Bombay High Court
Bapu S/O Dasu Ujgare vs The State Of Maharashtra on 9 July, 2010
Author: Shrihari P.Davare
Bench: Shrihari P.Davare
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.27 OF 2010
Bapu s/o Dasu Ujgare
Age: 21 Yrs., occu. Agril.
R/o Hivara (Khurd),
Tq. Ambejogai, Dist. Beed. - APPELLANT
VERSUS
The State of Maharashtra - RESPONDENT
*****
Mr.S.J.Salunke,Advocate for Appellant;
Mrs.BR Khekale,APP for Respondent-State.
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CORAM : SHRIHARI P.DAVARE,J.
DATE OF RESERVING JUDGMENT : 5th July, 2010.
DATE OF PRONOUNCING JUDGMENT:9th July, 2010.
JUDGMENT :
1) This appeal is directed against the Judgment and order dated 4.12.2009 rendered by Additional Sessions Judge-2, Ambejogai in ::: Downloaded on - 09/06/2013 16:07:53 ::: 2 Sessions Case No.21/2008, convicting the appellant under Section 376(2)(f) of Indian Penal Code and directing him to suffer R.I. for ten years and to pay fine of Rs.3,000/-, with default condition of non-payment of fine, to suffer R.I. for three months and also directing the appellant to pay compensation to the complainant, i.e. mother of the prosecutrix to the tune of Rs.
7,000/- under Section 357 (2) of Code of Criminal Procedure and the appellant has challenged the correctness and legality of the said conviction and sentence in the present appeal.
2) The factual matrix of the prosecution case, which can be summarized as under :
(i) The complainant, i.e. PW 2 - Kantabai Bharat Ujagare, is mother of the prosecutrix, namely, Anjali, who is resident of village Hivara (Khurd), Tq. Ambejogai, District Beed and used to do labour work, and she is having two sons and two daughters, namely, Kiran, aged about 9 years ::: Downloaded on - 09/06/2013 16:07:53 ::: 3 and Anjali, the prosecutrix, aged about 3 years at the time of the incident in question. It is also alleged that the husband of the complainant was working as a driver and, therefore, he used to be out of station for his work.
(ii) It is also the case of the prosecution that on the date of the occurrence of incident, i.e. on 7.7.2008, the complainant had gone to attend the labour work at about 10.00 a.m. at village Anjanpur, in the field of one Mauli. and her husband had been to Ambejogai for his work whereas her children were at home. She returned from the work at about 6.00 p.m. and found that her daughter - Anjali, i.e. the prosecutrix, was crying. Hence, she enquired with her as to why she was crying and also found injury on her left cheek as well as found head injury and also there was swelling on her private part. Hence, she further enquired with Anjali, i.e. the prosecutrix about the same and thereupon she disclosed that Bapu Dasu Ujagare took her on the ::: Downloaded on - 09/06/2013 16:07:53 ::: 4 promise that he would give Jambhul to her and on that pretext, he took her near the river and assaulted her as well as she disclosed that said Bapu Dasu Ujagare, i.e. the accused/appellant forced her to lie down on the flooring and inserted his private part into her private part and had sexual intercourse with her. PW 2 - the complainant, Kantabai also made enquiry with her elder daughter Kiran, who was also at home and thereupon Kiran disclosed that she was at school and after finishing the school, Deepali, i.e. daughter of Sarpanch, met her, who disclosed that her sister was sleeping behind the school and, therefore, she brought Anjali to house, as well as Kiran enquired with the prosecutrix, whereupon she disclosed that the appellant/accused - Bapu took her on the pretext of offering Jambhul and further disclosed about the aforesaid incident.
(iii) The prosecution case further recites that PW 2 - complainant Kantabai took the prosecutrix to SRTC Medical College and Hospital ::: Downloaded on - 09/06/2013 16:07:53 ::: 5 at Ambejogai and disclosed the fact to the medical officer, who advised to approach to the Police Station first and accordingly, the complainant went to Yusuf Wadgaon Police station and narrated the incident to police personnel, which was reduced into writing and same was treated as F.I.R. (Exhibit-16). Thereafter, the prosecutrix was brought to the hospital at Ambejogai for medical treatment.
(iv) PW 5 - API Gautam Balbhimrao Ingale who was attached to Yusuf Wadgaon Police Station at the relevant time, i.e. July 2007, as APSI and crime No. 62/2007 was handed over to him for investigation purpose at about 11.35 p.m. on 8.7.2007. Accordingly, on the next day, i.e. on 9.7.2007, he visited village Hivara and inspected the spot of incident, which was shown by father of the prosecutrix and he drew a spot panchanama (Exhibit-18) in presence of panchas. Thereafter, he searched for the accused and arrested him on 9.7.2007 at his house. Moreover, he seized the ::: Downloaded on - 09/06/2013 16:07:53 ::: 6 the maroon colour (having trade-mark MERINA, and which was having stains of semen,) under-wear of the accused in presence of panchas on the same day. So also the accused produced the under-
wear, which he wore on the day of incident, i.e. on 7.7.2007 and same was also seized in presence of the panchas (Exhibit-22) . Thereafter on 9.7.2007, PW 5 - API Gautam Ingale visited the school of Hivara and obtained a Certificate disclosing date of birth of the accused, which is 20.8.1987. Moreover the accused was sent to SRTC Medical College and Hospital, at Ambejogai along with a letter for medical examination.
