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State Of Maharashtra vs Ravindra Kashinath Ghodke on 3 May, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.169 OF 2003

The State of Maharashtra
Through A.P.I.
Kasoda Police Station,
Taluka Erandol, Dist. Jalgaon .. Appellant
(Ori. Complainant)
Versus
Ravindra Kashinath Ghodke
Age : 32 yrs, Occu : Labour,
R/o. Kasoda, Tal. Erandol,
District – Jalgaon .. Respondent
(Ori. Accused)
….
APP for Appellant – State : Shri S.D. Ghayal
Advocate for Respondent : Shri G.V. Wani
…..

CORAM : SUNIL P. DESHMUKH
P. R. BORA, JJ.

Reserved on : 27.04.2018
Pronounced on : 03.05.2018

Judgment (Per P.R. Bora, J) :

1. The State has preferred the present appeal against

the Judgement and order passed by First Ad-hoc Additional

Sessions Judge, Jalgaon in Sessions Case No.142/2001 decided

on 13th November, 2002. Present respondent was prosecuted in

the aforesaid sessions case for the offences under Sections 342

376 of Indian Penal Code (hereinafter referred to as the ‘I.P.C.’).

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Respondent was alleged to have wrongly confined the

prosecutrix a minor girl aged about 9 years in his house. He was

also alleged to have committed rape on the said minor girl.

Learned Sessions Judge however acquitted the accused of both

the aforesaid offences. Aggrieved by, the State has filed the

present Criminal Appeal.

2. On report lodged by one Bapurao Eknath Patil

(PW-7) in the Police Station at Kasoda on 03.05.2001 to the

effect that, the accused, in his house committed rape on his

minor niece that the investigation was set in motion. Contents

of F.I.R. reveal that, on 03.05.2001 sometimes in between 12:00

noon to 01:00 p.m. when informant Bapurao Eknath Patil

(PW-7) was sitting in his shop in front of his house, the

prosecutrix came there with steal tiffin containing vegetables

therein in her one hand and a 10 rupees note in other hand.

She was weeping at that time. The wife of Bapurao Patil

(PW-7) then called him in the house and informed that, the

prosecutrix was raped by the accused. She also informed to

Bapurao Patil (PW-7) that, while the prosecutrix was coming

towards their house, the accused, took the prosecutrix in his

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house and locking the door of the house from inside committed

rape on her. She also informed that, the blood was oozing from

the private part of the prosecutrix. She also told that, the

prosecutrix was threatened by the accused not to disclose the

said incident and that he had given Rs.10/- to the prosecutrix.

3. On receiving such information, Bapurao Patil (PW-7)

rushed to the house of the accused, however it was found to be

locked from outside. Bapurao Patil (PW-7) therefore rushed to

the house of the mother of the accused where the sister of the

accused was also residing and enquired with them about the

accused. The mother of the accused informed Bapurao Patil

(PW-7) that, the accused had been to them in the early morning

and was demanding Rs.500/- for attending marriage. The

mother of the accused also informed Bapurao Patil (PW-7) that,

since she could not give the money as demanded by the accused,

he quarreled with her and subsequently by obtaining the money

from other person had gone to village Dapora, Dist. Jalgaon at

his father-in-laws place. Bapurao Patil (PW-7) then went to

Police Station Kasoda along with the prosecutrix and lodged the

report of the alleged incident.

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4. On the basis of the report so lodged by Bapurao Patil

(PW-7), crime was registered against the accused for the

offences under Sections 342 and 376 of I.P.C. The victim girl

was immediately referred by the police authorities for medical

examination to Primary Health Centre at Kasoda, where she was

examined by Dr. Suresh Girdhar Patil (PW-6). On her

examination by Dr. Suresh Patil (PW-6), it was noticed that,

there was vaginal bleeding due to traumatic forceful intercourse.

It was also noticed that, her vagina was swollen. Dr. Suresh Patil

(PW-6) had also noticed that, injury to the vagina of the

prosecutrix was fresh. Dr. Suresh Patil (PW-6) after

administrating tetanus injection referred the prosecutrix to the

Civil Hospital at Jalgaon for further treatment.

5. In the meantime, the spot panchanama was prepared

and the articles which were found existing on the spot of

occurrence were sized by the police. The police also recorded

the statements of necessary witnesses. The sample of the blood,

vaginal swab etc. were collected. In the meantime, the accused

was also arrested and his medical examination was got done.

