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Bhujing @ Sitoba Pundlik Dhani vs State Of Mah.Thr.Pso Akola on 19 March, 2018

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

CRIMINAL APPEAL NO. 75 OF 2006

APPELLANT : Bhujing @ Shitoba S/o Pundlik Dhani,
Aged about 18 years, Occu. Labour/Agriculturist
R/o Borgaon (Manju), Tah. Dist. Akola.

VERSUS

RESPONDENT : State of Maharashtra,
through Police Station Officer,
Police Station, Borgaon (Manju),
Tah. and Dist. Akola

———————————————————————————————-
Mr. A. M. Ghare, Advocate for the appellant.
Mr. A. D. Sonak, A. P. P. for the respondent/State
———————————————————————————————-

CORAM : V. M. DESHPANDE, J.
DATE : MARCH 19, 2018.

ORAL JUDGMENT

By the present appeal, the appellant is challenging the

judgment and order of conviction passed by the learned 5 th Ad-hoc

Additional Sessions Judge, Nagpur dated 17.10.2005 in Sessions

Trial No. 184/2004. By the said judgment, the learned Judge of the

Court below convicted the appellant for the offence punishable under

Section 376(ii)/511 of the Indian Penal Code and directed that the

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appellant shall suffer rigorous imprisonment for three years and to

pay of fine of Rs.2,000/-, in default of payment of fine to undergo

further rigorous imprisonment for three months.

2. I have heard Shri A. M. Ghare, the learned counsel for

the appellant and Shri A. D. Sonak, the learned Additional Public

Prosecutor for the respondent-State.

3. PW5 Digambar Ravrale, PSI, at the relevant time was

posted at Police Station, Borgaon Manju, Dist. Akola. On 20.7.2004,

PW1 Shobha Deshmukh came to police station and lodged her oral

report (Exh.20). On the basis of said report, offence was registered

vide Crime No. 81/2004. The printed first information report

(Exh.21) was drawn for the offence punishable under Section 376 of

the Indian Penal Code. The first informant reported that she is

having one daughter, the victim. At the relevant time, her age was 5

years. On 19.7.2004, after taking her lunch, the victim went near

temple of Lord Shiva for playing. The first informant and her

mother-in-law were in the house. After some time, the victim came

to house in weeping condition and disclosed that when she,

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appellant and her friend Asha were playing, the appellant gave

Rs.1/- to Aasha for purchasing paper-mint. Asha left for the same.

Thereafter, the victim was taken inside the house of the appellant.

He directed the victim to sleep. Thereafter he removed his clothes so

also the clothes of the victim and tried to insert his private part inside

the private part of the victim. Therefore, the victim started weeping.

Since, the victim started weeping, the appellant drove her away from

his house. On getting such information, PW1 Shobha, the first

informant, verified the nicker of the victim to notice stains like

semen. With this allegation, the first information report was

registered against the appellant.

4. PW5 Digambar Ravrale thereafter went to the spot and

prepared the panchanama of occurrence, which is the house of the

appellant, in presence of panchas (Exh.24). He also recorded the

statements of witnesses. He caused arrest of the appellant. During

the investigation, he seized clothes of the victim as well as the

appellant, which were sent to the Chemical Analyser, vide C.A. Form

(Exh.47). After completion of other usual investigation, the charge-

sheet was filed in the Court of law.

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5. On committal, the learned Judge of the Court below,

framed Charge against the appellant for the offence punishable

under section 376 of the Indian Penal Code. The appellant denied

the charge and claimed for his trial. In order to bring home the guilt

of the appellant, the prosecution has examined in all five witnesses.

They are (1) Shobha Deshmukh (PW1), mother of the victim girl ;

(2) Ashok Khodke (PW2), the panch, who has proved spot

panchanama (Exh.24), also panch on seizure of the clothes of the

appellant (Exh.25) and seizure of bed sheet from the house of

appellant (Exh.26) ; (3) PW3 is the victim herself ; (4) Usha Khodke

(PW4), who has turned hostile ; and (PW5) Digambar Ravrale, PSI,

the Investigating Officer.

6. After appreciation of the prosecution case, the learned

Judge of the Court below found that the prosecution has not proved

that there was a rape committed by the appellant on victim,

however, on an appreciation, he noticed that there was an attempt

on the part of the appellant to commit rape on the victim and

therefore, though, he acquitted the appellant from the Charge of

commission of rape, he convicted the appellant for attempting to

commit rape on the victim. Hence, this appeal.

