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Kailash Kisan Memjade vs The State Of Maharashtra on 10 April, 2018

APEAL.581-2012.doc

Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 581 OF 2012

KAILASH KISAN MEMJADE ..APPELLANT

Vs

THE STATE OF MAHARASHTRA ..RESPONDENT
—–

Ms. Farhana Shah, appointed Advocate for Applicant.
Mrs. V.S. Mhaispurkar, APP for State.

CORAM : A.S.GADKARI, J.

DATE : 10th APRIL 2018.

ORAL JUDGMENT:

1] The present appeal is directed against the Judgment and Order

dated 4th April 2012 passed by the learned Sessions Judge, Pune in Sessions

Case No.395 of 2011, thereby convicting the appellant under Section 376 of

the Indian Penal Code and sentenced to suffer rigorous imprisonment for

ten years and to pay a fine of Rs.5000/-, in default of payment of fine to

further undergo rigorous imprisonment for six months; under Section 342

of the Indian Penal Code and sentenced to suffer rigorous imprisonment

for six months and to pay a fine of Rs.500/-, in default of payment of fine

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to further undergo rigorous imprisonment for one month and under

Section 506(2) of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for two years and to pay a fine of Rs.1000/-, in default of

payment of fine to further undergo rigorous imprisonment for three

months.

By the said Judgment and Order, the learned Sessions Judge has

directed that the substantive sentences to run concurrently. The said

Judgment and Order dated 4th April 2012 is impugned herein.

2] By an Order dated 28th January 2014, Smt. Farhana Shah, the

learned Advocate was requested by this Court to espouse the cause of the

appellant in the present appeal to which she had gracefully acceded.

3] Heard Smt. Farhana Shah, the learned Advocate for the

appellant and Ms. Mhaispurkar, the learned APP for the State.

4] The victim girl was aged about 12 years on the date of incident

and therefore with a view to protect the identity of the victim girl who was

a minor and in consonance with the provisions of Section 228(A) of the

Indian Penal Code, the detailed narration of facts mentioned in the first

information report and in the statement of the victim is hereby avoided.

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5] The prosecution case in brief is as under:

(i) The appellant was working as Laboratory Assistant with Saint

Hildas High School, Pune. The victim girl was studying in 5th standard,

Section-B in the said school and was aged about 12 years on the date of

incident i.e. on 23.2.2011. Her timing of the school was 10.00 am to 4.15

p.m.. Miss Chaitrali, Ms.Nisha, Ms. Ruksar and Ms. Rupali were also

students of the said School and were close friends of the victim girl.

Adjacent to class-room of the prosecutrix, there was a computer Section

and Laboratory of the school. As the victim girl alongwith other students

used to visit the laboratory for experiment and writing practicals, she was

knowing the appellant and used to call him as ‘Kailash uncle’. That the

appellant used to pressurise the victim girl and other girl students to fetch

water for him and to sweep the laboratory.

(ii) That on 23.2.2011 the victim girl as usual attended her school.

In the 5th period when the class-teacher had gone to other class, the

appellant asked the victim girl to come out for fetching water for him,

however, she did not oblige him. That during the lunch recess, the

appellant waited for the victim girl in the door of the class-room and asked

her to fetch water for him in the water bottle. Therefore victim girl fetched

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water and then went to the laboratory for giving it to the appellant. The

appellant thereafter closed the door of the laboratory and took her to the

inner room of the laboratory, gaged her mouth by means of a cotton ball

and committed rape upon her. The appellant thereafter threatened the

prosecutrix by saying that, if she discloses the incident to anybody, he will

cut her by knife. After the threat of dire-consequence, the appellant opened

the door of the laboratory. The victim girl came out of the laboratory

weeping profusely. As it was lunch recess time, the friends of the victim girl

saw her and the appellant coming out of the laboratory. The victim girl was

weeping profusely as she had suffered the trauma and was silent, her

friends asked her the reason about weeping. The victim girl initially did not

disclose anything as she was under the fear of threat extended by the

appellant, her friend Ms. Rupali slapped on her cheek and made her to

speak. The prosecutrix thereafter disclosed the entire incident of the said

sexual assault upon her by the appellant to her friends.

(iii) On 24.2.2011 after the school hours, her friends Ms. Rupali, Ms.

Chaitrali and Ms. Nisha went to the house of the victim girl and disclosed

the said fact of commission of sexual assault upon victim girl to her mother.

