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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.51 OF 2017
Chhotelal Kandhari Pajapati,
Aged about 55 years, Occ. Labour,
r/o. Anand Nagar, Wardha, Tq.
and District. Wardha. ………. APPELLANT
// VERSUS //
The State of Maharashtra,
Through Police Station Officer,
Police Station, Wardha City,
Tq. and Distt. Wardha. ………. RESPONDENT
Mr.R.P.Thote, Advocate (appointed) for the Appellant.
Mr.A.M.Deshpande, A.P.P. for the Respondent/State.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
DATED : 1st November, 2017.
ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. This is an appeal against the Judgment of
conviction by Sessions Court, Wardha in Special Case
No.54 of 2014, dt.27.6.2016, by which the appellant is
convicted for committing an offence under Section 5(n)
punishable under Section 6 of Protection of Children from
the Sexual Offences Act, 2012 and sentenced to suffer
rigorous imprisonment for life and to pay a fine of
Rs.10,000/-, in default to suffer rigorous imprisonment for
six months. The appellant is also convicted for the offence
punishable under Section 506 of the Indian Penal Code and
sentenced to suffer rigorous imprisonment for two years
and to pay a fine of Rs.2,000/-, in default to suffer rigorous
imprisonment for two months.
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2. The case of prosecution, in short, is as under :
Appellant is step-father of victim. The victim was
aged about 15 years. She was studying in 7th Std at the
time of incident in the year 2013. She had started her
menstrual periods. She told her friend Shubhangi about
the same. She also told about this fact to appellant/her
step-father. Her mother died when she was 1½ years old.
She was the only person, residing with her step-father in a
rented house. When she disclosed to the appellant that
she has started receiving menstrual periods, the appellant
scolded her saying that her clothes were stained with blood
because she might have slept with somebody. After 2-3
days, the appellant started sleeping with her. He used to
undress her, threatening her and did sexual intercourse
with her. He continued sexual intercourse with the victim
till 25.2.2014.
3. The victim was not feeling well. Therefore, she
informed Lata Ramesh Ramteke (PW-2), who was her
neighbour. Lata Ramteke took her to Dr. Mohd. Shoeb
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Sheikh (PW-4). Dr.Shoeb examined the victim and found
that she was pregnant. On inquiry, she told him that her
step-father used to do sexual intercourse with her
continuously since November, 2013 and therefore, she
became pregnant. Lata Ramteke also inquired with her.
She disclosed the same fact to her.
4. On 27.2.2014, the victim along with Lata
Ramteke (PW-2) went to Police Station, Wardha and lodged
report. Crime was registered for the offences punishable
under Sections 376(f)(i)(k)(n), 323, 504, and 506 of the
Indian Penal Code and Sections 3 and 4 of the Protection
of Children from the Sexual Offences Act, 2012
(hereinafter referred to as “the POSCO Act”).
5. Investigating Officer Murlidhar Pandurang
Burade sent the victim for medical examination.
Dr.Krushna Shende, Medical Officer examined her and
issued Medico-legal Certificate. He observed the victim
carrying pregnancy. Investigating Officer Murlidhar
Burade arrested the accused, seized his clothes and sent
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him for medical examination. Investigating Officer
Prabhakar Babare (PW-8) prepared spot panchanamam
etc. Victim girl was sent to remand home. Seized property
was sent to the Chemical Analyser, Nagpur. Charge sheet
was filed against the accused.
6. With the permission of Court, Police Inspector
Murlidhar Burade obtained custody of the appellant. He
requested the Chemical Analyser, Nagpur to supply DNA
kit. After getting custody of the appellant, blood sample
was taken by the Medical Officer and it was seized by
Investigating Officer Murlidhar Burade. He has requested
Medical Officer at Nagpur to collect blood sample of newly
born child and victim. DNA kits were sent to Regional
Forensic Scientific Laboratory (‘RFSL’), Nagpur. Assistant
Chemical Analyser Ms Neha Bhale examined the blood
samples and came to the conclusion that the appellant is
father of the newly born child.
7. Charge was framed by the trial Court at Exh.17.
Same was read over and explained to the appellant, to
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which he pleaded not guilty. It appears from the cross-
examination and suggestions given to the witnesses that
defence of the appellant is of total denial.
8. Prosecution has examined in all total ten
witnesses. They are :
1) Victim (PW-1) (Exh.28).
