned below :-
1) PW1 Eknath Kashinath Pawar
complainant and father of victim (Exh.14)
2)
PW2 Bhimrao Kisanrao Ghandge
panch to the spot panchanama (Exh.16)
3) PW3 Vijay Laxman Patil
panch to seizure panchanama (Exh.19)
in respect of dhoti article 1
and seizure panchanama (Exh.20)
in respect of nicker of victim
4) PW4 Sunita Eknath Pawar
mother of victim
5) PW5 victim, aged about 5 years.
6) PW6 Karunabai Sheshrao Jadhav,
neighbourer working with PW4 Sunita
turned hostile
7) PW7 Saraswati Limbaji Kukade
working with PW4 Sunita
::: Downloaded on - 09/06/2013 16:04:53 :::
8
8) PW8 Baban Maruti Bhalerao
relative of victim
9) Dr.Anjana Shivkumar Santpure
who examined the victim and issued the
medical certificate to that effect (Exh. 31)
10) PW10 P.S.I. Jilani Gafoor Shah Madar,
investigating officer.
11) PW11 Dr. Pushpa Baburao Rokade
who examined the accused and issued the
medical certificate to that effect (Exh. 37)
10 The defence of the accused is of total denial and he
denied the entire incriminating evidence adduced and produced against him and took a stand that the witnesses deposed falsely against him due to previous quarrel and falsely implicated him in the present case, and therefore, he claimed to be innocent.
11 After scrutinizing and appreciating the evidence, learned Additional Sessions Judge-5, Aurangabad convicted and sentenced the accused/appellant as aforesaid. Being aggrieved and dissatisfied by the said conviction and sentence, rendered by learned Additional Sessions Judge-5, Aurangabad by judgment and order dated ::: Downloaded on - 09/06/2013 16:04:53 ::: 9 22.11.2009, the appellant has preferred the present appeal praying for quashment thereof and acquittal from the charges levelled against him.
12 In order to deal with the submissions advanced by the learned counsel for the appellant as well as learned A.P.P. for the respondent effectively, it is necessary to advert to the material evidence adduced and produced by the prosecution on record.
13 In the said context, coming to the deposition of PW4 Sunita i.e. the mother of the victim, who deposed that on the day of incident, they were residing at Ghuge Vasti in the vicinity of village Satara near Aurangabad and she knows the accused Damodhar Inchal, who was residing near her house. She also stated that she was residing along with her husband, two sons and a daughter victim, and the incident occurred at about 1.00 p.m. She further deposed that on the date of incident, her husband had been to Pawar Vasti to attend the last rites of her cousin father-in-law and her two sons had gone to the school and she was working in the land near her house; whereas her daughter i.e. the victim was at her house. She also stated that when she was working in the field she ::: Downloaded on - 09/06/2013 16:04:53 ::: 10 heard hue and cry of her daughter i.e. victim from the house of the accused, and therefore, she immediately rushed towards the said house and saw that the accused and and her daughter i.e. victim together and her daughter was crying and her nicker was having blood stains. Hence, she asked her about the incident. Thereupon her daughter disclosed her that when she had been to the house of accused to give key of his house, the accused held her hands and dragged her inside the house and made her lie down on the floor and removed her nicker and he removed his dhoti and inserted his penis in her private part. Hence, PW4 Sunita examined private part of her daughter i.e. victim and found bleeding injury. Thereafter she stated that she took her daughter victim towards her husband PW1 Eknath and narrated the whole incident to him. Thereafter she herself, her husband PW1 Eknath and her daughter i.e. victim went to Osmanpura police station and PW1 Eknath lodged the complaint.
14 During cross-examination, she stated that wife of the accused is alive and daughter of the accused used to keep key of their house with her daughter. She further stated that she was working at a distance of 2000 ft. away from their residential houses and her house was not visible from the place where she was ::: Downloaded on - 09/06/2013 16:04:53 ::: 11 working. She further stated that blood was oozing from the injuries sustained by her daughter from her private part and her private part was swollen and when she saw her private part, she made hue and cry and people had gathered there, but nobody attempted to beat the accused.
15 Suggestions were given to her that no such incident had taken place as deposed by her and there was no injury to private part of her daughter and blood was not oozing from the same, but same were denied by her. It was also suggested to her that her daughter victim used to play by climbing on the trees and she was in habit to play, but same was denied by her. Suggestion was also given to her that she and her husband concocted story and filed false complaint against the accused, but same was denied by her.
