1 030218 appeal 358.04.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.252 of 2004
Gaju @ Gajanan s/o Mahadeo Bhoyar,
aged 28 years, Occ.- Cultivation,
R/o.-Wadgaon, Tah. and Dist. Chandrapur. …. Appellant
-Versus-
State of Maharashtra,
through Police Station Officer, Police Station,
Ramnagar, Chandrapur, Distt. Chandrapur. …. Respondent.
Shri A.D. Hazare, Advocate for appellant.
Shri S.D. Sirpurkar, APP for State.
Criminal Appeal No.358 of 2004
The State of Maharashtra,
through P.S.O. Ramnagar Police Station. …. Appellant
-Versus-
Gaju @ Gajanan s/o Mahadeo Bhoyar,
aged about 23 years,
resident of Wadgaon, Tahsil Chandrapur,
District Chandrapur. …. Respondent.
Shri S.D. Sirpurkar, APP for State.
Shri A.D. Hazare, Advocate for respondent.
::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
2 030218 appeal 358.04.odt
Coram : S.B. Shukre Manish Pitale, JJ.
Dated : 03rd February, 2018.
ORAL JUDGMENT (Per Manish Pitale, J.)
These are two appeals, one filed by the accused/appellant and
other by the State, both challenging the judgment and order dated
08-03-2004 passed by the Court of Sessions Judge, Chandrapur in
Sessions Case No.01 of 1999. While the appellant/accused in Criminal
Appeal No.252 of 2004 is aggrieved by the conviction and sentence
imposed upon him by the Sessions Court for offence punishable under
Sections 376 and 511 of the Indian Penal Code (I.P.C.), the State has
come up in appeal in Criminal Appeal No.358 of 2004 contending that the
sentence of rigorous imprisonment for a period of 1 ½ years and to pay a
fine of Rs. 2,000/- imposed upon the accused is inadequate.
2] The prosecution case in brief is that on 05-12-1998, accused
Gaju @ Gajanan s/o Mahadeo Bhoyar committed rape on the prosecutrix,
who at the time of incident was aged only about 5 years. It is the case of
the prosecution that the aforesaid accused took the prosecutrix from her
house to the adjoining agricultural field on the pretext of eating ‘Tur Pods’
and that along with prosecutrix he also took her brother who was aged
only about 3 years. According to the prosecution, the accused removed
the underwear of the prosecutrix and committed the act of sexual
intercourse with her due to which there was bleeding and the underwear of
the prosecutrix was smeared with blood stains.
3] Upon the prosecutrix informing her grandmother about the
::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
3 030218 appeal 358.04.odt
incident, according to the prosecutrix, the said fact was informed to her
grandfather who in turn informed the Police, pursuant to which FIR was
registered on the same day in Police Station Ramnagar, District
Chandrapur against the accused for offence punishable under Section 376
of the I.P.C. The Police investigated the matter and upon recording of
statements of witnesses and preparation of seizure panchanama as well
as spot panchanama, as also obtaining Chemical Analyzer’s report
regarding the blood stains found on the underwear of the prosecutrix,
chargesheet was filed against the accused. On 05-07-2003, charge was
framed by the Sessions Court in Sessions Case No.01 of 1999 against the
accused for having committed offence of rape against minor punishable
under Section 376(2)(f) of the I.P.C. Charge was also framed for the
offence punishable under Section 3(i)(xii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4] In order to prove its case, the prosecution examined six
witnesses; the prosecutrix (PW-1), grandfather of the prosecutrix (PW-2),
grandmother of the prosecutrix (PW-3), doctor who examined the
prosecutrix (PW-4), panch witness for seizure and spot panchanama
(PW-5) and the Investigation Officer (PW-6).
5] Before the Sessions Court, the defence of the accused was
that he had been falsely implicated because there was a civil dispute
between him and grandfather of the prosecutrix (PW-2). The Sessions
Court considered the oral and documentary evidence on record and held
the accused guilty of having committed offence of attempt to rape minor
victim under Sections 376 and 511 of the I.P.C. On the basis of the
::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
4 030218 appeal 358.04.odt
aforesaid conviction, the Sessions Court sentenced the accused to
undergo rigorous imprisonment for 1 ½ years and to pay a fine of Rs.
