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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.
——————————————————————————————-

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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