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Uday Prakash Panchal vs The State Of Maharashtra on 1 March, 2018

207-APPEAL-211-2013.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.211 OF 2013

UDAY PRAKASH PANCHAL )…APPELLANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Manas Gavankar i/b. Sharon Patole, Advocate for the
Appellant.

Mr.S.V.Gavand, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 1st MARCH 2018

JUDGMENT :

1 The appellant/accused, by this appeal, is challenging

the judgment and order dated 31 st December 2012 passed by the

learned Additional Sessions Judge, Ratnagiri, in Sessions Case

No.31 of 2011 thereby convicting him of the offence punishable

under Section 376 of the Indian Penal Code and sentencing him to

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suffer rigorous imprisonment for 7 years apart from payment of

fine of Rs.5,000/- and default sentence of simple imprisonment

for 6 months.

2 Facts, in brief, leading to the prosecution of the

appellant/accused are thus :

(a) The prosecutrix/PW1 is a minor female who was aged 15

years 9 months and 28 days on the date of the alleged

incident i.e. 19th April 2011. Her date of birth is 22nd June

1995. She was resident of Village Sanechiwadi, Devudgaon

of Ratnagiri District. The house where she used to reside

was divided in two parts. In one part, the prosecutrix/PW1

was residing with her father PW3 Suresh, her mother and

two sisters. The other part of her house used to be inhabited

by her uncle Devaji, his wife PW2 Narmada and their

children.

(b) The incident allegedly took place on 19th April 2011. After

taking lunch, parents of the prosecutrix/PW1 had gone to

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the forest area for bringing the firewood. The

prosecutrix/PW1 was sitting on the cot kept in the kitchen of

her house. Front door as well as back door of the house was

open. Both younger sisters of the prosecutrix/PW1 were

playing outside the house. At about 3.00 p.m., the

appellant/accused, who was residing in the nearby locality

and known to the family of the prosecutrix/PW1 came in the

house by the back door of the house and gave a call to the

father of the prosecutrix/PW1. The prosecutrix/PW1

informed the appellant/accused that her father is not in the

house. Upon that, the appellant/accused made the

prosecutrix/PW1 to lie on the cot, pulled down her knicker

and committed rape on her by gagging her mouth by his

palm. The prosecutrix/PW1 could manage to shout by

removing the palm of the appellant/accused and then she

gave a call to her aunt. Her aunt PW2 Narmada then came,

pulled the appellant/accused from the person of the

prosecutrix/PW1. The appellant/accused ran away.

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(c) According to the prosecution case, PW2 Narmada then went

to the forest area to inform the incident to the parents of the

prosecutrix/PW1. Upon being informed, her parents came

back to the house. The prosecutrix/PW1 narrated the

incident to her parents. Upon hearing about the incident

from the mouth of the prosecutrix/PW1, mother of the

prosecutrix/PW1 became unconscious and was required to

be taken to the clinic of Dr.Vichare.

(d) According to the prosecution case, then in the night hours,

meeting of the relatives and persons from the locality was

convened. The appellant/accused along with his father

attended that meeting. The appellant/accused admitted the

incident. Then, on the next day, the prosecutrix/PW1 went

to Ratnagiri Rural Police Station and lodged the report.

Accordingly, Crime No.35 of 2011 for offences punishable

under Sections 376, 451 and 506 of the Indian Penal Code

came to be registered against the appellant/accused. He

came to be arrested.

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(e) Routine investigation followed and resulted in filing of the

charge-sheet against the appellant/accused. The Charge was

framed and explained to him. He pleaded not guilty and

claimed to be tried. In order to bring home the guilt to the

appellant/ accused, the prosecution has examined in all

eight witnesses. After hearing the parties, the learned trial

court, by the impugned judgment and order was pleased to

convict the appellant/accused for the offence punishable

under Section 376 of the Indian Penal Code and he came to

be sentenced as indicated in the opening paragraph of this

judgment.

3 I have heard the learned advocate appearing for the

appellant/accused. He vehemently argued that evidence of the

prosecutrix/PW1 is not worth relying, as the incident in question,

as per her version, took place in the house where her aunt and

uncle were very much present. Her two younger sisters were

stated to be playing outside the house. Therefore, evidence of the

prosecution recording forcible sexual intercourse by the

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appellant/accused is improbable. The medical evidence is not

supporting the case of the prosecution. The medical report at

Exhibit 11 shows that the Medical Officer was not certain about

the commission of forcible sexual intercourse on the

prosecutrix/PW1. The learned advocate further argued that

Marathi version of evidence of PW2 Narmada gives an impression

that she was witnessing the incident, but this witness has not

deposed about the actual penetration. The Police Officer, who

recorded the First Information Report (FIR) is not examined by

the prosecution. Similarly, there is no proof regarding age of the

prosecutrix/PW1.

