Mangesh S/O Damodhar … vs The State Of Maharashtra, Thr. … on 22 December, 2017

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

CRIMINAL APPEAL NO.393 OF 2016

Mangesh s/o Damodhar Chandankhede,
Aged about 26 years, Occu: Labourer,
R/o Awandhi, Tah. Kamptee,
Dist. Nagpur. ……. APPELLANT

…V E R S U S…

The State of Maharashtra
through Police Station Officer,
Kamptee Police Station, Tah. Kamptee,
Dist. Nagpur. ……. RESPONDENT
——————————————————————————————-
Shri R.S. Renu, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 15.09.2017
DATE OF PRONOUNCING THE JUDGMENT : 21.12.2017

1] The appellant is aggrieved by the judgment and order

dated 23.02.2015 in Special Child Protection Case 27/2013,

delivered by Additional Sessions Judge-1, Nagpur, by and under

which, the appellant is convicted of offence punishable under

section 376(2)(i) of the Indian Penal Code (“IPC” for short) and

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under section 3 read with section 4 of the Protection of Children

from Sexual Offences Act, 2012 (“POCSO” for short) and is

sentenced to suffer rigorous imprisonment for 10 years and to

payment of fine of Rs.15,000/-. The accused is further convicted of

offence punishable under section 448 of the IPC and is sentenced

to suffer rigorous imprisonment for three months and to payment

of fine of Rs.500/-.

2] Heard Shri R.S. Renu, the learned counsel for the

appellant and Shri N.B. Jawade, the learned Additional Public

Prosecutor for the respondent/State.

3] The submission of Shri Renu, the learned counsel for

the appellant (hereinafter referred to as “the accused”) is that the

evidence on record is marred by omissions partaking the nature of

contradictions and inter se inconsistencies and discrepancies in the

evidence of the prosecution witnesses. The First Information

Report is unreasonably delayed and no satisfactory explanation is

forthcoming to explain the delay, is the submission. The version of

the victim is inconsistent with the medical evidence on record and

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the prosecution version of the appellant having secured entry in

the house of the complainant through a window without grill, is

inherently improbable and must be disregarded since the panch

witness to the spot panchnama did not support the prosecution.

The defence of false implication due to a dispute between the

appellant and the husband of the complainant is more than

probabilised, is the submission.

4] Per contra, the learned Additional Public Prosecutor,

Shri N.B. Jawade, submits that the evidence on record is cogent,

reliable and confidence inspiring. The conviction of the appellant

is unexceptionable, in the teeth of the evidence on record, is the

submission. The presumption under section 29 of the POCSO Act

is activated and is not rebutted by the appellant, is the submission.

5] The complainant, who is the mother of the victim girl

then aged 12 years, was residing with her husband and victim at

Awandhi situated in Tahsil Kamptee, District Nagpur. The elder

daughter of the complainant was studying in school at Yerkheda

and was residing at the house of the complainant’s sister-in-law.

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The victim was then studying in 4th standard. The appellant is also

a resident of the same village and was residing in the vicinity.

6] The case of the prosecution is that the parents of the

victim left home in the morning for labour work on 03.03.2013

and the victim was alone in the house. The complainant returned

home at 7:30 p.m. and was told by the victim that at 10:30 a.m. or

thereabout, when the victim was about to have a bath, the

appellant entered the house through the window, offered her

Rs.50/- and asked the victim to allow him to have sexual

intercourse. The victim refused, the appellant spread a bed sheet

on the floor, made the victim lay down, removed her clothes,

undressed and forcibly committed sexual intercourse. The victim

narrated to her mother that the appellant pressed her mouth and

after ravishing her, warned her not to disclose the incident to

anyone. The complainant noticed blood stains on the knicker of

the victim. On the morning of the day after the incident, the

accused had a verbal altercation with the complainant and her

family members and threatened to cause them physical harm if a

report is lodged. In view of the threats, the report was not lodged

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on 04.03.2013. However, at 6:30 p.m. on 05.03.2013 the

complainant and the victim went to the Kamptee Police Station

and lodged a report (Exh.14). On the basis of the said report

Crime 38/2013 was registered and the wheels of investigation

were set in motion.

