Chhotelal Kandhari Prajapati vs The State Of Maharashtra Thr. … on 1 November, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.51 OF 2017

Chhotelal Kandhari Pajapati,
Aged about 55 years, Occ. Labour,
r/o. Anand Nagar, Wardha, Tq.
and District. Wardha. ………. APPELLANT

// VERSUS //

The State of Maharashtra,
Through Police Station Officer,
Police Station, Wardha City,
Tq. and Distt. Wardha. ………. RESPONDENT

Mr.R.P.Thote, Advocate (appointed) for the Appellant.
Mr.A.M.Deshpande, A.P.P. for the Respondent/State.

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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.

DATED : 1st November, 2017.

ORAL JUDGMENT (Per M.G.Giratkar, J) :

1. This is an appeal against the Judgment of

conviction by Sessions Court, Wardha in Special Case

No.54 of 2014, dt.27.6.2016, by which the appellant is

convicted for committing an offence under Section 5(n)

punishable under Section 6 of Protection of Children from

the Sexual Offences Act, 2012 and sentenced to suffer

rigorous imprisonment for life and to pay a fine of

Rs.10,000/-, in default to suffer rigorous imprisonment for

six months. The appellant is also convicted for the offence

punishable under Section 506 of the Indian Penal Code and

sentenced to suffer rigorous imprisonment for two years

and to pay a fine of Rs.2,000/-, in default to suffer rigorous

imprisonment for two months.

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2. The case of prosecution, in short, is as under :

Appellant is step-father of victim. The victim was

aged about 15 years. She was studying in 7th Std at the

time of incident in the year 2013. She had started her

menstrual periods. She told her friend Shubhangi about

the same. She also told about this fact to appellant/her

step-father. Her mother died when she was 1½ years old.

She was the only person, residing with her step-father in a

rented house. When she disclosed to the appellant that

she has started receiving menstrual periods, the appellant

scolded her saying that her clothes were stained with blood

because she might have slept with somebody. After 2-3

days, the appellant started sleeping with her. He used to

undress her, threatening her and did sexual intercourse

with her. He continued sexual intercourse with the victim

till 25.2.2014.

3. The victim was not feeling well. Therefore, she

informed Lata Ramesh Ramteke (PW-2), who was her

neighbour. Lata Ramteke took her to Dr. Mohd. Shoeb

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Sheikh (PW-4). Dr.Shoeb examined the victim and found

that she was pregnant. On inquiry, she told him that her

step-father used to do sexual intercourse with her

continuously since November, 2013 and therefore, she

became pregnant. Lata Ramteke also inquired with her.

She disclosed the same fact to her.

4. On 27.2.2014, the victim along with Lata

Ramteke (PW-2) went to Police Station, Wardha and lodged

report. Crime was registered for the offences punishable

under Sections 376(f)(i)(k)(n), 323, 504, and 506 of the

Indian Penal Code and Sections 3 and 4 of the Protection

of Children from the Sexual Offences Act, 2012

(hereinafter referred to as “the POSCO Act”).

5. Investigating Officer Murlidhar Pandurang

Burade sent the victim for medical examination.

Dr.Krushna Shende, Medical Officer examined her and

issued Medico-legal Certificate. He observed the victim

carrying pregnancy. Investigating Officer Murlidhar

Burade arrested the accused, seized his clothes and sent

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him for medical examination. Investigating Officer

Prabhakar Babare (PW-8) prepared spot panchanamam

etc. Victim girl was sent to remand home. Seized property

was sent to the Chemical Analyser, Nagpur. Charge sheet

was filed against the accused.

6. With the permission of Court, Police Inspector

Murlidhar Burade obtained custody of the appellant. He

requested the Chemical Analyser, Nagpur to supply DNA

kit. After getting custody of the appellant, blood sample

was taken by the Medical Officer and it was seized by

Investigating Officer Murlidhar Burade. He has requested

Medical Officer at Nagpur to collect blood sample of newly

born child and victim. DNA kits were sent to Regional

Forensic Scientific Laboratory (‘RFSL’), Nagpur. Assistant

Chemical Analyser Ms Neha Bhale examined the blood

samples and came to the conclusion that the appellant is

father of the newly born child.

7. Charge was framed by the trial Court at Exh.17.

Same was read over and explained to the appellant, to

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which he pleaded not guilty. It appears from the cross-

examination and suggestions given to the witnesses that

defence of the appellant is of total denial.