(v) It is further the case of the prosecution that during the course of investigation, PW 5 - API Gautam Ingale recorded the statements of the witnesses, including the child witness, Kiran, i.e., PW 4. The Medical Officer obtained blood samples of pubic hair and semen of accused, and accordingly, the seized articles were forwarded to Chemical Analyzer ::: Downloaded on - 09/06/2013 16:07:53 ::: 7 along with forwarding letter on 15.7.2007.
Moreover, the blood sample of Anjali was also sent to CA for examination purpose. Pursuant to that, the CA reports were received, which are produced at Exhibits-23, 24 and 25 respectively.
Accordingly, it transpired during the course of investigation that the accused - Bapu Ujagare committed rape on the prosecutrix - Anjali. After completion of the investigation, PW 5 - API Gautam Ingale filed charge sheet against the accused on 30.10.2007 in the court of JMFC at Kaij.
3) Since the offence was exclusively triable by the Court of Sessions, the learned JMFC, committed the case to the Court of Additional Sessions Judge at Ambejogai, District Beed. Accordingly, the learned Additional Sessions Judge-2 at Ambejogai district Beed framed the charge against the accused at Exhibit-10 on 2.9.2009 under Sections 376 and 323 of IPC.
::: Downloaded on - 09/06/2013 16:07:53 ::: 84) To substantiate the charge levelled against the accused, the prosecution has examined inasmuch as six witnesses as mentioned below -
PW 1 - Lala Shankar Ujagare, uncle of the victim;
PW 2 - Kantabai Bhaat Ujagare, complainant and mother of the victim;
PW 3 - Vishwanath Prabhu Sakhare, panch to spot panchanama (Exhibit-18) - turned hostile.
PW 4 - Kiran Bharat Ujagare, elder sister of the victim - Anjali.
PW 5 - API Gautam Bhimrao Ingale, Investigating Officer.
PW 6 - Dr.Sunita Solanke, who examined the victim and issued Medical Certificate (Exhibit-29).
5) Moreover, the prosecution also relies upon other documents, such as, complaint (Exhibit-16); Seizure Panchanama of the accused (Exhibit-22); Spot panchanama (Exhibit-18);
Medical Certificate of the prosecutrix (Exhibit-29); CA reports (Exhibits - 23, 24 and ::: Downloaded on - 09/06/2013 16:07:53 ::: 9 25 respectively).
6) The defence of the accused was of total denial and his statement under Section 313 of Cr.P.C. was recorded, where he stated that the complainant - Kantabai is having illicit relations with another person, to which he witnessed and, therefore, she lodged a false complaint against him and implicated him in this case falsely and, accordingly, he claimed to be innocent.
7) After scrutinizing and appreciating the evidence, learned Trial Judge, convicted the accused under Section 376(2)(f) of Indian Penal Code and sentenced him to suffer R.I. for ten years and to pay fine of Rs.3,000/-, in default, to suffer R.I. for three months and the accused was also directed to pay compensation to the complainant, i.e. mother of the prosecutrix, to the tune of Rs.7,000/- under Section 357 (3) of the Code of Criminal Procedure. Being aggrieved ::: Downloaded on - 09/06/2013 16:07:53 ::: 10 and dissatisfied by the said Judgment and order, the appellant/accused has preferred the present appeal, praying for quashment thereof.
8) In order to deal with the submissions advanced by learned Counsel for the parties, it is necessary to advert to the material evidence adduced and produced by the prosecution on record. In the said context, PW 2 - complainant Kantabai i.e. mother of the victim, and PW 4 -
Kiran i.e. sister of the victim, are the star witnesses of the prosecution as well as evidence of PW 6 - Dr. Sunita Solanke, who examined the victim, adduced and produced the medical evidence, whereas PW 3 - Vishwanath Sakhare, panch to the spot panchanama turned hostile.
