Bombay High Court
Maroti S/O Domaji Sadmake vs The State Of Maharashtra on 21 September, 2011
HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR.
CRIMINAL APPEAL NO. 147 OF 2005
Maroti s/o Domaji Sadmake
aged about 35 yrs., r/o Mendhatola
Tq. Dhanora, Distt. Gadchiroli. :: APPELLANT
-: Versus :-
The State of Maharashtra,
through Police Station Officer,
Police Station, Pendhari,
Tq. & Distt. Gadchiroli. :: RESPONDENT
......................................................................................
Mr. R. P. Joshi, Advocate for the appellant.
Mr. P. D. Kothari, A.P.P. for the respondent-State.
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CORAM : : U. V. BAKRE, J.
JUDGMENT RESERVED ON : 13TH SEPT., 2011
JUDGMENT PRONOUNCED ON : 21ST SEPT., 2011
J U D G ME N T
The accused, who has been convicted of the offence punishable under Section 376(1) of the Indian Penal Code (I.P.C., for short) and sentenced to suffer rigorous imprisonment (R.I.) for seven years and to pay fine of Rs.2,000/- in default to suffer R.I. for further period of six months, has filed this appeal.
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2. Case of the prosecution, in short, is as follows :-
(i) The prosecutrix, aged about 12 years, was a student of 4th standard in Bhagvantrao Ashram Shala, Gatta, and was residing in the hostel of that school.
The accused was In-charge Head Master of the said school at the relevant time. The examination of 4th standard was over. Some students had returned back home but some including the prosecutrix were still in the hostel.
(ii) ig On 16/4/1996 at about 8.00 p.m. the prosecutrix had gone out of the hostel premises for answering the nature's call. She had requested her two friends to accompany her but the accused told her to go alone.
(iii) While the prosecutrix was returning back, the accused accosted her on road, caught her hand and forcibly took her to the field of one Lingaji, under a tree, removed his lungi and spread it on the ground, remover the nicker of the prosecutrix and forcibly committed sexual intercourse with her.
(iv) Before committing the act, the accused had threatened the prosecutrix that he would ensure her failure in examination upon her refusal to accede to his demand.
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(v) After the incident, the prosecutrix came back to the hostel and was weeping and she informed the incident to her two friends.
(vi) On 17/4/1996, the prosecutrix handed over a letter to Kisan Zade, the teacher of the said school, informing about the incident.
(vii) Shri Abdul Hakim, the Secretary of Vana Vaibhav ig Shikshan Mandal, Alapalli, which runs the said school, conducted inquiry into the matter and prepared the report dated 4/5/1996 addressed to P.S.O., police station, Pendhari.
3. On 4/5/1996, the report of the prosecutrix came to be recorded by Pendhari police. Offence was registered. Investigation was carried out and the charge sheet came to be filed against the accused for offence punishable under Section 376 of I.P.C. and Section 3(1)(xii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The accused was tried for the said offences.
4. The prosecution examined altogether eight witnesses in support of its case. P.W.-1 is the prosecutrix. Her oral report is at Exh.
25. P.W.-2 Gando Usendi was taken as one of the panch witnesses for ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 4/17 the panchanama of disclosure statement of accused and recovery of lungi, underwear and shirt of the accused, at his instance. P.W.-2 has, however, not supported the prosecution. P.W.-3 Ramesh Narote is one of the teachers of the said school. P.W.-4 Dr. Jatishchandra Malik had examined the accused and the prosecutrix. The prosecutrix was examined by him only for determination of her age. The certificates are respectively at Exhibits 32 and 33. P.W.-5 Subhash Meshram was taken as one of the panch witnesses for spot panchanama. P.W.-5 has not supported the prosecution. P.W.-6 Dr. Sadhana Joshi examined the prosecutrix for ascertaining injuries and sexual assault. The certificate is at Exh.37. P.W.-7 Kisan Zade is also one of the teachers of the said school. Lastly, P.W.-8 Abdul Hakim is the secretary of the Van Vaibhav Shikshan Mandal, Alapalli, which runs the said school. The investigating officer has not been examined.
5. The case of the accused is that a false case has been filed against him by the prosecutrix in collusion with Meshram Sir, Zade Sir and Hakim Saheb, with intent to remove him from service. The accused has not examined any witness.
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6. The learned trial Court accepted the prosecution evidence holding that the evidence of prosecutrix inspires confidence and can be safely acted upon without any corroboration. The accused has been convicted and sentenced as stated earlier. The accused has, however, been acquitted of the offence under Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act.
