2005 ALL MR (Cri) 720
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

P.S. BRAHME, J.

Ishwar S/O. Rajaram Kuthe Vs. State Of Maharashtra

Criminal Appeal No.648 of 2003

19th July, 2004

Petitioner Counsel: Mr. M. R. DAGA
Respondent Counsel: Mr. LANJEWAR

(A) Penal Code (1860), S.376(1) - Rape - Absence of semen stains - No evidence to show that accused had discharged semen - Merely because semen stains are absent, it cannot be concluded that no rape was committed on prosecutrix.

The prosecutrix though stated about sexual intercourse has not stated that the accused had ejaculated semen when he inserted his penis in her vagina and had intercourse with her. There is no evidence to show that the accused had discharged semen in her vagina when he had sexual intercourse with her. Therefore, the absence of semen and blood in the vaginal swab or on the clothes of the appellant and prosecutrix, may be because of that. Hence, merely because semen stains are absent, it can not be concluded that no rape was committed on her. [Para 13]

(B) Penal Code (1860), S.376(1) - Sentence - Rape - Offence of rape committed on a girl of below 16 years - Accused married, having children - Accused in jail since 2½ years - Substantive sentence of 5 years of R.I. would meet ends of justice. (Para 15)

JUDGMENT

JUDGMENT :- Mr. M. R. Daga, Advocate for the appellant and Mr. Lanjewar, A.P.P. for respondent - State.

The appellant has filed this appeal challenging the Judgment and order passed by the 2nd Ad-hoc Additional Sessions Judge, Gadchiroli in Special Case No.3/2002 dated 18-8-2003 convicting him for offence under section 376(1) of I.P.C. and sentencing to R. I. for 7 years with fine of Rs.1000/-, in default to undergo further R.I. for 2 months.

2. The victim of sexual assault prosecutrix (P.W.1) aged about 14 years was daughter of witness - Kashiram (P.W.4). The incident in question took place on 10-1-2002 in the morning at about 10.00 a.m. when the prosecutrix accompanied by her friend - Rekha (P.W.2) was proceeding to attend school which is at a distance of about 1 k.m. from her village. On their way near a canal, the prosecutrix went to answer call of nature telling her friend Rekha to proceed and stop near the bridge. The prosecutrix after answering call of nature when proceeded on her way, the appellant who was son-in-law of the village of prosecutrix met her and he caught her by her neck and took her towards canal in bushes and after having fallen her on the ground and removing her underwear so also his pant, had sexual intercourse with her by penetrating his private part in her vagina. He also threatened her and pressed her throat so that she should not raise shouts. After committing rape on her, the appellant left the place on his bicycle. The prosecutrix went to her house from there. In the evening when her parents came she disclosed them the incident that took place in the morning stating specifically that the appellant committed rape on her. Her father sent message for Police Patil - Pandurang (P.W.5) who advised them to take the prosecutrix to Police Station to lodge report. Accordingly, the prosecutrix was brought to police station by her father where she lodged complaint - Exhibit 18 on the basis of which the first information report Exhibit 19 was drawn and after the offence was registered against the appellant. The prosecutrix was referred to the Medical Officer - Dr. Sadhana Jaiswal (P.W. 12) who was attached to the General Hospital, Gadchiroli. She was examined on 11-1-2002 at 5.00 p.m. Dr. Sadhana (P.W.12) in her evidence gave in detail her finding on examination of the prosecutrix as has been given in the certificate - Exhibit 15 issued by her. In addition to that in her evidence she has stated that no definite opinion about forceful sexual intercourse can be given. But on examination of the prosecutrix she found that her vagina admitted tip of finger with difficulty. She found her hymen was ruptured. She stated that there was possibility of sexual intercourse with the prosecutrix, at the same time she did not notice any bleeding injury on her private part or her body. Police Inspector - Sawarkar (P.W.13) carried out investigation in the matter. He visited the place of occurrence and prepared panchanama - Exhibit 22 in the presence of panch witness - Ashok Budhe (P.W.3). It is mentioned in the spot panchnama that books and note-books of complainant - prosecutrix were found lying at the place of occurrence, so also her greenish colour chaddi which came to be seized by making separate panchanama. The prosecutrix was referred to the Medical Officer, Radiologist for ossification test. The Medical Officer after carrying out the ossification test gave report Exhibit 49 wherein the age of the prosecutrix was stated to be between 12 years to 13 years (not less than 12 years and not more than 14 years). The witness - Omprakash (P.W.7) who was Headmaster of the school where the prosecutrix was taking her education from the school records gave date of birth of the prosecutrix as 24-11-1987. The appellant was arrested on 11-1-2002 and at that time his clothes came to be seized in panchanama - Exhibit 31 in presence of panch witness - Prabhatkumar (P.W.6). The property seized was sent to the Chemical Analyser for analysis. The report of the Chemical Analyser received vide Exhibit 15 shows that on the articles examined which included the clothes of the prosecutrix, the clothes of the appellant and vaginal swab, neither blood nor semen was detected. After completing the investigation, investigating officer filed charge-sheet on the basis of which the appellant was sent up for trial before the Special Judge.

