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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.129 of 2016
Rameshwar Shrawan Iwanathe,
Aged 40 years,
Occupation – Labour,
R/o Kamthi (Khanapur), Tah. Arvi,
District Wardha. … Appellant
(In Jail)
Versus
State of Maharashtra,
through Police Station Officer,
Kharangna, Tah. Arvi,
District Wardha. … Respondent
Ms Sonali Saware, Advocate (Appointed) for Appellant.
Shri Nitin Rode, Additional Public Prosecutor for Respondent.
Coram : R.K. Deshpande Manish Pitale, JJ.
Date of Reserving the Judgment : 18th September, 2017
Date of Pronouncing the Judgment:21st September, 2017
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Judgment (Per R.K. Deshpande, J.) :
1. The appellant-accused was charged for the offence
punishable under Section 376(2)(f)(n) of the Indian Penal Code
(IPC) read with Sections 5(1)(n) and 6 of the Protection of
Children from Sexual Offences Act, 2012 (POCSO Act). The
accused was also charged for the offence punishable under
Section 506 of IPC. In Special (Child) Case No.25 of 2014, the
learned Special Judge under POCSO Act, at Wardha, has
convicted the accused for all the aforesaid offences and
sentenced him to suffer rigorous imprisonment for life and to pay
a fine of Rs.10,000/-, in default, to suffer further rigorous
imprisonment for a period of six months, for the offence under
Sections 5(1)(n) and 6 of POCSO Act. The accused is also
sentenced to suffer rigorous imprisonment for two years and to
pay a fine of Rs.2,000/-, in default, to suffer further rigorous
imprisonment for a period of two months, for the offence under
Section 506 of IPC. It is recommended that the District Legal
Services Authority, Wardha, to pay the compensation to the
victim under Section 357-A of the Criminal Procedure Code.
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2. The case of the prosecution in brief is as under :
A minor daughter Ku. Kavita, under the age of 18 years,
is the victim of rape at the instance of her father, the accused.
The mother of the victim died when she was one year old, and
since then her father brought her up. In the year 2011, she was
educating in 8th Standard and one day during night hours after
taking meals when the victim was sleeping, her father came at
about 10 O’ Clock in the night and started outraging her
modesty. She resisted and requested her father from doing it.
However, the father forcibly ravished her. Since then this was
the regular feature adopted by the father by using force
till 8-11-2013, when she went to reside in the house of her aunt
PW 2 Sumitra Uike, a real sister of the accused. It was noticed
by PW 2 that the victim was pregnant, and on enquiry, the victim
narrated the incident and told that she has conceived it from her
father, who has threatened her not to disclose the incident to
anybody. Thereafter the husband of PW 2 dropped the victim to
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her house at about 8 p.m. The accused after an hour and half
took the victim in the field of one Raju Bramhane and left her in
the hut where there was complete darkness. At about 11.30 to
12 O’ Clock in the night, the police persons came there and took
her to the Police Station. The victim lodged the report on
9-11-2013, on the basis of which, the offences came to be
registered vide Crime No.11 of 2013 at Police Station
Kharangna.
3. During the investigation, the doctor collected the blood
samples of the victim as well as the accused in a sealed
condition, which was forwarded to the Chemical Analyzer. In
January 2014, the victim gave birth to a child, whose blood
sample was also collected and sent it to the Chemical Analyzer in
a sealed condition. PW 6 Vaishali Mahajan, working as Assistant
Chemical Analyzer with Forensic Science Laboratory, gave her
opinion in the reports at Exhibits 42 and 43, concluding that the
accused and the victim are the biological parents of the child.
Victim Ku. Kavita entered the witness-box and was examined as
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PW 1; her aunt Sunita Uike was examined as PW 2; one
neighbourer Sindhubai Bawane was examined as PW 3; Raju
Bramhane, in whose field the victim was left over by the accused,
was examined as PW 5; Dr. Indrajit Khandekar, who examined
the victim and submitted his reports about the pregnancy of the
victim at Exhibit 37 and 38, was examined as PW 4;
API Vaishali Totewar, who narrated the proceedings followed in
the investigation, was examined as PW 7; and one Dharmapal
Kamble, who was acting as a panch, was examined as PW 8.
4. The learned Judge of the Special Court records the
finding that the prosecution has proved that in the year 2011,
the accused committed rape on the victim and thereafter
repeatedly and frequently committed the same till 8-11-2013 and
has thereby committed the offence punishable under
Section 376(2)(f)(n) of IPC read with Sections 5(1)(n) and 6 of
POCSO Act. The Special Court also records the finding that the
prosecution has proved that during the same period, time and
place, the accused had committed the criminal intimidation by
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putting her daughter (victim) in fear and threats of life and has
thereby committed an offence punishable under Section 506 of
IPC.