9) At the outset, it is necessary to deal with the deposition of PW 2 - Kantabai, i.e. mother of the victim, wherein she stated that, she is resident of Hivara, Tq. Ambejogai, District Beed and was residing along with her two ::: Downloaded on - 09/06/2013 16:07:53 ::: 11 sons and two daughters and husband namely Shankar. Her daughter Kiran was about 9 years old whereas another daughter viz. Anjali was aged about 3 years at the time of occurrence of the incident. She also stated that her husband used to work as a driver on truck. On the date of incident, it was the Saturday and she had been to the agricultural field of one Mauli of village Anjanpur at about 10.00 a.m. and her husband had been to Ambejogai for his work and, therefore, her children were at home. When she returned from the agricultural work at about 6.00 p.m., she saw that her younger daughter Anjali was crying and she also saw injury on her left cheek and was also having head injury as well as there was swelling on her private part, and, therefore, PW 2 enquired with Anjali, whereupon she disclosed that Bapu Dasu Ujagare, i.e. appellant/accused, took her to the river on the promise of giving Jambhul, and assaulted her. She further disclosed that said appellant/accused forced her to lie down on the flooring and inserted his private ::: Downloaded on - 09/06/2013 16:07:53 ::: 12 part into her private part and had sexual intercourse with her. She further stated that when she reached to home, her elder daughter, i.e. PW 4 - Kiran was also at home and hence she enquired with said Kiran, whereupon she disclosed that she was at school and after finishing the school, she met Dipali, i.e. daughter of Sarpanch, who disclosed that Anjali was sleeping behind the school and hence Kiran brought her to the house and enquired with her and thereupon the prosecutrix disclosed that the appellant/accused took her on the promise of offering Jambhul and further she disclosed the above referred incident. On the next day, PW 2 brought the prosecutrix to SRTR Medical College and Hospital and admitted her there. She also stated that she approached the Yousuf Wadgaon Police Station and narrated the incident to the police personnel and the said information was reduced into writing, which was treated as the complaint, which is marked as Exhibit-16.
::: Downloaded on - 09/06/2013 16:07:53 ::: 1310) During the course of cross-examination, PW 2 stated that whenever she used to go for the work, her children used to be at home and Kiran was taking education in 4th Std. and her school timings were from 10.00 a.m. to 4.00 p.m. and Kiran used to come to home for lunch at about 12.00 noon. It was asked to PW 2 - Complainant Kantabai, as to whether prior to 4-5 days before Saturday, her daughter Anjali was suffering from fever and whether there was irritation in her private part and thereupon she stated that it did not so happen. She further stated that it did not happen that her daughter Anjali was having difficulty in discharging urine, nor there was discharge of puss from her private part. A suggestion was also given to PW 2that she was having illicit relations with one Rajabhau Ujagare, resident of the village, which was witnessed by the accused but same was denied by her.
11) She also stated in cross-examination ::: Downloaded on - 09/06/2013 16:07:53 ::: 14 that the timing of Anganwadi was between 10.00 a.m. to 12.00 noon and Anjali was in a position to talk and at the time of incident she was understanding each and everything. She further stated that blood was oozing from the head injury of Anjali, but there was no blood from the injury on cheek. She also noticed that frock was there on the person of Anjali when she returned to home, but there was no nicker on her person. She further stated in the cross-examination that, it did not so happen that on Saturday night, she brought Anjali in the Government Hospital at Ambejogai and the Hospital authorities admitted her and on the next day afternoon, Anjali was discharged from the hospital, amounting to contradiction of the said contents in the complaint (Exhibit-16) as portion marked therein.
Moreover, omission was brought on record in her cross-examination in respect of the aspect that after returning the home, she enquired with Anjali as to what has happened and she disclosed police personnel while giving her complaint that ::: Downloaded on - 09/06/2013 16:07:53 ::: 15 Anjali disclosed to her that Bapu Ujagare (appellant/accused) had sexual intercourse with her, but such mention was not there in the complaint (Exhibit-16) amounting to omission in the complaint and also amounting to contradiction to the testimony of PW 5 -API Gautam Ingale, since he stated in his deposition that, Anjali was not in a position to speak or state about the said incident when he saw her, whereas PW 2 stated that Anjali disclosed her that Bapu Ujagare had sexual intercourse with her. Hence, suggestion was given to PW 2 that Anjali and Kiran did not disclose her about the incident, but same was denied by her. It was also suggested to her that as the accused should not disclose her illicit relations with Raja Ujagare to anybody and hence, she lodged a false complaint against the accused, but the same was also denied by her.
12) That takes me to the testimony of PW 4 -
Kiran Bharat Ujagare, who is a child witness, ::: Downloaded on - 09/06/2013 16:07:54 ::: 16 wherein she stated that she was residing at Hivara (Khurd) Tq. Ambejogai since last 2-3 years and her mother was doing labour work and father was driver. She was having two brothers and one younger sister, viz. Anjali. She was studying in 3rd std. at the time of the incident and Anjali was attending Anganwadi school. She further stated that the incident took place on Saturday, i.e. on 7.7.2007 and she was at school on the said day from 10.00 a.m. to 4.00 p.m. and Anjali had been to Anganwadi school at about 10.00 a.m. Her school closed in the afternoon. She further stated at about 2.00 p.m. during the interval, Dipali told her that the prosecutrix was lying behind her school and, therefore, PW 4 - Kiran took her by lifting and asked her as to what had happened, whereupon she disclosed that the appellant/accused Bapu Ujagare took her along with him on the promise of giving Jambhul and thereafter he inserted his private part into her private part and threw her on the earth. Hence, PW 4 saw her private part and there was swelling.
