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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.70 OF 2012
Moreshwar Wasudeo Rakhade,
Aged about 25 years and resident of
Dahegaon, Taluka Mohadi,
District Bhandara. ……. APPELLANT
…V E R S U S…
State of Maharashtra through its
Police Station Officer, Mohadi
District Bhandara. ……. RESPONDENT
——————————————————————————————-
Shri A.R. Kaplay, Advocate for Appellant.
Ms. T.H. Udeshi, APP for Respondent-State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 11.12.2017
DATE OF PRONOUNCING THE JUDGMENT : 31.01.2018
JUDGMENT :
1] The appellant is assailing the judgment and order
dated 23.01.2012 rendered by the Sessions Judge, Bhandara in
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Sessions Trial 15/2010, by and under which, the
appellant-accused is convicted for offence punishable under
Section 376 read with Section 511 of the Indian Penal Code (‘IPC’
for short) and is sentenced to suffer rigorous imprisonment for one
year and to payment of fine of Rs.1000/-. The accused is acquitted
of offence punishable under Section 354 and 376 of the IPC.
2] Heard Shri A.R. Kaplay, the learned Counsel for the
appellant and Ms. T.H. Udeshi, the learned Additional Public
Prosecutor for the respondent-State.
3] The genesis of the prosecution lies in oral report
dated 24.10.2009 lodged by the victim (P.W.1) at the Mohadi
Police Station, the gist of which is thus:
The victim, who was then aged 10 years is a student
of the 5th standard and is residing at Dahegaon with her family.
The incident occurred on 24.10.2009. The victim was at home in
view of the Diwali vacation. The mother of the victim
Smt. Chandrakalabai left home at 09:00 a.m. to harvest rise.
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The victim and her father Dhondu (P.W.2) were at home.
The accused is residing in the neighbourhood. The niece of the
accused one Shradha, a resident of Bori, was visiting the accused.
The victim and Shradha were playing near the house. The father
of the accused Wasudo was proceeding to his field in a
bullock-cart. The victim and Shradha boarded the bullock-cart and
got down near the house of the victim. The father of the accused
Wasudeo asked the victim to carry Shradha’s tiffin from his house
to the house of the victim and to serve Shradha lunch. The victim
went to the house of the accused alone to fetch the tiffin.
The accused was alone, when the victim was asked for Shradha’s
tiffin the accused held her near the waist, took her in another
room, made her lie on the ground, removed the knicker of the
victim and lowered his lower and knicker till knees. The accused
then slept naked on the person of the victim, the victim started
weeping loudly and told the accused that she would disclose the
incident. The accused then got up from her person. The accused
had touched his penis to the vagina, which however, did not
penetrate in the vagina. The victim suffered from pain in vagina.
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4] The Mohadi Police Station registered offence
punishable under Section 354, 376 read with Section 511 of the
IPC on the basis of the said oral report Exh.14. The printed F.I.R.
is Exh.18 on the record of the trial court. The victim was medically
examined, the statements of witnesses were recorded, the accused
was medically examined on 25.10.2009. The completion of
investigation led to submission of the charge-sheet in the court of
Judicial Magistrate First Class, Mohadi who committed the
proceedings to the Sessions Court. The learned Sessions Judge
framed charge (Exh.10) under Section 354, 376 read with Section
511 of the IPC. The accused abjured guilt and claimed to be tried.
The defence of the accused is of false implication. The defence is
that the victim was asking the accused to put on the T.V.
The accused who was tired, slapped the prosecutrix who went to
her house weeping.
5] The age of the victim is not seriously challenged.
Before I consider the ocular evidence on record, it would be
apposite to analyze the medical evidence. The victim was
medically examined by Dr. Varsha Sambhare (P.W.9)
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on 24.10.2009. She has deposed that the victim sustained an
abrasion injury on right labia majora of size 1 cm x 5 cm, the
duration of which was within six hours. The hymen was ruptured
and introitus was congested. Both labia majora were swollen.
P.W.9 has proved the medical examination certificate Exh.31.
