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Injury on private part of women married for 15 years not expected during forced intercourse; conviction of rape accused upheld

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.

CRIMINAL APPEAL NO. 677 OF 2006

APPELLANTS : 1] Viru @ Virendra S/o Dhanraj Yadav,Aged about 20 years, Occu. Labour,
2] Pintu S/o Girdharilal Yadav,Aged about 20 years, Occu. Labour,
Both R/o Kamptee, District Nagpur.

VERSUS

RESPONDENTS : State of Maharashtra,
through Police Station Officer,Police Station, Kamptee,District Nagpur.

Mr. S.S. Rao with Mr. C.R.Thakur, Advocates for the appellants
Mrs. S. V. Kolhe, A. P. P. for respondent/State

CORAM : V. M. DESHPANDE, J.
DATE : JANUARY 07, 2019.
ORAL JUDGMENT

1. By the present appeal, the appellants are challenging the judgment and order of conviction dated 01.11.2006 passed by the learned 10th Ad­hoc Additional Sessions Judge, Nagpur in Special Criminal Case No. 09/2005. By the said judgment, the appellants are convicted for the offence punishable under Section 376(g) of the Indian Penal Code and they are directed to suffer rigorous imprisonment for Ten years and to pay a fine of Rs.500/­ by each of them and in default to suffer rigorous imprisonment for 15 days. They are also convicted for the offence punishable under Section 506 read with Section 34 of the Indian Penal Code and on that count, the sentence imposed on them is sufferance of rigorous imprisonment for One year and to pay a fine of Rs.500/­ by each of them and in default of payment of fine to undergo further rigorous imprisonment for 15 days. The Court below directed that both the substantive sentences shall run concurrently. The set off was also given to the appellants/accused persons in respect of pre­detention conviction.

2. The prosecution case is as under :
A] Mahadev Annaji Bhatkar (PW7), on 09.12.2004 was attached to Police Station, Kamptee as Police Sub­Inspector. He was Day Officer on the said day. Victim (PW5) came to police station and gave her oral report against the accused persons/appellants. The oral report of the victim was reduced into writing by PW7 PSI Bhatkar. The said is at Exh.31. On the basis of the oral report, a crime was registered vide Crime No. 361/2004 for the offences punishable under Sections 376(g) and 506 of the Indian Penal Code. Exh.32 is the printed first information report.

B] As per oral report (Exh.31), the victim (PW5) along with her family resides near Ramgad Dana Company, Kamptee and is a labour. Her family consists of her son, daughter and husband. On 08.12.2004, she was present along with her family in her house. At about 9.00 O’clock in the night, both the appellants came to her house. Her husband asked her to prepare tea for them. Both the accused brought liquor with them. Her husband and accused consumed liquor and when both were going to bring more liquor, she asked them not to bring liquor since it is bed time. On said, both the accused went away, however, after half an hour, both came in front of her house and started knocking on door and were extending threats that if the door is not opened, they will kill her husband. As per the report, at that time her husband was sleeping under the influence of liquor. Therefore, she took her son and daughter and fled away from backside of her house and started running towards the house of her uncle Shri Ramteke. At that time, both the accused came behind her. They caught her and by holding her hairs, took her in a secluded area under the threat of broken glass bottle. They also took her son and daughter and thereafter committed forcible sexual intercourse against her consent. After the commission of the atrocious act, they again extended threat to her.

C] After the registration of crime, PW7 PSI Bhatkar along with the victim, went to the spot of the incident, which was shown by her. He prepared the spot panchanama (Exh.50). The spot is an open ground near the house of the victim. After returning from the spot, he sent the victim for her medical examination with WPC Chanda, B.No.1406 with a requisition letter (Exh.16). Thereafter, as per the directions of the Police Inspector, further investigation was handed over to PSI Hande (PW8). On being entrusted with the investigation of the case diary of Crime No. 361/2004, PSI Hande seized the clothes of the victim in presence of two panchas under seizure panchanama (Exh.23). The clothes were saree, peticoat, blouse and underwear. He handed over the case for further investigation to the Police Station Officer on 10.12.2004.

