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Nikesh S/O. Lakhanlal Atare vs State Of Maharashtra Thr. Police … on 6 July, 2018

1 apeal147.17.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.147/2017

Nikesh s/o Lakhanlal Atare,
aged 30 years, Occ. Nil,
r/o Kamargaon, Tq. Goregaon,
Dist. Gondia. (In Jail) …..APPELLANT

…V E R S U S…

State of Maharashtra through
Police Station Officer, Police Station
Goregaon, Tq. Goregaon,
Dist. Gondia. …RESPONDENT

——————————————————————————————-
Mr. Mir Nagman Ali, Advocate for appellant.
Mrs. Shamsi Haider, A.P.P. for respondent-State.
——————————————————————————————-

CORAM:- MANISH PITALE, J.

DATED:-

JULY
6, 2018

ORAL JUDGMENT

1. Appellant herein has challenged the judgment and order

dated 30.01.2017 passed by Sessions Court, Gondia (Trial Court)

in Sessions Trial No.13/2010, whereby the appellant has been

convicted for an offence punishable under Section 376 of the

Indian Penal Code (IPC) and he has been sentenced to suffer

rigorous imprisonment for seven years and to pay a fine of

Rs.25,000/-.

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2. As per the prosecution case, on 13.12.2009, prosecutrix

(PW3) went to a field along with her two friends to fetch

firewood. At about 2.00 p.m., when the prosecutrix was returning

from the field, the appellant (accused) was grazing his cattle in the

field. The appellant loudly shouted at the two friends of the

prosecutrix, who were about 10 years and 12 years of age and told

them to go home. After they had gone some distance, the

appellant caught hold of the prosecutrix. Despite her resistance,

the appellant dragged her and made her lie down on the boundary

(dhura) of the field. Thereafter, he removed her clothes and

committed forcible sexual intercourse with her. The prosecutrix

then wore her clothes and rushed back home and informed her

parents about the incident, upon which she was taken to police

station and on the basis of her oral report, First Information

Report (FIR) dated 13.12.2009 was registered in Police Station,

Goregaon, District Gondia, against the appellant under Section

376 of the IPC.

3. The prosecutrix (PW3) was sent for medical

examination immediately and she was examined by Dr. Trupti

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Katre (PW8). Dr. Katre had examined the prosecutrix and found

that hymen of the prosecutrix (PW3) was ruptured; there were

signs of injury and blood was oozing from the torn hymen.

Dr.Katre (PW8) also noticed bite marks on the right cheek of the

prosecutrix. Vaginal swab and other material collected by the

Doctor was sent for chemical analysis. Report of the chemical

analysis shows presence of semen in the vaginal swab and stains of

semen and blood on the kurta and underwear of the prosecutrix

(PW3). On the basis of material placed on record by the

investigating officer, the appellant was charged with having

committed offence under Section 376 of the IPC.

4. The prosecution examined ten witnesses, out of whom

the material witnesses were; Helanbai (PW1); mother of the

prosecutrix, prosecutrix herself (PW3), Apparao Pandhari (PW6);

Head Master of the school for proving date of birth of the

prosecutrix, Hemchand (PW7); father of the prosecutrix and

Dr.Trupti Katre (PW8); Medical Officer, who examined the

prosecutrix. On the basis of the evidence of the prosecution

witnesses and the material on record, the trial Court found that at

the time of the incident, the date of birth of the prosecutrix was

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01.06.1994 and that she was less than 16 years of age at the time

of incident. The trial Court found that the evidence of the

prosecutrix (PW3) was trustworthy and when read with the

evidence of the other prosecution witnesses, particularly Dr. Katre

(PW8), the case of the prosecution stood proved beyond

reasonable doubt against the appellant. On the basis of the said

finding, the trial Court convicted and sentenced the appellant in

the aforesaid manner.

5. In this appeal, by order dated 03.07.2018, Mr. Mir

Nagman Ali, Advocate, was appointed by this Court to appear on

behalf of the appellant because the Advocate appointed earlier had

failed to appear to argue the appeal. The said counsel appointed

on 03.07.2018 submitted in support of the appeal that the findings

rendered by the trial Court were not based on proper appreciation

of the evidence and the material on record. It was submitted that

the trial Court gave finding regarding the age of the prosecutrix

(PW3) based on the guesswork and the same was not sustainable.