In the cross-examination, it is elicited that P.W.9 has
mentioned in the certificate Exh.31 that no definite opinion about
sexual intercourse could be given. Several situations, in which the
hymen may be ruptured, are brought on record. It is extracted that
in case of rape, it is expected to give opinion as regards labia
minora and to mention whether the labia minora is red or tender.
It is further elicited that swelling of labia majora is possible due to
infection.
6] The edifice of the prosecution case is built on the
evidence of the victim-P.W.1. Her deposition is consistent with the
contents of the First Information Report. The victim has deposed
that when she went to the house of the accused to fetch tiffin for
Shradha, the accused caught hold of her waist, made her lie on the
ground in another room, removed her knicker, slept on her person
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and touched his male organ on her private part. The victim cried
out and told the accused that she would disclose the incident and
went home weeping, is the deposition.
7] In the cross-examination, the victim denies the
suggestion that the contents of the F.I.R. were narrated by her
father or uncle. She denies that the report was reduced to writing
by the police as stated by her father and she merely signed the
report. It is elicited that at the time of incident her family did not
own a television set and that she used to go to the house of the
accused to watch T.V. She however, denies the suggestion that on
occasions the accused did not allow her family to view the T.V.
She denies the suggestion that she asked the accused to permit her
to view T.V. and since she was insisting, an annoyed accused
slapped her and she went home weeping. The victim admits that
there was a quarrel between her uncle and Ashok Mate and the
father of the accused prior to the alleged incident. She however,
denies the suggestion that her uncle and Ashok Mate instigated
the victim and her father to falsely implicate the accused.
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8] P.W.2 Dhondu Rakade is the father of the victim.
His deposition is that the incident was disclosed by the victim.
P.W.2 states that he confronted the accused who closed the door
and remained inside the house. P.W.2 apprehended that the
accused will commit suicide and therefore, P.W.2 did not have any
further interaction with the accused and went to the Police Station
to lodge the report. In the cross-examination, it is elicited that the
contents of the report were narrated by P.W.2 and one Ashok Mate
and that his daughter P.W.1 only signed on the report. It is further
elicited that he was informed by P.W.1 that the accused had given
a slap blow on the issue of viewing the television.
9] Ashok Mate, to whom the father of the victim P.W.2 is
said to have narrated the incident and who accompanied P.W.1
and P.W.2 to the Police Station, did not support the prosecution.
He was declared hostile and cross-examined by the learned A.P.P.
Nothing is elicited in the cross-examination to assist the
prosecution.
10] P.W.4 Vijay Meshram, then posted at Police Station
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Mohadi has deposed that the victim and her father P.W.2 had
come to the Police Station to lodge the report and he reduced the
report to writing as narrated by the victim. In the
cross-examination, he is suggested that the report is recorded as
narrated by P.W.2 and not as narrated by the victim.
The suggestion is denied. He denies the suggestion that the victim
did not state anything and merely signed on the report.
11] P.W.5 Dr. Sachin Karanjekar examined the accused.
He proves the medical examination certificate Exh.22.
The certificate Exh.22 does not take the case of the prosecution
any further.
12] P.W.6 Satish Deshmukh, who was then posted at the
Mohadi Police Station as Police Constable. He took the accused to
the hospital for medical examination. The Doctor handed over
blood sample, semen sample and pubic hair sample in sealed
condition which was seized by A.P.I Dangre.
13] P.W.7 Rajhans Katekhaye has proved the spot
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panchnama Exh.26. However, he denies that blood and semen
samples were seized in his presence.
14] P.W.8 Dilip Tembhekar, Gram Sewak at Dahegaon
has proved the birth certificate of the victim (Exh.28).
15] P.W.10 Shamrao Dangre is the Investigating Officer.
16] The evidence of the child victim has withstood the test
of cross-examination. Her testimony, which is corroborated by the
medical evidence, is reliable and confidence inspiring. Her version
is consistent with the First Information Report which is lodged
with promptitude. The defence that the child victim falsely
implicated the accused because an annoyed accused slapped her
since she was asking the accused to put on T.V. is highly
improbable. The evidence of the child victim is corroborated by
the disclosure made to her father P.W.2. Pertinently, she has
categorically denied the suggestion that on the day of the incident
she insisted that she be allowed to view television and that since
her insistence annoyed the accused she was slapped and went
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home weeping. It is indeed elicited that in the cross-examination
of P.W.2 Dhondu that he was informed by the child victim that the
accused had given her a slap blow on the issue of viewing
television. However, it is not suggested to P.W.2 that the incident
of accused having slapped the child victim occurred on the day of
on which according to the child victim she was sexually molested.