4 As against this, the learned APP supported the

impugned judgment and order of conviction and the resultant

sentence by arguing that the appellant/accused cannot put forth

the theory of consent, as the prosecutrix/PW1 was below 16 years

of age at the time of the incident in question, as seen from the

evidence of PW8 Mithun Thik, Gram Sevak, working in the

Panchayat Samiti, as well as from Birth Certificate of the

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prosecutrix/PW1, which is at Exhibit 40. The prosecution has also

placed on record the certified copy of the extract of the relevant

Statutory Register which is at Exhibit 41. The learned APP further

argued that evidence of the prosecutrix/PW1 is corroborated by

the evidence of her aunt PW2 Narmada, who is an eye witness to

the incident in question, and therefore, the appeal deserves to be

dismissed.

5 I have carefully considered the rival submissions and

also perused the Record and Proceedings.

6 The moot question before this court is whether

evidence of the prosecutrix/PW1 in respect of the incident of

commission of rape on her is truthful and trustworthy. It is held

by the Honourable Apex Court in the matter of State of

Maharashtra vs. Chandraprakash Kewalchand Jain 1 that to

insist on corroboration to the testimony of the victim of sexual

assault except in the rarest or rare cases is to equate a woman,

who is a victim of the lust of another with an accomplice to a
1 AIR 1990 SC 658

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crime and thereby thereby insult womanhood. In the matter of

State of Punjab vs. Gurmit Singh 2 the Honourable Apex Court

has held that it is the accused and not the victim of sex crime who

is on trial in the court. Evidence of such victim stands almost at

par with the evidence of an injured witness and to an extent is

even more reliable. Similarly, it is now well settled that though

medical evidence is extremely important in a rape case, absence of

such evidence would not lead to an acquittal because the opinion

of doctor cannot throw out an otherwise cogent and trustworthy

evidence of the victim. Let us examine the case in hand in the

light of this settled law in respect of sexual offences wherein the

court is expected to keep in mind broader probabilities of the case

of prosecution.

7 So far as age of the prosecutrix/PW1 is concerned, the

prosecution has examined PW8 Mithun Thik, Gram Sevak,

attached to the Panchayat Samiti, Ratnagiri, for proving her age.

This witness has proved the relevant extract of the Register of

Births and Deaths (Exhibit 41) maintained under the provisions of
2 AIR 1996 SC 1393

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the Registration of Births and Deaths Act, 1969. This document at

Exhibit 41 shows that the prosecutrix/PW1 was born on 22 nd June

1995. The Birth Certificate (Exhibit 40) issued by the registering

authority proved by PW8 Mithun Thik also shows that the

prosecutrix/PW1 was born on 22nd June 1995. This Act provides

for maintenance of register for recording births and deaths within

the local area. The Birth Certificate issued under Sections 12 and

17 of the Registration of Births and Deaths Act, 1969, forms the

record of acts of the Public Officer and the same is a public

document within the meaning of the said term as per provisions of

Section 74 of the Indian Evidence Act, 1872. As per provisions of

Section 17 of the said Act, the extract of Birth Certificate issued

under the provisions of the said Act, is admissible in evidence for

the purpose of proving the birth, to which the entry relates. There

is presumption that the official acts are regularly done. Evidence

of PW8 Mithun Thik shows that the entry in the Birth Register is

taken as per the information provided to the registering authority

by PW3 Suresh – father of the prosecutrix/PW1. In this view of

the matter, though the prosecutrix/PW1 has, in her oral evidence,

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deposed her date of birth as 22 nd June 1994, such oral evidence

regarding the date of birth cannot be accepted in the wake of the

Birth Certificate Exhibit 40. Thus, I hold that the prosecutrix/PW1

was born on 22nd June 1995, and as such, on the day of the

alleged incident, she was below 16 years of age. Therefore, she

had not attained the consenting age on the date of the incident.

8 Now let us examine whether the prosecution has

proved that the appellant/accused had committed rape on the

prosecutrix/PW1 as defined by Section 375 of the Indian Penal

Code by causing even slightest penetration. It is in evidence of the

prosecutrix/PW1 that on 19th April 2011, after her parents left the

house after lunch for collecting firewood, she was all alone in her

home. Both doors of her house were open. She was sitting on the

cot kept in the kitchen. The prosecutrix/PW1 further deposed that

the appellant/accused came from the back door and gave a call to

her father. When she disclosed to him that her father is not in the

house, the appellant/accused caught her right hand, laid her on

the cot, pulled her gown and petticoat upwards, pulled down her

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knicker and inserted his penis in her vagina. She removed palm of

the appellant/accused, which he had put on her mouth, by

applying force and gave a call to her aunt by shouting “mothi aai

mothi aai”. Then her aunt PW2 Narmada came inside the kitchen

from the back door, pulled the appellant/accused from her person

and questioned him. Upon that, the appellant/accused, after

wearing his pant, ran away from the spot.

9 As per version of the prosecutrix/PW1, then PW2

Narmada went to call her parents. Her parents came at about 4.00

p.m. and she narrated the incident to her parents. Her parents

then called meeting of the residents which was also attended by

the appellant/accused, who admitted the incident in the said

meeting. The prosecutrix/PW1 further stated that on the next day

she lodged report Exhibit 16 with Ratnagiri Rural Police Station.

