Nandkumar S/O Baliram Sardar vs State Of … on 9 November, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 555 OF 2002

Nandkumar s/o Baliram Sardar,
Aged about 28 years,
R/o Krushinagar Labour Colony,
Near Jagdish Medical, Akola. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station, Civil Lines,
Akola. …. RESPONDENT

__

Shri A.J. Thakkar, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 31-08-2017
DATE OF PRONOUNCING THE JUDGMENT :
09-11
-201
7

JUDGMENT :

The appellant is aggrieved by the judgment and order

dated 09-9-2002 passed by the learned Sessions Judge, Akola in

Sessions Trial 96/1999, by and under which the appellant (hereinafter

referred to as the “accused”) is convicted for offence punishable under

Section 376 of the Indian Penal Code and is sentenced to suffer

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rigorous imprisonment for seven years and to payment of fine of

Rs.1,000/- and is further convicted for offence punishable under

Section 452 of the Indian Penal Code and is sentenced to suffer

rigorous imprisonment for one year and to payment of fine of Rs.500/-.

The accused is, however, acquitted of offence punishable under Section

506 of the Indian Penal Code.

2. The prosecution case, as is unfolded during the course of

trial is thus :

The complainant Ganga is a resident of Bhim Nagar locality in

Akola. The prosecutrix, who is the niece of the complainant is a

resident of district Amravati and at the relevant time was visiting

Ganga on the occasion of Diwali. The prosecutrix, then aged 18 to 20

years, was suffering from polio due to which the left side of the body

including left arm and left leg of the prosecutrix was totally paralyzed.

The prosecutrix is, to a certain extent, intellectually challenged. The

complainant Ganga and her husband Avinash are engaged in labour

work and leave home early in the morning in connection with the said

work. The complainant has two issues, then aged 4 years and 6 years.

One Sangita, is the wife of the brother of the complainant and is

residing in the same locality.

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The accused was seen by both Ganga and Sangita prior to the

incident passing by the road on the fateful day on 23-10-1998. The

complainant and her husband Avinash left home early in the morning,

the prosecutrix and two children of the complainant were at home.

The TV set is in the first room of the house of the complainant and the

only other room is rear side of the first room. There is a courtyard

infront of the first room of the house.

The prosecution case is that on 23-10-1998 at 4.30 p.m. Sangita

was alerted by abnormally loud volume of the TV in the house of the

complainant and went inside to check. The entrance door of the house

of the complainant was closed. Sangita pushed open the door and

noticed the prosecutrix lying on the floor of the first room and one

person by her side. The said person attempted to put on his pant when

he saw Sangita. The petticoat of the prosecutrix was lifted upwards to

waist level. Sangita confronted the said person who responded that he

was in the house to demand money from the husband of the

complainant Avinash. When the said person was leaving the house,

Sangita called a neighbour Gajanan Gorle who had come home for

lunch. Gajanan Gorle is a vegetable vendor. He identified the said

person as the accused Nandu Sardar.

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Sangita enquired with the prosecutrix who disclosed that the

accused entered the house, closed the entrance door, raised the volume

of the TV set, gagged her and committed forcible sexual intercourse.

When Ganga returned from work at 7-00 p.m., Sangita narrated the

incident to Ganga. The prosecutrix, in response to enquiries from

Ganga, also narrated the incident to Ganga. The husband of Ganga

returned home after sometime. Stains of semen were noticed on the

petticoat of the prosecutrix. The accused was noticed by the residents

when he was passing by the side of the house of the complainant at

9-00 p.m. to 9-30 p.m. He was apprehended and beaten by the

residents of the locality.

In the night between 23-10-1998 and 24-10-1998, at 12-00

Ganga went to Civil Lines Police Station, Akola alongwith the

prosecutrix and lodged a report, on the basis of which offence under

Sections 376, 452 and 506 of the Indian Penal Code was registered

against the accused who was immediately arrested. Signs of assault

were visible on the face of the accused. The accused claimed that he

was assaulted by the husband of the complainant and others. Both the

prosecutrix and the accused were referred to Government Hospital for

medical examination.

