Bombay High Court
Gopal Madhukar Bombatkar vs The State Of Maharashtra on 17 April, 2014
Author: M.L. Tahaliyani
Bench: M.L. Tahaliyani
1 apeal494.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.494 of 2011
Gopal Madhukar Bombatkar,
Aged 22 years,
Occupation - Labour,
R/o Nandura, Ward No.5,
Near Cinema Theater, Nandura,
Tq. Nandura, District Buldhana. .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Police Station, Nandura,
District Buldhana. .... RESPONDENT
___________________________________________________________________
Dr. U.K. Kalsi, Advocate for the appellant,
Shri H.D. Dubey, Addl.P.P. for the respondent.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
DATED : 17
APRIL, 2014.
th
ORAL JUDGMENT :
1. The appellant has been convicted for the offence punishable under Section 376(2)(f) (old) of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for three months.
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2. The appellant was accused of sexual abuse of a nine years old girl namely Ku. Komal Mesre, the daughter of the complainant Smt. Shobha Mesre. The complainant Shobha Mesre, aged about 35 years, was staying at Ward No.5, near Rahul Tower, Nandura within the jurisdiction of Nandura Police Station. Her husband and children were also staying with her. She has a son by name Nilesh, aged about 18 years and two daughters namely Pallavi, aged about 13 years and Ms. Komal, aged about 9 years (victim).
The appellant was their neighbour. The incident in question had occurred on 04-12-2009 at about 8.30 p.m. The complainant was at home. Her elder daughter Pallavi had gone to shop and victim Ku. Komal was playing outside.
The appellant had allegedly taken the victim with him in the shop of one Vallabh and thereafter he told her to accompany him to a place where there was darkness. The appellant had allegedly asked the victim to lie down below a neem tree. He removed her undergarments and committed rape on her. Since the victim was of very tender age, she felt severe pain and shouted. The appellant left the spot and the victim came to her residence.
She narrated the incident to her mother. Her father came late in the night as he was working as a cook in one of the hotels at Nandura. The incident in question was brought to the notice of father of the victim also. Thereafter it was brought to the notice of elder brother of victim's father. Victim's father had gone to the house of the appellant and questioned his conduct. The appellant, however, was not bothered. The matter was ultimately reported ::: Downloaded on - 04/05/2014 00:41:32 ::: 3 apeal494.11 to police on 06-12-2009. Police registered offence under Section 376 of the Indian Penal Code against the appellant on the basis of complaint made by mother of the victim. Statement of victim was recorded during the course of investigation. Statements of other witnesses including elder sister of the victim were also recorded. The clothes of the appellant and the victim were seized by the police and were sent to forensic science laboratory.
3. The victim was sent for medical examination immediately after recording of the First Information Report. She was examined by P.W.8 Dr. Bramhanand Chavan. During the course of medical examination, P.W.8 Dr. Bramhanand Chavan found that :-
a) there was laceration of left and right vaginal walls, 3 cm. x 2 cm.
Direction of laceration was oblique and age of the laceration was before 3 to 4 days,
b) swelling of vaginal walls was present and signs of inflammation were also present on both sides and
c) hymen was found torn at 3 O'Clock and 9 O'Clock. Hymen was red and painful. The age of injury was before three to four days.
4. After examination of victim, the Medical Officer had opined that she was subjected to sexual assault. Certificate issued by this witness was produced in the Court at Exhibit 45. The doctor had also collected vaginal swab for detection of semen and spermatozoa. After completion of investigation, charge-sheet was filed in the court of law. The Chemical ::: Downloaded on - 04/05/2014 00:41:32 ::: 4 apeal494.11 Analyzer Reports indicated that no blood or semen was found on trouser and undergarment of the appellant. Blood or semen was also not found on clothes of the victim.
5. When the case came up for hearing before the learned Additional Sessions Judge, Khamgaon, he framed a charge under Section 376 of the Indian Penal Code and proceeded to record evidence of witnesses.
Prosecution had examined as many as nine witnesses in support of its case.
P.W.1-Komal is the victim. P.W.2-Shobha is mother of the victim. P.W.3- Gajanan is father of the victim. P.W.4 is Dr. Laxminarayan Jaiswal had examined the appellant. P.W.5-Santosh Verma is one of the panch witnesses.
