Bombay High Court
Balu S/O Bhausaheb Kothule vs The State Of Maharashtra on 15 July, 2011
1 cra103.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 103 OF 2011
Balu s/o Bhausaheb Kothule,
age 41 years, occ. Tractor Driver,
R/o Khadki, Tq. Nagar,
District Ahmednagar ig ...Appellant
(Original Accused)
VERSUS
The State of Maharashtra,
through Nagar Taluka
police station ...Respondent
.....
Ms. Monika Purnapatre, advocate appointed for appellant
Shri V.D.Rakh, A.P.P. for the respondent
.....
CORAM : SHRIHARI P.DAVARE, J.
DATED : 15th July, 2011
ORAL JUDGMENT :
1 Challenge in this appeal is to the conviction and sentence imposed upon the appellant (original accused) by way of judgment and order, dated 12.1.2011. It appears that the ::: Downloaded on - 09/06/2013 17:30:51 ::: 2 cra103.11 appellant herein faced the trial for the offence punishable under Sections 376, 354, 323, 504 and 506 of the Indian Penal Code under Sessions Case No. 136 of 2010 and was convicted therefor, excepting for the offence punishable under Section 504 of the Indian Penal Code and was sentenced to suffer R.I. for the period of ten years and to pay fine of Rs. 10,000/-, in default of payment of fine to suffer R.I. for six months for the offence punishable under Section 376 of the Indian Penal Code; and was also sentenced to suffer R.I. for two months and to pay fine of Rs. 5,000/-, in default of payment of fine to suffer R.I. for three months for the offence punishable under Section 354 of the Indian Penal Code; and was further sentenced to suffer R.I. for the period of one year and to pay fine of Rs. 1,000/-, in default of payment of fine to suffer R.I. for one month for the offence punishable under Section 323 of the Indian Penal Code; as well as was sentenced to suffer R.I. for the period of two years and to pay fine of Rs. 1,000/-, in default of payment of fine to suffer R.I. for one month for the offence punishable under Section 506 of the Indian Penal Code; and it was also directed that the afore said substantive sentences to run concurrently, by way of judgment and order, dated ::: Downloaded on - 09/06/2013 17:30:51 ::: 3 cra103.11 12.1.2011, rendered by the learned District Judge-6 and Assistant Sessions Judge, Ahmednagar.
2 The factual matrix and the events leading to the present appeal are as follows :-
The prosecutrix Nilima lodged the complaint against her father i.e. appellant herein with the Ahmednagar Taluka police station and reported that the appellant herein, namely Balu @ Balasaheb Bhausaheb Kothule i.e. father of the prosecutrix outraged her modesty and also two months prior to 5.4.2010 raped upon her for two times, as well as raped upon her during night of 5.4.2010 when she was residing along with the appellant and her grand father, namely Bhausaheb Kothule and sister Nikita in the house at Khadki, Taluka and District th Ahmednagar. She also alleged that she was the student of 8 standard in Tuljabhavani High School at Khadki and her father Balasaheb had married to one Kamalabai and initially they were residing at Kalewadi, Pimpri-Chinchwad, District Pune, but about one year back her mother died due to heart attack, and hence, the appellant, prosecutrix and her sister Nikita shifted to the house of her grand parents, namely Bhausaheb and ::: Downloaded on - 09/06/2013 17:30:51 ::: 4 cra103.11 Babaibai Kothule at Khadki. It is also alleged that the appellant was the driver by profession on a dumper at Khandala and used to leave his house at about 7.00 a.m. with the tifin and used to return back at about 8.00 p.m. It is also alleged that about two months prior to the incident of rape i.e. 5.4.2010, the appellant picked up a quarrel with his mother Babaibai and drove her out of the house, and therefore, she took the shelter of house of her daughter Saina Vitthal Gadhave in the same village at Khadki.
3 It is the case of the prosecutrix that on 5.4.2010 the prosecutrix returned to the house after giving the examination paper and prepared food at about 9.00 p.m. At this juncture, the appellant came to the house in drunken condition. The prosecutrix served him food. After the dinner, the appellant went out of the house. Thereafter, the prosecutrix, her sister Nikita and grand father Bhausaheb also took their dinner and went to sleep in the court yard of the house. The appellant returned home at about 11.00 p.m. It is alleged that the prosecutrix woke up when her legs were pulled by the appellant father and the appellant skidded her inside of the house from ::: Downloaded on - 09/06/2013 17:30:51 ::: 5 cra103.11 the court yard. Thereupon, the prosecutrix cried, but the appellant gave threat to kill her, and hence, prosecutrix remained silent. After taking inside the house, the appellant removed her salvar, kurta, petty coat and nicker. The prosecutrix was beseeching "No, No" and started weeping.
However, the appellant ignored her weeping and started rubbing her chest. Then, the accused removed his clothes and laid the prosecutrix on the cot and divided her legs opposite to each other and laid on the person of the prosecutrix and committed the sexual intercourse with her like husband and wife. The appellant also gagged her mouth by one hand. It is further alleged that there was pain to her urinating place and she became unconscious. It is further alleged that on the next day morning, the appellant kicked the prosecutrix and woke her up at 4.00 a.m. and asked her to cook food. Accordingly, after taking tifin, the appellant left the house at about 7.00 a.m. and while leaving the house gave threat to the prosecutrix to kill her if she disclosed the incident to anybody. Hence, the prosecutrix was scared.
4 It is also the case of prosecution that after leaving the ::: Downloaded on - 09/06/2013 17:30:51 ::: 6 cra103.11 appellant for his work, the prosecutrix took the bath and washed away her clothes. Thereafter, she narrated the incident to her aunt, namely Tarabai and grand father Bhausaheb, who in turn informed to Badambai, her remote grand mother, as well as the said incident came to the knowledge of one Raghunath Kothule, remote maternal uncle of the prosecutrix, who took her and her sister Nikita to their houses. On 10.4.2010 Raghunath Kothule left the prosecutrix and her sister Nikita to the house of PW4 Chandrakant Borude i.e. maternal uncle of victim, resident of Sarola Baddi. The prosecutrix narrated the events to the said maternal uncle and aunt. Accordingly, her complaint (Exh.15) was recorded by P.S.O. of Nagar Taluka police station PW9 A.S.I. Bapu Bhosale on 14.4.2010 and offence was registered against the appellant under C.R. No. 62 of 2010 under Sections 376, 354, 504 and 506 of the Indian Penal Code and same was treated as the first information report.