2) Lata Ramesh Ramteke (PW-2) (Exh.32).
3) Avdhut Damodhar Martode (PW-3) (Exh.35).
4) Dr. Mohd. Shoeb Sheikh (PW-4) (Exh.37).
5) Jivak Raju Dhekle (PW-5) (Exh.39).
6) Deorao Wamanrao Ingole (PW-6) (Exh.43).
7) Murlidhar Pandurang Burade, I.O. (PW-7)
(Exh.57).
8) Prabhakar Mangaldas Babare, I.O. (PW-8)
(Exh.94).
9) Neha Pravin Bhale, Assistant C.A. (PW-9)
(Exh.99).
10) Dr.Krushna M. Shende, Medical Officer
(PW-10) (Exh.101).
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9. Case of prosecution is solely based on the
evidence of victim, DNA test report and other medical
evidence adduced by Dr.Shoeb (PW-4), Assistant Chemical
Analyser Ms Neha Bhale (PW-9) and Medical Officer
Dr.Krushna Shende (PW-10).
10. Now it is a settled law that, in a case of rape, the
sole testimony of victim can be relied on by the Court. No
further corroboration is necessary. If the testimony of
victim is found to be truthful and reliable, conviction can
be based only on the basis of sole testimony of victim.
Further corroboration is necessary if there is some
discrepancy found in the evidence of victim. Hon’ble
Supreme Court in the case of State of Himachal Pradesh
vs. Asha Ram reported in AIR 2006 SC 381 has observed
as under :
“Conviction for rape can be founded on the
testimony of the prosecutrix alone unless there
are compelling reasons for seeking
corroboration. The evidence of a prosecutrix is::: Uploaded on – 06/11/2017 07/11/2017 01:07:14 :::
8 apeal51.17.odtmore reliable than that of an injured witness.
The testimony of the victim of sexual assault is
vital unless there are compelling reasons which
necessitate looking for corroboration of her
statement, the Courts should find no difficulty in
acting on the testimony of a victim of sexual
assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable. Corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is
not a requirement of law but a guidance of
prudence under given circumstances. The
evidence of the prosecutrix is more reliable than
that of an injured witness. Even minor
contradictions or insignificant discrepancies in
the statement of the prosecutrix should not be a
ground for throwing out an otherwise reliable
prosecution case.”
11. Hon’ble Supreme Court in the case of
Rameshwar vs. State of Rajasthan, (1952) 3 SCR 377
(AIR 1952 SC 54) has declared that “corroboration is not
the sine qua non for a conviction in a rape case. The
utterance of the Court in Rameshwar may be replayed,
across the time-gap of three decades which have whistled
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past, in the inimitable voice of Vivian Bose, J, who spoke
for the Court –
“The rule, which according to the cases has hardened into
one of law, is not that corroboration is essential before
there can be a conviction but that the necessity of
corroboration, as a matter of prudence, except where the
circumstances make it safe to dispense with it, must be
present to the mind of the Judge… … … … The only rule of
law is that this rule of prudence must be present to the
mind of the Judge or the Jury as the case may be and be
understood and appreciated by him or them. There is no
rule of practice that there must, in every case, be
corroboration before a conviction can be allowed to stand.”
12. Keeping in mind the above observations of the
Supreme Court, we have to decide the present appeal as to
whether the evidence adduced by prosecution is sufficient
for conviction of the appellant. PW-1/victim was a minor
girl, aged about 15 years residing with her step-father. She
was studying in 7th Std. at the time of incident in the year
2013. She had started her menstrual period. She disclosed
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her friend Shubhangi about the same. She also informed to
her father/appellant. Appellant/step father is the only
person residing with her in a tenanted room.
13. Mother of victim died in her early age when she
was aged about 1 ½ years. Instead of listening properly,
appellant scolded the victim saying that she might have
slept with any other person and therefore, her clothes were
stained with blood. After 2-3 days, appellant started
sleeping with her in the night. He used to undress her and
used to commit sexual intercourse with her. As per her
evidence, appellant used to threaten her and therefore, she
could not dare to disclose to anybody. She was helpless.
She was in the custody of the appellant and therefore,
could not disclose to her neighbour also. But, when nature
compelled her to disclose since she started vomiting and
was not feeling well, she disclosed to her neighbour Lata
Ramteke (PW-2).