3. The appellant before the Sessions Judge, when charge was framed pleaded not guilty to the charge and claimed to be tried. The prosecution examined in all 14 witnesses. The appellant was examined under section 313, wherein he denied the evidence and circumstances appearing against him. His defence, from the tenor of cross-examination appears to be that of total denial. However, it is not disputed that the appellant had gone on that day on his bicycle by that way carrying vegetables for sell. The witness - Gopika (P.W.9) who happens to be mother-in-law of appellant in her evidence stated that the appellant was residing with them along with her daughter and on the day of occurrence he had been in the morning gone to the village for selling vegetables. She has stated that he returned home, and on that day in the evening police had come and took away with them the appellant. The trial court accepting the evidence of the prosecutrix coupled with other evidence which comprised of disclosure by the prosecutrix to her father, Police Patil - Pandurang and other persons in the village came to the conclusion that the appellant has committed sexual assault on prosecutrix, a minor girl - below 16 years of age and accordingly proceeded to convict and sentence him for offence under section 376(1) as stated in the earlier part of the judgment. Hence this appeal.

4. I have heard Mr. Daga, learned counsel for the appellant and Mr. Lanjewar, learned A.P.P. for respondent - State. I have gone through the evidence as well as the judgment of the trial court with the assistance of learned counsel for the parties. It is no doubt true that the appellant has come out with defence of total denial. But then from the tenor of cross-examination of the witnesses including the prosecutrix, few facts as stated by the witnesses in their evidence have not been controverted. The prosecutrix in her evidence did state that on the date of occurrence, she proceeded for going to the school and she was accompanied by her friend - Rekha and that she on their way asking Rekha to proceed, went to answer call of nature and that the accused was found coming on bicycle this version of the prosecutrix is well corroborated by the evidence of witness Rekha. It is very surprising to note that the prosecution has declared her hostile and probably for the reason that she did not disclose about the accused, proceeding towards Usegaon on bicycle. But she did state in her evidence that she knew the accused. She did state about her friend prosecutrix having gone for answering call of nature asking her to proceed slowly and wait near the bridge, she did state that on that day prosecutrix did not come to the school. Defence has not disputed the fact that witness - Rekha was with the prosecutrix on that day. So far as the presence of the accused at the time and place is concerned, we have evidence of prosecutrix. She has stated in her evidence as to the manner in which the appellant accosted her, taken her to the bushes by the side of canal and then committed rape on her. Though the defence has challenged her version as to the factum of commission of rape on her tenor of cross-examination of her shows that the presence of the appellant is not disputed. It is brought in her cross-examination that she stated before the Police at the time of recording her statement that when accused was coming from the side of Shivrajpur on looking at him, she hidden herself into the bushes to the side of the road due to fear as she was knowing that he was a person known as "Badmash". It was suggested to her that when the accused was coming towards Usegaon from the side of Shivrapur he saw her with one boy near to a bush and that the accused told her that he would tell to her parents about wrong committed by her and that due to that she made false complaint against him to her parents. This suggestion was denied by the prosecutrix, but as I understand the things this suggestion does spell out the presence of the appellant at the time and place.

5. It is not disputed that the prosecutrix after having disclosed to her father they along with Police Patil went to the police station in the evening and lodged report Exhibit 18, on the basis of which the first information report was lodged vide Exhibit 19 and then the prosecutrix was examined on the next day by Medical Officer Dr. Sadhana Jaiswal. It is pertinent to note that the evidence of Dr. Sadhana Jaiswal practically went unchallenged. Her evidence and the certificate issued by her Exhibit 51 no doubt show that no injury was noticed either on private part or the body of the prosecutrix, but she has stated that the hymen was ruptured, there was possibility of sexual intercourse with the prosecutrix. It is also very clear from the report of the Chemical Analyser - Exhibit 15 that neither semen nor blood was detected either on the clothes of the prosecutrix and the appellant or in the vaginal swab.

