2009 ALL MR (Cri) 2647
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
V.R. KINGAONKAR, J.
Balaji Bhau Kale Vs. State Of Maharashtra
Criminal Appeal No.135 of 2009
29th July, 2009
Petitioner Counsel: Mr. M. D. SHINDE
Respondent Counsel: Mr. K. S. PATIL
Penal Code (1860), S.376 - Sentence - Rape - Prosecutrix after altercation with husband went to the house of her sister - Sister after a quarrel with her husband went to her parents - Prosecutrix and her eight year old son continued to stay in sisters' house - Her brother-in-law, son, and she were sleeping at a short distance from each other on the relevant night - Brother-in-law infatuated by her youthfulness forcibly raped her ignoring her resistance - Next day she came back to her house and after consulting her mother-in-law and brothers-in-law lodged police complaint - Held, substantive sentence of 7 years was required to be reduced to 4 years R.I. in view of mitigating circumstances. (Paras 10-12)
State of U.P. Vs. Munshi, 2009 ALL MR (Cri) 556 (S.C.)=AIR 2009 S.C. 370 [Para 9]
S. Ramakrishna Vs. State, 2009 ALL MR (Cri) 556 (S.C.)=AIR 2009 S.C. 885 [Para 9]
Rajendra Datta Zarekar Vs. State of Goa, 2008 ALL MR (Cri) 569 (S.C.)=2007 AIR SCW 7588 [Para 9]
JUDGMENT :- Challenge in this appeal is to judgment rendered by learned Additional Sessions Judge, Osmanabad, in Sessions Case No. 40/2008 whereby and whereunder the appellant came to be convicted for offence punishable under section 376 (1) of the I.P. Code and is sentenced to suffer rigorous imprisonment for seven (7) years and to pay a fine of Rs.1,000/, in default to suffer simple imprisonment for six (6) months.
2. Briefly stated, the prosecution case is that PW-2 Sangita (prosecutrix) is a young housewife. Her husband is a truck driver. The appellant is her brother-in-law, being husband of her real sister. The appellant and his wife used to reside at village Chorakhali in the proximity of a brick-kiln with their minor child. The prosecutrix was having a son aged about eight (8) years at the material time. On 5th March, 2007, due to bickerings between herself and her husband, the prosecutrix left house of the husband alongwith the child with intention to go to her parental house. She, however, first went to house of the appellant and her sister insisted of going to house of her parents. Coincidentally, there took place quarrel between her sister Lata and the appellant. Her sister left his house and proceeded to house of their parents at village Dhanora. The prosecutrix and her minor son, however, remained back at house of the appellant. On 8th March, 2007, the prosecutrix took meals in the evening and went to bed. At about midnight, or sometime prior to it, she awoke from the slumber when she noticed that someone had touched her person. She noticed that the appellant was sitting near her. She inquired with him as to why he was behaving in such a manner. He then asked her to keep quiet. He told her that he will maintain her and that they should marry. She refused his proposal. He fell on her person and attempted to press her. He thereafter pulled up ward her saree and petticoat, got removed his undergarment and committed forcible sexual intercourse with her. In the early morning, the prosecutrix returned to the marital house at village Pathardi. She narrated the incident to her mother-in-law (PW3 Rukminibai) and brothers-in-law, etc. Thereafter, they decided to approach the police. They went to the Police Station. Her complaint was reduced into writing vide Exh.18. It was treated as F.I.R. and offence vide crime No. 72/2007 was registered against the appellant. The prosecutrix was subjected to medical examination. The appellant was arrested in connection with the alleged crime. On basis of material gathered during the course of investigation, he was charge-sheeted for offence punishable under section 376 of the I.P. Code.
3. The appellant denied truth into the charge. According to him, prior to about three (3) years, husband of the prosecutrix had borrowed amount of Rs.30,000/- from him on account of medical expenditure required due to his hospitalization as he was victim of an accident. He was demanding the said amount from the prosecutrix because she had taken that amount from him. In order to avoid repeated demands of the money and to deny the liability, she got him falsely involved in the case. He asserted that the prosecutrix had never visited his house as alleged nor he had forcibly ravished her during the relevant night.
4. At the trial, the prosecution examined four (4) witnesses in support of its case. The learned Sessions Judge placed implicit reliance on the testimony of the prosecutrix and held that the appellant exploited the situation when she alone was at his house in the relevant night. The learned Sessions Judge disbelieved the version of the appellant in respect of the alleged loan transaction. The learned Sessions Judge held that the appellant committed sexual intercourse with the prosecutrix without her consent and by use of force. Consequently, the appellant was convicted and sentenced as described hereinabove.