5 It is further the case of prosecution that PW8 Mrs. Jyotipriya Singh, Superintendent of Police (Rural), Ahmednagar, was having charge of Nagar Taluka police station at the relevant time and on 14.4.2010 she received C.R. No. 62 ::: Downloaded on - 09/06/2013 17:30:51 ::: 7 cra103.11 of 2010 for further investigation. Accordingly, she perused the complaint and special report of the crime and arrested the appellant under arrest panchanama (Exh.31). The special report (Exh.38) was prepared by PW9 A.S.I. Bhosale.
Thereafter PW8 Mrs. Jyotipriya Singh issued letter (Exh.17) for examination of the appellant and the appellant was sent to the Civil Hospital, Ahmednagar for examination purpose.
Accordingly, PW2 Dr. Bharati Peche, who was Medical Officer at the Civil Hospital, Ahmednagar, examined him and collected the samples of blood, hair and nail, as well as sample of his semen was taken by other doctor, namely Dr. Bhujbal and M.L.C. (Exh.18) was registered. She also prepared the medical certificate of examination of the appellant at Exh. 20.
6 Thereafter, PW8 Mrs. Jyotipriya Singh visited the spot of the offence on 15.4.2010 and drew spot panchanama (Exh.
35) and the complainant prosecutrix pointed out the said spot of the offence. The quilt and bed sheet (cover of mattress) i.e. articles C and D were attached from the scene of offence under the said panchanama. Moreover, the clothes of the prosecutrix and the accused were also seized bearing article nos. 1 to 10 ::: Downloaded on - 09/06/2013 17:30:51 ::: 8 cra103.11 under panchanama Exhs. 34 and 35 respectively.
7 The prosecutrix was referred to the Civil Hospital, Ahmednagar and PW6 Dr. Kalamkar Sandip Malhari examined her as per letter of Reference (Exh.26), as well as her radiological examination was conducted for confirmation of her age and while recording her history, her age was given as 13 years. Accordingly, he issued the medical examination certificate of the prosecutrix, which is produced at Exh.27.
8 Moreover, PW8 Mrs. Jyotipriya Singh also recorded statements of witnesses, as well as she gave letter (Exh.41) to the Head Master, Tuljabhavani Madhyamik Vidyalaya, Khadki and requested for bona fide certificate of the prosecutrix on 21.4.2010. Accordingly, on 22.4.2010, she received letter from the Head Master of the said school along with bona fide certificate (Exh.32) of the prosecutrix, showing her date of birth therein.
9 The prosecution case further recites that PW8 Mrs. Jyotipriya Singh prepared forwarding letter (Exh.33) and sent ::: Downloaded on - 09/06/2013 17:30:51 ::: 9 cra103.11 the muddemal clothes of the accused and the prosecutrix to the Forensic Laboratory on 21.4.2010. Accordingly, the chemical analysis reports were received from the Chemical Analyser's office, which are produced at Exhs. 43, 44, 45 and 46, respectively. During the investigation, the prosecutrix and her sister were produced before the Special Judicial Magistrate for recording the statement. Accordingly, after completion of investigation, PW8 Mrs. Jyotipriya Singh filed the charge sheet before the learned Judicial Magistrate, First Class, Court no.6, Ahmednagar on 5.7.2010 and thereafter the said learned Judicial Magistrate, First Class, Court No.6, Ahmednagar, committed the case to the Court of Sessions, Ahmednagar on 6.7.2010.
10 Accordingly, charge was framed against the appellant on 15.7.2010 at Exh. 2 by the learned District Judge-6 and Assistant Sessions Judge, Ahmednagar for the offences punishable under Section 376, 354, 323, 504 and 506 of the Indian Penal Code.
11 To substantiate the said charges levelled against the ::: Downloaded on - 09/06/2013 17:30:51 ::: 10 cra103.11 appellant, the prosecution examined as many as 9 witnesses, as mentioned below :-
PW1 Nilima Balasaheb Kothule i.e. prosecutrix.
PW2 Dr. Bharati Shahaji Peche, who examined the accused and issued medical certificate Exh.18 and case papers (Exh.20).
PW3 Badambai Sitaram Kothule, relative of prosecutrix, whom prosecutrix narrated the incident for the first time.
PW4 Chandrakant Bhanudas Borude, maternal uncle of victim Nilima.
PW5 Mithu Sopan Sathe, panch for panchanama of seizure of clothes of victim (Exh.24).
PW6 Dr. Kalamkar Sandip Malhari, who examined the prosecutrix and issued the medical certificate (Exh. 27).
PW7 Ram Vitthal Salunke, panch to spot panchanama Exh.35.
PW8 Mrs. Jyotipriya Singh, Superintendent of Police (Rural), Ahmednagar - investigating officer.
PW9 A.S.I. Bapu Dashrath Bhosale, who recorded the complaint of prosecutrix (Exh.15).
::: Downloaded on - 09/06/2013 17:30:51 :::11 cra103.11 12 The defence of the appellant/accused was of total denial. He contended that he has been implicated in this case falsely and he further stated that his wife was heart patient prior to marriage a quarrel was picked up on birth of daughters. His brother in law i.e. PW4 Chandrakant blamed him for death of his wife. Then they started insisting upon him to transfer his landed property, to which appellant/accused refused. Hence, the said brother in law lodged false case against him, through PW1 Nilima, and accordingly, the accused claimed to be innocent. After considering the oral, the documentary and the medical evidence adduced/produced by the prosecution on record, as well as considering the rival submissions advanced by the learned counsel for the parties, the learned Assistant Sessions Judge and District Judge-6, Ahmednagar, convicted and sentenced the appellant/accused as aforesaid. Being aggrieved and dissatisfied by the said conviction and sentence, the appellant has assailed the same by filing the present appeal and prayed for quashment thereof.
