4-APPEAL-694-2015-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.694 OF 2015
MACCHINDRA BHIKU MOHITE )…APPELLANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Satyavrat Joshi, Appointed Advocate for the Appellant.
Mr.S.V.Gavand, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 1st MARCH 2018
JUDGMENT :
1 By this appeal, the appellant/accused is challenging
the judgment and order dated 2 nd August 2013 passed by the
learned Additional Sessions Judge, Baramati, in Sessions Case
No.34 of 2012 whereby he is convicted of offences punishable
under Sections 376(2)(f) and 506(II) of the Indian Penal Code.
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For the offence punishable under Section 376(2)(f) of the Indian
Penal Code, the appellant/accused is sentenced to suffer rigorous
imprisonment for 10 years apart from payment of fine of
Rs.1,000/- and default sentence of rigorous imprisonment for 15
days. For the offence punishable under Section 506(II) of the
Indian Penal Code, he is sentenced to suffer rigorous
imprisonment for 1 year apart from fine of Rs.500/- and default
sentence of rigorous imprisonment for 7 days.
2 Facts leading to the prosecution of the
appellant/accused can be summarized thus :
(a) The prosecutrix/PW1, at the time of the alleged incident,
was aged about 10 years and 9 months. She is resident of
Village Shelgaon, Vaidawadi in Indapur Taluka of Pune
District. She was residing with her father PW4 Taiappa, her
mother as well as brothers and sisters. She was taking
education in Zilla Parishad Primary School of the village.
She had passed 3rd Standard and was promoted to 4th
Standard. The incident in question took place after 8 p.m.
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of 3rd June 2011. PW4 Taiappa had asked the
prosecutrix/PW1 to take grains to the flour mill for grinding.
Initially, the prosecutrix/PW1 had not carried money
towards the charges for grinding, and therefore, she was
sent back by the appellant/accused, who was working in the
flour mill of DW1 Smt.Rohini Aarde. The prosecutrix/PW1
then again returned back to the flour mill by taking amount
of Rs.10/- from her father PW4 Taiappa. As the
prosecutrix/PW1 came to the flour mill all alone, the
appellant/accused shut the door of the flour mill and
committed rape on the prosecutrix/PW1 inside the flour
mill. The prosecutrix/PW1 then returned to her home
weeping. Upon being questioned by her father PW4
Taiappa, she disclosed the incident to him. After
committing rape on the prosecutrix/PW1, the
appellant/accused had threatened her that she would be
killed if the incident is disclosed to anybody else. Family
members of the prosecutrix/PW1 were frightened because of
this incident and the consequent threatening. Hence, in the
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night hours, they did not go to the police station. However,
on the next day, the prosecutrix/PW1 was taken to the
police station, where she lodged report Exhibit 13, which
has resulted in registration of Crime No.99 of 2011 for
offences punishable under Sections 376 and 506 of the
Indian Penal Code at Walchand Nagar Police Station against
the appellant/ accused.
(b) Routine investigation followed. The Investigator collected
Birth Certificate of the prosecutrix/PW1 from the Zilla
Parishad School. Statement of witnesses came to be
recorded. The prosecutrix/PW1 was got medically
examined from PW5 Dr.Suvarna Rathod, Chief Residential
Doctor at the Sassoon Hospital at Pune. Her Ossification test
was conducted by PW7 Dr.Ajay Taware, Assistant Professor
working with B.J.Medical College and Sassoon Hospital,
Pune. After completion of investigation, the
appellant/accused came to be charge-sheeted.
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(c) As the appellant/accused pleaded not guilty to the Charge
explained to him, the prosecution has examined in all eight
witnesses for proving the alleged offence. In rebuttal, the
appellant/accused has examined Smt.Rohini Aarde – owner
of the flour mill as DW1. The defence of the
appellant/accused is that of total denial.
(d) Upon hearing the parties, by the impugned judgment and
order, the appellant/accused came to be convicted of
offences punishable under Sections 376(2)(f) and 506(II) of
the Indian Penal Code and he came to be sentenced as
indicated in the opening paragraph of this judgment.