14. Lata Ramteke took the victim to Dr.Shoeb (PW-
4). Dr. Shoeb examined the victim and found that she was
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pregnant. He inquired with her. She disclosed him that the
appellant/her step-father is responsible for her pregnancy.
She also disclosed the same fact to Lata Ramteke (PW-2)
saying that, from the month of November, 2013, appellant
used to do sexual intercourse with her continuously in
every night and therefore, she became pregnant.
15. Nothing is brought on record in the cross-
examination of victim (PW-1) to disbelieve her evidence.
Her evidence is well supported by the evidence of Lata
Ramteke (PW-2). She has stated in her evidence that victim
came to her and told that she was not feeling well.
Therefore, she took her to Dr.Shoeb.
16. Dr.Shoeb (PW-4) has stated in his evidence that
he examined the victim brought by Lata Ramteke (PW-2).
He found that she was pregnant. He inquired with the
victim. She told that she became pregnant due to sexual
intercourse by the appellant. He advised her further
treatment in the Government hospital. After two days i.e.
on 27th February, 2014, the victim along with Lata
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Ramteke (PW-2) went to Police Station and lodged report
(Exh.29). She was medically examined by Medical Officer
Dr.Krushna Shende (PW-10). He issued Medico-Legal
Certificate (Exh.103). He found that the victim was
carrying pregnancy.
17. The evidence of victim is well supported by the
medical evidence. DNA report was submitted by Ms Neha
Bhale (PW-9). DNA reports are at Exh. Nos.84 and 85. As
per DNA report (Exh.85),
“Interpretation : 1) For all the 15 different genetic
systems analyzed with PCR, putative father
Chotelal Kandharilal Prajapati matched obligate
paternal alleles present in B/o. Sonali Chotelal
Prajapati at all 15 STR Loci.
2) Similarly, for all the 15 different genetic
systems analyzed with PCR, mother Sonali
Chotelal Prajapati matched obligate maternal
alleles present in B/o Sonali Chotelal Prajapati at
all 15 STR Loci”.
“Opinion :- 1) Chotelal Kandharilal Prajapati and
Sonali Chotelal Prajapati are concluded to be the
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biological parents of B/o. Sonali Chotelal
Prajapati.”
18. It is clear from the evidence of victim and the
medical evidence and DNA report (Exh.85) that appellant
did sexual intercourse with the victim and therefore, she
remained pregnant and delivered a child on 1.6.2014.
19. Whether victim was a child as defined under
Section 2(d) of the Protection of Children from Sexual
Offences Act, 2012 is to be seen. Victim has stated her age
in her report as 15 years. When she was examined after
two years before the Court, she has stated her age as 17
years. Investigating Officer Murlidhar Burade has proved
Bona fide Certificate of School of victim (Exh.61). As per
the Bona fide Certificate (Exh.61), her date of birth is 3rd
September, 1998. When the question was asked to the
accused/appellant under Section 313 of the Code of
Criminal Procedure, the appellant himself has stated the
date of birth of victim as ‘3rd September, 1998’. Incident
took place in the month of November, 2013. Therefore, it is
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clear that the victim was aged about 15 years at the time of
incident. Therefore, she was a child as defined under
Section 2(d) of the POSCO Act.
20. Heard Mr.R.P.Thote, learned Counsel for the
appellant. He has submitted that the blood samples of
victim and the newly born child were seized by the
Investigating Officer as per seizure panchanama (Exh.80).
But prosecution has not examined any of the panch
witnesses to prove seizure panchanama (Exh.80). It is
pertinent to note that no such suggestion of denial was
given to the Investigating Officer Murlidhar Burade during
the course of cross-examination. It appears from the cross-
examination that there is no denial of seizure of blood
which was seized as per seizure panchanama (Exh.80) and
therefore, the argument advanced by the learned Counsel
that panch witnesses are not examined cannot be
considered at this stage. Moreover, there is no reason to
disbelieve evidence of I.O. Shri Burade
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21. Learned Counsel for the appellant raised
another ground that there is delay in lodging report. It is
pertinent to note that victim was a helpless child who was
alone residing with the appellant. She was threatened by
the appellant. In such circumstances, it cannot be expected
from such a minor child to come forward and go to the
Police Station and lodge report. She might not have
disclosed to anybody, but nature compelled her to disclose
because she was not feeling well and she was vomiting and
therefore, she disclosed to Lata Ramteke (PW-2), who then
took the victim to Dr.Shoeb and thereafter to Police
Station. Therefore, delay, as pointed out, is not material in
this situation.