::: Downloaded on - 09/06/2013 16:07:54 ::: 17Thereafter her mother returned to home at about 6.00 p.m. and hence she and prosecutrix disclosed the said fact to her. She further stated that Bapu Ujagare, the appellant/accused, was her neighbour, who used to take she-goats for grazing. She also identified the accused in the court.
13) In the cross-examination, she stated that the mother left the house for work at about 10.00 a.m. It was also suggested to her that her mother was not doing any work as her brother was small, but the same was denied by her. It was also suggested to her that her mother did not attend the work on the day of incident, but the same was denied by her. She also stated that, she gave papers of Marathi and Maths in the afternoon on the day of incident and there was interval of one hour between the said two papers. She further deposed that she did state while recording the police statement that Anjali was attending Anganwadi school, but such mention is not there ::: Downloaded on - 09/06/2013 16:07:54 ::: 18 in her police statement, amounting to omission therein and improvement in her testimony.
14) Moreover, she further stated that she was alone when she went behind the school to look for Anjali. She further sated in the cross-
examination that she did state while recording the police station that Anjali disclosed her that Bapu Ujagare, the appellant/accused, had inserted his private part into her private part, but she mention is not there in her police statement, amounting to omission therein and improvement in her testimony. She further deposed that she did state while recording her police station that when her mother returned to home, she and Anjali disclosed the fact to her, but such mention is not there in her police statement and she could not assign any reason for non-mention, amounting to omission in her police statement and improvement in her testimony. Hence, suggestion was given to her that the police prosecutor tutored her to state the accused inserted his ::: Downloaded on - 09/06/2013 16:07:54 ::: 19 private part into her private part, but same was denied by her. It was also suggested to her that no such incident had taken place, but the same was also denied by her. These important omissions and vital contradictions have been brought on record in the testimony of PW 4 -
Kiran and the said omissions and contradictions go to the root of the matter.
15) According to the learned Counsel, PW. 2 Kantabai and and PW 4 - Kiran, stated in their respective depositions that the accused inserted his private part into the private part of the victim Anjali and committed sexual intercourse with her, as narrated to them by the victim, cannot be possible since minor girl, aged about three years, would not state such details to them and, therefore, the version of PW 2 - Kantabai and PW 4 - Kiran in that respect are unbelievable. Moreover, the said very version of PW 2 - Kantabai that " after returning home, she enquired with Anjali as to what had happened and ::: Downloaded on - 09/06/2013 16:07:54 ::: 20 she disclosed to her that Bapu, the accused, had sexual intercourse with her ", amounting omissions in her police statement and improvement in her testimony and also amounting to contradiction to the testimony of PW 5 - API Gautam Ingale, who stated that the victim Anjali was not in a position to speak or state about the incident when he saw her. But PW 2 - Kantabai and PW 4 - Kiran stated in their respective depositions that the victim Anjali narrated the incident to them and accordingly, the learned Counsel submitted that there is no consistency in the testimonies of the prosecution witnesses.
16) Turning to the testimony of PW 6 - Dr. Sunita Solanke, who has deposed that she was serving as Medical Officer at the relevant time and on 8.7.2007, she was attached to SRTR Hospital as Casualty Medical Officer (CMO) and one three years aged girl was referred to her for medical examination and her name was Anjali Bharat Ujagare, i.e. the victim, the prosecutrix ::: Downloaded on - 09/06/2013 16:07:54 ::: 21 herein. Accordingly, she examined the said patient and on examination, she found that the patient was having fever and abrasion over face.
On internal examination, she found that the victim was having vulval edema with white discharge. Her hymen was intact. Hence she referred the said patient to gynecologist for expert's opinion. She also stated accordingly she issued a medical certificate, which is produced at Exhibit-29. She further stated that, if rape is attempted then vulval edema can occur and abrasions are possible due to struggle.
17) In the cross-examination, she stated that vulval edema is possible due to fungal and bacterial infection and also possible by self scratching and she volunteered that still there is difference and stated that if due to the infection vulval edema is there, it would be with curdish white discharge, whereas said white discharge was one day old and vaginal edge is inclammation of vagina and it may be due to ::: Downloaded on - 09/06/2013 16:07:54 ::: 22 infection or trauma. She denied that it may be possible due to allergy. She also denied that vaginal discharge can be caused by hormonal changes. She further denied that she opined wrongly about the attempt of rape. Hence, court question was put to said medical officer as what she did observe about the discharge in the present case and in reply, she stated that she observed fluid white discharge in the present case. Again second court question was put to her as to what was the reason of white discharge in child, to which she replied, that it may be due to trauma.
18) Accordingly, external medical examination of the victim was conducted by PW 6 -
Dr. Sunita Solanke and she found fever and abrasion over her face, whereas during internal examination she found vulval edema with white discharge, but hymen was intact. She stated that in the case of attempted rape, such vulval edema can occur and aforesaid abrasions are possible ::: Downloaded on - 09/06/2013 16:07:54 ::: 23 due to struggle. In the case of infection, vulval edema would be there with curdish white discharge. But in the instant case, there was fluid white discharge, and as stated by her, may be because of trauma. She also issued a medical certificate (Exhibit-29), confirming the aforesaid findings.
