2006 ALL MR (Cri) 645
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.K. SHAH, J.

Ashok Barkya Dalvi & Anr.Vs.State Of Maharashtra

Criminal Appeal No. 444 of 1991

17th January, 2006

Petitioner Counsel: Mr. S. R. CHITNIS
Respondent Counsel: Mr. S. V. GAJARE

Penal Code (1860), S.376 - Rape - Conviction - Validity - Accused person alleged to have raped prosecutrix - Evidence of prosecutrix corroborated by evidence of eye-witness arriving at spot and seeing accused person running therefrom - Medical evidence and C.A. Report also corroborating same - Order of conviction upheld - Considering age of accused at the time of incident and passage of 19 years, sentence of 10 yrs. reduced to 5 yrs. R.I. each. (Paras 16, 18)

JUDGMENT

JUDGMENT : - Two accused have filed this appeal against order of their conviction passed by III Additional Sessions Judge, Thane in Sessions Case No.387/87 for the offence punishable under Section 376(2)(g) of the Indian Penal Code and sentencing them to suffer R.I. for 10 years and pay fine of Rs.200/- I.D. 15 days R.I. as also for the offence punishable under Section 323 r/w. 34 of the Indian Penal Code and sentenced to suffer R.I. for 3 months and pay fine of Rs.50/- I.D. 7 days R.I. each.

2. Briefly stated the case of the prosecution was that prosecutrix wife of Ramji Kadu resident of Ambatpada, Tal.-Dahanu, Dist.-Thane attended marriage at the house of Shankar Ukhirde at the same village on 09.02.1987. Her husband had gone to another village. She attended the marriage at about 7 p.m. and left the place of marriage at about 8 p.m. for going to her house which was situated 300 ft away. It was case of the prosecution that when she was going back to her house near a Mango tree, she was held by the accused from behind. The accused No.1 Ashok gagged her mouth putting his hand on the mouth. Both of them laid her on the ground, removed her clothes and committed rape on her one after other. After the act was done, they ran away. During the incident, she sustained abrasion. After the accused ran away, she started crying. While she was crying, Gangubai (P.W.4) heard her cries and therefore went to the prosecutrix and tried to pacify. It was moon light night. Gangubai had seen both the accused running away. Gangubai took prosecutrix to her house.

3. It is alleged by the prosecution that her husband Ramji returned home after 8 days and thereafter the husband took her to the Police Station at Dahanu and lodged complaint on 16.02.1987. ASI Jaisingh Vasantrao Chavan was then attached to Dahanu Police Station as a Probationer. PSI Arondekar who was attached to Dahanu Police Station had recorded complaint of the prosecutrix (P.W.1). PSI Arondekar has expired. PSI Chavan (P.W.5) had assisted PSI Arondekar in the investigation. He arrested both the accused and sent articles to the laboratory. During investigation, the prosecutrix was sent to the Medical Officer for examination. After investigation, charge-sheet came to be filed against the accused to the Court of J.M.F.C. Dahanu, who in turn committed the case to the Sessions Court, Thane.

4. The charge was framed against both the accused. Both the accused pleaded not guilty to the charge levelled against them. They claimed to be innocent. Their defence is that they are falsely implicated in the case as a result of previous enmity.

5. The evidence recorded in trial Court was of the prosecutrix (P.W.1); Ramji Halya Kadu (P.W.2) the husband of prosecutrix. Dr. Vishwanath Randhaya Piremath (P.W.3) who examined the prosecutrix; Gangubai Jetya Kokera (P.W.4); who arrived at the spot soon after the incident and P.S.I. Jaisingh Vasantrao Chavan (P.W.5), who assisted the I.O. during the investigation. Besides, there is report of Chemical Analyser.

6. The learned Additional Sessions Judge, Thane, considered the entire evidence of the prosecutrix having been corroborated by the medical evidence and the report of the Chemical Analyser with regard to finding of semen of accused No.2 on the prosecutrix's saree. He, therefore, convicted both the accused and sentenced them as aforesaid.

7. With the assistance of the learned Counsel appearing for the accused and the learned Public Prosecutor, I have gone through the entire evidence.

8. The evidence of prosecutrix (P.W.1) shows that on the night of the incident, she had gone to attend marriage of Shankar Ukhirde of her village which is around 300 ft. away from her residence. At about 8 p.m. she was returning home. While she reached near a mango tree, she was held by accused. Accused No.1 gagged her month by putting his hand. Accused Nos.1 & 2 then laid her on the ground and removed her clothes. Then accused No.1 had sexual intercourse with her. Thereafter, accused No.2 had sexual intercourse with her. During the incident, she had abrasions as the accused had rubbed her on the ground. After the act was done by both the accused, they started running away. She then was crying. At that time, Gangubai came there and tried to pacify.

9. The evidence of Gangubai (P.W.4) shows that at the night of the incident, while she was in her house, she heard hue and cry of the prosecutrix. She, therefore, went near her. She also saw both the accused running away towards their houses in the same hamlet. She enquired with the prosecutrix as to why she was weeping. Thereupon, the prosecutrix told her that both the accused have committed rape on her. Gangubai's evidence shows that the prosecutrix's saree was lying there on the ground and prosecutrix was naked. She gave saree to the prosecutrix and took her to the prosecutrix's house.