7. Heard arguments. Learned Advocate Shri R. P. Joshi argued on behalf of the accused whereas learned A.P.P. Shri P. D. Kothari argued on behalf of the State.
8. Perused the record and proceedings.
9. P.W.-1, the prosecutrix has deposed that her date of birth is 5/7/1985 and that she was studying in 4th standard. The above fact as stated by P.W.-1 has not been denied, in her cross-examination.
10. P.W.-4 Dr. Malik, a radiologist, examined the x-ray plate of the prosecutrix on 4/5/1996 and on the basis of the specification of bones mentioned by him in his certificate (Exh.33), arrived at from ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 6/17 examination of the x-ray and corroborated in the deposition, he came to the conclusion that the prosecutrix was of the age between 14 to 15 years and that she was not below 12 years and above 14 years of age. In the cross-examination, mere denials have been put to P.W.-4.
11. There is on record undisputed school leaving certificate (Exh.39) pertaining to the prosecutrix. The date of birth of the prosecutrix is mentioned as 5/7/1985.
12. Thus, it is proved beyond reasonable doubt that the prosecutrix, as on 16/4/1996, was below the age of 16 years and hence in terms of the sixth clause of Section 375 of I.P.C., the consent of prosecutrix is no defence.
13. P.W.-1, the prosecutrix, has deposed as follows :-
"....The incident was taken place at about 8 p.m. I had gone to answer natures call. I was intending to take my friend with me but accused Sadmake restrained my friends from coming with me, therefore I alone had gone to answer natures call. When I was coming back towards hostel, accused caught my hand. He taken me below a Tad tree.
Thereafter accused committed rape on me. When accused ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 7/17 caught my hand I stated to leave my hand, but accused had not listened. He stated me to allow him for committing sexual intercourse otherwise he will make me fail in examination. Below the tad tree accused spread his lungi on the earth. Accused removed my nicker. He also removed his nicker. He made me lie and committed sexual intercourse with me. Thereafter, I had gone to hostel by other way and accused came to hostel by other way. I informed about the incident to my friends Chaya and Pratima. I also stated about it to my teacher Zade. The teachers made report about the incident and given it to Hakim Saheb. Thereafter I had gone to my village. I had not informed about this incident to my parents. Police came to my village, after 4-5 days. Police taken me at Police Station, Pendhari. My report was written there. The report dtd. 4/5/96 now shown to me bears my signature. The contents of my oral report are correct. It is at Exh.25..."
(Quoted from pages No. 44 & 45 of the appeal paper book)
14. A perusal of the cross-examination of P.W.-1 reveals that there is not a single omission or contradiction in the deposition of P.W.-1 vis-a-vis her oral report (Exh.25).
15. Learned Advocate Shri R.P. Joshi has contended that the incident had occurred on 16/4/1996, but the complaint with police was ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 8/17 lodged by P.W.-1 on 4/5/1996 which indicates inordinate delay, creating reasonable doubt about the prosecution case. He further argued that the two friends of prosecutrix, namely: (i) Pratima Madavi and (ii) Chaya Koram to whom the prosecutrix had allegedly requested to accompany her and to whom subsequently she had narrated the incident, have not been examined. Learned Counsel for the accused further argued that the medical evidence does not support the version of P.W.-1. He further pointed out the conduct of the prosecutrix in not informing her own parents and argued that this is unnatural. He lastly contended that the suggestion put to P.W.-1 to the effect that Meshram Sir, P.W.-7, P.W.-8 and she had colluded with each other to lodge false complaint with intention to remove the accused from the school as In-
charge Headmaster, is believable in the facts and circumstances of the case. Learned A.P.P., on the other hand, canvassed for the correctness of the view taken by the trial Court.
16. From the arguments advanced by the learned Counsel for the accused, it can be understood that there is nothing in the deposition of P.W.-1, in itself, to make it unreliable.
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17. A suggestion has been put to P.W.-1 that with intent to involve the accused falsely and remove him from service, Meshram Sir, Zade Sir, Hakim Saheb and she made out a false case against him in collusion with each other. No suggestion has been put either to P.W.-7 (Zade) or to P.W.-8 (Hakim) as to what benefit he/they would derive by removal of accused from service. No case of any kind of enmity of P.W.-7/P.W.-8 with the accused has been brought on record. Be that as it may, even if P.W.-7 and P.W.-8 are, for the time being, taken to be having some reason for removing the accused from service, that would never drive the prosecutrix, who is a student of the accused to falsely implicate him and that too in a crime of rape on herself, at the cost of her reputation and future.