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His blood and semen samples were also collected. Investigating

Officer then forwarded the articles, recovered from the spot of

occurrence as well as handed over by the prosecutrix, to the

Chemical Analyzer for their chemical analysis.

6. After completing the investigation the charge-sheet

was filed against the respondent – accused for the offences

under Sections 342 ad 376 of Indian Penal Code. Since the

offence under Section 376 of I.P.C. was exclusively triable by the

Court of Sessions, learned Judicial Magistrate, First Class

committed the case to the Court of Sessions. After the case was

committed, learned First Ad-hoc Additional Sessions Judge,

Jalgaon framed the charge against the accused on 05.07.2002.

The accused did not plead guilty and claimed to be tried.

7. In order to prove the guilt of the accused, the

prosecution examined as many as 10 witnesses and also placed

on record several documents. The defence of the accused was of

total denial and false implication. Learned trial Judge after

having assessed oral as well as documentary evidence brought

before him, acquitted the accused of all the charges levelled

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against him. Aggrieved by, the State has preferred the present

appeal.

8. Shri S.D. Ghayal, learned APP appearing for the

State assailed the impugned Judgment on various grounds.

Learned APP submitted that, the trial Judge has failed in

properly appreciating the evidence brought on record by the

prosecution. Learned APP further submitted that, by drawing

unwarranted inferences on some erroneous grounds, learned

trial Judge has declined to believe the testimony of the

prosecutrix. He further contended that, the medical evidence on

record has also been rejected by the trial Court for wrong

reasons. Learned APP submitted that, in fact the testimony of

the prosecutrix coupled with the medical evidence on record

was sufficient to hold the accused guilty for the offences charged

against him. Learned APP submitted that, the trial Court has

adopted too technical approach while appreciating the evidence

on record and has given undue weightage to the minor

contradictions and omissions. Learned APP further submitted

that, total false defence was raised by the accused and that was

the additional circumstances indicating his guilty mind, however

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the trial Court has failed in appreciating the said aspect. Learned

APP submitted that, the report of the alleged incident was most

promptly lodged within 2 hours of the alleged occurrence and

the prosecutrix was immediately referred for a medical

examination. Learned APP submitted that, in the medical

examination of the prosecutrix, it was revealed that, she was

subjected to forcible penetrative intercourse. The blood was

found oozing from vagina and it was also noticed that, the

vagina was swollen. Learned APP further submitted that, it was

also noticed that, the injuries caused to the prosecutrix were

appearing to be fresh. Learned APP submitted that, the evidence

which was brought on record by the prosecution, was thus

sufficient to hold that the prosecutrix was rapped. Learned APP

further submitted that, the accused was specifically named by

the prosecutrix. However, the trial Court wrongly reached to the

conclusion that, identity of the accused was not established.

Learned APP submitted that, considering the evidence on record,

the Judgment and order of acquittal deserves to be set aside and

quashed and accused needs to be held guilty for the offences

charged against him.

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9. Shri G.V. Wani, learned Counsel appearing for the

respondent i.e. original accused supported the impugned

Judgment and order. Learned Counsel submitted that, a well

reasoned order has been passed by the trial Court. Learned

Counsel submitted that, there are several discrepancies in the

evidence of the prosecution witnesses and as such, the trial

Court has rightly disbelieved the said evidence. Learned Counsel

submitted that, most importantly the prosecution has failed in

brining on record any credible evidence as about the identity of

the accused. Learned Counsel submitted that, having regard to

the admissions given by the prosecutrix in her cross-

examination, it is quite evident that, she was fully tutored by the

informant as well as by the police. Learned Counsel bringing to

my notice admission given by the prosecutrix that the accused

was shown to her by the police and that was the reason she had

identified the accused, submitted that in such circumstances in

no case the conviction could have been based of the accused.

Learned Counsel submitted that, the trial Court has rightly

disbelieved the evidence of both the child witnesses and has

correctly acquitted the respondent – accused. Learned Counsel,

therefore, prayed for dismissal of the appeal.

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10. We have carefully considered the submissions made

by learned APP appearing for the State and learned Counsel

appearing for the respondent. We have perused the impugned

Judgment and the entire evidence on record.