8. Prosecution has examined in all total ten

witnesses. They are :

1) Victim (PW-1) (Exh.28).

2) Lata Ramesh Ramteke (PW-2) (Exh.32).

3) Avdhut Damodhar Martode (PW-3) (Exh.35).

4) Dr. Mohd. Shoeb Sheikh (PW-4) (Exh.37).

5) Jivak Raju Dhekle (PW-5) (Exh.39).

6) Deorao Wamanrao Ingole (PW-6) (Exh.43).

7) Murlidhar Pandurang Burade, I.O. (PW-7)

(Exh.57).

8) Prabhakar Mangaldas Babare, I.O. (PW-8)

(Exh.94).

9) Neha Pravin Bhale, Assistant C.A. (PW-9)

(Exh.99).

10) Dr.Krushna M. Shende, Medical Officer

(PW-10) (Exh.101).

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9. Case of prosecution is solely based on the

evidence of victim, DNA test report and other medical

evidence adduced by Dr.Shoeb (PW-4), Assistant Chemical

Analyser Ms Neha Bhale (PW-9) and Medical Officer

Dr.Krushna Shende (PW-10).

10. Now it is a settled law that, in a case of rape, the

sole testimony of victim can be relied on by the Court. No

further corroboration is necessary. If the testimony of

victim is found to be truthful and reliable, conviction can

be based only on the basis of sole testimony of victim.

Further corroboration is necessary if there is some

discrepancy found in the evidence of victim. Hon’ble

Supreme Court in the case of State of Himachal Pradesh

vs. Asha Ram reported in AIR 2006 SC 381 has observed

as under :

“Conviction for rape can be founded on the
testimony of the prosecutrix alone unless there
are compelling reasons for seeking
corroboration. The evidence of a prosecutrix is

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more reliable than that of an injured witness.
The testimony of the victim of sexual assault is
vital unless there are compelling reasons which
necessitate looking for corroboration of her
statement, the Courts should find no difficulty in
acting on the testimony of a victim of sexual
assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of
prudence under given circumstances. The
evidence of the prosecutrix is more reliable than
that of an injured witness. Even minor
contradictions or insignificant discrepancies in
the statement of the prosecutrix should not be a
ground for throwing out an otherwise reliable
prosecution case.”

11. Hon’ble Supreme Court in the case of

Rameshwar vs. State of Rajasthan, (1952) 3 SCR 377

(AIR 1952 SC 54) has declared that “corroboration is not

the sine qua non for a conviction in a rape case. The

utterance of the Court in Rameshwar may be replayed,

across the time-gap of three decades which have whistled

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past, in the inimitable voice of Vivian Bose, J, who spoke

for the Court –

“The rule, which according to the cases has hardened into

one of law, is not that corroboration is essential before

there can be a conviction but that the necessity of

corroboration, as a matter of prudence, except where the

circumstances make it safe to dispense with it, must be

present to the mind of the Judge… … … … The only rule of

law is that this rule of prudence must be present to the

mind of the Judge or the Jury as the case may be and be

understood and appreciated by him or them. There is no

rule of practice that there must, in every case, be

corroboration before a conviction can be allowed to stand.”

12. Keeping in mind the above observations of the

Supreme Court, we have to decide the present appeal as to

whether the evidence adduced by prosecution is sufficient

for conviction of the appellant. PW-1/victim was a minor

girl, aged about 15 years residing with her step-father. She

was studying in 7th Std. at the time of incident in the year

2013. She had started her menstrual period. She disclosed

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her friend Shubhangi about the same. She also informed to

her father/appellant. Appellant/step father is the only

person residing with her in a tenanted room.

13. Mother of victim died in her early age when she

was aged about 1 ½ years. Instead of listening properly,

appellant scolded the victim saying that she might have

slept with any other person and therefore, her clothes were

stained with blood. After 2-3 days, appellant started

sleeping with her in the night. He used to undress her and

used to commit sexual intercourse with her. As per her

evidence, appellant used to threaten her and therefore, she

could not dare to disclose to anybody. She was helpless.

She was in the custody of the appellant and therefore,

could not disclose to her neighbour also. But, when nature

compelled her to disclose since she started vomiting and

was not feeling well, she disclosed to her neighbour Lata

Ramteke (PW-2).

