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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