5. We have heard Ms Sonali Saware, the learned counsel
appointed to represent the appellant-accused; and Shri Nitin
Rode, the learned Additional Public Prosecutor for the
respondent-State.
6. PW 1 Ku. Kavita is the prosecutrix, and her date of birth
is 6-3-1997. Her mother died when she was aged about two
years. She states that her father brought her up in early days
and thereafter her paternal aunt PW 2 Sumitra Uike brought her
up. PW 1 is resident of Kamthi. At the time of incident in the
year 2011, she was studying in 8th Standard. She is the
informant of the incident, and the crime was registered on
8-11-2013 at 21.30 hours against the accused, who is her real
father. She has entered the witness-box as PW 1 and stated that
since the year 2011, the accused has been ravishing her to satisfy
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his sexual desire. The accused started outraging her modesty
since 2011, and in spite of her resistance, the accused had been
forcibly committing the act of sexual intercourse, as a result of
which she became pregnant. She states that she had told about
the incident to Sindhu Aji. When the prosecutrix went to the
house of her paternal aunt PW 2 Sau. Sumitra Uike at
Kharangana (sister of the accused), she asked her upon seeing
the physical appearance, as to who committed the sin. At that
time the prosecutrix narrated the story. The paternal aunt told
this fact to her paternal uncle, as a result of which there was a
quarrel between both of them. The paternal uncle took her
along with him and dropped at her house at about 8 p.m. on
8-11-2013. After about half an hour, the accused came and took
the prosecutrix with him and left her in the field of one Raju
Bramhane at about 9 p.m. with an assurance that he would be
back with a quilt. The prosecutrix stayed in the hut where there
was complete darkness. At about 11.30 to 12 ‘O Clock in the
night, the police came and took her to the police station. The
offence was accordingly registered on 9-11-2013, upon her oral
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complaint at Exhibit 25.
7. PW 2 Sau. Sumitra, the paternal aunt (real sister of the
accused) of the prosecutrix is the resident of Kharangana and has
also entered the witness-box and she corroborates the story
putforth by the prosecutrix. She states that in June 2013, she
had gone to the house of victim after dropping her son in the
School at Pulgaon. At that time, PW 1 told her that she does not
want to stay with the accused and wanted to accompany her
and, therefore, she was taken to Kharangana. At that time, PW 2
found the victim pregnant and made inquiries with her. The
victim told her that she had conceived from the accused. The
accused used to consume liquor and established physical
relations with her and if it is disclosed, threatened her. The
victim lived with her for about four and half months. Except
stating that whenever she went to the house of the accused, the
victim did not make any complaint, there is nothing in the
cross-examination to shatter her version in the
examination-in-chief.
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8. PW 3 Sindhubai Bawane, the neighbourer, who states
that the victim was in 10th Standard. On one day, she was
sitting on a rock and crying. When she made an enquiry with
her, the victim told that her father used to remove her clothes
and forcibly establish physical relation with her and if she
shouted, he used to gag her mouth. This witness states that the
victim told her that her father had threatened her that if she says
something, he would kill her. This witness also corroborates the
theory putforth by the paternal aunt of the prosecutrix.
9. PW 5 is Raju Brahmane, who kept the accused as
Watchman in his field during night hours. He states that on
8-11-2013, he returned from his field at about 3.30 p.m. The
victim was brought to Kamthi by the husband of PW 2, and at
that time, the accused was not in the house. He saw that the
stomach of the victim had bulged and when he made enquiry,
the victim did not say anything. The husband of PW 2 went
away. PW 5 further states in his examination-in-chief as under :
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“… The accused returned to his house between 7.30 to
8.00 pm. The accused asked the victim from whom she
had conceived. The accused took the victim along with
him to my field. He returned at about 9.30 pm. He was
in inebriated condition. The accused then told me that the
victim had defamed him therefore he would kill her and
himself. Therefore I had a phone call to PS. Kharangana
but the call could not be connected therefore I telephoned
the control room at Kharangana. After some time the
police came to our village. There were some lady police
officer also. Then we went to my field. We saw that the
victim was sleeping alone. As it was dark the torch light
was turned on. The lady police officers took the custody of
the victim. The victim was taken to the police station
Kharangana where she disclosed that when she was in 8th
standard the accused committed forceful intercourse with
her and thereafter he use to commit such regularly.”
This witness has also not shattered in the cross-examination.
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10. Considering the evidence of all the witnesses, the
learned Judge of the Sessions Court has held that the
prosecution has established that since the year 2011, the accused
had forcible sexual intercourse with the victim and thereafter he
used to regularly ravish her and also threatened her with the
consequences if she discloses about the incident to anybody. The
Court holds that though the victim had not given the exact date
when she was ravished, this will not affect the story of the
prosecution and of the incident narrated by the victim.