D] Jainarayansingh Gautam (PW11) on receiving the case diary of Crime No. 361/2004 for investigation from PSI Hande, obtained medical report of the victim. He also obtained samples of blood, pubic hair and vaginal swab of the victim and seized the same in presence of panchas. The seizure panchanama is at Exh.64. On the next day, he arrested both the accused. They were sent for their medical examination. Samples of their blood, pubic hairs, semen and nail clippings were also obtained. Clothes of the accused persons were also seized under various seizure panchanamas. He also seized the knife from appellant Viru under seizure memo Exh.67. He also recorded statement of the victim. In the said statement, she stated that she belong to ‘Mahar’ caste, which is a Scheduled Caste and therefore, Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was added. In view of the said , further investigation was handed over to the Deputy Superintendent of Police, Kamptee. The Court was also informed. PW10 Rajendrasingh Gautam, Dy.S.P., in view of inclusion of penal provision under the Atrocities Act, took the investigation from PI Jainarayan Gautam (PW11). After completion of the other usual investigation, he prepared the charge­sheet and submitted in the Court of Judicial Magistrate, First Class,Kamptee.

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E] The learned Magistrate passed the committal order since the offence was exclusively triable by the Court of Sessions.

F] The learned 10th Ad­hoc Additional Sessions Judge, Nagpur, framed the Charge against the appellants/accused persons for the offence punishable under Section 376(g) of the Indian Penal Code; under Section 3(1)(xi) of the Atrocities Act ; under Section 506 read with Section 34 ; and under section 201 of the Indian Penal Code. After a full dressed trial, the Court below, by the impugned judgment, though acquitted the appellants for the offence punishable under the Atrocities Act and under Section 201 of the Indian Penal Code, found that the prosecution has proved its case against them for the offence punishable under Sections 376(g) and 506 read with Section 34 of the Indian Penal Code. Hence, this appeal.

3. I have heard Mr. S.S. Rao and Mr. C.R. Thakur, the learned counsel for the appellants and Mrs. S.V. Kolhe, the learned Additional Public Prosecutor for the respondent/State. With their able assistance, I have gone through the record and proceedings and notes of evidence.

4. It is the submission of the learned counsel for the appellants that the appellants are falsely implicated in the crime. They submitted that in view of absence of any injury on genital part of the victim, the case of the prosecution that the appellants have committed rape on the victim, must fail. It is also the submission of the learned counsel for the appellants that it is impossible that when the husband of the victim was present in the house, she will run from the house along with her son and daughter. It is also their submission that the independent witness Charandas Gaikwad (PW1), a Choukidar at Stone Crusher, has turned hostile and has specifically stated that he did not notice any woman running by the side of Stone Crusher. Similarly, Chhayabai Khobragade (PW2), a relative of the victim, also did not support the prosecution that the daughter of the victim narrated the incident to her. They, therefore, submitted that the appellants be acquitted by allowing the appeal.

5. Per contra, Mrs. Kolhe, the learned Additional Public Prosecutor for the State vehemently submitted in support of the prosecution case. She also submitted that there is an eye­witness account in the nature of testimony of the son of the victim, who witnessed the atrocities on his mother. She, therefore, submitted that appeal be dismissed.

6. By now, by catena of decisions of the Hon’ble Apex Court, it has been settled that there can be no iota of doubt that the conviction can be based on the sole testimony of the victim even without corroboration, if it is unimpeachable and beyond reproach. According to the law settled by the Hon’ble Apex Court, the testimony of the victim can be accepted without any corroboration in material particulars, since she has been placed on high pedestal than injured witness. The law does not require that there should be corroboration to the version of the victim, if it inspires confidence.

7. Keeping the aforesaid principle in mind, this Court is required to scrutinize the prosecution case to reach to the conclusion as to whether the prosecution has proved its case beyond reasonable doubt against the appellants.

