1 apeal594.04

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.594 OF 2004

Shamlal s/o Punaram Achale,
Aged about 33 years,
R/o Village Toyagundi, Tahsil – Deori,
District Bhandara. …. APPELLANT

VERSUS

The State of Maharashtra. …. RESPONDENT

__

Shri R.D. Hajare, Advocate appointed for the appellant,
Shri P.S. Tembhare, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT
: 02-11-2017
DATE OF PRONOUNCING THE JUDGMENT : 01-02-2018

JUDGMENT :

The appellant is assailing the judgment and order dated

17-3-2003 rendered by the learned II Additional Sessions Judge,

Bhandara in Sessions Trial 139/2001, by and under which the

appellant-accused is convicted for offence punishable under Section

452 of the Indian Penal Code (“IPC” for short) and is sentenced to

suffer rigorous imprisonment for two years and to payment of fine of

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Rs.1,000/-. He is further convicted for offence punishable under

Section 376 of the IPC and is sentenced to suffer rigorous

imprisonment for seven years and to payment of fine of Rs.2,000/-.

2. The genesis of the prosecution lies in oral report dated

05-11-2001 (Exhibit 17) lodged by the prosecutrix (P.W.1) at Police

Station Deori alleging that the accused subjected her to forcible sexual

intercourse.

The gist of the report is thus :

The prosecutrix, then aged 12 years is residing with her

parents at Toyangundi. The incident occurred on 04-11-2001. The

father of the prosecutrix left the village at 6-00 a.m. to go to Deori for

work. Her mother Sau. Meerabai went to the agricultural field at 10-

00 a.m. and the younger brother, then aged 8 years, was playing with

the village boys. The prosecutrix finished household work and was

sleeping on the cot in the middle room of the house at 12-30 p.m. The

accused, who resided in the neighbourhood, opened the door,

approached the prosecutrix who was sleeping on the cot, pressed her

mouth, lifted her in his arms and took her near the hearth in the

varandah of the house of neighbour Radheshyam Achale. The

prosecutrix resisted, but in vain. She was made to lie on the ground,

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her attempt to get up was thwarted by the accused who pressed both

the thighs with his hands. The accused lifted her petticoat upward and

removed and kept aside the knicker. The accused was wearing an

underwear with a towel wrapped around the waist. He threw the

towel aside, removed his underwear, stretched the legs of the

prosecutrix, stretched her private part and inserted his penis forcibly

into the vagina. The prosecutrix made an attempt to free herself, but

could not succeed. The prosecutrix was experiencing pain in private

part and blood oozed from the private part. The accused discharged

sticky fluid into her private part which the prosecutrix wiped with

petticoat. She suffered an abrasion on right elbow. She started

weeping, the accused released her and fled. The prosecutrix disclosed

to Siyabai Ingole and Asmita Lanjewar that the accused committed bad

act with her. She then narrated the incident to her mother at 5.30 p.m.

who disclosed the incident to her father when he returned from work.

The father of the prosecutrix decided to lodge the report on the next

day since it was late in the evening. The prosecutrix, accompanied by

her father, lodged the report on 05-11-2001 at 3-45 p.m.

3. On the basis of the said report, offence punishable under

Sections 452, 376 and 506 of the IPC was registered. The prosecutrix

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was referred to the Hospital at Deori for medical examination and was

examined at 7-15 p.m. on 05-11-2001. The accused was also referred

for medical examination, he was examined at 11-05 a.m. on

06-11-2001. Investigation ensued, upon completion of which charge-

sheet was submitted in the Court of Judicial Magistrate First Class,

Sakoli, who committed the proceedings to the Sessions Court. The

accused abjured guilt and claimed to be tried in accordance with law,

the defence is of total denial and false implication.

4. Before I discussed the ocular evidence, it would be

apposite to refer to the medical evidence on record. P.W.6 Dr. Bhimrao

Meshram, who examined the prosecutrix, has proved certificate

(Exhibit 37). P.W.6 Dr. Bhimrao Meshram has deposed that the

prosecutrix had an abrasion over the extensor surface of the right

elbow which was oval-shaped of size 1″ x 1″. The abrasion was black

coloured and the age of injury was 18 to 24 hours. P.W.6 has further

deposed that on examination of the private parts of the prosecutrix, he

noticed :

1) No injury to perennial region.