19) On the background of aforesaid evidence, the learned Counsel for the appellant canvassed that, the charge framed in the present case at Exhibit-10/C on 2nd September, 2009, is a vague and general charge under Section 376 and 323 of IPC and same is not specific and, therefore, based upon such ambiguous, vague and general charge, the appellant cannot be convicted under Section 376(2)(f) of the Indian Penal Code and cannot be consequently sentenced therefor and, therefore, the conviction and sentence clamped upon the appellant/accused thereunder needs to be quashed and set aside. It is also submitted by the learned Counsel for the appellant/accused ::: Downloaded on - 09/06/2013 16:07:54 ::: 24 that the entire case of the prosecution is relied upon the hear-say evidence and the testimonies of PW 2 - Kantabai, mother of the victim and PW 4 -
Kiran, sister of the victim, is the hear-say evidence, since they have no personal knowledge and they have deposed all the narration given by the victim Anjali. It is also submitted that the statement of the victim has not been recorded under Section 161 of Cr.P.C., nor she has been examined in the Court. It is also urged by the learned Counsel for the appellant/accused that the entire prosecution case is hollow and cannot be believed.
20) As regards the statement of the appellant/accused recorded under Section 313 of Cr.P.C., the learned Counsel for the appellant pointed out that the question no.16, put to the appellant, regarding the alleged incriminating circumstance against him is the question to him in consolidated form and no specific separate questions have been put to him regarding the ::: Downloaded on - 09/06/2013 16:07:54 ::: 25 alleged incriminating circumstances comprised in said Question no.16 and putting of such consolidated question no. 16 to the appellant/accused caused prejudice to him since he could not get due opportunity to reply to each and every alleged incriminating circumstance against him therein.
21) Further, as regards to the testimony of PW 4 - Kiran, the learned Counsel for the appellant invited the question no.12 put to said child witness Kiran, which is as follows :
"Q.12 - When the incident of Anjali took place :
Ans. - It is Saturday and date was 7.7.2007."
As regards to the said question and answer given by PW 4 - Kiran, learned Counsel for the appellant submitted that PW 4 - Kiran is a child witness about 11 years old at the time of deposition and the alleged incident occurred ::: Downloaded on - 09/06/2013 16:07:54 ::: 26 about 2 years and 3 months back and that time, she was about 8-9 years old and, therefore, it is curious to note that she distinctly remembered the very day, i.e. Saturday and date, i.e. 7.7.2007 of the alleged incident and hence it is canvassed that possibility of tutoring to said child witness cannot be ruled out and hence cautious approach needs to be taken in respect of assessing the testimony of child witness.
22) In the said context, the learned Counsel for the appellant pointed out that PW 2 -
Kantabai, who is mother of the victim, also could not specify that day and date of the incident during her deposition, but still the child witness, i.e. PW 4 - Kiran has specifically stated the day and date of the alleged incident, which is unbelievable and indigestible and, therefore, also the possibility of tutoring the said child witness, PW 4 - Kiran, cannot be ruled out.
::: Downloaded on - 09/06/2013 16:07:54 ::: 2723) To substantiate the said contention, the learned Counsel for the appellant relied upon the observations made in paragraph 19 thereof in the case of Bhagwan Singh and Ors. - Appellants Vs. State of M.P. - Respondents, reported at 2003 Cri.L.J. 1262 (1), which are as under :
"19. The law recognizes the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony."
24) The learned Counsel for the appellant submitted that the immediate conduct of the victim Anjali is also doubtful since she failed to narrate the incident to her classmate and her close friends, namely, Dipali. It is submitted that PW 4 - Kiran, in reply to question no. 15, ::: Downloaded on - 09/06/2013 16:07:54 ::: 28 stated in the deposition that : "at about 2.00 p.m. during the interval Deepali told me that, prosecutrix was lying behind her school and, therefore, PW 4 - Kiran went there and took her at house by lifting her, hence, Deepali came to know that prosecutrix Anjali was lying behind the school" So as deposed by PW 2 - Kantabai, when she made enquiry with Kiran, Kiran (PW 4 ) disclosed that she met daughter of Sarpanch, viz.
Deepali, who disclosed that her sister was sleeping behind the school. Hence, both the said testimonies of PW 2 and PW 4, confirm that Deepali, got knowledge that victim was lying behind the school, and hence, question arises as to how the victim Anjali did not disclose the same occurrence to Deepali, to which the prosecution has not given any explanation.
25) It was also submitted that although PW 5
- API Gautam Ingale stated in his deposition that the appellant was sent for medical examination, his medical certificate has not been produced on ::: Downloaded on - 09/06/2013 16:07:54 ::: 29 record. Therefore, it is canvassed that there is suppression of material facts, and hence, submitted that adverse inference be drawn and benefit of doubt be given to the accused.