13 Before adverting to the submissions advanced by the ::: Downloaded on - 09/06/2013 17:30:51 ::: 12 cra103.11 learned counsel for the parties, it is necessary to deal with the material evidence on record and the pivot of the prosecution case revolves around the very testimony of the prosecutrix, namely Nilima Kothule, wherein she has narrated the occurrence of events meticulously, wherein she stated that her mother died when they were residing at Pimpri-Chinchwad, Pune, and therefore, they shifted to the house of her grand parents along with accused and her younger sister at Khadki, Taluka Nagar. Her father was serving as driver on a dumper at Khandala. She used to prepare food in the house for all the family members i.e. grand parents, sister and accused father.
Her father used to leave the house at about 7.00 a.m. and used to return back at about 8.00 p.m. One day quarrel took place between accused father and grand mother of prosecutrix, namely Babaibai, and hence, the accused/appellant drove her out of the house, which occurred about two months prior to the incident and therefore, she went to her married daughter, namely Saina Vitthal Gadhave for shelter. She further stated that on 5.4.2010 at about 2.30 p.m. she attended her examination of drawing and returned back at 5.30 p.m. At about 6.00 p.m. she prepared food for all the members of the ::: Downloaded on - 09/06/2013 17:30:51 ::: 13 cra103.11 family and at about 8.00 p.m. her father returned to home and she served him food and after dinner he went outside the house. Thereafter, the prosecutrix, her sister Nikita and grand father Bhausaheb took their dinner and went to sleep in the court yard of the house.
14 She further stated that about 11.00 p.m. her father returned back to home and pulled her legs and thereby she was woke up and the appellant/accused dragged her inside of the house from the court yard and while dragging inside the house she requested him not to do the atrocity on her, but accused ignored her and gave her threat not to shout and further gave threat to kill her, if shouted. Hence, prosecutrix started weeping and crying. The appellant removed his clothes as well as her clothes and thereafter he laid the prosecutrix on the cot and divided her legs to opposite sides. There was mattress (Gadi) covered with quilt (Godhadi). He laid on her person and committed the sexual intercourse with her like husband and wife, and thereby she started paining to her private part and she became unconscious. At about 4.00 a.m. her father appellant kicked her and woke her up and asked to ::: Downloaded on - 09/06/2013 17:30:51 ::: 14 cra103.11 prepare food for tifin, and accordingly, she prepared food and appellant took tifin and left at 7.00 a.m. for work and before leaving the house he threatened to the prosecutrix to kill her, if she disclosed the incident to anybody.
15 Thereafter, she stated that she took the bath and told the said event to her sister Nikita and grand father Bhausaheb, and further informed to Badambai i.e. her remote grand mother, who in turn informed to her son Raghunath Kothule. Thereafter prosecutrix and her sister Nikita resided at the house of Badambai and Raghunath for about 4-5 days. Accordingly, on 12.4.2010 Badambai and Raghunath took the prosecutrix and her sister to the house of her maternal uncle Chandrakant Borude at Sarola Baddi, Taluka Nagar and she narrated the afore said incident to him. Accordingly, Chandrakant Borude took the prosecutrix and Nikita to the Child Line Care Center, Ahmednagar and the prosecutrix narrated the untoward incident occurred at the hands of her father to Shri Panchal, Manisha Kasar and Kundan Pathare, and with their help, approached Nagar Taluka police station and narrated the incident to police personnel, and accordingly, her complaint was recorded, which ::: Downloaded on - 09/06/2013 17:30:51 ::: 15 cra103.11 was treated as the first information report (Exh.15).
16 Thereafter, she further stated that she was referred to the Civil Hospital and her medical examination was conducted and she also gave her history and stated that about two months prior to the incident, her father drove her grand mother Babaibai from the house and in the absence of grand mother, outraged her modesty and used to behave with her in filthy and badly manner. She further stated that during investigation, her clothes were seized and she further stated that the accused be sentenced for life.
17 In the cross-examination, she stated that there were scratches on her back due to dragging and pulling and she cried loudly and also shouted in low voice, but did not give call to her grand father or sister or neighbourer. She also stated that she attempted to escape from the clutches of her father.
She further stated that she resisted her father while making intercourse with her. However, she stated that she did not sustain any injury on her back at that time. She also stated that her father was drunkard and addicted to alcohol.
::: Downloaded on - 09/06/2013 17:30:51 :::16 cra103.11 18 According to her, she did not go to the police station after lodging the complaint on 14.4.2010 and also did not go to Khadki to the house of the accused. She further stated that her father accused picked up quarrel with her grand mother and drove her out of the house and started outraging her modesty, but she did not make any complaint or narrated the grievance to any person. She further stated that her maternal uncle used to visit their house at Khadki on occasions. She admitted that she did not narrate the event to Tarabai Kothule wife of brother of her father and the contents to that effect were marked as portion 'A' in her complaint amounting to contradiction. Moreover, she deposed that she did state before police that she narrated the event to her sister Nikita and grand mother Badambai, but she could not assign any reason why said fact is not mentioned in the police statement amounting to omission therein and improvement in her testimony. Moreover, she deposed that she stated to the police that she told the event of rape to Manisha Kasar and Kundan Pathare, but such mention is not there in her complaint amounting to omission and improvement in her testimony. So also, contradiction was ::: Downloaded on - 09/06/2013 17:30:51 ::: 17 cra103.11 brought on record in respect of portion marked 'B' in her complaint. Few suggestions were given to her, but same were denied by her.