6. Before I proceed to scrutinize the evidence tendered by the prosecution, it is worthwhile to notice that the prosecutrix is a married woman. She was having minor son of about eight (8) years age at the relevant time. The only motive for false implication of the appellant is said to be the financial liability which the prosecutrix desired to avoid. The appellant is real brother-in-law of the prosecutrix. Admittedly, her husband is a truck driver.
7. The testimony of the prosecutrix purports to show that due to domestic quarrel with her husband, she had gone to house of the appellant and her sister by name Lata. Her version reveals that she resided with them for about couple of days. In the meanwhile, there took place quarrel between her sister and the appellant. With the result, said Lata left house of the appellant and proceeded to the parental house at Dhanora. On the third day, after her visit to their house, she and her minor son were present in the house of the appellant. They took evening meals and thereafter, he alongwith the minor son went to bed. Her version purports to show that somewhere around mid-night, she awoke because she felt that hand of the appellant was placed on her person. Noticing his sexual advances, she urged him not to behave in that manner. He tried to allure her by saying that he would marry and maintain her. She refused the proposal. She narrated as to how he firmly held her, pulled her petticoat and saree, got removed his undergarments and committed forcible sexual intercourse with her. Her version reveals that in the next morning, she went to the matrimonial home. She narrated the incident to her mother-in-law PW-Rukminibai and brothers-in-law. She and her mother-in-law went to Yermala Police Station thereafter and lodged the FIR. She corroborated recitals of the FIR (Exh.-80). Her version reveals that she was clinically examined by lady Medical Officer. The entire text of her cross-examination is on the line that she had borrowed Rs. 30,000/- from the sister for medical expenditure required by her husband. She denied the suggestion that the appellant and her sister (Lata) used to frequently demand the amount lent to herself. Indeed, there is absolutely no documentary or any other independent evidence to support the story that amount of Rs. 30,000/- was lent by the appellant to the prosecutrix or her husband. The cross-examination does not show period of such transaction. The appellant stated during his examination under section 313 of the Criminal Procedure Code that the prosecutrix had obtained loan of Rs. 30,000/- from him to meet out expenditure required for operation of her husband because the latter was hospitalized at Pune. He further stated that after three (3) years of the loan transaction, he had demanded back the money. According to him, the prosecutrix picked up quarrel him, assaulted him and lateron framed him in a false case. This explanation of the appellant is not probabalized by any tangible evidence or circumstances. The appellant could have examined his wife in support of such defence. He failed to substantiate the line of defence in this behalf. The version of the prosecutrix is corroborated by her own conduct. She immediately went to the matrimonial home and disclosed the incident of rape to her mother-in-law and the brothers-in-law. The mother-in-law and the prosecutrix had no reason to falsely frame the appellant in a false case. The testimony of PW- Rukminibai goes to show that there took place quarrel between the prosecutrix and her husband in the proximity of Shimga festival and, therefore, she had left the house of the husband with intention to go to her parental house. The version of PW- Rukminibai corroborates the version of the prosecutrix regarding immediate disclosure of the incident of rape. Nothing of much significance could be gathered from her cross-examination.
8. From version of PW-1 Dr. Vidya, it may be gathered that the prosecutrix was clinically examined on 14th March, 2007. She deposed that there was a contusion injury on right shoulder of the prosecutrix of size 6 x 7 x 7 cms. There was also an abraison on her lateral aspect of left leg of size 3 x 4 cms. It was noticed that the prosecutrix was habituated to intercourse. The Medical Officer issued injury certificate (Exh.-16). She admits that the contusion injury on right shoulder could be result of fall of the victim on hard surface. She also admits that the abraison injury on lateral aspect of left leg could be possible due to brushing against hard surface. There is absolutely no evidence on record to show that the prosecutrix had received any injury before she visited house of the appellant. The obvious inference is that she must have received the injuries when she had attempted to push aside the appellant in the relevant night. It is more probable that she sustained the said injuries during course of the alleged incident of forcible sexual intercourse committed by the appellant when she was pressed firmly irrespective of her resistance.