7] The accused was arrested on 05.03.2013. Both the

accused and the victim were medically examined. The medical

examination report of the accused is Exh.28 and that of the victim

is Exh.30 on the record of the trial Court. The Investigating Officer

seized the clothes of the victim from the complainant vide

panchnama Exh.10 and the clothes of the accused under

panchnama Exh.21. The statement of the victim was recorded in

presence of two Mahila Samiti members, the school certificate of

the victim was obtained (Exh.44) evidencing the date of birth to

be 23.05.2001. The victim was referred to the Mayo Hospital for

the age determination test and the report is Exh.57. The seized

articles were sent for chemical analysis and the reports are Exh.68

to 71. The statements of witnesses were recorded and the

culmination of investigation led to submission of the charge sheet

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in the Special Court. The learned Judge framed charge at Exh.2.

The accused abjured guilt and claimed to be tried. The defence is

of false implication. According to the accused there was a dispute

between the husband of the complainant and the accused

pertaining to brokerage charges and therefore, he is falsely

implicated.

8] The prosecution has conclusively proved that the

victim was then aged less than 12 years. The school certificate of

the victim (Exh.44), is admitted by the defence.

Notwithstanding the admission, the Medical Officer who

determined the age of the victim and issued certificate Exh.57 is

examined as P.W.9. The certificate Exh. 57 opines that the victim

was aged 12 years plus or minus one year. Complainant has also

deposed that the victim was aged 11 years and concededly was

studying in the 4th standard.

9] The prosecution relies on the evidence of the victim

P.W.2, her mother P.W.3 and sister-in-law of the complainant

P.W.4 substantially, if not entirely, to prove that the accused

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subjected the victim to forcibly intercourse. The victim has

deposed that on the day of the incident she was alone in the house

since her parents were away for the labour work. She was about to

take bath and had closed the door of the house from inside.

The accused entered the house through window and when the

prosecutrix went to the bed room to change her clothes, the

accused had concealed himself under the cot. The accused then

spread a bed sheet on the floor, made the victim to lay down,

removed her clothes including inner wear and after getting

undressed himself, ravished the victim. Attempt to shout was

foiled by gagging her mouth. The accused offered Rs.50/- and

threatened that if she disclosed the incident to any one she would

be physically harmed. She reported the incident to her mother in

the evening. Her mother confronted the accused the next day.

However, the accused reacted aggressively and on the third day

the mother of the victim accompanied by the victim went to the

Police Station and lodged the report. The mother of the victim

who lodged the report is examined as P.W.3 she corroborates the

testimony of the victim to the extent she deposes that the victim

disclosed the incident to her in the evening. P.W.3 states that the

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next day she confronted the accused and the response of the

accused was to abuse her and to threaten that if the incident is

reported to the Police severe consequences will have to be faced.

P.W.3 states that she lodged the report on the third day of the

incident which report is Exh.14 on the record of the trial Court.

Vimal, who is the sister-in-law of the mother of the victim is

examined as P.W.4. She states that on the next day of the incident

her brother informed her about the incident on phone and she

went to Awandhi on 05.03.2013 and the victim disclosed the

incident to her.

Shri Renu, the learned counsel for the accused

attacks the testimony of the three witnesses contending that the

said evidence is marred by material and significant omissions

which tantamount to contradictions. The evidence is rendered

suspect since the explanation for the delayed police report is not

satisfactory, is the submission of the learned counsel for the

accused. I have given anxious consideration to the testimony of

the victim P.W.2, her mother P.W.3 Jyoti Ashok Somkuwar and

P.W.4 Vimal Vinod Pantawne to ascertain whether the omissions

brought on record dent the credibility of the said witnesses. I am

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not persuaded to accept the submission of the learned counsel for

the accused that the evidence is rendered unreliable due to the

omissions. It is trite law that not every omission is per se fatal.

If the fact which is stated in the evidence is duly corroborated by

other evidence, the fact that the witness omitted to disclose the

fact in the previous statement may not be of significant relevance.

Illustratively, although the statement in the evidence of the victim

that the accused offered her Rs.50/- is an omission, her mother

whose report is recorded prior in point of time to the statement of

the victim does state in the report that it was narrated to her by

the victim that the accused offered her Rs.50/-. Similarly, the

omission brought on record in the evidence of the victim that her

mother went to the house of the accused to confront him and the

accused responded aggressively is not fatal since the said fact is

duly mentioned in the report lodged by the complainant. In so far

as the omissions which are brought on record in the

cross-examination of the complainant P.W.3, the F.I.R. is not

expected to be an encyclopedia and the fact that every relevant

fact or minute detail is not stated in the First Information Report

will not ipso facto dilute the probative value of the evidence of the

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informant. Ultimately the purpose of the First Information Report

is to set in motion the wheels of the criminal law and it would

suffice if the basic and core facts are stated therein. Similarly, the

omission which is brought on record in the evidence of P.W.4

which is that she was informed about the incident on telephone by

her brother does not touch the core aspect of the incident. What is

material is that she came to know of the incident and went to the

residence of the victim and was narrated the incident.