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7. Mr. Ghare, the learned counsel for the appellant

submitted that the appellant is falsely implicated in the crime. He

submitted that due to political rivalry, the appellant is being roped

in. He submitted that the prosecution has not explained about the

existence of semen stain found on the nicker of the victim as the

Chemical Analyser’s report Exh.41 shows that though there is semen

stain, the group is not determined and therefore, the appellant

cannot be convicted. For that purpose, he relied on a judgment of

the Hon’ble Apex Court in the case of Jafar Amir Khan .vs. State of

Maharashtra, reported in 2014 SCC Online Bom 2660.

8. Per contra, Mr. Sonak, the learned Additional Public

Prosecutor for the State would submit that the victim’s testimony

inspires confidence. According to him, once the Court noticed that

her evidence is found to be credit-worthy, then there is no reason to

depart from the verdict given by the learned Judge of the Court

below and prayed for dismissal of the appeal.

9. In the present case, the age of the victim is only 5 years.

Her age is not at all in dispute. It is also not in dispute that she is the

daughter of PW1 Shobha Deshmukh.

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10. It is the settled law that evidence of the victim is at par

with the evidence of an injured witness and if the Court, on an

appreciation of the evidence of the victim finds that the victim’s

evidence is trustworthy and it inspires confidence, then, it does not

require any corroboration while dealing with the cases for the

offence punishable under Section 376 of the Indian Penal Code.

11. Mr. Ghare, the learned counsel for the appellant has

submitted that an adverse inference is required to be drawn against

the prosecution for not examining Asha. I am afraid that his

submission can be entertained. Admittedly, it is not the version of

the victim that Asha was present inside the house when the attempt

to commit rape was made on her by the appellant. Even otherwise,

the prosecution case is not be judged from the quantity of

prosecution witnesses, but from the quality of evidence available in

the prosecution case.

12. The victim girl is examined by the prosecution. She has

described happening to her inside the house of the appellant. Not

only that, she has also stated the subsequent to the happening to her

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inside the house. She immediately went to her house in weeping

condition and disclosed the happening to her to her mother. This

particular aspect is duly corroborated by her mother PW1 Shobha.

Her evidence is found to be unshattered during her cross-

examination. There is no reason for this little girl to falsely implicate

the appellant, who at the relevant time was about 18 years of age.

13. PW1 Shobha’s evidence show that the victim came to

house in weeping condition and narrated the incident to her and

thereafter she noticed semen like stain on the nicker of the victim.

Disclosing the incident immediately by the victim to her mother is

relevant in view of Section 8 of the Indian Evidence Act. The said

subsequent conduct of the victim in narrating the fact to her mother

assumes importance. In her cross-examination, it is suggested that in

the morning hours on the day of the incident, there was a quarrel

between father of the appellant and the prosecution witness Shobha

and therefore, the appellant is falsely implicated. There is nothing

available on record to show or even to suggest that there was a

quarrel in between the father of the appellant and Shobha. No

reason is coming on record as to why there was a quarrel between

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them. Therefore, it is clear that the defence has no foundation and is

taken just for that.

14. Further, at the initial stage itself, it was disclosed in the

first information report by the first informant Shobha that she

noticed stain like semen on the nicker of the victim, which was

seized under seizure panchanama (Exh.22) and it was sent to the

Chemical Analyzer for its examination. The Chemical Analyzer’s

report (Exh.41) shows that the nicker of the victim was having

semen stain, though the group is inconclusive. The judgment relied

upon by the learned counsel for the appellant in Jafar Amir Khan’s

case cited supra, is of no use to him because in the said case, the High

Court noticed that the version of the prosecutrix, a married woman,

was not found to be trustworthy on various grounds and therefore,

inconclusiveness of semen on her undergarments was one of the

factor.

However, in the case at hand, the age of the victim is

only five years. Noticing of semen stain on the nicker of such a little

girl itself is an unnatural one. The first information report is

registered on 20.7.2004 and clothes of the victim are seized on very

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same day. It is to be noted that the village where the victim girl

resides along with her mother is 20 Kms away from the police

station. Noticing of semen stain in Chemical Analyzer’s report

corroborates and lends support to the recitals in the first information

report (Exh.26), which specifically recites about the mother noticing

semen stains on the nicker of the victim girl.

15. Once it is found that the version of the victim (PW3) has

remained intact insofar as the acts done on her by the appellant,

which is corroborated by the scientific evidence, in my view, this is

not a case wherein the exception can be taken to the impugned

judgment. Consequently, the appeal is required to be dismissed and

it is accordingly dismissed. The appellant shall surrender his bail

bonds immediately, else the learned Additional Sessions Judge,

Akola is hereby directed to take necessary steps for procuring

presence of the appellant to serve the remaining jail sentence.

JUDGE

Diwale

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