26) As regards the CA reports, the learned Counsel for the appellant submitted that CA report (Exhibit-23) discloses that torn nicker of the accused bore few human semen stains, having blood group `B', but no blood was detected thereon and as per CA report (Exhibit-25), the blood group of semen of the accused is `B' group but no semen was detected on his pubic hair.
Hence, it is clear that the semen stains on the nicker of the accused were of his own semen stains and in the said context, it is canvassed that, there were many reasons for having semen stains on the underwear of the accused and to substantiate the said contention, the learned Counsel for the appellant, relied upon the observations made at paragraph 25, in the case of Rahim Beg. - Appellant Vs. The State of U.P., ::: Downloaded on - 09/06/2013 16:07:54 ::: 30 reported at AIR 1973 SC 343, which read as under :
"25. We may now advert to the stains of human blood on the bush shirt of Mahadeo and the stain of semen on the Langot of Rahim Beg. So far as the blood stains on the bush shirt of Mahadeo are concerned, it may be stated that no question was put to Mahadeo during the course of his statement under Section 342 of the Code of Criminal Procedure that his bush shirt was stained with blood.
Mahadeo not having been asked to furnish an explanation regarding the stain of human blood on his bush shirt no inference can be drawn against Mahadeo on that account. As regards the stain of semen on the Langot of Rahim Beg, we find that Rahim Beg is a young man of 22. The Langot in question was dirty at the time it was taken into possession.
It cannot be said as to how old was the semen stain on the Langot. The semen stain on the Langot of a young man can exist because of a variety of reasons and would not necessarily connect him with the offence of rape."
27) However, the learned Counsel for the appellant pointed out from CA report at Exhibit-24 that, no semen was detected on the vaginal swab of the victim and even the blood group of the victim was also of `B' group. Hence, ::: Downloaded on - 09/06/2013 16:07:54 ::: 31 it is canvassed that, since no blood was detected on the nicker of the accused and since no semen was detected on the vaginal swab of the victim, the said CA reports do not connect the appellant/accused with the alleged crime.
Accordingly, the learned Counsel for the appellant submitted, the prosecution has failed to prove each and every ingredients of Section 375, beyond reasonable doubt, against the appellant/accused. The learned Counsel for the appellant relied upon the observations made in the case of Tukaram and another - Appellants Vs. The State of Maharshtra - Respondent, reported at 1978 Cri.L.J. 1864, where, it is observed that :
"It has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence, it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of Section 375 of the IPC were present in the case of the sexual intercourse attributed to the appellant."
28) As regards the medical evidence, the ::: Downloaded on - 09/06/2013 16:07:54 ::: 32 learned Counsel for the appellant submitted that PW 6 - Dr.Sunita Solanke has stated that : "On internal examination of the victim, she found that the victim was having vulval edema with white discharge. Her hymen was intact and accordingly she issued the medical certificate, which is produced at Exhibit-29. She further stated that If rape is attempted, then vulval edema can occur. It is submitted that in the instant case, there was vulval edema with white discharge. Learned Counsel from the Medical Dictionary pointed that `Edema' means - " the presence of excessive amounts of fluid in the inter cellular tissue spaces of the body, due to increased transudation of fluid from the capillaries. This may be caused by an increase of capillary blood pressure, increased permeability of the capillary wall or reduced plasma-protein osmotic pressure; all 3 factors may be present, though one usually predominates. Oedema may be localized or general. Localized oedema is seen with venous or lymphatic obstruction, around ::: Downloaded on - 09/06/2013 16:07:54 ::: 33 inflammatory lesions, or in some allergic conditions."
29) Moreover, admittedly, no blood-stains were found on the vaginal swab of the victim as per the above referred CA reports as well as no foreign article was found on the victim as well as on accused and further although the accused was examined, no medical certificate was produced, as aforesaid and no injury on the genital part of the accused or blood-stains thereon were brought on record. Hence, it is, alternatively canvassed that this is a case of attempted rape and not commission of rape since the prosecution has failed to prove the penetration of private part of the accused into the private part of the victim, since there were no injuries to the genital part of the victim and even the hymen of the victim was intact.
30) To substantiate the aforesaid contention, the learned Counsel for the appellant ::: Downloaded on - 09/06/2013 16:07:54 ::: 34 relied upon the observations made in the case of Das Bernard - Appellant Vs. State - Respondent, reported at 1974 Cri.L.J. 1098 (V.80C.342), wherein it is observed that :
"In small children the hymen, being situated high up in the canal, is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia, or, if considerable violence is used, there is often laceration of the fourchette and periaeum."
31) It is canvassed, in the instant case, medical Certificate (Exhibit-29) discloses that there was no evidence of injury but there was evidence of having vulval edema with white discharge, which was possible if rape is attempted, as categorically stated by PW 5 - Dr. Sunita Solanke and, therefore, the present case alternatively falls in the said category of attempt to commit rape.
32) Moreover, the learned Counsel for the ::: Downloaded on - 09/06/2013 16:07:54 ::: 35 appellant also relied upon the observations made in the case of Singh - Appellant Vs. The State of Haryana - Respondent, reported at 1974 Cri.L.J. 117 (V 80 C 33), wherein it is observed as under :
"However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence.