2) Pubic hair were well grown.

3) Pubic hair were not stained with blood or any sticky

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material.

4) No foreign hair was sticking to her private part.

5) Hymen was ruptured and oedematous.

6) Anterior fornix oedematous and presence of bleeding

spots.

P.W.6 has deposed that in his opinion the prosecutrix was subjected to

intercourse before twenty-four hours.

P.W.6, who also examined the accused, deposed that the

accused had abrasion on his back, and, in his opinion, the accused had

performed sexual intercourse within the last twenty-four hours. He has

proved certificate (Exhibit 38) as regards the medical examination of

the accused. In response to a suggestion that swelling may occur due

to infection, P.W.6 states that although the swelling may occur due to

infection, but, as a fact, there was no infection. He asserts that on the

basis of the vaginal examination, he has come to the conclusion that

there was sexual intercourse.

5. The report of the Chemical Analyzer reveals that the seized

knicker of the prosecutrix was stained with blood. However, no semen

was detected on the knicker. The analysis of Exhibits 1 to 5 and

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Exhibits 7 to 12 is of scant assistance to the prosecution.

6. The prosecution witnesses who are material from the

perspective of the prosecution are P.W.1, who is the prosecutrix and

P.W.7 Meerabai Ingole, who is the mother of the prosecutrix. The

learned Counsel for the appellant would submit that the prosecutrix

did not support the prosecution and the learned Additional Public

Prosecutor was permitted to put questions in the nature of cross-

examination, the prosecutrix did support the prosecution in the said

cross-examination but then again when she was examined by the

accused, she did a volte-face, which vacillating stands renders the

testimony extremely unreliable. The submission is that the testimony

of the prosecutrix must be kept out of the consideration, and if the

testimony is discarded, there is no evidence on record to prove the

offence under Section 452 or Section 376 of the IPC, much less to

prove the offence beyond reasonable doubt.

7. P.W.1 has deposed in the examination-in-chief that on the

day of the incident there was a quarrel between her and the accused

when the accused had come to her house at 12-00 in the afternoon.

She states that the accused abused her and went away and therefore,

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she lodged the report. She states that the accused did not do anything

with her, nor she was examined by the medical officer. At this stage,

permission under Section 154 of the Indian Evidence Act was sought

and granted.

In the cross-examination by the learned Additional Public

Prosecutor, the prosecutrix has supported the prosecution to the hilt. It

would be apposite to reproduce the following portion of the cross-

examination on behalf of the learned Additional Public Prosecutor :

It is correct that my jangiya had blood on it. There was

a quarrel at the house of Radheshyam. The blood from the private

part oozed out at the place which was soaked by Jangiya. Blood

had oozed out and fallen on the earth where the quarrel had taken

place. In the quarrel, I was frightened and therefore I could not

shout. It is correct that on removing my Jangiya the accused

performed bad job with me at the place of Radheshyam. It

happened near the furnace in the house of Radheshyam. He had

caught my hands, pressed my mouth and thigh when he performed

bad job with me. Shamlal had removed the clothes on his person

before performing bad job with me. That time he was wearing

towel and underwear was brought down for performing bad job

with me. The flow which had fallen on my private part was

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cleaned by him by my petticoat. I had injuries on my right elbow,

because of the force used by him. After I got up I went to my

house weeping. He had inserted penis in my private part and he

was pushing me by force. When I was coming to home, I met my

elder mother Siyabai and Asmita Lanjewar and I narrated them the

incident. My mother had come in late after noon at about 2 p.m. I

narrated her the incident. I, my father and uncle Dudhram went

for lodging the report. I have not stated these facts earlier with a

fear of defamation.