19 Coming to the testimony of PW4 Chandrakant Bhanudas Borude i.e. maternal uncle of victim Nilima, who stated that his sister Kamala @ Sangita died due to heart attack on 29.1.2009 and accused Balu had two daughters, namely Nilima and Nikita. At the time of incident, Nilima was learning in th 8 standard in the High School at Khadki. He further stated that on 12.4.2010, Raghunath Kothule of Khadki brought Nilima and Nikita at his house at Sarola Baddi at about 9.15 a.m. and when both came to his house, they started weeping and they were extremely nervous, and therefore, he gave support to them, and thereafter, Nilima told him about the occurrence of the incident and narrated that in the night at about 9.00 p.m. Balu took food and went outside the house and then came back at 11.00 p.m. and thereafter held legs of Nilima while she was asleep and pulled her with skidding and dragged inside the house and when he was removing clothes on his person, Nilima was beseeching not to do the shameful ::: Downloaded on - 09/06/2013 17:30:51 ::: 18 cra103.11 and abominable act, but he removed her clothes and committed rape on her and she became unconscious till 4.00 a.m. when accused father kicked her and woke her up. Thereafter Nilima prepared food, accused took his tiffin and left the house at 7.00 a.m. She further narrated that accused gave her threat to kill her if she narrated the incident to any person. Thereafter, Nilima stated that she went to the house of Badambai and narrated the incident to her. Then, Badambai took Nilima and her sister in their house on the land. Thereafter, Raghunath Kothule gave meassage to PW4 Chandrakant Borude on telephone and reported him that accused treated his daughters with cruelty and assaulted them. Hence, PW4 Chandrakant Borude informed Raghunath Kothule not to bring the said girls to his house for 4-5 days due to death of his aunt Draupadabai and her last rites, and he brought them thereafter on 12.4.2010.
20 PW4 Chandrakant Borude further stated that on hearing the afore said event, he was shocked and on 13.4.2010 he decided to approach the Child Line Center, Ahmednagar in the interest of both the minor girls Nilima and Nikita at ::: Downloaded on - 09/06/2013 17:30:51 ::: 19 cra103.11 Ahmednagar. He further stated that the office bearers of Child Line Center advised him that it was necessary to report the incident to the police though the girl is minor. Accordingly, on 14.4.2010, he approached Ahmednagar Taluka police station along with his wife, prosecutrix Nilima, his maternal uncle Raghunath Kothule, Manisha Kasar and Kundan Pathare of Child Line Center. Accordingly, police personnel recorded the complaint of prosecutrix Nilima, as well as police personnel recorded his statement on 15.4.2010.
21 In the cross-examination, he stated that another maternal uncle of victim Nilima, namely Raghunath told him about the incident whatever he heard. However, PW4 Chandrakant stated that Raghunath did not state him on 6.4.2010 that accused raped Nilima at about 11.00 a.m. He also stated that he did not make further contact with Raghunath to get additional information. He even did not talk with Raghunath on 7.4.2010, and neither Raghunath nor Badambai came to his residence on the said date. Badambai also told him about the incident on phone. He further stated that till 12.4.2010 he did not meet Raghunath Kothule or his mother ::: Downloaded on - 09/06/2013 17:30:51 ::: 20 cra103.11 Badambai. However, on 12.4.2010 both the girls and Raghunath came to his home. However, he did not discuss the event occurred with Nilima, since persons had gathered on the th 10 day on the cause of death of his aunt, namely Drupadabai.
He also stated that he did not bring Nilima to police station on 13.4.2010. He also admitted that till 12.4.2010 Nilima and Nikita did not make contact with him on phone. On 14.4.2010 Raghunath Kothule again came at Nagar and thereafter he, his wife Anita and both the girls came to Child Line Center. He also stated that Kotwali police station is situated on the way near Child Line Center. He also stated that he was knowing and had learnt that Child Line Center gives hand to the children who are victims of atrocity, illtreatment and outraging of modesty, etc. 22 As regards, recording of the complaint, he stated that between 12.00 noon to 1.00 p.m. they were in the police station and police recorded the complaint of victim during that period on 14.4.2010 as per the events narrated by the victim.
Contradiction as to portion marked 'A' in the contents of his police statement was brought on record that he stated to police ::: Downloaded on - 09/06/2013 17:30:51 ::: 21 cra103.11 about the incident. Alike, the police also interrogated with his wife. Moreover, omission was taken out in his police statement and improvement in his testimony that Nilima stated about the incident to Badambai and Badambai took her in the land Mala.
Few suggestions were given to him that false complaint was lodged against the accused with the assistance of office bearers of the Child Line Center, but same were denied by him.
23 That takes me to the evidence of PW6 Dr. Kalamkar Sandip Malhari, who stated that he was serving as Medical Officer at Civil Hospital, Ahmednagar at the relevant time and on 14.4.2010 the police personnel referred the prosecutrix Nilima for medical examination along with letter (Exh.26), which comprised following five points :-
(1) Whether the prosecutrix is competent physically for sexual intercourse ?
(2) Whether there is penetration of penis in the vagina of the prosecutrix ?
(3) Whether injuries or marks of injury is present to internal or outer side of vagina ?::: Downloaded on - 09/06/2013 17:30:51 :::
22 cra103.11 (4) Whether stains of semen present inside or outside of vagina ?
(5) And lastly the age determination test to confirm the age of prosecutrix.
24 Accordingly, Dr. Malhari stated that he carried out the medical examination of the prosecutrix with reference to the said letter Exh.26. He also stated that he recorded the history of rape as per the narration of prosecutrix Nilima that she was raped on 5.4.2010 and she had taken her regular bath every day thereafter till the medical examination. During examination, he noticed, secondary sexual characters moderately developed, breast developed moderately, and public hairs and auxillary hairs developed moderately. There were no marks or sign of any external injury on all over body including vagina.
On internal examination of vagina, he found that hymen was ruptured and it was easily passing two fingers inside vagina.
Thereafter he collected the samples of (1) blood in plain and cited phial, (2) nails of toes and fingers, (3) pubic hairs, and (4) vaginal swab.