Considered as a whole, the prosecution story may be true, but between "may be true" and "must be true", there is a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. Further the accused is entitled to the benefit of every reasonable doubt. For all these reasons, it is held that it is not established beyond any reasonable doubt, that the sexual intercourse was committed by the accused with Smt. Daya without her consent or against her will. Consequently, the offence under Section 376, Indian Penal ::: Downloaded on - 09/06/2013 16:07:54 ::: 36 Code, is not established against the accused beyond any reasonable doubt."
33) Mrs.Khekale, learned APP countered the said arguments vehemently and submitted that the victim Anjali is a minor girl of three years and after occurrence of the incident, she immediately narrated the facts of the incident and name of the accused to her mother, i.e. PW 2 - Kantabai which is quite natural. It is also canvassed that the accused is the neighbour of the victim and was well known to her and, therefore, it is not improbable that the victim would not know name of the accused, which she disclosed to PW 2
- her mother - Kantabai as well as PW 4 - Kiran, her sister and the testimonies of both the witnesses, i.e. PW. 2 and PW 4, corroborate with each other on the same count. PW 4 - Kiran, first time met with the victim after the incident and she told her about the incident and since in the natural course of victim immediately narrated the incident to PW 2 and PW 4, it cannot be ::: Downloaded on - 09/06/2013 16:07:54 ::: 37 construed as hear-say evidence, but it requires to be considered as an evidence coming from the natural witnesses. It is also canvassed by learned APP that since the victim was three years old, her statement could not be recorded and she was not examined before the Court, as she was in feared condition, hence, narration made by the victim, to her mother and sister is quite natural and same needs to be accepted. It is also submitted by learned APP as to why victim Anjali, aged about three years, who is innocent girl, would falsely disclose the name of the accused, unless she was sexually abused by him and disclosure of name of the appellant/accused by the victim Anjali, a minor girl of three years, itself is the incriminating circumstance against the accused.
34) Learned APP also pointed out that semen was found on the underwear of the accused, as disclosed in the above referred CA reports (Exh.
23) and it was of `B' group and the blood group ::: Downloaded on - 09/06/2013 16:07:54 ::: 38 of the accused is also of `B' and, therefore, it can safely be concluded that said semen stains were of the accused on his own nicker and the same also can be construed as incriminating circumstance against the appellant/accused herein.
35) Learned APP also canvassed that since the victim is of 3 years old, circumstantial evidence needs to be taken into consideration, such as, injuries on the cheek and on head of the victim; swelling and redness on the private part of the victim; semen on the underwear/nicker of the accused, to which the accused has not given any explanation and the version of the prosecutrix, who stated to PW 2 and PW 4, that she was taken by the accused on the promise of giving Jambhul and the victim and accused resided in the same vicinity, raising every possibility that the victim knew the name of the accused. All these circumstances cumulatively connect the accused with the alleged crime.
::: Downloaded on - 09/06/2013 16:07:54 ::: 3936) The learned APP further canvassed that suggestion was given to PW 2 - Kantabai that she had illicit relations with one Rajabhau Ujagare, a villager, which was witnessed by the accused and, therefore, she falsely implicated the accused in the present case, but, the learned APP submitted that no prudent woman would implicate her own minor daughter, aged about three years, to wipe out the allegations on her in respect of alleged illicit relations and hence, it is submitted that there is no substance in the said suggestion, which was obviously denied by PW 2 -
Kantabai.
37) Learned APP further canvassed that the medical evidence adduced and produced by the prosecution has not been shaken in the cross-
examination and considering the ocular evidence, medical evidence and the evidence of CA, nexus is established between the accused and the alleged guilt.
::: Downloaded on - 09/06/2013 16:07:54 ::: 4038) To substantiate the contentions of prosecution, learned APP relied upon the observations made in the case of Bharwada Bhoginbhai Hirjibhai - Appellant Vs. State of Gujrat - Respondent, reported at AIR 1983 SC 753, wherein, it is observed that :
"Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society."
39) The learned APP has further relied upon the observations made in the case of State of M.P. Vs. Babulal, reported at 2008 ALL MR (Cri.) 329 (S.C.), wherein, it is observed that :
"Once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging `potential criminals'. The society can no longer endure under such serious threats. Courts must hear the loud cry for ::: Downloaded on - 09/06/2013 16:07:54 ::: 41 justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection thorough imposition of appropriate sentence by the Court."
40) Learned APP has further relied upon the observations made in the case of State of Punjab
- Appellant Vs. Gurmit Singh and Ors. -
Respondents, reported at AIR 1996 SC 1393, wherein it is observed that :
"After committing rape upon the prosecutrix the accused persons left her near the school. The prosecutrix did not disclose the incident to lady teachers or other girl students. Only on reaching home, she narrated it to her mother. No fault could be found with her on ground that she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went home and narrated the occurrence to her mother. The conduct of the prosecutrix in this regard was most natural. A girl, in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society.::: Downloaded on - 09/06/2013 16:07:54 ::: 42
Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability . In the normal course of human conduct, an unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others over- powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy.
