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Dnyaneshwar S/O Digambar Telang … vs The State Of Maharashtra, Through … on 1 February, 2018

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

CRIMINAL APPEAL NO.53 OF 2014

Dnyaneshwar s/o Digambar Telang,
Aged about 24 yrs.,
Occ: Agriculturist,
R/o Yerangaon, Tq. Ghatanji,
Dist. Yavatmal (Presently in Jail). ……. APPELLANT

…V E R S U S…

The State of Maharashtra
through P.S.O. P.S. Parwa,
Dist. Yavatmal. ……. RESPONDENT
——————————————————————————————-
Shri Amit Band, Advocate for Appellant.
Shri V.P. Maldhure, APP for Respondent-State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: st
1 FEBRUARY, 2018.

ORAL JUDGMENT

1] The appellant-accused is aggrieved by the judgment

and order dated 09.10.2013 rendered by the Sessions Judge,

Yavatmal in Sessions Case 136/2012, by and under which, the

appellant-accused is convicted for offence punishable under

Section 376 of the Indian Penal Code (‘IPC’ for short) and is

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sentenced to suffer rigorous imprisonment for seven years and to

payment of fine of Rs.500/-.

2] Heard Shri Amit Band, the learned counsel for the

appellant and Shri V.P. Maldhure, the learned Additional Public

Prosecutor for the respondent-State.

3] The genesis of the prosecution lies in the oral report

dated 17.07.2012 lodged by the prosecutrix (P.W.1) at Police

Station Parwa, District Yavatmal. The gist of the report lodged by

the prosecutrix, who was then aged 15 years, is that between

05:30 to 06:00 p.m. on the day of the incident she went to the

grocery shop of one Rajesh Dabbawar to purchase cell for watch.

The wife of the shop owner Smt. Kalpana informed the

prosecutrix that watch cells were not available in the shop.

The prosecutrix was returning to her residence uttering that the

cells are not available and from which shop could she purchase

the cell. The accused, who was sitting in front of his house heard

the uttering of the prosecutrix and told her that the prosecutrix is

free to collect the cell from his residence. The prosecutrix

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approached the residence of the accused, she was pushed inside

the house, the accused removed her clothes and gagged her when

she attempted to raise an alarm. The accused threatened the

prosecutrix with physical harm, made her lie on the cot, undressed

and slept over the person of the prosecutrix and inserted his male

organ in the vagina. After she was subjected to sexual intercourse

the prosecutrix wore her clothes, and when the accused opened

the door of the house, she started running towards her house.

The accused followed her and obstructed her from proceeding

towards the house. The prosecutrix turned back and ran towards

the agricultural field of Avinash Vithalkar. She met Akshay

Meshram, who held her since while running the jaws of the

prosecutrix was locked. Akshay Meshram took the prosecutrix

near the canal and offered her water. Akshay Meshram, Mangesh

Madavi and Sanjay Meshram escorted the prosecutrix to her

house. She disclosed the incident to her parents and lodged the

report.

4] The prosecutrix was referred to Civil Hospital,

Yavatmal for medical examination, during the investigation spot

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panchnama was recorded one wakal (mattress) was seized from

the residence of the accused, and upon completion of the

investigation charge-sheet was submitted in the court of Judicial

Magistrate First Class, Ghatanji who committed the proceedings to

the Sessions Court. The learned Sessions Judge framed charge

(Exh.11) for offence punishable under Section 376 and 506 of

IPC. The accused abjured guilt and claimed to be tried.

The defence of the accused is of total denial and false implication.

The trend and tenor of cross-examination would suggest that the

defence is that the prosecutrix and Akshay Meshram were in

relationship and used to meet at the residence of the accused.

One Sanghpal saw the prosecutrix and Akshay at the residence of

the accused and only in order to avoid a scandal the prosecutrix in

collusion with Akshay Meshram falsely implicated the accused.

5] The age of the prosecutrix is not in serious dispute.

P.W.8 Vilas Chitram the Head Master of Primary School of Kopri

Kapsi, in which school the prosecutrix was admitted in the 1 st

standard, has proved the school record Exh.45 and 46 which

record the date of birth as 04.10.1996.

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6] P.W.5 Dr. Atul Padmawar Medical Officer has

deposed that on clinical examination the age of the prosecutrix

was, in his opinion, 15 years.

7] In any event, it is not suggested by the defence that

the sexual intercourse, if any, was consensual and the age of the

prosecutrix is of scant significance.

8] Before I consider the evidence of the prosecutrix

P.W.1, it would be apposite to analyze the medical evidence on

record. P.W.5 Dr. Atul Padmawar, who medically examined the

prosecutrix has deposed that the history narrated by the

prosecutrix as is recorded in the medical paper is of forcible sexual

intercourse. The day on which the medical examination was

conducted was the first day of the menstrual cycle. P.W.5 has

deposed that he noticed injury on the upper lip (upper lip edema).

