Bombay High Court
Sanju @ Sanjay Patangrao Jagtap vs The State Of Maharashtra (At The ... on 7 October, 2003
Equivalent citations: 2004CRILJ1102
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. Heard the counsel for the parties at length.
The appellant is hereby assailing the correctness, propriety and legality of the judgment and order passed by the 2nd Additional Sessions Judge, Satara in Sessions Case No. 98 of 2001 wherein he has convicted the appellant for committing the offence punishable under Section 376(f) of IPC and sentenced him to undergo RI for 10 years and to pay fine of Rs. 2000/-, in default to undergo further RI for three months.
2. The prosecution case in brief is that on 14.2.2001 victim Sushma, a girl of five years old had gone to Balwadi - school at about 11.00 a.m. and her mother Sunita Bhoite had brought her to her house at about 2.00 pm. She ate some food and then went outside for playing and at that time Sunita was washing the clothes in the house. Sushma was playing with Roopali Mohan Mane, another, girl, in the Court yard. After sometime, said Roopali Mane came inside the house of Sunita and told her that Sushma slept in the nearby temple with the present accused. Sunita told Roopali to bring Sushma back to her house and within 5-10 minutes Sushma and Roopali came to Sunita's house and at that time Sushma was weeping. Sunita saw that her nicker was hanging around the legs of Sushma and she noticed that it was stained with semen which was noticed on the said nicker and thighs of Sushma. Sunita removed the said nicker and washed it and thereafter asked Sushma as to what had happened with her and at that time Sushma told her that "the accused (present appellant) had urinated on her private part by embracing her." Due to fear of losing the reputation, Sunita washed the said nicker and as she was alone in the house she told also the said incident to one Suvarna Mane, wife of maternal uncle of her husband. Thereafter she told about the said incident to Shivaji Mane, material uncle of her husband who told her not to get scared and promised her that he would ask the accused about the said incident. After that Sunita narrated the said incident to Sunil Vithhal Mane and he also promised that he would look into the said matter. Thereafter Sunita sent to her house.
3. At about 8.00 or 8.30 p.m. Shivaji Mane, Dilip Pawar, Dinkar Mane and Ankush Mane asked about the said incident to the accused (the present appellant) who admitted to have done the said act as narrated by Sushma to her mother. He prayed for being pardoned. After that, the present appellant ran away and was absconding for four days.
4. Sunita went to Police Station Rahimatpur and lodged the complaint against the accused after Sushma pointing out the place of the incident to PW Sunita. The spot of the offence was inside the temple of Lord Bhairoba. Police during the course of investigation seized the said nicker and produced it before the Court as Article No. 1.
5. Sushma was produced before Dr. Varsha Kulkarni who examined Sushma on 15.2.2001 at about 3.30 p.m. No. external injuries were found on the person of Sushma. Secondary sexual characters were not developed. She took the blood sample and vaginal swah which along with her nicker were dispatched to Chemical Analyzer, Pune.
6. On 17.2.1002, when the present appellant was arrested, when he was in policy custody, he expressed his willingness to show the place where he had concealed his clothes which included his chaddi, banian and solapuri chadder under the heap of fodder near his house. The memorandum was drawn in the presence of panch witness Ramchandra Madhavrao Deshmukh and his companion witness. The appellant took the investigating officer and the panch witnesses to the said heap of fodder and after scattering the fodder, he took out those clothes and chadder from it. The said articles were seized under the panchanama Exhibit-21 keeping continuity with memorandum Exhibit-20. Those articles were also sent to the Chemical Analyzer, Pune for chemical examination. The appellant was sent to medical officer Dr. Madhuri Jagtap who after examining the appellant, opined that the appellant was capable of committing sexual intercourse.
7. After completing necessary investigation, the appellant was put to trial before the 2nd Additional Sessions Judge, Satara who after completing the trial and hearing the prosecution and the defence, passed the order of conviction and sentence mentioned above which is the subject matter of challenge in this appeal.