25 He further stated that thereafter he referred the victim ::: Downloaded on - 09/06/2013 17:30:51 ::: 23 cra103.11 to the Gynecologist for medical examination and received the report of female unmarried girl about 13 years with history of rape. He stated that as stated by victim menstrual cycle was not started and secondary sexual characters were in developing stage. Auxillary pubic hairs were present and breast was developing. No evidence of external or internal region in around vagina and other parts of the body was seen. In vaginal examination, hymen was found ruptured, no fresh injuries or bleeding was seen from inside. Two fingers were easily passing in vaginal region and uterus was normal in size, anteverted and free, servix and vaginal health.
26 He also stated that the victim was then sent for radiological examination to confirm her age. Accordingly, X-ray of wrist joint, elbow joint and of iliac bone and x-ray of skull, scalp were taken. However, opinion of radiologist was not recorded. Accordingly, PW6 Dr. Malhari stated that he issued medical examination certificate, which is produced at Exh. 27. He further stated that at the out set while recording history, victim told her age as 13 years and name Nilima. He agreed that secondary sexual characters can be found ::: Downloaded on - 09/06/2013 17:30:51 ::: 24 cra103.11 developed in the female above 15 years. Accordingly, he recorded secondary sexual characters in developing state in medical examination certificate. He further stated that existence of injuries depends on passing of longer period and nature of the injuries and the victim was produced for medical examination after the period of 9 days from the date of rape.
According to him, rupture of hymen is sign of sexual intercourse.
27 In the cross-examination, he stated that he agrees with the observation of Dr. Modi that in female women menstrual cycle may be started at the age of 10 to 11 years.
He also stated that he agrees with the observation of Dr. Modi that marks of violence may be found present on every part of body like forearm, wrist, face, breast, lower part of the abdomen and internal aspects of thighs and back. The injuries scratches, abrasion, bruises are the marks of resistance and struggle to rape and such injuries can be seen at the time of medical examination. However, he stated that he does not agree that the injuries may be seen after 7-8 days after rape and it depends upon the nature and gravity of existence of longer ::: Downloaded on - 09/06/2013 17:30:51 ::: 25 cra103.11 period. He also stated that it is probable that in rape cases, due to struggle and resistance, injuries like scratches, bruises, abrasion can be found on the body of rapist. He further stated that he agrees with the observation of Dr. Modi that vaginal orifice in case of a girl of 14 years is of so small size that it will be difficult for passing of little finger in vagina. He further stated that he agrees with the observations of Dr. Modi that passing of two fingers in vagina is possible in case of frequent sexual intercourse committed with female. However, he stated that by single act of sexual intercourse may not give the observation of passing two fingers easily and further agreed that in case of forceful sexual intercourse like rape on a female below 14 years of age, it becomes difficult for the victim even to walk in order. He admitted that during medical examination of victim, he found no injury in libia majora, libia minora and in her vagina. He further stated that he agrees with the observation of Dr. Modi that injury to the penis of a young person is probable when forceful sexual intercourse is committed on a minor girl below age of 14 years and it depends on hymen size i.e. hymnal orifice. Few suggestions were given to him that he falsely stated that he carried out medical examination of victim ::: Downloaded on - 09/06/2013 17:30:51 ::: 26 cra103.11 Nilima and recorded her history and other particulars, but same was denied by him. It was further suggested that the opinion of radiologist is not taken purposely for the reason that age of the victim was above 16 years, but same was also denied by him.
28 Coming to the deposition of PW2 Dr. Bharti Shahaji Peche, who examined the appellant herein and she stated that she was serving as Medical Officer in Civil Hospital, Ahmednagar since last eight years and on 14.4.2010 the accused Balasaheb Kothule was produced for medical examination along with letter (Exh.17). Accordingly, she carried out the medical examination of Balasaheb Kothule and extracted the samples of blood, hairs and nail on the same day. She further stated that on the next day the other doctor collected sample of semen of the accused. She produced M.L.C. paper at Exh.18, as well as produced case papers at Exh.19, which show that the accused was produced on 15.4.2010 for taking the sample of semen. After sealing the sample of blood, hair and nails of the accused she affixed the lable and handed over the same in the custody of police for sending it to the Chemical Analyser. She further stated that she ::: Downloaded on - 09/06/2013 17:30:51 ::: 27 cra103.11 prepared the certificate (Exh.20) on the basis of entries in the medical certificate.
29 In the cross-examination, she stated that it may be or may not be probable to result injury by forceful rape on a girl of 14 years old. She further admitted that minor injury to a girl on the verge of her young age is possible during forceful intercourse, She stated that major injury may survive for the period of 4 to 5 days as an impact of rape and minor injuries may not survive. It was suggested to her that she has not referred that the samples of hair, blood and nail, etc. were sealed and packed for handing over to the police for sending to the Chemical Analyser, but same was denied by her.
30 On the afore said material evidence adduced/produced by the prosecution on record, learned counsel for the appellant submitted that although the prosecutrix Nilima stated that she narrated the incident to his grand father Bhausaheb, but prosecution has not examined the said material witness for the reasons best known to the prosecution and the said infirmity hampers the case of the ::: Downloaded on - 09/06/2013 17:30:51 ::: 28 cra103.11 prosecution. It was also canvassed that the prosecution also failed to examine the younger sister of victim, namely Nikita, who could have thrown better light on the prosecution case, but the prosecution failed to examine the said important witness also, which sustains fatal blow to the case of prosecution.