22. Hon’ble Supreme Court in the case of Tulshidas
Kanolkar .vs. State of Goa reported in AIR 2004 SC 978
has observed that ” Delay in lodging first information
report cannot be used as a ritualistic formula for
discarding prosecution case and doubting its authenticity.
It only puts the Court on guard to search for and consider
if any explanation has been offered for the delay. Once it is
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offered, the Court is to only see whether it is satisfactory
or not. In a case if the prosecution fails to satisfactory
explain the delay and there is possibility of embelishment
or exaggeration in the prosecution version on account of
such delay, it is a relevant factor. On the other hand
satisfactory explanation of the delay is weighty enough to
reject the plea of false implication or vulnerability of
prosecution case. In the present case, the victim was
totally unaware of the catastrophe which had befallen to
her. That being so, the mere delay in lodging of first
information report does not in any way render prosecution
version brittle.”
23. Reliance is also placed on the case of Siddharth
Dagadu Sonde .vs. State of Maharashtra reported in
2017 ALLMR (Cri) 4192. In the said case, rape was
committed on a minor female child by her paternal uncle
while she was in his custody for a period of one year. There
was a delay of five days caused in lodging the First
Information Report. It was held that the testimony of
mother of prosecutrix coupled with the evidence of her
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mother-in-law gives satisfactory explanation of delay and
hence, case of prosecution does not suffer from any delay
in lodging the F.I.R.
24. Mr.A.M.Deshpande, learned Additional Public
Prosecutor has strongly supported the Judgment of trial
Court. He has submitted that the evidence of victim is well
supported by DNA Reports Exh. Nos. 84 and 85. She was
minor at the time of incident, aged about 15 years.
Learned trial Court has rightly convicted the appellant.
Hence, the appeal is liable to be dismissed.
25. Prosecution has proved beyond reasonable
doubt that the victim aged about 15 years was the only
person residing with the appellant. Appellant is step-father
of the victim. When appellant noticed that she has matured
physically, he started sexual intercourse with her.
Therefore, offence under Section 5 of the POSCO Act is
proved by the prosecution without any reasonable doubt
and therefore, he is rightly convicted u/s.6 of the said Act.
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26. At this stage, the learned Counsel for the
appellant has submitted that punishment of the appellant
be reduced as there is discretion with the Court as per the
provisions of Section 6 of the POSCO Act.
27. Learned A.P.P. Mr.Deshpande has strongly
opposed to show leniency and submitted that the offence of
sexual assault is committed by the appellant/step-father on
helpless victim. She could not disclose the crime because
of fear of the appellant. She delivered a child on 1.6.2014.
He has destroyed the whole life of the victim. Hence, the
appellant should not be shown any leniency.
28. The case in hand is of a serious nature. When a
protector becomes perpetrator and the victim, who is a
minor girl solely dependent upon him is ravished by such a
person, the victim is left with no other option but to
surrender mutely. Appellant, who was supposed to have
protected the victim and was expected to have brought her
up as a good child, provide eduction and search a suitable
match as a life partner for her, has himself established
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sexual relations with his daughter under a wrong belief
that she might be indulging in sexual relations with some
other person and completely destroyed her life. The mental
agony and pain the victim could have gone through each
time when the appellant abused her physically, in the
circumstances the victim finding herself alone and
helpless, without being in a position to disclose the same to
anyone, does not entitle the appellant for any leniency.
Leniency shown in such cases by the Courts would not only
defeat the very purpose of the POSCO Act, but would
encourage a criminal mind to commit such offences
further. As per Section 6 of the POSCO Act “whoever,
commits aggravated penetrative sexual assault, shall be
punished with rigorous imprisonment for a term which
shall not be less than ten years but which may extend to
imprisonment for life and shall also be liable to fine.”
29. Learned trial Court, looking to the seriousness of
offence, has recorded it’s correct findings and has rightly
convicted the appellant for the offence punishable under
Section 6 of the POSCO Act and under Section 506 of the
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Indian Penal Code. Hence, we do no find any merit in the
appeal. Therefore, we pass the following order.
// ORDER //
The appeal is dismissed.
Fees of the learned Counsel for the
appellant is quantified at Rs.5,000/-.
Record and proceedings be sent back to
the trial Court.
JUDGE JUDGE
[jaiswal]
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