16 That takes me to the testimony of PW1 Eknath complainant, she has stated that the incident took place on 9.1.2008 and at the said time he was residing at Ghuge Vasti , Satara Parisar, Aurangabad along with his wife, mother and children. His daughter i.e. victim was five years old, his eldest son Ajay was about ten years; whereas son Vijay was eight years old. He stated that he ::: Downloaded on - 09/06/2013 16:04:53 ::: 12 knew the accused who was residing near his house and both were working with one Ghuge on yearly basis. He also stated that accused was residing with his daughter and son-in-law. He further stated that on the day of incident i.e. on 9.1.2008 at about 10.00 a.m. He had gone to Aloknagar for last rites of his uncle Asaram, but at about 1.00 p.m. to 1.30 p.m. his wife PW4 Sunita came to Aloknagar with his daughter and met him and his wife PW4 Sunita disclosed him that accused committed rape upon their daughter when their daughter had gone to the house of the accused to hand over the key of his house which was kept by his daughter with victim and on hearing noise of cry from the house of the accused, she went there and found that her daughter victim was frightened and she disclosed occurrence of the incident to her. Accordingly, PW1 Eknath stated that he, his wife PW4 Sunita and his brother Kaduba Pawar went to Osmanpura police station with victim daughter. He also stated that he personally saw the blood and semen on the thighs of his daughter and her private part was having bleeding injuries and her clothes were knicker were having blood and semen stains. Hence, he lodged the complaint (Exh.14) in the police station against the accused. He also deposed that the police personnel seized the nicker (article 2) of his daughter and she was referred to the Ghati ::: Downloaded on - 09/06/2013 16:04:53 ::: 13 Hospital, Aurangabad for medical examination.
17 During cross-examination, he stated that he was on leave and his daughter and son-in-law were working in another land of Ghuge; whereas accused was working in the agricultural land of Ghuge and working hours were 6.00 a.m. to 5.00 p.m. Suggestion was given to him that on the date of incident the accused was working in the agricultural land of Ghuge which was at different place, but same was denied by him. Suggestion was also given to him that his wife has not narrated him the incident of rape upon his daughter victim by the accused, but same was denied by him.
Suggestion was also given to him that on the date of incident, he and his wife were not on duty, whereas their both the children were at Aloknagar with his brother Kaduba, but same was denied by him. It was also suggested to him that in order to teach lesson to the accused they all filed false case against the accused, but same was denied by him. He also denied that since he saw blood stains on the private part and nicker of his daughter and also bleeding injury on her private part, he is deposing falsely. Suggestion was also given to him that accused was 67 to 68 years of age at the time of occurrence of incident, but same was denied by him.
::: Downloaded on - 09/06/2013 16:04:53 ::: 1418 Coming to the testimony of PW5 victim herself and since she was a child witness of five years old, her understanding to relevancy of question was verified by the learned Trial Judge, and accordingly, her deposition was recorded, wherein she stated that she knew Damodhar Baba. i.e. the accused herein, who resides at their neighbourhood, as well as she knew Karuna Tai, who had given her key of lock asking her to hand over the said key to Baba whenever he comes. The accused came in the afternoon. Karunatai had gone to work after giving key to her. She was in their house and her mummi was doing agricultural work near their house. Damodhar Baba i.e. accused came at the house in the afternoon and she handed over key to him after going to the house of the accused.
Thereupon Baba i.e. accused took her inside his house and penetrated his penis in her private part and blood started from her private part. She further stated that her mummi came running towards her and thereupon she disclosed the occurrence of incident to her. Thereafter she was taken to the hospital and doctor examined her.
19 During cross-examination, specific leading question was ::: Downloaded on - 09/06/2013 16:04:53 ::: 15 put to her that her mummi taught her what to depose before the court and thereupon she moved her neck giving signal in affirmative and also stated that it is true that her mummi taught her. She further stated that Karuna was residing near their house, but she used to play alone. She further stated that she was climbing on the mango trees, but denied that she fell from mango tree at any time. She further denied that she had been tutored by her mother what to depose in the court. She also denied that accused Damu Baba never met her and she had never handed over key of his house.
She also admitted that accused never caught hold of her and never took her inside the house. She further stated that she never disclosed the alleged incident to her mother i.e. PW4 Sunita and she also admitted that police never made inquiry with her about the said incident.
20 That takes me to the deposition of PW9 Dr. Anjana Shikumar Santpure, who stated that on 8.1.2008 she was working as Lady Medical Officer in Gynecology Department and victim was referred by the police personnel from Osmanpura police station for medical examination with history of sexual assault as given by her mother and she recorded the said history. She examined the victim ::: Downloaded on - 09/06/2013 16:04:53 ::: 16 and upon examination she found that her height was 100 cm., weight was about 11 kg. and she was having 20 teeth, as well as her secondary sexual character were not developed and she was five years old. There were seminal stains on her under garment and there was no evidence of violence upon her body. Her private part was normal and hymen was ruptured. She also stated that she took samples of blood, vaginal swab and nails and the said samples were handed over to Mr. L.M.Jadhav of Osmanpura police station. She further stated that to determine her age, she referred her to the Radiology Department. Accordingly, she issued the medical certificate, which is produced at Exh 31. She further stated that samples were sent to the Chemical Analyser's office for examination along with the covering letter Exh. 31 and pursuant to that Chemical Analyser's report regarding the said samples was received, which was produced at Exh. 33.
21 In the cross-examination, she stated that she examined the victim on 8.1.2008 at 11.00 p.m., but there was no semen and blood seen on her genitals. She also stated that hymen may be ruptured by trauma by sharp instruments and masturbation other than sexual intercourse, and hymen cannot be ruptured due to ::: Downloaded on - 09/06/2013 16:04:53 ::: 17 veneral infection. She also stated that bleeding is possible in several veneral infection and external genital infection is possible due to non-hygienic condition of private part, as also inflammation and swelling is possible in external genital infection. She also deposed that to have a sexual intercourse with a child of about five years old, more force for penetration is required, but penetration is possible.
