Bombay High Court
Ramchandra Mahadev Shinde vs State Of Maharashtra on 2 December, 1998
Equivalent citations: 1999CRILJ1428
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellant aggrieved by the Judgment and order dated 23-11-1994 passed by Vth Assistant Sessions Judge, Kolhapur, in Sessions Case No. 127 of 1994, convicting and sentencing him to undergo 7 years R.I. and to pay a fine of Rs. 1000/- in default thereof, to suffer four months R.I. for an offence under Section 376, I.P.C. has come up in appeal before us.
2. In short, the prosecution case runs as under:--
The prosecutrix Shubhangi Shinde PW-1 and the appellant were residents of village Ambap situated within taluka Hatkanangale District Kolhapur. At the time of the incident, Shubhangi was studying in Class 4 in Kanya Vidya Mandir. On 21-5-1994, as the school was closed, she was playing with one Swati, whose house was situated near that of the appellant. At about 1.30 p.m. she felt the urge to take water and went to the house of the appellant. After taking water, she again resumed playing with Swati. At that time, the appellant lifted her, carried in the bathroom of his house, made her lie on a gunny bag, removed her nicker, undressed himself and thereafter committed rape on her. After completing the act, the appellant threatened her not to disclose the incident to anyone. He thereafter, went away.
After the incident, Shubhangi went to her house and told her mother about the incident. On examining her private parts and finding bleeding, she in turn informed Shubhangi's father. Thereafter. Shubhangi's mother washed her private part, changed her clothes and took her to police station Vadgaon.
3. The FIR of the incident was lodged by Shubhangi same day at 7.30 p.m. at police station Wadgaon. On its basis, PSO Parashu Deulkar PW-8 registered an offence under Section 376, I.P.C.
Thereafter, the prosecutrix was sent for medical examination.
4. The injuries of the prosecutrix were medically examined the same day by Dr. Anil Kurane PW-4 at C.P.R. Hospital Kolhapur. Dr. Kurane found minor abrasions on clitoris region, vaginal bleeding and tear in hymen and concluded on the basis of these findings, that there was positive evidence of rape.
5. After the usual investigation, the appellant was charge sheeted for an offence punishable under Section 376, I.P.C. and ultimately charged and tried for the said offence. In the trial Court, his defence was that of denial.
During trial, the prosecution in order to substantiate its case, examined 9 witnesses. With respect to the commission of rape the solitary witness examined by the prosecution was the victim Shubhangi. The learned trial Judge believed her evidence and convicted and sentenced the appellant in the manner stated above.
6. We have heard Mr. M.R. Deshpande for the appellant and Mr. S.R. Borulkar Additional Public Prosecutor for the State of Maharashtra -- Respondent. We have also perused the depositions of the prosecution witnesses and the entire material on record. We are implicitly satisfied that the learned trial Judge acted correctly in finding the appellant guilty for an offence punishable under Section 376, I.P.C.
7. In the instant case, the mainstay of the prosecution evidence is the account furnished by Shubhangi Shinde PW-1, the victim. Since she was a child witness being aged about 9 years at the time of the incident, we have evaluated her testimony as enjoined by law with caution. She stated that on the date and time of the incident, as her school was closed, she was playing with her friends Swati whose house is contiguous to that of the appellant. At that time, (21 -5-1994 at about 1.30 p.m.) the appellant bodily lifted her, took her inside his bathroom, made her lie on the ground, undressed her and himself and thereafter committed rape on her. She then came and recounted these facts to her parents, who after washing her private parts and changing her clothes, took her to police station Wadgaon where she lodged her FIR the same day at 7.30 p.m. We have meticulously examined the statement of Shubhangi and we find that the same inspires implicit confidence. The manner of the incident as furnished by her referred to above corroborated by the medical evidence. As mentioned earlier, Dr. Kurane PW-4 who medically examined her same day found minor abrasions in her clitoris bleeding from vagina and tear of hymen. On these symptoms, he concluded and rightly in our Judgment that there was positive evidence that she had been raped.
It is true as contended by Mr. Deshpande that in her cross-examination, the prosecutrix admitted that there was a litigation pertaining to land between her father and the father of appellant and prior to the incident, her father had lodged a FIR against the father of the appellant. But, in our view for the said reasons, she would not have falsely implicated the appellant. It should be borne in mind that by falsely implicating the appellant her own image would have been tarnished and prospects of her marriage blasted. At any rate, if at all for the said reason she had to falsely implicate, the target would not have been the appellant but his father.
At any rate, as the Apex Court has observed times out of number, the mere circumstance that a witness is enimical, would not result in the mechanical rejection of the evidence of such a witness but, would only make the Court cautious while evaluating the testimony of such a witness. We have exercised the said caution and only thereafter have reached a conclusion that the evidence of the victim is implicitly reliable.
8. Assurance is also forthcoming to the statement of the victim Shubhangi by the circumstance that the FIR of the incident was lodged within 6 hours of the incident taking place. As mentioned earlier, the incident took place on 21-5-1994 at 1.30 p.m. and the FIR was lodged the same day at 7.30 p.m. It is pertinent to point out that in the said FIR broad-features of the prosecution case, including the nomination of the appellant and his commission of rape on her have been mentioned.
9. For the said reasons, in our view, the learned trial Judge acted correctly in finding the appellant guilty for the offence punishable under Section 376, I.P.C. Mr. S.R. Borulkar, Additional Public Prosecutor, for the respondent contended that since the prosecutrix was below 12 , years of age, at the time of the incident, by virtue of the provisions of Section 376(2)(f), I.P.C. the minimum sentence which the trial Judge should have awarded was 10 years R.I. and consequently urged us to issue a notice for enhancement. We have reflected over the said submission of Mr. Borulkar and do not find substance in it for two reasons:-
Firstly, under Section 377(1) Cr. P.C. there is an expressed provision that if the State feels that the sentence is inadequate, it may direct the Public Prosecutor to prefer an appeal for enhancement of sentence. The State of Maharashtra has not invoked the said provisions and preferred an appeal for enhancement of the sentence. Secondly, we find that nearly four years have gone by, since the time the appellant was convicted and sentenced by the trial Court. We do not think appropriate after a period of four years from the date of conviction of the appellant, when the appeal is on the final hearing board, that a notice for enhancement of sentence be issued to the appellant.
10. For the said reasons, we do not find any merit in this appeal and dismiss the same. The appellant is in jail, and shall remain there till he serves out his sentence.