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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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