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Ganapati Yeshwant Channe vs The State Of Maharashtra on 6 July, 2018

(202)APEALNo.11352012(J)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1135 OF 2012

Ganpati Yeshwant Channe,
Age 75 yrs, Currently at Kolhapur
Central Prison, Kalamba, Kolhapur
– 400007, Convict No.C-4554. … Appellant
V/s.
The State of Maharashtra,
At the instance of Kadegaon Police
Station, District Sangli
(C.R.No.27/2008) … Respondent

…..

Mr.Ganesh Bhujbal, Advocate for the Appellant.

Mr.S.V.Gavand, APP for the Respondent/State.

….

CORAM : A.M.BADAR J.

DATED : 6th JULY 2018.

ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging

the Judgment and Order dated 23/10/2008 passed by the learned
Additional Sessions Judge, Sangli in Sessions Case No.121 of 2008
thereby convicting the appellant/accused of the offences
punishable under Sections 376(f) and 506 of the Indian Penal
Code. He came to be sentenced to suffer rigorous imprisonment
for ten years as well as rigorous imprisonment for two years on

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(202)APEALNo.11352012(J)

each count apart from further direction to pay compensation of
Rs.50,000/- to the victim girl and in default thereof to undergo
further rigorous imprisonment for one year.

2 Briefly stated prosecution case is thus :

(a) P.W.No.4 Bayabai is resident of Soholi in Kadegoan Taluka of
Sangli District. She has two daughters aged fifteen years and
nine years respectively and a son aged about six years. Her
husband died one year prior to the incident.

(b) The incident in question took place on 17/03/2008. Second
daughter of P.W.No.4 Bayabai is the victim of the said crime.
On that day, at about 2.15 p.m., she returned from her school
during recess for taking curry. While proceeding back to the
school, the appellant/accused allured her on the pretext of
giving chocolate to her and took her in the tin shed. There he
committed rape on the victim girl.

(c) On return from the school, the victim girl/P.W.No.5 reported
about bleeding from her vagina to her mother P.W.No.4
Bayabai. P.W.No.4 Bayabai presumed it to be of menstrual
cycle. On 21/03/2008, she sought opinion of P.W.No.8 Jyoti
Jadhav, Health Assistant. This witness informed P.W.No.4
Bayabai that such a small child cannot attain menarche and

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somebody else might have done something to the victim
girl/P.W.No.5.

(d) Upon being asked by her P.W.No.4 Bayabai, the victim
girl/P.W.No.5 disclosed her mother the incident of
commission of rape on her by the appellant/accused. She
then disclosed the said incident to her cousin Arvind Mohite,
who happened to be Sarpanch of the village. Under his
guidance, P.W.No.4 Bayabai then lodged report (Exhibit 13)
with Police Station, Kadegaon, which resulted in registration
of Crime No.27 of 2008 for the offences punishable under
Sections 376(f) and 506 of the Indian Penal Code against the
appellant/accused. During the course of investigation, the
spot was inspected in presence of P.W.No.1 Abaso Jadhav and
spot panchanama (Exhibit 7) came to be prepared. Map of
the spot (Exhibit 26) was drawn by P.W.No.9 Sayaji Gaikwad,
Naib Tahsildar. Clothes of the P.W.No.5/victim girl came to
be seized on 22/03/2008 vide seizure panchanama (Exhibit

9) in presence of P.W.No.2 Baban Mohite. On that day itself,
in presence of P.W.No.3 Prakash Mohite, panch witness,
blood stained full pant, half pant and underwear was also
came to be seized by seizure panchanama (Exhibit 11). The
victim girl was referred for medical examination and she
came to be examined by P.W.No.7 Dr.Shashikant Bhise,
Medical Officer of Rural Hospital, Chinchani. On completion

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of investigation, the appellant/accused came to be charge-
sheeted.

(e) In order to bring home the guilt to the appellant/accused, the
prosecution has examined in all thirteen witnesses and also
placed reliance on the documentary evidence.

(f) Defence of the appellant/accused was that of total denial.

(g) Upon hearing the parties, the learned trial Court by the
impugned Judgment and Order was pleased to convict the
appellant/accused of the offences punishable under Sections
376(f) and 506 of the IPC. He came to be sentenced as
indicated in opening paragraph of this Judgment.

3 I heard Shri.Ganesh Bhujbal, the learned Advocate
appointed to represent the appellant/accused at the cost of the
State. He argued that there is inordinate delay in lodging the FIR.
Even the victim girl has not disclosed the alleged incident to her
mother immediately. She routinely attended her school indicating
that the FIR is false. The appellant/accused is, therefore, entitled
for benefit of doubt.

4 The learned Additional Public Prosecutor supported
the impugned Judgment and Order of conviction and resultant
sentence.

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5 I have carefully considered the submissions so

advanced and also perused Record and Proceedings.

6 Considering the nature of case, its fate hinges on the
testimony of the victim girl (P.W.No.5). Principles of appreciation
of evidence in rape cases can be found in the Judgment of the
Honourable Apex Court in the matter of State of Punjab vs.
Gurmeet Singh1 and the relevant portion of the said Judgment
reads thus :

“It is an irony that while we are celebrating women’s
rights in all spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of human
dignity of the victims of sex crimes. We must remember
that a rapist not only violates the victim’s privacy and
personal integrity, but inevitably causes serious
psychological as well as physical harm in the process.