11. On perusal of the impugned Judgment, it is revealed

that, learned trial Judge has disbelieved almost entire evidence

of the prosecution, which was brought on record during the

course of the trial. Learned trial Judge has disbelieved the

evidence of the prosecutrix as well as the evidence of PW-4

Yogesh, a minor boy. As has been observed by the learned trial

Judge, the identity of the accused itself was not cogently

established. The trial Court has also held that, about the time of

the alleged occurrence and about the spot of occurrence also the

prosecution has failed in bringing on record any dependable

evidence. Not raising of any alarm by the victim girl at the time

when the accused is alleged to have committed rape on her,

non-existence of any injury on person of the prosecutrix,

absence of any injury to the male organ of the accused, absence

of semen in the vaginal swab as well as on apparels of the

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prosecutrix and on the chadar, on which, the accused is alleged

to have committed rape on the prosecutrix are held by the

learned trial Judge to be the circumstances in favour of the

accused. The medical evidence brought on record by the

prosecution has also not been relied upon by the learned trial

Judge.

12. First information report of the alleged incident was

lodged by PW-7 Bapurao Patil at about 02:30 p.m. on

03.05.2001. It is thus evident that, the FIR was promptly lodged

without loss of any time within two hours of the alleged

occurrence. We have noted the contents of the F.I.R. in para 2

above. In the FIR, it was specifically alleged that, the accused

took the prosecutrix inside of his house and committed rape on

her.

13. After the FIR was registered by the police, the

prosecutrix was immediately referred to the Primary Health

Centre at Kasoda.

14. As has been deposed by Dr. Suresh Patil (PW-6), who

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was attached to the Kasoda Primary Health Centre as Medical

Officer on 03.05.2001, the prosecutrix, a minor girl aged about

8 years, was brought to Primary Health Centre, Kasoda for

examination. Dr. Patil (PW-6) has further deposed that, when

he examined the prosecutrix he found vaginal bleeding due to

traumatic forceful intercourse. Dr. Patil (PW-6) has also deposed

that, the vagina of the prosecutrix was swollen and injury to her

vagina was fresh.

15. It was argued by the learned defence Counsel that,

Dr. Patil in his cross-examination has admitted that, before

examining the prosecutrix, he had not obtained the consent of

the parents or guardians of the prosecutrix. Dr. Patil (PW-6) had

also admitted that, he did not obtain the signature or the thumb

impression of the victim girl on the certificate issued by him

after her examination. Dr. Patil (PW-6) also admitted that, the

certificate at Exh.22 issued by him was not in the prescribed

format.

16. According to the learned defence Counsel, in the

above circumstances no reliance can be placed on the evidence

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of Dr. Patil and the certificate Exh.22 issued by him.

17. The question arises whether the admissions as are

given by Dr. Patil (PW-6) will nullify or prove the facts as are

deposed by him in his examination-in-chief to be concocted and

false. Dr. Patil (PW-6) is an independent witness. At the relevant

time, he was holding a responsible post of Medical Officer at the

PHC, Kasoda. Nothing has been brought on record to show that,

there was any reason for Dr. Patil to state any incorrect or false

information before the Court or to suspect that he had any

animus against the accused or was in any way interested in

issuing false medical certificate.

18. In the circumstances, though it may be a fact that,

before examination of the prosecutrix, he did not obtain the

consent of the prosecutrix or her parents, the fact that, he

examined the prosecutrix and on such examination found that,

there was vaginal bleeding and her vagina was swollen and that

the injury was fresh cannot be held to be false. The facts which

have come on record through the evidence of Dr. Patil (PW-6)

therefore cannot be discarded or disbelieved on the basis of

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certain admissions as above given by the said witness. Through

the evidence of Dr. Patil (PW-6) the prosecution has

undoubtedly proved that, on 03.05.2001 the prosecutrix was

taken to PHC at Kasoda and was medically examined there. The

prosecution has also proved that, at the relevant time there was

bleeding from the vagina of the prosecutrix due to traumatic

forceful intercourse as opined by Dr. Patil. It has also been

proved that, the vagina was swollen and injury of her vagina

was a fresh injury.

19. The prosecution has also examined Dr. Pandhari

Chindhu Bawaskar (PW-9), the then Medical Officer at Civil

Hospital, Jalgaon. It has come on record through the evidence

of Dr. Bawaskar (PW-9) that, the prosecutrix was referred to

Civil Hospital at Jalgaon by PHC, Kasoda. As has further come

on record through his evidence, the prosecutrix remained in

Civil Hospital, Jalgaon as an indoor patient from 04.05.2001 to

10.05.2001. Dr. Bawaskar has also deposed that, he had referred

the prosecutrix to Dr. Udaysing Patil, and said Dr. Udaysing Patil

had examined the prosecutrix in his presence. Dr. Bawaskar has

also deposed that, as noticed in the speculum examination done

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by Dr. Udaysing Patil there was third degree perineal tear,

hymen was torn and there was bleeding from vagina.