10 From the cross-examination of the prosecutrix/PW1 it

is elicited by the defence that at the time of the incident, her uncle

and the wife of her uncle were very much present in the house.

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Evidence of the prosecutrix/PW1 shows that she, along with her

parents and sisters, was residing in one part of the house, whereas

the other part of the house was occupied by her uncle and aunt

PW2 Narmada. Thus, what has been stated by the

prosecutrix/PW1 in her chief-examination regarding arrival of

PW2 Narmada on the scene of occurrence is cemented from this

material brought on record by the defence during cross-

examination of the prosecutrix/PW1. Similarly, in cross-

examination of the prosecutrix/PW1, the defence attempted to put

forth a theory of false implication by stating that there is dispute

between two villagers on account of indulgence in black magic, as

well as the fact that the appellant/accused is falsely implicated, as

the prosecutrix/PW1 was willing to marry him, her father was also

liking the appellant/accused, but the appellant/accused refused to

marry the prosecutrix/PW1. The prosecutrix/PW1 has denied all

such suggestions. It is hard to believe that a minor female would

indulge in lodging a false report in respect of rape on her, only

because of her willingness to marry the appellant/accused and

refusal by the appellant/accused to marry. Such type of offence

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ruins the future prospects of marriage of the prosecutrix, and as

such, this theory does not deserve acceptance.

11 Now let us examine whether evidence of the

prosecutrix/PW1 is gaining corroboration in material particulars.

Evidence of PW2 Narmada shows that when she was in her house,

she heard shouts of the prosecutrix/PW1 as “mothi aai mothi aai”.

Therefore, she entered in the house of the prosecutrix/PW1 and

found that the prosecutrix/PW1 was lying on the cot in half naked

condition and the appellant/accused was found mounting on the

prosecutrix/PW1 with his pant down. PW2 Narmada deposed

that then she pulled the appellant/accused from person of the

prosecutrix/PW1 and then the appellant/accused ran away. She

called the parents of the prosecutrix/PW1 and the prosecutrix/

PW1 narrated the incident to her parents. Nothing could be

elicited from the cross-examination of this witness to disbelieve

her version regarding witnessing the appellant/accused mounted

on the prosecutrix/PW1 in the kitchen of the house. Even Marathi

version of the evidence of PW2 Narmada is reflecting this fact only

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and there is no variance in English or Marathi version. Thus,

evidence of PW2 Narmada is fully corroborating the version of the

prosecutrix/PW1 and there is no reason to disbelieve her version.

12 PW3 Suresh is the father of the prosecutrix/PW1. His

version reveals that upon hearing the narrations of PW2 Narmada,

he along with his wife returned back to the house and thereupon,

the prosecutrix/PW1 narrated the incident of commission of rape

on her by the appellant/accused. This witness deposed that in the

evening he called meeting of the villagers in which the

appellant/accused admitted the incident. There was scuffle in the

meeting and the appellant/accused fled from the meeting.

13 PW2 Narmada and PW3 Suresh have deposed about

the post event happenings with the mother of the

prosecutrix/PW1 and her admission to the clinic of Dr.Vichare for

medical treatment. Their evidence shows that mother of the

prosecutrix/PW1 was rendered unconscious after hearing the

narrations of the prosecutrix/PW1.

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14 Evidence of PW3 Suresh shows that soon after the

incident, the prosecutrix/PW1 narrated the incident of

commission of rape on her by the appellant/accused. These

narrations were within short span of the incident, and as such,

there was no chance of mind of the prosecutrix/PW1 being

polluted by external forces, and as such, the narrations of the

prosecutrix/PW1 about commission of rape on her by the

appellant/accused, as disclosed by her father PW3 Suresh, fully

corroborates her version, and this evidence is admissible under

Section 157 of the Evidence Act.

15 Evidence of PW3 Suresh as well as that of PW4 Arun

Ghanekar – a villager who had attended the meeting, reveals that

the appellant/accused, in the meeting, admitted about the

incident, and then, because of the resultant scuffle, the

appellant/accused ran away from the spot.

16 Evidence adduced by the prosecution and coming from

the mouth of the prosecutrix/PW1, which is supported by

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evidence of her aunt PW2 Narmada and that of her father PW3

Suresh, as such, is consistent, and indicating beyond reasonable

doubt the fact of commission of rape on the prosecutrix/PW1 by

the appellant/accused. There is nothing to infer consent of the

prosecutrix/PW1 for this act, leave apart the fact that she had not

attained the consenting age. Thus, the prosecution has established

the offence punishable under Section 376 of the Indian Penal

Code as against the appellant/accused. He has been sentenced to

suffer rigorous imprisonment for 7 years for this offence, which is

the statutory minimum sentence. Thus, there is no infirmity in the

sentence imposed on the appellant/accused.

17 In the result, the appeal fails, and therefore the order:

ORDER

The appeal is dismissed.

(A. M. BADAR, J.)

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