Rape is not merely a physical assault – it is often
destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a
rapist degrades the very soul of the helpless female. The
Courts, therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must deal
with such cases with utmost sensitivity. The Courts should
examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix, which
1 1996 Cr.L.J. 172.

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are not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix
inspires confidence, it must be relied upon without
seeking corroboration of her statement in material
particulars. If for some reason the Court finds it difficult
to place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony,
short of corroboration required in the case of an
accomplice. The testimony of the prosecutrix must be
appreciated in the background of the entire case and the
trial court must be alive to its responsibility and be
sensitive while dealing with cases involving sexual

molestations.”

7 At the outset, let us examine evidence of the victim
girl/P.W.No.5 in order to ascertain whether she is a witness of
truth and her testimony can form the sole basis for convicting the
appellant/accused. The victim girl, at the relevant time, was taking
education in the Primary Marathi School. The prosecution has
placed on record evidence regarding her age which is otherwise
not disputed by the defence. The certificate issued by the
Headmaster of Zilla Parishad, Primary School, Soholi (Exhibit 39)
shows that the victim girl/P.W.No.5 was taking education in 3 rd
Std. in the year 2007-08 and her date of birth is 26/12/1996. It is
thus clear that on the date of the incident i.e. on 17/03/2008, the
P.W.No.5/victim girl was aged about 11 years.

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8 It has come in evidence of P.W.No.5/victim girl that on

the day of the incident, in recess she returned to her house for
taking curry for having food. She was returning back to her school
carrying curry in the kettle. At that time, the appellant/accused
offered chocolate to her and took her in the shed where he has
committed rape on her. P.W.No.5/victim girl further deposed that
after commission of rape on her, the appellant/accused threatened
her that if she disclosed the incident to anybody else, he will kill
her. She, therefore, went back to her school and after school
hours returned back to her house. Evidence of the
P.W.No.5/victim girl shows that she did not disclose the incident
to anybody because of threat given by the appellant/accused.

9 Despite searching cross-examination of the
P.W.No.5/victim girl, nothing could be brought on record by the
defence to disbelieve her version in respect of the incident of
commission of rape on her by the appellant/accused. The victim
girl, it is seen from her evidence that, she maintained her version
during the course of her cross-examination.

10 Now, let us see whether evidence of the victim girl is
gaining corroboration by other evidence adduced by the
prosecution. The most important piece of corroborative evidence
is that of P.W.No.7 Dr.Shashikant Bhise, Medical Officer, Rural
Hospital, Chinchani. As per version of this witness, on

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22/03/2008, he examined the P.W.No.5/victim girl and noticed
the condition of her private part as under :

        *        Tenderness on the perineum
* Vulval eedema +
* Reddish
* Hymenal tear +, oedemat
* Tenderness ++
* Bleeds on tough
* Admit one finger, tenderness ++
* Swab collected before palpation.

11 Evidence of this witness is further corroborated by

contemporaneous document i.e. medical certificate (Exhibit 20)
issued by him. Cross-examination of this Medical Officer does not
cast shadow of doubt on his version in the chief-examination. This
medical evidence on record goes to show that even after the delay
of four days from the incident, there was swelling to the vagina of
the victim girl apart from presence of hymenal tear and tenderness
on the perineum. Her hymen was bleeding on touch. All these
facts do indicate that the P.W.No.5/victim girl was subjected to
forceful sexual intercourse. Thus, testimony of the P.W.No.5
victim girl is gaining full corroboration from the medical evidence
adduced by the prosecution.

12 Evidence of P.W.No.4 Bayabai, who is mother of the
victim girl, goes to show that she presumed vaginal bleeding of the

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victim girl as signs of menstrual cycle, but she sought opinion from
P.W.No.8 Jyoti Jadhav, Health Assistant. Evidence of P.W.No.8
Jyoti Jadhav goes to show that she informed P.W.No.4 Bayabai
that vaginal bleeding to such a teen aged child cannot be
attributable to the menstrual cycle and P.W.No.4 Bayabai should
visit the hospital. P.W.No.4 Bayabai has stated before the Court
that then she made enquiry from her daughter and then her
daughter P.W.No.5/victim girl informed her about commission of
rape on her by the appellant/accused. P.W.No.4 Bayabai then
sought help of P.W.No.10 Arvind Mohite, Sarpanch of the village
and evidence of P.W.No.10 Arvind Mohite is fully corroborating
the version of P.W.No.4 Bayabai in this regard. That is how, the
FIR in question came to be lodged. All these circumstances
brought on record reflect that, in fact, there was no delay in
lodging the FIR. Under the spell of threat by the
appellant/accused, the victim female child did not disclose the
incident to her mother. Her father was not alive. Her mother
presumed vaginal bleeding of the victim girl as a sign of attaining
puberty and upon being advised by P.W.No.8 Jyoti Jadhav, Health
Assistant, she had chosen to interrogate her daughter
P.W.No.5/victim girl. Then actual incident came to the notice of
P.W.No.4 Bayabai - mother of the victim girl. Hence, the delay in
lodging the FIR gets explained from this chain of events. Even
otherwise, with such circumstances on record, it cannot be held
that such delay is in any manner fatal to the prosecution case.

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13 With this evidence, the prosecution has successfully

established the guilt of the appellant/accused for the offences
punishable under Sections 376(f) and 506 of the Indian Penal
Code. No infirmity can be found with the punishment inflicted on
the appellant/accused. In the result, the appeal fails.

14. The appeal is, therefore, dismissed.

(A.M.BADAR J.)

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