8. PW3 is Dr. Kshama Kedar. She has examined the victim on 09.12.2004 when she was posted in Labour Room of Indira Gandhi Government Medical College as Lecturer. She deposed that WPC Chanda of Police Station, Kamptee had brought the victim along with requisition letter (Exh.16). Dr. Kedar took consent of the victim. As per the evidence of PW3 Dr. Kedar, the victim narrated history that she was forcibly taken from home and raped by two persons by name Viru and Pintu (the appellants). Accordingly, she examined the victim. As per her evidence, the victim narrated to her that her marriage took place prior to 15 years, having two children aged about 13 and 10 years. On examination, Dr. Kedar found following injuries ­ “Liner abrasions present at the base of left knee and left thigh” No injuries were found on genital part. In her opinion, considering the injuries on the local examination of the victim and the fact that she is married having two grown up children, forcible sexual intercourse could not be commented upon. She proved the certificate (Exh.17) and also the discharge card (Exh.19), which shows that the victim was indoor patient from 09.12.2004 to 10.12.2004.

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Important to note is the answer given by PW3 Dr. Kedar to the question put to her by the learned cross­examiner that the abrasions on left knee and left thigh were not self­inflicted, but those could be possible by some other means and other reason also.

9. Much capital is made by the learned counsel for the appellants to distrust the victim in absence of any injury on her private part.

The marriage of the victim took place prior to 15 years and she is having two grown up children aged 13 and 10 years. In the light of this fact, one cannot expect injuries on vagina even if there is forcible sexual intercourse. Therefore, I have no hesitation in my mind to reject the submission made by the learned counsel for the appellants in that behalf.

10. The star witness in this prosecution case is the victim herself, who is examined as PW5. She lodged the oral report (Exh.31). In the oral report itself, she has named the appellants as the perpetrator of the crime and narrated the way and manner of the atrocious act committed on her by them.

11. Evidence of the victim (PW5) shows that the incident has occurred in the night of 08.12.2004. She was present at her house along with her entire family. She knows the accused persons. They came to her house. That time, her husband was sleeping as he was not feeling well. Her husband asked her to prepare tea. She offered tea to both the accused. Her evidence shows that liquor was brought by them. Thereafter, her husband and accused persons had a drinking session, in spite of the objection from the victim. After some time both the accused went away, however, after half an hour they returned along with liquor again and demanded glasses for drinking. On that it was replied by the victim that it was a bed time and therefore, they should not consume liquor. Thereafter, accused persons went away to the adjacent house. After some time, Pintu (accused no.2) came there and he kicked the door of her house and asked to open it and threatened that if the door is not opened, her husband will be killed. They will be killed by setting the house on fire. Since, her husband was asleep, she was terrified. The back side of the hut was covered by empty cement gunny bags. Therefore, she took her children and ran out of the house through the said portion. They were chased by appellant Viru, however, she was overpowered and took her to near Dana Company. Her children were also running after her and were crying. The place was secluded place. Her children were taken into captivity at the distance of 10 – 12 meters from her. Appellant no.1 Viru first committed rape. At that time, appellant no.2 Pintu was sitting with her children. After some time Pintu came and had forcible sexual intercourse. Thereafter, they were brought to her house and extended threat. After they went away, she woke up her husband and narrated the incident. Since, it was a night time and they were frightened, they lodged the report on the next day with Police Station, Kamptee.

12. The cross­examination of the victim has remained unshattered. Some omissions are brought on record during her cross­examination. Those omissions are in the first information report.

According to the learned counsel for the appellants, in view of the omissions, the prosecution case must fail.

It is really hard to digest such submission. The first information report is not an encyclopedia of the prosecution case. Rather it is a starting point of the prosecution case. It is not expected that each and every minute detail should have its reflection in the first information report. Therefore, if there are certain omissions in the first information report, those can never be fatal to the prosecution case, especially when no omissions could be brought on record in the statement of the victim recorded during the course of the investigation. Further, the nature of the omissions are also not in respect of actual act of commission of rape, but those are in respect of Pintu kicking the door and she was in the courtyard of Mr. Ramteke. In my view, these omissions even otherwise are minor in nature and does not go to the root of the prosecution case.