8. Shri Kantharia, counsel appearing for the appellant, submitted that in the present case, the prosecution did not examine the victim who happens to be the child. Therefore, there is serious infirmities in the prosecution case which the trial Judge did not notice and by ignoring this he committed the error of convicting and sentencing the appellant for the offence of committing the rape on said child Sushma. Shri Sahaji Shinde submitted that there is no infirmity whatsoever in the present case or the evidence produced by the prosecution for proving its case on account of the non-examination of child witness Sushma.
9. This Court finds substance in the submission advanced on behalf of the prosecution, and, therefore, dismisses the criticism levelled by the counsel for the appellant in this context in context with the prosecution evidence and non-examination of the victim. The evidence of Dr. Varsha Kulkarni shows that Sushma, the victim, was a child of five years old. Her secondary sexual characters were also not developed. Shri Sahaji Shinde submitted that there was no point in examining a child victim aged about five years for proving the guilt of the accused though it happens to be a case revolving around rape committed on her. When the victim is such a child of tender age, the prosecution case does not get infirmed on account of non-examination of such victim who happens to be a child of tender age in the Court as prosecution witness. What she could have done when brought in the Court as prosecution witness? She would not have even understood the questions asked by the prosecutor or the defence counsel to her. That would have been nothing but exposing her to cruelty and humility and making her to face the barrage of questions asked by the prosecutor or defence counsel in the atmosphere of the court which has to be in fact avoided. The spirit of Juvenile Justice Act deprecates bringing the children or juveniles to the Court atmosphere and exposing them to smell of criminality. Such tender aged children are not to be exposed to such humiliation which could create a trauma in their personality which would be as good as gifting them a serious mental disease for their future life. It is to be noticed that the way in which she narrated the said incident to her mother was self-eloquent of her innocent childhood when she told her mother that the appellant had urinated on her private part. That was her understanding of the act committed by the appellant in respect of her. Thus, keeping in view all these things, the prosecution case does not get weakened any way in this case on account of non-examination of such tender aged victim.
10. Shri Kantharia submitted that in the present case the prosecution did not examine any independent witness and, therefore, the learned trial Judge should have acquitted the appellant. Shri Sahaji Shinde submitted that there was no possibility of examining any independent witness because the persons to whom PW Sunita narrated the incident all related to her and there was no witness to witness the said incident of attempting to commit rape on child Sushma. This Court again finds substance in the submission advanced by the prosecution. The persons to whom PW Sunita narrated the incident were related to her husband and, therefore, there could not have been any other witness to give the evidence. Law does not require that for proving every offence the prosecution has to examine independent witnesses. There may be some offences which could not be witnessed by any witness. Some offences are committed in lonely places where besides the culprit and victim none witnesses the commission of the offence so far as human beings are concerned. In such cases, the prosecution has to depend on circumstantial evidence and the evidence of those persons whom he narrates the incident immediately after commission of the offence or even later on. If the prosecution is denied a conviction in such offences, there would be miscarriage of justice and the society at large would suffer. Law does not depend on artificial modes of proving the guilt far away from the rational thinking.
11. Sushma had narrated the said incident to her mother in a very innocent way and that was corroborated by presence of stains of semen on her nicker and on the thighs. One has to understand the plight in which her mother PW Sunita must have been caught. After seeing such cruel assault on her small daughter, Sunita must have been stunned and confused because she was all alone in the house and her husband was, as the evidence shows, addicted to the habit of consuming liquor. Therefore, she had to tell about the said incident to maternal aunt of her husband and thereafter to the maternal uncle of her husband PW-7. They reacted in a very natural way by telling PW Sunita that they would ask about the said narrated incident to the appellant and thereafter they would take some action. Thereafter a puzzled woman as Sunita was, she narrated the said incident to her relatives. What is unnatural in it?. When a woman who is having her husband addicted to the habit of drinking liquor and doing virtually no work, gets herself faced with such situation of her small child aged about five years getting raped, what she would do?. She is naturally bound to take the evidence of her near relatives and in that case, the prosecution would be examining the same persons who happen to be the relatives of the victim or her mother. There may have been some persons who must have been present when the present appellant was accosted by Shivaji Mane PW-7 and other relatives of PW Sunita. But what their version should have been, it would have been similar to the testimony of PW-7 Shivaji Keru Mane. The prosecution may not have been also confident whether they would stick up to the version or the statements given by them during the course of investigation. In recent trend of witnesses becoming hostile to the prosecution, the relation with the victim by itself does not make the evidence of those relatives discardable. At the most that would make the Court to examine their evidence cautiously because in this case the victim who happens to be a small child of five years has not been examined by the prosecution and the explanation has been put forth by the prosecution for non-examination of such small tender age victim of the rape.
