Gulabrao Ramkrushna Dophe vs State Of Mah.Thr.Pso Buldhana on 18 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.30 OF 2006

Gulabrao s/o. Ramkrushna Dophe,
aged about 42 years,
R/o. Gramkhed, Tahsil Khamgaon,
Disrict Buldhana ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through Police Station Officer,
Police Station, Khamgaon,
District Buldhana …… RESPONDENT

——————————————————————————————-
Mr. S.D. Zoting, Counsel for Appellant.
Mr. H.R. Dhumale, Additional Public Prosecutor for
Respondent /State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: th
18 SEPTEMBER, 2017.

ORAL JUDGMENT

Exception is taken to the judgment and order dated

14.12.2005 delivered by the Additional Sessions judge, Khamgaon

in Session Case 24 of 1999, by and under which the appellant

(hereinafter referred to as “the accused”) is convicted of offence

punishable under section 376 read with section 511 of the Indian

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Penal Code (“IPC” for short) and is sentenced to suffer rigorous

imprisonment for 05 years and to payment of fine of Rs. 1,000/-.

2 Heard Shri. S.D. Zoting, the learned counsel for the

appellant and Shri. H.R. Dhumale, learned Additional Public

Prosecutor for the Respondent / State.

3 The case of the prosecution, substantially if not

entirely rests on the testimony of the child victim and that of her

mother. Shri. Sachin Zoting, the learned counsel for the accused

submits that the testimony of the child victim and her mother (PW

3 PW 1 respectively) is not corroborated by the medical

evidence. The learned counsel for the accused submits that the

defence of the accused of false implication is probabilised on the

touchstone of preponderance of probabilities.

4 Shri. H.R. Dhumale, the learned APP submits that the

evidence of the child victim and her mother is implicitly reliable

and the non-examination of the doctor would pale into

insignificance since the credibility of PW 1 and PW3 is not shaken

in the cross examination. The learned APP would submit that

nothing is brought on record to suggest false implication and the

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two fold defence i.e. that the child victim and the nephew of

accused having quarreled leading to injury to the 10 year old

nephew of the accused and the defence that the electricity

connection which was supplied to the residence of the child victim

was disconnected by the accused and therefore, the false

implication, is not held believable by the learned Sessions Court.

5 The mother of the child victim who has lodged the

oral report exh. 16 on 14.12.1998, is examined as PW1. The

evidence is consistent with the oral report Exh. 16 on the basis of

which the First Information Report Exh. 17 is recorded and

offence punishable under section 376 read with section 511 of the

IPC is registered.

6 PW1 states that on the date of incident, the child

victim was playing outside the residence. Accused was caressing

the child victim. PW 1 went inside the house to boil the water

and after she came out of the house, the child victim was not to be

seen. Husband of PW 1 returned after half an hour. He made

inquiry about the child victim and PW 1 informed him that the

child victim was taken by the accused. PW 1 and her husband

started searching for the child victim and after half an hour, the

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accused was seen in front of the house of Sadashiv with the child

victim in his arms. PW 1 took the child victim home, the child

victim complained of pain in her private part and told the PW 1

that the accused took her in a cotton field. The child victim told

PW 1 that her undergarment was wet. PW 1 states that she

noticed stains of blood on the frock and the undergarment of the

child victim. She made hue and cry and the villagers assembled in

the house. She states that thereafter, the child victim was taken to

the police station by PW 1 and her husband and a report was

lodged. In the cross examination, the version of PW 1 that the

child was being caressed by the accused, is not challenged. The

challenge in the cross examination is to the later part of the

testimony which relates to the PW 1 came out of the house after

boiling the water and noticing the absence of the child victim.

The suggestion is that it was only due to suspicion, that the report

was lodged against the accused. The cross examination does not

take the case of the accused any further. Nothing is brought on

record to impeach the credibility of the mother of the child victim.

A suggestion is given to PW 1 that there was a quarrel between

child victim and Gopal, the 10 year old nephew of the accused

and in the scuffle the 4 year old child victim assaulted 10 year old

nephew of the accused. The nephew of the accused suffered

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bleeding injury resulting in the blood stains on the clothes of the

child victim. The defence, inherently incredible as the defence is,

is not even put to PW 3, the child victim, in the cross examination.

In the statement recorded under section 313 of the Criminal

Procedure Code, in response to question 26, the accused states

that he supplied electricity connection to PW 1 which he later

disconnected and PW 1 was angry and lodged a false report

against the accused. He further states in response to the said

question that the child victim threw a small stone on Gopal during

a quarrel, Gopal the nephew of the accused suffered bleeding

injury on his forehead, the accused intervened in that quarrel

between child victim and Gopal and therefore, the false

implication. The defence is disbelieved, and rightly so, by the

learned Sessions Judge.

7 In rebuttal to the submission on behalf of the accused,

that the failure of the prosecution to examine the doctor renders

the prosecution case weak, the learned APP Shri. H.R. Dhumale

has brought to my notice the following observations of the

Hon’ble Supreme Court in the State of Madhya Pradesh Vs.

Dayal Sahu (2005)8 SCC 122:-

“14. A plethora of decisions by this Court as referred to

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above would show that once the statement of the
prosecutrix inspires confidence and is accepted by the
courts as such, conviction can be based only on the
solitary evidence of the prosecutrix and no
corroboration would be required unless there are
compelling reasons which necessitate the courts for
corroboration of her statement. Corroboration of
testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances. It is
also noticed that minor contradictions or insignificant
discrepancies should not be a ground for throwing out
an otherwise reliable prosecution case. Non-
examination of doctor and non-production of doctor’s
report would not be fatal to the prosecution case, if the
statements of the prosecutrix and other prosecution
witnesses inspire confidence. It is also noticed that the
court while acquitting the accused on benefit of doubt
should be cautious to see that the doubt should be a
reasonable doubt and it should not reverse the findings
of the guilt on the basis of irrelevant circumstances or
mere technicalities”.

8 I am satisfied, that the evidence of the child victim

and that of her mother PW1 is trustworthy and confidence

inspiring. The non-examination of the doctor, in the

circumstances, does not dent the prosecution case. The judgment

impugned as unexceptionable on facts and in law.

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The appeal is without substance and is rejected.

The bail bond shall stand cancelled.

The appellant / accused be taken into custody to serve the

sentence.

The appeal is disposed of accordingly.

JUDGE

Belkhede

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