It was submitted that the Head Master of the school, where the

prosecutrix was studying, was examined and he stated that as per

the register of the school, the date of birth of the prosecutrix was

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01.06.1994. In cross-examination, he had admitted that he did

not know the basis on which entry of the date of birth of the

prosecutrix had been made in the register. It was contended that

the trial Court erroneously concluded that the age of the

prosecutrix was below 16 years at the time of incident, only

because at the time of deposition before the Court, her age was

recorded as 22 years. It was further contended that other than the

evidence of the prosecutrix (PW3), there was no evidence to

support the prosecution case. It was submitted that the chemical

analysis reports were not admissible because original reports were

never produced before Court and some photocopies were placed

on record, which could not have been exhibited. It was further

contended that the prosecution had deliberately not examined the

two friends, who had allegedly accompanied the prosecutrix

(PW3) when she went to the field. It was pointed out that

although the prosecution had sought to examine one of the friends

i.e. Arti but before she could be called into witness box, a pursis

was submitted, stating that she was unaware of anything. On this

basis, the prosecutor had dropped the said witness on the ground

that she had been won over. It was submitted that such a

procedure was not acceptable and that the prosecution ought to

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have examined the said witness and if she was found to be hostile,

the prosecution could have cross-examined her. By not examining

the said witness, the prosecution had deliberately suppressed vital

evidence from the Court, which would have thrown light on the

true facts of the present case. The learned counsel placed reliance

on the judgment of the Hon’ble Supreme Court in the case of State

of Uttar Pradesh .Vs. Jaggo Alias Jagdish; reported in 1971 (2)

SCC 42 and judgment of this Court in Sujoy @ Sanjay Laltu

Chakravarty .Vs. State of Maharashtra (Criminal Appeal No.

68/2018, decided on 26.02.2018)

6. On the other hand, Mrs. Shamsi Haider, learned A.P.P.

appearing on behalf of the State, submitted that as regards the age

of the prosecutrix (PW3), the evidence of Apparao (PW6) Head

Master of the School read with Exh.-44 i.e. bona fide certificate

issued by the school, was sufficient to demonstrate that the age of

the prosecutrix (PW3) was less than 16 years on 13.12.2009,

when the incident occurred. It was further submitted that the

evidence of the prosecutrix (PW3) was trustworthy and that the

medical evidence on record corroborated her testimony. On this,

it was contended that the appellant was correctly convicted and

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sentenced by the trial Court and the appeal deserved to be

dismissed.

7. In the present case, the prosecutrix (PW3) has deposed

before the Court as regards the manner in which the incident took

place on 13.12.2009. She has specifically stated about the role of

the appellant in dragging her and making her lie down on the

boundary (dhura) of the field and, thereafter, removing her

clothes and committing the act of forceful sexual intercourse. She

has also stated about the appellant bitting her on her cheek while

committing the said act. The prosecutrix (PW3) has not stated

specifically about her date of birth or age at the time of the

incident. In cross-examination, her evidence has not been

discredited in any manner. Parents of the prosecutrix i.e. Helanbai

(PW1) and Hemchand (PW7), have deposed on the basis of what

the prosecutrix told them. In this situation, the medical evidence

on record in the form of medical examination report of the

prosecutrix (PW3) and the evidence of Dr. Trupti (PW8), assumes

significance.

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8. A perusal of the medical report shows that the

prosecutrix (PW3) was examined on 13.12.2009 itself at about

8.30 p.m. and it was found that her hymen was ruptured, showing

signs of injury and that blood was oozing from the torn hymen.

Dr. Trupti (PW8) also found tenderness in the private parts of the

prosecutrix (PW3) and bite marks on her right cheek. The doctor

took the samples of pubic hair and vaginal swab and sent the same

for chemical analysis. Reports of the chemical analysis show that

there was semen found in the vaginal swab and that there were

stains of blood and semen on the kurta and underwear of the

prosecutrix (PW3).

9. It has been submitted on behalf of the appellant that the

chemical analysis reports could not have been looked into by the

Court because the original reports were never placed on record

and that some photocopies were made available. On this basis, it

was contended that the said reports could not have been exhibited

and the Court could not place reliance on the same.

10. But, even if the chemical analysis reports in the present

case are held as inadmissible, the medical examination report at

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Exh.-53, when read with the evidence of Dr. Trupti (PW8), shows

that the prosecutrix was indeed subjected to sexual intercourse in

a forcible manner, due to which she suffered injury to her hymen

and bite marks were also found on her right cheek. This clearly

corroborates the evidence of the prosecutrix (PW3) regarding the

manner in which the incident took place.

11. The trial court has taken into consideration the evidence

of the prosecutrix (PW3) as also the medical evidence on record

while rendering findings against the appellant. The said findings

cannot be said to be erroneous, even if the chemical analysis

report is held to be inadmissible.

