CRI.APPEAL.113.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
…
CRIMINAL APPEAL NO.113/ 2003
The State of Maharashtra
Through Police Station Officer
Khandala, Tq. Pusad, Dist.Yavatmal. .. APPELLANT
versus
Suresh s/o Dema Waghmare
Aged about 21 years,
R/o Sapti, P.S. Khandala
Tq. Pusad, Dist. Yavatmal. .. RESPONDENT
……………………………………………………………………………………………………………………………..
Mr. S.B. Bissa, Additional Public Prosecutor for appellant -State
Mr. R.S. Kurekar, Advocate for respondent
………………………………………………………………………………………………………………………………
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 28th September, 2017
ORAL JUDGMENT:
Being aggrieved by the judgment and order dated 09.04.2002 in Special
Case No.18/2001 delivered by the learned Special Judge and Additional Sessions
Judge, Pusad, acquitting the respondent (hereinafter referred to as ‘the accused’) for
the offence punishable under section 376 of the Indian Penal Code and and Section
3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, the present Appeal is filed, at the instance of the appellant-State.
2. I have heard Mr. S.B.Bissa, learned Additional Public prosecutor for the
appellant-State and Mr.R.S.Kurekar, learned counsel for the accused. With their
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assistance, I have gone through the record and proceedings of the case, minutely.
3. Brief facts giving rise to the instant Appeal may be summarized as
under:-
The complainant-Bhimrao Thorat (PW5) was resident of Isapur, Tq.
Pusad, and belongs to ‘Mahar’ Scheduled Caste. He was working as labourer on daily
wages and was residing with his daughter PW3(victim), aged about 10-years old and
two sons. On 10.11.2001 when the complainant was resting in his house at about 1.00
pm, the victim rushed to him and told him that accused-Suresh had called her in the
field, under the pretext of giving sugarcane. The accused drove her friend Ku,.Amrapali
Kamble who accompanied her. Then he took the victim in the sugarcane crop. He
made to lie down and removed her nicker and committed forcible sexual intercourse on
her, as a result of which, blood started oozing from her vagina. On hearing this, the
complainant checked nicker of his daughter and found that it was smeared with blood.
The complainant then proceeded to Police Station along with his daughter (PW3),
Police Patil and Sudam Khadse (PW6). The complainant lodged his complaint (Exh.
23).
4. At the relevant time, PW10-Madhukar Londhe was attached to Pusad
Police Station outpost Shambalpimpri. On 10.11.2001 he had gone to Pusad for
execution of warrants. At about 6.00 p.m. when he returned back to Shambalpimpri
near Pusad City, he met the complainant-Bhimrao Thorat and his daughter. PW 10
then took complainant to Police Station Pusad and recorded the complaint of the
complainant (Exh.23). On the basis of said complaint, PW10 registered the offence. As
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it was bleeding from the private part of the victim, PW10 sent victim to the hospital for
her medical examination. PW10 arrested the accused and sent him for medical
examination to the hospital at Pusad. PW10 took charge of the clothes of the victim
under Panchnama (Exh.41) and the clothes of the accused under Panchnama (Exh.42).
PW 10 seized the blood samples and swab of the victim under Exh.43.
5. After completion of investigation, PW10 submitted the charge-sheet in
the Court of learned JMFC. The case was committed to the Court of Sessions.
Charge was framed by the learned trial Judge who, on analysis of the evidence on
record and after hering both the sides, acquitted the accused, as aforesaid. Hence
this Appeal.
6. Mr.S.B.Bissa, learned APP has vehemently argued that the learned trial
Judge has not considered the testimony of the witnesses in its right perspective and
erroneously aquitted the accused. According to learned APP the judgment and order
passed by the learned trial Judge is illegal and perverse.
7. Learned counsel for the accused contended that the learned trial Judge
has, on assessment of the entire evidence on record, rightly acquitted the accused.
8. At the outset, it may be mentioned that by now, the law is well-settled in
respect of the appeal against acquittal, merely because, the other view is possible that
itself is not sufficient for the Appellate Court to record a different finding though the
Appellate Court has full power to re-appreciate the entire prosecution case. For
exercising the appellate power in the Appeal against acquittal the judgment appealed
against, has to be perverse one or the view taken by the Court below is impermissible
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on the basis of the evidence that is brought on record.