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Nivrutti Dambelkar, then attached to the Civil Lines Police

Station as Assistant Police Inspector recorded the supplementary

statement of Ganga on 24-10-1998 and statements of other witnesses

including Sangita, the prosecutrix, Avinash, Digambar Bajad and

Gajanan Gorle. The petticoat with semen stains was produced by the

prosecutrix on 24-10-1998, the said petticoat was seized in presence of

panch witnesses. The investigation officer drew spot panchanama,

collected blood samples, vaginal swab, etc. The underwear of the

accused was seized. The seized articles were sent for chemical

analysis. Semen was detected on the petticoat of the prosecutrix. The

completion of investigation led to submission of the charge-sheet

before the learned Judicial Magistrate First Class, Akola who

committed the case to the Sessions Court. The learned Sessions Judge

framed charge for the offence under Sections 376, 452 and 506 of the

Indian Penal Code, the accused pleaded not guilty and claimed to be

tried. The defence of the accused, as is discernible from the statement

recorded under Section 313 of the Criminal Procedure Code and the

evidence of the defence witnesses is that Avinash, the husband of the

complainant, bother of Avinash and one Ramdas were engaged in B.C.

business. The said person did not return the money contributed by

residents of the locality. The accused insisted for the return of the

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money and he was assaulted and falsely implicated.

3. The prosecution examined nine witnesses, to wit- P.W.1

Ganga Avinash Bajad, complainant at Exhibit 13, P.W.2 Ghanshyam

Shankarlal Sahu at Exhibit 16, P.W.3 Sangita Dnyaneshwar Katole,

wife of brother of the complainant at Exhibit 18, P.W.4 Bharat Laxman

Dube, panch witness on the spot panchanama and seizure panchanama

of petticoat at Exhibit 19, P.W.5 Gajanan Motiram Gorle, a person

residing in the locality at Exhibit 25, P.W.6 Sunita Jagannath Rithe, the

prosecutrix at Exhibit 26, P.W.7 Digambar Mukinda Bajad, brother-in-

law of the complainant at Exhibit 27, P.W.8 Kailash Manohar Pundkar,

Police Sub-Inspector at Exhibit 28 and P.W.9 Nivrutti Rambhau

Dambelkar, Assistant Police Inspector at Exhibit 30.

The three witnesses examined by the defence were D.W.1

Sitaram Rajaram Deokar, resident of the locality at Exhibit 48, D.W.2

Suman Rameshrao Deshmukh, resident of the locality at Exhibit 49 and

D.W.3 Ashok Govindrao Karale, friend of the accused at Exhibit 50.

4. The medical examination reports of both the prosecutrix

and the accused are admitted by the defence. The statement given by

the accused before the learned Judicial Magistrate First Class (Exhibit

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34) is brought on record by the defence. The letter addressed by the

learned Judicial Magistrate First Class to Government Hospital for

examination of the accused Exhibit 35 is also brought on record by the

defence.

5. Shri A.J. Thakkar, learned Counsel for the appellant

submits that the judgment impugned is unsustainable and is against

the weight of evidence on record. The evidence of P.W.1 Ganga is

attacked as highly unreliable. The learned Counsel would submit that

the defence of false implication is more than probablised on the

touchstone of preponderance of probabilities. The learned Sessions

Judge ought not to have discarded the evidence of the defence

witnesses, is the submission. The prosecution version that the

prosecutrix was subjected to forcible sexual intercourse is not

consistent with the medical evidence, is the submission of the learned

Counsel for the accused. He would submit that the evidence of the

prosecution witnesses is not confidence inspiring and is marred by too

many inconsistencies, contradictions and embellishments.

Per contra, Shri A.V. Palshikar, learned Additional Public

Prosecutor for the respondent would submit that the judgment and

order impugned is unexceptionable and the prosecution has proved the

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offence beyond reasonable doubt.

6. The prosecutrix is examined as P.W.6. The learned

Sessions Judge, who had the advantage of closely noticing the

demeanor of the witness observes thus :

“16. This is a very peculiar case. One young girl aged about
20 years who is handicapped both physically and mentally is
the prosecutrix. Due to Polio the left part of her body is
paralyzed. She is little bit mentally retarded but she has
feeling of womanness, her sex organs are well-developed and
she is capable to have sexual intercourse. During the
evidence, many times she could not utter words sufficiently
loudly and so most of the words could not be heard clearly.
She has deposed that she is suffering due to Asthma also and
so she is not able to speak loudly. Her evidence however
shows that she understands what is good or bad for her. She
understood questions put to her on material points but most
of the suggestions given to her in cross-examination are also
admitted by her. At places, I have made observations about
demeanor, competency etc. of this witness in the evidence.