Dr. Bawaskar has also deposed that, under general anesthesia

vaginal tear was repaired on 04.05.2001 and the prosecutrix

was discharged on 10.05.2001. Dr. Bawaskar has also deposed

that, there was strong possibility that rape was committed on

the prosecutrix.

20. In the cross-examination of Dr. Bawaskar, similar

admission is given by him that before examination of the

prosecutrix the written consent of the parents of the prosecutrix

was not obtained. However, to our mind for the said reason and

on the said ground, the substantial facts as are deposed by

Dr. Bawaskar as about the examination of the prosecutrix cannot

be ignored or kept out of consideration. In our opinion,

Dr. Bawaskar was also an independent witness and was not

having any vested interest so as to state something false. We

reiterate that, through the evidence of the aforesaid two

witnesses, the prosecution has beyond reasonable doubt proved

that, the prosecutrix was subjected to rape.

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21. From the evidence as above, the fact stated in the

FIR to the extent that, rape was committed on the prosecutrix

stands proved beyond reasonable doubt.

22. As noted by us herein above, the FIR of the alleged

incident was promptly lodged within 2 hours of the occurrence

of the alleged incident. We have also noted that, immediately

after registration of the FIR, the prosecutrix was referred for her

medical examination. From the material on record, it is further

revealed that, the police immediately visited the spot of

occurrence and carried out the spot panchanama and recovered

the incriminating articles from the spot of occurrence. PW-2

Chandrakant was one of the panch witness on the spot

panchanama. As has been deposed by PW-2 Chandrakant, the

house of the accused was shown by his mother. He has further

deposed that, from the said house a pinkish coloured chadar

(bed sheet) and the slipper were seized. PW-2 Chandrakant has

also deposed that, on the chadar so seized, stool was noticed.

The spot panchanama was prepared during 03:00 p.m. to 03:45

p.m. on 03.05.2001. As has further come on record, the

prosecutrix did identify that the slipper seized from the house of

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the accused was belonging to her. If the statement of the

prosecutrix is considered, it was stated by her in her evidence

before the Court that, when accused committed rape on her she

had defecated. The facts so stated by the prosecutrix in her

statement has been corroborated by the evidence of PW-2

Chandrakant. The spot panchanama at Exh.17 demonstrates

that, one nicker was also seized from the spot of occurrence. The

prosecutrix in her evidence before the Court did identify that it

was her nicker when the same was shown to her. The

prosecutrix has also identified the chadar.

23. It was sought to be contended by learned Counsel

appearing for the accused that, in his examination-in-chief PW-2

Chandrakant did not mention about the existence of nicker on

the spot. Inviting my attention to the spot panchanama, learned

counsel submitted that, the panchanama so drawn apparently

reflects that, the item at Sr. No.3 has been subsequently

included. Learned Counsel also submitted that, even the

prosecutrix in her testimony has not stated any such fact that,

she had also left her nicker at the house of the accused though it

was specifically deposed by her that, her slipper was left at the

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house of the accused. According to learned Counsel, the seizure

of the nicker was therefore doubtful. Learned Counsel submitted

that, the material on record reveals that, it was tried to be

manipulated and item no.3 (nicker of the prosecutrix) is

subsequently included in the articles recovered from the spot of

occurrence. In the circumstances, learned Counsel submitted

that, no reliance can be placed on such evidence to base the

conviction of the accused.

24. It appears to us that, even if the seizure of the nicker

from the spot of occurrence is kept aside, since apparently

certain doubts are raised about the existence of the said nicker

at the spot when the spot panchanama was prepared, there

seems no reason to doubt the recovery of the chadar as well as

the pair of slipper from the spot of occurrence about which PW-2

Chandrakant has specifically deposed. PW-2 Chandrakant is an

independent witness. Nothing has been brought on record in his

cross-examination to show that, there is any reason for him to

falsely state that, he visited the spot and that the spot

panchanama was prepared in his presence and further that,

chadar as well as pair of slipper were recovered from the spot of

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occurrence.

25. The trial Court has held that, the prosecution has

failed in brining on record sufficient evidence to prove the spot

of occurrence. Considering the evidence which we have

discussed herein above, finding recorded by the trial Court that

the spot of occurrence has not been proved, would not sustain.