3 I have heard Mr.Satyavrat Joshi, the learned advocate
appointed to represent the appellant/accused at the cost of the
State at sufficient length of time. He argued that the
prosecutrix/PW1 is not proved to be below 12 years of age, and as
such, conviction and resultant sentence of 10 years rigorous
imprisonment is not proper. Evidence of PW7 Dr.Ajay Taware
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shows that the prosecutrix/PW1, at the relevant time, was 11 to
13 years of age and by adding margin of error of two years in the
Ossification test, the prosecutrix/PW1 can be said to be aged
about 15 years at the relevant time. The learned advocate further
argued that as on date, without remission, the appellant/accused
has undergone jail sentence of 7 years, and inclusive of remission
it could be of 8 years. Therefore, by reducing the sentence to the
already undergone, the appeal needs to be allowed partly, in the
event this court comes to the conclusion that offences alleged are
proved by the prosecution. The learned advocate further argued
that evidence of the prosecutrix/PW1 in respect of the incident is
not all relevant because the spot of the incident was surrounded
by houses and it was a populace locality. It is not probable that
such an incident could take place and that too, at the flour mill,
which is being visited by so many customers. The learned
advocate criticized the medical evidence by stating that injuries to
the private part of the prosecutrix/PW1 can be attributable to
other reasons also.
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4 As against this, the learned APP supported the
impugned judgment and order of conviction by placing reliance on
evidence of the prosecutrix/PW1, her father PW4 Taiappa as well
as the medical evidence coming from the mouth of PW5
Dr.Suvarna Rathod. The learned APP further argued that age of
the prosecutrix/PW1 is proved by the prosecution through
evidence of PW2 Umesh Satpute, in-charge Head Master of the
Zilla Parishad School.
5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including deposition of
witnesses and documentary evidence adduced by the prosecution.
The case in hand is that of sexual assault on a female child, who
at the relevant time, was aged about 10 years and 9 months. In
the matter of State of Punjab vs. Gurmit Singh1the Honourable
Apex Court has held that in cases of sexual offence, the court
should examine the broader probabilities of the case and should
not get swayed by minor contradictions or insignificant
discrepancies in the statement of the prosecutrix. If evidence of
1 AIR 1996 SC 1393
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the prosecutrix inspires confidence, then it should be relied upon
without seeking corroboration to her statement in material
particulars. In the matter of Aman Kumar and another vs. State
of Haryana 2, the Honourable Apex Court has held that a
prosecutrix complaining of having been a victim of the offence of
rape stands at a higher pedestal than an injured victim. In the
3,
matter of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat
the Honourable Apex Court has stated that a girl or a woman in
the tradition bound non-permissive society of India would be
extremely reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred. She would be
conscious of the danger of being ostracized by the society or being
looked down by the society including by her own family members,
relatives, friends and neighbours.
6 In the case in hand, the prosecutrix/PW1 is a school
going child having been promoted to 4 th Standard at the relevant
time. Evidence of PW2 Umesh Satpute, in-charge Head Master of
2 AIR 2004 SC 1497
3 AIR 1983 SC 753(1)
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Zilla Parishad School at Mali Vasti, Shelgaon, shows that the
prosecutrix/PW1 was admitted in the said school on 8th February
2011 and her date of birth is recorded in the school record as 25 th
August 2000. This date of birth came to be recorded as per the
previous School Leaving Certificate of the prosecutrix/PW1. PW2
Umesh Satpute has proved extract of General Register of the
School (Exhibit 18) as well as Birth Certificate of the
prosecutrix/PW1 issued by his school (Exhibit 16). These
documents reflect date of birth of the prosecutrix/PW1 as 25 th
August 2000. The prosecutrix/PW1 in her evidence as stated her
date of birth as 25th August 2000. Evidence of PW2 Umesh
Satpute in respect of date of birth of the prosecutrix/PW1 has
virtually gone unchallenged. There is no suggestion to this
witness that recorded date of birth of the prosecutrix/PW1 is
incorrect. Similarly, evidence of the prosecutrix/ PW1 regarding
her date of birth has remained unchallenged in the cross-
examination. Provisions of Section 35 of the Indian Evidence Act,
1872, makes it clear that if entry is made by a public servant in
the official book in discharge of his official duty, then such entry
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becomes relevant fact and is admissible in evidence. In the case in
hand, the entry in the record of the school, which is ante litem
motam in nature, reflects date of birth of the prosecutrix/PW1 as
25th August 2000 and the same is gaining corroboration from the
version of the prosecutrix/PW1. This evidence is not challenged
by the defence, and as such, I see no reason to disbelieve the
same. Thus, this evidence points out that on the date of the
incident, i.e. on 3rd June 2011, the prosecutrix/PW1 was aged
about 10 years and 9 months and as such, was certainly below 12
years of age.
