Bombay High Court
Jibhau Vishnu Wagh vs State Of Maharashtra on 8 December, 1995
Equivalent citations: 1996CRILJ803
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT
1. The appellant being aggrieved by the judgment and order dated 30-1-1995 passed by the Additional Sessions Judge, Dhule in Sessions Case No. 134 of 1994 convicting him under Sections 376, 341 and 342 of I.P.C. and sentencing him to undergo 5 years R.I. under the first count; 6 months R.I. under the third count but awarding no separate sentence under the second count, has come up in appeal before me.
2. The prosecutrix Ashabai Khavale (P.W.1) aged about 8 years is a resident of Tamaswadi, Taluka Sakri, District Dhule. The appellant is also a resident of the aforesaid village. On 27-7-1994 at about 1.00 p.m., the prosecutrix had gone to a grocery shop for purchasing oil. While on way to the grocery shop, the appellant caught her and took her to a flour mill. Thereafter, he removed her nicker and committed rape on her. She cried as a consequence thereof; but nobody came to her rescue. The appellant told her that she should wash her clothes; otherwise, he would throw her in the well. Thereafter the prosecutrix came to her house and went to sleep outside on Ota. After sometime, her mother Sushilabai Khavale (P.W. 2) awakened her and enquired from her as to what was the matter; whereupon she replied that the appellant had raped her. Sushilabai Khavale went to the house of the appellant and the appellant's brother Daulat lifted her; threw her on the gorund; and also assaulted her. Meanwhile one Yashwant came and asked Daulat whether he wanted to kill Sushilabai; whereupon Daulat left her.
3. The same day, Sushilabai along with her husband, police patil, etc. came to police station Sakri and lodged an F.I.R. there. From Police station, the prosecutrix Ashabai was sent for medical examination.
4. Ashabai Khavale was medically examined on 27-7-1994 at about 6.00 p.m. by Dr. Sonawane (P.W. 6). The doctor found that her vulva was swollen and was accompanied by tenderness and redness; vagina was bleeding; hymen was ruptured and its edges were congested; and there was sticky blood in the vulva and vagina. In the opinion of the doctor, the victim had been raped. The doctor also found that the injuries were within 24 hours.
5. The Investigation of the case was conducted by A.P.I. Rohidas Jadhav (P.W. 7). On the very day of the lodging of the F.I.R., he arrested the appellant. He seized terycot pant and red-colour underwear from the appellant vide panchanama Exh. 9. He also seized frock and torn nicker of the prosecutrix under panchanama vide Exh. 35. He recorded the statements of the witnesses under Section 161 of the Cr.P.C. He sent the clothes seized from the appellant and those from the prosecutrix for chemical analysis. After completing the investigation, on 6-10-1994 he submitted the chargesheet against the appellant.
6. After his arrest, the appellant was sent for medical examination. He was medically examined by Dr. Sonawane (P.W. 6) on 27-7-1994 at 6.45 p.m. Dr. Sonawane found that the appellant had sustained an abrasion on his penis of the size of 1 cm x 1/4 cm x 1/4 cm. He also found that a small amount of smegma was present around the corona glandis. He opined that the appellant had committed sexual intercourse.
7. The case was committed to the Court of Sessions in the usual manner where charges under Sections 376, 341 and 342 of the I.P.C. were framed against the appellant. To the aforesaid charges, he pleaded not guilty and claimed to be tried.
8. In the trial Court, as many as seven witnesses were examined by the prosecution. In defence, no witness was examined.
The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated above.
9. I have heard Mr. A. P. Mundargi, learned counsel for the appellant and Mr. I. S. Thakur, learned A.P.P. for the State of Maharashtra. I have perused the depositions of the witnesses examined in the trial Court; the material exhibits tendered in the trial Court by the prosecution; and the impugned judgment. After giving my anxious consideration to the matter, I am of the view that there is no merit in this appeal and it deserves to be dismissed.
10. The crucial evidence in the instant case is that of the prosecutrix Ashabai Khavale (P.W. 1), aged about 8 years. It was on the basis of the averments contained in her examination-in-chief that I have set out the prosecution story in the earlier part of the judgment. No useful purpose would be served by repeating those averments. Her statement, which is to the effect that while she was going to purchase oil, the appellant caught her removed her nicker and committed rape on her is corroborated by the medical evidence. As seen earlier, the medical evidence showed that the hymen was ruptured; vagina was bleeding; and there was sticky blood in the vulva and vagina. Dr. Sonawane, who medically examined the prosecutrix, stated that she had been raped. I am not able to understand that in the absence of any cogent reason for falsely implicating the appellant as to why she would have named him had he not been the real culprit.
11. Corroboration is lent to the evidence of the prosecutrix by the prompt F.I.R. of the incident, which was lodged by Sushilabai Khavale (P.W. 2) at police station Sakri. In the aforesaid F.I.R., it has been mentioned that the appellant had raped the prosecutrix. Criminal Courts attach great importance to the lodging of a prompt F.I.R. A prompt F.I.R. largely eliminate chances of improvements and embellishments in the prosecution story.
