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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.393 OF 2016
Mangesh s/o Damodhar Chandankhede,
Aged about 26 years, Occu: Labourer,
R/o Awandhi, Tah. Kamptee,
Dist. Nagpur. ……. APPELLANT
…V E R S U S…
The State of Maharashtra
through Police Station Officer,
Kamptee Police Station, Tah. Kamptee,
Dist. Nagpur. ……. RESPONDENT
——————————————————————————————-
Shri R.S. Renu, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
——————————————————————————————-
CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 15.09.2017
DATE OF PRONOUNCING THE JUDGMENT : 21.12.2017
1] The appellant is aggrieved by the judgment and order
dated 23.02.2015 in Special Child Protection Case 27/2013,
delivered by Additional Sessions Judge-1, Nagpur, by and under
which, the appellant is convicted of offence punishable under
section 376(2)(i) of the Indian Penal Code (“IPC” for short) and
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under section 3 read with section 4 of the Protection of Children
from Sexual Offences Act, 2012 (“POCSO” for short) and is
sentenced to suffer rigorous imprisonment for 10 years and to
payment of fine of Rs.15,000/-. The accused is further convicted of
offence punishable under section 448 of the IPC and is sentenced
to suffer rigorous imprisonment for three months and to payment
of fine of Rs.500/-.
2] Heard Shri R.S. Renu, the learned counsel for the
appellant and Shri N.B. Jawade, the learned Additional Public
Prosecutor for the respondent/State.
3] The submission of Shri Renu, the learned counsel for
the appellant (hereinafter referred to as “the accused”) is that the
evidence on record is marred by omissions partaking the nature of
contradictions and inter se inconsistencies and discrepancies in the
evidence of the prosecution witnesses. The First Information
Report is unreasonably delayed and no satisfactory explanation is
forthcoming to explain the delay, is the submission. The version of
the victim is inconsistent with the medical evidence on record and
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the prosecution version of the appellant having secured entry in
the house of the complainant through a window without grill, is
inherently improbable and must be disregarded since the panch
witness to the spot panchnama did not support the prosecution.
The defence of false implication due to a dispute between the
appellant and the husband of the complainant is more than
probabilised, is the submission.
4] Per contra, the learned Additional Public Prosecutor,
Shri N.B. Jawade, submits that the evidence on record is cogent,
reliable and confidence inspiring. The conviction of the appellant
is unexceptionable, in the teeth of the evidence on record, is the
submission. The presumption under section 29 of the POCSO Act
is activated and is not rebutted by the appellant, is the submission.
5] The complainant, who is the mother of the victim girl
then aged 12 years, was residing with her husband and victim at
Awandhi situated in Tahsil Kamptee, District Nagpur. The elder
daughter of the complainant was studying in school at Yerkheda
and was residing at the house of the complainant’s sister-in-law.
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The victim was then studying in 4th standard. The appellant is also
a resident of the same village and was residing in the vicinity.
6] The case of the prosecution is that the parents of the
victim left home in the morning for labour work on 03.03.2013
and the victim was alone in the house. The complainant returned
home at 7:30 p.m. and was told by the victim that at 10:30 a.m. or
thereabout, when the victim was about to have a bath, the
appellant entered the house through the window, offered her
Rs.50/- and asked the victim to allow him to have sexual
intercourse. The victim refused, the appellant spread a bed sheet
on the floor, made the victim lay down, removed her clothes,
undressed and forcibly committed sexual intercourse. The victim
narrated to her mother that the appellant pressed her mouth and
after ravishing her, warned her not to disclose the incident to
anyone. The complainant noticed blood stains on the knicker of
the victim. On the morning of the day after the incident, the
accused had a verbal altercation with the complainant and her
family members and threatened to cause them physical harm if a
report is lodged. In view of the threats, the report was not lodged
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on 04.03.2013. However, at 6:30 p.m. on 05.03.2013 the
complainant and the victim went to the Kamptee Police Station
and lodged a report (Exh.14). On the basis of the said report
Crime 38/2013 was registered and the wheels of investigation
were set in motion.
7] The accused was arrested on 05.03.2013. Both the
accused and the victim were medically examined. The medical
examination report of the accused is Exh.28 and that of the victim
is Exh.30 on the record of the trial Court. The Investigating Officer
seized the clothes of the victim from the complainant vide
panchnama Exh.10 and the clothes of the accused under
panchnama Exh.21. The statement of the victim was recorded in
presence of two Mahila Samiti members, the school certificate of
the victim was obtained (Exh.44) evidencing the date of birth to
be 23.05.2001. The victim was referred to the Mayo Hospital for
the age determination test and the report is Exh.57. The seized
articles were sent for chemical analysis and the reports are Exh.68
to 71. The statements of witnesses were recorded and the
culmination of investigation led to submission of the charge sheet
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in the Special Court. The learned Judge framed charge at Exh.2.