18. In the present case, P.W.-1 was staying in hostel of the school situated in the village Gatta and not with her parents at Jappi. P.W.-1 has stated that immediately after coming back to the hostel, she informed the incident to her friends Chaya and Pratima. According to P.W.-1, she even informed about the incident to her teacher Zade and the teacher made report about the incident and gave it to Hakim Saheb.
Thereafter P.W.-1 went to her village. She has stated that she did not ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 10/17 inform about the incident to her parents. No question has been asked to P.W.-1 by the learned Advocate for the accused as to why she did not inform the incident to her parents. Looking at the immediate reaction of P.W.-1 in narrating the incident to her friends and to the teacher, I do not feel that the conduct of P.W.-1 in not informing her parents, should be taken as not fitting to human nature.
19. Though P.W.-1 did not immediately lodge police complaint, however, on 17/4/1996, i.e. on the next day itself, she had informed her teacher(Zade Sir), in writing, about the incident. This letter is at Exh.
42, wherein P.W.-1 has stated that the accused raped her and that since she cannot state this fact personally, she is giving letter in this regard.
20. P.W.-7 Kisan Zade has deposed that in 1996 he was working as teacher at Bhagwantrao Ashram Shale, Gatta, the accused was working as Headmaster and the prosecutrix was student who used to reside in the hostel of the school. In so far as the incident is concerned, for better understanding, the version of P.W.-7 is quoted as under :-
"....The incident was taken place on 16/4/96. At about 8 p.m. I was present at my room. I was taking meals. Two students of the hostel came to me. They stated me for ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 11/17 coming towards hostel. The boys were sent by Kamathi Madavi to me. After some time I had gone to wards the school. Madavi and Usendi were present there at that time.
Gunabai had gone to ease but she had not come back.
When we were present there, Gunabai came there from outside. She was alone. I asked her as to why she alone had gone out of hostel premises. She stated me that she had gone to ease. Thereafter she had gone towards her sleeping room. When she stated me that she had gone to ease, she was weeping but she had not stated any reason at that time. I had gone back to my room. On the next day there was examination of the classes 1st to 3rd and 5th.
Gunabai was learning in 4th Std. and her examination was completed. At the time of evening Gunabai given a written paper to me. On that paper it was written that when she had gone to ease, Headmaster Sadmake caught her hand and by taking her below a Tad tree, he forcibly committed sexual intercourse with her. The said letter was given in my presence and in presence of Madavi, Kamathi and Narote, Usendi. That chit was kept by Superintendent Narote . Hakim Saheb was the Secretary of Educational Education. This matter was enquired by Secretary Hakim.
Police also recorded my statement."
(Quoted from page Nos. 76 & 66 of appeal paper book).
21. The evidence of P.W.-8 Abdul Hakim reveals that on 1/5/1996 he got the letter (Exh.42) of the prosecutrix from the Clerk.
::: Downloaded on - 09/06/2013 17:45:40 :::HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 12/17 P.W.-8 has stated that he went to the village Jappi of the prosecutrix and made inquiries with her and she stated that on 16/4/1996 in night time, when she had gone to ease at night time, the accused Sadmake came behind her, took her below a Tad tree and forcibly committed sexual intercourse with her and that she had given in writing about the incident to the teacher. P.W.-8 recorded the statement of the prosecutrix. The statement is at Exh.43. P.W.-8 has identified his signature on Exh.43. He has deposed that he conducted inquiry and found that the accused committed rape on the prosecutrix and therefore on 4/5/1996, he made a report to the P.S.O., Pendhari. This report of P.W.-8 is at Exh.44.
22. As a Secretary of Van Vaibhay Shikshan Mandal by which the Bhagwantrao Ashram School was run, P.W.-8 had conducted the inquiry and he then suspended the accused from service and subsequently since the accused was constantly remaining absent at the headquarters, he was terminated.
23. It is upon the report (Exh.44) made by P.W.-8 to the police, the police went to the village of the prosecutrix and brought her to ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 13/17 Pendhari police station and recorded her oral report (Exh.25). The testimonies of P.W.-7 and P.W.-8 are most natural and no iota of falsity can be traced in them.
24. There is also supporting evidence of P.W.-3 Ramesh Narote, a teacher of the said school.
25. The delay in lodging report with police is understood from the above and the same is not deliberate or malafide. The learned trial Judge has dealt with this aspect in detail and has relied upon "State of Punjab vs. Ramdev Singh" (A.I.R. 2004, S.C., 1290) to show as to why in case of rape delay in F.I.R. must not be viewed with the same sensitiveness, as in other cases. I have no reason to differ from the view of the trial Court.