9. In view of the settled position of law, the case of the prosecution is
scrutinised. The prosecution has heavily relied upon the testimony of the complainant
PW5-Bhimrao Thorat, who is the father of the victim (PW3), the friend of the victim PW
4-Amrapali Kamble, Police Patil-Sudam Khadse (PW6), the Medical Officer, the panch
witness and the Investigating officer. So far as the testimony of PW5-Bhimrao is
concerned, according to him, on the date of the incident at about 1 to 1.30 p.m, when
he was in his house, his daughter PW3 came in a frightened condition. Her punjabi
kurta was stained with blood and blood was oozing from her knicker. On making
enquiry by the complainant, his daughter narrated the incident to him. PW5 then went
to the Police Patil. Thereafter PW5 along with Police Patil and 2- 4 persons went to the
field of Dr.Naik. He saw accused-Suresh in the field. Accused Suresh came out from
the sugarcane field and started running. The Police Patil caught hold of Suresh and
thereafter they came to Shembalpimpri and then to Pusad. PW5 lodged his complaint
(Exh.23). During the cross-examination, it was suggested to PW 5 that he had gone to
Police Station, Khandala but since his case is bogus, he went to Pusad and there the
complaint was lodged. PW5 denied the said suggestion. It was also suggested that
accused-Suresh did nothing with his daughter and other boys might have done
something and he is deposing falsely, to which he denied. The testimony of PW5 is
unshaken in the cross-examination. His testimony is corroborated with his complaint
(Exh.23). There is nothing to disbelieve the testimony of PW5.
10. Coming to the testimony of PW 3-victim, at the relevant time, she was
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aged about 10 years. Hence considering that she does not understand the sanctity of
oath, the same was not administered to her. It is well-settled that the testimony of the
child witness is to be believed unless it is found that it does not inspire confidence.
There is nothing to disbelieve the testimony of the victim. PW 3 deposed that she
along with her friend Amrapali Kamble went to the field of Dr. Naik for collecting fuel
at about 12.00 noon. They both cut one sugarcane each. At that time, the accused
Suresh came there, caught hold of her hand and dragged her inside the sugarcane
crop. He threatened Amrapali (PW4) of beating and therefore she went to her house.
She deposed that the accused took her in the crop of sugarcane, removed her nicker
and made her to lie down. He removed his underwear and put his penis in her private
part. At that time, it was bleeding. Therefore, the accused left PW3. Then she went
to her house running. Her father was sleeping in the house. She narrated the incident
to her father. Thereafter she along with her father went to the Police Patil. She narrated
the incident to Police Patil. Then they all went towards the field. They caught hold of
accused. Then they all came to Pusad in an auto rickshaw. Her father then lodged a
report in the Police Station. PW3 stated that the Doctor examined her. The police took
charge of her punjabi kurta and knicker. PW3 categorically denied that before the arrest
of the accused she was not aware of his name. The contradiction was pointed out in
her version that in her statement it is mentioned that one person forcibly committed
sexual intercourse with her and he is Suresh and she came to know about his name
after his arrest. The said contradiction cannot be termed as contradiction as such as
PW3 admitted to said suggestion given to her. In this context, it is significant to note
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that PW3 has categorically stated that when she was taken to the Police Station, the
accused was also with them. It means that PW3 had an ample opportunity to see the
accused and she did not dispute his identity at the relevant time. It is the specific case
of the prosecution that the victim narrated the incident to her father, her father took her
to the house of Police Patil and thereafter the Police Patil and other persons went to
the place of incident, which is the field of Dr. Naik and, at that place, the accused
was apprehended by them. If at all the accused was not involved in the offence, the
victim would have pointed out the said fact to her father immediately. In view thereof, in
my opinion, there is no such discrepancy in her testimony. PW3 denied that she
along with Amrapali were cutting sugarcane, then accused who was working in that
field came towards them. The portion was marked as “B” for identification and then it
was exhibited as Exh.19. PW3 denied that on seeing accused, her friend-Amrapali
fled away. The said portion was marked as “C’. These discrepancies do not go to the
root of the case and PW3 is found to be a reliable and trustworthy witness, Her
testimony makes clear that she had informed her father that accused Suresh had
committed forcible sexual intercourse with her. Her testimony further shows that she
was bleeding from the private part and due to said bleeding, her clothes were smeared
with blood.