17. It is not the defence of the accused that the prosecutrix
is not competent to testify. She is not an idiot or a lunatic.
Every question put to her is answered by her. Though she has
admitted many suggestions given to her during cross-
examination, in respect of the evidence given on the incident,
she was very firm and she was insisted that what she was
saying was nothing but truth. If the evidence is properly
appreciated and the mental and physical condition of the
prosecutrix is kept in mind, all the answers given in
examination-in-chief, she narrated the incident capably. I
have closely observed her demeanor and noted some material
points of demeanor and in view of the observations made by
me I have no hesitation to hold that she is competent to
testify.

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18. At the time of appreciation of the evidence it also needs
to be kept in mind that due to physical condition, she is not
able to resist. Though during cross-examination she has
admitted that she is doing household work, the fact is that
the left part of her body is paralyzed and polio has taken
away her ability to resist. Her voice is very low and many
times she cannot utter words clearly. Due to this, she cannot
shout for help. But as she understands what is good for her,
it can be inferred that she was capable to give consent.
Papers of medical examination of both the prosecutrix and
the accused are admitted by the defence. Exhibit 37, the
medical report in respect of prosecutrix shows that there was
no injury on any part of her body including private part and
the hymen was absent. She was examined on 24-10-1998 at
2.00 a.m. Report in respect of vaginal swab is at Exhibit 33.
This evidence is also not disputed. It shows that no semen
was detected in it. Semen was however detected on the
petticoat produced by the prosecutrix.

19. The accused has taken the defence of total denial. It is
suggested to the prosecutrix that she was tutored to give
statement and evidence before police and court respectively.
Considering the weak mental condition of the prosecutrix, it
has also become necessary to find out whether prosecutrix
gave evidence only because she is tutored and no incident
took place. In this context here only it needs to be observed
that only for few days the prosecutrix is not depending on
Ganga’s family for her livelihood. The evidence shows that
she came to the court and Akola on the day on which her
evidence came to be recorded. She had no personal grudge or
enmity against the accused but in view of the fact that she is
mentally weak, it needs to be ascertained as to whether she is
reliable or she is telling lies for her close relatives. As the case
rests on the evidence of the prosecutrix, I am discussing her
evidence first.”

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7. The examination-in-chief of P.W.6 reads thus :

“1. I am handicapped since my childhood. The left side of
my body is paralyzed due to polio. Gangabai (P.W.1) is my
maternal aunt. My native place is Pimpri. I had come to
Akola, to Gangabai, on the occasion of Diwali Festival.

2. On that day my maternal uncle and maternal aunt left
home early in the morning for work. I alone was present
inside of the house and the issues of Gangabai were playing
outside. Sardar came inside of the house and he sat on me. I
am suffering due to Asthma and so I am not able to speak in
loud voice. He lifted my petticoat above. Sardar took sexual
intercourse with me. Due to that I felt that there was itching.
He pressed my chest. I had pains in my chest. Due to the act
of Sardar there were stains on my petticoat and it became
wet. I gave call to my neighbours. When I gave call, he
released me as he felt that somebody would come. Then
Sangita came there. I call her as Mawshi. Sangita asked me
as to what had happened. Then Sardar ran away. Sangita
said that she would give call to Kaka. I can identify Sardar.
I identify the accused who is sitting in the Court hall. (The
witness is saying so many things which the Court is unable to
hear and understand. She is speaking in very low voice.
Myself is sitting at the distance of about 6 feet, the defence
advocate is also standing at the distance of about 4 feet from
the witness and he has also stated that he is unable to hear.
Few advocate are sitting in the Court hall at the distance of
about 5 to 6 feet from the witness. They are also saying that
they are not able to hear the words. The witness is uttering
only few words clearly and myself is able to hear few words
out of many sentences, which have come out from the mouth
of the witness. Attempt is made by me to record only the
material portion of the evidence, from the words which
reached my ear.)