10. This evidence of Gangubai fully corroborates the evidence of prosecutrix, in that soon after the incident Gangubai found prosecutrix under Mango tree in naked condition. Her saree was lying on the ground. She also corroborates the version of the prosecutrix that after the incident she was crying. Gangubai's evidence also corroborates the fact that the two accused were present at the spot at the alleged time of the incident and immediately after the incidence, the prosecutrix disclosed the fact that the two accused committed rape on her, to Gangubai.

11. There is evidence of Medical Officer, V. R. Piremath (P.W.3). His evidence shows that he examined the prosecutrix on 16.02.1987 at 7.40 a.m. i.e. about 6 to 7 days after the incident. On examination he found ontusion on infraclavicular region, contused swelling on maxillary region, healed abrasion with dry black scab on right elbow, abrasion with dry healed scab on right infra scapular region, healed abrasion with dry scab over left knees. The evidence of Dr. Piremath further shows that these injuries were aged between 3 days to 10 days and accordingly he issued Medical Certificate, which is at Exh.17.

12. The Medical Officer had also examined both the accused on 06.04.1987 after they were referred by the Police. He found both the accused being capable of sexual intercourse and accordingly he issued certificates at Exhs.18 & 19. The Medical Officer had also collected blood, semen and pubic hair of both the accused. They were sent to the Chemical Analyser along with clothes. The report of the analysis Exh.27 indicated that no Semen was detected on the vaginal swab. The another C.A. report at Exh.27/1 indicated that the saree of the prosecutrix was found to be stained with blood at different places of the diameter of 0.1 to 5 cms. At the middle portion of the saree it was also having few semen stains ranging from 1 cms. to 5 cms. in diameter. The blood group of the semen found at the saree was 'O'. The C.A. report at Exh.27/1 shows that the blood group of semen of the accused No.1 was 'A' and the blood group of semen of the accused No.2 was 'O'. This evidence, therefore, confirms that the semen of the accused No.2 which was of blood group of 'O' was found on the saree of the prosecutrix.

13. All this evidence therefore corroborates the evidence of the prosecutrix, when she states that she was raped by the accused Nos.1 & 2.

14. Nothing material has been brought in the cross-examination of these witnesses. What is vehemently submitted on behalf of the defence is that the distance between the house of the prosecutrix and the place of marriage is hardly 300 ft. The prosecutrix should have raised hue and cry and it must have been heard by number of people who attended the marriage. He further submits that the prosecutrix had not raised any hue and cry and therefore in all probability was a matter of consent by the prosecutrix who was 35 years of age. However, this argument is not palatable at all. It has come in the evidence that at the place of marriage, there was loud-speakers and it was on. It has also come in the evidence of prosecutrix that because of her gagged mouth by accused No.1 by his hand, she was unable to raise shouts. Even if, she had raised shouts, those could not have been heard in the loud-speaker. The submission that the prosecutrix was consenting party also is inconsistent with the fact that the prosecurtrix was found crying while Gangubai saw her after the incident. Had there been consent, it was improbable that the prosecutrix would be crying and sitting with her saree lying aside. Had she been consenting party, she would have gone away from the place immediately after the incident was over.

15. Another vehement submission on behalf of defence is that the prosecutrix has admitted in the cross-examination that at about 6 days prior to the incident, there was quarrel between prosecutrix's husband and the accused No.1 and because of this, both the accused were falsely implicated by the prosecutrix. However, this submission is not acceptable. It is totally improbable that the women would make false charge of rape merely because there was quarrel between her husband and the accused person. On the contrary, it is probable that the accused persons may have raped the prosecutrix as a result of their quarrel with her husband with a view to take revenge. At any rate, that submission is not acceptable.

16. Apart from this, the evidence of prosecutrix is fully corroborated by Gangubai who arrived at the spot soon after the incident and who had also seen both the accused running away from the spot. There is also corroboration found from the medical evidence. The prosecutrix was having injuries on her body, which she sustained during sexual intercourse. There is also corroboration from the report of C.A. indicating that semen of the accused was found on the saree of the prosecutrix. Under these circumstances I find no merits in the appeal and it deserves to be dismissed.

17. On the ground of sentence, the learned Counsel for the accused submits that the appeal is being decided after 19 years. At the time of incident, the accused were of 24-25 age. He submits that both the accused have settled in their life and if they are now sent to jail, it would unsettle both the accused in their life again. In the alternative, he also submits that the lenience should be shown on these grounds. On the other hand the learned prosecutor submits that no lenience should be shown and the sentence should be confirmed.

18. I have given serious thought to the facts of the matter. It is a fact that at the time of incident accused No.1 was 24 years of age and accused No.2 was 25 years of age. Even though merely because 19 years have passed, no leniency can be shown. However, as a result of passage of such large number of years, it would have an effect of unsettling accused No.1 and 2's life and disturb their family. Taking overall view of this matter, I find it just to reduce the sentence of 10 years and pass following order which in my opinion would meet the ends of justice.

ORDER

1) The above conviction of the appellant Nos.1 and 2 of the offence punishable u/s.376(2)(g) is hereby confirmed.

2) The sentence of imprisonment of 10 years passed against both the accused is hereby modified and both the appellants are sentenced to suffer R.I. for 5 years and to pay fine of Rs.5000/- I.D. to suffer R.I. for 3 months each.

3) Rest of the order and sentence is maintained.

4) Out of amount of fine paid by each of the accused, total amount of Rs.6000/- should be paid to the prosecutrix by way of compensation.

Order accordingly.