However, in the cross-examination on behalf of the

accused, the prosecutrix again states that the accused abused her and

went away and that she is equating the quarrel to “bad act”. This

answer was in response to a court question. She admits that the

accused did not perform any bad act with her. She admits that the

blood stains on the knicker were due to menstruation. She admits that

her father and the accused were not on talking terms and the contents

in the report were narrated by her father to the police. When the

prosecutrix admitted that the contents in the report were narrated by

her father to the police, she was asked by the learned Judge to answer

the question once again by looking at the Judge. The learned Judge

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has recorded the demeanour of the prosecutrix. The prosecutrix

answered in the affirmative with an unhappy expression. She was then

questioned by the learned Judge, and it would be apposite to note the

question and the response of the prosecutrix as is recorded by the

learned Sessions Judge :

Court question-

Q. When such an incident of rape is said to have been met with

you, then why you are not speaking it out ?

A. Witness looks at the Court and keeps her neck bowed. No

word is uttered by her.

8. P.W.7 Meerabai is the mother of the prosecutrix who has

deposed that the prosecutrix narrated to her that the accused has done

“bad act with her”. The prosecutrix narrated that the bad act was done

by force and she was frightened, is the deposition. In the cross-

examination, her testimony is not shaken.

The prosecutrix, who was aged 13 years when her

evidence was recorded, was indeed declared hostile and cross-

examined on behalf of the prosecution. In the cross-examination, on

behalf of the prosecution, the prosecutrix has narrated the incident

with particularity. The prosecutrix further states that she did not state

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the correct facts earlier since she was apprehensive of being defamed.

The prosecutrix did make a volte-face as is submitted by the learned

Counsel for the accused, when she was cross-examined on behalf of the

accused. The law on the probative value of the testimony of a witness

who is declared hostile, is too well entrenched to warrant a lengthy

discussion. The testimony of a hostile witness cannot be brushed under

the carpet in its entirety, the testimony must indeed be subjected to

close scrutiny and in the present case since the witness is a child, the

Court must be extra cautious. The court must be on guard that the

testimony of the child is not vitiated due to tutoring and the conscious

of the court must be satisfied that the testimony of the child is

confidence inspiring. Concededly, the prosecutrix has taken different

stands in the examination-in-chief, the cross-examination on behalf of

the prosecution and then in the cross-examination on behalf of the

accused. However, it would be a travesty of justice if her testimony is

brushed aside without endeavouring to separate the grain from the

chaff. The learned Sessions Judge, who had the benefit of observing

the demeanour of the prosecutrix, has made certain observations,

which are referred to and reproduced supra. The prosecutrix, who was

aged 10 years or thereabout on the day of the incident and

approximately 13 years when the evidence was recorded, has stated at

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one stage that she did not disclose the facts in the examination-in-chief

fearing defamation. The demeanour of the prosecutrix as recorded by

the learned Sessions Judge is eloquent. The prosecutrix who was aged

13 years was alive to the unfortunate and condemnable reality of life

that rape, in the non permissive Indian society, is considered to be a

stigma, the memories of which haunt the victim forever and the burden

of which the girl has to carry throughout her life. The parrot like

admissions given in the cross-examination on behalf of the accused,

including the admission that the bleeding was due to menstruation,

which admission is clearly inconsistent with the medical evidence on

record (she had menstruation on 05-11-2001) do not detract from the

probative value of her version in the cross-examination on behalf of the

prosecution, which, in my opinion, is confidence inspiring.

9. It is true as submitted by the learned Counsel for the

accused, that the prosecution did not examine the two ladies to whom

the prosecutrix immediately narrated the incident nor was the father of

the prosecutrix examined. However, the evidence of the prosecutrix is

amply corroborated by the evidence of her mother Meerabai (P.W.7)

and the medical evidence is on record. The cry of the victim for justice

and the societal interest that the perpetrator of the crime must not go

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unpunished cannot be held hostage to shoddy or incompetent or unfair

investigation.

10. The conscious of this is satisfied, that the prosecution has

established offence under Sections 452 and 376 of the IPC against the

accused beyond reasonable doubt.

11. The appeal is sans merit and is dismissed.

12. The accused be taken into custody to serve the sentence.

13. The accused is entitled to set off under Section 428 of the

Criminal Procedure Code.

14. The fees of the learned Counsel appointed for the

appellant are quantified at Rs.5,000/-.

JUDGE
adgokar

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