P.W.6-Santosh Jungade is also a panch witness. P.W.7-Anil is one of the Investigating Officers. P.W.8-Dr. Bramhanand Chavan is the doctor who had examined the victim girl. P.W.9-Bhaskarrao is also the Investigating Officer.
The learned trial Court believed the evidence of victim girl and convicted the appellant for the offence punishable under Section 376(2)(f) of the Indian Penal Code.
6. Learned Counsel Dr. U.K. Kalsi appearing on behalf of the appellant has submitted that there are many discrepancies in the evidence of P.W.1 (victim) and has also submitted that the reading of examination-in-
chief of P.W.1 gives an impression that she was tutored before she entered the ::: Downloaded on - 04/05/2014 00:41:32 ::: 5 apeal494.11 witness box for giving her evidence. At this stage, it may be mentioned here that when the appeal came up for hearing before this Court on 17-10-2012, this Court had, in exercise of powers under Section 391 of the Criminal Procedure Code, directed the trial Court to record further evidence of P.W.1 and to certify the same to this Court. The record and proceedings were sent back to the trial Court for recording further evidence. Further evidence of P.W.1 has been recorded by the trial Court. The recording of further evidence was necessitated because this Court felt that recording of evidence of P.W.1 was abruptly stopped as she was not responding to the questions. This Court had observed that learned trial Judge did not participate in the trial and did not take necessary steps to see that the complete evidence of P.W.1 was recorded. P.W.1 in her earlier evidence had stated that she was taken below the neem tree by the appellant and she was asked to lie down on a wooden plank. The witness had further stated that the appellant had himself lied upon P.W.1. She had also stated that the appellant had removed her undergarments. It appears from her evidence that she was reluctant to give answers to further questions. Further she had stated that she had cried and there was pain in her vagina and chest. She went home crying and narrated the incident to her mother. She also told her mother that she was feeling pain in her private part. Father came late in the night and next day he went to attend his work. The victim was told to take bath by her mother. She was unable to sit while taking bath. She, therefore, complained to her mother. It ::: Downloaded on - 04/05/2014 00:41:32 ::: 6 apeal494.11 is due to intervention of elder brother of father of the victim that the matter had reached the Police Station. Since the evidence of P.W.1 was suspended abruptly, as already stated, the trial Court was directed to record her further evidence. This witness in her further evidence has stated that the appellant had inserted his penis in vagina of P.W.1 and that she had sustained swelling due to penetration of penis.
7. P.W.2 has stated that the incident was narrated by her daughter P.W.1 and in turn she had narrated the incident to her husband who had reached home late in the night. Thereafter the matter was brought to notice of elder brother of father of the victim. He assured the victim family that they should not get frightened and that the matter was required to be reported to the police. P.W.2 has stated that she had lodged First Information Report Exhibit 21. She has also stated that the victim was taken to Khamgaon Hospital and thereafter she was taken to Civil Hospital, Buldhana where she was examined by a doctor. P.W.3 is father of the victim girl who has more or less supported the evidence given by P.W.1 and P.W.2. P.W.4 is the Medical Officer who had examined the appellant and had certified that though the appellant was suffering from phimosis, his penis could partially penetrate vagina. P.W.5 is the panch witness whose evidence is not required to be examined in detail. This witness, in fact, has not supported the prosecution case. However, his supporting or otherwise hardly makes any ::: Downloaded on - 04/05/2014 00:41:32 ::: 7 apeal494.11 difference to merits of the case when the case is examined on the basis of evidence of victim and her parents. P.W.6 was panch at the time of spot panchanama and he has also not supported the prosecution case. P.W.7 had recorded report of P.W.2 at Exhibit 21 and had registered an offence vide First Information Report Exhibit 22. P.W.8 Dr. Bramhanand Chavan had examined the victim girl at Civil Hospital, Buldhana. The injuries found on the person of victim have already been mentioned while describing the prosecution story hereinabove. This witness has given evidence which is consistent with the prosecution story. P.W.9 had seized clothes of the victim vide panchanama Exhibit 23. He had prepared spot panchanama vide panchanama Exhibit 48.
He had also seized wearing apparel of the appellant vide panchanamas Exhibits 50 and 51. The appellant was sent to Medical Officer by this witness for medical examination.