The victim girl thereafter confided with her mother and grand-mother and

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disclosed the incident to them. The mother of the victim girl then checked

her private part and thereafter along with other close relatives and

neighbouring ladies went to Saint Hildas High School and contacted Head

Mistress Smt. Stella David and narrated the incident to her. However,

unfortunately the said Head Mistress told them that she is going out of

station and will return on Monday. The Head Mistress instructed mother of

the victim girl not to disclose the incident to anybody till her return and on

return she would take necessary action.

(iv) The mother of the victim girl after discussing the said matter

with her close relatives and other ladies, lodged the first information report

with the Khadak Police Station, Pune on 25.2.2011. The said report is

numbered as Crime No.62 of 2011 under Sections 342, 376 and 506(2) of

the Indian Penal Code against the appellant. The appellant came to be

arrested on 25.2.2011 itself. The medical examination of the victim girl was

conduced by Dr. Milind Waghmare (PW No.9). After completion of

investigation, the police submitted chargesheet before the Court of

competent jurisdiction.

(v) As the offence punishable under Section 376 of the Indian Penal

Code is exclusively triale by the Court of Sessions, the learned Magistrate

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committed the said case to the Court of Sessions as contemplated under

Section 209 of Cr. P.C.

vi) The Trial Court framed charge below Exhibit-7. The said charge

was read over and explained to the appellant to which he denied and

claimed to be tried. The prosecution in support of its case, examined in all

twelve witnesses. The learned Trial Court after recording the evidence and

after hearing the parties to the said case, was pleased to convict the

appellant by the impugned Judgment and Order dated 4 th April 2012 as

stated hereinabove.

6] The prosecutrix in her substantive evidence before the Trial

Court has narrated the entire incident and has also identified the appellant

as the perpetrator of the present crime. She has in detailed narrated the

facts of sexual assault committed by the appellant upon her and threats of

life administered by him. She has further stated that when her friends saw

her profusely weeping while coming out of the computer laboratory, they

enquired with her about the reason for it and when she could not explained

the incident, her friend Ms. Rupali slapped her and made her to speak upon

which she told the fact of sexual assault upon her to Ms. Rupali. The

evidence of Ms. Rupali (PW No.4) duly corroborates the version of the

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prosecutrix in all respects. The evidence of mother of the prosecutrix (PW

No.2), further corroborates the evidence of the prosecutrix on all counts

including the fact that she examined the private part of the prosecutrix

immediately. The evidence of prosecutrix, Ms. Rupali (PW No.4) and the

mother of prosecutrix (PW No.2) undoubtedly lends assurance to the

prosecution case in all respects.

7] The evidence of Dr. Milind Waghmare (PW No.9) who has

conducted medical examination upon the prosecutrix has clearly opined

that the prosecutrix was subjected to sexual assault. The Doctors namely Dr.

Ajay Taware (PW No.11) and Dr. Gururaj Lacchyan (PW No.12) deposed

that the appellant was potent enough to have sexual intercourse.

8] It is the well settled position of law as has been enumerated by

the Hon’ble Supreme Court in the case of Aman Kumar And Anr Vs. State

Of Haryana [AIR 2004 SC 1497], that the prosecutrix complaining of

having been a victim of the offence of rape is not an accomplice after the

crime. That there is no rule of law that her testimony cannot be acted

without corroboration in material particulars. She stands at a higher

pedestal than an injured witness. That in the later case, there is injury on

the physical form, while in the former it is both physical as well as

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psychological and emotional. The same view is further expressed by the

Supreme Court in the case of State of Himachal Pradesh Vs. Shree Kant

Shekari [AIR (2004) SC 4404].

9] The evidence on record thus fully establishes the guilt of the

appellant beyond reasonable doubt. It is to be noted here that, there was no

reason for the prosecutrix to implad the appellant falsely in the present

crime. In the present case, the substantive evidence of the victim girl is

indubitably trustworthy and reliable. The medical evidence on record also

duly corroborates the version of the victim girl.

10] In view of the above, this Court is of the opinion that the leaned

Trial Court has rightly convicted the appellant for the charges framed

against him. There is no error in the Judgment and Order passed by the

Trial Court.

11] In view thereof, the conviction and sentence of the appellant is

upheld. Appeal is accordingly dismissed.

12] Before parting with the judgment, this Court deems it

appropriate to place on record a word of appreciation for the efforts put in

by Smt. Farhana Shah, the learned Advocate appointed to represent the

appellant, in ablely assisting this Court. Her professional fees are quantified

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at Rs.5000/- to be paid to her by the High Court Legal Services Committee.

The professional fees be paid within a period of three weeks from the date

of receipt of this Order.

(A.S.GADKARI, J.)

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