10] It is strenuously contended on behalf of the accused

that the prosecution version that the accused entered the house of

the victim through the open window is falsified by the evidence of

the victim that the window was closed and that the window had

glass panes. However, it is not even suggested to the victim that

the window was closed from inside which would render any entry

in the house improbable. P.W.1 who is examined as witness to the

spot panchnama did not support the prosecution. However, he

does state that on 06.03.2013 the police called him to the house of

the complainant, inspected the house and obtained his signature

on the panchnama. The witness admits the presence of another

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panch Pankaj Gotmare. The panchnama which is proved through

the Investigating Officer records that there was one window to the

house of the victim which had no grill. It is not suggested either to

the complainant or the victim or to the Investigating Officer that

the window did have a grill and therefore, entry through the

window is not possible. In the light of the evidence on record, I am

not inclined to agree with the learned counsel for the accused that

the prosecution story that the accused entered the house of the

victim through the window is suspect.

11] I am also not inclined to agree with the learned

counsel for the accused who contends that the delayed F.I.R.

renders the case of the prosecution vulnerable. The delay is

satisfactorily explained. The explanation is that the complainant

was threatened with dire consequences when she confronted the

accused on the next day of the incident. It is trite law, that there

cannot be a ritualistic cut and dried formula to determine the

implication of delay in lodging the F.I.R. The court is expected to

be alive to the sensitivity of the victim of sexual offences,

particularly in the context of the non-permissive Indian society

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which unfortunately view rape as a stigma and is more often and

than not likely to ostracize the victim insinuating and at times

bluntly blaming the victim for the loss of chastity.

12] Shri Renu, the learned counsel for the accused then

submits that the medical evidence on record is not consistent with,

and indeed falsifies, the version of the victim that she was

subjected to forcible intercourse. The victim was examined after

two days of the incident and although no injury was visible on the

external genitalia the hymen was found torn. Two linear abrasions

of brown colour caused within 48 to 72 hours were noticed.

The absence of injury on the male organ of the accused is again

not decisive.

It would be apposite to refer to the following

observations of the Apex Court in Vijay alias Chinee vs. State of

Madhya Pradesh (2010) 8 SCC 191:

25. In Gurcharan Singh v. State of Haryana
this Court has held that: (SCC p. 753, para 8) the
absence of injury or mark of violence on the private
part on the person of the prosecutrix is of no
consequence when the prosecutrix is minor and would
merely suggest want of violent resistance on the part of

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the prosecutrix. Further absence of violence or stiff
resistance in the present case may as well suggest
helpless surrender to the inevitable due to sheer
timidity. In any event, her consent would not take the
case out of the definition of rape.

It would also be relevant to reproduce the opinion

expressed by Modi in Medical Jurisprudence and Toxicology (22 nd

Edn.) at p. 495 which reads thus:

“Thus, to constitute the offence of rape, it is not
necessary that there should be complete penetration of
penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora
of the vulva or pudenda with or without emission of
semen or even an attempt at penetration is quite
sufficient for the purpose of the law. It is therefore quite
possible to commit legally, the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer
should mention the negative facts in his report, but
should not give his opinion that no rape had been
committed. Rape is a crime and not a medical
condition. Rape is a legal term and not a diagnosis to
be made by the medical officer treating the victim. The
only statement that can be made by the medical officer
is to the effect whether there is evidence of recent sexual
activity. Whether the rape has occurred or not is a legal
conclusion, not a medical one.”

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Equally relevant is the opinion expressed in Parikh’s

Textbook of Medical Jurisprudence and Toxicology which defines

sexual intercourse:

“Sexual intercourse.–In law, this term is held to
mean the slightest degree of penetration of the vulva by
the penis with or without emission of semen. It is
therefore quite possible to commit legally the offence of
rape without producing any injury to the genitals or
leaving any seminal stains.”

13] The defence that the accused is falsely implicated due

to dispute regarding commission charges of the accused and the

father of the victim is not probabilised even on the touchstone of

preponderance of probabilities. It would be in a rare case, if at all,

that a father would use his minor daughter as a tool to wreak

vengeance on a person due to monetary dispute. In the teeth of

the evidence, the defence taken must deserve consideration only

for rejection. The appeal is without substance and is dismissed.

JUDGE
R.S. Belkhede/NSN

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