12. Shri Kantharia submitted that the evidence of PW-7 Shivaji Keru Mane needs to be discarded because his evidence shows that he was waiting for settling the matter with the present appellant. But only on that count, the prosecution case cannot be thrown out of Court. One is to understand the plight of these witnesses, namely, Shivaji Keru Mane and Sunita, mother of said small child. One has to keep in mind the statement made by PW Sunita in her evidence that she washed the nicker of Sushma only for the purpose of saving their reputation. That was the immediate reaction of Sunita when she heard the narration of the said incident from the small child Shushma. A lonely woman like Sunita would think seriously whether she should speak of that incident or whether she should keep mum. The most important factor before her eyes and mind would be to see that her small child aged about five years old should not get disreputed on account of the said incident which was no fault either on the part of Sushma or Sunita. She narrated the said incident to the maternal uncle of her husband for the purpose of keeping the secrecy and, therefore, PW 7 Shivaji Keru Mane might have thought it proper to settle the matter without there being discussion about it. The statement made by PW Shivaji Keru Mane in cross-examination does not mean that he was waiting for settling the said matter for money. Even no suggestion has been made by the defence to him in that context. Now, Mr. Kantharia seems to be taking the advantage of that statement for the purpose of saving the appellant. Thus, this criticism levelled against the prosecution evidence stands dismissed.
13. Shri Kantharia submitted that when the nicker of Sushma was washed by Sunita, how the chemical analyzer could see the stains of semen on nicker Article No. 1. For utilising this fact in this appeal, there should have been a positive cross-examination from the defence side. Some questions should have been asked to PW Sunita as to how she washed the said nicker. Half hearted cross-examination does not allow grabbing of advantage at later stage. It is the duty of the defence to give sufficient opportunity to the prosecution to explain the situation and therefore the cross-examination should be complete and it should not be half-hearted so as to deprive appropriate opportunity to such prosecution witnesses. No question was asked to PW Sunita as to whether she washed the said nicker by simple water or with soap. Had it been asked to her or had it been suggested to her that she washed the said nicker by some strong detergent, then there could have been some significance to the argument which has been submitted by Shri Kantharia on this point. The experience tells that even by washing the concerned article or dress by simple water the stains of blood or semen do not get always washed away completely. The defence was not prevented from moving an application for calling the Chemical examiner Analyzer for cross-examination on this point. But no attempts in this direction were made by the defence. Thus, this Court dismisses the submission advanced by Shri Kantharia on this point also and comes to the conclusion that the certification of Chemical Analyzer on this point deserves acceptance in favour of the prosecution.