11. The testimony of PW3 is not at all shaken in the cross-examination
and she is found to be a reliable witness. Thus, the testimony of PW5 corroborates with
the testimony of PW3 victim.
12. So far as the testimony of friend of the victim is concerned, namely
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Amrapali Kamble (PW 4), she has deposed that she along with the victim had gone to
the field of for collecting fuel at about 12.00 noon. Accused Suresh asked them to wait
and said that he will give sugarcane. Then accused caught hold the hand of the
victim and threatened to PW4 and drove her out of the field and took the victim in the
sugarcane field. PW4 then returned to her house. In the cross-examination, it was
suggested to PW4 that when they were cutting sugarcane accused said as to why the
sugarcane is cut and therefore they ran away. The said suggestion confirms the
presence of the accused at the place of the incident which was the field of Dr.Naik.
PW4 stated that at that time victim and two boys went running in the sugarcane field.
Then she went to her house. As such, she does not know what happened thereafter.
Thus, efforts were made to suggest by the defence that at the relevant time two boys
were also present in the sugarcane field. Apart from that, nothing is elicited from the
testimony of PW4 and her testimony suggests that she accompanied the victim to the
sugarcane field of Dr.Naik and the accused was present in the said field. At this
juncture, it is significant to note that if at all the victim had any confusion with regard
to the identity of the accused, she would have not confirmed about the presence of
the accused at the place of the incident and she would have not named the accused
while informing the incident to her father immediately. It is the specific case of the
victim that she was knowing the accused. Thus, the testimony of PW4 supports the
testimony of the victim PW3.
13. As far as the testimony of PW 6-Sudhakar Khadse, Police Patil is
concerned, it supports the case of the prosecution to the effect that on the date of the
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incident at about 1.30 to 2.00 p.m., complainant-Bhimrao along with his daughter came
to him and informed the incident to him. He immediately took four persons with him
and went in search the accused. The accused was found near the field of Dr.Naik.
They caught hold of him and brought him towards the village. From there, in an auto-
rickshaw they went to Shembalpimpri. He deposed that they came to know that head
constable had gone to Pusad and therefore they all proceeded to Pusad Police Station.
Near the police station they met H.C. Londhe. They then went to Pusad city Police
Station where the complaint of PW5-Bhimrao was recorded. Thereafter they proceeded
to General Hospital along with the victim and the accused. Suresh was taken to
Khandala Police Station. In the cross-examination it was pointed out that the Police
Patil was related to the complainant. However PW 6 denied the said suggestion. The
testimony of PW 6 is not shattered in the cross-examination.
14. As far as the medical evidence is concerned, the testimony of PW 7 Dr.
Chanchal Gaziyani, who examined the victim and deposed that the victim was not able
to perform sexual intercourse, however, forceful sexual intercourse has been done
because little finger is able to penetrate in her private part. PW7 explicitly stated that
there was a slight bleeding present in the private part of the victim, although no
obvious internal injury was found. PW7 issued the medical certificate Exh.34. PW 7
denied that if a person falls on sugarcane, such injury can be caused. The testimony of
PW 7 corroborates with the testimony of the victim (PW3) as well as her father (PW 5).
In this context, it is significant to note that as the hymen of the victim aged about 9 to
10 years old, is deeply situated there is no question of any injury to the internal organs
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of the victim. The testimony of PW7 shows that the victim was subjected to sexual
intercourse and it was bleeding from her private part.
15. The testimony of PW11-Dr.Birbal Pawar, who is the Medical officer who
examined the accused, shows that there was abrasion over the glans penis of the
accused. The medical certificate of the accused was issued by PW 11 (Exh.59). PW 11
has categorically stated that the abrasion on the glans penis is found in forceful
penetration cases and attempt to forceful penetration. The said abrasion was less than
12 hours. The testimony of PW11 supports the case of the prosecution. Thus, the
prosecution has established that the victim was subjected to sexual intercourse and it
was none else than the accused who had committed the said act.