31 Moreover, it is vehemently argued by learned counsel for the appellant that there is delay of 9 days in lodging the first information report, since the alleged incident occurred on 5.4.2010; whereas the first information report came to be lodged after the lapse of 9 days i.e. on 14.4.2010 and the prosecution has not given any convincing and plausible explanation therefor, which also creates suspicion about base of the prosecution case and possibility of concocting after though false story against the appellant cannot be ruled out. It is also canvassed by the learned counsel for the appellant that the timing in the first information report and the timing given by PW4 Chandrakant Borude differs from each other, since the first information report discloses time as 1700 hours; whereas PW4 Chandrakant Borude stated that report was lodged between 12.00 noon and 1.00 p.m. on 14.4.2010 and the said ::: Downloaded on - 09/06/2013 17:30:51 ::: 29 cra103.11 variance in the timing of lodging the first information report also goes to the root of the matter and diminishes the credibility of the prosecution case. Pertinently, it is also pointed out that even the medical examination of the accused was conducted after the period of 9 days from the alleged incident i.e. on 14.4.2010 and even the semen sample of the accused was taken after the lapse of 9 days and his genital part was also examined after delay of 9 days, which amounts to deformity and infirmity in the prosecution case.
32 It is asserted by the learned counsel for the appellant that panch witness PW5 Mithu Sathe and the panchnama are silent in respect of sealing of the articles after seizure thereof, and therefore, suspicion is created about the consequent chemical analysis reports, since the seized articles were not sealed and possibility of tampering thereof cannot be ruled out.
33 It is further canvassed by the learned counsel for the appellant that the prosecutrix was pampered and tutored by PW4 Chandrakant Borude and present complaint came to be lodged by the prosecutrix Nilima at the instance and behest of ::: Downloaded on - 09/06/2013 17:30:51 ::: 30 cra103.11 said PW4 Chandrakant Borude, who is brother in law of the appellant herein with ulterior motive.
34 It is further canvassed by the learned counsel for the appellant that there are omissions and contradictions in the testimonies of prosecution witnesses i.e. PW1 prosecutrix and PW4 Chandrakant Borude, which go to the root of the matter and hampers the case of the prosecution. The prosecutrix also admitted about the delay in lodging the first information report and it is further submitted that it is curious to note that although PW1 prosecutrix was dragged by the appellant from courtyard to the house, she did not sustain any injury on her back. It is also canvassed that although the prosecutrix cried loudly and shouted even at low voice, neither her grand father nor her younger sister woke up and came there to help her and even she admitted that she did not give call to her grand father or sister or neighbourer, which raises suspicion about the conduct of the prosecutrix and absolves the appellant from the alleged offence.
35 As regards the testimony of PW4 Chandrakant ::: Downloaded on - 09/06/2013 17:30:51 ::: 31 cra103.11 Borude, it is canvassed that the said testimony also has been impeached in the cross-examination and there are omissions and contradictions, which go to the root of the matter. It is also canvassed that although PW4 Chandrakant Borude had telephoned, it is curious to note that prosecutrix Nilima and her sister Nikita did not ring him up and inform the occurrence of the alleged incident at the earlier point of time and it is also submitted that he took the prosecutrix to the police station on 14.4.2010 and lodged the first information report of the prosecutrix after the lapse of about 9 days from the date of incident and his statement was recorded thereafter on 15.4.2010 and no proper explanation has been given for the said delay. Accordingly he submitted that the said testimony is not of any aid and assistance to the case of prosecution.
36 As regards the medical evidence, it is submitted that the age of the prosecutrix was not ascertained, although her X-
ray was taken and the said radiological certificate has not been produced by the prosecution on record. It is also canvassed that the report of the medical examination discloses that there was no mark or sign of any external injury on all over her body, ::: Downloaded on - 09/06/2013 17:30:51 ::: 32 cra103.11 including vagina, and therefore, there was no violence, which essentially culminates to the position that no rape was committed upon the victim by the appellant. Moreover, it is submitted that two fingers were easily passing through the vagina of the victim, which indicates that she was habituated to sexual intercourse. It has also come in the evidence of Dr. Malhari that in case of forceful sexual intercourse like rape on a female below 14 years of age, it becomes difficult to the victim even to walk in order, but same did not happen with the victim.
He also stated that in case of rape after making struggle and resistance, injuries like scratches, bruises, abrasion also can be found on the body of rapist, but nothing was found on the body of appellant during his medical examination conducted by Dr. PW2 Bharati Peche. Even, it is submitted that blood and semen samples of the appellant were taken after the lapse of 9 days and the said delay also brings the medical examination of the appellant under the cloud of suspicion. It is submitted that the timing in lodging the first information report given in the deposition of PW4 Chandrakant Borude differs and it is stated that the first information report discloses the timing as 1700 hours; whereas PW4 Chandrakant Borude stated the timing of ::: Downloaded on - 09/06/2013 17:30:51 ::: 33 cra103.11 lodging the complaint between 12.00 noon and 1.00 p.m. and the said variance also creates doubt about the timing of the lodging of the first information report. Accordingly, it is submitted that the prosecutrix was pampered and tutored by PW4 Chandrakant Borude i.e. brother in law of the appellant and the complaint/the first information report was lodged by the prosecutrix Nilima against her father at the instance of her maternal uncle PW4 Chandrakant Borude and the appellant has been implicated falsely in this case, and urged that the present appeal be allowed and the appellant be acquitted.
37 Learned Additional Public Prosecutor countered the said arguments vehemently and submitted that the ocular, documentary and medical evidence adduced/produced by the prosecution is in consonance with each other, which connects the appellant with the guilt. He also canvassed that the testimony of prosecutrix is trustworthy and reliable and there is no lacuna therein, and hence, same is required to be accepted, and consequently, is required to be believed to base the conviction against the appellant.
::: Downloaded on - 09/06/2013 17:30:51 :::34 cra103.11 38 As regards the alleged delay in lodging the first information report, it is submitted that the date of occurrence of incident is 5.4.2010; whereas the complaint came to be lodged on 14.4.2010 i.e. after the lapse of 9 days and in the said context, it is submitted that PW4 Chandrakant Borude i.e. maternal uncle of victim has given convincing explanation therefor that his aunt, namely Draupadabai had expired and ig th after the expiry of mourning period i.e. after the 10 day and her last rites, he talked to the victim and lodged the complaint immediately on 14.4.2010 and the said explanation given by PW4 Chandrakant Borude is plausible.