Merely because the prosecution has not filed on record 7/12

extract or the city survey record pertaining to the house in

question, no such conclusion can be drawn that, it was not the

spot where the alleged incident happened. The trial Court has

failed in appreciating that, the spot, of which the panchanama is

at Exh17 was shown by the mother of the accused to be the

residence of the accused. Chandrakant (PW-2) has specifically

deposed that, the spot was shown by the mother of the accused.

The fact so deposed by Chandrakant (PW-2) has not been

denied or disputed by the accused. Moreover, because of the

seizure of slipper of the prosecutrix from the said spot, it is

confirmed that, the alleged incident did occur at the said spot.

26. The trial Court has discussed that the prosecution

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evidence is not clear whether the house of the accused is in

Indira Nagar or in Kudarat Nagar. From the evidence on record,

it has been sufficiently proved that, the house of the accused is

in Kudarat Nagar. It is true that, in the FIR the accused is stated

to be residing in Indira Nagar. The maternal grand-mother of

the prosecutrix resides in Indira Nagar and Kudarat Nagar is

adjacent locality. In the circumstances, it appears that, in the

FIR the accused is stated to be residing in Indira Nagar.

However, in view of the subsequent evidence there may not be

any confusion that, the accused was residing in Kudarat Nagar.

From the evidence on record, thus it has been proved beyond

reasonable doubt that, the rape was committed on the

prosecutrix at the spot described in the panchanama (Exh.17).

It is not the case of the accused that, he was not residing at the

said spot. As such according to us it may not much matter

whether the said house is in Kudarat Nagar or in Indira Nagar.

27. In background of the facts as aforesaid, the evidence

of the prosecutrix will have to be scrutinized. It is not in dispute

that, the prosecutrix was 9 years old when the alleged incident

happened. The defence has not disputed the age of the

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prosecutrix. At least there is no dispute that, the prosecutrix was

a minor girl below the age of 16 years. When the evidence of the

prosecutrix was recorded before the Court she was 10 years old.

28. From the record, it appears that, initially some

general questions were put to the victim girl by the learned trial

Judge so as to ascertain and verify whether she was capable of

understanding the questions put to her and to give answers to

those questions. After having put about five questions, it appears

that, learned trial Judge was satisfied that the victim girl was

competent to give evidence before the Court. The learned trial

Judge has, therefore, allowed learned APP to record the

examination-in-chief of the victim girl and then permitted the

defence Counsel to cross-examine her.

29. In her examination-in-chief the prosecutrix has

narrated the incident as had occurred. She has specifically

implicated the name of the accused and also described the overt

acts committed by him which amount to rape. She also

specifically deposed that, there was bleeding from her private

part and she had defecated on the bed sheet. She also deposed

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that, after coming to the house of her maternal aunt, she

disclosed about the alleged incident to her and she was

thereafter taken to the police station by her maternal aunt and

the husband of her maternal aunt. She has also deposed that,

from the police station, she was sent to the hospital at Kasoda

and from there she was taken to Civil Hospital, Jalgaon.

30. During the course of her oral evidence before the

Court, she identified her frock as well as slippers. She also

identified the accused.

31. The evidence of the prosecutrix however has not

been relied upon by the learned trial Judge. As has been

observed by the learned trial Judge, the possibility of the

prosecutrix being tutored by the police and her parents was

difficult to be ruled out. During the course of his arguments,

learned defence Counsel had also brought to our notice the

admissions given by the prosecutrix in her cross-examination.

32. According to us, merely on the basis of the aforesaid

admissions, it would be unsafe to draw any such conclusion

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that, no such incident as deposed by the prosecutrix had in fact

happened and that the prosecutrix falsely implicated the name

of the accused being tutored by the police and her parents. The

evidence of the prosecutrix will have to be read as a whole and

the admissions allegedly given by her in her cross-examination

cannot be isolatedly considered. In her examination-in-chief the

prosecutrix has deposed that, near the house of her grand-

mother there is the house of mother of the accused. From the

fact as aforesaid deposed by the prosecutrix, it is evident that, it

was well within the knowledge of the prosecutrix that, the house

which was adjacent to the house of her grand mother was the

house of the mother of the accused. It also clearly spells that,

the prosecutrix was knowing the accused as well as the mother

of the accused. It is also revealed that, the prosecutrix was

knowing the accused by name. It is true that the prosecutrix

could not tell the names of the neighbours of her aunt as well as

her grand-mother, when such a question was put to her in her

cross-examination. However that does not mean that prosecutrix

was not knowing the accused or not knowing his name.