However, during penetration there may or may not be injuries on the private part, and tears may or may not occur. She denied that by penetration there must be injury to Libia Majora/Minora. She also denied that in the absence of seminal and blood stains on the private part of victim, it cannot be said that there was no penetration, attempt to penetration or sexual intercourse. She further denied that it can not be said that the victim was not sexually assaulted. She admitted that mother of victim had not stated her the particulars of the incident. She admitted regarding issuance of certificate by her on 9.1.2008. A specific court question was put to her that was there any infection on the private part of the victim and thereupon she replied in the negative that there was no infection on the private part of the victim.
22 Coming to the deposition of PW11 Dr.Pushpa Baburao ::: Downloaded on - 09/06/2013 16:04:53 ::: 18 Rokade, who stated that on 10.1.2008, she was attached to Government Medical College and Hospital, Aurangabad as C.M.O. And on that day one Damodhar Rambhau Inchal i.e. the accused was referred by Osmanpura police for his medical examination with history of sexual assault, along with letter dated 9.1.2008 (Exh.36).
Accordingly, she examined the said accused and she produced the M.L.C. papers. On examination, she found that his height was about 5.2 ft, weight was 48 kg., he had 14 teeth and his secondary sex character were fully developed, but there was no presence of mud, seminal and blood stains upon the wearing of the accused.
She further stated that there was no evidence of violence upon his person and his genital organs were normal as there was no presence of pubic hairs of victim on the genital part of the accused and also there were no seminal and blood stains on the genital part.
Accordingly, she issued the certificate, which is produced at Exh. 37.
She categorically stated that the patient was capable of having sexual intercourse. She stated that she had taken blood sample and said sample was sealed and handed over to P.C. B.J.Pathe of Osmanpura police station, which was sent to Chemical Analyser's office for examination purpose along with letter Exh.38.
::: Downloaded on - 09/06/2013 16:04:53 ::: 1923 In the cross-examination, she stated that she had not examined accused so as to ascertain his age, and she gave his age ranging between 65 to 70 years. She further stated that since the accused had no genital disease and his all the secondary sexual characters were fully developed, she opined that he was capable for sexual intercourse. However, she admitted that she had not done any other test to ascertain his capability of sexual intercourse.
Suggestion was given to her that she had not examined the accused, but same was denied by her.
24 Turning to the testimony of PW3 Vijay Laxman Patil, panch to the seizure panchanama (Exh.19), who has stated that on 9.1.2008 he was called by the police personnel of Osmanpura police station at about 8.00 p.m. to act as panch, and another panch Baban Bhalerao was with him. The accused was also present there at the poilce station and his dhoti article 1 bearing three white stains was seized under the said panchanama. He further stated that the police personnel also seized a red colour knicker having stains produced by the father of victim in their presence under the said panchanama (Exh.20).
::: Downloaded on - 09/06/2013 16:04:53 ::: 2025 In the cross-examination, he admitted that he is acquainted with the complainant in the present case and suggestion was given to him that he went to police station along with complainant and his wife, but same was denied by him. He further stated that another panch Bhalerao was already present in the police station prior to him. Suggestion was given to him that the police personnel did not seize the articles in his presence and they obtained his signature on already written panchanama, but same was denied by him. It was also suggested to him that he deposed falsely at the instance of complainant and his brother, but same was denied by him.
26 Turning to the testimony of PW6 Karunabai Sheshrao Jadhav, who is the daughter of the accused, and although she turned hostile to the prosecution, she has categorically stated in her deposition that she handed over the key of their house to the victim.
Moreover, she also stated in her deposition that she, PW4 Sunita i.e. mother of victim and PW7 Saraswatibai were doing agricultural work on the day of incident and she stated in the cross-examination that after completion of work, she, PW7 Sunita-mother of victim, Bhimabai and PW7 Saraswatibai came together to her house. PW7 ::: Downloaded on - 09/06/2013 16:04:53 ::: 21 Saraswatibai Limbaji Kukade also stated in her deposition that she knew PW4 Sunita i.e. mother of the victim, who was working with her in agricultural land of Ghuge. She also stated that at about 1.00 p.m. she left the work and went towards her residential house and at about 1.30 p.m. remaining all came towards their houses for lunch and at that time victim was crying and Sunita Pawar was taking her towards Aloknagar. She also stated in her deposition that they were working in agricultural land which was situated at about 1 km.
Distance from Ghuge Vasti.
27 On the background of the afore said evidence, learned counsel for the appellant canvassed that the deposition of PW1 complainant namely Eknath Kashinath Pawar i.e. father of the victim and PW4 Sunita Eknath Pawar i.e. mother of the victim are Dependant upon the testimony of victim i.e. PW5, but the testimony of PW5 victim herself has not been believed by the learned Trial Court, and therefore, consequently the depositions of PW1 complainant Eknath father of victim and PW4 Sunita mother of victim, which amount to hear say evidence, and are required to be discarded. It is also argued by learned counsel for the appellant that the depositions of PW1 Eknath and PW4 Sunita have not been ::: Downloaded on - 09/06/2013 16:04:53 ::: 22 supported by the medical evidence.