2,000/-, in default of payment of fine, to suffer rigorous imprisonment for
three months. The Sessions Court acquitted the accused in respect of
charge under the provisions of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989
6] Shri A.D. Hajare, learned Counsel appearing on behalf of the
accused, submits that the oral and documentary evidence on record was
not sufficient to bring home the guilt of the accused. He submitted that the
report of medical examination of the prosecutrix (Exhibit-21) and the
evidence of Doctor (PW-4) demonstrated that there was no penetration
and that in such a situation the conviction rendered by the Sessions Court
was unsustainable. It was further submitted that there were contradictions
in the evidence of PW-2 i.e. grandfather of the prosecutrix and PW-3 the
grandmother of the prosecutrix. It was contended that the theory that the
accused had lured the prosecutrix into the field on the pretext of giving
‘Tur pods’ was falsified by the spot panchanama (Exhibit-26), wherein it
was stated that there were no pods on the standing ‘Tur’ crops in the field.
According to the learned Counsel appearing on behalf of the accused, the
evidence of the prosecutrix was also not believable because she was
about five years old when the incident had occurred and her evidence was
recorded after about six years. It was contended that the accused had
been falsely implicated and that the conviction and sentence imposed by
the trial Court was unsustainable.
7] On the other hand, Shri S.D. Sirpurkar, the learned APP
::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
5 030218 appeal 358.04.odt
appearing on behalf of the State submitted that there was sufficient
evidence and material on record to support the conviction of the accused
as held by the Sessions Court, but, the sentence imposed on the accused
was required to be enhanced, looking to the seriousness of the offence.
8] In the instant case, the evidence of the prosecutrix (PW-1) is
clear and specific on the manner in which the incident occurred on
05-12-1998. The prosecutrix has stated in sufficient detail as to the
manner in which the accused lured her and her brother into the field on the
pretext of eating ‘Tur pods’ with him. In the cross examination, her version
has not been shaken. The evidence of PW-2 (grandfather) and PW-3
(grandmother) is also consistent with the evidence of the prosecutrix as
regards the involvement of the accused. The panch witness (PW-5) has
also supported the seizure and spot panchanamas, showing that the
clothes of the prosecutrix with blood stains thereon were collected, sealed
and then sent for chemical analysis. The Investigating Officer (PW-6) has
also deposed in support of the same. Therefore, there is sufficient
evidence on record to show that the incident as described by the
prosecutrix and the role of the accused therein, did occur and that there is
nothing to show that the accused was not involved.
9] Insofar as the medical evidence is concerned, the Medico
Legal Report at Exhibit-21 records the fact that there was slight redness
at labia majora of the vagina at the lowermost part, although the hymen
was closed and intact. It was also recorded in the said report that there
were no external injury marks on the body of the prosecutrix and that no
opinion could be given as to whether there was penetration or whether
::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
6 030218 appeal 358.04.odt
there were stains of semen. The Doctor (PW-4) has proved the aforesaid
Medico Legal Report (Exhibit-21) and she has further stated that the
redness on the genital was possible in case penis was forcibly touched.
10] In this backdrop, the question that arises for consideration is,
as to whether the Sessions Court was justified in arriving at the conclusion
that the accused had committed the offence of attempt to rape against the
prosecutrix. As stated above, there is sufficient evidence on record to
show that the incident as described by the prosecutrix did occur on
05-12-1998, but, the crucial aspect regarding the exact nature of physical
contact and occurrence of offence depends entirely upon the medical
evidence on record. The requisition to the Medical Officer (Exhibit-20)
dated 05-12-1998 containing the queries and the Medico Legal Report
(Exhibit-21) containing the response/opinion of the Medical Officer/Doctor
(PW-4) assume importance in this context.
11] The requisition to Medical Officer (Exhibit-20), reads as
follows-
“Examination Form
Police Station Ramnagar
Dt/-5/12/98.
To,
The Medical Officer,
General Hospital,
Chandrapur.
Report from Police Sub Inspector M.G. Salakhe, Police
Station Ramnagar, Chandrapur.
Subject- To hold medical examination of Ashu w/o Arun
::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
7 030218 appeal 358.04.odtKhobragade, aged about 5 years, resident of Tulsi Nagar,
grand-daughter of the complainant and issue report
accordingly.
Sir,
Facts are that the applicant namely Narayan s/o
Murari Khobragade, resident of Tulsi Nagar lodged report
to the effect that his grand-daughter namely Ashu
Khobragade was raped. Hence you are requested to
give your opinion on the following points.
1] Whether there was penetration of Penis or not? If
no, before what period?
2] Whether there is an injury or not?
3] Whether there are stains of semen or not?
4] To inform the blood group.
5] To inform about the age of the victim.
6] Whether there is an injury or not?
Sent through :- Sd/-Police Inspector,
Sd/-Niranjane, Police Station Ramnagar,
Assistant-Sub-Inspector. Chandrapur.
Examined by :-
Dr. Maheshkar madam.”