12. As regards the age of prosecutrix, it appears that the

trial Court has indeed indulged in some guesswork. The trial

Court has held that when the prosecutrix (PW3) deposed in the

Court, her age was recorded as 22 years and, therefore, it could be

concluded that on the date of the incident i.e. on 13.12.2009, she

was less than 16 years of age. The trial Court then relied upon the

school certificate on record and the evidence of Apparao (PW6)

Head Master. A perusal of the evidence of the said witness and

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the school bona fide certificate on record at Exh.44, show that

there is some discrepancy in the exact date of birth of the

prosecutrix (PW3). While Apparao (PW6) the Head Master, has

stated that as per the record of the school, the date of birth of the

prosecutrix was 01.06.1994, the certificate at Exh.-44 records the

date of birth as 01.10.1994. Apart from this, in cross-examination,

Apparao (PW6) the Head Master has admitted that he was not

aware as to on what basis, entry of the date of birth of the

prosecutrix (PW3) was taken in the register. The learned counsel

appearing for the appellant is justified in relying upon the

judgment of this Court in the case of Sujoy @ Sanjay Laltu

Chakravarty; supra, in this context. Therefore, to the extent that

there was lack of clinching evidence to show that the prosecutrix

(PW3) was less than 16 years of age at the time of incident, the

contention raised on behalf of the appellant appears to be correct.

13. But, even if it is found that the prosecution failed to

prove that the prosecutrix was less than 16 years of age at the time

of incident and that consent was immaterial, evidence in the

present case clearly shows that the act of sexual intercourse was

inflicted upon the prosecutrix (PW3) by the appellant against her

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will. The evidence of the prosecutrix (PW3) is trustworthy and

truthful. The medical evidence on record, particularly details of

injury suffered on the hymen and bite marks on the right cheek of

the prosecutrix, clearly demonstrate that the appellant forcefully

committed sexual intercourse with the prosecutrix (PW3).

14. Once, the evidence of the prosecutrix is found to be

trustworthy and truthful, adverse inference need not be drawn

against the prosecution for having failed to examine Arti, one of

the friends who was with the prosecutrix, or for having failed to

examine the said person for the reason that a pursis had been

submitted to the effect that the said person was unaware of

anything pertaining to the incident. The learned counsel for the

appellant has relied on the judgment of the Hon’ble Supreme

Court in State of Uttar Pradesh .Vs. Jaggo Alias Jagdish; supra,

in this context. The position of law laid down by the Hon’ble

Supreme Court in the said judgment does show that the

prosecution in the present case ought to have examined Arti also,

even if a pursis was submitted on her behalf, which showed that

she was not likely to support the prosecution. But, since the

evidence of prosecutrix (PW3) herself is truthful and trustworthy,

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which is wholly supported by the medical evidence on record, it

cannot be said that the trial Court has committed any error in

convicting the appellant by the impugned judgment and order

under Section 376 of the IPC.

15. Learned counsel for the appellant submitted that in the

facts of the present case, this Court may exercise powers under

proviso to Section 376 of the IPC, as it stood at the relevant time,

to impose a sentence for less than 7 years. A perusal of the said

proviso shows that the Court is required to give special reasons for

imposing the lesser amount of sentence. In this context, it was

submitted by the learned counsel for the appellant that the

appellant was very young when the incident took place; that he

had no criminal antecedents and further that he did not indulge in

any criminal activity when he was on bail during the pendency of

the proceedings before the trial Court. On this basis, it was

submitted that the sentence imposed upon the appellant be

reduced.

16. Having considered the contentions raised on behalf of

the appellant in this regard, a perusal of the record shows that the

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appellant was working as Homeguard when the incident in

question took place. He was a person in uniformed service, who

was expected to protect others and yet he indulged in committing

forceful sexual intercourse with the prosecutrix on 13.12.2009.

These facts demonstrate that the appellant does not deserve any

leniency insofar as the sentence is concerned and no case is made

out for this Court to invoke the proviso to Section 376 of IPC as it

stood at the relevant time. Hence, this submission made on behalf

of the appellant is also rejected.

17. In the light of the above, the appeal is found to be

without any merit. Hence, it is dismissed. Accordingly, the

impugned judgment and order passed by the trial Court is

confirmed.

Mr. M. N. Ali, Advocate, at the request of this Court, had

appeared on behalf of the appellant and accordingly he was

appointed by this Court by order dated 03.07.2018. Fees of

Mr.M. N. Ali, Advocate for having conducted this appeal before

this Court is assessed at Rs.5,000/-.

(Manish Pitale, J.)

kahale

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