6. Mr. Daga, the learned counsel for the appellant pointing out towards the negative finding by the Medical Officer on examining the prosecutrix as also mentioned in the certificate exhibit 51, the findings given by the Chemical Analyser in the report - Exhibit 51 and witness Rekha having not supported the prosecution, submitted vehemently that the claim of prosecutrix in her evidence that rape was committed on her by the appellant, is not at all acceptable and believable. He submitted that having regard to the circumstances, absence of medical evidence which are derogatory to the claim of the prosecutrix, the solitary version of the prosecutrix about the commission of rape does not inspire confidence. He submitted that in all probability had there been sexual intercourse with the prosecutrix, she would have suffered some injuries. About the rupture of her hymen the learned counsel pointed out that in the certificate Exhibit 51, the Medical Officer has not mentioned so. Therefore, what has been stated by the Medical Officer - Dr. Sadhana in her evidence about the rupture of hymen of the prosecutrix can not be accepted. That apart he submitted that had there been rupture of hymen due to sexual intercourse, then there should have been some injury to her private part. The Doctor has in her cross-examination admitted that due to reasons other than sexual intercourse with the girl, there is possibility of rupture of hymen. He therefore, submitted that on the evidence on record it is not at all established beyond reasonable doubt that the rape was committed or even sexual intercourse was done with the prosecutrix. Therefore, according to the learned counsel the trial court has committed error in convicting the appellant under section 376(1) of I.P.C.

7. Mr. Daga, in the alternate submitted that in the facts and circumstances at the most it can be said that the prosecutrix was sexually molested and for that the appellant could be held guilty for offence under section 354 of I.P.C. He pointed out that the appellant is in jail since 10-1-2002. The appellant is married person having children. He therefore, urged that in the facts and circumstances of the case leniency be shown to him in awarding sentence.

8. As against that Mr. Lanjewar, learned A.P.P. Pointed out from the evidence of prosecutrix that she has consistently stated about the commission of rape on her by the appellant at the time and place. However, her claim is supported by the fact that she disclosed the incident to her father - Kashiram (P.W.4) in the evening when he came from work. This also supported by Police Patil - Pandurang (P.W.5), then immediately complaint was lodged by going to the police station. He submitted that there is absolutely no reason for the prosecutrix and her father Kashiram to falsely implicate the appellant. He pointed out from the spot panchnama Exhibit 22 that note-books belonging to the complainant as also greenish chaddi belonging to the complainant was found lying at the place of occurrence. Panchas noticed marks at the place of occurrence. This lends assurance to what prosecutrix has claimed in her evidence. The prosecutrix was below 16 years of age. On the evidence on record her age was on the date of occurrence was 14 years 1½ months. Learned A.P.P. submitted that the manner in which accused acted shows that the prosecutrix could not have offered the resistance and she must have succumbed to the wishes of the appellant and as a result of that inspite of appellant having had sexual intercourse with her, she did not suffer any injury either on her body or on her private part. But rupture of hymen was positive indication of the prosecutrix being sexually ravished by the appellant. He therefore, urged that the trial court has rightly found the appellant guilty and as such the appeal merits no consideration at all.

9. The legal position as to appreciation of evidence of prosecutrix in a case of rape is settled by the Apex Court and High Court in the judgments and the pronouncements. It is laid down that solitary version of prosecutrix if inspires confidence is sufficient to convict the accused for the offence of committing rape on the prosecutrix. This is in the sense, if the evidence of the prosecutrix inspires confidence; it is found probable and plausible, but then no corroboration is necessary. In the case before hand as stated in earlier part of judgment, medical evidence coupled with the findings recorded by the Chemical Analyser referred in the report in that way did not support the claim of the prosecutrix. The learned counsel therefore submitted that the solitary version of the prosecutrix in that regard does not inspire confidence. I do not agree with this submission of learned counsel. Accepting the fact that the Medical Officer did not notice any injury on the private part of the prosecutrix and also negative findings recorded particularly absence of blood or semen on the person of the prosecutrix and her clothes, it can not be said the possibility of commission of sexual intercourse with the prosecutrix is totally ruled out. The prosecutrix was subjected to cross-examination by the defence. But her evidence and particularly her claim that the appellant committed sexual intercourse on her has not been shattered. Nothing is brought in her cross-examination to show that her claim is either false or improbable. It is pertment to note that the appellant was known to the prosecutrix and there was not even apparent cause for the prosecutrix or her father to implicate the appellant falsely in this case. Therefore, her evidence before the court inspires confidence.