28 As regards the medical evidence, according to the learned counsel for the appellant, since there is no injury on the genital part of the victim, no rape took place upon her as alleged. Moreover, it is also pointed out by learned counsel for the appellant that the medical certificate (Exh.31) of the victim discloses that her private part and genital organ was normal, which explicitly reflects that no rape took place upon the victim as alleged. As regards the alleged rupture of hymen of the victim in the instant case, learned counsel for the appellant submitted that for rupture of hymen, there has to be deep penetration leading to injuries to Libia Majora/Minora and Vulva, resulting into bleeding in genetic part of a minor girl, but in the instant case, there was no bleeding injury in the genetic part and no injury to Libia Majora and Minora as well as Vulva and the said aspect falsifies the allegations of the prosecution in respect of alleged rape on the victim. Moreover, it is also canvassed by learned counsel for the appellant that the Chemical Analyser's report Exh.33 also discloses that no semen was detected on Exhs. 2 and 3 i.e. vaginal swab of the victim. So also, the Chemical Analyser's report (Exh. 46) in respect of dhoti of the accused discloses that no blood ::: Downloaded on - 09/06/2013 16:04:53 ::: 23 was detected thereon.
29 To substantiate the said contention, learned counsel for the appellant relied upon the contents in the Text Book of Medical Jurisprudence and Toxicology by Parikh, in Section IV, under the heading Sexual Offences-Rape, on page 434 thereof, as follows :-
" Rape on children : In young children, as the vagina is very small and hymen deeply situated, adult penis cannot completely penetrate it. In rare cases of great violence, the organ may be forcibly introduced, causing great tearing of the tissues, often through the perineum into the anus."
30 However, in the instant case, the victim was of about five years old, but her medical certificate (Exh.31) discloses that her private part i.e. genital organ was normal, and therefore, no rape took place upon her as alleged by the prosecution.
31 Moreover, learned counsel for the appellant submitted that medical certificate (Exh.31) of victim discloses that hymen of victim was ruptured and in the said context PW9 Dr. Anjana has stated in the cross-examination that hymen may be ruptured by ::: Downloaded on - 09/06/2013 16:04:53 ::: 24 trauma by sharp instruments and masturbation other than sexual intercourse and hymen cannot be ruptured due to veneral infection.
Hence, it is canvassed by learned counsel for the appellant that hymen of the victim might have been ruptured due to trauma or by sharp instrument or by masturbation and alleged rape upon the victim is not the cause of rupture of the hymen since there was no injury to the private part i.e. genital organ of the victim as reflected in the medical certificate Exh.31.
32 In the said context, learned counsel for the appellant relied upon the contents in the Book Modi's Medical Jurisprudence and Toxicology, Twenty-Second Edition, Chapter XVIII, under heading Sexual Offences-Rape, on pages 503-504 thereof, as follows :-
" In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of fourchette and perinaeum.
The fourchette and posterior commissure are
not usually injured in cases of rape, but they
may be torn if the violence used is very
::: Downloaded on - 09/06/2013 16:04:53 :::
25
great. The extent of injury to the hymen and genital
canal depends upon the degree of disproportion between the genital organs of both parties and the violence used on the female. "
33 As regards the genital organ of the accused/appellant, the learned counsel for the appellant submitted that it was examined by the doctor and medical certificate (Exh.37) was issued to that effect and the said certificate discloses that the private part/genital organ of the accused was also normal and there was no injury on the penis.
Learned counsel for the appellant submitted that hence rupture of hymen cannot be the cause to hold commission of rape, since PW9 Dr. Anjana had nowhere opined in her deposition that sexual intercourse took place between the accused and the victim.
34 Learned counsel for the appellant also urged that since the victim narrated the incident to her mother i.e PW4 Sunita in presence of people, which is the matter of evidence, some independent witness, more particularly any lady should have been examined by the prosecution as independant witness, but no such witness has been brought by the prosecution and the said infirmity hampers the case of prosecution. Besides that, it is canvassed by ::: Downloaded on - 09/06/2013 16:04:53 ::: 26 the learned counsel for the appellant that the place where the mother of victim was working was about 1 km. away, as stated by PW7 Saraswati in her deposition, and therefore, also the version of PW4 Sunita in that respect is doubtful.
35 Accordingly, learned counsel for the appellant submitted that the prosecution has failed to prove the charges levelled against the appellant beyond reasonable doubt and the appellant has been implicated in this case falsely, and hence, present appeal deserves to be allowed, quashing the conviction and sentence inflicted upon him and the appellant deserves to be acquitted in respect of the charges levelled against him.