The accused abjured guilt and claimed to be tried. The defence is
of false implication. According to the accused there was a dispute
between the husband of the complainant and the accused
pertaining to brokerage charges and therefore, he is falsely
implicated.
8] The prosecution has conclusively proved that the
victim was then aged less than 12 years. The school certificate of
the victim (Exh.44), is admitted by the defence.
Notwithstanding the admission, the Medical Officer who
determined the age of the victim and issued certificate Exh.57 is
examined as P.W.9. The certificate Exh. 57 opines that the victim
was aged 12 years plus or minus one year. Complainant has also
deposed that the victim was aged 11 years and concededly was
studying in the 4th standard.
9] The prosecution relies on the evidence of the victim
P.W.2, her mother P.W.3 and sister-in-law of the complainant
P.W.4 substantially, if not entirely, to prove that the accused
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subjected the victim to forcibly intercourse. The victim has
deposed that on the day of the incident she was alone in the house
since her parents were away for the labour work. She was about to
take bath and had closed the door of the house from inside.
The accused entered the house through window and when the
prosecutrix went to the bed room to change her clothes, the
accused had concealed himself under the cot. The accused then
spread a bed sheet on the floor, made the victim to lay down,
removed her clothes including inner wear and after getting
undressed himself, ravished the victim. Attempt to shout was
foiled by gagging her mouth. The accused offered Rs.50/- and
threatened that if she disclosed the incident to any one she would
be physically harmed. She reported the incident to her mother in
the evening. Her mother confronted the accused the next day.
However, the accused reacted aggressively and on the third day
the mother of the victim accompanied by the victim went to the
Police Station and lodged the report. The mother of the victim
who lodged the report is examined as P.W.3 she corroborates the
testimony of the victim to the extent she deposes that the victim
disclosed the incident to her in the evening. P.W.3 states that the
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next day she confronted the accused and the response of the
accused was to abuse her and to threaten that if the incident is
reported to the Police severe consequences will have to be faced.
P.W.3 states that she lodged the report on the third day of the
incident which report is Exh.14 on the record of the trial Court.
Vimal, who is the sister-in-law of the mother of the victim is
examined as P.W.4. She states that on the next day of the incident
her brother informed her about the incident on phone and she
went to Awandhi on 05.03.2013 and the victim disclosed the
incident to her.
Shri Renu, the learned counsel for the accused
attacks the testimony of the three witnesses contending that the
said evidence is marred by material and significant omissions
which tantamount to contradictions. The evidence is rendered
suspect since the explanation for the delayed police report is not
satisfactory, is the submission of the learned counsel for the
accused. I have given anxious consideration to the testimony of
the victim P.W.2, her mother P.W.3 Jyoti Ashok Somkuwar and
P.W.4 Vimal Vinod Pantawne to ascertain whether the omissions
brought on record dent the credibility of the said witnesses. I am
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not persuaded to accept the submission of the learned counsel for
the accused that the evidence is rendered unreliable due to the
omissions. It is trite law that not every omission is per se fatal.
If the fact which is stated in the evidence is duly corroborated by
other evidence, the fact that the witness omitted to disclose the
fact in the previous statement may not be of significant relevance.
Illustratively, although the statement in the evidence of the victim
that the accused offered her Rs.50/- is an omission, her mother
whose report is recorded prior in point of time to the statement of
the victim does state in the report that it was narrated to her by
the victim that the accused offered her Rs.50/-. Similarly, the
omission brought on record in the evidence of the victim that her
mother went to the house of the accused to confront him and the
accused responded aggressively is not fatal since the said fact is
duly mentioned in the report lodged by the complainant. In so far
as the omissions which are brought on record in the
cross-examination of the complainant P.W.3, the F.I.R. is not
expected to be an encyclopedia and the fact that every relevant
fact or minute detail is not stated in the First Information Report
will not ipso facto dilute the probative value of the evidence of the
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informant. Ultimately the purpose of the First Information Report
is to set in motion the wheels of the criminal law and it would
suffice if the basic and core facts are stated therein. Similarly, the
omission which is brought on record in the evidence of P.W.4
which is that she was informed about the incident on telephone by
her brother does not touch the core aspect of the incident. What is
material is that she came to know of the incident and went to the
residence of the victim and was narrated the incident.