33. Further, referring to and relying upon some

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Judgements as about the credibility of the evidence of child

witnesses, the trial Court has declined to rely upon the evidence

of the prosecutrix.

34. Having regard to the facts as are involved in the

present matter, the finding so recorded by the learned trial

Judge is apparently noticed to be unsustainable. The law is not

that the testimony of a child witness is inadmissible in evidence.

The tender age and the old age are of course the factors, which

law regards as capable of affecting testimonial capacity of a

person, but the mere fact that a witness is of a tender age is

hardly sufficient to conclude that, he has no testimonial

competence. In the instant matter, learned trial Judge had put

certain questions to the prosecutrix and was satisfied with her

rational replies. That being the position it cannot be said that,

the prosecutrix had no maturity to understand import of the

questions put or to give rational answers. The prosecutrix was

cross-examined at length and in spite thereof she had described

in detail the scenario implicating the accused to be the author of

the crime. The answers given by the prosecutrix would go to

show that, she was not only repeating what somebody else had

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asked her to say. She gave vivid account of the occurrence.

Though varied questions were put to her in her cross-

examination, she has answered all those questions at her own,

which rules of the possibility of any tutoring. Mere reading over

her statement to her by the police and further asking her that,

she has to state whatever is there in the report in our opinion

would not amount to tutoring. The further fact admitted by the

prosecutrix that, the police told her if she would not depose as

per the statement read over to her, the accused will not be

punished and has also told her that, the accused again would

give her trouble after he would come at his house, also

according to us shall not be taken adversely. From the aforesaid

facts, no such conclusion is liable to be drawn that, the police

was asking the prosecutrix to state something false against the

accused, which had never happened. It cannot be forgotten

that, the prosecutrix was the victim of sexual assault. She was

not likely to forget the face of the person, who abused her. In

the circumstances though the prosecutrix has very innocently

admitted the suggestion given to her in her cross-examination

that, the parents and police shown her the accused, no such

inference can be drawn that, she could not have identified the

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accused, if the police and the parents had not showed the

accused to her. The further admission that, ‘for the first time

today I am seeing the accused before the Court’ also cannot be

taken adversely. The admission only means that, before the

Court the prosecutrix has first time seen the accused. It does not

in any way mean that, previously or in the past she had never

seen the accused. We reiterate that, the prosecutrix being victim

of the sexual assault, was definitely in a position to identify the

culprit. The mere fact that, she was asked to say about the

occurrence and as to what she saw, cannot be a reason to jump

to the conclusion that, it amounted to tutoring and that she was

deposing only as per the tutoring what was not otherwise what

she actually saw. Learned trial Court as we mentioned herein

before has failed in appreciating the aforesaid aspects and

swayed by certain admissions intelligently obtained by the

defence reached to the conclusion that, no reliance was liable to

be placed on the testimony of the prosecutrix.

35. As we have noted herein before, the evidence of the

prosecutrix has to be considered in background of the facts and

circumstances, which have come on record. The F.I.R. in a

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criminal case is a vital and valuable piece of evidence though

may not be a substantive piece of evidence. In the instant case,

the FIR was lodged within two hours of the alleged occurrence,

wherein the name of the accused and the spot of occurrence

were specifically disclosed. The promptness in lodging the FIR

was an assurance regarding the truth of informant’s version. A

promptly lodged FIR reflects the first hand account of what has

actually happened and who was responsible for the offence in

question. Further, as has been elaborately discussed by us, the

prosecutrix was immediately referred for her medical

examination and the evidence, which has been brought on

record by the prosecution, it has been beyond reasonable doubt

proved that, the prosecutrix was subjected to rape few hours

before her examination. As has been noted by us, the spot of

occurrence is also immediately visited by the police and

incriminating articles were recovered from the said spot, which

has confirmed the allegations made in the FIR. In this

background, if the testimony of the prosecutrix is considered, it

inspires full confidence and appears to be fully believable. Few

stray admissions given by the prosecutrix may not be enough to

wipe out the entire evidence of the prosecutrix. Even though

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the prosecutrix at one point of time in her cross-examination

stated that, she came out of the house of the accused at about

05:00 p.m., the said part of her evidence has to be just ignored

for the reason that, the other circumstances, which have come

on record and have been proved beyond reasonable doubt

demonstrate that, the FIR in the matter was lodged at 02:30

p.m. and the prosecutrix was thereafter immediately referred for

her medical examination. The spot panchanama of the alleged

spot of occurrence was also prepared during the period 03:00

p.m. to 03:45 p.m. on the same day i.e. 3rd May. At that time

prosecutrix was not there but was in the hospital.