The admission extracted in the cross-examination of P.W.2 that
the contents of the report were narrated by P.W.2 and one Ashok
Mate does not detract from the testimony of the prosecutrix and
that of P.W.4 who recorded the report, that it was the prosecutrix
who narrated the incident in the Police Station. Be it noted, that it
is not even suggested to P.W.2 that the accused is falsely
implicated at the behest of one Ashok Mate and the uncle of the
child victim, although such a suggestion is given to the child
victim. P.W.2 is suggested that since P.W.2 thought that the
accused would commit suicide, he lodged the police report against
the accused. Implicit in the suggestion given is the fact that the
defence is not challenging the version of P.W.2 that after the
incident was narrated by P.W.1 he confronted the accused.
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17] The learned Sessions Judge has recorded a finding
that the prosecution has not established offence punishable under
Section 376 of IPC. The learned Sessions Judge has held that the
offence will be an attempt to commit rape punishable under
Section 376 read with Section 511 of the IPC. In view of the ocular
and the medical evidence on record, the finding reached is
unexceptionable.
18] However, the learned Sessions Judge has been
extremely lenient in awarding sentence of rigorous imprisonment
of one year. Since, I was of the prima facie opinion, that if the
challenge to the conviction is ultimately dismissed, the sentence
may call for enhancement, by a speaking order dated 23.11.2017,
I issued notice to the accused to show cause as to why, if the
appeal is ultimately dismissed and the conviction upheld, the
sentence awarded by the learned Sessions Judge should not be
enhanced.
19] The victim was 10 years old when she was sexually
assaulted. The sentence of rigorous imprisonment of one year is a
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travesty of justice. It would be apposite to refer to the following
observations of the Apex Court in State of Madhya Pradesh vs.
Surendra Singh AIR 2015 SC 8980:
“Undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine
the public confidence in the efficacy of law. It is the duty
of every court to award proper sentence having regard
to the nature of the offence and the manner in which it
was executed or committed. The sentencing courts are
expected to consider all relevant facts and circumstances
bearing on the question of sentence and proceed to
impose a sentence commensurate with the gravity of the
offence. The court must not only keep in view the rights
of the victim of the crime but also the society at large
while considering the imposition of appropriate
punishment. Meager sentence imposed solely on account
of lapse of time without considering the degree of the
offence will be counter-productive in the long run and
against the interest of the society. One of the prime
objectives of criminal law is the imposition of adequate,
just, proportionate punishment which commensurate
with gravity, nature of crime and the manner in which
the offence is committed. One should keep in mind the
social interest and conscience of the society while
considering the determinative factor of sentence with
gravity of crime. The punishment should not be so
lenient that it shocks the conscience of the society. It is,
therefore, solemn duty of the court to strike a proper
balance while awarding the sentence as awarding lesser
sentence encourages any criminal and, as a result of the
same, the society suffers. Imposition of sentence must
commensurate with gravity of offence.”
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20] The conscious of this court is satisfied that the
sentence of one year awarded by the learned Sessions Judge
overlooks the rights and aspirations of the victim and societal
interest and the undue sympathy shown would undermine the
public confidence in the efficacy of law.
21] In the result, I pass the following order.
[i] Criminal Appeal 70/2012 is dismissed.
[ii] The conviction under Section 376 read with
Section 511 of the IPC is maintained.
The sentence awarded by the learned Sessions
Judge is enhanced to four years rigorous
imprisonment and payment of fine of
Rs.1000/-.
[iii] The bail bond of the accused shall stand
cancelled.
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[iv] The appellant be taken into custody forthwith
to serve the sentence and a compliance report
be submitted to the Registry of this court within
four weeks.
JUDGE
NSN
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