9. There is no substantial reason coming forth to dislodge the version of the prosecutrix. The Apex Court in State of U.P. Vs. Munshi (AIR 2009 S.C. 370 : [2009 ALL MR (Cri) 556 (S.C.)]), held that the evidence of the prosecutrix can be basis for conviction even without corroboration. It is held that the prosecutrix is not an accomplice and that she stands on higher footing than injured witness. It is observed :
"There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at 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. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do."
In "S. Ramakrishna Vs. State" (AIR 2009 S.C. 885), the Apex Court held that the prosecutrix cannot be put at par with an accomplice and corroboration to her version is not necessary. In Rajendra Datta Zarekar Vs. State of Goa (2007 AIR SCW 7588 : [2008 ALL MR (Cri) 569 (S.C.)]), the Apex Court observed that false implication of accused is normally improbable because the incident of rape leaves a permanent scar and has a serious psychological impact on victim and also on her family members. It is observed:
"The rape leaves a permanent scar and has a serious psychological impact on victim and also her family members and, therefore, no one would normally concoct a story of rape just to falsely implicate a person."
10. It is not necessary to elaborately deal with the other evidence on record. The version of PW-4 Assistant P.I. Shri. Shelke reveals that he carried out the investigation into the crime in pursuance to the F.I.R. (Exh.18). He arrested the appellant in the same evening after the crime was registered. He referred the prosecutrix for clinical examination. The apparels of the prosecutrix were seized. They were sent for examination and opinion by the Chemical Analyzer. The F.I.R. was lodged after about five (5) days of the incident. Therefore, it is unlikely that the undergarments of the prosecutrix could have revealed any semen stains or blood stains. The learned Sessions Judge has duly considered the evidence tendered by the prosecutrix and other witnesses. One cannot be oblivious of the fact that while the prosecutrix and her minor son were present in the house of the appellant, her sister Lata had left his house in order to go to the parental house. It is difficult to believe that the prosecutrix herself could have made sexual advances when her real sister reposed confidence in her while leaving the house at the relevant time.
11. Considering the foregoing reasons, I have no hesitation in holding that the learned Sessions Judge has rightly convicted the appellant. The appellant committed sexual intercourse with the prosecutrix in the relevant night without her consent. The version of the prosecutrix was found truthful and could be relied upon without corroboration. She is the victim of the crime and cannot be regarded as an accomplice. The delay in filing of the F.I.R. is also duly explained. For, she had first approached her mother-in-law and the brothers-in-law before going to the Police Station. The prestige of the members of the husbands family was at stake and, therefore, without concurrence of her mother-in-law, she might not have thought it advisable to lodge the F.I.R. In such a case, the delay by itself cannot be regarded as fatal to the prosecution. Hence, the impugned judgement of conviction is quite sustainable and need not be interfered with.
12. So far as the quantum of sentence is concerned, learned advocate Mr. Shinde would submit that harsh view is taken by the Court of Sessions on this score. He would submit that the appellant deserves leniency because there are dependents on him. The learned Sessions Judge has not ascribed any special reasons while awarding the sentence of rigorous imprisonment of seven (7) years. It is true that ordinarily, such sentence is required to be awarded in case where the offence of rape is proved. The appellant is the brother-in-law of the prosecutrix and was alone in his house at the relevant time. The circumstance that the prosecutrix had quarrelled with her husband and instead of going to her parental house, she chose to go to house of the appellant is indicative of the fact that she trusted him and the sister. It is not a mere coincidence that her sister quarrelled with the appellant on the next day and had left his house. It is probable that her sister suspected that something was brewing between the appellant and the prosecutrix and, therefore, due to suspicion, she quarrelled with him. One cannot be oblivious of the fact that the appellant and the prosecutrix were the only adult members present in his house during the relevant night. They were sleeping at a short distance from each other under the same roof. It is quite probable, therefore, that the appellant was victim of fatal attraction towards the young prosecutrix. He might have been infatuated by her youthfulness and the opportunity of being in her proximity. It also cannot be overlooked that she did not raise any cry so as to attract attention of the neighbours. In this view of the matter, the sentence of seven (7) years' rigorous imprisonment is rather excessive and harsh. In my opinion, substantive sentence is required to be reduced to period of four (4) years' rigorous imprisonment in view of themitigating circumstances mentioned above.
13. In the result, the appeal to the extent of impugned order of conviction is dismissed. The impugned order of sentence is, however, modified and instead of sentence of seven (7) years' rigorous imprisonment, the appellant is sentenced to under go rigorous imprisonment for four (4) years' period. The remaining part of the impugned order of sentence is, however, maintained. The appeal is accordingly dismissed.