36. Same is about the evidence of PW-4 Yogesh, a minor

boy of the age of 7 years, residing near the house of the accused.

PW-4 Yogesh has also deposed that, the alleged incident

happened at about 05:00 p.m. Having regard to the other

proved facts on record, the evidence of PW-4 Yogesh also has to

be simply ignored and no much capital can be made of the facts

stated by the said witness in his testimony before the Court.

37. The accused has taken the defence of his false

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implication. It is his contention that since his mother and sister

purchased the vacant land owned by the mother-in-law of PW-7

Bapurao and erected structure thereupon, PW-7 Bapurao had

nurtured a grudge against the accused. It was the further

contention of the accused that, PW-7 Bapurao was interested in

purchasing the said land and he had therefore given an offer to

the mother of the accused and the sister to accept money from

him and to return the property to him. However the said

proposal was rejected by the mother of the accused. It is the

further contention of the accused that PW-7 Bapurao was

annoyed because of the said incident and he, therefore, falsely

implicated him in the alleged crime.

38. The defence so raised by the accused is liable to be

rejected at the threshold. Firstly when the subject land was

purchased by the mother and sister of the accused, there was no

reason for PW-7 Bapurao to nurture any grudge against the

accused. In such case, it must have been against the mother and

sister of the accused. Further, the offer given by PW-7 Bapurao

according to the version of the accused was not rejected by the

accused, but was rejected by his mother and the sister. In this

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eventuality also, grievance must have been against the mother

and the sister of the accused and certainly not against the

accused.

39. In such circumstances, it appears quite improbable

that, for the aforesaid reason PW-7 Bapurao would have

indulged in lodging an absolute false case against the accused

that too of rape. The prosecutrix is admittedly the niece of

informant Bapurao. The parents of the prosecutrix in no case

would have allowed informant Bapurao to put to stake the

honour of their minor daughter for settling his score with the

accused. Even it cannot be accepted that, the informant Bapurao

would risk the honour of his minor niece to level such a serious

accusation of rape against the accused even if he had some

dispute with the accused to settle the said score. The defence so

raised by the accused must be therefore rejected.

40. After having considered the entire material on

record, we have reached to the conclusion that, the learned trial

Court has grossly erred in appreciating and analyzing the

evidence brought on record by the prosecution. The Hon’ble

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Apex Court time and again has said that, the cases of rape are to

be differently tried and the judge conducting such trial needs to

be more sensitive. The Hon’ble Apex Court in State of Andhra

Pradesh Vs. Gangula Satya Murthy, Judgment Today 1996

(10) SC 550 has observed thus :

“…. Courts are expected to show great responsibility
while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The
Courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
witnesses, which are not of a fatal nature to throw out
allegations of rape. This is all the more important
because of late crime against women in general and
rape in particular is on the increase. It is an irony that
while we are celebrating woman’s rights in all spheres,
we show little or no concern for her honour. It is a sad
reflection and we must emphasise that the courts must
deal with rape cases in particular with utmost
sensitivity and appreciate the evidence in the totality
of the background of the entire case and not in
isolation.”

41. The Hon’ble Apex Court in State of Punjab Vs.

Gurmit Singh and others, (1996) 2 Supreme Court Cases 384

has observed thus :

“The testimony of the victim of sexual assault is vital and
unless there are compelling reasons which necessitate
looking for corroboration of her statement, the courts
should find no difficulty in acting on the testimony of a
victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to
be reliable. Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should the
evidence of a girl or a woman who complains of rape or

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sexual molestation, be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence of
a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is a
witness who is interested in the outcome of the charge
levelled by her, but there is no requirement of law to
insist upon corroboration of her statement to base
conviction of an accused. The evidence of a victim of
sexual assault stands almost on a par with the evidence
of an injured witness and to an extent is even more
reliable. Just as a witness who has sustained some injury
in the occurrence, which is not found to be self-inflicted,
is considered to be a good witness in the sense that he is
least likely to shield the real culprit, the evidence of a
victim of a sexual offence is entitled to great weight,
absence of corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a
condition for judicial reliance on the testimony of the
prosecutrix is not a requirement of law but a guidance of
prudence under given circumstances. It must not be
overlooked that a woman or a girl subjected to sexual
assault is not an accomplice to the crime but is a victim
of another person’s lust and it is improper and
undesirable to test her evidence with a certain amount
of suspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts
and circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule
of law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling to
a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of sex
crime strikes the judicial mind as probable.”