36 Moreover, learned counsel for the appellant also relied upon the following observations made in the judgment delivered by this court in the case of Suresh s/o Govinda Nagdeve and Anr. Vs State of Maharashtra, reported at 2008 ALL MR (Cri) 648 :-
" The absence of hymen has also not been explained by the said Medical Officer. Had the incident of forcible rape been the first incident of sexual intercourse, there would have been definitely a fresh ::: Downloaded on - 09/06/2013 16:04:53 ::: 27 tear of the hymen. When there are no relevant injuries, and when the Medical Officer is unable to opine as regards sexual intercourse, whether it has taken place or not, it is difficult and unsafe to accept the uncorroborated testimony of the prosecutrix for basing conviction. "
37 Learned counsel for the appellant also relied upon the observations in the case of Krishna s/o Soma Raut vs State of Maharashtra, reported at 2008 ALL MR (Cri) 656, which are as follows :-
" Suspicion how so ever strong cannot take place of proof and no judicial decision can rest on mere suspicion. The prosecution story "may be true" and "must be true", there is inevitably a long distance to travel and the whole of this distance must be covered by legal reliable and unimpeachable evidence. It is also necessary to bear in mind that, no judge can take a fact as proved unless there is a legal proof. The moral conviction cannot be said to be a legal conviction unless it is supported by unimpeachable and legally admissible evidence on record. "
38 Learned counsel for the appellant further relied upon the observations made in the case of Pappu vs State of Delhi, reported ::: Downloaded on - 09/06/2013 16:04:53 ::: 28 at 2009 CRI. L.J. 3342, wherein it is observed that :-
"Accused was alleged to have raped prosecutrix, a minor girl of 6 years of age in a semi- constructed house. Serologist's report stated that no blood was detected either on underwear of prosecutrix or of accused, nor blood was detected on vaginal swabs of prosecutrix. It belies testimony of mother of prosecutrix that she saw blood on underwear and clothes of prosecutrix. Prosecution story also belied in view of statement of prosecutrix that labours were working in semi-constructed house. Besides that, admission of prosecutrix that whatever she stated in the Court is at the behest of her mother, is also suggestive of her being tutored. Hence, false implication motivated by father of prosecutrix to settle scores with accused not ruled out, and therefore, the conviction of the accused is nor proper. "
It is also observed in the afore said judgment that ;-
" In the light of Medical Jurisprudence on the subject, the victim was not subjected to any sexual assault. The reason is obvious. Medical Jurisprudence evidences that in adolescent girls the hymen is situated relatively more posteriorly and for said reason there is a possibility of rape being committed without the hymen being torn; the converse whereof would be that if the ::: Downloaded on - 09/06/2013 16:04:53 ::: 29 hymen of an adolescent girl is torn due to rape, the penetration has to be a deep penetration. The Medical Jurisprudence guides that the labia majora are the first to be encountered by the male organ and they are subjected to blunt forceful blows, depending on the vigour and the force used by the accused and counteracted by the victim. The narrowness of the vaginal canal makes it inevitable for the male organ to inflict blunt, forceful blows on the labia and such blows lead to contusion because of looseness and vascularity."
39 Learned Additional Public Prosecutor Shri S.D.Kaldate for the respondent countered the afore said arguments and submitted that admittedly the age of victim was about five years at the time of occurrence of the incident and the accused and the victim were residing nearby each other and the victim is immature, who was not believed by the Trial Court, and therefore, since there is no direct evidence, the circumstantial evidence has to be considered, which has been adduced and produced by the prosecution through the witnesses PW4 Sunita i.e. the mother of the victim and PW1 Eknath i.e. the father of the victim. In the said context, learned Additional Public Prosecutor submitted that the nicker of the victim was sent to the Chemical Analyser for examination purpose along with ::: Downloaded on - 09/06/2013 16:04:53 ::: 30 forwarding letter dated 22.1.2008 (Exh.43) and the Chemical Analyser's report thereof dated 12.5.2008 (Exh.46) discloses that semen was found on the said nicker/jangya and the said semen was of blood group 'A' and pertinently blood group of the accused/appellant is also of 'A' group, and therefore, the stains of semen on the nicker of victim can be tacked with the accused/appellant, and the said vital circumstance is incriminating against the appellant. It is also canvassed by the learned Additional Public Prosecutor that the victim disclosed the incident to her mother, which is quite natural and PW4 Sunita i.e. mother of victim stated before the Court the version of victim and since victim is immature and minor girl of five years she might have given certain admissions, but her evidence is required to be considered along with other circumstances, and hence, the version of PW4 Sunita needs to be considered in that perspective and deserves to be believed.
40 According to the learned Additional Public Prosecutor, the medical case papers (Exh.42) disclose that the examination of the victim was required to be done under the anesthesia and therefor she was admitted into hospital for three days i.e. from 9.1.2008 to 11.1.2008, and local examination of her genital organ disclosed that ::: Downloaded on - 09/06/2013 16:04:53 ::: 31 her hymen was ruptured.
41 In the said context, learned Additional Public Prosecutor pointed out that PW9 Dr. Anjana also has stated in her deposition that when she examined the victim, she found that there were semen stains on her under-garment, and although there was no evidence of violence upon her body and her private part was normal, her hymen was ruptured. As regards rupture of hymen, she stated that hymen may be ruptured by trauma and by sharp instruments and masturbation other than sexual intercourse and same cannot be ruptured due to veneral infection. In the instant case, since there are no suggestions and/or nothing has been brought by defence on record that rupture of hymen in the instant case was because of trauma or by sharp instrument or masturbation, it is certainly ruptured due to sexual intercourse by the accused with the victim.