26. As far as the accused is concerned, the evidence of P.W.-4 Dr. Jatishchandra Malik proves that he is capable of doing intercourse.
However, there is no evidence of any injury on male organ of the accused, noticed by P.W.-4. In this regard it should be kept in mind that the accused was examined about 20 days after the date of incident.
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27. The evidence of P.W.-6 Dr. Sadhana Joshi reveals that the hymen of the prosecutrix was intact and no obvious injury was seen over the body or perineal region and there was bleeding from introitus .
P.W.-6 has opined that the prosecutrix was not capable of having sexual intercourse at that stage and there was no sign of forcible sexual intercourse. However, according to P.W.-6, the prosecutrix had attained menarche. In her cross-examination, P.W.-6 has stated that in between the age of 13 to 14 years of a girl, the hymen becomes tough and much force is required for rupture of hymen. She has admitted that without rupture of hymen, sexual intercourse is possible if there is slight penetration. In her cross-examination, P.W.-6 has stated that if any able bodied person forcibly commits sexual intercourse with a girl, then there is possibility of rupture of hymen as well as possibility of injury to private part.
28. Learned Advocate Shri Joshi has relied upon "Rahim Beg vs. The State of U.P." (A.I.R. 1973 S.C. 343) wherein it has been observed that where rape is alleged to have been committed by a fully developed man on a girl of 10 or 12 years who was virgin and whose ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 15/17 hymen was intact, the absence of injuries on the male organ of accused would point to his innocence. However, "Rahim Beg" case supra has been distinguished by the Hon'ble Apex Court in "State vs. Raguvir Singh" [(1993) 2 S.C.C. 622] wherein it has been held that inferences have to be drawn in every case from the given set of facts and circumstances. There is no inflexible axiom of law which lays down that the absence of injuries on the male organ of the accused would always be fatal to the prosecution case and would discredit the evidence of prosecutrix otherwise found to be reliable. It has been observed that the observation in Rahim Beg case cannot be mechanically pressed into aid in every case regardless of the specific circumstances of the crime and absence of the fact situation as existing in that case.
29. The evidence of P.W.-6 suggests that on the date of examination of the prosecutrix i.e. on 5/5/1996, she was in menses and hence was not capable of having sexual intercourse at that time and there was bleeding from introitus. The prosecutrix had attained menarche. Merely because her hymen was intact and no injuries were noticed on her body or perineal region, it cannot be concluded that the accused is innocent and that P.W.-1 is a false witness. There was delay ::: Downloaded on - 09/06/2013 17:45:40 ::: HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /home/lichade/judgments/UVB/apeal147.05.odt 16/17 of about 19-20 days in examination of the prosecutrix. As observed by the trial Court, for constituting the offence of rape there is no necessity of complete penetration of penis or even emission of semen and rupture of hymen. P.W.-6 has herself stated that in girls aged about 13 to 14 years, the hymen is tough and without rupture of hymen, the sexual intercourse is possible with slight penetration.
30. In view of the above, merely because there is no medical evidence to prove sexual intercourse, it cannot be held that the accused is innocent and this is because there is strong truthful and reliable evidence of the prosecutrix.
31. Learned Advocate Shri R. P. Joshi has also relied upon the decisions of the Apex Court reported in:- (i)- (2010) 12, S.C.C. 115 -
Abbas Ahmad Choudhary Vs. State of Assam; (ii)- (2009),15 S.C.C. 566
- Tameezuddin Vs. State; (iii)- (2010) 3 S.C.C. 232 - Dinesh Jaiswal Vs. State of M.P; and (iv)- [1999(1) Mh.L.J. 691 - Anmol Shridhar Gharde & others Vs. State of Maharashtra. I have gone through them all. They are not of any assistance to the accused as the evidence of prosecutrix in the present case is truthful and reliable without corroboration.
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32. As has been rightly held by the trial Court, the sole testimony of P.W.-1 inspires full confidence and is wholly reliable and has circumstantial support of the testimonies of other witnesses, discussed above.
33. Considering the evidence on record, the conviction against the accused and consequently the sentence imposed upon him, which is reasonable, could not be faulted.
34. There is therefore no merit in the appeal and hence the same is hereby dismissed. Bail bond of accused and his surety stand cancelled.
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