11. The Sessions Court takes into consideration the defence
raised by the accused that in the case of rape, the victim would
suffer inflammation or redness or bleeding from her private part
and there is such no evidence on record which raises a suspicion.
After referring to the medical evidence, it is held that the
absence of inflammation or redness or bleeding from the private
part of the victim is of no consequence.
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12. The Court thereafter refers to the evidence of
PW 4 Dr. Khandekar, who medically examined the victim, and on
external examination, he noted that the victim was pregnant.
On internal examination, he found that the hymen was ruptured
on multiple sides and possibility of sexual assault could not be
ruled out. He opined that the victim was pregnant by 27 to 28
weeks as on 9-11-2013. The forensic medical reports of the
victim at Exhibits 37 and 38 were proved. The forensic medical
report of the accused at Exhibit 39 also proved that no
abnormality was detected, hampering the capacity of the accused
to perform the sexual intercourse.
13. The Sessions Court also deals with the delay caused in
lodging the report and it is held that the same would not be fatal
to the case of the prosecution. It holds that the delay puts the
Court on guard to search for and consider if any explanation has
been offered for the delay. In para 33 of the judgment, the
Sessions Court holds that the accused has been ravishing the
victim from the year 2011 till 9-11-2013, i.e. the date of lodging
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the report and, therefore, it cannot be said that there was any
delay. The reliance is placed upon the evidence of PW 5 Raju,
with whom the accused was employed as Chowkidar. The Court
also considers the threats given by the accused to the victim.
14. Relying upon the evidence of PW 6 Vaishali Mahajan,
who submitted the parentage test results at Exhibit 43, it is held
that accused Rameshwar and victim Kavita are concluded to be
the biological parents of the baby of Kavita. It is urged by
Ms Sonali Saware, the learned counsel appointed for the
appellant-accused that there is no evidence on record to show
that the blood sample of the accused was collected for DNA test.
Exhibits 46 and 48 are the letters issued to the Medical Officer
for collection of blood samples of the victim and the accused.
Exhibit 47 is the invoice challan under which the samples were
received for DNA test by the Regional Forensic Science
Laboratory through Police Constable Dilip, Buckle No.1134,
examined as PW 12. PW 7 Vaishali, the Investigation Officer,
states in her cross-examination that “The blood samples of the
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accused and the victim were collected in my presence”. She
further states that “It is true to say that in the present case the
blood samples of accused and the victim is taken by the
concerned nurse”.
15. In a recent decision of the Apex Court in the case of
Mukesh and another v. State (NCT of Delhi) and others, reported
in (2017) 6 SCC 1, it is held in para 228 as under
(by Hon’ble Shri Justice Dipak Misra, J.) :
“228. From the aforesaid authorities, it is quite clear
that DNA report deserves to be accepted unless it is
absolutely dented and for non-acceptance of the same, it is
to be established that there had been no quality control or
quality assurance. If the sampling is proper and if there is
no evidence as to tampering of samples, the DNA test
report is to be accepted.”
Hon’ble Smt. Justice R. Banumathi, J., who wrote the
concurring judgment, has held in para 461 as under :
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“461. As discussed earlier, identification by DNA genetic
fingerprint is almost hundred per cent precise and
accurate. The DNA profile generated from the
bloodstained clothes of the accused and other articles are
found consistent with the DNA profile of the victim and
DNA profile of PW 1; this is a strong piece of evidence
against the accused. In his evidence, PW 45 Dr. B.K.
Mohapatra has stated that once DNA profile is generated
and found consistent with another DNA profile, the
accuracy is hundred per cent and we find no reason to
doubt his evidence. As pointed out by the courts below,
the counsel for the defence did not raise any substantive
ground to rebut the findings of DNA analysis and the
findings through the examination of PW 45. The DNA
report and the findings thereon, being scientifically
accurate clearly establish the link involving the accused
persons in the incident.”
In view of the aforesaid law laid down by the Apex
Court and after rejecting the challenge to the blood sample of the
accused, there is hardly any scope for us to accept the contention
raised and we reject the same.
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16. For the reasons stated above, we do not find any fault
with the view taken by the learned Special Judge under POCSO
Act holding the accused guilty of the offence punishable under
Section 376(2)(f)(n) of IPC read with Section 5(1)(n) of POCSO
Act and also for the offence punishable under Section 506 of IPC.
The findings are based upon the appreciation of evidence and we
do not find any reason to take a different view of the matter
except to maintain the conviction recorded by the learned
Special Judge under POCSO Act.
17. The appeal is, therefore, dismissed.
18. The fees of the learned counsel appointed for the
appellant are quantified at Rs.5,000/-
[Rupees Five Thousand].
(Manish Pitale, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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