Therefore, her informing to her mother only on return to the parental house and no one else at the examination centre prior thereto is an accord with the natural human conduct of a female. The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not ::: Downloaded on - 09/06/2013 16:07:54 ::: 43 overlook."
41) I have perused the impugned judgment and order dated 4.12.2009 as well as scrutinized the oral and documentary evidence adduced and produced by the prosecution on record and also considered the submissions advanced by the learned Counsel for the parties anxiously as well as gave thoughtful consideration to the observations made in the above referred cases cited by the learned Counsel for the appellant as well as learned APP for the respondent, and I am inclined to accept the alternative submission advanced by learned Counsel for the appellant, mainly relying upon the medical evidence and evidence of CA, since PW 6 - Dr.Sunita has categorically stated in her deposition that hymen of the victim was in tact and medical certificate (Exhibit-29) discloses that there was no evidence of injury on the Vulva : Labia Majora/minors and no evidence of injury, but the Fourchette & posterior commissure - no evidence of posterior ::: Downloaded on - 09/06/2013 16:07:54 ::: 44 injury and even the said medical certificate and testimony of Dr. Sunita does not disclose that there was any redness, tenderness or/swelling on the genital part of the victim and further since PW 6 - Dr.Sunita has categorically stated in her deposition that, if rape is attempted, then vulval edema can occur and in the instant case, the injury certificate (Exhibit-29) discloses that there was vulval edema with white discharge, and in Court question it has come on record that white discharge in child can be due to trauma, and, therefore, in the instant case the cause of white discharge may be because of trauma after attempt of rape upon the victim, and, therefore, it appears, it is the case of attempted rape.
Besides, there is no cogent and convincing evidence adduced and produced by the prosecution in respect of penetration of the private part of the accused into private part of the victim and even the prosecution although examined the accused medically, his medical certificate has not been produced,nor even said Dr. Sunita was ::: Downloaded on - 09/06/2013 16:07:54 ::: 45 examined before the Court.
42) Besides that, CA reports disclose that there were semen stains on the torn nicker/underwear of the accused and as canvassed by learned Counsel for the appellant, there are many reasons for having semen stains on the nicker/underwear of male person and such semen stains on the nicker of the accused would not connect him to the alleged crime of rape.
Moreover, it is significant to note that vaginal swab of the victim did not disclose any semen as well as there were no blood-stains on the nicker of the accused and hence said CA reports (Exhibit-23, 24 and 25) do not connect the accused with the alleged crime of rape, but suggest attempted rape upon the victim.
43) Considering the testimonies of PW 2 -
Kantabai and PW 4 - Kiran, it cannot be disputed that since the accused was residing in the same vicinity, where the complainant resided, the ::: Downloaded on - 09/06/2013 16:07:54 ::: 46 victim might be knowing the accused and his name and even might have taken the victim on the pretext of giving Jambhul, but that does not mean that the accused committed rape upon the said victim unless penetration of his private part into the private part of the victim is proved beyond reasonable doubt, and prosecution has failed to prove and establish the same beyond reasonable doubt. However, the other circumstances that the injury on the cheek and head of the victim; semen on the underwear of the accused, to which the accused has not given any explanation; and the version of the prosecutrix, which she disclosed before PW 2 - Kantabai and PW 4 - Kiran, that the accused had taken her on the promise of giving Jambhul to her and the victim and the accused reside in the same vicinity and the victim knew the accused along with medical certificate (Exhibit-29) and evidence of PW 6 -
Dr. Sunita with CA reports (Exhibits-23, 24 and
25), cumulatively establish that the accused/appellant attempted to commit rape upon ::: Downloaded on - 09/06/2013 16:07:54 ::: 47 the victim Anjali on the relevant day.
44) In the circumstances, present appeal deserves to be allowed partly, quashing and setting aside the conviction and sentence inflicted upon the appellant/accused under Section 376(2)(f) of Indian Penal Code, whereas the appellant/accused is required to be convicted under Section 376 read with Section 511 of Indian Penal Code and deserves to be sentenced to suffer R.I. for five years, maintaining the imposition of fine and compensation awarded to the complainant by the learned trial Judge.
45) In the result, present appeal is allowed partly and the conviction and substantive sentence inflicted upon the appellant/accused under Section 376(2)(f) of Indian Penal Code, stands quashed and set aside, whereas the appellant/accused stands convicted under Section 376 read with Section 511 of IPC and is sentenced to suffer R.I. for five years. However, the fine ::: Downloaded on - 09/06/2013 16:07:55 ::: 48 amount and direction regarding compensation, to be paid to the complainant, awarded by the trial court stands maintained. The Appellant/accused is in jail, hence, office to inform to the concerned jail authority accordingly.
sd/-
(SHRIHARI P.DAVARE)
ig JUDGE
bdv/cral27.10
fldr.8.7.2010
Authenticated copy
(BD VADNERE,PS)
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