8. The brief resume of evidence of prosecution witnesses gives a clear indication that whole case of the prosecution was mainly based on the evidence of P.W.1 and the medical officer. No doubt there was delay in lodging the First Information Report and there was delay in medical examination of the victim girl. The incident had occurred on 04-12-2009 and First Information Report was recorded on 06-12-2009. The delay was mainly caused because father of the victim girl went to attend his job on next day and uncle of victim was informed later on. It appears from the evidence that ::: Downloaded on - 04/05/2014 00:41:32 ::: 8 apeal494.11 it is due to the intervention of uncle of the victim that the matter could reach police station, otherwise it is possible that the incident might not have been recorded at the police station. In the circumstances, in my opinion, the delay has been properly explained by the prosecution. As far as delay in medical examination of the victim is concerned, it has already come on record that she was referred to Khamgaon Hospital and thereafter she was referred Civil Hospital, at Buldhana. Therefore, there was delay of three days in medical examination of the victim. The evidence of Medical Officer clearly indicates that the injuries found on the vaginal walls and other injuries including laceration on the hymen were three to four days old. That fortifies the prosecution case that the incident had occurred three to four days prior to the date of examination of P.W.2 (victim) by the Medical Officer. As such the delay in lodging the First Information Report and delay in medical examination has been properly explained by the prosecution. The case has, therefore, to be examined on the merits of evidence of P.W.1 and the medical officers.
9. An attempt was made before the trial Court to show that there was no possibility of penetration as the appellant was suffering from phimosis. A suggestion was made to the Medical Officer that even partial penetration was not possible as the appellant was suffering from phimosis.
The Medical Officer denied the suggestion. The Medical Officer also denied ::: Downloaded on - 04/05/2014 00:41:32 ::: 9 apeal494.11 the suggestion that rupture of hymen could not be possible due to partial penetration. As such the Medical Officer was firm in his opinion that phimosis does not prevent penetration of penis. He was equally firm that the rupture of hymen was possible due to partial penetration. Considering the age of girl (9 years) and the age of victim (22 years), in all probability there would have been only partial penetration. It need not be stated here that partial penetration also amounts to rape if it is without consent. In the present case, question of consent of victim girl did not arise as she was only 9 years old. The Medical Officer clearly stated that the hymen could rupture even if there is partial penetration. Moreover, rupture of hymen is not necessary to prove the offence of rape.
10. The Medical Officer P.W. 8 has clearly stated that there was a laceration of left and right vaginal walls. Age of the laceration was before three to four days. Swelling was found present on vaginal walls and there were signs of inflammation. Hymen was found torn at 3 O'Clock and 9 O'Clock. Hymen was red and painful. Age of this injury was also about three to four days. P.W.8 had opined that there was sexual assault on the victim about three to four days prior to date of her examination by P.W.8.
11. Coming back to the evidence of P.W.1, though there was lengthy and searching cross-examination of this child witness, the evidence gives a ::: Downloaded on - 04/05/2014 00:41:32 ::: 10 apeal494.11 clear picture that the appellant had taken the girl from the shop below the neem tree where there was dark and had inserted his penis in vagina of the victim. A defence was taken that there used to be quarrels between mother of the victim and mother of appellant and therefore, appellant has been falsely implicated in this case. Cross-examination was done in this direction also. However, nothing worth mentioning is brought in the cross-
examination on this aspect of the case. P.W.1 has stated that her mother P.W.2 had gone to house of the appellant on next day and there was a quarrel between mother of the appellant and P.W.2. This part of cross-examination does not help the appellant in any manner because it is the case of prosecution itself that P.W.2 mother of P.W.1 (victim) had gone to house of the appellant since the appellant had allegedly ravished the victim.