13. From the line of defence as it was suggested to the victim is that, they were saying that the plot on which the hut is erected, is belonging to them and on the said aspect, there was some dispute. It is also brought on record that due to persistence of the accused persons, the family of the victim was having trouble. She has also accepted in her evidence that the accused were demanding Rs.1,000/­ and on that count also there was dispute. From these lines of defence, it is clear that the accused persons were claiming ownership over the piece of land on which the hut was erected. Perusal of the cross­examination in that behalf, in my view, is a halfhearted cross­examination. There is nothing available on record to show that the piece of land was belong to the appellants. Further, it was always open for the appellants to take legal course for eviction of the lady and her family. There is not even a remotest suggestion during the cross­examination of the victim that any legal step was taken on the part of the appellants for getting the piece of land vacated. In that view of the matter, there is no hesitation in my mind that the defence put forth is unacceptable.

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14. The learned counsel for the appellants submitted that in the cross­ examination, the victim has admitted that no person could enter the hut from backside by opening pal. The prosecution case cannot be decided on a stray sentence here and there by the Court. While deciding a criminal case, it is the duty of the Court to consider the prosecution case as a whole and not read the evidence in bits and pieces.

15. PW6 is the son of the victim, aged about 12 years. His evidence would reveal that the evidence of the victim is corroborated in respect of initial entry of the appellants in the house and consumption of liquor. Till running away from the house, the evidence of the victim is duly corroborated by this prosecution witness. His evidence would further show that his mother was taken to a secluded place and they were with the appellants. It is also his version that the accused persons extended threats. The learned counsel for the appellants submitted that his evidence is required to be discarded he being a child witness. Merely because he is a child witness, that is not sufficient to discard his evidence. Further, nothing is available on record to disbelieve his testimony.

16. It is the further submission of the learned counsel for the appellants that the husband of the victim is not examined. The simple answer for this submission is that the husband of the victim was in intoxicated condition after a drinking session by him with the appellants and therefore, as per the version of the victim, she ran away along with her children.

17. During the course of the investigation, the Investigating Office sent muddemal articles to the Chemical Analyser under requisition (Exh.58).

The Chemical Analyser reports are placed on record. As per C.A. report (Exh.10), blood group of the victim is ‘B’. As per C.A. report (Exh.11), semen group of appellant no.2 Pintu and his blood group is ‘A’, whereas as per C.A. report (Exh.12), the blood and semen group of appellant Viru is ‘O’.

As per C.A. report Exh.9, saree, peticoat, blouse and jangya of the victim were stained with human blood having blood group ‘B’. Similarly, peticoat of victim was stained with semen of group ‘A’.

Noticing of blood on the clothes of the victim shows the sign of resistance. Similarly, stain of semen of group ‘A’, which belongs to appellant Pintu, corroborates the prosecution case.

18. The Court below has minutely considered the every aspect of the prosecution case and in my view, has rightly recorded the finding of guilt against the appellants.

19. On re­appreciation of the entire prosecution case, I pass the following order :

ORDER

1. The criminal appeal is dismissed.

2. The judgment and order of conviction dated 01.11.2006 passed by learned 10th Ad­hoc Additional Sessions Judge, Nagpur in Special Criminal Case No. 09/2005 convicting the appellants for the offences punishable under Sections 376(g) and 506 read with Section 34 of the Indian Penal Code, is hereby confirmed.

3. The appellants are found to be guilty of offences punishable under Sections 376(g) and 506 read with Section 34 of the Indian penal Code.

4. After hearing learned counsel, sentence of Ten years is hereby confirmed.

5. Appellant no.1 – Viru @ Virendra S/o Dhanraj Yadav is in jail. Appellant no.2 – Pintu S/o Girdharilal Yadav is present in the Court and he is taken into custody.

6. Registrar (J) is directed to forward appellant no.2 Pintu S/o Girdharilal Yadav to the Nagpur Central Prison to serve out remainder of his jail sentence.

7. Appellant no.1 – Viru @ Virendra S/o Dhanraj Yadav to be remained in jail to serve out remainder of his jail sentence.

8. With this, the criminal appeal is dismissed.

V.M. Deshpande, J.

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