12] The Medico Legal Report (Exhibit-21) showing opinion
of the Doctor (PW-4), reads as follows :-
“MLC No.5936
MLC REPORT
Examined Ku. Ashu Arun Khobragade, aged
about 6 years, r/o.Tulsinagar, Chandrapur brought by
PC-WASI Niranjane, PS Ramnagar on date 5/11/98 at
10.30 p.m. O/c child about 5-6 years, conscious,
co-operative, responds to oral commands,fair, febrile,
P-90/min, Resp-quilt No pallor, No oedema ft. Rs.
Cm-NAD No external marks of injury seen. L/Q-There is
slight redness at labia majora at lowermost part. Hymen::: Uploaded on – 07/02/2018 08/02/2018 01:28:13 :::
8 030218 appeal 358.04.odtis closed intact.
Ans. No. (1) opinion cannot be given.
(2) No external marks of injury seen. Slight redness
present at vulva.
(3) Opinion cannot be given.
(4) Blood sample collected, sealed handed over to
LPC on duty.
(5) For age determination reff dentist for age
determination.
(6) No external marks of injury seen.
Black mole on Rt side of neck.
Dt/5/12/98 Sd/
Dr. Smt. Mhaskar
M.O. G.H. Chandrapur."13] The aforesaid exhibits show that no oedema was found while
there was slight redness at labia majora at lowermost part of vulva, hymen
was closed and intact and that there were no external marks of injury. As
regards penetration or stains of semen, the medical report (Exhibit-21)
shows that no opinion could be given. This shows that although the
accused did take the prosecutrix into the field and removed her underwear,
but, there was no penetration and the act of rape as defined under Section
375 of the I.P.C. could not be completed. In this context the Sessions
Court has rendered its findings as follows :-"Therefore one thing is clear the accused is going to
his field in the evening time. Alleged incident took place at
about 5.00 p.m. Prosecutrix and her brother were taken in
the field for the purpose of eating tur product. Accused
removed the underwear of prosecutrix Ashu and touched
his penis to her private part. The victim is a minor having
no knowledge of sex. The redness was seen on her vulva.::: Uploaded on - 07/02/2018 08/02/2018 01:28:13 :::
9 030218 appeal 358.04.odt
Blood was seen on her underwear. The said circumstance
indicate that accused have tried to introduce his penis but
due to narrow size of the private part he could not
succeeded to introduce it. Doctor has also admitted that
due to forcible touch to the genital redness is possible. All
these things clearly indicate that accused has made
attempt to commit rape on prosecutrix, but due to call
given by mother of prosecutrix Ashu, he took the
prosecutrix Ashu to her house. Therefore, considering
the evidence of prosecutrix as well as evidence of doctor
as well as grandmother and grandfather of prosecutrix,
prosecution has established its case under Section
376/511 of Indian Penal Code and as such I record my
finding accordingly that accused is found guilty under
Section 376/511 of Indian Penal Code."14] Having considered the oral and documentary evidence on
record, we find that the conclusion arrived at by the Sessions Court cannot
be said to be erroneous. Therefore, the conviction of the accused under
Sections 376 and 511 of the I.P.C. for attempt to commit rape by the
accused is found to be correct. No fault can be found with the judgment
and order of the trial Court in that regard and therefore, Criminal Appeal
No.252 of 2004 filed by the appellant/accused deserves to be dismissed.15] As regards the sentence imposed by the Sessions Court on
the accused to suffer rigorous imprisonment for a period of 1 ½ years
and to pay a fine of Rs. 2,000/-, once we have concluded that the accused
was guilty of attempt to commit rape, under Section 511 of the I.P.C., he
could be sentenced to suffer imprisonment of any description extending to
one half of the longest term of imprisonment provided for offence of rape
under Section 376 of the I.P.C. Since, at the relevant time, the longest::: Uploaded on - 07/02/2018 08/02/2018 01:28:13 :::
10 030218 appeal 358.04.odtterm for which the accused could have been imprisoned was seven years,
the accused in the present case could have been sentenced for a term
which at the most would have extended to 3 ½ years.16] Considering the evidence and material on record as also the
totality of circumstances, particularly the fact that at the time of incident the
accused was only 18 years of age, it cannot be said that the Sessions
Court had committed any error in imposing sentence of rigorous
imprisonment for a period of 1 ½ years on the accused. Therefore,
Criminal Appeal No.358 of 2004 filed on behalf of the State, seeking
enhancement of sentence also deserves to be dismissed.17] In the light of above, both the criminal appeals are dismissed
and the accused is directed to surrender before the trial Court at
Chandrapur to undergo the remainder of the sentence of imprisonment
imposed upon him, within three weeks from the date of this order.JUDGE JUDGEDeshmukh
::: Uploaded on - 07/02/2018 08/02/2018 01:28:13 :::