7 The prosecutrix/PW1 hails from a rustic family and
her parents, as seen from her cross-examination, used to indulge
in hunting wild boar. Her mother used to sell toys and other
articles in villages. As seen from the cross-examination of the
prosecutrix/ PW1, on the day of the incident, her family members
were successful in hunting a wild board. In the evening of the day
of the incident, meat of the wild boar was being cooked and the
family members found the flour available in the house short of
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their requirement. That is how, as seen from the cross-
examination of the prosecutrix/PW1, she was sent for grinding
grains to the flour mill by PW4 Taiappa. In the backdrop of this
material found in the cross-examination of the prosecutrix/PW1,
in her chief-examination, the prosecutrix/PW1 has stated that at
about 8.00 p.m., as per the direction of her father PW4 Taiappa,
she took the food grains for grinding at the flour mill of a person
named Kharade, where the appellant/accused was working. She
deposed that the appellant/accused asked her whether she had
brought money towards the grinding charges. Then the
prosecutrix/PW1 returned back, got an amount of Rs.10/- from
her father and again came back to the flour mill. At that time, as
seen from her deposition, there was nobody else in the flour mill,
except the appellant/accused. Taking advantage of the situation,
as per version of the prosecutrix/PW1, the appellant/accused
closed the door of the flour mill and committed rape on her. He,
then, threatened the prosecutrix/PW1that if the incident is
disclosed, she would be killed. The prosecutrix/PW1 deposed that
while weeping she returned back to her house and narrated the
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incident to her father. Because of threatening of the
appellant/accused, in the night time, they did not go to the police
station, but on the next day, she went to police station Walchand
Nagar and lodged the report Exhibit 13.
8 Thus, evidence of the prosecutrix/PW1 and the
material elicited from her cross-examination unerringly points out
that there was need of flour for feeding the family members of the
prosecutrix/PW1 on the eve of cooking meat of the wild board,
and therefore, the prosecutrix/PW1 was constrained to go to the
flour mill which was being operated by the appellant/accused.
9 Cross-examination of the prosecutrix/PW1 reveals that
the flour mill was surrounded by several houses and at the back
side of the flour mill there was a grocery shop where people in the
locality used to talk with each other. With this, it was attempted
to show that the incident is improbable. However, evidence of the
prosecutrix/ PW1 shows that she was all alone when the incident
took place inside the flour mill, and that too, by closing the door
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thereof. The incident happened post 8.00 p.m. At such hours of
the night, there was no probability of other customers going to the
flour mill. The prosecutrix/PW1 was a female child of tender
years of age. It was not expected of her to make a hue and cry
when pitted against the fully grown adult. Moreover, cross-
examination of the prosecutrix/PW1 does not show that on the
relevant day, and particularly, at that hour of the day, there were
people in the vicinity of the flour mill. As such, on this count, the
evidence of the prosecutrix/PW1 cannot be disbelieved.
10 Evidence of PW4 Taiappa, who is father of the
prosecutrix/PW1, is fully corroborating the version of the
prosecution. This witness has proved former statement of the
prosecutrix/PW1, made to him soon after the incident, implicating
the appellant/accused in the crime in question. Evidence of this
witness shows that the prosecutrix/PW1 returned to her home
from the flour mill and she was weeping and in a frightened state
of mind at that time. Therefore, being a father, PW4 Taiappa
questioned the prosecutrix/PW1 and then she disclosed that the
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appellant/accused had committed rape on her. Cross-examination
of this witness reveals that he was knowing the appellant/accused
and that is but natural, because the incident took place in a small
village where people are generally acquainted with each other.