3. At the relevant time there was no other person in the
house. Police made enquiry with me, and I gave the name of
Sardar. Police took me to the hospital. I again say that I
was not taken to the Hospital. My petticoat was seized. I can

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identify my petticoat. Article no.2, petticoat, now shown to
me is the same and I can identify it. I had said no to Sardar
to do such act.”

It is true that, as is noted by the learned Sessions Judge that the

witness said ‘yes’ almost to every suggestion put to her during the

cross-examination. She has, however, emphatically denied the

suggestion that the accused did not enter the house and did not

commit forcible sexual intercourse.

8. The evidence of the prosecutrix is amply corroborated by

the evidence of P.W.1 Ganga, complainant and P.W.3 Sangita. The

evidence of the complainant Ganga is broadly consistent with the

contents of the oral report. Her credibility is not shaken in the cross-

examination. Nothing is brought on record in the cross-examination

which is in the nature of contradiction. It is true that Gajanan Gorle

who is examined as P.W.5 did not entirely support the prosecution and

was cross-examined by the learned Additional Public Prosecutor.

P.W.5 has deposed that when he came out of the house in response to

Sangita’s call, the accused was on road, he called out to the accused

who did not stop. The learned Sessions Judge is right in observing that

although P.W.5 Gajanan resiled from the earlier statement, it is elicited

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in the cross-examination on behalf of the prosecution that the accused

was present near the house of the complainant.

9. In so far as identification of the accused is concerned, it

must be noted that the accused is not claiming that he was not known

to the witnesses. Au contraire, the defence was that he was insisting

that the husband of P.W.1 Ganga and P.W.7 Digambar return the

amount collected as B.C. contribution. Be it noted, that the statement

given by the accused before the learned Judicial Magistrate First Class

(Exhibit 34) is produced and proved on record by the defence. The

statement was given in view of the injuries on the person of the

accused which he wished to bring to the notice of the learned Judicial

Magistrate First Class. The learned Sessions Judge has held that in

view of the provisions of Sections 17 and 21 of the Indian Evidence

Act, Statement Exhibit 34 can be relied upon to the extent the presence

of the accused in and near the house of the complainant Ganga is

admitted by the accused. Statement Exhibit 34 is considered thus by

the learned Sessions Judge in paragraphs 25 and 26 as under :

“25. Though the intention behind giving the statement Exh.
34 before J.M.F.C. was to make allegations of assault by
Ganga (P.W.1) and her husband the statement can be used

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as substantive evidence u/s 17 and 21 of the Evidence Act in
respect of few relevant facts. It cannot be disputed that the
Court has the power to separate reliable portion from such
admission from unreliable version. During trial the accused
has denied that he visited the house of Ganaga (P.W.1) at
4.30 p.m. Presence of the accused is and near the house of
Ganga at relevant time is relevant fact and for proving this
relevant fact I hold that the admission of the accused
appearing in Exh.34 can be used.

26. In Exh.34, the accused has admitted that he visited
the house of Ganga after 4.15 p.m. and he had gone there
directly from the place of work. The accused has further
admitted that Ganga (P.W.1) and her husband were not at
home but a girl aged about 23 years was there and her
surname was Rithe. The accused has further admitted that
he stayed in that room for about 5 minutes to watch T.V.
programme and when a relative of the said girl, a woman
came there, he left the house of Ganga. The surname of
prosecutrix is Rithe. Thus, there is the admission given by
the accused in Exh.34 that at the relevant time he was
present on the spot of offence. At this stage only, I deem it fit
to observe that no reason is given by the accused in Exh.34
of his visit to the house of Ganga. If he knew Avinash, the
husband of Ganga well, then in natural course it was known
to him that there was no possibility of presence of Avinash
and Ganga in the house at that time. Avinash and Ganga do
labour work and so there was no room to presume that they
had returned from work at 4.30 p.m. Further when there is
a young unmarried girl in the house, in ordinary course
stranger to the family like the accused would not even enter
the house to watch T.V. programme. Thus the explanation
of the accused of the presence and reason is not at all
probable and natural. First time during trial, the accused
has given a reason that he was insisting for return of the
Bhishi amount. If this was the real reason, in Exh.34 itself
he would have given the reason.”