14. Lata Ramteke took the victim to Dr.Shoeb (PW-

4). Dr. Shoeb examined the victim and found that she was

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pregnant. He inquired with her. She disclosed him that the

appellant/her step-father is responsible for her pregnancy.

She also disclosed the same fact to Lata Ramteke (PW-2)

saying that, from the month of November, 2013, appellant

used to do sexual intercourse with her continuously in

every night and therefore, she became pregnant.

15. Nothing is brought on record in the cross-

examination of victim (PW-1) to disbelieve her evidence.

Her evidence is well supported by the evidence of Lata

Ramteke (PW-2). She has stated in her evidence that victim

came to her and told that she was not feeling well.

Therefore, she took her to Dr.Shoeb.

16. Dr.Shoeb (PW-4) has stated in his evidence that

he examined the victim brought by Lata Ramteke (PW-2).

He found that she was pregnant. He inquired with the

victim. She told that she became pregnant due to sexual

intercourse by the appellant. He advised her further

treatment in the Government hospital. After two days i.e.

on 27th February, 2014, the victim along with Lata

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Ramteke (PW-2) went to Police Station and lodged report

(Exh.29). She was medically examined by Medical Officer

Dr.Krushna Shende (PW-10). He issued Medico-Legal

Certificate (Exh.103). He found that the victim was

carrying pregnancy.

17. The evidence of victim is well supported by the

medical evidence. DNA report was submitted by Ms Neha

Bhale (PW-9). DNA reports are at Exh. Nos.84 and 85. As

per DNA report (Exh.85),

“Interpretation : 1) For all the 15 different genetic
systems analyzed with PCR, putative father
Chotelal Kandharilal Prajapati matched obligate
paternal alleles present in B/o. Sonali Chotelal
Prajapati at all 15 STR Loci.

2) Similarly, for all the 15 different genetic
systems analyzed with PCR, mother Sonali
Chotelal Prajapati matched obligate maternal
alleles present in B/o Sonali Chotelal Prajapati at
all 15 STR Loci”.

“Opinion :- 1) Chotelal Kandharilal Prajapati and
Sonali Chotelal Prajapati are concluded to be the

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biological parents of B/o. Sonali Chotelal
Prajapati.”

18. It is clear from the evidence of victim and the

medical evidence and DNA report (Exh.85) that appellant

did sexual intercourse with the victim and therefore, she

remained pregnant and delivered a child on 1.6.2014.

19. Whether victim was a child as defined under

Section 2(d) of the Protection of Children from Sexual

Offences Act, 2012 is to be seen. Victim has stated her age

in her report as 15 years. When she was examined after

two years before the Court, she has stated her age as 17

years. Investigating Officer Murlidhar Burade has proved

Bona fide Certificate of School of victim (Exh.61). As per

the Bona fide Certificate (Exh.61), her date of birth is 3rd

September, 1998. When the question was asked to the

accused/appellant under Section 313 of the Code of

Criminal Procedure, the appellant himself has stated the

date of birth of victim as ‘3rd September, 1998’. Incident

took place in the month of November, 2013. Therefore, it is

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clear that the victim was aged about 15 years at the time of

incident. Therefore, she was a child as defined under

Section 2(d) of the POSCO Act.

20. Heard Mr.R.P.Thote, learned Counsel for the

appellant. He has submitted that the blood samples of

victim and the newly born child were seized by the

Investigating Officer as per seizure panchanama (Exh.80).

But prosecution has not examined any of the panch

witnesses to prove seizure panchanama (Exh.80). It is

pertinent to note that no such suggestion of denial was

given to the Investigating Officer Murlidhar Burade during

the course of cross-examination. It appears from the cross-

examination that there is no denial of seizure of blood

which was seized as per seizure panchanama (Exh.80) and

therefore, the argument advanced by the learned Counsel

that panch witnesses are not examined cannot be

considered at this stage. Moreover, there is no reason to

disbelieve evidence of I.O. Shri Burade

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21. Learned Counsel for the appellant raised

another ground that there is delay in lodging report. It is

pertinent to note that victim was a helpless child who was

alone residing with the appellant. She was threatened by

the appellant. In such circumstances, it cannot be expected

from such a minor child to come forward and go to the

Police Station and lodge report. She might not have

disclosed to anybody, but nature compelled her to disclose

because she was not feeling well and she was vomiting and

therefore, she disclosed to Lata Ramteke (PW-2), who then

took the victim to Dr.Shoeb and thereafter to Police

Station. Therefore, delay, as pointed out, is not material in

this situation.