16. In case of State of H.P. v. Sanjay Kumar alias Sunny reported in 2017(3)
Mh.L.J. (Cri.)(S.C.) 68, the Hon’ble apex Court has held in paragraph 31 as under :-
“31. By now it is well settled that the testimony
of a victim in cases of sexual offences is vital
and unless there are compelling reasons which
necessitate looking for corroboration of a
statement, the Courts should find no difficulty to
act on the testimony of the victim of a sexual
assault alone to convict the accused. No doubt,
her testimony has to inspire confidence.
Seeking corroboration to a statement before
relying upon the same as a rule, in such cases,
would literally amount to adding insult to injury.
The deposition of the prosecutrix has, thus, to
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10the victim of rape is not an accomplice and her
evidence can be acted upon without
corroboration. She stands at a higher pedestal
than an injured witness does. If the Court finds
it difficult to accept her version, it may seek
corroboration from some evidence which lends
assurance to her version. To insist on
corroboration, except in the rarest of rare cases,
is to equate one who is a victim of the lust of
another with an accomplice to a crime and
thereby insult womanhood. It would be adding
insult to injury to tell a woman that her claim of
rape will not be believed unless it is
corroborated in material particulars, as in the
case of an accomplice to crime. Why should
the evidence of the girl or the woman who
complains of rape or sexual molestation be
viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or
suspicion? The plea about lack of corroboration
has no substance.”
17. In case of Aman Kumar and another v. State of Haryana, reported in
(2004) 4 SCC 379, the Hon’ble apex Court has held as under :-
“It is well settled that a prosecutrix complaining
of having been a victim of the offence of rape is not an
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11her testimony cannot be acted upon without
corroboration in material particulars. She stands on a
higher pedestal than an injured witness. In the latter
case, there is injury on the physical form, while in the
former it is both physical as well as psychological and
emotional.”
18. In my considered view, the learned trial Judge has not considered the
above aspects of the matter. Since the accused was arrested on the same day, and
the victim had named him, when she met her father in her house, there is no question
of mistaken identity of the accused. The incident had taken place in the broad daylight
the victim was aged about 10-years old at the the relevant time and her testimony
inspires confidence and, as such, there is no question of false implication of the
accused in the instant case. The injury on the private part of the victim which was
bleeding injury clearly indicates that the incident had taken place at the relevant time.
There was no reason for the father of the victim to falsely implicate the accused in such
a heinous offence by putting the reputation of his daughter and his family at stake. So
also, it is not at all the case of the accused that there was any sort of rivalry between
the father of the victim and the accused so as to falsely implicate him in such a
heinous crime. In case of rape, neither the victim nor her parents would like to
implicate any other person than the real culprit. The learned trial Judge ought to have
considered all those aspects in its right perspective.
19. No doubt, the victim belongs to “Mahar” Scheduled Caste. However the
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allegations against accused was that he being the member of SC, used his position as
a landlord and committed rape on the victim. In that regard, it is an admitted fact that
the accused was not the landlord of the field. However the accused was working as a
servant in the field of Dr. Naik. There is no evidence on record that the accused was
in position to dominate the will of the victim and used his position to exploit her
sexually to which she would have not otherwise agreed. The learned trial Judge has
rightly acquitted the accused under this provision.
20. For the reasons aforesaid, I am of the opinion that the following order
would meet the ends of justice:-
ORDER
I) Criminal Appeal No. 113/2003 is partly allowed.
ii) The judgment and order dated 09.04.2002 in Special Case No.18/2001
delivered by the learned Special Judge and Additional Sessions Judge, Pusad,
acquitting the respondent for offence punishable under section 3(1)(xii) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is hereby
confirmed.
iii) The judgment and order dated 09.04.2002 in Special Case No.18/2001
delivered by the learned Special Judge and Additional Sessions Judge, Pusad,
acquitting the respondent for offence punishable under section 376 of the Indian Penal
Code, is set aside. He is convicted for offence punishable u/s 376 of the IPC and is
sentenced to suffer R.I. for a period of seven years.
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iv) The respondent/accused to appear before the trial court within a period of four
weeks, to undergo the jail sentence.
v) The respondent is entitled for set off u/s 428 of Cr.P.C. for the period undergone
by him as an undertrial prisoner.
JUDGE
sahare
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