10. In has come in the evidence of the prosecutrix that after she went home, she disclosed the incident to her father when he came in the evening. Her father - witness - Kashiram has stated in his evidence before the Court the fact that the prosecutrix - his daughter disclosed that the appellant committed rape on her. The immediate reaction of witness Kashiram was that he called police patil and some persons in the village and disclosed. Accordingly witness Pandurang who was police patil of the village came to the house of Kashiram and prosecutrix herself disclosed to him that the rape was committed on her by the appellant. The witness - Kashiram in his evidence has categorically stated that on being called by Kashiram, he went to house of prosecutrix and there when inquired with prosecutrix, she disclosed that rape was committed on her by the appellant. The evidence of witness - Kashiram and witness - Pandurang is consistent and remained undisturbed though both were subjected to cross-examination by defence. There was apparently no reason for both these witnesses to give false evidence against the appellant. The evidence of both the witnesses lends assurance to the claim of the prosecutrix that she immediately disclosed about the occurrence to them. This conduct on the part of the prosecutrix is as natural as it could be. It is significant to note that the name of the appellant was disclosed then and there and also reflected in the complaint Exhibit 18 which was lodged by the prosecutrix on going to the police station on that night itself. Therefore, there is reason to accept the claim of the prosecutrix as probable and true.

11. The prosecutrix was proceeding to her school, she was carrying her books and note books. It is her claim that on her way the appellant took her forcibly to the road side near the canal and fell her on the ground and committed rape on her. She stated that the appellant removed her underwear. It is matter of record and evidence that on the next day investigating officer drew spot panchnama Exhibit 22 and in that there is specific reference made to the books and note books lying at that place so also greenish colour chaddi of the prosecutrix. This factual position as depicted in the panchnama Exhibit 22 more particularly of finding of note books and greenish colour chaddi on the place of occurrence is not disputed by the defence. The evidence of witness - Ashok Budhe who was panch witness for spot panchnama Exhibit 22 remained undisturbed. In my opinion this evidence again lends assurance to the claim of the prosecutrix. It is true that merely finding of underwear and note books lying on the place of occurrence by itself will not be sufficient to establish that rape was committed on the prosecutrix. But then finding these articles on that place certainly lends assurance to her claim that she was taken forcibly and she was assaulted. That goes to show that some incident did take place in which she was fallen down on the ground after having taken her forcibly by the appellant. Then finding her nicker on the place of occurrence which came to be seized when spot panchnama Exhibit 22 was made, further lends assurance to the claim of the prosecutrix that her underwear was removed. In the background of this, there is reason to accept her claim that she was sexually ravished.

12. The learned counsel for the appellant has vehemently submitted that absence of injuries on the person of the prosecutrix as shown by the Medical Officer in the certificate Exhibit 51 and in her evidence is derogatory to the claim of the prosecutrix. He submitted with emphasis that absence of finding of blood or semen in the vaginal swab, on the person of the prosecutrix and her clothes, is again a circumstance against claim of prosecutrix. In the nature of the things if there is sexual intercourse against wishes of victim and if she is minor girl, then she would suffer some injuries to her private part. But then it is not that in each and every case on commission of sexual assault on a minor girl that the victim would suffer injuries to her private part. Reason being in case prosecutrix is a consenting party or resistance offered by her is over powered by the person committing rape, it is possible that the prosecutrix would not suffer any injury on her private part. Again it will depend upon the force with which the accused has taken sexual intercourse with the prosecutrix. In the case before hand it appears that the prosecutrix was not a consenting party. But she was knowing the appellant. The manner in which she has depicted sexual act performed by the appellant putting her on fear and threat even going to the extent of pressing her throat so that she should not raise shouts, goes to show that the prosecutrix had to succumb to the act of the accused of having sexual intercourse. If that is so then I do not think that there would have been any injury caused to the prosecutrix on her private part. It is pertinent to note that as stated by the Medical Officer that the hymen of the prosecutrix was ruptured, the medical officer has stated in his evidence and also it is mentioned in the certificate Exhibit 51 that prosecutrix per vaginal examination admit tip finger with difficulty. Therefore, with the result of rupture of hymen it can be said that at the time of taking intercourse the appellant might have penetrated his private part in her vaginal orifice. It appears that penetration must have been slight one. Absence of injuries on her private part must have been due to fact that no force would have used by the appellant while taking sexual intercourse. Therefore, absence of injuries on her private part is of no consequence. It is true that Medical Officer has admitted in her evidence that due to reasons other than the sexual intercourse with the girl there is possibility of rupture of hymen. The learned counsel making much capital of this admission submitted that in the case before hand in the absence of medical evidence particularly in absence of injuries on private part of the prosecutrix the rupture of hymen of the prosecutrix was possible due to other reasons than the sexual intercourse. It is very difficult to accept his submission when prosecutrix has specifically stated in her evidence that the accused had sexual intercourse with her. Her version in that regard is corroborated by the evidence of her father Kashiram as also witness - Pandurang and further immediate reporting the matter to police and as recited in the complaint exhibit 18. In this context it is again very material to note that the Medical Officer Dr. Sadhana Jaiswal in her evidence while stating that hymen of the prosecutrix was ruptured hasten to add that there was possibility of sexual intercourse with the girl. Having regard to this evidence of Medical Officer - Dr. Sadhana coupled with the positive evidence of prosecutrix, that the accused had sexual intercourse with her, the possibility of rupture of hymen due to reasons other than sexual intercourse as stated by the Medical Officer is meaningless.