14. PW Sunita was cross-examination at length. No suggestion was made to her that her statement that she saw Sushma with stained nicker and stains on her thigh was a falsehood. The said statement made by PW Sunita has gone unchallenged and this Court finds good grounds for accepting the said statement in favour of the prosecution. Thus, Sunita had seen her small daughter Sushma with hanging nicker stained with stains of semen and semen on her thighs immediately after the happening of the said incident. Therefore, sufficient credence has to be given to this evidence which has been adduced by the prosecution through the evidence of PW Sunita. Immediately thereafter Sunita narrated the said incident to PW 7 Shivaji Keru Mane and her relatives. The appellant was called at about 8.00 or 8.30 p.m. by those relatives and in presence of those relatives, the appellant admitted that he attempted to commit sexual intercourse with victim Sushma. There is no denial of this evidence which has been adduced by the prosecution which lends corroboration to the evidence of PW Sunita and PW 7 Shivaji Keru Mane and finding of semen stain on the said nicker by the Chemical Analyzer. This admission, which has not been withdrawn by the appellant, comes under the category of extra judicial confession and that also weighs an incriminating circumstances against the present appellant.
15. The appellant gave an information to the investigating officer and panch witnesses when he was in police custody and that information was that he was willing to show the spot where he had concealed the chaddi, his banian and solapuri chaddar. The memorandum was recorded which happens to be Exhibit-20 and thereafter the appellant took the investigating officer's staff members and panch witnesses to the heap of fodder to the West side of his house and from that heap he took away those articles which were concealed. The evidence on this point adduced by the prosecution shows that the appellant was knowing the place where those articles were concealed. That fastens the knowledge of concealment of those articles there under the heap of fodder. Those articles have been well connected by the prosecution with the commission of crime because as per extra judicial confession of the appellant the said Solapur Chadder was kept by the appellant for making Sushma to sleep on it when he was attempting to commit sexual intercourse with her. When he attempted to commit the sexual intercourse with Sushma the semen felt out and on account of that the said nicer got the stains of semen and semen was found on her thighs. Thus, the prosecution has proved the nexus between the accused and the said semen on nicker of Sushma and on her thighs. As per the provisions of the Indian Evidence Act 1872 (hereinafter referred to as the Evidence Act for convenience), the said discovery assumes the nature of incriminating evidence against the accused.
16. As these circumstances are incriminating the appellant in commission of the crime, non-examination of victim of tender age is also excusable.
17. Thus, there are number of incriminating circumstances indicating a pointer towards the guilt of the accused. If those circumstances are linked with each other links are strong enough to create a continuous chain of circumstances around the present appellant and that chain of circumstances is strong enough to exclude any hypothesis pointing towards his innocence. The witnesses may lie but circumstances generally do not. If the circumstantial evidence is inspiring the confidence in judicial mind and is creating a strong chain of guilt around the accused excluding any hypothesis pointing towards his innocence, the Court should not have any hesitation in concluding the guilt of such an accused. In this case, same is the situation. The circumstantial evidence is strong and is strongly proving the guilt of the appellant. Therefore, there remains no doubt indicating his innocence. Therefore, this Court has no hesitation in coming to the conclusion that the appellant did commit the attempt of committing rape on the victim Sushma.
18. The trial Judge has committed the error in coming to the conclusion that the appellant committed rape on child Sushma, the victim. In fact, the prosecution evidence shows that he could not succeed in penetrating his male organ in the vagina of Sushma and committing the offence of rape as defined in Section 375 of Indian Penal Code. In view of this, the conviction needs to be modified suitably and the appellant needs to be convicted for an offence punishable under Section 376(f) read with Section 511 of IPC.
19. Shri Kantharia submitted that the appellant's young age be considered and the sentence be reduced. Shri Shinde opposes it. The sexual assault on small children is a growing phenomena which disturbs the peace of the society. The accused who did not bother for tender age of child Sushma, does not deserve any sort of leniency. As he is claiming to be young for leniency, the tender age of Sushma demands for a deterrent punishment. There has to be alarming caution to like minded persons. Sexual encroachment has to be punished with hammer hand and when it happens to be in respect of the victims of tender age, leniency should not be shown at all. Thus, prayer for leniency is also dismissed.
20. Thus, the appeal stands dismissed. The appellant stands convicted for the offence punishable under Section 376(f) read with Section 511 of IPC. No interference in the sentence. The appellant has to undergo the sentence in appropriate prison. No order in respect of the disposal of the property.