42 Accordingly, learned Additional Public Prosecutor submitted that learned Trial Court has rightly convicted and sentenced the appellant and arrived at a conclusion therefor with the sound and logical reasoning, and hence, no interference therein is warranted in the appellate jurisdiction, and relied upon the ::: Downloaded on - 09/06/2013 16:04:53 ::: 32 observations made by Hon'ble Supreme Court in the case of Manga vs State of Haryana, reported at AIR 1979 SC 1194, wherein it is observed that :-
"It was then contended that the doctor found that hymen was torn and ruptured yet she did not find any swelling, redness or inflammation around the bruises which should have normally been found if rape had been committed recently. This circumstance is not sufficient to put the prosecution case out of court because the fact that there was a rupture of the hymen and a bruise around the hymen was sufficient to prove the act of rape. It is difficult for any medical expert to give the exact duration of time when the rape was committed. "
43 Learned Additional Public Prosecutor also relied upon the observations made in the case of Aman Kumar and another vs State of Haryana, reported at (2004) 4 SCC 379, which are as follows :-
" It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the ::: Downloaded on - 09/06/2013 16:04:53 ::: 33 latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value,it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice. "44
Learned Additional Public Prosecutor also relied upon the following observations made in the case of State of Haryana vs Jang Bahadur, reported at 1999 Cri.L.J. 5028 (S.C.).
" Accused was alleged to have raped girl of 13 years. As per report of Chemical Analyser, on all the seized articles by the police i.e. undergarment of accused, salwar of prosecutrix and chaddar on which accused committed rape, same group of semen was found. Vaginal swab also indicated presence of semen. Moreover, the Injuries found on person of accused also tallied with time when commission of rape was alleged. Besides, prosecutrix was found weeping by the neighbourers immediately after the incident and accused was also found leaving place at that time. Hence, it is held that case against the accused was established and acquittal was set aside. "::: Downloaded on - 09/06/2013 16:04:53 ::: 34
45 Learned Additional Public Prosecutor further relied upon the Division Bench judgment of this Court in the case of Harishchandra Vasudeo Vaity vs State of Maharashtra and anr., reported at 2007 (1) Bom.C.R. (Cri.) 550, wherein it is observed that :-
" Rape of minor aged 5 years. The evidence of witnesses to whom she narrated the incident and who followed the matter further remains unshaken, as well as doctor testified injuries on victim who had to be hospitalized for about 10 days. Moreover, victim also testified facts in Court, and hence, case is supported by other corroborating evidence of clothes, etc. as were seized, and therefore, it was held that guilt of the accused has been proved offence by accused for which he is rightly charged. Sentence of life imprisonment imposed for an offence on a girl of 5½ year age is justified and is confirmed. "
46 Learned Additional Public Prosecutor also relied upon the observations made in the judgment of this Court in the case of Mahesh Narayan Sahare vs State of Maharashtra, reported at 2007 (2) Bom.C.R. (Cri.) 46, which are as follows :-
" The evidence of Dr. Tejram (P.W.1) in ::: Downloaded on - 09/06/2013 16:04:53 ::: 35 pursuance of the finding recorded or observations noted in the Certificate Exh.20, no doubt, shows absence of any injury to the private part of the prosecutrix, so also the fact that all her sexual secondary organs, breast and pubic hairs were well developed. Her hymen was completely ruptured and vagina was found to be specious which showed that she experienced coitus repeatedly since long duration. This clinchingly shows that she was habituated to sexual intercourse. The Medical Officer has also opined that no definite opinion regarding the experience of last coitus could be given.
There was no injury seen over the vagina or any other private part. These findings recorded by the Medical Officer have been highlighted by the defence to support its contention that the factum of sexual intercourse at the time and place has not been clinchingly established. Rather it was submitted that the claim in that regard has been negatived because of these findings. But, in my opinion, having regard to the other attending circumstances, it is very difficult to accept the submissions of the learned Advocate in that regard. In the first place, it is to be noted that when it was found that there was rupture of hymen and the vagina was specious, the prosecutrix has experienced coitus repeatedly since long. If that is so, then when the appellant had sexual intercourse with the prosecutrix, in all probabilities, there could not have been any injury on her private parts. Therefore, merely no injury was found on her private parts, it is very difficult to discard her claim that rape was committed on her. It is needless to say that the gist of findings of rape is ::: Downloaded on - 09/06/2013 16:04:53 ::: 36 having forcible sexual intercourse against the consent of a woman. Therefore,in case a woman or a girl is unfortunately used to sexual intercourse, it is not necessary that in such a case, there would be evidence in the form of injury to her private parts as a result of sexual intercourse having been taken against her consent. "
47 Thus, the learned Additional Public Prosecutor supported the judgment of the Trial Court and submitted that there is no perversity in the impugned judgment, and hence, it does not call for any interference.