39 In support of his argument, learned Additional Public Prosecutor appearing on behalf of the respondent/State relied upon the observations made by the Hon'ble Supreme Court in the judicial pronouncement in the case of Satyaopal vs State of Haryana, reported at AIR 2009 SC 2190, which are as follows :-
" 20. This Court can take judicial notice of the fact that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the First Information ::: Downloaded on - 09/06/2013 17:30:51 ::: 35 cra103.11 Report in a case of this nature is a normal phenomenon. Both the courts below apart from relying on a part of the testimony of the prosecutrix found the evidence of PW-5 to be absolutely reliable. The medical evidence itself being a part of the evidence is required to be appreciated in the context of ocular evidence and other circumstances surrounding thereto.40
It is also canvassed by learned Additional Public Prosecutor that the medical evidence adduced by the prosecution through PW6 Dr. Malhari, who examined the victim and the medical report and case papers pertaining to victim produced by him as well as the medical evidence adduced by the prosecution through PW2 Bharati Peche, who examined the accused and the medical report and case papers submitted by her in respect of accused correlate with each other and amounts to cogent and incriminating evidence against the appellant, which connects the appellant with the crime.
41 As regards the argument advanced by the learned counsel for the appellant that prosecution did not examine grand father, namely Bhausaheb and younger sister of victim ::: Downloaded on - 09/06/2013 17:30:51 ::: 36 cra103.11 namely Nikita, it is submitted that there was no necessity to examine the said witnesses, since testimony of PW1 prosecutrix Nilima is self-explicit, who has narrated the incident with the particulars lucidly and nothing could be elicited through her cross-examination beneficial to the case of the accused, and hence, the said deposition of PW1 prosecutrix itself and the other circumstantial evidence, such as medical evidence and the Chemical Analyser's reports Exhs. 43 to 46 pertaining to the blood on the quilt and semen on the bed cover and blood on the kurta, which pertained to 'A' group, connect the accused with the crime clinchingly.
42 It is further submitted that there is no substance in the defence taken by the appellant that prosecutrix filed the false case against the appellant at the instance of her maternal uncle PW4 Chandrakant Borude, who pampered and tutored the prosecutrix and it is submitted that no daughter would falsely implicate her father at the instance of her maternal uncle in the crime, such as in the present case. It is further submitted that, in fact, the appellant has committed heinous crime i.e. committed rape upon her own daughter, and hence, it is ::: Downloaded on - 09/06/2013 17:30:52 ::: 37 cra103.11 submitted that the learned Trial Court has scrutinized and assessed the evidence and convicted and sentenced the appellant properly and no interference therein is warranted in the present appeal and urged that present appeal be dismissed.
43 Learned Additional Public Prosecutor for the respondent/State relied upon the observations made by the Hon'ble Supreme Court in the judicial pronouncement in the case of Siriya alias Shri Lal vs State of M.P., reported at 2008 AIR SCW 3940, which are as follows :
" 7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice of "order" should ::: Downloaded on - 09/06/2013 17:30:52 ::: 38 cra103.11 meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (1991 (3) SCC 471). "::: Downloaded on - 09/06/2013 17:30:52 :::
39 cra103.11 44 I have perused the impugned judgment, dated 12.1.2011; the ocular, the documentary and the medical evidence adduced/produced by the prosecution on record; and also heard the submissions advanced by the learned counsel for the parties anxiously and at the out set, as regards 9 days delay in lodging the first information report, admittedly the alleged incident of committal of rape upon victim Nilima occurred on 5.4.2010; whereas the first information report came to be lodged on 14.4.2010 and in the said context, it is material to note that the prosecutrix PW1 Nilima stated in her deposition that she was scared and frightened due to said incident of committal of rape upon her by the accused, and she and her sister Nikita approached Badambai Sitaram Kothule i.e. her remote grand mother from the side of mother and told her the occurrence of the incident, and in turn, she narrated the said incident to her son, namely Raghunath Kothule and thereafter for 4-5 days victim Nilima and Nikita resided in the land of Badambai and her son Raghunath and on 12.4.2010 Raghunath Kothule took both the said sisters to the house of PW4 Chandrakant Borude maternal uncle of victim Nilima and she narrated him the untoward incident occurred with Nilima at ::: Downloaded on - 09/06/2013 17:30:52 ::: 40 cra103.11 the hands of appellant, and PW4 Chandrakant Borude has categorically stated in his deposition that at that time he was busy on account of death of his aunt and after expiry of said period of mourning, he approached the police personnel along with Nilima and lodged the complaint on 14.4.2010, and hence, it is amply clear that the prosecution has explained the said delay i.e. from 5.4.2010 to 14.4.2010 convincingly.
45 Moreover, the state of mind of victim Nilima, who was hardly of 13 to 14 years of age at the relevant time, is necessary to be considered, since committal of rape at the hands of her own father gave indelible scar not only on her body but on her mind also and the feeling of betrayal of trust in the mind of victim Nilima is required to be considered with gentle approach, since the person i.e. father, in whom she reposed the trust and confidence to protect her, he himself betrayed her by committing rape upon her and the said aspect also is required to be considered while assessing the delay in lodging the first information report and there is no doubt that the prosecution has given plausible explanation for the said delay, and hence, same would not be an impediment in the ::: Downloaded on - 09/06/2013 17:30:52 ::: 41 cra103.11 prosecution case.
46 As regards time of the lodging the first information report on 14.4.2010, the first information report discloses that it was registered at about 1700 hours on 14.4.2010; whereas PW4 Chandrakant Borude has stated in his deposition that they were in the police station between 12.00 noon to 1.00 p.m. on 14.4.2010 and the police recorded the complaint within the said period of one hour. It is pointed out that the complaint of PW1 Nilima was recorded at about 1.00 p.m. on 14.4.2010, but offence came to be registered on the basis of the said complaint at about 1700 hours on the same day under C.R. No. 62 of 2010 by the police personnel and considering the totality of the circumstances, the said difference in the timing does not hamper the case of the prosecution.