12. An attempt was also made to demonstrate before the trial Court that the victim was tutored. P.W.1 had admitted in her cross-examination that she had met the prosecutor and her statement was read over to her. In this regard, it may be mentioned here that meeting of witness with the prosecutor in advance of recording evidence by itself will not amount to tutoring. It is not tutoring if the witness is made aware of his police statement and was told to narrate the incident properly in the Court. The case of prosecution will be adversely affected if it was indicated in the cross-
examination that the witness was told to give incorrect evidence. There is no ::: Downloaded on - 04/05/2014 00:41:32 ::: 11 apeal494.11 suggestion to this witness that the incident had not occurred in the manner narrated by her in the Court or in her police statement. There is no suggestion that she was told to testify the facts which had not occurred. In my considered opinion, therefore, the meeting of witness with the prosecutor by itself will not adversely affect the prosecution case. Child witness in the case of this nature, in fact, needs psychological support from the parents and the prosecuting agency to tell the truth in Court. The ultimate aim of the criminal trial is to unearth the truth. Criminal trial is nothing but a quest for truth. Therefore, the support of prosecutor to a reasonable extent to keep the witness psychologically strong is necessary in the present scenario. There is no presumption that the prosecutor will necessarily tutor the witness to tell what has not in fact happened. In order to take adverse note of the meeting between child witness and prosecutor, it is necessary for the defence to bring on record that the meeting was necessarily arranged to prepare a false case against the accused. In the present case, this Court has also taken note of the fact that no contradiction or omission has been brought on record in the testimony of P.W.1. Therefore, it cannot be said that the prosecutor had prepared a case not in accordance with the incident.
13. It was also brought to my notice that P.W.1 has admitted in her evidence that the report was lodged as there was quarrel between mother of the P.W.1 and mother of the appellant. This admission does not necessarily ::: Downloaded on - 04/05/2014 00:41:32 ::: 12 apeal494.11 mean that the incident had not occurred in the manner narrated by P.W.1 and that a false report was lodged only because there was a quarrel on some other issue between mother of the P.W.1 and mother of the appellant. It is interesting to note here that though the cross-examiner had referred to the quarrel between two ladies, he has schemingly avoided to ask P.W.1 as to the cause of quarrel. This clearly indicates that the quarrel between two ladies was due to the assault on the part of the appellant on P.W.1 and not due to any other reason. As far as P.W.2, P.W.3 and P.W.4 are concerned, their cross-
examination also revolves around the same quarrel.
14. In my considered opinion, the learned trial Judge has rightly found the appellant guilty of the offence punishable under Section 376(2)(f) of the Indian Penal Code.
15. As far as sentence is concerned, the learned Advocate Dr. U.K Kalsi prayed that the appellant may be given benefit of proviso to Section 376(2) of the Indian Penal Code. Section 376(2) runs as under :-
"376(2). Whoever, -
(a) being a police officer commits rape -
(i) within the limits of the police station to which he is appointed ; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of ::: Downloaded on - 04/05/2014 00:41:32 ::: 13 apeal494.11 a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant;
or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine;
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
16. As such it is clear that there must exist special and adequate reasons for imposing punishment lesser than ten years. In a similar case while dealing with the proviso to Section 376(2) of the Indian Penal Code, ::: Downloaded on - 04/05/2014 00:41:32 ::: 14 apeal494.11 the Hon'ble Supreme Court in the matter of State of Madhya Pradesh v.
Santosh Kumar reported at AIR 2006 SC 2648 at paragraph 18 has said as under :-
"18. In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the Court to impose a sentence less then the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and not strait-jacket formula can be indicated. What is applicable to trial Courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is the young age of the accused and the fact that he belongs to a Scheduled Tribe. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative."
17. As such the reason has not only to be adequate but also special.
In the present case, no special or adequate reason has been brought to my notice, which may give benefit of the proviso to the appellant. The Hon'ble Supreme Court in the matter of Dhananjoy Chatterjee v. State of West Bengal reported at 1994(2) SCC 220 has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminals.
Justice demands that Courts should impose punishment befitting the crime ::: Downloaded on - 04/05/2014 00:41:32 ::: 15 apeal494.11 so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
18. In my view, in the present case also there are no special or adequate reasons to impose lesser than minimum punishment. In the present case also, justice demands that appropriate and befitting punishment is imposed on the appellant. I am of the definite view that the learned trial Court has imposed punishment proportionate to the crime committed by the appellant. The victim girl was only 9 years old at the time of commission of offence. The appellant was 22 years old. The facts of the case do not call for any leniency in the sentence. Since appropriate sentence has been imposed by the learned trial Court, I do not see any reason to interfere in the judgment of the learned trial Court.
19. The appeal stands dismissed.
JUDGE.
pma ::: Downloaded on - 04/05/2014 00:41:32 :::