48 I have perused the impugned judgment dated 21.11.2009 and scrutinized the oral and the documentary evidence and the medical evidence adduced and produced by the prosecution on record, and also considered the submissions advanced by learned counsel for the parties respectively and gave thoughtful consideration to the observations made in the respective cases cited by both the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent, and I am inclined to accept the submissions advanced by Shri S.D.Kaldate, learned Additional Public Prosecutor since admittedly the age of PW5 victim ::: Downloaded on - 09/06/2013 16:04:53 ::: 37 was about five years at the time of occurrence of the incident and since she was immature and considering the tenor of her testimony, who was very well susceptible for tutoring, her testimony could not be relied upon, and therefore, there is no direct evidence in respect of occurrence of the incident.
49 On the said scenario, the circumstantial evidence, which was been adduced and produced by the prosecution on record, more particularly through witness PW4 Sunita i.e. mother of the victim and PW1 Eknath i.e. father of victim, as well as other circumstances are required to be considered. As regards the said contention of PW4 Sunita that on the date of incident, she was residing at Ghuge Vasti as well as accused was also residing near her house, the same has been substantiated by the daughter of the accused, PW6 Karunabai as well as PW7 Saraswatibai, and therefore, there is no dispute that the victim was knowing the accused. As regards the occurrence of the incident at about 1.00 p.m. on the date of incident, PW4 Sunita th stated that her husband had been to Pawar Vasti for 13 day rites of his cousin brother and her two sons had been to the school and she was working in the land near her house; whereas victim-her daughter was at house. The aspect of PW4 Sunita working in the field has ::: Downloaded on - 09/06/2013 16:04:53 ::: 38 been substantiated by PW7 Saraswatibai, and therefore, it is clear that PW4 Sunita did not accompany with her husband to Pawar Vasti, and she was working in the field near her house and her sons had been to the school; whereas victim alone was at her house.
Moreover, PW6 Karunabai-daughter of accused specifically stated in her deposition that she handed over key of their house to victim, which is the prelude to the occurrence of the incident, and on the said background PW4 Sunita stated that when she was working, she heard hue and cry of her daughter from the house of the accused, and therefore, she immediately rushed towards the said house and went in the house and saw the accused there and her daughter was crying and nicker of her daughter was having blood stains and white colour stains. Hence, she asked the daughter about the incident and thereafter victim replied that when she had been to the house of accused to give him key of his house, the accused caught hold of her and made her lie on the ground and removed his dhoti and inserted his penis into her vagina. Hence, PW4 Sunita stated that she examined her private part and it had bleeding injuries. Thereafter she stated that she took her daughter at Pawar Vasti towards her husband and disclosed the incident to him and thereafter they went to police station.
::: Downloaded on - 09/06/2013 16:04:53 ::: 3950 Hence, it is amply clear that victim had been to the house of the accused to give the key which was given to her by the daughter of the accused, namely PW6 Karunabai, which is the prelude to further occurrence of the incident as narrated by the victim to her mother PW4 Sunita, is the immediate conduct of the victim after the occurrence of the incident and disclosure of the said occurrence of the incident by victim to her mother immediately is quite natural and same has to be seen in that perspective.
51 Moreover, PW1 Eknath also stated in his deposition that he personally saw the blood and semen stains on the thighs of his daughter and her private part was having bleeding injury, her clothes and nicker were having blood and semen stains, and accordingly, he lodged the complaint at the police station Exh.14. In the said context, it is important to note that the said nicker was sent to the Chemical Analyser for examination purpose and forwarding letter dated 22.1.2008 is at Exh.43and the Chemical Analyser's report thereof dated 12.5.2008 (Exh.46) discloses that semen was found on th said nicker/jangya and said semen was of blood group 'A' and pertinently blood group of accused/appellant herein is also 'A', and ::: Downloaded on - 09/06/2013 16:04:53 ::: 40 therefore, the stains of semen on the nicker of victim can be very well tacked with the accused/appellant and the said vital circumstance is certainly incriminating against the appellant herein.
52 Besides that, PW3 Vijay Patil stated in his deposition that dhoti of accused having three white stains was seized under the seizure panchanama (Exh.19) in his presence, as well as nicker of victim was also seized under seizure panchanama (Exh.20) in his presence and the said dhoti was sent to the Chemical Analyser for examination purpose and the Chemical Analyser's report thereof (Exh.46) dated 12.5.2008 also discloses that the said dhoti bore one human stain and although blood group of said semen could not be determined, no plausible explanation has been given by the accused in that respect.
53 The afore said aspect is further strengthened, since the medical case papers (Exh.42) disclose that the examination of the victim was required to be done under anesthesia and she was admitted into hospital therefor or three days i.e. from 9.1.2008 to 11.1.2008 and medical examination of her genital organ disclosed that her human was ruptured. In the said context, the version of ::: Downloaded on - 09/06/2013 16:04:53 ::: 41 PW9 Dr. Anjana is important, who examined the victim and on examination, she found that there were semen stains on her under-
garment and although there was no evidence of violence upon her body and her private part was normal, her hymen was ruptured. As regards rupture of hymen, she stated that hymen may be ruptured by trauma and by sharp instruments and masturbation other than sexual intercourse and same cannot be ruptured due to veneral infection.