The fact that in the F.I.R., the appellant is the solitary accused, who has been named is an in-built guarantee of the truthfulness of the allegations contained therein for no one would exclude the real culprit and falsely implicate a person, specially for no rhyme or reason, as is the case here.
12. Again corroboration is forthcoming to the statement of the prosecutrix by the injuries of the appellant. As mentioned earlier, the same day at 6.45 p.m. the appellant was medically examined and an abrasion was found on his penis by the doctor. In statement recorded under Section 313 of the Cr.P.C., it was put to the appellant as to how he had got the abrasion and he replied, "I do not know about this."
Again a clinching corroboration is forthcoming by the fact that on the pant of the appellant, which was recovered by the Investigating Officer under a panchanama, a human blood was found by the Chemical Analyst. This was put to the appellant in his statement under Section 313 of the Cr.P.C. and the gave he stock answer "I do not know about this".
13. An evasive answer by the accused in his Statement under Section 313 of Cr.P.C. is also a circumstance which can go against him in a criminal case. There should have been some explanation from the side of the appellant as to how he got the injury on his penis and human blood on his pant. The failure on his part to offer the same is also a circumstance, which goes against him.
14. Thus, in my view, there was ample, dependable and trustworthy evidence against the appellant and the learned trial Judge was wholly justified in convicting and sentencing him.
15. Mr. Mundargi, learned counsel for the appellant, made two submissions before me.
He firstly urged that the prosecutrix was a young girl aged about 8 years and the learned trial Judge should have conducted her preliminary examination in order to ascertain in the level of understanding and only thereafter should have proceeded to record her statement. There can be no dispute that it would have been certainly better for the learned Judge to have first conducted a preliminary examination of the prosecutrix by putting some questions to her and on the basis of answers given by her in reply to them satisfied himself whether she was possessed of sufficient understanding. However, the failure to hold a preliminary examination of a child witness does not introduce a fatal infirmity in the evidence. I am fortified in my view by a Division Bench decision of the Allahabad High Court reported in 1959 Cri LJ 796, Ram Hazoor Pandey, Appellant v. State, Respondent, wherein in paragraph 11 Their Lordships have observed thus :
"Although it is not necessary to have a preliminary examination, namely, voire dire, of a child witness in order to make his testimony admissible, nevertheless, such a course is desirable and should be resorted to, for it offers an opportunity to the Court to assess the mental capacity of a child witness."
The whole object of a preliminary examination is to ascertain the level of understanding of a witness. If the same can be assessed from the statement she gave in Court, failure to record a preliminary examination would have no adverse bearing on the prosecution case. On a perusal of the statement of the prosecutrix, it is implicitly clear that she was possessed of sufficient understanding. In a coherent and forthright manner, she deposed not only in her examination-in-chief but more importantly in cross-examination also. Consequently, the failure to conduct her preliminary examination does not introduce a fatal flaw in the prosecution case and accordingly, the first submission canvassed by Mr. Mundargi fails.
Secondly, Mr. Mundargi urged that the smegma around the corona glandis of the appellant is a proof that he had not committed sexual intercourse. Mody in his book on "Medical Jurisprudence and Toxicology". Twenty-first Edition, page 380, has said, "the presence of smegma as proof against the sexual intercourse is not of any medico legal value". At any rate, in my view, this sole circumstance would certainly not knock out the entire case of the prosecution, which is based on sufficient and trustworthy evidence, oral circumstantial and medical.
16. No other point was canvassed by the appellant's counsel.
17. For the aforesaid reasons, I have no hesitation in reaching the conclusion that the appellant has been rightly convicted by the learned trial Judge.
18. Coming to the question of sentence, I find that the appellant instead of the minimum sentence of 7 years R.I. under Section 376 I.P.C., has only been awarded 5 years R.I. Considering the beastly manner in which he committed rape on a young girl aged 8 years, I had half-a-mind to issue a suo motu notice for enhancment of sentence to the appellant. However, I have refrained from doing this because in the Code of Criminal Procedure, 1973 there is a provision in the form of Section 377 Cr.P.C. wherein it has been provided that in a case of inadequacy of sentence, the State Government may file appeal for enhancement of the sentence, in the High Court. For reasons best known to it, the State Government has not chosen to do this. It appears that probably it felt that 5 years R.I. was enough. In the absence of any appeal for enhancement of sentence preferred by the State, in my view, it would be too harsh to issue a suo motu notice to the appellant for enhancement of his sentence and that too at the stage of final hearing of his appeal in this Court, nearly one year after the passing of the impugned judgment.
19. In the result, this appeal is dismissed. The impugned judgment is confirmed. The appellant is in jail. He shall remain there and serve out the sentence awarded to him.
20. Appeal dismissed.