apeal53.14.J.odt 1
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 2
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 3
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 4
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.
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 5
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 6
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 7
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.
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 8
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 9
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.
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::
apeal53.14.J.odt 10
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
::: Uploaded on – 01/02/2018 02/02/2018 02:21:17 :::