13. The learned counsel for the appellant has vehemently submitted that in the vaginal swab neither semen nor blood was detected and therefore, there is no possibility of commission of sexual intercourse with the prosecutrix. It is difficult to accept this submission. The reason being that the prosecutrix though stated about sexual intercourse has not stated that the accused had ejaculated semen when he inserted his penis in her vagina and had intercourse with her. There is no evidence to show that the accused had discharged semen in her vagina when he had sexual intercourse with her. Therefore, the absence of semen and blood in the vaginal swab or on the clothes of the appellant and prosecutrix, may be because of that. Hence, merely because semen stains are absent, it can not be concluded that no rape was committed on her.

14. After scrutiny of evidence of prosecutrix I have found that her claim that the appellant committed sexual intercourse on her is true as her evidence inspires confidence. Her claim is further corroborated by the fact that she disclosed immediately to her father about the incident, it was also disclosed to witness Pandurang and on his advise report was lodged in the police station by the prosecutrix. There was no reason and time also for the prosecutrix and her father to concoct a false case against the appellant. The medical evidence that her hymen was ruptured lends assurance to her claim that the appellant had sexual intercourse with her. As observed in earlier part of judgment the appellant had been on the place of occurrence on that day, there was no question of identity of the appellant as the prosecutrix was knowing him. No circumstances are pointed out by the defence to show that the prosecutrix was consenting party. Even if it is said that the prosecutrix was consenting party, still then the appellant cannot be absolved as his accountability for commission of rape under section 376 of I.P.C. Admittedly the prosecutrix was under 16 years of age at the time of occurrence. It is on the evidence on record clinchingly established that the appellant had sexual intercourse with the prosecutrix by inserting his private part in her vagina. In my opinion the finding that her hymen ruptured was the result of penetration by the appellant in her vagina. In view of the established facts and circumstances the offence of commission of rape under section 376(1), I.P.C. is proved and established against the appellant beyond every shadow of doubt. The trial court has therefore committed no error in holding the appellant guilty.

15. The learned counsel for the appellant in alternate submitted that the sentence awarded by the trial court is not called for as in the circumstances more particularly the accused being married, having children and he being in jail since 2 years. The trial court has awarded minimum prescribed sentence of seven year R.I. But the proviso to sub-section (1) gives discretion to the court to award sentence less than minimum prescribed for the reasons assigned. In the case at hand the incident has taken place 2½ years before. The appellant is in jail since the date of occurrence. The appellant is having children. His wife and children are dependent on him. In my opinion in view of this exceptional circumstances and the fact that the appellant has already been in jail since 2 ½ years, there is justification to reduce the substance sentence taking recourse to the discretion left with the court by the proviso to section 376(1) of I.P.C. in respect of awarding sentence. In my opinion, substantive sentence of 5 years of R.I. would meet the ends of justice. The appeal will have to be dismissed with this much of modification in the substantive sentence. Hence the order.O R D E R

16. The appeal is dismissed. However, the substantive sentence is modified and reduced to 5 years R.I. The appellant is entitled to set off in respect of the period already undergone.

Appeal dismissed.