42. We are constrained to observe that, learned trial

Judge has overlooked the guidelines laid down by the Hon’ble

Apex Court in conducting the rape trials and has given undue

weightage to the minor omissions and contradictions. While

raising suspicion on account of the admission given by the

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prosecutrix that, she came out of the house of the accused at

05:00 p.m., the trial Court ignored the other evidence on record,

which was clinchingly indicating that, at the relevant time, the

prosecutrix was in the hospital and not at the house of the

accused. The trial Court also failed in appreciating that, the spot

panchanama was conducted during 03:00 p.m. and 03:30 p.m.

and it is not the case that the prosecutrix was noticed in the

house of the prosecutrix at that time. The trial Court in such

circumstances must have realized that, there was some

inadvertent mistake occurred by the prosecutrix while stating

that timing. It cannot be forgotten that, at the relevant time, the

prosecutrix was a tender aged girl.

43. The question raised by the learned Sessions Judge as

to why the prosecutrix did not make a complaint immediately to

the neighbours of the accused, also according to us, much

irrelevant. A minor girl after having undergone the trauma of

sexual assault is not expected to speak about the said incident to

the strangers. In natural course, she would state about the

incident to her near once and preferably to her parents or aunt,

uncle etc., and not to the neighbours.

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44. The further observation made by the learned trial

Court that, why the police did not record the statement of the

prosecutrix immediately, also is unwarranted. As has come on

record, the prosecutrix was in hospital. She was operated in the

Civil Hospital at Jalgaon on 04.05.2001 and was there in the

hospital till 10.05.2001. In such circumstances, if her statement

was recorded on 8th of May, in no case it can be said that,

intentionally the delay was committed in recording the

statement.

45. Some other observations made by the learned trial

Judge for doubting the case of the prosecution are equally

unjust and uncalled for. Even if it is assumed that the prosecutrix

did not raise any alarm would it mean that she was a consenting

party? Further, how can the non-detection of semen in the

vaginal swab and absence of any injury to the penis of the

accused, be the grounds to doubt or disbelieve the testimony of

the tender aged prosecutrix. It is well settled that to constitute

the offence of rape what needs to be established is the act of

penetration and not seminal emission. The medical evidence

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showing that there were IIIrd degree perineal tears and vagina

of the prosecutrix was swollen proves beyond doubt that there

was deep penetration. Law is equally well settled that absence of

injury to the male organ of the accused may not lead to an

inference in all the cases that the accused did not have sexual

intercourse.

46. Having considered the entire material on record, we

have no doubt in our mind that, the prosecution has beyond

reasonable doubt proved that, the accused wrongfully confined

the prosecutrix in his house and committed rape on her. The

medical evidence fully establishes that, the accused had

penetrative sexual intercourse with the prosecutrix, who at the

relevant time was a minor girl aged about nine years. We,

therefore, hold the accused guilty for the offences punishable

under Sections 342 and 376 (2)(i) of I.P.C. and pass the

following order.

ORDER

(i) The Judgment and order passed by First Ad-hoc Additional
Sessions Judge, Jalgaon in Sessions Case No.142 of 2001
decided on 13th November, 2002 is quashed and set aside.

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(ii) The accused namely – Ravindra Kashinath Ghodke is

held guilty for the offences under Sections 342
376 (2)(i) of I.P.C. and is sentenced to suffer Rigorous
Imprisonment for one year for the offence under Section
342 of I.P.C. and to suffer Rigorous Imprisonment for 10
years for the offence under Section 376 (2)(i) of I.P.C. and
to pay fine of Rs.5,000/-, in default to suffer Rigorous
Imprisonment for six months.

(iii) Both the sentences shall run concurrently.

(iv) The accused shall be entitled for the set off as envisaged
under Section 428 of Code of Criminal Procedure of the
period of imprisonment already undergone by him.

(v) The accused shall surrender before the trial Court to
undergo sentence of imprisonment imposed upon him
within four weeks, failing which, the trial Court shall take
all necessary steps to secure the presence of the accused
and send him to jail to serve out the sentence imposed
upon him.

. Criminal Appeal thus stands allowed in the aforesaid
terms.

[SUNIL P. DESHMUKH] [ P.R. BORA ]
JUDGE JUDGE

ggpunde.

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