47 Moreover, it is material to note that the testimony of PW1 Nilima i.e. prosecutrix is self-explicit and she has given the details meticulously about the occurrence of the incident therein and it has not been shaken in the searching cross-
examination by the defence. True it is, there are few omissions ::: Downloaded on - 09/06/2013 17:30:52 ::: 42 cra103.11 and a contradiction therein, but same are not vital and do not go to the root of the matter and do not diminish the credibility of her testimony. Moreover, it is also material to note that PW1 Nilima also categorically stated about the chain of the incidents since the death of her mother and also the occurrence of the incidents about two months prior to 5.4.2010, as well as the events occurred on the date of incident i.e. 5.4.2010 meticulously and also her testimony reflects the conduct and behaviour of the appellant herein and nothing beneficial to the case of the appellant could be elicited from the searching cross-examination conducted by the defence, and therefore, it is amply clear that the said testimony withstood the test of cross-examination and has not been demolished therein, and hence, same is required to be accepted as reliable and trustworthy to connect the appellant with the crime.
48 As regards the defence of the accused that prosecutrix was pampered and tutored by PW4 Chandrakant Borude i.e. brother in law of accused and the present complaint came to be lodged by the prosecutrix Nilima at the behest of ::: Downloaded on - 09/06/2013 17:30:52 ::: 43 cra103.11 PW4 Chandrakant Borude falsely with ulterior motive, the said defence is not acceptable, since considering the facts and circumstances in the present case, it is not conceivable that a daughter i.e. PW1 Nilima prosecutrix lodged the false complaint against her own father in respect of committal of rape, at the instance and on the behest of her maternal uncle PW4 Chandrakant Borude and considering the oral, documentary and medical evidence on record, which is in consonance with each other, the said defence bears no substance.
49 Besides, it is pertinent to note that the prosecution has produced the bona fide certificate of victim Nilima at Exh.
32, which discloses her date of birth as 18.6.1997 and the incident of committal of rape occurred on 5.4.2010, and hence, it is apparently clear that the age of the victim Nilima was about 13 years on the date of occurrence of the incident and although radiological examination of the victim was conducted, but her said report was not recorded and such non-recording of said report will not hamper the case of the prosecution, considering the very bona fide certificate disclosing the date of birth of victim Nilima therein.
::: Downloaded on - 09/06/2013 17:30:52 :::44 cra103.11 50 Keeping in mind the oral evidence of PW1 Nilima prosecutrix and considering the medical evidence adduced by PW6 Dr. Malhari, who examined the victim, wherein it is categorically mentioned that on internal examination of vagina of the victim, her hymen was found ruptured and her menstrual cycle was not started and considering her age about 13 years, and as two fingers were easily passing through vaginal region, there cannot be any dispute that there was penetration into the vagina of PW1 Nilima and the appellant herein committed rape upon her as stated by her. Moreover, although no injuries were found on the libia majora and libia minora and no mark or sign or any external injury on the body of victim including vagina were found, since the victim has categorically stated in her deposition that the accused has committed rape upon her and since her hymen was ruptured although she was of 13 years old, the said circumstances of alleged non violence will not diminish the credibility of her testimony and very occurrence of the incident of committal of rape upon her will not come under the cloud of suspicion.
::: Downloaded on - 09/06/2013 17:30:52 :::45 cra103.11 51 Moreover, the quilt, bed cover and kurta were seized under the panchanama and same were sent to the Chemical Analyser's office for examination purpose and the reports of the Chemical Analyser are produced on record at Exhs. 43 to 46, and the report of the Chemical Analyser at Exh. 43 discloses that quilt bore human blood of 'A' group, as well as bed cover bore human semen of 'A' group and the nicker of victim bore human blood of 'A' group. As also Chemical Analyser's report Exh. 44 discloses that the blood group of victim Nilima was 'A', as well as Chemical Analyser's report Exh. 45 discloses that blood group of accused was also 'A', and therefore, it is amply clear that semen on the bed cover pertained to the accused and the blood stains on the quilt and nicker pertained to the victim and the said corroborative piece of evidence categorically connects the appellant with the crime.
52 Having the comprehensive view of the matter and substratum and entire survey of the tangible evidence including the oral, the documentary and the medical evidence on record and also considering the afore said judicial pronouncements, I am not inclined to accept the submissions advanced by the ::: Downloaded on - 09/06/2013 17:30:52 ::: 46 cra103.11 learned counsel for the appellant and the prosecution has proved and established beyond reasonable doubt that the appellant committed rape upon her own daughter, which is not only loathsome sin, but also abhorrent, which gave indelible scar not only on the body of the victim Nilima, but also on her mind and the offence committed by the appellant is certainly shocking and heinous, since the appellant betrayed the trust of her own daughter, as the protector of the trust i.e. father has betrayed the victim his own daughter, and therefore, learned Trial Court, after scrutinizing and analysing the evidence, convicted and sentenced the appellant rightly and there is no glaring defect therein, and hence, no interference therein is warranted in the present appeal, and consequently, present appeal fails.
53 In the result, present appeal stands dismissed and the conviction and sentence imposed upon the appellant by the judgment and order, dated 12.1.2011, rendered by the learned District Judge-6 and Assistant Sessions Judge, Ahmednagar stands maintained and confirmed. Office to inform to the appellant in the concerned jail accordingly. Mrs. Monika ::: Downloaded on - 09/06/2013 17:30:52 ::: 47 cra103.11 Purnapatre, was appointed in the present matter as an Advocate for the appellant through Legal Aid. Hence, her remuneration is quantified at Rs.5,000/- and the Legal Aid Committee to pay the same to her accordingly.
ig (SHRIHARI P. DAVARE),
JUDGE.
dbm/cra103.11
::: Downloaded on - 09/06/2013 17:30:52 :::