The hymen admitted one finger, which would mean, in the

opinion of P.W.5, that the hymen was torn. P.W.5 has deposed

that since the prosecutrix was examined on the first day of

menstruation, definite opinion regarding injury or sexual assault

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cannot be given. However, edema on upper lip is evidence of force

and violence, is the deposition. P.W.5 has proved medical

examination report Exh.37. There is no serious challenge to the

testimony of the Medical Officer, in the cross-examination.

The only suggestion given is that if a grown up person commits

forcible intercourse with a woman aged 15 years, there may be

swelling or tenderness in labia majora and minora.

9] The prosecutrix is not an accomplice. The court is not

obligated to search for corroboration if the testimony of the

prosecutrix is reliable and confidence inspiring. Corroboration, if

at all, may be sought in the medical evidence. However, absence

of injury or absence of semen or even of tear to hymen, is not

decisive. The offence of rape is established, even if slightest

penetration in the vulva is established. Hymen, may or may not

be, torn. The slightest penetration, with or without discharge of

semen, would constitute rape. The pivotal issue which needs

consideration from the court is whether the testimony of the

prosecutrix is implicitly reliable and confidence inspiring. If the

testimony is credit worthy, to insist on corroboration would be an

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insult to woman hood.

10] The prosecutrix (P.W.1) has lodged the report with

promptitude. The testimony of P.W.1 is consistent with the

contents of the First Information Report. The defence of false

implication, is not probabilized even on the touchstone of

preponderance of probabilities. Assuming, that the prosecutrix

and Akshay Meshram (P.W.3) used to meet in the residence of the

accused and were seen by one Sanghpal, why would be the

prosecutrix falsely implicate the accused, is a question which

cannot be answered in favour of the accused, by any stretch of

imagination. The suggestion and insinuation of the defence that

the prosecutrix cried foul to avoid dishonour, is inexplicable.

Au contraire, by lodging a report that she was subjected to forcible

sexual intercourse by the accused, the prosecutrix boldly and

undeterred by the unfortunate and deplorable reality of the

non-permissive Indian society of considering rape as a stigma,

displayed fortitude and willingness to stoically bear the burden of

the stigma in her future life.

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11] The medical evidence corroborates the testimony of

the prosecutrix. Shri Amit Band, the learned counsel for the

appellant submits that a woman cannot be raped during

menstrual period. In support of the said submission, the learned

counsel has placed on record an article by a law student who has

recently graduated. Shri Amit Band, the learned counsel ought to

have been conscious of the fact that the hearing of the appeal in

the High Court is not a moot court or mock court competition in a

law school. Relying on an article written by a law graduate,

without making any effort to bring to the notice of the court the

authorities referred to in the article, does not do justice to the

learned profession of law nor to the justice dispensation system.

Penning the afore-made observations was indeed a painful duty,

but then, the performance of the painful duty was necessary lest

the sanctity of the proceedings in court is dented and the

stakeholders in the justice dispensation system lose confidence in

the assistance rendered by the officers of the court to the Judges.

The submission that menstruating woman cannot be subjected to

rape, is noted only for rejection. Menstruation may create some

difficulty in collecting forensic medical evidence. However, the

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submission that a menstruating woman cannot be rape

dangerously borders on the absurd. The learned counsel was also

oblivious of the fact that the incident occurred on 17.07.2012

while the medical examination was conducted the next day which

in the opinion of the Doctor was the first day of the menstruation

cycle.

12] The probative value of the testimony of the

prosecutrix, which is implicitly reliable and credit worthy is not

diluted or dented by inconsistencies between the version of the

prosecutrix and the version of Akshay Meshram (P.W.3).

The testimony of P.W.3 Akshay Meshram that the prosecutrix was

running towards the well and was saying that she would end her

life, is not spoken of by the prosecutrix herself. However, the

evidence of P.W.3 Akshay Meshram corroborates the testimony of

the prosecutrix to the extent that the incident is narrated by the

prosecutrix to her family members in presence of P.W.3 Akshay

Meshram. The submission of the learned counsel for the accused

that the failure of the prosecution to examine the parents or sister

of the prosecutrix is fatal, cannot be countenanced.

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The submission militates against the settled position of law that

conviction can rest even on the uncorroborated testimony of the

prosecutrix.

13] The conscious of this court is satisfied that the

evidence of the prosecutrix is confidence inspiring. The judgment

and order impugned is unexceptionable.

14] The appeal is sans merit and is rejected.

15] The Parwa Police Station, District Yavatmal is

directed to take the accused in custody forthwith and to submit a

compliance report in the Registry of this court within ten days

from today.

JUDGE

NSN

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