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10. In view of the submission of the learned Counsel for the

accused that the evidence of the defence witnesses is not properly

appreciated and is indeed discarded, suffice it to refer to the relevant

observations in the judgment impugned, which are as under :

“27. Though the accused has not taken specific defence of
alibi and no suggestions in that regard were given to any
witness of prosecution, some defence evidence is given by the
accused on that line. The arguments advanced by the defence
counsel and the notes of written argument were not this line.
Thus, specific issue of alibi is not there. As some evidence is
given on this point and to show that subsequent conduct was
not consistent with guilt, I am discussing that defence evidence
at this stage.

28. Ashok Karale (D.W.3) has given evidence that at the
relevant time he was a neighbour of the accused and he used
to request the accused to secure job for him. He has deposed
that on that day at 4.30 to 4.45 p.m., the accused came to the
house from the place of work and from 5-00 to 6-00 p.m. the
accused was busy for bringing his wife from the place of work
of his wife. He has deposed that he went to Shivani with
accused at 6.15 p.m. where they met one Jawale Contractor
and when they returned at 8.30 p.m. the wife of the accused
gave message to the accused that Ganga (P.W.1) had called
the accused to her house for settling the account of Bhishi. He
has deposed that they went to the house of Ganga at about 9-
00 p.m. and there Avinash, Ganga and others gave beating to
the accused after confining him in the house of Ganga
(P.W.1).

29. Ghanshyam (P.W.2), the owner of the factory where the
accused was working as watchman has given evidence that on
that day as per the record, the accused did morning shift i.e.
from 8-00 a.m. to 4-00 p.m. Muddemal property No.1 a note-
book was maintained for recording the duty done by
watchman and it is consistent with the evidence of P.W.2.
Even the accused admitted the correctness of this evidence in
statement given u/s. 313
Cr.P.C.

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30. The defence has not brought on the record the distance
between the house of Ganga and the factory of Ghanshyam
(P.W.2). There is nothing on the record to create a
probability that it was impossible for the accused to reach the
house of Ganga at 4.15 or 4.30 p.m.

31. In Exhibit 34, the statement given before J.M.F.C. by
the accused, there is no mention of the name of Ashok (D.W.3)
and it is stated that he alone went to the house of Ganga
(P.W.1) at 9.30 p.m. The conduct of Ashok (P.W.3) that he
remained out of the room and did not attempt to rescue the
accused shows that the story given by Ashok (D.W.3) is not
probable in nature. Further, the accused is a very healthy and
young person. How the story given by accused is not natural
and not probable is being discussed at proper place but here I
deem it fit to observe that Ashok (D.W.3) is a got up witness.
It is not the case of Ashok (D.W.3) that it was pre-decided to
go the Jawale and so he was waiting for the accused. It does
not look probable that he noted the time of return of the
accused from the place of work as there was no reason for the
same. So, I hold that there is no probability created in favour
of the accused on the point of ‘presence’ in the evidence of the
defence witnesses or prosecution witnesses.

32. In view of the discussion of evidence made above, I hold
that the prosecution has proved that the accused was present
in the house of Ganga (P.W.1) at or about 4.15 p.m. to 4.30
p.m.”

11. The first information report is lodged with reasonable

promptitude, in the facts of the case. The evidence of the complainant

Ganga (P.W.1) and Sangita (P.W.3) is by and large reliable. The

petticoat on which semen stains were detected was admitted by the

prosecutrix to be that of the complainant Ganga. However, she has

deposed that she was wearing the petticoat at the relevant time. The

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submission that absence of injuries on the person of the prosecutrix

including her private part excludes the possibility of sexual intercourse

must be noted only for rejection. It is too well settled that absence of

injuries is not decisive. The prosecutrix whose left part of the body is

totally paralyzed and is intellectually challenged was not expected to

resist. To constitute rape, it is not necessary that there should be

complete penetration or that semen should be detected in and around

the private part of the prosecutrix. I am not persuaded by the

submission of the learned Counsel for the accused that the evidence of

the prosecutrix is falsified by the medical evidence.

12. On a holistic appreciation of evidence, I do not see any

infirmity in the judgment and order impugned.

13. The appeal is sans merit and is dismissed. Bail bond of the

accused shall stand cancelled. The accused be taken into custody

forthwith to serve the sentence. The accused is entitled to set off under

Section 438 of the Criminal Procedure Code.

JUDGE
adgokar

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