Cross-examination of this witness does not reflect anything which
would cast a shadow of doubt on his version. Thus, the evidence
of PW4 Taiappa, which is proving the former statement of the
prosecutrix/PW1 in respect of the incident, is fully corroborating
the version of the prosecutrix/ PW1, which is, infact, in tune with
the FIR lodged by her.
11 On the very next day of the incident, the prosecutrix/
PW1 was examined by PW5 Dr.Suvarna Rathod, Chief Resident
Doctor at the Sassoon General Hospital, Pune. This Medical
Officer has also proved the former statement of the
prosecutrix/PW1 which is to the effect that the appellant/accused
had committed rape on her when she had been to the flour mill
for grinding the grains. That apart, evidence of PW5 Dr.Suvarna
Rathod shows that the prosecutrix/PW1 was having two injuries
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on her right hand. One was a superficial contusion of size 3 x 2
cms., red in colour, and the other was a small laceration of size 1 x
0.2 cms. on her right forearm. From the cross-examination of the
prosecutrix/PW1, the defence has brought on record that in the
incident in question, injuries were caused to her right hand. This
version of the prosecutrix/PW1 coming on record from the cross-
examination is gaining further corroboration the medical
evidence.
12 Evidence of PW5 Dr.Suvarna Rathod shows that on
examination of the private part of the prosecutrix/PW1, she found
her labia majora inflamed and the hymen of the prosecutrix/PW1
was also found torn at multiple sides. With such finding, PW5
Dr.Suvarna Rathod gave opinion that there was penetrative sexual
vaginal intercourse with the prosecutrix/PW1.
13 Cross-examination of the prosecutrix/PW1 reflects that
she used to suffer fall while playing. From cross-examination of
PW5 Dr.Suvarna Rathod it is elicited by the defence that the
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hymen tear can be caused while jumping from a tree or a bicycle,
and similarly, it can be caused by insertion of a foreign object.
These suggestions lead us to nowhere because there are no
suggestions to the prosecutrix/PW1 that due to suffering a fall she
had suffered vaginal bleeding at any point of time. Similarly,
there is nothing on record to suggest that inflammation and
excoriation of labia majora of the prosecutrix/PW1 has nexus with
some other incident, than the incident deposed to by her. Thus,
the medical evidence also supports the version of the
prosecutrix/PW1. Contemporaneous record in the form of
medical report Exhibit 25 prepared by PW5 Dr.Suvarna Rathod is
consistent with the prosecution case.
14 The prosecutrix/PW1 was subjected to the Ossification
test by PW7 Dr.Ajay Taware , who deposed that her bony age was
found to be 11 to 13 years. However, this evidence pales into
insignificance, in the wake of primary evidence recording age of
the prosecutrix/PW1, which is reflecting her age as 10 years and 9
months.
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15 The defence has attempted to demonstrate that the
flour mill, where the incident took place, was being operated by
its owner – DW1 Smt.Rohini Aarde. In chief-examination, this
witness has stated that she used to operate the said flour mill from
8.00 a.m. to 9.00 p.m. and the appellant/accused has no concern
with the flour mill. However, in cross-examination, this witness
has admitted that on the day of the incident, she left the flour
mill at 6.30 p.m. for cooking food and at that time, the
appellant/accused was operating the said flour mill. Thus, even
the defence evidence indicates that at the time of the incident in
question, the appellant/accused was very much present at the spot
of the incident.
16 The cumulative effect of the foregoing discussion
makes it clear that the appellant/accused had committed forcible
sexual intercourse on the prosecutrix/PW1, who was below 12
years of age, and then he had criminally intimidated her. The
appellant/accused is awarded the minimum sentence prescribed
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for the proved offences. Hence, the appeal is devoid of merits.
Therefore, the order :
ORDER
The appeal is dismissed.
(A. M. BADAR, J.)
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