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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
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31 169.2003Cri.Apeal.docsexual 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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