22. Hon’ble Supreme Court in the case of Tulshidas

Kanolkar .vs. State of Goa reported in AIR 2004 SC 978

has observed that ” Delay in lodging first information

report cannot be used as a ritualistic formula for

discarding prosecution case and doubting its authenticity.

It only puts the Court on guard to search for and consider

if any explanation has been offered for the delay. Once it is

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offered, the Court is to only see whether it is satisfactory

or not. In a case if the prosecution fails to satisfactory

explain the delay and there is possibility of embelishment

or exaggeration in the prosecution version on account of

such delay, it is a relevant factor. On the other hand

satisfactory explanation of the delay is weighty enough to

reject the plea of false implication or vulnerability of

prosecution case. In the present case, the victim was

totally unaware of the catastrophe which had befallen to

her. That being so, the mere delay in lodging of first

information report does not in any way render prosecution

version brittle.”

23. Reliance is also placed on the case of Siddharth

Dagadu Sonde .vs. State of Maharashtra reported in

2017 ALLMR (Cri) 4192. In the said case, rape was

committed on a minor female child by her paternal uncle

while she was in his custody for a period of one year. There

was a delay of five days caused in lodging the First

Information Report. It was held that the testimony of

mother of prosecutrix coupled with the evidence of her

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mother-in-law gives satisfactory explanation of delay and

hence, case of prosecution does not suffer from any delay

in lodging the F.I.R.

24. Mr.A.M.Deshpande, learned Additional Public

Prosecutor has strongly supported the Judgment of trial

Court. He has submitted that the evidence of victim is well

supported by DNA Reports Exh. Nos. 84 and 85. She was

minor at the time of incident, aged about 15 years.

Learned trial Court has rightly convicted the appellant.

Hence, the appeal is liable to be dismissed.

25. Prosecution has proved beyond reasonable

doubt that the victim aged about 15 years was the only

person residing with the appellant. Appellant is step-father

of the victim. When appellant noticed that she has matured

physically, he started sexual intercourse with her.

Therefore, offence under Section 5 of the POSCO Act is

proved by the prosecution without any reasonable doubt

and therefore, he is rightly convicted u/s.6 of the said Act.

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26. At this stage, the learned Counsel for the

appellant has submitted that punishment of the appellant

be reduced as there is discretion with the Court as per the

provisions of Section 6 of the POSCO Act.

27. Learned A.P.P. Mr.Deshpande has strongly

opposed to show leniency and submitted that the offence of

sexual assault is committed by the appellant/step-father on

helpless victim. She could not disclose the crime because

of fear of the appellant. She delivered a child on 1.6.2014.

He has destroyed the whole life of the victim. Hence, the

appellant should not be shown any leniency.

28. The case in hand is of a serious nature. When a

protector becomes perpetrator and the victim, who is a

minor girl solely dependent upon him is ravished by such a

person, the victim is left with no other option but to

surrender mutely. Appellant, who was supposed to have

protected the victim and was expected to have brought her

up as a good child, provide eduction and search a suitable

match as a life partner for her, has himself established

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sexual relations with his daughter under a wrong belief

that she might be indulging in sexual relations with some

other person and completely destroyed her life. The mental

agony and pain the victim could have gone through each

time when the appellant abused her physically, in the

circumstances the victim finding herself alone and

helpless, without being in a position to disclose the same to

anyone, does not entitle the appellant for any leniency.

Leniency shown in such cases by the Courts would not only

defeat the very purpose of the POSCO Act, but would

encourage a criminal mind to commit such offences

further. As per Section 6 of the POSCO Act “whoever,

commits aggravated penetrative sexual assault, shall be

punished with rigorous imprisonment for a term which

shall not be less than ten years but which may extend to

imprisonment for life and shall also be liable to fine.”

29. Learned trial Court, looking to the seriousness of

offence, has recorded it’s correct findings and has rightly

convicted the appellant for the offence punishable under

Section 6 of the POSCO Act and under Section 506 of the

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Indian Penal Code. Hence, we do no find any merit in the

appeal. Therefore, we pass the following order.

// ORDER //

The appeal is dismissed.

Fees of the learned Counsel for the

appellant is quantified at Rs.5,000/-.

Record and proceedings be sent back to

the trial Court.

JUDGE JUDGE

[jaiswal]

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