10] It is strenuously contended on behalf of the accused
that the prosecution version that the accused entered the house of
the victim through the open window is falsified by the evidence of
the victim that the window was closed and that the window had
glass panes. However, it is not even suggested to the victim that
the window was closed from inside which would render any entry
in the house improbable. P.W.1 who is examined as witness to the
spot panchnama did not support the prosecution. However, he
does state that on 06.03.2013 the police called him to the house of
the complainant, inspected the house and obtained his signature
on the panchnama. The witness admits the presence of another
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panch Pankaj Gotmare. The panchnama which is proved through
the Investigating Officer records that there was one window to the
house of the victim which had no grill. It is not suggested either to
the complainant or the victim or to the Investigating Officer that
the window did have a grill and therefore, entry through the
window is not possible. In the light of the evidence on record, I am
not inclined to agree with the learned counsel for the accused that
the prosecution story that the accused entered the house of the
victim through the window is suspect.
11] I am also not inclined to agree with the learned
counsel for the accused who contends that the delayed F.I.R.
renders the case of the prosecution vulnerable. The delay is
satisfactorily explained. The explanation is that the complainant
was threatened with dire consequences when she confronted the
accused on the next day of the incident. It is trite law, that there
cannot be a ritualistic cut and dried formula to determine the
implication of delay in lodging the F.I.R. The court is expected to
be alive to the sensitivity of the victim of sexual offences,
particularly in the context of the non-permissive Indian society
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which unfortunately view rape as a stigma and is more often and
than not likely to ostracize the victim insinuating and at times
bluntly blaming the victim for the loss of chastity.
12] Shri Renu, the learned counsel for the accused then
submits that the medical evidence on record is not consistent with,
and indeed falsifies, the version of the victim that she was
subjected to forcible intercourse. The victim was examined after
two days of the incident and although no injury was visible on the
external genitalia the hymen was found torn. Two linear abrasions
of brown colour caused within 48 to 72 hours were noticed.
The absence of injury on the male organ of the accused is again
not decisive.
It would be apposite to refer to the following
observations of the Apex Court in Vijay alias Chinee vs. State of
Madhya Pradesh (2010) 8 SCC 191:
25. In Gurcharan Singh v. State of Haryana
this Court has held that: (SCC p. 753, para 8) the
absence of injury or mark of violence on the private
part on the person of the prosecutrix is of no
consequence when the prosecutrix is minor and would
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apeal393.16.J.odt 13the prosecutrix. Further absence of violence or stiff
resistance in the present case may as well suggest
helpless surrender to the inevitable due to sheer
timidity. In any event, her consent would not take the
case out of the definition of rape.
It would also be relevant to reproduce the opinion
expressed by Modi in Medical Jurisprudence and Toxicology (22 nd
Edn.) at p. 495 which reads thus:
“Thus, to constitute the offence of rape, it is not
necessary that there should be complete penetration of
penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora
of the vulva or pudenda with or without emission of
semen or even an attempt at penetration is quite
sufficient for the purpose of the law. It is therefore quite
possible to commit legally, the offence of rape without
producing any injury to the genitals or leaving any
seminal stains. In such a case, the medical officer
should mention the negative facts in his report, but
should not give his opinion that no rape had been
committed. Rape is a crime and not a medical
condition. Rape is a legal term and not a diagnosis to
be made by the medical officer treating the victim. The
only statement that can be made by the medical officer
is to the effect whether there is evidence of recent sexual
activity. Whether the rape has occurred or not is a legal
conclusion, not a medical one.”
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Equally relevant is the opinion expressed in Parikh’s
Textbook of Medical Jurisprudence and Toxicology which defines
sexual intercourse:
“Sexual intercourse.–In law, this term is held to
mean the slightest degree of penetration of the vulva by
the penis with or without emission of semen. It is
therefore quite possible to commit legally the offence of
rape without producing any injury to the genitals or
leaving any seminal stains.”
13] The defence that the accused is falsely implicated due
to dispute regarding commission charges of the accused and the
father of the victim is not probabilised even on the touchstone of
preponderance of probabilities. It would be in a rare case, if at all,
that a father would use his minor daughter as a tool to wreak
vengeance on a person due to monetary dispute. In the teeth of
the evidence, the defence taken must deserve consideration only
for rejection. The appeal is without substance and is dismissed.
JUDGE
R.S. Belkhede/NSN
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