However, in the instant case, admittedly there are no suggestions in that respect by defence that the rupture of hymen of the victim in the instant case was because of trauma and by sharp instruments and masturbation, and therefore, it needs to be construed that hymen was ruptured due to sexual intercourse by the accused with the victim.
54 PW9 Dr. Anjana further stated that during penetration there may or may not be injuries on private part and tears may or may not occur. She also denied that by penetration there may be injury to Libia Majora/Minora. Accordingly, the circumstances that there was rupture of hymen of victim, accused was found in his house along with the victim bearing blood stains and semen stains on her nicker and also semen stains on dhoti of the accused ::: Downloaded on - 09/06/2013 16:04:53 ::: 42 immediately after the occurrence of the incident, are the vital incriminating circumstances against the accused/appellant herein.
55 Thus, the relevant circumstances established by the prosecution against the accused/appellant herein, which connect him with the alleged crime, are as follows :-
(i) Victim was found in the company of the appellant in the house of accused.
(ii) She was crying
(iii) She disclosed to her mother about the occurrence of
incident.
(iv) The mother disclosed the said facts to the father of
thereafter victim, namely PW1 Eknath, who filed the complaint.
(v) In medical examination of victim, hymen was found to be ruptured.
(vi) Mother noticed the stains of semen and blood on the nicker of the victim.
(vii) The Chemical Analyser's report is positive in respect of semen on dhoti and nicker of 'A' blood group, which is the blood group of the appellant/accused, establishing ::: Downloaded on - 09/06/2013 16:04:53 ::: 43 nexus between the alleged crime and the appellant.
(viii) No explanation by the appellant in respect of stains of thereafter semen on the nicker of the victim.
I am of the considered view that the learned Trial Judge has rightly accepted the above referred circumstances, which have been proved by the prosecution against the accused, which unerringly point out towards the guilt of the accused, and therefore, the reasoning adopted by the learned Trial Judge cannot be faulted with in that respect.
56 It is settled principle of law, if the court finds it difficult to accept the version of prosecutrix on the face value, as occurred in the instant case since the prosecutrix is minor and immature of five years girl, the court may search for evidence direct or circumstantial.
Moreover, in the matter of appreciation of evidence in criminal case, principle of precedent is not applicable as the case is to be decided on its own facts. The decision has to be considered on the background of factual scenario. Hence, the facts of the cited cases by the learned counsel for the appellant and the facts and circumstances in the instant case are quite different on various ::: Downloaded on - 09/06/2013 16:04:53 ::: 44 aspects and since the present case has its own peculiar facts and the version of PW4 Sunita that she saw semen stains on the private part of victim and blood oozing from her private part is corroborated by the evidence of her husband i.e. PW1 Eknath and their immediate subsequent conduct is consistent with the incident of rape. The doctor's evidence disclose that hymen of the victim was ruptured and nicker was stained with semen and the Chemical Analyser's report clearly proves that the semen stains on the nicker of the victim were of human being and same were of blood group 'A' and the Chemical Analyser's report of blood of accused (Exh.55) clearly proves his blood group as 'A', which further categorically proves that the nicker of the victim was stained with the semen of the accused. Accordingly, reliance can be very well be placed on the observations made by Hon'ble Supreme Court in the case of Manga vs State of Haryana [AIR 1979 SC 1194], cited supra, that the doctor examining the victim found that hymen was torn and ruptured and the mere circumstance that doctor found swelling, redness or inflammation around the bruises would not be sufficient to put the prosecution case out of court, because the fact that there was rupture of hymen and bruise around the hymen was sufficient to prove the act of rape.
::: Downloaded on - 09/06/2013 16:04:53 ::: 4557 Besides that, it cannot be ignored that if at all there was any dispute between the complainant and the accused, as suggested in the cross-examination, the complainant PW1 Eknath and his wife PW4 Sunita would never involve their own daughter of five years with the allegations of rape upon her by the accused to take revenge against the accused.
58 Having the comprehensive view of the matter and also after scrutinizing and analyzing ocular and medical evidence as well as evidence of Chemical Analyser adduced and produced on record by the prosecution, it is amply clear that the view adopted by the learned Trial Judge, after assessing and appreciating the evidence convicting and sentencing the accused for the offence punishable under Section 376(2)(f) of the Indian Penal Code, as well as for the offence punishable under Section 342 of the Indian Penal Code, does not appear to be perverse and the reasoning adopted therefor cannot be faulted with, and therefore, this is not a fit case in which interference in the appellant jurisdiction is warranted.
59 In the result, present appeal bears no substance and ::: Downloaded on - 09/06/2013 16:04:53 ::: 46 same is devoid of any merits and same deserves to be dismissed, and accordingly, Criminal Appeal No. 643 of 2009 stands dismissed, confirming the conviction and sentence inflicted upon the accused/appellant herein by way of judgment and order rendered by the learned Additional Sessions Judge-5, Aurangabad in Sessions Case No. 102 of 2008 on 21.11.2009.
(SHRIHARI P. DAVARE), JUDGE.
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